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02-0766
REG, INC., Plaintiff V. OWEN E. MEALS, JR., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.02- 74-L CIVIL TERM NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Civil Action--Law Plaintiff Docket No. 0';i - ILQ? V. JURY TRIAL DEMANDED OWEN E. MEALS, JR. Defendant COMPLAINT AND NOW, comes the Plaintiff, REG, Inc., by and through its attorney, Karl E. Rominger, Esq., to allege as follows: PARTIES 1. Plaintiff, REG, Inc., is a Pennsylvania corporation which operates from the address 800 Belvedere St., Carlisle, Pennsylvania 17013. 2. Dr. Earl M. Barnhart is the President of REG, Inc. 3. Defendant, Owen E. Meals, Jr. (hereinafter "Mr. Meals"), is an individual that owns and operates a real estate business entitled RE/MAX. VENUE 4. Venue is appropriate for this action because the causes of action arose with Defendant in Carlisle, Cumberland County, Pennsylvania. BACKGROUND FACTS AND CONTRACT TERMS 5. On June 12, 1991 Owen E. Meals, Jr. entered into a Commercial Lease (hereinafter "the Lease") with REG, Inc. (attached as Exhibit A) for "[t]he entire lower level of 800 Belvedere Street, Carlisle, Pennsylvania containing approximately two thousand (2000) square feet of offices, a waiting room, and rest rooms; together with parking facilities in front of the building to be shared by patients of the tenants and five (5) reserved parking spaces in the rear of the building, excluding absolutely the exclusive use of the utility room consisting of the air conditioners, furnace and storage space of Lessor." 6. According to the Lease, Mr. Meal's lease term was to begin on June 1, 1991 and end on July 31, 2001. 7. Paragraph 14 of the lease states that "Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the demised premises to Lessor free of subtenancies, all in good condition and repair. Lessees shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property." 8. Paragraph 17 of the subject lease states that "All damages or injuries done to the premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing paneling or replacement of same if not repairable." 9. Prior to July 31, 2001, REG, Inc. provided full and adequate notice to Mr. Meals that his lease term would not be extended. 10. Prior to July 31, 2001, REG, Inc. negotiated a lease agreement with another business, Lil' Ponderosa Enterprises (hereinafter "Ponderosa") for a term of three (3) years with a rent rate of $3,300 per month. 11. Pursuant to the agreement with Ponderosa, Ponderosa provided REG, Inc. a $3,300.00 deposit. 12. The agreement with Ponderosa provided that Ponderosa would take control of the subject property, then occupied by Mr. Meals, on or about August 1, 2001. 13. On July 31, 2001 Mr. Meals failed to surrender the subject property. 14. On August 3, 2001, Plaintiff filed an Eviction and Request for Order of Possession with the Honorable Paula Correal. 15. On August 30, 2001, after a hearing was held, an Order of Possession was granted in favor of REG, Inc. 16. No appeal from said Order of Possession was taken within thirty (30) days. 17. Eviction proceedings by constable were started as soon as allowed by law. 18. Defendant finally surrendered the subject property on September 30, 2001. 19. The continued use of the subject property after the entry of the Order of Possession was a willful and wanton trespass in violation of the lease and in violation of the Order of Possession. 20. This unjust detention of the property and willful trespass prevented the subject property from being re-rented. 21. Ponderosa, the tenant who was to follow in succession after Defendant, was unable to grant an extension of the time to take possession, and therefore had to back out of the contract, but would not have done so had Defendant Meals surrendered possession. Count 1--Breach of Contract 22. The previous paragraphs are incorporated by reference as if they were fully set out herein. 23. The lease required the Defendant to surrender the subject property. 24. Failure to surrender the subject property at the termination of the lease was a breach of said contract. 25. The continuing nature of the breach and failure to honor the contract after the date of the Judgment of Possession was a subsequent and father breach of that contact. 26. As a direct and proximate result of Defendant's breach of the contract, by maintaining possession past July 31, 2001, Plaintiff was damaged by loss of its expected new three year tenant and the loss of its $3,300.00 deposit said tenant had made. 27. As a result of said breach of contract, Plaintiff has incurred various attorney fees, costs and expenses related to this action in an amount to be determined at trial. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the liquidated amount of $122,100.00 (36 months of rent plus $3,300.00 deposit), plus interest, and further requests the Court to award attorney fees and costs of litigation and any other relief the Court deems proper and just. Count 2--Breach of Contract 28. The previous paragraphs are incorporated by reference as if they were fully set out herein. 29. After Defendant finally surrendered the subject property, on September 30, 2001, damages and alterations were discovered that had not been repaired or restored as required by the lease in paragraphs 14 and 17 listed above. These damages and alteration include, but are not limited to, the following: A. Defendant failed to restore the parking lot which he altered without permission. B. As a result of Defendant's unauthorized alteration of the parking lot, there is now a flooding problem on the subject property. C. Defendant failed to replace a broken window. D. Defendant failed to restore fuse box and wiring which had been altered. E. Defendant failed to replace damaged ceiling tiles. F. Defendant failed to replace "No Smoking" signs which were ripped off of walls. G. Defendant failed to repair damage to walls incurred by the removal "No Smoking" signs. H. Defendant failed to repair and/or replace damaged woodwork. I. Defendant failed to repair or replace a damaged humidifier unit. J. Defendant failed to repair or replace a damaged exhaust fan. K. Defendant failed to properly remove wiring left from outdoor sign. L. Defendant failed to remove a substantial amount of garbage and/or debris from property. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in an amount to be proven at trial, which constitutes the cost to restore and/or repair the property pursuant to the contract terms, plus interest, and further requests the Court to award attorney fees and costs of litigation and any other relief the Court deems proper and just. Count 3--Trespas s 30. The previous paragraphs are incorporated by reference as if they are fully set out herein. 31. Defendant was a willful and intentional trespasser from August 1, 2001 forward. 32. As a consequence of Defendant's continuing trespass, which lasted from August 1, 2001 until September 30, 2001, REG, Inc. was damaged. 33. Plaintiff lost its prospective tenant as described previously. 34. Plaintiff lost use and enjoyment of its own property. 35. At all times relevant Defendant's trespass was unjustifiable, malicious, wanton and outrageous. WHEREFORE, Plaintiff demands judgment in its favor against Defendant in an amount in excess of the jurisdictional limit for compulsory arbitration, plus interest,, attorney fees, punitive damages and such other relief as the Court deems proper and just. Count 4--Wrongful Use of Civil Process 36. The previous paragraphs are incorporated by reference as if they are fully set out herein. 37. Defendant was well aware that he was in Trespass by remaining on the subject property after July 31, 2001. 38. Defendant, through agents and representatives, made clear to Plaintiff that he would abuse the legal system to remain on the subject property willfully and wantonly in Trespass. 39. Defendant carried out the above threats by remaining on the subject property and forcing Plaintiff to file an Eviction and Request for Order of Possession with the Honorable Paula Correal when he knew he had no legal justification to stay. 40. Defendant continued, prolonged and defended said legal process and civil suit in bad faith 41. By reason of the foregoing conduct of Defendant, Plaintiff was wrongfully deprived of its property and the income therefrom and was compelled to employ an attorney to recover its property, to its injury and detriment. WHEREFORE, Plaintiff demands judgment against the Defendant for compensatory damages in an amount in excess of the jurisdictional limit for compulsory arbitration plus attorney fees, interest and costs and for punitive damages in an amount to be determined by the trier of fact. Count 5--Punitive Damages-Trespass-Wrongful Use of Civil Process 42. The previous paragraphs are incorporated by reference as if they are fully set out herein. 43. At all times, the actions of Defendant were outrageous, obdurate and vexatious. 44. Defendant, through agents and representatives, made it clear that Defendant would remain willfully and wantonly in Trespass despite legal action. 45. Remaining after the Order of Possession of August 30, 2001 was entered was outrageous and especially willful and wanton. 46. The nature of the trespass was knowing, willful and wanton. 47. Defendant's wrongful use of civil process was outrageous, knowing, willful and wanton. 48. Defendant was damaged in various ways as described in the above paragraphs. 49. An award of punitive damages in favor of Plaintiff would be just in this instance. WHEREFORE, Plaintiff demands punitive damages in the amount to be determined at trial, by a jury, against Defendant for his outrageous, willful and wanton trespass. Count 6--Unjust Enrichment 50. The previous paragraphs are incorporated by reference as if they are fully set out herein. 51. Defendant did not compensate Plaintiff for his wrongful retention of the subject property. 52. Defendant received unjust enrichment by withholding the property for two (2) months without paying rent. 53. As result of Defendant's unjust enrichment, Plaintiff was damaged by loss of two (2) months rent WHEREFORE, Plaintiff demands judgment against Defendant in the amount of 6,068.00 (2 months rent) that Defendant received unjustly as a result of his wrongful retention of subject property. Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff VERIFICATION I, Dr. Earl M. Barnhart, REG, Inc. President, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. .2 / 9 O ,z Al" • G a sJL ) / • -8 0'X Date Dr. Earl M. Barnhart REG, Inc. President COMMERCIAL LEASE :C rn ? THIS AGREEMENT of Lease made this 12th day of June, 1991, between REG, INCORPORATED, herein referred to as Lessor, and OWEN E. MEALS, JR., herein referred to as Lessee. WITNESSETH, that the said Lessor, in consideration of the rents and covenants hereinafter mentioned, do demise and lease unto the said Lessee, to be used as offices and waiting room, the premises situate in the Borough of Carlisle, County of Cumber- land, and State of Pennsylvania described as follows, to wit: The entire lower level of 800 Belvedere Street, Carlisle, Pennsylvania containing approximately two thousand (2000). square feet of offices, a waiting room, and rest rooms; together with parking facilities in front of the building to be shared by patients of the tenants and five (5) reserved parking spaces in the rear of the building, excluding absolutely the exclusive use of the utility room cor_,7%3 s*_;.,:n cf the a _. condi loners, furnace and storage space of Lessor. TO HAVE AND TO HOLD unto the conditions of this Agreement, for day of Ault, 1991 and ending on Jc said Lessee, subject to the the term beginning on the 1st the 31st day of July, 2001. IN CONSIDERATION OF WHICH the said Lessee agrees that he will pay to the said Lessor for the use of said premises, the sum c•?} of two thousand ($2,000.00) dollars on the 1st day of each ''"e x calendar month during the term beginning with t 11 1991.1; Said two thousand ($2,000.00) dollars per month payments will continue for at least two years of said term and thereafter for the balance of the term may be increased at Lessor's option no more than five (5%) percent per year, said increase to be payable monthly with the basic aforementioned rent. THE DEMISE HEREIN CONTAINED is made and accepted on the following express conditions: 1. At the end of the said term the demised premises shall be delivered in as good condition as at the commencement thereof, ordinary wear and tear and unavoidable damage by fire, tempest and lightning excepted. 2. The rent reserved shall be promptly paid on the several days and times herein specified without deduction or abatement, at the residence or principal office of the said Lessor. Es?oo ik "A'' 3. If the Lessee should remove or prepare to remove, or attempt to remove from the premises hereby leased before the expiration of the term or at any time during the continuance of this lease, or if the Lessee shall be in default in the payment of any installment of rent for the period of ten (10) days, or should there be a default in any of the covenants or conditions as herein contained, remaining uncured after thirty (30) days' written notice, then in that event, rent for the remainder of the term at the rate which it is then due and collectible under the terms for this Lease shall immediately become due and payable and shall be collectible by distraint or otherwise. 4. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the failure of the Lessor, if said failure is not due to any fault on his part, to give possession of the premises herein demised, at the time agreed upon. .. 5. Said Lessee shall not carry on any business which will cause a forfeiture of any fire insurance that the Lessor has or may hereafter have on said building. 6. The Lessee agrees to pay all bills which may be incurred for janitorial services in the demised premises and the lower entrance hall. The Lessor shall not be responsible in any way in the event that the supply of heat is cut off by reason :;f any cause beyond the control of the Lessor, and the Lessees do hereby release the Lessor from any damage, which may result to him by reason of the failure of the supply of heat. 7. Lessee and its employees will be responsible for using reasonable methods to insure the buildings physical security. 8. Lessor agrees that it will pay all costs for water, sewer, gas, electric current and other utilities including trash removal, used, consumed or incurred upon or in connection with the premises during the term hereof, and of any renewals thereof, as and when the charges for the same shall become due and payable, provided however, that Lessee shall comply with all applicable federal, state or other lawful governmental orders or regulations governing the furnishings thereof. Lessee agrees to use reasonable methods of energy conservation in his use and occupation of the leased premises. 9. The Lessee shall have the exclusive use of all of the leased premises, except the utility room containing the air conditioning units, furnace and storage area of Lessor, as aforesaid. 10. Lessor shall make any repairs in and to the premises including but not limited to repairs to the electrical, heating, ventilating and air conditioning systems, all to maintain the premises in good condition and repair. Lessor shall also provide trash (except as previously set forth) and snow removal from sidewalks, stairs and parking lots. Lessee shall use all reasonable precaution to prevent waste, damage or injury to the premises and improvements. 11. In the event of filing of a petition in bankruptcy, whether voluntary or involuntary, by or against the Lessee herein, there shall become due immediately upon the filing of said petition, the remaining unpaid rent, and the Lessor shall have the further right in said event, to forfeit and terminate this Lease. The said forfeiture to be effected by giving notice in writing to the Lessee herein or to the person then in charge of the demised premises. Should an execution be issued against the Lessee out of any court, six (6) months rent shall thereupon become due and owing. 12. In the event that the premises occupied by the Lessee shall during said term be destroyed by fire, thereby making the premises untenantable and unfit for occupancy so that the owners thereof deem it advisable to construct a new building, the Lessor herein shall thereupon have the right to cancel and terminate this Lease upon giving thirty (30) days' notice in writing to the Lessees herein, and the term of this Lease shall thereupon cease at the expiration of thirty (30) days after the expiration of said notice. In the event, however, that the said building shall be damaged by fire, but not destroyed, the Lessor will thereupon cause the same to be repaired and restored to its former condition, and to act with the greatest possible diligence, and if the said fire shall have rendered the premises untenantable, payment of rent thereunder shall be suspended from the time when the Lessee herein shall notify the Lessor of such condition, until such time as the building is so repaired and again ready for occupancy, and the Lessee herein agrees that in the event that the building shall be so partially destroyed by fire as to render said repairs necessary that the said Lessor shall thereupon have the right through his servants and agents, and that the servants and agents of any contractor employed by the Lessor shall have the right to take possession of the premises for the purpose of making such repairs, and the so taking of possession shall not be an eviction of the Lessee herein and shall in no manner effect this term of Lease. 13. Subject to the limitation that no substantial portion of the building on the demised premises shall be demolished or removed by Lessee, the Lessee may subject to the conditions set forth below and at its.own expense, make alterations, additions or improvements in and to the demised premises and the building. Alterations shall be performed in a workmanlike manner and shall not weaken or impair the structural strength, or lessen the value, of the building on the premises, or change the purposes for which the building or any part thereof, may be used. Conditions with respect to alterations, additions or improvements are as follows: (A) Before commencement of any work all plans and specifications shall be filed with and approved by all governmental departments or authorities having jurisdiction and any public utility company having an interst therein, and all work shall be done in accordance with requirements of local regulations. The plans and specifications for any alterations estimated to cost Two hundred and 00/100 ($200.00) Dollars or more, shall be submitted to Lessor for written approval prior to commencing work. (B) Prior to commencement of any work Lessee shall pay the amount of any increase in premiums on insurance policies provided for herein because of endorsements to be made covering the risk during the course of work. In addition, if the estimated costs or work shall exceed Two hundred and 00/100 ($200.00) Dollars, Lessee shall, without cost to Lessor, furnish Lessor with a performance bond written by a surety acceptable to Lessor in an amount equal to the estimated cost or the work guaranteeing the completion of work, free and clear of liens, encumbrances and security intersets, according to the approved plans and specifications. (C) All alterations, additions, and improvements on or in the demised premises at hte commencement of the term, and that may be erected or installed during the term, shall become part of hte demised premises and the sole property of Lessor, except all moveable trade fixtures installed by Lessee. 14. Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the demised premises to Lessor free of subtenancies, all in good condition and repair. Lessees shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property. 15. Neither Lessee nor his heirs, assign, mortgage, pledge, or encumber this Lease or sublet the demised premises in whole or in part, or permit the premises to be used or occupied by others, nor shall this Lease be assigned or transferred by operation of law, without the prior.consent in writing of Lessor in each instance, such consent shall not unreasonably be withheld. 16. Lessee shall deposit two thousand and 00/100 ($2,000.00) Dollars with Lessor on the execution herewith, which amount shall be held by Lessor as security for the full and timely performance by Lessee of the terms and conditions herein and for the payment of any final judgment that may be rendered against Lessee for a breach of those terms and conditions. Interest shall be paid on the deposit at a rate of 5% per annum. The rights of Lessor against Lessee for a breach of this Lease shall in no way be limited or restricted by this security deposit, but Lessor shall have the absolute right to pursue any available remedy to protect its interests herein, as if this security deposit had not been made. If and when the premises is accepted by the Lessor at the expiration of the Lease, the security deposit together with interest less any expenses as provided above shall be returned to Lessee as satisfaction in full of Lessor's responsibilities relating thereto. Should the demised premises be sold, Lessor may transfer or deliver this security deposit to the purchaser of the interest, and Lessor shall then be discharged from any further liability with respect to the security deposit. 17. All damages or injuries done to the said premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing panelling or replacement of same if not repairable. 18. And the said Lessee hereby accepts notice to quit, remove from, and surrender up possession of the said demised premises to the said Lessor, as successor or assigns, at the expiration of the said term, whenever it may be determined, whether by forfeiture or otherwise, without any further notice to that effect, all further notice being hereby waived. 19. Lessee shall have the right to erect an illuminated sign on Walnut Bottom Road provided it complies with all Borough regulations and is approved by the Lessor, whose approval will not be unreasonably withheld. 20. The Lessee will bear, pay and discharge when and as the same become due and payable all judgment and lawful claims for damages or otherwise against said Lessor arising form his use or occupancy of said leased premises and will assume the burden and expense of defending all such suits, whether brought before the expiration of this lease and will protest, indemnify and account of the use or misuse of the premises hereby leased or any part thereof, due to the negligence of the Lessee or his agents. 21. During the term of this lease, and any extension thereof, Lessee is granted a right of first refusal in the event Lessor receives a bona fide offer for the sale of the permises. In the event lessor receives an offer, the terms of the offer will be communicated in writing to the Lessee who shall have thirty (30) days after the date of the written notice to execute an agreement under the same terms as the bona fide offer. The right of first refusal shall thereafter expire if Lessee does not sign an agreement. 22. Any notice provided herein shall be given in writing and shall be sufficient if delivered to the parties hereto at their usual place of business during regular business hours, in which even the notice shall be deemed given on the date of delivery or if sent by the U.S. Mail, postage prepaid, certified and regis- tered, addressed to the parties at their usual place of business, in which event notice shall be deemed given on the date of mailing. 23. And in consideration of securing the within Lease at the above stated rent, said Lessee does hereby release and discharge said Lessor, its successors or assigns, from any and all liability for damage that may result from the bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin, water- closet, steam pipe and drain and from all liability for any and all damage caused by the water, gas and steam, waste and contents of said water pipes, gas pipes, steam pipes, sewers, basins, water-closets and drains, except damages that might be attributed to Lessor. 24. This Lease contains the entire agreement between the parties and cannot be changed or terminated except by a written instrument subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply to and are binding on the heirs, legal representatives, successors and as Ignis of both parties. 25. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania. 26. Time is of essence in all provisions of this Lease. WITNESS the hands and seals of the parties, the day and year first above written. ATTEST: ?C REG, INCORPORATED (Lessor) By: jR cj,,?J-')7 Secretary President" WITNESS: OWEN E. MEALS, JR. (Lessee) .? C F r) 1 ?:J Cl) i _ ? ]CL V m (? > r r- Ln a V r O Iy N N? ' w T 3 m 2 z o Z 2 m?Z O < F D G Q Z A ° a 3DLA „ 3 O m r ? ? N t^' F 000 o00 3CD c'g UTH HANOVER STREET LE PENN ?W OFFg 717'241.6070 • 800 7 , SY LVANIA 1 7013 . 34.2132 • FAX: 717.241.6878 ADVOCACY - ADVICE - ANSWERS a ^Y? 0 O A m a z OPi9 law@romingerlaw.com www.romingerlaw.com SHERIFF'S RETURN - REGULAR CASE NO: 2002-00766 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND REG VS MEALS OWEN E JR GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MRAT S OWEN E JR the DEFENDANT , at 1450:00 HOURS, on the 15th day of February , 2002 at 1909 RITNER HWY CARLISLE, PA 17013 OWEN E. MEALS by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this /,QL. day of /?, (,cam oZ G'o A. D. ' rot?h-ono?ta y So Answers: R. Thomas Kline 02/19/2002 ROMINGER & BAYLEY By: A Deputy Sh ff REG, INC. : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 02 - 0766 CIVIL TERM CIVIL ACTION - LAW OWEN E. MEALS, JR., Defendant. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT AND NOW this `day of March, 2002, comes Defendant, OWEN E. MEALS, JR., by and through his attorneys, Irwin, McKnight & Hughes, and makes the following Preliminary Objections to Plaintiff's Complaint, and in support thereof avers the following: I. Preliminary Objections in the Nature of a Demurrer Pursuant to Pa. R. Civ. P. 1028(a)(4). 1. Plaintiff, REG, Inc., filed a civil complaint on or about February 12, 2002 against Defendant, alleging breach of contract, trespass, wrongful use of civil process, and unjust enrichment for disputes arising out of a lease agreement between the parties. 2. In addition, Plaintiff seeks the recovery of punitive damages in Count 5 of its Complaint. 3. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for physical and unjust detention damages and recovery of the leased premises. A true and correct copy of said Complaint is attached hereto and incorporated herein as Exhibit "A." 4. On or about August 21, 2001, Defendant filed a Cross-Complaint with the District Justice seeking among other relief, recovery of damages for Plaintiff's destruction of his property and lost business income for Plaintiff's refusal to repair the air conditioning and related systems at the leased premises in accordance with the parties' Lease Agreement. 5. On or about August 30, 2001, a hearing was held before District Justice Correal and subsequently she issued her Notice of Judgment. 6. The Notice of Judgment issued by District Justice Correal found in favor of Plaintiff for rent in the amount of $3,034.00 per month and costs of $79.18, but was reduced by $500.00, which sum was awarded to Defendant under his Cross-Complaint. A true and correct copy of said Notice of Judgment with regard to both complaints is attached hereto and incorporated herein as Exhibit "B." 7. As clearly identified on Exhibit "B," District Justice Correal did not award Plaintiff any monies for either physical damages to the leased premises or damages for unjust detention. 8. Neither parry appealed from the Notice of Judgment in the above-referenced action. 9. Defendant vacated the leased premises on or before September 30, 2001, upon receiving the Order for Possession, Return and Notice on September 18, 2001, which stated that eviction would commence on October 5, 2001 in the event that Defendant remained at the property through that date. A true and correct copy of said Order for Possession, Return and Notice is attached hereto and incorporated herein as Exhibit "C." 2 10. Plaintiff's Complaint fails to state any cause of action against Defendant, upon which relief may be granted, for Tresspass as alleged in Count 3 of the Complaint. 11. Plaintiff's Complaint fails to state any cause of action against Defendant, upon which relief may be granted, for Wrongful Use of Civil Process as alleged in Count 4 of the Complaint. 12. Plaintiff's Complaint fails to state any cause of action against Defendant, upon which relief may be granted, for Punitive Damages as alleged in Count 5 of the Complaint. WHEREFORE, Defendant Owen E. Meals respectfully requests this Honorable Court to grant its Preliminary Objections in the nature of a demurrer and Plaintiff's Complaint with prejudice with respect to Counts 3, 4 and 5 for failure to state causes of action upon which relief may be granted. Respectfully Submitted, IRWIN, McKNIGHT & HUGHES Dated: March JL 2002 By: X. 4V= Dougla G. Miller, squire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant 3 VERIFICATION The foregoing Preliminary Objections on behalf of the Defendant, Owen E. Meals, Jr., are based upon information which has been gathered by counsel for the Defendant in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The Defendant's verification cannot be obtained within the time allowed for filing the pleading. The undersigned is therefore verifying on behalf of the Defendant according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. Dougl G. er, Esquire Date: March 18, 2002 EXHIBIT "A" COMMONWEALTH OF PENNSYLVANIA COUNTY OF: COIBERLAND Meg. Ois. NO.: • 09-2-01 Ol Neme: Non PAULA, P. CORREAL ' AWMW. EAST WING - COURTHOUSE, 1 COURTHOUSE SQUARE CARLISLE, PA 17013-0000 "TeNphom: (717)240-6564 •4 asks judgment together with costs against you for the possession of real property and for: LANDLORD AND PLAINTIFF: TENANT COMPLAINT NAME &W ADDRESS rREG, Incorporated. C/o Dr. Earl M. Barnhart 800 Belvedere street LCarlisle, PA 17013 DEFENDANT: VS. NAPE LM ADDRESS rowen E. Meals, Jr. 800 Belvedere street Carlisle, PA 17013 L Docket No.: Date Filed: Amount D*ai Filing Costs $ Service Costs $ Total $ Lease is 11 Residential Ei Nonresidential. a Damages for injury to the real property, to wit: the nature and extent of any injuries to the property are unknown ? in the amount of: $ 1X I Damages for the unjust detention of the real property in the amount of $ unknown 7 Rent remaining due and unpaid on filing date in the amount of E] And additional rent remaining due and unpaid on hearing date THE PLAINTIFF FURTHER ALLEGES THAT: $ 1. The location and the address, if any, of the real roe Total: $ P p rty is: 800 Belvedere S re + i + 2. The plaintiff is the landlord of that property, Carlisle, PA 17013 . 3. He leased or rented the property to you or to under whom you claim. 4. ZX Notice to quit was given in accordance with law, or 12 No notice is required under the terms of the lease. 5. The term for which the property was leased or rented is fully ended, or A forfeiture has resulted by reason of a breach of the conditions of the lease, to wit: or, 11 Rent reserved and due has, upon demand, remained unsatisfied. 6. You retain the real property and refuse to give up its possession. I, Earl M. Barnhart are true and correct to the best of my knowled e, information and belief. verify that statement is madetsubject to the penalties of Section 4904 of the Crimes Code ?18 PA. C. S. § 4904) relating to unswom falsification to authorities. Lc' e t . -l3 E? ?- [ames D. Flower Jr.. 26 wAm+ tr4„ gnasureof farm, IF YOU HAVE A DEFENSE to this complaint you ma ?., (Phone) occupancy of the premises, which is in the district justice jurisdiction end hearing. IF YOU HAVE A which you intend to assert att the against hearing, YOU MUST FILE it on a the out of compiaint forth at this office BEFORE THE TIME set for the hearing. IF YOU DO NOT APPEAR AT THE HF_ARING, a judgment for possession and costs, and for damages and rent if claimed, may nevertheless be ernered against you. A judgmem against you for possession may result in your EVICTION from the premises. If you are disabled and require assistance, please contact the Magisterial District office at the address above. err 'x?nn oa EXHIBIT "B" COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND .. Map. DISL No.: t 09-2-01 - DJ Name: Hon. ` PAULA P.CORREAL Afteas: 1 COURTHOUSE SQUARE 'CARLISLE, PA Telephone: (717) 240-6564 17013-0000 NOTICE OF JUDGMENT/TRANSCRIPT PLAiNTIFFNONRESIDEIJTIAL' LEASE NAME and ADDRESS 9REG,INC. C/O DR. EARL M. BARNHART 800 BELVEDERE ST. CARLISLE, PA 17013 L J VS. DEFENDANT: NAME and ADDRESS IREALS JR, OWEN E 800 BELVEDERE ST. ATTORNEY DEF PRIVATE CARLISLE, PA 17013 JAMES D.' HUGHES L J 60 W.;POMFRET ST. [Date ocketNo.: LT-0000264-01 t; CARLISLE, `PA 17013 Filed: 8/03/01 tHIS IS TO NOTIFY YOU THAT: Judgment 1 _ FOR PLATrrrrgg FXI Judgment was entered for: (Name) _ REG, INC. C/O DR. EARL M. BARNHAR Judgment was entered against MEALS JR, OWEN E fn a ® Landlord/Tenant action in the amount of $ 2.613.18 on 8/30/01 (Date of Judgment) The amount of rent per month, as established by the District Justice, is $ 3,034.00. The total amount of the Security Deposit is $ 2,000.00 Total Amount Establish d b J LLass • Security Deposit A lid = Ad"udic a ou Rent in Arrears $ 5, Sy34. 00 - $ * r _ $ I , 8? Physical Damages Leasehold Property $ .00 -$ .00 $ .00 Damages/Unjust Detention $ 00 - $ 00 $ -00 Les A t D D f d f s m us e en ant rom Cross Complamt - $ -0 0 Interest (if provided by lease) $ nn UT Jud ment Amo t g un $ 9;a4.00 ? Def d t oi l d Judgment Costs $ 79 1 R en an s are j nt y an severally liable. Attorney Fees $ nn ? This case dismissed without prejudice. Total Judgment _ - $ k 2,613.18 ® Possession granted. Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ Possession granted if money judgment is no sa is ie y t ime o eviction. ? Possession not granted. Lev is t ed f *reflects reduction of $500.00 _ - y s ay or days or ? generally stayed. for coun ter claim award. ? Objection to Levy has been'filed anrd hearing will be held: ` °` " • "' Date: Place: Time: A ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDG T/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. 2/10101 Date My commission expil` first Mo AOPC 3158-88 ?strlct Justice 7py o e r e procee s containrpg t grgent. ` 3 a? strict t Justice January, 2006. ., ?.A. 1VEAL'" 01, UUMMUNWLALTH.,gF11pENNSYLVANIA $ NOTICE OF JUDGMENT/TRANSCRIPT COUNTY OF: C AND Dist No ? Ma PLAINTIFFONRESIQENTIAL LEASE . .: d, 09-2-01 NAME and ADDRESS rMSALS JR, OWEN, E DJ Name: Hon. 800 BELVEDERE'ST PAULA P. CORREAL CARLISLE, PA 17013 Address: 1 COURTHOUSE SQUARE L CARLISLE, PA J _ VS. Telephone: (717 ), 240 -6564 17013-0000 DEFENDANT: NAME and ADDRESS rREG.INC.AND DR. EARL M. BARNHART 800 BELVEDERE ST ATTORNEY FOR PLAINTIFF : CARLISLE, PA 17013 JAMES D. HUGHES, ESQ L J 60 W.POMFRST.- 3T DocketNo.: LT-0000264-01 CARLISLE, PA 170131, ,, ..; Date Filed: 8/21/01 d , s CROSS COMPLAINT 001 i THIS IS TO NOTIFY YOU THAT: r t_ Judgment: I-PL.aINTIFF ® Judgment was-entered for: (Name) - MEALS JR, OWEN E ,- :. - Judgment was entered against REG.INCiAND DR. EARL M. B RNHART in a ® Landlord/Tenant action in the amount of $ 500.00 on 8/30/01 (Date of Judgment) The amount of rent per month, as established by the District Justice, is $ .00. The total amount of the Securitv Deposit is $ .00 Total Amount Established by DJ LLess • Security Deposit Apbli(? d Rent in Arrears $ .00 - _ = Adjudicated Amou t S0 $ $ Physical Damages Leasehold Property $ Damages/Unjust Detention $ .00-$ .00 = = $ 00 00 - $ OD $ -on w Less Amt Due Defendant from Cross Complaint - $ -00 Interest (if provided by lease) $ no UT J d t A u gmen mount $ -no ? D f Judgment Costs $ -00 e endants are jointly and severally liable . Attorney Fees $ on ? This case dismissed without prejudice. Total Judgment $ 500.00 ? Possession granted. Possession granted if money judgment is no satisfied by ? Possession not granted. - . ? Levy.is stayed for days, or•? generally stayed. ? Objection to Levy has been filed and hearing will be held: Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ Time: ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF Date My commission expires AOPC 3158-99 THIS NOTICE OF JUDG T/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. Disttict Justice fct copy o the record the proceedings containing trio judgment. District Justice ay of January, 2006. SEAL . EXHIBIT "C" COMMONWEALTH OF PENNSYLVANIA COUNTY OF- CUMBERLAND No.: 09-2-01 DJ Name: Han. PAULA P. CORREAL Address: 1 COURTHOUSE SQUARE CARLISLE, PA Telephone: (717 ) 240-6564 17013-0000 OWEN E. MEALS JR 800 BELVEDERE ST. CARLISLE, PA 17013 Judgment Amount $ 2,534.00 Costs in Original LT Proceeding $ T9--.-n Costs in this Proceeding $ 87.68 Attorney Fees $ .00 Total $ 2,700.86 TO THE DISTRICT JUSTICE: The above named plaintiff, located at: 800 BELVEDERE STREET, CARLISLE, Address if any: cuu B Requests that you issue an ORDER FOR P S E ION Date: 9-17-01 Plaintiff: ORDER FOR POSSESSION, PLAINTIFF: RETURN AND NOTICE NAME and ADDRESS rRREG,INC. C/O DR. EARL M. BARNHART 800 BELVEDERE ST. CARLISLE, PA 17013 DocketNo.: LT-0000264- Date Filed: 8/03/01 Time Filed: 1:13PM Date Order Filed: 9/17/01 L VS. J DEFENDANT: NAME and ADDRESS [MEALS JR, OWEN E 7 800 BELVEDERE ST, CARLISLE, PA 17013 L J a judgment for possession of real property To: IRVING WALLACE You h b d (Sheriff or Certified Constable) are erey irected to deliver actual possession to plainti his agent, of real property loA)ed at (Give location and/or address): 800 BELVF.DRRF. c?rulrwT PART r r , Received Date: "l X District Justice Time y' Certified Constable ? Defendant (Name): ncr unrv ? Adult person in charge (Name): Served with copy of ORDER FOR POSSESSION, and served with NOTICE TO VACATE on(Date of service): at (Location and Address): ? Since none of the above found, served by posting a copy of the complaint conspicuously on the premises at (Date): (Time): ? Order satisfied by payment of rent in arrears and costs ? Premises vacated without forcible entry and ejectment Amount Paid $ I ? Forcible entry and ejectment (Date): Distribution $ To (Time): To To To To To ? Returned within five business days following delivery of possession to plaintiff or satisfaction by payment of rent n arrears and costs. Expenses and fees of sheriff or certified constable $ (Signature of Sheriff or Certified Constable) (runt Name and Title) NOTICE TO DEFENDANT TO VACATE If you, and all the occupants of this ro erty not authorized by the owner to be [resent thereon, do not vacate this property within fifteen (15) days after the (date of service) day of rri"? /Sd/Z•- Z6Q/ the law authorizes me to use, and I must use, such force as may be necessary TO enter upon this p?ies by t? b eaking in of any door or otherwise, and to eject you and all unauthorized occupants. If necessary, eviction will commence on ^ after 12:01 AM. At any time before actual delivery of the real property is made in execution of the Order for Possession, the defendant may, in a case for the re- covery of possession solely because of failure to pay rent, satisfy the Order for Possession by paying to the executing officer the rent actually in arrears and the cost of the proceedings. Complete if judgment of possession is based solely on failure to pay rent. Rent in Arrears $ AOPC 311 C-01 Costs $ CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Date: March 18, 2002 IRWIN, McKNIGHT & HUGHES 1 Douglas . Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant ? nI F- cl: .v1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) REG. INC, (Plaintiff) VS. Owen E. Meals, Jr. (Defendant) No.0766 Civil Term xk4 2002 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's preliminary objections. 2. Identify counsel who will argue case: (a) for plaintiff: Mark F. Bayley, Esquire Address: 155 South Hanover Street Carlisle, PA 17013 (b) for defendant: Douglas G. Miller, Esquire Address: 60 West Pomfret Street Carlisle, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 22, 2002 t Al Dated. Z ' OR- Attofney for Plaintiff n rr, r.. va v u.' ; ' r.?, "' ? -? ;n cv Vic. ?, ?_ ... REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. OWEN MEALS, JR., Defendant CIVIL ACTION - LAW NO. 02-0766 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER P J. HESS, J. and OILER. J. ?A ORDER OF CO T AND NOW, this day of , 2002, upon consideration of defendant Owen E. Meals, Jr.'s Preliminary Objections by way of demurrer to plaintiff's complaint, it is hereby ORDERED that the objections with respect to Counts 4 and 5 are SUSTAINED, and the objection with respect to Count 3 is DENIED. /Mark F. Bayley, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 For the Plaintiff Douglas G. Miller, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street covul Rs By the Court, r...??,. y, ?._. i 1 p r r???!?11n^? fi P,! /..J : .. ..... REG, INC., V. Plaintiff OWEN MEALS, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0766 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER P. J., HESS, J. and OILER, J. Before the court are the preliminary objections of the defendant, Owen Meals, Jr., to the Complaint of the plaintiff, REG, Inc. ("REG"). Plaintiff REG brings this action in law against defendant Meals, alleging breach of contract, trespass, wrongful use of civil process, and unjust enrichment, for disputes arising out of a lease agreement between the parties. In addition, REG is also seeking punitive damages under the counts of trespass and wrongful use of civil process. Defendant Meals's preliminary objections in the form of a demurrer contend that REG's counts of trespass, wrongful use of civil process, and punitive damages are legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). FACTS On June 12, 1991, defendant Meals entered into a Commercial Lease ("Lease") with REG for 2000 square feet of office space at 800 Belvedere Street, Carlisle, Pennsylvania. The Lease also included parking facilities in the front of the building and five parking spaces in the rear. Meals was not given exclusive use of the utility room that contained air conditioners, a furnace, and storage space for the Lessor. The term of this lease was to begin on June 1, 1991 and end on July 31, 2001. Paragraph 14 of the Lease states, "Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the demised premises to Lessor free of subtenancies, all in good condition and repair. Lessees shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property." Paragraph 17 of the Lease states, "All damages or injuries done to the premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing paneling or replacement of same if not repairable." Prior to the end of Meals's lease term, July 31, 2001, REG gave Meals full and adequate notice that his term would not be extended. Prior to that date, REG had negotiated a lease agreement with Lil' Ponderosa Enterprises ("Ponderosa") for the premises for a three year term with a rental rate of $3,300 per month. Pursuant to this lease agreement, Ponderosa paid a $3,300 deposit. Meals did not surrender the property on July 31, 2001, the date of the end of his lease term. On August 3, 2001, REG filed an Eviction and Request for Order of Possession with the District Justice court. REG sought payment for physical and unjust detention damages and recovery of the leased premises. On 2 August 21, 2001, Meals filed a Cross-Complaint seeking recovery of damages for REG's destruction of his property and lost business income for REG's refusal to repair the air conditioning and related systems at the leased premises in accordance with the Lease Agreement. After conducting a hearing on August 30, 2001, the District Justice issued an Order of Possession and Notice of Judgment in favor of REG for rent in the amount of $3,034.00 per month and costs of $79.18. This amount was reduced by $500.00, the sum awarded to Meals under his Cross-Complaint. The District Justice did not award REG any monies for physical damages to the leased premises or damages for unjust detention. Neither party appealed from this Notice of Judgment within thirty days. Meals vacated the premises on September 30, 2001, upon receiving the Order for Possession, Return and Notice on September 18, 2001, which stated that if Meals remained on the premises eviction would commence on October 5, 2001. As a result of Meals's delay in vacating the premises, Ponderosa was unable to grant an extension of the time to take possession of the premises, and had to back out of its three year contract with REG. REG is seeking a variety of damages for each count in the Complaint. For Count 1 of breach of contract, REG is seeking a liquidated amount of $122,100.00, plus interest. This amount represents 36 months of rent that Ponderosa would have paid plus the $3,300.00 deposit. Under Count 2 for 3 breach of contract, REG is seeking the costs to restore and/or repair the property pursuant to the contract terms, plus interest, this entire amount to be determined at trial. Under both counts REG is seeking attorney fees and costs of litigation. Under the counts of trespass and wrongful use of civil process, REG is demanding an amount in excess of the jurisdictional limit for compulsory arbitration, plus interest, attorney fees, and punitive damages. Finally, under the unjust enrichment claim, REG is seeking the amount of $6,068.00, two months rent, that Meals received unjustly as a result of his two month delay on the subject property. Defendant Meals is objecting only to the counts of trespass, wrongful use of civil process, and punitive damages. DISCUSSION Defendant's first preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for wrongful use of civil process.' ' Count 4 of plaintiff REG's complaint asserts Wrongful Use of Civil Process. (PI. Cmpl. at 8). In its Brief in Opposition to Defendant's Preliminary Objections to Plaintiff's Complaint, REG states that it actually wishes to pursue the common- law tort of "abuse of process," and that the defendant was confused by the title in the Complaint. Because the title does in fact explicitly state "Wrongful Use of Civil Process," not "abuse of process," the defendant's analysis in his preliminary objection stands. Even if Count 4 did correctly assert "abuse of process," the defendant's objection would be sustained. Restatement (Second) of Torts § 682 defines the tort abuse of process as "the use of legal process against another primarily to accomplish a purpose for which it is not designed." Hart v. O'Malley, 436 Pa.Super. 151, 168, 647 A.2d 4 The defendant analyzed the plaintiff's claim based on the tort of wrongful use of civil proceedings, or the Dragonetti Act. 42 Pa. C.S.A. §§ 8351 to 8355. The tort is defined as follows: (a) Elements of action. A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings when: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. 42 Pa. C.S.A. § 8351(a). By statute, the plaintiff has the burden of satisfying the following five factors: (1) The defendant has procured, initiated or continued the civil proceedings against him; (2) The proceedings were terminated in his favor; (3) The defendant did not have probable cause for his action; (4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the 542, 551 (1994) (Citations omitted). An abuse of process claim is analyzed using three prongs. "To establish a claim for abuse of process, it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, and (3) harm has been caused to the plaintiff." Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 382, 627 A.2d 190, 192 (1993). In support of this claim, REG contends that the defendant used the legal process against the plaintiff in bad faith. There is nothing in REG's Complaint to support this claim of bad faith, therefore, the first prong is not satisfied. Further, the plaintiff has not shown that the defendant directly intended to abuse the legal process. Because the first two prongs have not been satisfied, the plaintiff has no claim for damages under the tort "abuse of process." 5 proceedings were based; and (5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages). 42 Pa. C.S.A. § 8354. Wrongful use of civil proceedings arises when "a party institutes a lawsuit with malicious motive and lacking probable cause." Rosen v. American Bank of Rolla, 426 Pa. Super 376, 380, 627 A.2d 190, 191 (1993). The claim also should allege that the defendant wrongfully procured, initiated or continued civil proceedings against the plaintiff. Pawlowski v. Smorto, 403 Pa. 71, 77, 588 A.2d 36, 39 (1991). REG's claim is based on its assertion that Meals forced it to file an Eviction and Request for Order of Possession. The presence of this alleged " force" does not satisfy the first element of wrongful use of civil proceedings. In addition, REG alleges that Meals "continued, prolonged and defended said legal process and civil suit in bad faith." (PI. Compl. at 40). But there is nothing in the record that indicates that Meals maliciously continued or prolonged the suit before the District Justice. A malicious use of civil process claim centers on the initiation of a suit, not activities done after the commencement of such a suit, even if such activities are conducted in bad faith. Rosen, at 381, 627 A.2d at 192. In regards to the probable cause element, REG has the burden of showing that the defendant did not have a reasonable basis for initiating his Counterclaim to REG's Complaint. Because the District Justice did in fact award the defendant 6 damages for REG's damage to the premises, there is sufficient evidence to show that the defendant did have probable cause to support his Counterclaim. In addition, REG's request for attorney fees in regards to this claim is denied. The court in Hart v. O'Malley, 781 A.2d 1211, 1217 (Pa. Super. 2001), specifically held that attorney fees may not be awarded in a wrongful use of civil proceedings claim, and in fact can only be awarded for the prosecution of an underlying claim. Id. Because REG has not satisfied the elements of a claim for wrongful use of civil proceedings, the defendant's preliminary objection is sustained. The defendant's second preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for punitive damages. Because REG has not established a claim for wrongful use of civil proceedings, punitive damages with regard to such claim cannot be awarded. The second preliminary objection is sustained. The defendant's final preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for trespass. In support of his claim the defendant argues, with facts set forth in his brief, that REG had previously given the defendant holdover tenant status on a month-to-month basis. This affirmative defense is not appropriate in a preliminary objection because it is based on facts not set forth in the pleadings, and in fact should be set forth in an answer. Therefore, the defendant's final preliminary objection is denied. 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Civil Action--Law Plaintiff Docket No. 02-766) V. OWEN E. MEALS, JR. Defendant JURY TRIAL DEMANDED MOTION FOR CLARIFICATION AND NOW comes Plaintiff, REG, Inc, by and through its attorney, Mark F. Bayley, Esquire, and in support of this Motion avers as follows: By November 18, 2002 Order, the Court sustained Defendant's Preliminary Objections to Counts 4 (Wrongful Use of Civil Process) and 5 (Punitive Damages-Trespass- Wrongful Use of Civil Process) of Plaintiffs Complaint. 2. In the same Order, the Court denied Defendant's Preliminary Objections to Count 3 (Trespass). 3. The Order does not clearly state that Count 5 (Punitive Damages-Trespass- Wrongful Use of Civil Process) stands with regard to Plaintiffs Trespass Count which survived Preliminary Objections. WHEREFORE, Plaintiff respectfully requests that the Court clarify its November 18, 2002 Order in that Count 5 for Punitive Damages stands with relation to Count 4 for Trespass. Respectfully submitted, ROMINGER & BAYLEY Il- Zt-oZ Mark F. Bayley, Esquire 155 S. Hanover St. Carlisle, PA 17013 (717) 241-6070 Supreme Court I.D.# 87663 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Civil Action--Judgment Plaintiff Docket No. V. 2002-00786 OWEN E. MEALS, JR. Defendant CERTIFICATE OF SERVICE, I, Mark F. Bayley, Esquire, attorney for REG, Inc., do hereby certify that I this day served a copy of the forgoing document upon the following by First Class Mail: James D. Hughes, Esquire Irwin, McKnight & Hughes West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 Dated: ? _o Mark F. Ba ley, squire Attorney for Plaintiff C N ii LM v z -± Z ::E 1 . C Q ? N C;? 7 ?D -G REG, INC. Plaintiff, V. OWEN E. MEALS, JR., Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 0766 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR CLARIFICATION AND NOW this 13`h day of December, 2002, comes the Defendant, OWEN E. MEALS, JR., by and through his attorneys, Irwin, McKnight & Hughes, and makes the following Answer to Plaintiff's Motion for Clarification avering as follows: 1. The averments contained in paragraph one (1) of the Plaintiff's Motion for Clarification are admitted. By way of further answer, Defendant's Preliminary Objections dated March 18, 2002, included an objection to any and all punitive damages claimed in Count 5 of the Complaint. 2. The averments contained in paragraph two (2) are admitted. 3. The averments contained in paragraph three (3) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied. By way of further answer, Defendant asserts that Count 5 has been and should be dismissed in its entirety. Count 5 of the Complaint is legally deficient. Plaintiff seeks punitive damages in Count 5 on the basis that Defendant's conduct was outrageous, obdurate and vexatious because Plaintiff was obligated to follow standard eviction procedures. Defendant preliminarily objected to Count 5 in its entirety, and said count fails as Plaintiff's claim for punitive damages is not supported by the facts and is therefore legally deficient. WHEREFORE, Defendant Owen E. Meals respectfully requests this Honorable Court dismiss Count Five (5) of Plaintiff s Complaint with prejudice in its entirety. Respectfully Submitted, IRWIN, McKNIGHT & HUGHES J. A& A. By: Dougl G. Miller, + squire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: December 13, 2002 Attorney for Defendant 2 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: MARK F. BAYLEY, ESQUIRE ROMINGER & BAYLEY 155 SOUTH HANOVER STREET CARLISLE, PA 17013 Date: December 13, 2002 IRWIN, McKNIGHT & HUGHES I JIA Douglas G. ' er, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant, Owen E. Meals, Jr. c_n REG, INC. Plaintiff, V. OWEN E. MEALS, JR., Defendant. : IN THE COURT OF COMMON PL ( ?? : CUMBERLAND COUNTY, PENNSYL ANIA NO. 02 - 0766 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED A ORDER F COURT 3 AND NOW, this 2; day of <i" I , , upon consideration of Defendant's Answer to Plaintiffs Motion for Clarification, it is hereby ORDERED that Count Five (5) of Plaintiffs Complaint is dismissed with prejudice in its entirety. ?C? Dr? bV0 MNY' A7ASNN3d REG, INC. Plaintiff, V. OWEN E. MEALS, JR., Defendant. : IN THE COUI .T OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02- 0766 CIVIL TERM CIVIL. ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. IRWIN, McKNIGHT & HUGHES Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, Owen E. Meals, Jr. Doug, G. Mi11e{, Esquire 3 - Date: a , 2003 REG, INC. Plaintiff, V. OWEN E. MEALS, JR., Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 -- 0766 CIVIL TERM CIVIL. ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW this day of February, 2003, comes the Defendant, OWEN E. MEALS, JR., by and through his attorneys, Irwin, McKnight & Hughes, and respectfully files this Answer with New Matter and Counterclaim to the Complaint of the Plaintiff, REG, INC., and in support thereof aver as follows: PARTIES 1. The averments of fact contained in paragraph one (1) of the Plaintiff's Complaint are admitted. 2. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph two (2) so they are therefore specifically denied and strict proof thereof is demanded at trial. 3. The averments of fact contained in paragraph three (3) are denied as stated. It is admitted that during the term of the parties' lease, Defendant an owner and operator of a real estate business known as Re/Max Performance Realty. VENUE 4. The averments of fact contained in paragraph four (4) are admitted. BACKGROUND 5. The averments of fact contained in paragraph five (5) are denied as stated. It is admitted that Defendant entered into a Commercial Lease with Plaintiff on or about June 12, 1991. The Commercial Lease identified by Plaintiff as Exhibit A speaks for itself and therefore no further response is required. 6. The Commercial Lease referenced by Plaintiff in paragraph six (6) and identified as Exhibit A speaks for itself and therefore no response is required. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 7. The Commercial Lease referenced by Plaintiff in paragraph seven (7) and identified as Exhibit A speaks for itself and therefore no response is required. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 8. The Commercial Lease referenced by Plaintiff in paragraph eight (8) and identified as Exhibit A speaks for itself and therefore no response is required. To the extent that a response is required, any inference that Defendant caused damage or injury to the premises other than ordinary wear and tear is specifically denied and strict proof thereof is demanded at trial. 2 9. The averments contained in paragraph nine (9) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 10. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph ten (10) so they are therefore specifically denied and strict proof thereof is demanded at trial. 11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eleven (11) so they are therefore specifically denied and strict proof thereof is demanded at trial. 12. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twelve (12) so they are therefore specifically denied and strict proof thereof is demanded at trial. 13. The averments contained in paragraph thirteen (13) are conclusions of law to which no response is required. To the extent that a response; is required, the averments are denied as stated and strict proof thereof is demanded at trial. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 14. The averments contained in paragraph fourteen (14) are denied as stated. It is admitted that on or about August 3, 2001 filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, in response to which Defendant gave notice of his intent to defend and timely filed a responsive Civil Complaint seeking among other relief abatement of rent and 3 lost business income. The remaining averments in paragraph fourteen (14) are specifically denied and strict proof thereof is demanded at trial. 15. The averments contained in paragraph fifteen (15) are denied as stated. It is admitted that following a hearing the Honorable Paula P. Correal entered judgments on August 30, 2001 awarding Plaintiff the net sum of $2,613.18, which ,amount represented one month of rent plus costs, less the sum of $500.00 awarded to Defendant by virtue of his Cross-Complaint. In addition, Plaintiff was granted possession. Any remaining averments in paragraph fifteen (15) are specifically denied and strict proof thereof is demanded at trial. 16. The averments contained in paragraph sixteen (16) are denied as stated. It is admitted that neither party appealed the judgments dated August 30, 2001 and entered by the Honorable Paula P. Correal. Any remaining averments in paragraph sixteen (16) are specifically denied and strict proof thereof is demanded at trial. 17. The averments contained in paragraph seventeen (17) are conclusions of law to which no response is required. 18. The averments contained in paragraph eighteen (18) are admitted. 19. The averments contained in paragraph nineteen. (19) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 4 20. The averments contained in paragraph twenty, (20) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 21. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-one (21) so they are therefore specifically denied and strict proof thereof is demanded at trial. COUNT I - BREACH OF CONTRACT 22. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 23. The averments contained in paragraph twenty-three (23) are denied as stated. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 24. The averments contained in paragraph twenty-four (24) are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied as stated. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 25. The averments contained in paragraph twenty-five (25) are conclusions of law to which no response is required. To the extent that a response- is required, the averments are specifically denied and strict proof thereof is demanded at trial. 5 26. The averments contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 27. The averments contained in paragraph twenty-seven (27) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT II - BREACH OF CONTRACT 28. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 29. The averments of fact contained in paragraph twenty-nine (29) and all of its subparagraphs(A. - L.) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff sought recovery for alleged damages to the leased premises at the prior District Justice hearing, was not granted any recovery for the alleged damages, and failed to appeal from the District Justice judgment. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. 6 COUNT III - TRESPASS 30. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 31. The averments contained in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 32. The averments contained in paragraph thirty-two (32) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 33. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirty-three (33) so they are therefore specifically denied and strict proof thereof is demanded at trial. 34. The averments contained in paragraph thirty-four (34) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 35. The averments contained in paragraph thirty-five (35) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 7 WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT IV - WRONGFUL USE OF CIVIL PROCESS 36. - 41. Count IV and the averments contained in paragraphs thirty-six through forty- one (36 - 41) were dismissed pursuant to Order of Court dated November 18, 2002, and therefore no response is required. COUNT V - PUNITIVE DAMAGES 42. - 49. Count V and the averments contained in paragraphs forty-two through forty- nine (42 - 49) were dismissed pursuant to Order of Court dated November 18, 2002, and subsequent Order of Court dated January 2, 2003, therefore no response is required. COUNT VI - UNJUST ENRICHMENT 50. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 51. The averments contained in paragraph fifty-one; (51) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendant paid Plaintiff the sum awarded by the Honorable Paula P. Correal in satisfaction of the District Justice judgment. 8 52. The averments contained in paragraph fifty-two (52) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 53. The averments contained in paragraph fifty-three (53) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial„ WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. NEW MATTER 54. The averments of fact contained in the Answers to the Complaint are hereby incorporated by reference and are made part of this New Matter to the Complaint of the Plaintiff. 55. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for physical and unjust detention damages and recovery of the leased premises. A, true and correct copy of said Complaint is attached hereto and incorporated herein as Exhibit "A." 56. On or about August 21, 2001, Defendant filed a Cross-Complaint with the District Justice seeking among other relief, recovery of damages for Plaintiff's destruction of his property and lost business income for Plaintiff's refusal to repair the air conditioning and related systems at the leased premises in accordance with the parties' lease agreement. 9 57. On or about August 30, 2001, a hearing was held before District Justice Correal and subsequently she issued her Notice of Judgment. 58. At the District Justice hearing, Plaintiff also raised the alleged loss of a subsequent tenant referred to as Ponderosa Enterprises in Paragraph Ten (10) of Plaintiff's Complaint, and sought damages for the alleged loss of the tenant. 59. The Notice of Judgment issued by District Justice Correal found in favor of Plaintiff for rent in the amount of $3,034.00 per month and costs of $79.18, but was reduced by $500.00, which sum was awarded to Defendant under his Cross-Complaint. A true and correct copy of said Notice of Judgment with regard to both complaints is attached hereto and incorporated herein as Exhibit "B." 60. As clearly identified on Exhibit "B," District Justice Correal did not award Plaintiff any monies for either physical damages to the leased premises or damages for unjust detention. 61. District Justice Correal also did not award Plaintiff any damages for the alleged loss of a subsequent tenant. 62. Neither party appealed from the Notice of Judgment in the above-referenced action. 63. Defendant vacated the leased premises on or before September 30, 2001, upon receiving the Order for Possession, Return and Notice on September 18, 2001, which stated that 10 eviction would commence on October 5, 2001 in the event that Defendant remained at the property through that date. 64. Plaintiff's instant action against Defendant is accordingly barred by the doctrines of res judicata and/or collateral estoppel. 65. Defendant paid Plaintiff the sum awarded by the Honorable Paula P. Correal in satisfaction of the District Justice judgment, in which Plaintiff was not given an award for any physical damages to the leased premises as Plaintiff sought in its Complaint. 66. On or about April 23, 2002, a Certificate of Satisfaction was issued marking as satisfied the prior District Justice judgment transferred to Docket Number 2002 - 786. A true and correct copy of the Certificate of Satisfaction is attached :hereto and incorporated herein as Exhibit "C." 67. Plaintiff, having previously received consideration from Defendant on the causes of action on which the Complaint is based, is accordingly barred from here recovering against Defendant. 68. By correspondence dated August 6, 2001, Plaintiff, through its prior legal counsel, offered to extend the lease agreement between the parties for an additional two (2) months beyond the expiration of the lease. A true and correct copy of the letter dated August 6, 2001 is attached hereto and incorporated herein as Exhibit "D." 11 69. By correspondence dated August 9, 2001, Defendant, through his legal counsel, substantially accepted the terms of the offer to extend the lease term. A true and correct copy of the letter dated August 9, 2001 is attached hereto and incorporated herein as Exhibit "E." 70. Plaintiff's Complaint fails to state claims or causes of action upon which relief can be granted. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNTERCLAIM 71. The averments of fact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this Counterclaim to the Complaint of the Plaintiff. 72. Pursuant to the lease agreement between the parties, Defendant paid a security deposit of $2,100.00 to Plaintiff at the commencement of the lease term. 73. Defendant vacated the property by September 30, 2001, and on or about October 3, 2001 sent correspondence to Plaintiff requesting return of the security deposit and providing notice of a forwarding address. A true and correct copy of the letter dated October 3, 2001 is attached hereto and incorporated herein as Exhibit 'T. " 12 74. District Justice Correal did not award Plaintiff any monies for alleged physical damages to the leased premises, which alleged physical damages are substantially the same as those raised by Plaintiff in the instant action. 75. Furthermore, Plaintiff did not appeal from the District Justice judgment denying its request for an award for the alleged physical damages. 76. To date, Plaintiff has not returned the security deposit or any portion thereof to Defendant. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter in the amount of $2,100.00, together with interest, reasonable costs and attorney fees, and such other and further relief as this Court deems just. Respectfully Submitted, Dated: February 12?0-, 2003 IRWIN, McKNIGHT & HUGHES By: Doug &eCourt er, Esquire Supre ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Permsylvania 17013 (717) 249-2353 Attorney for Defendant, Owen E. Meals, Jr. 13 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. f A,11 OWENE. MEALS, JR. Date: February 26 , 2003 COUNTY OF: CUMBERLAND 09-2-01 FNamo: P. CORREAL T WING - COURTHOUSE -1 COURTHOUSE SQUARE CARLISLE, PA 17013-0000 Tee:: (717)240-6564 TO THE DEFENDANT: The above named plaintiff(s) asks judgment together with costs against you for the possession of real property and for: LAIVULUHD AND PLAINTtF F: ' TENANT COMPLAINT NAME aria ADDRESS rPtEG, Incorporated . C/o :Dr. Earl M. Barnhart 800 :Belvedere Street LCarl:isle, PA 17013 DEFENDANT: vs. NAIVE a+d AOORESS rOwen E. Meals, Jr. 800 Belvedere Street Carljsle, ' PA 17013 L Docket t4o.: Date Filed: Amoun Date ai Filing Casts $ - = - Service Costs $ 7 I Total $ -- - - Lease is Residential Q Nonresidential. 0 Damages for injury to the real property, to wit: the nature and extent of any in the property are unknown _ furies to 7X in the emoun; of: $ Damages for the unjust detention of the real property in the amount of $ unknown Rent remaining due and, unpaid on filing date in the amount of $ El And additional rent remaining due and unpaid on hearing date THE PLAINTIFF FURTHER ALLEGES THAT: $ 1. The location and the address, if any, of the real roe Total: $ P p rty is: 800 Belvedere Street lst Floor 2. The plaintiff is the landlord of that property. - Carlisle, PA 17013 3. He leased or rented the property to you or to -------------- 4. [X Notice to quit was given in accordance with law, or under whom you claim. 0 No notice is required under the terms of the lease. i 5• I The term for which the property was leased or rented is fully ended, or Q A forfeiture has resulted by reason of a breach of the conditions; of the lease, to wit: cr, EIRent reserved and due has, upon demand, remained unsatisfied. 6. You retain the real property and refuse to give up its possession. Earl M. Barnhart are true and correct to the best of my knowled e, information and bverify elief' ,This stateme t is madetsubject to the penalties of Section 4904 of the Crimes Code t18 PA. C. S. § 4904) relating to unsworn falsification to authorities. Tames D. Flower Jr. 2 6 W s t H ' (ignature of Ptalnuff (P1 7 -Ull Zb maurney) St . Carli le , 013 (Address) A 17 4 3 6 IF YOU HAVE A DEFENSE to this complaint you may present it at the hearing. IF YOU HAVE A CLAIM against he plaintiff arising out of the occupancy of the premises, which is in the district justice jurisdiction and which you intend to assert at the hearing, YOU MUST FILE it on a complaint form at this office BEFORE THE TIME set for the hearing. IF YOU DO NOT APPEAR AT THE HEARING, a judgment for possession and costs, and for damages and rent if claimed, may nevertheless be entered against you. A judgment against you for possession may result address above. in your EVICTION from the premises. If you are disabled and require assistance, please contact the Magisterial District office at the CPC 310A-98 EXHIBIT "B" COMMONWEALTH OF.PENNSYLVANIA COHNTY OF- CUMBERLANV Mag. Dist. No.:. ' ,, A -. •,. ;; 09-2-01 DJ Name: Hon. PAULA P .:t "CORREAL Address: 1 COURTHOUSE SQUARE -CARLISLE, ' PA Telephone: (7 17 ) 240 - 6564 17013-0000 NOTICE: OF JUDGMENT/TRANSCRIPT PLAINTIFM ONRESIDENTIAL LEASE NAME and ADDRESS IRREG, INC.. C/O DR. EARL M. BARNHART -1 800 BELVEDERE ST. CARLISLE, PA 17013 L J VS. DEFENDANT: NAME and ADDRESS rMEALS OR, OWEN E 800 BELVE ATTORNEY DEF PRIVATE DERE ST. CARLISLE, PA 17013 JAMES D.' HUGHES L J 60 W. POMFRET.,ST.' DocketNo.: LT-0000264-01 -CARLISLE, PA 17013 Date Filed: 8/03/01 'THIS IS TO NOTIFY.YOU THAT: _ - , - Judgment <r FOR PLAINTIFF , 0 Judgment was entered for: -'(Name)' REG, INC.C/O DR.EARL M. 'BARNHAR ® Judgment was entered against MEALS JR, OWEN E in a Landlord/Tenant action in the amount of $ 2. 613.18 on 8L30101 (Date of J udgment) The amount of rent per month, as established by the District Justice, is $ . 3.034.00. The total amount of the Security Deposit is $ 2,000.00 Re Total Amount Establish 1d 5y34. bb ppJ Less - Security Deposit Ap li d nt in Arrears $ ,00 - b Adjudicatted qq ount 2 53p 0 Physical Damages Leasehold Property $ Damages/Unjust Detention $ .00-$ .00 - $ , . 0 $ nn :nn Less Amt Due Defendant from Cross Complaint - $ 00 Interest (if provided by lease) __ $ nn UT J d u gment Amount $ 7 5 4 00 ? Defendants are jointly and severally liable. Judgment Costs Attorney Fees . 0 $ 79-18 $ ? This case dismissed without prejudice. Total Judgment _nn $ * 2,613.18 Q Possession granted. -Post Judgment Credits $ Post Judgment Costs $ ? Po i an Certified Judgment Total $ ? ssess on gr ted if money judgment is no sa is ie by time o eviction. _ ? Possession not granted. *reflects reduction of $500.0c Levy is stayed for days or ? generall sta ed f t y y . or coun Obj ti o L d er claim award. ec on t evy has been filed an hearing will be held: Date Place: Time ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDG T/TRANSCRIPT FORM WITH YOUR Date / ?-C- certify that this is a rue an c ect opy ottthe - AOPC 3758-99 NOTICE OF APPEAL. District Justice ; ie procee s containing t ?e?u gment.., -[ strict Justice c' `'?41 EAL"' COMMONWEALTH QF,1FENNSYLVANIA COUNTY OF: CUMBERbAND F Mag. Dist. No.: 09'-2'-01 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFFNONRESIDENTIAL LEASE NAME and ADDRESS rMEALS JR, OWEN.' E 7 800 BELVEDERE'ST CARLISLE, PA 17013 JAMES D. HUGHES, ESQ 60 W.POMFRET_ST CARLISLE, PA 17013 rt i - ; THIS IS TO NOTIFY YOU THAT: Judgment: AT T FORS NT FF _J2 -- X -Judgment was-entered for: :. (Name) MF,ALg . JR, OWEN E ® Judgment was entered against ' REG.INC:AND- DR. EARL M. BARNHART in a Landlord/Tenant action in the amount of $ 500.00 on 8/30/)l (Date of Judgment) The amount of rent per month, as established by the District Justice, is $ _ .00. The total amount of the Security Deposit is $ .00 Total Amount Established by DJ LLess - Security Deposit Ap?li?d Rent in Arrears $ _.O0 - U = Adjudicated Amount = Ph i l D $ $ . 0.0 ys ca amages Leasehold Property $ Damages/Unjust Detention $ . 00 - $ .00 _ $ - 00 = 00 -$ -no $ o0 Less Amt Due Defendant from Cross Complaint - $ 00 Interest (if provided by lease) . $ 00 UT J d u gment Amount $ nn ? Defendants are jointly and severally liable. Judgment Costs Attorney Fees _ $ -00 $ This case dismissed without prejudice. Total Judgment 00 $ 500.00 . F-1 Possession granted. ? Possession granted if money judgment is not safis Ie y F-1 Possession not granted. F-1 Levy is stayed for days or"? generally stayed. ? Objection to Levy has been filed and hearing will be held: Date: Place: Time J 7 L J DocketNo.: LT-0000264-01 Date Filed: 8/21/01 CROSS COMPLAINT 001 4y Post Judgment Credits Post Judgment Costs Certified Judgment Total ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDG A:341)M Date certl y t at t Is -1s a true an cbr/rest copy o the recor F lr' ?SJ IQ O1 Date :.. ...... My commission expires first Monday of January, 2006 . AOPC 315B•99 DJ Name: Hon. PAULA P. CORRRAL Address: 1 COURTHOUSE SQUARE CARLISLE L , PA Telephone: (717) , 240 - 6564 ATTORNEY FOR PLAINTIFF District Justice VS. DEFENDANT: NAhtEandADDRESS 17013-0000 rRREG.INC.AND DR. EARL M. BARNJHART 8 00 BELVEDERE ST CARLISLE, PA 17013 TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. Ie proceeomgs containing t e Iu gmE District "% '- SEAL . EXHIBIT "C" Certificate of Satisfaction 1 No. of ?• Term, Action in vs. Entered _ Ae7i. j ? a'no'.w) I° Prothonotary of the Court of Common Pleas of Cumberland County, do ereby certify that judgment in dii , ( entered to the above number and term and has been marked satisfied, and costs paid. 3 rv( day of D? _C-11 Prothono ry. EXHIBIT "D" JAMES D. FLOWER JOHN E. SLIKE ROBERT C. SAIDIS GEOFFREY S. SHUFF JAMES D. FLOWER, JR. CAROL J. LINDSAY JOHNNA J. KOPECKY KARL M. LEDEBOHM JOSEPH L. HITCHINGS THOMAS E. FLOWER LAW OFFICES SAIDIS, SHUFF, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 EMAIL: attorney@ssfl-law.com www.ssfl-law.com WEST SHORE OFFICE: 2109 MARKET STREET CAMP HILL, PA 17011 TELEPHONE: (717)737-3405 FACSIMILE: (717)737-3407 REPLY TO CARLISLE James D. Hughes, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 Dear Jim: August 6, 2001 RE: BARNHART v. MEALS A G 0, 7 2001 r [ Iia.?,l?„€,n •r ,? ,.w ?? 1. I appreciated discussing the above referenced case with you. Although it is very inconvenient for Dr. Barnhart to extend your client's lease for an additional two months, he is willing to do so under the following conditions: 1. That rent in the amount of $4,034.00 per month be payable for each month, both payments to be made at the commencement of the lease term. 2. That the sign be removed by September 1, 2001., and the whole properly filled in, in accordance with the lease. 3. That your client pay for Dr. Barnhart's legal fees in this matter, which are presently estimated to be in the amount of $500.00. 4. That the premises be left in excellent condition and without any trash or remaining property on the premises, as per the terms of the lease. 5. That if Mr. Meals is unable to vacate by September 30th, the rent will be raised to $6,000.00 per month for each succeeding month, payable on the first day of each month in advance. James D. Hughes, Esquire 2 August 6, 2001 Irwin, McKnight & Hughes Since your client is currently in default and is occupying the premises contrary to the lease terms, we ask for an extremely prompt response. Very truly yours, SAIDIS, SNUFF, FLOWER & LINDSAY f'?L^\ r" 1 ' James D. Flower, Jr. JDFJr:mjm cc: Dr. Earl M. Barnhart Jr EXHIBIT "E" LAW OFFICES IRWIN McKNIGHT & HUGHES ROGER A IRWIN MARCUS A. MCKNIGHT, III JAMES D. HUGHES REBECCA R. HUGHF_S MARK D. SCHWARTZ DOUGLAS G. MILLER WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 17013-32.22 HAROLD S IRWIN (1925-1977) HAROLD S. IRWIN, JR. (1954-1986) IRWIN. IRWIN & IRWIN (1956-1986) IRWIN. IRWIN & McKNIGHT (1986-1994) IRWIN, McKNIGHT & HUGHF. S (1994- ) (717) 249-2353 FAX (717) 249-6354 E-MAIL: IMHLAW@SUPERNET. COM August 9, 2001 VIA FACSIMILE (243-6486) ONLY JAMES D. FLOWER, JR., ESQUIRE SAIDIS, SHUFF, FLOWER & LINDSAY 26 WEST HIGH STREET CARLISLE, PA 17013 RE: REG, INCJOWEN E. MEALS, JR./800 BELVEDERE STREET Dear Jim: FILE COPY Per our conversation yesterday, this letter shall confirm my client's willingness to modify the offer which I set forth to you in my letter of August 3, 2001 for purposes of the holdover lease terms with respect to the above-referenced matter. Please be advised that Mr. Meals, although he does not feel said increase in reasonable, is willing to give your client rent in the amount of $4,034.00 for the month.of August and September 2001.' Mr. Meals is still willing to offer the remaining terms set forth in my letter to you dated August 3, 2001, which is very similar to those which your client initially proposed in your previous correspondence dated August 6, 2001. Despite Mr. Meals' efforts to deal reasonably with your client in meeting his demands, your client has done nothing but act in a retaliatory manner towards Mr. Meals which is quite inappropriate and without legal basis. As I have indicated to you during our telephone conversations and via voice mail, your client has unilaterally decided to make it impossible for Mr. Meals to operate his business. It is my understanding that Mr. Meals had to close his business on August 8, 2001, given that Dr. Barnhart turned off all of the air conditioning to Mr. Meals' suite and proceeded to padlock the utility room so that the air conditioning could not be turned on. The temperature outside exceeded 98° and therefore Mr. Meals was forced to close his doors. This is a tortuous interference with business relations and this type of behavior will not be tolerated. Further, Dr. Barnhart has entered the premises without regard to Mr. Meals' property located therein and left the doors wide open after he realized somebody had come into the office. He has refused to remove the trash from the premises, but instead decided that Mr. Meals' hallway would be a better place for it. He has also refused any rental payment for the month of August and harassed Mr. Meals' staff and made disparaging comments to other parties concerning Mr. Meals. Of a more serious nature, Dr. Barnhart interfered with and attempted to stop the transmission of U.S. Mail being delivered to Mr. Meals which has its own legal implications. If your client is willing to be reasonable in any manner, I would suggest that an agreement between the parties be reached by 5:00pm on August 9, 2001. To the extent that this does not occur, please be advised that we will recommend to Mr. Meals to file the appropriate counterclaim for damages he has suffered as well as any other remedies available to him at law for the actions taken by Dr. Barnhart both prior to and subsequent to the expiration of the Lease on July 31, 2001. Please advise as to whether your client is willing to reasonably discuss the situation or proceed to litigation. HT & HUGHES JDH:sls cc: Owen E. Meals, Jr. (via G/Aughes/litigation/8-9-01 ltr to J Flower Jr re Owen-800 Belvedere Very truly yours, EXHIBIT "F" 10/09/2001 13:19 FAX 717 245 2255 REMAX/STERLING ASS30C. October 3, 2001 Dr. Earl Barnhart 800 Belvedere Street elf r 17013 Re: 800 Belvedere Street Lease Dear Dr. Bangmrt, As of September 30, 2001, RE/MAX Performance Realty vacated the above referenced property. The office was left in very good condition, free and clear of all debris and trash. The exterior sign was completely removed and the lawn was restored to its original state. All keys were left on the front counter. Please forward my $2,100.00 securi Jr., c% li;1s/MAX Sterling Associates, Inc., 1909 Ritner Hwy. Siu,C?O a PA' 17013. ?hank you, Owen E. Meals, Jr. Broker/Owner ABIt, CRS, GRT cc: James D. Hughes, Esq. Q002 WMW Sterling Assoc., Inc. 1909 Ritner Hwy., Suite 1 Carlisle, Pennsylvania 17013 Office: (717) 245-2600 Fax: (717) 245-2255 E,Icn ONI" Independently awned and opmMd CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Mark F. Bayley, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 (Attorney for Plaintiff) Date: February, 2003 IRWIN, McKNIGHT & HUGHES Douglas Miller, Esquire Supreme ourt ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant, Owen E. Meals, Jr. ? ? ? ' c? _ ?;.. ? , ', -_ ? ? ?z 11 '=./ _ _.4 r F.?? -.? ,? - _.. r .; 6 ?. .. ??? -?3 . t:71 7 --` '< REG, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action--Law OWEN E. MEALS, JR. Defendant Docket No. 02-766 JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, REG, Inc., by and through its attorney, Karl E. Rominger, Esquire., and respectfully files this Answer to Plaintiffs New Matter and Counterclaim: NEW MATTER 54. No response is required. 55. Admitted. 56. Admitted. 57. Admitted. 58. Admitted. By way of further answer, Plaintiff is seeking damages from the loss of the tenant which occurred after the date of the Notice of Judgment issued by District Justice Correal on August 30, 2001. 59. Admitted. 60. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 61. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 62. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 63. Admitted in part and denied in part. It is admitted that Defendant vacated the leased premises on September 30, 2001. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to why it took Defendant a full month to vacate the premises after the Order of Possession was granted. By way of further answer, as of August 30, 2001 Defendant was a trespasser. 64. The averments contained in paragraph sixty-four (64) are conclusions of law to which no response is required. 65. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 66. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 67. The averments contained in paragraph sixty-seven (67) are conclusions of law to which no response is required. 68. Admitted. By way of further answer, Defendant declined the offer. 69. Denied. Defendant declined the offer. 70. The averments contained in paragraph seventy (70) are conclusions of law to which no response is required. COUNTERCLAIM 71. No response is required. 72. Admitted. 73. Admitted. 74. Admitted in part and denied in part. It is admitted that District Justice Correal did not award Plaintiff monies for damages to the leased premises. It is denied that District Justice Correal adjudicated any issues regarding the security deposit, which did not become an issue until Defendant vacated the property. 75. Admitted. 76. Admitted. By way of further answer, Plaintiff provided Defendant with a detailed list of damages to the premises in its October 26, 2001 letter attached as Exhibit "A" which cites the reasons for withholding the security deposit. WHEREFORE, Plaintiff, REG, Inc., respectfully requests this Court to enter a judgment in its favor and against Defendant in this matter, together with reasonable costs and attorney fees, and such other relief as this Court deems just. Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 S. Hanover St. Carlisle, PA 1701:3 (717) 241-6070 Supreme Court I.D.#81924 Attorney for Plaintiff VERIFICATION I, Karl E. Rominger, Attorney for REG Inc., verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date Karl E. Rominger Law Attorney for REG, Inc. Exhibit "A" 155 South Hanover Street 1 North Main Street Carlisle, Pennsylvania 17013 Chambersbur , Pennsylvania 9 17201 717.241.6070 • Fax: 717.241.6878 w@romingerlaw.com • www.romingerlaw.com ec- From: Xe-04; To: Attention: Company: Address: City, State, Zip: Phone Number: Fax Number: --I el,- /_ 3? Message: Date: / 9 No. of Sheets to Follow Al If you do not r ceive the amount of pages stated above, please contact us immediately. All information contained in this fax is confidential and privileged. If you receive this fax in error please call 717.241.6070 Advocacy - Advice - Answers cZaw 155 South Hanover Street Carlisle, Pennsylvania 17013 717.241.6070 • 888.241.9679 • FAX: 717.241.6878 Iaw@romingerlaw.com • www.romingedaw.com Please reply to Carlisle office. October 26, 2001 James D. Hughes, Esquire Irwin, McKnight & Hughes West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 Via Fax: 249-6354 - ONLY RE: REG, INC. v. OWEN E. MEALS, JR. DOCKET # LT-0000264-01 Dear Attorney Hughes: Enclosed please find an estimate for damages which occurred to 800 Belvedere Street, Lower Level, which were incurred during the occupancy of your client, Owen Meals. We will not be returning any portion of the security deposit, as it is being retained to offset the damages done. Further, we reserve the right to make claim for additional damages as part of any suit we may bring for the collection of rent now due and owing and other damages which occurred because of the unjust retention. If you have any questions about this matter, do not hesitate to contact me. Sincerely, Karl E. Rominger, Esquire KER:Ijj Enclosure Advocacy - Advice - Answers WESTFIILL SERVICES 2194 Ne?nn'Ne Road CaftWo PA 17013 August 27, 2001 REG, Inc., 800 Belvedere St. Carlisle, PA 17013 Dear Mr. Barnhart: Thank you for using our services. Our examination of the lower level offices at the above address found the following: FINDINGS 1. The door to the utility room appears to have been pried open. The lock hasp and associated hardware is damaged. The door is tom from the jam. Hinges are ripped door. Gasket materials and insulation are damaged which will reduce the effectiveness f them as soundproofing and insulation. The wallboard into which the lock is mounted is damaged. The type of mounting used will not allow a similar remounting. The structure behind the wall must be accessed and the mollies removed. This will necessitate new wallboard being installed in that area. The Schlage door closer was broken at the swivel point where the arm mounts to the doorframe. 2. There is damage to a window frame in the receptionist area. The air conditioner mounted there appears to be too heavy for the thin wood that is part of the insulated window frame. If the unit is to remain, additional supporting structure needs to be added. Because this is an Anderson type window of older vintage (60's), it may be difficult to replace the window. This will require the removal of the window and a new piece of wood being hand milled to replace the broken section. This piece of wood houses the latch assembly and therefore is essential for the.insulation value and security of the building. Please Note: The air conditioner is not properly secured in the window and the cardboard extensions will not withstand extreme moisture or wind conditions. These factors raise safety and security concerns in addition to subjecting the building to additional damage from the elements. 3. There is a broken windowpane in the adjacent run of windows. Because these are double insulated glass, the sash must be removed and delivered to a glazier to repair. It will require a temporary security closure and a minimum of a couple days. 4. One florescent fixture is missing the surround cover and diffuser. Because of the age of the fixture, it may not be possible to purchase a replacement cover. The entire fixture will need to be replaced, in all likelihood. SUGGESTED REPAIRS • Page 2 August 27, 2001 The door must be removed, the hinge mounting area repaired with a plastic wood type patch. New longer screws will be used to remount the hinge to the door. The gasket and insulation will be replaced and/or repaired based upon the availability of materials supplied by the customer. However, for this estimate we have assumed the materials were lost or damaged and have included the cost of new materials. A new door closer will be purchased and mounted to replace the broken unit. The wall board will be removed, replaced, taped and spackled (three coats), painted (two coats to the entire wall for matching purposes). A new lock and hasp assembly will be attached to secure the utilities room. 2. The window will be removed; it will be delivered to Adams, the Anderson Window Company in Carlisle. They will repair it or supply the necessary parts --- if possible. Our experience tells us they or we will need to hand mill this part and make the fittings and adjustments for the latching mechanism. We will remount the window in the brick and caulk the exterior. We will repair and/or replace the inside trim. We will fill and paint the area to match as closely as possible the adjacent run of windows of which it is a set 3. The broken windowpane (light area 21.5° x 36°) will be repaired by removing the sash and pane only. It will be taken to a glazier; to install a double thermopane sealed glass replacement assembly. It will be returned, remounted and painted as required. A temporary closure will be constructed and inserted into the window opening. It will be weather proofed if the repair requires a waiting period of days. 4. We will remove a surround from one of the existing office fixtures to use as a sample. We will take it to an electrical supply house. We will attempt to buy just a cover. However, failing this we will purchase a fixture of similar size and wattage. If we have to replace the fixture there will be a difference in the foot print on the ceiling. Therefore, for this estimate we are including the price of painting the ceiling. 5. Clean and remove any debris. 6. Because there will be a significant contrast between the newly painted wall areas Vs the other walls which are wom, you may wish to have us paint the entire area. We have not included any additional painting in this estimate. Please Note: A number of these items require little in the way of material, however, the need to make multiple trips to allow for drying time, etc. make it necessary to include a significant amount of travel time. The demolition and removal time is longer, in that we cannot damage adjacent areas. Much of the work is such that only an experienced trim carpenter can perform the assignment. These and several unknowns cause us to estimate higher e.g., because we do not know if Adams can repair the window until we remove it or if we have to hand-mill the parts. What will they and the glazier charge? Our experience while performing the work will affect your actual cost. We represent that the estimated numbers following will be within + or-10% of the final price. • Page 3 August 27, 2001 WESTHILL ESTIMATED CHARGES. DESCRIPTION COST INSPECTION $100.00 WRITTEN REPORT AND ESTIMATE $150.00 ITEM 1 $810.00 ITEM 2 $480.00 ITEM 3 $370.00 ITEM 4 $200.00 TOTAL $2,110.00 Thank you for using the services of Westhill. If you require additional information you can reach me at 243-8689. Ron Deihl Partner HP Fax Series 900 Plain Paper Fax/Copier Date Time T)= Oct 26 3:46pm Sent Identification 2496354 Fax History-Report for Oct 26 2001 3:48pm Duration PA= Result 1:58 5 OK Result: OK - black and white fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Civil Action--Law Plaintiff Docket No. 02-766 V. OWEN E. MEALS, JR. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Plaintiff, REG Inc., do hereby certify that I this day served a copy of Plaintiff's Answer to Defendant's New Matter and Counterclaim upon the following by first class mail. Douglas G. Miller, Esquire 60 W. Pomfret St. Carlisle, PA 17013 Dated: March 18, 2002 Karl E. Rominger, Esquire ROMINGER & BAYLEY Attorney for Plaintiff C:: : >..• -rT REG, INC. : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 02 - 0766 CIVIL TERM CIVIL ACTION - LAW OWEN E. MEALS, JR., Defendant. JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW APPEARANCE To Curtis R. Long, Prothonotary: Please withdraw the appearance of Douglas G. Miller, Esquire on behalf of the Defendant, Owen E. Meals, Jr., in the above captioned case. Respectfully Submitted, IRWIN & MCKNIGHT Dated: October 7, 2003 uglas . Mil er, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 PRAECIPE TO ENTER APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Defendant, Owen E. Meals, Jr., in the above captioned case. Respectfully Submitted, HUGHES & FISHMAN Date: November / ( , 2003 JaRMP. Hughes, Esquire Farlisle, me Court I.D. No. 58884 exander Spring Road Pennsylvania 17013 (717) 249-6333 CERTIFICATE OF SERVICE I, James D. Hughes, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United states mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Karl E. Rominger, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 Date: November / f, 2003 & FISHMAN Ja Hughes, Esquire sup me CourtII) # 58884 Alexander Spring Road Carlisle, Pennsylvania 17013 (717) 249-6333 Attorney for Defendant 2 C C f ?? ?. ?"f71 T - G ?' ? C!):. iG c _, ?'- r :.? 1 < ?-? MARK F. BAYLEY, ESQUIRE ATTORNEY ID NO. 87663 IRWIN & BAYLEY 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFF REG, INC., PLAINTIFF v. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 766 CIVIL JURY TRIAL DEMANDED PRAECIPE FOR PLAINTIFF'S CHANGE OF ADDRESS OF RECORD TO THE PROTHONOTARY: The new mailing address and address of record for Plaintiff, REG, Inc. is as follows: Mark F. Bayley, Esquire IRWIN & BAYLEY 64 S. Pitt Street Carlisle, PA 17013 Any and all pleadings, documents and other correspondence of any kind should be forwarded to the new address of record as stated above from this point forward. Jd Date: Mark F. Bayley, Esquire Attorney for Plaintiff 1 - MARK F. BAYLEY, ESQUIRE ATTORNEY ID NO. 87663 IRWIN & BAYLEY 64 SOUTH PITT STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFF REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 766 CIVIL OWEN E. MEALS, JR., DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within Praecipe upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, P. C. 354 Alexander Spring Road, Suite 1 Carlisle, Pa 17013 v ?- I _ (? Mark F. Bayley, E uire Dated: 1 J Attorney for Plaintiff C) ?? _ ' ?_? i: . =i ? _ . -., ?',!l _i, j -: - - -: ?. =1 - nJ ';-i MARK F. BAYLEY, ESQUIRE BAYLEY & MANGAN 57 W. POMFRET STREET CARLISLE PA 17013 (717) 241-2446 ATTORNEY ID NO. 87663 ATTORNEY FOR PLAINTIFF REG, INC., PLAINTIFF V. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 766 CIVIL JURY TRIAL DEMANDED PRAECIPE FOR PLAINTIFF'S CHANGE OF ADDRESS OF RECORD TO THE PROTHONOTARY: The new mailing address and address of record for Plaintiff, REG, Inc., is as follows: Mark F. Bayley, Esquire BAYLEY & MANGAN 57 W. Pomfret Street Carlisle, PA 17013 Any and all pleadings, documents and other correspondence of any kind should be forwarded to the new address of record as stated above from this point forward. Date. 4?? ? I 0 Mark F. Bayley, Es ire Attorney for Plain Iff MARK F. BAYLEY, ESQUIRE BAYLEY & MANGAN 57 W. POMFRET STREET CARLISLE PA 17013 (717) 241-2446 ATTORNEY ID NO. 87663 ATTORNEY FOR PLAINTIFF REG, INC., PLAINTIFF V. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CML ACTION - LAW NO. 02 - 766 CML JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within Praecipe upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, P. C. 354 Alexander Spring Road, Suite 1 Carlisle, Pa 17013 Dated: Mark F. Bayley, Esquire Attorney for Plaintiff 14 t? < N J? : , s ?1 PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PRO OHONOTARY OF CUMBERLAND COUNTY Please list he following case: (X) for JURY trial at the next term of civil court. ( ) for trial without a jury REG, INC., V. OWEN E. Plaintiff JR., Defendant No. 02-766 CIVIL ACTION - LAW The trial list will be called on January 9, 2007 Trials commence on February 5, 2007 Pretrials will be held on January 17, 2007 (Briefs are due 5 days before pretrials) Attorney ?ho will try case for the party who files this praecipe: Susann B Morrison, Esquire Trial co sel for the other party: Mark F. ayley, Esquire This case is ready for trial. Susann B. Morrison, squire SALZMANN HUGHES, P.C. Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant Dated: // // N (? 6, CERTIFICATE OF SERVICE I, B. Morrison, Esquire, of the law firm of Salzmann Hughes, P.C., hereby certify that ? served a true and correct copy of Defendant's Praecipe for Listing Case for Trial with ?eference to the foregoing action by first class mail, postage prepaid, this A?day of d/LMM _ 2006, on the following: Mark F. Bayley, Esquire Attorney for Plaintiff Bayley & Mangan 57 W. Pomfret Street Carlisle, PA 17013 By Vow- Susann B. Morri on, Esquire Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant C? 7? T, _J REG, INC., Plaintiff V. OWEN E. MEALS, JR., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0766 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S OMNIRITS MOTION IN LIMINE, OR, IN THE, ALTERNATIVE, FOR SUMMARY JITDGME,NT AND NOW, comes the Defendant, Owen E. Meals, Jr., by and through his attorneys, Salzmann Hughes, P.C., and files this Motion in Limine or, in the Alternative, Summary Judgment as follows: 1. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for physical damages, unjust detention damages and recovery of the leased premises. A copy of said Complaint is attached hereto and incorporated herein as Exhibit "A." 2. On or about August 21, 2001, Defendant filed a Cross-Complaint with the District Justice seeking recovery of damages to his property by Plaintiff and lost business income due to Plaintiffs refusal to repair the air conditioning and related systems at the leased premises in accordance with the parties' lease agreement. 3. On or about August 30, 2001, a hearing was held before District Justice Correal at which Plaintiff raised the alleged physical damages to the premises and presented a report by Westhill Services dated August 27, 2001 detailing the alleged damages. (Westhill Services Report attached hereto and incorporated herein as Exhibit "B." 4. At the hearing before District Justice Correal, Plaintiff also raised the alleged loss of a subsequent tenant, UP Ponderosa Enterprises, as admitted in Plaintiff's Answer to Defendant's New Matter and Counterclaim at Paragraph 58. 5. At the hearing before District Justice Correal, Plaintiff also sought damages for unjust detention of the premises. 6. The Notice of Judgment issued by District Justice Correal issued on August 30, 2001, found in favor of Plaintiff for rent in the amount of $3,034.00 and costs of $79.18, but was reduced by $500.00, which sum was awarded to Defendant under his Cross- Complaint. A true and correct copy of said Notice of Judgment with regard to both complaints is attached hereto and incorporated herein as Exhibit "C." 7. As clearly identified on Exhibit "C," District Justice Correal did not award Plaintiff any damages for physical damage to the leased premises. 8. District Justice Correal also did not award Plaintiff any damages for the alleged loss of a subsequent tenant. 9. District Justice Correal also did not award Plaintiff any damages for unjust detention of the premises. 10. Neither party appealed from the Notice of Judgment in the District Justice action. -2- 11. Defendant paid Plaintiff the sum awarded by the Honorable Paula P. Correal in satisfaction of the District Justice judgment. 12. On or about April 23, 2002, a Certificate of Satisfaction was issued marking as satisfied the prior District Justice judgment transferred to Docket Number 2002 - 786. A true and correct copy of the Certificate of Satisfaction is attached hereto and incorporated herein as Exhibit "D." 13. On or about February 12, 2002, Plaintiff a second Complaint with the Court of Common Pleas seeking damages for: breach of contract due to the alleged loss of subsequent tenant in Count 1; breach of contract for the alleged physical damages to the premises in Count 2; trespass in Count 3; and unjust enrichment in Count 6. (Defendant's Preliminary Objections to Counts 4 and 5 were sustained pursuant to Order of Court dated November 18, 2002). 14. The parties in both the District Justice action and the present action are the same: REG, Inc. v. Owen E. Meals, Jr. 15. The causes of action and subject matter in both the District Justice action and the present action are the same 16. Plaintiffs instant action against Defendant is accordingly barred by the doctrines of res judicata and/or collateral estoppel. -3- 17. Plaintiff, having previously received consideration from Defendant on the causes of action and issues on which the present Complaint is based, is accordingly barred from recovering again in the present action under the doctrines of res judicata and collateral estoppel. 18. If the Court should find Plaintiffs claims are not barred in their entirety, it is argued in the alternative that res judicata and collateral estoppel apply as follows: Plaintiff is barred from recovering against Defendant for the alleged loss of subsequent tenant Lil' Ponderosa Enterprises as the issue was fully litigated at the district justice level; Plaintiff is barred from recovering against Defendant for any physical damages to the premises occurring on or before August 30, 2001, specifically including any alleged damages listed in the report prepared by Westhill Services; Plaintiff is barred from recovering against Defendant for trespass occurring on or before August 30, 2001; and Plaintiff is barred from recovering against Defendant for unjust enrichment occurring on or before August 30, 2001. WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant's Motion in Limine or, in the Alternative, Summary Judgment and dismiss Count 1, Count 2, Count 3 and Count 6 of Plaintiffs Complaint. -4- Respectfully submitted, SALZMANN HUGHES, P.C. By k(Aw Susann B. Morrison, Esquire Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant Dated: ` I b 01 -5- AND NOW, this day of (N , 2007, I, Susann B. Morrison, Esquire, of Salzmann Hughes, P.C., attorney for Defendant, hereby certify that I served a copy of the within Defendant's Motion in Limine and in the Alternative for Summary Judgment this day by depositing the same in the United States mail on this date, addressed to: Mark F. Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 Qam Susann B. Morrison, Esquire Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant ?.vwimUNVVtALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-2-01 DJ Name: Hon. PAULA P. t:ORRRAT. Add"ss:_ EAST WING - COURTHOUSE 1 COURTHOUSE SQUARE CARLISLE, PA 17013-0000 TeiePhone:' (717) 240 - 65 64 TO THE DEFENDANT: The above named plaintiff(s) asks judgment together with costs against you for the possession of real property and for: Lease is 11 Residential a Nonresidential. I Damages for injury to the real property, to wit: the property are unknown 0 Damages for the unjust detention of the real property in the amount of Rent remaining due and unpaid on filing date in the amount of 0 And additional rent remaining due and unpaid on hearing date THE PLAINTIFF FURTHER ALLEGES THAT: The location and the address, if any, of the real property is: 2. The plaintiff is the landlord of that property. 3. He leased or rented the property to you or to 4. 7X Notice to quit was given in accordance with law, or 0 No notice is required under the terms of the lease. 5. FXI The term for which the property was leased or rented is fully ended, or A forfeiture has resulted by reason of a breach of the conditions of the lease, to wit: under whom you claim. or, 11 Rent reserved and due has, upon demand, remained unsatisfied. 6. You retain the real property and refuse to give up its possession. I; Earl M. Barnhart verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C. S. § 4904) relating to unsworn falsification to authorities. Tames D. Flows r- T,- r.T. i9natureof Plaintiff) ]i?- IF YOU HAVE A DEFENSE to this complaint ou ma (rnone) y y present it at the hearing. IF YOU HAVE A CLAIM against the plaintiff arising out of the occupancy of the premises, which is in the district justice jurisdiction and which you intend to assert at the hearing, YOU MUST FILE it on a complaint form at this office BEFORE THE TIME set for the hearing. IF YOU DO NOT APPEAR AT THE HEARING, a judgment for possession and costs, and for damages and rent if claimed, may nevertheless be entered against you. A judgment against you for possession may result in your EVICTION from the premises. If you are disabled ap ?r assistance, please contact the Magisterial District office at the -address above. FXHlJ3 nPr` Zano_oa _ -LANDLORD AND PLAINTIFF: TENANT COMPLAINT NAME and ADDRESS rREG, Incorporated. c/o Dr. Earl M. Barnhart 800 Belvedere'Street LCarlisle, PA 17013 DEFENDANT: VS. NAME and ADDRESS rOwen E. Meals, Jr. 800 Belvedere Street Carlisle,'PA 17013 L Docket No.: Date Filed: Amourr *ai Filing Costs $ Service Costs $ j - Total the nature and extent of any injuries to in the amount of: $ $ unknown Total: $ 800 Belvedere Street 1st Floor Carlisle, PA 17013 WESTHILL SBMCES 2194 NerMile Road Carli kl PQ 17013 August 27, 2001 REG, Inc., 800 Belvedere St. Carlisle, PA 17013 Dear Mr. Barnhart: Thank you for using our services. Our examination of the lower level offices at the above address found the following: FINDINGS 1. The door to the utility room appears to have been pried open. The lock hasp and associated hardware is damaged. The door is tom from the jam. Hinges are ripped from the door. Gasket materials and insulation are damaged which will reduce the effectiveness of them as soundproofing and insulation. The wallboard into which the lock is mounted is damaged. The type of mounting used will not allow a similar remounting. The structure behind the wall must be accessed and the mollies removed. This will necessitate new wallboard being installed in that area. The Schlage door closer was broken at the swivel point where the arm mounts to the doorframe. 2. There is damage to a window frame in the receptionist area. The air conditioner mounted there appears to be too heavy for the thin wood that is part of the insulated window frame. If the unit is to remain, additional supporting structure needs to be added. Because this is an Anderson type window of older vintage (60's), it may be difficult to replace the window. This will require the removal of the window and a new piece of wood being hand milled to replace the broken section. This piece of wood houses the latch assembly and therefore is essential for the insulation value and security of the building. Please Note: The air conditioner is not properly secured in the window and the cardboard extensions will not withstand extreme moisture or wind conditions. These factors raise safety and security concerns in addition to subjecting the building to additional damage from the elements. 3. There is a broken windowpane in the adjacent run of windows. Because these are double insulated glass, the sash must be removed and delivered to a glazier to repair. It will require a temporary security closure and a minimum of a couple days. 4. One florescent fixture is missing the surround cover and diffuser. Because of the age of the fixture, it may not be possible to purchase a replacement cover. The entire fixture will need to be replaced, in all likelihood. SUGGESTED REPAIRS E UBIT B 0 Page 2 August 27, 2001 The door must be removed, the hinge mounting area repaired with a plastic wood type patch. New longer screws will be used to remount the hinge to the door. The gasket and insulation will be replaced and/or repaired based upon the availability of materials supplied by the customer. However, for this estimate we have assumed the materials were lost or damaged and have included the cost of new materials. A new door closer will be purchased and mounted to replace the broken unit. The wall board will be removed, replaced, taped and spackled (three coats), painted (two coats to the entire wall for matching purposes). A new lock and hasp assembly will be attached to secure the utilities room. 2. The window will be removed; it will be delivered to Adams, the Anderson Window Company in Carlisle. They will repair it or supply the necessary parts -- if possible. Our experience tells us they or we will need to hand mill this part and make the fittings and adjustments for the latching mechanism. We will remount the window in the brick and caulk the exterior. We will repair and/or replace the inside trim. We will fill and paint the area to match as closely as possible the adjacent run of windows of which it is a set. 3. The broken windowpane (light area 21.5" x 36") will be repaired by removing the sash and pane only. It will be taken to a glazier; to install a double thermopane sealed glass replacement assembly. It will be returned, remounted and painted as required. A temporary closure will be constructed and inserted into the window opening. It will be weather proofed if the repair requires a waiting period of days. 4. We will remove a surround from one of the existing office fixtures to use as a sample. We will take it to an electrical supply house. We will attempt to buy just a cover. However, failing this we will purchase a fixture of similar size and wattage. If we have to replace the fixture there will be a difference in the foot print on the ceiling. Therefore, for this estimate we are including the price of painting the ceiling. 5. Clean and remove any debris. 6. Because there will be a significant contrast between the newly painted wall areas Vs the other walls which are wom, you may wish to have us paint the entire area. We have not included any additional painting in this estimate. Please Note: A number of these items require little in the way of material, however, the need to make multiple trips to allow for drying time, etc. make it necessary to include a significant amount of travel time. The demolition and removal time is longer, in that we cannot damage adjacent areas. Much of the work is such that only an experienced trim carpenter can perform the assignment. These and several unknowns cause us to estimate higher e.g., because we do not know if Adams can repair the window until we remove it or if we have to hand-mill the parts. What will they and the glazier charge? Our experience while performing the work will affect your actual cost. We represent that the estimated numbers following will be within + or -10% of the final price. • Page 3 WESTHILL ESTIMATED CHARGES. DESCRIPTION INSPECTION WRITTEN REPORT AND ESTIMATE ITEM 1 ITEM 2 ITEM 3 ITEM 4 TOTAL August 27, 2001 COST $100.00 $150.00 $810.00 $480.00 $370.00 $200.00 $2,110.00 Thank you for using the services of Westhill. If you require additional information you can reach me at 243-8689, d7'I Ron Deihl Partner Date: ' Place: Time: COMMONWEALTH OF PENNSYLVANIA NOTICE OF JUDGMENT/TRANSCRIPT COUNTY OF: CUMBERLAND FlVONRESIDENTIAL LEASE PLAINTIF Mag. Dist. No.: 09-2-01 NAME and ADDRESS rREG,INC.C/O DR.EARL M. BARNHART DJ Name: Hon. 8 0 0 BELVEDERE ST. PAULA P. CORREAL CARLISLE, PA 17013, Address 1 COURTHOUSE SQUARE L J CARLISLE, PA VS. DEFENDANT` NAME and ADDRESS Telephoner (7.17 240-6564 17::0-13 - 00'0-0 rMEALS JR, OWEN E -I - ' 80!0 BELVEDERE ST. ATTORNEY DEF PRIVATE CARLISLE, PA 17013 JAMES D. HUGHES L J 60 W. POMFRET ST. DocketNo. - LT-0000264-01 CARLISLE, PA 17013 Date Filed: ` 8/03/01 -.4 es8 THIS IS TO NOTIFY YOU THAT: Judgment:, FOR PLAINTIFF. u . Judgment was entered for: (Name) ". REG, INC. C/O DR. EARL, M..=.BARNH.AR ] F Judgment was entered against MEALS JR, OWEN E in a' x Landlord/Tenant action in the amount of $ 2, 613.18`on 8/30/01 (Date of Judgment) The amount of rent per month, as established.by the District Justice, is $' 3 034.00. The total amount of the Security Deposit is $ 2,000.00 Total Amount Establish d bb DJ` Less • Security Deposit Ap lid Adjudicatted qq ou t , 5y 4 00 - R t . ? e n in Arrears $ . . $ 2, 53 0 Physical Damages Leasehold Property $ .00 =$ .00 = $ -.00 Damages/Unjust Detention $ _ 00 - $ -00 - $ -00 Le ss Amt Due Defendant from Cross,'Complaint - $ .00 Interest (if provided by lease) $ _ 00 L/T Judgment Amount $ .2 534.00 Defendants ar i tl a d e l li ble Judgment Costs $ 79.18 A e jo n y n s vera ly a . ttorney Fees $ -00 This case dismissed without prejudice.' Total Judgment $ =TM 2, 613.18 ?X Possession granted. Post Judgment Credits Post Judgment Costs $ 0 Possession ran d if ud i n Certified Judgment Total $ s g te money j gme t s no sa i ie by time o eviction. 0 Possession not granted *ref1acts re duct L f ,t C E Levy is stayed for days or generally stayed. for cou-n£:??' claiz. away Objection to Levy has been filed and hearing will beheld: ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT.BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURTS OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE `A COPY OF THIS NOTICE OFJUDG T/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. Date" s tiY ,,District Justice certl y that this is a+true an c ct copy o t e re, `r a e procee cgs containrng t 'e4:u gment. g ,j Dot ;x _?D.istrict'Justice My commission expired first Monday of January, 2006 . AOPC315B-99 EXHIBIT C e,SEAL • - COMMONWEALTH ©F PENNSYLVANIA NTY F co NOTICE OF JUDTGMENT/TRANSCRIPT : u .o ONRESLQENTIAL LEASE PLAINTIFFN Mag. Dist. No.: 09 - 2'- 01 , Nl'ME and ADDRESS I-MEALS JR, OWE NE DJ Name: Hong 800 BELVEDERE' ST PAULA P.-CORREAL CARLISLE, PA 17013 Address: 1 COURTHOUSE SQUARE L J CARLISLE, PA VS. DEFENIJANT: NAME and ADDRESS Telephone,: '(:717);, 24 0-6564 17013-0000 FREG`. INC. AND DR. EARL M. BARNHART ? 800 BELVEDERE ST ATTORNEY FOR PLAINTIFF`': CARLISLE, PA 17013 JAMES D. HUGHES, ESQ >. L J 60 W. POMFRET ST Docket No.: LT=0000264= 01 CARLISLE, PA17013',,,.? r Date Filed: 8/21/01 CROSS COMPLAINT 00,1 4. THIS IS TO NOTIFY YOU THAT: Judgment: FOF PLAINTIFF - Judgment was ? tered fox: (Name) ) LS: nsJR " - OW$N, E - 0 Judgment was entered against REG. INC.AND bR'. EARL M.:: BARNHART in a " Landlord/Tenant action 'inthe amount of $ 500.00 on 8/30/01 (Date of Judgment) The amount of rent per month, as established by the Distri ct Justice, is $ .00. The total amount of the Security Deposit is $ ;00 Total Amount Established. by DJ 40ess • Security Deposit Ap died _ Adjudicated Amount : Rent in Arrears $ $ 0 = $ . 00 Physical Damages Leasehold Property $ -0 0 - $ .00i = $ .00 Damages/unjust Detention $- .00-$ -00, = $ -oil Less Amt Due Defendant from Cross Complaint - $ .00 Interest (if provided by lease) $ _00 UT Judgment Amount $ 00 ? D f nd ts oi tl v d r ll li Judgment Costs $ .00 A e e an are j n y an se e y able. a ttorney Fees $ _ 00 This case dismissed without prejudice. ' Total Judgment $ 500.,00 Possession granted. Post Judgment Credits Post Judgment Costs $ P ss s i t g Certified Judgment Total o e s on gran ed if money judgment is no sa Is ie y t ime o eviction. ? Possession not granted. Levy is stayed for, days or,? generally stayed. ? Objection to Levy has been filed and hearing will be held: ANY PARTY AGGRIEVED BY A JUDGMENT INVOLVING A NONRESIDENTIAL LEASE MAY APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY, FILING A NOTICE, OF APPEAL WITH THE PROTHONOTARY/CLERKOF COURTS OF THE COURT OF COMMON PLEAS,; CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDG T/TRANSCRIPT FORM-WITH YOUR NOTICE OF APPEAL yr'L3 Date District Justice certify that this is a true and c rreet copy o the record the pxocee dNg, contarnrng the judgment'. = d bA111 Date,, District Just ce My commission expires fixst"Monday of January, 2006 AOPC 315B-99 SEAL. VS. at'sfaon _ ' s No.? of Term,' Action in y? Entered L? . / i I,Prothonotary of the Court of Common Pleas of Cumberland County, do ereby certify that judgment ft>,'; entered to the above number and term and has been marked satisfied, and costs paid. `c day of r, Prothonof, ry. EXHIBIT D {'7 N r? W r . 7 f' ?f i #13 REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA OWEN E. MEALS, JR., `- Defendant NO. 02-0766 CIVIL TERM IM IN RE: PRETRIAL CONFERENCE A pretrial conference was held on WearfjasdR, January 17, 2007, before the Honorable Edward E. Guido, Rdge Present for the Plaintiff was Mark F. Bayley, Esquire. Present for the Defendant was Susann B. Morrison, Esquire. This is a landlord-tenant dispute. The parties estimate that it will take one day to try. Both parties have hereby agreed that it should be tried before a judge without a jury. Consequently, I have scheduled this matter before this Court for Monday, March 19, 2007, to commence at 9:00 a.m. The parties are directed to pre-mark all of their exhibits and to exchange them with opposing counsel by March 1, 2007. Any objections, other than to relevancy, shall be made in the form of a motion in limine. All motions in limine, with supporting authority, shall be filed by March 9, 2007. Any responses, with supporting authority, shall be filed by March 16, 2007. Settlement is not li By_,.the Court, Edward E. Guido, J. Mark F. Bayley, Esquire For the Plaintiff P?-rrothonotary Court Administrator Susann B. Morrison, Esquire For the Defendant srs PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the within matter for Argument Court on February 28, 2007 REG, INC., PLAINTIFF V. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW No. 02 - 766 Civil Term 1. State Matter to be argued: Defendant's Motions for Summary Judgment. 2. Identify counsel who will argue case: (a) for Plaintiff Mark F. Bayley, Esquire, Bayley & Mangan, 57 W. Pomfret St., Carlisle, PA 17013. (b) for Defendant: Susanne Morrison, Esquire, Salzmann & Hughes, PC, 354 Alexander Spring Rd., Suite 1, Carlisle, PA 17013. 3. I will notify all parties in writing within two days that this case has been listed for argument. Mark F. Bayley, Esquire 4. Argument Court date: February 28, 2007. - Date: ? 0 ol U?-/b Mark F. Bayley, Esquir ID # 87663 Attorney for Plaintiff REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL. ACTION - LAW OWEN E. MEALS, JR., DEFENDANT No. 02 - 766 Civil Term CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within Praecipe for Listing Case for Argument upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, PC 354 Alexander Spring Rd., Suite 1 Carlisle, PA 17013. Dated: q",0-7 Mark F. Bayley, Esquire Attorney for Plaintiff _Tj r"?y cn C7 "'C I REG, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW OWEN E. MEALS, JR., . DEFENDANT No. 02 - 766 Civil Term PLAINTIFF'S ANSWER TO DEFENDANT'S OMNIBUS MOTION IN LIMINE OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AND NOW, comes Plaintiff, REG, Inc., by and though its attorney, Mark F. Bayely, Esquire, and answers Defendant's Omnibus Motion in Limine or, in the alternative, for Summary Judgment as follows: 1. Admitted. 2. Admitted. 3. Admitted. By way of further answer, the district court hearing was held on August 28, 2001. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Denied. Plaintiffs current claims were not raised at the prior district court hearing. By way of further answer, Plaintiffs current claims were not raised at the prior district court hearing because they 1) occurred in the month after the hearing, 2) had not yet been discovered, and/or 3) were anticipated to be fixed prior to Defendant's final surrender of the premises. See Plaintiffs February 23, 2007 sworn affidavit (attached at Exhibit A). Plaintiffs current claims for damages differ from the damages that were presented to the district court by the Westhill Services estimate (attached as Exhibit B). Dr. Earl Barnhart provided details regarding damages contained in the current Complaint by deposition taken February 10, 2006 (attached as Exhibit C, see pp. 26-46) which clearly demonstrates the current damages to be different that those presented by the previous estimate. By sworn affidavit dated February 23, 2007 (attached as Exhibit A) Dr. Barnhart indicates his belief, and intent to testify at trial, that the lost tenant would have likely still signed a lease had Defendant vacated the premises soon after the district court granted possession rather than trespassing an additional month. Additionally, Defendant provided no payment to Plaintiff for the final month of September that he trespassed on the premises after the district court hearing. See Deposition of Earl Barnhart, taken February 10, 2006, at p. 5 (Exhibit Q (indicating the last rent payment being provided for July of 2001; the district court judgment provided Plaintiff rent only through August of 2001). 16. Denied. This paragraph constitutes a legal conclusion which requires no response. 17. Denied. Plaintiffs current claims were not raised at the prior district court hearing. Plaintiffs answer provided in paragraph 15 above is hereby incorporated. 18. Denied. This paragraph constitutes a legal conclusion which requires no response. WHEREFORE, Plaintiff respectfully request that Defendant's motion be denied. Respectfully submitted, 2-z3-off ?2 - Mark F. Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D.# 87663 Attorney for Plaintiff REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW OWEN E. MEALS, JR., : DEFENDANT No. 02 - 766 Civil Term VERIFICATION I verify that the statements made in this document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. 6"4 2t. Earl Barnhart, REG, Inc., Plaintiff REG, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW OWEN E. MEALS, JR., DEFENDANT No. 02 - 766 Civil Term SWORN AFFIDAVIT BY EARL M. BARNHART FOR DISCOVERY PURPOSES AND/OR TO SUPPLEMENT PRIOR DEPOSITION HELD ON FEBRUARY 10, 2006 AND NOW, comes Earl M. Barnhart, and provides the following sworn affidavit: 1. The loss of the prospective tenant, Lil' Ponderosa Enterprises, was raised at the August 28, 2001 district court hearing; through discussions that took place in the month of September of 2001 between myself and Robert C. Boyce, owner of Lil' Ponderosa Enterprises, I believe and intend to testify at trial that the contract with the prospective new tenant could have been saved had Defendant vacated soon after the district court hearing rather than trespassing on the premises an additional month. 2. The damages currently claimed in Count 2 of the Complaint were not presented at the district court hearing held on August 28, 2001 because they 1) occurred in the month after the hearing, 2) had not yet been discovered, and/or 3) were anticipated to be fixed prior to Defendant's final surrender of the premises. The broken window claimed in paragraph 29(C) of the Complaint is a different window than those windows listed in the Westhill Services estimate dated August 27, 2001. 3. REG, Inc., received no compensation from Defendant for the final month of September in which he trespassed on the premises after the district court hearing. I verify and swear that the statements made in the forgoing affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unworn falsification to authorities. 2:,z??-7 Date e.-,X 22, . Earl A Barnhart WESTHILL SERVICES 2194 IVemille Road Carlisle, PA 17013 August 27, 2001 REG, Inc., 800 Belvedere St. Carlisle, PA 17013 Dear Mr. Barnhart: Thank you for using our services. Our examination of the lower level offices at the above address found the following: FINDINGS 1. The door to the utility room appears to have been pried open. The lock hasp and associated hardware is damaged. The door is tom from the jam. Hinges are ripped from the door. Gasket materials and insulation are damaged which will reduce the effectiveness of them as soundproofing and insulation. The wallboard into which the lock is mounted is damaged. The type of mounting used will not allow a similar remounting. The structure behind the wall must be accessed and the mollies removed. This will necessitate new wallboard being installed in that area. The Schlage door closer was broken at the swivel point where the arm mounts to the doorframe. 2. There is damage to a window frame in the receptionist area. The air conditioner mounted there appears to be too heavy for the thin wood that is part of the insulated window frame. If the unit is to remain, additional supporting structure needs to be added. Because this is an Anderson type window of older vintage (60's), it may be difficult to replace the window. This will require the removal of the window and a new piece of wood being hand milled to replace the broken section. This piece of wood houses the latch assembly and therefore is essential for the insulation value and security of the building. Please Note: The air conditioner is not properly secured in the window and the cardboard extensions will not withstand extreme moisture or wind conditions. These factors raise safety and security concerns in addition to subjecting the building to additional damage from the elements. 3. There is a broken windowpane in the adjacent run of windows. Because these are double insulated glass, the sash must be removed and delivered to a glazier to repair. It will require a temporary security closure and a minimum of a couple days. 4. One florescent fixture is missing the surround cover and diffuser. Because of the age of the fixture, it may not be possible to purchase a replacement cover. The entire fixture will need to be replaced, in all likelihood. SUGGESTED REPAIRS • Page 2 August 27, 2001 1. The door must be removed, the hinge mounting area repaired with a plastic wood type patch. New longer screws will be used to remount the hinge to the door. The gasket and insulation will be replaced and/or repaired based upon the availability of materials supplied by the customer. However, for this estimate we have assumed the materials were lost or damaged and have included the cost of new materials. A new door closer will be purchased and mounted to replace the broken unit. The wall board will be removed, replaced, taped and spackled (three coats), painted (two coats to the entire wall for matching purposes). A new lock and hasp assembly will be attached to secure the utilities room. 2. The window will be removed; it will be delivered to Adams, the Anderson Window Company in Carlisle. They will repair it or supply the necessary parts -- if possible. Our experience tells us they or we will need to hand mill this part and make the fittings and adjustments for the latching mechanism. We will remount the window in the brick and caulk the exterior. We will repair and/or replace the inside trim. We will fill and paint the area to match as closely as possible the adjacent run of windows of which it is a set. 3. The broken windowpane (light area 21.5" x 36°) will be repaired by removing the sash and pane only. It will be taken to a glazier; to install a double thermopane sealed glass replacement assembly. It will be returned, remounted and painted as required. A temporary closure will be constructed and inserted into the window opening. It will be weather proofed if the repair requires a waiting period of days. 4. We will remove a surround from one of the existing office fixtures to use as a sample. We will take it to an electrical supply house. We will attempt to buy just a cover. However, failing this we will purchase a fixture of similar size and wattage. If we have to replace the fixture there will be a difference in the foot print on the ceiling. Therefore, for this estimate we are including the price of painting the ceiling. 5. Clean and remove any debris. 6. Because there will be a significant contrast between the newly painted wall areas Vs the other walls which are wom, you may wish to have us paint the entire area. We have not included any additional painting in this estimate. Please Note: A number of these items require little in the way of material, however, the need to make multiple trips to allow for drying time, etc. make it necessary to include a significant amount of travel time. The demolition and removal time is longer, in that we cannot damage adjacent areas. Much of the work is such that only an experienced trim carpenter can perform the assignment. These and several unknowns cause us to estimate higher e.g., because we do not know if Adams can repair the window until we remove it or if we have to hand-mill the parts. What will they and the glazier charge? Our experience while performing the work will affect your actual cost. We represent that the estimated numbers following will be within + or -10% of the final price. • Page 3 August 27, 2001 WESTHILL ESTIMATED CHARGES. DESCRIPTION COST INSPECTION $100.00 WRITTEN REPORT AND ESTIMATE $150.00 ITEM 1 $810.00 ITEM 2 $480.00 ITEM 3 $370.00 ITEM 4 $200.00 TOTAL $2,110.00 Thank you for using the services of Westhill. If you require additional information you can reach me at 243-8689. Ron Deihl Partner 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reporting Services 57 • 717-258-36157 • 717-258-0383 fax courtreporters4u@aot com C-K?1?U? L I REG, INC., Plaintiff, VS. OWEN E. MEALS, JR., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. -2-766 CIVIL TERM U DEPOSITION OF: DR. EARL M. BARNHART TAKEN BY: Defendant BEFORE: Amy R. Fritz, R.P.R. Notary Public DATE: February 10, 2006, 1:15 p.m. PLACE: Salzmann, Hughes & Fishman, P.C. 95 Alexander Spring Road Carlisle, Pennsylvania APPEARANCES: ROMINGER, BAYLEY & WHARE BY: MARK C. BAYLEY, ESQUIRE FOR - PLAINTIFF SALZMANN, HUGHES & FISHMAN, P.C. BY: SUSANN B. MORRISON, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Owen E. Meals Louanne G. Barnhart 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX TO TESTIMONY DEPONENT EXAMINATION PAGE Dr. Earl M. Barnhart By Ms. Morrison 3 INDEX TO EXHIBITS NO. DESCRIPTION PAGE 1 07/31/01 letter to Atty. Flower from 11 Atty. Hughes 2 08/09/01 letter to Atty. Flower from 12 Atty. Hughes 3 08/06/01 letter to Atty. Hughes from 13 Atty. Flower 4 08/27/01 report from Westhill Services 19 5 Photocopy of Tenant Complaint 20 6 Photocopy of Complaint 23 7 08/06/01 letter to Mr. Barnhart from R.C. 52 Boyce 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. DR. EARL M. BARNHART, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MS. MORRISON: Q. Doctor, just a couple of first things. We have waived all the objections other than the form of the question. Some general things as we go through this deposition. I don't know if you've been involved in this type of thing before. If you have any questions, please feel free to ask. If you need to take a break, you want to talk to your attorney, that's fine, as long as we're not in the middle of a question and the answer. And if you have to go to the bathroom, you need a break, something to drink, just let me know and we can stop. It's somewhat informal here. We can take breaks and take a break from the record. The testimony is being transcribed, which means 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 verbal responses need to be given. You can't nod your head and answer because she can't record that, so just make sure that you're aware of that. Q. How about start off with simple stuff. Your full name and address? A. Okay. My full name, Earl M. Barnhart. Q. And where do you live? A. My address is 901 Glendale Court in Carlisle. Q. And your occupation? A. I'm a dentist. Q. And do you still practice? A. Partially. Q. And is your practice still at that same location, 800 Belvedere? A. Yes. Q. And, Doctor, can you tell me how you know my client, Owen Meals? A. I had space to rent in '91, and he inquired regarding space. That's how I met him. Q. And the space that you rented to him, that was 800 Belvedere. Was there a suite number or anything, or was it just that address? A. It was a suite, lower level, with an exclusion of the utility room. Q. And what was the term of the lease? 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. The term of the lease was -- it was to expire on July 31st, 2001. Q. So this was a ten-year lease. Is that correct? A. I can tell you the date. (Perusing document.) Let's see. Beginning June 1st of '91. Q. June 1st? A. Um-hum. Q. And ending July 31st of 2001? A. Right. Q. And what was the amount of rent initially when the building's term began? A. $2,000. Q. And over the course of the ten years, I assume that increased. Do you know -- A. I had the option after the first two years of increasing it up to a maximum of five percent and anything up to a maximum of five percent per year. Q. And at the end of the lease, what was the rental on that? A. The last rent check that was due July 1st, 2001 was for $3,034. Q. So the last rent check you got was July's rent? A. Yeah. It was due July lst, and actually it was given to me on July 11th, 2001. Q. And I assume rent was paid on the 1st of the 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 month for the upcoming month, is that correct, so that rent was paid for the month of July which would have been the last month of the rental term? A. The rent was due the first day of the month for the month in January, 2001. It was paid on January 15th, and it was paid for the wrong amount again. And so I had to write another check and -- Q. If I can interrupt you, my question was, when the rent is paid at the beginning of the -- it was due July 1st. That payment would be for the month of July's tenancy; it wouldn't have been as opposed to the month of June? You don't pay at the end of the month; you pay for the upcoming month. Is that correct? A. Well, it was supposed to be the first of the month for the month. But actually in this case, it was paid January 16th, and it was always late. Q. But the payment received was for that month, that upcoming month, right, the month that was coming forth? A. I think so. But some months it was so late it was hard to figure out which it was for. Q. Well, let me ask you in particular, with this July 1st payment, you said the rent was due July 1st and you received it July 11th. That payment was for the month of July's tenancy. Is that correct? 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. That's correct. Q. Okay. During the ten years that Mr. Meals was in the office there, did you have occasion to enter the, I guess, suite or the offices that he rented from you? A. The lease provides for me to, yes. Q. And for what purposes would you enter his suite, if I can call it that? A. My equipment was in the basement -- excuse me, in the utility room, which was, like, in the middle of his area, the middle of the lower level. Q. And to do something with your equipment or to enter that utility room, was that the only reason you would go into, have occasion to go into the offices, or were there other occasions when you would enter for another purpose? A. Yeah. The -- I'm sure there were other times. The lease provides for -- well, just one time I can think of. When I'm in the utility room and it's in the evening and I'm there and I don't have any water running -- for example, one night I recall I was in there and the water meter's running madly with no water being run. So I checked around to see where it was and finally found the water was left running in a faucet in the bathroom, and the commode was also running in a stuck position; somebody had wedged something down under the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 thing that -- so, yeah, so I looked around. Also the lease provides for security, and doors have been unlocked. I'd have to go up in the night to check for security. And when I go in and the front door is unlocked and the downstairs door, entrance to his place, is unlocked, then I have to go in and check around. There have been break-ins in that area. Q. And how often did that occur that you would find that all of the doors were unlocked and that you would need to check around? A. I'm not going to hazard a guess. I'd say frequently. But, you know, my tenant apparently had a problem because at least once a month he would come up and say I forgot my key again, can you let me in, please. So it just seemed to be a trouble with keys and remembering to lock and unlock. Plus there were a number of agents down there, and they came and went. I can't always identify who. Q. And you said that you would check to see if the locks were secured. The lock to the office space where Mr. Meals had his business, does the lease provide that it's your responsibility to make sure that it is locked? A. The lease calls for security, and, yeah, I've always checked to make sure -- the buildings around have been broken into and people have hidden there in the 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 building after hours and so on. So I emphasize that to my tenants that security is a prime concern. Q. And I assume you had a key to the office, Mr. Meals' office? A. Yes. Q. Did anybody else have a key to the suite that he rented? A. No. Q. So it was just you and Mr. Meals, as far as you know? A. Well, his tenants had keys. Q. His employees? A. People he sublet to, or whatever, other agents in the building. So there were a number of people coming and going that I didn't know, but they always seemed to have keys. So I don't know from his standpoint who had keys. I'm the only person. Q. And now you said that you often would check the locks and the security and go down to the utility room. So I would imagine under those circumstances there were times that you were in Mr. Meals' office when nobody else was there. Is that correct? A. I checked literally every night the outside doors. If the outside doors were locked, I went home. But if the outside main doors were unlocked, then I would check 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my area and I would check the lower area. Q. So there were occasions when you were in Mr. Meals' office when he was not present nor any of his employees or other agents? A. Yeah. In the night, yeah. They were there at night, but, yeah. Q. Now, you stated that the lease term was to end July 31st, 2001. Is that correct? A. That's correct. Q. And at the time nearing the end of the lease, were you represented by Attorney Jim Flower? A. Actually I started with Jim's father. Q. I'm sorry. Jim who? A. Jim Flower's father, Jim Flower, Senior, who was not -- he was a little ill at the time and subsequently died. But -- what was your question? Q. That you were represented by Mr. Flower nearing the end of the lease. A. The Flower law firm, yeah. Q. And there were discussions about an extension to the lease, is that correct, in your recollection? A. On July 31st, which is an easy day to remember as it's my birthday, was the day Mr. Meals was supposed to be out. And the lease calls for no written notification is necessary. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And Mr. Flower, Senior in reviewing it said, Earl, nevertheless, a letter should be written. And so he wrote a letter that indicated that it would not be, would not be renewed. Q. That the lease would not be renewed? A. I had no interest in renewing it. Q. And then do you recall receiving a letter from Mr. Meals' attorney, James Hughes, July 31st on that same date that you're referring to, 2001? And we can mark this Exhibit Number 1, please. (Barnhart Exhibit No. 1 was marked.) BY MS. MORRISON: Q. I'm showing you what's been marked as Exhibit Barnhart Number 1, if you could take a look at that letter. Do you recall seeing that letter that's addressed from Mr. Hughes to your attorney, Mr. Flower? A. This letter was received after I was told and after my attorney was told that at 4:30 on July 31st Mr. Meals would not be moving out; he was going to stay as long as he wanted, there was nothing we could do about it and that, so to speak, he would make the decisions. Q. And you're saying that at 4:30 that afternoon a conversation was had? Is that what you're stating, to that effect? A. My attorney told me that's when he received the 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phone call and that's what he was told, and that's Jim Flower, Jr. Q. And the phone call was from whom to Mr. Jim Flower, Jr.? A. I think it -- I'm not sure. Q. Well, my question here is, you do recall seeing this letter that was sent to your attorney from Mr. Meals' attorney? A. I wouldn't swear that that's the exact copy. I received one that at least was similar to that. Q. And in this letter Mr. Hughes is proposing a month to month tenancy, two extra months, due to Mr. Meals' new building not being completed. Is that your recollection? A. My recollection is that he wanted to extend the lease and I wasn't interested at all. Q. You weren't interested at all in extending the lease? A. No. (Barnhart Exhibit No. 2 was marked.) BY MS. MORRISON: Q. I'm showing you what's been marked as Exhibit Barnhart Number 2, if you can take a look at that document. It's a letter dated August 6th, 2001 from your attorney, Mr. Flower, Jr. to Mr. Meals' attorney, Mr. Hughes. And it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appears to be clearly showing that you may be interested in extending the lease for an additional two months under certain terms. Do you recall that letter? A. Well, this Jim Flower, Jr. is a very peaceful person that's trying to arrange something that would help Mr. Meals and not be detrimental to me. But he, I think, kind of overextended himself somewhat on this. I had no interest. This letter was July -- excuse me, August the 9th. Q. August 6th. A. August 9th, excuse me. And on August the 6th someone had been in the utility room again, which was off limits according to the lease. Q. You agree, though, that -- A. One minute, please. (Perusing documents.) On August the 6th, tampered with my equipment, so I was not in any mood to renew any lease with Mr. Meals. Q. This letter is dated August 6th, 2001, that letter that I just showed you. You agree? A. That letter is dated August the 9th. Q. Oh, I'm sorry. Did I give you the wrong one? Yeah. Sorry about that. (Barnhart Exhibit No. 3 was marked.) BY MS. MORRISON: Q. This is the letter that I'm referring to, the 1 Z 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 August 6th letter from Mr. Flower, Jr. to Mr. Hughes stating that you would extend the lease for an additional two months under certain conditions. Do you recall that letter? A. I recall Mr. Flower sending it, yes. Q. You do. So is it safe to say that the attorneys on your behalf and with your authorization and on Mr. Meals' behalf were negotiating a potential extension of the lease at this time? A. Jim Flower, Jr. and his father knew I was not interested in renewing. Mr. Meals hadn't lived up to many of the things in his former lease, and his lease expired July 31st and he knew I wasn't interested, considering the trail that he left, I wasn't interested in renewing his lease. I had other people that were interested in the space. Q. But the attorneys at this time were negotiating an extension? Looking at the letter of July 31st -- proposing an extension in the letter of August 6th from your attorney offering an extension under certain conditions? A. He was negotiating with Mr. Hughes. Yeah, he was negotiating with Mr. Hughes. Q. And do you recall receiving what is marked as Exhibit Barnhart Number 2? And this is the August 9th 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 letter. It's actually from Mr. Hughes to Mr. Flower, Jr. accepting the terms of Mr. Flower's letter dated August 6th, 2001. Do you recall seeing that letter? A. I have to read it. Let's see. I'm not sure. (Perusing document.) It's too many Jims, isn't it? Jim Hughes and Jim Flower. This was written from Jim Hughes. (Perusing document.) MR. BAYLEY: Off the record. (Discussion held off the record.) (A brief recess was taken.) BY MS. MORRISON: Q. The question was, had you seen Barnhart Exhibit Number 2 dated August 9th, 2001, a letter from Jim Hughes to Jim Flower, Jr. accepting the terms of the proposal to extend the lease? And do you recall seeing that letter or being informed of the contents of that letter? A. No. That's almost -- when is it? Q. It's August 9th, 2001. A. That's almost four and a half years ago or something like that. No, I don't recall reading it or ever seeing that letter. Q. So a two-month extension was not granted, I presume. Is that correct? A. It wasn't supposed to be granted. He stayed, but it wasn't supposed to be granted. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you subsequently filed a landlord tenant complaint with the district justice. Is that correct? A. Yes. Q. And do you recall when that would have been filed? A. It was early August, I think it may have been around the 3rd, but I'm not sure. Q. And what were the allegations that were put forth in that -- well, the complaint is a form complaint which doesn't go into too much detail. But at the hearing that occurred on, I believe it was August 30th, can you tell me what the allegations were and what issues you raised at that hearing before the district justice? A. I actually don't recall. Q. Do you have any recollection of the hearing? A. Um-hum. I remember there was a hearing. Q. And you don't recall what issues you raised at that hearing? A. The issues were I wanted him out of there. Q. Were there any issues raised with regard to damages to the property, to the office space? A. Oh, I'm sure there were. Q. And what damages in particular were raised? A. I can't remember. Q. Did you present any witnesses or any reports at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the district justice hearing with regard to damages? A. I know photographs were available. I don't believe they were looked at, though. Q. And what would the photographs have depicted, if you can recall? A. For example, the ceiling you saw, I have photos of it, dated photos, that showed it was in good shape. And then the subsequent photos that indicated, showed some damage that had been done. Q. So that was raised -- there was testimony about the ceiling tiles at the hearing. What other damages? A. When was that hearing? Q. I believe it was August 30th, 2001. A. August 28th, I think it was, wasn't it? Q. The judgment date appears to be August 30, so it may have been before that. A. The judgment date was the 30th, and the hearing was the 28th. Q. Okay. A. And I think the entrance to the parking lot was an issue that would have been raised. Q. I'm sorry? A. The issue to the parking lot was raised. MR. BAYLEY: Off the record. (A brief recess was taken.) 1 V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEPONENT: I don't remember -- I remember the date of the hearing was the 28th of August, but I don't remember what was brought up in the hearing. BY MS. MORRISON: Q. You don't remember any other issues that were brought up? A. I don't remember any issues that were brought up, to be honest with you. I know there was -- I know there was something brought up, but I don't remember what they were. Q. You just testified that the ceiling tiles were brought up and the parking lot was brought up. A. And I'm not sure about that because as I told you when you were in the other day and when you looked at the ceiling tile, some of those were damaged when they moved the taller pieces of equipment out. And the taller pieces of equipment weren't moved out until September the 30th, so I guess that had not been done then. I have photos around, and they'll show the dates where I have it on the photo. But, yeah, those -- for example, when the refrigerator was moved, that's when the -- Q. Well, we'll get to each of the list of damages that you have, and we'll talk about them in time here. At this district justice hearing, did you have 1J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anybody testify on your behalf? A. I don't remember if anyone did. As I said, it's been four years. If someone did, I don't remember. I don't know. Q. Did you present any reports to the district justice at that time of the hearing regarding damages? A. Yeah. That's when Mr. Deihl gave his, I think his report was entered at that time. I'm not sure of that. You know, we're stretching, we're flying here because that's over four years ago. (Barnhart Exhibit No. 4 was marked.) BY MS. MORRISON: Q. I'm showing you what's been marked as Barnhart Exhibit Number 4, if you can take a look at that document and tell me if you recognize it. A. (Perusing document.) Yeah, I've seen this. Q. And when you had mentioned Mr. Deihl, did he testify and present this inspection report at the district justice hearing? A. If he was there, I don't recall or remember if he was there. I mean, this report was presented, but I don't know -- Q. But this report was presented at the district justice hearing; you're just not certain whether he actually testified to it, this report that's dated August 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27th, 2001 which would have been before the hearing? A. Yeah, that was the day before the hearing. I don't probably honestly know if this was presented. I know Ron Deihl presented it to us, to me, but I don't know if it was used in the hearing or not. Q. If it wasn't going to be used in the hearing which is on damages at the district justice, why would you have had Ron Deihl provide this report and do an inspection? A. Because the damages had to be fixed sometime. The object of that hearing -- if you look, I think you'll see the object of that hearing was to get Mr. Meals out of there and get my property back to me. Q. And also for damages as well, correct, that you alleged occurred to the property? A. I don't know. Do you have a thing with it written on? I don't. Q. I don't have the complaint with me. It's in my office here. Why don't we just take a moment and I'll go find it. (A brief recess was taken.) (Barnhart Exhibit No. 5 was marked.) BY MS. MORRISON: Q. I'm showing you what has been marked as Barnhart 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit Number S. Perhaps that will help refresh your recollection. As you can see, there is an X there in the box where it says damages for injury to the real property. A. (Perusing document.) It says the nature and extent of any injuries to the property are unknown. So it sounds to me like that wasn't presented. Q. That it wasn't presented? A. Well, doesn't this say -- it doesn't describe it. Wait until I see what else it says. (Perusing document.) MR. BAYLEY: Off the record. (Discussion held off the record.) BY MS. MORRISON: Q. So you cannot recall anything that occurred during this district justice hearing that was only four years ago. Is that correct? A. Four years is a long time, and, yes, that's correct. I can't recall -- if there was anyone there as witnesses, I don't remember. And this isn't the, this isn't the information I asked for anyhow. This is dated September 2nd, and this is regarding what was handed, was handed out. It's dated up here September 2nd, so that doesn't have anything about the hearing. Q. No, that's not a date. That's the magisterial 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 district number. A. There's no date on it at all then. Q. This is the landlord tenant complaint -- A. But what's the date of it? Q. -- that was filed. This particular document does not have a date on it. Do you recall what the outcome of the hearing was? Can you recall that? A. No. Q. You can't recall it. Okay. Do you recall that Mr. Meals, in his countercomplaint to you, obtained a judgment in the amount of $500? A. Yes. I remember he complained that his air-conditioning wasn't working. I also recall that was a record heat that day. Q. So just so I'm clear because I think you said one way and then the other way. Do you recall this report which is marked as Barnhart Number 4 being presented at the district justice hearing? A. I've seen it, but I don't recall it being presented at the hearing. It would seem pretty tight if it's dated the 27th and the hearing was the 28th. Q. Did you take an appeal from the judgment at the district justice level? A. I can't tell you. Q. Did you file a complaint in the matter that 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we're here today on? Can you remember that? REG, Inc. versus Owen Meals, Jr. A. I didn't understand your question. Q. Can you recall that you filed a complaint, REG, Inc. versus Owen Meals, Jr. in the matter that we are here today on? Do you recall filing this complaint? This would have been in 2002, it appears, February 2002. Do you recall filing this complaint? A. Oh, I remember I was awarded some money in that hearing, and was it six months later or something and still hadn't been paid? I remember that. Q. That wasn't my question. My question was, do you recall filing the complaint, REG, Inc. versus Owen Meals which is the matter that we're here today on? A. We must have filed a complaint or we wouldn't be here. (Perusing document.) And did I sign it? Yeah, I signed it. So, yeah, I guess the answer is yes. (Barnhart Exhibit No. 6 was marked.) BY MS. MORRISON: Q. And where the purple tab is there in Barnhart Number 6, which is the complaint in this matter, if you could go to that spot. MR. BAYLEY: We'll stipulate that the doctor signed a verification to a complaint filed February 12th, 102, sparing him having to translate legal jargon. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. MORRISON: That's fine. BY MS. MORRISON: Q. In this complaint that you filed, you talk about damages to the property, and we'll start there. Did you conduct an inspection of the property to ascertain these damages that you're alleging occurred on the property or to the office space? A. Yeah. Q. And when I say you conducted an inspection, did you personally do it, or did anybody inspect along with you? A. I know I personally did it, and that was -- you're speaking of after September 30th. Is that right? Q. Well, both; before and after. A. Repeat your question. Q. An inspection of the premises, of the office space that Mr. Meals rented from you, when did any or when did all inspections occur, if you could recall when and with whom you inspected the property? A. I know it was inspected -- I know I inspected it after he left obviously, after he left September 30th. Q. And after September 30th when you inspected it, was it just you, yourself, or was there anybody with you? A. I'm not sure. I may have asked my attorney, and 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm not sure. I may have shown him the damages. I'm not sure. I c an't say for positive. Q. When you say your attorney, you mean Mr. Bayley? A. Or Mr. Rominger. Q. The inspection report that we have here from Westhill S ervices, do you recall when that inspection would have occur red that Mr. Deihl refers to in this report? A. Is there a date on there? Q. Well, the report is dated August 27th, 2001. Do you recall when the inspection may have occurred? A. Let me think a minute. No, I don't. Q. And Mr. Deihl and Westhill Services, how did you come about to use their services for this inspection? A. It was recommended by Robert Boyce. Q. And when the inspection occurred with Mr. Deihl, was anybod y else present during that inspection? A. Robert Boyce. Q. And at the time of the inspection, did you tell Mr. Deihl for what purpose the inspection was, you were requesting the inspection? A. I asked him to give me an estimate on damages, I'm sure o f that, because that's what the report says. Q. Did you happen to mention to him that there was pending, a pending suit or pending litigation or any type of litigation going on with respect to the property? 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Well -- I can't remember to be honest. Q. I'm going to go through the list of different damages that are in your complaint starting with the parking lot. If you could just briefly describe what the issue is with the parking lot, or the parking lot alteration, as you call it. A. Okay. I can't remember what year it was, but my tenant liked to drive into the parking, hit the parking lot at 40 or 50 mile an hour. And, of course, his car always bumped and went up in the air. So the issue was -- first of all, let me say I think I was the first building in that 10.4 acres. And when it was paved, the borough gentleman came in and said we're paving Belvedere Street and we'd like to know, you know, you're at the bottom of Belvedere Street, it's a slope, and we'd like to know if we can leave an offset so that the water continues to go by your property; you will have a bump there, if we build that up, all the water will enter your property and you'll have a standing pool, it will be a problem in the winter, it will freeze. And so I said, well, gee, I appreciate your talking to me about it, yeah, I don't want that to happen, so please leave the onset there and myself and my tenants will know enough to be careful. So Mr. Meals asked me if after he had been 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there -- I'm guesstimating. I won't guesstimate; it hadn't been too long, though -- if I would have that built up there. And I said, no, that's for a purpose so that water doesn't drain onto my property and create a problem. So it was not long after that I went on vacation. And when I came back, first thing I noticed was that the, in the entrance there, that that had been built up. And shortly after that, the water started collecting a small lake on my parking lot and it freezes in the winter and people have trouble in there going in and can't stop on the ice and people coming out -- Q. When did you notice this change in the road, or in the entrance to the parking lot? A. When I came back from vacation. Q. Do you recall when that might have been? A. No. Q. Do you recall a year? A. No. Q. You don't even know what year? A. No. I'd say -- Q. Ten years ago, five? A. Well, it wasn't long after my tenant was in, you know. That can be the first two or three years. I can't honestly recall. That's not an accurate answer. Q. And you're alleging that Mr. Meals here laid the 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 macadam down in front of the parking lot? A. Who else would ask me before I went on vacation and I said no and when I came back it's there? Q. Did you see him? You were on vacation. Obviously you didn't see him. A. No. I was on vacation. Q. Did anybody -- do you know of anybody that saw him do this? A. No one reported it to me. Q. So you're just presuming that he did it since he mentioned it before you left for vacation and you came back and it had been changed? A. The borough had told me how they were going to do it, and that was very satisfactory to me. So there were only a few parties that were interested; the borough, who made the suggestion and did it the way they wanted it; myself, who agreed with it; and then the party that was complaining about it. So there were really only three parties. My suspicion, which is only a suspicion, is that someone called and may have represented me and asked the borough to do it because -- Q. Well, we're not going to worry about suspicions here today; we're trying to get the facts. So basically you're just presuming; you don't have any evidence that 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Meals actually altered this parking lot; it's your presumption that he did. Is that correct? A. He was very disturbed when I wouldn't do it for him. And, as I said, he liked to hit there 40 mile an hour in the mornings. Q. Okay. Thank you. You allege also that there are some broken window panes in the office. Can you tell me where those panes are located? Let's start with the first one. Tell me about one of the window panes and where it's located. A. The one's inside the door as you enter the, as you enter what was the front entrance, I would describe it as. It's the first window on the left. Q. As you're walking in, the first window on the left? A. Yes, on the left. That's where the windows that open look out onto the parking lot. Q. Is that the same window that had the air-conditioning unit in it? A. That's the area where Mr. Meals put an air-conditioning unit into, a window unit, yes. Q. Is it the same window that the air-conditioning unit was put into that the cracked pane is located? A. That's the same window that he put the air-conditioning, Mr. Meals put a window air-conditioning 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unit into. Q. If I recall, there was a window, the first window to the left was where the air-conditioner was and there's panels, or, I guess, a separate window. So that was the first one? A. Um-hum. Q. And the second one I thought you had pointed out was where the cracked pane was. A. No. That's the first one. Q. Okay. What you're saying is the same window that the air-conditioning unit was in? A. That's the same one. Q. And when did you notice that that was cracked? A. Not long after Mr. Meals had rented the space. And I asked him to fix it, and he said I'll take care of it, I'll take care of it. Q. And so you're saying you noticed this 15 years ago like at the beginning of his tenancy? A. At the beginning of his lease. Q. Do you know how it occurred, how it got cracked? A. If I did, I've forgotten. Q. Tell me about the second broken window pane and where it's located first. A. Let me see. I forget what they call that room. But after you go through the first room when you come in 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when you start back the south hall, it would be the first, the first office space on the left. Q. And are there multiple windows in that office, or is there just one pane? A. No, there's multiple. Q. And do you recall which pane it was? A. I think there's three, and it's the furthest one, I think it's the furthest one. I'm not positive. Q. And when did you notice that that one was cracked? A. On my September 30th inspection or October 1st or that evening whenever it was after he left. Q. After he left. And you had not noticed it prior to that time? A. No. Q. In any of the times that you were in the office in the prior years? A. No. Q. Next we'll talk about the fuse box. Can you describe what the issue is with the fuse box? A. Didn't do a good job of that the other day when you asked me, and, I'm sorry, I still don't know. I know there was some wiring, somebody had been in there for some reason. And that always sat straight, and it sat crooked, as I think you noticed. 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Just so I'm clear, we're not talking about the actual wiring; we're talking about the case or the frame of the fuse box was not put back on correctly or it's crooked at this time? A. The fuse box, yeah. I don't know how you describe that where the fuses, themselves, are and the wires and so on, and somebody had changed that because it's sitting crooked and it never sat crooked. Q. So the actual fuse box is crooked, and that's the issue there? A. Not the whole panel, of course, but -- Q. Sort of the frame of it? A. Well, not exactly the frame of it either, but what the fuses set into. There's a -- I don't know what you call it. But there's a thing the fuses set into that's crooked. Q. Okay. Something is crooked. And do you know when that was altered or when you first noticed that issue? A. I noticed it after they moved in the September 30th inspection. Q. And you didn't notice that in any of the times that you were in the office? A. No. I don't check it every time. Q. Do you know who altered that? A. Well, it wasn't me, so it was someone that had 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 keys down below. I didn't have any work done on it. Q. The ceiling tiles, we touched on those briefly before. You claim in your complaint that there is damage to the ceiling tiles. Can you describe the damage that you're alleging? A. Yeah. Some of them are broken. Some of them were, either with furniture or some blunt object, they had holes punched into them. Q. And how many ceiling tiles are we talking about, if you can estimate? A. I don't want to estimate, but there's several, and the problem is that the new ones, to put some new ones in, they're not going to match the old ones. And I showed you on the one area that hadn't been disturbed how that looked versus where the damage had been done. Q. And when did you notice the ceiling tiles and the damage to them, the alleged damage? A. That was after the final move. Q. Did you notice -- and so you're stating that all of the damage was done after the move? Or, I'm sorry, all of the damage was noticed after the move. Did you notice any damage before the move in the times when you were down in the office? A. I can't recall if it was. I can't recall, but it wasn't certainly to the extent that it was after they 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 moved there. The interesting thing is that was all new to start with and it wasn't damaged when they moved their things in but it was damaged when they moved them out. Q. When they moved in ten years prior, correct? A. Whenever, when the refrigerator came in and when they got their table similar to this tall table, long table. Q. Did you see anyone damage those tiles? A. No. Q. You talk about some no smoking signs in your complaint. Can you describe the issue with that, please? A. Well, there were some things put in that weren't removed -- they're still there -- while there were other things that were just pulled off the wall and left damaged where they were attached. Q. And how many signs are we talking about? A. I wouldn't swear to it. I'm not sure. I think there were two. Q. And where are they located? A. Let me see. The one's in the room next to the -- well, they're actually the first two rooms. The room you walk into in the entrance where the broken window is, and then the other one that I'm sure of is on the, again, in the south hallway second room on the left after 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you enter the hallway. Q. And were these both no smoking signs? A. I forget now. Q. So they were signs like plastic signs, paper signs? What kind of signs wer e th ey? A. I can't really tell you that. Q. Did you see anybody rip these signs off the walls? A. No. Q. When did you notice that they were ripped off or gone? A. September, after the -- Q. After they moved out? A. Yes. Q. Both of them at that time? A. Yes. Q. Did you ever take down any signs that Mr. Meals put up in the office? A. I don't recall. No, I don't think so. I'm quite sure I didn't. If I didn't like them, I told him, I asked him to take them down. That didn't mean it was going to happen, but I asked him. And I'm not sure that happened either. That's all hypothetical. Q. I'm sorry? A. I'm not sure that -- I don't ever recall that 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happening that I asked him. Q. Okay. You talk about some damaged woodwork. Can you describe what that's all about? A. The frame around the window where he put his window unit was damaged and also where he broke into or had someone break into the utility room, where he wasn't supposed to be in the first place, and also the mess that was left in the utility room. Q. Let's take the window first. When did you notice the damaged woodwork in the window? A. That was after he installed the, or didn't install, after he put the window unit in, which was -- it was in August, but I don't remember when. I think it was in a period of extreme heat, which was in August. Q. Do you recall whether it would have been before or after you tore the air-conditioner out of the window? A. It was -- I didn't tear the air-conditioner out of the window. I lifted the air-conditioner out of the window. And when Mr. Meals came running out with his movie camera in hand, I threw the air-conditioner on the floor, the old beat up air-conditioner. Q. And then you noticed the damage once the air-conditioner was no longer in the window? A. Couldn't see it with it in the window. With it out, it was obvious that somebody had just -- Mr. Meals, 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when he put it in, didn't take care of anything. Q. So you did not notice this damage prior to the air-conditioner being lifted out of the window? A. No. Q. Okay. You talk about a humidifier unit. Would you describe the problem with that? A. Well, we had a good humidifier system when Mr. Meals rented the space, and it's no longer, apparently damaged, and it no longer functions, so it was damaged. Q. When was the last time you saw that humidifier work? A. I can't tell you. I don't remember. Q. Do you recall it ever working properly? A. Yes. It worked very well. Q. Can you -- A. It was put there for a reason. Q. Can you estimate when? Was it prior to his tenancy that it operated or worked well? A. I can't tell you. It worked well after he was in there, I can tell you that. But as far as when it stopped working, I have no idea. Q. And what is the -- you said there's damage to it. What kind of damage are we talking about? A. It doesn't work. Q. I'm sorry? 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It doesn't work. The controls are broken, and I don't know how much more serious it is, but the controls don't work. They're broken. Q. Did you ever have occasion to remove the knob off that humidifier unit? A. No. Q. The exhaust fan, tell me what's wrong with that. A. I don't know. Same thing; it was working when Mr. Meals rented the space, and, I don't know, it no longer works. I'm not even sure -- just looked at it the other day. I can't remember if a control was removed or the control was there. Q. So you're not sure whether or not it works at this point? A. It doesn't work. It's either -- he either removed it or it doesn't work. Q. And when was the last time you saw that operating properly, the exhaust fan? A. It operated when he moved in. I know that. Q. Ten years prior? A. They were put in for a reason. I have one upstairs that works the same way. Q. And do you know when was the first time you noticed that it didn't work? A. When he was gone. 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. The sign out front, what is the problem with that? A. The sign out front? Q. It's no longer there, but what is your claim for damages with regard to the sign? A. Well, the underground wiring is supposed to still be there, and I can't tell you concretely it's there, but it's still attached to the fuse box. I have no idea if it was left off or on, if it presents a hazard. The sign was removed, but the wiring and where it hooks up to the fuse box and so on, I'm not sure that was left appropriately. Q. You're not sure whether it was left appropriately? What would you expect to be done in addition to what was already done? A. Well, I was there when they removed the sign and filled some dirt in the hole. And there's supposed to be electricians work on those, and I saw no electricians around there. The only people we saw were Meals and his brother. Q. The concrete was removed, is that right, the concrete base of the sign? A. Yeah. That part was removed, yes. Q. And there's nothing exposed, no wiring exposed or anything? 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I don't know if there's any wiring exposed. I can't tell you that. Q. Well, I'm asking if you know of any wiring that's exposed. A. I don't know if it is or isn't. I didn't see it removed. Q. And Mr. Meals reseeded the area after the concrete foundation was removed. Is that right? A. He put some dirt there and -- Q. Some grass seed? A. I guess some grass seed. I didn't see that. I don't know if it was him or it was someone else. Q. So you're not really able to tell me what more you would be expect to be done with respect to the sign? A. Just I'm concerned if the wiring is still there and any possible hazard that presents. Q. Okay. You talk about garbage being left or placed in the hallway. Can you describe what the issue is there and which hallway we're talking about, where it's located? A. The back entrance to the lower level there is a place out around the shrubs where the garbage cans are, were, and it was supposed to be recycled, which it wasn't, never was. And after Mr. Meals' lease ran out on July 31st, 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he started throwing their trash and food stuff and so on and open containers at the -- some of them were just thrown outside the door, some of them were thrown on the parking lot back. And I asked him not to do that, to put it in closed receptacles and so on for health purposes, which he did not do. And when I saw rats around there, I got concerned. So I opened the back door to his hallway and placed them inside so that that way they wouldn't collect rats and mice and so on. Q. So just so I'm clear, you're saying that Mr. Meals placed his trash outside the door so it would have been outside the building? A. He placed it outside the door and outside the building and also in the parking lot up above. And I have photos of that, dated photos. Q. And then you, in turn, put the trash that was put outside back into the building in the hallway? A. I asked him repeatedly two or three times, I can't recall, not to do that. And he kept doing it, and I saw rats collecting, running around there and so on. Yeah, then I set it inside his, back inside the closed door. Q. The utility door that you talked about earlier that you mentioned -- 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. There was a sign ripped off that too. That's another place where a sign was ripped off. Q. Is that a similar sign to the other two? What kind of sign was that? A. That was my sign, and it was a plastic sign, I guess. I think it's made out of plastic. Q. And when did you notice that that sign was gone? A. On my final inspection. Q. This utility -- A. That was an office sign, you understand, that was there when he arrived. Q. The utility door, tell me what the problem was with the utility door. A. Well, the utility door was off limits. No one who rents a space is permitted in there. There are a number of reasons for that. And Mr. Meals had entered it. And whenever my -- someone started fooling with my air compressor. You have to understand dental equipment is run by an air compressor. And when my equipment wasn't functioning, I had to send patients home and then inspect the equipment. I had no idea what was wrong. It turned out that someone had opened the valves and left the air out of the air compressor. So when that happened, I, to enforce the utility off limit, I put it under lock and key. And 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 subsequently the lock was broken, attempted to break out of the wall. And when that couldn't be done, why, then, the door was taken off its hinges, separated,.the frame was damaged. And I have photos of that. Q. And so when is the time frame that we're talking about here? When did this occur? When did you notice this utility door broken, the lock torn and the door torn off? A. Well, I'd say August, but I can't remember when in August. Q. Sometime in August I assume before the district justice hearing? A. My equipment was tampered with on August the 6th, and the lock went on on August the 7th. And on August the 11th -- it's in the police report -- the door was forced off the hinges. The hinges were broken, part of the door was broken. Q. Do you recall -- A. And the building was not broken into. It happened from the inside. Q. Do you recall the timing when you noticed the, on August 11th, approximately when during the day did you notice the lock was broken and the door -- A. It was in the morning. Q. Do you know approximately when? A. It's on the police report. I don't know. It's 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the morning, but I'm not sure about the time. I think that should be recorded on the police report. Q. The night before you noticed the lock broken, when did you leave the building? A. I have no idea. Q. Do you recall whether you did your usual security check the night before, before you left? A. I don't recall. As I told you, I normally check the front door at least four days out of five. But I don't check it every night, and I have no idea if that was -- Q. Do you recall the last time that you saw the lock intact, the door and lock intact? A. Well, actually I have a note on that. On August the 9th, on August the 9th the lock was destroyed. That was the day that they attempted to take the lock out or off or break it or whatever. That was on August the 9th. And then on August the 11th the door was forced off its hinges and removed and so on and the utility room was entered. Q. Did you see anybody do this damage? A. No, I didn't. Q. Do you know of any witnesses that saw anybody do this damage? A. No. But it was pretty obvious who wanted in the utility room. 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And the police did not file any charges, correct, with regard to these damages? A. They took a report. I don't know if they filed -- I'm unaware of when they took a report. Q. As far as you know, there were no charges filed? A. I don't know what they did with them. Q. Who had a key to that lock on the utility door? A. Me, period. Q. Nobody else did? A. That's right. No one was supposed to be in there. Q. Are there any other damages with regard to this property and Mr. Meals' tenancy that you are alleging in this matter other than those we went over here today? A. Let me see. (Perusing document.) I can't remember anything offhand. If you'd want to wait a second, I'll find it in my notes. (Perusing document.) One of the things -- one of the problems was a large closet area was left loaded with junk. It wasn't cleaned up. Q. What kind of junk are you referring to? A. Paint cans and just stuff that -- I don't know; it looked like discarded furniture and a chair that looked broken. Q. Anything else you can think of? A. I have a list of my final inspection that 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 included second window broken, which you covered; and wiring from exterior sign not removed; closet space, which I just mentioned; damage to the things that were left in the furnace room; in other words, there's still quite a bit of wiring and so on left that Mr. Meals had there, and they ripped some things out and left others there. I had a very useful light that shown in there where I needed to get at my equipment. And when the phone stuff was installed and so on, that light disappeared. I don't mean the globe; I mean the little socket and so on, that area was all reconfigured, so to speak; and the ceiling tile which we discussed; some signs left while others were torn off; walls, damaging walls; woodwork damaged; holes gauged in drywall; holes in wall from signs; humidifier; exhaust fans. Yeah. Q. Let's get on to the next issue in your complaint, that being the issue of the lost tenancy with Lill Ponderosa Enterprises. Can you describe to me how, how this came about with Lill Ponderosa? A. Well, Mr. Boyce indicated he was looking for space and asked if I had space available, and I told him I would as of July 31st. Q. And Mr. Boyce, he's from Lill Ponderosa, I assume, that's his company? A. I believe. 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And how do you know Mr. Boyce? A. Let's see. How did we meet? I guess I met him when he became a patient. If I met him prior to that, I can't remember; but when he was a patient. Q. And how long have you known Mr. Boyce? A. I'm not sure. I see in his deposition he said 17 years, but I'm not sure. I can't remember. Q. Would it have been around that time frame? A. I'm not sure. Q. Greater than ten years? A. I think so. Q. And in what capacity -- tell me about your relationship with Mr. Boyce over the years. You said that you believe you had first met when he was a patient. How did that relationship evolve over the years? A. I don't know that it evolved. He was a patient. We've been to his house probably three or four times socially. He's been to our house socially. Q. Did you have any professional interaction with him? Obviously not in the dental area, but in any other area? A. I didn't really have any professional action with him. From the standpoint Mr. Boyce knew I had horses and whenever Mr. Boyce came in he would always say, you know, why don't you move your horses out to my farm, why 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't you keep your horses at my farm. Mr. Boyce was always hustling business for his farm. Q. And did you move your horses out to his farm? A. That's a long discussion, situation, that's in litigation, and that attorney is not here with me that's handling that litigation. I'm not going to go into details on it. Q. We don't need to go into the details of the litigation. Were you involved in the horse business together over the years? A. I don't want to answer that. Let me see. Were we involved in horse business? We had an oral contract to do a few things with horses, I would describe it. Q. So you worked together in matters relating to horses. Is that safe to say? A. Mr. Boyce had no knowledge in horses, knew nothing. We're talking thoroughbred horses. Q. Did you have a business association related to horses? A. Mr. Boyce said he wanted to learn about horses, to learn about thoroughbred horses, and so I was trying to help him. I had nothing to gain from it. I had some very fine farms that I was utilizing. Q. Did you eventually have horses at his farm? A. There were horses at his farm. 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. So you did have occasion to go out to his farm? You said you were there three to four times socially, but I imagine would you have also been out there with regard to the horses? A. I tried to stay away from it because he said he wanted to learn, but he wasn't practicing what he was told, so I didn't visit his farm that much. Q. But you did have occasion to go out there with regard to the horses as well? A. I would not say I have never been there, yeah. Q. Tell me about -- you said he was looking for space. Tell me what happened after that. You're alleging that there was a lease. Tell me about the lease. A. Mr. Boyce asked if he -- he knew there were other people interested in the space, and if I would lease it to him when it became available. And he was given the terms of the lease. Q. Which were? A. I don't recall offhand. I don't have that information. Q. You don't recall any of the terms of the lease? A. It was a three-year lease at $3,300 a month. Q. And you said that he said, Mr. Boyce said he wanted to rent the space. When you agreed upon this lease, where were you? Was this a discussion you had over the 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 phone? Were you at his house? Were you at an office? Where were you when this discussion took place? A. It wasn't over the phone, and it wasn't at my office. I mean, it wasn't in my dental facility. I can't recall, I guess, to be honest. I was going to say I assume, but we won't say I assume. I can't recall. Q. You remember where it wasn't, but you don't remember where it was? A. Well, I don't carry on business like that in my dental facilities. My dental time is for my dental patients, and I try to run on schedule, so I don't fool around with that kind of rubbish. Q. And you have a copy of the lease that you entered into with Lil' Ponderosa and Mr. Boyce? A. I believe so. Q. You do have a copy of that? A. I don't have it with me, but I think I have a copy. Q. And I assume that lease would spell out all the terms that you just discussed? A. Yeah. Q. And was it signed by Mr. Boyce? A. I don't recall. Q. Do you recall signing it? A. No. He had a lease and I had a lease, and I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 forget. I don't know if they're signed or not. Q. You said he had a lease and you had a lease. What do yo u mean by that? You each prepared a lease? A. No. We each had a copy. Q. A copy of the same lease? A. Um-hum. Q. And who prepared the lease? A. Let me see. What year was that? That was in 2001, and I'm not sure. I can't tell you. Q. You're not sure who prepared the lease, whether it was you or him or somebody else? A. No. It wasn't him; I know that. Q. So you're stating that the lease, you cannot recall if you signed the lease or if Mr. Boyce signed the lease? A. I don't recall offhand. I would have to see it and check my notes. I can't recall. Q. And in the complaint you mention that a deposit was paid by Mr. Boyce and Lil' Ponderosa. What was the amount of that deposit? A. 3,300. Q. And you have a copy of that check or a record of that deposit? A. Mr. Boyce did, does a lot of work by cash. I don't know why, but he prefers to. We used to -- he has a 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 meat business; we used to purchase meat from him, and he always wanted cash for that. And he paid the 3,300 to me in cash for which I gave him a receipt, and so he has the receipt. I had the cash. Q. And this was a deposit on the lease, or was this like a security deposit or just a deposit towards the lease? A. He indicated that he would take the space and this was to ensure that I would reserve it for him and not rent it because there were other people looking at it. Q. And you don't have a copy of that lease here in your notes, I assume, or in your records that you have here today? A. No. Q. And I'm sure your attorney will be able to provide that upon request to us? A. I don't know if Mark has a copy of it or not. I don't honestly know. (Barnhart Exhibit No. 7 was marked.) BY MS. MORRISON: Q. What did you do with that deposit that Mr. Boyce gave you, that 3,300 in cash? A. I don't recall offhand. Q. You don't recall what you did with it? 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. Q. Did you return it to Mr. Boyce? A. His deposit was returned to him, and I have my receipt. Q. Do you know the time frame of any of this or when any of this was going on when you agreed upon the lease? A. Well, early in August he indicated that he either wanted the space or else he wanted his money back. And I might add -- this is sometime ago when we were talking about the cash -- he was rather secretive about who he was renting the space for. It was a group of people, and they weren't ready to go public. Q. Mr. Boyce was secretive about it? A. Yeah. That's what he gave as a reason he wanted to pay it in cash, and then he said later on he would utilize checks for his records and so on. Q. So you're stating that this lease was entered into in early August, would it have been, or would it have been before? A. It was to be entered into -- I don't know what date. It was to be entered into August lst when my space was supposed to be available. Q. So the agreement, the lease agreement was not -- a deposit was paid, but the lease agreement was not 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 entered into? A. He never moved in, if that's what you're asking. He couldn't. There was a tenant downstairs that didn't move out on July 31st as called for by the lease and the lease that he signed where it said he will peacefully and quietly surrender it over as per agreement. And he's a realtor, and he signed the lease. Q. So Mr. Boyce never agreed to lease, to rent the property from you? A. Yeah, he agreed to rent it. He wanted the space. And when it wasn't available early in August, then he's asking for his money back or the space. He was trying to put pressure on me. Q. I'm showing you what's been marked as Barnhart Exhibit Number 7. Do you recognize that? A. (Perusing document.) Yes. Q. And this is a letter dated August 6th, 2001 from Mr. Boyce to you. It's dated August 6th, 2001. Do you recall when you might have received this letter? A. No. I don't know if it -- I don't know if it came by mail or -- I think in his deposition -- and it's not my language. I think in his deposition he says dropped it off at the office for me or something, but I don't recall that. Q. So you're not sure whether you received it in 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the mail or it was hand-delivered to you? A. No. Q. And do you recall being at Mr. Boyce's residence or out at the farm when Mrs. Boyce typed this letter up? A. No, I wasn't. Q. Did you have any involvement in the language that was used or the writing of this letter? A. No. Q. And what was your response to this letter to Mr. Boyce? A. I told him, Bob, I said, I don't know when the space is going to be free; Mr. Meals has indicated he's going to move on his own terms when he gets ready, he's not going to be forced, and I can't guarantee you anything. So I reimbursed his money to him. MS. MORRISON: That's all the questions I have at this time. MR. BAYLEY: I have no questions. (The deposition concluded at 3:13 p.m.) 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) I, AMY R. FRITZ, R.P.R., a Court Reporter-Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of DR. EARL M. BARNHART. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter-Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 15th day of March, 2006. Notary P b is NOTARIAL SEAL AMY R. FRITZ, NOTARY PUBLIC CITY OF CARLISLE, CUMBERLAND COUNTY MY COMMISSION EXPIRES MAY 23.2010 LAW OFFICES IR WIN McKNI GHT & HUGHES ROGER B. IRWIN .1 L4 RCUS .4. McKN1GHT. Ill JAMES D. HUGHES REBECC.4 R. HUGHES M.4 RK D. SCHWARTZ DOUGLAS G. MILLER WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 17013-3222 HAROLD S. IRII7N (1925-19,7) HAROLD S. IRW1N. JR. (1954-19.46) 1RWIN. IRWIN & IRWIN (1956-1986) IR IVIN. IRWIN & .NCXVIGHT (1986.1994) IRIVIN. HcKNIGHT & HUGHES (1994• ) (717) 249-2353 FAX (717) 249-6354 E-MAIL: IMHLAW®SUPERNET. COM July 31, 2001 ILIA FACSIMILE 243-6486 AND REGULAR MAIL JAMES D. FLOWER, ESQUIRE SAIDIS SHUFF FLOWER & LINDSAY 26 WEST HIGH STREET CARLISLE, PA 17013 L RE: REG, INCORPORATED/OWEN E. MEALS, JR. / 800 BELVEDERE STREET Dear Mr. Flower: As you are aware, our firm represents Owen E. Meals, Jr., the owner of ReMax Performance Realty. Currently, Mr. Meals is leasing the above-referenced property from Dr. Earl Barnhart which Agreement of Lease expires July 31, 2001. Please be advised that Mr. Meals has purchased another building and was hoping to have all of the build out completed by today. Unfortunately, Mr. Meals' space will not be available until the end of September, 2001. As such, Mr. Meals would like to remain at the subject property on a month.to month basis for the months of August and September. Obviously, Mr. Meals will agree to pay the monthly rent due for each month. However, this letter and Mr. Meals remaining on the property shall in no way be construed as the commencement of another term or any type of renewal under the Lease. The Lease Agreement does not address holdover tenancy and therefore Mr. Meals would like to work out a mutually beneficial arrangement for both parties for the next two (2) months until his new space is finished. Upon your receipt hereof, kindly advise as to whether your client is agreeable to the same. Thank you for your attention to the above. Very truly yours, IRWIX. McMIGHT & HUGHES EXHIBIT J Hughes JDH:clc cc: Owen E. Meals, Jr. LAW OFFICES IRWIN McKNI GHT & HUGHE S 3 ' WEST POMFRET PROFESSIONAL BUILDING T R 60 WEST POMFRET STREET ? ROGER B. IRWIN CARLISLE, PENNSYLVANIA 17013-3222 HAROLD S. IRWIN (1925-1977) MARCUS A. MCKNIGHT. III HAROLD S. IRWIN, JR. (1954-1986) JAMES D. HUGHES (717) 249-2353 IRWIN, IRWIN & IRWIN (1956-1986) REBECCA R. HUGHES FAX (717) 249-6354 IRWIN. IRWIN & McKNIGHT (1986-1994) MARK D. SCHWA= E-MAIL: 1MHLAWOSUPERNET.COM IRWIN, McKNIGHT & HUGHES (1994- ) DOUGLAS G. MILLER FACSIMILE TRANSMITTAL SHEET TO: FROM: James D. Flower, Esquire James D. Hughes, Esquire COMPANY: DATE: Saidis Shuff Flower & Lindsay 7-31-01 FAX NUMBER TOTAL NO. OF PAGES INCLUDING COVER: 243-6486 PHONE NUMBER: SENDER'S REFERENCE NUMBER: RE: YOUR REFERENCE NUMBER: REG, Incorporated / O. Meals, Jr. ? URGENT ? FOR REVIEW ? PLEASE COMMENT ? PLEASE. REPLY ? PLEASE RECYCLE Notes and Comments: NOTE: If you did not receive all of the pages, or if you have any problem with the clarity of this fax, please call us at the number listed on the letterhead THANE YOU!! CONFIDENTIALITY NOTICE: This facsimile contains confidential information which may also be legally privileged It is intended only for the use of the address(s) named above. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this facsimile or the taking of any action in reliance on the contents of this telecopied information maybe strictly prohibited If you have received this facsimile in error, please notify us immediately by telephone and return the entire facsimile at the above address at our cost via the U.S. Postal Service. THANK YOU!! OFFICES IRWIN MCKNI GHT & HUGHES WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET ROGER A IRWIN CARLISLE, PENNSYLVANIA 17013-3222 HAROLD S. IRWIN (1915-1977) MARCUSA. McKNIGHT, III HAROLD S. IRWIN, JR. (1954-1986) JAMES D. HUGHES (717) 249-2353 IRWIN, IRWIN & IRWIN (1956-1986) REBECCA R. HUGHES FAX (717) 249-6354 IRWIN. IRWIN & MCKNIGHT (1986-1994) MARK D. SCHWAR77 E-MAIL: IMHLAWOSUPERNET.COM IRWIN. McKWGHT & HUGHES (1994- ) DOUGLAS G. MILLER FACSIMILE TRANSMITTAL SHEET TO: FROM: Owen E. Meals, Jr. James D. Hughes, Esquire COMPANY: DATE: 07-31-01 FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER: 245-2255 2 PHONE NUMBER: SENDER'S REFERENCE NUMBER: RE YOUR REFERENCE NUMBER: ? URGENT ? FOR REVIEW ? PLEASE COMMENT ? PLEASE REPLY ? PLEASE RECYCLE Notes and Comments: RE: LETTER TO JAMES FLOWER RE 800 BELVEDERE STREET 7- 31-dl NOTE: If you did not receive all of the pages, or if you have any problem with the clarity of this fa., please call us at the number listed on the letterhead THANK YOUM CONFIDENTIALITY NOTICE: This facsimile contains confidential information which may also be legally privileged It is intended only for the use of the address(s) named above. If you are not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this facsimile or the taking of any action in reliance on the contents of this telecopied information maybe strictly prohibited If you have received this facsimile in error, please notify us immediately by telephone and return the entire facsimile at the above address at our cost via the U.S. Postal Service. THANK YOUII LAW OFFICES T R I VIN McKTT GHT & HUGHES ROGEI? S. lRN7N dL4RC 1,SA kr_VI(;HT III .NXIFS U HUGHES REBF.C'Ca R. HUGHT :M,4RK D..1;(.'HW4R7-7 IN)(,(;I.,4SG. ;MILLER WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET CARLISLE, PENNSYLVANIA 1 70 1 3-3222 H.41?OLDS.IR07S (1921-N-, ) H.4R0LD S. /R WhV, JR. (0j4-106i /8)l'l,V, /RltZV X /R;;'/,V t19:6-19.% IRWZV, IRWZ1' cC :McKSK-ihT (19,46-1994) IRtt?,V, VIcK.VlGH7' & HU( NhS (1994- ) (717) 249-2353 FAX (717) 249-6354 E-MAIL: IMHLAW@SUPERNET. COM August 9, 2001 VIA FACSIMILE (243-6486) ONLY JAMES D. FLOWER, JR., ESQUIRE SAIDIS, SHUFF, FLOWER & LINDSAY 26 WEST HIGH STREET CARLISLE, PA 17013 RE: REG, INCJOWEN E. MEALS, JR./800 BELVEDERE STREET Dear Jim: 11 27 iwi ZJ rj df Per our conversation yesterday, this letter shall confirm my client's willingness to modify the offer which I set forth to you in my letter of August 3, 2001 for purposes of the holdover lease terms with respect to the above-referenced matter. Please be advised that Mr. Meals, although he .does not feel said increase in reasonable, is willing to give your client rent in the amount of $4,034.00 for the month of August and,September 2001. Mr. Meals is still willing to offer the remaining terms set forth in my letter to you dated August 3, 2001, which is very similar to those which your client initially proposed in your previous correspondence dated August 6, 2001. Despite Mr. Meals' efforts to deal reasonably with your client in meeting his demands, your client has done nothing but act in a retaliatory manner towards Mr. Meals which is quite inappropriate and without legal basis. As I have indicated to you during our telephone conversations and via voice mail, your client has unilaterally decided to make it impossible for Mr. Meals to operate his business. It is my understanding that Mr. Meals had to close his business on August 8, 2001, given that Dr. Barnhart turned off all of the air conditioning to Mr. Meals' suite and proceeded to padlock the utility room so that the air conditioning could not be turned on. The temperature outside exceeded 98° and therefore Mr. Meals was forced to close his doors. This is a tortuous interference with business relations and this type of behavior will not be tolerated. Further, Dr. Barnhart has entered the premises without regard to Mr. Meals' property located therein and left the doors wide open after he realized somebody had come into the office. He has refused to remove the trash from the premises, but instead decided that Mr. Meals' hallway would be a EXHIBIT m ?i a/ibj? better place for it. He has also refused any rental payment for the month of August and harassed Mr. Meals' staff and made disparaging curnments to other parties concern ing NIT. Meals. Of a more serious nature, Dr. Barnhart interfered with and attempted to stop the transmission of U.S. Mail being delivered to Mr. Meals which has its own legal implications. If your client is willing to be reasonable in any manner, I would suggest that an agreement between the parties be reached by 5:00pm on August 9, 2001. To the extent that this does not occur, please be advised that we will recommend to Mr. Meals to file the appropriate counterclaim for damages he has suffered as well as any other remedies available to him at law for the actions taken by Dr. Barnhart both prior to and subsequent to the expiration of the Lease on July 31, ?001. Please advise as to whether your client is willing to reasonably discuss the situation or proceed to litigation. Very truly yours, IRWIN,.McKNIGHT & HUGHES :t James'D'. Pughes JDH:sls cc: Owen E: Meals, Jr. (via teleco y only) G/Jhughes/litioation/8-9-01 Itr to J Flower 1r re Owen-800 Belvedere AMES D. FLOWER JOHN E. SLIKE ROBERT C. SAIDIS GEOFFREY S. SHUFF JAMES D. FLOWER, JR. CAROL J. LINDSAY JOHNNA J. KOPECKY KARL M. LEDEBOHM JOSEPH L. HITCHINGS THOMAS E. FLOWER LAW OFFICES SAIDIS, SNUFF, FLOWER & LINDSAY A PROFESSIONAL CORPORATION 26 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486 EMAIL: attorney@ssfl-law.com www.ssfl-law.com WEST SHORE OFFICE: 2109 MARKET STREET CAMP HILL, PA 17011 TELEPHONE: (717)737-3405 FACSIMILE: (717)737-3407 REPLY TO CARLISLE August 6, 2001 James D. Hughes, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 RE: BARNHART v. MEALS Dear Jim: T I appreciated discussing the above referenced case with you. Although it is very inconvenient for Dr. Barnhart to extend your client's lease for an additional two months, he is willing to do so under the following conditions: 1. That rent in the amount of $4,034.00 per month be payable for each month, both payments to be made at the commencement of the lease term. 2. That the sign be removed by September 1, 2001., and the whole properly filled in, in accordance with the lease. 3. That your client pay for Dr. Barnhart's legal fees in this matter, which are presently estimated to be in the amount of $500.00. 4. That the premises be left in excellent condition and without any trash or remaining property on the premises, as per the terms of the lease. 5. That if Mr. Meals is unable to vacate by September 30th, the rent will be raised to $6,000.00 per month for each succeeding month, payable on the first day of each month in advance. EXHIBIT gaf Id/o[n James D. Hughes, Esquire 2 August 6, 2001 Irwin, McKnight & Hughes Since your client is currently in default and is occupying the premises contrary to the lease terms, we ask for an extremely prompt response. Very truly yours, SAIDIS, SHUFF, FLOWER & LINDSAY James D. Flower, Jr. JDFJr:mjm cc: Dr. Earl M. Barnhart Oct 26 01 03:47p p•3 h ?. Lyi =.-j M', 2194 Newv?le Road Cadisleg PA 17013 August 27, 2001 REG, Inc., EXHIBIT 800 Belvedere St. EiCarlisle, PA 17013k, LA Dear Mr. Barnhart: Thank you for using our services. Our examination of the lower level offices at the above address found the following: FINDINGS 1. The door to the utility room appears to have been pried open. The lock hasp and associated hardware is damaged. The door is tom from the jam. Hinges are ripped from the door. Gasket materials and insulation are damaged which will reduce the effectiveness of them as soundproofing and insulation. The wallboard into which the lock is mounted is damaged. The type of mounting used will not allow a similar remounting. The structure behind the wall must be accessed and the mollies removed. This will necessitate new wallboard being installed in that area. The Schlage door closer was broken at the swivel point where the arm mounts to the doorframe. 2. There is damage to a window frame in the receptionist area. The air conditioner mounted there appears to be too heavy for the thin wood that is part of the insulated window frame. If the unit is to remain, additional supporting structure needs to be added. Because this is an Anderson type window of older vintage (60's), it may be difficult to replace the window. This will require the removal of the window and a new piece of wood being hand milled to replace the broken section. This piece of wood houses the latch assembly and therefore is essential for the insulation value and security of the building. Please Note: The air conditioner is not properly secured in the window and the cardboard extensions will not withstand extreme moisture or wind conditions. These factors raise safety and security concerns in addition to subjecting the building to additional damage from the elements. 3. There is a broken windowpane in the adjacent run of windows. Because these are double insulated glass, the sash must be removed and delivered to a glazier to repair. It will require a temporary security closure and a minimum of a couple days. 4. One florescent fixture is missing the surround cover and diffuser. Because of the age of the fixture, it may not be possible to purchase a replacement cover. The entire fixture will need to be replaced, in all likelihood. SUGGESTED REPAIRS Oct 26 01 03:47p 0 Page 2 August 27, 2001 The door must be removed, the hinge mounting area repaired with a plastic wood type patch. New longer screws will be used to remount the hinge to the door. The gasket and insulation will be replaced and/or repaired based upon the availability of materials supplied by the customer. However, for this estimate we have assumed the materials were lost or damaged and have included the cost of new materials. A new door closer will be purchased and mounted to replace the broken unit. The wall board will be removed, replaced, taped and speckled (three coats), painted (two coats to the entire wall for matching purposes). A new lock and hasp assembly will be attached to secure the utilities room. 2. The window will be removed; it will be delivered to Adams, the Anderson Window Company in Carlisle. They will repair it or supply the necessary parts -- if possible. Our experience tells us they or we will need to hand mill this part and make the fittings and adjustments for the latching mechanism. We will remount the window in the brick and caulk the exterior. We will repair and/or replace the inside trim. We will fill and paint the area to match as closely as possible the adjacent run of windows of which it is a set. 3. The broken windowpane (light area 21.5" x 36") will be repaired by removing the sash and pane only. It will be taken to a glazier; to install a double thermopane sealed glass replacement assembly. It will be returned, remounted and painted as required. A temporary closure will be constructed and inserted into the window opening. It will be weather proofed if the repair requires a waiting period of days. 4. We will remove a surround from one of the existing office fixtures to use as a sample. We will take it to an electrical supply house. We will attempt to buy just a cover. However, failing this we will purchase a fixture of similar size and wattage. If we have to replace the fixture there will be a difference in the foot print on the ceiling. Therefore, for this estimate we are including the price of painting the ceiling. 5. Clean and remove any debris. 6. Because there will be a significant contrast between the newly painted wall areas Vs the other walls which are wom, you may wish to have us paint the entire area. We have not include any additional painting in this estimate. Please Note: A number of these items require little in the way of material, however, the need to make multiple trips to allow for drying time, etc. make it necessary to include a significant amount of travel time. The demolition and removal time is longer, in that we cannot damage adjacent areas. Much of the work is such that only an experienced trim carpenter can perform the assignment. These and several unknowns cause us to estimate higher e.g., because we do not know if Adams can repair the window until we remove it or if we have to hand-mill the parts. What will they and the glazier charge? p.4 Our experience while performing the work will affect your actual cost. We represent that the estimated numbers following will be within + or-10% of the final price. Oct 26 01 03:47p P.5 • Page 3 August 27, 2001 WESTHILL ESTIMATED CHARGES. DESCRIPTION COST INSPECTION $100.00 WRITTEN REPORT AND ESTIMATE $150.00 ITEM 1 $810.00 ITEM 2 $480.00 ITEM 3 $370.00 ITEM 4 $200.00 TOTAL $2,110.00 Thank you for using the services of Westhill. If you require additional information you can reach me at 243-8689. B? Ron Deihl Partner "' . ?n 09-2-01 W Name: NOM ;. PAUr. A P - coRREAL EAST WING - COURTHOUSE .1 COURTHOUSE SQUARE CARLISLE, PA 17013-0000 (717)240-6564 TO THE DEFENDANT: The above named plaintiff (s) asks judgment together with costs against you for the possession of real property and for: FR G, Sncarpor•atedV-. ^c' c/o Dr. Earl M. Barnhart 800 Belvedere 'Street LCarlisle, PA 17013 vs. DEFENDANT: NiwEsMACORESS Owen E. Meals, Jr. 800 Belvedere Street Carlisle,'PA 17013 L Docket No.: Date Filed: Amount *ai Fling Costs $ Service Costs $ Total $ i Lease is F? Residential a Nonresidential. Y Damages for injury to the real property, to wit: the nature and extent of any injuries to the property are unknown in the 2moun' of: -S Damages for the unjust detention of the real property in the amount of 5 u-known Rent remaining due and, unpaid on filing date in the amount of $ a And additional rent remaining due and unpaid on hearing date S THE PLAINTIFF FURTHER ALLEGES THAT: Total: S 1. The location and the address, if any, of the real property is: 8 00 Belvedere Street, 1st Floor Carlisle, PA 17013 2. The plaintiff is the landlord of that property. 3. He leased or rented the property to you or to under whom you claim. 4. 5. FR Notice to quit was given in accordance with law, or EXHIBIT 0 No notice is required under the terms of the lease. l4 i The term for which the property was leased or rented is fully ended, or I to `4 F A forfeiture has resulted by reason of a breach of the conditions of the lease, to wit: cr, I F-IRent reserved and due has, upon demand, remained unsatisfied. 6. You retain the real property and refuse to give up its possession. I, Earl M. Barnhart verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C. S. § 4904) relating to unsworn falsification to authorities. 221 - IS S,,Jn? (Signature of Platr?utf) L7 17? Janes D. Flower Jr. 26 West High St. . Carli A A 7013 243-62-72 (Plaintiffs Attorney) (A.aaress) (Phone) IF YOU HAVE A DEFENSE to this complaint you may present it at the hearing. IF YOU HAVE A CLAIM against the pWrrtiff arising out of the occupancy of the premises, which is in the district justice jurisdiction and which you intend to assert at the hearing, YOU MUST FILE it on a complaint form at this office BEFORE THE TIME set for the hearing. IF YOU 00 NOT APPEAR AT THE HEARING, a judgment for possession and costs, and for damages and rent it claimed, may nevertheless be entered against you. A judgment against you for possession may result in your EVICTION from the premises. If you aredisabled and require nnai--- •+????? ---•--• • - REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. OWEN E. MEALS, JR., Defendants CIVIL ACTION - LAW NO. 0;t- ??, (-, CIVIL TERM NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (0) days atter this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone: (717) 249-3166 EXHIBIT ??nv hur? P170-Le ^?J:r., i• t,? , irQ f "n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Plaintiff V. OWEN E. MEALS, JR. Defendant Civil Action--Law Docket No. JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, REG, Inc., by and through its attorney, Karl E. Rominger, Esq., to allege as follows: PARTIES 1. Plaintiff, REG, Inc., is a Pennsylvania corporation which operates from the address 800 Belvedere St., Carlisle, Pennsylvania 17013. 2. Dr. Earl M. Barnhart is the President of REG, Inc. 3. Defendant, Owen E. Meals, Jr. (hereinafter "Mr. Meals" ), is an individual that owns and operates a real estate business entitled RE/MAX. VENUE 4. Venue is appropriate for this action because the causes of action arose with Defendant in Carlisle, Cumberland County, Pennsylvania. BACKGROUND FACTS AND CONTRACT TERIMS 5. On June 12, 1991 Owen E. Meals, Jr. entered into a Commercial Lease (hereinafter "the Lease") with REG, Inc. (attached as Exhibit A) for "[t]he entire lower level of 800 Belvedere Street, Carlisle, Pennsylvania containing approximately two thousand (2000) square feet of offices, a waiting room, and rest rooms; together with parking facilities in front of the building to be shared by patients of the tenants and five (5) reserved parking spaces in the rear of the building, excluding absolutely the exclusive use of the utility room consisting of the air conditioners, furnace and storage space of Lessor." 6. According to the Lease, Mr. Meal's lease term was to begin on June 1, 1991 and end on July 31, 2001. 7. Paragraph 14 of the lease states that "Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the dernised premises to Lessor free of subtenancies, all in good condition and repair. Lessees shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property." 8. Paragraph 17 of the subject lease states that "All damages or injuries done to the premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing paneling or replacement of same if not repairable." 9. Prior to July 31, 2001, REG, Inc. provided full and adequate notice to Mr. Meals that his lease term would not be extended. 10. Prior to July 31, 2001, REG, Inc. negotiated a lease agreement with another business, Lil' Ponderosa Enterprises (hereinafter "Ponderosa") for a term of three (3) years with a rent rate of $3,300 per month. 11. Pursuant to the agreement with Ponderosa, Ponderosa provided REG, Inc. a $3,300.00 deposit. 12. The agreement with Ponderosa provided that Ponderosa would take control of the subject property, then occupied by Mr. Meals, on or about August 1, 2001. 13. On July 31, 2001 Mr. Meals failed to surrender the subject property. 14. On August 3, 2001, Plaintiff filed an Eviction and Request for Order of Possession with the Honorable Paula Correal. 15. On August 30, 2001, after a hearing was held, an Order of Possession was granted in favor of REG, Inc. 16. No appeal from said Order of Possession was taken within thirty (30) days. 17. Eviction proceedings by constable were started as soon as allowed by law. 18. Defendant finally surrendered the subject property on September 30, 2001. 19. The continued use of the subject property after the entry of the Order of Possession was a willful and wanton trespass in violation of the lease and in violation of the Order of Possession. 20. This unjust detention of the property and willful trespass prevented the subject property from being re-rented. 21. Ponderosa, the tenant who was to follow in succession after Defendant, was unable to grant an extension of the time to take possession, and therefore had to back out of the contract, but would not have done so had Defendant Meals surrendered possession. Count 1--Breach of Contract 22. The previous paragraphs are incorporated by reference as if they were fully set out herein. 23. The lease required the Defendant to surrender the subject property. 24. Failure to surrender the subject property at the termination of the lease was a breach of said contract. l 25. The continuing nature of the breach and failure to honor the contract after the date of the Judgment of Possession was a subsequent and further breach of that contact. 26. As a direct and proximate result of Defendant's-breach of the contract, by maintaining possession past July 31, 2001, Plaintiff was damaged by loss of its expected new three year tenant and the loss of its $3,300.00 deposit said tenant had made. 27. As a result of said breach of contract, Plaintiff has incurred various attorney fees, costs and expenses related to this action in an amount to be determined at trial. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the liquidated amount of $122,100.00 (36 months of rent plus $3,300.00 deposit), plus interest, and further requests the Court to award attorney fees and costs of litigation and any other relief the Court deems proper and just. Count 2--Breach of Contract 28. The previous paragraphs are incorporated by reference as if they were fully set out herein. 29. After Defendant finally surrendered the subject property, on September 30, 2001, damages and alterations were discovered that had not been repaired or restored as required by the lease in paragraphs 14 and 17 listed above. These damages and alteration include, but are not limited to, the following: A. Defendant failed to restore the parking lot which he altered without permission. B. As a result of Defendant's unauthorized alteration of the parking lot, there is now a flooding problem on the subject property. C. Defendant failed to replace a broken window. D. Defendant failed to restore fuse box and wiring which had been altered. E. Defendant failed to replace damaged ceiling tiles. F. Defendant failed to replace "No Smoking" signs which were ripped off of walls. G. Defendant failed to repair damage to walls incurred by the removal "No Smoking" signs. H. Defendant failed to repair and/or replace damaged woodwork. I. Defendant failed to repair or replace a damaged humidifier unit. J. Defendant failed to repair or replace a damaged exhaust fan. K. Defendant failed to properly remove wiring left from outdoor sign. L. Defendant failed to remove a substantial amount of garbage and/or debris from property. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in an amount to be proven at trial, which constitutes the cost to restore and/or repair the property pursuant to the contract terms, plus interest, and further requests the Court to award attorney fees and costs of litigation and any other relief the Court deem proper and just. Count 3--Trespass 30. The previous paragraphs are incorporated by reference as if they are fully set out herein. 31. Defendant was a willful and intentional trespasser from August 1, 2001 forward. 32. As a consequence of Defendant's continuing trespass, which lasted from August 1, 2001 until September 30, 2001, REG, Inc. was damaged. 33. Plaintiff lost its prospective tenant as described previously. 34. Plaintiff lost use and enjoyment of its own property. 35. At all times relevant Defendant's trespass was unjustifiable, malicious, wanton and outrageous. WHEREFORE, Plaintiff demands judgment in its favor against Defendant in an amount in excess of the jurisdictional limit for compulsory arbitration, plus interest,. attorney fees, punitive damages and such other relief as the Court deems proper and just. Count 4--Wrongful Use of Civil Process 36. The previous paragraphs are incorporated by reference as if they are fully set out herein. 37. Defendant was well aware that he was in Trespass by remaining on the subject property after July 31, 2001. 38. Defendant, through agents and representatives, made clear to Plaintiff that he would abuse the legal system to remain on the subject property willfully and wantonly in Trespass. 39. Defendant carried out the above threats by remaining on the subject property and forcing Plaintiff to file an Eviction and Request for Order of Possession with the Honorable Paula Correal when he knew he had no legal justification to stay. 40. Defendant continued, prolonged and defended said legal process and civil suit in bad faith. 41. By reason of the foregoing conduct of Defendant, Plaintiff was wrongfully deprived of its property and the income therefrom and was compelled to employ an attorney to recover its property, to its injury and detriment. WHEREFORE, Plaintiff demands judgment against the Defendant for compensatory damages in an amount in excess of the jurisdictional limit for compulsory arbitration plus attorney fees, interest and costs and for punitive damages in an amount to be determined by the trier of fact. Count--Punitive Damages-Trespass-Wrongful Use of Civil Process 42. The previous paragraphs are incorporated by re'v'erence as if they are fully set oiit herein. 43. At all times, the actions of Defendant were outrageous, obdurate and vexatious. 44. Defendant, through agents and representatives, made it clear that Defendant would remain willfully and wantonly in Trespass despite legal action. 45. Remaining after the Order of Possession of August 30, 2001 was entered was outrageous and especially willful and wanton. 46. The nature of the trespass was knowing, willful and wanton. 47. Defendant's wrongful use of civil process was outrageous, knowing, willful and wanton. 48. Defendant was damaged in various ways as described in the above paragraphs. 49. An award of punitive damages in favor of Plaintiff would be just in this instance. WHEREFORE, Plaintiff demands punitive damages in the amount to be determined at trial, by a jury, against Defendant for his outrageous, willful and wanton trespass. Count 6--Unjust Enrichment 50. The previous paragraphs are incorporated by reference as if they are fully set out herein. 51. Defendant did not compensate Plaintiff for his wrongful retention of the subject property. 52. Defendant received unjust enrichment by withholding the property for two (2) months without paying rent. 53. As result of Defendant's unjust enrichment, Plaintiff was damaged by loss of two (2) months rent WHEREFORE, Plaintiff demands judgment against Defendant in the amount of 6,068.00 (2 months rent) that Defendant received unjustly as a result of his wrongful retention of subject property. Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Plaintiff VERIFICATION I, Dr. Earl M. Barnhart, REG, Inc. President, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Date Dr. Earl M. Barnhart REG, Inc. President COMMERCIAL LEASE THIS AGREEMENT of Lease made this 12th day of June, 1991, between REG, INCORPORATED, herein referred to as Lessor, and OWEN E. MEALS, JR., herein referred to as Lessee. WITNESSETH, that the said Lessor, in consideration of the rents and covenants hereinafter mentioned, do demise and lease unto the said Lessee, to be used as offices and waiting room, the premises situate in the Borough of Carlisle, County of Cumber- land, and State of Pennsylvania described as follows, to wit: The entire lower level of 800 Belvedere Street, Carlisle, Pennsylvania containing approximately two thousand (2000) square feet of offices, a waiting room, and rest rooms; together with parking facilities in front of the building to be shared by patients of the tenants and five (5) reserved parking spaces in the rear of the building, excluding absolutely the exclusive use of the utility room con_5? s}in, c-f t a? _ cb sdi loners, furnace i and storage space of Lessor. TO HAVE AND TO HOLD unto the said Lessee, subject to the conditions of this Agreement, for the term beginning on the 1st day of Aur?t, 1991 and ending on the 31st day of July, 2001. IN CONSIDERATION OF WHICH the said Lessee agrees that he will pay to the said Lessor for the use of said premises, the sum >?l of two thousand ($2,000.00) dollars on the 1st day of each '"''? tnai'f calendar month during the term beginning with A?a t 1, 1991.., Said two thousand ($2,000.00) dollars per month payments will continue for at least two years of said term and thereaftear for the balance of the term may be increased at Lessor's option no more than five (50) percent per year, said increase to be payable monthly with the basic aforementioned rent. THE DEMISE HEREIN CONTAINED is made and accepted on the following express conditions: 1. At the end of the said term the demised premises shall be delivered in as good condition as at the commencement thereof, ordinary wear and tear and unavoidable damage by fire, tempest and lightning excepted. 2. The rent reserved shall be promptly paid on the several days and times herein specified without deduction or abatezzlent, at the residence or principal office of the said Lessor. 3. If the Lessee should remove or prepare to remove, or attempt to remove from the premises hereby leased before the expiration of the term or at any time during the continuance of this lease, or if the Lessee shall be in default in the payment of any installment of rent for the period of ten (10) days, or should there be a default in any of the covenants or conditions as herein contained, remaining uncured after thirty (30) days, written notice, then in that event, rent for the remainder of the term at the rate which it is then due and collectible under the terms for this Lease shall immediately become due and payable and shall be collectible by distraint or otherwise. 4. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the failure of the Lessor, if said failure is not due to any fault on his part, to give possession of the premises herein demised,. alit the time agreed upon. 5. Said Lessee shall not carry on any business which will cause a forfeiture of any fire insurance that the Lessor has or may hereafter have on said building. 6. The Lessee agrees to pay all bills which may be incurred for janitorial services in the demised premises and the lower entrance hall. The Lessor shall not be responsible in any way in the event that the supply of heat is rut off by reas;:n ;:f any cause beyond the control of the Lessor, and the Lessees do hereby release the Lessor from any damage, which may result to him by reason of the failure of the supply of heat. 7. Lessee and its employees will be responsible for using reasonable methods to insure the buildings physical security. 8. Lessor agrees that it will pay all costs for water, sewer, gas, electric current and other utilities including trash removal, used, consumed or incurred upon or in connection with the premises during the term hereof, and of any renewals thereof, as and when the charges for the same shall become due and payable, provided however, that Lessee shall comply with all applicable federal, state or other lawful governmental orders or regulations governing the furnishings thereof. Lessee agrees to use reasonable methods of energy conservation in his use and occupation of the leased premises. 9. The Lessee shall have the exclusive use of all of the leased premises, except the utility room containing the air conditioning units, furnace and storage area of Lessor, as aforesaid. 10. Lessor shall make any repairs in and to the premises including but not limited to repairs to the electrical, heating, ventilating and air conditioning systems, all to maintain the premises in good condition: and repair. Lessor shall also provide trash (except as previously set forth) and snow removal from sidewalks, stairs and parking lots. Lessee shall use all reasonable precaution to prevent waste, damage or injury to the premises and improvements. 11. In the event of filing of a petition in bankruptcy, whether voluntary or involuntary, by or against the Lessee herein, there shall become due immediately upon the filing of said petition, the remaining unpaid rent, and the Lessor shall have the further right in said event, to forfeit and terminate this Lease. The said forfeiture to be effected by giving notice in writing to the Lessee herein or to the person then in charge of the demised premises. Should an execution be issued against the Lessee out of any court, six (6) months rent shall thereupon become due and owing. 12. In the event that the premises occupied by the Lessee shall during said term be destroyed by fire, thereby'making the premises untenantable and unfit for occupancy so that the owners thereof deem it advisable to construct a new building, the Lessor herein shall thereupon have the right to cancel and terminate this Lease upon giving thirty (30) days' notice in writing to the Lessees herein, and the term of this Lease shall thereupon cease at the expiration of thirty (30) days after the expiration of said notice. In the event, however, that the said building shall be damaged by fire, but not destroyed, the Lessor -i11 thereupon cause the same to be repaired and restored to its former condition, and to act with the greatest possible diligence, and if the said fire shall have rendered the premises untenantable, payment of rent thereunder shall be suspended from the time when the Lessee herein shall notify the Lessor of such condition, until such time as the building is so repaired and again ready for occupancy, and the Lessee herein agrees that in the event that the building shall be so partially destroyed by fire as to render said repairs necessary that the said Lessor shall thereupon have the right through his servants and agents, and that the servants and agents of any contractor employed by the Lessor shall have the right to take possession of the premises for the purpose of making such repairs, and the so taking of possession shall not be an eviction of the Lessee herein and shall in no manner effect this term of Lease. 13. Subject to the limitation that no substantial portion of the building on the demised premises shall be demolished or removed by Lessee, the Lessee may subject to the conditions set forth below and at itsi own expense, make alterations, additions or improvements in and to the demised premises and the building. Alterations shall be performed in a workmanlike manner and shall not weaken or impair the structural strength, or lessen the value, of the building on the premises, or change the purposes for which the building or any part thereof, may be used. Conditions with respect to alterations, additions or improvements are as follows: (A) Before commencement of any work all plans and specifications shall be filed with and approved by all governmental departments or authorities having jurisdiction and any public utility company having an interst therein, and all work shall be done in accordance with requirements of local regulations. The plans and specifications for any alterations estimated to cost Two hundred and 00/100 ($200.00) Dollars or more, shall be submitted to Lessor for written approval prior to commencing work. (B) Prior to commencement of any work Lessee shall pay the amount of any increase in premiums on insurance policies provided for herein because of endorsements to be made covering the risk during the course of work. In addition, if the estimated costs or work shall exceed Two hundred and 00/100 ($200.00) Dollars, Lessee shall, without cost to Lessor, furnish Lessor with a performance bond written by a surety acceptable to Lessor in an amount equal to the estimated cost or the work guaranteeing the completion of work, free and clear of liens, encumbrances and security intersets, according to the approved plans and specifications. (C) All alterations, additions, and.improvements on or in the demised premises at hte commencement of the term, and that may be erected or installed during the term, shall become part of hte demised premises and the sole property of Lessor, except all moveable trade fixtures installed by Lessee. 14. Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the demised premises to Lessor free of subtenancies, all in good condition and repair. Lessees-shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property. 15. Neither Lessee nor his heirs, assign, mortgage, pledge, or encumber this Lease or sublet the demised premises in whole or in part, or permit the premises to be used or occupied by others, nor shall this Lease be assigned or transferred by operation of law, without the prior.consent in writing of Lessor in each instance, such consent shall not unreasonably be withheld. 16. Lessee shall deposit two thousand and 00/100 ($2,000.00) Dollars with Lessor on the execution herewith, which amount shall be held by Lessor as security for the full and timely performance by Lessee of the terms and conditions herein and for the payment of any final judgment that may be rendered against Lessee for a breach of those terms and conditions. Interest shall be paid on the deposit at a rate of 5% per annum. The rights of Lessor against Lessee for a breach of this Lease shall in no way be limited or restricted by this security deposit, but Lessor shall have the absolute right to pursue any available remedy to protect its interests herein, as if this security deposit had not been made. If and when the premises is accepted by the Lessor at the expiration of the Lease, the security deposit together with interest less any expenses as provided above shall be returned to Lessee as satisfaction in full of Lessor's responsibilities relating thereto. Should the demised premises be sold, Lessor may transfer or deliver this security deposit to the purchaser of the interest, and Lessor shall then be discharged from any further liability with respect to the security deposit. 17. All damages or injuries done to the said premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing panelling or replacement of same if not repairable. 18. And the said Lessee hereby accepts notice to quit, remove from, and surrender up possession of the said demised premises to the said Lessor, as successor or assigns, at the expiration of the said term, whenever it may be detemined, whether by forfeiture or otherwise, without any further notice to that effect, all further notice being hereby waived. 19. Lessee shall have the right to erect an illuminated sign on Walnut Bottom Road provided it complies with all Borough regulations and is approved by the Lessor, whose approval will not be unreasonably withheld. 20. The Lessee will bear, pay and discharge when and as the same become due and payable all judgment and lawful claims for damages or otherwise against said Lessor arising form his use or occupancy of said leased premises and will assume the burden and expense of defending all such suits, whether brought before the expiration of this lease and will protest, indemnify and account of the use or misuse of the premises hereby leased or any part thereof, due to the negligence of the Lessee or his agents. 21. During the term of this lease, and any extension thereof, Lessee is granted a right of first refusal in the event Lessor receives a bona fide offer for the sale of the peemises. In the event lessor receives an offer, the terms of the offer will be communicated in writing to the Lessee who shall have thirty (30) days after the date of the written notice to execute an agreement under the same terms as the bona fide offer. The right of first refusal shall thereafter expire if Lessee does not sign an agreement. 22. Any notice provided herein shall be given in writing and shall be sufficient if delivered to the parties hereto at their usual place of business during regular business hours, in which even the notice shall be deemed given on the date of delivery or if sent by the U.S. Mail, postage prepaid, certified and regis- tered, addressed to the parties at their usual place of business, in which event notice shall be deemed given on the date of mailing. 23. And in consideration of securing the within Lease at the above stated rent, said Lessee does hereby release and discharge said Lessor, its successors or assigns, from any and all liability for damage that may result from the bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin, water- closet, steam pipe and drain and from all liability for any and all damage caused by the water, gas and steam, waste and contents of said water pipes, gas pipes, steam pipes, sewers, basins, water-closets and drains, except damages that might be attributed to Lessor. 24. This Lease contains the entire agreement between the parties and cannot be changed or terminated except by a written instrument subsequently executed by the parties hereto. This Lease and the terms and conditions hereof apply to and are binding on the heirs, legal representatives, successors and G ic.;, s of both parties. 25. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania. 26. Time is of essence in all provisions of this Lease. WITNESS the hands and seals of the parties, the day and year first above written. ATTEST: REG, INCORPORATED (Lessor) ' ,•.%?7.: .-f. r•l.?l.. _'y%t,?•/ C ?1. '•<.<. ?`./i'?• By: cC_'c", -)72. !t?^•'Y7Y'?.ii Secretary President WITNESS: ?? .a._ OWEN E. MEALS, JR. (Lessee) ROBERT C. BOYCE d/b/a UP PONDEROSA ENTERPRISES 44 PONDEROSA ROAD, CARLISLE, PA 17013 Tel: 717-245-2820 -Fax: 717-245-2800 bobboyce(dpa. net August 6, 2001 REG, Inc., 800 Belvedere St. Carlisle, PA 17013 Dear Mr. Barnhart, Pursuant to our conversation on July 17,2001; we expected to receive a set of keys to the offices at your address on or about July 31. 1 am reluctant to order stationery and changes to telephone and other services for the site until we have access to the premise. Understand that our current operation is cramped, we look forward to spreading out. As I indicated, my associates and I have looked at a number of facilities that will accommodate our business expansion, however, we believe your site affords us the best location of those available. We hereby officially inquire as to the availability. of the space. Will we have access to the premise in the near term? If the premise will not be available on or before August 10, 2001 please inform us. We would like to receive our deposit of $3300.00 that we may use it in the continuance of our business and the development of another site. Sincerely, _ R. Boyce EXHIBIT FN)Y, C [PIP)OU REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW NO. 02 - 766 CIVIL OWEN E. MEALS, JR., DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within document upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, PC 354 Alexander Spring Rd., Suite 1 Carlisle, PA 17013 Z O? Mark F. Bayley, Esquire Dated. Attorney for Plaintiff REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW NO. 02 - 768 CIVIL OWEN E. MEALS, JR., DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within document upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, PC 354 Alexander Spring Rd., Suite 1 Carlisle, PA 17013 Dated: Z S U?? Mark F. Bayley, Esq ' e Attorney for Plaintiff #6. REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. OWEN E. MEALS, JR., NO. 2002 - 0766 CIVIL TERM Defendant IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, EBERT, JJ.1 ORDER OF COURT AND NOW, this 6TH day of MARCH, 2007, upon review of the briefs filed by the parties in support of their respective position, and having heard argument thereon, Defendant's Motion for Summary Judgment is DENIED. By the"Court, rEdward E. Guido, J. VMlark F. Bayley, Esquire For the Plaintiff usann B. Morrison, Esquire J For the Defendant Court Administrator :sld 1 Judge Oler did not participate in the decision reached in this matter. LZu :C W J 9- TM L ? 0 Z ?. 3A JO f 1 REG, INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. OWEN E. MEALS, JR., Defendant NO. 02-0766 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S MOTION IN LIMINE WITH REGARD TO COUNT 2 - RRRACH OF CONTRACT - ISSITE OF ALTERATION OF PARKING. LOT AND NOW, comes the Defendant, Owen E. Meals, Jr., by and through his attorneys, Salzmann Hughes, P.C., and files this Motion in Limine as follows: 1. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Meridian Oil and Gas Rnt=rises Inc- v_ Penn Central Corp., 418 Pa. Super. 231, 239, 614 A.2d 246, 250 (1992), alloc. denied, 534 Pa. 649, 627 A.2d 180 (1993). The purpose of a motion in limine is twofold: (1) to provide the trial court with a pretrial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and (2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. Commnnwealth v Noll, 443 Pa. Super. 602, 605-606, 662 A.2d 11239 1125 (1995), alloc. denied, 543 Pa. 726, 673 A.2d 333 (1996). I J 2. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for alleged physical damages to the leased premises. 3. On or about August 28, 2001, a hearing was held before District Justice Correal at which Plaintiff raised the alleged physical damages to the premises. 4. In the Judgment, District Justice Correal did not award Plaintiff any damages for physical damage to the leased premises. 5. Neither party appealed from the Notice of Judgment in the District Justice action and the judgment was thereafter satisfied. 6. On or about February 12, 2002, Plaintiff filed its Complaint in this matter seeking damages for breach of contract in Count 2 for the alleged physical damages to the premises. 7. In particular, in Paragraph 29 A. of Plaintiff's complaint, he alleges that the "Defendant failed to restore the parking lot which he altered without permission." 8. Further, in Paragraph 29 B. of Plaintiffs complaint, he alleges that "[a]s a result of Defendant's unauthorized alteration of the parking lot, there is now a flooding problem on the subject property." 9. In Defendant's Answer with New Matter and Counterclaim, he asserted as New -2- e 6 Matter that the doctrine of Res Judicata applied to the issue of physical damages to the premises. Attached hereto as Exhibit A. 10. Specifically in Paragraph 60 in Defendant's Answer with New Matter and Counterclaim he stated the following: "As clearly identified on Exhibit "B," District Justice Correal did not award Plaintiff any monies for either physical damages to the leased premises or damages for unjust detention." 11. In its Answer to Defendant's New Matter and Counterclaim, Plaintiff responded in Paragraph 60 as follows: "Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001." Attached hereto as Exhibit B. 12. When questioned about the alleged alteration of the parking lot at his deposition taken on February 10, 2006, Earl Barnhart, President of REG, Inc., stated that the alleged alteration to the parking lot occurred within the first few years of Defendant's tenancy which began in 1991. See pages 26-29 of the Deposition Transcript of Earl M. Barnhart, 2/10/06, attached hereto and incorporated herein as Exhibit "C". 13. Accordingly, since the alleged alteration of the parking lot occurred seven to ten years prior to August 30, 2001 according to Plaintiff's own sworn testimony, and Plaintiff limited its damages to those occurring after August 30, 2001 in the pleadings, Plaintiff is precluded from raising the issue of alleged alteration of the parking lot at trial. -3- 1 t ' WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant's Motion in Limine and prohibit Plaintiff from raising the issue of the alleged alteration to the parking lot at trial. Respectfully submitted, SALZMANN HUGHES, P.C. By ? Susann B. Mo son, Esquire Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant Dated: March 9, nm -4- ' ? AND NOW, this 9th day of March, 2007, I, Susann B. Morrison, Esquire, of Salzmann Hughes, P.C., attorney for Defendant, hereby certify that I served a copy of the within Defendant's Motion in Limine this day by depositing the same in the United States mail on this date, addressed to: Mark F. Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 i Susann B. Morris n REG, INC. Plaintiff, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 0766 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED OWEN E. MEALS, JR., Defendant. ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW this day of February, 2003, comes the Defendant, OWEN E. MEALS, JR., by and through his attorneys, Irwin, McKnight & Hughes, and respectfully files this Answer with New Matter and Counterclaim to the Complaint of the Plaintiff, REG, INC., and in support thereof aver as follows: PARTIES I.*. The averments of fact contained in paragraph one (1) of the Plaintiffs Complaint are admitted. 2. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph two (2) so they are therefore specifically denied and strict proof thereof is demanded at trial. 3. The averments of fact contained in paragraph three (3) are denied as stated. It is admitted that during the term of the parties' lease, Defendant an owner and operator of a real estate business known as Re/Max Performance Realty. h:XHIBIT A 1 , , VENUE 4. The averments of fact contained in paragraph four (4) are admitted. BACKGROUND 5. The averments of fact contained in paragraph five (5) are denied as stated. It is admitted that Defendant entered into a Commercial Lease with Plaintiff on or about June 12, 1991. The Commercial Lease identified by Plaintiff as Exhibit A speaks for itself and therefore no further response is required. 6. The Commercial Lease referenced by Plaintiff in paragraph six (6) and identified as Exhibit A speaks for itself and therefore no response is required. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 7. The Commercial Lease referenced by Plaintiff in paragraph seven (7) and identified as Exhibit A speaks for itself and therefore no response is required. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 8. The Commercial Lease referenced by Plaintiff in paragraph eight (8) and identified as Exhibit A speaks for itself and therefore no response is required. To the extent that a response is required, any inference that Defendant caused damage or injury to the premises other than ordinary wear and tear is specifically denied and strict proof thereof is demanded at trial.. 2 I ' 1 1 9. The averments contained in paragraph nine (9) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 10. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph ten (10) so they are therefore specifically denied and strict proof thereof is demanded at trial. 11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eleven (11) so they are therefore specifically denied and strict proof thereof is demanded at trial. 12. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twelve (12) so they are therefore specifically denied and strict proof thereof is demanded at trial. 13. The averments contained in paragraph thirteen (13) are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied as stated and strict proof thereof is demanded at trial. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 14. The averments contained in paragraph fourteen (14) are denied as stated. It is admitted that on or about August 3, 2001 filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, in response to which Defendant gave notice of his intent to defend and timely filed a responsive Civil Complaint seeking among other relief abatement of rent and 3 lost business income. The remaining averments in paragraph fourteen (14) are specifically denied and strict proof thereof is demanded at trial. 15. The averments contained in paragraph fifteen (15) are denied as stated. It is admitted that following a hearing the Honorable Paula P. Correal entered judgments on August 30, 2001 awarding Plaintiff the net sum of $2,613.18, which amount represented one month of rent plus costs, less the sum of $500.00 awarded to Defendant by virtue of his Cross-Complaint. In addition, Plaintiff was granted possession. Any remaining averments in paragraph fifteen (15) are specifically denied and strict proof thereof is demanded at trial. 16. The averments contained in paragraph sixteen (16) are denied as stated. It is admitted that neither party appealed the judgments dated August 30, 2001 and entered by the Honorable Paula P. Correal. Any remaining averments in paragraph sixteen (16) are specifically denied and strict proof thereof is demanded at trial. 17. The averments contained in paragraph seventeen (17) are conclusions of law to which no response is required. 18. The averments contained in paragraph eighteen (18) are admitted. 19. The averments contained in paragraph nineteen (19) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 4 20. The averments contained in paragraph twenty (20) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 21. After reasonable investigation; Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-one (21) so they are therefore specifically denied and strict proof thereof is demanded at trial. COUNT I - BREACH OF CONTRACT 22. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 23.. The averments contained in paragraph twenty-three (23) are denied as stated. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 24. The averments contained in paragraph twenty-four (24) are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied as stated. By way of further answer, Plaintiff through his prior legal counsel initially offered to extend the term of the lease upon terms substantially agreed to by Defendant. 25. The averments contained in paragraph twenty-five (25) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 5 26. The averments contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 27. The averments contained in paragraph twenty-seven (27) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT II - BREACH OF CONTRACT 28. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 29. The averments of fact contained in paragraph twenty-nine (29) and all of its subparagraphs(A. - L.) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff sought recovery for alleged damages to the leased premises at the prior District Justice hearing, was not granted any recovery for the alleged damages, and failed to appeal from the District Justice judgment. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. 6 COUNT III - TRESPASS 30. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 31. The averments contained in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 32. The averments contained in paragraph thirty-two (32) are conclusions of law to which no response is required. To the extent that a response is' required, the averments are specifically denied and strict proof thereof is demanded at trial. 33. ' After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirty-three (33) so they are therefore specifically denied and strict proof thereof is demanded at trial. 34. The averments contained in paragraph thirty-four (34) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 35. The averments contained in paragraph thirty-five (35) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 7 WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. COUNT IV - WRONGFUL USE OF CIVIL PROCESS 36. - 41. Count IV and the averments contained in paragraphs thirty-six through forty- one (36 - 41) were dismissed pursuant to Order of Court dated November 18, 2002, and therefore no response is required. COUNT V - PUNITIVE DAMAGES 42. - 49. Count V and the averments contained in paragraphs forty-two through forty- nine (42 - 49) were dismissed pursuant to Order of Court dated November 18, 2002, and subsequent Order of Court dated January 2, 2003, therefore no response is required. COUNT VI - UNJUST ENRICHMENT 50. The averments of fact contained in the Defendant's Answers above are hereby incorporated by reference as if fully set forth below. 51. The averments contained in paragraph fifty-one (51) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendant paid Plaintiff the sum awarded by the Honorable Paula P. Correal in satisfaction of the District Justice judgment. 8 52. The averments contained in paragraph fifty-two (52) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 53. The averments contained in paragraph fifty-three (53) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just. NEW MATTER 54. The averments of fact contained in the Answers to the Complaint are hereby incorporated by reference and are made part of this New Matter to the Complaint of the Plaintiff. 55. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for physical and unjust detention damages and recovery of the leased premises. A true and correct copy of said Complaint is attached hereto and incorporated herein as Exhibit "A." 56. On or about August 21, 2001, Defendant filed a Cross-Complaint with the District Justice seeking among other relief, recovery of damages for Plaintiff s destruction of his property and lost business income for Plaintiff's refusal to repair the air conditioning and related systems at the leased premises in accordance with the parties' lease agreement. 9 57. On or about August 30, 2001, a hearing was held before District Justice Correal and subsequently she issued her Notice of Judgment. 58. At the District Justice hearing, Plaintiff also raised the alleged loss of a subsequent tenant referred to as Ponderosa Enterprises in Paragraph Ten (10) of Plaintiffs Complaint, and sought damages for the alleged loss of the tenant. 59. The Notice of Judgment issued by District Justice Correal found in favor of Plaintiff for rent in the amount of $3,034.00 per month and costs of $79.18, but was reduced by $500.00, which sum was awarded to Defendant under his Cross-Complaint. A true and correct copy of said Notice of Judgment with regard to both complaints is attached hereto and incorporated herein as Exhibit "B." 60. As clearly identified on Exhibit "B," District Justice Correal did not award Plaintiff any monies for either physical damages to the leased premises or damages for unjust detention. 61. District Justice Correal also did not award Plaintiff any damages for the alleged loss of a subsequent tenant. 62. Neither party.appealed from the Notice of Judgment in the above-referenced action. 63. Defendant vacated the leased premises on or before September 30, 2001, upon receiving the Order for Possession, Return and Notice on September 18, 2001, which stated that 10 eviction would commence on October 5, 2001 in the event that Defendant remained at the property through that date. 64. Plaintiffs instant action against Defendant is accordingly barred by the doctrines of res judicata and/or collateral estoppel. 65. Defendant paid Plaintiff the sum awarded by the Honorable Paula P. Correal in satisfaction of the District Justice judgment, in which Plaintiff was not given an award for any physical damages to the leased premises as Plaintiff sought in its Complaint. 66. • On or about April 23, 2002, a Certificate of Satisfaction was issued marking as satisfied the.prior District Justice judgment transferred to Docket Number 2002 - 786. A true and correct copy of the Certificate of Satisfaction is attached hereto and incorporated herein as Exhibit "C." 67. Plaintiff, having previously received consideration from Defendant on the causes of action on which the Complaint is based, is accordingly barred from here recovering against Defendant. 68. By correspondence dated August 6, 2001, Plaintiff, through its prior legal counsel, offered to extend the lease agreement between the parties for an additional two (2) months beyond the expiration of the lease. A true and correct copy of the letter dated August 6, 2001 is attached hereto and incorporated herein as Exhibit "D" 11 69. By correspondence dated August 9, 2001, Defendant, through his legal counsel, substantially accepted the terms of the offer to extend the lease term. A true and correct copy of the letter dated August 9, 2001 is attached hereto and incorporated herein as Exhibit "E." 70. Plaintiff's Complaint fails to state claims or causes of action upon which relief can be granted. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter, together with reasonable costs and attorney fees, and such other and further relief as this Court deems just COUNTERCLAIM 71. The averments of fact contained in the Answers and New Matter to the Complaint are hereby incorporated by reference and are made part of this Counterclaim to the Complaint of the Plaintiff. 72. Pursuant to the lease agreement between the parties, Defendant paid a security deposit of $2,100.00 to Plaintiff at the commencement of the lease term. 73. Defendant vacated the property by September 30, 2001, and on or about October 3, 2001 sent correspondence to Plaintiff requesting return of the security deposit and providing notice of a forwarding address. A true and correct copy of the letter dated October 3, 2001 is attached hereto and incorporated herein as Exhibit "F." 12 74. District Justice Correal did not award Plaintiff any monies for alleged physical damages to the leased premises, which alleged physical damages are substantially the same as those raised by Plaintiff in the instant action. 75. Furthermore, Plaintiff did not appeal from the District Justice judgment denying its request for an award for the alleged physical damages. 76. To date, Plaintiff has not returned the security deposit or any portion thereof to Defendant. WHEREFORE, Defendant Owen E. Meals, Jr., respectfully requests this Honorable Court to enter a judgment in his favor and against Plaintiff in this matter in the amount of $2,100.00, together with interest, reasonable costs and attorney fees, and such other and further relief as this Court deems just. Respectfully Submitted, Dated: February Q, 2003 IRWIN, McKNIGHT & HUGHES By: D? 01, ".4 - Doug 0s G. er, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendant, Owen E. Meals, Jr. 13 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. a I. /ail OWENE. MEALS, JR. Date: February 26 9 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REG, INC., Civil Action--Law Plaintiff Docket No. 02-766 V. C r? JURY TRIAL DEMANDED OWEN E. MEALS, JR. Defendant `' PLAINTIFF'S ANSWER TO DEFENDANT'S ' NEW MATTER AND COUNTERCLAIM =a AND NOW, comes the Plaintiff, REG, Inc., by and through its attorney, Karl E. Rominger, Esquire., and respectfully files this Answer to Plaintiff s New Matter and Counterclaim: NEW MATTER 54. No response is required. 55. Admitted. 56. Admitted. 57. Admitted. 5$. Admitted. By way of further answer, Plaintiff is seeking damages from the loss of the tenant which occurred after the date of the Notice of Judgment issued by District Justice Correal on August 30, 2001. 59. Admitted. 60. Admitted. By way of further answer, Plaintiff is seeking damages for the results EXHIBIT B of Defendant's actions which occurred after August 30, 2001. 61. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 62. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 63. Admitted in part and denied in part. It is admitted that Defendant vacated the leased premises on September 30, 2001. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to why it took Defendant a full month to vacate the premises after the Order of Possession was granted. By way of further answer, as of August 30, 2001 Defendant was a trespasser. 64. The averments contained in paragraph sixty-four (64) are conclusions of law to which no response is required. 65. Admitted. By way of further answer, Plaintiff is seeking damages for the results - of Defendant's actions which occurred after August 30, 2001. 66. Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001. 67. The averments contained in paragraph sixty-seven (67) are conclusions of law to which no response is required. 68. Admitted. By way of further answer, Defendant declined the offer. 69. Denied. Defendant declined the offer. 70. The averments contained in paragraph seventy (70) are conclusions of law to which no response is required. COUNTERCLAIM 71. No response is required. 72. Admitted. 73. Admitted. 74. Admitted in part and denied in part. It is admitted that District Justice Correal did not award Plaintiff monies for damages to the leased premises. It is denied that District Justice Correal adjudicated any issues regarding the security deposit, which did not become an issue until Defendant vacated the property. 75. Admitted. 76. Admitted. By way of further answer, Plaintiff provided Defendant with a detailed list of damages to the premises in its October 26, 2001 letter attached as Exhibit "A" which cites the reasons for withholding the security deposit. ~ WHEREFORE, Plaintiff, REG, Inc., respectfully requests this Court to enter a judgment in its favor and against Defendant in this matter, together with reasonable costs and attorney fees, and such other relief as this Court deems just. Respectfully submitted, ROMINGER & BAYLEY Karl E. Rominger, Esquire 155 S. Hanover St. Carlisle, PA 17013 (717) 241-6070 Supreme Court I.D.#81924 Attorney for Plaintiff 3-ld=d? Y VERIFICATION I, Karl E. Rominger, Attorney for REG Inc., verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. Date Karl E. Rominger Law Attorney for REG, Inc. . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 REG, INC., Plaintiff, vs. OWEN E. MEALS, JR., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. -2-766 CIVIL TERM ORIGINAL' DEPOSITION OF: DR. EARL M. BARNHART TAKEN BY: Defendant BEFORE: Amy R. Fritz, R.P.R. Notary Public DATE: February 10, 2006, 1:15 p.m. PLACE: Salzmann, Hughes & Fishman, P.C. 95 Alexander Spring Road Carlisle, Pennsylvania APPEARANCES:. ROMINGER, BAYLEY & WHARE BY: MARK C. BAYLEY, ESQUIRE FOR - PLAINTIFF SALZMANN, HUGHES & FISHMAN, P.C. BY: SUSANN B. MORRISON, ESQUIRE FOR - DEFENDANT ALSO PRESENT: Owen E. Meals Louanne G. Barnhart Reporting Services 57 • 71 7-258 3 657 • 717-258-0383 fax courtreporters4u Gaol, com rM1zBIT C 26 A. Well -- I can't remember to be honest. Q. I'm going to go through the list of different damages that are in your complaint starting with the parking lot. If you could just briefly describe what the issue is with the parking lot, or the parking lot alteration, as you call it. A. Okay. I can't remember what year it was, but my tenant liked to drive into the parking, hit the parking lot at 40 or 50 mile an hour. And, of course, his car always bumped and went up in the air. So the issue was -- first of all, let me say I think I was the first building in that 10.4 acres. And when it was paved, the borough gentleman came in and said we're paving Belvedere Street and we'd like to know, you know, you're at the bottom of Belvedere Street, it's a slope, and we'd like to know if we can leave an offset so that the water continues to go by your property; you will have a bump there, if we build that up, all the water will enter your property and you'll have a standing pool, it will be a problem in the winter, it will freeze. And so I said, well, gee, I appreciate your talking to me about it, yeah, I don't want that to happen, so please leave the onset there and myself and my tenants will know enough to be careful. So Mr. Meals asked me if after he had been 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there -- I'm guesstimating. I won't guesstimate; it hadn't been too long, though -- if I would have that built up there. And I said, no, that's for a purpose so that water doesn't drain onto my property and create a problem. So it was not long after that I went on vacation. And when I came back, first thing I noticed was that the, in the entrance there, that that had been built up. And shortly after that, the water started collecting a small lake on my parking lot and it freezes in the winter and people have trouble in there going in and can't stop on the ice.and people coming out -- Q. When did you notice this change in the road, or in the entrance to the parking lot? A. When I came back from vacation. Q. Do you recall when that might have been? A. No. Q. Do you recall a year? A. No. Q. You don't even know what year? A. No. I'd say -- Q. Ten years ago, five? A. Well, it wasn't long after my tenant was in, you know. That can be the first two or three years. I can't honestly recall. That's not an accurate answer. Q. And you're alleging that Mr. Meals here laid the 4 l, 28 macadam down in front of the parking lot? A. Who else would ask me before I went on vacation and I said no and when I came back it's there? Q. Did you see him? You were on vacation. Obviously you didn't see him. A. No. I was on vacation. Q. Did anybody - - do you know of anybody that saw 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him do this? A. No one reported it to me. Q. So you're just presuming that he did it since he mentioned it before you left for vacation and you came back and it had been changed? A. The borough had told me how they were going to do it, and that was very satisfactory to me. So there were only a few parties that were interested; the borough, who made the suggestion and did it the way they wanted it; myself, who agreed with it; and then the party that was complaining about it. So there were really only three parties. My suspicion, which is only a suspicion, is that someone called and may have represented me and asked the borough to do it because Q. Well, we're not going to worry about suspicions here today; we're trying to get the facts. So basically you're just presuming; you don't have any evidence that 29 Mr. Meals actually altered this parking lot; it's your presumption that he did. Is that correct? A. He was very disturbed when I wouldn't do it for him. And, as I said, he liked to hit there 40 mile an hour y5 in the mornings. Q. Okay. Thank you. You allege also that there are some broken window panes in the office. Can you tell 8 me where those panes are located? Let's start with the 9 first one. Tell me about one of the window panes and where 10 it's located. K1. 11 11 A. The one's inside the door as you enter the, as 12 you enter what was the front entrance, I would describe it 13 as. It's thefirst window on the left. 14 Q. As you're walking in, the first window on the 15 left? 16 A. Yes, on the left. That's where the windows that 17 open look out onto the parking lot. 18 Q. Is that the same window that had the 19 air-condi tioning unit in it? 20 A. That's the area where Mr. Meals put an 21 air-condi tioning unit into, a window unit. ves. 22 Q. Is it the same window that the air-conditioning 23 unit was put into that the cracked pane is located? 24 A. That's the same window that he put the 251 air-conditioning, Mr. Meals put a window air-conditioning { I ?? • !? ? r'} ,---- ?? -- ----a ? F ,.i , .' r- ? r,.. ? ? y7 1 l"l '??J ? Y • ?.? -.. ._ _.. : ..w.. . ?3 .. i _?>`?d ?, -? -"-° :? ".; -- y REG, INC., V. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-0766 CIVIL ACTION - LAW : JURY TRIAL DEMANDED OWEN E. MEALS, JR., Defendant DEFENDANT'S AMENDED MOTION IN LIMINE WITH REGARD TO COUNT 2 - BREACH OE CONTRACT - ISSUR OF ALTERATION OF PARKING LOT AND NOW, comes the Defendant, Owen E. Meals, Jr., by and through his attorneys, Salzmann Hughes, P.C., and files this Motion in Limine as follows: 1. Judge Guido and Judge Ebert ruled on Defendant's Motion for Summary Judgment and a bench trial is scheduled in the above-captioned matter before Judge Guido on March 19, 2007. 2. As far as present Counsel is aware, Plaintiff's Counsel opposes this motion. 3. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Meridian Oil and Chas F.nternrises Inc_ v. Penn (ventral Corp., 418 Pa. Super. 231, 239, 614 A.2d 246, 250 (1992), alloc. denied, 534 Pa. 649, 627 A.2d 180 (1993). The purpose of a motion in limine is twofold: (1) to provide the trial court with a pretrial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and (2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. Commonwealth v_ Nell, 443 Pa. Super. 602, 605-606, 662 A.2d 1123, 1125 (1995), alloc. denied, 543 Pa. 726, 673 A.2d 333 (1996). 4. On or about August 3, 2001, Plaintiff filed a Landlord and Tenant Complaint with the Honorable Paula P. Correal, seeking among other relief, payment for alleged physical damages to the leased premises. 5. On or about August 28, 2001, a hearing was held before District Justice Correal at which Plaintiff raised the alleged physical damages to the premises. 6. In the Judgment, District Justice Correal did not award Plaintiff any damages for physical damage to the leased premises. 7. Neither party appealed from the Notice of Judgment in the District Justice action and the judgment was thereafter satisfied. 8. On or about February 12, 2002, Plaintiff filed its Complaint in this matter seeking damages for breach of contract in Count 2 for the alleged physical damages to the premises. 9. In particular, in Paragraph 29 A. of Plaintiffs complaint, he alleges that the "Defendant failed to restore the parking lot which he altered without permission." -2- P 10. Further, in Paragraph 29 B. of Plaintiff's complaint, he alleges that "[a]s a result of Defendant's unauthorized alteration of the parking lot, there is now a flooding problem on the subject property." 11. In Defendant's Answer with New Matter and Counterclaim, he asserted as New Matter that the doctrine of Res Judicata applied to the issue of physical damages to the premises. Attached hereto as Exhibit A. 12. Specifically in Paragraph 60 in Defendant's Answer with New Matter and Counterclaim he stated the following: "As clearly identified on Exhibit "B," District Justice Correal did not award Plaintiff any monies for either physical damages to the leased premises or damages for unjust detention." 13. In its Answer to Defendant's New Matter and Counterclaim, Plaintiff responded in Paragraph 60 as follows: "Admitted. By way of further answer, Plaintiff is seeking damages for the results of Defendant's actions which occurred after August 30, 2001." Attached hereto as Exhibit B. 14. When questioned about the alleged alteration of the parking lot at his deposition taken on February 10, 2006, Earl Barnhart, President of REG, Inc., stated that the alleged alteration to the parking lot occurred within the first few years of Defendant's tenancy which began in 1991. See pages 26-29 of the Deposition Transcript of Earl M. Barnhart, 2/10/06, attached hereto and incorporated herein as Exhibit "C". 15. Accordingly, since the alleged alteration of the parking lot occurred seven to ten years -3- prior to August 30, 2001 according to Plaintiff's own sworn testimony, and Plaintiff limited its damages to those occurring after August 30, 2001 in the pleadings, Plaintiff is precluded from raising the issue of alleged alteration of the parking lot at trial. WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant's Motion in Limine and prohibit Plaintiff from raising the issue of the alleged alteration to the parking lot at trial. Respectfully submitted, SALZMANN HUGHES, P.C. By U AX . HMM? Susann B. Morrison, Esquire Attorney I.D. No. 77041 354 Alexander Spring Road, Suite 1 Carlisle, PA 17013 (717) 249-6333 Attorney for Defendant Dated: March 12,E -4- AND NOW, this 12th day of March, 2007, I, Susann B. Morrison, Esquire, of Salzmann Hughes, P.C., attorney for Defendant, hereby certify that I served a copy of the within Defendant's Motion in Limine this day by depositing the same in the United States mail on this date, addressed to: Mark F. Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 0 W CAW)Vj Q. - Susann B. Morrison ?.J t'? ??:a -. ,_. _..- _ l _ _,?, - ;,'y ? -??-.? 't.-^ Y` I I REG, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW OWEN E. MEALS, JR., DEFENDANT No. 02 - 766 Civil Term PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION IN LIMINE WITH REGARD TO COUNT 2-BREACH OF CONTRACT-ISSUE OF ALTERATION OF PARKING LOT AND NOW, comes Plaintiff, REG, Inc., by and though its attorney, Mark F. Bayely, Esquire, and answers Defendant's Motion in Limine with regard to Count 2- Breach of Contract-Issue of Alteration of Parking Lot as follows: 1. Admitted. 2. Admitted. By way of further answer, Plaintiff did not raise any issues regarding the parking lot at the district court hearing. 3. Admitted. By way of further answer, see paragraph 2 above. 4. Admitted. By way of further answer, see paragraph 2 above. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. By way of further answer, Defendant already filed motions for summary judgment with regard to the identical issue of Res Judicata which were denied by order dated March 6, 2007. 10. Admitted. 11. Admitted. By way of further answer, Defendant failed to repair the parking lot as 10 expected prior to actually vacating the property over a month after the district court I J hearing. As already argued, Plaintiffs current claims were not raised at the prior district court hearing because they 1) occurred in the month after the hearing, 2) had not yet been discovered, and/or 3) were anticipated to be fixed prior to Defendant's final surrender of the premises, See February 23, 2007 sworn affidavit by Earl Barnhart.' 12. Dr. Barnhart's deposition transcript speaks for itself. 13. Denied. By way of further answer, see paragraph 11 above. WHEREFORE, Plaintiff respectfully request that Defendant's motion be denied. Respectfully submitted, - - v -07 Mark F. Bayley, Esquire 57 West Pomfret Stree Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D.# 87663 Attorney for Plaintiff 1 Attached to Plaintiffs Answer to Defendant's prior motion for summary judgment. I If REG, INC., PLAINTIFF V. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 766 CIVIL JURY TRIAL DEMANDED ATTORNEY VERIFICATION MARK F. BAYLEY, ESQUIRE, states that he is the attorney for REG, Inc., Plaintiff in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: l ` Z7 ?o -7 ?A! Mark F. Bayley, uire Attorney for Plaintiff i REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW NO. 02 - 766 CIVIL OWEN E. MEALS, JR., DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within Plaintiffs Response To Defendant's Motion in Limine With Regard to Count 2-Breach of Contract-Issue of Alteration of Parking Lot upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, PC 354 Alexander Spring Rd., Suite 1 Carlisle, PA 17013 Dated: I ?Z - I Xk K"" Mark F. Bayley, Es ire Attorney for Plaintiff t.7 ?,;1C?.'t d .fl t cr, REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. OWEN E. MEALS, JR., Defendant NO. 02-0766 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of March, 2007, after having heard the testimony, and having thoroughly reviewed the exhibits, we enter the following Order: 1. With respect to Plaintiff's claims against Defendant, we find in favor of Plaintiff and against Defendant in the amount of $4,034.00, which represents the fair rental value of the premises for the month of September 2001. We find in favor of Defendant and against Plaintiff in connection with all remaining claims in the complaint. 2. With respect to Defendant's counterclaim against the Plaintiff, we find in favor of the Defendant and against the Plaintiff in the amount of $2,100.00, representing the security deposit with interest thereon. We find in favor of Plaintiff and against the Defendant in connection with all other matters raised in the counterclaim. 3. Our net verdict is in favor of Plaintiff and against Defendant in the amount of $1,934.00, with interest at the judgment rate from October 1, 2001. "`Ehe Court, Edward E. IF rk F. Bayley, Esquire r the Plaintiff /-usann B. Morrison, Esquire J or the Defendant srs Guido, J. a 90 :8 WV CZ 8vw LOU AdVIONO" i.108d HL d4 3 ")UP O-fl- TES MARK F. BAYLEY, ESQUIRE ATTORNEY ID NO. 87663 BAYLEY & MANGAN 57 WEST POMFRET STREET CARLISLE PA 17013 (717) 241-2446 ATTORNEY FOR PLAINTIFF REG, INC., PLAINTIFF V. OWEN E. MEALS, JR., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 766 CIVIL JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: The Defendant has satisfied judgment plus interest by forwarding payment to the Plaintiff rG)f?t' rt d .?'coa ?. `h k ?. in the amount of $2,586.05. The above-captioned matter is Date: Mark F. Bayley, Esq ire Attorney for Plaintiff % REG, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY PENNSYLVANIA V. CIVIL ACTION - LAW NO. 02 - 766 CIVIL OWEN E. MEALS, JR., DEFENDANT JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, do hereby certify that I this day served a copy of the within Praecipe upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Susanne Morrison, Esquire Salzmann & Hughes, P. C. 354 Alexander Spring Road, Suite 1 Carlisle, Pa 17013 -' ??01 Dated: Ctx? e 1'? Mark F. Bayley, Esqu' e Attorney for Plaintiff Q ?J