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Home My WebLink About97-07180 , , I , d J " , " I , , " ~ I ,]- -/ , , I -~f' ~ t I , , I , " ;'1 , 'I, di' i,l' ~ I , ~J , , I I, I I !i Ii I , , , ,,' I, Ii' , , , " " ' , , , I, , , , I I , , , ,I , " , , ! " I, , ,I ,I , , " 1/ I' I , , " " , 'I , I , , , " , , "/1 " " , I, , ;' , , " '11 " , " I I' U , , ~ I I , , , , , 'II , , " I , I " , ,I " I , , .. " , , ~ , ';' , , , , , I '\1 , , 'J, I , , , , 'I , , , , , I " , ,! , ' , ' I '/, " .,,! , , , -'I " , , , " ,'I , , , " " ,-! , , I I , 'It' , , , , " " ,', " '1 , " " " , , , . 1 '1 , , ,;1 j' , ' I " " , \ HI " , ,''I ,:} , J , , I, 1, " ,1 ~1~ \11, ,', , " d' 'I; .," ROBERT R. BLACK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIl. ACTION.. LAW .V, JERRY H, BOGAR, II, and CAROLINE BOGAR, Husband and Wife, . Defendants NO. 97. '-,/ BD LANDLORDrrENANT NOTICE You have been sued in Court, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by allorney and t1Iing in writing with the Court your defenses or objections to the claims set forth against you, You are warned that if you fall to do so the case may Pl'oceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint. or for any other claim or relief requested by the PlaintilT(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TilE OFFICE SET FORTII BELOW TO FIND OUT WHERE YOU CAN GET LEGAL IIELP: LAWYER REFERRAL SERVICE COURT ADMINISTRATOIt CUMBERLAND COUNTY COURTIIOUSE CARLISLE, PA 17013 (717) 140.6100 Dated: BY: 7A{/Nt",] acl.--- Thomas J, Ahre ,Esquire Attorney ID No, 80143 36 South Hanover Street Carlisle, PA 17013 (717) 240-2655 Attorney for Plaintiff , attached and made a part hereof and marked as Exhibit" A", 4, Under the terms of Lease A, Bogars were entitled to occupy the aforementioned premises from December I, 1994, until November 30, 1997, for the sum of Eighteen Thousand and no/JOQ ($18,000.00) Dollars, payable in installments of Five Hundred and no/100 ($500.00) Dollars on or before the first day of each succeeding month, 5. Under the terms of said Lease A, a 5% penalty was provided for rental payments received after ten (10) days after the due date, 6. Under the terms of said Lease A, Bogars further covenanted with Black, to scrape and paint the back porch, the living room, the bedrooms and the bathroom of the premises at Bogars' expense, 7. Under the terms of said Lease A, Bogal'S further covenanted with Black, to retile the wall around the bathroom tub, to sand and refinish the living room floor, and to replace the refrigerator, dishwasher, and self-cleaning wall oven with new appliances of comparable quality, and a stove-top from the Bogar's mother, at Bogal'S' expense, 8. The Bogal'S, however, have failed to make the agreed upon rental payments for the months of June, 1996, through August, 1996, The amount owing for these months, plus the penalty for the months of May, 1995, June, 1995, November, 1995, February, 1996, June, 1996, July, 1996, August, 1996, totals One Thousand Six Hundred Seventy Five ($1,675,00) Dollars, tl~ ~5'l' '611oq Exhibit "A" LAW OI'FICES LANDIS BLACK ta SCHORI'I' 16 lOUTHII^NOVER STREET CAIlI.ISLE, PENNSYLVANIA 17011 ROBERT R, BLACK EDW^RD UCHORPI' lUEPHONE 1717) 741.1727 I, BOYD LANDll III)},t.I',)H4l ARTICLES OF AGREEMENT Mad.e this ~~aY of NtJ"~~lJE::.-~ , A.D. 1994, between ROBERT R. BLACK, hereinafter styled the party of the first part, and JERRY H. nOGAR, II and CAROLINE nOGAR, of 148 West High street, Carlisle, Pennsylvania 17013, hereinafter styled the party of the second part. jOlEPH/, MclNTOlH !\').Io.mnl WITNESSETH, that the said party of the first part, in consideration of the rents and covenants hereinafter mentioned, doth demise and lease unto the said party of the second part, to be used as a townhouse, the premises situate at 148 West High street, Carlisle, County ,of Cumberland, described as follows: BEING a townhouse containing living room, dining room, kitchen, two bedrooms, sunporch, bath and a half, and basement. Second party and their family shall be the only occupantw of said townhouse unless otherwise agreed by the parties hereto. First party will supply heat, hot water and sewer. Second party will furnish electric, trash collection and TV cable, if desired. No pets or animals of any kind shall be permitted on the demised premises. Mowing of the yard and care of the same shall be the responsibility of second party. One bay in the garage at the rear of the property is part of this Lease. . Jf\Pl , '~~~ A five peroent (5%) penalty shall be due and payable for rent received after ten (10) days from the due date. '/",'I.l. Within sj,1( (G)"'monthg of the date of this Lease, the second party at their expense will scrape and paint the back porch, the living room, the bedrooms, and the bathroom. Second party will install vinyl in the kitchen and tile the bathroom floor. Second party will re-tile around the bathroom tub. sand and refinish the living room floor, and replace the following appliances with new appliances of comparable quality: refrigerator, dishwasher, stove and self-cleaning wall oven. Second party will fix a window in the basement. Second party may install a stove-top, which they are receiving from their Mother and is practically new. TO HAVE AND TO HOLD unto the said party of the second part, subject to the conditions of this Agreement for the term beginning on the 1st day of December, 1994, and ending on the 30th day of November, 1997. IN CONSIDERATION OF WHICH the said party of the second part agrees to pay to the said party of the first part for the use and occupancy of the said premises the sum of Eighteen Thousand and no/100 ($18,000.00) Dollars, payable as follows: Five Hundred and nO/100 ($500.00) Dollars on the signing of this Lease, being the rent for the first month of said Lease; Five Hundred and nO/100 ($500.00) Dollars in advance, on or before the 1st day of each succeeding month so long as this Lease shall remain in force and effect. Second party will deposit with first party a security deposit of Five Hundred and no/100 ($500.00) Dollars for the performance of all terms, covenants and conditions of this Agreement. AS A FURTHER CONSIDERATION for the use and occupancy of said premises, the said party of the second part hereby agrees to faithfully keep and be bound by the following covenants, conditions and agreements: The said premises are to be kept and maintained in as good repair and condition as at present, and at the expiration of this Lease they are to be surrendered in like repair and condition, natural wear and damages happening by fire, storm or other casualties only excepted. The premises are to be kept in a clean and sanitary condition and all. ashes or other garbage which may accumulate thereon during the term are to be removed, and in case of failure to remove the same the party of the first part may collect as rent due and in arrears the cost of removal; the water, lighting or other service for the use of the occupants of the said premises furnished by any Public Service company during the said term shall be paid for by the said party of the second part unless otherwise provided herein, or the same may be collected by the said party of the first part as rent due and in arrears. Nothing shall be done upon said premises contrary to the conditions of the policies of insurance upon the buildings thereon whereby the hazard may be increased or the insurance invalidated; neither the whole nor any portion of the said premises shall be sublet, nor shall this Lease or any interest therein be assigned, nor shall the party of the second part remove or attempt to remove from said premises during the term of 2 this Lease, Ifithout the written consent of the said party of the first partl and no unlawful business shall at any time be carried on upon said premises. The party of the first part expressly reserves the right to enter upon the premises at reasonable times for the purpose of making necessar.y inspection or repairs, or to show the same to prospective purchasers or lessees, and may display "For Rent" or "For Sale" cards thereon. If default shall be made in the payment of any part of the said rent after the same becomes dua, or in case of a breach or. evasion or any attempt to break or evade any of the covenantlio. or conditions of this agreement, the entire rent reserved for the full term of this Lease remaining unpaid shall become due and payable at once, and may forthwith be collected, and at the same time the party of the first part may forfeit and annul the unexpired portion of chis Lease and enter upon and repossess the said premises with or without process or. law, and without giving any notice whatsoever. Acceptance by the party of the first part of any of the said rent at any time after the same shall become due, after default has been made in the payment thereof, or any failure to enforce any of the rights herein reserved to the party of the first part or any of the conditions herein contained, shall not in any wise be considered a waiver of the right to enforce the same at any time without any notice whatsoever, and any attempt to collect the rent by one proceeding shall not be considered as a waiver of the right to collect the same by any other proceeding, but all of the rights of the party of the first part and all conditions may be enforced, together or successively, at the option of the party of the first part. It is further agreed that if the party of the second part shall become insolvent, make an assignment for the benefit of creditors, commit any act of bankruptcy, file a voluntary petition in bankruptcy, or if any judgment shall be entered or an involuntary petition in bankruptcy be filed against the said party of the second part, all the rent reserved for the full term of this Lease remaining unpaid shall become due and collectible immediately. Any attorney of any Court of Record of Pennsylvania is hereby authorized to appear for and to confess judgment against the said party of the second part and in favor of said party of the first part for the amount of said rent then due and unpaid, as hereinbefore set forth. And the said party of the second part hereby waives the usual notice to quit, and agrees to surrender said premises at the expiration of said term or the termination of this Leaso 3 , . , without any notice whatsoever. And upon any proceeding instituted for the recovery of said rent, the said party of the second part waives the benefit of all appraisement, stay and exemption laws, the rights of inquisition on real estate, and all bankruptcy or insolvency laws now in force or hereafter passed. upon the breach of any of the covenants or agreements of this Lease, or upon its termination by forfeiture, default or expiration, any attorney as aforesaid is hereby authorized to appear for and to confess judgment in an amicable action ~f ejectment against said party of the second part and in favor of the said party of the first part for the premises herein described, and to direct the immediate issuing of a writ of possession to include a clause for cost and rent due, waiving all irregUlarities, without notice and without asking leave of court. IT IS FURTHER AGREED that the terms and conditions of this Agreement and Lease shall in no way be changed or altered except by a writing signed by all of the parties hereto; and if the said party of the second part shall continue in possession of the said premises after the expiration of said term, at the option of the said party of the first part such holding over may be held and deemed a renewal of this agreement for another year, and so on frODI year. to year until legal notice is given for removal, each renewal being subject to the conditions of this Lease. THE CONDITIONS of this Agreement shall extend to the administrators and executors of all the parties h~reto. IN WITNESS WHEREOF, the parties aforesaid have hereunto set their hands and seals the day and year first above written. IN THE PRESENCE OF: ~~ (SEAL) /." f~;'Y;?----""'~'~~:> ,(' ?;2 :/~ -d!/:;---'- ,// " JlJ/ -L-'( II /~'o.4::,6- Jerry H. Bogar, II ' (SEAL) {~(;1/1 v('f/J'l)/ '{J;(,vIC1/t " I j fall if(~t/~,.11 (rt;ltl/l/ caroline Bogar I) ( SEAl.) 4 . , . Exhibit "B" ARTICLES OF AGREEMENT Made this /3t1ty of ~r:IL , A.D. 1995, between ROBERT R. BLACK, hereinafter styled the party of the first part, and JERRY H. BOGAR, II and CAROLINE BOGAR, of 148 West High street, Carlisle, Pennsylvania 17013 (258-8769), hereinafter styled the party of the second part. WITNESSETH, that the said party of the first part, in consideration of the rents and covenants hereinafter mentioned, doth demise and lease unto the said party of the second part, to be used as an apartment, the premises situate at Apartment 3, 148 West High street, Carlisle, county of Cumberland, described as follows: BEING a third floor apartment containing living room, bedroom, kitchen, loath and backporch. First party will supply heat, hot water and sewer. Second party will furnish electric, gas, TV cable, if desire and Borough trash recycling. No pets or animals of any kind shall be permitted on the demised premises. Second party shall be the only occupant. A five percent (5%) penalty shall be due and payable for rent received after ten (10) days from the due date. TO HAVE AND TO HOLD unto the said party of the second part, subject to the conditions of this Agreement for the term beginning on the 15th day of April, 1995, and ending on the l4th day of April, 1996. IN CONSIDERATION OF WHICH the said party of the second part agrees to pay to the said party of the first part for the use and occupancy of the said premises the sum of Forty-three Hundred . Twenty and no/l00 ($4,320.00) Dollars, payable as follows: Three Hundred Sixty and no/l00 ($360.00) Dollars on the signing of this Lease, being the rent for the first month of said Lease; Three Hundred sixty and no/l00 ($360.00) Dollars in advance on or before the 15th day of each succeeding month so long as this Lease shall remain in force and effect. .. , . . Second party will deposit with first party a security deposit of Three Hundred sixty and nO/100 ($360.00) Dollars for the performance of all terms, covenants and conditions of this Agreement. AS A FURTHER CONSIDERATION for the use and occupancy of said premises, the said party of the second part hereby agrees to faithfully keep and be bound by the following covenants, conditions and agreements: Tae said premises are to be kept and maintained in as good repair and condition as at present, and at the expiration of this Lease they are to be surrendered in like repair and condition, natural wear and damages happening by fire, storm or other casualties only excepted. 'rhe premises are to be kept in a clean and sanitary condition and all ashes or other garbage Which may accumulate thereon during the term are to be removed, and in case of failure to remove the same the party of the first part may collect as rent due and in arrears the cost of removal; the water, lighting or other service for the use of the occupants of the said premises furnished by any Public Service Company during the said term shall be paid for by the said party of the second part unless otherwise provided herein, or the same may be collected by the said party of the first part as rent due and in arrears. Nothing shall be done upon said premises contrary to the conditions of the policies of insurance upon the buildings thereon Whereby the hazard may be increased or the insurance invalidated; neither the whole nor any portion of the said premises shall be sublet, nor shall this lease or any interest therein be assigned, nor shall the party of the second part remove or attempt to remove from said premises during the term of this lease, without the written consent of the said party of the first part; and no unlawful business shall at any time be carried on upon said premises. 'l'he Party of the first part 'expr..ssly relolerv..s the right to enter upon the premises at reasonable times for the purpose of making necessary inspection or repairs, or to show the same to prospective purchasers or lessees, and may display "For Rent" or "~'or Sale" cards thereon. If default shall be made in the payment of any part of the said rent after the same becomes due, or in case of a breach or evasion or any attempt to break or evade any of the covenants or conditions of this agreement, the entire rent'reserved for the full term of this lease remaining unpaid shall become due and payable at once, and may forthwith be collected, and at the same time the party of the first part may forfeit and annul the unexpired portion of this lease and enter upon and repossess the 2 .. . . . said promiooa with or without proceas or law, and without givin~ any notico whatooovor. Acceptance by the party of the first part of any of the said rent fit any time after the allme ahall become due, after default haa been made in the payment thereof, or any failure to enforce any of the rights heroin reaerved to the party of the first part or any of tho condi \:lono h13rein contained, shall not in any wise be conoiderod a waivor of tho right to enforce the same at any time without any notice whotuoever, and any attempt to collect the rent by ono proceeding shall not be considered as a waiver of tho right to collout tho uumo by any other proceeding, but all of the righto of tho purty of tho first part and all conditions may be enforood, togother or uucceusively, at the option of the party of tho firut par.t. It io further agreod that if the party of the second part shall become inuolvent, make an assignment for the benefit of cr.editor", commit any uct of bankruptcy, file a voluntary petition in bankruptcy, or if any judgment shall be entered or an involuntary petitLon in bankruptcy be filed against the said party of the aeoond part, all the rent reset'ved for the full term of this loaua romu ining unpaid shall become due and collectible immediatoly. Any attorney of nny Court of Record of pennsylvania is hereby authorizod to uppoar for and to confess judgment against tho said party of the uecond part and in favor of said party of the fit'Rt part for the amount of said rent then due and unpaid, nu heroinbofore Bot forth. And the uold party of the second part hereby waives the usual notice to quit, and agrees to surrender said premises at the oxpiration of aaid term or the termination of this lease without any noticewhntuoever. And upon any proceeding instituted for the recovery of said rent, the said party of the aocond part Wlliveu tho benefit of all appraisement, stay and exemption laws, tho rights of inquisition on real estate, and all bankruptoy or inuolvoncy lawa now in forcu or hereafter passed. Upon tho breach of any of the covenants or agreements of thin loauo, or upon its termination by forfeiture, default or oxpiration, any attorney as aforesaid is hereby authorized to appenr for nnd to confess judgment in an amicable action of . ejootmont against said party of the second part and in favor of the said party of the first part for the premises herein dOBcribod, and to direct the immediate issuing of a writ of possossion to include a clause for cost and rent due, waiving all irrogularities, without notice and without asking leave of court. 1'1' IS FUH'l'IlER AGREED that the terms and conditions of this Agreement and lease shall in no way be changed or altered except :I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, I'ENNSYL VANIA ROBERT R, BLACK, PLAINTIFF CASE NO. 97.7180 V, CIVIL ACTION - LAW JERRY H. BOGAR, II AND CAROLINE BOGAR, HUSBAND AND WIFE, LANDLORorrENANT DEFENDANTS. NOTICE TQ PLEAD TO: Robert R. Blaek e(o Tholllas J. Ahrens, Esq. 36 South Hanover Street Carlisle, ItA 17013 You ore hereby notilied to lile a written response to the enclosed New Matter and Countcrcloim within twenty (20) doys from service hereof or ajudgment may be entered against you, BUCHANAN INGERSOLL PROFESSIONAL CORPORATION By: ;/:1:-/ ~ ft ~ Leonord H. MacPhee, Esquire 1.0.1#74216. 30 North Third Street 8th Floor Horrisburg, P A 171 0 I (717)237-4800 DATE: ~2 :3~8 , IN THE'COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT R, BLACK, PLAINTIFF CASE NO, 97-7180 v, CI VIL ACTION - LAW JERRY H, BOGAR, II AND CAROLINE BOGAR, HUSBAND AND WIFE, LANDLORDrrENANT DEFENDANTS, DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND COUNTERCLAIMS I I Defendants, Jerry H, Bogar, II and Caroline Bogar ("Bogars"), by and through their attorneys, Buchanan Ingersoll Professional Corporation, hereby Answer the Complaint of Plaintiff, Robert R. Black ("Black"), and assert New Matter and Counterclaims as follows: I. Denied. After reasonable investigation, the Bogars are without knowledge or information sufficient to form a belief as to the truth of the averment of paragraph I and strict proof of the same is demanded at the time of trial. 2, Admitted, LEASE "A" 3, Admitted, 4. The lease, which is attached to the complaint, is a writing which speaks for itself, Any attempt to characterize the legal obligations or duties of the parties is denied as a conclusion of law to which no responsive pleading is required. 5, The lease, which is attached to the complaint, is a writing which speuks lor itself, Any attempt to characterize thc legal obligations or duties of the parties is dcnied as a conclusion of law to which no responsive pleading is required. 6, The lease, which is attached to the complaint, is a writing which speaks lor it~elf, Any attempt to characterize the legal obligations or duties of the parties is denied as a conclusion oflaw to which no responsive pleading is required, 7. The lease, which is attached to the complaint, is a writing which speuks for itseU: Any attempt to characterize the legal obligations or duties of the parties is dcnied as a conclusion of law to which no responsive pleading is required. 8, Admitted in part and dcnied in part. It is admittcd that thc Bogars did not tender to Black the $500 monthly rent payment tor the months of Junc 1996, July 1996 and August 1996, Rather than tcndering the monthly rental payment to Black, the Bogars placed said amount into an escrow account. By way of further response, Black wrongfully evicted the Bogars from Apartment I by posting a Notice to Quit on July 23, 1996. It is specilically denied that the Bogars owe any moncy to Black, To the contrary, as more fully set forth in the New Matter and Counterclaims, which arc incorporated herein by referencc, Black breached certain dutics and covenants of Lease "A," including, but not limited to, the implied warranty of habitability and thereforc the Bogars owe nothing to Black. It is further denied that the Bogars owe late fees for any months, 9, Dcnied, It is dcnied that the Bogars failed to tile around the bathroom tub, replace the refrigerator or rcplucc the stove, To the contrary, the Bogars did cause the bathroom to be retiled, replaced the rcfrigerator and replaced the stove, It is further denied that the Bogars had a 2 duty to scrape and paint the baek porch, replace the dishwnshcr or rcplace the self-cleaning wnll oven. As more fully sct forth in the New Matter and Counterclaims, which are incorporated herein by reference, Bluck brellched certuin duties and covenunts, including, but not limited to, the implied wllrranty of habitability, und therefore the Bogurs had IlO duty to perform the services or provide the appliances as alleged in paragraph 9, It is further denied that the value of the services/appliances referenced in paragraph 9 equllls Two Thousand Five Thirty-Seven and 25/100 ($2,537,25) Dollars lInd strict proof of the slime is demanded at the time of trial. LEASE "8" 10. Admitted, 11, The lease. which is attached to the complaint, is a writing which speaks for itself, Any attempt to churacterize thc legal obligations or duties of the pnrties is denied liS a conclusioll oflaw to which no responsive plcllding is required, 12. The lease, which is attached to the complaint, is a writing which spcaks for itself, Any attempt to charactcrize thc legal obligations or duties of the parties is denied as [I conclusion oflllw to which no responsive pleading is required, 13, Admitted in purt and denied in part. It is admitted that the Bogars did not tender the rental payments for the months of January 1996, February 1996 and March 1996. It is specifically denied that the BOllars owe this amount to Black, By way of furthcr response, Black wrongfully evictcd the BOllars by posting a Notice to Quit on February 15. 1996, As more fully set forth in thc New Mutter IInd Counterclaims, which arc incorporated hercin by rcference, Black breached certain dutics and covcnllnts, including, but not limited to, the implied warranty 3 of habitability and therefore the Bogars were under no duty to make the payments os alleged. In addition, it is denied that the Bogars owe any money lor late puymelll. WHEREFORE, Delcndunts Jerry H. Bogar, II and Caroline Bogar request that the Court dismiss PlaintilTRobert R. Black's Complaint with prejudice. l":lEW MATTER 14. On or ubout November 17, 1994, the Bogars and Black entered into the lease attached to Plaintiff's Complaint as Exhibit "An whereby Black agreed to leuse to the Bogars Apartment I ("Apartment In), 148 West High Street, Carlisle, Cumberland County, Pennsylvania ("Building"). 15. The lease provided for 0 term of three years, from December 1,1994 to November 30,1997. 16. Under the terms of said lease, the Bogars were to pay a monthly rent of $500, due on or before the first day of each month, for a total of Eighteen Thousand ($18,000) Dollars, provide certain services and obtain and install certain appliances. The services enumerated in the leuse were to scrape and paint the back porch, the living room, the bedrooms and the bathroom of Apartment I, install vinyl in the kitchen, tile the bathroom 110or, retile around the bathroom tub and sand and refinish the living room floor. The appliances to be replaced included the: refrigerator, dishwasher, stove and self-cleaning wall oven. In addition, the Bogars were to fix a window in the basement. Further, the Bogars were permitted to install a stove-top which they were receiving from their mother. 17. In addition to the specific covenants set forth in said lease, Black was subject to the implied warranty of habitability. 4 18. In Novcmber of 1994, during inspcction of the property prior to entering Into thc leose. Mr..Bogar noticed a water stain in the cclllng In the living room and Inqlllred with Blllck as to the condition ofthe cclllng and the obvious past leak. Black told the Bogars that thc.lcak hlld been repaired. 19. Howevcr, the leak had not bccn repaired. 20. Thc Bogal's moved into Apartmcnt I on or about Dcccmbcr I. 1994. 21. At thc signing of the Icasc, thc Bogars paid Black $500 in thc form of a sccurity deposit. 22. Thc Bogal's madc thc timcly monthly rcntal paymcnt of $500 for the months of Dccember 1994 through April 1995, July 1995 through October 1995, December 1995 through January 1996 and March 1996 through May 1996. 23. In addition, the Bogars madc the $500 monthly rcntal paymcnt for the months of May 1995, June 1995, Novcmbcr 1995 alld Fcbruary 1996. 24. In addition. thc Bogars scraped and paintcd thc walls in the living room, bathroom. bcdrooms alld kitchen, installed vinyl in the kltchcn, caused the bathroom floor and Willi around the tub in the bat.hroom to bc retiled, sanded and refinished the living room floor (lIS weli as thc bcdrooms and haliway), fixed the window in the basement and replaced the following applianccs with appliances of comparable quality: refrigcrator and stove-top. 25. The Bogal'S did not scrape or paint the back porch becausc the back porch was rotten and decaying and constitutcd a dangerous condition on the property. It was Impossible for the Bogars to pcrform thc scraping and painting the back porch. 5 26. In February of 1995, thc living room ceiling bcganto leak. Thc Bogarswere at homc when the leak bcgan and therelore werc able to nlOVC personal bclonglngs out of the living room and placed buckets underneath thc leaks to catch the water. 27. The Bogal's immediately notilied Black that the living room celling wus leaking and requested that he irnmcdiately rcpair the leak. 28. Dcspite notification and rcquests, Black did not repair thc cciling leak. The only acknowledgmcnt ofthc leak by Black consistcd of Black arriving at Apartment Ilatc at night and placing 0 55 gallon trash con in thc middlc ofthc living room undcr the Icak. Block did not further respond to thc Bogal's' request to have thc ceiling rcpaired. 29. Throughout the remaindcr ofthc Bogars' occupancy of Apartment I, the ceiling in the living room leaked whenever it raincd or snow or ice was mclting. Thc Icak grew throughout the length of the Bogars' occupancy. The Bogars cleancd the snow and ice off of the roof repeatcd1y in an attempt to prcvent further leaks and to mitigate damages caused by the leaking roof and ceiling. 30. On April 13, 1995, the Bogars and Black entered into the lease attached to Plaintiff's Complaint at Exhibit "B" whcreby the Bogars Icased from Block the third floor apartment located in the samc building ("ApartmenI3n) to house their au pair. 31. The 1casc for Apartmcnt 3 provided for a term of onc ycar, from April 15, 1995 to April 15, 1996. 32. Undcr the tcrms of said lcase, the Bogars wcre to pay a monthly rent of$365 due on or before the fitleenth day of each month. 6 '42. In October of 1995, bccause the leak in thc cciling of Apartment I, the leaks in Apartment 3 and the running toilet had not bcen addressed by Bluck, thc Bogars notified Block that tliey would begin placing the rent to both apartments into escrow unless Black fixed the roof and the leaks in Apartments I and 3. 43. In response, Black engaged someone to work on the roof. Although someone did come to the building purporting to work on thc roof, the leaks were not repaired. 44. The hole in thc living room ceiling becam~ largcr and thc leak progrcssively increascd throughout the length of the lease, As the holc grew and the water damage to the roof and cciling increascd, the plaster in the living room began to crack, scparatc and fall. 45. The Bogars continually were rcquired to climb onto thc roof and swecp off the collecting rain in ordcr to mitigate any damagcs. 46. On December 5, 1995, the Bogars tclcphoned Block and again rcquestcd that he ~epair the living room ceiling in Apartment 1 because, in addition to the leak, large pieces of plaster were falling from thc ceiling, crcating a dangerous condition. 47. The Bogars also attached a note rcquesting that the leak and holc in the living room ceiling bc repaircd to their December 1995 rent chcck. 48. On January 12, 1996, the leak in the living room ceiling of Apartmcnt 1 increased substantially and caused significant damage to the Bogars' pcrsonal propcrty inasmuch as they were not at home when the leak increased. Thc leak destroyed the Bogal'S' mahogany server, and soaked through their vintage 1940's couch and vintagc rug. 49. Further. the tire escapc was detachcd from the building bccause of thc rotten extcrior, rendering it useless and unsafe. 8 50, On (lr about February 15, 1996, Black wrongfully evicted thc Bogal's from Apartment 3 by posting n Notice to Quit, purporting to require the Bogal's to vacate within thirty (30) days. 51. The Bogars vacated Apartment 3 within thirty (30) days of February 15, 1996. 52. Throughout the term of the lease, Black luilcd to perlonn the covenants rcquired of him including maintenancc, c1cuning und changing light bulbs of the public areas in the building, as well as snow and ice removallrom the sidewalks and stairs. 53. In addition the back porch was rotten and deteriorating, making its usc unsafe. Despite notice, Black did nothing to repair/replace the rotting back porch. 54. The maintenance problems as describcd abovc, including but notlimitcd to thc hole and Icak in the living room ceiling in Apartment I, thc hole and lenk in thc living room ceiling and bathroom in Apartmcnt 3, the uncleanlincss and pOOl' lighting in thc hallways and common arcas, the running toilet in Apartment I, the rolling and dcteriorating back porch and fire escape, and the failure to remove ice and snow from the walkway and front stcps rendercd Apartments land 3 uninhabitable and breached thc warranty of habitability, as well as thc duty of Black to maintain the common areas. 55, On or about July 23, 1996, Black wrongfully evicted thc Bogars from Apartmcnt 1 by posting a Notice to Quit purporting to requirc thc Blacks to vacate within thirty (30) days. 56. Thc Bogal'S vncutcd Apartmcnt 1 within thirty (30) days of July 23, 1996, 57. Accordingly, thc Bogal'S' obligation to pay rent during the months of the abovc- mcntioned unaddrcssed problcms was obviated and thercfore the Bogars owc Black no money 9 for the months of June, July and August of 1996 for Apartmcnt I or thc months of January. February and March 1996 lor Apartment 3. 58. In uddition. thc Bogurs werc not obligatcd to puy rent thc months of February 1995 through May 1996 in Apurtment I or thc months of May 1995 through Dccember 1995 for Apartment 3. Accordingly. Block is not cntitlcd to the late fcc hc sccks I'm' the months of November 1995, February 1996, or June through August 1996 for Apartment I and May 1995, June 1995, Novcmber 1995 and February 1996 for Apartmcnt 3. 59. In addition, thc Bogars ore cntitled to offset any amount that may be due and owing to Block bccause of Black's breaches of the implied warrunty of habitability for the months which the Bogars paid rcnt to Block (February 1995 through May 1996 for Apartment 1 and May 1995 through Deccmbcr 1995 for Apartment 3). 60. In addition, the Bogurs arc entitled to offsct any amount that may be due and owing to Black by the amount of damages they sustained to thcir personal property because of the leak in the living room eciling in Apartment I. 61. In addition, thc Bogars are entitled to offset any amount that may be due and owing to Block becuuse of thc unjust enrichment receivcd by Black for thc work performed and appliances provided, as morc fully set forth in the Counterclaims which are hereby incorporated by reference. 62. Black's claims are barred by the doctrine of accord and satisfaction. 63. Black's claims arc barred by the doctrine of duress. 64. Black's claims are burrcd by the doctrine of estoppel. 65. Black's claims are barrcd by failurc of consideration. 10 71. As more fully set forth above, the Bogars gave timcly notice to Block to repair the above-mcntioned deliclencies and made repcated and timely requests that said defieicncies bc repaircd. 72, Black had rcnsonable opportunity to make thc repairs. 73. Despite the repeated noticc and requcst for the abovc-montioned deliciencies to bc repaired, Black utterly and totally lailcd to do so. 74, The above-mentioned deficiencics, in wholc or in part. rendered Apartment I uninhabitablc for the months of Februnry 1995 through July of 1996 inasmuch as. among other problems, water Icakcd into the living room whenever it raincd or snowcd, thc apartment was unrellSonably cold during cold pcriods of time, and plaster continually tell from the ceiling thercby creating a dangcr. 75. Furthcrmorc, Black's failure to maintain the common arcns, repair thc bock porch and fire cscapc, fix the toilct and clcan/removc ice and snow from thc sidewalk and stcps breached the implicd warranty of habitability and the dutics of Block as landlord to upkeep the common areas and provide repairs to structural problems in thc Building and Apartment I. 76. Accordingly, thc Bogal'S were undcr no obligation to pay rent for the months of February 1995 through May 1996 lor Apartmcnt I and arc entitled to rcimburscmcnt in the amount of$8,OOO. 77. In the nlternntive, the above-mcntioncd dcficicncies constitute brcaches of the implied warranty of hnbitability and negated the rcquircment that the Bogal'S pay a portion of the rent for thc pcriod of February 1995 through July 1996 for Apartment I. Accordingly, thc 12 Bogars arc cntitlcd to reimbursement lor thc portion of the rent paid represcnting the decrcased value ofthc lcasc for the months of February 1995 through J\lly 1996. 78. Thc nbove-mentioncd dcficiencics, in whole or in part, rcndcrcd Apartment 3 uninhabitablc for the months or May 1995 through Deccmber 1995, inasmuch as. among other problcms, water leakcd into the living room and bathroom whenevcr it raincd or snowcd and the apartment was unrcasonnbly cold during cold pcriods of time. 79. Furthermorc, Black's failure to maintain thc common areas, rcpair thc firc escape and clear/rcmove icc and snow from thc sidewnlks and steps brcached the implicd warranty of habitability and the duties of Black as landlord to upkeep thc common arcas and providc repairs to structural problems in the Building and Apartment 3. 80. Accordingly, the Bogal'S wcrc undcr no obligation to pay rent for the months of May 1995 through Dcccmbcr 1995 for Apartmcnt 3 and arc cntitled to rcimbursement in the amount of $2,880. 81. In thc alternative. thc nbovc-mcntioncd dcficiencies constitutc breaches of thc implied warranty ofhnbitability nnd negated the rcquirement that thc Bogal'S pay a portion ofthc rent for thc period of May 1995throngh Dcccmbcr 1995. Accordingly, the Bogal'S ore entitled to reimbursemcnt for the p(1rtion of thc rent paid rcprcsenting thc decrcascd valuc of the lellSe for the months of May 1995 through December 1995 for Apartment 3. 82. In addition, becausc of the unrepaircd Icak in the living room ceiling of Apartment 1, the Bogal'S cxpericnced damagc to their vintagc couch, vintagc rug, and mahogany scrvcr. Thc value of thcse itcms in thc aggrcgate is in exccss of $550. 13 83. Black also rctained the $360 security deposil made by the Hogars pursuant to the lease for Apartmcnt 3. hllight of the above-mcntioned deficlencics and brcaehes of the Implied wurranly of habit ubi lily, Black improperly withheld thc security deposit und owes thc same bock to the Bogars. fill' a tOlul of $360 plus intcrest. 84. In addition, Black retained the $500 security dcposit madc by thc Bogars pursuant to the lellSe for Apartment I . In light of the abovc-mentioned deficiencics and breachcs ofthc implicd warrunly ofhabitubility, Black improperly withheld thc security deposit and owes thc same bllck to the Bogars, lor a total of $500 plus intcrcst, 85. B1uck never providcd notification to the Bogal's that he was retaining the sccurity deposit after thcy vacated Apartmcnt I or Apartmcnt 3, as required by Pennsylvania law. WHEREFORE, Counterclaimants Bogal's rcqucst thatjudgmcnt be entered against Black in an amount less than $35,000 plus intcrest and costs, which is within the limits of compulsory arbitration, and such other relicI' as the Court deems to bc equitable and just. COUNT 1/ . WRONGFUL EVICTION 86. The allegations contained in paragraph 14 through 85 arc hercby incorporated by reference os if more fully set forth herein. 87. As more fully sct forth above, it was within the Bogars' rights to withhold rent payments and the Bogars were under no obligation to pay the rcnt or perform the serviccs set forth in the Icase bccausc of the brcaches of the warranty of habitability by Block. 88. Accordingly, Black wrongfully evictcd the Bogal'S from Apartmcnt I for the failure to pay thc rent or pcrlorm the other functions set forth in the lease. 14 94. Black will be unjustly enriched ifhe is pemlitled to retain the value of the services and appliances provided by the Bogal's when in fact they were not obligated to provide said serviccs wld appliances because of Black's breaches of the implicd warranty ofhabilability. WHEREFORE, Counterclaimants Bogal's request the Court entcr judgment against Black in an amount less than $35,000 plus interest and costs, which amount is less than compulsory arbitration, and such other rclief as the Court deems to be cquitable and just. COUNT IV. FRAUDULENT MISREI'RESENTATION 95. The allegations contained in paragraph 14 through 94 are hercby incorporatcd by referencc os if more fully set forth hcrcin. 96. As morc fully sct forth above, during thc initial inspcction of the property, Mr. Bogar inquired as to the status of the water stain on thc ceiling of thc living room in Apartment I. 97. In rcsponse, Black indicated that thc leak in thc roof and ceiling had been repaired. 98. Despitc Black's representations, the Icak in thc roof had not been repaired. 99. At the timc he made the misrepresentation, Black knew or should have known that the leak in the cciling in the living room in Apartment 1 had not bcen repaired. 100. Black made the misrepresentation with thc intcnt that thc Bogars rely on it and enter into thc lease. 101. The Bogars did rcly on said misrepresentation and cntered into the Icase based thereon. 16 102, The Bogal's sullcred damages, os dcscribed above, os a result of cnterlng Into thc lease including, butnollill1lted to, thc paymcnt ofrcnt and perlonllance of services and prpvision ofimprovemcnts. damuge to fUl'l1lturc, and requirement of moving to 0 new hom~ with higher r~nt beforc explralion of the lease. , WHEREFORE, Gounterclalmants Bogal'S requcst that this Court enter judgment aglllnst Black in an amount oflcss than $35,000 plus interest, costs and attomeys fees, which amount Is less than compulsory nrbitration, und such othcr relicf os the Court deems to be equitable and just. DATE: '/2'/111 PROfESSIONAL CORPORATION By: ~/ / ~/~ Leonard H. MacPhee, Esquire !.D. #'14216 30 North Third Street 8th Floor Harrisburg, PA 17101 (717)237-4800 , " 17 Information sufficicnt to form a bclicf as to thc truth of thc avcrmcnt of paragraph 20 and strict proofofthc samc is dcmanded at timc of trial. 21. Admittcd. 22. Admitted. 23. Admitted. 24. Admitted in part, denied in part. It is admitted only that Bogars scrapcd and painted thc walls in thc living room, bathroom, bedrooms and kitchcn, installed vinyl in thc kitchen, sanded and rclinished thc living room 11001'. All of the rcmainlng aspects of this avennent arc denied. Thc tilc around the bathroom tub as well as on the 11001' needed replaced as soon as Bogars moved from Apartment I, relinlshing the hallway and bedroom 1100rs, and tlxing a " basement window were not II part ofthls lease agreement, and the refrigerator and stove top left In the apartment were not in working condition and needed replaced prior to leasing Apartment 1. 25. Denied. Block caused the bllck porch to be scraped and painted after the Bogus Icft Apartment 1. 26. Denied. After reasonable investigation, Block is without knowledge or information sufficient to form a belief as to the truth of the averment of paragraph 26 and strict proofofthc same is demanded at the time of trial. 27. Denied. After reasonable investigation, Black is without knowledge or information sufficient to fonn a belief as to the truth of the averment of paragraph 27 and strict proof ofthc samc is demanded at the time of trial. 28. Denied. Black attempted to tlx thc leak in the living room by engaging a contractor to repair any visible leak, re-coat the entire roof with roof coating and rearrangc thc 2 .poutlng .y.tem to direct water away from the area of the leak. 29. Denied. After reasonable inve.tl8'ltion, Black is without knowledge or information sufficient to fonn a belief as to the tf\llh of the IIvennent ofplll'agraph 29 and strict proof of the same is demanded at the tilne of trial. 30. Admitted. 31. Admitted. 32. Admitted. 33. Denied, The security deposit was not paid until April 26, 1995. 34. Admitted. 35. Admitted, 36. . Denied. After reasonable investigation, Black is without knowledge or information sufficient to fonn a belief as to the truth of the averment of paragraph 36 and strict proof of the same is demanded lit the time oftrial.. 37. Denied. After reasonllble investigation, Black is without knowledge or information sufficient to form a belief as to the truth of the averment of plll'lIgraph 37 and strict pr09f of the same is demanded at the time of trial. 38. Denied. After reasollllble investigation, Black is without knowledge or information sufficient to fonn a beliefas to the truth of the averment ofplll'lIgraph 38 and strict proof of the same is demanded at the time of trial. 39. Denied. After reasonable investigation, Black is without knowledge or information sufficient to form a belief as to the truth of the averment ofplll'agraph 39 and strict proof of the same is demanded at the time of trial. 3 40. Denied. After reasonable investigation, Block is without knowledge or intormation sufficient to form a belief as to the truth of the averment of paragraph 40 and strict proof of the same Is demanded at the time of trial. 41. Admitted in port, denied in part. It Is admitted only thllt the toilet in the first lloor bathroom ran occasionally. All of the remaining aspects of this averment are denied. The toilet in the firat lloor bathroom did llush properly. 42. Denied. After reasonable investiglltion. Blllck is without knowledge or information sufficient to form II belief as to the truth of the averment of paragraph 42 and strict proof of the same is demanded at the time of trial. 43. Admitted in pllrt, dr.nied in part. It is admitted only that because of the severity of the winter, after Black employed a person to repair the leak, another leak began in the roof. All the remaining aspects of this averment life denied. Block did employ 0 person to fix the leak, coat the roof lIIld rearrange the spouting. 44. Denied. The leak caused by the severe snowfall during the winter months remained only in the front comer of the living room in Apartment I, and at no point did the plaster ceiling deteriorate and fall to any recognizable extent. 45. Denied. After reasonable investigation Black is without knowledge or information sufficient to form a belief as to the truth ofthe averment of paragraph 45 and strict proof of the same is demanded at the time of trial. 46. Admitted in part, denied in part. It is admitted only that the Bogal'S called Black. All of the remaining aspects of this averment are denied. The plaster in the front corner of the living I'oom in Apartment I was not at any time falling off of the ceiling in a dangerolls way. 4 47. Admitted. Black completcd extenHive roofrepalrs bctween November 21,1995 and December 22, 1995 48. Denied. After reasonable investigation Block is without knowledgll or infonnation sufficient to fonn II belief as to the truth of the averment of paragraph 48 IInd strict proof of the same is demanded at the time of trial, 49. Denied. The fire escape is attached to the exterior of the building and was lit the time of the Bogllfs tenancy. SO. Denied. The lease agreement entered into by Bogllf clellfly indicates that Black can evict Bogllf should Bogllf fail to pay rent. S 1. Admitted. 52. Denied, Black promptly performed 011 maintenance on the building, which includes snow removal, as well as kecping light bulbs changed. 53. Denied. The back porch was in good working condition. Black had the bllck porch scraped and painted after Bogars left Apartment I. 54. Denied. Apllftments land 3 were habitable during the Bogar's tenancy. The leaks in the front bay window areas of Apartment land at the wall of Apartment 3, were small, isolated to the front window area and wallllfea of each apartment and did not render the Apartment 1 and 3 uninhabitable, The common areas were not unclean and poorly lit, the back porch was in good working condition, and the snow was consistently removed from the premises. 55. Denied. The lease agreement entered into by Bogar clearly indicotes that Black can evict Bogllf should Bogar foil to pay rent. 56. Admitted. 5 57. Denied. The lease agreement makes clear that when Bogllrs entered Into default by not paying the agreed upon rental payment, Black Is entitled to the entire rent reserved for the fulltenn of the lease. It is further denied that Bogars obligation to pay rent was obviated. Apartments I and 3 were habitable the entire months thllt Bogars lived In the apartments. 58. Denied. The lease IIgreement makes clear that Bogars were obligated to pay Black S5oo.oo per month for Apartment land S360.00 per month for Apartment 3. In addition, the lease sgreement makes clear that Bogars were obligated to PllY Black a 5% late fee for each payment that Wit over ten (10) days late. 59. Denied. Both Apartment land Apartment 3 were habitable during the entire term of the Bogar's tenancy. 60. Denied. After rea~onable investigation Blllck is without knowledge or information sufficient to form a belief as to the truth of the averment of paragraph 60 and strict proof of the same is demanded at the time of trial. 61. Denied. The work performed was performed under the terms of the lease. Thus Black was not unjustly enriched as he provided the Bogars Apartment I in exchange for their work performed. 62. Denied. Black's claims are not barred by the doctrine of IIccord and satisfaction. 63. Denied. After reasonable investigation Black is without knowledge or information sufficient to form a belief as to the truth of the averment of paragraph 63 and strict proof of the same is demanded at the time of tria!. 64. Denied. After reasonable investigati(ln Black is without knowledge or information sufficient to fonn II belief as to the truth of the averment of paragraph 64 and strict proof of the 6 IImC Is demanded at thc timc oftrilll. 65. Dcnied. Thcrc was full and adequatc considcration in that Black provided apartmcnts for Bogars to rcsidc in. 66. Dcnled. Black did not frlludulcntly misrcprcscnt to B08l11' any fact during thc period ofthc Bogars' tcnancy. Ncithcr did Black frlludulently misreprcsent to Bogar any fact during thc period prior to th, Boglll's' tenancy. 67. Denied. Thc back porch was scraped and paintcd aftcr thc Bogan Icft Apartmcnt 1. 68. Denied. Black strictly denies that the statute of limitations burred his claims. COUNTERCLAIMS COUNT I- BREACH OF IMPLIED WARRANTY OF HABITABILITY 69. Thc rcsponses to paragraph 14 through 68 are incorporated by referencc as if fully set forth hcrein. 70. Denied. Apartment land 3 were habitable during thc course of the Boglll"s tcnancy. Thcleak in the ceilings of Apartment IlInd 3 werc minor leaks which did not deem thc entire apartments uninhabitablc. The back porch was not rotten, as it was painted after thc Bogars moved out. The fire escape is connected to the building and in good working condition. The toilet in the bathroom was serviced. The common area was kept clean and well lighted, and snow was promptly removed after snowfall. 71. Denied. After reasonable investiglltion, Black is without knowledge or information sufficient to form a belief as to the truth of the averment of paragraph 71 and strict proofofthc same is demanded at the time of trial. 7 72. Admitted. Roof repairs were maid. 73. Denied. Black did have the leaks repaired by a repairman. 74. Denied. The apllrtment only hod a small leak In the front of the living room ceiling. The apartment had heat which was In working condition during the entire term of the Bogars' tenancy, and at no time was there any unsafe condition in Apartment I rendering the apartment uninhabitable. 75. Denied. Black did malntail) the common areas including but not limited to removing snow from the premises. In addition, the back porch and fire escape were in good working condition during the entire term of the Bogal'S' tenancy. 76. Denied. Black did not neglect his obligations u landlord. Therefore Bogars are not rclieved from their obligations to pay rent during the teml of their lellse. 77. Denied. Black did not breach the implied warranty of habitability for Apartment I and 3 during the term of the Bogars' lease. Both apartments were in good condition and Bogars were able to comfortably live in both apartments. 78. Denied. The apartment was not cold during winter months as it had a furnace capablc of heating the entire building. In addition, Apartment I had its own thermostat. The leak, which was in the front of the living room did not render Apartment 3 uninhabitable as the leak was confined to a small por1ion of the apartment. 79. Denied. Black did maintain the common IIreas including but not limited to removing snow from the premises. In addition, the back porch and fire escape were in good working condition during the entire term of the Bogars' tenancy. 80. Denied. Black did not neglect his obligations as landlord. Therefore Bogars are 8 not relieved from their obligations to pay rent during the term of their leasc. 81. Denied. Black did not breach the implied warranty of habitability for Apartment I and 3 during the term of the Mogar's leasc. Both apartments were In good condition and Bogars were able to comfortably live In both apartments. 82. Denied. Aller reasonable investlglltlon, Black Is without knowledge or Information IIUfficient to form a belief as to the truth of the avennent of paragraph 82 and stlict proof of the same Is demanded at the time of trial. 83. Admitted in part, denied In part. It is admitted only that Blllck did not scnd Bogars their security deposit. Black withheld such deposit on IIccount of delinquent rent. Further, Bogan left no forwarding address. 84. Admitted in part, denied in part. It Is admitted only that Black did not ;!end Bogars their security deposit. Black withheld such deposit on account of delinquent rent. Further, Bogan left no forwarding address. 8S. Admitted in part, denied in part. Blllck was unable to locate Bogars after they vacated the apartment as Bogars did not give Block a new address. COUNT II . WRONGFUL EVICTION 86. The responscs to paragraph 14 through 85 are incorporated by reference lIS iffully sot forth herein. 87. Denied. Black did not breach the implied warranty of habitability for Apartment I and 3 during the term of the Bogars' lease. Both IIpartments were in good condition and Bogars were able to comfortably live in both apartments. 88. Denied. The leasc agreement entered into by Bogars clearly indicates thllt Black 9 can evict Bogars should Bogars fail to pay rent. 89. Denied. After reasonable investigation, Block is without knowledge or infQnnation sufficient to fonn a belief as to the truth of the averment of paragraph 89 and strict pl'oofofthe same Is demanded at the time of trial. 90. Denied. After rellSonllble investiglltion, Blllck is without knowledge or information sufficient to form a belief as to the truth of the averment of parllgraph 90 and strict proof of the same is demanded at the time oftriol. COUNT III. UNJUST ENRICHMENT 91 The responses to parllgraph 14 through 90 are incorporated by reference as if fully set forth herein. 92. Denied. Black did not breach the implied warranty of habitability for Apartment I and 3 during thc term of the Bogar's lease. Both apartments were in good condition and Bogars wcre able to comfortably live in both IIpllrtments. Therefore, Bogars were obligated to uphold thcir obligations in the leasc. 93. Admitted in part, dcnied in part. It is admitted only that Bogars scraped and painted thc walls in the living room, bathroom, bedrooms and kitchen, refinished the living room floor and installed paste down vinyl in the kitchen. It is denied that Bogars retiled the bathroom floor and around the tub, refinished the hallway, removed debris from the ba~ement or installed a washing machine and dryer. Most of the foregoing improvements had to be redone after Bogars left the apartment. 94. Denied. Black fulfilled his obligations under the terms of the lease by providing a safe, habitable Apartment I and 3. Bogal'S did not pay timely rent or fulfill their obligation to do 10 thc agreed upon services. COUNT IV - FRAUDULENT MISREPRESENTATION 95. Thc rcsponses to paragraph 14 through 94 arc incorporated by reference as If fully set forth hercln. 96. Denied. To thc contrary, Black does not recall ever talking with the Bogan about a leak prior to the Bogan residing in Apartment I. Black had thc entire roof repaired and re- coated in the summer of 1994. 97. Denied. To the contrary, Black does not recall evcr talking with the Bogan about a leak prior to thc Bogal's residing in Apartment 1. Black had the cntire roof repaired IInd re- coated in thc summer of 1994. Denied. Black did not know ofa leak in Apartment I at the time of the Bogan' 98. rental. 99. rental. 100. rental. 101. Denied. Black did not know ofa leak in Apartment I at the time of the Bogars' Denied. Black did not know ofa leak in Apartment I at the time of the Bogars' Denied. There was no misrepresentation os to the existence of a leak in Apartment 1. Therefore, Bogars could not have relied on such a representation. 102. Denied. Black full1l1ed his obligations under the terms of the lease by providing a safe, habitable Apartment I and 3. Bogan did not PIlY timely rent or fulfill their obligation to do the agreed upon services. Therefore, Black is not responsible for the Bogan rent payments wherever they chose to live after breaking their lease with Black. II .~ O' ~, (.; .. ~ll N ~..l ...r- I ;; i ~'l .,... , . i:": .. . ~!'" (iT~ :~..I rO, 1-' It., ..' " (i tt!1~' ',- f{ '-~ C:' . Ii,) ~.::. ~I,I L Id.. 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