HomeMy WebLinkAbout04-2369
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 64 - ~(,. 9 Ciol.L <-rEn....."{
: CNIL ACTION - LAW
HAROLD SWIDLER,
vs.
WALTER & JACKSON, INC.,
Defendant
: JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or property or other rights
important to you.
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
2 Liberty Avenue
Carlisle, P A 17013
800/990-9108
304932-1
HAROLD SWIDLER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO.
CNIL ACTION - LAW
WALTER & JACKSON, INC.,
Defendant
JURY TRIAL DEMANDED
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los
pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando
personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier
otra reclamaci6n 0 remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos
importantes para usted.
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA. EST A
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI US TED NO PUEDE P AGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSffiLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE
CUALIFICAN.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
800/990-9108
304932-1
HAROLD SWIDLER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 0 t( -- ,?l... '3 tu c;
vs.
CNIL ACTION ~ LAW
WALTER & JACKSON, INC.,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
AND NOW COMES Plaintiff, Harold Swidler ("Mr. Swidler") by and through
his attorneys, Metzger Wickersham Knauss & Erb, P.C., and files the within Complaint and in
support thereof state the following:
L Plaintiff Harold Swidler is an adult individual who resides at 315 Washington
Lane, Carlisle, Cumberland County, Pennsylvania 17013.
2. Defendant, Walter & Jackson, Inc. ("W&J"), is, upon information and belief, a
Pennsylvania corporation with a principal place of business, and a registered address with the
Pennsylvania Department of State located at East Gay St., Christiana, Lancaster County, PA
17509, with a mailing address of P.O. Box 160, Christiana, PA 17509.
3. Mr. Swidler is the owner of certain premises located in Cumberland County
known as 876 Harrisburg Pike, North Middleton Township, Carlisle, PA 17013 (the "Premises")
which he rented to Defendant under a Commercial Lease (the "Lease") dated January 7,2000, a
true and correct copy of which is attached hereto as Exhibit "A" for the period February 1, 2000
through January 31, 2005.
304932-1
4. Defendant was in actual possession of the Premises prior to February 1,2000 as
Defendant was the successor in interest to a prior tenant and then was in possession of the
Premises under a month-to-month tenancy until the Lease came into full force and effect on
February 1, 2000.
5. Defendant continued in actual possession of the Premises until some time in late
2002, when Defendant's Lumber and Home Supply Store closed and for a short period of time
thereafter while Defendant was selling paint only from the Premises.
6. While Defendant was in actual possession of the Premises, Defendant faithfully
and timely paid all its rent to Plaintiff and its other financial obligations under the Lease.
However, Defendant's last rent payment to Plaintiff was made in April, 2003 and no rent
payments have been made since that time.
7. On or about the time Defendant left and abandoned the Premises, Defendant sent
to Plaintiff a letter indicating that due to slow cash flow in Defendant's business, they requested
a 30 to 60 day extension of time to pay the rent. However, Defendant paid no more rent to
Plaintiff and Plaintiff responded with a letter dated September 26, 2003, demanding back due
rent and advising Defendant of Plaintiff's intentions with respect to the Lease, a true and correct
copy of which is attached hereto as Exhibit "B".
8. Defendant does not deny its obligation to pay rent under the Lease as is evidenced
by Defendant's Letter to Plaintiff dated December 23,2003, a true and correct copy of which is
attached hereto as Exhibit "C".
304CZ32-1
9. Defendant does not deny that it has vacated and abandoned the Premises as is
evidenced by Defendant's Letter to PPL Electric Utilities dated February 25, 2004, a true and
correct copy of which is attached hereto as Exhibit "D".
10. Paragraph 2 of the Lease requires Defendant to remain in the Premises and
Defendant's failure to do so or to be in default for non-payment of rent, provides Plaintiff with
the right to accelerate all rents due and owing through the remainder of the Lease. The total
amount due and owing for accelerated rent under the Lease for the period May I, 2003 through
January 31,2005 is $140,783.75.
11. It is believed, and therefore averred, that Defendant has also failed to pay other
sums due and owing under the Lease to wit: Utilities per paragraph 6 of the Lease and Real
Estate Taxes per paragraph 23 of the Lease.
12. It is believed, and therefore averred, that Defendant has also failed to maintain
insurance on the Premises per paragraph 20 of the Lease.
COUNT I - BREACH OF CONTRACT/LEASE
13. The averments of paragraphs 1-12 are incorporated herein by reference as if more
fully set forth herein.
14. W&J has breached its Lease with Mr. Swidler as follows:
a. By failing to pay rent in a timely fashion;
b. By failing to pay rent after demand has been made for payment;
c. By removing from the Premises prior to the expiration of the term of the
Lease.
d. By failing to pay utilities and/or real estate taxes at the Premises;
304932-1
e. By failing to maintain insurance on the Premises.
IS. Plaintiff has been damaged by Defendant's breach as more specifically set forth
above.
WHEREFORE, Plaintiff, Harold Swidler demands judgment in his favor against the
Defendant, Walter & Jackson, Inc. for damages as a result of the breach of contract, in an
amount which exceeds the limit of compulsory arbitration in Cumberland County, Pennsylvania,
plus costs, interest, reasonable attorneys' fees and other just relief that the Court deems
appropriate.
METZGER WICKERSHAM KNAUSS & ERB, P.C.
~W~ba_y.E""
Supreme Court LD. # 58799
P. O. Box 5300
Harrisburg, P A 1711 0
(717) 238-8187
Attorney for Plaintiff, Harold Swidler
~p~ft~
304932-1
VERIFICATION
I, Harold Swidler, verify that the statements made in the foregoing Complaint are true
and correct to the best of my knowledge, infonnation and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn
falsification to authorities.
~
Harold Swidler
Date: ~o/~ 00,7
301681-1
Exhibit A
Commercial Lease
R.\?IIJ
This Agreement of Lease made this ~ of January A.D. 2000. Between Harold Swidler , Lessor,
party of one part, and Roloor: D, W.dl\.., dIbIa Walter and Jackson. Inc., Lessee, of the other part,
Witnesseth, that the said party, in consideration of the rents and covenants hereinafter mentioned, does
demise and lease unto the said second party, to be used as a retail hardware and lumber store, the premises
situated in the North Middleton Township, County of Cumberland and State of Pennsylvania described as
follows, to wit: 876 Harrisburg Pike
To have and to hold unto the said second party, subject to the conditions of the Agreement, for the term
Beginning on the I" day of February, 2000, and ending on the 31" day ofJanuary, 2005.
In Consideration of Which the said second part agrees that it will pay the said first party for the use of
said premises, the sum of $345,695.00 Dollars and other consideration hereinafter mentioned payable as
follows: viz, in monthly installments of (See Rider) Dollars in advance on the first day of each calendar
month during the term.
1lIE DEMISE HEREIN CONTAINED is made and accepted on the following express conditions:
1. No waste shall he committed; and at the end of the said term the demised premises shall he delivered
in as good condition as at the commencement thereof; ordinary wear and tear and unavoidable damage
by fire, tempest and lightning excepted. The rent reserved shall he promptly paid on the several days
and times herein specified without deduction or abatement, at the residence or principal office of the
said Lessor.
2. If the Lessee should remove or prepare to remove, or attempt to remove from the premises hereby
leased before the expiration of the term or at any time during the continuance ofthis lease, or if the
Lessee shall be in defauh in the payment of any installment of rent for the period of ten days, or should
there be a defauh in any of the covenants or conditions as herein contained, then in that event, rent for
the duration of the lease is accelerated and shall immediately become due and payable and shall be
collectible by distraint or otherwise.
3. At the expiration of the term the demised premises will be restored at the option of the Lessor in the
same condition in which they were at the commencement of the term, and the cost of the said
restoration shall he paid by the Lessee, which cost will be treated as additional rent due and owing
under the terms of the lease.
4. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the
failure of the Lessor, if said failure is not due to any fault on his part, to give possession of the
premises herein demised, at the time agreed upon.
5. Said Lessee shall not carry on any unlawful or immoral business in or about the demised premises, and
shall not carry on any business which will endanger the building from fire or cause a forfeiture of any
fire insurance that the Lessor has or may hereafter have on said building.
6. The Lessee agrees to pay all bills which may be incurred for Iigbt, heat, or power used or consumed
upon the demised premises, and also all bills for water rent which may accrue for water used during
the term of the lease. The Lessor shall not be responsible in any way in the event that the supply of
heat is cut off by reason of any cause beyond the control of the Lessor. And the Lessee does hereby
release the Lessor from any damage which may result to him by reason of the failure of the supply of
heat. Should the Lessee fail to pay any bills as aforesaid, the Lessor shall have the right to pay the
same, and the amount as paid shall he chargeable to the Lessee as additional rent. The Lessee agrees
to keep the plate glass insured at his own risk.
7. The Lessee agrees to keep the premises including the paved parking lot in a good condition of repair.
All refuse of any kind shall he removed from the premises at the cost of the lessee at least once a week
or oftener, if need be. All snow shall be cleaned off from the sidewalks before it shall have frozen and
become hardened. Should the Lessee fail to comply with the proviSions of this clause of the lease, the
Lessor may enter the premises and make said repairs or remove said refuse and do all other things as
herein provided to be done by the Lessee at the expense of the Lessee, ..... said expense thus incurred
may also be collected as additional rents under the lease.
8. In the event of the filing of a petition in bankruptcy, whether voInntary or involuntary, by or against
the Lessee herein, there sball beoome due immediately upon the filing of said petition, rent for twelve
montbs, at the rate that the rent is then payable under this agreement of lease, and the Lessor shall have
the further right in said event, to forfeit and terminate this lease. The said forfeiture to be effected by
giving notice in writing to the r.es- herein or to the person then in charge of the demised premises.
Should an execution issue against the Lessee out of any court, twelve months' rent shall thereupon
beoome due and owing.
9. In the event that the premises occupied by the Lessee sball during said tenn be destroyed by fire,
thereby making the premises untenantable and unfit for occupancy so that the owners thereof deem it
advisable to construct a new building, the Lessor herein shall thereupon have the right to cancel and
terminate this lease upon giving fifteen days' notice in writing to the Lessee herein, and the term of
this lease shall hereupon cease at the expiration of fifteen days after the expiration of said notice. In
the event, however, that the said building shall be damaged by fire, whether or not destroyed, the
Lessee, from the proceeds of any insurance, WIll thereupon cause the same to be repaired and restored
to its fonner condition, they to act with the greatest possible diligence. Lessee herein agrees that in the
event that the building shall be so partially destroyed by fire as to render said repairs necessary that the
said Lessor, if Lessee does not make such repairs, shall thereupon have the right through his servants
and agents, and that the servants and agents of any contractor employed by the Lessor shall have the
right to take possession of the premises for the purpose of making such repairs, and the so taking of
possession shall not be an eviction of the Lessee herein and shall in no manner effect this term of lease.
Should the Lessee tail to comply with the provisions of this clause of the lease, the Lessor may enter
the premises and make said repairs or remove said refuse and do all other things as herein provided to
be done by the Lessee at the expense of the Lessee, and said expense tOOs incurred may also be
col1ected as additional rents under the lease.
10. The said Lessee hereby confesses judgment for the rent reserved under this agreement oflease,
together with an attorney fee of five per cent for col1ection, and execution may be issued thereon from
time to time for any rent due and owing under this lease, provided Lessee is in default after ten (10)
days written notice thereof. and judgment in ejectment as herein provided may be entered concurrently
therewith.
I I, At the end of the said term, whether the same shall be determined by forfeiture or expiration of the
term, or upon the breach of any of the conditions of this lease, it is agreed that an amicable action of
ejectment may be entered in the Court of Common Pleas of Cumberland County. in which the Lessors.
their beirs or assigns, shall be plaintiff, and the Lessees, and all wbo come into possession during the
term or continuance of this lease or under the Lessees, shall he defendants, that judgment may be
entered thereupon in favor of the plaintiffs, without leave of court, for the premises and above
desenoed to have the same force and effect as if a summons in ejectment had been regularly issued,
legal1y served and returned and that writs of habere filcias possessionem with clause offi. fa. For all
costs, may be issued forthwith, waiving all errors and defects whatsoever in entering said judgment,
also waiving right of appeal, writ of error or stay upon any writs of habere facias possessionem which
may issue upon the same.
12. And further, it is agreed and understood that the lessor, his heirs, or assigns, may enter the premises
hereby leased at any time during the term, either in the presence or absence of the said Lessee for the
purpose of ascertaining whether during the last year of the term the said premises are kept in good
order and repair during business hours. Further, that the Lessor reserves the right to display a ''for rent
or sale" card upon tbe said premises, and to show same to prospective tenants or buyers.
13. All damages or iI\juries done to the said premises shall be repaired by the Lessee herein. And the
Lessee covenants and agrees to make said repairs upon five days' notice given to him by the Lessor,
and if he shall neglect to make said repairs or commence to make the same promptly or within ten days
after said notice as given him, the Lessor shaI1 have the right to make the said repairs at the expense
and cost of the Lessee. and the amount thereof may be collected as additional rent accruing for the
month following the date of the said repairs, and if the said expense is made at the expiration of the
term, then the cost so made may be collected by the landlord as an additional rent for the use of the
premises during the entire term.
14. The said Lessee hereby accepts notice to quit, remove from, and surrender up possession of tile said
demised premises to the said lessor, his heirs or assigns, at the expiration of the said term, whenever it
may be determined, whether by forfeiture or otherwise, without any further notice to that effect, al1
further notice being hereby waived. And on failure to pay rent due, fOr the space of ten days after
written notice thereof besides the distress, or upon breach of any other condition of this lease the
Lessee shall be a non-tenant, subject to dispossession by the said Lessor, without further notice or
process oflaw, with release of error and of dlllDllgeS, and the said Lessor may re-enter the premises and
dispossess the Lessee without thereby beooming a trellpa~. And the Lessee hereby WIlives the
benefit of all el!:emption laws of this Commonwealth that now are in force or may hereafter be in force,
or in any action or actions that may accrue on this contract,. and in any distress or distress that may be
made for collection of the whole of said rent or any part thereof. Waiving also the benefit of stay of
execution, inquisition, extension, and all errors, in all proceedings arising out of this lease.
IS. No showcase, sign or hanging or protruding sign or permanent obstruction of any kind shall be kept or
maintained by the tenant on the reservation or sidewalk in front of the demised premises, and space to
be used only for purpose of ingress and egress
16. The party of the second part will bear, pay and discharge when and as the same become due and
payable all judgment and lawful claims for damages or otherwise against said parties of the first part
arising from its use or occupancy of said leased premises or the sidewalk in front and side of said
premises, and will assume the burden and expense of defending all such suits, whether brought before
the expiration of this lease and will protest, indemnify and save hannless the said party of the first part,
his agents, servants, employees and public at large by reason of or on account of the use or misuse of
the premises hereby leased or the sidewalk in front of the said premises, or any part thereof, due to the
negligence of the Lessee or his agents.
17. And in consideration of securing the within lease at the above stated rent, said Lessee does hereby
release and discharge said Lessor, his heirs or assigns, from any and all liability for damage that may
result from the bursting, stoppage and leakage of any _ pipe, gas pipe, sewer, basin, water-<lloset,
steam pipe and drain, and from all liability from any and all damage caused by the water, gas, steam,
waste, and contents of said water pipes, steam pipes, sewers, basins, water -closets and drains.
18. It is expressly understood by the parties that tbe whole agreement is embodied in this agreement and
that no part or item is omitted.
19. The second party does also hereby waive any and a1] demand for payment of the rent herein provided
for, either on the day due or on any other day, either on the land itself or in any other place, and agrees
that such demand shall not be a condition of re-entry or of recovery of possession without legal process
or by means of any action or proceedings whatsoever.
20.
The Lessee, at his sole cost and expense, but for the rnutuaI benefit of Lessor and Lessee, shall
maintain personal injury, fire, and property damage liability insurance against claims for bodily injury,
death or property damage, occurring thereon, in or about the demised premises and on, in or about the
adjoining streets, property and passageways, such insurance to afford minimum protection during the
tenn of this lease, of not less than Five Hundred Thousand (SSOO,OOO.OO) Dollars in respect of bodily
injury or death to anyone person, and of not less than Two Million (S2,OOO,OOO.OO) Dollars in respect
of any one accident, and of not less than Eight Hundred Thousand (SSOO,OOO.OO) Dollars for property
damage. A valid and enforceable policy evidencing such insurance, issued by an insurer approved in
wiring by the Lessor. and naming Lessor and Lessee as the insured as their respective interests may
appear, shall be delivered to the to the commencement of this Lease.
21. Lessee shall be responsible fOr major structural repairs to the building including the roof; and general
maintenance (exterior and interior) of the building and the maintenance of the outside areashal] also be
the responsibility of the Lessee. Lessee may make improvements to the building and the property only
with the written consent of the Lessor, which consent shall not be unreasonably withheld.
22. Lessee shal] have the right to assign this lease or sublet the entire demised premises, only upon the
written approval of Lessor, which approval will not be unreasonably withheld, provided however,
that notwithstanding any such assignment or subletting, lessee shall not be released from the
perfonnance of all of the terms, covenants and conditions of this Lease on the part of the Lessee
to be performed.
23..AlI real estate taxes shall be paid in a timely manner by the Lessee. Should the Lessee fail to
comply with the provisions of this clause of the lease, the Lessor may impose such expenses to be
collected as additional rents under the lease.
24. It is understood that the demised premises consists of the existing building at 876 Harrisburg Pike and
east to the Lessor's easternmost line of the property. The western boundary of the demised premises is
" \,
the western edge of the existing building. AIry land west of the demised property, which belongs to the
Lessor and is not subject to Lessor's lease for 876 Harrisburg Pike, may only be used by Lessee as an
easement for its deliveries and shipping. ingress and egress only
25. In the event that the Lessee bolds over past the term of the lease, a month-to-month tenancy sball be
deemed to be the relationship of the parties, with an increase in the basic rent offifty cents ($ .50) per
square foot greater.
Now, Therefore, the parties, intending to be legally bound hereby agree as follows:
I. Tbe term of the leasesball be for a period offive years, ending on January 31, 2005. The basic rent
sball be determined fortbat following year On February I" of that year.
2. From February I, 2000, through January 31, 2001. the basic amwal rent shall be $58,000.00, per year.
payable in equal monthly installments of $4,833.33, in advance and without demand, on the first day
of eacb calendar month beginning February I, 2000.
3. From February 1, 2001, through January 31,2002, the basic annual rent shall be $60,000.00, per year,
payable in equal monthly installments of $5,000.00, in advance and without demand, on the first day
of eacb calendar month beginning February I, 200 I.
4. From February 1,2002, through January 31, 2003, the basic annual rent shall be $68,000.00, per year,
payable in equal monthly installments of $5,666.66, in advance and without demand, on the first day
of each calendar month beginning February 1, 2002.
5. From February 1,2003, through January 31, 2004, the basic annual rent sball be $75,645.00, per year,
payable in equal monthly installments of $6,303.75, in advance and without demand, on the first day
of each calendar month beginning February 1, 2003.
6. From February I, 2004, through January 31, 2005, the basic annual rent shall be $84,050.00, per year,
payable in equal monthly instalJments of $7,004.16, in advance and without demand, on the first day
of each calendar month beginning February I, 2004.
IN WITNESS WHEREOF, the parties bereto have hereunto set their hands and seals the day and year
frrst above written.
WI. ;;rSS.: fihi
~;
/
,,,./
A'ITEST:
~~ JACKSON, INC
BY: - ~
ROBERT B. WALTER, PRESIDENT
~~ultJ5(v-
Exhibit B
(C
[J)
~
v
September 26, 2003
Mr. Richard Mosteller
Walter & Jackson, Inc.
PO Box 160
Christiana, P A 17509
10_.-'..
SINCE 1888
3211 North Front Street
P.o. Box 5300
Harrisburg, PA 17110-0300
717-238-8187
Fax: 717-234-9478
Other OffiC'es
Colonial Park Mechanicsburg
717.652.7020 717-691-5577
Millersburg Shippensburg
717-692-5810 717.530.7515
Please be advised that 1 represent Harold Swidler, Lessor under the commercial lease dated
January 7, 2000, ("Lease") by and between Mr. Swid1er and Walter & Jackson, Inc., as Lessee,
for the property located at 876 Harrisburg Pike, North Middleton Township, Cumberland
County, Pennsylvania (the "Premises").
Dear Mr. Mosteller:
Mr. Swidler is quite concerned about the situation at the Premises. As you know, the store was
closed in late 2002. Walter & Jackson had always been a good tenant in the past, paying their
rent on time.
At the time the store closed, it was unlikely that either Lowe's or Home Depot or any other
competitor would be able to open a store in the Carlisle area before the expiration of the lease in
2005. However, your decision to close the store, was obviously a business decision.
I would like to call to your attention paragraph two of the Lease which requires the Lessee to
continue to operate at the Premises, otherwise acceleration of rent is authorized. We recognize
that since the business closed, the Lessee had been selling paint from the back of the Premises to
contractors only, and that an argument could be made that the Lessee was not in violation in
paragraph two of the Lease. Since rent was being paid on time, it was not necessary to raise the
issue.
It has come to our attention that the Lessee is no longer continuing this practice and recently
leased a building in the Borough of Carlisle to sell paint. This seems like a foolish way to
proceed, particularly because of the rent obligation to my client, but that is, again, your business
decision.
No rent has been paid since April and my client received a letter from the Lessee client
indicating that because of slow cash flow, they would be 30 to 60 days late in making any
payments. However, rent for the months of May, June, July, August and September have not
been paid and are still owing, long beyond the 30 to 60 day period requested.
289201.1
James F. Carl
Edward E. Knauss, IV'*
Jered L. Hod<
Steven P. Miner
Gark DeVere
Milton Bernstein
Broce J. Warshawsky
Francis J. Lafferty, N
David H. Martineau
AndrewW.Norfleet
Andrew C. Spears
YoungwSuh KOD
~ Board Certified in civil
trial law and advocacy
by the Naticmal Board
of Trial Advocacu
We have grave concerns about the financial health of Walter & Jackson, Inc. and are prepared to
move forward in exercising our rights under the Lease. Mr. Swidler is unwilling to compromise
on any amounts due and owing, and hereby demands that 5 months rent, for the period May
through September, 2003, be paid in full in the amount of $31,518.75, on or before September
30, 2003. If such amount is not paid, we will declare Walter & Jackson in breach of the lease,
exercise our right to accelerate rent and seek payment of the entire amount of rent due up to and
including the end of the term, January 31, 2005, a period of twenty-one (21) months. The total
amount due and owing will be $140,783.75. You will have ten (10) days from September 30,
2003, or until October 10, 2003, to remedy the situation.
Your immediate attention to this matter is greatly appreciated.
Very truly yours,
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
Bruce 1. Warshawsky
Special Counsel
BJW:tmn
Enclosure
cc: Harold Swidler
28920].]
Exhibit C
FROM
FAX tiJ._:
Dec. 31 2003 09:50AM P2
~TER&.JACKSoN,INC.
P.O. Box .60 - Cllrlstiua, PA 17SO? ~ (610) SP3-S19S _I.. (6'0) !9J.7492
December 23, 2003
Mr. Harold Swidler
315 Washington Lane
Carlisle, PA 17013
Dear Mr. Swidler,
Good news about the rent I have gotten the bank to agree to pay the landlord at
Lancaster to get out of the remaind<:r of the lease. The landlord agreed to 1/6 of the total to
be paid by the end of this year.
I would like to make the same offer to you. We owe yoi.1 $53,037.50 for 2003 and
$84,050 for 2004 for a total of$137,OS7.S0. A sixth ofthat total would be $22,847.91.
Please call me ASAP so I can call the bank and try to get their approval to pay this amount.
I tried calling you home at 711-2434563 but k<:pt getting an answering system that
would not accept your telephone number. Please forward a telephone number where 1 can
reach you.
If yOll have any questions about this letter please contact me at the above telephone
numbes- or fax number.
Sincerely,
6~~
Richard Mosteller
Treasurer
Exhibit D
FRO~l :
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Mar. 02 2004 06:54PM Pi
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RR&)ACKSON, INC.
P.O. Box 160 . Christiana, PA 17509
610.593.5195
February 25, 2004
PPL Electric Utilities
Commercial Services
...827-Hall..~manRoad
Allentown, P A 18104-9392
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RE: Property located at 876 Harrisburg Pike, Carlisle, PA 17013
PPL Account #43090-71005
Dear Sirs:
I am writing in reference to the phone conversation that I had with
Harold Christian on 2/24/04. Walter and Jackson had leased this property
from Harold Swidler in the past. We are no longer renting this building so
therefore the bill dated February loth and all future bills should be mailed to
him. His address is: Mr. Harold Swidler
3 15 Washington Lane
Carlisle, PA 17013
1 will forward a copy of the invoice dated February lOth to Mr. Swidler for
payment. If you have any questions please call Richard Mosteller or myself
at (610)593-5195.
Sincerely,
Naja Hart,
Walter & Jackson, Inc.
CC: Harold SWldler
PPL E1mri. Utilities
lillIlisr,;;aland -.. ..
CQD1IDt'..aal xnlcl':;
327 lioUSrn.1I Rd.
AU,=u\Qwn. fA
ISl04--%92
1-888-U0-9991 or
484~-4918
iOl@pplweb.coJU
General
Information
NeXllllcter
reading
01\ ()tl.Dout
MarlS
Current Charges
Ch..rg... for -I'I'L ELl<;CnUC lITILl'l'IM.
(".ene-ral ~rvice Rate: (i83 for JUIl 13 . Feh"iO
Di.lribu!lon ('ban,.:
2S.0 KW al $1:'84OOOO(J() pc' KW
480 KWH at O.IS100000e pcr KWH
Tran.milSSion Char~:
. . 480 KWH at 0.~200Cl00<1 per KWH
C<n:J!Iletitive Transition Charge:
4&J KWH at O.33200000e per KWH
Intangible Tnll\3ilion GbMge: .
480 'KWH aI1.227woou., pcr KWH
C"..n.ratiqn Chlllge:
CamIIY.!\!l.d Energy
.0 KW: jlt $ 4.ITJOOOOOO p.r KW
KWH at 4.2660??oo" per KWH
I'A Tax Adiu.tment Surcharge.t 1.16000000%
PA Sale. 11IX
1'",.1 PPL ELECT'RIC UnUTlE..'l Charge.
Current Charges
0l1l.1'J:l)S t~r - PPL J<:LEC'fRIC UTILI'I'IES
Area Ll~hhnll. Rate: SA . for hn 13 . Fob 1 ()
Distnbu'lion t:h.rga:
$8.9270000()/l..al1lp
Transmission Chorea:
$O.2~lLaTnp
COOl.P!'btive Transition Charge:
$O,Q3400000/HuJlp'
In~ble TranSition Charge:
W:78200000fLtunp
Generation Charg,e:
CaQaci~ and Energv
~2.Wl00000jL,"np
I'A TlIlt ~ustmenl Surcharge at 1.1600??oo%
PA Sales 1""
'rota! PPL ELECTRIC lrOLl'tlES Chat~e.
$0.00
71.00
0.72
lCJ2.50
20,48
2.38
12.41
$ 219.19
4.14_.
. 0.29
1.47
$ 2~.84
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Account Balan<< f $ 245.03
. You were bill~d for 2 area lighl{.).
KWH Use By Meier
Rudi1'LDate. Meter Meier MeIer I~eadin~
PreviouSll'r~nt Number COnS(anl Prev1ou3/Present
Jan 13 Feb 10 844Z8121l
60 00060
00068
TOlal
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480
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5.89
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2004-02369 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SWIDLER HAROLD
VS
WALTER & JACKSON INC
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
WALTER & JACKSON INC
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of LANCASTER
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On June
30th , 2004 , this office was in receipt of the
attached return from LANCASTER
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Lancaster Co
18.00
9.00
10.00
50.00
.00
87.00
06/30/2004
METZGER WICKERSHAM
~
County
Sworn and subscribed to before me
this 'I€:: day of Q.-'J
"-~'f A.D.
Chy6.-0 n,,,i~-, ~
., Prothonotiir
SHERIIFF'S OFFICE
50 NORTH DUKE STFlEET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608.3480 . (717) 299.8200
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT 01= RETURN
1 PLAINTIFF/SI
Harold Swidler
3. DEFENDANT/SI
Walter & Jackson Inc
SERVE {5' NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC.. TO BE SERVED
.. Walter & Jackson Inc
6. ADDRESS (Street or RFD. Apartment No., City, Bora, Twp" Slate and ZIP Code)
AT I.\If East Gay Street Christina. PA 17509
7 INDICATE UNUSUAL SERVICE, I( DEPUTIZE 0 OTHER Cumberland
Now, May L I 20 04 , I, SHERIFF OF -.. _ of COUNTY, PA., do he ;e}w.l g~Il'O,tize the Sh.~r,)If, :.Q,J:,'
r,i'Jn"""tp.r County to execute this Writ a~f ,!0C.~i:pg..::'..',,'
to law. This deputation being made at the request and risk of the plaintiff. . , .'
SHERIFF or COUNTY
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
4 TYPE OF WRIT OR COMPLAINT
Notice and Complaint
Cumberland
Please rrail return of service to Cumberland County Sheriff. Thank you.
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN _ Any deputy sheriff levying upon or attaching ally property under
within writ may leave same without a watchman, in custody of whomever is found in Possession, after notifying person of levyoraltachment, without liability on
the part of such deputy or the sheriff to any plaintiH herein for any loss. destruction or removal of any such property before sheriff's sale thereof
10. TELEPHONE NUMBER 11. DATE
3:
H
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o
t-3
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9. ~MR~~~rE'her ORIGINATOR
So METZGER WICKERsHAM KNAUSS &
12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW: (This area must be completed If notice is to be mailed)
CUMBERLAND CO SHERIFF
SPACE BELOW FOR USE OF SHERIFF ONLY
ANNE'J.'l1!.APf!' 'tVA'f.~ ffl-~~.23gCl~
DO NOT WRITE BELOW THIS LINE
145~28i~ved 15 6~5i04earing dale
13.1 acknowledge receipt of the writ l
orcomplalnt as indicated above. r
16. I hereby CERTIFY and RETURN Ihall 0 have pe<sonally se",ed, have legal ev;dence 01 se"';ce as shown ;n "Rem",ks", 0 have execuled as shown ;n
"Rem",ks", Ihe wr;1 or compla;nl descr;bed on Ihe ;nd;v;dual. company, corporabon, elc, althe address shown above or on Ihe ;nd;v;dual, company, cor.
poralion, etc.. at Ihe address inserted below by handing a TRUE and ATTESTED COpy thereof.
17.01 hereby cert;ly and relurn a NOT FOUND because I am unable 10 locale Ihe ;nd;v;dual, company, corporal;on. elc., named above. ISee remarks belowl
18, Name and '~Of ;nd;v;du I served (;f nol shown abov IRelabonsh;p 10 Defendanl) ,g. DNa""",,,,
~ . '0 - (OJ'll;: ~ \..{ , See Remarks Below INo 301
20 Address of where se"'ed Icomple1e only;f d;lferenlthan shown abovellSlree orRFD, Apartmenl No., C;ly. Boro, Twp 21. Dale of Se",;ce 22 T;me
Slale and Z;p COdel Ie \~(C)\f
AM
IO:SS"~T
23. ATTEMPTS
Oap,lnt.
30. REMARKS:
36.50
S.T.A.:
31. AFFIRMED an
'1..-
c.~ V
11lR1.J
'-I c'p..;-Ll vi .
34 day of
37
MY COMMISSION EXPIRES
1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE _ Sheriff's Office
COUNTY
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HAROLD SWIDLER,
Plaintiff
vs.
No. 04-2369 Civil Term
WALTER & JACKSON, INC.,
Defendant
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
Kindly enter my appearance on behalf of Defendant, W ALTER & JACKSON, INC., in
the above-captioned matter.
Respectfully submitted,
HERR & LOW, P.C.
Date: ~
'\
. i)\./ I~ all;7
~- ..:./-~ -_..-~
;i Michael Saladik, Esquire, ID #36956
Attorney for Defendant
234 North Duke Street
P.O. Box 1533
Lancaster, P A 17608-1533
(717) 397-7544
CERTIFICATE OF SERVICE
I, J. Michael Saladik, Esquire, hereby certify that I served a true and correct copy of the
Entry of Appearance upon the person(s) set forth below and in the: manner indicated:
Service by First Class Mail, Prepaid Postage,
United States Postal Service, to:
Broce J. Warshawsky, Esquire
Cunningham & Chernicoff, P.C.
2320 North 2nd Street
Harrisburg, P A 17106
Date: ~
HERR & LOW, P.C.
I /' /--.,
//>1 _ ,_ _ (~: ',' .-!
;tfch~1~ladik, ~squire, ill #36956
Attorney for Defendant
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
(717) 397-7544
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Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLV ANL4
HAROLD SWIDLER,
:
v.
: CIVIL ACTION - LA W
: NO. 04-2369 CIVIL TERM
WALTER & JACKSON, INC.,
Defendant
:
: JURY TRIAL DEMANDED
TO: PROTHONOTARY
PRAECIPE TO ENTER APPEARANCE/CHANGE OF ADDRESS AND LAW
FIRM AFFILL4TION OF COUNSEL
Bruce J. Warshawsky, Esquire has changed hi~ law firm affiliation and address
and will continue to represent Harold Swidler, the Plaintiffin the above captioned action.
Please kindly enter the appearance of Bruce J. Warshawsky, Esquire and
the Law Firm of Cunningham and Chernicoff, P.c., on behalf of Harold Swidler, the
Plaintiff in the above captioned action.
CUNNINGHAM & CHERNICOFF, P.c.
B,. 'W'nh'~
PA Supreme Court ID# 58799
CUNNINGHAM & CHERNICOFF, P.c.
2320 N. Second. St.
Harrisburg, PA 1'7110
Dated: 7 (~6Ib~
Mailing Address;'
P.O. Box 60457
Harrisburg, PA 17106-0457
(717) 238-8187
Attorneys for Pla,intiff, Harold Swidler
PRAECIPE TO WITHDRAW APPEARANCE
Kindly withdraw the appearance of Metzger, Wickersham, Knauss & Erb, P.c. on
behalf of Harold Swidler, in the above captioned action.
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
By
~z);L
Steve,(P. Miner, Esquire
PA Supreme Court ID# 38901
Metzger, Wickersham, Knauss & Erb, P.c.
3211 N. Front. St.
Harrisburg, PA 17110
(717) 238-8187
Dated:
712-1/(;'{
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Secretary for the law office' of Cunningham & Chemicoff,
P.C., do hereby certify that a true and correct copy of the Praecipe to Withdraw
Appearance/Enter Appearance in the above-captioned matter was sent first class U.S. Mail, First
Class Mail, postage prepaid on this date, to the following:
1. Michael Saladik, Esquire
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
Steven P. Miner, Esquire
METZGER, WICKERSHAM, KNAUSS & ERB, P.C.
3211 North Front Street
Harrisburg, P A 1711 0
I~ ~
Date: / (;)0 oc.j
B
HAM 8l. CHE~ICOFF, P.C.
&.m(LI..::J W~CULO
Julieanne Ametrano
2320 North Second Street
P.O. Box 60457
Harrisburg, P A 1711 0
(717)238-6570
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. W&J adv. Swidler/cumberland County
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HAROLD SW1OLER,
Plaintiff
No. 04-2369 Civil Term
v.
JURY TRIAL DEMANDED
WALTER & JACKSON, INC.,
Defendant
NOTICE TO PLEAD
TO: HAROLD SW10LER
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED
NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT
MAY BE ENTERED AGAINST YOU.
HERR & LOW, P.C.
Date: {19 (I ('D Y
J ichael Saladik, Esquire, 10 #36956
Attomey for Defendant
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
(717) 397-7544
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
HAROLD SWIDLER,
Plaintiff
No. 04-2369 Civil Term
vs.
WALTER & JACKSON, INC.,
Defendant
JURY TRIAL DEMANDED
ANSWER
L Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted. By way of further answer, Defendant moved out completely and
stopped selling paint from the premises upon assurance from Plaintiff that Plaintiffs son would
obtain a replacement tenant very soon.
6. Admitted.
7. Denied. The letter speaks for itself.
8. Denied. The letter speaks for itself.
9. Denied. The letter speaks for itself.
10. Denied as a conclusion oflaw to which no responsive pleading is required.
1 L Denied as a conclusion oflaw. To the extent an answer is required, Defendant
paid real estate taxes.
12. Denied. Defendant maintained insurance.
COUNT I
13. Defendant's Answers contained in Paragraphs 1 through 12 are incorporated
herein by reference as if fully set forth.
14. Denied as a conclusion oflaw. By way of further answer, it is specifically denied
that Defendant failed to pay real estate taxes and insurance.
WHEREFORE, Defendant requests your honorable Court to enter Judgment against
Plaintiff.
NEW MATTER
15. Plaintiff failed to mitigate damages.
16. It is believed and therefore averred that Plaintiff undertook to mitigate damages
when he promised that his son, Eric Swidler, a commercial realtor, would find a replacement
tenant for Defendant.
17. Plaintiffs son failed to make a good faith and reasonable effort to find a
replacement tenant for Defendant for the term of the lease.
18. Defendant relied on the Plaintiffs assurances that the premises were extremely
marketable and that his son was the best person to find a tenant and would find a replacement
tenant for the expiration of the lease.
19. Plaintiff, on numerous occasions, assured Defendant, Walter & Jackson, Inc., that
the property was very marketable and that a new tenant would be found by his son quickly such
that Defendant completely vacated the premises and leased a different property so as not to
prevent the leasing of the premises to a forthcoming replacement tenant.
20. It is believed and therefore averred that Plaintiff, at the time Plaintiff indicated
that his son would find a replacement tenant, knew that Defendant would rely on Plaintiff's
assertions that Plaintiff would find a replacement tenant.
21. Defendant reasonably relied upon Plaintiff's assertions that his son would find a
replacement tenant and therefore did not seek its own replacement tenant and completely
vacated the premises.
WHEREFORE, Defendant demands that judgment be entered in its favor and against
Plaintiff and that Plaintiff's Complaint be dismissed.
Respectfully submitted,
HERR & LOW, P.C.
Date: $( 0 'i
. Michael Saladik, Esquire, ill #36956
Attorney for Defendant
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
(717)397-7544
VERIFICATION
I verifY that I am the Treasurer of the Defendant in the foregoing pleading that I have reviewed the
pleading on behalf of the Plaintiff, and that the facts set forth therein are true and correct to the best of
my knowledge, information and belief.
I further state that I am signing this Verification on the recommendation of my attorneys who
have advised that the language in the foregoing pleading is required legally to raise issues for resolution
by the Court or at trial. Further, I understand that some of these allegations may prove inappropriate
after investigation and trial preparation are complete and I leave determination ofthese matters to my
attorneys on their advice.
I understand that false statements therein are made subject to the penalties of 18 Pa.C.S.A. 4904,
relating to unsworn falsification to authorities.
Walter & Jackson
Plaintiff
!D/{ /d Y
Date \ l
~~~
Richard Mosteller
CERTIFICATE OF SERVICE
I, J. Michael Saladik, Esquire, hereby certify that I served a true and correct copy of the
Entry of Appearance upon the person(s) set forth below and in the manner indicated:
Service by First Class Mail, Prepaid Postage,
United States Postal Service, to:
Bruce J. Warshawsky, Esquire
Cunningham & Chemicoff, P.C.
P. O. Box 60457
Harrisburg, PA 17106-0457
HERR & LOW, P.C.
Date: ~
ichael Saladik, Esquire, ill #36956
Attorney for Defendant
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
(717) 397-7544
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Bruce 1. Warshawsky, Esquire
PA Supreme Court ID # 58799
CUNNINGHAM & CHERNICOFF, P.C.
2320 North Second Street
Harrisburg, PA 17110
Mailing Address:
P.O. Box 60457
Harrisburg, PA 17106-0457
(717) 238-6570
Attorneys for Plaintiff
HAROLD SWIDLER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO. 04-2369
: CIVIL ACTION - LAW
WALTER & JACKSON, INC.,
Defendant
: JURY TRIAL DEMANDED
REPLY TO NEW MATTER
AND NOW COMES Plaintiff, Harold Swidkr ("Mr. Swidler") by and through
his attorneys, Bruce J. Warshawsky, Esquire and the law office of Cunningham & Chernicoff,
P.C. to file this Reply to New Matter raised by the Defendarlt, Walter & Jackson, Inc. ("W&J")
and in support thereof states the following:
15. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. To the contrary, Mr. Swidler
made numerous efforts to re-lease the property after W &J bmached the Lease, including, but not
limited to, (1) placing advertisements in the local newspapers and (2) suggesting that W&J
engage the services of the Commercial-Industrial Realty ("CIR") to market the Premises under a
Listing Contract - Exclusive Authorization to Sublease, (the: "Agreement to List for Sublease")
which upon information and belief, W&J entered into for the period, March 18, 2002 -
March 17, 2003 and, upon information and belief, which W&J refused to extend said Sublease
Listing Agreement through the expiration of the Lease, January 31, 2005.
16. The averments of this paragraph are DENIED AS STATED. It is
admitted that Mr. Swidler's son, Eric Swidler, is a commercial realtor. By way of further plus
reply, Eric Swidler is employed by CIR, the largest and most reputable commercial real estate
firm in the Harrisburg market, which employs more than twenty (20) agents, all of whom have
had the opportunity to market and show the Premises. It is Dlrther admitted that Mr. Swidler, as
is set forth above, undertook efforts to mitigate his damages and in good faith, but it is
specifically denied that Mr. Swidler promised W &J that a replacement tenant for the Premises
would be found.
17. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. To the contrary, upon
information and belief, Eric Swidler and CIR, pursuant to the Agreement to List for Sublease,
marketed the Premises in good faith and in an effort to find a new tenant for the Premises and to
replace W&J, following their breach of the Lease, for the: term of the Lease which expires
January 31, 2005. By way of further reply, it is believed, and therefore averred, that many
prospective Tenants have been shown the Premises and the Premises have been advertised by
CIR in various trade and local publications.
18. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. After reasonable
investigation, Mr. Swidler is without knowledge or information sufficient to form a belief as to
the truth of the averment that W &J relied upon any assurances made by Mr. Swidler, therefore,
these averments are denied in strict proof at trial is demanded. By way of further response, Mr.
Swidler never assured W&J that the Premises "were extremely marketable", as the business
climate, following W&J's breach and removal from the Premises with interest rates remaining
low, was unfavorable for leasing, due to a desire on the part of most entities, who would
otherwise be tenants, to construct their own facilities, ratller than lease locations like the
Premises. By way of further reply, Mr. Swidler admits, whil;h he communicated to W&J, that
his son, Eric Swidler, was and is the best person to find a tenant for the Premises, because of his
experience in the commercial real estate industry and because of his familiarity with the
Premises, however, it is specifically denied that Mr. Swidler assured W&J of same or that Eric
Swidler would find a replacement Tenant for the expiration of the period of the Lease.
19. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. By way of further reply, Mr.
Swidler, at the time W &J breached the Lease, and currently, admits that the Premises are very
marketable because, among other things, the location and the facility of the Premises are
desirable, which are reasons why W &J entered into the Lease in the first instance. By way of
further reply, while Mr. Swidler believed that a new tenant would be found quickly by his son,
Eric Swidler, to replace W&J at the Premises, it is specifically denied that Mr. Swidler assured
W &J of the same, but rather, only would have expressed his opinion of same to W &J and any
reliance thereon by W &J was misplaced. By way of further reply, Mr. Swidler and W &J never
discussed W&J's vacating the Premises for any reason, including, but not limited to, W&J's
claim that its continued occupation of the Premises would prtevent the leasing of the Premises to
a forthcoming replacement tenant. To the contrary, if the Premises are empty, they would (and
did) fall into a state of disrepair and deficiency in that, among other things, taxes for the
Premises remain unpaid. It is admitted that W &J completely vacated the Premises prior to the
expiration of the Lease and has failed to pay Mr. Swidler under the Lease since that time which
serves as a basis for W&J's breach of the Lease. By way of:further reply, W&J's removal from
the Premises does not absolve it of any responsibility to pay rent and other charges, including,
but not limited to, taxes on the Premises. By way of further reply, W &J, on its own, decided that
their business at the Premises was failing, except for that portion of W &J's business which sold
paint. It is believed, and therefore averred, that W &J could not sustain its paint business
profitably from the Premises, because it was too large for W&J to store and sell paint only and
that, in order to conduct its paint business profitably in the Carlisle area, W &J needed to sell
paint from a smaller and different location, notwithstanding its obligation to pay Mr. Swidler
pursuant to the terms of the Lease. By way of further reply, it is believed, and therefore averred,
that W&J, without discussing the matter with Mr. Swidler, determined to vacate the Premises,
failed to pay for any of its monetary obligations for the Premises pursuant to the Lease and
continued its presence in the paint market in the Carlisle area from a different and smaller
location for the reasons set forth above.
20. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. It is specifically denied that
Mr. Swidler indicated to W &J that his son, Eric Swidler, would find a replacement Tenant, as is
more specifically set forth above. By way of further reply, as to the averment that Mr. Swidler
knew that W&J would rely on Mr. Swidler's assertions, whi(:h, were actually only Mr. Swidler's
opinions, that his son would find a replacement tenant for the Premises before the expiration of
the term of the Lease, Mr. Swidler, after reasonable investigation, is without knowledge or
information sufficient to form a belief as to the truth of this averment, therefore it is denied and
strict proof at trial is demanded. By way of further reply, Mr. Swidler never asserted to W &J
that he would find a replacement Tenant for W&J and was under no legal responsibility to do so
under the circumstances. By way of further reply, W&J has its own independent legal
responsibility to mitigate its damages and to find a replacem(mt tenant for the Premises, which it
did not do when it, inter alia, did not renew the Agreement to List for Sublease with CIR and
regardless, Mr. Swidler's opinions, even if accepted as assertions by W&J, do not absolve
W&J's responsibility for such mitigation. By way of further reply, any reliance upon Mr.
Swidler's opinions, statements or assertions by W&J were misplaced and do not excuse W&J's
requirement to perform under the Lease, including, but not limited to, paying all sums due and
owing, including, but not limited to real estate taxes and to Mr. Swidler in connection therewith.
21. The averments of this paragraph are legal conclusions to which no
response is required. To the extent that a response is deemc:d to be required to the remaining
averments of this paragraph, the same are DENIED AS STATED. By way of further reply,
W&J's reliance upon Mr. Swidler's opinions, statements or assertions was unreasonable. It is
specifically denied that Mr. Swidler asserted to W &J that his son, Eric Swidler, would find a
replacement tenant for the Premises, as is more specifically set forth above. By way of further
reply, upon information and belief, it is admitted that W &J val~ated the Premises and further that,
other than entering into the Agreement to List for Sublease for one (I) year, W&J did not seek a
replacement tenant for the Premises. By way of further reply, any reliance upon Mr. Swidler's
opinions, statements or assertions were misplaced and do not excuse W&J's requirement to
perform under the Lease, including, but not limited to, payments of all sums due and owing,
including, but not limited to, real estate taxes or to Mr. Swidle:r in connection therewith.
WHEREFORE, Plaintiff, Harold Swidler demands jUdgment in his favor against the
Defendant, Walter & Jackson, Inc. for damages as a result of the breach of contract, in an
amount which exceeds the limit of compulsory arbitration in Cumberland County, Pennsylvania,
plus costs, interest, reasonable attorneys' fees and other just relief that the Court deems
appropriate.
Date: 10 J-q;' Y
CUNNINGHAM & CHERNICOFF, P.C.
:;,!At.,.~
PA Supreme Court ID# 58799
CUNNINGHAM & CHERNICOFF, P.C.
2320 N. Second. St.
Harrisburg, PA 17110
Attorney for Plaintiff, Harold Swidler
VERIFICATION
I, Harold Swidler, verifY that the statements made in the foregoing Reply to New Matter
are true and correct to the best of my knowledge, infonnation lmd belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. 94904, relating to unsworn
falsification to authorities.
~~
Date:
to/,,2/} /ot.J
. I
Harold Swidler
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Secretary for the law offiice of Cunningham & Chemicoff,
P.C., do hereby certify that a true and correct copy of the Reply to New Matter in the above-
captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to
the following:
J. Michael Saladik, Esquire
Herr & Low, P.C.
234 North Duke St.
P.O. Box 1533
Lancaster, PA 17608-1533
Date:
iO/dO/bel
iJ;l"a;J {l;rndtaM
ul eanne Ametrano
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one)
(XX)
for JURY trial at the next term of civil court.
(
)
for trial without a jury.
----------------------------------------------------------------------------------------------------------------- ---------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
HAROLD SWIDLER,
(XX) Civil Action - Law
( ) App I from Arbitration
( )
( other)
(Plaintiff)
vs.
WALTER & JACKSON, INC.,
The trial list will be call d on April 19.
2005 and
Trials commence on M 16 2005
(Briefs are due 5 days be ore pretrials.)
(Defendant)
(The party listing this ca e for trial shall
provide forthwith a copy fthe praecipe to
all counsel, pursuant to L cal Rule 214.1.)
vs.
No. 04-2369 Civil Action - Law 2005
Indicate the attorney who will try the case for the party who files this praecipe:
Bruce J. Warshaws
Indicate trial counsel for other parties ifknown: J
This case is ready for trial.
Signed.
Date: ) I n[ O(
Print Name: Bru e J. Warshawsk suire
Attorney for: Plaintiff Harold Swidle
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WALTER & JACKSON, INC.
Defendant
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NO. ~-2369 CIVIL TERM};tS'
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HAROLD SWIDLER,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVA
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IN RE:
PRETRIAL CONFERENCE
A pretrial conference was held Wednesday,
2005, before the Honorable Edward E. Guido, Judge.
the Plaintiff was Bruce J. Warshawsky, Esquire. Present for the
Defendant was J. Michael Saladik, Esquire.
This is a relatively straightforward contract
will
involving nonpayment of rent. The parties estimate that
take only one day to try. Neither party has any scheduli g
conflicts during trial week.
There are no extraordinary issues of law that
be addressed.
The parties are currently involved in settleme
negotiations. However, there is a real possibility that
trial
will need to occur. The parties have kept open the
of
waiving a jury trial and proceeding nonjury. They will s ay in
touch with the court administrator regarding the viabilit of
this option.
The Plaintiff in this matter is a personal fri d of
mine. Therefore, I must recuse myself from presiding ove this
case.
.....
Bruce J. Warshawsky, Esquire
For the Plaintiff
J. Michael Saladik, Esquire
For the Defendant
Prothonotary
Court Administrator
srs
..
"
HAROLD SWIDLER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v.
: CIVIL ACTION - LA W
: NO. 04-2369 CIVIL TERM
WALTER & JACKSON, INC.,
Defendant
:
: JURY TRIAL DEMANDED
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark the above referenced matter settled, discontinued and ended with prejudice
as the parties have resolved their differences.
Respectfully submitted,
Date: (IlL / C f
CUNNINGHAM & CHERNICOFF, P.c.
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v ruce. Warshawsky, Es
1.0. #58799
2320 North Second Street
P. O. Box 60457
Harrisburg, PAl 71 06-0457
Telephone: (717) 238-6570
(Attorneys for Plaintiff)
.
I
.
CERTIFICATE OF SERVICE
I, Bruce J. Warshawsky, Esquire with the law finn of Cunningham & Chemicoff, P.c.,
hereby certify that I served a true and correct copy of the PRAECIPE TO SETTLE,
DISCONTINUE AND END upon the following via first Class Mail, postage prepaid.
J. Michael Saladik, Esquire
234 North Duke Street
P.O. Box 1533
Lancaster, PA 17608-1533
CUNNINGHAM & CHERNICOFF, P.C.
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