HomeMy WebLinkAbout04-5872
COMMONWEALTH Of PENNSYLVANIA
COURT Of COMMON PLEAS
CUMBERLAND COUNTY
NOTICE OF APPEAL
~
FROM
JUDICIAL DISTRICT
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No. t)Y - 5~ 7.;2 ~
NOTICE OF APPEAL
Notice is gi~ that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the
date and in the case mentioned below.
NAME OF APPELlANT
FRED GILBERT and JEAN GILBERT
ADDRESS OF APPELlANT
OTY
I w.G. DlST. NO OR NAME OF D.l.
09-3-01
STATE
z.. COOE
102 EAST ORANGE STREET, SHIPPENSBURG, PENNSYLVANIA 17257
~TE OF JlJDGMENT IIN THE CASE OF (Plaintiff I (Defendant I
11-10-04 JERRY and JANET FAHNESTOCK ~ FRED and JEAN GILBERT
ClAIM NO SIGNATURE OF APPELLANT OR HIS ATTORNEY OR AGENT
CV 19 CV-0000263-04 ~' ...)( A_" /JI.
LT 19 A:J" I ~ IRWIN & MCKNIGHT
This block will be signed ONLY when this notation is required under Po. R.CP JP. If appellant was CLAIMANT (see Pa. R.C.P.JP. No.
1oo8B.
This Notice of Appeal, when received by the District Justice. will operate as a 1001 (6) in action before District Justice, he MUST
SUPERSEDEAS to the judgment for possession in this case. FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
Signature of Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001 (7) in action before District Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee).
PRAECIPE: To Prothonotary
Enter rule upon
JERRY and JANET FAHNESTOCK . appellee(s), to file a complaint in this appeal
, Name of appellee( 5)
01 - S~)dl utA ) within twenty (20) days after service of rule or suffer entry of judgment of non pros.
I::J3:t:ddf~a~_a-
(Common Pleas No.
RULE: To
JERRY and JANET FAHNESTOCK
Nwne of appeI/fJe( 5)
, appellee(s).
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of
service of this rule upon you by personol service or by certified or registered maiL
(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.
Date:
YJtJ1) '. ~C)..,)O iJgJY-
pJ~~d_a_
(
(3) The date of service of this rule if service was by mail is the date of mailing.
AOPC 312-84
COURT FILE TO BE FILED WITH PROTHONOTARY
-- '
!
OF SERVICE OF OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN DA YS AFTER filing the notice of appeal. Check applicable boxes)
COMMONWEALTH OF PENNSYLVANiA
COUNTY OF_
- ; $$
swear or affirm that i served
a copy of the Notice of.Appeal. Common Pleas N<1.
(date of
by
. upon the District Justice designated therein on
service by (certified) (registered) mail, sender's
hereto. and upon the
. 1 'iL~___
and further that I served the Rule to File a
(iule WdS addressed on
attached hrj(elo,
(name) _ , on
service by (certified) (registered) mail, senders receipt attached hereto,
the above Notice of Appeal upon the appellee(s) to whom
. '1IL_~~ by service
SWORN
ME
THIS
Signature of affiant
SrgnafUft:!
Title 01 ollielai
My COrnrfl!);-)'Si"iP CXpdl;S
,19__
() :;;g
f;; ~ ~
-OS:.
co z ~:n
g;J rr. C
::!:-.:Ci
2:5;- <oC:
\~ ci5 '<~ "> iS~
~.,..
~6 ">
~o ~ -{ "7"
~o a:d
~ s;: w a~
~'...... z
=< .. :g
V\ - ::0
N -<
---J ~
~
~
.
.cOMMONWEALTH OF PENNSYLVANIA
COUNTY OF: CUMBERLAND
09-3-01
NOTICE OF JUDGMENTITRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME and ADDRESS
rjAHNESTOCK, JERRY & JANET -,
4944 S CLEVELAND AVE,B-31
FORT MYERS, FL 33907
L ~
Mag. Dist. No.:
DJ Name: Hon.
HAROLD E. BENDER
Address: 35 W ORANGE STREET
SHIPPENSBURG, PA
VS.
Telephone: (717) 532 -7676 17257 - 0361
DEFENDANT: NAME and ADDRESS
rGILBERT, FRED, ET AL.
102 EAST ORANGE ST
SHIPPENSBURG, PA 17257
L
Docket No.: CV- 0000263 - 04
Date Filed: 10/18/04
-,
ATTORNEY DEF PRIVATE :
DOUGLAS G. MILLER
IRWIN & MCKNIGH
60 W POMFRET ST
CARLISLE, PA 17013
~
THIS IS TO NOTIFY YOU THAT:
Judgment: " . FOR pT.~TNTTFF
[i] Judgment was entered for: (Name) ""'Rl'fRSTOC'f{, JRF'RY & J""lRT
[i] Judgment was entered against: (Name) cnT.RRRT, FRRn
in the amount of $
2,1 oeL 7~ on:
(Date of Judgment)
11/10/04
D Defendants are jointly and severally liable.
D Damages will be assessed on:
D This case dismissed without prejudice.
(Date & Time)
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
$ 2,000.00
$ 109.75
$ .00
$ .00
$ 2,109.75
D Amount of Judgment Subject to
Attachment/42 Pa.C.S. ~ 8127 $
D Portion of Judgment for physical
damages arising out of residential
lease $
Post Judgment Credits $
Post Judgment Costs $
------------
------------
Certified Judgment Total $
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COpy OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER
ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT
OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY F!LE
A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES,
OR OTHERWISE COMPLIES WITH THE JUDGMENT.
//- /{J---O! Date
JI~ i- ~
, District Justice
I certify that this is a true and correct copy of the record of the proceedings containing the judgment.
Date
, District Justice
My commission expires first Monday of January, 2006 .
SEAL
AOPC 315-03
DATE PRINTED:
11/16/04
8:45:51 AM
~~'\lt!lt'l...." _
~.~- -~
- . ~'.....-~---""......_..~~~_.............,... ~_IB8:I~""_ 'l'.7'I~rn:-""""'_____"'T1"I'!"J'I'~~~~:;~
COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
I ,;':;~I.AND COmrfY
JUDICIAL DISTRICT
~IOTICE OF APPEAL
FROM
DISTRfiCT JUSTICE JUDGMENT
COMMOII\I PLEAS No. ,.~'V. _ .;~::. 7.;.) /;../-tt:/'
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the
date and in the case mentioned below.
NAME OF APPB.LANT
F'REJJ GTLBERT and JEAN GILBERT
ADORfSS OF APf'E1J.ANT
OTY
~ MJG. 0151 NO OR NAME OF OJ.
09-3-01
STATE
ZIP CODE
102 EAST ORANGE STREET, SlUPPENSBURG, PENNSYLVANIA 17257
D.l.TE OF JUDGMENT IN THE CASE OF (PlaintIff)
(Defendant )
t 1-.1 ()-..04
ClAIM NO.
JERRY and JAa."'aT FAHNESTOCK vs. f'PED and JEAN GILBERT
SIGNATURE OF APPelLANT HIS ATTORNEY OR AGENT
CV 19-
LT 19
This block will be signed ONLY when this notation is required under Po. R.CP.J.P. a.
1008B.
This Notice of Appeal, when received by the District Justice, will operate as a
SUPERSEDEAS to the judgment for possession in this case.
CV-0000263-04
,__" '_h. /7
,~)ft t l
'7 /1'
/~ //l~ JRWHl &, MCKNIGHT
If appellant was CLAIMANT (see Pa. R.C.P.JP. No.
1001 (6) in action before District Justice, he MUST
FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
Signature of Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appelfant was DEFENDANT (see Pa. He.p.,J.P. No. 1001 (7) in action before District Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee).
PRAECIPE: To Prothonotary
Enter rule upon
JERRY and JA:RKT FAmc"ESTOCf. ,appellee(s), to file a complaint in this appeal
. Name of appellee(sJ
~ - :- S" 7<:) 6,;J ) within twenty (20) days after service of rule or suffer entry of judgment of non pros.
/,---.., /1"
(Common Pleas No.
RULE: To JERRY and. JAHET FAHNESTOCK
Name of appeJl(re( s J
, appeIlee(s).
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of
service of this rule upon you by personal service or by certified or registered maiL
,... ~ . .
'. ,'.,,;'
(2) If you do ,not-~a cOmplbint within this time, a JUDGMENT Of NON PROS WILL BE ENTERED AGAINST YOU.
,/
(3) The daf!!of '~rvice of this rule if sety~ was by mail is the date of mailing.
.....-""
"of' . .'7
, ......~
/ /,/
I~ .'
/ <7 /J! 'J ;.
'/' ~. . -~"-"""""
J
Date:
>/,':1") c"J';;' ,~d(~'I,/
"
.. '1,'\",....".......
10PC 312-84
COURT FILE
AlED-OFRCE
OF THE PROTHONOTARY
200~NOV 24 PM I: ~3
CI !~,'t,P';':;:I; -'(.). i'~NTY
'wi VJ........_. ,.....~-~ tJ""'" \..iJ
PENI~~?lvAN
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice of appeal, Check applicable boxes)
cOMMONWEALOF PENNSYLVANIA
COUNTY OF _~A..l~ ICL{\d
; liS
AFFIDAVIT: I hereby swear or affirm that I served
~ a copy of the Notice of Appeal, Common P e ~-upon the District Justice designated therein on
(date of service) , by personal service ~y (eertHi d) (registered) mai , sender's
,
^ r~eipt aUa heel her t . an~o/the appellee. (name) r. ( . e , on
{VA , 1.@; oJ- 0 by personal service f2'?by ( Ified) (registered) mail, sender's receipt attached hereto
~nd further that I served the RulE!!o Fi!(;HI Complaint ac.cpmpa~ifbove Notice of Appeal upon the appellee(s) to whom
the Rule was addressed on ^~m I:J.er d~ 0 by personal service ~by (certified) (registered)
mail, sender's receipt attached hereto. dJ ~,'
SWORN (AFFI~ED) AND SUBSCRIBED BEFORE ME . _ . "~ " 1..' I;
THIS:;JqJ~ DAY OF ,~CL( _ ,CJ..CLLJ ~-~~71...~ -
~ '._ j e--' Signature of affiant
---~:.:-:) .,/ ~
--
~~CJ' ------
Title of official i
My cOmmisslOn oxplres on
,19_
IT'
l'-
I:(J
..D
CJ
l'-
l'-
U1
Postage $
::r-
CJ
CJ Retum Reclept Fee
CJ (Endorsement Required)
CJ Reslrlcled Delivery Fee
~ (Endorsement Required)
~
fT1 Total Postage & Fees $
1'/'
Certified Fee
..D
I:(J
I:(J
..D
CJ
l'-
l'-
U1 Postage $
::r- Cerllfied Fee
CJ
CJ Retum Reclept Fee
CJ (Endorsement Required)
CJ R98lricled Delivery Fee
~ (EndorSement Required)
~
fT1 Total Postage & Fees $
fT1
CJ
CJ
l'-
<'\, ;
-\ ...-
~~.: . ( + \
,,- '~aik(,._,
l~." .~.~ >.
~" s,~J~';~";~:~~\'
"j!.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JERRY L. FAHNESTOCK and NO.OLf -SJ>7J.." Civil Term
JANET FAHNESTOCK, Husband and Wife,
dlb/aI ARCTIC ICE,
Plaintiffs
F][LED PURSUANT TO
CIVIL APPEAL FILED TO
CV -04-5872
FROM JUDGMENT
ENTERED IN FAVOR OF
PI.JAINTIFFS
v.
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by B:ttomey and 1iling 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. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Lawyer Referral Service
Cumberland County Bar Associiation
32 South Bedford Street
Carlisle, Pennsylvania 1701.3
717-249-3166 OR 1-800-990-9108
WEIGLE & ASSOCIATES, Pc. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband and Wife,
d/b!a! ARCTIC ICE,
NO. (JCf~~f1.L, Civil Term
Plaintiffs
F1LED PURSUANT TO
CIVIL APPEAL FILED TO
CV -04-5872
FROM JUDGMENT
ENTERED IN FAVOR OF
PLAINTIFFS
v.
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
COMPLAINT
AND NOW come the Plaintiffs, Jerry L. Fahnestock and Janet Fahnestock, husband
and wife, d/b/a! Arctic Ice, an unincorporated sole proprietorship, by and through their attorney,
Jerry A. Weigle, Esquire, and Weigle & Associates, P.C., and in support of their claim, state
the following:
1. The Plaintiffs are Jerry L. Fahnestock and Janl~t Fahnestock, husband and wife,
d/b/a! Arctic Ice, an unincorporated sole proprietorshi.p, whose present address is 452 East
King Street, Shippensburg, Cumberland County, Pennsylvania 17257.
2. The Defendants are Fred Gilbert and Jean Gilbert, husband and wife, whose present
address is 102 East Orange Street, Shippensburg, Cumberland County, Pennsylvania
17257.
3. Plaintiffs and Defendants entered into an oral lease a.greement in the summer of 1997 for
the summer seasonal use of a shed belonging to the Defendants located at 323 East King
Street, Shippensburg, Cumberland County, Pennsylvania, to allow Plaintiffs to operate a
business known as Arctic Ice.
4. Plaintiffs, with the permission of the Defendants, renovated the shed by installing a floor,
windows, a door, electricity, lights, fans, signage, and insulation. Plaintiffs also leveled the
ground and spread a truckload of stone at the site for parking for customers.
5. The cost of the improvements totaled Two Thousand Nine Hundred Ninety-nine Dollars
and Nineteen Cents ($2,999.19).
6. The monthly rental amount was One Hundred Fifty Dollars ($150.00) per month during
the summer months and Fifty Dollars ($50.00) per month during the winter months.
WEIGLE & ASSOCIATES. RC. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397
7. All rental payments due and owing under the oral lease agreement between the parties have
been paid and were tendered to the Defendants when due.
8. The rents charged by the Defendants to the Plaintiffs were fair and reasonable rents for the
type of premises rented in the Shippensburg community.
9. Plaintiffs operated their business at said site for seven (7) summers until the lease
agreement was terminated in August of 2004, by the Defendants.
10. At all times relevant hereto, Plaintiffs were given the impression by the Defendants that
Plaintiffs would be given the opportunity to own the: premises upon which the shed was
located or would otherwise be compensated for the physical improvement investments to
Defendants' property which were made.
11. To allow the Defendants to keep the improvements made to their property by the Plaintiffs
without paying for them would unfairly and unjustly enrich the Defendants at Plaintiffs'
expense.
WHEREFORE, Plaintiffs demand judgment against the Defendants in the amount of Two
Thousand Nine Hundred Ninety-nine Dollars and Nineteen Cents ($2,999.19) plus filing fees and
costs of suit plus interest at the legal rate.
WEIGLE & ASSOCIATES, P.C.
By:
9.2-
Jerry A. \Veigle, Esq
Attorney for Plaintiff
Attorney ID #01624
126 East King Street
Shippensburg, P A 17257
717-532-7388
By:
WEIGLE & ASSOCIATES. P.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904,
relating to unsworn falsification to authorities.
ARCTIC ICE
Dated: l:t - / 3'" .:too~
P ~~~~ ",
By: ~ r;'~~ .:;~~~.~C
rry L..F aIuiestock
Dated: J rI-- I ~ d-c.Je-.;<.-r
~ ~ ~,
By: I" -J ' {1 ~,~;z;.,-I,,-
I" anet Fahnestock
f
~/
WEIGLE & ASSOCIATES, Pc. - ATTORNEYS AT LAW - 126 EAST KING STREET -- SHIPPENSBURG, PA 17257-1397
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband
And Wife, d/b/a ARCTIC ICE,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2004-5872 CIVIL TERM
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
: CIVIL ACTION. LAW
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed Answer with New
Matter within twenty (20) days from service hereof or a judgment may be entered against you.
IRWIN & McKNIGHT
D uglas
Supreme our! I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
Date: June 16,2005
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband
And Wife, d/b/a ARCTIC ICE,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2004-5872 CIVIL TERM
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
CIVIL ACTION. LAW
ANSWER WITH NEW MATTER TO
PLAINTIFF'S COMPLAINT
AND NOW this ~ay of June, 2005, come the Defendants by and through their
attorneys, Irwin & McKnight, and respectfully files this Answer with New Matter to the
Plaintiffs' Complaint, and in support thereof aver as follows:
1. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph one (I) of the
Plaintiffs' Complaint so they are therefore specifically denied and strict proof thereof is
demanded at trial.
2. The averments of fact contained in paragraph two (2) are admitted.
3. The averments of fact contained in paragraph three (3) are admitted.
4. The averments of fact contained in paragraph four (4) are denied as stated. It is
admitted that certain limited improvements were approved by Defendants. The remaining
averments in paragraph four (4), including any inference that Plaintiffs requested pennission for
all of the renovations listed, is specifically denied and strict proof thereof is demanded at trial.
5. After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph five (5) so they
are therefore specifically denied and strict proof thereof is demanded at trial.
-
6. The averments of fact contained in paragraph six (6) are denied as stated. The
initial monthly rent was Forty ($40.00) Dollars per month, which was subsequently increased to
Fifty ($50.00) Dollars per month. More recently the rent was increased again to One Hundred
Fifty ($150.00) Dollars per month during the summer months, and Fifty ($50.00) Dollars per
month during the rest of the year.
7. The averments of fact contained in paragraph seven (7) are admitted.
8. The averments contained in paragraph eight (8) 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.
9. The averments of fact contained in paragraph nine (9) are denied as stated. It is
admitted that Plaintiffs operated their business on the Defendants' property through the end of
the summer of 2004. It is also admitted that at the beginning of the summer of 2004, Defendants
informed Plaintiffs that they should start looking for another location for their business.
10. The averments of fact contained in paragraph ten (10) are specifically denied and
strict proof thereof is demanded at trial. By way of further answer, at no time did Defendants
agree to transfer ownership of the property to Plaintiffs or compensate Plaintiffs for any of their
expenses. In fact, Plaintiffs were informed on numerous occasions that the operation of their
business interfered with Defendants' use and rental of the residential home on the property and
primarily for that reason did not increase the value of Defendants' property.
11. The averments contained in paragraph eleven (11) 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,
Defendants do not believe any of the actions undertaken by Plaintiffs to have been improvements
to the property. In fact, the operation of Plaintiffs business interfered with Defendants use and
rental of the residential home on the property, and primarily for that reason did not increase the
value of Defendants' property.
2
. .
WHEREFORE, Defendants respectfully request that this Honorable Court enter a
judgment in their favor and against Plaintiffs in this matter.
NEW MATTER
12. The averments of fact contained in the Defendants' Answers to the Complaint are
hereby incorporated by reference and are made part of this New Matter to the Complaint of the
Plaintiffs.
13. Plaintiffs were informed on multiple occasions that the operation of their business
was interfering with the use by Defendants' tenants of the home located on the property.
14. Plaintiffs' business patrons consistently blocked access to the residence, and
parked vehicles in the parking spaces paid for by Defendants' tenants, even after Defendants had
signs installed over said parking spaces.
15. Plaintiffs continued to expand their business, and thereby increase its detrimental
effect to the rest of Defendants' property, without the consent of Defendants.
16. As a result, early in the summer of 2004, Defendants requested that Plaintiffs start
looking for another location for their business for after the end of the 2004 business season.
17. Defendants thereby provided adequate advance notice to Plaintiffs of their desire
not to renew the oral lease for another year.
18. Almost all of the alleged improvements claimed by Plaintiffs were performed in
the beginning of their first season of operation.
3
-
. .
19. Upon information and belief, Plaintiffs depreciated their alleged expenses on their
applicable business and income tax records.
20. Upon information and belief, Plaintiffs have realized income in excess of any
alleged expenses incurred by them.
21. Plaintiffs have realized the benefit of the expenses alleged to have been incurred.
22. The alleged improvements have not appreciably increased the value of
Defendants' property.
23. Defendants did not agree to transfer their property to Plaintiffs or to compensate
them for any expenses they allege were incurred.
24. Any "impression" Plaintiffs may have had regarding the transfer of the property
does not meet the requirements of the Statute of Frauds.
25. Plaintiffs' Complaint fails to state claims or causes of action upon which relief
can be granted.
WHEREFORE, Defendants respectfully request this Honorable Court to enter a
judgment in their favor and against Plaintiffs in this matter, together with reasonable costs and
attorney fees, and such other and further relief as this Court deems just
Respectfully Submitted,
IRWIN & McKNIGHT
June 16,2005
By:
Dougla G. Miller, Esquire
Supreme Court ID # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Defendants
4
. .
VERIFICATION
The foregoing document is based upon information which has been gathered by our
counsel and ourselves in the preparation of this action. We have read the statements made in this
document and they are true and correct to the best of our knowledge, information and belief. We
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.
':L~ ~
FRED GILBERT
iiJa,>,/4t?kX
J N GILBERT
Date: June 16, 2005
. .
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 facsimile and by first class
United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
Jerry A. Weigle, Esquire
Joseph P. Ruane, Esquire
126 East King Street
Shippensburg, P A 17257
(Attorney for Plaintiffs)
Date: June 16,2005
IRWIN & McKNIGHT
D~fq~
Supreme Court ill # 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
Attorney for Defendants
----
rj
!:"'
r-'
~i;
':J'l
"
-.,
.-1
I"
hlp~
-r}(II
,1'l:'
(\( )
:+.
'L'11
{.'.~ ~~.~
)
,
h,
'1]
'-<
c.....-:
';;'.:::
".:-
0'
::;.-
'-"
~ -
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband and Wife,
d/b/a! ARCTIC ICE,
NO. 2004-5872 Civil Term
Plaintiffs
FILED PURSUANT TO
CIVIL APPEAL FILED TO
CV-04-5872
FROM JUDGMENT
ENTERED IN FAVOR OF
nAlNTlFFS
v.
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
ANSWER TO NEW MATTER
AND NOW, this 12th day of July, 2005, come the Plaintiffs by and through their attorney,
Jerry A. Weigle, Esquire, and Weigle & Associates, P.C., who file this Answer to New Matter
filed by the Defendants, and in support thereof aver as follows::
12. Defendants' answers incorporated into their New Matter require no further response from
the Plaintiffs.
13. Admitted in part and denied in part. It is admitted that Plaintiffs were informed by
Defendant Jean Gilbert on several occasions during the last two (2) seasons of a seven (7)
year relationship that patrons of Plaintiffs' business were parking in a tenant parking space.
It is denied that this interfered with any tenant use of their home or that this was a big
problem for the Defendants, and strict proof to the contrary, if at all relevant to this
proceeding, is demanded at trial. By way of further answer, when advised of a parking
problem, Plaintiffs corrected the problem immediately and installed appropriate signage in
an effort to minimize the problem.
14. Denied. Plaintiffs' answer to paragraph 13 of Defendants' New Matter is incorporated
herein by reference thereto.
IS. Denied as stated. Plaintiffs did, in fact, place a few chairs in close proximity to the
refreshment stand for the convenience of customers with not only the consent of the
Defendants, but with their physical help as well. It is specifically denied that the Plaintiffs'
actions had a detrimental effect to the rest of Defendants' property, and strict proof to the
contrary is demanded at trial.
16. Admitted in part and denied in part. It is admitted that Defendant Fred Gilbert told
the Plaintiffs that they would no longer have access to Defendants' improved shed
beyond the 2004 business season. It is denied that lIDS information was conveyed in
"early summer" of 2004. By way of further answer, it is believed and, therefore, averred
that Plaintiffs were not given this information until late July or early August of 2004,
and then only orally.
WE1GLE & ASSOCIATES, RC. - ATTORNEYS AT LAW - 126 EAST KING STHEET ~ SHIPPENSBURG, PA 17257-1397
I
17. Denied as stated. It is specifically denied that adequate notice was given to the Plaintiffs to
remove themselves from the Defendants' property given that they occupied the
Defendants' premises for seven (7) seasons with no indication of the Defendants' plans to
remove them. By way of further answer, the oral lease in question was not an oral year-to-
year lease as implied by paragraph 17 of the New Matter, but, rather, a lease whose terms
would run until Defendants would decide to sell their real estate premises to the Plaintiffs.
18. It is admitted that the great majority of improvements made 0 the Defendants' property by
the Plaintiffs occurred during the first season of occupancy the Plaintiffs.
19. Denied.
20. Admitted in part and denied in part. It is admitted that Plaintiffs earned income from their
hard work and investment made in Defendants' shed property. It is specifically denied that
this fact bears any relevance to the legal issues before the Court in this proceeding and
strict proof to the contrary is demanded at trial.
21. Admitted in part and denied in part. Plaintiffs' arlswer to paragraphs 19 and 20 of
Defendants' New Matter are incorporated herein by reference thereto.
22. Denied. The Defendants are without sufficient information to form a belief as to the truth
or falsity of this allegation and strict proof thereof, it at all relevant to this proceeding, is
demanded at trial.
23. Denied as stated. Paragraphs 12 through 22 of Plaintiffs' Answer to New Matter are
incorporated herein by reference thereto. By way of fUrther answer, Defendants stated to
Plaintiffs that they would "work this out" with them if Plaintiffs were not able to acquire
Defendants' real estate as originally envisioned by the parties hereto.
24. This is a conclusion of law and, therefore, does not require a response.
25. This is a conclusion oflaw and, therefore, does not require a response.
WHEREFORE, Plaintiffs reassert their demand for judgment against the Defendants in the
amount of Two Thousand Nine Hundred Ninety-nine Dollars and Nineteen Cents ($2,999.19) plus
filing fees and costs of suit plus interest at the legal rate.
WEIGLE &. ASSOCIATES, P.cr.
"
a.WI
rry A. dgle, Esquire
ttorney for Plaintiff
Attorney ID #01624
126 East King Street
Shippensburg, PA 17257
(717)532-7388
WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STFtEET - SHIPPENSaURG, PA 17257-1397
Il
I
VERIFICATION
I verify that the statements made in the foregoing Answer to New Matter are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
4904, relating to unsworn falsification to authorities.
ARCTIC ICE
Dated: 7-/..2-0.1.-
By: ,2u ~a~~5- ?"
~hnestock
WEIGLE & ASSOCIATES. PC. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397
t;2
1"-'
"'"
C-'
d'
c.-
c~
C
1;".)
-
C)
-n
--'
--:C-....,..-;
\"n;;r.
C)
~.~~
(-;:
o
c...,:'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband and Wife,
d/b/a! ARCTIC ICE,
NO. 2004-5872 Civil Term
Plaintiffs
FILED PURSUANT TO
CIVIL APPEAL FILED TO
CV -04-5872
FROM JUDGMENT
ENTERED IN FAVOR OF
PLAINTIFFS
v.
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT;
Jerry L. Fahnestock, one ofthe Plaintiffs in the above action, respectfully represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $2,999.19 plus filing fees and costs of suit plus interest at the
legal rate.
The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators:
Jerry A. Weigle, Esquire
Richard L. Webber, Jr., Esquire
Joseph P. Ruane, Esquire
Thomas L. Bright, Esquire
Douglas G. Miller, Esquire
Roger B. Irwin, Esquire
Marcus A. McKnight, III, Esquire
Matthew A. McKnight, Esquire
WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case
shall be submitted.
Respectfully submitted,
..
AND NOW,
ORDER OF THE COURT
~
, 2001, in consideration of the foregoing Petition,
, Esquire,
, Esquire,
and
as prayed for.
, Esquire, are appointed arbitrators in the above-captioned action
By the Court,
P.J.
~ ......, 0
=
D = .."
0""
~ f tI) ::!l: ~.,.,
. ;%;'" m-~
~ -< ~.O h-i
N :r:;O
W '...}. c;:.\
~ f! ,-_. ~;
'-... -0 ::'5:D
;; U,J ::it 70
Om
-- JY 'j;!
~ l :n
....{) co .<
--..
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JERRY L. FAHNESTOCK and
JANET FAHNESTOCK, Husband and Wife,
d/b/a! ARCTIC ICE,
NO. 2004-5872 Civil Term
Plaintiffs
FILED PURSUANT TO
CIVIL APPEAL FILED TO
CV -04-5872
FROM JUDGMENT
ENTERED IN FAVOR OF
PLAINTIFFS
v.
FRED GILBERT and
JEAN GILBERT, Husband and Wife,
Defendants
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT;
Jerry L. Fahnestock, one of the Plaintiffs in the above action, respectfully represents that:
I. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $2,999.19 plus filing fees and costs of suit plus interest at the
legal rate.
The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators:
Jerry A. Weigle, Esquire
Richard L. Webber, Jr., Esquire
Joseph P. Ruane, Esquire
Thomas L. Bright, Esquire
Douglas G. Miller, Esquire
Roger B. Irwin, Esquire
Marcus A. McKnight, III, Esquire
Matthew A. McKnight, Esquire
WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case
shall be submitted.
Respectfully submitted,
.
ORDER OF THE COURT
AND NOW, ~. :z , 200;' in considerat.ion of Ahe foregoing Petition,
I.-J~e ~ ,E~,.., ?j:/Nud ii, xJA-<~ ,""''''
and / 'IfJ. if;L , Esquire, are appointed arbitrators in the above-captioned action
as prayed fo . Bythe~~
~v~\s&'1~
, PJ.
j i ,0 .~
~. .:1'
~ ..... (i:J ::.:-)
7" \ wO -- -:-:1
0 ~.;?t~} 4
i..\_"::;"-
" '6~
'be' N
c:.. I
OJ.().... -z:
ft~ ?
{:) ->
'? 'B ~
\
(.:) -l.O.. ~ ~
- ~
~ ~ V') - ~~
-
~ ~
N ,,'om
:DO
v:> 'J'
- "'\> fl ':~(?,
-0 :'S:P
-:-t W :;:>:. ,,,,0
.._.....\~n
"';) - ~ 0
,00\
~ 1- - ~
cs:> .:<
-
Ja,/2.Y' L IWPjAtJU r:;HP'~'<!1C. ,l-fv.!""j f Won:
Plaintiff
In The Court of Co=on Pleas of Cumberland
County, Pennsylvania No. tJ'/ - S"€ 7 'Z-
FfI/4iJ Iill-fbtIZ;( 1'r11f) .Jflt,J C-IL8!ttr
Defendant
Civil Action - Law.
Oath
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United
States and the Constitution of this Co=onwealth and that we will discharge the duties of our office
with fidelity.
M;)ke~
Signature
~u-
~~OV'1 H'IL:lAr~.kT-
. Name .
/4J,;wf- sfk~c/~
Law Finn P. C
II. n. oM. ~~ [)V/.~f2
Address t; c. de 17
c: -$ Ie. ~"'... {va~
City, Zip ( ~
J<J/.:Jol'
Award
We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
lv,,-,-,tr/'\ e. ((.,~
N= (Chairman)
(~1tS It,d 1d""fOY
Law Firm
IflN Fe/lllWCoD ~ 5TC 10<1'
...
Address
C,f/ofl'tfIU... ,I'~ /7011
City, Zip
'" 1/:>'3'7
~
~
7j(O l7NV O-f(;(.,eL
wFIl'IIl J
.z~ ~. PNI5/-.
Adlrc.u
(Ar/i~/l f#
City, , Zip
/ ,/O/:!;
"/il 1/9
~J~~.~~~~~~
"
~"
. Arbitrator, dissents. (Insert name if applicable.)
-11 'h' 1Jk:&- .,.
L :. " .,"
d '.U.L :j. ""'., ". l-fl:'t......
. G:.~~~)~
/f;;t, . ~ -=..
Notice of Entry of Award
Date. of Hearing:
Date of Award:
~/rbl/){.
,
Now, the ,;.J~"""" day of a -.../- ,20 at., , at 'Y: /7 , Po .M., the above award was
entered upon the docket and notice ther/of given by mail to the parties or their attorneys.
Arbitrators' compensation tp be paid upon appeal: $ .:290.00
By:
Deputy
~~
(")
c:
".
-00.':
mrr"
.,;::. '~.--:
B~\
.'-(
~~;
:?;( .
)> -'
c:
~
~ tt ?'/...it.,;)4~
~ (1 w~'~.
.....
=
"'"
""
,....
c:
c'">
N
N
-0
::It
.s:-
~
~~
(39
::jQ
:,~i1
:-:,/0
---m
9
55
'<
-.l
J~/2.a-Y L fWDJAlJtr r-;HP~rr~el<:. 1 Hihb4IJJ f w'Pi.
Plaintiff
In The Court of Common Pleas of Cumberland
County, Pennsylvania No. 1.7 Y - ~6 7 L
FlyfJJ G-lt..(bf.{Z.f In/v -JCIrP c;;./L'PJf/l(
Defendant
Oath
We do solemnly swear (or affinn) that we will support, obey and defend the Constitution of the United
States and the Constitution of this Commonwealth and that we will discharge the duties of our office
with fidelity. ...
L{~e~ q~~ frl~fv1
Signature Sl~ ------i
a~C'V~ H.ILIA,tkt-
Name
(~r-7ttt ~kt7c,~
Law Firm Pc C
II {It>>J.. t{)(~ VV/~
Address, t; t( f Fe. f3
Cv -$ Ie Pe",~ (V~~
City, Zip I >
Jt JJ;) ~ l'
Award
We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
lu I ~(. 11l-t\ e... k:, i..4!.
Name (Chairman)
I~u..~ A-"J kfwJ./€i>Y
Law Finn
1/0'1 leA!(,'W(.'.:D ~ sre 10</
-+
Address
CI-I1Y rflt..-L. I ~Ir 170ft
City, Zip
JlI/>3~
Civil Action - Law.
~h.r~ ~ch
Name
71(~ 4.w (){(;~eL
w Frrm .../
-Z~ ~. Plt!.5f.
Acl"c.u
(a.r/i!:Jll rtf
City, , Zip
1'1013
61dl ,. / if
)}Jr'~ ~.:..~ (j 14u.. ~~
. Arbitrator, dissents. (Insert name if applicable.)
Date. of Hearing:
~ f" lOb
,
'~)k e.~
G:,~~- ".
4;:t; - --~ ~ ~~~,.~ , IJ
Notice of Entry of Award . ~.o
Now, the .;;;)~ day of ~ ' 20 0 (" , at iI: / 7 , P.M., the above award ~ V
entered upon the docket and notice thereof given by mail to the parties or their attorneys.
Date of Award:
Arbitrators' compensation to be paid upon appeal: $ :290. tJD
By:
Deputy
~~
8'. ()~
(') I"..)
= (')
c <:;;;;> "'r1
.;:-,- f..:::T'\
::1> ~:D
" ~~..~
C-" r-
N =-~~f j);
Q
N (~)
.--.""!-
-0 ..,t
'~~5 -'1
~ (5
.r.:- i5 nl
.. s;!
.-$
-< :II
-..J --<
,~,o~ t
~(fPt!
J;t ~ IF4,
1;:i: {l W+ '? ~