HomeMy WebLinkAbout09-1005"r
Confession of Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hitt, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 * Email: dianeradcliff @comcast.net
Attorney/Agent for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. a f - /00 CIVIL TERM
V.
DAVID J. THOMAS and
CIVIL ACTION - LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants :
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney in the Lease dated February 1,
2005, the original or copy of which is attached to the Complaint filed in this action, I, Diane G.
Radcliff, Esquire, an attorney duly authorized to practice law in the Commonwealth of
Pennsylvania, appear for the Defendants and confess judgment in ejectment in favor of the
Plaintiff and against the Defendants for possession of the real property described as follows:
Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania,
17050 containing 4,985 square feet, more or less, being part of the premises more
fully bounded and described on Exhibit "A" attached hereto and made a part
hereof.
Respectfully submitted,
r
DIANE G. DCLIFF, ESQUIRE
344 rindle Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
EXHIBIT "A"
6108 CARLISLE PIKE MECHANICSBURG Pq
ALL THAT CERTAIN tract or parcel of land and re
described Hampden
of Hampden, County of Cumberland and Commonwealth uses situate lying
follows: and being in the Township
of Pennsylvania, more particularly
BEGINNING at a point, said point being at the intersection
right of way and the east side of Gustin Drive; of the north side of a 50.0 foot wide
THENCE by the east side of Gustin Drive North 15°
Of Wu Chon Ho; 02' 47" East 278.55 feet to a
point at land
THENCE by same South 63° 41' 43" East 150.00 feet
THENCE by same North 26° 37' to a point;
Pike; 26 East 162.25 feet to a point on the south side of the Carlisle
THENCE by same and a curve to the left havin
173.82 feet to a point at lands of the Pep Boys;
g a radius of 11,409.19 feet, an arc length of
THENCE by same South 26° 23'48" West 432.45 fee
wide right of way; t to a point on the north side of a 50.0o foot
THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING
CONTAINING 2.504 acres.
BEING the same premises which Skyport Properties,
Deed dated February 14, 2003 and recorded February 21
a Pennsylvania Limited Partnership, by its
Deeds in and for Cumberland Count
, 2003 in the Office of the Recorder of
conveyed unto Barnett Real Estate,yL Pennsylvania, in Deed Book 255, Page 4133,
granted and
Complaint
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 . Fax: 717-975-0697 • Email: dianeradcliff @comcas
Attorney for Plaintiff
t. net
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPAN,
LLC, Y,
Defendants
CIVIL ACTION - LAW
ACTION IN EJECTMENT
COMPLAINT
CONFESSION OF J
UDGMENT IN
AND NOW, this EJECTMENT
2:'day of
Management, Inc., by its attorney and duty 't
2009 comes the Plaintiff, Barnett Pr
files this Complaint pursuant to Pa,R.C.P. thorized agent, Diane G, oper and
and avers the following: No. 2971 (a) for judgment in ejectment?by 'and
by confession
1. Plaintiff Barnett Property Management, is a
Pennsylvania place of business is 25 Shady Lane, Carlisle, PA 170corporation whose principal
13. 2• Defendant, David J. Thomas, is an adult indiv'
Lemoyne, PA 17043. dual whose address is 110 Walnut Street
3. '
Defendant, 6108 Carlisle Pike Restaurant Company, LLC is a limited liability company
whose mailing address is 110 Walnut Street, Lemoyne,
4• Plaintiff (hereinafter referred to PA 17043.
referred to as "Defendants-Tenants "Plaintiff-Landlord"
which Plaintiff-Landlord leased a is") entered into a Leasenda ed February
112 of the Good Hope Plaza-Tenants")
" ry 1 , 2005 in
Defendant -Tenants the property known as suites 108-
laza, 6108 Carlisle Pike, Mechanicsburg
Lease is attached hereto, marked Exhibit A and made a a part'
art part ,hePr 17050. The Original
reof ("the Lease").
1
5. Paragraph 25(e) of the Lease attached as Exhibit "A" authorizes Plain tiff- Landlord confess
judgment in ejectment against Defendants-Tenants as follows:
25. LANDLORD'S REMEDIES.
Upon the occurrence of Tenant's default
this Lease, Landlord shall have the following of the terms 0
remedies,
and not in the alternative: which shall be cumulative
E. To confess judgment against Tenant in an amicable action
ejectment in which event Tenant hereby authorizes t
or an m
any attorney of record to appearavorforoand to confess P Prothonotary
ejectment against
Tenant
and in ff Landlord a
immediate issuance of a writ o gment in
leave of Court and waiving all irregularities.
all without notice toe
4.
The attached Lease containing the Confession of Judgment in Ejectment clause has not
5• Judgment in ejectment has not been entered on
the attached Lease in any jurisdiction.
6. Defendants-Tenants are in default of the terms of the Lease in that:
A. They failed to pay the rent and cam charges due for the month of December 2008;
B. They failed to
pay when due the rent and cam charges due for the
January 2009.
month of
7• By virtue of the foregoing default, Plaintiff-Landlord is entitled to
following leased premises:
possession of the
Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike
Mechanicsburg, Pennsylvania,
17050 containing 4,985 square feet, more or less being part of the premises more
fully bounded and described as follows:
ALL THAT CERTAIN tract or parcel of land and remi
being in the Township of Of Cumberland
p ses situate l in Commonwealth of Pennsylvania Hampden, Count y g and
, more particularly described as folio and
ws.
BEGINNING at a point, said point being at the intersection
of a 50.0 foot wide right of way and the east side of Gustti of the north side
n Drive;
THENCE by the east side of Gustin Drive North 15° 02'
to a Pont at land of Wu Chon Ho; 47 East 278.55 feet
2
THENCE by same South 63° 41' 43" East 150.00 feet to a point;
THENCE by same North 26° 37
side of the Carlisle Pike; ' 26» East 162.25 feet to a
point on the south
THENCE by same and a curve to the left having a rad
an arc length of 173.82 feet to a point at lands of they F of 11,409.19 feet,
THENCE by same South 26° 23' 48» W eP Boys;
side of a 50.00 foot wide right of vay;st 432.45 feet to a point on the north
THENCE by same North 64° 11' 00" West 269.65
BEGINNING feet to the PLACE OF
CONTAINING 2.504 acres.
BEING the same premises which Skyport Properties
Partnership, by its Deed dated February 14, 2003 a
2003 a the Office of the dated ' a Pennsylvania Limited
Pennsylvania, in Deed Book Recorder of Deeds in and for C mbedrland Count
255, Page 4133 g d y,
Barnett Real Estate, LLC. ranted and conveyed unto
WHEREFORE, Plaintiff demands judgment in ejectment for possession of the above described
premises as authorized by the warrant of attorney appearing
in the attached Lease.
espectfully submitted,
J ??
r"'^^c? DCLIFF, ESQUIR
3448 Trind Road, Camp
Phone.:( 17) 737-0100 Hill, PA 17011
Supreme Court ID # 32112
Attorney for Plaintiff-Landlord
3
VERIFICATION
I, Diane G. Radcliff, Esquire, verify that the statem
and correct. I understands that falseents made in this Complaint are true
statements herein are made subject to the penalties of
Pa.C.S. Section 4904 1
, relating to unsworn falsificati 8
on to authorities.
FF, ESQUIRE
Dated: February 16, 2009
4
2118105 Revasio•,
6102l'Al 6.
fu NAL
LEASE AGREEMENT
BARNETT PROPERTY
MANAGEMENT INC.
Landlord '
and
DAVID J. THOMAS and
6108 CARLISLE PIKE
RESTAURANT CO. LLC
Tenants
'
2/18/05 Revisio„
PARAGRAPH TABLE OF CONTENTS
I LEASED PREMISES DESCRIPTION
2
LEASE TERM PAGE
3
RENEWAL TERM(S) 1
1
4 RENT
5
EARLY TERMINATION 1
1
6 HOLDING OVER
5
7 TAXES, INSURANCE AND CAMS
5
8
9 EXPENSES BENEFITTING ONLY THE LEASED
5
SECURITY PREMISES
6
10
11 FINISHING PLANS AND SPECIFICATIONS
7
REPAIRS
8
12 USE OF PREMISES
9
13 SIGNS
9
14 PARKING LOT
11
15 INSURANCE
11
16 WAIVER OF SUBROGATION
11
17 FIRE AND OTHER CASUALTY
12
18 LIABILITY
12
19 CONDEMNATION
13
20 SUBORDINATION
14
21 ASSIGNMENT AND SUBLEASES
14
22 REMOVAL OF PROPERTY
14
23
24 MISCELLANEOUS OBLIGATIONS OF TENANT
15
LANDLORDS RIGHTS
15
25 LANDLORD'S REMEDIES
17
26 LITIGATION
19
27 NOTICES
20
28 CONSTRUCTION
21
29 INTEGRATION
21
30 SEVERABILITY
21
31 GOVERNING LAW
21
32 QUIET ENJOYMENT
22
33 CHANGES TO COMMON
AREAS
22
22
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2'' ?'?s ?et?ision
LEASE AGREEMENT
THIS LEASE made this 1St day of February, 2005, by and between
BARNETT PROPERTY MANAGEMENT, INC. , with offices at 25 Shady
Pennsylvania, 17013, as Landlord (hereinafter referred to as "L Lane, Carlisle,
Landlord")
AND
David J. Thomas and 6108 Carlisle Pike Restaurant Co., LLC
Suite 500, Harrisburg, PA 17101, (hereinafter referred to as o Te 212 Locust Street,
t
THE PARTIES AGREE AS FOLLOWS: Want")
1 • LEASED PREMISES. Landlord hereby agrees to lease to Tenant, and Tenant agrees to
rent from Landlord the Leased Premises known and numbered as Suite Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania 17050 containing 0 Good
square feet, more or less ("Leased Premises ? 4,985
as the "Shopping Center"), ??) (Good Hope Plaza is herein referred to
2. LEASE TERM. The initial term of this Lease ("Initial Lease
of ten 10 ears seven 7 Term"), shall be for a period
("Commencement Date" months commencing on February 1 2005,
Commencement Date, (Au usdt 31p120 g5 on ten (10) years and seven (7) months after the
Date"). ) (hereinafter referred to as the "Expiration
3• RENEWAL TERM(S). Tenant shall have the option of renewing consecutive five (5a,- Lease Terms, the first of which sh this Lease for two
the Initial Lease Term all commence at the end of
exercise of the renewal(
optionWal Lease Term(s)"). As conditions precedent to the
(l) Tenant must not have been in default of the terms
and conditions of this Lease at any time within the one (1 year expiration of the preceding Lease Term and (ii) Tenant must provide L prior to the
written notice of its intent to renew the Lease at least ninety 90 de Landlord with
days
prior to the
expiration of the preceding Lease Term. If exercised, each Renewal
be under and subject to the terms and conditions herein set fort Lease Term shall
h.
4. RENT. The rent and the late charges assessable upon late a
and subject to the following terms and conditions: p Yment of rent shall be under
-2-
2,1' ern- 3evision
??• Rent Amount: The rent for the Initial Lease T
Term(s)shall be paid in the monthly installments erm and the Renewal Lease
Rent )m accordance
with the schedule set forth in the following Table #1:
Term
B.
Initial 7
months
Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10
Year 11
Year 12
Year 13
Year 14
Year 15
Year 16
Year 17
Year 18
Year 19
Year 20
TABLE #1 - RENT AND LATE CHARGES
No. Of $/Sq. Ft.
Months Total Rent Monthly One Time
Rent Late Fee
7 $0.0000
$0.00 $0.00
$0.00
12
12
12
12
12
12
12
12
12
12
12
12
12
12
12
1
12
12
12
12
$8.000
$8.000
$9.000
$9.225
$9.4556
$9.6920
$9.9343
$10.1827
$10.4372
$10.6982
$11.6982
$11.9907
$12.2904
$12.5977
$12.9126
$13.9126
$14.2604
$14.6169
$14.9823
$15.3569
0 $39,880.00 $3,323.33
0 $39,880.00 $3,323.3
0 $44,865.00 $3,738.75
0 $45,986.63 $3,832.22
$47,136.29 $3,928.02
$48,314.70 $4,026-22
$49,522.57 $4,126.88
$50,760.63 $4,230.05
$52,029.65 $4,335.80
$53,330.39 $4,444.20
$58,315.53 $4,859.63
$59,773.42 $4,981.12
$61,267.75 $5,105.65
$62,799.44 $5,233.29
$64,369-43 $5,364.12
$69,354,31 $5,779.53
$71,088.17 $5,924.01
$72,865.37 $6,072.11
$74,687.01 $6,223.92
$76,554.18 $6 379.52
s $250.00
3 $250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250:00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
$250.00
Daily Late
Fee
$0-00
$10.00
k1o $10.00
$10.00 $10.00
$10.00
$10.00
$10.00
$10.00
$10.00
$10.00
$10.00
$10.00
$10.00
1st Seven Months: There shall be no Monthly Rent due a
seven (7) months of the Initial Lease Term nd owing for the first
provided, however, that during said
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211 8/05 Revisio::
seven (7) month period, Tenant shall be obligated to com l wi
terms including but not limited to p y th all other Lease
insurance and CAMS . Payment of Tenant's share of the taxes,
C• Payment of Monthly Rent: The first Monthly Rent
shall the first day of the eight (8th) month of this Lease, and exc p
t as due and payable hereon
provided, must be paid before Tenant has the right to o otherwise in
Premises. If that rent is not paid by this date, this Lease s ccupy
hall be the Leased
said day is other than the first of the month, the rent for that terminated. month be
prorated so that all future rent payments shall be due and payable shall be
of each month thereafter during the term of this Lease or on the first day
any renewal thereof.
D. Late Charge; If the Monthly Rent has not been rec '
(5) days of each monthly due date, Tenant shall beechaa ey Landlord within five
of $250.00 as set forth in the foregoing Table #1. In addi god a one time late fee
Rent
has not been received by Landlord within fifteen (15 days n' of if the each Monthly monthly due
date, Tenant shall be charged a daily late charge at the ra
starting on the 16th day after the rent due date and daily teher r $10eafter.00 until per day
Monthly rent is paid in full. The late charges shall be the
payable by Tenant. immediately due and
E• Tenant's Failure to Move Into roperty: If Tenant does
t
renovations within thirty (30) days of the date of Notice of commence Tenant's
Intent
Premises set forth in Paragraph 2 above or does not comme to Occupy the
Tenant's business by the date falling eight (8) months after the the operation t
Date, then this Lease may be terminated by Landlord unlesse Commencement
agree in writing. the parties otherwise
F. Place of Payment: The rent shall be paid b Tenant
Lane, Carlisle, PA 17013, or such other pace as Lan Landlord at 25 Shady
designate. Landlord may hereafter
G. Method Of Pa ment/Returned Checks: The rent m by or
business check. In the event, however, that any rental e check paid is personal by
Tenant's bank for insufficient funds, that check must be made go is returned by
eight (48) hours after Tenant is notified of the return, and T good within forty-
Landlord a service fee of $20.00 for each returned check. enant shall pay to
return, Tenant shall pay all future rent b Further, after such
money order. Y certified check, cashier's check or
-4-
2,18'95 R,e ision
H• No Rent Proration or Reduction: The rent set forth above
or prorated if Tenant vacates (leaves) the Leased Premises prior lto the en educed
then existing Lease Term, or if Tenant leaves on any date other t d of the
any Lease month occurring. after termination of this Lease. hat the end of
5• EARLY TERMINATION. Tenant shall have the right to term
expiration of the Lease Term or any renewal term thereof, b mate this lease prior to the
paying equal to twelve (12) months of rent and cams based on the mothl re dlord an amount
would have been due and payable had such termination not occurred rent and cams that
rent is due and payable upon the termination and return of possessionaid termination
Premises to Landlord. At Landlord's sole option the rent and d of the Leased
ams may
monthly installments. There shall be no offset against the termination rent be paid in
rent and Tenant
shall not be entitled to any rebate thereof in the event Landlord is to
Leased Premises during the twelve (12) month period. Tenant's exercise able of f rent the
shall not be considered a default within the meaning of Paragraph this right
24 hereof.
6• HOLDING OVER. If Tenant continues to occupy the Lead
Expiration Date or any earlier termination of this Lease, such occu Pr y emises shall be beyond the
subject
to all of the same terms and conditions as are contained in this Lease
rent payable during the period of such occupancy shall be equal to one,an d dept that the one- (1.25) times the amount of the rent which was last in effect during s mm quarter
preceding Lease Term or Renewal Lease Term thereof. Neither the assessment of he
holdover rent nor Landlord's acceptance of the payment of the holdover rent s of the
deemed in any way to limit or impair Landlord's right to immediately evict rent shall be
exercise Landlord's other rights and remedies under the provisions of t Tenant or
applicable law, including collection of consequential damages, on acc his Lease or
occupancy of the Leased Premises without Landlord's prior written consen of Tenant's
t.
7. TAXES INSURANCE UTILITIES AND CAMS. In addition to the payment within thirty (30) days of billing, Tenant shall pay Landlord Tenant's prropo of the Rent,
[twenty-six and twenty four hundredths (26,24% P rtionate share
utilities (not separately metered to Tenant) and co percent] of the taxes, insurance,
(CAMS) as additional rent. Tenant's mmon area maintenance charges
multiplying the costs of such expenses by a fraction the numerato shalt be determined ° gross
square footage of the Leased Premises and the denominator of which is the is the gross
gross
total
square footage of leasable space in Good Hope Plaza. Annual costs shall be prorate
any partial Lease Year. Capital Improvements shall be amortized over the life o d for
improvement as determined un the sole discretion of Landlord or Land life the
lord's engin ineer.
-5-
2/1 R/05 Revis;on
The items payable as additional rent in accordance with the
not be limited to by way of specification, the following: foregoing shall include, but
A. Exterior Lighting: Operation, maintenance re
exterior lights or lighting; Pair and replacement of any
B. Snow and Ice Removal: Snow and ice removal from t
parking lot and driveways he common areas, walkways,
C. Parking Lot and Driveways:
walkwa s g Repairs, maintenance and resurfacing of the
Y , parkin lot and driveways and the regulation of traffic thereo n;
D,
Landscaping: Landscaping, plantingreplanting
shrubbery, trees and planters; , and removal of flowers,
8.
E. Util_ hies; Electricity; water, sewer and the like not separately
the utility provider for utility service to the Leased Premises. billed to Tenant by
charges incurred by Tenant in the use of the Leased Premises Any other utility
billed to Tenant by the utility provider shall be paid b Ten that are directly
to that utility provider. Y ant in a timely manner
F. Insure; Landlord's insurance, subject to the rovisi
costs set forth in Paragraph 12 herein. p ons for increased insurance
G• Real Estate Taxes: The real estate taxes (Count
taxes payable or for any time during any Lease Year) municipal, school or other
H• Administrative Costs: An administrative
operating and maintaining Good Hope Plazawhichlsh be charged for managing,
e
amount of the foregoing expenses. t be fifteen (15%) of the
I• Service Char e: If Tenant fails to pay any of the foregoing
administrative costs within thirty (30) days of billing, there shall charges and
percent service charge added to those charges and cots, the calculatia ten (10%)
shall include the charge for administrative costs. on of which
""`L-f- I I I GNU ONLY THE LEASED PREMISES. In addition to the payment of
the Rent, Tenant shall pay one hundred (100%) percent of the
Premises that benefit only Tenant's Leased Premises. Annual costs shall be prorated for
-6-
2118105 Rev;S;O:?
any partial Lease Year. Capital Improvements and/or replacement
amortized over the life of the improvement as determined i of the same shall be
Landlord or Landlord's engineer. The items payable as in the sole discretion of
additional
with the foregoing shall include, but not be limited to b rent in accordance
following: Y way of specification, the
A• HVAC: The costs of inspection, maintenance, repair
HVAC system for Tenant's unit only. This service may and/or b replacement of the
Tenant in which event no service charge or (ate fee shall provided directly by
however, if Tenant fails to provide the said services Landlord provided,
services and bill Tenant therefor, in which event the? o may furnish said
administrative costs and late fees shall apply.
B. Exterior Doors: The cost of maintenance, re air
exterior doors to the leased premises; p and/or replacement of the
C. Plate Glass: The cost of repair and/or replacement
plate glass of all broken or damaged
D. Cle_?: General cleaning, painting and stri
the cleaning of exterior windows. PPing including, but not limited to,
E.
F.
G.
H.
Refuse and Recycling, Removal: Refuse, trash and recycling
removal for Tenant's unit only and from the parking lot and comm on collect as. and
service may be provided directly by Tenant in which event no s areas. This
late fee shall apply, provided, however, if Tenant fails ervice charge or
to provide the said
services, Landlord may furnish said services and bill Tenant therefor,
event the provisions regarding administrative costs and late fees shalt which
hall apply.
utilities. Electricity; water, sewer and the like charges incurr
use of the Leased Premises that are directly billed to Tenant Tenant t the
provider shall be paid by Tenant directly to the utility provider.
Administrative Costs: An administrative fee shall be charged
operating and maintaining Good Hope Plaza which shall be fifteenf 1r managing,
of the amount of the foregoing expenses, if and only to the 5?) percent
services are provided by Landlord and billed to Tenant. extent that such
Service Char
If Tenant
fails to pay any of the foregoing charges and
-7-
2l' Q n? Retiision
administrative costs within thirty (30) days of Landlord's bitting, there
ten (10%) percent service charge added to those charges and costs, be a
calculation of which shall include the charge of administrative costs. , the
9. SECURITY. The terms regarding the security deposit are as follows:
A. Amount of Security Deposit: Upon the execution of this Lease
Tenant a Security Deposit of 3 323.33 ("Security Deposit)" W hishall pay
days of the date of any Monthly Rent increase, Tenant shall pa additin five (5)
to Landlord to be held as a security deposit equal to the difference betwel funds
Monthly Rent amount then existing minus the Security Deposit then hen the
Landlord so that Landlord always has a Security Deposit equal to one held by
that Monthly Rent shall exist from time to time. month's as
B. Purpose of Security Deonc;r•
The Security Deposit is to cover cleaning of the
Leased Premises upon termination of this Lease and the costs of the re
nt's
replacement of any damages to the Leased Premises occurring during Tand/or
occupancy. The Security Deposit is not to be used by Tenant as a payment of an s
rent. any
C. Interest on Security Deposit: There shall be no interest
Deposit. Tenant hereby waives any right to require Landlord to de osith Security
into an interest-bearing account. p the funds
D. Trancfnr „F c__. --"
In the event
or lease of the land of which Leased Premises is a part, Landlord
shalt of the sale
have
right to transfer the Security Deposit to the vendee or lessee, and up the
such
transfer Landlord shall be considered released by Tenant from all liability
he
regarding or relating to the Security Deposit including, but not limited to, the
return of the Security Deposit , and Tenant shall look to the new Landlord so
for the return of the Security Deposit. It is agreed that this shall apply lely
transfer or assignment made of the Security Deposit to a new landlorto every
E. Assign: In the event of any rightful and permitted assignment
of th
the Security Deposit shall be deemed to be held by Landlord as a deposit ma Lease,
by
the assignee, and Landlord shall have no further liability for any matters regarding
or relating to the Security Deposit including, but not limited to, the return Security Deposit to the assignor. he
-8-
2118105 Rev si,,p
F. No Encumbrance of Securit Deposit:
The mortgaged, assigned, nor encumbered by Tenant Sw thouy Deposit shall not be
Landlord, and any attempt to do so shall be void. t the written consent of
10. FINISHING/PLANS AND SPECIFICATIONS. Excep as be solely responsible to finish, fixture, remodelt and i hereinafter provided, Tenant, shall
Tenant's sole cost and expense under the following conditions: pro the Leased Premises at
:
A. Stipulation Against Liens: For Landlord's protection, Tenant
appropriate stipulation(s) against mechanic's liens and obtain full an shall file
full and adequate
liability and workmen's compensation insurance policies and
with proof thereof, all of which shall be done prior to the com provide Landlord
mence
work or delivery of materials for the said finishings, fixtures, rem ment of the
improvements. es, remodeling and
B. Permits and Government A royals: All finishing, improvements and construction shall be done in acco dance witng, remodeling,
laws and ordinances after the appropriate permits have e with state and local
Lessee at Lessee's sole expense. been obtained by the
With respect to the foregoing, Tenant shall
provide Landlord with written certification that Tenant's ovens
utilized on the Premises are to Code and are installed in a and stoves to be
applicable Codes. ccordance with all
C. Landlord A royal of Plans and S ecifications• No ,
remodeling, improvements and construction shall• be done finishingy fixturin t
Landlord has given Tenant written approved Tenant's Plans and unless and until
proposed contractors, which approval shall not be unreasonably i wi thhe thheld. d. and
plans and specifications must meet all requirement of Landlord's All
including , but not limited to any requirements for Safet for insurance carrier
Standards. Y Cooking Equipment
D. No Structural Alterations: There shall be structural
altera
nor penetrations made in the roof unless a rov tons toe the Leased
consent to which shall not be unreasonable withheld. pp tied by the Landlord,
E' Gas line: Landlord shall supply a gas line to the Premises. The costs that landlord
incurs therefor shall be paid by Landlord, provided however, t
liable for twenty-six and twenty-four hundredths (26.24% hat Tenant shall be
which shall be amortized over a period of twenty four (24) months of said costs,
Tenant accordingly. ) nths and billed to
-9-
2/18/95 Rcv;sion
F. Devising Walls: Landlord shall remove the devising
central part of the Leased Premises. Tenant shalt ( be responsible sible located the
construction of the devising wall located on the right side of the Le for the
and the upgrade of the devising wall located on the right eased Premises
Premises. Tenant's construction and upgrades of the de side a the Leased
shall be in compliance with all applicable codes, vising walls aforesaid
11. REPAIRS. The following shall apply regarding repairs
to the Leased Premises,
12.
A• Tenant's Repairs: Except as otherwise herein r
responsible for all nonstructural maintenance, e ° ? ded, Tenant shall be
alterations to the interior of the Leased Premises. p improvements and
B. Landlord's Repairs: Except as otherwise herein provided
exterior and structural portions of the Leased Premises,,,includding shall keep the
support, gutters, down spouts, foundation, and structural su ortoof and roof
portions of the floors and bearing walls in good order and repair 'structural
keep all plumbing pipes, tubes, and wiring outside of, but lea ,to shall also
Leased Premises in good order and repair. ding to or from, the
C. Paragra Ph 8 Re airs: The terms of subparagraphs A.
notwithstanding, if any of the foregoing is governed by the p o Bsiobove foregoing
6 herein, such as the inspection, repair, replacement and/or s of Paragraph
the heating, ventilating and cooling equipment installed on the Lea enance of (1)
(2) the exterior doors and (3) all broken or damaged lateeased Premises,
inspection, repair, replacement and/or maintenance shall glass, then the
be
Landlord and billed to and paid by Tenant pursuant to the ter performed by
herein. ms of Paragraph 8
USE OF THE PREMISES. The following shall apply regardin Tenant
Premises: g 's use of the Leased
A• Permitted Use: Tenant, upon receipt of proper governmental
the Leased Premises for the limited purpose of a restaurant approvals, shall use
B. Future Use u on Consent: Any other use of the Leased
permitted only with the written consent of the Landlord, whiic Premises shalt be
be unreasonably withheld h consent shall not
-10-
2/1 e/t?)S Revision
C. Non Permitted Uses:
Tenant shall not use nor permit the Leased Premises
to
be used for any immoral purposes such as a head shop, an adult bookstore or for
prostitution of any nature to be determined in the '
Tenant shall not use nor permit the Leased Premises to andlord s sole judgment.
ordinance, statute, rule or regulation concerning the be used in violation of any
anner
Leased Premises under the jurisdiction of any lawful authorof occupation of the
thor?ty,
D. Fire and Casua
or lt Insurance Restrictions: Tenant shall not do, suffer to be done,
anything in, upon, or about the Leased Premises
which will contravene Landlord's insurance policies inc
public liability , fire and casualty insurance, or which will ding but not limited from
procuring such policies in companies acceptable to prevent Landlord from
lord
consistent with the premiums paid on similar stores orLa and at a rate
Plaza. premises in Good Hope
13.
E. Pa ment of Increased Insurance Costs: In the event use of the Leased Premises shall cause the rate of fi etorot enant's conduct and
Leased Premises, or other stores or premises in Good H her insurance on the
beyond the rates applicable for similar premises in Good Pe Plaza to be increased
engage in a similar activity, Tenant will pay the amount fop such increase which do not
they are finally determined by Landlord's insurance carrier h increase costs as
of written notice and proof thereof. within thirty (30) days
F. Maintenance: Tenant shall maintain its Leased Premises and
a neat and clean condition, and shall store all trash and ga ba es show windows in
Premises or in proper receptacles provided by Tenant, g within the Leased
G. Operation of Business: Tenant shall continuously operate
and regular hours, a minimum of six (6) days a week, and sh alt its business at usual
at no time create
or tend to create the impressions of permanent closing or non-use.
g SIGNS* Tenant shall be permitted to place an a ro
following conditions: PP priate business sign under the
A. Design: The size, design, and placement of the sin
written consent of Landlord, within specification to be provi done only with the
P ded by Landlord.
B. Regulations and Laws:
All sign design, construction and installation shall be
.11
?J)5 Revision
done in accordance with state and local laws and ordinances after the
appropriate
permits have been obtained by the Lessee at Lessee's sole expense,
C. Costs: Tenant shall be solely responsible for the cost and amen installation thereof. P Y t of the sign and
D. Installation: The cost of that installation shall be paid by Tenant.
14. PARKING LOT. In addition to the Leased Premises, Tenant shalt
nonexclusive use in common with others of parking areas, driveways,hfovotwae right of
such other facilities as may be designated from time-to-time by the Landlor ys' and of
abide by Rules and regulations concerning use of thereof as Landlord m y d' and shall
make from
time-to-time, provided that Landlord shall not make any designation nor rul which
unreasonably interfere with Tenant's ability to operate a restaurant in thee Leased
Premises. eased
15. INSURANCE. The following shall apply regarding insurance requirements
Lease: under this
A. Tenant's Insurance: Tenant shall procure, provide and pa for
insurance with an insurance company acceptable to Landlord and for the benefit
benefit
of Tenant and Landlord to cover personal injury,
about the Leased Premises and/or parking lot p to be roperty damage, or death in or
in te amount of
Hundred Thousand ($500,000.00) Dollars single injury or dea
th;One Mill on D Five
°llars
($1,000,000.00) total single occurrence; and Two Hundred Fifty Thousan
d Dollars
($250,000.00) property damage. Tenant shall also provide and pa for plate
insurance on the Leased Premises. Tenant shall supply the Landlord glass
certificates evidencing that such coverages are in full force and effect with the
Landlord being named as a party insured and/or loss payee therein and providing he
for a least ten (10) days advance written notice to Landlord of an alteration r
termination thereof. Y ton or
B. Landlord's Insurance: Landlord shall procure fire and extended
coverage
insurance to a minimum of eight (80%) percent (but not more than one hundred
(100%) percent of the replacement value of the Leased Premises. Landlord shall
furnish a copy of the insurance statement each year to Tenant as soon as after receipt thereof. possible
16 WAIVER OF SUBROGATION. Each policy of fire insurance with extended coverage
-12-
21? Q/nti Revision
carried by Tenant shall provide that the insurer waives any ri
the Landlord in connection with or arising out of any damage gright of subrogation against
in the Leased Premises caused by fire or other risks orto such property contained
insurance. In no event shall Tenant or an casualty covered by such
the Leased Premises b any person or corporation claiming an interest in
y, through or under Tenant claim, maintain or prosecute
action or suit at law or in equity against the Landlord for any (o
any
by or resulting from fire or other risk or casualty in the loss, cost or damage caused
eased
thereof, for which Tenant is or may be insured under a st Premises or an
part
with extended coverage whether or not carried b Ten
ant fire insurance policy
the negligence of Landlord, or the agents, or servants, or,e and whether or not cause by
mployees of Landlord.
17. FIRE AND OTHER CASUALTY.
Premises from fire or other casualty: following shall apply to damage to the Leased
A• Damages/Landlord Repairs;
If the Leased Premises are (I) damaged by fire or
other casualty not occurring through any act on the part of
Tenant
, its agents,
servants, or employees, and rr such damage is in an amount less than f
percent of its fire market value, and (iii) can
be repaired within onerhundr0e )
twenty (120) days of the date of such occurrence, this Leases d
force and effect, and the Landlord shall promptly repair hall remain full
expense and, in that event there shall be a proportionate abatement of r at its
so much of the Leased Premises as may be untenantable during of rent for
repair or restoration. the period of
B. Dama?es?No Landlord Repair: If, in the opinion of
engineer appointed by Landlord, (1) the Leased Premises are, dama architect or
other casualty to such an extent that the damage cannot be r ged by fire or
within one ..
hundred twenty (120) days from the date of such occurrence or restored
Leased Premises are damaged in an amount over fift 50% percent or (ii) the
market value or (.rrr) such damage is due to any act or failure to
t o the fair
of Tenant, its agents, servants or employees, this Lease shall act on the part
option of the Landlord upon written notice given within forty-five (45) d e a the
(45) days after
such occurrence. If such option is exercised, rent shall abate her of
date of such destruction or damage. If this option is not exercised by d by as Landl l the
then this Lease shall continue in full force and effect. ord,
C. Damages to Good Hope Plaza: If twenty-five (25%) percent
buildings of which the Leased Premises form a part are damage or more of the
d or
casualty to such an extent that the same cannot be restored w th
in one e fire u other
hundred
-13-
2118105 evjSinr
twenty (120) days of the date of such occurrence, this Lease
may be canceled at
the Option of Landlord upon thirty (30) days written notice from
occurrence, even though the Leased Premises occupied by Tene date of such
become untenantable, and there shall be an adjustment to ant have not
of termination. the rent to the date
D. Damages During Last Three Years of Term: The foregoing
there shall be no obligation upon the part of Landlord to repair notwithstanding,
the last three (3) years of the term of this Lease unless Tenant or rebuild during
fifteen (15) days after such occurrence, exercise any option shall, within
to of this Lease that may be afforded to Tenant under the terms extend the term
hereof.
E. Limitation on Repairs: Landlord's obligation to repair or rebuild to
Paragraph shall be limited to a basic building and the re laceme nt of pursuant t this
work which may have originally been installed at Landlord's cost. any interior
herein provided, there shall be no obligation to repair or reb Except as
fire or other casualty. ulld in the case of
18• LIA-BILITY. Landlord shall not be liable for any damage,
property arising out of any of the following matters, unless as a result tof L L to person or
negligence, and Tenant shall save Landlord harmless therefrom: andlord's own
A. Property DT amagQ: Any damage to property on the Lease
Premises
Tenant, its employees, assignees, subtenants, concessionaires, belonging t
customers. licensees, or
r
B. Personal Iniur : Any personal injuries which they ma in
the Leased Premises. y cur or sustain while on
C. Service Interru tion: The quality, quantity, impairment interruption
or other interference with service involving water, heat ? , stoppage,
light and power and telephone or any other service. 'gas' electric current for
D. Business Interru tion:
Arising out of any interruption in Tenant's business
operated in, from or out of the Leased Premises.
M CONDEMNATION. In the event of condemnation or other taking
so much of the Leased Premises or of Good Hope Plaza as to render intent domain of
Landlord the Leased Premises untenantable, Tenant waives all clai the opinion of
ms or rights it might
-14-
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Certification of Address
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 a Fax: 717-975-0697 a Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC. .
Plaintiff NO. 09-1005 CIVIL TERM
V.
DAVID J. THOMAS and CIVIL ACTION - LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
' IN EJECTMENT
Defendants
CERTIFICATION OF ADDRESSES
I, Diane G. Radcliff, Esquire, attorney for the Plaintiff, hereby certify that the address
Defendants in the above captioned matter are as follows: es of the
David J. Thomas 6108 Carlisle Restaurant Company, LLC
110 Walnut Street 110 Walnut Street
Lemoyne, PA 17043 Lemoyne, PA 17043
D
FF, ESQUIRE
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
11
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Praecipe for Writ
Prepared By; of Possession
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court iD # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradc(iff
Attorney for Plaintiff @comcast. net
IN THE COURT OF COMMON PLEAS OF CUMBERLA
BARNETT
PROPERTY ND COUNTY, PENNSYLVANIA
MANAGEMENT, INC. .
Plaintiff
• NO.6-0-/06) CIVIL TERM
V.
DAVID J. THOMAS and .
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants :
PRAECIPE FOR WRIT OF POSSESSION
UPON A CONFESSED JUDGMENT
TO THE PROTHONOTARY:
Issue writ of possession upon the judgment in ejectment entered by confession in the
matter against the Defendants in the above captioned
above
case.
CERTIFICATION
I, Diane G. Radcliff, Esquire, certify that:
1. This Praecipe is based upon a judgment entered by confession, and
2• Notice pursuant to Rule 2973.3 will be served with the Writ of Possession.
Respectfully submitted,
uiANE G. DCLIFF, ESQL
3 r1ndle Road, Camp
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
, PA 17011
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Notice of Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC. .
Plaintiff NO. 09 - 166 S
CIVIL TERM
V.
DAVID J. THOMAS and CIVIL ACTION - LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
' IN EJECTMENT
Defendants :
NOTICE UNDER RULE 2973.3 OF JUDGMENT
AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
c/o David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
A judgment for possession of real property has been entered against you and in favor
Plaintiff without prior notice and hearing based on a confession of judgment contained of the
ed in a
promissory note or other document allegedly executed by you. The court has issued
Sheriff has served a writ of possession which directs the Sheriff to remove you from p and the
of the real property. possession
You may have legal rights to defeatI the judgment or to prevent your being removed from
property or to regain possession of the property if you have been removed, if you did not
voluntarily, intelligently and knowingly give up your constitutional right to notice and
hearing to the entry of judgment or if you have defenses or other valid objections to the
thjudgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSIO
MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
VED O ON
L - . w:
YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for
you have a right to a prompt court hearing if you claim that you did not voluntaril intelligently
and knowingly give up your rights to notice and hearin y,
gently
you wish to exercise this ri ht g Prior to the entry of the judgment. If
g, you must immediately fill out and sign the request for hearing
which accompanies the writ of possession and deliver it to the Sheriff of Cumberland
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013. County
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER. WITH
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE
YOU
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PER WITH
REDUCED FEE OR NO FEE. SONS AT A
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone No. (717) 249-3166
.448 Trindle Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
Petition to Strike Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 * Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 09-1005 CIVIL TERM
V.
DAVID J. THOMAS and CIVIL ACTION - LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
IN EJECTMENT
Defendants
PETITION TO STIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I, David J. Thomas, sole owner of and duly authorized to act on behalf of 6108 Carlisle Pike
Restaurant Company, LLC, do hereby certify that I did not voluntarily, intelligently and
knowingly give up my right to noticeand hearing prior to the entry of judgment. I petition the
Court to strike the judgment on this ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904 relating
to unsworn falsification to authorities.
Notice of the hearing should be given to me at:
6108 Carlisle Restaurant Company, LLC
110 Walnut Street
Lemoyne, PA 17043
Telephone: (717) 215-6689
Dated:
David J. Thomas on behalf of
6108 Carlisle Restaurant Company, LLC
X ; .R
Notice of Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 170111
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 0 9 /40 s CIVIL TERM
V.
DAVID J. THOMAS and CIVIL ACTION -LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
NOTICE UNDER RULE 2973.3 OF JUDGMENT
AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To: David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
A judgment for possession of real property has been entered against you and in favor of the
Plaintiff without prior notice and hearing based on a confession of judgment contained in a
promissory note or other document allegedly executed by you. The court has Sheriff has served a writ of possession which directs the Sheriff to remove you from e o session
of the real property. P
You may have legal rights to defeat the judgment or to prevent your being removed from the
property or to regain possession of ? the property if you have been removed, if you did not
voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing
prior to the entry of judgment or if you have defenses or other valid objections to the
judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION
MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
YOU OR YOU MAY LOSE YOUR RIGHTS.
C
If you have been removed from the property without notice or the opportunity for a hearing,
you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently
and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If
you wish to exercise this right, you must immediately fill out and sign the request for hearing
which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone No. (717) 249-3166
NE G. RAD IFF, ESQUIRE
3 ran a Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
+6 my Juugmeni
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 a Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 09-1005 CIVIL TERM
V.
DAVID J. THOMAS and CIVIL ACTION -LAW
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
IN EJECTMENT
Defendants
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice
and hearing prior to the entry of judgment. I petition the /Court to strike the judgment on this
ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relatin to
unsworn falsification to authorities. g
Notice of the hearing should be given to me at:
David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Telephone: (717) 215-6689
Dated:
David J. Thomas
Praecipe for Writ of Possession
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
7(Plaintif NO.C'/06)J
V.
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
PRAECIPE FOR WRIT OF POSSESSION
UPON A CONFESSED JUDGMENT
TO THE PROTHONOTARY:
CIVIL TERM
Issue writ of possession upon the judgment in ejectment entered by confession in the above
matter against the Defendants in the above captioned case.
CERTIFICATION
I, Diane G. Radcliff, Esquire, certify that:
1. This Praecipe is based upon a judgment entered by confession, and
2. Notice pursuant to Rule 2973.3 will be served with the Writ of Possession.
Respectfully submitted,
DIANE G. DCLIFF, ESQ R
3 rindle Road, Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
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Praecipe for Writ of Possession
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 69-1005' CIVIL TERM
V.
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
PRAECIPE FOR WRIT OF POSSESSION
UPON A CONFESSED JUDGMENT
TO THE PROTHONOTARY:
Issue writ of possession upon the judgment in ejectment entered by confession in the above
matter against the Defendants for possession of the real property described as follows:
Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania,
17050 containing 4,985 square feet, more or less, being part of the premises more
fully bounded and described on Exhibit "A" attached hereto and made a part hereof.
CERTIFICATION
I, Diane G. Radcliff, Esquire, certify that:
1. This Praecipe is based upon a judgment entered by confession, and
2. Notice pursuant to Rule 2973.3 will be served with the Writ of Possession.
idly submitted,
j1b41# -& CLIFF, ESQUIR
3448 Trindle ad, Camp Hill, PA 17011
37-0100
Supreme Court ID # 32112
Attorney for Plaintiff
s?.. -•
EXHIBIT "A"
6108 CARLISLE PIKE, MECHANICSBURG, PA
ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in the Township
of Hampden, County of Cumberland and Commonwealth of Pennsylvania, more particularly
described as follows:
BEGINNING at a point, said point being at the intersection of the north side of a 50.0 foot wide
right of way and the east side of Gustin Drive;
THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a point at land
of Wu Chon Ho;
THENCE by same South 63° 41' 43" East 150.00 feet to a point;
THENCE by same North 26° 37' 26" East 162.25 feet to a point on the south side of the Carlisle
Pike;
THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc length of
173.82 feet to a point at lands of the Pep Boys;
THENCE by same South 26° 23' 48" West 432.45 feet to a point on the north side of a 50.00 foot
wide right of way;
THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING
CONTAINING 2.504 acres.
BEING the same premises which Skyport Properties, a Pennsylvania Limited Partnership, by its
Deed dated February 14, 2003 and recorded February 21, 2003 in the Office of the Recorder of
Deeds in and for Cumberland County, Pennsylvania, in Deed Book 255, Page 4133, granted and
conveyed unto Barnett Real Estate, LLC.
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WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.)
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
VS. No. 09-1005 Civil Term
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY,LLC
Costs
Attorney's $ 51.50
Plaintiff's $
Prothonotary $ 2.00
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND:
To the Sheriff of Cumberland County, Pennsylvania
(1) To satisfy the judgment for possession in the above matter you are directed to deliver
possession of the following described property to: (Plaintiff (s))
BARNETT PROPERTY MANAGEMENT, INC.
being: (Premises as follows):
SUITE 108-112, GOOD HOPE PLAZA, 6108 CARLISLE PIKE, MECHANICSBURG,
PENNSYLVANIA, 17050 CONTAINING 4,985 SQUARE FEET, MORE OR LESS, BEING
PART OF THE PREMISES MORE FULLY BOUNDED AND DESCRIBED ON EXHIBIT "A"
ATTACHED HERETO AND MADE A PART HEREOF.
(2) To satisfy the costs against the defendant (s) you are directed to levy upon any
property of the defendant (s) and sell his/her (or their) interest therein.
Date FEBRUARY 19, 2009
(Seal)
G
Curtis . Long, Prothonotary,
Common Pleas Court of Cumberland County, PA
2of2
No 09-1005 Civil Term
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
VS.
DAVID J... THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
WRIT OF POSSESSION
P.R.C.P. 3160-3165 ETC.
Costs
Att'y $ 51.50
Plff (s) $
Prothy $ 2.00
Sheriff $
Plaintiff (s) attorney name and address:
DIANE G. RADCLIFF, ESQ., 3448 TRINDLE ROAD, CAMP HILL, PA
17011 SUPREME COURT ID #32112
PHONE: (717) 737- 0100
Attorney for Plaintiff (s)
Where papers may be served
By virtue of this writ, on the
named
appurtenances, and
day of , . I caused the within
_, to have possession of the premises described with the
So Answers,
Sworn and subscribed to before me this
Day of ,
Sheriff
By
Prothonotary Deputy
EXHIBIT "A"
6108 CARLISLE PIKE, MECHANICSBURG, PA
ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in the Township
of Hampden, County of Cumberland and Commonwealth of Pennsylvania, more particularly
described as follows:
BEGINNING at a point, said point being at the intersection of the north side of a 50.0 foot wide
right of way and the east side of Gustin Drive;
THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a point at land
of Wu Chon Ho;
THENCE by same South 63° 41' 43" East 150.00 feet to a point;
THENCE by same North 26° 37' 26" East 162.25 feet to a point on the south side of the Carlisle
Pike;
THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc length of
173.82 feet to a point at lands of the Pep Boys;
THENCE by same South 26°23' 48" West 432.45 feet to a point on the north side of a 50.00 foot
wide right of way;
THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING
CONTAINING 2.504 acres.
BEING the same premises which Skyport Properties, a Pennsylvania Limited Partnership, by its
Deed dated February 14, 2003 and recorded February 21, 2003 in the Office of the Recorder of
Deeds in and for Cumberland County, Pennsylvania, in Deed Book 255, Page 4133, granted and
conveyed unto Barnett Real Estate, LLC.
.
Notice of Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # $2112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 09 - 1,66 S CIVIL TERM
V. .
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
NOTICE UNDER RULE 2973.3 OF JUDGMENT
AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC
c/o David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
A judgment for possession of real property has been entered against you and in favor of the
Plaintiff without prior notice and hearing based on a confession of judgment contained in a
promissory note or other document allegedly executed by you. The court has issued and the
Sheriff has served a writ of possession which directs the Sheriff to remove you from possession
of the real property.
You may have legal rights to defeat the judgment or to prevent your being removed from the
property or to regain possession of the property if you have been removed, if you did not
voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing
prior to the entry of judgment or if you have defenses or other valid objections to the
judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION
MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
..
a -
YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for a hearing,
you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently
and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If
you wish to exercise this right, you must immediately fill out and sign the request for hearing
which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO PEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone No. (717) 249-3166
E G. BAbCLIFF, ESQUIRE
Trindle Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
Petition to Strike Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COU
OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 09-1005 CIVIL TERM
V. .
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
PETITION TO STIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I, David J. Thomas, sole owner of and duly authorized to act on behalf of 6108 Carlisle Pike
Restaurant Company, LLC, do hereby certify that I did not voluntarily, intelligently and
knowingly give up my right to notice?and hearing prior to the entry of judgment. I petition the
Court to strike the judgment on this ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I understand
that false statements (herein are made subject to the penalties of 18 Pa. C.S. 5 4904 relating
to unsworn falsification to authorities.
Notice of the hearing should be given to me at:
Dated:
6108 Carlisle Restaurant Company, LLC
110 Walnut Street
Lemoyne, PA 17043
Telephone: (717) 215-6689
David J. Thomas on behalf of
6108 Carlisle Restaurant Company, LLC
kK
Notice of Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff:
IN THE COURT" OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT,, INC.
Plaintiff NO. D 9 _/46S CIVIL TERM
V.
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants :
NOTICE UNDER RULE 2973.3 OF JUDGMENT
AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To: David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
A judgment for possession of real property has been entered against you and in favor of the
Plaintiff without prior notice and hearing based on a confession of judgment contained in a
promissory note or other document allegedly executed by you. The court has issued and the
Sheriff has served a writ of possession which directs the Sheriff to remove you from possession
of the real property.
You may have legal rights to defeat the judgment or to prevent your being removed from the
property or to regain possession of! the property if you have been removed, if you did not
voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing
prior to the entry of judgment or if you have defenses or other valid objections to the
judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION
MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for a hearing,
you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently
and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If
you wish to exercise this right, you must immediately fill out and sign the request for hearing
which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHON THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT !HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT:AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
Telephone No. (717) 249-3166
E G. RAD IFF, ESQUIRE
r n ; Rn;%H
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
Petition to Strike Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.
Plaintiff NO. 09-1005 CIVIL TERM
V.
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I mid not voluntarily, intelligently and knowingly give up my right to notice
and hearing prior to the entry of judgment. I petition the /Court to strike the judgment on this
ground and request a prompt hearing on this issue.
I verify that the statements made in,this Request for Hearing are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. 54904 relating to
unsworn falsification to authorities.
Notice of the hearing should be given to me at:
David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Telephone: (717) 215-6689
Dated:
David J. Thomas
Petition to Strike Judgment
Prepared By:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697• Email: dianeradcliff @comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT,,INC.
Plaintiff NO. 09-1005 CIVIL TERM
V.
CIVIL ACTION - LAW
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT
Defendants
PETITION TO SAKE JUDGMENT
REQUEST FOR PROMPT HEARING
I, David J. Thomas, sole owner of and duty authorized to act on behalf of 6108 Carlisle Pike
Restaurant Company, LLC, do hereby certify that I did not voluntarily, intelligently and
knowingly give up my right to notice?and hearing prior to the entry of judgment. I petition the
Court to strike the judgment on this ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904 relating
to unsworn falsification to authorities.
Notice of the hearing should be given to me at:
6108 Carlisle Restaurant Company, LLC
110 Walnut Street
Lemoyne, PA 17043
Telephone: (717) 215-6689
Dated: /10 o q \ T-n? ?5
David J. Thomas on behalf of
6108 Carlisle Restaurant Company, LLC
t
P
e
C2
C?a
Uy p
Barnett Property Management, Inc.,
Plaintiff (Respondent)
V.
David Thomas and 6108 Carlisle Pike
Restaurant, LLC,
Defendants (Petitioner)
IN THE COURT OF COMMON PLEAS
Cumberland COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
:NO. 09-1005 Civil
DEFENDANT'S PETITION TO STRIKE AND/OR
OPEN CONFESSED JUDGMENT, AND FOR A STAY OF PROCEEDINGS
AND NOW COME the Defendants, David Thomas and 6108 Carlisle Pike Restaurant,
LLC, through their attorneys, Adler & Adler, and respectfully represents the following:
1. By way of confession, Barnett Property Management, Inc. is seeking possession of Suite 108-
112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, PA, from David Thomas and 6108
Carlisle Pike Restaurant, LLC as the tenant in such space.
2. On February 19, 2009, plaintiff filed a confession of judgment in ejectment against defendant
to the above number together with a complaint.
3. Notice of defendant's rights under said judgment was delivered with the confession and
complaint.
4. Plaintiff filed for a writ of possession on February 19, 2009.
5. No judge has ruled upon any other issue in this or a related matter.
COUNT I - PETITION TO STRIKE OFF JUDGMENT
Violation of PaRCP 2951
6. Paragraphs 1-5 are incorporated herein by reference.
7. PaRCP 2951 (a)(2)(i) requires that plaintiff file the instrument in support of the entry of
judgment.
8. Plaintiff failed to file the entire instrument which includes an addendum to the Lease
agreement that changes the payment terms.
9. Plaintiff failed to comply with PaRCP 2951 (a)(2)(i).
10. A copy of that addendum, although unsigned due to the fact that plaintiff failed to return a
signed copy to defendant, is attached as Exhibit "A."
Failure to Comt)ly with Condition Precedent Prior to Entrv of Judgment
11. Paragraph 24 of the Lease attached as Exhibit "A" to plaintiff's complaint states:
The foregoing notwithstanding, upon the occurrence of a default,
no right or option herein conferred on Landlord shall be exercised
unless: (1) Landlord shall have given written notice thereof to
Tenants specifying the nature of the default; and (2) in the event of
the non-payment of rent Tenant within fourteen (14) days after
receipt of such notice shall have failed to submit payment...
12. The giving of notice and an opportunity to cure the default are conditions precedent to the
entry of judgment by confession.
13. Plaintiff failed to give the defendant the notice required by paragraph 24 of the Lease.
14. Under the Lease, the Plaintiff is not permitted to confess judgment until the following
conditions occur: non-payment of rent; giving of the 14 day written notice of default; and the
failure of Tenant to cure the default within the required time period.
Accord and Satisfaction
15. Plaintiff claims the defense of accord and satisfaction.
16. Plaintiff has paid all delinquent rent due for December, 2008 and January 2009 into Court in
that Plaintiff refused to accept the same.
17. Plaintiff accepted rent for February, 2009.
18. Defendant cured the default by paying rent due for December, 2008 and January, 2009, into
Court in that Plaintiff would not accept said rent.
Violation of PaRCP 2971
19. The complaint for confession is defective in that PaRCP 2971(a)(1) requires an averment
that judgment is not being entered against a natural person in connection with a residential lease,
which averment is missing from plaintiff's complaint.
Violation of PaRCP 2952(6)
20. The complaint is defective in that PaRCP 2952 (6) requires a statement that judgment may
be entered only after a default or the occurrence of a condition precedent, an averment of the
default or of the occurrence of the condition precedent.
21. Plaintiff alleged a default in paragraph 6 of the complaint, but failed to allege the fulfillment
of the condition precedent as required by paragraph 24 of the Lease.
Failure to Reaffirm Confession of Judgment in Addendum to Lease
22. On January 4, 2008, plaintiff and defendant entered into a modification of the Lease terms.
23. Defendant sent a signed copy to plaintiff, but plaintiff never returned a fully executed copy
to defendant.
24. A copy of said modification is attached as Exhibit "A."
25. The January 4, 2008 modification made no reference to the warrants of attorney in the 2005
Lease.
26. The warrant of attorney was not incorporated by reference in the January 2008 amendment.
27. The January 2008 amendment did not reaffirm the warrant of attorney in the 2005 Lease.
28. Due to the lack of confirmation or reaffirmation, the judgment should be stricken.
Lack of Knowing Waiver of Rights
29. The Tenant did not voluntarily, intelligently and knowingly waive his/its right to notice and
hearing prior to entry of the judgment.
30. The confession of judgment clause was buried in page 20 of the Lease.
31. No distinctive fonts distinguished the confession clauses.
32. There is no separate affirmation in the Lease for Tenant to acknowledge that he/it has
waived its right to notice in such a manner.
33. No separate explanation of the confession of judgment clauses was given to Tenant.
34. Tenant understood that he would have a right to cure any default after notice.
Improper Verification
35. PaRCP 2952(10) requires verification in accordance with the rules relating to a civil action.
36. The attorney for the plaintiff verified the complaint, even though averments of fact were
included.
37. The rules relating to a civil action require that the plaintiff verify the complaint.
38. The complaint was improperly verified.
WHEREFORE, Petitioner respectfully requests that the judgment in ejectment be stricken for all
of the aforedescribed reasons.
COUNT II - PETITION TO OPEN JUDGMENT
39. Petitioners hereby incorporate by reference the allegations set forth in paragraphs 1-38.
40. In the alternative, to the extent that the judgment entered by confession is not stricken, the
judgment must be opened. A Petition to Open Confessed Judgment must be granted if the
Petition: (a) is timely filed; (b) alleges a meritorious defense; and (c) presents sufficient evidence
to require submission of the case to a jury.
41. This case is timely filed because it has been filed within 30 days of the entry of judgment.
42. Numerous factors have been raised above manifesting a meritorious defense which is
sufficient to require submission to a jury.
COUNT III - REQUEST FOR STAY OF PROCEEDINGS
43. Paragraphs 1-42 are incorporated herein by reference.
44. Pennsylvania Rule of Civil Procedure 2959(b) authorizes a stay of proceedings on a
judgment of confession as long as the Petition to Open "states prima facie grounds for relief..."
45. Petitioner operates a restaurant in the leased space.
46. To even temporarily close the restaurant while this proceeding is pending would be
devastating to Petitioner's business.
47. All rent and CAMS to be paid to Plaintiff under the Lease and Addendum are current.
48. Proceedings should be stayed in this case because: (a) the instant Petition to Open states
prima facie grounds for relief; (b) the harm to Defendants from denying a stay would be severe
and irreparable; and (c) the only "harm" to Barnett Property Management, Inc. from granting a
stay would be a short delay in enforcement pending a proper judicial determination of whether
such enforcement is justified.
WHEREFORE, Defendants respectfully request that the judgment of confession entered in the
above-captioned matter be stricken, or, in the alternative, opened.
AD R& R
William L. Adler, Esquire
Attorney for Defendants
ADLER & ADLER
125 Locust St.
Harrisburg, PA 17101
717-234-3289
Supreme Court ID Number 39844
Wmadler@adlerandadler.net
March 10, 2009
VERIFICATION
I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING
ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE
MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
DATE: C', 3 I l o e y r
David Thomas for Petitioners
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the
day ofn , 2009, I served a copy of the within Petition upon
the
following person by first class mail, postage prepaid, addressed as follows:
Diane G. Radcliff, Esquire
3448 Trindle Road
Camp Hill, PA 17011
Wiliam L. Adler, Esquire
. M,r?-J 1-Gl?ly 01: 38 DIANE RADCL I FF
717 975 0697 P.02i05
Lessor: Barnett Property Management, LLC
Lessee: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC
Leased Property: Suite 108-112 Good Hope Plaza, Mechanicsburg, PA
114/08 SETTLEMENT Ara E ENT
The following are the terms agreed upon by Curtis Barnett on behalf of Barnett Property
Management, LLC and David J. Thomas, individually and on behalf of 6108 Carlisle Pike
Restaurant Company, LLC on January 4, 2008 regarding the past due amounts owed by
Lessee to Lessor for the lease of Suite 108-112 Good Hope Plaza:
1. By 5pm on January 10, 2008, Lessee wilt pay to Lessor's agent the amount of
$6,466.75. This amount represents:
2.
a. $2,000.00 towards the 2007 CAMs (4" quarter 2006 CAMS and 1S` - 3'
quarter 2007 CAMS);
b. $3,738.33 for rent due for January 2008;
C. $728.42 in past due rent and rent late charges for period 2005-2007.
3. Lessee will pay Lessor's Agent the required monthly rent (currently $3,738.75) by
the 10`h of the month starting with the rent due for February, 2008. The rent is
still due on the 111 of the month, but no late fees will be charged, and no default
will be deemed to have occurred, if paid by the 10`''.
4. Lessee will pay Lessor's agent $2,000.00 per month by the 10`P' day of the month
starting in February 2008, to be applied towards the CAMs due for the year (41h
quarter CAMS from prior year and 1 It - 3"d quarter CAMS for current year). The Cam
Payment is due on the 1" of the month, but no late fees will be charged, and no
default will be deemed to have occurred, if paid by the 10`h.
5. If Lessee pays the amounts due under paragraphs 3 and 4 above in a single check,
and such payment is less than the total amount then due, the payment so made
shall be applied 1"' to rent, next to late charges and penalties, and last to CAMS.
6. Lessee will pay Lessor's agent $24,794.88 for past due CAMS and CAM late Charges
(incurred for 2007 3rd quarter CAMS or prior thereto) together with 8% interest
thereon in quarterly installments in accordance with the calculations set forth on
Schedule "A" attached hereto and made a part hereof. Any payment not paid by
the due date reflected on Schedule "A" will be considered to be a default of the
Lease and this Compromise Settlement. Payments shall be applied V to interest,
,4x 1 .A ",
01:38 DIANE
RADCLIFF 717 975 0697 P.03i05
next to late fees and penalties and last to principal.
7. If Lessee fails to make any payments due under the Lease as modified hereby, by
the due dates provided in the Lease as may be modified herein, then in addition
to any remedies provided in the Lease, Lessee shall owe Lessor the amounts
specified in Schedule "B", less any amounts paid by Lessee on or after the date
hereof. For that purpose the amounts to be credited to Lessee shall not include
any interest payments charged and paid in accordance with Schedule "A".
8. Acceptance of any payment after its due date shalt not excuse, nor be a waiver
of, Lessee's default and shall not be deemed to be a waiver of any of the rights
and remedies provided in the Lease or as herein provided.
9. All Payments herein provided or provided by the Lease shalt be made payable to
Barnett Property Management, LLC, and delivered to Lessor's Agent, Diane G.
Radcliff, Esquire, at 3448 Trindle Road, Camp Hilt, PA 17011.
10. Time is and shall be of the essence for all payment herein provided.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and
acknowledging that they have read, approved and agreed to the above referenced terms,
have set their hands and seats the day and year below written.
WITNESS:
(SEAL)
Diane G. Radcliff, Esquire, Agent
For Barnett Property Management, LLC
Dated:
(SEAL)
David J. Thomas, individually and on behalf of
6108 Carlisle Pike Restaurant Company, LLC
Dated:
nw-31-2008 01.39 DIANE RADCLIFF ?17 975 069? P.04i05
SCHEDULE "A"
Dave Thomas - Amortization of Back Cams (Compromise Amount)
Date Interest @ 8% Principal Payment Balance
Beginning
Balance 24,794.88
3.31.08 495.90 3,099.36 3,595.26 21,695.52
6.30.08 433.91 3,099.36 3,533.27 18,596.16
9.30.08 371.92 3,099.36 3,471.28 15,496.80
12.31.08 309.94 3,099.36 3,409.30 12,397.44
3.31.09 247.95 3,099.36 3,347.31 9,298.08
6.30.09 185.96 3,099.36 3,285.32 6,198.72
9.30.09 123.97 3,099.36 3,223.33 3,099.36
12.31.09 61.99 3,099.36 3,1 61.35 0.00
PCL-
• ni•? "J1-CMG 41:39 DIANE
RADCLIFF
717 975 0697 P.05i05
SCHEDULE "B"
Thomas Lease Good Hop e Plaza - Past Due Am ounts
Description Subtotal Total
Water Pit $2,985.85
11/07 Rent $3,323.33
12/07 Rent $3,323.33
1/08 Rent $3,738.75
Less 2006 Food Charges ($463.22)
Less 2007 Food Charges ($5,117.96)
November Rent Payment ($3,323.3])
Subtotal Past Due Rent $4,466.75 $4,466.75
1. IL
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9.1.05.12.31.07
Rent One Time Late Fees $4,500.00
9.1.05.12.31.07
Daily Late Fee $1,410.00
9.1.05-12.31.07
Bank Charges for NSF 40.00
Subtotal 9.1.05-12.31.07
Rent Late Fees & Charges $5,950.00 $5,950.00
Z1 1 Z ?Z Z
2005-2006 Past Due Cams $7,285.75
2005-2006 Cams Late Fees §96,2-6
Subtotal 2005-2006 Cams Ft Late Fees $10,182.71 $10,182.71
2007 1" Quarter Cams $10,593.17
2007 2' Quarter Cams $6,987.03
2007 3rd Quarter Cams $2,428.93
2007 Cam Payment 10.10.07 ($2,500.00)
2007 Cam Late Fees $1,059.32
2007 Cam Late Fees 9 .7
Subtotal 2007 Cams through Y" Quarter $18,568.45 $18,568.45
Total Past Due Amounts $39,167.91
TOTAL P.05
C? "a
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: CD
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tv -<
SHERIFF'S RETURN - REGULAR
CASE NO: 2009-01005 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BARNETT PROPERTY MANAGEMENT
VS
THOMAS DAVID ET AL
SHAWN HARRISON
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within CONFESSION OF JUDGMENT was served upon
THOMAS DAVID J
DEFENDANT
the
at 0014:18 HOURS, on the 5th day of March , 2009
at 6108 CARLISLE PIKE, STE 108
MECHANICSURG, PA 17055 by handing to
DAVID THOMAS DEFENDANT
a true and attested copy of CONFESSION OF JUDGMENT
WRIT OF POSSESSION
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Postage
Sworn and Subscibed to
before me this
of
So Answers:
18.00
oe
9.90 Z
.00
10.00 R. Thomas Kline
.42
38.32 03/09/2009
DIANE RADCLIFF, SQU RE
By:
day eputy Sheriff
A.D.
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SHERIFF'S RETURN - REGULAR
CASE NO: 2009-01005 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BARNETT PROPERTY MANAGEMENT
VS
THOMAS DAVID ET AL
SHAWN HARRISON
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within CONFESSION OF JUDGMENT was served upon
6108 CARLISLE PIKE RESTAURANT COMPANY LLC the
DEFENDANT , at 0014:18 HOURS, on the 5th day of March 2009
at 6108 CARLISLE PIKE, STE 108
MECHANICSBURG, PA 17055
DAVID THOMAS
by handing to
OWNER OF BUSINESS
a true and attested copy of CONFESSION OF JUDGMENT
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing
Service 6.00
.00
Affidavit .00
Surcharge
10.00 ,
R. Thomas Kline
.00
16.00 03/09/2009
DIANE RADCLIFF, ESQ RE
Sworn and Subscibed to By:
before me this day puty Sheriff
of A.D.
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William L. Adler, Esquire
ADLER & ADLER
125 Locust St.
Harrisburg, PA 17101
Phone: 717-234-3289
Fax: 717-234-1670
Email: wmadler cr adlerandadler.net
Supreme Court ID: 39844
Barnett Property Management, Inc.,
Plaintiff (Respondent)
V.
David Thomas and 6108 Carlisle Pike
Restaurant, LLC,
Defendants (Petitioner)
IN THE COURT OF COMMON PLEAS
Cumberland COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 09-1005 Civil
SUPPLEMENT TO RECORD
The attached agreement was included with the petition to strike/open in the above matter. The
signed agreement was not available at the time of filing. Attached is the signed agreement to be
substituted for Exhibit "A" of the petition to strike.
ADLEF, & ADLEIL by:
William L. Adler, Esquire _
Attorney for Defendants
ADLER & ADLER
125 Locust St.
Harrisburg, PA 17101
717-234-3289
Supreme Court ID Number 39844
Wmadler@adlerandadler.net
March 12, 2009
Lessor: Barnett Property Management, LLC
Lessee: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC
Leased Property: Suite 108-112 Good Hope Plaza, Mechanicsburg, PA
1/4/08 SETTLEMENT AGREEMENT
The following are the terms agreed upon by Curtis Barnett on behalf of Barnett Property
Management, LLC and David J. Thomas, individually and on behalf of 6108 Carlisle Pike
Restaurant Company, LLC on January 4, 2008 regarding the past due amounts owed by
Lessee to Lessor for the lease of Suite 108-112 Good Hope Plaza:
1. By 5pm on January 10, 2008, Lessee will pay to Lessor's agent the amount of
$6,466.75. This amount represents:
2.
a. $2,000.00 towards the 2007 CAMS (4th quarter 2006 CAMS and 15` - 3rd
quarter 2007 CAMs);
b. $3,738.33 for rent due for January 2008;
C. $728.42 in past due rent and rent late charges for period 2005-2007.
3. Lessee will pay Lessor's Agent the required monthly rent (currently $3,738.75) by
the 10`h of the month starting with the rent due for February, 2008. The rent is
still due on the Vt of the month, but no late fees will be charged, and ho default
will be deemed to have occurred, if paid by the 10`h
4. Lessee will pay Lessor's agent $2,000.00 per month by the 10`h day of the month
starting in February 2008, to be applied towards the CAMs due for the year (4`h
quarter CAMS from prior year and 1" - Yd quarter CAMs for current year). The Cam
Payment is due on the 15C of the month, but no late fees will be charged, and no
default will be deemed to have occurred, if paid by the 10`h
5. If Lessee pays the amounts due under paragraphs 3 and 4 above in a single check,
and such payment is less than the total amount then due, the payment so made
shall be applied VL to rent, next to late charges and penalties, and last to CAMS.
6. Lessee will pay Lessor's agent $24,794.88 for past due CAMS and CAM late Charges
(incurred for 2007 3rd quarter CAMS or prior thereto) together with 8% interest
thereon in quarterly installments in accordance with the calculations set forth on
Schedule "A" attached hereto and made a part hereof. Any payment not paid by
the due date reflected on Schedule "A" will be considered to be a default of the
Lease and this Compromise Settlement'." Payments shall be applied 1 5` to interest,
next to late fees and penalties and last to principal.
7. If Lessee fails to make any payments due under the Lease as modified hereby, by
the due dates provided in the Lease as may be modified herein, then in addition
to any remedies provided in the Lease, Lessee shall owe Lessor the amounts
specified in Schedule "B", less any amounts paid by Lessee on or after the date
hereof. For that purpose the amounts to be credited to Lessee shall not include
any interest payments charged and paid in accordance with Schedule "A".
8. Acceptance of any payment after its due date shall not excuse, nor be a waiver
of, Lessee's default and shalt not be deemed to be a waiver of any of the rights
and remedies provided in the Lease or as herein provided.
9. All Payments herein provided or provided by the Lease shall be made payable to
Barnett Property Management, LLC, and delivered to Lessor's Agent, Diane G.
Radcliff, Esquire, at 3448 Trindle Road, Camp Hill, PA 17011.
10. Time is and shall be of the essence for all payment herein provided.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and
acknowledging that they have read, approved and agreed to the above referenced terms,
have set their hands and seats the day and year below written.
WITNESS:
Diane G. dcliff, Esquire, A?er?t
F-G
y Manageme t, LLC
Dated: l J4 (SEAL)
rnet roprb?
7? (SEAL)
David as, in u nd on behalf of
6108 Carlisle Pike Restaurant Company, LLC
Dated: OA v? ° / 06
1t
SCHEDULE "App
Dave Thomas - Amortization of Back Cams (Compromise Amount)
Date Interest @ 8% Principal Payment Balance
Beginning
Balance 24,794.88
3.31.08 495.90 3,099.36 3,595.26 21,695.52
6.30.08 433.91 3,099.36 3,533.27 18,596.16
9.30.08 371.92 3,099.36 3,471.28 15,496.80
12.31.08 309.94 3,099.36 3,409.30 12,397.44
3.31.09 247.95 3,099.36 3,347.31 9,298.08
6.30.09 185.96 3,099.36 3,285.32 6,198.72
9.30.09 123.97 31099.36 3,223.33 3,099.36
12.31.09 61.99 3,099.36 3,161.35 0.00
SCHEDULE "B 9
Thomas Lease Good Hope Plaza - Past Due Amounts
Description Subtotal Total
Water Pit $2,985.85
11/07 Rent $3,323.33
12/07 Rent $3,323.33
1/08 Rent $3,738.75
Less 2006 Food Charges ($463.22)
Less 2007 Food Charges ($5,117.96)
November Rent Payment ($3,323.33)
Subtotal Past Due Rent $4,466.75 $4,466.75
fffffffffffffffffffffffffffff fffffffffffffff ffffffffffffff
9.1.05-12.31.07
Rent One Time Late Fees $4,500.00
9.1.05-12.31.07
Daily Late Fee $1,410.00
9.1.05-12.31.07
Bank Charges for NSF 40.00
Subtotal 9.1.05-12.31.07
Rent Late Fees Ft Charges $5,950.00 $5,950.00
2005-2006 Past Due Cams $7,285.75
2005-2006 Cams Late Fees $2,896.96
Subtotal 2005-2006 Cams £t Late Fees $10,182.71 $10,182.71
2007 1St Quarter Cams $10,593.17
20072 nI Quarter Cams $6,987.03
2007 Y' Quarter Cams $2,428.93
2007 Cam Payment 10. ($2,500.00)
2007 Cam Late Fees $1,059.32
2007 Cam Late Fees 698.70
Subtotal 2007 Cams through 3' Quarter $18,568.45 $18,568.45
Total Past Due Amounts $39,167.91
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the 12
day of March , 2009, I served a copy of the within Supplement
upon the following person by first class mail, postage prepaid, addressed as follows:
Diane G. Radcliff, Esquire
3448 Trindle Road
Camp Hill, PA 17011
William L. Adler, Esquire
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Complaint
Prepared By,
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hitt, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradctiff ®comcast.net
Attorney for Plaintiff
BARNETT PROPERTY MANAGEMENT, INC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
NO. 09-1005
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAURANT COMPANY, CIVIL ACTION - LAW
LLC,
Defendants ACTION IN EJECTMENT
AMENDED COMPLAINT FOR
CONFESSION OF JUDGMENT IN EJECTMENT
AND NOW, this 2nd day of April, 2009 , comes the Plaintiff, Barnett Property Management, Inc.,
by its attorney, Diane G. Radcliff, Esquire, and files this Amended Complaint pursuant to
Pa.R.C.P. No. 2971(a) for judgment in ejectment by confession and avers the following:
1. Plaintiff Barnett Property Management, is a Pennsylvania corporation whose principal
place of business is 25 Shady Lane, Carlisle, PA 17013.
2. Defendant, David J. Thomas, is an adult individual whose mailing address is 110 Walnut
Street, Lemoyne, PA 17043.
3. Defendant, 6108 Carlisle Pike Restaurant Company, LLC is a limited liability company
whose mailing address is 110 Walnut Street, Lemoyne, PA 17043.
4. 6108 Carlisle Pike Restaurant Company, LLC is solely owned by David J. Thomas.
5. Plaintiff (hereinafter referred to as "Landlord") and Defendants (hereinafter referred to
as "Tenants") entered into a Lease dated February 1, 2005 in which Landlord leased to
Tenants and Tenants leased from Landlord the property known as Suites 108-112 of the
Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, PA 17050. A true and correct copy
of the Lease is attached hereto marked as Exhibit "A" and made a part hereof ("the
1
Lease").
6. The original Lease containing the authorization for Confession of Judgment in Ejectment
was attached to the original Complaint for Confession of Judgment in Ejectment dated
February 19, 2009, and filed in this case on February 19, 2009.
7. On March 17, 2009, a phone conference was held by the judge assigned to this case,
Honorable J. Wesley Oler, Jr., ("Judge Oler"), and the parties' respective attorneys as a
result of which the parties agreed to the entry of the attached Order and as requested by
Landlord's counsel and instructed by Judge Oler, Landlord is filing this Amended
Complaint for Confession of Judgment in Ejectment.
8. The Lease was negotiated by the parties and their then respective counsel, Diane G.
Radcliff, Esquire for Landlord and Michael Solomon, Esquire for Defendants.
9. On or about January 4, 2008, as a result in Tenants failure to pay certain payments due
under the Lease, Landlord and Tenants entered into a settlement agreement entitled
"1 /4/08 Settlement Agreement" regarding the past amounts owed by Tenants to Landlord
for rent, late charges and CAMS arising out of the Lease. A true and correct copy of the
1/4/08 Settlement Agreement is attached hereto marked as Exhibit "B" and made a part
hereof ("the 1/4/08 Settlement Agreement").
10. The 1/4/08 settlement agreement provided for the payment of those past due amounts,
future CAMS and rental payment date , but did not modify, abrogate nor change any
other terms of the Lease.
11. In accordance with the terms of the Lease as modified by the 1/14/08 Settlement
Agreement, Tenants were to pay the monthly rent and CAMS by the 10th day of each month
10th of the month starting with the rent due for February, 2008 with the express provision
that the rent was still due on the 1St of the month, but no late fees will be charged, and
no default will be deemed to have occurred, if paid by the 10th.
12. Tenants defaulted in the timely payment of the rent by the 10th day of the month in that
Tenants failed to make the December 2008 payment of the rent in the face amount of
$3,738.75 and CAMS in the face amount of $2,000.00 by December 10, 2008.
13. As a result of Defendants' default in making the December, 2008 rental and CAM payments
by December 10, 2008, and as required by paragraph 24(e) of the Lease attached hereto
as Exhibit "A" and made a part hereof, on December 16, 2008, Landlord sent Tenants a
Notice of Default and giving them fourteen days in which to cure that default
("Default/Cure Notice"). A true and correct copy of the December 16, 2008 Default/Cure
Notice is attached hereto, marked Exhibit "C" and made a part hereof.
2
14. After sending Tenants the December 16, 2008 Default/Cure Notice attached as Exhibit
"C", Landlord by letter dated December 31, 2008, agreed to extend the time of payment
of the December 2008 rent and CAMs to Monday, January 5, 2009 provided that Tenants
paid Landlord $15,430.27 for the December 2008 rent, CAMS and late charges, the January
2009 rent and CAMS and the December 31, 2008 past due CAM payment. A true and
correct copy of the December 31, 2008 extension letter is attached hereto, marked
Exhibit "D" and made a part hereof.
15. Tenants did not make the $15,430.27 payment required by the December 31, 2008 letter
by the January 5, 2009 due date.
16. On or about January 5, 2009, Tenants paid the December 2008 rent, CAM payment and
late fees in the amount of $5,738.75 by check no. 8170, which check was not honored by
Tenants' bank and was returned to Landlord marked insufficient funds. A true and correct
copy of the December Rent check No 8170 is attached hereto, marked Exhibit "E" and
made a part hereof.
17. On or about January 14, 2009, Tenants paid the January 2009 rent and CAM payment in
the amount of $6,122.22 by check no. 8207, which check was not honored by Tenants'
bank and was returned to Landlord marked insufficient funds. A true and correct copy
of the January 2009 Rent check No 8207 is attached hereto, marked Exhibit "F" and made
a part hereof.
18. On January 20, 2009, having learned of the dishonored check # 8170 for the December
2008 rent, Landlord sent a letter to Tenants regarding the dishonored check giving the
required 10 days to make the check good. A true and correct copy of the January 20, 2009
letter is attached hereto, marked Exhibit "G" and made a part hereof.
19. On January 23, 2009, having learned of the dishonored check # 8270 for the January 2009
rent, Landlord sent a letter to Tenants regarding the dishonored check giving the required
10 days to make the check good. A true and correct copy of the January 23, 2009 letter
is attached hereto, marked Exhibit "H" and made a part hereof.
20. Tenants did not make the checks good within the required 10 day time period as a result
of which criminal "bad check" charges were filed against Tenant, David J. Thomas.
21. While the criminal charges were pending, in February 2009, Tenant David J. Thomas came
to the law office of Landlord's agent, Diane G. Radcliff, Esquire, and offered to pay the
past due rent and CAMS then due December and January, however the offered amount
was not enough to pay that past due rent, CAMS and late charges in full. Said tender was
refused because of the inadequacy and because the criminal charges were pending.
22. Shortly after the offered inadequate tender of the past due rent, CAMS and late charges
3
referenced in paragraph 21 above, and on the same date, Tenant, David J. Thomas, then
tendered a check for the February rent and CAMS, again for an amount less than the full
amount due under the Lease. When he tendered that rent payment he was specifically
told that the tendering of the February rent and CAM Payment would not negate his prior
default.
23. Because of the aforesaid default and pending criminal charges, the Tenants check for the
February Rent and CAMS was not deposited nor cashed by Landlord.
24. As of the date of the filing of this Complaint, Landlord has not received payment of the
rent, and CAMS for December 2008 nor January 2009, which Defendant supposedly paid
into the Court as part of the bad check criminal proceedings. Nor has Tenants paid
Landlord all of the late fees that have been assessed on those past due rental payments.
25. As a result of Tenants' default of the payment of the December and January rent, CAMS
and late fees and failure to cure said default, in accordance with the terms of the Lease
and the 1/4/07 Settlement Agreement, Landlord was and is entitled to possession of the
Leased Premises and was and is entitled to evict the Tenants therefrom.
26. The Leased Premises are known as Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike,
Mechanicsburg, Pennsylvania, 17050 containing 4,985 square feet, more or less, being part
of the premises more fully bounded and described as follows:
ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in
the Township of Hampden, County of Cumberland and Commonwealth of
Pennsylvania, more particularly described as follows:
BEGINNING at a point, said point being at the intersection of the north side of a
50.0 foot wide right of way and the east side of Gustin Drive;
THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a
point at land of Wu Chon Ho;
THENCE by same South 63° 41' 43" East 150.00 feet to a point;
THENCE by same North 26° 37' 26" East 162.25 feet to a point on the south side of
the Carlisle Pike;
4
THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc
length of 173.82 feet to a point at lands of the Pep Boys;
THENCE by same South 26° 23' 48" West 432.45 feet to a point on the north side of
a 50.00 foot wide right of way;
THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING
CONTAINING 2.504 acres.
BEING the same premises which Skyport Properties, a Pennsylvania Limited
Partnership, by its Deed dated February 14, 2003 and recorded February 21, 2003
in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania,
in Deed Book 255, Page 4133, granted and conveyed unto Barnett Real Estate, LLC.
27. Paragraph 25(h) of the Lease attached as Exhibit "A" authorizes Landlord confess
judgment in ejectment against Tenants as follows:
25. LANDLORD'S REMEDIES. Upon the occurrence of Tenant's default of the terms of
this Lease, Landlord shall have the following remedies, which shall be cumulative
and not in the alternative:
E. To confess judgment against Tenant in an amicable action in
ejectment in which event Tenant hereby authorizes the Prothonotary
or any attorney of record to appear for and to confess judgment in
ejectment against Tenant and in favor of Landlord and to direct the
immediate issuance of a writ of possession, all without notice or
leave of Court and waiving all irregularities.
26. The attached Lease containing the Confession of Judgment in Ejectment clause has not
been assigned.
27. A prior judgment in ejectment has been entered on the attached Lease in the Complaint
in Confession of Judgment in Ejectment dated February 19, 2009 and filed on February 19,
2009 to docket number 09-1005.
5
28. The Lease and 1 /4/07 Settlement Agreement involves a commercial lease of real property
and Judgment is not being entered against a natural person in connection with a
residential lease.
WHEREFORE, Landlord demands judgment in ejectment for possession of the above described
premises as authorized by the warrant of attorney appearing in the attached Lease.
Respectfully submitted,
IMA DCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 011
Phone: ) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff-Landlord
6
VERIFICATION
I, Deborah L. Donley, Assistant Manager of Barnett Property Management, Inc., verify that
the statements made in this Complaint are true and correct. I understands that false statements
herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn
falsification to authorities.
DEBORAH L. DONLEY
Dated: March 27, 2009
7
EXHIBIT "A"
FEBRUARY 1, 2005 LEASE
LEASE AGREEMENT
BARNETT PROPERTY MANAGEMENT, INC. ,
Landlord
and
DAVID J. THOMAS and
6108 CARLISLE PIKL RESTAURANT CO. LLC,
Tenants
i
TABLE OF CONTENTS
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i(i FINISI-IINC; PLANS AND SPECIFIC Al IONS
II REPAIRS
1? L-!SF OI- 1'RF\-1ISE.S
1? SIGNS 11
14 PARKING LO"1? l 1
1 ? INSUI?-ANCE 1 I
16 WAIVER OF SUHROG_ATION 1 ?
1
1
19 FIRE AND OTHER CA, UALTY
I -LABILITY
CONDLNINA I 10N 1
1 ,
14
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1 ASSICINNI'FINT "AND 14
1) FNIOVAL OF PROPLIZ 1 1'
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LEASE AGREEMENT
THIS LEASE made this 1 day of February. 2005, by and between
BARNETT PROPERTY MANAGEMENT, INC. , with offices at 25 Shady Lane, Carlisle,
Pennsylvania, 17013, as Landlord (hereinafter referred to as "Landlord")
AND
David J. Thomas and 6108 Carlisle Pike Restaurant Co., LLC, both of 212 Locust Street,
Suite 500, Harrisburg, PA 17101,(hereinafter referred to as "Tenant")
THE PARTIES AGREE AS FOLLOWS:
1. LEASED PREMISES. Landlord hereby agrees to lease to Tenant, and Tenant agrees to
rent from Landlord the Leased Premises known and numbered as Suite 108-112, Good
Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 containing 4,985
square feet, more or less ("Leased Premises") (Good Hope Plaza is herein referred to
as the "Shopping Center").
2. LEASE TERM. The initial teen of this Lease ("Initial Lease Term"), shall be for a period
of ten (10) year(s) seven (7) month(s) commencing on February 1, 2005,
("Commencement Date"), and expiring on ten (10) years and seven (7) months after the
Commencement Date, (August 31, 2015) (hereinafter referred to as the "Expiration
Date").
3. RENEWAL TERM(S). Tenant shall have the option of renewing this lease for two
consecutive five (5) year Lease Terms, the first of which shall commence at the end of
the Initial Lease Term ("Renewal Lease Term(s)"). As conditions precedent to the
exercise of the renewal option. (1) Tenant must not have been in default of the terms
and conditions of this Lease at any time within the one (1) year period prior to the
expiration of the preceding Lease Term and (ii) Tenant must provide Landlord with
written notice of its intent to renew the lease at least _ninety ?90) days prior to the
expiration of the precedir?o Lease Tern-i. I. exercised, each Renewal Lease Term shall
be under and subject to the terms and conditions herein set forth.
4. RENT. The rent and the late charges assessable upon late payment of !ent sl?,all be ender
and subject to the follovvino terms and conditions:
A. Rent Amount: The rent for the Initial Lease Terre and the Renewal Le, se
Terrn(s)shall be paid in the month[y installments i `Monthly Beat"Iii, accord_?nce
with tl-ie schedule set forth in the follo!,.?in!ij Table -,1:
TABLE #1 - RENT AND LATE- CHARGES ---
Term Plo. Of $/Sq. Ft. Total Rent Monthly one Time Daily Late
- Months
- Rent Late Fee Fee
4
Initial 7 7 $0.0000 $0.00 $0.00 ;0.00 50.00 -
rr?onths
Year 1 12 $8.0000 $39,880.00 $3,323.33 $250.00 $10.00
F Year2 12 $8.0000 539,880.00 53,323.33 $250.00 $10.00
Year3 12 $9.0000 544.865.00 $3,738.75 5250.00 $10.00
Year4
12
$9.2250
$45,986.63
$3,832.22
1250.00 ,
510.00
Year 5 12 $9.4556 $47,136.29 53,928.02 S250.00 $10.00
Year6 12 59.6920 I $48,314.70 $4,026.22 $2,J 0. 00 $10.00
Year7 12 $9.9343 $49,522.57 54,126.88 5250.00 510.00
Year 8 12 $10.1827 550,760.63 $4,230.05 $250.00 510.00
Year9 12 $10.4372 $52,029.65 54,335.80 1 5250.00 510.00
Year 10 12 $10.6982 553.330.39 S4,444.20 5250.00 $10.00
Year 11 12 $11.6982 $58,315.53 $47859.63 $250.00 $10.00
Year 12 12 $11.9907 $59.773.42 54,°81.12 $250.00 $10.00
Year 13
Year 14 12 _
12 512.2904
$12.5977 $61,267.75
$62.799.44 $5,105.65
$5.233.29 $250.00
5250.00 $10.00
$10.00
Year 15 12 $12.9126 $64,369.43 55,364.12 $250.00 510.005
_
SYear16 12 _ $13.9126 $69,354.31 $5,779.53 $250.00 510.00
Y_ar17 12 S14.2604 $71,088.17 '1 $5,924.01 250.00 510.00
a1
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---
- --
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i15-3569 I S76 554. 1 =!. LSC.Q I'l.llj
! P,vVin- Months. There shall be no n??r r ?hly Rent je end o,.ln ;r t h- t I. ?i.
see. ,n (7) nrionths of the Initial Lease Term, pio; de,i hov/,, er, that durilici said
seven (7) month period, Tennant shall be obligated to comply with all other Lease
terms including but not Hrnged to payment of Tenant's snare f the taJOS,
msurance and CAM6 .
C. Payment of Monthly Rent: The first Monthly Rent shall be due and payable on
the first day of the eight (8") month of this Lease, and except as other-vrise herein
provided, must be paid before Tenant has the right to occupy the Leased
Prepuses. If that rent is not paid by this date, this Lease shalt be terminated. If
said day is other than the first of the month, the rent for that month shall be
prorated so that all future rent payments shall be due and payable on the first day
of each month thereafter during the term of this Lease or any renewal thereof.
D. Late Charge: If the Monthly Rent has not been received by Landlord within five
(5) days of each monthly due date, Tenant shall be charged a one time late fee
of $250.00 as set forth in the foregoing Table =,`1 . In addition, if the Monthly Rent
has not been received by Landlord within fifteen (15) days of each monthly due
date, Tenant shall be charged a daily late charge at the rate of $1100 per day
starting on the 16" day after the rent due date and daily thereafter until the
Monthly rent is paid in full. The We charges shall be immediately due and
payable by Tenant.
E. Tenant's Failure to Move Into Property: If Tenant does commence Tenant's
renovations v,-.thin thirty (30) days of the date of Hotice of Intent to Occupy the
Premises set forth in Paragraph 2 above or does not commence the operation of
Tenant's business by the date falling eight (8) months after tine Corr mencernent
Gate, they this Lease may be terminated by Landlord unless the parties other,,??ise
agree in writing.
F. Place of Payment: The rent shall be paid by Tenant to Landlord at 25 Shady
Lane, Carlisle, PA 17013, or such other place as Landlord may hereafter
designate.
(3. !4wtho { Of Payment/Returired t'-hecks: The rent may ?e paid by peFSor?l or
business heck. In the event, hovv._ver. teat any rental ?cch i; returns(., oy
Tenant's bank for insufAcient funds, that check must be made good WHAn My-
eight (48) bows alter Tenant is nokhed of the reo n. rind rt-i ant shah pav to
Land6rd service fee of $20.00 for each returned check. hn ther, after such
enwn.. Tenant shall lily, all f'!tw-c- rennt. ny certified check: Cashel s check,
Ur
r!noneJ/ oi_Cer.
H. No Rent Proration or Reduction: The rent set forth above shall not be reduced
or prorated if Tenant iacates (It-naves) the Leased Premises prior to the end of the
then existing Lease Term, or if Tenant leaves on any date other thai_ the end of
any Lease month occurring after termination of this Lease.
5. EARLY TERMINATION. Tenant shall have the right to terminate this lease prior to the
expiration of the Lease Term or any renewal term thereof, by paying Landlord an amount
equal to twelve (12) months of rent and cams based on the monthly rent and canes that
Would have been due and payable had such termination not occf_irred. Said termination
rent is due and payable upon the termination and return of possession of the Leased
Premises to Landlord. At Landlord's sole option the rent and cams may be paid in
monthly installments. There shall be no offset against the termination rent and Tenant
shall. not be entitled to any rebate thereof in the event Landlord is able to rent the
Leased Premises during the twelve (12) month period. Tenant's exercise of this right
shall not be considered a default within the meaning of Paragraph 24 hereof.
6. HOLDING OVER. If Tenant continues to occupy the Leased Premises beyond the
Expiration Date or any earlier termination of this Lease, such occupancy shall be subject
to all of the same terms and conditions as are contained in this Lease, except that the
rent payable during the period of such occupancy shall be equal to one and one-quarter
(1.25) times the amount of the rent which was last in effect during immediately
preceding Lease Terrn or Renewal. Lease Term thereof. Neither the assessment of the
holdover rent nor Landlord's acceptance of the payment of the holdover rent shall be
deemed in any way to limit or irilpair Landlords right to immediately evict l enant or
exercise Landlord's other rights and remedies under the provisions of this Lease or
applicable law, including collection of consequential damages, on account of Tenant's
occupancy of the Leased Prei rises without Landlord's prior written consent.
7. TAXES INSURANCE UTILITIES. AND CAMS. In addition o the paymient of the Rent,
within thirty (30) days of billing. Tenant shalt pay Landlord Tenant's proportionate share
[twenty-six and twenty four hundreciths (26.24`,;) percent] of the taxes, insurance.
utihtles (not separately metered to Tenant) and common niainte!iance charges
(CAMS! as additional lent. Tenant's proportionate share shall be determined by
multiplvmg the costs of such expenses by a fraction the numerator of which is the gross
squat lootace of Uh C` Leased Pr n ilses and the of ",;k`ch is the i`n1`a! nrnCC
square footage of leasable space in Good Hope Plaza. Annual costs shall be prorated for
ahy pa =1=11 Lease Y eai aplta( lml) ovements shall be arn0rt1Z_eC'? over the life of t!
lmpi o`?ement as determined un the sole discretion of Landlord Or' t_aridiord's engineer.
The items payable as additional rent in accordance wr lth the foregoing shag include, but
noT be limited to by vrlay of specification, the following:
k Exterior Li hti Q: Operation, maintenance. repair and replacernent of any
exterior lights or lighting;
B. Snow and Ice Removal: Snord and ice rernoval from the con-inic n alieas, ?,.alkv/ays,
parking lot and driveways
C. ParkinR Lot and Driveways: Repairs, maintenance and resurfacing of the
walkways, parking lot and driveways and the regulation of traffic thereon;
D_ Landscaping: Landscaping, planting, replanting and removal of flowers,
shrubbery, trees and planters.
E. Utilities: Electricity; water, sewer and the like not separately billed to Tenant by
the utility provider for utility service to the Leased Premises. Any other utility
charges incurred by Tenant in the use of the Leased Premises that are directly
billed to Tenant by the utility provider shall be paid by Tenant in a timely manner
to that utility provider.
E. Insurance: Landlord's insurance, subject to the provisions for increased insurance
costs set forth in Paragraph 12 herein.
G. Real Estate Taxes: The real estate taxes (Courty, municipal, school or other
taxes payable or for any time during any Lease Year).
H. Administrative Costs: An administrative fee shall. be charged for managing,
operating and maintaining Good Hope Plaza which shall be fifteen (15°,,i of the
amount of the foregoing expenses.
I. Service Chare: !i Tenant fails to pay _iny of the foreooin cf?acges and
adnJni-trative cosies ,vithin thirty ( 3O) days of billine, ti?ercsh,:dll re_ a ten (10"')
percent service charge added to those char es and costs, the calc?_ilation of which
shall include the charge for administrative costs.
8. EXPENSES BENEFITTING ONLY THE LEASED PREtJtiSCS. In <<dd?or-i to paymrnt of
_-
the Rent, ienan? shall p,--iv one hundred (IOC ,) percent of the expenses fi r the Leased
Premises that benefit only Tenant's Leased Premises. Annual costs shall, bE' DI-Orated for
f?;
any partial Lease Year. Capital Improvements and/or replacen-ient of the sarne shall be
amortized over the life of the ii-nproven-ient as determined in the sole discretion of
Landlord or Landlord's engineer. The items payable as additional rent in accordance
with the foregoing shall include, but not be limited to by v,?a;? of specification, the
following:
A. HVAC: the costs of inspection, maintenance, repair and/or replacement of the
HVAC system for Tenant's unit only. This service may be provided directly by
Tenant in which event no service charge or late fee shall apply, provided,
however, if Tenant fails to provide the said services, Landlord may furnish said
services and bill Tenant therefor, in vvhich event the provisions regarding
administrative costs and late fees shall apply.
B. Exterior Doors: The cost of t aintenance, repair and/or replacement of the
exterior doors to the leased premises;
C. Plate Glass: The cost of repair and/or replacement of all broken or damaged
plate glass
D. Cleaning: General cleaning, painting and stripping including, but not iimited to,
the cleaning of exterior windows.
E. Refrase and Recycling Removal: Refuse, trash and recycling collection and
removal for Tenant's unit only arid from the parking lot and common areas. This
service may be provided directly by Tenant in which event no service charge or
late fee shall apply,. provided, however, if Tenant fails to provide the said
services, Landlord may furnish said services and bill Tenant therefor. in which
event the provisions regarding administrative costs acid Late fees shall apply.
F, Utilities. Electricity; water, sewer and the like charges incurred by Tenant in the
use of the Leased Premises that are directly billed to Tenant by the utility
provider shall be paid by Tenant directly to the utility provider.
G. Administrative Costs: An administrative fee shall be (_-haioed fo- mianc-"g-no?
operating and maintaining Good Hope Plaza v,,hich shall be fifteen (1 percent
of the amount of the foregoing expenses, if and only to the extent that such
ser.ic a,-, profided by Landlord and billed to Tenant.
H, Service Charge If Tenant fails to Day any of the foregoi charge,; _ r d
administrative costs ?vvIthin thirty (30) days of Landlord's there shall be a
ten ( 10 percent service charge added to those charges and costs, the
calcl_il_ tlori of .,hiCri shall include the charoP of adrrllfllstratl`:'e st
9. SECURITY'. Trie tern-is reyardlnG, the secUrlty depo it are as follovvs:
A. Amount of Security De)oslt: (Upon the execution of this Lease ieiiant. shall pay
Landlord a Security Deposit of 53,323.33 ("Security Deposit)". Within five (5)
days of the date of any Monthly Resit increase, Tenant shall pay additionat funds
to Landlord to be held as a security deposit equal to the difference between the
Monthly Rent amount then existing minus the Security Deposit then held by
Landlord so that Landlord always has a Security Deposit equal to one month's as
that Monthly Rent shall exist from time to time.
B. Purpose of Security Deposit: The Security Deposit is to cover cleaning of the
Leased Premises upon termination of this Lease and the costs of the repair and/or
replacement of any damages to the Leased Premises occurring during Tenant's
occupancy. The Security Deposit is not to be used by Tenant as a payment of any
rent.
C. Interest on Security Deposit: There shall be no interest payable on the Security
Deposit. Tenant hereby waives any right to require Landlord to deposit the funds
an interest-bearing account.
C). 'Transfer of Security Deposit to New Owner or Lessee: In the event of the sale
or lease of the land of which) Leased Premises is a part, Landlord shall have the
right to transfer the Security Deposit to the vendee or lessee, and upon such
transfer Landlord shall be considered released by Tenant from all liability
regarding or relating to the Security Deposit includin" but not limited to, the
return of the Security Deposit , and Tenant shall look to the new Landlord solely
for the return of the Security Deposit. It is agreed Lhat d-&, shall apply to every
transfer c''" asslnnll"lent Blade of the irit- Deposit to a ne'^/ Land!.orid.
A ssnrlent: In the c'`'ent ;t Lnriv ri-htflli, -ind ?r i I IMted c+S, J,iri of H ii,, Lea-
the Security Deposit shall be deemed to be hetcl by Landlord as 7i de posit made by
she ?lssone and Landlord shall have no further liability fo ar,y ill_'.ttci i e(;ardrng
r°lat'n t,) tl1e >ec[ L. DepOSlt 11lCll.ld?rlo; but not ilRllte:. t: e L:1!"1 '?f i-Ie
reClll lty Deb c_),,O to the assignor.
8.
l No Encumbrance of Security Deposit: The Security Deposit shall. not be
1- no Ctga7ed, assigned,. nor encun-bered bV Tenant 'i'thout the , r ;I_terl consei- ;if
Landlord, and any attempt to do so shall be , mdl.
1Ci. FINISHING/PLANS AND SPECIFICATIONS. Except as hereinafter provided, 1-errant, sh -ll
be solely responsible to finish, fixture, remodel. Ind in-(prove t ie L ( sed Premises at
en,ar't'_ sole cast (.'lld r-xperise UI?der the fops`,, i-i nCllt'.,,'lls
A. Stipulation A ainst Liens: For Landlord's protection, Tenant shall file
appropriate stipulation(s) against mechanic's liens and obtain full and adequate
liability and vyorkmen's compensation insurance policies arid provide Landlord
with proof thereof, all of which shall be done prior to the commencement of the
work or delivery of materials for the said finishings, fixtures, remodeling and
improvements.
B. Permits and Government Approvals: All finishing, fiXturing, remodeling,
improvements and construction shall be done in accordance with state and local
laws and ordinances after the appropriate permits have been obtained by the
Lessee at Lessee's sole expense. With respect to the foregoing, Tenant shall
provide Landlord with written certification that Tenant's ovens and stoves to be
utilized on the Premises are to Code and are installed in accordance with all
applicable Codes.
C. Landlord Approval of Plans and Specifications: ',io finishing, fixturirig,
remodeling, improvements and construction shall be done unless and Until
Landlord has given Tenant written approved Tenant's Plans and Specifications aria
proposed contractors, which approval shall not be unreasonably withheld. All
plans and specifications must meet all requirement of Landlord's insurance carrier
including , but not limited to any requirements for Safety for Cooking Equipment
`standards.
L . No Sf_r_uctura_IA - iterations: There shall be structural ai,teratioris to the Leased
Premises nor penetrations made in the goof unless approved by the Landlor,:_;,
consent to v/hich shall not be unreasonable ?.vithheld.
F. as line: i_, dlo- d shl-I!I supply a gas line to the Pr(-nrises The c sr,; that landlord
Incurs the' Itfor shall be paid by Landlord, pi ov•ded ho,ve%,.,- , 1 Brant shall jj
?lab[e Il`." tV,%ent;y'-slx and t\n,'enty-fOUi hundredths i6.24? f?t_'rCt_Ilt of sa1d Cot'=.
hich - flail Le amortized over a period of t?:?enty `(',I-!r !) month; <ind billed tc
1-enant accordingly.
G
F. UevisirigWalls: Landlord shall rennove the devilssng vrali currently located in the
central part of the Leased Premises. Tenant shall be responsible for the
construction of the devising wall located on the right side of the Leased Premises
and the upgrade of the devising waft located on the right side of the teased
Premises. Tenant's construction and upgrades of the de?isin ?-v,',Ms aforesaid
shall be in compliance vJ th all applicable codes.
1 . REPAIRS. The following shall apply regarding repairs to the Leased Premises:
A. Tenant's Repairs: Except as otherwise herein provided, Tenant shall be
responsible for all nonstructural maintenance, repairs, improvements and
alterations to the interior of the Leased Premises.
B. Landlord's Repairs: Except as otherr,/ise herein provided, Landlord shall keep the
exterior and structural portions of the Leased Premises, including roof and roof
support, gutters, down spouts, foundation, and structural supports, structural
portions of the floors and bearing walls in good order and repair, and shall also
keep all plumbing pipes, tubes, and fairing outside of, but leading to or from, the
Leased Premises in good order and repair.
C. Paragraph 8 Repairs: The terms of subparagraphs A. and B. above foregoing
not'vvithstanding, if any of the foregoing is governed by the pr?ovisions of Paragraph
6 herein, such as the inspection, repair, replacement and/or maintenance of (1
the heating, ventilating and cooling eauiprnerit installed on the Leased Premises,
(2) the exterior doors and (3) all broken or damaged plate ,glass, then the
inspection, repair, replacement and/or maintenance shall be performed by
Landlord and billed to and paid by Tenant pursuant to the terms of Paragraph g
Herein.
USE OF THE PREMISES. The followJng shall apply !-egarding Tenant.`s use of the Leased
Premises:
?. Permitted Use: I el rant, LiDOn ?"E CElf?t ??f pi ??i?ei? CV('_i Ilse
the Leased Premises for the limited purpose of a restaurant.
B uture Use upon Consent. Rn?otlie? the !. :red F i en-ii shall be
? ?
r)F?"'Illtt?_d oniy'??ith the l'?irlt'en CO?'?ent (if t h-
, ??.)n5t'Ir not
! 11 o
be unreasonably v,vithheld
Ikon Permitted Uses: Tenant shad riot use nor permit the i_eased Prenrises to
be used for any immoral purposes such as a head sho,'), an adult bookstore or for
prostitution of any nature to be determined in the Landlord's sole judgment.
Tenant shall not use nor permit the Leased Premises to be used in violation of any
ordinance, statute, rule or- regulation c-oncerring the rnaliner of '?Ccupatiorl of the
Leased Premises under the jurisdicton of any lawful ar-ithority.
D. Fire and Casualty Insurance Restrictions: Tenant shall not do, suffer to be done,
or keep or suffer to be kept, anything in, upon, or about the Leased Premises
which \r)ill contravene Landlord's insurance policies, including but not limited to
public liability , fire and casualty insurance, or which will prevent Landlord from
procuring such policies in companies acceptable to Landlord and at a rate
consistent with the premiums paid on similar stores or orernises in Good Hope
Plaza.
E. Payment of Increased Insurance Costs: In the event that Tenant's conduct and
use of the Leased Premises shall cause the rate of fire or other insurance on the
Leased Premises, or other stores or premises in Good Hope Plaza to be increased
beyond the rates applicable for similar premises in Good Hope Plaza which do not
e nsage in a similar activity, Tenant will pay the amount of such increase costs as
they are finally determined by Landlord's insurance carrier within thirty (30) days
of vritten notice and proof thereof.
F. Maintenance: Tenant shall maintain its Leased Premises and its show windows in
a neat and clean condition, and shall store all trash and garbage within the Leased
Pren ises or in proper receptacles provided by Tenant.
G. Operation of Business: Tenant shall continuously operate its business at usual
and resular hours, a minimum of six, (6) days a week, and shall at no time create
or tend to create the impressions of peirrianent closing of- non-use.
i' ?I€?NS. loll ilt Shal:. he pe'rn-i tted to pre- ,l_' i r1 appropriate lii,?l 5'nr inCler 'lilt='
fotlovvirr? conditions:
A. De?n: The size-, desscin, and placernent of the sign :;hall be dorie orile the
,/,nritten con,:ent of Landlord, vArhin specification to be provided by landlord.
B. Reejulations and Laws: All -r.ign desi r,. cc)nstr(_)ct'oil and inst?llat,on shall be
done in accordance with state and local laws and ordinances after the appropriate
errs _s Have been obtainer] D y the Lessee I Pssee's sole rEp=me.
.IA
15-
i F,
Costs: Tenaf"lt shall be SOIPI?/ responsible for the COSt arl(, fj d'), r;lf ll'i: of !Ile sign grid
ilistallatlon thereof.
Ins:tallatim- : 1 he cost of that l ;st illation shall be p aid L,y rF-r .,nt.
PARKING LOT. In addition to the Leased Premises, Tenant shall have the right of
nonexclusive use in common with others of parking areas, driveways, footways, and of
I.Jch other facilities as rnay be designated from time-to-tin-re by the Landlord, and shall
abide by Rules and regulations concerning use of thereof as Landlord may make from
time-to-tirne, provided that Landlord shall not make any designation nor rules which
unreasonably interfere with Tenant's ability to operate a restaurant in the Leased
Premises.
INSURANCE. The following shall apply regarding insurance requirements under this
Lease:
A. Tenant's Insurance: Tenant shall procure, provide and pay for public liability
insurance with an insurance company acceptable to Landlord and for the benefit
of Tenant and Landlord to cover personal injury, property damage, or death in or
about the Leased Premises and/or parking lot, to be in the amount of Five
Hundred Thousand ( $500,000.00) Dollars single injury or death; One Pillion Dollars
($1,000,000.00) total single occurrence; and Two Hundred Fifty Thousand Dollars
($250,000.00) property damage. Tenant shall also provide and pay for plate glass
insurance on the Leased Premises. Tenant shall supply the Landlord with
certificates evidencing that such coverages are in full force and effect with the
i.._.andloi being named as a party insured and; or loss payee therein and providing
for a least ten ('10) days advance written notice to Landlord of anv; alteration or
tern-iination thereof.
arldi rP?? s iIi„I_1Yarit+': i_=il c?COrci sh?li pr"oCL. c c i F;;i?Ii ---1) Coverage
insurance to a n-iirrinium of eight: (80'_) percent (but not liioie tI-pan one hundred
(100) percent of the replacement value of the Leased Premises. Landlord shall
fug"Wish a copy of the insri -anr_e statement each year to Tenant soon aS possible
after receipt thereof.
WAIV EP 0 F S UBR0G,Ai IC N1, Each policy :)-iffire insurance wi_i? extended coverage
carried by Tenant shall provide that the insurer v.,aives any right of submgation against
the Landlord m connection with or arising out of any damage 00 sUCh Droperty contained
in the Leased Premises caused by Are or other risks or ca s-ialty covered by such
insurance. in no event_ shall Tenant or any person or corporation ci.airr?ing are interest in
the Leased Premises by, through or under Tenant clainn, rnaintain or preseCUte any
action or suit at law or in equity against the Landlord for any loss, cc,si- or damage caused
by or read Vi, g from fire or other Ask i-)r casualty in the eased Pre; nkes or any part
thereof, for witch Tenant is or may be insured under a standard fire insurance policy
with extended coverage whether or not carried by Tenant, and whether or not cause by
the negligence of Landlord, or the agents, or servants, or erployees of Landlord.
17. FIRE AND OTHER CASUALTY. The following shall apply to damage to the Leased
Premises from Are or other casualty:
A. Darr2gas/Landlord Repairs: If the Leased Premises are (1) damaged by fire or
other casualty not occurring through any act on the part of Tenant, its agents,
servants, or employees, and (0) such damage is in an amount less than fifty (50%)
percent of its fire market value, and (iii) can be repaired within one hundred
twenty (120) days of the date of such occurrence, this Lease shall remain in full
force and effect, and the Landlord shall promptly repair such damage at its
expense and, in that event there shall be a proportionate abatement of rent for
so much of the Leased Premises as may be untenantable during the period of
repair or restoration.
B. Damages/No Landlord Repair: if, in the opinion of a egistered architect or
engineer appointed by Landlord, (1) the Leased Premises are dammed by fire or
other casualty to such an extent that the damage cannot be repaired or restored
within one hundred twenty (120) days from the date of such occurrence or (ii) the
Leased Premises are damaged in an amount over fifty (50'-.) percent of its fair
market value or (iii) such damage is due to any act or failure to act on the part.
of Tenant, its agents, servants or employees. this Lease shall terminate at the
option of the Landlord upon written notice given within for(y-five (45) day's after
such orcm r n e. If such option is exercised, rer,,t s-,ali a,'--) ite 1--, reunder as of the
date of such destruction of damage. If tills oration is not er cined by Landlord,
then tks Lease shall, continue in full force and effect.
Darner -s 'o Goo(J_I-1Ne_Plazi: if ? v,/enty-fi 2_ i r,r or more f .he
builAngs of which the Lea ed P enn se`. oral a licit "t are damaged by fire or nther
casualty to such an extent that the same cannot be retore ? within one hundrecJ
t,rdenty (1)_0) days of the date of `..uch oCCUrrerice, this Lease 'i1a,Y be canceled at
the op11__ion of Landlord upon this t 00; davs s?ritten notice frcrn the date of such
occurrence, even though the Leased Premises occupied LY/ Tenant have not
become untenantable, and there shall be a'1 adjl_lcrr iei-it W the fE rlt to th= rlate
of Cei"Irlllatlon.
D. Dania es During Last Three Years of Tern-:: The foregoing nc;t???ithstandin
?.
there shall be no obligation upon the part of Landlord to repair or rebuild Boring
the last three (3) years of the term of this Lease unless Tenant shall, vvithin
fifteen (15) days after such occurrence, exercise any option to extend the term
of this Lease that may be afforded to Tenant under the terms hereof.
E. Limitation on Repairs: Landlord's obligation to repair or rebuild pursuant to this
P aragraph shall be limited to a basic building and the replacement of any interior
v,iork which may have originally been installed at Landlord's Crest. Except as
herein provided, there shall be no obligation to repair or rebuild in the case of
fire or other casualty.
18, LIABILITY. Landlord shall not be liable for any damage, loss or claim to person or
property arising out of any of the following matters, unless as a result of Landlord's own
negligence, and Tenant shall save Landlord harmless therefrom:
P-o erty Darnage: Any danna e to prolDerty on the Leased Pren',ises belonoiny to
Tenant`., itS employee-,,. assignees, subtenants.. Concessionaires, licensees, or
Customers
6. Personal Inj: Any personal injuries which they n?ay incur or sustain while on
the Leased Premises.
Service Interruption: The quality, quantity, impairmeit, interruption, stoppage,
or" other interference with service lnvolvinc- !eater, heat, as, electric current or
light and power and telephone or any other service,.
Fi. Business _Interru Boni Ai-1 lc?, oUt (--)f of I`? lnterl : p";:?r lie ---
1
operated in. from or out of the Leased P.ren-lises.
. ,r MEMI A -?N. Ill-) ti-I, 7--en'. of condcn1natio'?i o a ! i_: _ i)`p; ill2il? 1?:?iTl: i(1 ri
s (.
so nll_Ic l nt l.'le Leased Pre'nTises ar of Good N? . Hop-_- G'laza _ de LP E? Oplrlli?l1 i_;?
_ r '
Landlord thi' L-'ascd Pren"'Uses ulltenantabie, TFilal?t .,,al%"es all r-i:1'?1!` i i 1 1c1;=s C. rlil°ii1.
have to or in ai ,/ condernnation a?vvard and assigns the san-ie to Landlord, other than such
L;uslrieSS dl'SICJP[10n Or rr'locatlon a,,'gard that may be made in addltlorl to any award for
the taking. In such e,,.,ent, this Lease shat! at the option of Landlord terminate as of the
date Tenant is equired to vacate the Leased Premises, or th Leased Premises are
rendered Untenantable as aforesaid.
1t:a. SUBORDINATION, -Tenant hereby agrees that its leasehold interest Hereunder shali be
subordinate to arty mortgage now on or Hereafter to be placed on the Leased Premises;
provided, as a condition precedent to such subordination, each such mortgagee shall
expressly covenant or each such mortgage shall expressly provide that so long as Tenant
is not in default under this Lease, Tenant's quiet possession of the portion of the Leased
Premises shall remain undisturbed, on the terms and conditions stated herein, whether
or not the mortgage is in default and notwithstanding any foreclosure or other action
brought by the holder of the mortgage -in connection therewith. T Ills subordination
agreement shall be self-operative and no further instrument or certificate of
subordination shah. be required from Tenant, but Tenant shall provide such further
instruments as may reasonable be requested by any mortgagee of Landlord.
21 . ASSIGNMENT AND SUBLEASES. Tenant shall. not assign Tenant's interest in this Lease nor
sublet the Leased Premises without the prior written consent of Landlord. which consent
shall. not be unreasonably withheld. If an assignment or sublease is requested to be
approved by Landlord, at Landlord's election and option, Landlord may, require:
A. Tenant and Guarantor to Remain Liable,, Tenant and its guarantor, if any, shall
remain liable for the balarice of the Initial Lease Ternn or any rer.?ewal option
elected; or
B. Instrument: The assignee or subtenant shall deliver to Landlord an instrument
wherein the assignee or subtenant assumes all of the obligations as a Tenant
under the Lease, and
C, Same Use, The use of the [-ceased e-in ses shall be the sanne 1-hat lei irit ted
_)v LI1f' lei riiS `If this 'Lease.
REMOVAL CAE PROPER ;?`. The toilov,i,?a shall ply
n-iachinery, inventory (other lheii iii the ordinary course of businessl, and rixtures:
«., D`rect Business Lise: All niachinrr}, e,cpliprent, ii -ritory. .?.?it 1i-C-
dlrectly in Tena,n! s business inav be fi"eery removed by Tenant at ari? Clnle prior
to or subsequent to the expiration of this Lease, provided Tenant is not in default:
here1_if'ider. aid provided that if such rernoval shall cause ar-l l damage tC thl
Leased ",en-rises, Tenant v/II.I repair such damage at T erant's ci.C en .`J,
B. Other Moveable Trade Fixtures: All other trade fixtures vdhich are movable and
do not con-iprise part of the real estate may be removed by Tenant so long as
Tenant r c: ;cores t he Leasers Prerril ses to its orlglnal cnnd f (Dn ?;t lenarit e.xper'ise.
C. Non-Moveable Fixtures: At the termination of this Lease or any renewals
thereof, all machinery, equipment, inventory and fixtures not used directly in
Tenant's business and forming part of the real estate shall become the property
of Landlord, or at the option of Landlord, Tenant may remove said items so long
as prior to the expiration of any Lease Term Tenant restores the Leased Premises
to its original condition at Tenant's expense.
23. MISCELLANEOUS OBLIGATIONS OF TENANT. During the term of this Lease Tenant shall:
A. Payment of Rent: Pay all rent and all other charges herein provided when due.
Acceptance of any late payments by Landlord shall not excuse Tenant from being
required to make future payments on time and shall not be a waiver of Landlord's
rights and remedies;
B. General Maintenance and Repair: Keep the Leased Premises clean and free from
dirt or other refuse; replace all broken glass windows or doors; keep all drain
pipes open; and otherwise keep the Leased Premises in good maintenance, and
Lease: L:,rUi ?. y wear
repair, int-?e same coriuition it was at tiit' utu lining oI L1 is
and tear and damage by accidental fire or other casualty not occurring through
Tenant's negligence, excepted;
C. Surrender: Promptly surrender the Leased Premises and all keys tc. Landlord upon
the termination of the lease:
r ? ,. -
;''?S1_ fly _
D. Fire PfF-'CaUtitri-is, ;,"'i 1`-'%7 GilaU?ie l re,:-?iL .-1 _rl aoc?
E. tTGov_ernmeritDi_Rei?uiatir,r, : Comply vv,,th requi.rements J all :??ibl? _ar?d
c'ovemnienta?l aUthorltics and with the tern-, of all Federa(, state and local
c;ovewnientai. tavv, regulations and ordinances -applicable to Tenant's use of the
-
._eased Pi"eI111s F_`s; _,ld f_C pay ca ti o rlaltle s, ilii !_ s _S t_ s ai. ,dril;a'?' : '° t 1rLln? l[?hl
I enarlt's failure to cornp ' bvrth these la1,/s. regulations rind ordinanc.ps;
I ()
Indemnification and Release of Liability: Be responsible any d to relieve Landlord
froni any liability for any injury or damage to any person(s) or property on or in
the Leased Premises., except for injury or damage resulting froni Landlord's
negligence. The foregoing shall include, but not be limited to, injury and damage
resulting fronn any fire or other casualty, breakage or leakage fron-I piun-jbing,
water, rair!, ice or snow; the accumulation of water, snow or ice whether said
darnage or injury is caused by thie negligence of Landlord or Tenant or any other
person whomsoever;
G. Notice of Damage or Injury: Give Landlord immediate notice of any damage or
injury to property or persons to or on the Leased Premises;
N, Meaning upon Termination: Have the Leased Pren-dses clearied upon the
termination of this Lease, or reimburse Landlord for the costs of that cleaning;
1. Drain Lines: Keep all drain pipes within Leased Premises open and to pay the
costs of cleaning waste from them;
J. Water Lines: Keep all water supply lines within Leased Premises from freezing
and to pay all costs arising out of any frozen pipes, including but not limited to
damages resulting from frozen pipe breakage;
K. Heating: During the months of December i through March 30 to set all heat to no
less than 60 degrees and to utilize the heating system in the Leased Premises and
not to attempt to heat the Leased Pren-iises with any alternative heating system;
L. Renter's Insurance: Provide renter's insurance on Tenant's property and trade
fixtures, Tenant understanding that Landlord's insurance does not cover any
damages to Tenant's belongings;
iA, DaN-nap_es and Cieanin : Pa for any dannages, oencral .lecining ana ail oth, -
Obl1,atloris under this i e,c?s(' nr:i= Ci?vF ("et by the S? Cll' 11_?r ?)E'p )cit:
W INo Removal of Propert : Not remove, or attempt N ern. ve oi indicate an
intention to remove Tenant's goods or property from or , ut of the Premise,
„vithout having first paid and satisfied landlord for 'a(J rent _mcl ot_he, sums ?hich
may becorine due during, tine entire term of this Lease:
/.
O. No Vacating, of Leased Premises: Except as may be permitted bly/ law or in this
Lease, not vacate or desert the Leased Pre; n1SeS during an y terCil of this Lease or
perrllit the same to be empty or (_;noccupled. If Tenant ?acatts or leaves the
Leased Prennises prior to the end of any applicable Lease -1-e!-m, then Ter-pant
for t=its Gild right, tit e, interest and cialm in ancll to the Security Deposit, and in
such( e e'r?t Landlord shall be entitled to retain the Security t)eposit and shat! not
be required to apply the Security Deposit to the costs of the repair/ret_7lacerrient
of darnages nor to any rent that remains outstanding.
24,
P. No Disturbing, Noises: Within the context of a family oriented business, not rriake
or permit any disturbing noises nor do or permit anything to be done that would
disturb or interfere with the rights and convenience of other Tenants or neighbors
to the Leased Premises,
}. Occupancy Limitations: Not occupy the Leased Premises for any other purpose
than is permitted in the Lease;
R. Fire Insurance: Not do or allow to be done, any act, matter or rhino
objectionable to the fire insurance company whereby the fire insurance or any
other insurance shall become void or suspended, or the rate increased;
S. Compliance with Landlord's Rules and Regulations: Comply 'with all further
reasonable rules and regulations which Landlord may hereafter institute,
E: rcw??ded., h,owever, that such rules and regulations shall be reasonable and shall
not d:scrMI-iinate amongst or between the various l-enants in the Shopping Center,
and further shall not unreasonabiv interfere vJiti-l the operation of enantz;
business.
LANDLORD'S RIGHTS. Landlord shall have the following rights:
A. For Rent and Sale Signs. To di_spla'?/ a "F,'Or Rent' er For _)al.e" sign or both at any
time. 's.hich suns rr(a'y be placed ors ar!V part of the Leased Premises and trade
--o1}tain such ICifOrn,ation =i5 1. ln,_loP"d i„c'sy t'el7l.l ("_e.
,
i - c
13. Showiii!? lG Purchaser, or Ter'Ec"CitS: To SIi01^v t iz? L`'ci?? i i6IIl _S t??' C,.[JSP e, C'
01_II Ch?aSe("S of Tenants it reasonable O ne c. ll ,on 48 hou an`?ance )tifit ? tlOn
of al l to T eiiant:
C As is C_ondition!Detects To '-i0r,-F'" the i._ease i :i tt c:ll in 1tS t` ?'r',t.
,
condition, Landlord being under no duty to nnake improven?e-,pits or alterations
hereafter. By sigiiini this Lease Tenant ackl o?.Jedges that Tenant has rnadE, ar,
inspection of the Leased Premises, is renting it in "as condition, and finds the
Leased Premises to be free from defects or damage;
Inspection: To inspect the Leased Premises at reasonable he r n ton for t/ eight
(48) hour advance notification (oral) to tenant,
L. Declaration of Default: To declare Tenant to be in default of this Lease upon the
occurrence of any of the following events:
i Failure to Pay Rent: Tenant's failure to pay the rent, additional rent or
any other sunis due hereunder within fifteen (15) days of its due date;
20 Failure to Vacate: Tenant's failure to vacate the Leased premises at the
end of any applicable Lease Term;
3, Failure to Comply with Wher_Terms: Tenant's failure to comply with any
other of Tenant's obligations under this Lease, which default remains
.nremedied within fifteen (15) days of its occurrence;
4< Insolvency and Bankruptcv: Tenant becorne insolvent making an
a0gnment for the benefit of creditors; becoming the debtor on any
bankruptcy proceeing, voluntarily or involuntaril,,!: having a judgment
entered against Tenant which remains unpaid for a period in excess of
thirty (NO days.
The foregoing notwithstanding, upon the occurrence of a default, no right or
option herein conferred on Landlord shall be exercised unless; (1 l Landlord shall
have given YQUen notice thereof to Tenants specifying the nature of the default;
and (2) in the event of the non-payment of rent Tenant v.;ithin fourteen (14) days
after receipt of such notice shall have failed to submit paymenk or in the event
Of 1101i-performance of any of its obligations under this Lease, Wapt shall have
failed to commence remedy of the defy Rn specified on the Landlord's notice
within th-lirtV (30) days of receipt of such noti??e rind Nei en W complete such
remedy with due diligence.
25. (r',NDl i0RD'_`_> REMEDIES. Jon the occuu•_ nce o TenanC'_ Afa l the tenns of t n
Luse Landlord shall have the I'M wing remedies. wilch .`.hall he c-un `dative and not v,
the alternative:
To Claim Entire Rent Due: To declare the en tire rent reser,?ed fog the full terri-l of
this Lease or any Renewal Terns to become in-nlediatei',/ due ?maj payable and
collecclble,
B Ter-Minat-ion of Lease: To terminate the Lease and to enter ._!poi; and repossess
the Leased Premises without being considered a trespasser;
C. Eviction and Notice to Vacate: To evict Tenant from the Leased Premises
without providing Tenant with any notice, Tenant herewith waiving all notices
or any notification period that may otherwise be required by virtue of any law;
f)e Disposal of Tenant's Property: To dispose of all of Tenant's property remaining
on the Leased Premises after Tenant has vacated the Leased Premises and to
charge Tenant for such removal. cost and without any tiat>iiity to account to
Tenant for the value received for the items disposed;
E. Collection of All Sums Due: To collect all sums due Landlord under this Lease in
any manner provided for by law;
F. Offset and Judgment: To offset against Tenant's Security Deposit and amounts
due Landlord under this Lease and the an-lount of any damages that Landlord
suffers as the result of Tenant's breach of this Lease and to secure judgment
against Tenant for any excess dama:;es not covered bi, said Security Deposit;
G, Confession of Judgment for Amount's Due: To confess judgment against Tenant
for any amounts owed by Tenant to Landlord under this Lease in which event
enant authorizes the Prothonotary or any attorney to appear for and confess
judgment against Tenant and in favor of Landlord for the whole amount of the
rent and other sums that are due, together 'with an attorney's con-irmsslon which
;half. be no less 1 han the Greater of `>50;1.00 or t ,;cn'_Y 1"0 ? per-ent of the arnount
1o_ltld tci l,,e due. and pa}'able and costs of suii
H, Lonfessioi-l of Jud ment for Possession: Tc, confess )udun ,c lt_ a?aln5t Ten 1n' 1n
-ln amicable action in ejectment in which e',.gent Tenanl_ h erel),,, - tl-?o? izes the
F rothomotar y or ;rnv attol"nev of f ecord o appear for anci confess iUdgillent ill
)eCtmellt a?airst lenant and in f _,, of Lai, ilord -nd to direct t-.!Fe
issuance of a writ of possession. all 11',%1thoUt notice or leave of i_ourt and v,,a'vlric,
atl irregularities;
€. Assessment of Attorney's Fees and Costs: To assess Ten,int all reasonable
attorneys fees and costs incurred by Landlord in enforcing Landlord's rights under
this Lease, including but not lin-lited to all attorney's fees and costs incurred by
Landlord In securing Tenailt's removal f rorn the Leased Pi ennises and in seCU rirls
payrnent of all sr.ims due Landloid under this Lease, in vilhich event Tenant
specifically agrees to pay such attorneys fees and costs, which shall be no less
than the greater of ;500.00 or twenty (20'?l,) percent of the amount found to be
due and payable.
J. Relettin, Best Efforts: If the premises become vacant as a result_ of a default on
Tenant's part, Landlord shall use its best efforts to relet the Premises in order to
mitigate darnages.
26. LITIGATION. In the event the Landlord or its agents, without fault on Landlord's part,
becomes involved, through or on account of the terms of this Lease, or through or on
account of the occupancy of the Leased Premises by Tenant, or the conduct of Tenant's
business upon said Leased Premises, in any controversy or litigation or if such controversy
or litigation throws any cloud or encumbrance upon the title of said Landlord to its
property, Tenant shall, upon notice from Landlord, immediately take all necessary steps
to remove Landlord and its property from any and all connection with, or liability arising
out of said controversy or litigation; Provided, however, that if Tenant believes it has
a valid defense or clairn in such controversy or litigation vvhich Tena ni. desires to set up
and maintain by wind throughout Court procedure and litigation. TerlCint shall have the
right to do so, provided it first executes and delivers to Landlord an indemnifying bond
with surety satisfactory to Landlord, and discharges any and all final judgments, liens,
costs. damages, expenses and obligations of Landlord whatsoever, in or arising out of the
controversy or litigation involving the Landlord or its agents, including all costs, expenses
and attorney's fees incurred by Landlord or its agents in protectinLD their interest or
defendinL tl ierrisel,.res m such contrIwersv or litigation. Tenant hereby ?rvaives and agrees
that it ?llli. vdalve all, rights to t` ia( by jury in any and all legal proceedlrigs a0sing Under
tills Le_i_t ut. C) i,ilf_ to nim,-jtion of this L(7-. Se or `PYiui 1. spec't rn thF_ Lpased Premises
C)f Good Ho?--,e or the use there-of.
l
?- i\i(il"1l"c`=?; r?I4??r ?- nr?-irnilnir ?.fin??c n;urc laht t?PrPri, 1'. ,-1V Sal iii ;c
deemed 'ivF vdllf.'il deposited in the United State;- 1\4ail, postage rl epa' , certified or
ail rn r er6p' r e'g Tested. ?de-ps, tll F' 7i d(?, r estir's. t
out. belov:,.
-1 i
A. If to Landlord: Barnett Property Manage1T)ent, Inc.
25 Shady Lane
Carlisle. PA. 17013
B. ii to Tenant: David J. Thomas
212 Locust Street, Suite 500
Harrisburg, PA 17101
6108 Carlisle Pike Restaurant Co. LLC
212 Locust Street, Suite 500
Harrisburg, PA 17101
28. CONSTRUCTION. Whenever the context so requires, the feminine gender shall be
substituted for the masculine. the masculine for the feminine vice versa. Paragraph
headings are for convenience only and do not constitute a part of this Agreement. The
following words shall be the meaning indicated unless clearly indicated otherwise by the
context: (1) "Term" shall include the original term and all renewals thereof: (2) "Good
Hope Plaza" shall be all of the parcel upon which the Leased Premises are located, and
all stores therein.
29. INTEGRATION. This Lease contains the entire understanding between the parties
hereto, and supersedes any prior written or oral agreements between them respecting
the within subject matter. There are no representations, agreemei its, or understandings,
oral or written, between and among the parties hereto relating to the subject matter
of this Agreement, which are not fully expressed herein.
0G SEVERABILiTY. If any ten-ri, condition, clause or provision of this Agreement shall be
determined or declared to be void or invalid in law or otherwise, then only that term,
condition clause or provision shall be stricken from this Agreement and in all other
respects this Agreement shall remain valid and continue in full force, effect and
operation. Like-wise, the failure of either party to meet his or her obligations under this
Agreement undei anv one or more of the paragral--)hs hereunder, with the exception of
the satisfaction of a condition precec,ent, shat! in no way avoid or a1te, the remaining
obligations of the parties.
1 UavErE?INU LAW. T _.
' ` This ac,f ement.. h-W. be con,)tl ued fl ;.l t.i t laws c t lF
_3 i Commonwealth of Pennsylvania..
3;'. QUIET ENJOYMENT . I-errant shall a(d nay peacefuliy ar?c1 q1 ,iI I v r?. !?0!??1 and ?: 11 oy
the Leased Premises for the intended purposes hereinbefore described. Landlord will
se its best effori=s to ensure that the actions of other en ant do !-iot interfere with
TeriantCs right of quiet enjoyn-lent.
3'. CHANGES TO THE COMM014 AREAS: V/herever in this Lease Landlord is granted the right
to make changes to the common areas, Landlord shall not exercise chose rights if such
action vvould adversely affect Tenant nor change and affect the nature and quality of its
tenancy, including, but not limited to, services or access to the building on the Leased
Premises, access to or availability of parking, driveways, walkways, landscaping,
restroom facilities, or the like. Further, Landlord will not take any action that would
further impair the visibility of the Leased Premises from the Carlisle Pike.
IN WITNESS WHEREOF, the parties hereto, intending to be Legally bound, place their hands and
seals this day of 200;`
Witness/Attest BARNETT PROPERTY MANAGEMENT, INC.
(SEAL)
By: CURTIS M. BARNETT, PRES.
Witness/Attest 6108 CARLISLE PIKE RESTAURANT CO., LLC
-- --- --(SEAL ?
By: DAVID J. THOMAS
iSrALI
DAVID J THOMAS
1?.
EXHIBIT "B"
1/4/08 SETTLEMENT AGREEMENT
ORIGINAL
Lessor: Barnett Property Management, LLC
Lessee: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC
Leased Property: Suite 108-112 Good Hope Plaza, Mechanicsburg, PA
1/4/08 SETTLEMENT AGREEMENT
The following are the terms agreed upon by Curtis Barnett on behalf of Barnett Property
Management, LLC and David J. Thomas, individually and on behalf of 6108 Carlisle Pike
Restaurant Company, LLC on January 4, 2008 regarding the past due amounts owed by
Lessee to Lessor for the lease of Suite 108-112 Good Hope Plaza:
By 5pm on January 10, 2008, Lessee will pay to Lessor's agent the amount of
$6,466.75. This amount represents:
2.
a. $2,000.00 towards the 2007 CAMS (41h quarter 2006 CAMS and 1St - 3rd
quarter 2007 CAMS);
b. $3,738.33 for rent due for January 2008;
C. $728.42 in past due rent and rent late charges for period 2005-2007.
3. Lessee will pay Lessor's Agent the required monthly rent (currently $3,738.75) by
the 10t" of the month starting with the rent due for February, 2008. The rent is
still due on the 1s' of the month, but no late fees will be charged, and no default
will be deemed to have occurred, if paid by the 10t"
4. Lessee will pay Lessor's agent $2,000.00 per month by the 101h day of the month
starting in February 2008, to be applied towards the CAMS due for the year (41h
quarter CAMS from prior year and 1 S1- 3rd quarter CAMS for current year). The Cam
Payment is due on the 1s' of the month, but no late fees will be charged, and no
default will be deemed to have occurred, if paid by the 101h
5. If Lessee pays the amounts due under paragraphs 3 and 4 above in a single check,
and such payment is less than the total amount then due, the payment so made
shall be applied V t to rent, next to late charges and penalties, and last to CAMS.
6. Lessee will pay Lessor's agent $24,794.88 for past due CAMS and CAM late Charges
(incurred for 2007 3rd quarter CAMS or prior thereto) together with 8% interest
thereon in quarterly installments in accordance with the calculations set forth on
Schedule "A" attached hereto and made a part hereof. Any payment not paid by
the due date reflected on Schedule "A" will be considered to be a default of the
Lease and this Compromise Settlement. Payments shall be applied 1St to interest,
next to late fees and penalties and last to principal.
7. If Lessee fails to make any payments due under the Lease as modified hereby, by
the due dates provided in the Lease as may be modified herein, then in addition
to any remedies provided in the Lease, Lessee shalt owe Lessor the amounts
specified in Schedule "B", less any amounts paid by Lessee on or after the date
hereof. For that purpose the amounts to be credited to Lessee shall not include
any interest payments charged and paid in accordance with Schedule "A".
8. Acceptance of any payment after its due date shall not excuse, nor be a waiver
of, Lessee's default and shalt not be deemed to be a waiver of any of the rights
and remedies provided in the Lease or as herein provided.
9. All Payments herein provided or provided by the Lease shall be made payable to
Barnett Properly Management, LLC, and delivered to Lessor's Agent, Diane G.
Radcliff, Esquire, at 3448 Trindle Road, Camp Hill, PA 17011.
10. Time is and shalt be of the essence for all payment herein provided.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, anc
acknowledging that they have read, approved and agreed to the above referenced terms,
have set their hands and seats the day and year below written.
WITNESS:
f
? (SEAL)
Diane G. Radcliff, Esquire, Agent
°For__Barnet? Prope ty Managemeht, LLC
Dated:
(SEAL)
David y --T?a as, ind ua nd on behalf of
6108 Carlisle Pike Restaurant Company, LLC
Dated: 0 A /°9 6 / o
SCHEDULE "A"
Dave Thomas - Amortization of Back Cams (Compromise Amount)
Date Interest @ 8% Principal Payment Balance
Beginning
Balance 24,794.88
3.31.08 495.90 3,099.36 3,595.26 21,695.52
6.30.08 433.91 3,099.36 3,533.27 18,596.16
9.30.08 371.92 3,099.36 3,471.28 15,496.80
12.31.08 309.94 3,099.36 3,409.30 12,397.44
3.31.09 247.95 3,099.36 3,347.31 9,298.08
6.30.09 185.96 3,099.36 3,285.32 6,198.72
9.30.09 123.97 3,099.36 3,223.33 3,099.36
12.31.09 61.99 3,099.36 3,161.35 0.00
Thomas Lease Good Hope Plaza - Past Due Amounts
Description Subtotal Total
Water Pit $2,985.85
11/07 Rent $3,323.33
12/07 Rent $3,323.33
1/08 Rent $3,738.75
Less 2006 Food Charges ($463.22)
Less 2007 Food Charges ($5,117.96)
November Rent Payment ($3,323.33)
Subtotal Past Due Rent $4,466.75 To be paid today
?k?k ZZZZIZZ IZZZZIZZZIZZZZI Z1ZZZ1Z1Z1Z1Z11
9.1.05-12.31.07
Rent One Time Late Fees $47500.00
9.1.05-12.31.07
Daily Late Fee $1,410.00
9.1.05-12.31.07
Bank Charges for NSF 40.00
Subtotal 9.1.05-12.31.07
Rent Late Fees Ft Charges $5,950.00 $5,950.00
2005-2006 Past Due Cams $71285.75
2005-2006 Cams Late Fees $2,896.96
Subtotal 2005-2006 Cams Et Late Fees $10,182.71 $10,182.71
2007 1" Quarter Cams $107593.17
20072 n, Quarter Cams $6,987.03
2007 3rd Quarter Cams $21428.93
2007 Cam Payment 10.10.07 ($2,500.00)
2007 Cam Late Fees $1,059.32
2007 Cam Late Fees $698.70
Subtotal 2007 Cams through 3rd Quarter $18,568.45 $18,568.45
Total Past Due Amounts $34,701.16
EXHIBIT "C"
DECEMBER 16, 2008 DEFAULT/CURE NOTICE
DIANE G. RADCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 17011
Phone: 717-737-0100
Fax: 717-975-0697
E-mail: dianeradcliff@comcast.net
December 16, 2008
Mr. David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Re: Lease for Suite 108-112 Good Hope Plaza
Default Notice
Dear Dave:
I am most disappointed to once again to have to contact you regarding your default in your Lease
obligations. I thought that we had finally come to an understanding of the need to pay on time and
that you should contact me should matters arise that prevented a timely payment. Most recently I
have been advised that you contacted my paralegal and asked to be able to pay your December rent
on December 12, 2008 instead of December 10, 2008 because of a change in banks. That 2 day
extension was granted for that purpose only. In spite of our cooperation, and phone calls made to
you on Friday, December 12, 2008 and Monday, December 15, 2008, we have yet to receive your
December rental payment. This is unacceptable.
This letter is, therefore, to advise you that pursuant to the provisions of paragraph 24E of your Lease
with Barnett Property Management for the lease of Suite 108-112, Good Hope Plaza, 6108 Carlisle
Pike, Mechanicsburg, Pennsylvania, 17050 the Landlord elects to declare, and does hereby declares,
you to be in default of the Lease in that you have failed to your rent for the month of December, due
on December 1, 2008. Pursuant to other terms of the Lease you are hereby given this written notice
of your default and are advised that you have 14 days from today's date, December 15, 2008, to
cure your default by submitting and paying to this office the following amounts:
December 2009 Rent $5,738.75
One Time Late Fee for rent not paid by 12/10/08 $250.00
Daily Late Fees @ $10/day starting as of 12/16/08 $10.00
Total Due as of 12/16/08 $5,998.75
If you fail to make the above calculated payment of $5,998.75 together with the daily late fee arising
Page 2
David J. Thomas
December 16, 2008
for every day after 12/16/08, the Landlord will, without further notice, exercise all rights and
remedies provided in paragraph 25 of the Lease, including but not limited to declaring all rent for
the remaining term to be due and payable, collecting the same by any means and evicting you from
the premises.
Since you have made a substantial investment in this leased property, I trust that you will govern
your self appropriately.
Very truly yours,
DIANE G. RADCLIFF, ESQUIRE
DGR/dr
Enclosure(s):
'transmitted by Regular & Certified Mail to David J. Thomas, 110 Walnut Street, Lemoyne, Pennsylvania, 17043
cc: Barnett Property Management, Inc. by mail
File
EXHIBIT "D"
DECEMBER 31, 2008 LETTER
DIANE G. RADCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 17011
Phone: 717-737-0100
Fax: 717-975-0697
E-mail: dianeradcliff@comcast.net
December 31, 2008
Mr. David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Re: 108-112 Good Hope Plaza Lease
Dear Dave:
You have failed to make your December 2008 lease payment by December 30, 2008, the
last day of the 14 day cure period. As a result, I will be proceeding with filing the
eviction documents with the court on Monday, January 5, 2008.
I would be willing to extend your cure payment date to noon on Monday, January 5,
2009 provided that you also pay January's rent @ 5,823.22 and the past due cam
payment of $3,409.30 due on December 31, 2008 by noon on Monday, January 5, 2009.
Thus with all late charges in order to extend the cure period $15,430.27 must be paid
by noon on January 5, 2009, calculated as follows:
December base rent $5,738.75
December Rent one time late charge $250.00
December Rent daily late fee @ 10/day
12/16-1 /4/09 (20 days) $200.00
December 31, 2008 past Due Cam
Payment $3,409.30
January Rent $5,832.22
Total due as of 1/4/08 $15,430.27
Should you have any questions or comments regarding this letter, do not hesitate to
Page 2
Dave Thomas
December 31, 2008
contact me. My office will be open on Friday January 2, 2009 to receive your calls.
Very truly yours,
DIANE G. RADCLIFF, ESQUIRE
DGR/dr
cc: Curtis M. Barnett, DVM, BPM
File
TRANSMITTED BY MAIL
EXHIBIT "E"
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EXHIBIT "G"
JANUARY 20, 2009 LETTER
,-
DIANE G. RADCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 17011
Phone: 717-737-0100
Fax: 717-975-0697
E-mail: dianeradcliff@comcast.net
January 20, 2009
Mr. David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Re: Good Hope Lease
Barnett Property Management LLC, Landlord
Bad Check Amount: $5,738.75
Dear Mr. Thomas:
Our records indicate as payment for rent for the month of December 2008, you
provided us with your check in the amount of $5,738.75 . This check was returned by
your bank, marked "NSF" or "insufficient funds". Because this check was dishonored by
the bank against which it was drawn, a service charge of $20.00 is now due. Therefore
as of the date of this letter the following amounts are now due for the December rent:
December Base Rent $5,738.75
December Rent daily late fee @ $10/day 1/5/09 to 1/20/09 (16 days) $160.00
Bank Service Charge $20.00
Total due as of 1/20/08 _ $5,918.75
Daily Fee starting on 1 /21 /09 until above is paid in full $10.00
Under Section 4105 of the Pennsylvania Crimes Code a person commits the
criminal offense of "Bad Checks" if he issues or passes a check knowing that it will not
be honored by his bank. Under Section b of that Statute, the person writing the check
is presumed to know the check will not be paid if the payment is refused by his bank or
financial institution within thirty days after issuance and the person fails to make the
check good within ten days after receipt of notice of the refusal to make payment.
Page 2
David Thomas
Re: December 2009 Rent
January 20, 2009
This letter is, therefore, to provide you with notice under 18 Pa.C.S.A. Section
4105(b) that your check has been dishonored and advise you that you have 10 days from
the date of this letter to make that check good by paying the amount of $5,918.75. If
you fail to make this payment by January 31, 2009, the following are the consequences
that can and will result:
1. You will be charged with the offense of issuing a bad check under Section
4105;
2. You will have to hire an attorney and pay the fees charged by that attorney
to represent you in that criminal action;
3. You may be convicted of the offense under Section 4105;
4. If convicted, you will forever have a criminal record. This criminal record
can affect your ability to obtain future employment and will adversely
affect your credit.
5. Whether convicted or not, you will you be required to pay the above
claimed amount of $5,918.75 to my client.
6. If convicted, you will be required to pay court costs and a fine. You may
also be sentences to a term of imprisonment.
You can see from reviewing the above consequences, it is to your advantage to
pay this $5,918.75 on or before January 31, 2008. 1 am, therefore, providing you with
the following instructions regarding this payment:
Payment should be in the form of cash, bank check, cashier's check or
other certified funds. Personal checks will not be accepted.
* Any payment other than in cash should be made payable "Barnett Property
Management".
* Payment should be sent to this office at the address listed above.
Payment must be received by this office on or before January 31, 2009. If
4 ,
Page 3
David Thomas
Re: December 2009 Rent
January 20, 2009
you are going to mail your payment, please allow enough time so that it is
received by this office no later than January 31, 2009.
No further time extensions for payment will be granted. You must strictly comply
with all terms set forth in this letter if you expect to avoid the above stated
consequences.
Very truly yours,
DIANE G. RADCLIFF, ESQUIRE
DGR/dr
Transmitted to Addressee by regular mail and certified mail #7005 3110 0004 2994 4498
cc: Barnett Property Management, LLC w/encl
File
4 s
EXHIBIT "H"
JANUARY 23, 2009 LETTER
DIANE G. RADCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 17011
Phone: 717-737-0100
Fax: 717-975-0697
E-mail: dianeradcliff@comcast.net
January 23, 2009
Mr. David J. Thomas
110 Walnut Street
Lemoyne, PA 17043
Re: Good Hope Lease
Barnett Property Management LLC, Landlord
Bad Check No.: 8207
Bad Check Amount: $6,122.22
Dear Mr. Thomas:
Our records indicate as payment for rent for the month of January 2009, plus all
applicable late Fees, you provided this office with your check No. 8207 in the amount.
of $6,122.22. This check was returned by your bank, marked "NSF" or "insufficient;
funds". Because this check was dishonored by the bank against which it was drawn, a,
service charge of $20.00 is now due. Therefore as of the date of this letter the following
amounts are now due for the January rent:
January Base Rent $5,823.2:
January One Time Late Fee $250.00
January Rent Daily Late Fee C $10/day 1/11/09 to 1/23/09 (16 days) $130.00
Bank Service Charge $20.00
Total due as of 1/23/09 $6,223.22
Daily Fee starting on 1 /21 /09 until above is paid in full $10.00
Under Section 4105 of the Pennsylvania Crimes Code a person commits the
criminal offense of "Bad Checks" if he issues or passes a check knowing that it will rot:
be honored by his bank. Under Section b of that Statute, the person writing the check;
r '
Page 2
David Thomas
Re: January 2009 Rent
January 23, 2009
is presumed to know the check will not be paid if the payment is refused by his bank or
financial institution within thirty days after issuance and the person fails to make the
check good within ten days after receipt of notice of the refusal to make payment.
This letter is, therefore, to provide you with notice under 18 Pa.C.S.A. Section
4105(b) that your check has been dishonored and advise you that you have 10 days from
the date of this letter to make that check good by paying the amount of $5,918.75. If
you fail to make this payment by February 2, 2009, the following are the consequences
that can and will result:
1. You will be charged with the offense of issuing a bad check under Section
4105;
2. You will have to hire an attorney and pay the fees charged by that attorney
to represent you in that criminal action;
3. You may be convicted of the offense under Section 4105;
4. If convicted, you will forever have a criminal record. This criminal record
can affect your ability to obtain future employment and will adversely
affect your credit.
5. Whether convicted or not, you will you be required to pay the above
claimed amount of $6,223.22 to my client plus $10.00 per day for every day
after 1/23/09 until the amount due is paid in full.
6. If convicted, you will be required to pay court costs and a fine. You may
also be sentences to a term of imprisonment.
You can see from reviewing the above consequences, it is to your advantage to
pay this $6,223.22 plus $10.00 per day for everyday after 1/23/09 on or before February
2, 2009. 1 am providing you with the following instructions regarding this payment:
Payment should be in the form of cash, bank check, cashier's check or
other certified funds. Personal checks will not be accepted.
Any payment other than in cash should be made payable "Barnett Property
Page 3
David Thomas
Re: January 2009 Rent
January 23, 2009
Management".
ytr Payment should be sent to this office at the address listed above.
Payment must be received by this office on or before February 2, 2009. If
you are going to mail your payment, please allow enough time so that it is
received by this office no later than February 2, 2009.
No further time extensions for payment will be granted. You must strictly comply
with all terms set forth in this letter if you expect to avoid the above stated
consequences.
Very truly yours,
DIANE G. RADCLIFF, ESQUIRE
DGR/dr
Transmitted to Addressee by regular mail and certified mail
cc: Barnett Property Management, LLC w/encl
File
e -a
RD-Owa
OF HE t"S'i*cdTHMAR
2003 APR -2 PH 2.4 2
BARNETT PROPERTY MANAG
PVainti
V.
DAVID J. THOMAS and
6108 CARLISLE PIKE RESTAU
LLC,
, INC.
f
COMPANY, CIVIL ACTION - LAW
ants f
ACTION IN EJECTMENT
ORDER
AND NOW, this A. day of , 2009 upon consideration of the attached Amended
Complaint for Confession of Ju gment in Ejectment, and the Prior Petition to Strike, it is
hereby ordered that:
1. A rule is issued pon the Respondent/ Plaintiff to show cause why the
Petitioner/ Defendan is not entitled to the relief requested;
L_ days of this
2. The Respondent/Plai tiff shall file an answer to the Petition within ?'
date;
3. The Petition shall be decided under Pa.R.C.P,. No. 206.7;
4. Depositions will be completed within days of this date;
5. Argument shall be h J ld on June 10, 2009 at 1:30 p.m. in Courtroom '1, Cumberland
rl. le, PA and if not completed on that date, then on July 9, 2009
County Courthouse, C
r is
at 1:30 p.m. in Court oom 1, Cumberland County Courthouse, Carlisle, PA.
6. In the event subse uent or amended confessions of judgment are filed against
Defendants, this sam procedure shall be followed;
7. Pending the decision y this Court, all action or proceedings on any judgment entered
in this matter shall b stayed;
8. Pending the decision by this Court, Plaintiff shall be entitled to accept and cash the
check for February 2009 rent and cam payments and any payments received frm the
Court for the December 2008 and January 2009 rent and cam charges;
ar 0 3 Zoc8 67
C
CUMBERLAND OMMON PLEAS OF
COUNTY, PENNSYLVANIA
IN NO. THE 09-1005 COURT OF
9. Pending the decision of the Court on this matter, Defendants shall pay rent and cam
payments monthly, b ginning with the March 2009 payment in the amount of $5,876.81
which shalt be made to Plaintiff through Plaintiff's Agent, Diane G. Radcliff, Esquire,
10.
11.
12.
within 10 days of the date of this signed Order.
On or before th 10th of each month beginning April 10, 2009, Defendants shall make
monthly rental and am payments to Plaintiff through his Agent in the amount of
$5,876.81 until this matter is decided by the Court.
Plaintiff's receipt of he rent and cams shall not be deemed to be a waiver of any
default on the part o Defendants as raised in these or any other proceedings against
Defendants by Plaintiff.
Notice of the entry of this Order shall be provided to all parties by the Petitioner.
Distribution to:
ian G. Radcliff, Esquire, 34
Liam L. Adler, Esquire, 125
V '
3 Trindle Road, Camp Hill, PA 17011, Attorney for Petitioner
.ocust Street, Harrisburg, PA 17101 Attorney for Respondent
-1-
RV TW: rni IRT-
hS ?i tad 6- ?d? b4QZ
3RL
ORIGINAL
Y `
Prepared by:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff@comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.,
Plaintiff
V. .
DAVID J. THOMAS and .
6108 Carlisle Pike Restaurant, LLC,
Defendants
NO. 09-1005 CIVIL TERM
CIVIL ACTION - LAW
ACTION IN EJECTMENT
I
AND NOW, this 30`h day of April, 2009, comes the Plaintiff, Barnett Property Management,
Inc., by its attorney, Diane G. Radcliff, Esquire, and files this Answer to Defendant's Petition
as follows:
ANSWER
1. Admitted.
2. Admitted with the clarification that an amended complaint was filed on April 2, 2009
as instructed and permitted by this Honorable Court
3. Admitted.
4. Admitted.
5. Admitted with the exception of this Case Has Been Assigned to the Honorable J. Wesley
Oler, Jr, and an Order entered by him on April 7,'2009.
- 1 -
•
ANSWER TO COUNT I - PETITION TO STRIKE OFF JUDGMENT
Violation of PA.R.C.P. 2951
6. The Plaintiff incorporates by reference the answers and averments set forth in
paragraphs 1 through 5 inclusive herein the same as if fully set forth at length.
7. Admitted with the clarification that it is believed and averred that the term
"instrument" referenced in Pa.R,C.P. (a)(2)(i) refers to the instrument containing the
right to confession of judgment and not to any collateral documents which have no
bearing on the confession.
8. Denied. It is denied that Plaintiff failed to file the instrument as required by Pa.R.C.P.
(a)(2)(i) in that Plaintiff filed the Lease Agreement as part of the Complaint which is
believed to be the "instrument" required by said rule. Additionally, it is averred that
this alleged error was corrected in the Amended Complaint, incorporated by referenced
hereto, in which the signed 1 /4/08 Settlement Agreement was reflerenced and attached
as Exhibit "6".
9. Denied. It is denied that Plaintiff failed to comply with Pa.RC.P. (a)(2)(i) for the
reasons set forth in paragraphs 7 and 8 herein incorporated by reference hereto.
10. Admitted in part and denied in part. It is admitted that a copy of the unsigned
addendum (the 1/4/09 Settlement Agreement) was attached by Defendant as Exhibit
"A" to his Petition to Strike. It is denied that Plaintiff failed to return a signed copy
to the Defendant. On the contrary, it is averred that a copy thereof was provided to
the Defendant on the date he signed it.
Failure to Comply with Condition Precedent Prior to Entry of Judgment
11. Admitted.
12. The averment of paragraph 12 is a legal conclusion to which no response is required.
If it is determined that a response is required, Plaintiff denies the averments of
paragraph 12 of Defendants' Petition to Strike and/or Open Confessed Judgment
(hereafter " Defendant's Petition").
13. Denied. It is denied that Plaintiff failed to give Defendant notice as required by
Paragraph 24 of the Lease. On the contrary, as averred in paragraphs 11 through 25
of the Amended Complaint, incorporated by referenced hereto, Plaintiff did allege the
fulfilment of the condition precedent as provided in paragraph 24 of the Lease in that
Plaintiff alleged that Plaintiff provided Defendant with notice of default and
opportunity to cure prior to the entry of judgment by confession.
-2-
14. The averment of paragraph 14 is a legal conclusion to which no response is required.
If it is determined that a response is required, Plaintiff denies the averments of
paragraph 14 of Defendant's Petition.
Accord and Satisfaction
15. The averment of Paragraph 15 is a claim of defense without any factual averment and
therefore no response is required. If it is determined that a response is required,
Plaintiff denies the averments of paragraph 15 of Defendant's Petition.
16. Denied. It is denied that Defendant [sic Plaintiff] paid all delinquent rent for
December 2008 and January 2009 into Court and that Plaintiff refused to accept the
same. By way of further answer it is believed and therefore averred that:
a. not all of the delinquent rent and cams were paid into Court since there was no
authority of the court to collect additional late changes in the bad check
criminal matter the delinquent payment of rent into Court in a criminal matter;
b. Payment into court to reduce changes from a misdemeanor to a summary
offense in a bad check criminal matter, which payment had not been received
by the time the confession of judgment was filed does not constitute a waiver
of the default nor serve as a basis for the denial of the entry of judgment by
confession or grounds to set aside nor open that judgment.
17. Denied. It is denied that Plaintiff accepted the rent for February 2009. On the
contrary, and as averred in paragraph 22 and 23 of the Amended Complaint,
incorporated by reference hereto, when Defendant tendered the February 2009 rent
payment he was specifically told that the payment would not be cashed and that his
delivery of the payment would not negate his prior default.
18. The averment of 18 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averrhients of paragraph 18
of Defendant's Petition.
Violation of PaRCP 2971
19. Admitted with the clarification that this requirement was corrected in the Amended
Complaint, specifically paragraph 28 thereof, incorporated by referenced hereto,
which provides that the Lease and 1 /4/08 Settlement Agreement involves a commercial
lease of real property and judgment is not being entered against a natural person in
connection with a residential lease.
- 3 -
Violation of PaRCP 2952(61
20. The averment of 20 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 20
of Defendant's Petition.
21. Denied. It is denied that Plaintiff was required to allege the fulfilment of the condition
precedent as provided in paragraph 24 of the Lease. By way of further answer, as
averred in paragraphs 11 through 25 of the Amended Complaintj, incorporated by
referenced hereto, Plaintiff did allege the fulfilment of the condition precedent as
provided in paragraph 24 of the Lease in that Plaintiff alleged that Plaintiff provided
Defendant with notice of default and opportunity to cure prior to the entry of
judgment by confession.
Failure to Reaffirm Confession of Judgment in Addendum tp Lease
22. Admitted.
23. Denied. It is denied that Defendant sent a signed copy to Plaintiff and Plaintiff never
returned a fully executed copy to Defendant. On the contrary, it is averred that the
1/4/08 Settlement Agreement was signed by Plaintiff's agent first, and that Defendant
signed it in the Agent's office and was provided with a copy upon his signing.
24. Admitted.
25. Admitted with the clarification that there is no requirement for the 1 /4/08 Settlement
Agreement to referenced the warrant of attorney in that the 1/4/08 Settlement
agreement only changed the date of payment of the rent and provided Defendant with
a reduction on past due amounts provided that Defendants complied with the terms of
the Lease and the 1/4/08 Settlement Agreement.
26. Denied. It is denied that warrant of attorney was not incorporated by reference in the
1/4/08 Settlement agreement. On the contrary, it is averred that paragraph 8 of the
1/4/08 Settlement Agreement specifically provided that acceptance of payment after
its due date will not be considered to be a waiver of any of the rights and remedies
provided in the Lease, which by reference and inference would include the warrant
of attorney, a remedy included in the Lease.
27. The averment of 27 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 27
of Defendant's Petition.
28. The averment of 28 is a legal conclusion to which no response is required. If it is
-4-
determined that a response is required, Plaintiff denies the averments of paragraph 28
of Defendant's Petition.
Lack of Knowing Waiver of Rights
29. The averment of 29 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 29.
By way of further answer, it is averred that Defendants were at all 'times represented
by legal counsel in the negotiation and execution of the Lease and therefore were fully
aware of all of his and its legal rights and obligations arising out of the Lease.
30. Denied. It is denied that the confession of judgment was "buried" in paragraph 20 of
the Lease, but rather it is averred that it is plainly set forth in paragraph 20 of the
Lease.
31. Admitted with the clarification that distinctive fonts for confession of judgment clause
are not required for the clause to be valid.
32. Admitted with clarification that there is no requirement for Ten' ant to acknowledge
that he has waived his right to notice in such manner for the clause to be valid.
33. Denied. It is denied that no separate explanation of conference of judgment clause
was given to Tenant. By way of further answer, it is averred that Tenant was at all
times represented by legal counsel in the negotiation and execution of the Lease and
therefore was fully aware of all of his legal rights and obligations arising out of the
lease.
34. Plaintiff is without knowledge or information sufficient to form aibelief as the truth or
falsity of the averment set forth in Paragraph 34 of Defendants' Petition and said
averment is therefore, denied. By way of further answer, it is averred that under
paragraph 25 of the Lease Defendants did have a right to cure any default by making
the required payment within 14 days after notice given by Plaintiffs specifying the
nature of the default.
Improper Verification
35. Admitted.
36. Admitted with clarification that Attorney for Plaintiff verified the Complaint as
Property Management Agent for the Plaintiff and not as its Attorney. By way of further
answer it averred that the alleged error in the verification was corrected by the filing
of the Amended Complaint which was verified by Plaintiff's Assistant Property
Management Agent, which verification is incorporated by referenced hereto.
- 5 -
37. The averment of 37is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 37
of Defendant's Petition.
38. The averment of 38 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 38
of Defendant's Petition.
COUNT II - PETITION TO OPEN JUDGMENT
39. The Plaintiff incorporates by referenced the answers and averments set forth in
paragraphs 1 through 38 inclusive herein the same as if fully set forth at length.
40. The averment of 40 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 40
of Defendant's Petition.
41. The averment of 41 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 41
of Defendant's Petition.
42. The averment of 42 is a legal conclusion to which no responses is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 42
of Defendant's Petition.
COUNT III - REQUEST FOR STAY OF PROCEEDINGS
43. The Plaintiff incorporates by referenced the answers and averments set forth in
paragraphs 1 through 42 inclusive herein the same as if fully set forth at length.
44. The averment of 44 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 44
of Defendant's Petition.
45. Admitted.
46. Plaintiff is without knowledge or information sufficient to form a belief as the truth
or falsity of the averment set forth in Paragraph 46 and said averment is therefore,
denied. By way of further answer, it is averred that the parties agreed to stay the
proceeding until the hearing to be held on June 10, 2009 under the terms of conditions
of the April 7, 2009 Order.
47. Denied. It is denied that the rent and cams were paid under the lease or current.
-6-
48. The averment of 42 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 48
of Defendant's Petition.
WHEREFORE the Plaintiff requests this Honorable Court to dismiss Defendants' Petition to
Strike and/or Judgment.
Respectfully submitted,
MNFIG. CLIFF, ESQUIRE
3448 e Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
-7-
VERIFICATION
I, Deborah L. Donley, Assistant Property Manager for Plaintiff, being duly authorized
to act on behalf of Plaintiff, and being personally familiar with all of the facts alleged herein,
verify that the statements made in this Answer are true and correct. I understands that false
statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to
unsworn falsification to authorities.
DEBORAH L. DONLEY
-8-
CERTIFICATE OF SERVICE
I, DIANE G. RADCLIFF, ESQUIRE, hereby certify that on April 30. 2009, 1 served a true
and correct copy of the Plaintiff's Answer upon Defendant's Attorney, by mailing same by
first class mail, postage prepaid, addressed as follows:
William J. Adler, Esquire
ADLER Ek ADLER
125 Locust Street
Harrisburg, PA 17101
&NE A CLIFF, ESQUIRE
d Roa d
Camp Hill, PA 17011
Phone: (717) 737-0100
Fax: (717) 975-0697
Supreme Court ID # 32112
C? THE f `1'4r'..f_-DY
25" 091I'AY - I A I' : u I
Barnett Property Management, Inc.,
Plaintiff (Respondent)
V.
David Thomas and 6108 Carlisle Pike
Restaurant, LLC,
Defendants (Petitioner)
IN THE COURT OF COMMON PLEAS
Cumberland COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 09-1005 Civil
DEFENDANT'S PETITION TO STRIKE AND/OR
OPEN CONFESSED JUDGMENT AND FOR A STAY OF PROCEEDINGS
IN RESPONSE TO AMENDED COMPLAINT FILED APRIL 2, 2009
AND NOW COME the Defendants, David Thomas and 6108 Carlisle Pike Restaurant,
LLC, through their attorneys, Adler & Adler, and respectfully represents the following:
1. By way of confession, Barnett Property Management, Inc. is seeking possession of Suite 108-
112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, PA, from David Thomas and 6108
Carlisle Pike Restaurant, LLC as the tenant in such space.
2. On February 19, 2009, plaintiff filed a confession of judgment in ejectment against defendant
to the above number together with a complaint.
3. Notice of defendant's rights under said judgment was delivered with the confession and
complaint.
4. Plaintiff filed for a writ of possession on February 19, 2009.
5. On April 2, 2009, plaintiff filed an amended complaint for confession of judgment in
ejectment.
6. On April 7, 2009 and April 14, 2009, the Hon. Judge Oler issued Orders setting meeting
deadlines and hearing schedules. He further ordered that all actions or proceedings on any
judgment entered in this matter shall be stayed.
COUNT I - PETITION TO STRIKE OFF JUDGMENT
Violation of PaRCP 2951
7. Paragraphs 1-6 are incorporated herein by reference.
8. PaRCP 2951 (a)(2)(i) requires that plaintiff file the instrument in support of the entry of
judgment.
9. Plaintiff, in his initial filing of February 19, 2009, failed to file the entire instrument which
includes an addendum to the Lease agreement that changes the payment terms.
10. Plaintiff failed to comply with PaRCP 2951 (a)(2)(i).
11. A copy of that addendum was attached to Defendant's petition to strike filed March 10,
2009.
12. Plaintiff attached said that addendum to the amended complaint.
13. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is
exhausted.
14. The exhaustion of the warrant precludes the plaintiff from amending the complaint.
Failure to Comply with Condition Precedent Prior to Entry of Judgment
15. Paragraph 24 of the Lease attached as Exhibit "A" to plaintiff's complaint states:
The foregoing notwithstanding, upon the occurrence of a default,
no right or option herein conferred on Landlord shall be exercised
unless: (1) Landlord shall have given written notice thereof to
Tenants specifying the nature of the default; and (2) in the event of
the non-payment of rent Tenant within fourteen (14) days after
receipt of such notice shall have failed to submit payment...
16. The giving of notice and an opportunity to cure the default are conditions precedent to the
entry of judgment by confession.
17. Plaintiff failed to allege the provision of the notice of default in the complaint of February
19, 2009.
18. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is
exhausted.
19. The exhaustion of the warrant precludes the plaintiff from amending the complaint.
Accord and Satisfaction
20. Plaintiff claims the defense of accord and satisfaction.
21. Plaintiff has paid all delinquent rent due for December, 2008 and January 2009 into Court in
that Plaintiff refused to accept the same.
22. Plaintiff accepted rent for February, 2009.
23. Plaintiff has also paid rent for March and April, 2009.
24. Defendant cured the default by paying rent due for December, 2008 and January, 2009, into
Court in that Plaintiff would not accept said rent.
Violation of PaRCP 2971
25. The complaint for confession of February 19, 2009 was defective in that PaRCP 2971(a)(1)
requires an averment that judgment is not being entered against a natural person in connection
with a residential lease, which averment is missing from plaintiff's complaint.
26. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is
exhausted.
27. The exhaustion of the warrant precludes the plaintiff from amending the complaint.
Violation of PaRCP 2952(6)
28. The complaint is defective in that PaRCP 2952 (6) requires a statement that judgment may
be entered only after a default or the occurrence of a condition precedent, an averment of the
default or of the occurrence of the condition precedent.
29. Plaintiff alleged a default in paragraph 6 of the complaint, but failed to allege the fulfillment
of the condition precedent as required by paragraph 24 of the Lease.
30. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is
exhausted.
31. The exhaustion of the warrant precludes the plaintiff from amending the complaint.
Failure to Reaffirm Confession of Judgment in Addendum to Lease
32. On January 4, 2008, plaintiff and defendant entered into a modification of the Lease terms.
33. Defendant sent a signed copy to plaintiff, but plaintiff never returned a fully executed copy
to defendant.
34. A copy of said modification is attached as Exhibit "A."
35. The January 4, 2008 modification made no reference to the warrants of attorney in the 2005
Lease.
36. The warrant of attorney was not incorporated by reference in the January 2008 amendment.
37. The January 2008 amendment did not reaffirm the warrant of attorney in the 2005 Lease.
38. Due to the lack of confirmation or reaffirmation, the judgment should be stricken.
Lack of Knowing Waiver of Rights
39. The Tenant did not voluntarily, intelligently and knowingly waive his/its right to notice and
hearing prior to entry of the judgment.
40. The confession of judgment clause was buried in page 20 of the Lease.
41. No distinctive fonts distinguished the confession clauses.
42. There is no separate affirmation in the Lease for Tenant to acknowledge that he/it has waived
its right to notice in such a manner.
43. No separate explanation of the confession of judgment clauses was given to Tenant.
Improper Verification
44. PaRCP 2952(10) requires verification in accordance with the rules relating to a civil action.
45. The attorney for the plaintiff verified the complaint, even though averments of fact were
included.
46. The rules relating to a civil action require that the plaintiff verify the complaint.
47. The complaint was improperly verified.
48. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is
exhausted.
49. The exhaustion of the warrant precludes the plaintiff from amending the complaint.
WHEREFORE, Petitioner respectfully requests that the judgment in ejectment be stricken for all
of the aforedescribed reasons.
COUNT II - PETITION TO OPEN JUDGMENT
50. Petitioners hereby incorporate by reference the allegations set forth in paragraphs 1-49.
51. In the alternative, to the extent that the judgment entered by confession is not stricken, the
judgment must be opened. A Petition to Open Confessed Judgment must be granted if the
Petition: (a) is timely filed; (b) alleges a meritorious defense; and (c) presents sufficient evidence
to require submission of the case to a jury.
52. This case is timely filed.
53. Numerous factors have been raised above manifesting a meritorious defense which is
sufficient to require submission to a jury.
COUNT III - REQUEST FOR STAY OF PROCEEDINGS
54. Paragraphs 1-53 are incorporated herein by reference.
55. Pennsylvania Rule of Civil Procedure 2959(b) authorizes a stay of proceedings on a
judgment of confession as long as the Petition to Open "states prima facie grounds for relief..."
56. This Court has stayed all execution proceedings pending trial.
WHEREFORE, Defendants respectfully request that the judgment of confession entered in the
above-captioned matter be stricken, or, in the alternative, opened.
ADL R & A LR by
4V'&= William L. A er, squire
Attorney for Defendants
ADLER & ADLER
125 Locust St.
Harrisburg, PA 17101
717-234-3289
Supreme Court ID Number 39844
Wmadler@adlerandadler.net
May 4, 2009
VERIFICATION
I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING
ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE
MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO
UNSWORN FALSIFICATION TO AUTHORITIES.
DATE:_ 01S7 /0
Davi hom W -Petitioners
CERTIFICATE OF SERVICE
I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the ?r-
day of AA964 , 2009, I served a copy of the within Petition upon the
following person by fir it class mail, postage prepaid, addressed as follows:
Diane G. Radcliff, Esquire
3448 Trindle Road
Camp Hill, PA 17011
William L. Adler, Esquire
of t? xi°Pn rnAFts
2H9 MAY -6 AM It: 4 Z
-JIM
PFIAV-VANA
MAY 0) pppg ?
William L. Adler, Esquire
ADLER & ADLER
125 Locust St.
Harrisburg, PA 17101
Phone: 717-234-3289
Fax: 717-234-1670
Email: wmadlernadlerandadler.net
Supreme Court ID: 39844
Barnett Property Management, Inc.,
Plaintiff (Respondent)
IN THE COURT OF COMMON PLEAS
Cumberland COUNTY, PENNSYLVANIA
V.
David Thomas and 6108 Carlisle Pike
Restaurant, LLC,
Defendants (Petitioner)
: CIVIL ACTION - LAW
NO. 09-1005 Civil
ORDER
AND NOW, THIS day of 04;7 ?:j , 2009, upon consideration
of the Petition to Strike Off and/or Open Confessed Judgment and For a Stay of Proceedings, it is
hereby ORDERED that:
The procedure outlined in the Order of April 14, 2009 in the case entered to number 09-
1005, Civil, shall be followed.
IT IS FURTHER ORDERED that, except as otherwise stated, all other proceedings
herein, including execution, are STAYED until further Order of this Court.
tribution:
Diane G. Radcliff, Esquire, , 3448 Trindle Road, Camp Hill, PA 17011,
dianeradcliff @ comcast.net
./ 4illiam L. Adler, ADLER & ADLER, 125 Locust St., Harrisburg, PA
wmadler@adlerandadler.net
17101,
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RE: Answer 12.08 Rent Confession of Judgment
Prepared by:
Diane G. Radcliff, Esquire
3448 Trindle Road, Camp Hill, PA 17011
Supreme Court ID # 32112
Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff@comcast.net
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.,
Plaintiff
V.
DAVID J. THOMAS and
6108 Carlisle Pike Restaurant, LLC,
Defendants
NO. 09-1005 CIVIL TERM
CIVIL ACTION - LAW
ACTION IN EJECTMENT
ANSWER TO DEFENDANTS' PETITION TO STRIKE AND/OR
OPEN CONFESSED JUDGMENT AND FOR A STAY OF PROCEEDINGS
AND NOW, this 2"d day of June, 2009, comes the Plaintiff, Barnett Property Management, Inc.,
by its attorney, Diane G. Radcliff, Esquire, and files this Answer to Defendant's Petition as
follows:
ANSWER
1. Admitted.
2. Admitted with the clarification that an amended complaint was filed on April 2, 2009
as instructed and permitted by this Honorable Court
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
-1-
ANSWER TO COUNT I - PETITION TO STRIKE OFF JUDGMENT
Violation of PA.R.C.P. 2951
7. The Plaintiff incorporates by reference the answers and averments set forth in
paragraphs 1 through 6 inclusive herein the same as if fully set forth at length.
8. Admitted with the clarification that it is believed and averred that the term
"instrument" referenced in Pa.R,C.P. (a)(2)(i) refers to the instrument containing the
right to confession of judgment and not to any collateral documents which have no
bearing on the confession.
9. Denied. It is denied that Plaintiff failed to file the instrument as required by Pa.R.C.P.
(a)(2)(i) in that Plaintiff filed the Lease Agreement as part of the Complaint which is
believed to be the "instrument" required by said rule. Additionally, it is averred that
this alleged error was corrected in the Amended Complaint, incorporated by reference
hereto, in which the signed 1 /4/08 Settlement Agreement was referenced and attached
as Exhibit "B".
10. The averment of paragraph 10 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that Plaintiff failed to comply with Pa.R,C.P. (a)(2)(i) for the reasons set
forth in paragraphs 8 and 9 herein incorporated by reference hereto.
11. Admitted.
12. Admitted
13. The averment of paragraph 13 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the warrant of attorney is exhausted by the entry of a confession by
judgment.
14. The averment of paragraph 14 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the exhaustion of the warrant of attorney precludes Plaintiff from
amending the Complaint.
Failure to Comply with Condition Precedent Prior to Entry of Judgment
15. Admitted.
16. The averment of paragraph 16 is a legal conclusion to which no response is required.
-2-
If it is determined that a response is required, Plaintiff denies the averments of
paragraph 16 of Defendants' Petition to Strike and/or Open Confessed Judgment
(hereafter " Defendant's Petition").
17. Admitted. It is admitted that Plaintiff did not allege the provision of the notice of
default in the Complaint of February 19, 2009, with the clarification however, that in
paragraphs 11 through 25 of the Amended Complaint, incorporated by reference
hereto, Plaintiff did allege the fulfilment of the condition precedent as provided in
paragraph 24 of the Lease in that Plaintiff alleged that Plaintiff provided Defendant
with notice of default and opportunity to cure prior to the entry of judgment by
confession.
18. The averment of paragraph 18 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the warrant of attorney is exhausted by the entry of a confession by
judgment.
19. The averment of paragraph 19 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the exhaustion of the warrant of attorney precludes Plaintiff from
amending the Complaint.
Accord and Satisfaction
20. The averment of Paragraph 20 is a conclusion of law to which no response is required.
If it is determined that a response is required, Plaintiff denies the averments of
paragraph 20 of Defendant's Petition.
21. Denied. It is denied that Defendant [sic Plaintiff] paid all delinquent rent for
December 2008 and January 2009 into Court and that Plaintiff refused to accept the
same. By way of further answer it is believed and therefore averred that:
a. As indicated on the "Past Due Rent and Cam Calculations", attached hereto,
marked Exhibit "A" and made a part hereof, Defendant did not pay into court
not all of the delinquent rent and cams for December 2008 and January 2009 as
there was no authority of the court to collect additional late charges in the bad
check criminal matter.
b. Payment into court to reduce changes from a misdemeanor to a summary
offense in a bad check criminal matter, which payment had not been received
by the time the confession of judgment was filed does not constitute a waiver
of the default nor serve as a basis for the denial of the entry of judgment by
confession or grounds to set aside nor open that judgment.
-3-
22. Denied. It is denied that Plaintiff accepted the rent for February 2009. On the
contrary, and as averred in paragraph 22 and 23 of the Amended Complaint,
incorporated by reference hereto, when Defendant tendered the February 2009 rent
payment he was specifically told that the payment would not be cashed and that his
delivery of the payment would not negate his prior default. By way of further answer
it is averred that:
a. As per the calculations set forth on Exhibit "A", incorporated by reference
hereto, the rent paid for February 2009 was $93.89 less than the amount due.
b. The acceptance of the rent and cams due for February 2009 was made after and
pursuant to the Court's Order dated April 7, 2009, which authorized Plaintiff to
accept said payment without being deemed a waiver of default.
23. Admitted with the clarification that:
a. As per the calculations set forth on Exhibit "A", incorporated by reference
hereto, the rent paid for April was $93.47 less than the amount due.
b. The acceptance of the rent and cams due for March and April 2009 was made
after and pursuant to the Court's Order dated April 7, 2009, which authorized
Plaintiff to accept said payment without being deemed a waiver of default.
24. The averment of paragraph 24 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that Defendants cured the default by paying only part of the sums due for
December 2008 and January 2009 into court.
Violation of PaRCP 2971
25. Admitted with the clarification that this requirement was corrected in the Amended
Complaint, specifically paragraph 28 thereof, incorporated by reference hereto, which
provides that the Lease and 1/4/08 Settlement Agreement involves a commercial lease
of real property and judgment is not being entered against a natural person in
connection with a residential lease.
26. The averment of paragraph 26 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the warrant of attorney is exhausted by the entry of a confession by
judgment.
27. The averment of paragraph 27 is a conclusion of taw to which no response is required.
-4-
To the extent it may be determined that a response to said averment is required, then
it is denied that the exhaustion of the warrant of attorney precludes Plaintiff from
amending the Complaint.
Violation of PaRCP 2952(6?
28. The averment of 28 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 28
of Defendant's Petition.
29. Denied. It is denied that Plaintiff was required to allege the fulfilment of the condition
precedent as provided in paragraph 24 of the Lease. By way of further answer, as
averred in paragraphs 11 through 25 of the Amended Complaint, incorporated by
reference hereto, Plaintiff did allege the fulfilment of the condition precedent as
provided in paragraph 24 of the Lease in that Plaintiff alleged that Plaintiff provided
Defendant with notice of default and opportunity to cure prior to the entry of
judgment by confession.
30. The averment of paragraph 30 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the warrant of attorney is exhausted by the entry of a confession by
judgment.
31. The averment of paragraph 31 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the exhaustion of the warrant of attorney precludes Plaintiff from
amending the Complaint.
Failure to Reaffirm Confession of Judgment in Addendum to Lease
32. Admitted.
33. Denied. It is denied that Defendant sent a signed copy to Plaintiff and Plaintiff never
returned a fully executed copy to Defendant. On the contrary, it is averred that the
1/4/08 Settlement Agreement was signed by Plaintiff's agent and attorney first, and
that Defendant signed it in the Agent's office and was provided with a copy upon his
signing.
34. Denied. It is denied that a copy of the 1/4/08 Settlement Agreement was attached to
Defendant's Petition.
35. Admitted with the clarification that there is no requirement for the 1/4/08 Settlement
-5-
Agreement to referenced the warrant of attorney in that the 1/4/08 Settlement
agreement only changed the date of payment of the rent and provided Defendant with
a reduction on past due amounts provided that Defendants complied with the terms of
the Lease and the 1/4/08 Settlement Agreement.
36. Denied. It is denied that warrant of attorney was not incorporated by reference in the
1/4/08 Settlement agreement. On the contrary, it is averred that paragraph 8 of the
1/4/08 Settlement Agreement specifically provided that acceptance of payment after
its due date will not be considered to be a waiver of any of the rights and remedies
provided in the Lease, which by reference and inference would include the warrant
of attorney, a remedy included in the Lease.
37. Admitted with the clarification that there is no requirement for the 1 /4/08 Settlement
Agreement to reaffirm the Warrant of Attorney in the 2005 Lease in that the 1/4/08
Settlement agreement only changed the date of payment of the rent and provided
Defendant with a reduction on past due amounts provided that Defendants complied
with the terms of the Lease and the 1/4/08 Settlement Agreement.
38. The averment of 38 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 38
of Defendant's Petition.
Lack of Knowing Waiver of Rights
39. The averment of 39 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 39.
By way of further answer, it is averred that Defendants were at all times represented
by legal counsel in the negotiation and execution of the Lease and therefore were fully
aware of all of his and its legal rights and obligations arising out of the Lease.
40. Denied. It is denied that the confession of judgment was "buried" in paragraph 20 of
the Lease, but rather it is averred that it is plainly set forth in paragraph 20 of the
Lease.
41. Admitted with the clarification that distinctive fonts for confession of judgment clause
are not required for the clause to be valid.
42. Admitted with clarification that there is no requirement for Tenant to acknowledge
that he has waived his right to notice in such manner for the clause to be valid.
43. Denied. It is denied that no separate explanation of confession of judgment clause
was given to Tenant. By way of further answer, it is averred that Tenant was at all
times represented by legal counsel in the negotiation and execution of the Lease and
-6-
therefore was fully aware of all of his legal rights and obligations arising out of the
lease.
Improper Verification
44. Admitted.
45. Admitted with clarification that Attorney for Plaintiff verified the Complaint as
Property Management Agent for the Plaintiff and not as its Attorney. By way of further
answer it averred that the alleged error in the verification was corrected by the filing
of the Amended Complaint which was verified by Plaintiff's Assistant Property
Management Agent, which verification is incorporated by reference hereto.
46. The averment of 46 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 46
of Defendant's Petition.
47. The averment of 47 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 47
of Defendant's Petition.
48. The averment of paragraph 48 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the warrant of attorney is exhausted by the entry of a confession by
judgment.
49. The averment of paragraph 49 is a conclusion of law to which no response is required.
To the extent it may be determined that a response to said averment is required, then
it is denied that the exhaustion of the warrant of attorney precludes Plaintiff from
amending the Complaint.
COUNT II - PETITION TO OPEN JUDGMENT
50. The Plaintiff incorporates by reference the answers and averments set forth in
paragraphs 1 through 49 inclusive herein the same as if fully set forth at length.
51. The averment of 51 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 51
of Defendant's Petition.
52. The averment of 52 is a legal conclusion to which no response is required. If it is
-7-
determined that a response is required, Plaintiff denies the averments of paragraph 52
of Defendant's Petition.
53. The averment of 53 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph
536 of Defendant's Petition.
COUNT III - REQUEST FOR STAY OF PROCEEDINGS
54. The Plaintiff incorporates by reference the answers and averments set forth in
paragraphs 1 through 53 inclusive herein the same as if fully set forth at length.
55. The averment of 55 is a legal conclusion to which no response is required. If it is
determined that a response is required, Plaintiff denies the averments of paragraph 55
of Defendant's Petition.
56. Admitted.
WHEREFORE the Plaintiff requests this Honorable Court to dismiss Defendants' Petition to
Strike and/or Judgment.
Respectfully submitted,
1
G. 114CLIFF, ESQUIRE
3448 Trine Road
Camp Hill, PA 17011
Phone: (717) 737-0100
Supreme Court ID # 32112
Attorney for Plaintiff
c
-8-
VERIFICATION
I, Deborah L. Donley, Assistant Property Manager for Plaintiff, being duly authorized
to act on behalf of Plaintiff, and being personally familiar with at( of the facts alleged herein,
verify that the statements made in this Answer are true and correct. I understands that false
statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to
unsworn falsification to authorities.
'04?? iz I
, X4
DEBORAH L. DONLEY
-9-
CERTIFICATE OF SERVICE
I, DIANE G. RADCLIFF, ESQUIRE, hereby certify that on June 2. 2009, 1 served a true
and correct copy of the Plaintiff's Answer upon Defendant's Attorney, by mailing same by
first class mail, postage prepaid, addressed as follows:
William J. Adler, Esquire
ADLER Et ADLER
125 Locust Street
Harrisburg, PA 17101
DIAN C F, ESQUIRE
3 Trindle Ro
Camp Hill, 17011
Phone: (717) 737-0100
Fax: (717) 975-0697
Supreme Court ID # 32112
Dave Thomas - Good Hope Plaza - Past Due Rent and Cam Calculations
Description Amount Due Total Amount
December Base Rent $3,738.75
December Cams $2,000.00
Bank Service Charge $20.00
December 1 time late fee $250.00
December Rent daily late fee $101day 12/11/08 to 3/16/09 (96 days) $960.00
Payment from Court Check Date 3/26/09 ($5,758.751
Total due For December Rent, CAMS and Late Charges as of 3/17109 $1,210.00 $1,210.00
January Base Rent $3,832.22
January Current Cam Charges $2,000.00
January Late Fees $290.00
Bank Service Charge $20.00
January One Time Late Fee $250.00
January Daily late fee 1/11/09 to 3116/09 (65 days) $650.00
Payment from Court Check Date 3126109 6142.22
Total due for January Rent, CAMS and Late Charges as of 3/17/09 $900.00 $900.00
February Rent $3,832.22
February Current Cams $2,000.00
February Payment # 406166 ($5,738.33)
Total Due for February Rent & CAMS as of 3/17109 $93.89 $93.89
March Rent $3,832.22
March Current Cams $2,000.00
One Time Late Fee $250.00
March Payment ($6,082.22
Total Due for March Rent & CAMS $0.00 $0.00
April Rent $3,832.22
April Current Cams $2,000.00
One time late Fee $250.00
April rent payment 082.22
Total Due for April Rent & CAMS $0.00 $0.00
May Rent $3,832.22
May Current Cams $2,000.00
One time late Fee $250.00
Daily Late Fee $10.00
May rent payment ($5,738.75)
May Late Fee Payment 26 .00
Total Due for May Rent and CAMS $93.47 $93.47
Cam Payment Due 3131109 $3,347.31 $3,347.31
Total Due $5,644.67
Exhibit "A"
f?r ??- ?,.,.,; ' u'h'f
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_. "?:
__,.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARNETT PROPERTY MANAGEMENT, INC.,
Plaintiff
V.
DAVID J. THOMAS and
6108 Carlisle Pike Restaurant, LLC, .
Defendants .
NO. 09-1005
CIVIL ACTION - LAW
ACTION IN EJECTMENT
PRAECIPE
TO THE PROTHONOTARY OF THE SAID COURT:
Please mark the above captioned action settled and discontinued.
Respectfully Submitted,
NE G. CLIFF, ESQUIRE
(Attor egistration No 32112)
3448 Trindle Road, Camp Hill, PA 17011
Email: dianeradcliffC@comcast.net
Phone: (717) 737-0100 • Fax: (717) 975-0697
Counsel for Plaintiff
Dated: June 8. 2009
FILE( -CI:FI E
OF 7'ME PP7 NOTARY
2009 JUN - 9 Phi 12. 2
PE?wNSYLVANIA
BARNETT PROPERTY
MANAGEMENT, INC.,
Plaintiff
V.
DAVID J. THOMAS and
6108 CARLISLE PIKE
RESTAURANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
COMPANY, LLC, NO. 09-1005 CIVIL TERM ?
Defendant NO. 09-2082 CIVIL TERM
ORDER OF COURT
AND NOW, this 10`h day of June, 2009, upon consideration of the a
from Diane G. Radcliff, Esq., attorney for Barnett Property Manageme
argument scheduled for June 10, 2009, is cancelled and all outstanding 1
motions are deemed moot.
BY THE COURT,
ZDiane G. Radcliff, Esq.
3448 Trindle Road
Camp Hill, PA 17011
Attorney for Plaintiff
/William L. Adler, Esq.
125 Locust Street
Harrisburg, PA 17101
Attorney for Defendant
:rc
r?111:1 t LL
:ached letter
it, Inc., the
etitions and
DIANE G. RADCLIFF, ESQUIRE
3448 Trindle Road, Camp Hill, PA 17011
Phone: 717-737-0100
Fax: 717-975-0697
E-mail: dianeradcliff@comcast.net
June 8, 2009
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re: BPM vs. David Thomas and 6108 Carlisle Pike Restaurant Company L
Cumberland County Confession of Judgment No. 09-1005
Cumberland County Confession of Judgment No. 09-2082
Dear Judge Oler:
I am pleased to advise you that the parties resolved their differences in the above
referenced cases and executed the attached Stipulated Agreement which I will be filing
of record. I am, therefore, requesting that you cancel the hearing schedule in these
cases for June 10, 2009 commencing at 1:30 p.m.
Very truly yours,
DIA , ESQUIRE
1)GRIdr
Enclosure(s): StiputatedAyreement
Transmitted to Addressee by mail and email
cc: Barnett Property Management, Inc. w/enct by mail
William L. Adler, Esquire w/encl by mail and email
File
RLfD-L-.st-'r+cC
OF THE R,'- 7; Nlr)TARY
2099 JUN I I Ali 9: 20