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Home My WebLink About97-00515 PYS510 1997-00515 Cumberland county Prothonotary's Office Page Civil Case Inquiry ASHTON ENTERPRISES (VS) HUGHES CHARLES ET AL 1 Reference No..: Filed........: Case Type.".,: CONFESSION OF ~UDGMENT Time,...,....: Judgment"" .,: 7431.50 ~ Execution Date Judge Assigned: BAYLEY EDGAR B Sat/Dis/Gntd.. Jury Trial.", Higher Court 1 Hiaher Court 2 **............**.......***......*****.....****....**...,...........**........... General Index Attorney Info ASHTON ENTERPRISES PLAINTIFF FENSTERMACHER JOHN R POBOX 251 EMERY MARK K NEW KINGSTOWN PA 17072 HUGHES CHARLES 5208 SUSQUEHANNA TRAIL YORK PA 17402 HUGHES JACKIE 5208 SUSQUEHANNA TRAIL YORK PA 17402 1/30/1997 16:09 0/00/0000 0/00/0000 DEFENDANT HOLT FARLEY G DEFENDANT HOLT FARLEY G Judgment Index HUGHES CHARLES 7,431,50 1/30/1997 CONFESSION OF JUDG HUGHES JACKIE 7 431.50 1/30/1997 CONFESSION OF JUDG .***********..************************~*.***.********.******...****....********* * Date Entries * *.***.*****************.*....**************.*.**********..*********......**..... -~ 03/13/97 04/03/97 CONFESSION OF JUDGMENT AND COMPLAINT ENTERED NOTICE MAILED TO DEFENDANTS DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT SHERIFF'S RETURN FILED Litigant.: HUGHES CHARLES SERVED - : 3/27/97 YORK COUNTY Costs....: $62.58 Pd By: FENSTERMACHER & ASSOCIATES 04/03/1997 04/0Z/97 SHERIFF'S RETURN FILED Litiqant,: HUGHES JACKIE SERVED: 3/27/97 YORK COUNTY Costs....: $8,00 Pd By: FENSTERMACHER & ASSOCIATES 04/03/1997 PETITION TO STRIKE OFF AND/OR OPEN JUDGMENT PURSUANT TO RULE 2959 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE ORDER OF COURT - DATED 4/30/97 - IN RE PETITION TO STRIKE OF AND/OR OPEN JUDGMENT PURSUANT TO RULE 2959 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE - RULE IS ISSUED AGAINST RESPONDENT RETURNABLE WITHIN 15 DAYS OF SERVICE - BY EDGAR B BAYLEY J - NOTICE MAILED 5/1/97 05/15/97 PLAINTIFF'S ANSWER TO DEFENDANTS' PETITION TO STRIKE-OFF AND/OR OPEN JUDGMENT ********.**********************************************************************. * Escrow Information * * Fees & Debits Bea Ba1 Pvmts/Adi End Bal * ..***********...*****...**.******.......*.......,**.**...**.....****.....*..***. 04/28/97 04/30/97 9.00 9.00 .00 ,50 ,50 ,00 5,00 5,00 .00 ------------------------ ------------ 14.50 14.50 .00 ******************************************************************************** * End of Case Information * **************************.***************************************************** JDMT/CONFESSION TAX ON CONFESS SATISFACTION t;--l)., ...- ..:1. ~"? " I.. ;' ""-.' I! .' ~ t . " 1 :1- ( : . ~ , L . ".1 ., ( - , ~ ) ~ ~ Iii "" w 6~~h :z:..,z",; . i( III ~ c:li:i:l~ ~zO>l_ ~a:~a:"" !i~~~E L\,;i(z ~ - . . . .. .. .. .. , . .......U'O.AOl'u...nu....nu. :~WlIOj "..'"lY1<<)u...~I1...l>11.,1.1lY <<)1<<lII'AIO'f'"lYOll l1'fl1 llY . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA !ASHTON ENTERPRISES, NO. 97-515 PlaintifTIRespondent. 'I vs. CIVIL ACTION - Law " I' i CHARLES HUGHES AND JACKIE I i HUGHES, :1 DefendantslPetitioners : " ,j " RULE 'j !, ]! AND NOW, TO WIT, this day of ,1997, " i upon consideration of Petitioner's "Petition to Strike Off and/or Open Judgment Pursuant I \0 Rule 2959 of the Pennsylvania Rules of Civil Procedure", a hearing is scheduled in this matter for the :, day of , 1997 in Courtroom Number of the Cumberland County Courthouse at a.m.lp.m. BY THE COURT: , i : , I I J. , , , , . , , , i .i ;: Enterprises, by and through their attorney, John It Fcnstermacher, Esquire, filed a Complaint with the Prothonotary's Office of Cumberland County, Pennsylvania seeking confession of judgmcnt in favor of Ashton Enterprises and against the Defendants/Petitioners, Charles and Jaekie Hughes, in the amount $7,431.50. 4. On or about March 21, 1997, the above-eaptioned Plaintiffs/Respondents, filed by and through their attorney, a Notice Under Rule 2958.1 of the Pennsylvania Rules of Civil Procedure giving notiee of judgment and execution thereon to the Petitioners herein. Said notice was served upon the Defendants/Petitioners on March 27, 1997. 5. On or about March 29, 1997, the above-captioned Defendant!/Petitioners filed an Answer to the Plaintiff's Complaint for confession of judgment. 6. The above-captioned Plaintiff has confessed judgment pursuant to the terms of a commercial lease for a certain piece of commercial property located at 6508 Brandy Lane, Unit #3, Mechancisburg, Cumberland County, Pcnnsylvania 17055. (See attached Petitioner's Exhibit "A" whieh is incorporated herein by referencc as ifset forth in full). 7. The aforegoing commercialleasc was entered into betwcen by the DefendantslPetitioners with the PlaintifflRcspondent for the sole purpose of allowing the Defendants/Petitioners to operatc a commercial business, namely an automobile repair garage and towing business at the aforegoing commercial premises. The above-captioned Plaintiff/Respondent was well aware ofthc Defendants/Petitioners' intcnded use for the commercial propcrty prior to the cxceution ofthc aforcgoing eommerciallcasc. 8. Prior to the parties cntering into the aforcgoing commerciallcasc for the subject eommcrcial property, Holly Wilbur, as an agent, servant, and/or cmployec of the Plaintiff/Respondent, informed the Petitioners that the property had been approved by the township for commercial zoning and that they could immediately move in and start operating their business. 9. The above-eaptioned Petitioners relied upon the aforegoing reprt:sentations made to them by the agents, servants, and/or cmployees of the PlaintilTlRespondent in executing the aforegoing commercial lease dated December 20, 1996. 10. Pursuant to the terms of the aforegoing commercial lease between the parties, the DefendantslPetitioners were to pay to the RespondentlPlaintiff, the sum of$695.00 each and every month on the account of rent. Said lease was to commence on or about November 18,1996 and end on October 31,1997. The month of November, 1996 was in fact pro-rated. 11. The above-captioned Petitioners paid to the Respondent all rent due and owing from November 18, 1996 through and including December 31, 1996. 12. Despite the fact that the Petitioners took possession of the subject commercial property on November 18, 1996, thcy were unable to operate the automobile towing business out of the same due to Hampden Township's refusal to issue a certificate of use to the abovc-captioned Petitioners/Defendants. Said certificate of use was not issued to the above-captioned Petitioners due to the above-captioned Respondcnt's failurc to provide olT-street parking and install a fenee as required by the Hampden Township Zoning Ordinance, morc specifieally Sections 1413, 1608.4 and 1902.2(H). (See attached Petitioner's "B" and "C" which are incorporated herein by rcfercncc as ifset forth in full). 13. In or about mid-January, 1997, the above-captioned Petitioners attendcd a meeting at the Hampden Township Municipal Building for the purposes of inquiring as to the status of their application for certifieate of use with regard to the aforegoing commercial property. At said meeting, the Petitioners werc informed that various improvements had to be madc to the property prior to the issuancc of a certificate ofusc, namely, olT-street parking and the installation ofa fence in the area to be used by the Pctitioners as a storage area. Additionally, the Petitioners were informed that until such time as a certificate of use was issued to the Petitioners, they would not be able to conduct any commercial business out of the subject commercial property. 14. Shortly after the aforegoing mid-January township meeting, the Petitioners informcd the Respondent of the necessity to elTectuate the aforcgoing improvements to the property prior to the issuance ofa certificate of use by Hampden Township. At that time the Rcspondent refused to elTeetuate said improvements. 15. Due to the above-eaptioned Rcspondent's refusal to elTectuate thc neccssary improvements to the subjeet commercial property, the Petitioners were unable to operate their automobile mechanic garage and automobile towing business. 16. The Petitioners informed the Respondents of their decision to vacate the commercial property due to the fact that they were unable to obtain a certificate of use from Hampden Township as a result of the Respondent's refusal to effectuate the necessary improvements. 17. On or about February 14, 1997, the Petitioners vacated the said commercial property. 18. The Petitioners believe and therefore aver that the subject commercial property has been subsequently re-rented by the Respondent to an unknown individual/entity, thus, allowing the Respondent to receive double rent (double dip). 19. Due to Respondent's failure to effectuate the necessary improvements to the subject commercial property, the Petitioners were incapable of occupying the premises and conducting their business, the sole purpose of entering into the commercial lease with Respondents. WHEREFORE, Petitioners, Charles and Jackie Hughes, respectfully request this Honorable Court to open and/or strike the judgment preventing execution against them by way of confession by the Respondents, Ashton Enterprises, Ine. NON-RESIDENTIAL LEASE THIS IS A NON-RESIDENTIAL LEASE. IT IS A LEGALLY BINDING CONTRACT BETWEEN THE LANDLORD AND EACH TENANT. EACH TENANT SHOULD READ THIS LEASE CAREFULLY. THIS LEASE CONTAINS WAIVERS OF YOUR RIGHTS AS A TENANT. EACH TENANT SHOULD NOT SIGN THIS LEASE UNTIL EACH TENANT UNDERSTANDS ALL OF THE AGREEMENTS IN THIS LEASE. 1. NAMES OF LANDLORD AND TENANT Name of the landlord: Ashton Enterprises P.O. Bale 261 New ~ingston, PA 17072 . Name(s) of ~he tenant(s): Charles Hughes and Jackie Hughes 5208 Susquehanna Trail York, P.l\ 17402 2. LEASED PREMISES The leased premises is the place that landlord agrees to lease to tenant. The leased premises is: 6508 Brandy Lane, Unit 13, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. STARTING AND ENDING DATES OF LEASE AGREEMENT This lease starts as of November 18, 1996 This lease ends on october 31, 1997 4 . RENT The amount of mlnlmum monthly rent is: $695.00 each month. There shall also be due such additional amounts, deemed rent hereunder, including but not limited to any increase(s) in fire icsurance premiums due to the naeure of tenane's occupancy. Tenant agrees to pay the monthly rent, .in advance, on 0;: b~fore the first (1st) day of each month as set forth above. For Leases starting before ehe 1st day of the month, such pro-rated rent shall be due immediately ae the signing of this lease. Landlord does not have to ask (MAKE DEMAND UPON) tenant to pay the rent. Tenant agrees to pay rent by first class mail postage prepaid or in person to landlord at the place specified by landlord. Tenant agrees to pay a LATE CHARGE cf 5% of the monthly rent if tenant does not pay the rent within five (5) days of che due date. which is the first Ilstj day of each ~onth. If tenant mails the rent to landlord, the date of payment will be the date the letter is postmarked. S. SECURITY DEPOSIT Tenant agrees to pay a security deposit of $695.00, which landlord has received. Tenant agrees to pay the security deposit to landlord upon signing this lease. Landlord can take money from the security deposit to pay for any damages caused by tenant, tenant' 5 employees and tenant' 5 guests and business invitees. Landlord may take the security deposit to pay for any unpaid rent. After taking out for damages and unpaid rent, landlord agrees to send to tenant any security deposie money left over. Landlord will send the remainicg security deposit money to tenant no later than 30 days after the lease ends and tenant leaves. Landlord also agrees to send to tenant a written list of damages.and amounts of money taken from the security deposit. Tenant agrees to give landlorrl a written forwarding address when tenant leaves and the lease ends in order to send any remaining security deposit. Tenant may ~ot use the security deposit as payment of the last month's rent. 6. LANDLORD'S DUTY AT THE START OF THE LEASE Landlord agrees to give tenant poss,?ssion of the leased premises on the starting date of the lease. The lease will start even if landlord cannot give tenant possession of the leased ?remises because the prior tenant is still in the leased premises or the leased premises is damaged. IF LANDLORD CANNOT GIVE TENANT POSSESSION, TENANT DOES NOT HAVE TO PAY RENT UNTIL THE DAY LANDLORD GIVES POSSESSION OF THE LEASED PREMISES TO TENANT. 7. DAMAGE TO LEASED PREMISES Tenant agrees to notify landlord immediately if the leased premises is damaged by fire or any other cause. Tenant agrees to notify landlord if there is any condition in the leased premises ~hat could damage the leased premises or harm tenant or others. If tenant cannot occuov the whole leased premises because it is damaged or destroyed; tenant may: 1 ) pay less rent occupy the undamaged part of the leased premises and until ehe leased premises is repaired. OR end the lease and leave the leased premises. 2) 'fenant agrees that if the destroyed and tenant ends the responsibility to tenant. leased premises is lease, landlord has damaged or no further a. INSURANCE Landlord agrees to have insurance on the building where the leased premises is located. Tenant's own property is not insured by landlord's insuran~e. Tenant is responsible for tenant's own property that is located in the leased premises and shall maintain tenant's own renter's insurance. Tenant shall also maintain, at Tenan~ls cast, liability insurance, with che landlord and owners Jeffrey and Holly wilbur named as additional insured/loss payees with minimum limits of liability in respect to bodily injury of not less than Five Hundred Thousand ($500,000.00) Dollars with respect to anyone person and One Million ($1,000,000.00) Dollars in che aggregate; and in respect to property damage of not less than One H~ndred Thousand ($100,000.00) Dollars for each occ~rrenc€. Proof of insurance shall be tendered upon demand and landlord shall receive ten (10) days prior written notice of cancellation of said policies. 9. ASSIGNMENTS OR SUBLEASES 3Y TENANT ASSIGNMENT (OR ASSIGN) is the legal term for a transfer of the lease from the tenant to another person. This other ~erson then becomes the landlord's new tenanc and takes over the leas8. Tenant agrees not to transfer (assign)this lease to anyone else uithout the written permission of landlord, which landlord is noc obligated cO give. A sublease is a separate lease bet\~een che tenant and anothel- person who leases all or a part a: the leased premises from the tenant. Tenant agrees not to lease (sublease) all or any part of the lease premises to anyone else without the written consent of landlord which landlord is again not obligated to give. Tenant agrees that if tenant transfers this lease (assigns) or leases all or a part of the leased premises to another (sublease), tenant has violated this lease unless landlord has approved in writing. 10. RESPONSIBILITY FOR DAMAGE TO PROPERTY OR INJURY TO PEOPLE Landlord is responsible for all damage to property or injury to people caused by landlord (or landlord I s representatives I ) intentional or negligent acts at the leased premises. Tenant is responsible for all damage to the leased premises and injury to people caused by tenant, tenant's employees, guests or business in'.'itees. Tenant agrees that landlord is not responsible to tenant, tenant I s employees, guescs or business invi tees for damage or injury to person or property caused by water, snow or ice chat comes on the leased premises unless landlord was negligent. 11. USE OF LEASED PREMISES - PERMITS - SIGNAGE Tenant agrees to use the leased premises as of fices for a commercial towing business use. Tenant agrees to obey all federal, state anrl local laws and regulations when using the leased premises. Tenant agrees not to store any flammable, hazardous, or toxic chemicals or substances in or around the leased premises. Tenant agrees not to do any activities in or around the leased premises which could harm anyone or damage any property and tenant shall be liable for any such damage or harm if a violation of this paragraph. Tenant is responsible for obtaining an occupancy permi c from the municipality as well as any required sign permit if ~enant desires a sign. Sign placement and style must be agreed to by landlord in writing or it shall be removed at tenant's expense. 12. RULES AND REGULATIONS Tenant agrees to obey all rules and regulations, as landlord ~ay advise from time to time, in writing, for the l~ased pre~ises. If tenant violates any rules or regulations for the leased pre~ises, tenant violates this lease. 13. OWNER'S RIGHT TO MORTGAGE THE LEASED PREMISES (SUBORDINATION) Subordinate and subordination are legal terms that mean that ~his lease does noc have any effect upon the rights of the owner's mortgage company. In other words, tenant's rights under this lease are subordinate to owner's mortgage company. If owner does not make the mortgage payments, the mortgage company may have the righ~ to end the owner's ownershio of the leased oremises. If the mortgage company sells the leased premises at a mortgage foreclosure sale, the lease may end. Tenant agrees that owner has the righc to mortgage the leased prenises. i: owner has a mortgage on the leased premises now. or if owner gets a mortgage in the future, tenant agrees that t~is lease is subordinate to the owner's mortgage. 14. CARE OF LEASED PREMISES Tenant is responsible fer, and will take good care of, the leased premises and all of the p;:operty in and around the leased premises. Tenant agrees to pay for any damage caused by tenant, tenant's employees and tenant's guests and business invi tees, regardless of issues 0 f fault. Tenant agrees to turn ever possession of the leased premises to landlord when the lease ends and that the premises shall be in substantially the same condition as it exists on the date of chis lease, reasonable wear and tear alone excepted. 15. LANDLORD'S RIGH~ TO ENTER LEASED PREMISES ~enant agrees that landlord, landlord's representatives and owner have the right to enter che leased premises at reasonable times. Landlord, landlord's representa~ives and owner have the right but not the obligation to inspect, to make repairs, co do maintenance, and to show the leased premises to others. 16. UTILITY SERVICES Landlord and tenant agree to pay for the charges for utilities and services supplied to the leased premises as follows: Charae or Service: Electric to premises Water Service Natural Gas Refuse Colleccion Lawn Maintenance Snow and Leaf Removal Sewer Charges Telephone Charges Paid Bv: Tenant Tenant Tenant Landlord Landlord Landlcrd Tenant Tenant Landlord or owner have the right to turn off temporar~ly any utility or other servic~ to the leased premises in order to make ~epairs or do maintenance. l7. GOVERNMENTAL POWER OF EMINENT DOMAIN. Eminent domain is the legal name for the right of a gove~nment such as the state or county or ~ity to take private prope~ty for public use. The government must pay fair compensation to anyone who has any right in the property that is taken by the governmenc. If all or any part of the leased premises (or the building wichin which the leased premises is located) is taken by eminent domain, this lease will end automatically. Landlord and cenant agree to release each other from any responsibility because the leased ?remises is takec by eminent domain and che lease or sub- ~ease has ended. lB. VIOLATIONS OF THIS LEASE WHEN EITHER LANDLORD OR TENANT DOES NOT DO SOMETMING THAT THEY HAVE AGREED TO DO, IT IS A VIOLATION OF THIS LEASE. IF TENANT VIOLATES THIS LEASE, TENANT MAY LOSE TENANT'S SECURITY DEPOSIT. IF TENANT VIOLATES THIS LEASE, LANDLORD ALSO CAN SUE TENANT FOR OTHER EXPENSES AND MAY SUE TO EVICT TENANT. ~ACH TENANT SHOULD NOT SIGN THIS LEASE UNLESS EACH TENANT HAS READ AND CLEARLY UNDERSTANDS THE INFORMATION IN THIS SECTION ABOUT LEASE VIOLATIONS. X THIS IS A JOINT AND SEVERAL LEASE THIS IS NOT A JOINT AND SEVERAL LEASE IF THIS IS NOT A JOINT AND SEVERAL LEASE, THEN THE LANDLORD CAN ONLY SUE ONE TENANT FOR THAT TENANT'S VIOLATION OF THE LEASE. IF THIS IS A JOINT AND SEVERAL LEASE IT MEANS THAT ALL THE TENANTS AS A GROUP AND EACH OF THE TENANTS AS AN INDIVIDUAL ARE RESPONSIBLE TO LANDLORD FOR ALL OF THE AGREEMENTS OF THIS LEASE. FOR EXAMPLE, IF THE RENT IS NOT PAID, LANDLORD CAN SUE ALL OF THE TENANTS (JOINTLY) FOR ANY UNPAID RENT. SUIT AGAINST ANY ONE TENANT SEPARATELY UNPAID RENT. OR, LANDLORD CAN BRING A (SEVERALLY) FOR ALL OF THE TENANT VIOLATES THIS LEASE IF TENANT: 1) FAILS TO PAY RENT OR OTHER CHARGES TO LANDLORD ON TIME OR, 2) LEAVES (ABANDONS) THE LEASED PREMISES WITHOUT THE LANDLORD'S PERMISSION BEFORE THE END OF THE LEASE OR, 3) DOES NOT LEAVE THE LEASED ?REMISES AT THE END OF THE LEASE OR, . 4) DOES NOT DO ALL OF THE THINGS THAT TENANT AGREED TO DO IN THIS LEASE. IF TENANT VIOLATES THE LEASE , EACH TENANT AGREES TO WAIVE NOTICE TO QUIT. THIS MEANS THAT THE LANDLORD MAY FILE A COMPLAINT IN COURT ASKING FOR AN ORDER EVICTING EACH TENANT FROM THE LEASED PREMISES WITHOUT GIVING EACH TENANT NOTICE TO QUIT FIRST. LANDLORD DOES NOT HAVE THE RIGHT TO THROW TENANT OUT OF THE LEASED PREMISES (SELF-HELP EVICTION). THE LANDLORD CAN ONLY EVICT TENANT BY COURT ACTION. THE LANDLORD DOES HOT HAVE THE RIGHT SUE IN COURT FOR EVICTION UNLESS A TENANT HAS VIOLATED THE AGREEMENTS IN THIS LEASE. EVEN THOUGH EACH TENANT IS WAIVING NOTICE TO QUIT, EACH TENANT WILL a~VE A CHANCE IN COURT TO CHALLENGE THE LANDLORD'S CLAIM FOR EVICTION. IF TENANT VIOLATES THE LEASE AGREEMENT, THE LANDLORD MAY SUE EACH TENANT IN COURT: 1) TO COLLECT OVERDUE RENT, LATE CHARGES AND MONEY DAMAGES CAUSED BY TENANT'S VIOLATION OF THE AGREEMENTS IN THE LEASE WHETHER BY CONFESSION OF JUDGMENT OR OTHERWISE. 2) TO RECOVER POSSESSION OF THE LEASED PREMISES (EVICTION). 3) TO COLLECT FOR UNPAID RENT UNTIL THE END OF THE LEASE OR UNTIL ANOTHER PERSON TAKES POSSESSION OF THE LEASED PREMISES AS A NEW TENANT. Tenant agrees that landlord may receive =easonable attorneys fees as part of a court judgment in a lawsuit against tenant for violation of thg agreements of t~e lease. 19. CONFESSION OF JUDGMENT. TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR TENANT AT ANY TIME AFTER DEMAND OR DEFAULT HEREUNDER IN ANY ACTION BROUGHT AGAINST TENANT UNDER THIS LEASE AT THE SUIT OF LANDLORD, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, TO WAIVE THE J . i , Hampden Township Board ot COI11mlulonera Melvyn C. Flnkclsleln, Prr-sldenl Isabell 51i1lh"15, \1ce f~esldcnl James E. RcOOler NeVin w. Funk OonnkJ n. McCnllln Townahlp Mlina.er John E. Bradley, Jr. January 23,1997 Charles H. Hughes 5208 Susquehanna Trail York, PA 17402 Re: Application for Certificate of Use 6508 Brandy Lane, Mechanicsburg, PA Tax Parcel No. 10.10.22.521.12 Dear Mr. Hughes: This concerns your recent application for a Certificate of Use to allow a mechanical repair shop at the referenced address. The application is being held pending receipt of further information. Off-street parking must be provided in accordance with Part 19, Section 1902.2H. Storage of tow vehicles and other equipment or vehicles at this site will require a fenced-in storage area, pursuant to Zoning Ordinance Sections 1413, 1608.4 and 1902.2H. (see enclosed copies) Until your application is approved, you should remove all commercial activity from this site, including the storage of any vehicles and commercial advertising (signs) immediately. Please feel free to call this office with any questions you may have. Sincerely, 3tl.(,u..LP f M9tJ.LL.' Darrell L. McMillan Director of Codes Enforcement Assistant Zoning Officer DLM/PCH cc: Board of Township Commissioners Richard C. Snelbaker, Esq., Township Solicitor John E. Bradley, Jr., Township Manager Jeff & Holly Wilbur t 'i-I-I If] II IIL~ II _. ------------ 2. Between an industrial district and a residential district .ml! or residential use or .n A.O Apartment. Orlice district; or an A.O.L Apartment Office Limited district: A. Front yard depth: one hundred fifty (150) feet. B. Side yard depth: one hundred fifty (150) feet each. C. Rear yard depth: one hundred fifty (150) feet. D. Buffer yard depth: twenty.five (25) feet which shall be considered as part of the required one hundred fifty (150) foot yard. (Orr! 8+2,3/29/84,51407; u amended by Orr! 85-1.4/2/85) $1409. Control of Dust and Dirt. Fllmes. Vapor< and Gues. The emission of dust, dirt, fly ull, fumes, vapors or gases which can cause any damage to human health, to animals or vegetation or to other forms of property or which can cause any soiling or staining of persons or property at any point beyond the lot lines of the use crming the emission is prohibited. (Ord 84.2.3/29/84,51408) $1410. Glare and Heat Control. No industrial use shall carry on.n operation that produces heat or glare beyond the property lines of the lot on which the opemion is conducted. (Ord 84-2. 3/29/84,51409) $ 1411. Vibration Control. Machines or opemions which cause vibrations shall be permitted provided that vibrations are not perceptible along the boundary line of .ny non.industrial district. (Ord. 84.2, 3/29/84, 51410) $1412. Control of Radioactivil;y. FJectric.a1 or Radio Disturbance. Activities which emit dangerous radio.ctivity at any point shall be prohibited. Any use or operation involving electrical or radio disturbance (except from domestic household appliances) which adversely .ffect the operation at any point of any equipment other than that of the creator of such disturb.nce shall be prohibited. (Orr! 84.2. 3/29/84, 5141\) $141l. Storare and Waste Disposal. \. All outdoor facilities for fuel, raw materials .nd products and all fuel. raw materials and products stored outdoors shall be enclosed by an approved safety fence and visual screen and shall conform to all yard requirements imposed upon the main building in this District. 2. No materials or wutes shall be deposited upon a lot in such form or manner thu they may be transferred off the lot by natural causes or forces, nor shall any subsunce which can contaminate a streOlm or wOItercourse or otherwise render such strC:OIm or W,ltercourse undesirable.1S a course of \\'ater supply or recreation, or which can destroy aquatic life, be allowed to enter any stream or wJtercourse. 3. All materials or wastes which might cause fumes or dust or which constitute a fire hazard or which may be edible or otherwise allractive to rodents or insects shall be .tored outdoors only if enclosed in containers which are adequate to eliminate such hazards. (Ord 84.2,3/29/84,51412) 14-4 ? II L 'I. /-1 / i.? I r /Ie I .. I . , " I -I . .: ,: I: I: I: _.~~-=~ B. An open and unobstructed pass.gew.y shall be provided for e.ch inner c"urt. Such pass.gew.y shall h.ve sufficient cross.section .re. .nd headroom for the pass.ge of fire fighting equipment .nd shall be continuous from the inner court to . yard or unobstructed open are. with access to . street. (.Ord 84-2,3/29/84,51605) 51607. Fire Esc.ape.. Nothing contained in this Ch.pter shall prevent the projection of.n open fire escape into. required yard for. dist.nce not to exceed eight (8) feet. (Ord 84-2, 3/29/84, 51606) 51608. Fence.. I. Fences and walls m.y be erected, altered and maintained within the y.rds provided th.t <a) any such fence or wall in the front y.rd shall not exceed three and one.half (3-1/2) feet in height .nd (b) any fence or wall in the side or rear yard m.y be six (6) feet or more in height. provided th.t .ny fence or wall exceeding six (6) feet in height shall contain openings therein equal to fifty percent (50%) of the .re. of th.t portion of the wallar fence exceeding six (6) feet. The term "Front Vard" shall me.n .ny open sp.ce along. street or road. 2. All yards used for the storage of .ny material needed for the operation or conduct of · manuf.cturing or commercial enterprise sh.ll be enclosed by . solid wall, uniformly p.inted board fence or screen planting on all sides which face upon a lot in . more restricted zone. 3. Front.y.rd Fences: Front-y.rd fences gre.ter than three .nd one-half (3 1/2) feet in height must be placed on or behind the building setback line. 4. Any motor vehicle gar.ge. service station, or motor vehicle body shop .butting a residential use or residential zoning district shall h.ve a visual screen fence not less than six (6) feet in height pl.ced around . vehicle storage .rea. Such fence shall be in addition to .ny buffer y.rd requirements of 51602 above. (prd 84.2,3/29/84, 51607) 51609. G.rdening. Home g.rdening shall be permitted in any district. tOrd 84.2,3/29/84,51608) 51610. Obstructions to Vi,ion. I. No fence, sign or other structure shall be erected or mainuined and no hedge, trees, shrubs or other veget.tion shall be maintained or permittd which m.y came d.nger to motor vehicles and pedestri.n tr.ffic on . street or ro.d by interfering with the view. 2. There shall be provided and m.int.ined at all intersections clear sight triangles of ,eventy.fj,'e (75) feet in all directions measured along the centerline from the point of intersection. Nothing which obstructs the vision of the operator of . motor vehicle shall be permitted within this area. (prd 84.2,3/29/84, 51609; as amended by ped 85-1.4/2/85) 51611. Outdoor I ighting. All outdoor lighting shall be so arranged and shielded so that no objectionable illumination is cast upon adjoining residential uses in any dimict. (Ord 84.2, 3/29/84, 51610) 51612. Projections in Varw. I. Cornices, eaves, gutters, b.y windows, window wells and chimneys may project into the front, side or rear yards of alot not more than twenty.four (24) inches. 16.4 II iii II II .. . I; . . . I , I II I " I I I I J NON-RESIDENTIAL LEASE THIS IS A NON-RESIDENTIAL LEASE. IT IS CONTRACT BETWEEN THE LANDLORD AND EACH TENANT. READ THIS LEASE CAREFULLY. A LEGALLY BINDING EACH TENANT SHOULD THIS LEASE CONTAINS WAIVERS OF YOUR RIGHTS AS A TENANT. EACH TENANT SHOULD NOT SIGN THIS LEASE UNTIL EACH TENANT UNDERSTANDS ALL OF THE AGREEMENTS IN THIS LEASE. 1. NAMES OF LANDLORD AND TENANT Name of the landlord: Ashton Enterprises P.O. Box 261 New ~ingscon, PA 17072 . Name(s) of ~he tenant(s): Charles Hughes and Jackie Hughes 5208 Susquehanna Trail Yo;:k, P.'\ 17402 2. LEASED PREMISES The leased premises is the place ~ha~ landlord agrees to lease to tenant. The leased premises is: 6508 Brandy Lane, Unit #3, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. STARTING AND ENDING DATES OF LEASE AGREEMENT This lease starts as of November 18, 1996 This lease ends on October 31, 1997 4. RENT The amount of mininum monthly rent is: $695.00 each month. There shall also be due such additional amounts, deemed rent hereunder, including but nct limited to any increase(s) in fire insurance premiums due to the na~ure of tenanc's occupancy. Tenant agrees to pay the mom:hly rent, in advance, or. cr b~fore the firsc (1st) day of each month as set forth above. For Leases scarting before che 1st day of the mcnth, such pro-rated rent shall be due ::.mmediately a~ the signing of this lease. Landlord does no~ ha\'e to ask 'MAKE DEMAND UPON) tenant to pay the rent. Tenant agrees tc pay rent by first class mail postage prepaid or in oerson to landlord at the place specified bv landlord. Tenant agrees to pay a LATE"CHARGE'cf 5% of the mcnthly rent if tenant does not pay the rent within five (5) days of ~he due date. which is the firsc (1st) day cf each ~onth. If tenant mails the rent tc landlord, r.he date of payment \~ill be ~he date the latter is postmarked. 5. SECURITY DEPOSIT Tenant agrees to pay a security deposit of $695.00, which landlord has received. Tenant agrees to pay the security deposic to landlord upon signing this lease. Landlord can take money from the security deposit to pay for any damages caused by tenant, tenant I s employees and tenant' 5 guests and business invitees. Landlord may take the security deposit to pay for any unpaid Len~. After taking out for damages and unpaid rent, landlord agrees co send co tenant any security deposic money left over. Landlord will send the remaining security deposit money to tenant no later chac 30 days after the lease ends and tenant leaves. Landlord also ag~ees to send to tenant a written list of damages.and amounts uf money taken from che security deposic. Tenant agrees to give landlcrrl a written forwarding address when tenant leaves and the lease ends in order to send an'! remaining security deposit. . Tenant may not use the security deposit as payment of the last month's rent. 6. LANDLORD'S DUTY AT THE START OF THE LEASE Landlord agrees to give tenant possession of the leased premises on the starting date of the lease. The lease will start even 1.>: landlord Gannot give tenant possession of the leased ?remises because the prior tenant is still in ~he leased premises or the leased premises is damaged. IF LANDLORD CANNOT GIVE TENANT POSSESSION, TENANT DOES NOT HAVE TO PAY RENT UNTIL THE DAY LANDLORD GIVES POSSESSION OF THE LEASED PREMISES TO TENANT. 7. DAMAGE TO LEASED PREMISES Tenant agrees to notify landlord immediately if the leased premises is damaged by fire or any other cause. Tenant agrees to notify landlord if chere is any condition in the leased premises ~hat could damage the leased premises or harm tenant or others. If tenanc cannot OCCU?Y the ~Ihole leased premises because it !.s damaged or destroyed, tenant may: pay less 1 ) rent occupy the undamaged par~ of the le~sed premises and until che leased premises is repaired. OR end the lease and [eave the leased premises. 2 ) 'fenant aqrees that if destroved and - tenant ends respcn~ibility to tenant. the the leased oremises is lease, landlord has damaged c r no further 6. INSURANCE Landlord agrees to have insurance on the building where the leased premises is located. Tenant's own property is not insured by landlord's insuran~e. Tenant is responsible for tenant's own property that is located in the leased premises and shall maintain tenant's own renter's insurance. Tenant shall also maintain, at Tenant's cost, liability insurance, with che landlord and owners Jeffrey and Holly wilbur named as additional insured/loss payees with minimum limits of liability in respect to bodily injury of not less than Five Hundred Thousand ($500,000.00) Dollars with respect to anyone person and One Million ($1,000,000.00) Dollars in che aggregate; and in respect to property damage of not less than One Hundred Thousand ($100,000.00) Dollars for each occurrence. Proof of insurance shall :Je tendered upon demand and ~andlord shall receive ten (10) days prior written notice of cancellation of said polic ies. 9. ASSIGNMENTS OR SUBLEASES 9Y TENANT ASSIGNMENT (OR ASSIGN) is the legal term for a transfer of the lease from the tenant to another person. This other person then becomes the landlord's new tenanc and takes over the leasp-o Tenant agrees not to transfer (assign)this lease to anyone else uithout the written permission of landlord, which landlord is no~ obligated to give. A sublease is a separate lease between che tenant and another person who leases all or a part of the leased premises from the tenant. Tenant agrees not co lease (sublease) all or any part of che lease premises to anyone else I'/ithout the \'Iritcen consent of landlord which landlord is again not obligated to give. Tenant agrees that if tenant transfers this lease (assigns) or leases all or a part of the leased premises to another (sublease), tenant has violated this lease unless landlord has approved in writil~. 10. RESPONSIBILITY FOR DAMAGE TO PROPERTY OR INJURY TO PEOPLE Landlord is responsible for a~l damage to property or injury to people caused by landlord (or landlord's representatives') intentional or negligent acts at the leased premises. Tenant is responsible for all damage to the leased premises and injury to people caused by tenant, tenant's employees, guests or business invitees. Tenant :lgrees -:.hat landlord is no-:. responsible to tenant, tenant's employees, guescs or business invi tees for damage 0::- injLry to person or property caused by water, snow or ice chac corne~ on the leased 9remises unless landlord was negligent. ll. USE OF LEASED PREMISES - PERMITS - SIGNAGE Tenant agrees tc use the leased premises as offices for a co~mercial towing business use. Tenant agrees to obey all federal, state and local laws and regulat~~ns when using the leased p~emises. Tenant agrees not to store any flammable, hazardous, or toxic chemicals or substances in or around the leased premises. Tenant agrees not ~o do any activities in or around the leased premises which could harm anyone or damage any property and tenant shall be liable for any such damage or harm if a violation of chis paragraph. Tenant is responsible for obtaining an Occupancy Pe~mic f~om the municipality as well as any required sign permit i: ~enant desires a sign. Sign placement and style must be agreed to by landlord in writing or it shall be removed at tenant's expense. 12. RULES AND REGULATIONS Tenant agrees to obey all rules and regulations, as landlord nay advise from ~ime to ~ime, in \~riting, far the lEl,ased premises. If tenant violates any rules or regulations for the leased premises, tenant viola~es this lease. 13. OWNER'S RIGHT TO MORTGAGE THE LEASED PREMISES (SUBORDI~ATION) Subordinate and subordination are legal terms that mean chat :his lease does noc have any effect I.:pon the rights of the owner's mo~cgage company. In otner words, tenant's rights under this lease are subordinate to owner I 5 mortgage company. I f owner does not make the mortgage payments, the mortgage company may have the righ~ to end the owner's Ol'mershio of the leased oremises. I E the mortgage company sells the leased premises at a morcgage fo~eclosure sale, the lease may end. Tenant agrees that owner has the righ~ to mortgage the leased prenises. If owner has a mortgage on the leased premises now. or if owner gets a mortgage in the future, tenant agrees ..hat ttis lease is subordinate ~c ~he owner's mortgage. 14. CARE OF LEASED PREMISES Tenant is responsible for, acd will take good care of, the leased premises and all of the property in and around the leased premises. Tenant agrees to ~ay for any damage caused by tenant, tenant's emploY:les and tenant I 5 guests and business inv i tees, regardless of issues of fault. Tenant agrees to turn over possession of the leased premises to landlord when the lease ends and tha~ the premises shail be in substantially the same condition as it exists on the date of ~his lease, reasonable wear and tear al'Jne excepted. 15. LANDLORD'S RIGH~ TO ENTER LEASED PREMISES Tenant agrees ~ha~ landlord, landlord's representatives and owner have the right co enter ~he leased premises at reasonable tines. Landlord, landlord's representatives and owner have the right but not the obligation ':0 :.nspect, ~o make repairs, co do ~aintenance, and to show the leased premises to others. l6. UTILITY SERVICES Landlord and tenant agree to pay for the charges for utilities and services supplied to the leased premises as follows: Charae or Service: Electric to Premises Water Service Natural Gas Refuse Collection Lawn Maintenance Snow and Leaf Removal Sewer Charges Telephone Charges Paid By: Tenant Tenant Tenant Landlord Landlord Landlord Tenant Tenant Landlord or owner have the right to turn off temporar~ly any ucilicy or other service to the leased premises in order to make repairs or do maintenance. l7. GOVERNMENTAL POWER OF EMINENT DOMAIN. Eminent domain is the legal r.ame for the right of a governmen~ such as the state or co~nty or city to take private property for public use. The government must pay fair compensation to anyone who has any right in the property that is taken by the governmenc. If all or any part of the leased pre~ises (or the building wichin which the leased premises is located) is taken by eminent domain, this lease will end automatically. Landlord and ~enant agree to release each other fro~ any responsibility because the leased ~remises is ~aker. by eminent domain and che lease or sub- lease has ended. la. VIOLATIONS OF THIS LEASE WHEN EITHER LANDLORD OR TENANT DOES NOT DO SOMET3ING THAT THEY HAVE AGREED TO DO, IT IS A VIOLATION OF THIS LEASE. IF TENANT VIOLATES THIS LEASE, TENANT MAY LOSE TENANT'S SECURITY DEPOSIT. IF TENAtlT VIOLATES THIS LEASE. LANDLORD ALSO CAN SUE TENANT FOR OTHER EXPENSES AND MAY SUE TO EVICT TENANT. EACH TENANT SHOULD NOT SIGN THIS LEASE UNLESS EACH TENANT HAS READ AND CLEARLY UNDERSTANDS THE INFORMATION IN THIS SECTION ABOUT LEASE VIOLATIONS. X THIS IS A JOINT AND SEVERAL LEASE THIS IS NOT A JOfNT AND SEVERAL LEASE IF THIS IS NOT A JOINT AND SEVERAL LEASE, THEN THE LANDLORD CAN ONLY SUE ONE TENANT FOR THAT TENANT'S VIOLATION OF THE LEASE. IF THIS IS A JOINT AND SEVERAL LEASE IT MEANS THAT ALL THE TENANTS AS A GROUP AND EACH OF THE TENANTS AS AN INDIVIDUAL ARE RESPONSIBLE TO LANDLORD FOR ALL OF THE AGREEMENTS OF THIS ~EASE. FOR EXAMPLE, IF THE RENT IS NOT PAID, LANDLORD CAN SUE AL: OF THE TENANTS (JOINTLY) FOR ANY UNPAID RENT. SUIT AGAINST AN7 ONE TENANT SEPARATELY UNPAID RENT. OR, LANDLORD CAN BRING A (SEVERALLY) FOR ALL OF THE TENANT VIOLATES TH!S LEASE IF TENANT: 1) FAILS TO PAY RENT OR OTHER CHARGES TO LANDLORD ON TIME OR, 2) LEAVES (ABANDONS) THE LEA3ED PREMISES WITHOUT THE ~~~DLORD'S PERMISSION BEFORE THE END OF THE LEASE OR, 3) DOES NOT LEAVE THE LEASED PREMISES AT THE END OF THE LEASE OR, 4) DOES NOT DO ALL OF ~HE THINGS THAT TENANT AGREED TO DO IN THIS LEASE. IF TENANT VIOLATES THE LEASE , EACH TENANT AGREES TO WAIVE NOTICE TO QUIT. THIS MEANS THAT THE LANDLORD MAY FILE A COMPLAINT IN COURT ASKING FOR AN ORDER EVICTING EACH TENANT ~ROM THE LEASED PREMISES WITHOUT GIVING EACH TENANT NOTICE TO QUIT FIRST. LANDLORD DOES NOT HAVE THE RIGHT TO THROW TENANT OUT OF THE LEASED PREMISES (SELF-HELP EVICTION). THE LANDLORD CAN ONLY EV!CT TENANT BY COURT ACTION. THE LANDLORD DOES HOT HAVE THE RIGHT SUE IN COURT FOR EVICTION UNLESS A TENANT HAS VIOLATED THE AGREEMENTS IN THIS LEASE. EVEN THOUGH EACH TENANT IS WAIVING HOTICE TO QUIT, EACH TENANT WILL tL~VE A CHANCE IN COURT TO CHALLENGE THE LANDLORD'S CLAIM FOR EVICTION. IF TENANT VIOLATES THE LEASE AGREEMENT, THE LANDLORD MAY SUE EACH TENANT IN COURT: 1) TO COLLECT OVERDUE RENT, LATE CHARGES AND MONEY DAMAGES CAUSED BY TENANT'S VIOLATION OF THE AGREEMENTS IN THE LEASE WHETHER BY CONFESSION OF JUDGMENT OR OTHERWISE. 2) TO RECOVER POSSESSION OF THE LEASED PREMISES (EVICTION). 3) TO COLLECT FOR UNPAID RENT UNTIL THE END OF THE LEASE OR UNTIL ANOTHER PERSON TAKES POSSESSION OF THE LEASED PREMISES AS A NEW ~ENANT. Tenant agrees that landlord may ;:eceive ~easonable attorneys fees as part of a court judgment in a lawsuit against tenant for violation of thg agreements of the lease. 19. CONFESSION OF JUDGMENT. TENAN~ HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR TE~ANT AT ANY TIME AFTER DEMAND OR DEFAULT HEREUNDER IN ANY ACTION BROUGHT AGAINST TENANT UNDER THIS LEASE AT THE SUIT OF LANDLORD, WITH OR WITHOUT DECLARATION FILED, AS O~ ANY TERM, TO WAIVE THE I U~~ (. ), c:.: ~ 0.' ~ lr', C ~; u.' I '~ (l, \.4: L__. Cl , . -. <..' \'-.. \J~ .::' I' ..... ..J '< .j -t:., N ..) In j .......~ ~ () ~ ,.... \ \" '-- ""- \>.. \' " ,. Ih! J r-:. \ ~ .., -' 1 ~ ~ '-< '" " f ...., v ("< '- . IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA ASHTON ENTERPRISES. NO. ')7-515 Plaintill: vs. CIVIL ACTION - Law CHARLES HUGHES AND JACKIE: HUGHES, Defendants. DEFENI>ANTS' ANSWER TO PLAINTIFF'S COMPLAINT AND NOW, TO WIT. this /L11t_ day of March. 1997, comes the above-captioned Defendants. Charles Hughes and Jackie Ilughes. by and through their attorney, Farley G Ilolt. Esquire, and files an Answer to Plaintill's Complaint which was filed pursuant to Pa.R.C.I'. 2951(b) for judgment by conli:ssion to which the following is a statement: I. Admilled. 2. Admilled. 3. Admilled. 4. Admilled. 5. Admitted. 6. Denied. It is spccilically denied that contrary to the tenns and provisions of In The Court of Common Ple:Is of Cumherland County. Pennsylyani:l . . Ashton Enterprises VS. & f Jackie Hughes .. i , No. 97 51~ o \9_ Now. March 20 York 19.22..\ SHERIFF OF CUMBERLAND COUNTY. PA do hereby deputlzelhe Sherlrrof Counry 10 necule Ihls Wrlc. Ihls depulallon being made allhe relluesl and risk of Ihe Plalntlrr. '"'~./'.y /d r >.:Y~~ ~;:B-..~f-<: Sherirr of Cumberland County. Po. Affidavit of Service Now, wlchln ~Iarch 27, 19 97 ,al 9,33 o'clock A. :\1. served lhe Notice of Judqment and Execution Jackie Hughes upon al 5208 SUSQuehanna Trail. York. York County. PA by handing 10 Jack i e Huahes altesled copy of Ihe original at same above her the conlenls Ibereof. a lrue and and made known 10 So answers. ((t<-~f F~;t.tv~ Oft- I1~J V 1~1(-U. a ~ " YorJ( Y C 1 C Sherirr of County. Pa. ... COSTS S 18.00 + 6.00 5.58 4.00 me this SERVin: ;\IILEAGE AFFIDAVIT s J-'.:J8 property prior to the execution of the Commercial Lease. On the contrary, Petitioners had indicated that the property was to be used for the storage and dispatch of two (2) or three (3) tow trucks. Petitioners had also indicated that no towed vehicles would be stored or kept on the property. After the lease was executed Petitioners began to use the property for storage of vehicles. At no time did Petitioners advise Respondencs that they would be storing towed vehicles. Petitioners also kept numerous tow trucks on the property, above and beyond what had been indicated to Respondents. Petitioners further kept an old freezer, racks and other refuse on the property, in contravention of the Commercial Lease. 8. Admitted in part. Denied in part. It is admitted that Holly wilbur advised petitioners that the property was zoned commercial. It is denied that Holly wilbur informed the petitioners that they could immediately move in and start operating their business. On the contrary, the Commercial Lease specifically set forth that it was Petitioners responsibility to obtain a Certificate of Use from Hampden Township. As such, petitioners were well aware that chey could not start their operations until such certificate was obtained. 9. Denied. Respondents are without sufficient information as to what Petitioners relied on in executing the Commercial Lease. By way of further response, the Commercial 2 Lease specifically sets forth that it was petitioners responsibility to obtain a Certificate of Use. 10. Denied. The Commercial Lease is a writing which speaks for itself. 11. Denied as stated. It is admitted that Petitioners paid rent for the term of November 18, 1996 through December 31, 1996. Paragraph 11 is denied to the extent that utility services, required to be paid by petitioners under Ite~ 16 of the Commercial Lease, are deemed rent. Petitioners have failed to pay for utility services for the period of November 18, 1996 to the date they abandoned the property. By way of further response, the rent payment for December was not timely paid. 12. Admitted in part. Denied in part. It is admitted that Hampden Township did not issue a certificate of use to Petitioners. Paragraph 12 is denied to the extent it attempts to allege that Respondent was responsible to take action, ac their expense, to provide off-street parking and a fence, or in any other way responsible to procure a certificate of use for Petitioners benefit. The Commercial Lease specifically sets forth that obtaining a certificate of use was solely the responsibility of Petitioners. The terms of the Commercial Lease in no way required Respondent to provide off-street parking or a fence. However, contrary to Petitioner's allegations, additional parking was available for them. In addition, in or about late November, 1996 petitioners advised Respondents that they had 3 taken the necessary action to obtain a Certificate of Use from Hampden Township. 13. Denied. Respondents are without sufficient information to either admit or deny paragraph 13. 14. Denied. Respondents were initially advised by Hampden Township that Petitioners needed to obtain a certificate of use, and had not done so. Paragraph 14 is further denied to the extent it attempts to allege Respondent had a duty to effectuate the improvements. By way of further response, at this time Petitioners were already in default under the Commercial Lease. By correspondence dated January 8, 1997 and January 14, 1997, petitioners were advised of the default by Respondent (See Exhibits "A" and "B", raspect!vely, attached and incorporated fully herein). It is denied that Respondent refused to effectuate the necessary improvements. On the contrary, additional parking was available. Further, as petitioners were already in default under the lease, Respondents would not provide the improvements unless the lease was brought current, which petitioners never did. 15. Denied. Respondents incorporate paragraphs 11, 12, and 14 fully herein. 4 16. Denied. Petitioners never informed Respondent of the decision to vacate the property. Rather, Respondents were advised that they would be evicted for defaulting under the lease. 17. Admitted. 18. Denied as stated. It is admitted that the Respondents have been able to rent the property, such term commencing April 1, 1997. It is denied that Respondent has received double rent, as Petitioners paid no rent after December 31, 1997. Paragraph 18 is further denied to the extent the Commercial Lease, and the confession of judgment clause contained therein, allows confession of judgment for the full amount due under the lease once a default occurs. By way of further response, Respondents lost a prior potential tenant due to Petitioners failure to timely vacate the property. 19. Denied. Respondent incorporates paragraphs 7, 8, 12 and 14 fully herein. By way of further response, the reason why Petitioners could not operate their business is because they failed to take the necessary steps to obtain a Certificate of Use, or make any inquiry of Hampden Township's requirements prior to entering into the Commercial Lease. Furcher, Petitioners were unable to operate their business as they defaulted under the Commercial Lease. 5 t r :~ '.. - '. , '. lL I. /, " c.: , L I , G ~ I.. 0.. I. e... 1;1' 427, 600 A.2d 213, 215 (1991). It is Dufenrl9nts burden to provide sufficient evidence to strike the juclrJlr.ent. Haogard \[... EetJ;.~r, 332 Pa. Super. 333, 339, 481 A.2d li41, 644 (1984). Defendants have waived any objectiC'n Dr defense not raised in their Petition. ?a.R.C.P. 2959(c); Ps~is v~loxal) Hotel IQc., 395 Pa. Super. 465, 470, 577 A.2d 636, 639 (1990). The Lease under which Ashton confes;3ed jt:dgment specifically allows for the entry of such judgment. (Lease, para. 19). The confession of judgment provision also allows recovery for other sums due, such ",s ut.i1 i ti eo.. and reasonable attorney fees incurred for collection, n0t to be less than five (5%) perce~t of the amount due. (Id.) Th'! 1..eaSA fu~ther explicitl~ states that should Defendants ~lGJatR the ~!ase, Ashton may sue "to collect for t:npaid rent until the end of thE LeaGe". (Lease, para. 18). De!endants raise nothing i~ their Petition which shows the Dxistence of a fatal defect on the record. The Complaint for confessed judgment complied with alj applicable rules of civil procedure. Particularly, the Lease upon Khich thu judgment was entered specifically provides for the r?quested relief. As Defendants have not met their bu;:den of proot, or made any allegation in their Petition thBt the judgment is defective In its face, their Petition to Stri~e Oft must be denied. 1 2. Defcndancs have failed to sat forth any meritorious defense which ~:ou.t.j raise an issue fer trial, and therefore their Petition to Open the confessed judgment must be denied. In order to open the judgment, Defendants must allege a meritorious defense and present sufficient pvii2nce that their defenses craate an issue for trial. k~C ~a2~' N.h. v. Balsa~Q. 430 Pa. Super. 360, ~69, 6.34 !\.2d 645,649 (1993). It is Defendants' burden to produce sufficient evidence to substantiate their alleged defenses. HaggQLq, f~WJa,., ~azzarotti v. JUliaQQ, 322 Pa. Super. 129, 133, 469 A.2d 216, 215 (i983j. Defendcnts have failed to produce any meritorious defenc~ which would raise an issue at trial. Therefore, Defendancs' Petition to Open Judgment must he denie~. Appa:-ently, Defendants c()ntPfld t::C1t the judgment is improper based u~on Ashton's failu~e to prcvide off-street parking o~ f~ncing. This argument is fatally flawed for a ~yriad of re3sons. The Lease itself places absolutely no burden or requirement u~on Ashton to provide additional eff-street parking cr fencing. The Lease specificallv delinEatAs the parking being provided by Ashton. (Lease, para. 24) ~efendants can not be heard to e~gue that Ashton did not perfurm certain improvements which they had no duty to conduct. Furt~er, the Lease specifically states that it is Def8ndants duty and hurden to ubtain the necessary ~8rmits to ~tilize t~c leased premises for their auto J.epEli.r business. (LE~c!:;P paril. '" .. I month thereafter. Defendants further ,-,ell'll t thet never paid for the utilities. Defendants W8ro edvised of choir default by ccrrespondenc:e dated January 8, 1997. DefcnrlEl!1ts Here again aJvL;ed by correspondenr.e dated Jannary H, 1997. By their 0\/0 admission, Defendants were not aJv!sod by Ha~rden Township chat they could not operate their business during the pendency of their certificate of use applica~ion ~ntil they received correspondence frOM the To\,'nship dated J.'1nuary 23, 1997. (Pet.t tion !lara. This issue was noot as the Defendants had I." - , already be~ome in default. The unsupported allegati~!~s in Def(~r}~tflnt.st Petitio:: are contradicted by the sworn deposition testim0ny of the Defendants. Defendants alleged in their petition that Ashton refused co effectuate the improvements ner.essary to obtElin ~he cercificate of use, naMely, provide additional off-street parking and fencing.' (Petition, para. 1.1) During the deposition of Jac~le Hugnes this exchange o:;{:urred: G. Did you lo'ver aSK .,(;yone, yeu f.leanir.g you personally, CV8~ ask anyofle ~r0m AsJl~nn Enterprises to pOT:. l~~ C >:~;Ct; ?.H(! e).:tend the p5rv.ing lot? j\. NQ, I Ill?ver did. Exhibic ".'" n. 30, linp.'~ 20-;>.j, ~Eve~ assulning tnat this nllc~:ation is correct, by their OWIl ildmission, f)pfe:1dants hurl alrf~cHIII d{~fa\lltJ~d ,indt':r' i.he I.e3::;f~, and !iad beer: eJ'!v.1 21?c1 of :: t:r.h by Ashtt~n. F, ~ :" Lj~e~ise, the sa~IC queotion w~s ~ose(t to Charles HughGs: Q. Did you, a:Jd when I say yau, ! mean you personally, did you perso~dlly, eVEr ask anyone frol1 Ashton Enterpr lSaf] ::0 ere::r a fence or exta:ld thG pat-bng? A. No. He tcld m0 whar he was going ro do. ~e to!d me that he was going to teH~ ~~t ~he grass spot and put stones ~hGre for his guys to park. That's \-:hat he saie! to f!E:. Q. When you say he, you mean Jpff Wilbur? A. Yeah. to me About rne fenue, about a fence. n()~hing waR ever rnantioned Q. To the best of your knowledge, did your wife o~ perhaps anyone else r~preSullting you ever ask anyone from Ashton Enterpris6s to erest a fence? t\.. f!Gt unless my \1if~ ,:-ts;~ed hin. 1 don't know. Exhibit "A" p. 44, lines 9-25. What is clear from this testi~ony is th~~ Defendants never asked Ashton to provide additional off-street parking or fe~cing. Ttl~t iSSUG is cnly raise:! now a~ ~ lJerit}qss defense tc -:he con!essed j\lagmen~. The t.rUf; :':"P:JSC!1!=:; fDr. d~foul tinq under t!Je LeQsu WRS stat~d by Jackie liugh~8: Q. Wh~t was your basis for not raying tile January rent? A. B&CaUSB my husband WdS put in the hospital and my father-ie-Ia'.", had just aiec'. T:Jey ~/as gC'ing -- t g~ing through a lot ~ith him, ~hat is why he ~ne~ in the !lospital. A~d it was .-- and then '4G ha{i to na'/p. out. :<:xhibit. "./1", ? 30, lin:!s 1:J-]9. This rea~~oning c!CH=S j'lCt ~1:."ovid2 c i.l~r.:.t:orious defense 1 5 Q Because the court reporter just put 2 you under oath and when you answer, we assume 3 that you understood the question, and therefore, 4 basing your answer on that understanding. If you 5 ever need to take a break or want to ask your 6 attorney a question or you want to stretch your 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legs or get a glass of water, please feel free to let us know. This is not in any way meant to be an interrogation. So if you need to take a break, please just ask for it. I would ask that you remember to answer verbally so that the court reporter can take full answers rather than a shaking of the head. And I also ask that you wait until I finish asking the question before you answer. And I'll wait, hopefully, until you're done answering before I ask another question, so the court reporter doesn't need to try to take two people talking down at the same time. First, let's get a little bit of your background. involved in now? What type of business are you A Q None right now. Had you at some point in time, 1 though. you and your husband wanted to open up an 2 auto repair business. Correct? 3 A We did have one open. 4 Q Where was that? 5 A In Strinestown. 6 Q What was the address? 7 A 5208 52-something. I'm not 8 exactly sure. We've been away from there since 9 we got that. (witness trails off) 10 Q When did that start? 11 A Well. we signed the thing, I think, 12 it was December. It was either December or -- he 13 went in the hospital -- Martin Luther King's 14 birthday, that's the only way I remember. That's 15 the only way I remember that. 16 Q I'll put before you what we'll mark 17 as Exhibit 1. And this might help a bit. Is 18 that the contract that you signed with Ashton 19 Enterprises? 20 Yes, it is. Because I requested A 21 that she put on it that I do not work, that I 22 don't have any income. 23 (Exhibit No.1, Contract dated 24 12/20/96. marked for Identification.) 25 And that was dated December 20, Q 6 l ~ o 1 2 3 4 5 6 7 8 9 7 1996. Correct? A Yes. Q Just for identification purposes, is your signature? that A Q That's my initials, yes. And we'll go to the.addendum. Those are your I guess wherever it says JH, your initials? A YeD. those are 10 Q If you look at paragraph 3 of the 11 contract, it indicates that this lease starts as 12 of November 18, 1996? 13 14 l5 16 17 18 19 20 21 22 23 24 25 A Correc t. Q Is that the date that you took possession of the property? A No, because the lease wasn't ready when we gave them the money. They stated that they had to see their attorney, and they'll get it back to us. So then we went out there and paid them the money and we signed the lease. Q When was the first time you were at the property? A I gave Mr. MR. HOLT: Holt a paper on it. Off the record. (Discussion held off the record.) 4 5 6 7 8 9 10 11 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 8 1 BY MR. EMERY: 2 Q Does that help when you understand 3 when you first -- A Q Right. You first were at the property on December 1? MR. HUGHES: We were there ahead of time. MR. HOLT: You have to let her answer. MR. EMERY: And I understand you want to help, and I appreciate that. A His dad died December 3, so that's the problem figuring. We had it before his dad passed away. And we was moving in and just we had to wait until they finished working on it. That's exactly what it was, because they wasn't done. They oaid we could start loading stuff on one bay. But the side by the office, all that wasn't done yet. Q And do you recall, generally, and it doesn't need to be a specific date, generally when you started bringing maybe some equipment into the property or onto the bay? A That might have been the first 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 9 1 2 3 part that might-have been November. Q When did you first pay rent? A Yeah, because the lease started in 4 November. 5 Q Correct. When did you first provide 6 monies to Ashton Enterprises? A Q A Q December -- 12/17. You're referring to a -- I don't know. memorandum which indicates rent for December 1, 1996 for $695, paid in full. Am I stating that correct? A Yes. That is correct, because his wife signed it. Well, that girl. Q Now, at that point in time, just so we're clear on the record, on 12/17, you had not signed the lease agreement. Correct? A It wasn't done. It wasn't done. Whenever they got it back from their attorney, is when we signed it because we had to go back in. Q When did you first meet a representative of Ashton Enterprises? A The day that we went out to look at 24 the garage to meet them. 25 Q Do you know generally what day that 10 1 was? 2 3 4 5 A Q No, sir, I don't. No. Would it have been in early November? A As soon as we looked at it, we told 6 them that we wanted it. 7 8 Q A Who was with you at that time? Myself, my husband and my daughter, 9 sitting out there. 10 Q Who did you speak to from Ashton 11 Enterprises? 12 A His wife, Holly. Is that her name, 13 Holly? 14 Q Yes. At that point in time, did you 15 discuss your intended use for the property? 16 A Yes. We told them what kind of 17 business we had prior to that, that we were 18 moving out of. And there wouldn't be no problem 19 there. They just said that a sign had to be 20 posted up, you know, for the township. And they 21 didn't mention no fence, no nothing. 22 Q What did -- I'm sorry. 23 A They said that the limited parking 24 in the back was ours. And the day we were going 25 out -- I don't know if you have ever been there, 11 1 from the back of garage, they got that grass 2 thing that goes over to their place. They were 3 going to extend that for their people to park 4 over there. So that we could have the lot. 5 6 There wasn't no problem with that. Q What did you advise .them and when 7 I say them, I mean anyone from Ashton B Enterprises. What did you advise them as to what 9 type of business you were going to run? 10 A Towing and working on cars. 11 Q Did you at any time tell them how 12 many tow trucks you would have on the property? 13 A Yes, they know. 14 Q What did you tell them? 15 A I think we had four at the time. 16 Q Did you ever tell them how many 17 vehicles, and when I say vehicles, I mean 18 vehicles you had towed to the property? Did you 19 ever advise them how many vehicles you would have 20 on the property at anyone time? 21 A I couldn't estimate that, because 22 that varies on how you get the tow jobs. 23 Q I understand you might not be able 24 to estimate, but did you ever give them an 25 estimate? Did you ever tell them any numbers? 1 2 12 A Q I don't think so. Where were you located prior? You 3 said you were running a business out of another 4 location. 5 A On the Susquehanna Trail, 6 Strinestown. 7 Q How many tow trucks were you 8 operating when you were at Susquehanna Trail? 9 10 11 A Two roll backs, two regular tow four. How many typically on a day, how trucks Q 12 many towed vehicles would you have on the lot? 13 14 15 16 17 18 19 20 21 22 23 A Not that much. Like Not that many. when the auction was on, people would bring their cars over and ask for oil, but they would be in and out or ask for fan belts. You know, it wasn't that many. Unless they were on 83 with the State Police and their cars got in a wreck and we had to store them for the insurance companies to come out. But there was no problem with that, you know, there or any place, because of the fact they are waiting for the insurance companies. 24 Q When you would bring a vehicle onto 25 your lot, did you normally perform the 13 1 maintenance or was it then towed to another 2 maintenance garage? 3 A It depended if the people wanted to 4 have it done there or take it to their own 5 garage. 6 Q To the best of your"ability, can you 7 estimate maybe how many you'd do the maintenance 8 on yourself and how many would be sent elsewhere? 9 A I really can't answer that. My 10 husband could answer that better than me because 11 he did all that kind of work not me. 12 Q When did you first bring tow trucks 13 onto the property? 14 A The other place? 15 Q To this place. 16 A Susquehanna Trail? 17 Q No. I don't know the exact address 18 of the place, but the rental property subject to 19 this litigation. When did you first start 20 bringing tow trucks onto the property? 21 A It was either the end of November or 22 December. Just for storage, because they wasn't 23 done the lease. 24 Q Did you bring all four of your tow 25 trucks at one time or did they come over 1 2 3 4 l4 piecemeal? A No, because we had to keep some, because we kept that place until that place was done. We kept Susquehanna Trail until the other 5 place was done. 6 Q And there certainly'came a point in 7 time when you were operating your business solely 8 out of this rental property? 9 A We never got to operate a business 10 out of there. 11 Q You never had any tow trucks? 12 13 14 15 A We had them in the back stored. Moving everything in. He, my husband, had to go to the township building. And they told him, you know, what he had to do and what he couldn't do. 16 And all that was pending. 17 Q You never towed vehicles to that 18 19 20 21 22 23 24 25 property? A No, just the ones that we had. Q When you say just the ones that we had, what do you mean by that? A Well, I think the one roll back had a car on it or a truck on it. My Camaro was there. That was inside the garage because that was the side that they cleared off. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 l5 1 Q That was your personal car that you 2 would come and go with during the day? A Yes. Q And leaving that aside, I'm just talking about the vehicles that you would tow as part of your business. There was only, you said maybe one vehicle that as towed to that property? A I think that was brought in when we put the truck there. Q What else did you have on the property? What machinery or equipment did you bring? A I can't state t~at. I can't state Just that one that, time. because I wasn't up there. Q When that one time you were at the l7 property 18 A When I went up to look at it and 19 that was it, to see about it. And then to move 20 out. 21 Q When you moved out, what type of 22 machinery or equipment did you move out? 23 A Everything was still there. My 24 cousin because he was in the hospital, my 25 cousin started moving stuff out of there and l6 1 broug~t it home to my house. And I live in a 2 trailer so it wasn't that many vehicles. I'm 3 sorry. There was a race car up there, too. My 4 son's race car which doesn't have to be tagged or 5 nothing -- no township. 6 Q Other than vehiclesi what was in the 7 8 9 10 11 12 13 14 15 l6 property? A Q A All the garage stuff. Give me some examples. Tools, air brushes, air compressors, Stuff whatever they are, torches, tire machine. that goes in a garage. Q Tires racks, I assume? A Tire racks, yes. Q Anything else? A TV, cigarette machine, the desk with 17 the papers in it, which we never got to unload 18 nothing because we had to move right back out. 19 Q How about the lifts? Were lifts 20 installed? 21 22 23 A Q A They had lifts in there. You didn't bring any? I'm not even sure about that. 24 Q Prior to signing the lease, which 25 we've agreed was December 20, did you have any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 17 discussions with anyone from Hampden Township? A Before that? Q Yes. A Myself, no. After I received that letter to find out what was I received a letter from Holly that we had to 'move out. And I called the township to find out why, and she put me out. And I called somebody else. Whatever-- because one place told you to call another place. And they told me that they don't see why I had to move out; that everything was pending. They sent me that letter that I gave to my attorney stating on it that everything was pending. But with him in the hospital, I just I couldn't afford it, so I just figured it best to move it home, because I didn't know what was going to happen with him. Q But realizing that something happened. If we look at December 20, the date that this lease was signed. Prior to this date, 21 did you have -- did you, and I when say you, I'll 22 try to make sure that I focus on you and not your 23 husband and you and your husband. 24 Did you personally have any 25 discussions with Hampden Township regarding any 5 6 7 8 9 10 l1 l2 13 14 15 16 17 18 19 20 21 22 23 24 25 19 1 they said that? 2 3 A Q No. Using December 20 as a date because 4 we know that is when the lease was signed, was it before or after? A It might have been that day or it could have been before. I don't know. They said about the sign. They did say that and about the parking. I can remember that. Q Do you recall discussions and when I say you -- A I remember another thing she said that somebody else was going to move in there before us and they needed a fence. She had some kind of problem with them. So they moved out. That's when they were renovating or something and then we moved in. Q Do you recall speaking to anyone from Ashton Enterprises regarding the commercial zoning of the property? A Myself? I don't think so. I can't answer yes or no. I don't think so, no, because he handles that. Most of the time I talked to her was when I went to see the place, when we paid the security and all, and when the letters 20 1 started comiug in Qr when the rent wasn't paid. 2 And I called her and explained to her why it 3 wasn't paid. 4 5 6 7 8 9 10 II Q When you say her, you're referring to Holly Wilbur? A Holly, yes. He was never there. Q When you say he, you're referring to I always spoke to her. Jeff Wilbur? A Q Yes. If we can take a look at the lease 12 agreement, in particular the addendum portion of 13 it. It would be the last page. On the 14 upper-hand corner of that document, it is dated 15 16 17 18 19 20 21 22 23 24 25 12/20/96. You initialed this the same time you signed the agreement? A Yes. I see there's the sign permit. I remember that. Q At that time. you will notice in the second paragraph, it discusses that it is -- and I'll just read it for the record, "Tenant agrees to obtaining a Township required occupancy permit and sign permit for their business." A Well, that's why my husband went to the township. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2l note Q That's what I wanted to get into. that you stated that you weren't too sure I when your husband went to the township? A No, I'm not sure. Q Do you recall whether he signed a formal application for a certificate of use? A Q No, I'm not sure. You don't recall seeing any document? A No, I never did. Q Did you understand that commercial zoning, just because the property was zoned commercial, you still needed to obtain a certificate of use? A Not really, because I never had one of them; neither of our businesses. Q Prior to you signing the non-residential lease, did you have an attorney or anyone else look over it for you? A No. Q Did you ever discuss with an attorney, or anyone else prior to signing this lease whether commercial zoning would still require you to get a certificate of use? A No. 1 2 3 4 5 6 23 A I was never there. We never opened up. Q You were A We never opened up once. Q Were you presented by anyone from Ashton Enterprises bills for utilities? 7 A When I paid them or when my cousin 8 was moving the stuff, they I don't know who. 9 I can't state exactly who, because I wasn't there 10 then, gave him one bill. I don't know which one 11 it was; the breakdown. 12 13 14 Q A Q When you say he was moving -- Stuff back out. That's what I want to make sure. 15 We're not moving in. We're moving out. 16 A Stuff back out. 17 18 19 Q It's my understanding that you moved out at or about February 14. Is that correct? My husband was still A February? No. 20 in the hospital when we were moving. 21 Q You clarify it for me. When did you 22 23 24 25 start moving your equipment and vehicles out? A In January. Q When did you conclude moving everything out? 24 1 A My hu~band went in the hospital, 2 like I said, Martin Luther King. He got out the 3 30th of January, so it started while he was in 4 the hospital. And I think it was all finished 5 when we got him home. I can't say for sure. I 6 was at the hospital. 7 Q I'll put before you what we'll mark 8 as Exhibit 2. 9 A I wouldn't answer something unless 10 it's the truth. 11 12 13 14 (Exhibit No.2, Petition, marked for Identification.) that. Q If you would take a moment I have one particular question. to review You don't 15 have to review the whole thing. I just wanted to 16 point out to you, if you look at paragraph 17 on 17 that document? 18 A I didn't think it went on after my 19 husband came home. I can't exactly say. There 20 was too much happening. 21 22 Q I'm understand. I'm not trying to be a stickler. I just want to make sure our 23 dates are 24 25 A Q January 30, in there. And I'm assuming, correct me if I'm 25 1 wrong, that there was enough equipment that it 2 was more than a one-day job to remove? 3 A Oh. yes. With one person doing it. 4 Q It could have extended over a few 5 days? 6 A Yes. And down to the very last 7 heavy stuff, I got this friend that works in this 8 factory, he and his wife come to my house all the 9 time, he helped my cousin. 10 Q When were you first advised by 11 anyone that you needed to get a fence and 12 additional parking to get a certificate of use? 13 A I was never Holly told me. I 14 15 16 17 18 19 20 21 22 23 24 25 can't remember when. Q How did he know? A Q A Q Exhibit 3. Holly did. All right. How did she know? I guess somebody told her. Let me put before what we'll mark as Take a moment to look over that. A I never saw this. Q You don't recognize that? A No. (Exhibit No.3, Correspondence from Hampden Township dated l/23/97, marked for 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 2 Identification.) Q For the record, Exhibit 3 is a 3 January 23, 1997 correspondence from Hampden Township addressed to Mr. Hughes with a notice that it is regarding the application for certificate of use? A On this? Q On this letter, January 23. r jus t want to make sure that we're clear on the record that you had not that you had never seen __ your testimony is that you have never seen what we've marked as Exhibit 3? A Not to my knowledge. Until your application... (witness trails off) I never -- because they told us and the township said it was pending. They did not say nothing about anything being moved. Q You're using the date of that as January 23 and understanding that your testimony is that you have never seen it. But if you Use January 23 as a bench mark, do you recall whether Holly Wilbur advised you of the certificate of Use problems prior to that date or after that date? A She told us that we had to go to the 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 1 township, that we had to... (witness trails off) 2 3 Q you that? Well, do you recall when she told 4 A When we signed the lease. When we, 5 I guess, signed this. She did, because she said 6 about the sign. Q So let me make sure I understand your testimony. On the date of the lease, December 20, Holly Wilbur told you that you needed to go to the township to get a certificate of use? A Charles was asking her all kinds of questions and she said the township up here is really hard. It was hard on them. They went through to try to before they got their business. And she said go to the township and see what all is required. Q And I understand that. But did there come a point in time then when Holly told you at a later point in time that the township isn't going to approve your application unless there's a fence and additional parking? A Q A No. Holly never told you that? She never told me. Because why 28 1 would I rent a garage and put a fence up if it 2 costs more than a garage? 3 0 When did you determine to leave the 4 property? 5 A When I got a letter. Well, first my 6 husband was in the hospital, I couldn't afford 7 it. And then when I got the letter, I had no 8 choice. Why make it hard on both of us? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o When you say a letter -- I'll mark it as Exhibit 4. When you say a letter, and I'll Is that the letter put before you Exhibit 4. you're referring to? A I never heard nothing about Hampden Township, that our thing had not been approved. It was pending. (Exhibit No.4, Letter dated 1/14/97, marked for Identification.) o Exhibit 4, have you ever seen this letter before? A I don't think I did. o This is not the letter that you had referred to earlier indicating that you had to leave the property? A No, it was a handwritten letter. o Do you have that handwritten letter 1 in your possession? 2 No, I don't. Did I give it to you A 3 when we had to move? 4 MR. HOLT: No. 5 THE WITNESS: No, I don't. 6 I will put before you what we'll Q 7 mark as Exhibit S. And take a quick look at 8 that. 9 I remember part of this where it A lO says that I was in default of the rent for 11 And that is when I called her and I January. 12 told her I'm not paying. 13 (Exhibit No.5, Letter dated 1/8/97, 14 marked for Identification.) 15 Do you recognize what we have marked Q 16 as Exhibit 5, the letter? 17 That's the one I'm talking about. A l8 You've received this before? Q 19 I don't remember. Mine was A 20 handwritten. 21 Okay. I understand. Q 22 I remember this part right here. A 23 This office represents so-and-so commercial lease 24 on November 18 and that as of any way January 25 15, I would have to be evicted. 29 ~ r . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 o And just for the record this Exhibit 5 is a January 8, 1997 correspondence from the Offices of Fenstermacher and Associates directed to Mr. Charles Hughes and Ms. Jackie Hughes. Prior to this date, January 8, had you had any contact with Hampden Township regarding your application for a certificate of use? A I never did. o Do you know whether your husband ever did prior to January 8? A date it is. He went out there. I can't say what o What was your basis for not paying the January rent? A Because my husband was put in the hospital and my father-in-law had just died. They was going I going through a lot with him, that is why he went in the hospital. And it was and then we had to move out. o Did you ever ask anyone, you, meaning you personally, ever ask anyone from Ashton Enterprises to put up a fence and extend the parking lot? A No, I never did. o Do you know, did your husband ever 3 4 5 6 7 8 9 10 11 12 31 1 do it? 2 A No. They told us about their property, extending it. Q Did you ever take any steps with Hampden Township to appeal their denial of your certificate of use application? A I never did because I never got __ I never saw that. I got the letter where it was pending. That's when I called them on the phone and they told me it was pending. And then they sent me the letter. Q Correct me if I'm wrong, the 13 documents from Hampden Township really talk about 14 the certificate of use not the sign permit. Did 15 you ever apply for a sign permit? 16 17 18 19 20 21 22 23 24 25 A Q I never did. To the best of your knowledge, did your husband? A Well, he went out to that place. Q When you say when you went out __ A To the township. Q To the township building? A Yes. MR. EMERY: That's all the questions I have for you. I appreciate your time. 34 1 assume that you understood the question, that's 2 what you're basing your honest and truthful 3 answer on. 4 If at any time you need to take a 5 break, or you need to go to the bathroom, want a 6 drink of water, you need to stretch your legs, 7 please let me know. We'll be more than happy to 8 take whatever time you need. 9 A All right. 10 Q We ask that you just answer verbally 11 rather than shaking of the head or an uh-huh, so 12 13 the court reporter can get your full answer. And she doesn't make any mistakes. And also that we 14 don't speak over each other, that you wait until 15 16 17 18 19 20 21 22 23 24 25 I've finished asking the question before you answer. And I'll wait to ask you another question until after you're done answering so she doesn't need to take two people talking at the same time. I guess to make it a little easier for you since you sat through a good portion of your wife's testimony, rather than me asking you all the same questions allover again, is there any question that I asked her that you didn't agree with her answer, you thought that she 5 6 7 8 9 10 11 12 13 14 15 16 17 35 1 missed something that you wanted to tell me now? 2 A No. 3 Q I'll go through it step by step, but 4 I just wanted -- MR. HOLT: You can't expect him to sit here and recollect every question that was asked. I can't even think of every question that was asked. MR. EMERY: Sure. I understand. I just wanted to make sure there was nothing in particular that you thought, Wait a minute, that's a mistake that you wanted to make sure we address now. THE WITNESS: No. BY MR. EMERY: Q I'll ask you, a lot of same questions so again, I'll go through you will certainly 18 have the opportunity. 19 As I did with your wife, when I say 20 you, I'll try to focus on just you and not 21 meaning of both of you, and then try to see 22 whether you knew whether your wife had done 23 anything. 24 When did you personally first meet 25 anyone from Ashton Enterprises? 1 2 3 4 5 Q answer that. 37 Were you -- well, I think we can You were present here when the lease was signed, though. Correct? A Q A Yeah. If I could use your copy, I will A Q 6 put before you what has been marRed as Exhibit 1. 7 And just for identification purposes, can you go 8 to the second to the last page of that? 9 10 11 12 13 14 15 16 Yes. Is that your signature there? Yeah. Q And if you can just turn to the page, to the last page, then. There are initials there that appears to be CH three times. are your initials? A Yes. Those 17 Q When you first met Holly and Jeff 18 Wilbur, did you discuss with them whether you 19 would be required to get a certificate of use for 20 the rental property? 21 A I only seen him one time. That was 22 the day I looked at the place. And then, I 23 think, it was about a week later, I called them 24 up and I told them I was going to take it. And I 25 brought some money out to them. And I started 38 1 moving in stuff. And they were supposed to put a 2 furnace in and a tub and wash bath and a toilet, 3 because nothing was in there. 4 Q Did they eventually put the furnace 5 and, I think, the tub and a few other things that 6 you just mentioned, were those eventually put 7 into the property? 8 A Yeah. 9 Q When you say you brought your money 10 out, was that for the security deposit? 11 A I don't think it was. I think it 12 was just I brought $695 out there. 13 Q I think we looked, when your wife 14 testified, at a small receipt. Did you get the 15 receipt that day or was that a different payment? 16 A That was the money I gave him just 17 to hold it I until I get the place. Then we 18 signed the lease, I paid her the same day. 19 Q After the first time that you spoke 20 with the Wilburs, at any point in time can you 21 remember speaking with them regarding whether or 22 not you would need to get a certificate of use? 23 A There was nothiug mentioned at all. 24 He said that if I wanted to hang a sign out there 25 that I would have to get a permit. That was all. 39 1 Q Did you ever discuss with the 2 Wilburs or anyone from Ashton Enterprises whether 3 or not the fact that the property was zoned 4 commercial whether that would still require you 5 to get a certificate of use? 6 A When I first got the lease, she 7 8 9 said well, he said I didn't because it was already zoned. Q It was already zoned commercial? 10 A It was already someone was 11 already in there before we was who had a garage 12 or something. 13 Q Did he tell you that you still at 14 that point in time when you discussed that was 15 16 17 18 19 20 21 22 23 24 25 zoned commercial, were there discussions that you would still require a certificate of use? A No. Q And I'm not asking for a legal opinion, but is it your understanding as a layman that simply because a rental property is zoned commercial that you still need to get a certificate of use? A I never got them at my other buildings. Never did. Q Your other buildings, are they 40 1 10cated in Hampden Township? 2 A No. They are all in York when I wao 3 there. 4 Q When was your first contact with 5 anyone from Hampden Township? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A I don't remember. I just remember them saying something to me about it that when I would have to go up there because they was hollering about the sign that I put outside. So I went up there and I applied for everything that I was supposed to apply for. And they said they would let me know. They wouldn't let me know on the spot if I could open it or whatever. They just said they would let me know. Q When you say that you applied for everything that you needed to apply for, you mean you applied for a certificate of use? A Yeah. Q To the best of your ability, do you recall when you made that application? A No. It had to be in December some time. Q Would it have been after December 24 20, the date the lease was signed? 25 A It had to be before I went in the 41 1 hospital. 2 Q And I think you've already told me 3 you're not too sure when you went into the 4 hospital? 5 A No. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q Do you recall what your discussions were with Hampden Township when you made the application? Who did you speak to? A The head man. Q Do you recall who that was? A No. Q Did you recall any discussions with that gentleman regarding when the application would be approved or disapproved? A He just said they would let us know by mail. They would have a meeting on it or something. Q Did they eventually notify you by mail? A I don't know. I was in the 21 hospital. 22 Q Well, to the best of your ability, 23 I'll put some of the exhibits before you that I 24 put before your wife and just take an opportunity 25 to review them and just tell me whether you ever 1 43 remember that. But any of these other ones, if 2 she got them, I didn't see them because I was in 3 the hospital. 4 Q And I know this is repetitive, but 5 bear with me. Exhibit 5, which is the January 8, 6 7 8 9 10 11 12 13 14 15 16 17 l8 1997 letter. before? Have you ever seen'this letter A No. Q Was it your understanding, and understanding that you may have been in the hospital at this period of time, that the January rent was not going to be paid? A My wife come over to the hospital and I remember her telling me that we had to get out of the building. And I asked her why. She said, Because they wouldn't grant you a license, or something like that there. going to move everything home. She said she was I said, Go ahead. 19 Q And at that point in time to the 20 extent that you can, was that mid-January, was it 21 after January I? 22 A It had to be. 23 Q Was there discussions with your wife 24 at that time whether to pay the January rent or 25 not? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 44 A o Well, I paid the January rent. Do you recall when you paid the January rent? A When I signed the lease. o Was there ever any discussions with you going back to Hampden Township trying to get the certificate of use even after they denied it? A No. o Did you, and when I say you, I mean you personally, did you personally ever ask anyone from Ashton Enterprises to erect a fence or to extend the parking? A No. He told me what he was going to do that. He told me that he was going to tear out the grass spot out and put stones there for his guys to park. That's what he said to me. o When you say he, you mean Jeff 18 Wilbur? 19 20 21 22 23 24 25 A Yeah. About the fence, nothing was ever mentioned to me about a fence. o To the best of your knowledge, did your wife or perhaps anyone else representing you ever ask anyone from Ashton Enterprises to erect a fence? A Not unless my wife asked him. I C E R T I F I CAT E I, Denise M. Garver, the officer before whom the within deposition(s) was taken, do hereby certify that the witness whose testimony appears in the foregoing depositions was duly sworn by me on said date and that the transcribed deposition of said witness is a true record of the testimony given by said witness; That the proceeding is herein recorded fully and accurately; That I am neither attorney nor counsel, nor related to any of the parties to the action in which these depositions were taken, and further that I am not a relative of any attorney or counsel employed by the parties hereto, or financially interested in this action. _ ~V(( r, Reporter Notary Public in and for the Commonwealth of Pennsylvania My commission expires April 17, 2000. 47 ! ~ ~ NON-RESIDENTIAL LEASE THIS IS A NON-RESIDENTIAL LEASE. IT IS CONTRACT BETWEEN THE LANDLORD AND EACH TENANT. READ THIS LEASE CAREFULLY. A LEGALLY BINDING EACH TENANT SHOULD THIS LEASE CONTAINS WAIVERS OF YOUR RIGHTS AS A TENANT. EACH TENANT SHOULD NOT SIGN THIS LEASE UNTIL EACH TENANT UNDERSTANDS ALL OF THE AGREEMENTS IN THIS LEASE. l. NAMES OF LANDLORD AND TENANT Name of the landlord: Ashton Enterprises P.O. Box 26l New Kingston, PA 17072 Name(s) of the tenant(s): Charles Hughes and Jackie Hughes 5208 Susquehanna Trail York, PA 17402 2. LEASED PREMISES The leased premises is the place that landlord agrees to lease to tenant. The leased premises is: 6508 Brandy Lane, Unit #3, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. STARTING AND ENDING DATES OF LEASE AGREEMENT This lease starts as of November 18, 1996 This lease ends on October 31, 1997 4 . RENT The amount of mlnlmum monthly rent is: $695.00 each month. There shall also be due such additional amounts, deemed rent hereunder, including but not limited to any increase(s) in fire insurance premiums due to the nature of tenant's occupancy. Tenant agrees to pay the monthly rent, in advance, on or before the first (1st) day of each month as set forth above. For Leases starting before the 1st day of the month, such pro-rated rent shall be due immediately at the signing of this lease. Landlord does not have to ask (MAKE DEMAND UPON) tenant to pay the rent. Tenant agrees to pay rent by first class mail postage prepaid or in person to landlord at the place specified by landlord. Tenant agrees to pay a LATE CHARGE of 5% of the monthly rent if tenant does not pay the rent within five (5) days of the due date, which is the first (1st) day of each month. If tenant mails the rent to landlord, the date of payment will be the date the letter is postmarked. 5. SECURITY DEPOSIT Tenant agrees to pay a security deposit of $695.00, which landlord has received. Tenant agrees to pay the security deposit to landlord upon signing this lease. Landlord can take money from the security deposit to pay for any damages caused by tenant, tenant's employees and tenant's guests and business invitees. Landlord may take the security deposit to pay for any unpaid rent. . After taking out for damages and unpaid rent, landlord agrees to send to tenant any security deposit money left over. Landlord will send the remaining security deposit money to tenant no later than 30 days after the lease ends and tenant leaves. Landlord also agrees to send to tenant a written list of damages and amounts of money taken from the security deposit. Tenant agrees to give landlord a written forwarding address when tenant leaves and the lease ends in order to send any remaining security deposit. Tenant may not use the security deposit as payment of the last month's rent. 6. LANDLORD'S DUTY AT THE START OF THE LEASE Landlord agrees to give tenant possession of the leased premises on the starting date of the lease. The lease will start even if landlord cannot give tenant possession of the leased premises because the prior tenant is still in the leased premises or the leased premises is damaged. IF LANDLORD CANNOT GIVE TENANT POSSESSION, TENANT DOES NOT HAVE TO PAY RENT UNTIL THE DAY LANDLORD GIVES POSSESSION OF THE LEASED PREMISES TO TENANT. 7. DAMAGE TO LEASED PREMISES Tenant agrees to notify landlord immediately if the leased premises is damaged by fire or any ot'ler cause. Tenant agrees to notify landlord if there is any condition in the leased premises that could damage the leased premises or harm tenant or others. If tenant cannot occupy the whole leased premises because it is damaged or destroyed, tenant may: 1 ) pay less rent occupy the undamaged part of the leased premises and until the leased premises is repaired. OR end the lease and leave the leased premises. 2) Tenant agrees that if the leased premises is damaged or destroyed and tenant ends the lease, landlord has no further responsibility to tenant. 8. INSURANCE Landlord agrees to have insurance on the building where the leased premises is located. Tenant's own property is not insured by landlord's insurance. Tenant is responsible for tenant's own property that is located in the leased premises and shall maintain tenant's own renter's insurance. Tenant shall also maintain, at Tenant's cost, liability insurance, with the landlord and owners Jeffrey and Holly Wilbur named as additional insured/loss payees ~/ith minimum limits of liability in respect to bodily injury of not less than Five Hundred Thousand ($500,000.00) Dollars with respect to anyone person and One Million ($1,000,000.00) Dollars in the aggregate; and in respect to property damage of not less than One Hundred Thousand ($100,000.00) Dollars for each occurrence. Proof of insurance shall be tendered upon demand and landlord shall receive ten (10) days prior written notice of cancellation of said policies. 9. ASSIGNMENTS OR SUBLEASES BY TENANT ASSIGNMENT (OR ASSIGN) is the legal term for a transfer of the lease from the tenant to another person. This other person then becomes the landlord's new tenant and takes over the lease. Tenant agrees not to transfer (a$sign)this lease to anyone else without the written permission of landlord, which landlord is not obligated to give. A sublease is a separate lease between the tenant and another person who leases all or a part of the leased premises from the tenant. Tenant agrees not to lease (sublease) all or any part of the lease premises to anyone else without the written consent of landlord which landlord is again not obligated to give. Tenant agrees that if tenant transfers this lease (assigns) or leases all or a part of the leased premises to another (sublease), tenant has violated this lease unless landlord has approved in writing. 10. RESPONSIBILITY FOR DAMAGE TO PROPERTY OR INJURY TO PEOPLE Landlord is responsible for all damage to property or injury to people caused by landlord (or landlord's representatives') intentional or negligent acts at the leased premises. Tenant is responsible for all damage to the leased premises and injury to people caused by tenant, tenant's employees, guests or business invitees. Tenant agrees that landlord is not responsible to tenant, tenant's employees, guests or business invi tees for damage or injury to person or property caused by water, snow or ice that comes on the leased premises unless landlord was negligent. ll. USE OF LEASED PREMISES - PERMITS - SIGNAGE Tenant agrees to use the leased premises as offices for a commercial towing business use. Tenant agrees to obey all federal, state and local laws and regulations when using the leased premises. Tenant agrees not to store any flammable, hazardous, or toxic chemicals or substances in or around the leased premises. Tenant agrees not to do any activities in or around the leased preloises which could harm anyone or damage any property and tenant shall be liable for any such damage or harm if a violation of this paragraph. Tenant is responsible for obtaining an Occupancy Permit from the municipality as well as any required sign permit if tenant desires a sign. Sign placement and style must be agreed to by landlord in writing or it shall be removed at tenant's expense. 12. RULES AND REGULATIONS Tenant agrees to obey all rules and regulations, as landlord may advise from time to time, in writing, for the leased premises. If tenant violates any rules or regulations for the leased premises, tenant violates this lease. 13. OWNER'S RIGHT TO MORTGAGE THE LEASED PREMISES (SUBORDINATION) Subordinate and subordination are legal terms that mean that this lease does not havt' any effect upon the rights of the owner's mortgage company. In other words, tenant's rights under this lease are subordinate to owner's mortgage company. If owner does not make the mortgage payments, the mortgage company may have the right to end the owner's ownership of the I eased premises. If the mortgage company sells the leased premises at a mortgage foreclosure sale, the lease may end. Tenant agrees that owner has the right to mortgage the leased premises. If owner has a mortgage on the leased premises now, or if owner gets a mortgage in the future, tenant agrees that this lease is subordinate to the owner's mortgage. l4. CARE OF LEASED PREMISES Tenant is responsible for, and will take good care of, the leased premises and all of the property in and around the leased premises. Tenant agrees to pay for any damage caused by tenant, tenant's employees and tenant I s guests and business invi tees, regardless of issues of fault. Tenant agrees to turn over possession of the leased premises to landlord when the lease ends and that the premises shall be in substantially the same condition as it exists on the date of this lease, reasonable wear and tear alone excepted. 15. LANDLORD'S RIGHT TO ENTER LEASED PREMISES Tenant agrees that landlord, landlord's representatives and owner have the right to enter the leased premises at reasonable times. Landlord, landlord '5 representatives and owner have the right but not the obligation to inspect, to make repairs, to do maintenance, and to show the leased premises to others. 16. UTILITY SERVICES Landlord and tenant agree to pay for the charges for utilities and services supplied to the leased premises as follows: Charae or Service: Electric to Premises Water Service Natural Gas Refuse Collection Lawn Maintenance Snow and Leaf Removal Sewer Charges Telephone Charges Paid Bv: Tenant Tenant Tenant Landlord Landlord Landlord Tenant Tenant Landlord or owner have the right to turn off temporarily any utility or other service to the leased premises in order to make repairs or do maintenance. 17. GOVERNMENTAL POWER OF EMINENT DOMAIN. Eminent domain is the legal name for the right of a government such as the state or county or city to take private property for public use. The government must pay fair compensation to anyone who has any right in the property that is taken by the government. If all or any part of the leased premises (or the building within which the leased premises is located) is taken by eminent domain, this lease will end automatically. Landlord and tenant agree to release each other from any responsibility because the leased premises is taken by eminent domain and the lease or sub- lease has ended. 18. VIOLATIONS OF THIS LEASE WHEN EITHER LANDLORD OR TENANT DOES NOT DO SOMETHING THAT THEY HAVE AGREED TO DO, IT IS A VIOLATION OF THIS LEASE. IF TENANT VIOLATES THIS LEASE, TENANT MAY LOSE TENANT'S SECURITY DEPOSIT. IF TENANT VIOLATES THIS LEASE, LANDLORD ALSO CAN SUE TENANT FOR OTHER EXPENSES AND MAY SUE TO EVICT TENANT. EACH TENANT SHOULD NOT SIGN THIS LEASE UNLESS EACH TENANT HAS READ AND CLEARLY UNDERSTANDS THE INFORMATION IN THIS SECTION ABOUT LEASE VIOLATIONS. X THIS IS A JOINT AND SEVERAL LEASE THIS IS NOT A JOINT AND SEVERAL LEASE IF THIS IS NOT A JOINT AND SEVERAL LEASE, THEN THE LANDLORD CAN ONLY SUE ONE TENANT FOR THAT TENANT'S VIOLATION OF THE LEASE. IF THIS IS A JOINT AND SEVERAL LEASE IT MEANS THAT ALL THE TENANTS AS A GROUP AND EACH OF THE TENANTS AS AN INDIVIDUAL ARE RESPONSIBLE TO LANDLORD FOR ALL OF THE AGREEMENTS OF THIS LEASE. FOR EXAMPLE, IF THE RENT IS NOT PAID, LANDLORD CAN SUE ALL OF THE TENANTS (JOINTLY) FOR ANY UNPAID RENT. SUIT AGAINST ANY ONE TENANT SEPARATELY UNPAID RENT. OR, LANDLORD CAN BRING A (SEVERALLY) FOR ALL OF THE TENANT VIOLATES THIS LEASE IF TENANT: 1) FAILS TO PAY RENT OR OTHER CHARGES TO LANDLORD ON TIME OR, 2) LEAVES (ABANDONS) THE LEASED PREMISES WITHOUT THE LANDLORD'S PERMISSION BEFORE THE END OF THE LEASE OR, 3) DOES NOT LEAVE THE LEASED PREMISES AT THE END OF THE LEASE OR, 4) DOES NOT DO ALL OF THE THINGS THAT TENANT AGREED TO DO IN THIS LEASE. IF TENANT VIOLATES THE LEASE , EACH TENANT AGREES TO WAIVE NOTICE TO QUIT. THIS MEANS THAT THE LANDLORD MAY FILE A COMPLAINT IN COURT ASKING FOR AN ORDER EVICTING EACH TENANT FROM THE LEASED PREMISES WITHOUT GIVING EACH TENANT NOTICE TO QUIT FIRST. LANDLORD DOES NOT HAVE THE RIGHT TO THROW TENANT OUT OF THE LEASED PREMISES (SELF-HELP EVICTION). THE LANDLORD CAN ONLY EVICT TENANT BY COURT ACTION. THE LANDLORD DOES NOT HAVE THE RIGHT SUE IN COURT FOR EVICTION UNLESS A TENANT HAS VIOLATED THE AGREEMENTS IN THIS LEASE. EVEN THOUGH EACH TENANT IS WAIVING NOTICE TO QUIT, EACH TENANT WILL HAVE A CHANCE IN COURT TO CHALLENGE THE LANDLORD'S CLAIM FOR EVICTION. IF TENANT VIOLATES THE LEASE AGREEMENT, THE LANDLORD MAY SUE EACH TENANT IN COURT: 1) TO COLLECT OVERDUE RENT, LATE CHARGES AND MONEY DAMAGES CAUSED BY TENANT'S VIOLATION OF THE AGREEMENTS IN THE LEASE WHETHER BY CONFESSION OF JUDGMENT OR OTHERWISE. 2) TO RECOVER POSSESSION OF THE LEASED PREMISES (EVICTION). 3) TO COLLECT FOR UNPAID RENT UNTIL THE END OF THE LEASE OR UNTIL ANOTHER PERSON TAKES POSSESSION OF THE LEASED PREMISES AS A NEW TENANT. Tenant agrees that landlord may receive reasonable attorneys fees as part of a court judgment in a lawsuit against tenant for violation of the agreements of the lease. 19. CONFESSION OF JUDGMENT. TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR TENANT AT ANY TIME AFTER DEMAND OR DEFAULT HEREUNDER IN ANY ACTION BROUGHT AGAINST TENANT UNDER THIS LEASE AT THE SUIT OF LANDLORD, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, TO WAIVE THE I' II I; ii I' I: I " ': i ~SHTON ENTERPRISES, " !I I' ,0 o " ji IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 97-515 Plainlif17RespondenL vs, CIVIL ACTION - Law , 'I II ~HARLES HUGHES AND JACKIE: . HUGHES, : I . I; . I i DefendantsIPetilioners : I' " " PETITION TO STRIKE OFF AND/OR OPEN JUDGMENT PURSUANT TO RULE 2959 OF TilE PENNSYI,V ANIA RULES OF CIVIL PROCEDURE n ",1..\ (') C -J " :~ - ,. ~. ~, "" 0"0 Q.11 ::J ; ~ p- > ~ \, .0) .;n co , t';,J 'cr; I -< 1r ~:: i. ";'" " -8 '. '-;'., ( ..le') ;'..:( c"3 !:jnl ;;.i ,~ :(1 .,.... ~J .r. .< AND NOW, TO WIT, this 25th day of April, 1997, comes the above-captioned : DefendantsIPetitioners, Charles Hughes and Jackie Hughes, by and through their attorney, ! ,: ! Farley G Holt, Esquire, and file the within Petition to Strike Off and/or Open Judgment, to \: I ~hiCh the following is a statement: Iii. The above-captioned Respondent, Ashton Enterprises, is a corporation ii ~rganized and existing under the laws of the Commonwealth of Pennsylvania whose , ~ddress for conducting business is P.O. Box 251, New Kingston" Cumberland County, ~ennsylvania, and whose exact entity and make-up is unkown to the Petitioners, I i , : i 2. The above-captioned Petitioners, Charles and Jackie Hughes, are adult \\ I :individuals who currently reside at 5208 Susquehanna Trail, York, Pennsylvania 17402, , 3, On or about January 30, 1997, the above-captioned Plaintiff, Ashton 'EXtJIBIT "". ,,"",~" " I' " , !I ' " IEnterprises, by and through their allomey, John It Fenstermacher, Esquire, filed a I' i' ;Complaint with the Prothonotary's Office of Cumberland County, Pennsylvania seeking I , :confession of judgment in favor of Ashton Enterprises and against the :' !PefendantsIPetitioners, Charles and Jackie Hughes, in the amount $7,431.50. I " ! I 4, On or about March 21, 1997, the above-captioned PlaintilfslRespondents, filed j: !by and through their allomey, a Notice Under Rule 2958.1 of the Pennsylvania Rules of I : Civil Procedure giving notice of judgment and execution thereon to the Petitioners herein. , Said notice was served upon the DefendantslPetitioners on March 27, 1997. 5. On or about March 29, 1997, the above-captioned DefendantsIPetitioners filed , I' i ~n Answer to the Plaintill's Complaint for confession of judgment. I " 6. The above-captioned Plaintilfhas confessed judgment pursuant to the tenns of I a commercial lease for a certain piece of commercial property located at 6508 Brandy , I' i Lane, Unit #3, Mcchancisburg, Cumberland County, Pennsylvania 17055. (See allached , I, I Petitioner's Exhibit " A" which is incorporated herein by reference as if set forth in full). II ! I 7. The aforegoing commercial lease was entered into between by the ,I II ! DefendantslPetitioners with the PlaintilflRespondent for the sole purpose of allowing the I ~efendantslPetitioners to operate a commercial business, namely an automobile repair ! ~arage and towing business at the aforegoing commercial premises. The above-captioned i I PlaintilflRespondent was well aware of the DefendantslPetitioners' intended use for the I I II Hampden Township Bootd 01 Commllllonen Metvyn C, F1nkdsloln, I'rosklenl lSabr.tl Slalt....1S. VIce Presk1c:nl James E. Renclcr Nevin w. Fink Donald II. /otcOlIlln Townahlp Manal'" John I!, Illadloy, J" January 23, 1997 Charles H. Hughes 5208 Susquehanna Trail York, PA 17402 Re: Application for Certificate of Use 6508 Brandy Lane, Mechanicsburg, P A Tax Parcel No. 10.10-22.521-12 Dear Mr. Hughes: This concerns your recent application for a Certificate of Use to allow a mechanical repair shop at the referenced address. The application is being held pending receipt of further information. Off-street parking must be provided in accordance with Part 19, Section 1902.2H. Storage of tow vehicles and other equipment or vehicles at this site will require a fenced-in storage area, pursuant to Zoning Ordinance Sections 1413, 1608.4 and 1902.2H. (see enclosed copies) Until your application is approved, you should remove all commercial activity from this site, including the storage of any vehicles and commercial advertising (signs) immediately. Please fee! free to call this office with any questions you may have. Sincerely, )fLtu.ll! MC7tJ~ Darrell L. McMillan Director of Codes Enforcement Assistant Zoning Officer DLMlPCH cc: Board of Township Commissioners Richard C. Snelbaker, Esq., Township Solicitor John E. Bradley, Jr., Township Manager Jeff & Holly Wilbur 130 S SlltIltlllK 11111 )(11;111 Mc"hunic,hwg,I'A 170'S.)0?7 H.MlIiI102ISS.2~"I(II~()n1I'U'CIVC I.:IIIl1 FAX (117) 7M.12(I' Tnll (717) 7(,I.HHl 1)~i'I;P'j:"'~'jtr..;.,,':i 'f!, '.?' , ,," ";,, . J',. '.'-,' ,.'" . '....:::.:......:__ . SherifPs Office of York County William M. Hose Sheriff Peter J. Mangan Solicitor J Reubes B. Zuger ChieflXputy, Operations J:uuc.s V. V:mgrcclI Chit! D~pu..)'. Admit:irtrotioll . , , . p Y 00; COllnt)' Courthous: York, pcnnS)'ll'ania 17401 , '717-771.960 I CHARLES & JI'.c'KIE HUGHES WRIT OF EXEx:'UTIOO NO. 97 SU 4818-08 ASH'l'OO ENTERPRISES IN THE COURl' OF C'a.lMON PLEl'.5 OF YORK COUNTY, PENNSYLVI'.NIA VS. RELEl'.sE OF ITEMS UNDER SHERIFF'S LEVY Since no objections have been filed to the Sheriff's Determination of o.mership of items levied upon under the above writ of Execution, the items are released to Charles E. Hughes, Jr., Claimant. January 20, 1998 ~ , WILLII'.M M. HOSE, SHERIFF COUNTY OF YORK ee: Mark E. Emery, l'.ttorney for the Plaintiff Charles E. Hughes, Jr., Claimant Charles and Jackie Hughes, Defendants