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HomeMy WebLinkAbout08-7311JOSEPH A. GENSBIGLER, and LIZZIE N. GENSBIGLER, Plaintiffs, VS. STRATHMEYER FORESTS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 6 $ --73 11 CIVIL TERM JURY TRIAL DEMANDED NOTICE TO: Strathmeyer Forests, Inc. You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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 17013-3302 (717) 249-3166 SNELBA R & BRENNEMAN, P.C. By Attrneys or Plaintiffs Date: December 15, 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. JOSEPH A. GENSBIGLER, and LIZZIE N. GENSBIGLER, Plaintiffs, VS. STRATHMEYER FORESTS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. O'e- -7 3 (I CIVIL TERM : JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, Joseph A. Gensbigler and Lizzie N. Gensbigler, by their attorneys, Snelbaker & Brenneman, P.C., and aver the following cause of action: 1. The Plaintiffs herein are Joseph A. Gensbigler and Lizzie N. Gensbigler, adult individuals, who reside at 670 St. John's Drive, Mechanicsburg (Hampden Township), Cumberland County, Pennsylvania. 2. The Defendant herein is Strathmeyer Forests, Inc., a corporation, having its office at 255 Zeigler Road, Dover, York County, Pennsylvania 17315. 3. On May 4, 1999, the parties entered into a written Agreement of Lease, a true copy of which is attached hereto marked "Exhibit A" and incorporated herein by reference thereto. 4. As provided in said Agreement of Lease, Defendant, as Lessee, is obligated to pay rent of $8,000.00 per lease year in two installments of $4,000 each on the first days of May and December of each such year. 5. During each of the following indicated three (3) lease years, Defendant failed, neglected and refused to pay the required installments in full as follows: LAW OFFICES Lease Year Amounts Due SNELBAKER & 5/1/06 - 4/30/07 05/1/06 - $4,000 BRENNEMAN, P.c. 12/1/06 - $4,000 Amounts Paid 7/17/06 - $3,000 1/03/07 - $3,000 5/1/07 - 4/30/08 5/1/08 - 4/30/09 05/1/07 - $4,000 12/1/07 - $4,000 05/1/08 - $4,000 12/1/08 - $4,000 $24,000 6/19/07 - $3,000 1/04/08 - $3,000 9/05/08 - $3,000 -0- $15,000 6. During the three (3) lease years aforesaid, Defendant was obligated to pay rent in the total amount of $24,000, but paid only $15,000, leaving an unpaid balance now past-due in the amount of $9,000. 7. Despite Plaintiff's demand on October 10, 2008 for payment of delinquent rent, Defendant has failed, neglected and refused to pay the delinquent amounts due. 8. The lease provides that all installments of rent are to be paid to Plaintiffs at their residence as averred in paragraph 1 above. 9. The lease provides that the dates for payment of all installments are of the essence of the agreement of lease. WHEREFORE, Plaintiffs demand judgment against Defendant in the amount of $9,000.00 together with interest at the lawful rate from the due dates of all delinquent payments and the costs of this action. SNELB & BRENNEMAN, P.C. By chard . Snelbaker, Esquire Attorney I.D. # 06355 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN, P.C. Date: December /S 2008 -2- VERIFICATION I, JOSEPH A. GENSBIGLER, do hereby certify that I am one of the Plaintiffs the in the foregoing Complaint, that the facts in the foregoing Complaint within my personal knowledge are true and correct and that with regard to facts received from others, I believe to be true and correct. I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. } Joseph A. nsbigler Dated: 1411s, - 12008 VERIFICATION I, LIZZIE N. GENSBIGLER, do hereby certify that I am one of the Plaintiffs the in the foregoing Complaint, that the facts in the foregoing Complaint within my personal knowledge are true and correct and that with regard to facts received from others, I believe to be true and correct. I understand that any false statements made herein are subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. < , Lizzie N. LAW OFFICES Dated: )-?//S - , 2008 SNELBAKER & BRENNEMAN, P.C. AGREEMENT OF LEASE THIS LEASE AGREEMENT made this day of M0-T 1999, by and between: JOSEPH A. GENSBIGLER and LIZZIE N. GENSBIGLER, tenants in common, parties of the first part, hereinafter called "Lessors", having a post office address for all purposes and notices hereunder of 670 St. John's Road, Camp Hill, PA 17011, AND STRATHMEYER FORESTS, INC., a corporation, party of the second part, hereinafter called "Lessee", having a post office address for all purposes and notices hereunder of 255 Zeigler Road, Dover, PA 17315: WITNESSETH: WHEREAS, Lessors are the owners of a certain farm or tract of land situated in East Hanover Township, Dauphin County, Pennsylvania, which contains approximately 108 acres of land, of which (gip -)acres are being used or inte e t be used as plantable area for a commercial tree farm, said acre area more fully shown on the map attached hereto a ed "Exhibit All and incorporated herein by reference thereto and hereinafter called "Demised Premises"; and WHEREAS, Lessee is in the business of growing and harvesting trees and desires to lease the Demised Premises for growing and harvesting evergreen trees commonly and hereinafter called "Christmas Trees"; and WHEREAS, the parties have negotiated various terms and conditions which they desire to document and memorialize by these presents; NOW THEREFORE, in consideration of these presents and mutual promises, terms and conditions herein contained, and intending to be legally bound hereby, the parties mutually as follows: the agree EXHIBIT A 1. The foregoing preamble and paragraphs are incorporated herein by reference thereto. 2. Lessors hereby desire and lease to Lessee the Demised Premises to-be used for the planting, cultivating and harvesting of Christmas Trees, said land to not include any buildings erected thereon. 3. The term of this Lease shall begin on the /S* 971•r s day of M 1999, and shall end at midnight on the jdEgA o!(c Oday of 20 4. The consideration or rent for said Lease shall be year payable as follows: ($ ) Dollars per lease a. $ y- crow, o-0 on the ) s4 . day of each lease year in advance of occupancy, the first such installment to be due and payable on the Imo, C Fvur t day of M CLA, 1999; and b. $ q,00 a, o o on the 15th day of December of each lease year, such installment to be first due and payable on December 15, 1999. All installments of rent shall be paid to Lessors at their address first mentioned above (or as subsequently amended by written notice to Lessee), the required dates of payment of all installments being of the essence of this-agreement. 0"'4,3 0 5. In consideration of the sum of Vel? `57'2.22• ye ($ d ) Dollars in hand paid by Lessee to Lessor, the receipt of which is hereby acknowledged, Lessors hereby sell to Lessee all Christmas Trees presently growing on the Demised Premises. 6. Lessors shall have the right to cut, harvest and remove fifteen (15) Christmas Trees each year at the Christmas season, either in person or by other persons duly certified in writing by Lessors to be entitled to so cut and remove a tree or trees. Said 15 trees may be selected from any portion of the Demised Premises, whether planted by Lessors or Lessee. 7. Lessee shall have the right to either harvest trees by cutting on the stump or by excavating living trees with roots attached, provided, however, that harvest by means of excavation shall not exceed twenty-five per centum (25%) of total living -2- EXHIBIT A trees on the Demised Premises. In the latter regard, the resulting excavation shall be backfilled with soil of equal quality of that which is removed with the trees. 8. Lessee shall do and perform the following obligations: A. Lessee shall cause its employees and agents to perform such work and tree husbandry as is required for the proper development of the aforesaid trees to ensure that the best possible product is produced. B. Lessee shall have the sole right to harvest the aforesaid trees at such time or times and in such manner as Lessee, in its sole discretion, shall determine to be in the best interests of Lessors and Lessee. C. Lessee shall maintain the Land clean and free of refuse. Further, Lessee shall control the growth of noxious weeds, shrubs, and bushes so that good farm husbandry is practiced. D. Lessee shall purchase and maintain comprehensive liability insurance, naming Lessors as additional insureds, with a policy limit of not less than Five Hundred Thousand Dollars ($500,000.00) to protect Lessors and Lessee against all losses or claims arising from Lessee's acts or omissions. Upon the execution of this Lease and upon any renewals or extensions thereof, Lessee shall provide Lessors with a copy of aforesaid liability insurance policy, as well as evidence of the payment of the premium. E. Lessee shall maintain workers' compensation insurance for its employees, as required by law. F. Lessee shall comply with all laws, ordinances, orders, administrative rules or rulings, or other directives of any governmental body having jurisdiction over Lessee's business and the Demised Premises. G. Lessee shall not construct or erect any buildings or other improvements upon the Land without Lessors' prior written consent. H. Upon termination of the term (or any extension) of this Lease, Lessee shall remove all trees and stumps, close all excavations and return the Demised Premises to farmable conditions. -3- EXHIBIT A 9. Lessee shall, for the purpose of cultivating and maintaining the trees on the Demised Premises, have the use in common with Lessors of any streams or other bodies of water, if any, which are located on the Demised Premises and/or other adjoining lands of Lessors. 10. Lessors shall have the right at all times to inspect the Demised Premises. 11. Lessors and Lessee specifically agree that Lessee is an independent contractor, and Lessee's agents, employees, and/or other servants are not agents, employees, and/or servants of Lessors. Nothing in this Lease shall be taken or construed to create a joint venture between Lessors and Lessee. 12. Should either party hereto default in the performance of this Lease, the nondefaulting party shall have the right to terminate this Lease by giving the defaulting party sixty (60) days' written notice of the intention to terminate this Lease. The defaulting party shall have the right to cure such default within sixty (60) days of receiving the notice of termination. Should the defaulting party refuse or neglect to cure the default, the nondefaulting party shall have the option of using all legal means to enforce its contractual rights, and/or to obtain damages for the breach, and/or to terminate this Lease. If Lessee should default, it shall have no further right to enter or use the Land, including, but not limited to, the harvest of trees. The foregoing notice requirement shall not apply with regard to Lessee's obligation to pay installments of rent on the specific dates mentioned above. 13. In the event Lessors hereafter elect to utilize any portion or all of the Demised Premises for Lessors' purposes, Lessors may terminate this Lease on all or any portion of the Devised Premises after providing wirtten notice to Lessee. Upon such termination and recapture, Lessors shall reimburse Lessee for Lessee's losses, including the monies Lessee expended for trees and cultural practices as well as the loss of Lessee's profits, determined by computing the value of such trees based upon the age of each tree relative to its total growing span to harvest. To terminate this Lease under this paragraph, Lessors shall provide Lessee not less than three (3) years' written notice of Lessors' intention to terminate this Lease. 14. Upon termination of the terms of this Lease whether by expiration or other lawful manner, all trees then in existence shall remain on the Demised Premises and shall be the property of Lessors without any claim of ownership or monetary entitlement by Lessee. -4- EXHIBIT A 15. Lessors expressly reserve the right to enter upon the Demised Premises at any reasonable time or times for the purpose of inspecting the same. 16. Lessee shall not have the right to assign, pledge or otherwise transfer this Lease or any interest hereunder to any other person or entity without the prior express written consent of Lessors. 17. Upon the Lessee's breach of any of the provisions of this agreement and after notice as required under paragraph hereinabove or upon termination of the terms hereof whether by expiration, forfeiture or default, Lessee hereby authorizes any attorney of any court of record of Pennsylvania or elsewhere to appear for it and to confess judgment in an amicable action of ejectment against Lessee and in favor of Lessors for possession of the Demised Premises and to direct the immediate issuance of a writ of possession with court of execution for rent then due and the costs of the action without notice and without leave of court. 18. If Lessors receive an offer to purchase the Demised Premises and Lessors are prepared to accept such offer, Lessors and Lessee agree that Lessee shall have the right of first refusal to purchase the Demised Premises under the same terms and conditions as the offer Lessors received. Lessee shall not have the right of first refusal to purchase the Demised Premises under the same terms and conditions as the offer Lessors received if a member of Lessors immediate family has made the offer. Within thirty (30) days of Lessee's receipt of notice from Lessors of the terms of such offer to purchase the Demised Premises, Lessee shall notify Lessors or Lessors' personal representative of Lessee's intention to purchase the Demised Premises under the same terms and conditions as the offer. Final settlement on the Demised Premises shall occur within sixty (60) days of Lessee's notification to Lessors of. Lessee's intention to purchase the Demised Premises. Should Lessee elect not to purchase the Demised Premises, Lessors may convey the Demised Premises free and clear of Lessee's right of first refusal. Lessee's rights under this paragraph 18 shall cease and terminate upon termination of the term (or any extension) of this Lease. 19. The provisions of this agreement shall be binding upon and innure to the benefit of the respective heirs, personal representatives, successors and lawful assigns of the parties. 20. This agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. -5- EXHIBIT A IN WITNESS WHEREOF, the parties have caused these presents to be duly executed the day and year first written above. WITNESSED BY: ATTEST: ?r' a,, J, d! Jo ph . G2ensbi?gle Lizzie N. Gensbig er STRAT EYER FORESTS, INC. By: P esident Secretary -6- EXHIBIT A O C r7i ? N «C g v1 n SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-07311 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GENSBIGLER JOSEPH A ET AL VS STRATHMEYER FORESTS 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 STRATHMEYER FORESTS INC but was unable to locate Them deputized the sheriff of YORK serve the within COMPLAINT & NOTICE County, Pennsylvania, to On January 27th , 2009 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answers: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep York County 65.12 Sheriff of Cumberland County Postage 1.49 103.61 01/27/2009 SNELBAKER & BRENNEMAN Sworn and subscribe to before me this day of A. D. , to wit: in his bailiwick. He therefore NOW *am .w. +rii •rr «.. A :Y ] 11.E Cr"S ,,., ..L? ..?._ C\J - PENNY PRESS OF YORK INC..h (717) 843-4078 Fax(717)848-1360 - -c COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 -®- SERVICE CALL (717) 771-9601 SHERIFF SERVICE M11=11 S PROCESS RECEIPT and AFFIDAVIT OF RETURN REAM TYPE OWY LW 1 THM) 12 00 MW MTAM CQ I PLAINTIFF/S/ 2. COURT NUMBER Joseph A. Gensbigler et al ns-7311 1-41T41 3. DEFENDANT/S/ Strathmeyer Forests Inc 4. TYPE OF WRIT OR 08-7311 civil"-IC, CICA SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD Strathmeyer Forests Inc 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO ,CITY, BORO. TWP .STATE AND ZIP CODE) AT 255 Zeigler Road Dover, PA 17315 7. INDICATE SERVICE- 0 PERSONAL 0 PERSON IN CHARGE )=DEPUTIZE E T. MA+L 0 1 ST CLASS MAIL 0 POSTED 0 OTHER e sheriff of NOW December 18 20 08 I, SHERIFF OF i" COUNTY, PA, d hereby de;9ccding York COUNTY to execute thisMK eke re u n t to law. This deputization being made at the request and risk of the plaintiff.,SHERIFF tOUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE OUT OF CO Please mail return of service to Cumberland County Sheriff. Thank you. ADV FEE PAID BY ATTY. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, desWation, or removal of any property before sheriff's sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURERICHARD C. SNELBAKER, ESQ. 10. TELEPHONE NUMBER II DATE FILED 44 WEST MAIN ST., MBCHANICSBURG, PA 17055 717-697-8528 2-16-08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed it notice is to be mailed). CUMBERLAND CO SHERIFF 13. 1 acknowledge receipt of the writ - 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. MJ MCGILL YCSO 112-22-08 11-15-09 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE-4 SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. O 1 hereby carby and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 21MAPTNS OTITLE OF I NI UAL SERVED /LIST ADDRESS HERE IF NOT SHOWN ?180VE (Relationship to ant) 19. Date of s?nice 20 Time of Service ?xneo Miles n . Date Time Ms Int. Date Time Miles I Date Time Miles Int. Date Time Miles Int. Date Time Miles Int. a J(Ip 22 23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 26. Sub Total 29. Pound 30, 31. Surchg. 32. Tot. Costs 33 Cats Due Asked Check No 5- ? (30 1 $100.00 `C ?. 111-4-19 66-1? ai-314 l 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mdeage/Postage7Not Found 39. Total Costs 40. Costs Due or Refund 41. AFFIRMED aa7n?d? suubs`cribe?dgqto?b'efidre me this 20th? 42. day of SJt`005 'Mp i 1- ?' Signature Dep. sheriff NOTARIAL SEAL 46. un York LISA L. BOWMAN, NOTARY PUBLIC County y Shen ShenR CITY OF YORK, YORK COUNTY RICHARD P. El MY COMMISSION EXPIRES AUG. 12, 2009 48. Signature of Foreign County Sheriff SO ANSWERS `\ f- V/ 1 l 45. DATW pi? '7 QIFLF 47 DATE 1-20-09 49 DATE OSEPH A. GENSBIGLER and : IN THE COURT OF COMMON PLEAS OF AZZIE N. GENSBIGLER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-7311 CIVIL TERM iTRATHMEYER FORESTS, INC., CIVIL ACTION -LAW Defendant PRAECIPE TO DISCONTINUE ACTION CO: Prothonotary of Cumberland County Please cause the record in the above action to be marked as settled and discontinued prejudice. SNELBAKER & BRENNEMAN, P. C. BY: Richard C. Snelbaker, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 March 5, 2009 Attorneys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN, P.C. ,p J? s„, ?i.'. ?R ?+y.. ...+ A.