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LAKESIDE HOLDING COMPANY, : IN THE COURT OF COMMON PLEAS
INC., : OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : CIVIL ACTION - LAW
AURELIO FONTONAROSA and :NO. 3S so CIVIL 1998
CAROL ANN FONTONAROSA,
husband and wife,
Defendants
CONFESSION OF JUDGMENT IN EJECTMENT
Pursuant to the authority contained in the warrant of attorney, the original or a
copy of which is attached to the complaint filed in this action, I appear for the
defendants and confess judgment in ejectment in favor of the plaintiff and against the
defendants for possession of the real property described as follows:
See attached
Respectfully Submitted,
O'BRIEN, BARIC & SCHERER
BY: r--- \:::::-:>0 6.,A.4'-
Robert L, O'Brien, Esquire
1.0. #28351
17 West South Street
Carlisle, Pennsylvania 17013
717 -249-6873
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('Oiv~fERCI..1,L LEASE
THIS LEASE entered into as of the 28th day of:vray, 1997. by and between:
L.-\KESlDE HOLDf0iG COivfPANY, INC., of P.O. Box 10,
Shippensburg, Pennsylvania. 17257. (Landlord)
and
AL'RELIO FONT.-\.'i..IJ\OSA and his wife CAROL A.,\;~. C/O Rustic Inn,
105 \Vest King Street. Shippensburg, Pennsylvania. 17257. (Tenant).
WTTi'oiESSETH: Landlord hereby leases to Tenant and Tenant leases from Landlord, for
the term and upon the terms and conditions hereinafter set forth. the premises presently known as
Rustic Inn, located in Shippensburg. Pennsylvania. together with the building and other
improvements constructed thereon as hereinafter provided. and together with the right to use all
adjoining parking areas, driveways, sidewalks and means of ingress and egress.
SAID lease shall contain the following terms, conditions and restrictions:
I. LEASED PRE:-VUSES. The leased premises shall include the building above described.
2. TER.\1, The lease shall extend for a term offour and one-half(4 1/2) years. Said term
to begin the 30th day of May, 1997 and to end the 31st day of January, 2002.
3. SEC1..:'RITY DEPOSIT: Tenant shall deposit with Landlord at the time of execution of
this agreement a security deposit in the amount of Five Thousand and 00/100 Dollars ($5,000.00)
to be held by Landlord to secure the faithful compliance of Tenant with all terms and conditions
of this agreement in accordance with the provisions of the Pennsylvania Landlord and Tenant Act
of 195 I:as amended.
4. RENTAL. The rental for the term hereof shall be Seventy-Eight Thousand and 00/100
Dollars (578,000.00). payable in monthly installments of Six Thousand Five Hundred and 00/100
Dollars (S6,500.00), first payment due the I st day of June, 1997 and thereafter on the I st day of
every month.
5. USE. The premises may be used for the operation of an inn, restaurant and bar. With
the written consent of Landlord, which shall not be unreasonably witheld, the premises may be
used for any other lavvful purpose not in conflict with municipal zoning regulations which will
make void or voidable any insurance on the leased premises.
6. UTILITIES. Tenant shall pay all utility charges including but not limited to electricity,
gas, waste removal. sewer and water.
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and necessary for the operation of its business Any equipmem. trade and other fixtures which
become attached to the propeny shall become the propeny of Landlord upon expiration or
termination of this lease. T enal1l shall repair any damage to the leased premises by the installation
or removal of such alterations, equipment and :ixtures.
13. CASC..IJ. TY DA.\(AGE. (fthe demised premises shall be panially damaged by fire or
other cause without the fault or neglect of Ten ant, Tenam's servants, employees. agems, or
customers in the premises. the damages shall be repaired by and at the expense of Landlord and
the base rent umil such repairs shall be made shall be apportioned according to the part of the
demised premises which is usable by T enal1l. But if such partial damage is due to the fault or
neglect of Ten am, Tenam's servants, employees, agents, or customers in the premises, the
damages shall be repaired by Tenant and there shall be no apponionmem or abatement of rent. No
penalty shall accrue for reasonable delay which may arise by reason of adjustment of insurance on
the pan of Landlord and lor Tenant, or any other cause beyond Landlord's comrol.
If the demised premises or the building of which they are a pan are so damaged that.
Landlord shall decide to demolish it and/or rebuild it, Landlord may, within ninety (90) days after
such fire or other cause, give Tenant a notice in writing of such decision, and thereupon the term
of this lease shall expire by lapse of time upon the third day after such notice is given, and Tenant
shall vacate the demised premises and surrender the same to Landlord.
This lease shall not be deemed terminated by reason of total or partial destruction except
as herein provided and T enam hereby expressly waives any statutory provisions concerning such
rig;hts, if anv.
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14. COrvrPLIAi"lCE WITH LAWS. Tenant will promptly comply with all applicable and
valid laws, ordinances and regulations of Federal, State, Coumy, Municipal or other lawful
authority pertaining to the use and occupancy of the leased premises. In the evem any repairs or
modifications may be determined as necessary under the Americans with Disabilities Act, Tenant
and Landlord will share equally in modifications and shall become the propeny of Landlord.
] 5. ASSIGNMENT Ai'\T]) SlJ13LETTI0iG. Tenant shall not have the right to assign or
sublease the whole or any pan of the demised premises without the prior written consent of
Landlord.
16. BAJo.iKRUPTCY. Should Tenant make an assignmem for benefit of creditors, or be
adjudicated bankrupt, such action shall constitute a breach of this lease for which Landlord, at its
opinion, may terminate all rights of Ten ant or its successors in imerest under this lease,
17. EMIN'ENT DOMAIN. If all the leased premises and common areas is taken under the
power of eminent domain or conveyed under threat of condemnation proceedings, or if only a
pan of such premises or common areas is so taken or conveyed and Tenant shall determine that
the remainder is inadequate or unsatisfactory for its purposes, which determination shall not be
7. TAXES. Tenant shall be responsible for payment of all real estate taxes levied on the
premises, Tenant shall pay a monthly sum into a detined escrow account in an amount agreed to
by Landlord and Tenant sufficient to pay all real estate taxes, charges and insurance as they come
due.
8. lNSL"R.-\.'\CE. Tenant shall, at all times during the term of this lease and any extensions
hereof a) purchase and maintain Public Liability Insurance, including bodily injury and property
damage coverage of not less than $1 000 000 00 per occurrence and b) purchase and maintain
Fire and Casualty Insurance including vandalism and malicious mischiefin an amount not less than
90% of replacement cost of all structures on the leased premises, and c) purchase and maintain
inventory coverage of not less than 100% of replacement cost of all inventory on the leased
premises.
Landlord shall be included as an additional insured. as its interest may appear, on all such
Insurance coverages.
Proof of all insurances as required hereunder shall be delivered to Landlord as requested
by either from time to time.
9. SIGNS. Tenant shall have the right to place such signs as are usual and incidental to
Tenant's business. Provided. however such external signs must conform with all applicable zoning
or sign regulations. Further, they must be maintained in a manner acceptable to Landlord.
10. MAlNTE:o-iA:\;CE. Tenant agrees to be responsible for all exterior maintenance of the
building and surface of the parking areas, sidewalks and driveways, as well as the.structural
soundness of the building, and all underground gas, water and sewer pipes, Tenant shall also
maintain.at its expense, exterior lighting and lawn and shrubbery located on the premises. Tenant
shall also be responsible for all interior maintenance and shall return the premises to Landlord at
the expiration of the term hereof in the same condition as at the commencement of the lease term,
ordinary wear and tear alone excepted. Tenant shall be responsible for all repairs and replacement,
as necessary for all mechanical elements including heating, air conditioning, lighting and plumbing.
All repairs and replacements shall, upon termination of the lease, become the sole property of
Landlord.
II. EQUIPMENT AL'\fD n;lU.nSHINGs. Landlord agrees to make the following
equipment and furnishings available for the use of Ten ant (See attachment) All equipment is
provided in an "as isO' condition and in the event any item fails, Landlord is under no obligation to
repair or replace same.
12. ALTERATIONS AND TRADE AND OTHER FIXTURES. Tenant shall not make
any alterations involving structural changes without securing Landlord's written consent. Tenant
may install or cause to be installed such equipment and trade and other fixtures as are reasonable
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B Landlord'; re:nedies in the event of an "enforceable detault" shall be as follows:
I. Tenant hereb~' empo\\'en any Prothonotary or Attorney of any
Court of Record to appear for Tenant in any and all actions which may be brought to
reCOver the rent due for the remainder of the term: and/or to sign for Tenant an agreement
for entering in any competent court an Amicable Action or Actions for the recovery of such
rent. and in said suits or in said Amicable Action or Actions to Confess Judgement against
Tenant for the rent due. and for the rent for tIle remainder of the term. and for interest and
costs. together with reasonable attorney's fees: and Tenant hereby expressly waives and
releases all errors and defects in entering such judgment and further waives and releases all
relief from any and all appraisemen}. stay or exemption laws, now in force or hereafter to
be passed. and also waives ,t~{ of in 'huJsiJion o~ anI' real estate that may be levied
upon to collect such rent~ . (HRL) ~ (AF) CAt (CAF)
2, Any .-\ttorney of any Court of Record of the County of Cumberland
may, at the request of Landlord. and, as the agent or the attorney of Ten ant, sign an
agreement for entry in a competent court an Amicable Action of Ejectment and confess
Judgment in Ejectment thereon for the said premises to any term. past or present, against
Tenant, and all persons claiming under Tenant, without stay of execution. or appeal, and,
for so doing, this shall be a sufficient Warrant; and, thereupon, a Writ of Possession or
such other writ as may then be appropriate may immediately issue on said Judgment, all
errors and defects in entering such Action and Judgment. or in the issuing of such Writ, or
in any proceeding thereon. or concerning the same, being hereby expressly waived by
Tenant, and by any person or persons whatsoever claiming through, by or under Tenant,
and a copy of this Lease, with any modifications thereof, being filed in the said Action, it
shall not be necessary to file the ~s wa~ of Attorney, any law or Rule of Court
to the contrary notwithstandinV~(HRL) ,(AF) ~(C.-\F)
3. At the option of Landlord. this lease shall determine. and become
null and~oi a LandJo~~may re-enter upon, and repossess, the herein demised
premises ..;v(HRL) PY (AF) CAf (C.-\F)
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C. The exercise of any remedy or remedies provided herein, by Landlord, shall not
preclude Landlord' s e:-:ercising, concurrently or successively, one or more other remedies
provided herein, or authorized bv law.
20. LA.'\fDLORQ'S COVENA,.'\lTS. Landlord covenants that he has good and marketable
title to the demised premises in fee simple absolute and that the same is subject to no leases,
tenancies. agreements. encumbrances, liens, restrictions or defects in title affecting the demised
premises or rights granted Tenant in this lease; that there are no restrictive covenants, zoning or
other ordinances or regulations applicable to the demised premises which will prevent Tenant
trom conducting its usual business.
OPER.-\ TI;,\,(j -\GREE\IE:-;T
The parties hereto, Lakeside Holding Company, hereafter Lessor. and Aurelio and Carol
Ann Fontanarosa. hereafter Lessee, in consideration or' a certain Lease Agreement by and between
the parties as weil as other good and valuable consideration agree as follows:
a) Lessee shall employ managers to insure the correct and complete business like
operation of the restaurant, inn and bar on the leased premises.
b) Lessee shall not be in default of his tax obligations such that Lessee shall have
recorded against him a judgment by the U.S. Treasury Department. the Commonwealth of
Pennsylvania or any agency or subdivision or the Commonwealth. any county, local. or school.
or other authority such as sewer and water.
c) Lessee shall not be in default of any of his personal obligations which may result in
the filing of a judgment against him and Lessee covenants that he has fully disclosed all his
creditors to Lessor.
d) Lessee shall maintain property and liability insurance, worker's compensation and
any such other insurance as the Lessor may reasonably require.
e) Lessee shall not make an assignment for the benefit of his creditors, become unable
to pay debts as they come due, file a petition pursuant to any provision of the bankruptcy code,
have file~ against him an involuntary petition in bankruptcy or petition to or apply to any tribunal
for the employment of a custodian. receiver. liquidator or trustee to dispose of any substantial
portion of his property.
f) Lessee shall employ and effectuate an accountant and accounting system as
approved by Lessor. file and pay in a timely fashion all taxes as they become due and provide
copies to Lessor in a prompt fashion and as reasonably requested.
g) Lessee shall pay into an escrow account sufficient amounts as specified and
required by Lessor for the payment of taxes and insurance as they come due.
h) Lessee shall permit any inspection of the premises as requested by the Lessor.
I) In the event that Lessee receives a notice of violation of any law, regulation,
ordinance, etc., by the United States of America, Commonwealth of Pennsylvania, County of
Cumberland, Borough of Shippensburg and any subdivision, department or agency of the
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foregoing which violation impacts in any fashion on the leased premises being utilized as an
ongoing restaurant. bar and inn operalion. the Lessee shall immediately notify Lessor and shall
cure or correct the situation within thirty (30) days.
j) Lessee shall immediately notify Lessor of the filing or initiation of a legal
proceeding in any jurisdiction could reasonably impact on Lessee' 5 ability to perform its
obligations hereunder.
k) Lessee shall tile CCC Financing Statements or extensions thereto as reasonably
requested by Lessor securing accounts recei\'able. fixtures. invemory and equipment to or for the
benefit of Lessor.
I) Lessee shall keep. maintain and display all federal. state and local licenses required
to continue the hotel. restaurant and liquor business operations,
m) Lessee shall keep and maintain, at his expense. all of the leased equipment in'
proper working order. Any problems or repairs with any piece of equipment shall be promptly
forwarded in writing to Lessor.
n) In the event of a default of this Operating Agreement by Lessee. he agrees to be
fully responsible for the payment of all legal fees and costs incurred by Lessor in enforcing its
rights under the Agreement or such other remedy or relief as may be available to it.
0) Waiver by one party of any breach of this Agreement by the other party shall not
be deemed a waiver of any subsequent similar breach or other breaches.
p) Each party has had the opportunity to have legal counsel to represent each of them
in the negotiation and preparation of this Agreement and has either been so represented or has
voluntarily chosen not to be represented. Each party has carefully read this Agreement and is
completely aware, not only of its contents, but also of its legal effect.
q) Each of the panies shall on demand or within a reasonable period thereafter.
execute and deliver any and all other documents and do or cause to be done any other act or thing
that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If
either party fails on demand to comply with the provision, that party shall pay to the other all
attorneys' fees. costs and other expenses reasonably incurred as a result of such failure
r) Modification or waiver of any provision of this Agreement shall be effective only if
made in writing and executed with the same formality as the Agreement. The failure of either
party to insist upon strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature.
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5Sl 334 3211 P.B2;B2
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W'HE~A.s, ~w"14e Ho:dinl Company, l~o, (l,l:1Cllctdl oUld Au;clio E'ornWIon and
nis wife CoIrO! ,~"eroan!) ~nle"illnto a oo:r.I:l:rcilll ,~...e c.l.d :-11y 28, ! 997; and
WHl!1U:AS, ienant r.u h&4 1!p:illc311\ ~upuu\:1I ~fll "aoo:&tod W\~ ~t mnodolU:J
~r\ht :cllIaunnt ;ooa.tod u th.ItUt~ p:<:ml.n; ~
Wdn.2AS, :"'"1~~ d~ilea \0 provide le,.,,~n'tl"/ &ccc:n:::odatic:l to Tcnmt ir. Jchl of
tho C:lI'l'elll f,r,me:u 4ttn..-Ul\')',
NOW, r"~1l0az" I:ltcncllnll:C bo :ulllllly bO<ll1d ilo~by, llw par.los hereto eO~GT..Illl
lIlld all" U {oHows:
:. The ex:atins Commtrdal !.die dated May 28, 19Q7 !. amandad to moQify ,mgnph
", R:!NTAL. &I :allOW': U'lll m:nual r~llI1 fb~ Ihe ,ttiodMll':l11, 1UB Muah :cbr'~uy 29,
:999 will lit 1Uly.1Cur 'l"AoUilllci ,$54,000) Dollars, payable in eOlltl'.!y inslaliCl:!lts of:=~ut
T:'lousa.,d Five H.\:::d.,"c:l. (S4,~OO),~.m jlay:t:ent cillO un Ml:ch ;, i 998.
2. The mod: :1carton in psngraph I lbov, lh&l1 _nly bo !or me period stuted. As ofMmb.
\, ~ 999, :he lant~l rll sl:.al: :.,,~r: to th.lIr.our.t .tlIN In the Commcre;&l Lwc dlted May 28,
1997,
), :'>10 other t=s of tile Com.":larl:ial i.=e.llC dalo:l Mey 19, :997, it'll modified 'tl)' thU
Am.nd:na::t ancl &.h~l: :em&l:l in OUlal.
l'N WITNESS '~UOF, the undmisnQd pUlie. Mve Affixed their!wlds and ;eali to
UUa N:lendr:len~ :0 CotnllWelal Lease,
wrrNESS:
l.AK!SIDE aOt.DINO CO, INC.
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Respectfully submitted,
O'BRIEN, BARIC & SCHERER
By --:;?rJL:3Mt-~
Robert L. O'Brien, Esquire
Attorney for Plaintiff
I.D. # 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
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COM~IERCIAL I.EASI~
THIS LEASE cntcred into as of the 28lh day of/vlay, 1997, by and betwccn:
LAKESIDE HOLDING COMPANY, INC., of P.O. Box 10,
Shippcnsburg, Pennsylvania, 17257, (Landlord)
and
AURELIO FONT ANAROSA and his wife CAROL ANN, CIO Rustic Inn,
105 West King Street, Shippensburg, Pennsylvania, 17257, (Tenant).
WITNESSETH: Landlord hercby leascs to Tenant and Tenant Icases from Landlord, for
thc term and upon the tcrms and conditions hcrcinaftcr sct forth, the premiscs prcsently known as
Rustic Inn, located in Shippensburg, Pcnnsylvania, togcther with thc building and other
improvements constructed thereon as hcreinafter providcd, and togcthcr with the right to use all
adjoining parking areas, drivcways, sidcwalks and mcans of ingress and egress.
SAID lease shall contain thc following terms, conditions and rcstrictions:
I. LEASED PREMISES. The leascd premises shall include the building above described.
2. TERM. The lease shall cxtend for a term of four and onc-half(4 1/2) years. Said tcrm
to begin the 30th day of May, 1997 and to end the 31st day of January, 2002.
3. SECURITY DEPOSIT: Tenant shall deposit with Landlord at the time of execution of
this agreemcnt a security deposit in the amount of Five Thousand and 00/100 Dollars ($5,000,00)
to be held by Landlord to secure the faithful compliance of Ten ant with all terms and conditions
of this a~reement in accordance with the provisions of the Pennsylvania Landlord and Tenant Act
of 1951, as amended.
4. RENTAL. The rental for the term hereof shall bc Seventy-Eight Thousand and 001100
Dollars ($78,000.00), payable in monthly installmcnts of Six Thousand Five Hundred and 00/100
Dollars ($6,500.00), first payment due the I st day of June, 1997 and thereafter on the I st day of
every month.
5. USE, The premises may be used for the operation of an inn, restaurant and bar. With
the written consent of Landlord, which shall not bc unreasonably withcld, the premises may be
used for any other lawful purpose not in conflict with municipal zoning regulations which will
make void or voidable any insurance on thc Icased premises.
6, UTILITIES. Tenant shall pay all utility charges including but not limited to electricity,
gas, waste removal, sewer and water.
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and necessary for the operation of its business, Any equipment, trade and olher fixtures which
become attached to thc property shal1 becomc the property of Landlord upon cxpiration or
termination of this lease. Tenant shal1 repair any damage to the leased premises by the instal1ation
or removal of such alterations, equipment and fixtures.
13. CASUALTY DAMAGE. If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Ten ant, Tenant's servants. employees, agents, or
customers in the premises, the damages shal1 be repaired by and at the expense of Landlord and
the base rent until such repairs shal1 be made shal1 be apportioned according to the part of the
demised premises which is usable by Tenant. But if such pal1ial damage is due to the fault or
neglect of Ten ant, Tenant's servants, employees, agents, or customers in the premises, the
damages shall be repaired by Tenant and there shal1 be no apportionment or abatement of rent. No
penalty shall accrue for reasonable delay which may arise by reason of adjustment of insurance on
the part of Landlord and /01' Tenant, or any other cause beyond Landlord's control.
If the demised premises or the building of which they are a part are so damaged that
Landlord shall decide to demolish it and/or rebuild it, Landlord may, within ninety (90) days after
such fire or other cause, give Tenant a notice in writing of such decision, and thereupon the term
of this lease shal1 expire by lapse of time upon the third day after such notice is given, and Tenant
shall vacate the demised premises and surrender the same to Landlord.
This lease shall not be deemed terminated by reason of total or partial destruction except
as herein provided and Tenant hereby expressly waives any statutory provisions concerning such
rights, if any.
14. COMPLIANCE WITH LAWS. Tenant will promptly comply with all applicable and
valid laws, ordinances and regulations of Federal, State, County, Municipal or other lawful
authority pertaining to the use and occupancy of the leased premises. In the event any repairs or
modifications may be determined as necessary under the Americans with Disabilities Act, Tenant
and Landlord wil1 share equally in modifications and shall become the property of Landlord.
15. ASSIGNJ\1ENT AND SUBLETTING. Tenant shall not have the right to assign or
sublease the whole or any part of the demised premises without the prior written consent of
Landlord.
16. BANKRUPTCY. Should Tenant make an assignment for benefit of creditors, or be
adjudicated bankrupt, such action shall constitute a breach of this lease for which Landlord, at its
opinion, may terminate al1 rights of Ten ant or its successors in interest under this lease.
17. EMINENT DOMAIN. If all the leased premises and common areas is taken underthe
power of eminent domain or conveyed under threat of condemnation proceedings, or if only a
part of such premises or common areas is so taken or conveyed and Tenant shall determine that
the remainder is inadequate or unsatisfactory for its purposes, which determination shall not be
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7. TAXES. Tenant shall be responsible for payment of all real estate taxes Icvied on the
premises. Tenant shall pay a monthly sum into a defined escrow account in an amount agreed to
by Landlord and Tenant suflicient to pay all real estate taxes, charges and insurance as they come
due,
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8, INSURANCE. Tenant shall, at alltill1es during the term of this lease and any extensions
hereof: a) purchase and maintain Public Liability Insurance, including bodily injury and propel1y
damage coverage of not less than $1.000 000.00 per occurrence and b) purchase and maintain
Fire and Casualty Insurance including vandalism and malicious mischief in an amount not less than
90% of replacement cost of all structures on the leased premises, and c) purchase and maintain
inventory coverage of not less than 100% ofrcplacement cost of all inventory on the leased
premises.
Landlord shall be included as an additional insured, as its interest may appear, on all such
insurance coverages.
Proof of all insurances as required hereunder shall be delivered to Landlord as requested
by either from time to time.
9. SIGNS. Tenant shall have the right to place such signs as are usual and incidental to
Tenant's business. Provided, however such external signs must conform with all applicable zoning
or sign regulations. FUl1her, they must be maintained in a manner acceptable to Landlord.
10. MAINTENANCE. Tenant agrees to be responsible for all exterior maintenance of the
building and surface of the parking areas, sidewalks and driveways, as well as the structural
soundness of the building, and all underground gas, water and sewer pipes, Tenant shall also
maintain at its expense, exterior lighting and lawn and shrubbery located on the premises. Tenant
shall als; be responsible for all interior maintenance and shall return the premises to Landlord at
the expiration of the term hereof in the same condition as at the commencement of the lease term,
ordinary wear and tear alone excepted. Tenant shall be responsible for all repairs and replacement,
as necessary for all mechanical elements including heating, air conditioning, lighting and plumbing.
All repairs and replacements shall, upon termination of the lease, become the sole property of
Landlord.
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II. EQUIPMENT AND FURNISHINGS. Landlord agrees to make the following
equipment and furnishings available for the use of Ten ant (See attachment) All equipment is
provided in an "as is" condition and in the event any item fails, Landlord is under no obligation to
repair or replace same.
12. ALTERATIONS AND TRADE AND OTHER FIXTURES. Tenant shall not make
any alterations involving structural changes without securing Landlord's written consent. Tenant
may install or cause to be installed such equipment and trade and other fixtures as are reasonable
~/
arbitrarily or capriciously made. then. in either event, this lease shalltcrminate effective as of the
date Tenant is required to gi\'e up the right to occupy or use any part of the leased premises or
common areas. The termination of this lease as above provided shall not operate to deprive
Tenant of the right to make any claim against the condemning authority for any damages suffered
by Tenant. but Tenant shall ha\'e no right to make any claim against Landlord because of such
termination. If this lease is not terminated as above provided. Landlord and Tenant shall agree
upon such reduction within 60 days from the date of the final award or payment for the part of the
leased premises so taken or conveyed. Landlord and Tenant shall each choose one arbitrator and
the two arbitrators so chosen shall choose a third arbitrator. The decision of any landlord and any
expense of the arbitration shall be divided equally between Tenant and Landlord.
18. ATTORNEY'S FEES. If suit is brought to enforce any covenant of this lease or for
the breach of any covenant or condition herein contained, the parties hereto agree that the losing
party shall pay to the prevailing party a reasonable attorney's fee, which shall be fixed by the
court, and court costs.
19. DEFAULT.
A. In the event of any of the following occurrences of "enforceable default".
Landlord shall be entitled to pursue one or more of the remedies set forth in Paragraph I 9B
hereof:
I. Non-payment of rent for a period often (10) days following the due
date, provided Landlord shall have given Tenant written notice of said non-payment and an
additional fifteen (15) days opportunity to cure said default in payment.
2. Breach of any of the other covenants of this lease provided that
Landlorcl. shall have given Tenant written notice of such breach and a period of thirty (30) days
within which to cure same.
3. The filing of a petition in bankruptcy, whether voluntary or involuntary,
against Tenant or Tenant's adjudication as bankrupt or insolvent in any court.
4, The appointment of a receiver or trustee in bankruptcy for Tenant.
5. The making of any assignment by Tenant for the benefit of creditors,
6, Violation of the "Operating Agreement." which is incorporated by
agreement of the parties to this Lease Agreement.
B. Landlord's rcmcdics in thc cvcnt ofan "cnforccablc default" shall bc as follows:
I. Trnant hrrchy rmpowus any Prothonotary 01' Allorncy of any
Court of Rccord to apprar for Trnant in any and all actions which may be bronght to
recover the rent due for thc remainder of the tcrm; and/or to sign for Tenant an agreement
for entering in any competcnt court an Amicable Action 01' Actions for the rccovery of snch
rent, and in said suits 01' in said Amicable Action or Actions to Confcss Judgement against
Tenant for the rcnt dl/c, and for the rcnt for the rcmaindcr of thc tcrm, and for interest and
costs, together with reasonable attol'l1ey's fces; and Tenant hereby cxpressly waives and
releases all errors and defects in entering such judgment and furthel' waives and releases all
relief from any and all appraisement, stay or exemption laws, now in force 01' hcreafter to
be passed, and also waives th, (of in~ion or! aIry real estate that may be levied
upon to collect such rental' . (IIRL) ,(AF) ~(CAF)
2, Any Allorney of any Court of Record of the County of Cumberland
may, at the request of Landlord, and, as the agent 01' the attorney of Tenant, sign an
agreement for entry in a competent court an Amicable Action of Ejectment and confess
Judgment in Ejectment thereon for the said premises to any term, past or present, against
Tenant, and all persons claiming under Tenant, without stay of execution, 01' appeal, and,
for so doing, this shall be a sufficient Warrant; and, thereupon, a Writ of Possession or
such other writ as may then be appropriate may immediately issue on said Judgment, all
errors and defects in entering such Action and Judgment, or in the issuing of such Writ, or
in any proceeding thereon, or concerning the same, being hereby expressly waived by
Tenant, and by any person or persons whatsoever claiming through, by or under Tenant,
and a copy of this Lease, with any modifications thereof, being liIed in the said Action, it
shall not be necessary to liIe the ~~s wa~ of Attorney, any law or Rule of Court
to the contrary notwithstandin~(HRL) , (AF) .c.a:..(CAF)
3, At the option of Landlord, this lease shall determine, and become
null and vo~tJ Landlo~ay re-enter upon, and repossess, the herein demised
premises~(HRL) ~(AF) CA{ (CAF) .
C. The exercise of any remedy or remedies provided herein, by Landlord, shall not
preclude Landlord's exercising, concurrently or successively, one or more other remedies
provided herein, or authorized by law.
20. LANDLORD'S COVENANTS. Landlord covenants that he has good and marketable
title to the demised premises in fee simple absolute and that the same is subject to no leases,
tenancies, agreements, encumbrances, liens, restrictions or defects in title affecting the demised
premises or rights granted Tenant in this lease; that there are no restrictive covenants, zoning or
other ordinances or regulations applicable to the demised premises which will prevent Tenant
from conducting its usual business.
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21. QUIET ENJOYJ\1ENT. Tenant upon paying the rent and performing the covenants
and agreements of this lease shall quietly have, hold and enjoy the dcmised prcmises and all rights
granted Tenant in this lease during the term thereof and extensions thereto, if any.
22. SUBORDINATION. Tenant hereby agrees that its leasehold interest hereunder is
subordinate to any mortgages now on, or hereafter to be placed on, the premises leased
hereunder.
This Subordination Agreement shall be self-operative and no further instrument or
certificate of subordination shall be required for Tenant.
23. NOTICES. Any notices required or permitted hereunder shall be in writing and
delivered either in person to the other party or the other party's authorized agent, or by United
States Cel1ified Mail, Return Receipt Requested, postage fully prepaid, to the addresses set forth
hereinafter, or to such other address as either party may designate in writing and deliver as herein
provided.
Landlord:
Lakeside Holding Company, Inc.
P.O. Box 10
Shippensburg, Pennsylvania 17257-0010
Tenant:
Aurelio Fontanarosa
C/O Rustic Inn or Bella Napoli
105 West King Street
Shippensburg, Pennsylvania 17257
24. RECORDING. This lease agreement shall not be filed for public record by any party
hereto.
25. OPERATING AGREEMENT. The Landlord and Tenant agree that the terms and
conditions of the parties' "Operating Agreement" are incorporated herein and that a default of any
of the terms and conditions of the "Operating Agreement" shall constitute an "enforceable
default" and all remedies of the Landlord are available.
26. COMPLETE AGREEMENT. This lease contains a complete expression of the
agreement between the parties and there are no promises, representations or inducements except
such as are herein provided.
27. NOTICE OF VIOLATIONS. Landlord represents and warrants that is has received no
notices that the premises are in violations of any laws, ordinances, and/or regulations relating to
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OPERA TING AGREEI\IENT
The parties hereto, Lakeside Holding Company, hereafter Lessor, and Aurelio and Carol
Ann Fontanarosa, hereafter Lessee, in consideration of a cel1ain Lease Agreement by and between
the parties as well as other good and valuable consideration agree as follows:
a) Lessee shall employ managers to insure the correct and complete business like
operation of the restaurant, inn and bar on the leased premises.
b) Lessee shall not be in default of his tax obligations such that Lessee shall have
recorded against him ajudgment by the U.S. Treasury Department, the Commonwealth of
Pennsylvania or any agency or subdivision of the Commonwealth, any county, local, or school,
or other authority such as sewer and water.
c) Lessee shall not be in default of any of his personal obligations which may result in
the filing of a judgment against him and Lessee covenants that he has fully disclosed all his
creditors to Lessor.
d) Lessee shall maintain property and liability insurance, worker's compensation and
any such other insurance as the Lessor may reasonably require.
e) Lessee shall not make an assignment for the benefit of his creditors, become unable
to pay debts as they come due, file a petition pursuant to any provision of the bankruptcy code,
have filep against him an involuntary petition in bankruptcy or petition to or apply to any tribunal
for the employment of a custodian, receiver, liquidator or trustee to dispose of any substantial
portion of his property.
f) Lessee shall employ and effectuate an accountant and accounting system as
approved by Lessor, file and pay in a timely fashion all taxes as they become due and provide
copies to Lessor in a prompt fashion and as reasonably requested.
g) Lessee shall pay into an escrow account sufficient amounts as specified and
required by Lessor for the payment of taxes and insurance as they come due.
h) Lessee shall permit any inspection of the premises as requested by the Lessor.
I) In the event that Lessee receives a notice of violation of any law, regulation,
ordinance, etc" by the United States of America, Commonwealth of Pennsylvania, County of
Cumberland, Borough of Shippensburg and any subdivision, department or agency of the
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foregoing which violation impacts in any fashion on the leased premises being utilized as an
ongoing restaurant, bar and inn operation, the Lessee shall immediately notify Lessor and shall
cure or correct the situation within thirty (30) days.
j) Lessee shall immediately notity Lessor of the filing or initiation ofa legal
proceeding in any jurisdiction could reasonably impact on Lessee's ability to perform its
obligations hereunder.
k) Lessee shall file UCC Financing Statements or extensions thereto as reasonably
requested by Lessor securing accounts receivable, fixtures, inventory and equipment to or for the
benefit of Lessor.
I) Lessee shall keep, maintain and display all federal, state and local licenses required
to continue the hotel, restaurant and liquor business operations.
m) Lessee shall keep and maintain, at his expense, all of the leased equipment in
proper working order. Any problems or repairs with any piece of equipment shall be promptly
forwarded in writing to Lessor.
n) In the event of a default of this Operating Agreement by Lessee, he agrees to be
fully responsible for the payment of all legal fees and costs incurred by Lessor in enforcing its
rights under the Agreement or such other remedy or relief as may be available to it.
0) Waiver by one party of any breach of this Agreement by the other party shall not
be deemed a waiver of any subsequent similar breach or other breaches.
p) Each party has had the opportunity to have legal counsel to represent each of them
in the ne.sotiation and preparation of this Agreement and has either been so represented or has
voluntarily chosen not to be represented. Each party has carefully read this Agreement and is
completely aware, not only of its contents, but also of its legal effect.
q) Each of the parties shall on demand or within a reasonable period thereafter,
execute and deliver any and all other documents and do or cause to be done any other act or thing
that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If
either party fails on demand to comply with the provision, that party shall pay to the'other all
attorneys' fees, costs and other expenses reasonably incurred as a result of such failure
r) Modification or waiver of any provision of this Agreement shall be effective only if
made in writing and executed with the same formality as the Agreement. The failure of either
party to insist upon strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature,
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s) Lessee will keep and follow all rules and regulations of the all regulatory agencies,
including, but not limited to, P A Department of Ag, P A Liquor Control Board and Borough of
Shippensburg, Lessee shall be responsible for any fines or penallies assessed against Lessor or
Lessee for failure to conform to the aforesaid rules and regulations.
t) Lessee shall abide by and enforce the policies and rules set forth in the Rustic Inn
Employee Handbook and as amended form time-to-time.
In Witness Whereof, the above named parties intending to be legally bound have hereby
signed this Agreement, this 'Jot' day of /"fa y , 1997.
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WITNESS
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BY: H, Ric Luhrs, President
(SEAL)
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AU LIOFONTA~AROSA
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WHlllUlAS. Laktti4e Holdin. Company, Inc. (I,andlotd) and A\lI'olio E'onlllll&Io." and
tlls wife CllO! Ann (Tenant) entered Into a co:nm~ciw l~lIlIe dated MA)' 28, 1997; end
WHP.R.E\AS, Tenmt hu had slcn1l'icanl unu~PUc\~~ com &faoeiMoci will1 tho mnoclclU111
of Ihe rc8tturanllocated al thtlo"",4 p~mln8j wl
WHEP.'BAS.l.andlorl1 dct\re8 10 provide leml'Ma!)' accommodation 10 Tenant u. ii&ht of
11I0 currelll lIr.wltJ dltf\cUity.
NOW, THllaEPOa!, Inlfru1\n& to bo ltiW_Uy bound hOl1by, the partie' hereto covor..enl
and apo~ as follow,:
1. Tho existing Commt!CiAl Leu- dated May 28, \ P~71A arrlllllded to modifY pftrap1ph
", RENTAL, II follOW'; thB ar.n\llU rsnUtl ftl~ Ihe period Man:h I, UPS th.lv;ush Fc'or'JU)' 29,
1999 will be }Iilly.four 'l'hOIlIM1d ($54,000) Dollsn, payable;n monthly Installtn:nt! ofFolI1
Tnollsanc:l Five Hunc:l:cd ($4,500), first payment d\l~ un Mll'ch 1, 1998.
2, The mol1lficat\on in Pllttil'aph llbavu ~hllll cnly be far the paioQ ,toted, AI ofMaroh
l. !999, the rontml feo ,hall "vert to tilt &n".Olll1t ataled in the CommCl'c;al1.euc dated May 28.
1997,
3, No other IcnllS of the Co=~cioll.nJj. Wl\O(! M'y 2B, 1997, ll11lmo:lil1od 0)' thia
Am*ndme:lt and Illali rcmr.in in Of'!'CIOI.
IN W1Th'BSS WHSMOP, the \Illduai!lf\1ld pll1iel hllvc affixed their hand.! and seala to
thii Amcndmanl to COlTl./Mlolel Leaso,
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Exhibit C
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February 11, 1998
Bella Napoli Italian Cuisine
ATTN: Aurelio Fontanarosa
105 W. King Street
Shippensburg, PA 17257
Dear Aurelio:
This letter will serve to notify that you are in default of our commercial
lease dated May 28,1997, according to paragraph 19, Item A1. More
specifically, this is in regard to the lease payment due on February 1, 1998
and payable by February 10, 1998, You now have fifteen (15) additional
days in which to cure the said default in payment.
Sincerely,
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Lakeside Holding Company
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ps: We have not received your January lease payment either,
and it wi 11 be in your best interest to have this taken care
of inrnediately.
P.O. Box 10 . Shippensburg, PA 17257 . Tel: (717) 532-2136 . FAX: (717) 532-7299
H, Rle WHRS
PRESIDENT
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June 11, 1998
Bella Napoli Italian Cuisine
ATTN: Aurelio Fontanarosa
105 W. King Street
Shippensburg, PA 17257
Dear Aurelio:
This letter will serve to notify that you are in default of our commercial
lease dated May 28, 1997, according to paragraph 19, Item A.1, More
specifically, this is in regard to the lease payment due on June 1, 1998 and
payable by June 10, 1998. You now have fifteen (15) additional days in
which to cure the said default in payment.
Sincerely,
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H. Ric Luhrs, President
Lakeside Holding Company
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P.O. Box 10 . Shippensburg, PA 17257 . Tel: (717) 532.2136 . FAX: (717) 532-7299
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LEGAL DESCRIPTION
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ALL THAT CERTAIN TRACT of land with improvements erected thereon situate in the
Borough of Shippensburg, Cumberland County, Pennsylvania, more fully bounded and
described as follows:
BEING situate on the Southwest corner of West King Street and North Fayette Street
with frontage along West King Street of 105 feet and a frontage along the property now
or formerly of John L. Masney and Cecilia P. Masney, of 111 feet with an even depth of
160 feet along the western boundary, which property is owned now or formerly by
Donald A Fry and Ralma C. Fry, and an even depth of 160 feet along North Fayette
Street. Being improved with a restaurant building known as 105 West King Street,
Shippensburg, Pennsylvania.
BEING the same premise which George V. Shoemaker, by deed dated and recorded
even date herewith, granted and conveyed unto Lakeside Holding Company, Inc.,
Mortgagor herein.
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RUSTIC INN MANAGEMENT AND PURCHASE
$4,500.00 Lo the amount needed to service the initial purchase
price of the entire facility.
substantial management contributions are necessary to generate
the debt service amount.
An additional capital contribution to upgrade the facility
would permit greater income generation by:
a) increasing the number of rooms available for
occupancy;
bl improving kitchen efficiency;
c) increasing liquor profits by providing improved bar
space.
4. An estimated $100,000.00 may be required for capital
improvements.
5. Aurelio and Carol Ann believe that, if they are paying the
purchase money mortgage through their labor, they should be
ultimate owners of the facility.
SUGGESTED PROGRAM
a) Restaurant, Bar and rental units make the mortgage payments,
under Aurelio and Carol Ann's management.
b) At the end of paying the purchase mortgage, Mr. Luhrs' other
capital investment in the form of capital improvements is
purchased at cost plus interest but at a reduced payment
amount.
c) There is a formal installment sales contract with the
percentage of equity ownership transferred to Aurelio and
Carol Ann in the same proportion as the reduction in principal
debt.
d) If Aurelio and Carol Ann quit in the first five years, their
equity must be resold to Mr. Luhrs.
After five years, Aurelio and Carol Ann would be able, if they
wish, to purchase the sole title by refinancing, paying off
the balance of the purchase money mortgage and capital
improvements.
J?/aintiff.
EXHIBIT
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LAKESIDE HOLDING COMPANY, : IN THE COURT OF COMMON PLEAS
INC., : OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
: CIVIL ACTION. LAW
98-3550 CLvi] '('cnn
AURELIO FONTONAROSA and :NO. CIVIL 1998
CAROL ANN FONTONAROSA,
husband and wife,
Defendants
WRIT OF POSSESSION
Commonwealth of Pennsylvania )
)
County of Cumberland )
To the Sheriff of
County
(1) To satisfy the judgment for possession in the above matter you are directed to
deliver possession of the following described property to Lakeside Holding Company,
Inc. c/o Tricia Lacy, Esq.
(2) To satisfy the costs against Aurelio Fontonarosa and Carol Ann Fontonarosa, you
are directed to levy upon any property of same and sell his interest therein.
Costs: $29.50 Pd. Atty. O'Brien
1. 00 County
r"rt-; c:. R T rmg
Name of Prothonotary (Clerk)
...a~~Ad-
Q . ~-Pt' u
(Deputy)
Seal of the Court
Date June 25, 1998
0' BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
17 West South Street
Carlisle, PA 17013
(717) 249-6873 Attorney for Plaintif
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LAKESIDE HOLDING COMPANY,
INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. CIVIL 1998
1'8- 3:'-So
Vs.
Plaintiff
AURELIO FONTONAROSA and
CAROL ANN FONTONAROSA,
husband and wife,
Defendants
PETITION TO STRIKE JUDGMENT
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REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my
right to notice and hearing prior to the entry of judgment. I petition the court to strike
the jUdgment on this ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and
correct. I understand that false statements herein are made subject to the penalties of
18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities.
Notice of the hearing should be given to me at:
BellaNapolj
105 West King Street
Shippensburg, Pennsylvania 17257
(717) 530-8959
AURELIO FONTONAROSA
CAROL ANN FONTONAROSA
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LAKESIDE HOLDING COMPANY,
INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
AURELIO FONTANAROSA and
CAROL ANN FONTANAROSA,
husband and wife,
DEFENDANTS
98-3550 CIVIL TERM
IN RE: CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this -1L day of August, 1998, pursuant to Pa. Rule of Civil
Procedure 2973.3(c)(1), we find that defendants voluntarily, intelligently and knowingly
waived the right to notice and hearing prior to entry of judgment.
)/
By the cOU:' /' J
. .-.;. II
~lV/
Edgar B. Bayley, J.
)
Robert O'Brien, Esquire
For Plaintiff
e <1-':',v /JY1.-t:<-....&,e- 'i' / I ;:;, I ~ t- ,
..-&. ~
Aurelio Fontanarosa, Pro se
Carol Ann Fontanarosa, Pro se
1578 Buttercup Drive
Chambersburg, PA 17201
:saa
LAKESIDE HOLDING COMPANY,
INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF
V.
AURELIO FONTANAROSA and
CAROL ANN FONTANAROSA,
husband and wife,
DEFENDANTS
.'
98-3550 CIVIL TERM
IN RE: CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY
BEFORE BAYLEY. J.
OPINION AND ORDER OF COURT
BAYLEY, J., August 11, 1998:--
Defendants, Aurelio and Carol Ann Fontanarosa, husband and wife, entered
into a commercial lease dated May 28, 1997, with plaintiff, Lakeside Holding
Company, Inc. The lease is for the Rustic Inn in Shippensburg, Cumberland County.
The term is four and one-half years through January 31, 2002, with rental payments of
$6,500 per month. Following the execution of the lease, defendants operated a
restaurant on the properly, changing the name to Bella Napoli. On March 17, 1998,
the parties entered into an amendment to the lease that provides for monthly rental
payments between March 1, 1998, through February 28, 1999, at a reduced $4,500
per month. All other provisions of the lease remained in effect. The lease under the
heading "Landlord's remedies in the event of an 'enforceable default' shall be as
follows," sets forth in bold type:
1. Tenant hereby empowers any Prothonotary or Attorney of
any Court of Record to appear for Tenant in any and all actions
~
98-3550 CIVIL TERM
which may be brought to recover the rent due for the remainder of
the term; and/or to sign for Tenant an agreement for entering In any
competent court an Amicable Action or Actions for the recovery of
such rent, and In said suits or In said Amicable Action or Actions to
Confess Judgement [sic] against Tenant for the rent due, and for
the rent for the remainder of the term, and for Interest and costs,
together with reasonable attorney's fees; and Tenant hereby
expressly waives and releases all errors and defects in entering
such Judgment and further waives and releases ail relief from any
and all appraisement, stay or exemption laws, now in force or
hereafter to be passed, and also waives the right of Inquisition on
any real estate that may be levied upon to collect such rental. _
(HRL) _ (AF) _ (CAF)
2. Any Attorney of any Court of Record of the County of
Cumberland may, at the request of Landlord, and, as the agent or
the attorney of Tenant, sign an agreement for entry in a competent
court an Amicable Action of Ejectment and confess Judgment in
Ejectment thereon for the said premises to any term, past or
present, against Tenant, and all persons claiming under Tenant,
without stay of execution, or appeal, and, for so doing, this shall be
a sufficient Warrant; and, thereupon, a Writ of Possession or such
other writ as may then be appropriate may immediately issue on
said Judgment, all errors and defects in entering such Action and
Judgment, or in the Issuing of such Writ, or in any proceeding
thereon, or concerning the same, being hereby expressly waived by
Tenant, and by any person or persons whatsoever claiming through,
by or under Tenant, and a copy of this Lease, with any modifications
thereof, being filed in the said Action, it shall not be necessary to
file the original as Warrant of Attorney, any law or Rule of Court to
the contrary notwithstanding. ~ (HRL) _ (AF)
_ (CAF)
3. At the option of Landlord, this lease shall determine, and
become null and void, and Landlord may re-enter upon, the
repossess, the herein demised premises. _ (HRL) _ (AF) _
(CAF)
In each of the three locations provided for the initialling of those provisions by the
parties, the initials of each party are on the lease.
On June 1, 1998, plaintiff sent written notice to defendants of their default in
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...
98-3550 CIVIL TERM
required rental payments, with fifteen days to cure the default.1 On June 25, 1998,
plaintiff entered a confession of judgment in ejectment, obtained a writ of possession
and took possession of the subject property upon the default by the lessees for rent
past due in the amount of $17,000. Pa. Rules of Civil Procedure 2970 through 2976
under the title CONFESSION OF JUDGMENT FOR POSSESSION OF REAL
PROPERTY provides at Rule 2973.3(b):
A defendant who has been given notice pursuant to Rule 2973(a)
may file with the sheriff a petition to strike the judgment in the form
provided by Rule 2967. The petition shall be limited to the issue
whether the defendant voluntarily, intelligently and knowingly waived the
right to notice and hearing prior to the entry of the judgment. The
defendant may include in the claim a demand for a prompt hearing.
The sheriff shall immediately notify the plaintiff of the filing of the petition.
The Fontanarosas moved to strike the judgment pursuant to Rule 2973.3(b), and we
conducted a hearing pursuant to Rule 2973.3(c).
Aurelio Fontanarosa, and an attorney who was with him, met with the principals
of Lakeside Holding Company, Inc. in April, 1997, regarding Fontanarosa leasing the
Rustic Inn. Plaintiff made a proposal and a few days later the attorney responded
with a written counter proposal. The attorney suggested that the Fontanarosas'
payments under a lease should not be delinquent until 90 days or, alternatively, half
payments would be due in the summer, but a purchase money mortgage would have
1. There had been prior written notices of default sent to defendants on
February 11, 1998, and March 13, 1998, which led to the amendment to the lease
dated March 17, 1998, that reduced the monthly rent for a limited time.
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98-3550 CIVIL TERM
to be current by March 31st of each year.2 Plaintiff's representative told the attorney
that there had been great difficulty in removing the prior defaulting lessee of the
property, and that any lease would have to contain a provision aI/owing for immediate
possession upon a default in rent. A month later, Aurelio Fontanarosa came to
plaintiff's place of business. He told plaintiff's representative that he and his wife had
read and understood a lease prepared by plaintiff, Defendant signed the lease dated
May 28, 1997, and initialed each page. He then took the lease to his wife who did
the same.
Aurelio Fontanarosa testified that he and an attorney met with the prinCipals of
Lakeside, Inc. in April, 1997, and discussed a proposal to lease the Rustic Inn. He
testified that he knew the president of Lakeside Holding Company, Inc., and that this
was a "friendly transaction." Defendant testified that the attorney, who was a friend,
provided him advice as a favor, and that he never paid a legal fee. Fontanarosa
testified that he never reviewed the actual lease with the attorney before he and his
wife signed it and initialed the confession of jUdgment clause that was set forth in
bold type in the document. He testified that he did not understand the significance of
the confession of judgment clause, although he knew that plaintiff had difficulty in
ejecting the previous lessee after a default in rent. Fontanarosa stated that he and his
wife had previously leased properly, although it was a "simple lease." Neither his wife
2. The restaurant business in Shippensburg decreases during each summer
because there are fewer students at Shippensburg University than during the main
school year.
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98-3550 CIVIL TERM
nor the attorney were called to testify. Fontanarosa testified that he does not
understand English that well. He represented himself in this proceeding. Although
he speaks with an accent, we had no difficulty understanding him. He did not appear
to have any difficulty understanding these proceedings.
Pursuant to Pa. Rule Civil Procedure 2973.3(c)(1), plaintiff must prove by a
preponderance of the evidence that defendants voluntarily, intelligently and knowingly
waived the right to notice and hearing prior to the entry of jUdgment. In that regard
(1) the confession of judgment clause in the lease dated May 28, 1997, was in bold
type as contrasted to all other paragraphs in the lease, (2) defendants executed the
lease, each page was initialed, and they each initialed the three subparagraphs of the
confession of judgment clause, (3) Aurelio Fontanarosa told a representative of
Lakeside Holding Company, Inc. that he understood the provisions of the lease, (4)
he knew that plaintiff had difficulty in ejecting the prior lessee of the Rustic Inn who
had defaulted on rent, (5) defendants had prior experience in leasing a property, (6)
they had legal advice in negotiating thie lease, (7) through an attorney, they submitted
a written proposal to plaintiff for a default provision that did not include a confession
of judgment clause, which proposal plaintiff rejected, (8) defendants knew why it was
rejected, and (9) defendants felt that the lease, as executed, represented an excellent
opportunity for them to operate a successful business. We are satisfied that plaintiff
has met its burden of proof. Therefore, the following order is entered.
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