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HomeMy WebLinkAbout04-0726NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 2004 - !Zm CIVIL TERM NOTICE TO DEFEND 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 an 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. 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 32 South Bedford Street Carlisle, PA 17013 717-249-3166 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 84 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-8090 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and , DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 2004 - CIVIL TERM COMPLAINT NOW, come the Plaintiffs James Huffman and Don A. Bair, Jr., by their attorney, Nathan C. Wolf, Esquire, and present the following complaint, representing as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffman"), an adult individual residing at 108 West Main Street, Apartment D, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Plaintiff is Don A. Bair, Jr. (hereinafter referred to as "Bair"), an adult individual residing at 2 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. The Defendant is Freightway Services (hereinafter referred to as "Freightway"), a duly registered Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. Box 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Freightway in its relationships with Huffman and Bair. Mowery is identified also as the President and/or Chief Executive Officer of the Defendant Freightway. 5. Freightway is the record title holder of real property located at 1440 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania, also identified as Tax Parcel Number 26-24-0809-197A as evidenced by Deed dated November 26, 2002 and recorded in Deed Book 254, Page 4434 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania (hereinafter referred to as the "Residence"). 6. Erected on the property is a single family residence having eight bedrooms, a living room, three bathrooms, and a kitchen contained therein. 7. Freightway, through its agent Mowery, leased bedrooms in the Residence to both Huffman and Bair, independently, through an oral agreement with each to pay the sum of $220.00 per month in rent, which sum included all utilities. 8. Huffman and Bair both lived in the Residence as tenants and paid rent to Freightway as the landlord for a period of time in excess of six months. 9. Neither Huffman nor Bair was provided with a written lease by Freightway. COUNT I - HUFFMAN v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 10. Paragraphs one through nine are incorporated by reference as if set forth fully herein. 11. Huffman entered into his oral lease with Freightway on or about January 22, 2003. 12. Huffman had learned about the availability to live in the Residence when he responded to a newspaper advertisement directing him to contact Mowery. 13. Huffman agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 14. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 15. Huffman was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 16. Huffman paid rent to Freightway in a timely fashion throughout the course of his lease. 17. At the beginning of November, 2003, Freightway, through Mowery, informed Huffman that some construction work would begin in the Residence during the coming month. 18. Huffman informed Mowery that he would therefore be unable to continue to reside in the Residence once construction began, and that he would only pay a pro- rated portion of the rent for the month of November up to the date where construction began. 19. On or about November 15, 2003, Huffman received written notice from Freightway though authored by Mowery, that Huffman was being given thirty (30) days notice to vacate the premises. (A true and correct copy of said notice is attached hereto and incorporated herein as Exhibit "A") 20. Said notice was dated November 1, 2003, however, as indicated above, Huffman did not receive said notice until on or about November 17, 2003. The notice was enclosed in an envelope which bore a hand-cancelled postmark dated November 16, 2003. (A true and correct copy of the envelope which contained the notice is attached hereto and incorporated herein as Exhibit "B") 21. Huffman told Mowery, after receiving the notice that he would pay the rent for November in full on November 30, 2003, but would deduct any amount due for November if construction began before the end of the month. 22. After Huffman left for work on or about November 18, 2003, Mowery removed the door to Huffman's bedroom from its hinges and took the door from the property. 23. Upon Huffman's return from work he found the door missing and thereafter discovered some of the contents of his room missing. 24. Huffman reported the missing items to the New Cumberland Police Department immediately after discovering the theft. 25. The police informed Huffman that it was a civil matter between he and the landlord but suggested that Huffman create a list of the missing items with their approximate value. 26. Huffman has determined that the value of the items missing from his bedroom are approximately $11,370.00. 27. Freightway's actions through its agent, Mowery, rendered Huffman's room unsuitable for habitation. 28. Freightway's actions therefore created a situation where Huffman's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 29. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 30. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Huffman of his residence. 31. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Huffman as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff James M. Huffman in an amount not less than $11,730.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT II - BAIR v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 32. Paragraphs one through thirty-one are incorporated by reference as if set forth fully herein. 33. Bair entered into his oral lease with Freightway to reside in the Residence on or about May 30, 2003. 34. Bair had been a resident of another property owned by Mowery for approximately four months prior to his moving into the residence. 35. Bair agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 36. Bair made said payments of the security deposit and monthly rent. 37. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 38. Bair was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 39. Bair paid rent to Freightway in a timely fashion throughout the course of his lease. 40. On or about November 24, 2003, Bair received written notice from Freightway though authored by Mowery, that Bair was being given until November 30, 2003, a period of only six (6) days to vacate the premises. (A true and correct copy of said notice is attached hereto as Exhibit "C"). 41. Said notice was hand-delivered by Mowery to Bair on or about November 24, 2003. 42. Bair informed Mowery, upon his receipt of the notice from Mowery, that the six days remaining before November 30, 2003, was not enough time for him to relocate. 43. Mowery responded by informing Bair that if Bair was not out of the Residence by the end of November, that Mowery would physically remove Bair. 44. Mowery also informed Bair that he would return Bair's security deposit to him but that Freightway had thirty days to do so after Bair left the premises. 45. Bair has not received his security deposit from Freightway since vacating the premises. 46. On or about November 30, 2003, at approximately 1:15 o'clock p.m., Bair was in his bedroom with his seven-year-old son when, without warning, the electricity was turned off to the room. This action also cut off heat to the room, as the room was heated with electric heat. 47. Bair exited his room with his son and found Mowery on the first floor of the Residence. At that point, Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Mowery's response was to laugh at Bair and Bair's son and to tell Bair to "move back in with your fucking mommy and daddy" and that Bair was "a worthless piece of shit". Furthermore, Mowery told Bair that Bair "needed a new lifestyle", because Bair was living in the Residence. Mowery continued by telling Bair, still in front of Bair's seven-year-old son, that he (Bair) "have your son fucked up in the brain having him here on the weekends." 48. Bair's response was to ask Mowery what kind of person he was to turn off the electricity on a seven-year-old child. Mowery ignored this question and instead stated repeatedly that Bair should move back in with his mommy and daddy. 49. Following this exchange, Bair took his son from the Residence and went immediately to the New Cumberland Police Department to report the incident. The police officers informed Bair that the matter was civil in nature and to contact the District Justice on Monday, December 1, when the District Justice's office would be open. 50. Bair took his son to a relative's home and then traveled to another relative's home to make arrangements to relocate. 51. Upon his return at approximately 11:15 o'clock p.m., Bair discovered that the door to his room had been removed from its hinges and that the door had been removed from the property. 52. Upon further inspection Bair discovered that some of the contents of his room missing and he found drawers open and contents missing. 53. Bair's financial documents including a car title, approximately $200.00 in cash, and other personal property were missing from the room. 54. At that point, Bair was able to access the electric panel which was located in another resident's room, because that resident was home at the time and permitted him access. Bair thereafter turned the power back on in his room. 55. Bair slept in the room that night, despite the fact that the door to the room was missing. 56. At approximately 9 o'clock a.m. on December 1, 2003, Bair reported some of the missing items to the New Cumberland Police Department. The police took a report but stated that they did not want to get involved. 57. At approximately 4 o'clock p.m., Bair returned to the Residence and found that the electricity had been turned off again. Bair gathered up as many of his belongings as he could, but he could not remove the large pieces of furniture from the room at that time. 58. When Bair was finally able to remove his furniture from the room, he found that it had been damaged. Drawers were missing handles and the various pieces were scratched and blemished. 59. Bair has determined that the value of the items missing from his bedroom and the damage to the furniture is approximately $10,000.00. 60. Freightway's actions through its agent, Mowery, rendered Bair's room unsuitable for habitation. 61. Freightway's actions therefore created a situation where Bair's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 62. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Bair during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 63. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Bair of his residence. 64. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Bair as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff Don A. Bair, Jr., in an amount not less than $10,000.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT 111- HUFFMAN v. FREIGHTWAY PUNITIVE DAMAGES 65. Paragraphs one through sixty-four are incorporated by reference as if set forth fully herein. 66. Throughout the course of Huffman's tenancy, Freightway Services never gave notice of any failure by Huffman to comply with the terms of his lease agreement. 67. Freightway only notice to quit was served on Huffman on or about November 15, 2003, which notice provided for thirty (30) days to remove himself from the premises. 68. Nonetheless, Freightway's actions through Mowery's removal of the door to Huffman's room occurred on or about November 18, 2003, at which time, Huffman suffered significant damages in personal property that was removed from his room after the door was removed. 69. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 70. Freightway's employment of self-help eviction tactics on November 18, 2003 against Huffman constitute an illegal act of an outrageous nature and therefore should entitle Huffman to an award of punitive damages from Freightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff James M. Huffman in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT IV - BAIR v. FREIGHTWAY PUNITIVE DAMAGES 71. Paragraphs one through seventy are incorporated by reference as if set forth fully herein. 72. Throughout the course of Bair's tenancy, Freightway Services never gave notice of any failure by Bair to comply with the terms of his lease agreement. 73. Freightway only notice to quit was served on Bair on or about November 24, 2003, which notice provided for only six (6) days to remove himself from the premises. 74. Nonetheless, Freightway's actions through Mowery's turning off the electricity to Bair's apartment on or about November 30, 2003 and the subsequent removal of the door to Bair's room on or about November 30, 2003, at which time, Bair suffered significant damages in personal property that was removed from his room after the door was removed. 75. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 76. Bair, as a month to month tenant, was entitled to, at a minimum, fifteen (15) days notice to quit under the Landlord Tenant Act of 1951. 77. Freightway's employment of self-help eviction tactics on November 30, 2003 against Bair constitute an illegal act of an outrageous nature and therefore should entitle Bair to an award of punitive damages from Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff Don A. Bair, Jr., in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT V - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 78. Paragraphs one through seventy-six are incorporated by reference as if set forth fully herein. 79. Huffman was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 80. Since Freightway served Huffman with notice to quit that provided him thirty (30) days to remove himself and his property from the Residence, and only three (3) days elapsed between notice being served and the removal of Huffman's door, such actions created a likelihood of confusion and misunderstanding as to Huffman's rights and obligations as a tenant. 81. At this time, Huffman believes and therefore avers that Freightway, through Mowery, never intended to allow Huffman the entire thirty (30) days to quit the premises and therefore, acted in a fraudulent and deceptive manner. 82. Such actions by Freightway, as the lessor to Huffman, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law. under 73 Pa. C.S. §201-1, et seq. 83. Freightway's actions against Huffman clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Huffman and against Freightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff James M. Huffman, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT VI - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 84. Paragraphs one through eighty-three are incorporated by reference as if set forth fully herein. 85. Bair was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 86. Since Freightway served Bair with notice to quit that provided him six (6) days to remove himself and his property from the Residence, and only five (5) days elapsed between notice being served and turning off of Bair's electricity and the removal of Bair's door, such actions created a likelihood of confusion and misunderstanding as to Bair's rights and obligations as a tenant. 87. At this time, Bair believes and therefore avers that Freightway, through Mowery, never intended to allow Bair a full and fair period of time within which he could quit the premises and find alternative housing accommodations and therefore, Freightway acted in a fraudulent and deceptive manner. 88. Such actions by Freightway, as the lessor to Bair, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, etseq. 89. Freightway's actions against Bair clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Bair and against Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff Don A. Bair, Jr., together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. February // , 2004 1 NAT ,AWC. WOLF IR LAW O CE SUPREME COURT ID NO. 87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 EXHIBIT `A' 4 ee, EXHIBITS' 1 i i I i 0 Y "0%. I EXHIBIT `C' _.. _.. - _.---_.C-?f°-'??•`J /.?-f' ice="_ ??? ?.-'..[.i_/??? ?`t !'- t - --,?o.-S?f?LGD(an_hrcl?'`f!'"' JnD? 9.L',?.? ? J A?l 4V2 -In, I VERIFICATION I, the undersigned, hereby verify that I am the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. ??(ri °1 ) C(rh ?/? fC'7b,,'W4 19)12004 Don A. Bair, Jr. 1 VERIFICATION I, the undersigned, hereby verify that I am the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Doz - D 2004 J es M. Huffm X) R 0 (- )I 7 a SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00726 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUFFMAN JAMES ET AL VS FREIGHTWAY SERVICES INC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: FREIGHTWAY SERVICES INC but was unable to locate Them deputized the sheriff of DAUPHIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 10th , 2004 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin Co 30.50 .00 67.50 03/10/2004 IRWIN LAW OFFICE So answers R. TYiomas Kline ` -? Sheriff of Cumberland County Sworn and subscribed to before me ??r1? this ?5 w day of GDc. A.D. 1 ? Pr t honor t` ary ' im 1?"lie Court of Common Pleas of Cumberland County, Pennsylvania James M. Huffman et al vs. Freightway Services Inc SERVE: sane No, 04-726 civil Now, February 19, 2004 , I. SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to Sheriff of , 20_, at o'clock M. served the copy of the original _ the contents thereof. So answers, COSTS Sworn and subscribed before SERVICE me this day of 20 MILEAGE AFFIDAVIT S County, PA (pfftce of ie hrr ff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy ConunonWealth of Pennsylvania HUFFMAN JAMES,M AND DON A BAIR JR vs County of Dauphin FREIGHTWAY SERVICES INC Sheriff's Return No. 1429-T - - -2004 OTHER COUNTY NO. 2004-726 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for FREIGHTWAY SERVICES INC the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the county of Dauphin, and therefore return same NOT FOUND, March 4, 2004 NEED BETTER ADDRESS Sworn and subscribed to before me this 4TH day of M7,4V 2004 So Answers, k;41( t? Sheriff of Dauphin County, Pa. PROTHONOTARY By Deputy Sheriff Sheriff's Costs: $30.50 PD 02/27/2004 RCPT NO 189353 NATHAN C. WOLF, ESQUIRE ATTORNEY M NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-0436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : NO. 2004 -726 CIVIL TERM PRAF.CIPF. TO BRINSTATF. COMPT AINT TO THE PROTHONOTARY: Kindly reinstate the attached complaint in the above-referenced matter for service upon defendant. Respectfully Dated: March 2004 ,)sthan grV ,,pff, 37 Sou over Street Suite 2 Carlisle, PA 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Plaintiff ?J N ti a° O T?CTj r t.J Cv Ti O ?'J SHERIFF'S RETURN - REGULAR CASE NO: 2004-00726 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HUFFMAN JAMES ET AL VS FREIGHTWAY SERVICES INC ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FREIGHTWAY SERVICES INC the DEFENDANT , at 1907:00 HOURS, on the 31st day of March 2004 at 1440 SIMPSON FERRY ROAD NEW CUMBERLAND, PA 17070 by handing to STEVE PETNER, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.73 Affidavit .00 Surcharge 10.00 .00 39.73 Sworn and Subscribed to before me this S day of Q9aY A. D. Prothono/ to So Answers: R. Thomas Kline 04/01/2004 NATHAN WOLF By: "Deputy er? f LAGUNA REYES MALONEY, LLP 1119 NORTH FRONT STREET, HARRISBURG, PA 17102 TEL.: (717) 233-5292 / FM: (717) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § IN THE COURT OF COMMON PLEAS DON A. BAIR, JR., § CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs § § CIVIL ACTON - LAW V. § § NO. 2004-726 CIVIL TERM FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant NOTICE TO PLEAD TO: James M. Huffman Don A. Bair,Jr. c/o Nathan C. Wolf, Esquire 37 S. Hanover Street, Suite 2 Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Defendant's Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Ro R. La , Jr., Esqu •e 1119 North Front Street Harrisburg, PA 17102 (717) 233-5292 Dated: April 20, 2004 LAGUNA REYES MALONEY, LLP 1 I 19 NORTH FRONT STREET, HARRISBURG, PA 1 7102 TES.: (717) 233-5292 / Fm: (71 7) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § IN THE COURT OF COMMON PLEAS DON A. BAIR, JR., § CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs § § CIVIL ACTON - LAW V. § § NO. 2004-726 CIVIL TERM FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes the Defendant, Freightway Services, Inc., byhis attorney, Laguna Reyes Maloney, LLP, who present the following preliminary objections to Plaintiffs' Complaint based upon the following: PLAINTIFF'S COMPLAINT COUNTI Plaintiff commenced this action by filing a Complaint on March 25, 2004. A copy of the Complaint is attached hereto as "Exhibit A." 2. In Count I of the Complaint, Plaintiff Huffinan alleges that Defendant violated the implied warranty of habitability as a landlord for the premises. 3. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of the defects, namely, the missing door. 4. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect namely restore the door to Plaintiff Huffman's bedroom. 5. Plaintiff Huffman has neither shown nor alleged such notice or failure by landlord to correct said defect. Therefore, Plaintiff has failed to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count I must be stricken from the Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss paragraphs 17_31 of Plaintiff's Complaint. PRELIMINARY OBJECTION RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT COUNT H BAIR V. FREIGHTWAY - VIOLATION OF LANDLORD/TENANT ACT 6. Plaintiff commenced this action by filing a Complaint on March 25, 2004. A copy of the Complaint is attached hereto as "Exhibit A." 7. In Count II of the Complaint, Plaintiff Bair alleges that Defendant violated the implied warranty of habitability as a landlord for the premises. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of the defects, namely, the missing door. 9. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect namely restore the door to Plaintiff Bair's bedroom. 10. Plaintiff Bair has neither shown nor alleged such notice or failure by landlord to correct said defect. Therefore, Plaintiff has faiiled to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count II must be stricken from the Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss paragraphs 46 to 64 of Plaintiff's Complaint. COUNT III MOTION TO STRIKE COUNT III 1T ?> iTT T?r.? 11. In Count III of Plaintiff's Complaint, Plaintiff makes a claim for punitive damages based upon their allegations throughout the complaint that the Defendant breached various contract and warranty rights of the Plaintiff. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count III should be stricken from the Complaint with prejudice. COUNT IV MOTION TO STRIKE COUNT IV BAIR V. FREIGHTWAY - PUNITIVE DAMAGES 12. In Count IV of Plaintiffs Complaint, Plaintiff makes a claim for punitive damages based upon their allegations throughout the complaint that the Defendant breached various contract and warranty rights of the Plaintiff. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery ofpunitive damages in contract actions. Therefore, this Count IV should be stricken from the Complaint with prejudice. COUNT V MOTION TO STRIKE COUNT V 13. In Count V of Plaintiff's Complaint, Plaintiffmakes a claim for treble damages based upon their allegations throughout the complaint than the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count V should be stricken from the Complaint with prejudice. COUNT VI MOTION TO STRIKE COUNT IV CONSUMER PROTECTION LAW 14. In Count VI of Plaintiff's Complaint, Plaintiff snakes a claim for treble damages based upon their allegations throughout the complaint that the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count VI should be stricken from the Complaint with prejudice. Respectfully submitted, ?. (-r,4T- Rog Laguna, Jr., squire Supreme Court I.D. No.: 75900 Attorney for Defendant LAGUNA. REYES MALONEY, LLP 1119 North Front Street Harrisburg, PA 17102 (717) 233-5292 LAGUNA REYES MALONEY, LLP I I 19 NORTH FRONT STREET, NMRIBBURO, PA 1 71 02 TEL.: (717) 233-5292 / Fm: (717) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § IN THE COURT OF COMMON PLEAS DON A. BAH;, JR., § CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs § § CIVIL ACTON - LAW V. § FREIGHTWAY SERVICES, INC., § NO. 2004-726 CIVIL TERM a Pennsylvania Corporation, § Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I have caused a copy of the Defendant's Answer to Defendant's Preliminary Objections filed in the above-captioned matter to be served upon Plaintiffs' counsel, by regular first-class mail, addressed as follows: Nathan C. Wolf, Esquire 37 S. Hanover Street, Suite 201 Carlisle, PA 17013 Date R-o 04?R.I.a g guna, Jr., quire Supreme Court I.D. No.: 75900 NATHAN C. WOLF, ESQUIRE ATTORNEY 10 NO. 87380 ?, ,, / /?? ? j j 64 SOUTH PITT STREET ?? [('5 CARLISLE PA 17013 C'acFP (717)248.8800 ayj-5'Y36 ATTORNEY FOR PLAINTIFFS m. nvrrmwN ano , DON A. BAIR, JR. Plaintiffs v. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURTOF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2004 - 72 CIVIL TERM NOTICE TO DEFEND 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 an 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. 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 32 South Bedford Street Carlisle, PA 17013 717-249-3166 in kX;Izie. Pa. 2'?J se s. ',day ° u."'_,Q s- n N - _ cu nr T? W , L ? 1 J1 ? -G EXHIBIT A NATHAN C. WOLF, ESQUIRE ATTORNEY III N0.87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-8080 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and , DON A. BAIR, JR. V. Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION . LAW FREIGHTWAY SERVICES, INC., a PennsYlvanla Corporation, Defendant NO. 2004. CIVIL TERM COMPLAINT NOW, come the Plaintiffs James Huffman and Don A. Bair, Jr., by their attorney, Nathan C. Wolf, Esquire, and present the following complaint, representing as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffman"), an adult individual residing at 108 West Main Street, Apartment D, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Plaintiff is Don A. Bair, Jr. (hereinafter referred to as "Bair"), an adult individual residing at 2 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. The Defendant is Freightway Services (hereinafter referred to as "Freightway^), a duly registered Pennsylvania Corporation, with a registered address located at tw 791 Colver Boulevard, P. 0. Box 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Freightway in its relationships with Huffman and Bair. Mowery is identified also as the President and/or Chief Executive Officer of the Defendant Freightway. 5. Freightway is the record title holder of real property located at 1440 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania, also identified as Tax Parcel Number 26-24-0809-197A as evidenced by Deed dated November 26, 2002 and recorded in Deed Book 254, Page 4434 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania (hereinafter referred to as the "Residence"). 6. Erected on the property is a single family residence having eight bedrooms, a living room, three bathrooms, and a kitchen contained therein. 7. Freightway, through its agent Mowery, leased bedrooms in the Residence to both Huffman and Bair, independently, through an oral agreement with each to pay the sum of $220.00 per month in rent, which sum included all utilities. 8. Huffman and Bair both lived in the Residence as tenants and paid rent to Freightway as the landlord for a period of time in excess of six months. 9. Neither Huffman nor Bair was provided with a written lease by Freightway. COUNT I - HUFFMAN v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 10. Paragraphs one through nine are incorporated by reference as if set forth fully herein. 11. Huffman entered into his oral lease with Freightway on or about January 22, 2003. 12. Huffman had learned about the availability to live in the Residence when he responded to a newspaper advertisement directing him to contact Mowery. 13. Huffman agreed to pay the sum of $220.00 as a :security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 14. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 15. Huffman was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 16. Huffman paid rent to Freightway in a timely fashion throughout the course of his lease. 17. At the beginning of November, 2003, Freightway, through Mowery, informed Huffman that some construction work would begin in the Residence during the coming month. 18. Huffman informed Mowery that he would therefore be unable to continue to reside in the Residence once construction began, and that he would only pay a pro- rated portion of the rent for the month of November up to the date where construction began. 19. On or about November 15, 2003, Huffman received written notice from Freightway though authored by Mowery, that Huffman was being given thirty (30) days notice to vacate the premises. (A true and correct copy of said notice is attached hereto and incorporated herein as Exhibit "A") 20. Said notice was dated November 1, 2003, however, as indicated above, Huffman did not receive said notice until on or about November 17, 2003. The notice was enclosed in an envelope which bore a hand-cancelled postmark dated November 16, 2003. (A true and correct copy of the envelope which contained the notice is attached hereto and incorporated herein as Exhibit "B") 21. Huffman told Mowery, after receiving the notice that he would pay the rent for November in full on November 30, 2003, but would deduct any amount due for November if construction began before the end of the month. 22. After Huffman left for work on or about November 18, 2003, Mowery removed the door to Huffman's bedroom from its hinges and took the door from the property. 23. Upon Huffman's return from work he found the door missing and thereafter discovered some of the contents of his room missing. 24. Huffman reported the missing items to the New Cumberland Police Department immediately after discovering the theft. 25. The police informed Huffman that it was a civil matter between he and the landlord but suggested that Huffman create a list of the missing items with their approximate value. 26. Huffman has determined that the value of the items missing from his bedroom are approximately $11,370.00. 27. Freightway's actions through its agent, Mowery, rendered Huffman's room unsuitable for habitation. 28. Freightway's actions therefore created a situation where Huffman's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 29. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the :statute. 30. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Huffman of his residence. 31. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Huffman as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff James M. Huffman in an amount not less than $11,730.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT II - BAIR v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 32. Paragraphs one through thirty-one are incorporated by reference as if set forth fully herein. 33. Bair entered into his oral lease with Freightway to reside in the Residence on or about May 30, 2003. 34. Bair had been a resident of another property owned by Mowery for approximately four months prior to his moving into the residence. 35. Bair agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room andl one of three bathrooms. 36. Bair made said payments of the security deposit and monthly rent. 37. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 38. Bair was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 39. Bair paid rent to Freightway in a timely fashion throughout the course of his lease. 40. On or about November 24, 2003, Bair received written notice from Freightway though authored by Mowery, that Bair was being given until November 30, 2003, a period of only six (6) days to vacate the premises. (A true and correct copy of said notice is attached hereto as Exhibit "C). 41. Said notice was hand-delivered by Mowery to Bair on or about November 24, 2003. 42. Bair informed Mowery, upon his receipt of the notice from Mowery, that the six days remaining before November 30, 2003, was not enough time for him to relocate. 43. Mowery responded by informing Bair that if Bair was not out of the Residence by the end of November, that Mowery would physically remove Bair. 44. Mowery also informed Bair that he would return Bair's security deposit to him but that Freightway had thirty days to do so after Bair left the premises. 45. Bair has not received his security deposit from Freightway since vacating the premises. 46. On or about November 30, 2003, at approximately 1:15 o'clock p.m., Bair was in his bedroom with his seven-year-old son when, without warning, the electricity was turned off to the room. This action also cut off heat to the room, as the room was heated with electric heat. 47. Bair exited his room with his son and found Mowery on the first floor of the Residence. At that point, Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Mowery's response was to laugh at Bair and Bair's son and to tell Bair to "move back in with your fucking mommy and daddy" and that Bair was "a worthless piece of shit". Furthermore, Mowery told Bair that Bair "needed a new lifestyle", because Bair was living in the Residence. Mowery continued by telling Bair, still in front of Bair's seven-year-old son, that he (Bair) "have your son fucked up in the brain having him here on the weekends." 48. Bair's response was to ask Mowery what kind of person he was to turn off the electricity on a seven-year-old child. Mowery ignored this question and instead stated repeatedly that Bair should move back in with his mommy and daddy. 49. Following this exchange, Bair took his son from the Residence and went immediately to the New Cumberland Police Department to report the incident. The police officers informed Bair that the matter was civil in nature and to contact the District Justice on Monday, December 1, when the District Justice's office would be open. 50. Bair took his son to a relative's home and then traveled to another relative's home to make arrangements to relocate. 51. Upon his return at approximately 11:15 o'clock p.m., Bair discovered that the door to his room had been removed from its hinges and that the door had been removed from the property. 52. Upon further inspection Bair discovered that some of the contents of his room missing and he found drawers open and contents missing. 53. Bair's financial documents including a car title, approximately $200.00 in cash, and other personal property were missing from the room. 54. At that point, Bair was able to access the electric panel which was located in another resident's room, because that resident was home at the time and permitted him access. Bair thereafter turned the power back on in his room. 55. Bair slept in the room that night, despite the fact that the door to the room was missing. 56. At approximately 9 o'clock a.m. on December 1, 2003, Bair reported some of the missing items to the New Cumberland Police Department. The police took a report but stated that they did not want to get involved. 57. At approximately 4 o'clock p.m., Bair returned to the Residence and found that the electricity had been turned off again. Bair gathered up as many of his belongings as he could, but he could not remove the large pieces of furniture from the room at that time. 58. When Bair was finally able to remove his furniture from the room, he found that it had been damaged. Drawers were missing handles and the various pieces were scratched and blemished. 59. Bair has determined that the value of the items missing from his bedroom and the damage to the furniture is approximately $10,000.00. 60. Freightway's actions through its agent, Mowery, rendered Bair's room unsuitable for habitation. 61. Freightway's actions therefore created a situation where Bair's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 62. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Bair during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 63. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Bair of his residence. 64. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Bair as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff Don A. Bair, Jr., in an amount not less than $10,000.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT III - HUFFMAN V. FREIGHTWAY PUNITIVE DAMAGES 65. Paragraphs one through sixty-four are incorporated by reference as if set forth fully herein. 66. Throughout the course of Huffman's tenancy, Freightway Services never gave notice of any failure by Huffman to comply with the terms of his lease agreement. 67. Freightway only notice to quit was served on Huffman on or about November 15, 2003, which notice provided for thirty (30) days to remove himself from the premises. 68. Nonetheless, Freightway's actions through Mowery's removal of the door to Huffman's room occurred on or about November 18, 2003, at which time, Huffman suffered significant damages in personal property that was removed from his room after the door was removed. 69. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 70. Freightway's employment of self-help eviction tactics on November 18, 2003 against Huffman constitute an illegal act of an outrageous nature and therefore should entitle Huffman to an award of punitive damages from Freightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff James M. Huffman in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT IV - BAIR V. FREIGHIWAY PUNITIVE DAMAGES 71. Paragraphs one through seventy are incorporated by reference as if set forth fully herein. 72. Throughout the course of Bair's tenancy, Freightway Services never gave notice of any failure by Bair to comply with the terms of his lease agreement. 73. Freightway only notice to quit was served on Bair on or about November 24, 2003, which notice provided for only six (6) days to remove himself from the premises. 74. Nonetheless, Freightway's actions through Mowery's turning off the electricity to Bair's apartment on or about November 30, 2003 and the subsequent removal of the door to Bair's room on or about November 30, 2003, at which time, Bair suffered significant damages in personal property that was removed from his room after the door was removed. 75. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 76. Bair, as a month to month tenant, was entitled to, at a minimum, fifteen (15) days notice to quit under the Landlord Tenant Act of 1951. 77. Freightway's employment of self-help eviction tactics on November 30, 2003 against Bair constitute an illegal act of an outrageous nature and therefore should entitle Bair to an award of punitive damages from Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff Don A. Bair, Jr., in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT V - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 78. Paragraphs one through seventy-six are incorporated by reference as if set forth fully herein. 79. Huffman was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 80. Since Freightway served Huffman with notice to quit that provided him thirty (30) days to remove himself and his property from the Residence, and only three (3) days elapsed between notice being served and the removal of Huffman's door, such actions created a likelihood of confusion and misunderstanding as to Huffman's rights and obligations as a tenant. 81. At this time, Huffman believes and therefore avers that Freightway, through Mowery, never intended to allow Huffman the entire thirty (30) days to quit the premises and therefore, acted in a fraudulent and deceptive manner. 82. Such actions by Freightway, as the lessor to Huffman, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, etseq. 83. Freightway's actions against Huffman clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Huffman and against Freightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff James M. Huffman, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT VI - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 84. Paragraphs one through eighty-three are incorporated by reference as if set forth fully herein. 85. Bair was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 86. Since Freightway served Bair with notice to quit that provided him six (6) days to remove himself and his property from the Residence, and only five (5) days elapsed between notice being served and turning off of Bair's electricity and the removal of Bair's door, such actions created a likelihood of confusion and misunderstanding as to Bair's rights and obligations as a tenant. 87. At this time, Bair believes and therefore avers that Freightway, through Mowery, never intended to allow Bair a full and fair period of time within which he could quit the premises and find alternative housing accommodations and therefore, Freightway acted in a fraudulent and deceptive manner. 88. Such actions by Freightway, as the lessor to Bair, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, etseq. 89. Freightway's actions against Bair clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Bair and against Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff Don A. Bair, Jr., together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. February /I , 2004 SUPREME COURT ID NO. 87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 EXHIBIT `A' G 1 ' P x?i EXHIBITS' r i its, EXHIBIT `C' /v4 v i ;2p43 -- - - -- ----- f . . . , VERIFICATION I, the undersigned, hereby verify that I am the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. EMd9t1 -? 22004 ? ? _? ? ? z-- 8 ?? ? a ?' LAGUNA REYES MALONEY, LLP 1 1 10 NORTH FREIRT STREET. HMRISBURO. PA 1 71 02 TEL.: (717) 233.5 292 / Fro: (717) 233.5394 ATTORNEY FOR DEFENDANT C ??' ` I ?`l' ?..?•?...?? ana § DON A. BAIR, JR., § Plaintiffs § V. § FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant IN THE CI )URT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM NOTICE TO PLEAD TO: James M. Huffman Don A. Bair,Jr. c% Nathan C. Wolf, Esquire 37 S. Hanover Street, Suite 2 Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Defendant's Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Ro R. La . Jr., Esqu I e 1119 North :Front Street Harrisburg, PA 17102 (717) 233-5292 Dated: April 20, 2004 LAGUNA REYES MALONEY, LLP 1119 NORTH FRONT STREET. HMR19BURO. PA 17102 TkE.: (717) 233-5292 / Fm: (717) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § IN THE COURT OF COMMON PLEAS DON A. BAIR, JR., § CUMBERLAND COUNTY 9 PENNSYLVANIA Plaintiffs § § CIVIL ACTON - LAW V. § FREIGHTWAY SERVICES, INC., § NO. 2004-726 CIVIL TERM a Pennsylvania Corporation, § Defendant DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes the Defendant, Freightway Services, Inc., byhis attorney, Laguna Reyes Maloney, LLP, who present the following preliminary objections to Plaintiffs' Complaint based upon the following: PLAINTIFF'S COMPLAINT COUNTI Plaintiff commenced this action by filing a Complaint on March 25, 2004. A copy of the Complaint is attached hereto as "Exhibit A." 2. In Count I of the Complaint, Plaintiff Huffman alleges that Defendant violated the implied warranty of habitability as a landlord for the premises. 3. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of the defects, namely„ the missing door. 4. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect namely restore the door to Plaintiff Huffman's bedroom. 5. Plaintiff Huffman has neither shown nor alleged such notice or failure by landlord to correct said defect. Therefore, Plaintiff has failed to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count I must be stricken from the Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss paragraphs 17-31 of Plaintiff's Complaint. PRELIMINARY OBJECTION RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAI11fT COUNT II BAIR V. FREIGHTWAY - VIOLATION OF LANDLORD/TENANT ACT 6. Plaintiff commenced this action by filing a Complaint on March 25, 2004. A copy of the Complaint is attached hereto as "Exhibit A." 7. In Count II of the Complaint, Plaintiff Bair alleges that Defendant violated the implied warranty of habitability as a landlord for the premises. 8. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of the defects, namely, the missing door. 9. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect namely restore the door to Plaintiff Bair's bedroom. 10. Plaintiff Bair has neither shown nor alleged such notice or failure by landlord to correct said defect. Therefore, Plaintiff has failed to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count II must be stricken from the Complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss paragraphs 46 to 64 of Plaintiffs Complaint. COUNT III MOTION TO STRIKE COUNT III HUFFMAN V. FREIGHTWAY - PUNITIVE DAMAGES 11. In Count III of Plaintiffs Complaint, Plaintiff makes a claim for punitive damages based upon their allegations throughout the complaint that the Defendant breached various contract and warranty rights of the Plaintiff. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count III should be stricken from the Complaint with prejudice. COUNT IV MOTION TO STRIKE COUNT IV BAIR V. FREIGHTWAY - PUNITIVE DAMAGES 12. In Count IV of Plaintiffs Complaint, Plaintiff makes a claim for punitive damages based upon their allegations throughout the complaint that the Defendant breached various contract and warranty rights of the Plaintiff. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does notpermit recovery ofpunitive damages in contract actions. Therefore, this Count IV should be stricken from the Complaint with prejudice. COUNT V MOTION TO STRIKE COUNT V PRACTICES AND CONSUMER PROTECTI_ OW 13. In Count V of Plaintiff's Complaint, Plaintiff makes a claim for treble damages based upon their allegations throughout the complaint that the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count V should be stricken from the Complaint with prejudice. COUNT VI MOTION TO STRIKE CO17NT IV CONSUMER PROTECTION LAW 14. In Count VI of Plaintiff's Complaint, Plaintiff makes a claim for treble damages based upon their allegations throughout the complaint that the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery ofpunitive damages in contract actions. Therefore, this Count VI should be stricken from the Complaint with prejudice. Respectfully submitted, (7'a 7` Rog ]Laguna, Jr., squire Supreme Court I.D. No.: 75900 Attorney fbr Defendant LAGUNA REYES M ONEY, LLP 1119 North Front Street Harrisburg, PA 17102 (717) 233-5292 LAGUNA REYES MALONEY, LLP 1 119 NORTH FRONT STREE , HARRISBURG, PA 17102 TeL.: (717) 233-5292 / Fm: (717) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § IN THE COURT OF COMMON PLEAS DON A. BAIR, JR., § CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs § § CIVIL ACTON - LAW V. § § NO. 2004-726 CIVIL TERM FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I have caused a copy of the Defendant's Answer to Defendant's Preliminary Objections filed in the above-captioned matter to be served upon Plaintiffs' counsel, by regular fast-class mail, addressed as follows: Nathan C. Wolf, Esquire 37 S. Hanover Street, Suite 201 Carlisle, PA 17013 41 x k4ort (/X7 Date R- c ,a g guns, Jr., quire Supreme Court I.D. No.: 75900 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 64 SOUTH PITT STREET 3? (Livia ?' _?""? "V, ? CARLISLE PA 17013 ?rlis (717)248-O M a411-71Y,36 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, : IN THE COURT OF COMMON PLEAS OF DON A. BAIR, JR. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant CIVIL ACTION •• LAW NO. 2004 - 721= CIVIL TERM NOTICE TO DEFEND 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 an 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. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONETHE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 TRUE COPY FROM: RECORD ?n Tavtilnany ?srry;?rtN.+K f, i hers Ur!t4'S6t trry t th i of said Cou at Gari(si6. Pa. 2 c? N 1 !? j r rrn CC1 2 rn T? co r( _o w' ?T cn EXHIBIT A NATHAN C. WOLF, ESQUIRE ATTORNEY III NO. 87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243.6080 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFM- p d DON A. BAIR, JR. V. Plaintiffs FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW NO. 2004. CIVIL TERM COMPLAINT NOW, come the Plaintiffs James Huffman and Don A. Bair, Jr., by their attorney, Nathan C. Wolf, Esquire, and present the following complaint, representing as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffmanj, an adult individual residing at 108 West Main Street A County, Pennsylvania. partnent u, Mechanicsburg, Cumberland 2. The Plaintiff is Don A. Bair, Jr. (hereinafter referred to as "Bair"), an adult individual residing at 2 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. The Defendant is Freightway Services (hereinafter referred to as "Freightway"), a duly registered Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. Box 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Freightway in its relationships with Huffman and Bair. Mowery is identified also as the President and/or Chief Executive Officer of the Defendant Freightway. 5. Freightway is the record title holder of real property located at 1440 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania, also identified as Tax Parcel Number 26-24-0809-197A as evidenced by Deed dated November 26, 2002 and recorded in Deed Book 254, Page 4434 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania (hereinafter referred to as the "Residence"). 6. Erected on the property is a single family residence: having eight bedrooms, a \ living room, three bathrooms, and a kitchen contained therein. 7. Freightway, through its agent Mowery, leased bedrooms in the Residence to both Huffman and Bair, independently, through an oral agreement with each to pay the sum of $220.00 per month in rent, which sum included all utilities. 8. Huffman and Bair both lived in the Residence as tenants and paid rent to Freightway as the landlord for a period of time in excess of six months. 9. Neither Huffman nor Bair was provided with a written lease by Freightway. COUNT I - HUFFMAN v. FREIGHITWAY VIOLATION OF LANDLORD TENANT ACT 10. Paragraphs one through nine are incorporated by reference as if set forth fully herein. 11. Huffman entered into his oral lease with Freightway on or about January 22, 2003. 12. Huffman had learned about the availability to live in the Residence when he responded to a newspaper advertisement directing him to contact Mowery. 13. Huffman agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 14. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 15. Huffman was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 16. Huffman paid rent to Freightway in a timely fashion throughout the course of his lease. 17. At the beginning of November, 2003, Freightway, through Mowery, informed Huffman that some construction work would begin in the Residence during the coming month. 18. Huffman informed Mowery that he would therefor: be unable to continue to reside in the Residence once construction began, and that he would only pay a pro- rated portion of the rent for the month of November up to the date where construction began. 19. On or about November 15, 2003, Huffman received written notice from Freightway though authored by Mowery, that Huffman was being given thirty (30) days notice to vacate the premises. (A true and correct copy of said notice is attached hereto and incorporated herein as Exhibit "A") 20. Said notice was dated November 1, 2003, however, as indicated above, Huffman did not receive said notice until on or about November 17, 2003. The notice was enclosed in an envelope which bore a hand-cancelled postmark dated November 16, 2003. (A true and correct copy of the envelope which contained the notice is attached hereto and incorporated herein as Exhibit "B") 21. Huffman told Mowery, after receiving the notice that he would pay the rent for November in full on November 30, 2003, but would deduct any amount due for November if construction began before the end of the month. 22. After Huffman left for work on or about November 18, 2003, Mowery removed the door to Huffman's bedroom from its hinges and took the door from the property. 23. Upon Huffman's return from work he found the door missing and thereafter discovered some of the contents of his room missing. 24. Huffman reported the missing items to the New Cumberland Police Department immediately after discovering the theft. 25. The police informed Huffman that it was a civil matter between he and the landlord but suggested that Huffman create a list of the mussing items with their approximate value. 26. Huffman has determined that the value of the items missing from his bedroom are approximately $11,370.00. 27. Freightway's actions through its agent, Mowery, rendered Huffman's room unsuitable for habitation. 28. Freightway's actions therefore created a situation where Huffman's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 29. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 30. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Huffman of his residence. 31. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Huffman as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff James M. Huffman in an amount not less than $11,730.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT II - BAIR v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 32. Paragraphs one through thirty-one are incorporated by reference as if set forth fully herein. 33. Bair entered into his oral lease with Freightway to reside in the Residence on or about May 30, 2003. 34. Bair had been a resident of another property owned by Mowery for approximately four months prior to his moving into the residence. 35. Bair agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 36. Bair made said payments of the security deposit and monthly rent. 37. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 38. Bair was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 39. Bair paid rent to Freightway in a timely fashion throughout the course of his lease. 40. On or about November 24, 2003, Bair received written notice from Freightway though authored by Mowery, that Bair was being given until November 30, 2003, a period of only six (6) days to vacate the premises. (A true and correct copy of said notice is attached hereto as Exhibit "C' . 41. Said notice was hand-delivered by Mowery to Bair on or about November 24, 2003. 42. Bair informed Mowery, upon his receipt of the notice from Mowery, that the six days remaining before November 30, 2003, was not enough time for him to relocate. 43. Mowery responded by informing Bair that if Bair was not out of the Residence by the end of November, that Mowery would physically remove Bair. 44. Mowery also informed Bair that he would return Bair's security deposit to him but that Freightway had thirty days to do so after Bair left the premises. 45. Bair has not received his security deposit from Freightway since vacating the premises. 46. On or about November 30, 2003, at approximately 1:15 o'clock p.m., Bair was in his bedroom with his seven-year-old son when, without warning, the electricity was turned off to the room. This action also cut off heat to the room, as the room was heated with electric heat. 47. Bair exited his room with his son and found Mowery on the first floor of the Residence. At that point, Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Mowery's response was to laugh at Bair and Bair's son and to tell Bair to "move back in with your fucking mommy and daddy" and that Bair was "a worthless piece of shit". Furthermore, Mowery told Bair that Bair "needed a new lifestyle", because Bair was living in the Residence. Mowery continued by telling Bair, still in front of Bair's seven-year-old son, that he (Bair) "have your son fucked up in the brain having him here on the weekends." 48. Bair's response was to ask, Mowery what kind of person he was to turn off the electricity on a seven-year-old child. Mowery ignored this question and instead stated repeatedly that Bair should move back in with his mommy and daddy. 49. Following this exchange, Bair took his son from the Residence and went immediately to the New Cumberland Police Department to report the incident. The police officers informed Bair that the matter was civil in nature and to contact the District Justice on Monday, December 1, when the District Justice's office would be open. 50. Bair took his son to a relative's home and then traveled to another relative's home to make arrangements to relocate. 51. Upon his return at approximately 11:15 o'clock p.m., Bair discovered that the door to his room had been removed from its hinges and that the door had been removed from the property. 52. Upon further inspection Bair discovered that some of the contents of his room missing and he found drawers open and contents missing. 53. Bair's financial documents including a car title, approximately $200.00 in cash, and other personal property were missing from the room. 54. At that point, Bair was able to access the electric panel which was located in another resident's room, because that resident was home at the time and permitted him access. Bair thereafter turned the power back on in his room. 55. Bair slept in the room that night, despite the fact that the door to the room was missing. 56. At approximately 9 o'clock a.m. on December 1, 2003, Bair reported some of the missing items to the New Cumberland Police Department. The police took a report but stated that they did not want to get involved. 57. At approximately 4 o'clock p.m., Bair returned to the Residence and found that the electricity had been turned off again. Bair gathered up, as many of his belongings as he could, but he could not remove the large pieces of furniture from the room at that time. 58. When Bair was finally able to remove his furniture from the room, he found that it had been damaged. Drawers were missing handles and the various pieces were scratched and blemished. 59. Bair has determined that the value of the items missing from his bedroom and the damage to the furniture is approximately $10,000.00. 60. Freightway's actions through its agent, Mowery, rendered Bair's room unsuitable for habitation. 61. Freightway's actions therefore created a situation where Bair's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 62. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Bair during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 63. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Bair of his residence. 64. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Bair as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff Don A. Bair, Jr., in an amount riot less than $10,000.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT 111- HUFFMAN v. FREIGHTWAY PUNITIVE DAMAGES 65. Paragraphs one through sixty-four are incorporated by reference as if set forth fully herein. 66. Throughout the course of Huffman's tenancy, Freightway Services never gave notice of any failure by Huffman to comply with the terms of his lease agreement. 67. Freightway only notice to quit was served on Huffman on or about November 15, 2003, which notice provided for thirty (30) days to remove himself from the premises. 68. Nonetheless, Freightway's actions through Moweiy's removal of the door to Huffman's room occurred on or about November 18, 2003, at which time, Huffman suffered significant damages in personal property that was removed from his room after the door was removed. 69. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 70. Freightway's employment of self-help eviction tactics on November 18, 2003 against Huffman constitute an illegal act of an outrageous nature and therefore should entitle Huffman to an award of punitive damages from Freiightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff James M. Huffman in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT IV - BAIR v. FREIGH7WAY PUNITIVE DAMAGES 71. Paragraphs one through seventy are incorporated by reference as if set forth fully herein. 72. Throughout the course of Bair s tenancy, Freightway Services never gave notice of any failure by Bair to comply with the terms of his lease agreement. 73. Freightway only notice to quit was served on Bair on or about November 24, 2003, which notice provided for only six (6) days to remove himself from the premises. 74. Nonetheless, Freightway's actions through Mowery's turning off the electricity to Bair's apartment on or about November 30, 2003 and the subsequent removal of the door to Bair's room on or about November 30, 2003, at which time, Bair suffered significant damages in personal property that was removed from his room after the door was removed. 75. Freightway s failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 76. Bair, as a month to month tenant, was entitled to, at a minimum, fifteen (15) days notice to quit under the Landlord Tenant Act of 1951. 77. Freightway's employment of self-help eviction tactics on November 30, 2003 against Bair constitute an illegal act of an outrageous nature and therefore should entitle Bair to an award of punitive damages from Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff Don A. Bair, Jr., in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT V - HUFFMAN V. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 78. Paragraphs one through seventy-six are incorporated by reference as if set forth fully herein. 79. Huffman was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 80. Since Freightway served Huffman with notice to quit that provided him thirty (30) days to remove himself and his property from the Residence, and only three (3) days elapsed between notice being served and the removal of Huffman's door, such actions created a likelihood of confusion and misunderstanding as to Huffman's rights and obligations as a tenant. 81. At this time, Huffman believes and therefore avers that Freightway, through Mowery, never intended to allow Huffman the entire thirty (30) days to quit the premises and therefore, acted in a fraudulent and deceptive manner. 82. Such actions by Freightway, as the lessor to Huffman, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, etseq. 83. Freightway's actions against Huffman clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Huffman and against Freightway. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff James M. Huffman, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT VI - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 84. Paragraphs one through eighty-three are incorporated by reference as if set forth fully herein. 85. Bair was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 86. Since Freightway served Bair with notice to quit that provided him six (6) days to remove himself and his property from the Residence, and only five (5) days elapsed between notice being served and turning off of Bair's electricity and the removal of Bair's door, such actions created a likelihood of confusion and misunderstanding as to Bair's rights and obligations as a tenant. 87. At this time, Bair believes and therefore avers that Freightway, through Mowery, never intended to allow Bair a full and fair period of time within which he could quit the premises and find alternative housing accommodations and therefore, Freightway acted in a fraudulent and deceptive manner. 88. Such actions by Freightway, as the lessor to Bair, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, efseq. 89. Freightway's actions against Bair clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Bair and against Freightway. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble: damages to Plaintiff Don A. Bair, Jr., together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. February 2004 SUPREME COURT ID NO. 87380 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 EXH tBIT `A?' I /Aw p,3 z"'In 7z , .01 J ` -e/) 4vl?j _ ?I"Ilk SI. n. EXHIBITS' r ,:':. ,,. i . : >? w ;A: ?. ; ? #? EXHIBIT `C' "ir_:??e.;en-CGS. ,ft._•/Ji%J ' `j ._... ???•? /C,? ?' '..Y-?-- ?! ? -/??.r .mil =..fSi= c. ?, ate: s i / J?,. //6-L l-.?c-.... _ • . 00 _ s v lea VERIFICATION I, the undersigned, hereby verify that I am the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. ?? 2004 NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMBS M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2004 - 726 CIVIL TERM NOTICE TO DEFEND 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 an 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 maybe 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. 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 32 South Bedford Street Carlisle, PA 17013 717-249-3166 NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 701 CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFFS Ieunnn M. r1U V Irn4AN and, : IN THE COURT OF COMMON PLEAS OF DON A. BAIR, JR. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW NO. 2004 - 726 CIVIL TERM FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant AMENDED COMPLAINT NOW, come the plaintiffs James M. Huffman and Don A. Bair, Jr., by their attorney, Nathan C. Wolf, Esquire, and present the following complaint, representing as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffman"), an adult individual residing at 108 West Main Street, Apartment D, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Plaintiff is Don A- Bair, Jr. (hereinafter referred to as "Bair"), an adult individual residing at 2 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. The Defendant is Freightway Services (hereinafter referred to as "Freightway"), a duly registered Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. Box 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Freightwayin its relationships with Huffman and Bair. Mowery is identified also as the President and/or Chief Executive Officer of the Defendant Freightway. 5. Freightway is the record titleholder of real property located at 1440 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania, also identified as Tax Parcel Number 26-24- 0809-197A as evidenced by Deed dated November 26, 2002 and recorded in Deed Book 254, Page 4434 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania (hereinafter referred to as the "Residence"). 6. Erected on the property is a single family residence having eight bedrooms, a living room, three bathrooms, and a kitchen contained therein. 7. Freightway, through its agent Mowery, leased bedrooms in the Residence to both Huffman and Bair, independently, through an oral agreement with each to pay the sum of $220.00 per month in rent, which sum included all utilities. 8. Huffman and Bair both lived in the Residence as tenants and paid rent to Freightway as the landlord for a period of time in excess of six months. 9. Neither Huffman nor Bair was provided with a written lease byFreightway. COUNT I - HUFFMAN v. FREIG]EITWAY VIOLATION OF LANDLORD TENANT ACT 10. Paragraphs one through nine are incorporated by reference as if set forth fully herein. 11. Huffman entered into his oral lease with Freightway on or about January 22, 2003. 12. Huffman had learned about the availabilityto live in the :Residence when he responded to a newspaper advertisement directing him to contact Mowery. 13. Huffman agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a kitchen, a living room and one of three bathrooms. 14. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 15. Huffman was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 16. Huffman paid rent to Freightway in a timely fashion throughout the course of his lease. 17. At the beginning of November, 2003, Freightway, through Mowery, informed Huffman that some construction work would begin in the Residence during the coming month. 18. Huffman informed Mowery that he would therefore be unable to continue to reside in the Residence once construction began, and that he would only pay a pro-rated portion of the rent for the month of November up to the date where construction began. 19. On or about November 15, 2003, Huffman received written notice from Freightway though authored by Mowery, that Huffman was being given thirty (30) days notice to vacate the premises. (A true and correct copy of said notice is attached hereto and incorporated herein as Exhibit "A") 20. Said notice was dated November 1, 2003, however, as indicated above, Huffman did not receive said notice until on or about November 17, 2003. The notice was enclosed in an envelope which bore a hand-cancelled postmark dated November 16, 2003.. (A true and correct copy of the envelope which contained the notice is attached hereto and incorporated herein as Exhibit "B") 21. Huffman told Mowery, after receiving the notice that he would pay the rent for November in full on November 30, 2003, but would deduct any amount due for November if construction began before the end of the month. 22. After Huffman left for work on or about November 18, 2003, Mowery removed the door to Huffman's bedroom from its hinges and took the door from the property. 23. Upon Huffman's return from work he found the door missing and thereafter discovered some of the contents of his room missing. 24. Huffman reported the missing items to the New Grmberland Police Department immediately after discovering the theft. 25. The police informed Huffman that it was a civil matter between he and the landlord but suggested that Huffman create a list of the missing items with their approximate value. 26. Huffman has determined that the value of the items missing from his bedroom are approximately $11,370.00. 27. Huffman spoke with Mowery on November 19, 2003, and indicated that he was going to pursue and action against Freightway for the removal his door, due to the theft of the items from his room which were the result of the removal of the door. 28. Mowery replied that Huffman could sue it he wanted but that if Huffman paid Mowery the rent, then his door would be returned. Mowery furthermore stated, that if Huffman wanted to call the police that he could and told Huffman that he would enter Hiffman's room whether Huffman liked it or not. 29. Mowery also produced, from his pocket a significant amount of cash, and asked Huffman, Tlt must suck not to have this". 30. Freightway, through Mowery, was therefore notified of the defect and refused to correct the defect without payment of rent. 31. Freightway's actions through its agent, Mowery, rendered Huffman's room unsuitable for habitation. 32. Freightway's actions therefore created a situation where Huffman's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 33. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 34. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Huffman of his residence. 35. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Huffman as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff James M. Huffman in an amount not less than $11,730.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT II - BAIR v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 36. Paragraphs one through thitt},five are incorporated by reference as if set forth fully herein. 37. Bair entered into his oral lease with Freightwayto reside in the Residence on or about May 30, 2003. 38. Bair had been a resident of another property owned byN[owery for approximately four months prior to his moving into the residence. 39. Bair agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a lutchen, a living room and one of three bathrooms. 40. Bair made said payments of the security deposit and monthly rent. 41. The individual bedrooms in the residence did not have :locks on the doors, but the residents were permitted to install locks on their doors. 42. Bair was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 43. Bair paid rent to Freightway in a timely fashion throughout the course of his lease. 44. On or about November 24, 2003, Bair received written notice from Freightway though authored by Mowery, that Bair was being given until November 30, 2003, a period of only six (6) days to vacate the premises. (A true and correct copy of said notice is attached hereto as Exhibit "C") 45. Said notice was hand-delivered by Mowery to Bair on or about November 24, 2003. 46. Bair informed Mowery, upon his receipt of the notice from Mowery, that the six days remaining before November 30, 2003, was not enough time for him to relocate. 47. Mowery responded by informing Bair that if Bair was not out of the Residence by the end of November, that Mowery would physically remove Bair. 48. Mowery also informed Bair that he would return Bair's security deposit to him but that Freightway had thirty days to do so after Bair left the premises. 49. Bair has not received his security deposit from Freightway since vacating the premises. 50. On or about November 30, 2003, at approximately 1:15 o'clock p.m, Bair was in his bedroom with his seven-year-old son when, without warning, the electricity was turned off to the room This action also cut off heat to the room, as the room was heated with electric heat. 51. Bair exited his room with his son and found Mowery on the first floor of the Residence. Bair notified Mowery of the defective condition in his room, as the heat and electricity were turned off. 52. At that point, Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Mowery's response was to laugh at Bair and Bair s son and to tell Bair to "move back in with your fucking mommy and daddy" and that Bair was "a worthless piece of shit". Furthermore, Mowery told Bair that Bair "needed a new lifestyle", because Bair was living in the Residence. Mowery continued by telling Bair, still in front of Bair's seven-year-old son, that he (Bair) "have your son fucked up in the brain having him here on the weekends." 53. Bair's response was to ask Mowery what kind of person he was to turn off the electricity on a seven-year-old child. Mowery ignored this question and instead stated repeatedly that Bair should move back in with his mommy and daddy. 54. Following this exchange, Bair took his son from the Residence and went immediately to the New Cumberland Police Department to report the incident. The police officers informed Bair that the matter was civil in nature and to contact the District Justice on Monday, December 1, when the District justice's office would be open. 55. Bair took his son to a relative's home and then traveled to another relative's home to make arrangements to relocate. 56. Upon his return at approximately 11:15 o'clock p.m., Baiv- discovered that the door to his room had been removed from its hinges and that the door had been removed from the property. 57. Upon further inspection Bair discovered that some of the contents of his room missing and he found drawers open and contents missing. 58. Bair's financial documents including a car title, approximately $200.00 in cash, and other personal property were missing from the room. 59. At that point, Bair was able to access the electric panel which was located in another resident's room, because that resident was home at the time and permitted him access. Bair thereafter turned the power back on in his room. 60. Bair slept in the room that night, despite the fact that the door to the room was missing. 61. At approximately 9 o'clock a.m. on December 1, 2003, :Bair reported some of the missing items to the New Cumberland Police Department. The police took a report but stated that they did not want to get involved. 62. At approximately 4 o'clock p.m , Bair returned to the Residence and found that the electricity had been turned off again. Bair gathered up as many of his belongings as he could, but he could not remove the large pieces of furniture from the room at that time. 63. Thereafter, Bair contacted Mowery, and inquired as to the location of his door, and Mowery replied that while Bair could leave his furniture in the room for some additional time, he was not going to reinstall the door to the room, or restore the electricity to the room 64. When Bair was finally able to remove his furniture from the room, he found that it had been damaged. Drawers were missing handles and the various pieces were scratched and blemished. 65. Bair has determined that the value of the items missing from his bedroom and the damage to the furniture is approximately $10,000.00. 66. FreightwaYs actions through its agent, Mowery, rendered Bair's room unsuitable for habitation. 67. Freightway's actions therefore created a situation where Bair's room was without heat and electricity rendering it unsuitable for habitation, in contrast to the condition the room had been in before Mowery turned off the heat and electricity. 68. Freightway's actions therefore created a situation where . Bair's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 69. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Bair during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 70. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Bair of his residence. 71. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Bair as a result of the removal of the door by Mowery. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to plaintiff Don A. Bair, Jr., in an amount not less than $10,000.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT III - HUFFMAN v. FREIGHTWAY PUNITIVE DAMAGES 72. Paragraphs one through seventy one are incorporated by reference as if set forth fully herein. 73. Throughout the course of Huffman's tenancy, Freightway Services never gave notice of any failure by Huffman to comply with the terms of his lease agreement. 74. Freightway only notice to quit was served on Huffman on or about November 15, 2003, which notice provided for thirty (30) days to remove himself from the premises. 75. Nonetheless, Freightway's actions through Mowery's removal of the door to Huffman's room occurred on or about November 18, 2003, at which time, Huffman suffered significant damages in personal property that was removed from his room after the door was removed. 76. FreightwaYs failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 77. Freightway's employment of self-help eviction tactics on November 18, 2003 against Huffman constitute an illegal act of an outrageous nature and therefore should entitle Huffman to an award of punitive damages from Freightway. 78. Under the Landlord-Tenant Act specifically, and not under general principals of contract law, the Plaintiff herein is entitled to an award of punitive damages if the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff James M. Huffman in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT IV - BAIR v. FREIGHTWAY PUNITIVE DAMAGES 79. Paragraphs one through seventy nine are incorporated by reference as if set forth fully herein. 80. Throughout the course of Bair's tenancy, Freightway Services never gave notice of any failure by Bair to comply with the terms of his lease agreement. 81. Freightway only notice to quit was served on Bair on or about November 24, 2003, which notice provided for only six (6) days to remove himself from the premises. 82. Nonetheless, Freightway's actions through Mowery's turning off the electricity to Bair's apartment on or about November 30, 2003 and the subsequent removal of the door to Bair's room on or about November 30, 2003, at which time, Bair suffered significant damages in personal property that was removed from his room after the door was removed. 83. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 84. Bair, as a month to month tenant, was entitled to, at a minimum, fifteen (15) days notice to quit under the Landlord Tenant Act of 1951. 85. Freightway's employment of self-help eviction tactics on November 30, 2003 against Bair constitute an illegal act of an outrageous nature and therefore should entitle Bair to an award of punitive damages from Freightway. 86. Under the Landlord-Tenant Act specifically, and not under general principals of contract law, the Plaintiff herein is entitled to an award of punitive damages if the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff Don A. Bair, Jr., in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT V - HUFFMAN v. FREICFHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 87. Paragraphs one through eighty six are incorporated by reference as if set forth fully herein. 88. Huffman was never served with notice of an action in ejectment or an action to recover possession filed by Freightway. 89. Since Freightway served Huffman with notice to quit that provided him thirty (30) days to remove himself and his property from the Residence, and only three (3) days elapsed between notice being served and the removal of Huffman's door, such actions created a likelihood of confusion and misunderstanding as to Huffman's rights and obligations as a tenant. 90. At this time, Huffman believes and therefore avers that Freightway, through Mowery, never intended to allow Huffman the entire thirty (30) days to quit the premises and therefore, acted in a fraudulent and deceptive manner. 91. Such actions byFreightway, as the lessor to Huffman, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. §201-1, et seg. 92. Freightway's actions against Huffman clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Huffman and against Freightway. 93. Because the Landlord-Tenant Act is not applied utilizing general principals of contract law, the Unfair Trade Practices and Consumer Protection may apply and, therefore the Plaintiff herein would be entitled to an award of treble damages and counsel fees if the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff James M. Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff James M. Huffman, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT VI - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE: PRACTICES AND CONSUMER PROTECTION LAW 94. Paragraphs one through ninety-three are incorporated byreference as if set forth fully herein. 95. Bair was never served with notice of an action in ejectment or an action to recover possession filed byFreightway. 96. Since Freightway served Bair with notice to quit that provided him six (6) days to remove himself and his property from the Residence, and only five (5) days elapsed between notice being served and turning off of Bair's electricity and the removal of Bair's door, such actions created a likelihood of confusion and misunderstanding as to Bair's rights and obligations as a tenant. 97. At this time, Bair believes and therefore avers that Freightway, through Mowery, never intended to allow Bair a full and fair period of time within which he could quit the premises and find alternative housing accommodations and therefore, Freightway acted in a fraudulent and deceptive manner. 98. Such actions by Freightway, as the lessor to Bair, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. C.S. 5201-1, et seq. 99. Freightway s actions against Bair clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection. Law, therefore permitting the award of treble damages and counsel fees to Bair and against Freiightway. 100. Because the Landlord-Tenant Act is not applied utilizing general principals of contract law, the Unfair Trade Practices and Consumer Protection may apply and, therefore the Plaintiff herein would be entitled to an award of treble damages and counsel fees if the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff Don A. Bair, Jr., together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. May A0 , 2004 NATHAN "O:LF '(- Attorney for Plaintiffs SUPREME COURT ID O. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 VERIFICATION I, the undersigned, hereby verify that I am counsel for the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904, relating to unswom falsification to authorities. 0, 2004 n .- ,, s- ?;; _? - -, -o'm _ _ , C? ?_;lJ ? T _}{ I?; ?. ' ..- ? ;''.'1 C.] ? _?y <-? -. N NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : NO. 2004 - 726 CIVIL TERM CERTIFICATE OF SE IC I, Nathan G Wolf, Esquire, have served a true and correct copy of the foregoing amended complaint upon the following person and in the matter indicated: SERVICE BY U.S. MAIL: Roger R Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 May A) , 2004 Attey for Plaintiff's SU REME COURT ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 c? r? q o - r n p(Y r7l O n «Q -i V -i _? O I7 h5 -G LAGUNA REYES MALONEY, LLP I I 19 NORTH FRONT STREET, HARRISBURG, PA 1 7102 TEL.: (7) 7) 233-5292 / FAR: (71 7) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § DON A. BAIR, JR., § Plaintiffs § V. § FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM DEFENDANT'S PRELIMINARY OIBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Freighway Services, Inc., by and through its attorneys, Laguna Reyes Maloney, LLP, who present the following Preliminary Objections to Plaintiff's Amended Complaint based upon the following: PRELIMINARY OBJECTION RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S AMENDED COMPLAINT COUNTI HUFFMAN V. FREIGHWAY VIOLATION OF LANDLORD/TENANT ACT 1. Plaintiff filed an Amended Complaint in response to Defendant's Preliminary Objections. Said Amended Complaint was filed on May 10" 2004. A copy of the Amended Complaint is attached hereto as Exhibit "A". 2. In Count I of the Amended Complaint, Plaintiff Huffman alleges that Defendant violated the implied warranty of habitability as the landlord for the premises. 3. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of a defect, namely the missing door. 4. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect, namely restore the door to Plaintiff Huffman's bedroom in a commercially reasonable time period. 5. While Plaintiff Huffman has alleged in Count 28 of the Amended Complaint that Defendant was provided notice of the defect, namely the missing door, Plaintiff has failed to properly allege that Defendant failed to correct the defect by restoring the door to Plaintiff Huffman's bedroom in a commercially reasonable time period. 6. Plaintiff Huffman alleges that the door was removed on November 18, 2003. 7. Plaintiff Huffman alleges that he spoke with Defendant on November 19, 2003 and that on November 19, 2003 Defendant refused to correct the defect. 8. A period of less than 24 hours is not a commercially reasonable time period in which to expect such a defect to be repaired. 9. Therefore, Plaintiff has failed to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count I must be stricken from the complaint with prejudice. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss Paragraphs 20 through 35 of Plaintiff's Complaint. PRELIMINARY OBJECTION RAISING LEGAI. INSUFFICIENCY OF PLAINITIFF'S AMENDED COMPLAINT COUNTI HUFF MAN V. FREIGHTWAY - VIOLATION OF LANDLORD/TENANT ACT 10. In Count I of Plaintiff's Amended Complaint, Plaintiff Huffman alleges that Defendant violated the warranty of habitability by failing to provide adequate notice to quit the premises. 11. In order to succeed under this claim, Plaintiff would have to show that he was not provided with fifteen (15) days notice under his month-to-month lease. Paragraph 19 of Plaintiff's Amended Complaint alleges that "on or about November 15, 2003, Plaintiff Huffman received written notice from 1?rieghtway though authored by Mowery, that Huffman was being given thirty (30) days notice to vacate the premises." 12. As Defendant was only required to provide Plaintiff with fifteen (15) days notice, which he was provided on November 15, 2003, Plaintiff s claims for violation of the implied warranty of habitability under this count must fail. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of a demurrer and dismiss Paragraphs 20-35 of Plaintiff's Amended Complaint. PRELIMINARY OBJECTION RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S AMENDED COMPLAINT COUNT II BAIR V. FRIEGHTWAY VIOLATION OF LANDLORD/TENANT ACT 13. In Count II of the Amended Complaint, Plaintiff Bair alleges that Defendant violated the implied warranty of habitability as the landlord for the premises. 14. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord was provided notice of a defect, namely the missing door. 15. In order to succeed under this claim, Plaintiff would have to allege that Defendant Landlord failed to correct the defect, namely restore the door to Plaintiff Bair's bedroom in a commercially reasonable period of time. 16. While Plaintiff Bair has alleged in Count 28 of the Amended Complaint that Defendant was provided notice of the defect, namely the missing door, Plaintiff has failed to properly allege that Defendant failed to correct the defect by restoring the door to Plaintiff Bair's bedroom in a commercially reasonable period of time. 17. Plaintiff Bair alleges that the door was removed on November 30, 2003. 18. Plaintiff Bair alleges that he spoke with Defendant on December 1, 2003 and that on December 1, 2003 Defendant refused to correct the defect. 19. A period of less than 24 hours is not a commercially reasonable time period in which to expect such a defect to be repaired. 20. Therefore, Plaintiff has failed to properly allege a claim for violation of implied warranty of habitability and the allegations contained in Count I must be stricken from the complaint with prejudice. WHEREFORE, Defendant respectfully requests this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss Paragraphs 50 through 71 of Plaintiff's Amended Complaint. PRELIMINARY OBJECTIONS RAISING LEGAL INSUFFICIENCY OF PLAINTIFF'S AMENDED COMPLAINT COUNT III HUFFMAN V. FREIGHTWAY - PUNITIVE DAMAGES 21. In Count III of Plaintiff's Amended Complaint, Plaintiff Huffman alleges that Defendant violated provisions of the Landlord/Tenant Act of 1951 by failing to provide Defendant with adequate notice to quit. 22. In Paragraphs 33 and 74 of Plaintiff's Amended Complaint, Plaintiff alleges that on or about November 15, 2003, Defendant was proviided notice to quit the premises. 23. As a month-to-month tenant under the Landlord/Tenant Act of 1951, Defendant is only required to give Plaintiff fifteen (15) days to quit the premises by Plaintiff's own admission, Plaintiff Huffman was in fact provided with fifteen (15) days notice. 24. Therefore, Plaintiff has failed to properly allege a claim for violation ofthe provisions of the Landlord/Tenant Act of 1951 and the allegations contained in Count III must be stricken from the complaint with prejudice. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections by way of demurrer and dismiss Paragraphs 72 through 78 of Plaintiff's Amended Complaint. COUNT III MOTION TO STRIKE COUNT III HUFFMAN V. FREIGHTWAY - PUNITIVE DAMAGES 25. In Count III of Plaintiff s Complaint, Plaintiff makes a claim for punitive damages based upon his allegations throughout the complaint that Defendant breached various contact and warranty rights of the Plaintiff, arising wider the lease between Plaintiff and Defendant. All such claims, if proven, would be recoverable as contract actions under the lease between Plaintiff and Defendant. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore this Count III should be stricken from the complaint with prejudice. COUNT IV MOTION TO STRIKE COUNT IV BAIR V. FREIGHWAY - PUNITIVE DAMAGES 26. In Count IV of Plaintiff's Complaint, Plaintiff makes a claim for punitive damages based upon his allegations throughout the complaint that Defendant breached various contact and warranty rights of the Plaintiff, arising under the lease between Plaintiff and Defendant. All such claims, if proven, would be recoverable as contract actions under the lease between Plaintiff and Defendant. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore this Count IV should be stricken from the complaint with prejudice. COUNT V AND CONSUMER PROTECTION LAW 27. In Count V of Plaintiff's Complaint, Plaintiff makes a claim for treble damages based upon their allegations throughout the complaint that the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count V should be stricken from the Complaint with prejudice. COUNT VI MOTION TO STRIKE COUNT VI kY - VIOLATION OF UNFAIR TRA CONSUMER PROTECTION LAW 28. In Count VI of Plaintiff's Complaint, Plaintiffmakes a claim for treble damages based upon their allegations throughout the complaint that the Defendant breached various contract rights of the Plaintiff in regard to the lease agreement between plaintiff and defendant. All such claims, if proven, would be recoverable as contract actions. Pennsylvania law does not permit recovery of punitive damages in contract actions. Therefore, this Count VI should be stricken from the Complaint with prejudice. Respectfully submitted, <rX7) Rog r R. Laguna, Jr., squire Supreme Court I.D. No.: 75900 Attorney for Defendant LAGUNA REYES MALONEY, LLP 1119 Nonh Front Street Harrisburg, PA 17102 (717)233-5292 LAGUNA REYES MALONEY, LLP I I 19 NORTH FRONT STREET, HARRISBURG, PA 1 7102 TEL.: (717) 233-5292 / Fax: (71 7) 233-5394 ATTORNEYS FOR PETITIONER JAMES M. HUFFMAN and § DON A. BAIR, JR., § Plaintiffs § V. § FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I served a copy of Defendant's Preliminary Objections to Plaintiffs' Amended Complaint, filed in the above-captioned matter by regular first-class U.S. to the following address: Nathan C. Wolf, Esquire 37 S. Hanover Street, Suite 201 Carlisle, PA 17013 Io?R. L-ecn?.wKO,,7 ? Cn.xc?.) Roger R. Laguna, Jr., Esquire Supreme Court I.D. No.: 75900 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 31 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 741-4436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and , DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION- LAW : NO- 2004 - 725 CIVIL TERM NOTICE TO DEFEND 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 anattorney 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 mayproceed 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, 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 WHI3RE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 T'RUE COPY FOm 3Il~CORD in TasttinOnY wter a" the a ! Ore un.0 1 ofday s?-p my ha#W3 y C'Ourt at Cairn* P., O? P Ol/L EXHIBIT A prtl!ts'?' ~ NATHAN C. WOLF, ESQUIRE ATTORNEY ID No. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - 726 CIVIL TERM AMENDED COMPLAII_T NOW"' the Plaintiffs James M Huffman and Don A. Bair, Jr., bytheir attorney Nathan CWolf, Esquire, and present the following complaint, re presenting as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffman"), an adult individual residing at 108 West Main Street, Apartment D, Mechanicsburg, Cumberland County, Pennsylvania, 2. The Plaintiff is Don A- Bair, Jr. (hereinafter referred to as -Bah?), an adult individual residing at 2 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania. 3. The Defendant's FreightwayServices (hereinafter referred to as "Freightway"), a duly registered Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. Box 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Freightway in its relationships with Huffman and Bair. Mowery is identified also as the President and/or Chief Executive Officer of the Defendant Freightway. 5. Freightwayis the record titleholder of real property located at 1440 Simpson Ferry Road, New Cumberland, Cumberland County, Pennsylvania, also identified as Tax Parcel Number 26-24- 0809-197A as evidenced by Deed dated November 26, 2002 and recorded in Deed Book 254, Page 4434 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania (hereinafter referred to as the "Residence"). 6. Erected on the property is a single family residence havvzg eight bedrooms, a living room, three bathrooms, and a kitchen contained therein. 7. Freightway, through its agent Mowery, leased bedrooms :in the Residence to both Huffman and Bair, independently, through an oral agreement with each to pay the sum of $220.00 per month in rent, which sum included all utilities. 8. Huffman and Bair both lived in the Residence as tenants and paid rent to Freightway as the landlord for a period of time in excess of six months. 9. Neither Huffman nor Bair was provided with a written lease byFreightway. COUNT I - HUFFMAN v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 10. Paragraphs one through nine are incorporated byreference as if set forth fully-herein. 11. Huffman entered into his oral lease with Freightway on or about January 22, 2003. 12. Huffman had learned about the availability to live in the Residence when he responded to a newspaper advertisement directing him to contact Mowery. 13. Huffman agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. access to a kitchen, a living room and one of three bathrooms. Said sum was to include rent for one bedroom, plus all utilities and 14. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 15. Huffman was provided with a key to the lock on his bedroom door. residence, however he provided and installed a 16. Huffman paid rent to Freightwayin a timely fashion throughout the course of his lease. 17. At the beginning of November, 2003, Freightway, through Mowery, informed Huffman that some construction work would begin in the Residence during the coming month. 18. Huffman informed Mowery that he would therefore be unable to continue to reside in the Residence once construction began, and that he would only pay a. pro-rated portion of the rent for the month of November up to the date where construction began. 19. On or about November 15, 2003, Huffman received written notice from Freightway though authored byMowery, that Huffman was (king given thirty (30) days notice to vacate the premises. (A true and correct copy of said notice is attached hereto and incorporated herein as Exhibit "A") 20. Said notice was dated November 1, 2003, however, as indicated above, Huffman did not receive said notice until on or about November 17, 2003. The notice was enclosed in an envelope which bore a hand-cancelled postmark dated November 16, 2003. (A true and correct copy of the envelope which contained the notice is attached hereto and incorporated herein as Exhibit "B") 21. Huffman told Mowery, after receiving the notice that he would pay the rent for November in full on November 30, 2003, but would deduct any amount due for November if construction began before the end of the month. 22. After Huffman left for work on or about November 18, 2003, Mowery removed the door to Huffman's bedroom from its hinges and took the door from the property. 23. Upon Huffman's return from work he found the door missing and thereafter discovered some of the contents of his room missing 24. Huffman reported the missing items to the New Cuml'3erland Police Department immediately after discovering the theft. 25. The police informed Huffman that it was a civil matter, between he and the landlord but suggested that Huffman create a list of the missing items with their approximate value. 26. Huffman has determined that the value of the items missing from his bedroom are aPProxinIately $11,370.00. 27. Huffman spoke with Mowery on November 19, 2003, and indicated that he was going to pursue and action against Freightway for the removal his door, due to the theft of the items from his room which were the result of the removal of the door. 28. Mowery replied that Huffman could sue it he wanted but that if Huffman Paid Mowery the rent, then his door would be returned. Mowery furthermore stated, that if Huffman wanted to call the police that he could and told Huffman that he would enter Huffman's room whether Huffman liked it or not. 29. Mowery also produced, from his pocket a significant amount of cash, and asked Huffman, "111t must suck not to have this". 30. Fre'htwa -- ------"`` . g y' through Mowery, was therefore notified of tli? d -efect and refused to correct the j defect without payment of rent. 31. Freightway's actions through its agent, Mowery, rendered Huffman's room unsuitable for habitation. 32. Freightway's actions therefore created a situation where Huffman's room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 33. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman during the existence of the lease term, and the notice to vacate was insufficient to satisfy the requirements of the statute. 34. Freightway's actions are tantamount to a self-help eviction and such action constructively denied Huffman of his residence. 35. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Huffman as a result of the removal of the door byMowery. WHEREFORE, Plaintiff James M Huffman, prays that this Honorable Court find that Defendant Freightway Services, Inc., violated the Landlord Tenant Act of 1951, and award damages to Plaintiff James M. Huffman in an amount not less than $11,730.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT II - BAIR v. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 36. Paragraphs one through thirt}xfive are incorporated by reference as if set forth fully herein. 37. Bair entered into his oral lease with Freightway to reside in the Residence on or about May 30, 2003. 38. Bair had been a resident of another property owned by Mowery for approximately four months prior to his moving into the residence. 39. Bair agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. Said sum was to include rent for one bedroom, plus all utilities and access to a latchen, a living room and one of three bathrooms. 40. Bair made said payments of the security deposit and monthly rent. 41. The individual bedrooms in the residence did not have locks on the doors, but the residents were permitted to install locks on their doors. 42. Bain was provided with a key to the residence, however he provided and installed a lock on his bedroom door. 43. Bair paid rent to Freightwayin a timely fashion throughout the course of his lease. 44. On or about November 24, 2003, Bair received written notice from Freightway though authored byMowery, that Bair was being given until November 30, 2003, a period of onlysix (6) days to vacate the premises. (A true and correct copy of said notice is attached hereto as Exhibit "(7), 45. Said notice was hand-delivered byMoweryto Bair on or about November 24, 2003. 46. Bair informed Mowery, upon his receipt of the notice from Mowery, that the six days remaining before November 30, 2003, was not enough time for him to relocate. 47• Mowery responded by informing Bair that if Bair was not out of the Residence by the end of November, that Mowery would physically remove Bair. 48. Mowery also informed Bair that he would return Ban's security deposit to him but that Freightway had thirty days to do so after Bair left the premises. 49. Bair has not received his security deposit from Freightwaysince vacating the premises. 50. On or about November 30, 2003, at approximately 1:15 o'clock p.m, Bair was in his bedroom with his seven-year-old son when, without warning, the electricitywas turned off to the room This action also cut off heat to the room, as the room was heated with electric heat. 51. Bair exited his room with his son and found Mowery on the first floor of the Residence. Bair notified Mowery of the defective condition in his room, as the heat and electricity were turned off. 52. At that point, Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Mowery's response was to laugh at Bair and Bair's son and to tell Bair to "move back in with your fucking mommy and daddy" and that Bair was "a worthless piece of shit". Furthermore, Mowery told Bair that Bair "needed a new lifestyle", because Bair was living in the Residence. Mowery continued by telling Bair, still in front of Bau?s seven-year-old son, that he (Bair) "have your son fucked up in the brain having him here on the weekends." 53. Ban's response was to ask Mowery what kind of person lie was to rum off the electricity on a seven-year-old child. Mowery ignored this question and instead. stated repeatedly that Bair should move back in with his mommy and daddy. 54. Following this exchange, Bair took his son from the Residence and went immediately to the New Cumberland Police Department to report the incident. The police officers informed Bair that the matter was civil in nature and to contact the District justice on Monday, December 1, when the District Justice's office would be open. 55. Bair took his son to a relative's home and then traveled to another relative's home to make arrangements to relocate. 56. Upon his return at approximately 11:15 o'clock p.m., Bair discovered that the door to his room had been removed from its hinges and that the door had been removed from the property. 57. Upon further inspection Bair discovered that some of the contents of his room missing and he found drawers open and contents missing. 58. Ban's financial documents including a car title, approximately $200.00 in cash, and other personal property were missing from the room 59. At that point, Bair was able to access the electric panel which was located in another resident's room, because that resident was home at the time and permitted him access. Bair thereafter turned the power back on in his room 60. Bair slept in the room that night, despite the fact that the door to the room was missing 61. At approximately9 o'clock am. on December 1, 2003, Bair reported some of the missing items to the New Cumberland Police Department. The police took a report but stated that they did not want to get involved. 62. At approximately 4 o'clock px., Bak returned to the Residence and found that the electricityhad been turned off again. Bair gathered up as many of his belongings as he could, but he could not remove the large pieces of furniture from the room at that time. E63. Thereafter, Bair contacted Mowery, and inquired as to the location of his door, and ry replied that while Bair could leave his furniture in the room for some additional time, he t going to reinstall the door to the room, or restore the electricity to the room 64. When Bair was finally able to remove his furniture from the room, he found that it had been damaged. Drawers were missing handles and the various pieces were scratched and blemished. 65. Bair has determined that the value of the items missing from his bedroom and the damage to the furniture is approximately $10,000.00. 66. Freightway's actions through its agent, Mowery, rendered Bau's room unsuitable for habitation. 67. Freightway s actions therefore created a situation where Bales room was without heat and electricity rendering it unsuitable for habitation, in contrast to the condition the room had been in before Mowery turned off the heat and electricity. I 8. Freightway's actions therefore created a situation where Bair s room was no longer secure, nor was it private, as the conditions had been before Mowery removed the door. 69. Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Bair during the existence of the lease term, and the notice to vacate was insufficient to satisfythe requirements of the statute. 70. FreightwaYs actions are tantamount to a self-help eviction and such action constructively denied Bair of his residence. 71. Freightway's actions were in clear violation of its duties under the Landlord Tenant Act and as such Freightway should be liable for the losses incurred by Bair as a result of the removal of the door byMowery. WHEREFORE, Plaintiff-Don A. Bair, Jr, prays that this Honorable Court find that Defendant Freightway services, Inc., violated the Landlord Tenant Act of 19°i 1, and award damages to Plaintiff Don A. Bair, Jr., in an amount not less than $10,000.00, plus costs of this suit, attorneys fees and any other relief that the Court deems appropriate. COUNT III - HUFFMAN v. FREIGHTWAY PUNITIVE DAMAGES 72' Paragraphs one through sevent)xone are incorporated by reference as if set forth fully herein. 73. Throughout the course of Huffman's tenancy, Freightway Services never gave notice of any failure by Huffman to complywith the terms of his lease agreement. 74. Freightwayonly notice to quit was served on Huffman on or about November 15, 2003, which notice provided for thirty (30) days to remove himself from the premises. 75. Nonetheless, Freightway's actions through Mowery's removal of the door to Huffman's room occurred on or about November 18, 2003, at which time, Huffman suffered significant damages in personal property that was removed from his room after the door was removed. 76. Freightway's failure to provide adequate notice is a viollation of the provisions of the Landlord Tenant Act of 1951, et seq. 77. Freightway's employment of self-help eviction tactics on November 18, 2003 against Huffman constitute an illegal act of an outrageous nature and therefore should entitle Huffman to an award of punitive damages from Freightway. Eaawardd 8. Under the Landlord-Tenant Act specifically, and not under general principals of contract he Plaintiff herein is entitled to an award of punitive damages if the actions of the landlord constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff James R Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were outrageous conduct iin violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff James M Huffman in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT IV - BAIR v. FREIGIITWAY PUNITIVE DAMAGES, 79. Paragraphs one through sevent}inine are incorporated by reference as if set forth fully herein. 80. Throughout the course of Bair's tenancy, Freightway Services never gave notice of any failure by Bair to complywith the terms of his lease agreement. 81. Freightway only notice to quit was served on Bair on or' about November24, 2003, which notice provided for only six (6) days to remove himself from the premises. 82. Nonetheless, Freightway's actions through Mowery's tinning off the electricity to Bair's apartment on or about November 30, 2003 and the subsequent removal of the door to Ban's room on or about November 30, 2003, at which time, Bair suffered significant damages in personal Property that was removed from his room after the door was removed. 83. Freightway's failure to provide adequate notice is a violation of the provisions of the Landlord Tenant Act of 1951, et seq. 84. Bair, as a month to month tenant, was entitled to, at a minimum, fifteen (15) days notice to quit under the Landlord Tenant Act of 1951. 85. Freightway's employment of self-help eviction tactics on November 30, 2003 against Bair constitute an illegal act of an outrageous nature and therefore should entitle Bair to an award of punitive damages from Freightway. 86. Under the Landlord-Tenant Act specifically, and not under general principals of contract law, the Plaintiff herein is entitled to an award of punitive damages :& the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant FreightwayServices, Inc., were outrageous conduct ,in violation the Landlord Tenant Act of 1951, and award punitive damages to Plaintiff Don A. Bair, Jr., in an amount not less than $25,000.00, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate. COUNT V - HUFFMAN v. FREIGHTWAY VIOLATION OF THE UNFAIR TRAD17 PRACTICES AND CONSUMER PROTECTION LAW 87. Paragraphs one through eight six are incorporated by reference as if set forth fully herein. 88. Huffman was never served with notice of an action in ejectment or an action to recover possession filed byFreightway. 89. Since Freightwayserved Huffman with notice to quit that provided him thirty (30) days to being himself and his property from the Residence, and only thme (3) days elapsed between notice ng served and the removal of Huffman's door, such actions createda likelihood of confusion and misunderstanding as to Huffman's rights and obligations as a tenant.. 90. At this time, Huffman believes and therefore avers that Freightway, through Mowery, never intended to allow Huffman the entire thirty (30) days to quit the premises and therefore, acted in a fraudulent and deceptive manner. an 91. Such actions byFreightway as the lessor to Huffman, a Odcntia lessee were in violation of the Unfair Trade Practices and Consumer Protection Law, under i'3 Pa. CS. §201-1, et seq. 92. Freightway's actions against Huffman clearly constitute outrageous conduct and a willful violation of the Unfair Trade Practices and Consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Huffman and against F rightway. 93. Because the Lin general Act is not applied utppthe Unfair Trade Practices and Consumer Protection may alygand, therefore principals Plaintiff herein' would be entitled to an award of treble damages and counsel fees if the actions of the landlord would constitute an illegal act of an outrageous nature, in violation of the tenant's rights. Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff James M Huffman, prays that this Honorable Court find that the actions of Defendant Freightway Services, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff James M Huffman, together with costs of litigation, counsel fees and any other relief that the Court deems appropriate COUNT VI - HUFFMAN v FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 94. Paragraphs one through ninety three are incorporated by reference as if set forth fully herein. 95. Bair was never served with notice of an action in ejectment or an action to recover possession filed byFreightway. 96. Since Freightway served Bair with notice to quit that provided him six (6) days to remove himself and his property from the Residence, and only five (5) days elapsed between notice being served and turning off of Ban's electricity and the removal of Ban's door, such actions created a likelihood of confusion and misunderstanding as to Ban's rights and obligations as a tenant. 97. At this time, Bair believes and therefore avers that Freightway, through Mowery, never intended to allow Bair- a full and fair period of time within which he could quit the premises and find alternative housing accommodations and therefore, Freightway acted in a fraudulent and deceptive manner. K Such actions by Freightway, as the lessor to Bair, a residential lessee, were in violation of the Unfair Trade Practices and Consumer Protection Law, under 73 Pa. CS. 5201-1, et seq. 99. Freightway's actions against Bair clearly constitute outrageous conduct and a willful violation of the Unfair Trade practices and consumer Protection Law, therefore permitting the award of treble damages and counsel fees to Bair and against Freightway. [the . Because the Landlord-Tenant Act is not applied utilizing general principals of t lave, the Unfair Trade Practices and Consumer Protection may apply and, therefore the f herein would be entitled to an award of treble damages and counsel fees if the actions of lord would constitute an illegal act of an outrageous nature, in violation of the tenant's Such an award is therefore appropriate under these facts and circumstances. WHEREFORE, Plaintiff Don A. Bair, Jr., prays that this Honorable Court find that the actions of Defendant FreightwayServices, Inc., were in violation of the Unfair Trade Practices and Consumer Protection Law, and award treble damages to Plaintiff Don A. Bairp Jr., together with costs of litigation, counsel fees and any other relief that the Court deems appropriate May /0 , 2004 NATHANOLF Attorney for Plaintiffs SUPREME COURT ID 0.87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 VERIFICATION I, the undersigned, hereby verify that I am counsel for the plaintiff in this action and that the facts stated in the above complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. GS. $4904, relating to unswom falsification to authorities. 67- j 2004 NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 701 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. : IN THE COURT OF COMMON PLEAS OF 'CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant NO. 2004 - 726 CIVIL TERM CERTIFICATR OF SERUC-E I, Nathan C Wolf, Esquire, have served a true and correct copy of the foregoing amended complaint upon the following person and in the matter indicated: Roger R Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 May AL, 2004 Att eY for Plainulfs SU REME COUR 'ID N0.87380 37 S UTH NANO MR STREET, SUITE 201 CARLISLE PA 170Li (717) 241-4436 r A ibrJl r,'?tF t,l fifz mm' / T?---._BDd? 111. ? ?t '.31,?t. i•"A V _ ? .? N c.? n .o T .I_ ,? l ' -? n a . r ' ' 7 ?i=? r r, _... C ? t -- ts3 s i -? i -_ ?, -`': IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY. Kindly list the within matter for the next Argument Court. JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. CIVIL ACTION - LAW NO. 7004 - 726 CIVIL TERM FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant 1. Matter to be argued is defendant's preliminary objections. 2. Counsel for Plaintiff is: NATHAN C. WOLF, ESQUIRE 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 Counsel for Defendant is: ROGER R. LAGUNA, JR., ESQUIRE 1119 NORTH FRONT STREET HARRISBURG, PA 17102 3. I will notified all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 28, 2004 June 0' , 2004 Atto ey for Plaintiffs PREME COURT ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2004 - 726 CIVIL TERM CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of the foregoing praecipe for listing case for argument upon the following person and in the matter indicated: SERVICE BY U.S. MAIL: Roger R. Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 June /(, 2004 P'C. WOLF for Plaintiffs 53PREME COURT ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 C7 N Q d r ? ? Ts F'n cz) ( ., Ta Y J z N K #10 JAMES M. HUFFMAN IN THE COURT OF COMMON PLEAS OF And DON A. BAIR, JR. CUMBERLAND COUNTY, PENNSYLVANIA V. FREIGHTWAY SERVICES, : NO. 2004-0726 CIVIL TERM INC., a Pennsylvania Corporation CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAINT BEFORE HOFFER P.J., OLER, GU 30, JJ. ORDER OF COURT AND NOW, this 19TH day of AUGUST, 2004, Defendants' Preliminary Objections to the Amended Complaint are DISMISSED. Nathan C. Wolf, Esquire 0 Michael D. O'Mara, Esquire :sld Edward E. Guido, J. 0 8 - 23 ? 0 ?? r C? ? .e + 1?.7C e?i^7 ?'1 LAGUNA REYES MALONEY, LLP I 1 1 9 NORTH FRONT STREET, HARRISBURG. PA 1 71 02 TEL.! (71 7) 233-5292 / FA : (71 7) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § DON A. BAIR, JR., § Plaintiffs § V. § FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, § Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM AND NOW, comes the Defendant, Freightway Services, Inc., by and through its attorneys, Laguna Reyes Maloney, LLP and answers Plaintiff's Complaint: 1. Upon information and belief, admitted. 2. Upon information and belief, admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that the property is a single family residence having eight (8) bedrooms, a living room and a kitchen. It is denied that the bedroom contains three (3) bathrooms, but rather four (4). 7. Admitted. 8. Admitted in part, denied in part. It is admitted that Huffman and Bair both lived in the residence as tenants for a period of time in excess of six months. It is denied that Huffman and Bair paid regular rent to Freightwa.y as the landlord. 9. Admitted. Answering further, Defendant entered into an oral lease with both Plaintiff Huffman and Plaintiff Bair. COUNT I - HUFFMAN V FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 10. No response is required. 11. Admitted. 12. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and therefore said averments are denied and strict proof thereof is demanded. 13. Admitted in part, denied in part. It is admitted that Plaintiff, Huffman, agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. It is admitted that said sum was to include one bedroom plus all utilities and access to a kitchen, and a living room. It is denied that said sum was to include rent for one of three (3) bathrooms, but rather one of four (4) bathrooms. 14. Admitted. 15. Upon information and belief, admitted. 16. Denied. It is specifically denied that Plaintiff Huffman paid rent to Freightway in a timely fashion throughout the course of the lease. Answering further, on several occasions, Plaintiff Huffman was late in paying his rent. 17. Admitted. Answering further, Freightway, through Mowery, also informed Plaintiff Huffman's fiance, Marrisa Stumpf, who is also residing at the property, that construction work would begin on December 1 s` 18. Admitted in part, denied in part. It is admitted that Plaintiff Huffman informed Defendant Mowery that he would be unable to continue to reside in the residence after December 1 s` once the construction began. It is specifically denied that Plaintiff Huffman informed Mowery that he would only pay a prorated portion of the rent for the month of November up to the date where construction began. Answering further, at approximately the end of October 2003, prior to Mowery's note to Plaintiff Huffrnan on November 1, 2003, Plaintiff Huffman. informed Mowery that he and his fiance, Marrisa Stumpf would be vacating the premises at the end of November, as they had found a new place to reside. Answering further, Defendant, who indicated that construction would begin on December 1 s`, and that Plaintiff Huffman intended on vacating on or before November 30, 2003, required full payment for the full month of November 2003. 19. Admitted in part, denied in part. It is admitted that Freightway through Mowery issued a letter to Plaintiff Huffman that was written on November 1, 2003. It is denied that Plaintiff Huffman received the notice on or about November 15, 2003. Answering further, on November 15, 2003, Defendant Mowery had already received notification from PlaintiffHuffman approximately two (2) weeks prior, that he would be voluntarily vacating the premises on or before November 30, 2003, as he had found a new place to reside, therefore no notice from Defendant was even required. 20. Admitted in part, denied in part. It is admitted that the notice is dated November 1, 2003. It is specifically denied that Plaintiff Huffman did not receive the notice until November 17, 2003. 21. Denied. It is specifically denied that Plaintiff Huffman indicated to Defendant that he would deduct any rent due for November if construction began before the end of the month. Answering further, as indicated above, Plaintiff Huffman indicated to Defendant Mowery on or about the end of October, 2003, that he would be voluntarily vacating the premises on or before November 30, 2003, as he had found a new place to live, and therefore he is responsible for the full rental payment of $220.00 for the month of November. 22. Denied. It is specifically denied that Mowery, on or about November 18, 2003, or at anytime prior thereto, removed the door to Plaintiff Huffman's bedroom. It is also specifically denied that Defendant removed the said door from the property at any time. 23. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and therefore said averments are denied and strict proof thereof is demanded. 24. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and therefore said averments are denied and strict proof thereof is demanded. 25. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and therefore said averments are denied and strict proof thereof is demanded. 26. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and therefore said averments are denied and strict proof thereof is demanded. 27. Denied. It is specifically denied that Freightway or Defendant in any way, rendered Plaintiff Huffman's room unsuitable for habitation. Answering further, Defendant in no way participated in, or had knowledge of, the removal of Plaintiff Huffinan's door from his bedroom. 28. Denied. It is specifically denied that this exchange ever took place, and strict proof thereof is demanded. 29. Denied. It is specifically denied that Mowery produced a significant amount of cash from his pocket and had asked Huffman, "It must suck not to have this", and strict proof thereof is demanded. 30. Denied. It is specifically denied that Mowery was notified of any defects and/or that he failed to correct any alleged defects, and strict proof thereof is demanded. 31. Denied. It is specifically denied that Mowery in any way rendered Plaintiff Huffman's room unsuitable for habitation. Answering further, Defendant in no way participated in, or had knowledge of, the removal of Plaintiff Huffman's door from his bedroom and strict proof thereof is demanded. 32. Denied. It is specifically denied that Defendant many was created a situation where Plaintiff Huffman's room was no longer secure, or private. Answering further, Defendant Mowery did not participate in, or have knowledge of, the alleged removal of Plaintiff Huffman's bedroom door. 33. Admitted in part, denied in part. It is admitted that Defendant Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Huffman. It is specifically denied that Defendant Freightway failed to provide said suitable residence. It is also denied that the notice to vacate was insufficient to satisfy the requirements. Answering further, it was Plaintiff who first notified Defendant, that he would be vacating the premises. Such notice was given at approximately the end of October 2003, which was a full thirty (30) days prior to his intended date of vacating. Answering further, as a month-to-month tenant, Plaintiff Huffman was only entitled to fifteen (15) days notice which he was provided. 34. Denied. It is specifically denied that Defendant: Freighway's actions in any way amounted to self-help eviction. Answering further, Defendant Freightway did not participate in, nor did he have knowledge of, the removal of Plaintiff Huffman's door. Answering further, Defendant Freightway did not participate in nor have any knowledge of any actions in which to deny Plaintiff Huffman of his residence. 35. The statements contained in this paragraph are legal conclusions to which no response is required. WHEREFORE, Defendant demands judgment against Plaintiffs and in favor of Defendant for the specific damages claimed. COUNT II - BAIR V. FREIGHTWAY VIOLATION OF LANDLORD TENANT ACT 36. No response is required. 37. Admitted. 38. Admitted. 39. Admitted in part, denied in part. It is admitted that Plaintiff, Huffman, agreed to pay the sum of $220.00 as a security deposit to Freightway, and the sum of $220.00 per month as rent. It is denied that said sum was to include one of three (3) bathrooms, but rather one of four (4) bathrooms. 40. Admitted. 41. Admitted. 42. Upon information and belief, admitted. 43. Denied. It is specifically denied that Plaintiff Bair paid rent to Defendant in a timely fashion throughout the course of his lease. Answering further, Plaintiff Bair regularly made partial payments throughout the month, but very rarely paid the full $220.00 rental payment in a timely fashion, and was often behind on his rent. 44. Denied. It is specifically denied that Plaintiff Bair received written notice from Defendant that Plaintiff was given until November 30, 2003 to vacate the premises. Answering further, on November 3, 2003, Defendant personally placed said notice on the door of the Property with Plaintiff Bair's name on it. 45. Denied. It is specifically denied that said notice was hand-delivered by Defendant to Plaintiff Bair on or about November 24, 2003. Answering further, on November 3, 2003, Defendant personally placed said notice in the door of the property. 46. 47 48. Answering further, on November 24, 2003, having already been provided with more than twenty (20) days notice, Plaintiff Bair pleaded with Defendant to extend his lease past November 30, 2003. On November 24, 2003, Defendant Mowery denied this request. Denied. It is specifically denied that Defendant provided Plaintiff Bair with six (6) days notice to vacate the property. Answering further, as indicated above, on November 24, 2003, upon more than twenty (20) days notice of his need to vacate the premises, Plaintiff Bair requested permission from Defendant to extend his lease past the date of November 30, 2003 Answering further, Defendant denied this request. Denied. It is specifically denied that such a conversation took place. Answering further, it is specifically denied that Defendant threatened to "physically remove" Plaintiff Bair, and strict proof thereof is demanded. Denied. It is specifically denied that Defendant informed Plaintiff Bair that he would return Plaintiff Bair's security deposit to him, or that Defendant had thirty (30) days to do so after Plaintiff Bair left the premises. Answering further, Plaintiff Bair refused to vacate the premises until December 20, 2003. Answering further, Plaintiff Bair only paid $150.00 of the $220.00 rent for the month of November, and did not make any payments for the month of December. 49. Admitted. 50. Admitted in part, denied in part. It is admitted that on or about November 30, 2003, the electricity was turned off to the room. It is specifically denied that the heat to the room was also cut-off. Answering further, Defendant was working on construction in another room and accidently hit the circuit breaker. The electricity was off for approximately ten (10) minutes. At which time, Defendant turned the electricity back on. Answering further, the heating units are on a different circuit than the one Defendant accidently hit. Therefore, the heating unit was never touched, and was working at all times relevant hereto. 51. Admitted in part, denied in part. It is admitted that Bair notified Mowery that electricity was turned off. It is specifically denied that Bair notified Mowery that the heat was turned off. Answering further, the electricity was turned off accidentally during construction work and was restored in a matter of approximately ten (10) minutes. Answering further, as the heat is on a different circuit which was not touched during construction, it is specifically denied that the heat was ever turned off. 52. Denied. It is specifically denied that Plaintiff Bair pleaded with Mowery to turn the power back on and to give him more time to relocate. Answering further, the electricity was only off for approximately ten (10) minutes at which point Defendant, who had accidently hit the circuit breaker, restored the power. It is specifically denied that on November 30, 2003, Defendant laughed at Plaintiff Bair or Plaintiff Bair's son. It is specifically denied that Defendant told Plaintiff Bair to "move back in with your fucking mommy and daddy," or that Defendant called Plaintiff Bair a "worthless piece of shit." It is specifically denied that on November 30, 2003, Defendant told Bair that he "need[ed] anew lifestyle," or that he indicated to Plaintiff Bair that he "have your son fucked up on the brain having him here on the weekends." Answering further, on November 24, 2003, and in response to Plaintiff Bair's request for an extension past the November 30' deadline, Defendant did in fact indicate to Plaintiff Bair that he needed a new lifestyle and should "move back in with his mommy and daddy." Such a response was in reference to Plaintiff's Bair's lack of responsibility in regard to motivation for employment and inability to pay his bills to Defendant on time. Answering further, at no point did Defendant use the term "fucking." At no time did Defendant call Plaintiff Bair a "worthless piece of shit," nor did he make any comments to the effects of "have your son fucked up in the brain having him here on the weekends." 53. Denied. It is specifically denied that Plaintiff Bair ever asked Defendant "what kind of person would turn off the electricity on a seven {7) year old child. It is specifically denied that Defendant ignored this question and stated that Plaintiff Bair should "move back in with his mommy and daddy." 54. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 55. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 56. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 57. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 58. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 59. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. Answering further, it is specifically denied that Plaintiff Bair turned the power to his room on after 11:15 p.m. on November 30, 2003. Answering further, the electricity was turned off for approximately ten (10) minutes during the middle of the afternoon upon which time Defendant restored the power while Plaintiff Bair was still present on the property. When Defendant left the property during the late afternoon, Plaintiff Bair was still present on the property and the electricity in Plaintiff Bair's room was restored. Answering further, the tenant who previously resided in this particular room, vacated the premises in approximately the middle of November, and this room was unlocked at all times thereafter. 60. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 61. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 62. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 63. Denied. It is specifically denied that such a conversation ever took place between Plaintiff Bair and Defendant Mowery. Answering further, on December 1, 2003, as it was the beginning of deer hunting season, Defendant was scheduled to and in fact did, drive truck as many of the other employees had the day off to hunt. Answering further, Defendant was not in the vicinity of New Cumberland County on December 1, 2003 between 9:00 am. and 4:00 p.m. 64. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 65. Defendant, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and said averments are therefore denied and strict proof thereof is demanded. 66. Denied. It is specifically denied that Defendant ]Ylowery in any way participated in or had knowledge of any actions which may have made Plaintiff Bair's room unsuitable for habitation. 67. Denied. It is specifically denied that Defendant in any way created a situation where Plaintiff Bair's room was no longer secure, or private. Answering further, Defendant Mowery did not participate in, or have knowledge of, the removal of Plaintiff Bair's bedroom door. 68. Denied. It is specifically denied that Defendant in any was created a situation where Plaintiff Bair's room was no longer secure, or private. Strict proof thereof is demanded. Answering further, Defendant Mowery did not participate in, or have knowledge of, the alleged removal of Plaintiff B air's bedroom door. 69. Admitted in part, denied in part. It is admitted that Defendant Freightway had a duty under the implied warranty of habitability to provide a suitable residence to Plaintiff Bair. It is specifically denied that Defendant Freightway failed to provide said suitable residence. It is also denied that the notice to vacate was insufficient to satisfy the requirements. Answering further, as a month-l:o-month tenant, Plaintiff Bair was only entitled to fifteen (15) days notice which he was provided. 70. Denied. It is specifically denied that Defendant Freighway's actions in any way amounted to self-help eviction. Answering further, Defendant Freightway did not participate in nor did he have knowledge of the removal of Plaintiff Bair's door. Answering further, Defendant Freightway did not participate in nor have any knowledge of any actions in which to deny Plaintiff Bair of his residence. 71. The statements contained in this paragraph are legal conclusions to which no response is required. WHEREFORE, Defendant demands judgment against Plaintiff and in favor of Defendant for the specific damages claimed. COUNT III - HUFFMAN V. FREIGHTWAY PUNITIVE DAMAGES 72. No response is required. 73. Denied. It is specifically denied that Freightway Services never gave notice of any failure by Huffman to comply with the terms to the lease agreement. Answering further, Freightway Services, through Mowery grave notice to Huffman on several occasions that his rent was overdue. 74. Denied. It is specifically denied that Defendant.Freightway served a notice to quit on Plaintiff Huffman on or about November 15, 2003. Answering further, Defendant Huffman was given a verbal notice, by Plaintiff s own admission at the beginning of November, 2003 (Please see Paragraphs 17 and 18 of Plaintiff's Amended Complaint). Answering further, Plaintiff Huffman provided notice to Defendant at approximately the end of October 2003, that he would be vacating the premises on or before November 30, 2003. 75. Denied. It is specifically denied that Defendant.Freightway or Defendant Mowery participated in any way or had any knowledge of a door being removed from Plaintiff Huffman's bedroom on or about November 1.8, 2003 or at any other time. Defendant is without sufficient information to respond to any allegations regarding damages to Plaintiff Huffman's personal property, and said averments are therefore denied and strict proof thereof is demanded. 76. The allegations contained in this paragraph are legal conclusions to which no response is required. 77. Denied. It is specifically denied that Defendant 1Freightway or Defendant Mowery participated in anyway or had any knowledge of a door being removed from Plaintiff Huffman's bedroom on or about November 18, 2003. The remaining allegations in this paragraph are legal conclusions to which no response is required. 78. The allegations contained in this paragraph are legal conclusions to which no response required. WHEREFORE, Defendant demands judgment against Plaintiff and in favor of Defendant for the specific damages claimed. COUNT IV - BAIR V. FREIGHWAY PUNITIVE DAMAGES 79. No response is required. 80. Denied. It is specifically denied that Defendant Freightway never gave notice of any failure by Plaintiff Bair to comply with the terms of the lease agreement. Answering further, Defendant regularly reminded Plaintiff Bair that the rent was to be paid in full at the beginning of the month, and not in installments throughout the month. Answering further, Plaintiff Bair only paid $150.00 for the month of November, 2003 and overstayed his lease agreement by twenty (20) days, by his failure to vacate the premises prior to December 20, 2003. Answering further, Plaintiff Bair never paid any rent to Defendant for the month of December. 81. Denied. It is specifically denied that Defendant Freightway served a notice to quit on Plaintiff Bair on or about November 24, 2003. Answering further, the notice was written on November 1, 2003 and personally put in the door at the property on November 3, 2003. 82. Denied. It is specifically denied that Defendant Freightway or Defendant Mowery participated in anyway or had any knowledge of a door being removed from Plaintiff Bair's bedroom on or about November 30, 2003 or at any other time. Defendant is without sufficient information to respond to any allegations regarding damages to PlaintiffBair's personal property, and said averments are therefore denied and strict proof thereof is demanded. 83. The allegations contained in this paragraph are a legal conclusion to which no response is required. 84. The allegations contained in this paragraph are a legal conclusion to which no response is required. 85. Denied. It is specifically denied that Defendant Freightway or Defendant Mowery participated in anyway or had any knowledge of a door being removed from Plaintiff Bair's bedroom on or about November 30, 2003. The remaining allegations in this paragraph are legal conclusions to which no response is required. 86. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. COUNT V - HUFFMAN V. FREIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 87. No response is required. 88. Denied. It is specifically denied that Plaintiff Huffman was not served with a notice of an action in ejectment or an action to recover possessions filed by Defendant Freightway. Answering further, Plaintiff Huffinan was served with a notice to quit in November 2003. 89. Denied. It is specifically denied that Plaintiff Huffinan suffered any confusion or misunderstanding as to his rights and obligation as a tenant. Answering further, on or about October 30, 2003, Plaintiff Huffman notified Defendant that he, on his own volition, would be vacating the premises on or before November 30, 2003. Answering further, Defendant did not participate in, or have any knowledge of, the removal of Plaintiff Huffman's door. Answering further, Plaintiff Huffman had no reason to believe that Defendant was behind in any way, shape or form, the removal of his door. 90. Denied. It is specifically denied that Defendant had no intention to allow Plaintiff Huffman the entire thirty (30) days to quit the premises. Answering further, on or about October 3 0, 2003, Plaintiff Huffman indicated to Defendant that he, on his own accord, would be vacating the premises on or before November 30, 2003. Answering further, Defendant did not begin construction until after November 30, 2003. Answering further, Defendant did not participate in, or have any knowledge of, the removal of Plaintiff Huffman's bedroom door. Answering further, at no time did Defendant act in a fraudulent or deceptive manner in regard to Plaintiff Huffman. 91. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. 92. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. 93. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. WHEREFORE, Defendant demands judgment against Plaintiff and in favor of Defendant as to Plaintiffs' claim for treble damages and attorneys fees. COUNT VI - HUFFMAN V. FRLIGHTWAY VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 94. No response is required. 95. Denied. It is specifically denied that Plaintiff Bair was never served with a notice of an action in ejectment or an action to recover possession filed by Defendant. Answering further, Plaintiff Bair was served with a notice to quit in November 2003. 96. Denied. It is specifically denied that Plaintiff Bair was given six (6) days in which to remove himself from the property. It is specifically denied that Defendant's accidental and temporary turning off of the electricity for a period of approximately ten (10) minutes created any likelihood of confusion or misunderstanding as to Plaintiff Bair's rights and obligation as a tenant. Answering further, Defendant did not participate in, nor did he have any knowledge of the removal of Plaintiff Bair's bedroom door. It is specifically denied that any actions by Defendant in regard to Plaintiff Bair would have or actually did create a likelihood of confusion or misunderstanding as to Plaintiff Bair's rights and obligations as a tenant. 97. Denied. It is specifically denied that Defendant had no intention to allow Plaintiff Bair a full and fair period of time within which he could quit the premises. Answering further, Defendant did not participate in, or have any knowledge of, the removal of Plaintiff Bair's bedroom door. Answering further, at no time did Defendant act in a fraudulent or deceptive manner in regard to Plaintiff Bair. 98. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. 99. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. 100. Denied. Answering further, the allegations contained in this paragraph are legal conclusions to which no response is required. WHEREFORE, Defendant demands judgment against Plaintiff and in favor of Defendant as to Plaintiffs' claim for treble damages, counsel fees and costs. NEW MATTER 101. Paragraphs 1 through 100 inclusive are hereby incorporated by reference as if fully set forth. 102. Plaintiffs have breached the terms of their lease by failing to notify Defendant landlord in a timely manner of necessary required maintenance. 103. Plaintiffs have breached the terms of the lease by causing intentional damage to the premises by intentionally removing the doors of both Plaintiff Bair and Huffman's room, respectively. 104. Asa result of Plaintiffs breach of the lease, Defendant incurred damages byway of costs incurred in repairing damage done Plaintiff Huffman and Plaintiff Bair's rooms and in replacing said doors. Defendant also incurred damages by way of travel costs to and from the residence in question to make said repairs. 105. As a result of Plaintiffs breach of the lease, Defendant was required to retain the services of Laguna Reyes Maloney, to assist in the correction of damages caused by Plaintiffs. Defendant will be required to pay his attorney at the prevailing hourly rate for out-of-court and in-court time devoted to Defendant's case. The prevailing hourly rate for Laguna Reyes Maloney, LLP at the filing of this complaint is $150.00. WHEREFORE, Defendant demands judgment: against Plaintiffs for the cost of reasonable attorneys fees and damages caused by Plaintiffs' E[og?yl] . Laguna, Jr., Esquire"" Supreme Court .` No.: 75900 Attorney for Defendant LAGUNA REYES MALONEY, LLP 1119 North Front Street Harrisburg, PA 17102 (717) 233-5292 LAGUNA REYES MALONEY, LLP I I 19 NORTH FRONT STREET HARRISBURG, PA 171 02 TEL.: (71 7) 233-5292 / FAA: '171 7) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and § DON A. BAIR, JR., § Plaintiffs § V. § FREIGHTWAY SERVICES, INC., § a Pennsylvania Corporation, Defendant § IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726- CIVIL TERM CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I have caused a copy of the Defendant's Answer to Plaintiff's Amended Complaint filed in the above-captioned matter to be served upon Plaintiffs' counsel, by regular first-class mail, addressed as follows: Nathan C. Wolf, Esquire 37 S. Han ov eet, Suite Carlisle, P 170 3 Date 1?UKwT,j/La;a, Jr., Esquir Supreme Co I.D. No,: 75900 r ^. __ ??: ' ' 7 ? . ? , ?, ;. ca - -` cr, .. OV' 72L (2iLtL? VERIFICATIp?r I verify that the statements made in the foregoes Defendan, Complaint are true g t s Answer to Plaintiff's and correct to the best of Qm`naP4 understand that my knowledge, information and belief. I false statements made herein may subject Section 4904 relating to unworn falsification to authorities. C•S. ?. C7 ?? ?t7 _ _;:?. c"? gyn.,: ? iJ ?r i.? ??; C -n ?.:; . - _. _,. Viz, t-.7 ,? ?. - `_ i /'? >'y P! ?. N PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) JAMES M. HUFFMAN and DON A. BAIR, JR., (Plaintiffs) VS. FREIGHTWAY SERVICES, INC., A Pennsylvania Corporation, (Defendant) VS. (check one) ( X) Civil Action - Law ( ) Appeal from Arbitration (other) The trial list will be called on and December 14, 2004 Trials commence on January 18, 2005 Pretrials will be held on December 22, 2004 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall Provide forthwith a copy of the praceipe to all counsel, pursuant to local Rule 214.1.) No. 726 Civil Term 2004 Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: Roger R. La=a. Jr., This case is ready for trial. Signed: Print Name: 5Z!an C. f' j Date: _1?Lovemberu. 2004 Attorney for JPla,? C t rrh r . i ._ -le om 4 James M. Huffinan and Don A. Bair, Jr. V Freightway Services, Inc. A Pennsylvania Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-726 CIVIL TERM ORDER OF COURT AND NOW, December 15, 2004, counsel having failed to call the above case for trial, the case is stricken from the January 18, 2005 trial term. Counsel is directed to relist the case when ready. By the Court, A Geo e . Hoi er, .J. Nathan C. Wolf, Esquire For the Plaintiff 0 y' Roger R. Laguna, Jr., Esquire For the Defendant Court Administrator Jlk n, r ? "- ._ -. ?f"4 1\ ? " ? -' i ? rv! .. ?. ? ?. ,. - ? I U PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ) for trial without a jury. ------------------------------------------------------------ CAPTION OF CASE (entire caption must be stated in full) JAMES M. HUFFMAN and DON A. BAIR, JR., (check one) (X) Civil Action - Law ( ) Appeal from Arbitration (other) (Plaintiffs) VS. FREIGHTWAY SERVICES, INC., A Pennsylvania Corporation, (Defendant) VS. The trial list will be called on and February 15, 2005 Trials commence on ]y4arch 14, 2005 Pretrials will be held on February 23, 2004 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall Provide forthwith a copy of the praceipe to all counsel, pursuant to local Rule 214.1.) No. 726 Civil Term 2004 Indicate the attorney who will try case for the party who files this praecipe: Indicate trial counsel for other parties if known: This case is ready for trial. Signed: Date: -Ianary 19_2W4 ?-? cr 10 James M. Huffman and Don A. Bair, Jr. V Freightway Services, Inc. A Pennsylvania Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-726 CIVIL TERM ORDER OF COURT AND NOW, February 16, 2005, by agreement of counsel, the above captioned case is hereby continued from the March 14, 2005 trial term. Counsel is directed to relist the case when ready. By the Court, Ge 'e t/llolfer,P.J. than C. Wolf, Esquire For the Plaintiff „Roger R. Laguna, Jr., Esquire For the Defendant Court Administrator o),-iZ, - d? Jhk NATHAN C. WOLF, ESQUIRE ATTORNEY In NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIG14TWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2004 - 726 CIVIL TERM MOTION TO JOIN ADDITIONAL DEFENDANT NOW, come the Plaintiffs James M. Huffman and Don A. Bair, Jr., by their attorney, C. Wolf, Esquire, and present the following Motion to join Timothy E. Mowery as an Defendant, representing as follows: 1. The Plaintiff is James Huffman (hereinafter referred to as "Huffman"), an adult individual )residing at 607-E Bridge Street, New Cumberland, Cumberland County, Pennsylvania. 2. The Plaintiff is Don A. Bair, Jr. (hereinafter referred to as "Bair"), an adult individual at 5406 Oxford Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. The Defendant is Freightway Services (hereinafter referred to as "Freightwa3l'), a duly sted Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. 303, Dauphin, Dauphin, Pennsylvania. 4. At all relevant times, Tim Mowery (hereinafter referred to as "Mowery") served as an agent of Vreightway in its relationships with Huffman and Bair. Mowery is identified also as the President or Chief Executive Officer of the Defendant Freightway. This action was filed on February 11, 2004 against Freightway Services and an amended int was filed on May 10, 2004. Following the filing of preliminary objections by the Defendant to the amended complaint and the filing of briefs by both parties, and oral argument, the Honorable Edward E. Guido issued an order dismissing said preliminary objections on or about August 19, 2004. 6. Since that time, depositions have been conducted of the plaintiffs on march 8 and March 30, 2005 and on April 27, 2005, Timothy Mowery, as president of Defendant Freightway, was deposed. 7. During the course of the entire litigation, Timothy Mowery has been involved in each and every aspect of this case and has provided information to counsel for Defendant Freightway for the submission of pleadings and briefs. 8. Only after talflng the deposition of Timothy Mowery did it become apparent that he was the I officer, shareholder and agent of Freightway Services, Inc. 9. Mowery was therefore responsible for all of the actions of Freightway and managed of the of Freightway. 10. In fact, Mowery's own actions as agent for Freightway form the basis of this entire action. 11. Upon information and belief, Mowery has transferred assets out of Freightway Services and himself personally since this action was initiated. 12. Said assets were subsequently conveyed for a considerable profit to Mowery personally. 13. Plaintiff's believe and therefore aver, that Mowery and Defendant Freightway are one and same, and that Mowery should be included as a defendant individually in this action. 14. Plaintiff's are within the statute of limitations to file the actions. As stated herein, due to Mowery's involvement with each and every stage of the litigation, he has ?uffered no prejudice by not being identified as a Defendant to this point. 16. Due to Mowery's attempts to avoid liability on this action, to deny the foregoing motion would allow Mowery to have transferred assets within his control, beyond the authority of the Court to enforce a judgment against him personally. 17. The undersigned contacted Roger Laguna, Esquire, counsel for Defendant Freightway prior to the filing of the instant motion seeking concurrence therein, and said concurrence was not given. WHEREFORE, Plaintiff James M Huffman and Plaintiff Don A. Bair praythat this Honorable Court issue an Order joining Timothy Mowery as a Defendant to this action, along with any other relief that the Court deems appropriate. Z- , 2005 NA WOLF Attey for Plaintiffs SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 2414436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : NO. 2004 - 726 CIVIL TERM CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of the foregoing amended nt upon the following person and in the matter indicated: SERVICE BY U.S. MAIL: Roger R Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 -- - , 2005 Atto e r Plaintiffs SUPREME COURT ID NO. 87380 37 SOUTH HANOVER STREET, SUITE 201 CARLISLE PA 17013 (717) 241-4436 lri ( _' coJ cn TI r , C Flo iU C l 5 RECEIVED MAY 04 2005A NAMES M. HUFFMAN and, IDON A. BAIR, JR. Plaintiffs v. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 2004 - 726 CIVIL TERM RULE TO SHOW CAUSE lik AND NOW, this 5 day of 12005, upon consideration of the foregoing Motion to an Additional Defendant, a Rule is hereby issued upon the Defendant Freightway Services, Inc. to show cause why the relief request therein ought not to be granted. -PV Rule returnable twenty (20) days from the date of this Order. J• Nathan C. Wolf, Esquire For the Plaintiffs 4Coger Laguna, Esquire For the Defendant Freightway Timothy E. Mowery, Defendant o? 1. 1 0 :C i,,A ?l-- ?' r4,?l ALL !i 0 LAGUNA REYES MALONEY, LLP ) ) 1 9 NORTH FRONT STREET, HARRISBURG. PA 1 7102 TEL: (71 7) 233-5292 / FA.; (71 7) 233-5394 ATTORNEY FOR DEFENDANT JAMES M. HUFFMAN and DON A. BAIR, JR., Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM DEFENDANT'S RESPONSE TO RULE REGARDING THE MOTION TO JOIN AN ADDITIONAL DEFENDANT AND NOW, comes the Defendant, Freighway Services, Inc., by and through its attorneys, Laguna Reyes Maloney, LLP, who presents the following Response to Rule Regarding the Motion to Join an Additional Defendant. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied that Timothy Mowery "has been involved in each and every aspect of this case". Admitted that Timothy Mowery has provided information to counsel for Defendant Freightway. 8. Denied. To the contrary, Plaintiffs were aware of the corporate status of 41 Defendant Freightway and the relationship of Timothy Mowery to that corporation. By way of further response, this information is a matter of public record and is published to the public by the Bureau of Corporations. By way of further response, Plaintiffs, who according to their own pleadings dealt solely with Timothy Mowery, and obviously conducted the research needed to discover that Timothy Mowery was a agent for the corporation, Freightway, because Plaintiffs named Freightway as the Defendant. 9. Denied that Mowery was "therefore responsible for all of the actions of Freightway and managed of the assets of Freightway [sic]". 10. Denied that Mowery's "own actions", as an agent for Freightway formed the basis of this entire action. This is a conclusion of law which is the core underlying issue of this litigation. 11. Denied as stated. By way of further response, whether or not Mowery received income or assets from Freightway Services is irrelevant and immaterial to the issue which is before to Court. 11 Denied as stated. 13. Denied that Mowery and Freightway are "one and the same" and that Mowery should be included as a Defendant individually in the action against Freightway. By way of further response, Plaintiffs know full well that this is a false averment, and they have already asserted that Freightway is a "duly registered Pennsylvania Corporation, with a registered address located at 791 Colver Boulevard, P.O. Box 303, Dauphin, Dauphin County, Pennsylvania." By way of further response, Pa.R.C.P. 2177 expressly mandates "An action shall be prosecuted by or against a corporation or similar entityin its corporate name." 14. Denied as stated. There is no cause of action identified by Plaintiffs in their motion and, as such, Defendant denies that any cause of action against Timothy Mowery is within the statute of limitations to file "new actions". 15. Denied. It is a conclusion of law to which no response is necessary. By way of further response, it is denied that Mowery has been involved "with each and every stage of this litigation" and that he has suffered no prejudice by failing to be named as a Defendant from the beginning, so to speak. Plaintiffs know full well that a corporation and its shareholders and officers may all have conflicting interests when one or more of those entities are forced to defend a law suit against a third party. In this particular case, despite Plaintiffs' lay description of Freightway and Mowery as being "one and the same", they are obviously two separate and distinct legal entities. Mowery has had absolutely no opportunity or motive to defend himself personally against Plaintiffs law suit which targeted only the corporate entity, Freightway. If Mowery is named individually at this point, it would be procedurally too late, so to speak, for him to re-defend, ab initio on a personal level. In such a case, and the corporate would have bad conflicting interests and could have proceeded much differently in this case. As such, if Mowery was brought into this law suit at this point, by simply permitting his name to be added on the caption, he would suffer extreme and impermissible prejudice. 16. Denied as stated. Defendant Mowery is not a subject of liability in this action and he has certainly made no attempt whatsoever to "avoid liability". The spurious conclusion that Mowery may have, or might in the future, transfer assets within his control beyond the authority of the Court is scandalous and without any factual basis whatsoever. As an aside, the practical remedy to avoid such a contingency is called a lis pendens. All of Freightway's property and assets are a matter of public record and the assets are readily available. 17. Admitted that Plaintiff's counsel contacted the undersigned prior to filing the instant motion which seeks to have Timothy Mowery added as a Co- Defendant. Byway of further response, Plaintiffs' counsel also indicated that Plaintiffs would not settle the case against the corporate entity for any amount of compensation and that his only goal in pursuing the claim had been to ruin Timothy Mowery individually. Plaintiffs' counsel stated that he had been instructed to pursue Timothy Mowery individually until Timothy M owery was financially exhausted and "so poor that he had to live in a boarding house." Plaintiffs' counsel indicated that Plaintiff stated that he would soon receive a sizable inheritance and he would pay the entire inheritance to Plaintiffs' counsel in exchange for Plaintiffs' counsel ruining Mr. Mowery. As such, the 4 instant attempt to name Timothy Mowery, which was incidentally made immediately after Plaintiff gave his attorney these directions, is being made in bad faith and against the Rules of Civil Procedure. WHEREFORE, Defendant, Freightway Services, pray j4at this Honorable Court, deny Plaintiffs' Motion to Join an Additi Eger R. Lagun?jr., Esquire Supreme Court I.D. No.: 75900 Attorney for Defendant LAGUNA REYES MALONEY, LLP 1119 North Front Street Harrisburg, PA 17102 (717)233-5292 LAGUNA REYES MALONEY, LLP I I I J FORTH FRONT STREET, HARRISBURG. PA 1 7 1 OP TEL(7I 7) 233-5292 / Fax: C71 7) 233-5394 ATTORNEYS FOR DEFENDANT JAMES M. HUFFMAN and DON A. BAIR, JR., Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTON - LAW NO. 2004-726 CIVIL TERM CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I served a copy of Defendant's Response to Rule Regarding the Motion to Join an Additional Defendant filed in the above-captioned matter by regular first-class U.S. to the following address: Nathan C olf, Esquire 37 S. anove Street, Suite 1 Ca isle, PA 1 013 z_ Date Roger R. LagVna, Jr', Esquire Supreme Court I.D. No.: 75900 ., - .? _, ??: C? James M. Huffman and Don A. Bair, 4r. vs Case No. 2004-0726 Freightway Services, Inc., A Pennsylvania Corporation Statement of Intention to Proceed To the Court: James M. Huffman and Don A. Bair, Jriatends to proceed with the above captioned matter. Print Name Nathan C. Wolf Sign T1 Date: 101-d Attorney for Plaintif f s Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. )i FILED-OFFiCE C+417 THE PROTHONOTAR'i` NATHAN C. WOLF, ESQUIRE 2011 ~UV -9 PM i' t Z ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 CUMBERLAFtD COUNTY (717) 241-aa36 pENNS YtVAN I A ATTORNEY FOR PLAIN'TIFFS JAMES M. HUFFMAN and, : IN THE COURT OF COMMON PLEAS OF DON A. BAIR, JR. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs • : CNIL ACTION - LAW v. : NO. 2004 - 726 CIVIL TERM FREIGHTWAY SERVICES, INC., • a PennsyWania Corporarion, • Defendant • MOTION FOR HEARING ON PLAINTIFFS' MOTION TO OIN ADDITIONAL DEFENDANT AND RESPONSE FILED THERETO NOW, come the Plaintiffs James M. Huffman and Don A. Bair, Jr., by their attorney, Nathan C. Wolf, Esquire, and present the following Motion, representing as follows: 1. On or about May 2, 2005, Plaintiffs filed a Motion to Join Additional Defendant to the above-captioned action, namely Tunothy Mowery. 2. On or about May 5, 2005, this Honorable Court issued a Rule to Show Cause on the Plaintiffs' Motion directing the Defendant to show cause why the relief sought should not be granted. The Rule was returnable 20 days after service thereof. 3. On or about May 23, 2005, Defendant Freightway Services, through its attorney, Roger R. Laguna, filed a response to the Rule. 4. Thereafter, Plaintiffs have, in good faith, attempted to engage in settlement negotiations which have proved unsuccessful. 5. On or about May 9, 2011, Plaintiffs listed this matter for argument court. 6. Shortly thereafter, the undersigned was notified by the Court Administrator that this matter would need to be withdrawn from the Argument Court list or it would be stricken from the list as the matter should be listed for a hearing, rather than argument. 7. On or about May 18, 2011, Plaintiffs filed a praecipe to withdraw the matter froin the argument court list. 8. Plaintiffs now seek to have this issue resolved to permit the case to proceed to trial, but only after the instant motion is adjudicated. 9. The undersigned contacted Roger Laguna, Esquire, counsel for Defendant Freightway prior to the filing of the instant motion and counsel opposes the relief xequested in the underlying motion but does not oppose the request for a hearing. WHEREFORE, Plaintiff James M. Huffman and Plaintiff Don A. Bair pray that this Honorable Court issue an Order scheduling a brief hearing on the Motion to Join Additional Defendant and the Response filed thereto, along with any other relief that the Court deems appropriate. Respectfully submitted, WOLF & WOLF, Attorneys at Law Dated: November 2011 By! ire APPAA, lf, Esqu h Street 17013 Supreme Court I.D. No. 87380 (717) 241-4436 Attorney for Plaintiffs NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, : IN THE COURT OF COMMON PLEAS OF DON A. BAIR, JR. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs • V : CIVIL ACTION - LAW : NO. 2004 - 726 CIVIL TERM FREIGHTWAY SERVICES, INC., • a Pennsylvania Corporarion, • Defendant • CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of the foregoing amended complaint upon the following person and in the matter indicated: SERVICE BY U.S. MAII-: Roger R. Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 Resp'd, WOLrneys at Law Dated: November , 2011 By: Nathire 10 WCaSupreme Court I.D. No. 87380(717) 241-4436 Attorney for Plaintiffs JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 2004 - 726 CIVIL TERM !/ ORDER AND NOW, this 1a day of 011, upon consideration of the foregoing Motion to for Hearing on Plaintiffs' Motion to join an Additional Defendant and the Response to the Rule to Show Cause filed thereto by the Defendant, a hearing is scheduled on this matter before the undersigned on the I r` day of , 2011, at 3: 00 o'clock ?.m. in Courtroom i? of the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, 17013. BY THE COURT, J. Distribution: Nathan C. Wolf, Esquire For the Plaintiffs /? ? ? oP mip Ir Roger Laguna, Esquire ?Q 3 f Z -vim -- -' For the Defendant Freightway Q a lr MM C D - .r rv 0 rri CD s . .. z' c-) =a C") D 1= --a M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant PRAECIPE TO SETTLE DISCONTINUE AND END v.? N T ..r. r?? rya TO THE PROTHONOTARY: Kindly mark the above captioned action DISCONTINUED and WITHDRAWN as to both Plaintiffs captioned above. CIVIL ACTION - LAW NO. 2004 - 726 CIVIL TERM M, C. M Respectfully submitted, WOLF & WOLF February ?; , 2013 BY: LF SUPR9KE COURT ID NO. 87380 10 West High Street Carlisle PA 17013 (717) 241-4436 NATHAN C. WOLF, ESQUIRE ATTORNEY ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436 ATTORNEY FOR PLAINTIFFS JAMES M. HUFFMAN and, DON A. BAIR, JR. Plaintiffs V. FREIGHTWAY SERVICES, INC., a Pennsylvania Corporation, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - 726 CIVIL TERM CERTIFICATE OF SERVICE I, Nathan C. Wolf, Esquire, have served a true and correct copy of the foregoing praecipe upon the following person and in the matter indicated: SERVICE BY U.S. MAIL: Roger R. Laguna, Jr., Esquire 1119 North Front Street Harrisburg, PA 17102 2013 February 4 ') BY: Respectfully submitted, WOLF & WJ4F, Attorneys at Law NAT C. WOLF Atto for Plaintiffs SU EME COURT ID NO. 87380 10 WEST HIGH STREET CARLISLE PA 17013 (717) 241-4436