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GOI,DIIEltG, KATZMAN & SIIlI'MAN, I',C.
32ll Market Street, Strawberry 5'1"'''''' 1',0, Ik.. 126H
Harrisburg, I'A 17IUH,I26H
(717) 234,4161
Attorney I.D, #3172(J
Attorneys (or I'lainti((
GRACE BOYER,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
C:i',-,\l~/2 rl
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NO.
qp -teJI/()
JAMES M, BACH,
DEFENDANT
JURY TRIAL DEMANDED
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 attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you, You are warned that if you fail to do so
the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any
other claim or relief requested by the Plaintiff, You may lose money or property or
other rights important to you,
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, If
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3 I 66
4, At Defendant's insistence, Plaintiff paid a sccllrily deposit to Defendant
of $2, 200,00 and paid all relll ill adv;lIlce for the filII olle-~'('ar tcrm of the lease of
$ 13,200,00, which resulted in a total payment in advance to Defendant of
S 15,400,00,
5, The lease term, in accordance with the tenns of the lease, was to begin
on April I, 1998, and was to end on March 31, 1999.
6, Shortly after entering into the lease and before moving into the
property, Plaintiff's situation changed and she no longer needed to rent the property
from the Defendant.
7, Plaintiff, in mid-May 1998, advised Defendant verbally and in writing
through legal counsel that she no longer needed to or desired to move into the
property and that she desired the Defendant to undertake efforts to find another
tenant for the property.
8, In those discussions, Plaintiff gave Defendant permission to locate a new
tenant, which Defendant indicated that he would do and Defendant, in said
discussions, led Plaintiff and her counsel to believe that a substantial portion of the
monies paid in advance would be returned if a new tenant were obtained,
2
9, Plaintiff bdieves th~1 Defl'ndant did, in fact, obtain a new tenant for the
property beginning in July 1998 at ~ monthly rental no less than that which Plaintiff
was to pay of $ 1,1 00,00 per 1110nlh.
10, Contrary to discussions between the parties, Defendant has only offered
to return a very small portion of the monies paid despite thc fact that Defendant has
been receiving double payments from a new tenant starting with the month of July
1998,
II, Plaintiff has asked Defendant for the return of her rental payments for
the month of July 1998 through the end of the lease, March 31, 1999, with
appropriate credits as discussed by the parties, but Defendant has refused to do so,
12. Plaintiff has also now asked for the return of her security deposit of
$2,200,00, but Defendant refuses to do so, claiming that he is entitled to keep the
entire deposi t under the terms of the lease,
13, Plaintiff was and is willing to pay all lost rent incurred by the Defendant
and to pay any appropriate charges or credits to which Defendant is entitled, but
Defendant, in response, has unreason~bly attempted to keep monies to which he is
not entitled and is attempting to obtain a windfall from the transaction, ContralY to
earlier discussions with Plaintiff and her counsel.
3
COUNT I . BREACH OF CONTRACT
14, Paragraphs 1-13 above arc hereby incorporated by reference as if fully
set forth herein,
15, By reason of the aforesaid, Defendant is in breach of the contract in that
he has kept monies paid to him under the lease to which he is not entitled by reason
of the temlS of the lease and by reason of the agreement reached between the parties.
16, The amount improperly kept by the Defendant is $ 12,1 00,00,
representing the security deposit of $2,200,00 and rental payments for the month of
July 1998 through March 1999 totaling $9,900,00,
17, Plaintiff is willing to credit against the monies to be returned any
appropriate charges or credits to which the Defendant is otherwise entitled or to
which Plaintiff has indicated a willingness to grant.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount
of $12,100,00 minus any appropriate credits, along with interest from July I, 1998,
at the legal rate and costs of suit.
COUNT II . UNIUST ENRICHMENT
18, Paragraphs 1-13 above are hereby incorporated by reference as if fully
set forth herein,
4
19, By reason of the aforesaid, to the extent Plaintiff is not ('ntitled to
contractual recovery, Plaintiff is entitled to judgment against Defendant in that the
Defendant has been unjustly enriched at the expense of the Plaintiff, Defendant's
unjust enrichment results from his receiving rent from a third party for the months of
July 1998 through the present time while keeping rent paid in advance by the
Plaintiff for those months after Defendant had received Plaintiff's permission to find
another tenant in order to reduce her damages and had led Plaintiff and her counsel
to believe credit would be given for rent received from a new tenant.
20, The amount that Defendant has been unjustly enriched at the expense
of the Plaintiff is $9,900,00 for double rental received by the Defendant and
$2,200,00 representing the security deposit received by the Defendant.
21, By reason of the aforesaid, Plaintiff is entitled to judgment in the
amount of $12,000,00 minus any appropriate credits,
WHEREFORE, Plaintiff demands judgment against Defendant for the sum of
$12,000,00, along with interest at the legal rate from July I, 1998, minus any credits
to which Defendant is otherwise entitled and costs of suit.
COUNT III. UNJUST RETENTION OF SECURITY DEPOSIT
22, Paragraphs 1-13 above are hereby incorporated by reference as if fully
set forth herein,
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23, Defendant has improperly failrd to return Plaintiff's security deposit in
the amount of $2,200,00 in violation of 68 P,S, *250,512, thereby entitling Plaintiff
to double damages under said statute in the amount of $-1,-100.00.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount
of $4,400,00, along with interest at the legal rate and costs of suit.
Respectfullv submitted,
GOLDBERG, KATZMAN & SHIPMAN, P,C,
Date: i'
By: \'. .,
J, Jayj:ooper, Esquire
320 Market Street, Strawberry Square
1',0, Box 1268
Harrisburg, pA 17108-1268
(717) 23-1-4161
Attorney 1.0, #31720
Attorneys for Plaintiff
10769,t
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This Agreement
Madc this hi day of AnriI,1m bctwccn Jamcs M, Rneb, hcrcinaftcr stylcd thc
party of th~ first part, and Grace J. M. Bo)'er, hcreinaftcr stylcd thc party of thc sccond
part,
WITNESSETH, that Ihc said party of thc first part, in considcration of thc rcnt
and covcnants hcrcinaftcr mcntioncd, doth dcmisc and Icasc unto thc said party of thc
sccond part to be uscd as a rcsidcntial dwclling pIacc, thc prcmiscs situatcd in thc County
ofCunlbcrland and in thc Commonwcalth ofPcnnsylvania, dcscribcd as follows:
4355 Vallcy Road Enola Pcnnsylvania 17025
TO HAVE AND TO HOLD unto thc said party of thc sccond part, subject to the
. .
conditions of this agreement for die term bcginning on the .Lit day of AJuiI, llill, and
ending on thc Jht day of March, ~,
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 one thousand one hundrcd dol1ars ($1.1 00.00), payable on the first day of each
month for the duration of the term, Any rent not paid on the first day of each month
incurs a ten percent (10%) penalty,
AS 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, viz:
The said premises are to bc kept and maintaincd in as good repair and condition as
at present and at the expiration of this lease, thcy 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 tcrm are to be removed, and in case of
failure to remove the same the party of thc first part may collcct as rent due and in arrears
double the cost of removal; the water, lighting or other service for the use of the
occupants of the said premiscs furnished by any public service company during the said
term shall be paid for by the said party of thc 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 prcmises contrary to the conditions of the
policies of insurance upon the buildings thereon whereby the !laZard may be increased or
the insurance invalidated; neither the whoIc nor any portion of the said premises shall be
sublet, nor shall this lcase or interest therein be assigned, nor shall the party of the second
part remove or attempt to remove from said prcmises during the tcrm of this lease,
2
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without the written consent of the said party of the first part; and no unlawful business
shall at any time be carned on upon said premises,
The party of the first part expressly reserves the right to entcr upon thc premises at
reasonable times for the purpose of m'aking neccssary inspection, repairs, or to show the
samc to prospcctive purchascrs or lessees, and may display "for rcnt" or "for sale" cards
thereon,
The removal of any goods from the premises, whether by day or by night, without
the written consent of the party of the first party, shall be deemed a clandcstine and
fraudulent rcmoval and such goods shall remain liable to distrcss for a pcriod of thirty
(30) days aftcr such removal whcrever thcy may be found,
If default shall be made in the payment of any part of the said rcnt aftcr thc same
becomes due, or in case of a brcach or evasion or any attempt to break or evadc any of the
covenants or conditions of this agrecmcnt, the entire rcnt rcscrvcd for the full term of this
lease remaining unpaid shall become due and payable at once and may forthwith be
collected by distrcss or otherwise, and at thc same time the party of the first part may
forfeit and annul the unexpired portion of this Icase and enter upon and repossess the said
premises with or without proccss oflaw, and without giving any notice whatsoevcr,
Acceptance by the party o~ 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 rcserved to the party of the first part, or any of
the penalties, forfeitures or conditions herein contained, shall not in any way 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 fll'st part, and all forfeitures, penalties and 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 filed against the said party of the second part, all the rent reserved
for the fullterm of this lease shall become due and collectable immediately by distress or
otherwise,
The Prothonotary or any attorney of any Court of Record of Pennsylvania is
hereby authorized to appear for and to confess a judgment against the said party of the
second part and in favor of the said party of the first part for the whole amount of said
rent as hereinbefore set forth.
And the said party of the second p-art hereby waives the usual notice to quit, and
agrees to surrender said premises at the expiration of said term, or the termination of this
lease, without any notice whatsoever, And upon any proceeding instituted for the
recovery of said rent, either by distress or otherwise, the said party of the second part
waives the benefit of all appraisement, stay and exemption laws, the right of inquisition
on real estate, and all bankruptcy or i:1soIvency laws now in force or hereafter passed,
Upon the brcach of any of the covenants or agreemcnts of this lease or upon its
termination by forfeiturc, dcfault or cxpiration, the Prothonotary or any attorney as
aforesaid mentioned is hcreby authorizcd to appear for and to confess judgment in an
amicable action of ejcctmcnt against the said party of the second part and in favor of the
said party of the first part for the premises hcrein described and to direct the immediate
issuing of a writ of habere facias possessioncm with clause of fiere facias for costs,
waiving all irregularities, without notic~ and without asking leave of court,
3
It is further agreed that the tenns and conditions of this agreement and lease shr.ll
in no way be changed or altered except by a writing signcd by all of the parties hereto;
and if the said party of the second part shall continue in possession of the said premises
3ftcr the expiration of said teml. at the option of the said party of the first part. such
holding over may be held and decmed a renewal of this agreement for another like tcnn.
the same as though a new agreement of leasing. idcntical with this. had becn executcd
and delivered by the said parties hercto for a succeeding tenn with respect to the
following increases in the amount due and payablc,
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The party of the second part is rcsponsiblc for culling the grass and any and all
snow removal.
All property. both inside and outside the said premises. is to be kept neat and
clean at all times,
The use of a kerosene and/or portable heater of any type is exprcssly prohibited,
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The party of the second part expressly waives any and all notices of any type
under the Pennsylvania Landlord-Tenant Act.
II
tl A new refril:erator. new washer, new dryeG new stove, and new dishwasher are
to be provided by and are the prop,erty~of the party of the first part, -The party of the
sccond part is responsible for all repairs,
The party of the first part is to provide a dead bolt lock for the front door,
The party of the first part is to provide brackets for the purpose of hanging
curtains and blinds and wi\l also provide curtain rod~,
Upon departure from the said premises, the party of the second part is responsible
for having all carpets professionally cleaned, and also for having all walls restored to
their original condition,
This lease rcnews for a full tenn at the end of the first year and for each additional
year thereafter as is herein described, Departure from the premises before the end of the
tenn results in forfeiture of the security deposit,
Rent for the second term beginning on the 1st day of April, 1999 and ending on
the 31st day of March, 2000, will be one thousand one hundred and fifty dollars
($1,150,00) per month, Rent for the third term beginning on the 1st day of April, 2000
and ending on the 31 st day of March 2001, wi\l be one thousand two hundred dollars
($1,200,00) per month, Rent for the third term beginning on the 1st day of April, 2001
and ending on the 31st day of March 2002, will be one thousand two hundred fifty dollars
($1,250,00) per month, Rent for the forth-term beginning on the 1st day of April, 2002
and ending on the 31 st day of March 2003, wi\l be one thousand three hundred dollars
($1,300,00) per month, Rent for the fifth term beginning on the 1st day of April, 2003,
and ending on the 31st day of March 2004, wi\l be one thousand three hundred fifty
dollars ($1,350,00) per month, All rent thereafter is subject to periodic raises at the
-----oplion-of.tile-p~the first part,
The party of the first part acknowledges receipt -of two-months rent in the amount
of two thousand two hundred dollars ($2,200,00), Further, the party of the first part
acknowledges receipt of twelve months rent in the amount of thirteen thousand two
hundred dollars ($13,200,00),
All payments are to be made payable to James M. Bach, by hand or by mail, at
the following address:
352 South Sporting Hill Road
Mechaniesburg, Pennsylvania 17055
4
Thc conditions of this agrccmcnt shall cxtcnd to thc administrators and cxccutors
ofall the parties hcrcto.
IN WITNESS WHEREOF, the partics aforcsaid, intcnding to bc Icgally bound
hcrcby. have hcrcunto set their hand and scals thc day. month and year first above
written,
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5, In '111e I'ennsylvunia Landlord Tenanl Act of 1951, n.' IIII/el/l/t'd, at 68 Pa, C,S, Section
250,5 12(a), provides, in part. that:
"Nolhing in this section shall preclude the landlord from refusing to
relum Ihe escrow fund including any unpaid interest thereon, for
nonpayment of rent or for the breach of any other condition in the lease
by Ihe tenant."
6, In Count III of Plaintiffs Complainl, Plaintiff fails to state a claim to which relief is
available pursuant to The Pennsylvania Landlord Tenant Ael 68 P,C,S, 250,) 0 I, et. seq" due to
Plaintiff's own admitted breach of the lease agreement.
WHEREFORE, Defendant respectfully requests that Count III of Plaintiffs Complaint be
dismissed pursuant to Pa. R,C,P, No, 1028(a)(4) as failing to state a legal claim to which relief is entitled
pursuant to The Pennsylvania Landlord Tenant Act of 1951, 68 Pa, C.S, Section 250,10 I et.seq,
DEMURER: Unlust Enrichment ICount II)
7, Paragraphs I through 6 above arc incorporated herein.
8, At page 3 of the said Lease, it reads:
"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 thc same 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 by distress
or otherwise.. . . "
9, By signing the lease, Plaintiff entered into a contractual obligation with Defendant.
10, In paragraphs 6 and 7 of the Complaint, Plaintiff admits that she breached the lease, Le"
rental contract.
2
II, I'lainliff cannot seek relicf oUlside of thc contract in a eaose of aclion sounding In the
nature of equity side of the Court for a contract was entered without any admilled defenses to the
contract and which clearly states the conditions, terms, and consequences of the contract.
WHEREFORE, Defendant respectfully requesls that Counl II of I'lainlifCs Complaint he
dismissed pursuant to Pa, C,R,P, No. 1028(a)(4) for failing to state a claim upon which relief can be
granted,
Motion To Dismiss Pursuant to Pa, R,C.P. 1028(a)(2}-(COUNT Il
12, Paragraphs 1 through II above are incorporated herein,
13, In paragraphs 8 through 13, Plaintiff repeatedly refers to unidentified terms of
conversations which, by PIainlifCs own admission, IVerc conversations made in thc nature and sclling of
compromise negotiations of a disputed claim and are therefore inadmissible and rise to the level of
impressible impertinent malleI' under Pa, R,C,P, 1028(a)(2),
WHEREFORE, Defendant respectfully requests that pursuant to Pa, R,C,I', 1028(a)(2)
paragraphs 8 through 13 ofPlaintifCs Complaint be stricken as containing impertinent malleI' relating to
compromise negotiations of a disputed claim,
Respectfully submitted,
Dated: AI Pee. q y
-2:
ISA MARIE CO NE, ESQUIRE
390 I Market Slrcet
CampHiII,PA 17011-4227
(717) 737,0464
Pa, S, Ct. No, 53788
Atlo/'lley for Defelldall/
3
VERIFICATION
The facls set forth in the foregoing are true and correct to the best of the undersigned's
knowledge. infonnation and belief and are verified subject to the penalties for unsworn
falsification to authorities under 18 Pa, C,S.A, ~4904,
Dated:
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PRAECIPE f'OR I.IfiTING CASE FOR ARGUMENT
(HwIt be typewritten and oubnittcd in duplicate)
TO TilE PROTHONOThRY OF CUMDERI.^ND COUNTY:
Please list the within matter for the next N:gunent COUrt.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption IllJSt be stated in full)
CRhCE BOYER
(Plaintiff)
vs.
JAMES K. BACH
(Defendant)
No. 6410
Civil
19 98
1. State matter to be argued (i.e.. plaintiff's lIDtion for new trial. defendant's
darurrer to cmplaint. etc.):
Defendant's Preliminary Objections
2. Identify counsel Wo will argue case:
(a) for plaintiff: Jay Cooper. Esquire
Address: Goldberg, Katzman & Shipman, P.C., P.O. Box 1268,
Harrisburg, PA 17108-1268
(b)
for defendant: Lisa Marie Coyne, Esquire
Address: 309 Market Street
Camp Hill, PA 17011-4277
3. I will notify all parties in writing within two days that this case has
been listed for BrgUnent.
4. Argunent Court Date: March 3, 1999
Dated: January 6, 1999
Attorn$)~~~
....
GRACE BOYER,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 98,6410 CIVIL TERM
JAMES M, BACH,
DEFENDANT
JURY TRIAL DEMANDED
ACCEPTANCE OF SERVICE
I accept service of the Complaint in the above action on behalf of James M,
Bach and certify that I am authorized to do so,
sa arie oyne, Esquire
09 Market Street
mp Hill, PA 17011-4277
Attorney for James M, Bach
~, ~ et-, AiD, tinn
(7(1) 7; 7-o,/{, 'I
Date: (211 17 Iff Co q J>
12969.1
WHEREFORE, Plaintiff respectfully requests that Defendant's Demurrer be
dismissed,
DEMURRER: Unjust Enrichment (Count 1Il
7, Plaintiffs answers to Paragraphs I through 6 above are hereby
incorporated by reference,
8, Said lease speaks for itself,
9, Said allegation constitutes a conclusion of law to which no response is
required,
10, Paragraphs 6 and 7 speak for themselves,
I I, Said allegation constitutes a conclusion of law to which no response is
required, If a response is required, Count II, as stated, does state a cause of action
against the Defendant,
WHEREFORE, Plaintiff respectfully requests that Defendant's Demurrer be
dismissed,
Motion to Dismiss Pursuant to Pa, R,C.P, 1028(a)(2) _ (Count n
12, Plaintiffs answers to Paragraphs I through II above are hereby
incorporated by reference,
13, The allegations conta;ned in Paragraphs 8 through 13 speak for
themselves, Said conversations do no constitute negotiations of a disputed claim, To
the contrary, such allegations evidence that the parties agreed that the property
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J. JlIY COOIIt'f. t:'flulrt
GOl.IlllERG, K,nZM.\N '" SIlIl'~"'N,I'.(',
J20 Markel Sired. Slrllwbrrry Slluarr. It.(), Uen, 1268
lIarri>burR,I''\ /7IOH-126H
(717) 2J4,4161
.lttornry I.IJ, HJ /720
I\tlornt)'s for Plalnlirr
GRACE BOYER,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v,
NO, 98-6410 CIVIL TERM
JAMES M, BACH,
DEFENDANT
JURY TRIAL DEMANDED
TO: PROTHONOTARY OF CUMBERLAND COUNTY
Please mark thc above captioncd action settled. discontinued and cndcd and/or dismisscd
with prcjudice ,
GOLDBERG, KATZMAN & SHIPMAN, P,C,
Date: Y I, /t '1
I ,
By: J, J~J~~,{~~;rr '
320 Market Strect, Strawbcrry Square
1',0, Box 1268
Harrisburg, I' A 17108- I 268
(717) 234-4161
Attorney I.O, #31720
Attorneys for Plaintiff
18857.1