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HomeMy WebLinkAbout11-0073~p JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 ~i' 1 i `, 1 2~~ i ' , 7~ /~ ~ ~ ~' ~ , ~_ ~' J t ..'.i .. , ~ i t Attorneys for Plaintiff STACY GARONZIK, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. o~a~l-~3 Cfd~~ (errs CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CIVIL ACTION -LAW CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF JURY TRIAL DEMANDED NEW CUMBERLAND, PA AND SUNSET TAN & SPA : Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by 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. ~,~f 3 ~ 3 s 1 ~~,8? ~~. 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, Pennsylvania Telephone: 717-249-3166 AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mks adelante en las siguientes p~ginas, debe tomar acci6n dentro de los proximos veinte (20) dias despu~s de la notificacion de esta Demanda y Aviso radicando personalmente o 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 le 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 o cualquier otra reclamacibn o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mks aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone: 717-249-3166 JOHNSON, DUFFIE, STEWART 8~ WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717)761-4540 STACY GARONZIK, v. Plaintiff CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN 8~ SPA Defendants COMPLAINT NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED AND NOW, comes the Plaintiff, Stacy Garonzik, by and through her attorneys Johnson, Duffie, Stewart 8~ Weidner and files this Complaint against the Defendants listed above and in support thereof avers as follows: 1. The Plaintiff, Stacy Garonzik, (hereinafter "Garonzik"), is an adult individual with a principal place of business at 902 Market Street Rear, Lemoyne, Cumberland County, Pennsylvania 17043. 2. The Defendants are Capitol Property Management, Inc., a Pennsylvania corporation, Capitol Fitness, Inc., general partner and trading as World of Fitness, Inc. and a/k/a World of Fitness, L. P., a Pennsylvania limited partnership, and Capitol Fitness, Inc. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA general partner and trading as Capitol Real Estate Development, L. P., a Pennsylvania limited c r partnership a/d/b/a Capitol Property Management of New Cumberland, PA (hereinafter "Defendants"), all with a principal place of business and registered office address of 110 Third Street, Suite 200, New Cumberland, Cumberland County, Pennsylvania 17070. It is believed and averred that Eric Derosiers (hereinafter "Derosiers") is the President of the entities referred to collectively herein as Defendants and acted as their agent and representative. 3. This action arises out of a verbal lease that was entered into between Garonzik and Derosiers acting on behalf of the Defendants in November 2009, for the property located at 21 North Third Street, Lemoyne, Cumberland County, Pennsylvania which contained the World of Fitness Gym and Sunset Tan 8~ Spa (hereinafter collectively referred to as "Gym"). 4. World of Fitness Gym and Tanning facility at 21 North Third Street, Lemoyne, was run and operated by employees of the Defendants. 5. However, due to management concerns, Derosiers approached Garonzik about operating the Gym in late 2009. 6. The discussions between Garonzik and Derosiers progressed so that Derosiers proposed a "lease to own" arrangement wherein Garonzik would initially lease and operate the Gym and pay rent to the Defendants in the amount of Seven Thousand Dollars ($7,000.00) per month for use of the premises and some of the equipment contained thereon. Ms. Garonzik also brought in her own equipment, supplies, inventory, and some staff. 7. As discussions further progressed, Derosiers sent anon-binding "Letter to Intent for Business Transaction" to Garonzik wherein Capitol Property Management of New Cumberland, PA offered, in general terms, to lease the Gym to Garonzik on a five (5) year triple net lease of the Gym. A true and correct copy of the Letter of Intent and email exchange delivering the same is attached hereto as Exhibif A. 2 8. Garonzik was told that the "rent to own" portion of the verbal agreement could not be placed in the Letter of Intent because the Defendants were still under contract with a real estate agent/broker for sale of the premises and the Defendants did not want to incur any commission obligation through their agreement with Garonzik. 9. Garonzik accepted the terms of a five (5) year triple net lease with a monthly rent of Seven Thousand Dollars ($7,000.00); however, it was agreed that the Defendants would maintain the bond with the Attorney General if required under Pennsylvania's Health Club Act and would maintain insurance on the building structure. Garonzik would maintain general liability insurance for the business. 10. Initially, Garonzik was asked to maintain separate liability insurance on the Sunset Tan & Spa portion of the premises and was told by the Defendants to use KHB Insurance to procure a policy. 11. However, when KHB Insurance informed Garonzik and the Defendants that it could not issue the insurance to Garonzik directly, it was agreed that the Defendants would maintain their policy of insurance on the Sunset Tan & Spa portion of the business and Garonzik would maintain her general liability policy with regard to the gym portion of the business. 12. Additionally, the Defendants told Garonzik that she was required to utilize the eFit membership system for operation of the Gym and was required to keep Amy Patterson (an employee of the Defendants) since she was knowledgeable in the eFit system. 13. Since Garonzik was required to use the eFit system for memberships, she made it clear that she would not continue the use of the ADT Security System when she obtained 3 f possession of the Gym since the same would not work with the eFit system for membership cards and swipes for entry. 14. As such, Ms. Garonzik would not agree with Defendants' demands that she would assume the ADT Security contract nor pay the monthly fees and arrearages for the same. 15. This was accepted by the Defendants and they agreed to remove the ADT security cameras in place at the Gym. 16. Garonzik took over possession of the Gym and began her operation of the same in December 2010 and began paying rent which was accepted by the Defendants. 17. As stated, Ms. Garonzik was directed to utilize the eFit payment system for the Gym which is a software and on-line based program which handles the collection of fees and membership payments from Gym members and users and remits the same to Ms. Garonzik. 18. The eFit system was in place and used by the Defendants when its employees operated the Gym. 19. When the Defendants informed Garonzik that she was required to use the eFit system, she was told that the system would pay all remittances for membership fees etc. on the 15th and 30th of each month. 20. As such, the Defendants required Garonzik to pay rent on the 1St of each month. 21. In January 2010, the eFit system changed the way it would remit membership revenues to the Gym so that Ms. Garonzik would not receive the revenues from membership dues and fees at a certain time each month. 22. Consequently, she could not make a rent payment on the 1St of the month as agreed at the inception of the verbal lease. 4 23. Garonzik informed the Defendants of this change. A true and correct copy of an email from Jade (an employee of Capitol Property Management) to Derosiers regarding the same is attached hereto as Exhibit B. 24. Consequently, since the eFit payments were the major source of revenue for the Gym, the Defendants agreed to accept monthly rental payments on or about the 20~' of the month as corresponding to the eFit remittances to Garonzik. 25. As stated, when Garonzik took over the Gym as operator and tenant, she was required by Derosiers, acting on behalf of the Defendants, to keep certain former employees of the Defendants, including Amy Patterson, on staff at the Gym. 26. It was agreed that Garonzik was responsible for paying employee salaries going forward after she took over operations of the Gym. 27. Garonzik did so, however, she did not agree to pay employees for hours worked at World of Fitness before she took over the Gym. 28. Garonzik also did not agree to pay World of Fitness employees' overtime for December 2009, but she did so. 29. Additionally, since the Defendants did not want to change the signage and business identity already in place at the Gym, Garonzik was required by the Defendants to continue to operate the Gym under the name World of Fitness and Sunset Tans 8~ Spas and all membership agreements were executed under this name per the Defendants' requirements. 30. Garonzik operated the Gym for several months and made all rental payments as agreed and as corresponding with the eFit remittances. 5 31. However, Garonzik was required to maintain the "Spa" portion of the property for state inspections so that the Defendants could keep their license or certification for such a spa operation at the premises. 32. Consequently, Garonzik was unable to utilize the back portion of the property since she did not operate a spa but had to maintain the facilities for the same. 33. Garonzik increased revenues and membership at the Gym during this time. 34. However, on or about March 17, 2010, Derosiers approached Garonzik about signing a written lease for the Gym. 35. Derosiers sent numerous versions of a proposed lease with terms that were constantly changing or which contradicted the verbal lease agreement. 36. Garonzik refused to sign a written lease that did not incorporate the terms of the verbal lease or put upon her onerous personal and professional obligations to which she did not and could not agree. 37. Namely, Garonzik did not agree to pay the ADT Security fees (which were in arrears of over $12,000) since the system was never operational during her possession and did not meet the specifications of the eFit system she was required to use by the Defendants. 38. Also, Garonzik did not agree to maintain insurance on the structure of the building including special coverages and insurance level requirements demanded by Derosiers which were not subject to the verbal lease and were not readily available after inquiries with Garonzik's insurance agent and broker. 39. The Defendants also demanded that they have control over employment matters at the Gym, required that Garonzik (a single mother of a two year old son) be present at the Gym during all hours of operation (approximately 90 hours a week), that the Gym not remove security cameras installed by the Defendants to which Garonzik had no control (despite the Defendants' prior representations that the cameras would be removed), required Garonzik to put as additional insureds several of the related business entities listed in the caption on her general liability policy, required Garonzik to give free memberships and tanning services to ten (10) of the Defendants' employees and to Derosiers' friends, required Garonzik to give free services to Eric Derosiers' girlfriends, and that Garonzik's ex-husband had to agree to provide personal training services to Derosiers free of charge. 40. As stated, the same security cameras were agreed to be removed in December 2009. See, Exhibit A. 41. However, instead the Defendants removed the access and control devices for the cameras to a locked cabinet to which Garonzik did not have access. 42. Garonzik did not know who was watching footage taken by the cameras and was excluded from access to the same. 43. When Garonzik refused certain terms, new leases with additional onerous terms and conditions were sent by the Defendants in draft. 44. As new proposed leases continued to be sent by Derosiers and Defendants to Garonzik with ever demanding and unreasonable terms, Derosiers became frustrated with Garonzik's refusal to sign a written lease with terms to which she did not and could not agree. 45. Finally, this situation came to a head with the Defendants locking Garonzik out of the Gym without warning and without default at or about 10:30 p.m. on Friday, June 16, 2010. 46. Garonzik only learned that she, her staff, and the Gym patrons were locked out by the Defendants when she went to the Gym on the morning of Saturday June 17, 2010 and found the locks changed. 7 47. Later, without any input or knowledge of Garonzik, the Defendants posted a note on the entrances to the Gym reading: "with the safety and respect of the members using the gym and tanning facilities in mind, the difficult decision to stop operations was made." See Exhibit C. 48. The Defendants then proceeded to demand that Garonzik sign a written lease with unacceptable terms or Garonzik would not be permitted to re-enter the Gym and run her business. 49. Defendants employed classic duress in an attempt to force Garonzik into an unacceptable written lease. 50. With Garonzik steadfast in her refusal to sign an unacceptable and unconscionable written lease, Derosiers made statements to the public that the reason why he used self-help to close the Gym was due to a "lack of insurance." See Exhibit C. 51. The Defendants approached the Patriot News with this story about inadequate insurance. A true and correct copy of the July 12, 2010 article is attached hereto as Exhibit C. 52. However, the insurance coverage on the Gym was that which was agreed to and accepted by the parties since Garonzik took over operation and tenancy at the Gym in January 2010. 53. It is believed and therefore averred that the insurance on the property was adequate as agreed but that Derosiers desired to break the terms of the verbal lease and require Garonzik to take over the bond with the Attorney General (which was due to lapse in June 2010) and insurance for the structure of the building with high enough limits so that the Defendants (and their related entities) would not have to pay significant insurance premiums for their building. 8 54. During June and July 2010, the parties tried to come up with terms for a mutually acceptable lease agreement; however, terms could not be reached and the Defendants remained unreasonable in their demands as to rental payments and expenses and liabilities to be shifted to Garonzik. 55. Ever since the Defendants, without warning or right, excluded Garonzik and her representatives from the Gym premises, the Defendants have been in sole possession of the Gym. 56. Garonzik, through counsel, requested that she have access to the Gym to remove her personal items, inventory, cash, equipment, and other valuables and personal property. 57. The Defendants agreed to allow a representative of Garonzik to remove a few small personal items and some businesses files but not the equipment, cash, inventory, and bulk of the personal property belonging to Garonzik located and locked away at the Gym premises. 58. It was later learned that the Defendants wrongfully and in breach of client privacy made copies of client files which contained protected health information (PHI) under HIPAA. It is believed and averred that the Defendants remain in possession of copies or originals of Garonzik's client and business files. 59. During this limited removal, a representative of Garonzik noted that cash, inventory, and other personal and business items of Garonzik were missing and presumably taken or converted by the Defendants. 9 60. The Defendants refused and continue to refuse access to Garonzik to remove her property and to inventory the same to ascertain what was converted or taken by the Defendants. 61. When Derosiers was asked about the whereabouts of the missing property, he indicated that his employee may have taken it and this is why Garonzik had homeowners' insurance, and she should file a loss claim with regard to this property. 62. Finally, in late July 2010, it was apparent that the parties could not come to terms on the lease to own agreement. 63. On July 27, 2010, counsel for Garonzik sent a letter to counsel for the Defendants indicating an end to negotiations on the lease or option to buy for the Gym and requested access to the Gym to remove Garonzik's property and equipment. A true and correct copy of that letter is attached hereto as Exhibit D. 64. The Defendants refused and have continued to refuse access to Garonzik or her representatives to remove her property from the Gym. 65. The wrongful exclusion of Garonzik and her representatives and employees from the Gym has resulted in monetary harm to Garonzik and loss of business. 66. The wrongful refusal to allow Garonzik access to the Gym to remove her property has caused her financial harm and loss of business. 67. The inaccurate and self-serving representations made by the Defendants' representatives to the media and public have harmed Garonzik's professional reputation and business. 10 68. Garonzik has since opened a new gym facility; however, several of her clients have declined to continue their professional relationship due to the wrongful eviction and actions of the Defendants and their representatives related to World of Fitness (the "Gym") 69. The actions of the Defendants and their representatives continue to cause Garonzik loss of business, loss of reputation, and consequential damages. COUNT I -Breach of Contract STACY GARONZ/K v. ALL DEFENDANTS 70. Plaintiff incorporates the averments of paragraphs 1 through 56 above as if fully set forth herein. 71. Pursuant to the verbal lease, Garonzik was given possession of the Gym in exchange for payments of rent and expenses including utilities (not including the ADT Security Service Contract) and general liability insurance. 72. The Defendants used tactics of duress to coerce Garonzik to enter into a written lease agreement with additional and onerous terms over and above the verbal lease agreement. 73. When Garonzik would not agree to these additional and unreasonable terms, the Defendants, without warning, changed the locks to the Gym and wrongfully excluded Garonzik, her staff and her representatives from the Gym premises contrary to the terms of the verbal lease. 74. The Defendants then used this wrongful exclusion as a means of duress to coerce Garonzik to sign an unreasonable written lease with terms not agreed to verbally by the parties. 11 75. When Garonzik refused to agree to the unreasonable terms of the written lease proposals, the Defendants continued to exclude her from the Gym premises and prevented Garonzik from running her business. 76. Garonzik had to work with clients to provide refunds and free services at her home, parks, or wherever she could secure space until she opened a new gym facility in October 2010 due to the wrongful actions of the Defendants. 77. Garonzik has lost clients and other business opportunities due to the wrongful actions of the Defendants. 78. Garonzik has suffered consequential damages due to the wrongful actions of the Defendants. 79. The Defendants have breached the verbal lease by their wrongful actions. 80. The Defendants have failed to comply with the requirements of the Landlord and Tenant Act including but not limited to recovery of possession under 68 P.S. §250.501 et seq. WHEREFORE, Plaintiff, Stacy Garonzik, demands judgment against the Defendants in the amount in excess of the limits for compulsory arbitration and any other relief that the Court deems appropriate. COUNT 11 - Rep/eviMrespass STACY GARONZIK v. ALL DEFENDANTS 81. Plaintiff incorporates the averments of paragraphs 1 through 80 above as if fully set forth herein. 12 82. The Defendants have unlawfully prevented Garonzik and her representatives from regaining possession of her personal property at the Gym premises including but not limited to business files, equipment, cash, and inventory. 83. Despite repeated requests for possession of the personal property, the Defendants have wrongfully refused the same. 84. The Defendants are not entitled to distrain of the personal property since no rent is lawfully due and owing due to the Defendants' breach of the verbal lease through their wrongful exclusion of Garonzik from the Gym premises. 85. Consequently, Garonzik demands return of this property and/or compensation for the same plus double damages and counsel fees if any of the property has been wrongfully sold pursuant to 68 P.S. §250.313. 86. In the alternative, if any rent is due, which Garonzik denies, the Defendants have taken property valued in excess of the rent due and have failed to comply with the requirements of distrain under the Landlord and Tenant Act making their distrain unlawful and improper under 68 P.S. §250.312. 87. Further, in the alternative, the Defendants have failed to make proper distrain under all provisions of the Landlord and Tenant Act, including but not limited to timeliness, amount of property distrained, tenant's exemption, notice and oppressiveness, and are liable to Garonzik in trespass for the same pursuant to 68 P.S. §250.312. WHEREFORE, Plaintiff, Stacy Garonzik, demands return of all of her personal property in the possession of Defendants, that a judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus double damages and counsel fees pursuant to 68 P.S. §250.313, and any other relief that the Court deems appropriate. 13 COUNT 111-Conversion STACY GARONZIK v. ALL DEFENDANTS 88. Plaintiff incorporates the averments of paragraphs 1 through 87 above as if fully set forth herein. 89. The Defendants have unlawfully prevented Garonzik and her representatives from regaining possession of her personal property at the Gym premises including but not limited to business files, equipment, cash, and inventory. 90. Despite repeated requests for possession of the personal property, the Defendants have wrongfully refused the same. 91. The Defendants are not entitled to a set-off of the personal property or self-help and have failed to comply with the provisions of the Landlord and Tenant Act. 92. The Defendants have wrongfully converted cash and other personal property as described above including but not limited to inventory and equipment. 93. The Defendants have acted outrageously in using tactics of duress and wrongful eviction/exclusion which has caused Garonzik damage to her business and reputation. WHEREFORE, Plaintiff, Stacy Garonzik, demands that judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus punitive damages and any other relief that the Court deems appropriate. COUNT IV-Wrongful Eviction STACY GARONZ/K v. ALL DEFENDANTS 94. Plaintiff incorporates the averments of paragraphs 1 through 93 above as if fully set forth herein. 14 95. The Defendants have wrongfully prevented Garonzik from possessing the Gym premises in order to conduct her business. 96. The Defendants have failed to comply with the provisions of the Landlord and Tenant Act for recovery of possession in violation of Garonzik's rights under that Act. 97. Specifically, the Defendants failed to provide Garonzik with any notice of default required pursuant to the Landlord and Tenant Act and the Defendants engaged in self-help to unlawfully retake possession of the premises, without warning, to Garonzik. 98. The Defendants' failure to comply with the provisions of the Landlord and Tenant Act resulted unlawful "self-help" and a wrongful eviction of Garonzik from the Gym premises which caused damage to her business, reputation, and caused other consequential damages. 99. Garonzik never waived her rights under the Landlord and Tenant Act. 100. The Defendants have wrongfully evicted Garonzik under the provisions of 68 P.S. §250.101 et seq. specifically 68 P.S. §250.501. WHEREFORE, Plaintiff Stacy Garonzik demands that a judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus punitive damages and any other relief that the Court deems appropriate. Respectfully submitted, JOHNSON, DUFFIE, STEWART 8~ WEIDNER By: ohn inosky, Esquire Attorney I.D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: January 3, 2011 Attorneys for Plaintiff 15 EXHIBIT A tE: Gym TnForma~_on ~://mail.ao,'.com/32679-? 1 Uaim-2/en-us/mai_/PrintMessage.aspx From: Jade Efko <Jade@capitolpm.com> To: Stacy Garonak <mymusclelady~aol.com> Cc: Eric Desrosiers <Eric@capitolpm.com> Subject: RE: Gym Information Date: Wed, Nov 25, 2009 5:06 pm Attactnnments: Executed.Letter of Intent.WOF.11.24.09.pdf (9511n St:a cy, I 'nave attached the letter of intent for the lease of World of Fitness/Sunset Tan & Spa. Jade Efko Office Manager Capitol Property Management From: Stacy Garonzik [mailto:mymusclelady@aol.com] Sent: Tuesday, November 24, 2009 8:31 AM To: Jade Efko Subject: RE: Gym Information Thanks so much -Sent from my Palm Pr8 Jade Efko wrote: Stacy, I had to leave early yesterday I will write the letter today; however I cannot do anything with it until Eric reviews it. I will email you when it is ready. Jade Efko Office Manager Capitol Property Management From: Stacy Garonzik [mailto:mymusclelady@aol.com] Sent: Monday, November 23, 2009 8:03 PM To: Jade Efko Subject: Re: Gym Information Jade, eric told me that I would get a letter of intent today via you. I did learn you had some things come up today. No worries. I just want to reiterate to you as I did to eric yesterday that I need this for my attorney and to be able to give notice at my current location and I am under severe time constraints. Your attention to this is very appreciated! Thank you stacy g. -Sent from my Palm Pr€ of 2 10/3/201012:17 PM ZE: Gym 1nforma#ion Jaffe Efko wrote: Stacy. '_~://ma~.1..~ol.com/32679-311/~:.,,_2/P~-•,g/r_~?ai]/PriutMessage.aspx I attached the following documents: Tenant info summary: lists e-Fit POS information, Insurance contact information, and Brivo monitoring information. Utility doc: lists all current utility companies, phone numbers, and answers to your questions regarding transferring service Current e-Fit contract: outlines all features currently enabled as well as additional features available with prices. e-Fit summary of charges: Report I printed out of e-Fit showing monthly deposit detail and e-Fit deductions. WOF desk instructions: These are desk instructions I wrote up for e-Fit procedures. You may find this helpful in learning the system. Also Eric wanted me to let you know that he will be removing the security cameras currently installed. So please speak with him about that. I did not have time to discuss the sign and software with him so I will email you once I do. Also be sure to get with Juan regarding the last time the bulbs were changed in the tanning beds. I believe he changed them so he should be able to give you that info. In addition with e-Fit you do not need to worry about PCI (payment card industry) compliance. Since they are processing, transmitting ,and storing member credit card information on their server/ database they have to meet the compliance standards. If you decide to go another route you may be responsible for this. You may already be aware of this, but I wanted to mention it just in case. You can call me if you would like additional info on PCI compliance or if you have any questions. Jade of 2 10/3!2010 12:17 PM LETTER OF INTENT FOR BUSINESS TRANSACTION PERSONAL & CONFIDENTIAL November 24, 2409 Stacy Garonzik [Street Address] [City, State, Zip Code] Re: World of Fitness/Sunset Tan & Spa Lease Dear Ms. Garonzik: This non-binding letter of intent (the "Letter of Intent") is made by and between Capitol Property Management of New Cumberland, PA ("Party A") and Stacy Garonzik ("Party B," and together with Party A, each a "Party" and collectively the "Parties") and sets forth the general terms and conditions of the Parties agreement (as per previous conversations and emails with the owner Mr. Eric J. Desrosiers) to enter into a 5 year triple net lease of the World of Fitness/Sunset Tan & Spa facility and equipment, located at 21 N. 3~d Street Lemoyne, PA 17043. Party A. agrees to pay party B. the lease/rent amount of $5,000.00 per month for the month of January 2010 increasing to $7,000.00 per month beginning the month of February 2010.In addition party B. agrees to pay all taxes (with the exception of property taxes which will be paid by party A.), insurance, utilities, POS, security monitoring, and maintenance expenses that arise from the use of the property and equipment (the "Proposed Transaction"). This letter contains non-binding provisions of understanding between Party A and Party B. Unless otherwise explicitly stated; it does not impose any legal obligations on either Party. If the foregoing terms and conditions are in form and substance acceptable to you, please so indicate by signing this Letter of Intent in the space provided below and returning it to the attention of the undersigned. Sincerely, AGREED AND ACCEPTED: Eric J. De By: /s/ .- Eric J. Desrosiers President/Lessor Stacy Garonzik Dated: By: /s/ Stacy Garonzik Lessee :e~rt P From: Jade Eflco <Jade~capitolpm.conv ham://maal.ao].com/32679-311/aim-2/er-•1s/n?a*IlPrintMessage.aspx To: Eric Desrosiers <Eric@capitolpm.corr~; 7179799133~Q.a•tt.ner. Cc: Edward Tubbs <Edward(a~capitolpm.corrN; mymusclelady@aim.con'~ Subject: Rent Payment Date: Mon, Feb 22, 2010 11:16 am Eric, Stacy called this morning to advise us that as Feb a-Fit changed the way that credit cards are deposited into the account Instead of the credit cards hitting twice a month they will hit at different times of the month. Additionally the different types of transactions will be deposited differently as well. POS transactions will hit at a different time than the Add On's ,and membership dues will hit at a different time than the POS, and Add On's. When we used a-Fit they dispersed the credit card payments into the account twice a month on the 15th and the 30th. and the deposits were for all types of transactions. Stacy also said that PPL told her she was only responsible for 1 meter in the building; however there are 3 meters that they should be billing her for. Stacy called to schedule and appt with PPL and the soonest they had availability was next week. Stacy will be by this week to drop off several checks to have the rent covered by this Fri 2/26. Jade Information from ESET NOD32 Antivirus, version of virus signature database 4887 (20100222) The message was checked by ESET NOD32 Antivirus. http: //www. eset. com 1 of i 10/3/2010 12:31 PM EXHIBIT C ~Vor ~ or'~ fitness gym_ and tanning salon in Lemoyne closes for lack of insurance ~~ ,n Sig ~ in ~ Register for free Florne~ News ', ODinion ', Sports Nr:ws The Patriot-News Politic ?. Page 1 of 4 !: ; ~k Site SearcT seard~ Lodi Business Listings Brouoht to you by: laancea Search for keywords, people, locations, obhuaries, Web ID and more. m-' ~~~ s Entertainment i Uving ; Interact lobs ~ Autos Real Estate Rentals ! Classi£ed Ads Shop x Business Weather Obituaries Lottery Special Projects Sute, U.S. a World More Naws Top a! Victim says he warrted Fluorescent bu16s Stories >a' to kill alleged shooter ~ recalled Hom<: > breaking Midstate News with The Patriot-News > Breaking News World of Fitness gym and tanning salon in Lemoyne closes for lack of insurance P~~~ubllilccci'''shetl: Satunlay, July 10, 2010, 9:00 AM Updated: Monday, July 12, 2010, 12:02 PM REBECCA )ONES, The Patriot-News aharc this story story toob Follow ~!0 Hershey hosts antique auto show w.....+,:::.r The World of Fitness gym and tanning a I o salon on South Third and Market Streets in Lemoyne has closed its doors for now. A written statement from Capitol a~n 0 _ Property Management said that the tweet ~;,~ gym's managers, Stacy and Eric Garonzik, did not have proper insurance coverage, which created a liability for ownership. "With the safety and respect of the members using the gym and tanning facilities in mind," the statfinent read, "the difficuR decision to stop operations was made." Stacy Garonzik said It was a "mutual agreement after the fact." The gym has signs posted on the doors and windows that read, "We appreciate the support, and look forward to seeing you when the gym re-opens," listing the reopening for June 23, more than All PannLire.oom Faoebook 9 Twitter sccoums " two weeks ago. Capitol Property Management officials said the gym will reopen under the name World of Fitness PA vrhen the managers gain proper insurance coverage. Though the names Stacy and Eric Garonzik appear at the end of the note, Stacy Garonzik said the note was written and posted by the property's owner, and she hasn't "even stepped foot on the property" since it closed. She said that all registered clients with valid contact information have been informed of the closure and updates "almost on a daily basis." Since the site was closed, no further charges should have appeared on client bills, she said. Customers who were charged may choose a refund for the period of closure or a free month of services, she said. She said she also is offering a free month of service to any new or existing client. The gym's Facebook page has three comments, all concerning the closure. Client Danielle Chenard Foster wrote, "I bought a year's membership! Not good and just not right!" The Garonziks, a divorced couple, were charged with eight others last year for allegedly using, distributing and manufacturing steroids. Eric Garonzik, a former part-time police officer, faces 25 years in prison if convicted. Police said some of the steroid deals allegedly occurred inside Kinetics, anow-closed Lemoyne gym the two owned together. Related topics: capitol property management, world of fitness 1"apvravr+ate post? Alert as. Sponsored Links Rerommendations Pa. House approves "Gstk Doutrine" kagbietiar an6 sends to the Senate for consideration 83 people shared this. ~i` - Lower Alien Police investigate child luring ' _ attempt '. 50 people shared the. lanrasbr Coumy district judge Nhed for handing out condoms inside aaoms 253 PeoDk sharetl the. Pennsylvania attorney general's offlx ~oon8rms probe hrto Hershey Trust 29 people ShareL this. __ . © Fa book social pupa More Breaking Midstate News with The Patriot-News Most Comments Most Raoent Breaking Midstate News with The Patriot-News stories with the most rnmments in the last 2 days. 49 Shenandoah man go on trial in fatal besting of Mexican immigrant 33 Commentary: Long odds don't rattle Toe Sestak's campaign .27 supreme Court Case pits right to grieve privately vs. church membarc' right to say what they want 20 Pennrylvania Turnpike to study ell-electronic toll collection +n Pennsylvania attorney http:I'/www.pennlive.com/midstate/index.ssf/2010/07/world of fitness~ym_and_tanni.html 10/7/2010 Connect with PennLive.com what's this? EXHIBIT D JE~xY R. DUFFIE - ~- Ai LED RICHARD W. STEWART C. ROY WEIDNER, JR. , --- ?'a[.C ~'~.3 EDMUND G. MYERS DAVID W. DELUGE LAW OFFICE S JOHN A. STATLER ~-t .~ JEFFERSON J. SHIPMAN O~` ON JEFFREY B. RETTIG J KEVIN E. OSBORNE UFFIE RALPH H. WRIGHT, JR. MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY July 26, 2010 tea Certified Mail and E-mail LaliCa~isdc.com) Gary James, Esquire James, Smith, Dietterick & Connelly P.O. Box 650 Hershey, PA 17033 RE: Stacy Garonzik/World of Fitness Dear Mr. James: MELISSA PEEL GREEVY WADE D. MANLEY ELIZABETH D. SNOVER ANDREW P. DOLLMAN SARAH E. HOFFMAN OF COUNSEL HORACE A. JOHNSON R LEE SHIPMAN (1965-2006) WRITER'S EXT. N0. 136 E-MAIL edsC~3jdsw.com As you know, we represent Stacy Garonzik who has been engaged in a landlord/tenant dispute and related settlement negotiations with your client Eric Derosiers and his companies Capital Area Real Estate Management and World of Fitness since mid-June 2010. Please accept this letter as notification that it is apparent to Ms. Garonzik that any future business relationship with Mr. Derosiers would not be beneficial to her or to her clients. As such, she no longer wishes to negotiate a new lease, option to buy, or offer to purchase the property located at 21 N. Third Street, Lemoyne. Ms. Garonzik is absolute in this decision. Therefore, she would like to arrange for the removal of her personal and business property from 21 N. Third Street. She has arranged for movers to be available for Friday, July 30, 2010. Please advise if your client has any objection to allowing Ms. Garonzik to access the building at this time. I will be on vacation beginning Saturday July 24, 2010, and returning Monday, August 2, 2010. Therefore, I ask that you communicate with Dave DeLuce, Esquire or John Ninosky, Esquire in my absence. Your prompt attention to this matter is appreciated. Very truly yours, OHNSON, DUFFIE STEWART &WEIDNER abeth D. Snover EDS:ao~s~s E-MAtLE~1 cc: Stacy Garonzik (via a-mail) 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX: 717.761.3015 MAILC~JDSWCOM JOHNSON, DUFFIE, STEWART &WEIDNER, P.C. ~ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ~ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front if space permits, 1. Article Addressed to: G °` ,ames, Esquire Ja ~ ~ :Smith, Dietterick & Connelly P. x 650 . Her , PA 17033 A. re X ^ ^ Addressee $..Received by rated ) C~Date~of'~D~eliv~e~ry -,~~ D. Is delivery address d t from item 1? ^ Yes ff YES, enter delivery address bebw: ^ No 3. Service Type S~Certifled Mail ^ Express Mail ^ Registered ~ Return Receipt for Merohandlse ^ Insured Mail ^ C.O.D. 4. Restricted Delhrer)/t (Extra Fee) ^ Yes 2. ARlde Number _ ~~s~~ 7099 3~f~ 06/ ~~9a 89aa PS Form 3811, February 2004 Domestic Return Receipt ~ o2sas-o2-nn-~ sao r VERIFICATION I, Stacy Garonzik, verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Dated: ' ~ ~ ~-~ ~ ~~ ~ `~ SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff `` tx r Jody S Smith Chief Deputy ,I I yj 18 Pfi 3: r 2 Richard W Stewart Solicitor (: tBERL a(41i.9 J 33 '`'' P Pjm, SY1.Y A I Stacy R. Garonzik Case Number vs. 2011-73 Capitol Property Management, Inc. (et al.) SHERIFF'S RETURN OF SERVICE 01/11/2011 12:34 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 11, 2011 at 1234 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Capitol Property Management, Inc., by making known unto Joseph Brown, Office Manager for Capitol Property Management, Inc.. at 110 Third Street, Suite 200, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. tl? r. MICHELLE GU H EPUTY 01/11/2011 12:34 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 11, 2011 at 1234 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Capitol Fitness, Inc. t/a Capitol Real Estate Development, LP, by making known unto Joseph Brown, Office Manager for Capitol Fitness, Inc. at 110 Third Street, Suite 200, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. n MICH LL G H DEPUTY 01/11/2011 12:34 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 11, 2011 at 1234 hours, she served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Capitol Fitness, Inc. t/a World of Fitness, Inc., LP a/k/a World of Fitness, LP and d/b/a Capitol Property Management of New Cumberland, PA and Sunset Tan & Spa, by making known unto Joseph Brown, Office Manager for Capitol Fitness, Inc. at 110 Third Street, Suite 200, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. O?? MICHELLE GUT HA UTY SHERIFF COST: $75.74 January 14, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF Gl -'7 y Apt. .... .. ,. N0TA?;.?. 2a I I F I THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire I.D. No. 54771 P. O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com Attorneys for Capitol Property Management Inc. & Capitol Real Estate Development. STACY GARONZIK, V. Plaintiff CAPITOL PROPERTY MANAGEMENT, INC., CAPITOL FITNESS, INC., t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P., CAPITOL FITNESS, INC., t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA and SUNSET TAN & SPA, Defendants U1 s? l Lr J t C?; nrf;der. `? t ,/h arl.?'9 i ..v 1 .i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-73 CIVIL TERM JURY TRIAL DEMANDED DEFENDANTS CAPITOL PROPERTY MANAGEMENT. INC. AND CAPITOL REAL ESTATE DEVELOPMENT'S PRELEVIINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendants Capitol Property Management, Inc. and Capitol Real Estate Development, by and through their counsel, Thomas, Thomas & Hafer, LLP, and respectfully file the instant Preliminary Objections to Plaintiff's Complaint, stating as follows: 1. Plaintiff filed a Complaint on or about January 4, 2011, with the Cumberland County Court. A copy of Plaintiff s Complaint is attached hereto and marked as Exhibit "A". 2. The Complaint alleges breach of contract, replevin/trespass, conversion, and wrongful eviction against Moving Defendants associated with their alleged eviction of Plaintiff from the World of Fitness Gym and Training facility at 21 North Third Street, Lemoyne, Cumberland County, Pennsylvania. 3. The Complaint makes claims for replevin, money damages and attorney's fees against the Moving Defendants. 4. There are several defects and/or deficiencies in Plaintiff's Complaint. Accordingly, Moving Defendants file these Preliminary Objections. 1. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO STRIKE COUNT I OF PLAINTIFF'S COMPLAINT AND DISMISS PLAINTIFF'S CAUSE OF ACTION FOR BREACH OF CONTRACT PURSUANT TO PA.R.C.P.1028(a)(4) 5. All foregoing paragraphs are included by reference as if fully set forth at length herein. 6. In the instant matter, Plaintiffs Complaint sets forth a cause of action sounding in breach of contract alleging a verbal lease/purchase agreement. (See Exhibit "A", IT 6, 8). 7. Plaintiffs Complaint also alleges a verbal lease. (See Exhibit "A", ¶ 3). 8. Plaintiff claims that the verbal lease gave her possession of the gym in exchange for payments of rent and expenses, including utilities (not including the ADT Security Service contract) and general liability insurance. (See Exhibit "A", ¶ 71). 9. Plaintiff s claims violate the Statute of Frauds, 33 Pa. C.S.A. § 1. 10. The Statute of Frauds, in relevant part, provides: [N]o leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messauges, manners, 2 lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or by their agents, thereto lawfully authorized by writing, or by act and operation of law. 33 Pa.C.S.A. § 1. 11. Leases are clearly mentioned in Statute of Frauds, and it expressly applies to leases. Id. 12. It is unclear to Moving Defendants how Plaintiff's claim for a lease purchase agreement falls outside the Statute of Frauds. WHEREFORE, Moving Defendants respectfully request this Honorable Court sustain its Preliminary Objections and strike Count I of Plaintiff's Complaint, with prejudice. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT U OF PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (DEMURRER) PURSUANT TO PA.R.C.P.1028(a)(2)-(4) 13. All foregoing paragraphs are included by reference as if fully set forth at length herein. 14. In the instant matter, Plaintiff's Complaint sets forth a cause of action for replevin in Count II of her Complaint. 15. Plaintiff fails to adequately plead the property which she requests returned to her possession. 16. In an action for replevin in which the Plaintiff has a property interest, it must be specifically described pursuant to Pa.R.C.P. 1073.1(a)(1). 17. Plaintiff generally describes her property as "her personal property at the gym premises, including, but not limited to, business files, equipment, cash and inventory". 3 18. Plaintiff does not provide an adequate description of the property pursuant to Pennsylvania Rules of Civil Procedure. 19. Plaintiff is also required to plead a value of the property pursuant to Pa.R.C.P. 1073.1(a)(2). 20. Plaintiff has failed to provide a value for the items claimed to be wrongfully withheld. 21. Plaintiff's claims in Count II should be stricken for failure to adequately describe the items and provide a value pursuant to Pa.R.C.P. 1073.1. WHEREFORE, Moving Defendants respectfully request this Honorable Court sustain its Preliminary Objection in the nature of a demurrer to Count II of Plaintiff's Complaint and against Moving Defendants for failure to conform to rule of law or rule of court, for legal insufficiency and/or failure to state a claim upon which relief can be granted. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Jo . Yanine E uire I. 55741 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-3952 Attorneys for Defendants Capitol Property Management Inc. & Capitol Real Estate Development Date: I _ ).T-- I I 4 CERTIFICATE OF SERVICE AND NOW, this a day of January 2011, I, Gwen M. Cleck, for the firm of THOMAS, THOMAS & HAFER, LLP, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: John R. Ninosky, Esquire Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 World of Fitness, Inc. 21 North Third Street Lemoyne, PA 17043 Sunset Tan and Spa 21 North Third Street Lemoyne, PA 17043 THOMAS, THOMAS & HAFER, LLP (LI 1 Ll?t A A Gwen M. Cleck 902269.1 5 i ° 1 " L F' qq r . ° 3t 1 r'b r.° 3?f n? nx THOMAS, THOMAS & HAFER, LLP E ° - John F. Yaninek, Esquire I.D. No. 54771 P. O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com Attorneys for Capitol Property Management Inc. & Capitol Real Estate Development STACY GARONZIK, V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CAPITOL PROPERTY MANAGEMENT, INC., CAPITOL FITNESS, INC., t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P., CAPITOL FITNESS, INC., t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA and SUNSET TAN & SPA, Defendants NO. 2011-73 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of John F. Yaninek, Esquire, as counsel on behalf of Defendants Capitol Property Management Inc. & Capitol Real Estate Development in the above- captioned matter. THOMAS, THOMAS & HAFER, LLP DATE: --.77 -1 I . Jo . Yaninek, q e CERTIFICATE OF SERVICE AND NOW, this -7 day of January 2011, I, Gwen M. Cleck, for the firm of THOMAS, THOMAS & HAFER, LLP, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: John R. Ninosky, Esquire Elizabeth D. Snover, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 1 7043-0 1 09 World of Fitness Gym and Tanning 21 North Third Street Lemoyne, PA 17043 Sunset Tan and Spa 21 North Third Street Lemoyne, PA 17043 902211.1 THOMAS, THOMAS & HAFER, LLP Q 4. Gwen M. Cleck LU-" ti _ F It..E0-0F F1CF. L"IHE - i15°?`' STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 1011 JAN 31 PM 2: 10 3510 Trindle Road Camp Hill, PA 17011 CUMBERLAHID COUNTY Telephone: (717) 760-7501 PENNSYLVANIA Attorney for Defendant, FAX: (717) 975-8124 Capitol Fitness, Inc. Ua World of Fitness E-mail: sbanko@margolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STACY GARONZIK, Plaintiff DOCKET NO.2011-73 Civil CIVIL ACTION - LAW V. CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA and SUNSET TAN, JURY TRIAL DEMANDED Defendants ELY OF AP TO THE PROTHONOTARY: Please enter the appearance of Stephen L. Banko, Jr., Esquire of Margolis Edelstein on behalf of Defendant, Capitol Fitness, Inc. t/a World of Fitness, only, in the above-captioned matter. By: 'Stff Y or , Capitol Fitness, Inc. t/a World of Fitness MA LIS EDELSTEIN { PH L. B NKO, JR. Attorne De endant Date: January 28, 2011 i CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: John R. Ninosky, Esquire Law Offices of Johnson Duffie PO Box 109 Lemoyne, PA 17043-0109 MARGOLIS EDELSTEIN Angela A. K lly, Secretary Date: January 28, 2011 i i ED a IF 7 THOMAS, THOMAS & HAFER, LLP ?- a t f, John F. Yaninek, Esquire C U F 1 : B i- R L E ,. t ? ! ; C I.D. No. 54771 L tx P. O. Box 999 Harrisburg, PA 17108 (717) 441-3952 jyaninek@tthlaw.com Attorneys for Capitol Property Management Inc. & Capitol Real Estate Development STACY GARONZIK, V. Plaintiff CAPITOL PROPERTY MANAGEMENT, INC., CAPITOL FITNESS, INC., t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P., CAPITOL FITNESS, INC., t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA and SUNSET TAN & SPA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-73 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE TO ATTACH EXHIBIT TO THE PROTHONOTARY: Please attach as Exhibit "A" Defendant Capitol Property Management, Inc. and Capitol Real Estate Development's Preliminary Objections to Plaintiff's Complaint, which is affixed to this instant Praecipe. THOMAS, 'T'HOMAS & HAFER, LLP DATE: 2/3/11 o F YYa a Esquire ? Ott}RJ]???? 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Tw*'i rte.: ; ?T t -of b }y.C ? sPON . . ism SON, DUFME wf?MRT & VMIC NER 1 3,St t?ra WLFwD S •" 30 r s T ?o, Aox j?? : ?aE, P ?t?ttk 1?0?5-??c? • w?JD??.?c??t ?11,?61. ??'K: tli-??T?15 '?fAtif??? jc?. NS©N, DUFFIC S.TEWART & WEI NE•R+ F.L, CERTIFICATE OF SERVICE AND NOW, this 3'd day of February 2011, I, Gwen M. Cleck, for the firm of THOMAS, THOMAS & HAFER, LLP, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: John R. Ninosky, Esquire Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Sunset Tan and Spa 21 North Third Street Lemoyne, PA 17043 THOMAS, THOMAS & HAFER, LLP dW&i M. Cleck 904970.1 . JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 FILED-Of FICc OF THE PROTHONOTAR)' 2011 FEB 10 PH 2= 2 0 Attorneys for Plaintiff CUMBERLAND COUNTY PENNSYLVANIA STACY GARONZIK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA Defendants NO. 2011-73 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS CAPITOL PROPERTY MANAGEMENT. INC. AND CAPITOL REAL ESTATE DEVELOPMENT. L.P. AND NOW, comes the Plaintiff, Stacy Garonzik, by and through her attorneys Johnson, Duffie, Stewart & Weidner and files this Response to the Preliminary Objections filed by the Defendants Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. and in support thereof states as follows: 1. Admitted in part; denied in part. It is admitted that Plaintiff filed the Complaint in the above-captioned matter; however, the Complaint is a legal document which speaks for itself and the arguments of the Defendants in their Preliminary Objections to that Complaint are denied as stated. 00. 2. Admitted in part; denied in part. It is admitted that Plaintiff filed the Complaint in the above-captioned matter which asserts the listed causes of action; however, the Complaint is a legal document which speaks for itself and the arguments of the Defendants in their Preliminary Objections to that Complaint are denied as stated. Furthermore, it is not alleged that the Plaintiff was merely evicted from the premises but was, without warning and illegally, excluded from the premises. 3. Admitted. 4. Denied. I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO STRIKE COUNT I OF PLAINTIFF'S COMPLAINT AND DISMISS PLAINTIFF'S CAUSE OF ACTION FOR BREACH OF CONTRACT PURSUANT TO PA. R.C.P. 1028(a)(4) 5. Plaintiff incorporates the averments of paragraphs 1 through 4 above as if fully set forth herein. 6. Admitted in part; denied in part. Plaintiff has alleged a verbal lease agreement, in part confirmed by a Letter of Intent, and that the verbal agreement was pending execution of a writing by the parties which the parties were continuing to finalize at the time of the wrongful eviction and exclusion by Defendants. 7. Admitted. 8. Admitted in part; denied in part. It is admitted that Plaintiff entered into the oral lease as alleged; however, it was also asserted in the Complaint that Plaintiff was to have the right to purchase the premises under a rent-to-own arrangement. See, Complaint. 2 9. Denied. A claim cannot violate the Statute of Frauds; rather, the Statute of Frauds is an available affirmative defense to some actions. See, Pa.R.C.P. 1028(a)(4) Note, Shoup v. Shoup, 364 A.2d 1319, 1323 (Pa. 1976). Applicability of the Statute of Frauds to Plaintiff's claims is specifically denied. 10. Denied. The provision of 33 Pa.C.S.A. § 1 is a statute which speaks for itself. It is specifically denied that the same is applicable to this lawsuit and even further denied that the same is properly asserted by way of Preliminary Objection. By way of further response, Pennsylvania law, specifically Pa.R.C.P. 1028(a)(4), notes that "the defense of the bar of a statute of frauds or statute of limitations can be asserted only in a responsive pleading as new matter under Rule 1030." 11. Denied. This paragraph is a conclusion of law to which no response is required. Should a response be required, this paragraph in its entirety is denied. 12. Denied. The averment in this paragraph is argument which requires no response; however, if a response is deemed required, the same is denied in its entirety since the Statute of Frauds is inapplicable to the causes of action as pled. By way of further response, it is unclear to the Plaintiff how the Defendants' Preliminary Objections based upon the Statute of Frauds should stand when the law of Pennsylvania states that a defense of the Statute of Frauds is not properly asserted by way of Preliminary Objection and can only be asserted in New Matter after the Defendants have denied the existence of the oral agreement, or portions of it, so pled. WHEREFORE, Plaintiff Stacy Garonzik requests that this Honorable Court deny Defendants' Preliminary Objections. 3 r II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT 11 OF PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (DEMURRER) PURSUANT TO PA.R.C.P. 1028(a)(2)-(4) 13. Plaintiff incorporates the averments of paragraphs 1 through 12 above as if fully set forth herein. 14. Admitted. 15. Denied. 16. Denied. Pennsylvania Rule of Civil Procedure 1073.1(a) states as follows: (a) The plaintiff shall include in the Complaint: (1) a description of the property to be replevied; (2) its value; (3) its location, if known, and (4) the material facts upon which plaintiffs claim is based. Plaintiff is in compliance with Rule 1073.1 since she has pled all four requirements in her Complaint. 17. Admitted. By way of further response, as is also pled extensively in the Complaint, Plaintiff was without notice or warning excluded from the premises and was, therefore, unable to take an inventory of all property which was located on the premises when she was excluded. Therefore, the averment is specific enough to put the Defendants on notice of the replevin action asserted against them and a more specific pleading should not be required. Plaintiff sees no legal basis for a demurrer based upon an alleged insufficient specificity in a pleading. 18. Denied. Rule 1073.1 requires only that the property be described, not that it be specifically itemized. See response to paragraph 17. 19. Admitted. 4 20. Denied. Plaintiff has pled that her property is valued in excess of the compulsory limits for arbitration which is $50,000. See, Complaint. This is sufficient to put the Plaintiff on notice of the value of the property. Plaintiff should not be required to get an appraisal of her property when she is denied access rights to the same as alleged in the Complaint. The pleading is sufficient under the Rules of Civil Procedure. 21. Denied. As stated, Plaintiff sees no legal basis for a demurrer based upon an alleged insufficient specificity in a pleading. By way of further response, such alleged lack of specificity is denied and, given the wrongful exclusion alleged in Plaintiff's Complaint, a complete and conclusive inventory and valuation is not feasible. Of course, Plaintiff intends to issue requests for discovery and inspection of the premises under the Rules of Civil Procedure which should apprise both parties of the full extent of the property wrongfully held by the Defendants. WHEREFORE, Plaintiff Stacy Garonzik requests that this Honorable Court deny Defendants Capitol Property Management, Inc. and Capital Real Estate Development, L.P.'s Preliminary Objections. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By. III John R. osky, Esquire Attorn .D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: February 9, 2011 Attorneys for Plaintiff 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response of Plaintiff to Preliminary Objections of Defendants Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on February 9, 2011: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Counsel for Capitol Fitness, Inc. t/a World of Fitness JOHNSON, DUFFIE, STEWART & WEIDNER By: liza h D. Snover t---- PRAECIPE FOR LIST NG CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the nexument rt`i Court.) rn CAPTION OF CASE_ (entire caption must be stated in full) J_ STACY GARONZIK, Plaintiff vs. CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA Defendants No. 2011-73, Civil Term State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiffs: John R. Ninosky and Elizabeth D. Snover, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108 Counsel for Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. Stephen L. Banko, Jr., Esquire Margolis Edelstein, 3510 Trindle Road, Camp Hill, PA 17011 Counsel for Capitol Fitness, Inc. Va World of Fitness (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 25, 2011 Date: February 23, 2011 L, Signal f (/Elizabeth D. Snover Print your name Attorney for Plaintiff INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. c -TJ 4^? --a c STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbankoftmaroolisedelstein.com STACY GARONZIK, V. Plaintiff CAPITOL PROPERTY MANAGEMENT, INC., CAPITOL FITNESS, INC., t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P., CAPITOL FITNESS, INC., t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA and SUNSET TAN & SPA, Defendants f"s .s r? ? t e Attorney for Defendant Capitol Fitness, Inc. t/a World of Fitness IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-73 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT CAPITOL FITNESS INC. t/a WORLD OF FITNESS,TO PLAINTIFF'S COMPLAINT 1. Plaintiff filed her Complaint in the above-captioned action on or about January 4, 2011. A copy of Plaintiffs Complaint is attached hereto and marked as Exhibit "AY, 2. The Complaint alleges breach of contract, replevin/trespass, conversion, and wrongful eviction against all Defendants, including Capitol Fitness, Inc. t/a World of Fitness ("Capitol Fitness"). Plaintiff alleges that on or about June 16, 2010, Capitol Fitness, among others, wrongfully evicted Plaintiff from the World of Fitness Gym and Training facility at 21 North Third Street, Lemoyne, Cumberland County, Pennsylvania. 3. The Complaint makes claims for replevin, money damages, attorneys' fees and punitive damages against the Capitol Fitness. 4. There are several defects and/or deficiencies in Plaintiffs Complaint. Accordingly, Capitol Fitness files these Preliminary Objections. 5. Pa.R.C.P. 1028(a) provides in pertinent part as follows: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (2) failure of a pleading to confirm to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity of the pleading; (4) legal insufficiency of a pleading (demurrer)... 1. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO DISMISS COUNT I OF PLAINTIFF'S COMPLAINT PURSUANT TO PA.R.C.P. 1028(a)(4) 6. All foregoing paragraphs are included by reference as if fully set forth at length herein. 7. In the instant matter, Plaintiffs Complaint sets forth a cause of action sounding in breach of contract alleging a verbal lease/purchase agreement. (See Exhibit "A" ¶¶ 6 8) 8. Plaintiffs Complaint also alleges a verbal lease. (See Exhibit "A", ¶ 3). 9. Plaintiff claims that the verbal lease gave her possession of the gym in exchange for payments of rent and expenses, including utilities (not including the ADT Security Service contract) and general liability insurance. (See Exhibit "A", % 71). 10. Plaintiffs claims violate the Statute of Frauds, 33 Pa. C.S.A. § 1. 11. The Statute of Frauds, in relevant part, provides: [N]o leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messauges, manners, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or by their agents, thereto lawfully authorized by writing, or by act and operation of law. 33 Pa.C.S.A. § 1. 12. Leases are clearly covered by the Statute of Frauds. Id. 13. Therefore, it is believed and therefore averred that the alleged agreement is not enforceable under the Statute of Frauds. 14. Accordingly, Count I of Plaintiffs Complaint is properly dismissed pursuant to Pa. R.C.P. 1028(a)(4) for failure to state a claim upon which relief may be granted. WHEREFORE, Defendant, Capitol Fitness, Inc. t/a World of Fitness, respectfully requests this Honorable Court sustain its Preliminary Objection and dismiss Count I of Plaintiffs Complaint, with prejudice. 11. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT II OF PLAINTIFF'S COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P.1028(a)-(2) 15. All foregoing paragraphs are included by reference as if fully set forth at length herein. 16. In the instant matter, Plaintiffs Complaint sets forth a cause of action for replevin in Count II of her Complaint. 17. Plaintiff fails to plead or otherwise identify or value the property which she requests be returned to her possession. 18. In an action for replevin in which the Plaintiff has a property interest, it must be specifically described pursuant to Pa.R.C.P. 1073.1(a). 19. Plaintiff generally describes her property as "her personal property at the gym premises, including, but not limited to, business files, equipment, cash and inventory". 20. Plaintiff does not provide an adequate description or the value of the property as required by the aforesaid Rule of Civil Procedure. 21. Plaintiffs claims in Count II is properly stricken pursuant to Pa.R.C.P. 1028(a)(2) for failure to comply with the requirements of Pa.R.C.P. 1073.1(a). WHEREFORE, Defendant, Capitol Fitness, Inc. t/a World of Fitness, respectfully requests this Honorable Court sustain its Preliminary Objection in the nature of a Motion to Strike Count II of Plaintiffs Complaint for failure to conform to law or rule of court. Respectfully submitted, 71 -?J I Date: -7 I MARGOLIS EDELSTEIN By: , _ J( S EN . BANKO, JR. Attorney for Defendant, Capitol Fitness, Inc. t/a World of Fitness I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the ???day of J2 b0arq , 2011, and addressed as follows: John R. Ninosky, Esquire Law Offices of Johnson Duffie PO Box 109 Lemoyne, PA 17043 John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 MARGOLIS EDELSTEIN By: q ? M hftV6?') Angela . Gayman, a retary JoHNsoN, DUFFIE, STEWART & WEMNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 7614540 STACY GARONZIK, V. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. - 00? 3 CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. Va CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L. P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA : Defendants COMPLAINT CIVIL ACTION - LAW JURY TRIAL DEMANDED AND NOW, comes the Plaintiff, Stacy Garonzik, by and through her attorneys Johnson, Duffle, Stewart & Weidner and files this Complaint against the Defendants listed above and in support thereof avers as follows: 1. The Plaintiff, Stacy Garonzik, (hereinafter "Garonzik"), is an adult individual with a principal place of business at 902 Market Street Rear, Lemoyne, Cumberland County, Pennsylvania 17043. 2. The Defendants are Capitol Property Management, Inc., a Pennsylvania corporation, Capitol Fitness, Inc., general partner and trading as World of Fitness, Inc. and a/k/a World of Fitness, L.P., a Pennsylvania limited partnership, and Capitol Fitness, Inc. general partner and trading as Capitol Real Estate Development, L.P., a Pennsylvania limited partnership a/d/b/a Capitol Property Management of New Cumberland, PA (hereinafter "Defendants"), all with a principal place of business and registered office address of 110 Third - aal, Suite 200, New Cumberland, Cumberland County, Pennsylvania 17070. It is believed and averred that Eric Derosiers (hereinafter "Derosiers") is the President of the entities referred to collectively herein as Defendants and acted as their agent and representative. 3. This action arises out of a verbal lease that was entered into between Garonzik and Derosiers acting on behalf of the Defendants in November 2009, for the property located at 21 North Third Street, Lemoyne, Cumberland County, Pennsylvania which contained the World of Fitness Gym and Sunset Tan & Spa (hereinafter collectively referred to as "Gym"). 4. World of Fitness Gym and Tanning facility at 21 North Third Street, Lemoyne, was run and operated by employees of the Defendants. 5. However, due to management concerns, Derosiers approached Garonzik about operating the Gym in late 2009. 6. The discussions between Garonzik and Derosiers progressed so that Derosiers proposed a "lease to own" arrangement wherein Garonzik would initially lease and operate the Gym and pay rent to the Defendants in the amount of Seven Thousand Dollars ($7,000.00) per month for use of the premises and some of the equipment contained thereon. Ms. Garonzik also brought in her own equipment, supplies, inventory, and some staff. 7. As discussions further progressed, Derosiers sent a non-binding "Letter to Intent for Business Transaction" to Garonzik wherein Capitol Property Management of New Cumberland, PA offered, in general terms, to lease the Gym to Garonzik on a five (5) year triple net lease of the Gym. A true and correct copy of the Letter of Intent and email exchange delivering the same is attached hereto as Exhibit A. 2 8. Garonzik was told that the "rent to own" portion of the verbal agreement could not be placed in the Letter of Intent because the Defendants were still under contract with a real estate agent/broker for sale of the premises and the Defendants did not want to incur any commission obligation through their agreement with Garonzik. 9. Garonzik accepted the terms of a five (5) year triple net lease with a monthly rent of Seven Thousand Dollars ($7,000.00); however, it was agreed that the Defendants would maintain the bond with the Attorney General if required under Pennsylvania's Health Club Act and would maintain insurance on the building structure. Garonzik would maintain general liability insurance for the business. 10. Initially, Garonzik was asked to maintain separate liability insurance on the Sunset Tan & Spa portion of the premises and was told by the Defendants to use KHB Insurance to procure a policy. 11. However, when KHB Insurance informed Garonzik and the Defendants that it could not issue the insurance to Garonzik directly, it was agreed that the Defendants would maintain their policy of insurance on the Sunset Tan & Spa portion of the business and Garonzik would maintain her general liability policy with regard to the gym portion of the business. 12. Additionally, the Defendants told Garonzik that she was required to utilize the eFit membership system for operation of the Gym and was required to keep Amy Patterson (an employee of the Defendants) since she was knowledgeable in the eFit system. 13. Since Garonzik was required to use the eFit system for memberships, she made it clear that she would not continue the use of the ADT Security System when she obtained 3 possession of the Gym since the same would not work with the eFit system for membership cards and swipes for entry. 14. As such, Ms. Garonzik would not agree with Defendants' demands that she would assume the ADT Security contract nor pay the monthly fees and arrearages for the same. 15. This was accepted by the Defendants and they agreed to remove the ADT security cameras in place at the Gym. 16. Garonzik took over possession of the Gym and began her operation of the same in December 2010 and began paying rent which was accepted by the Defendants. 17. As stated, Ms. Garonzik was directed to utilize the eFit payment system for the Gym which is a software and on-line based program which handles the collection of fees and membership payments from Gym members and users and remits the same to Ms. Garonzik. 18. The eFit system was in place and used by the Defendants when its employees operated the Gym. 19. When the Defendants informed Garonzik that she was required to use the eFit system, she was told that the system would pay all remittances for membership fees etc. on the 15'h and 3& of each month. 20. As such, the Defendants required Garonzik to pay rent on the 1 °t of each month. 21. In January 2010, the eFit system changed the way it would remit membership revenues to the Gym so that Ms. Garonzik would not receive the revenues from membership dues and fees at a certain time each month. 22. Consequently, she could not make a rent payment on the 1st of the month as agreed at the inception of the verbal lease. 4 23. Garonzik informed the Defendants of this change. A true and correct copy of an email from Jade (an employee of Capitol Property Management) to Derosiers regarding the same is attached hereto as Exhibit B. 24. Consequently, since the eFit payments were the major source of revenue for the Gym, the Defendants agreed to accept monthly rental payments on or about the 201" of the month as corresponding to the eFit remittances to Garonzik. 25. As stated, when Garonzik took over the Gym as operator and tenant, she was required by Derosiers, acting on behalf of the Defendants, to keep certain former employees of the Defendants, including Amy Patterson, on staff at the Gym. 26. It was agreed that Garonzik was responsible for paying employee salaries going forward after she took over operations of the Gym. 27. Garonzik did so, however, she did not agree to pay employees for hours worked at World of Fitness before she took over the Gym. 28. Garonzik also did not agree to pay Works of Fitness employees' overtime for December 2009, but she did so. 29. Additionally, since the Defendants did not want to change the signage and business identity already in place at the Gym, Garonzik was required by the Defendants to continue to operate the Gym under the name World of Fitness and Sunset Tans & Spas and all membership agreements were executed under this name per the Defendants' requirements. 30. Garonzik operated the Gym for several months and made all rental payments as agreed and as corresponding with the eFit remittances. 5 31. However, Garonzik was required to maintain the "Spa" portion of the property for state inspections so that the Defendants could keep their license or certification for such a spa operation at the premises. 32. Consequently, Garonzik was unable to utilize the back portion of the property since she did not operate a spa but had to maintain the facilities for the same. 33. Garonzik increased revenues and membership at the Gym during this time. 34. However, on or about March 17, 2010, Derosiers approached Garonzik about signing a written lease for the Gym. 35. Derosiers sent numerous versions of a proposed lease with terms that were constantly changing or which contradicted the verbal lease agreement. 36. Garonzik refused to. sign a written lease that did not incorporate the terms of the verbal lease or put upon her onerous personal and professional obligations to which she did not and could not agree. 37. Namely, Garonzik did not agree to pay the ADT Security fees (which were in arrears of over $12,000) since the system was never operational during her possession and did not meet the specifications of the eFit system she was required to use by the Defendants. 38. Also, Garonzik did not agree to maintain insurance on the structure of the building including special coverages and insurance level requirements demanded by Derosiers which were not subject to the verbal lease and were not readily available after inquiries with Garonzik's insurance agent and broker. 39. The Defendants also demanded that they have control over employment matters at the Gym, required that Garonzik (a single mother of a two year old son) be present at the Gym during all hours of operation (approximately 90 hours a week), that the Gym not remove 6 security cameras installed by the Defendants to which Garonzik had no control (despite the Defendants' prior representations that the cameras would be removed), required Garonzik to put as additional insureds several of the related business entities listed in the caption on her general liability policy, required Garonzik to give free memberships and tanning services to ten (10) of the Defendants' employees and to Derosiers' friends, required Garonzik to give free services to Eric Derosiers' girlfriends, and that Garonzik's ex-husband had to agree to provide personal training services to Derosiers free of charge. 40. As stated, the same security cameras were agreed to be removed in December 2009. See, Exhibit A. 41. However, instead the Defendants removed the access and control devices for the cameras to a locked cabinet to which Garonzik did not have access. 42. Garonzik did not know who was watching footage taken by the cameras and was excluded from access to the same. 43. When Garonzik refused certain terms, new leases with additional onerous terms and conditions were sent by the Defendants in draft. 44. As new proposed leases continued to be sent by Derosiers and Defendants to Garonzik with ever demanding and unreasonable terms, Derosiers became frustrated with Garonzik's refusal to sign a written lease with terms to which she did not and could not agree. 45. Finally, this situation came to a head with the Defendants locking Garonzik out of the Gym without warning and without default at or about 10:30 p.m. on Friday, June 16, 2010. 46. Garonzik only learned that she, her staff, and the Gym patrons were locked out by the Defendants when she went to the Gym on the morning of Saturday June 17, 2010 and found the locks changed. 7 47. Later, without any input or knowledge of Garonzik, the Defendants posted a note on the entrances to the Gym reading: "with the safety and respect of the members using the gym and tanning facilities in mind, the difficult decision to stop operations was made." See Exhibit C. 48. The Defendants then proceeded to demand that Garonzik sign a written lease with unacceptable terms or Garonzik would not be permitted to re-enter the Gym and run her business. 49. Defendants employed classic duress in an attempt to force Garonzik into an unacceptable written lease. 50. With Garonzik steadfast in her refusal to sign an unacceptable and unconscionable written lease, Derosiers made statements to the public that the reason why he used self-help to close the Gym was due to a "lack of insurance." See Exhibit C. 51. The Defendants approached the Patriot News with this story about inadequate insurance. A true and correct copy of the July 12, 2010 article is attached hereto as Exhibit C. 52. However, the insurance coverage on the Gym was that which was agreed to and accepted by the parties since Garonzik took over operation and tenancy at the Gym in January 2010. 53. It is believed and therefore averred that the insurance on the property was adequate as agreed but that Derosiers desired to break the terms of the verbal lease and require Garonzik to take over the bond with the Attorney General (which was due to lapse in June 2010) and insurance for the structure of the building with high enough limits so that the Defendants (and their related entities) would not have to pay significant insurance premiums for their building. 8 54. During June and July 2010, the parties tried to come up with terms for a mutually acceptable lease agreement; however, terms could not be reached and the Defendants remained unreasonable in their demands as to rental payments and expenses and liabilities to be shifted to Garonzik. 55. Ever since the Defendants, without warning or right, excluded Garonzik and her representatives from the Gym premises, the Defendants have been in sole possession of the Gym. 56. Garonzik, through counsel, requested that she have access to the Gym to remove her personal items, inventory, cash, equipment, and other valuables and personal property. 57. The Defendants agreed to allow a representative of Garonzik to remove a few small personal items and some businesses files but not the equipment, cash, inventory, and bulk of the personal property belonging to Garonzik located and locked away at the Gym premises. 58. It was later learned that the Defendants wrongfully and in breach of client privacy made copies of client files which contained protected health information (PHI) under HIPAA. It is believed and averred that the Defendants remain in possession of copies or originals of Garonzik's client and business files. 59. During this limited removal, a representative of Garonzik noted that cash, inventory, and other personal and business items of Garonzik were missing and presumably taken or converted by the Defendants. 9 60. The Defendants refused and continue to refuse access to Garonzik to remove her property and to inventory the same to ascertain what was converted or taken by the Defendants. 61. When Derosiers was asked about the whereabouts of the missing property, he indicated that his employee may have taken it and this is why Garonzik had homeowners' insurance, and she should file a loss claim with regard to this property. 62. Finally, in late July 2010, it was apparent that the parties could not come to terms on the lease to own agreement. 63. On July 27, 2010, counsel for Garonzik sent a letter to counsel for the Defendants indicating an end to negotiations on the lease or option to buy for the Gym and requested access to the Gym to remove Garonzik's property and equipment. A true and correct copy of that letter is attached hereto as Exhibit D. 64. The Defendants refused and have continued to refuse access to Garonzik or her representatives to remove her property from the Gym. 65. The wrongful exclusion of Garonzik and her representatives and employees from the Gym has resulted in monetary harm to Garonzik and loss of business. 66. The wrongful refusal to allow Garonzik access to the Gym to remove her property has caused her financial harm and loss of business. 67. The inaccurate and self-serving representations made by the Defendants' representatives to the media and public have harmed Garonzik's professional reputation and business. 10 68. Garonzik has since opened a new gym facility; however, several of her clients have declined to continue their professional relationship due to the wrongful eviction and actions of the Defendants and their representatives related to World of Fitness (the "Gym"). 69. The actions of the Defendants and their representatives continue to cause Garonzik loss of business, loss of reputation, and consequential damages. COUNT I - Breach of Contract STACY GARONZ/K v. ALL DEFENDANTS 70. Plaintiff incorporates the averments of paragraphs 1 through 56 above as if fully set forth herein. 71. Pursuant to the verbal lease, Garonzik was given possession of the Gym in exchange for payments of rent and expenses including utilities (not including the ADT Security Service Contract) and general liability insurance. 72. The Defendants used tactics of duress to coerce Garonzik to enter into a written lease agreement with additional and onerous terms over and above the verbal lease agreement. 73. When Garonzik would not agree to these additional and unreasonable terms, the Defendants, without warning, changed the locks to the Gym and wrongfully excluded Garonzik, her staff and her representatives from the Gym premises contrary to the terms of the verbal lease. 74. The Defendants then used this wrongful exclusion as a means of duress to coerce Garonzik to sign an unreasonable written lease with terms not agreed to verbally by the parties. 11 75. When Garonzik refused to agree to the unreasonable terms of the written lease proposals, the Defendants continued to exclude her from the Gym premises and prevented Garonzik from running her business. 76. Garonzik had to work with clients to provide refunds and free services at her home, parks, or wherever she could secure space until she opened a new gym facility in October 2010 due to the wrongful actions of the Defendants. 77. Garonzik has lost clients and other business opportunities due to the wrongful actions of the Defendants. 78. Garonzik has suffered consequential damages due to the wrongful actions of the Defendants. 79. The Defendants have breached the verbal lease by their wrongful actions. 80. The Defendants have failed to comply with the requirements of the Landlord and Tenant Act including but not limited to recovery of possession under 68 P.S. §250.501 et seq. WHEREFORE, Plaintiff, Stacy Garonzik, demands judgment against the Defendants in the amount in excess of the limits for compulsory arbitration and any other relief that the Court deems appropriate. COUNT 11- RepleviNTmspass STACY GARONZIK v. ALL DEFENDANTS 81. Plaintiff incorporates the averments of paragraphs 1 through 80 above as if fully set forth herein. 12 82. The Defendants have unlawfully prevented Garonzik and her representatives from regaining possession of her personal property at the Gym premises including but not limited to business files, equipment, cash, and inventory. 83. Despite repeated requests for possession of the personal property, the Defendants have wrongfully refused the same. 84. The Defendants are not entitled to distrain of the personal property since no rent is lawfully due and owing due to the Defendants' breach of the verbal lease through their wrongful exclusion of Garonzik from the Gym premises. 85. Consequently, Garonzik demands return of this property and/or compensation for the same plus double damages and counsel fees if any of the property has been wrongfully sold pursuant to 68 P.S. §250.313. 86. In the alternative, if any rent is due, which Garonzik denies, the Defendants have taken property valued in excess of the rent due and have failed to comply with the requirements of distrain under the Landlord and Tenant Act making their distrain unlawful and improper under 68 P.S. §250.312. 87. Further, in the alternative, the Defendants have failed to make proper distrain under all provisions of the Landlord and Tenant Act, including but not limited to timeliness, amount of property distrained, tenant's exemption, notice and oppressiveness, and are liable to Garonzik in trespass for the same pursuant to 68 P.S. §250.312. WHEREFORE, Plaintiff, Stacy Garonzik, demands return of all of her personal property in the possession of Defendants, that a judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus double damages and counsel fees pursuant to 68 P.S. §250.313, and any other relief that the Court deems appropriate. 13 COUNT /ll - Conversion STACY GARONZIK v. ALL DEFENDANTS 88. Plaintiff incorporates the averments of paragraphs 1 through 87 above as if fully set forth herein. 89. The Defendants have unlawfully prevented Garonzik and her representatives from regaining possession of her personal property at the Gym premises including but not limited to business files, equipment, cash, and inventory. 90. Despite repeated requests for possession of the personal property, the Defendants have wrongfully refused the same. 91. The Defendants are not entitled to a set-off of the personal property or self-help and have failed to comply with the provisions of the Landlord and Tenant Act. 92. The Defendants have wrongfully converted cash and other personal property as described above including but not limited to inventory and equipment. 93. The Defendants have acted outrageously in using tactics of duress and wrongful eviction/exclusion which has caused Garonzik damage to her business and reputation. WHEREFORE, Plaintiff, Stacy Garonzik, demands that judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus punitive damages and any other relief that the Court deems appropriate. COUNT IV - Wrongful Eviction STACY GARONZ/K v. ALL DEFENDANTS 94. Plaintiff incorporates the averments of paragraphs 1 through 93 above as if fully set forth herein. 14 95. The Defendants have wrongfully prevented Garonzik from possessing the Gym premises in order to conduct her business. 96. The Defendants have failed to comply with the provisions of the Landlord and Tenant Act for recovery of possession in violation of Garonzik's rights under that Act. 97. Specifically, the Defendants failed to provide Garonzik with any notice of default required pursuant to the Landlord and Tenant Act and the Defendants engaged in self-help to unlawfully retake possession of the premises, without warning, to Garonzik. 98. The Defendants' failure to comply with the provisions of the Landlord and Tenant Act resulted unlawful "self-help" and a wrongful eviction of Garonzik from the Gym premises which caused damage to her business, reputation, and caused other consequential damages. 99. Garonzik never waived her rights under the Landlord and Tenant Act. 100. The Defendants have wrongfully evicted Garonzik under the provisions of 68 P.S. §250.101 et seq. specifically 68 P.S. §250.501. WHEREFORE, Plaintiff Stacy Garonzik demands that a judgment be entered against the Defendants in the amount in excess of the limits for compulsory arbitration plus punitive damages and any other relief that the Court deems appropriate. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: *ninosky, Esquire Attorney I.D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: January 3, 2011 Attorneys for Plaintiff 15 EXHIBIT A i tE: Gym Information - hfrp://mail.ao,.com/32679-? 11/aim-2Jen-us/maiJPrintMessage.aspx From: Jade Etko <Jade@capitolpmcorm To: Stacy Garonak <myrtusclelady@aol.conv Cc: Eric Desrosiers <Eric@capitolpm.corrv Subject: RE: Gym Information Dale: Wed, Nov 25, 2009 5:06 pm Attachments: Executed.Letter of IntenLWOF.11.24.09.pdf (9511) c•. a 'V, I have attached the letter of intent for the lease of World of Fitness/Sunset Tan & Spa. Jade Efko Office Manager Capitol Property Management From: Stacy Garonzik [mailto:mymusdelady@aol.com] Sent: Tuesday, November 24, 2009 8:31 AM To: Jade Efko Subject: RE: Gym Information Thanks so much - Sent from my Palm Pn3 Jade Efko wrote: Stacy, I had to leave early yesterday I will write the letter today, however I cannot do anything with it until Eric reviews it. I will email you when it is ready. Jade Efko Office Manager Capitol Property Management From: Stacy Garonzik [mailto:mymusclelady@aol.com] Sena: Monday, November 23, 2009 8:03 PM To: Jade Efko Subject: Re: Gym Information Jade, eric told me that I would get a letter of intent today via you. I did learn you had some things come up today. No worries. I just want to reiterate to you as I did to eric yesterday that I need this for my attorney and to be able to give notice at my current location and I am under severe time constraints. Your attention to this is very appreciated! Thank you Stacy g. - Sent from rry Palen Pre of 2 10/3/2010 12:17 PM tE: Gym Information Jade Efko wrote: Stacy. `rm://=a .ool.com/32679-311/a,n-2/e^-?.is/r.-a;VPrintMessage.aspx I attached the following documents: Tenant info summary: lists a-Fit POS information, Insurance contact information, and Brivo monitoring information. Utility doc: lists all current utility companies, phone numbers, and answers to your questions regarding transferring service Current a-Fit contract: outlines all features currently enabled as well as additional features available with prices. e-Fit summary of charges: Report I printed out of a-Fit showing monthly deposit detail and a-Fit deductions. WOF desk instructions: These are desk instructions I wrote up for a-Fit procedures. You may find this helpful in learning the system. Also Eric wanted me to let you know that he will be removing the security cameras currently installed. So please speak with him about that. I did not have time to discuss the sign and software with him so I will email you once I do. Also be sure to get with Juan regarding the last time the bulbs were changed in the tanning beds. I believe he changed them so he should be able to give you that info. In addition with a-Fit you do not need to worry about PCI (payment card industry) compliance. Since they are processing, transmitting and storing member credit card information on their server/ database they have to meet the compliance standards. If you decide to go another route you may be responsible for this. You may already be aware of this, but I wanted to mention it just in case. You can call me if you would like additional info on PCI compliance or if you have any questions. Jade !of 2 10/3/2010 12:17 PM LETTER OF INTENT FOR BUSINESS TRANSACTION PERSONAL & CONFIDENTIAL November 24, 2009 Stacy Garonzik [Street Address] [City, State, Zip Code] Re: World of Fitness/Sunset Tan & Spa Lease Dear Ms. Garonzik: This non-binding letter of intent (the "Letter of Intent") is made by and between Capitol Property Management of New Cumberland, PA ( "Party A') and Stacy Garonzik ("Party B," and together with Party A, each a "Party" and collectively the "Parties') and sets forth the general terms and conditions of the Parties agreement (as per previous conversations and emails with the owner Mr. Eric J. Desrosiers) to enter into a 5 year triple net lease of the World of Fitness/Sunset Tan & Spa facility and equipment, located at 21 N. P Street Lemoyne, PA 17043. Party A. agrees to pay party B. the lease/rent amount of $5,000.00 per month for the month of January 2010 increasing to $7,000.00 per month beginning the month of February 2010.In addition party B. agrees to pay all taxes (with the exception of property taxes which will be paid by party A.), insurance, utilities, POS, security monitoring, and maintenance expenses that arise from the use of the property and equipment (the "Proposed Transaction"). This letter contains non-binding provisions of understanding between Party A and Party B. Unless otherwise explicitly stated; it does not impose any legal obligations on either Party. If the foregoing terms and conditions are in form and substance acceptable to you, please so indicate by signing this Letter of Intent in the space provided below and returning it to the attention of the undersigned. Sincerely, AGREED AND ACCEPTED: Dated: Eric J. De By: Inc J. Desrosiers President/Lessor Stacy Garonzik By: /s/. Stacy Garonzik Lessee i II ik3mol ,ent Payment h'tp://mail.aoI.com/32679-311/air-2/-,,-•n/ma',UPrintMessage.aspx From: Jade Etko <Jade@capitolpm corrv To: Eric Desrosiers <Edc@capftoipm.com>; 7179799133@bd.att.net Cc: Edward Tubbs <Edward@capitoIpm.com>; mymusclelady@aim.corrm Subject: Rent Payment Date: Mon, Feb 22.2010 11:16 am Eric, Stacy called this morning to advise us that as Feb a-Fit changed the way that credit cards are deposited into the account Instead of the credit cards hitting twice a month they will hit at different times of the month. Additionally the different types of transactions will be deposited differently as well. POS transactions will hit at a different time than the Add On's, and membership dues will hit at a different time than the POS, and Add On's. When we used a-Fit they dispersed the credit card payments into the account twice a month on the 15th and the 30th, and the deposits were for all types of transactions. Stacy also said that PPL told her she was only responsible for 1 meter in the building; however there are 3 meters that they should be billing her for. Stacy called to schedule and appt with PPL and the soonest they had availability was next week Stacy will be by this week to drop off several checks to have the rent covered by this Fri 2/26. Jade Information from ESET NOD32 Antivirus, version of virus signature database 4887 (20100222) The message was checked by ESET NOD32 Antivirus. httr)://www.eset.com 1 of 1 10/3/2010 12:31 PM EXHIBIT C ?' 7i-ness gym and fanning salon in Lemoyne closes for lack of insurance' Pe7T f . ? Page 1 of 4 ( s axe s..rah sacra hsoh wreess uah e. a euq n m you Iry: 0.e9irttar for free w! Search for keywords, people, locations. QWWW es, wet, 10 and more. 11 ?t? Hotnc? News : Opinion Sports Entertainment j Using 1 Interact ; Sobs I Autos Real Estate Rentals I Classed Ads Shop Nrmrs The Patriot-News Polities ausinass weather obituaries Lottery Spedal Projects State, U.S. & World Mort News Top Victim says he warted Fluorescent bulbs stories tip kill alleged shooter recalled Nomr- > areaking Misstate News with This Patriot-News > Breaking News World of Fitness gym and tanning salon in Lemoyne closes for lack of insurance Published: Saturday, 3uty 10, 2010, 9:00 AM Updated: Monday. jut 12, 2010, 12:02 PM REBECCA 3ONESr The Patrkt-NewS share th4 stwy stt.y Mecca Fall W aurshey hosts antique auto show The World of Fitness gym and tanning 4 0 salon on South Third and Market Streets In Lemoyne has dosed Its doors for now. A written statement from Capitol tasO.s Property Management said that the h act Bocce gym's managers, Stacy and Eric Garonzik, did not have proper insurance coverage, which created a liability for ownership. "With the safety and respect of the members usbhg the gym and tanning facilities In mind,' the statement read, 'the difficult decision to stop operations was made.' Stacy Garonzlk said it was a -mutual agreement after the fact.- The gym has signs posted on the doors and windows Coat read, -We appreciate the support, and look forward to seeing you when the gym re-opens," fisting the reopening for June 23, more than AN wsauw o.w Fao.beek a Twitter accesses . two weeks ago. Capitol Property Management officials said the gym will reopen under the name World of Fitness PA when the managers gain proper Insurance coverage. Though the names Stacy and Eric Garonzik appear at the end of the note, Stacy Garonzik said the note was written and posted by the property's owner, and she hasn't 'even stepped foot on the property' since It dosed. She said that all registered clients with valid contact information have been informed of the closure and updates 'almost on a dally basis." Since the site was dosed, no further charges should have appeared on client bills, she said. Customers who were charged may choose a refund for the period of closure or a free month of services, she said. She said she also is offering a free month of service to any new or existing client. The gym's Facebook page has three comments, all concerning the closure. Client Danielle Chenard Foster wrote, "I bought a year's membership! Not good and just not right!' Reoom endaHons Pa. Noose -PP - Doctrine" t 9wiruse acrd shoes to the Berms for enrAidwstim 83 people shared this l war Allan Polka Inveefigrrd did larlrg . r atar.pt 99 people shared this. lancester Coort y dWiet *doe dead for hooding out eoodeses htaWa scorns 253 People shared des. Powasylveals ste-ov gawarah etflaa I walbsr pteha Ines Manhey Trove 29 people shared this. © saoem? edn Fwh More More ?? ~ News with Garonziks, a divorced couple, were charged with eight others last year for allegedly using, The Patriot-News distributing and manufacturing steroids. Most Comments edam Recant Eric Garonzik, a former part-time police officer, faces 25 years In prison 9 convicted. Brealdin Mldsbte News with The Police said some of the steroid deals allegedly occurred inside Kinetics, a now-dosed Lemoyne PatFlOt-News; storks With the Most gym the two owned together. COrrli WYM M the last 2 days. Related topics: capltol property management, world of fitness Inappropriate soft' Alert us. Shonatdoalh men go on trial In 49 fatal beating of Neaion ImmipnM Sponsored Units 33 Canmenteryt Lao odds don't • rents Ise Sestak s campaign 27 Supreme Court oats phis right to grieve pi !a tel? K church members' right to say what they want 20 PamnyWants Turnpike to study .a-elactrenic tall opeaion - P.nnsvIvania ant ornaV http://www.pennlive.com/midstate/index.ssf/2010/07/world_of fitness_gym_and_tanni.html 10/7/2010 Connect with PennUve.com whirr. thi.? EXHIBIT D JEITRY R. DUFFLE - E- AI LED RICHARD W. STEWART C. ROY WEIDNER. PL J 7 '?'?3 EDMUND G. MYERS DAVID W. DELUCE L A W O F F I C E S JOHN A. STATLER SHI JEFFERSON J. SH[PMAN JEFFREY B. RETTIG OHNSON KEVIN E. OSBORNE RALPH H. RiGHT JR. MARK C. DUFFIE JOHN R. NINOSKY MICHAEL J. CASSIDY July 26, 2010 Via Cerfffied Mail and E-mail (aWlsdc.com) Gary James, Esquire James, Smith, Dietterick & Connelly P.O. Box 650 Hershey, PA 17033 RE: Stacy GaronzikMorld of Fitness Dear Mr. James: MELISSA PEEL GREEVY WADE D. MANLEY ELizA.BEfH D. SHOVER ANDREW P. DOLLMAN SARAH E. HOFFMAN OF COUNSEL HORACE A. JOHNSON F LEE SHIPMAN (1965-2006) WRITER'S EXT. NO. 136 E-MAIL eds%daw.com As you know, we represent Stacy Garonzik who has been engaged in a landlord/tenant dispute and related settlement negotiations with your client Eric Derosiers and his companies Capital Area Real Estate Management and World of Fitness since mid-June 2010. Please accept this letter as notification that it is apparent to Ms. Garonzik that any future business relationship with Mr. Derosiers would not be beneficial to her or to her clients. As such, she no longer wishes to negotiate a new lease, option to buy, or offer to purchase the property located at 21 N. Third Street, Lemoyne. Ms. Garonzik is absolute in this decision. Therefore, she would like to arrange for the removal of her personal and business property from 21 N. Third Street. She has arranged for movers to be available for Friday, July 30, 2010. Please advise if your client has any objection to allowing Ms. Garonzik to access the building at this time. I will be on vacation beginning Saturday July 24, 2010, and returning Monday, August 2, 2010. Therefore, I ask that you communicate with Dave DeLuca, Esquire or John Ninosky, Esquire in my absence. Your prompt attention to this matter is appreciated. Very truly yours, 4 OHNSON, DUFFLE STEWART & WEIDNER 4 abeth D. Snover EDS:4o7976 E-MAILED ?s cc: Stacy Garonzik (via e,maln -'io v/57 301 MARKET STREET P.O. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 WWW.JDSW.COM 717.761.4540 FAX: 717.761.3015 MAIL®JDSW.COM JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. I ! .Complete items 1, 2, and 3. Also complete ItenY4 N Restricted Deilvery is desired. Pr(nt your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailplece, or on the front If space permits. 1. ArOde Addressed to: G mes, Esquire Ja " Smith, Dietterick & Connelly P. x 650 He , PA 17033 A- sf lure O A"k W& t (4 OAd*mm ?L-Recelved by ) C. Dare of DeIlvety D'U? iomI? r?" f- t0 D. isdenvery addmm dlfrg FM j# from Kern 19 Oyes If YES. enter dovery address bebw: 13 No 3. Service Type &Certllled Man ? Express MaN ? Registered M Rat = Rscelpt for Merchandise ? krarrred Men 0 C.O.D. 4. Resafcced oswveryr (brtra Feel 0 Yes > 70 99 3LI60 Oa/t iS'9a 89aa Ps Form 3811, Febnlary 211. Domestic Retum Receipt 1o s o¢a??ya VERIFICATION I, Stacy Garonzik, verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Dated: VI-- ?--<6- ? -,O 1 -?O ` U- CI-0;= i= IC(?E .r i rr- r1 OTit ?. ONO 1/' R _, ?l?L ?IitJ JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 a 1 -2 Ph 3: 47 Attorneys for Plaintiff f-.,,MB LA D COUNTY ERI PENNSYLVANIA STACY GARONZIK, V. Plaintiff CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-73 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS CAPITOL FITNESS, INC. t/a WORLD OF FITNESS AND NOW, comes the Plaintiff, Stacy Garonzik, by and through her attorneys Johnson, Duffle, Stewart & Weidner and files this Response to the Preliminary Objections filed by the Defendants Capitol Fitness, Inc. t/a World of Fitness and in support thereof states as follows: 1. Admifted in part; denied in part. It is admitted that Plaintiff filed the Complaint in the above-captioned matter; however, the Complaint is a legal document which speaks for itself and the arguments of the Defendants in their Preliminary Objections to that Complaint are denied as stated. 2. Admitted in part; denied in part. It is admitted that Plaintiff filed the Complaint in the above-captioned matter which asserts the listed causes of action; however, the Complaint is a legal document which speaks for itself and the arguments of the Defendants in their Preliminary Objections to that Complaint are denied as stated. Furthermore, it is not alleged that the Plaintiff was merely evicted from the premises but was, without warning and illegally, excluded from the premises. 3. Admitted. 4. Denied. 5. The averment of the paragraph contains a citation to Pennsylvania Rule of Civil Procedure 1028(a) to which no response is required. I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO STRIKE COUNT I OF PLAINTIFF'S COMPLAINT AND DISMISS PLAINTIFF'S CAUSE OF ACTION FOR BREACH OF CONTRACT PURSUANT TO PA RCP 1028(a)(4) 6. Plaintiff incorporates the averments of paragraphs 1 through 5 above as if fully set forth herein. 7. Admitted in part; denied in part. Plaintiff has alleged a verbal lease agreement, in part confirmed by a Letter of Intent, and that the verbal agreement was pending execution of a writing by the parties which the parties were continuing to finalize at the time of the wrongful eviction and exclusion by Defendants. 8. Admitted in part; denied in part. See response to paragraph 7. 9. Admitted in part; denied in part. It is admitted that Plaintiff entered into the oral lease with a written lease pending execution by the parties as alleged in her Complaint; however, it was also asserted in the Complaint that Plaintiff was to have the right to purchase the premises under a rent-to-own arrangement. See, Complaint. 2 10. Denied. A claim cannot violate the Statute of Frauds; rather, the Statute of Frauds is an available affirmative defense to some actions. See, Pa. R.C.P. 1028(a)(4) Note, Shoup v. Shoup, 364 A.2d 1319, 1323 (Pa. 1976). Applicability of the Statute of Frauds to Plaintiffs claims is specifically denied. 11. Denied. The provision of 33 Pa.C.S.A. § 1 is a statute which speaks for itself. It is specifically denied that the same is applicable to this lawsuit and even further denied that the same is properly asserted by way of Preliminary Objection. By way of further response, Pennsylvania law, specifically Pa.R.C.P. 1028(a)(4), notes that "the defense of the bar of a statute of frauds or statute of limitations can be asserted only in a responsive pleading as new matter under Rule 1030." 12. Denied. This paragraph is a conclusion of law to which no response is required. Should a response be required, this paragraph in its entirety is denied. 13. Denied. The averment in this paragraph is argument which requires no response; however, if a response is deemed required, the same is denied in its entirety since the Statute of Frauds is inapplicable to the causes of action as pled. By way of further response, it is unclear to the Plaintiff how the Defendants' Preliminary Objections based upon the Statute of Frauds should stand when the law of Pennsylvania states that a defense of the Statute of Frauds is not properly asserted by way of Preliminary Objection and can only be asserted in New Matter after the Defendants have denied the existence of the oral agreement, or portions of it, so pled. 14. Denied. See response to paragraph 13. WHEREFORE, Plaintiff Stacy Garonzik requests that this Honorable Court deny Defendants' Preliminary Objections. 3 II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT II OF PLAINTIFF'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (DEMURRER) PURSUANT TO PA.R.C.P. 1028(a)(2) 15. Plaintiff incorporates the averments of paragraphs 1 through 14 above as if fully set forth herein. 16. Admitted. 17. Denied. 18. Denied. Pennsylvania Rule of Civil Procedure 1073.1(a) states as follows: (a) The plaintiff shall include in the Complaint: (1) a description of the property to be replevied; (2) its value; (3) its location, if known, and (4) the material facts upon which plaintiff's claim is based. Plaintiff is in compliance with Rule 1073.1 since she has pled all four requirements in her Complaint. 19. Admitted. By way of further response, as is also pled extensively in the Complaint, Plaintiff was without notice or warning excluded from the premises and was, therefore, unable to take a complete inventory of all property which was located on the premises when she was excluded. Therefore, the averment is specific enough to put the Defendants on notice of the replevin action for all of Plaintiff's personalty at Defendants' premises. Therefore, a more specific pleading should not be required. Plaintiff sees no legal basis for a demurrer based upon an alleged insufficient specificity in a pleading. 20. Denied. Rule 1073.1 requires only that the property be described, not that it be specifically itemized. See response to paragraph 17. 4 21. Denied. As stated, Plaintiff sees no legal basis for a demurrer or for the pleading to the stricken based upon an alleged insufficient specificity in a pleading. By way of further response, such alleged lack of specificity is denied and, given the wrongful exclusion alleged in Plaintiffs Complaint, a complete and conclusive inventory and valuation is not feasible. Of course, Plaintiff intends to issue requests for discovery and inspection of the premises under the Rules of Civil Procedure which should apprise both parties of the full extent of the property wrongfully held by the Defendants. WHEREFORE, Plaintiff Stacy Garonzik requests that this Honorable Court deny Defendants' Preliminary Objections. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. inosky, Esquire Attorn . D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: March 1, 2011 Attorneys for Plaintiff 5 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response of Plaintiff to Preliminary Objections of Defendants Capitol Fitness, Inc. t/a World of Fitness has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on March 1 2011: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Counsel for Capitol Fitness, Inc. t/a World of Fitness JOHNSON, DUFFIE, STEWART & WEIDNER By: ixvltz W Eliza t D. Snover cp ( r. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and ;submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) STACY GARONZIK, Plaintiff vs. CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF F=ITNESS, L.P., all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA Defendants -? rrim =r. -v C:)-r, v c-) = c- D C= No. 2011-73, Cwt Teti State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): Preliminary Objections of Defendants Capitol Fitness, Inc. t/a World of Fitness Identify counsel who will argue cases: (a) for plaintiffs: John R. Ninosky and Elizabeth D. Snover, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108 Counsel for Capitol Property Management, Inc. and Capitol Real Estate Development, L.P. Stephen L. Banko, Jr., Esquire Margolis Edelstein, 3510 Trindle Road, Camp Hill, PA 17011 Counsel for Capitol Fitness, Inc. t/a World of Fitness (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 25, 2011 Date: March 1, 2011 Si natur lizabeth D. Snover Print your name Attorney for Plaintiff INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be fried with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I. D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 2u11 AU, G, -9 PH I: 19 CUMBERLAND COUNTY Attorneys for Plaintiff PENNSYLVANIA STACY GARONZIK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CAPITOL PROPERTY MANAGEMENT, INC.; CAPITOL FITNESS, INC. t/a CAPITOL REAL ESTATE DEVELOPMENT, L.P.; CAPITOL FITNESS, INC. t/a WORLD OF FITNESS, INC., L.P. a/k/a WORLD OF FITNESS, L.P. all individually and d/b/a CAPITOL PROPERTY MANAGEMENT OF NEW CUMBERLAND, PA AND SUNSET TAN & SPA Defendants NO. 2011-73 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the docket in the above-captioned matter SATISFIED, SETTLED AND DISCONTINUED. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Elizabet Snover, Esquire ??? Attorne . . No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: August 8, 2011 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe to Discontinue has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 8, 2011: John F. Yaninek, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 Counsel for Capitol Property Management, Inc. and Capitol Real Estate Development, L. P. Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Counsel for Capitol Fitness, Inc. t/a World of Fitness JOHNSON, DUFFIE, STEWART & WEIDNER By: Eliza th . Snover