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HomeMy WebLinkAbout04-6411COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of &M"fa FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 04-6411 CIVIL TERM 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 referenced below. NAME OF APPELLANT DATE O ,, UMENT HE' ASE OF (Plaintiff) Icy I c , CK T o. U- 183- ty MAG.. DIST. NO. ©" n11 0/ CITY nrl? uAkI&V This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy NAME OF ?D.J... CAWI.NRJ A' f/ VhA VS u, VA SIGNATURE OF P LANT C if ppellant was Ch before a District A MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. 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.D.J. 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 9WI Ghmmklt appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. 04-6411 CIVIL TERM) within twenty (20) days after s e of rule or suffer entry of judgment of non pros. .ooor I Signature of appellant or attorney or agent RULE: To G Aw u x- appellee(s) Name of 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 personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: Dec. 21,,20 20 04 (Jl¢ - - - • - Signatureof Pr/othonota or p y (J YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 NOTICE OF APPEAL SjATE (Defendant)' ??G?' OR AGENT ZIP CODE 6v 4 (see Pa. R.C.P.D.J. No. 1001(6) in action COURT FILE TO BE FILED WITH PROTHONOTARY 1 PROOF OF SERVICE OF NOTICE;OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (natne) on 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiani Signature of official before whom affidavit was made Title Of official My commission expires on 20 t O C7 ?r r'n -? _-0 j-n AOPC 312A - 02 HARRY GROSSMAN, Plaintiff V. LOU VAZQUEZ TIA EARTHSTONE, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . No. CIVIL ACTION - PETITION FOR APPEAL NUNC PRO TUNC AND NOW, comes the Defendant, Lou Vazquez t/a Earthstone, by and through his attorney, Gary L. Kelley, and Petitions this Honorable Court as follows: 1. Plaintiff is Harry Grossman who resides at 275 Hillside Drive, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant is Lou Vazquez t/a Earthstone whose business address is 7th and Water Streets, Bldg. #l, New Cumberland, Cumberland County, Pennsylvania 17070. 3. On August 12, 2003, Plaintiff and Defendant entered into a lease for nonresidential property. A true and correct copy of the lease is attached hereto as Exhibit "A." 4. The term of the lease was from September 1, 2003 through August 31, 2005. 5. On September 24, 2004, after a hearing before the Honorable Charles A. Clement, Jr., Plaintiff received judgment in the amount of $3,232.50 and an order for possession for the subject property. A true and correct copy of this judgment is attached hereto as Exhibit "B." 6. On October 25, 2004, the parties entered into an Agreement and Lease Addendum wherein they agreed, inter alia, to continue the aforementioned lease set forth at Exhibit "A" and set forth an agreed upon payment schedule by which Defendant would pay his back rent and maintain residency in said property. A true and correct copy of said Agreement is attached hereto as Exhibit "C." 7. Plaintiff informed Defendant that by signing said agreement, the judgment at Exhibit "B" would become null and void and Defendant could remain at the property through the term of the lease provided that he satisfied the conditions set forth in the Agreement and Lease Addendum. 8. Plaintiff further represented to Defendant that he (the Plaintiff) would "take care" of the judgment and order since Defendant was signing the Agreement and Lease Addendum. 9. Based upon Plaintiffs statements and representations and reliance thereon, Defendant signed the Agreement and Lease Addendum and made the payments as set forth therein. 10. Through December 9, 2004, Defendant satisified all conditions attendant to both the original lease and the Agreement and Lease Addendum. 11. Unbeknowst to Defendant, Plaintiff never "took care" of the judgment and order for possession despite payments made to Plaintiff by Defendant and Plaintiffs representations to Defendant that he need not be concerned regarding the judgment. 12. An Order For Possession was not entered on the judgment through December 9, 2004. 13. On December 10, 2004, unbeknowst to Defendant, Plaintiff requested and received an Order For Possession for the subject property from the Honorable Charles A. Clement, Jr. based upon the judgment and order for possession asset forth at Exhibit "B." A true and correct copy of the Order For Possession is attached hereto as Exhibit "D." 14. Pursuant to the terms of the Order, Defendant is to vacate the subject property no later than December 25, 2004 or eviction will commence on December 26, 2004. 15. Defendant manufactures stonefacing and concrete products. 16. Defendant maintains heavy industrial equipment at the subject location. 17. But for Plaintiffs actions, Defendant would have looked for and secured an alternative location for his business. 18. Defendant believes and therefore avers that Plaintiff never intended to honor the Agreement and Lease Addendum and always intended to evict Defendant, contrary to their written agreement and Plaintiffs statements and representations. 19. Defendant believes and therefore avers that Plaintiff never intended to "take care" of the judgment and order for possession and always intended to evict Defendant contrary to their written agreement and Plaintiffs statements and representations. 20. Based upon Plaintiffs statements and representations and reliance thereon, Defendant believes and therefor avers that he was fraudulently induced to sign the Agreement and Lease Addendum. 21. Based upon Plaintiffs statements and representations and reliance thereon, Defendant has suffered detriment in that he will be forced to relocate a business with heavy industrial equipment with little or no time to secure adequate facilities in an appropriate location. 22. Based upon Plaintiffs statements and representations and reliance thereon, Defendant has suffered detriment in that he will be forced to relocate a business with heavy industrial equipment in a short period of time to great economic detriment to him and his business. 23. Based upon Plaintiffs statements and representations and reliance thereon, Defendant has suffered detriment in that he will be forced to relocate a business with heavy industrial equipment during poor winter weather. 24. Plaintiff suffers from unclean hands in this matter and has engaged in fraud and made fraudulent representations. 25. Plaintiff has not operated in good faith concerning the original lease agreement and the Agreement and Lease Addendum. 26. Without the intervention of this Honorable Court, Defendant will suffer irreparable damage to his business. 27. The potential harm to Plaintiff is outweighed by the imminent hardship and damage to Defendant and his business by forcing a move under the present facts and Plaintiffs unscrupulous conduct. 28. By failing to disclose his subsequent Agreement and Lease Addendum with Defendant and change of circumstances to the Honorable Charles A. Clement prior to requesting an Order For Possession, the Plaintiff has worked a fraud upon the Court and obtained an Order For Possession through fraud. WHEREFORE, based upon all of the foregoing, the Defendant, Lou Vazquez t/a as Earthstone, respectfully requests that this Honorable Court issue an Order allowing him to appeal the Order of the Honorable Charles A. Clement, Jr., dated September 24, 2004 nunc rho tunc and further issue a stay of the Order For Possession dated December 10, 2004 pending further Order of Court. By: Cd GARY L. ELLEY, Esq Ki I.D. #46 01 1119 North front Street Harrisburg, PA 17102 (717) 238-1484 Attorney for Defendant VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 0??o ZY EXHIBIT +1A" A00 V-7-5- - utk LEASE - 4w, BY THIS AGREEMENT made and entered into on 14Lg /2 , 2©0? . between w/ Pslt?sMtr.4?/ herein referred to as Lessor, and ZOO Gff qv ? /4 4rA"051awE , herein referred to as lessee, Lessor leases to Lessee the premises stWted at 7'w-v' (,&721A 5*5 LZDt / ., County of tA- State of 6.--rsyLv.?w-.a and more particularly ?dEt??uM/jtliavh described as follows: ff/'007) /0' ?tvy?iY/4?1N??? A ?D,C ?o CAE Allro?u o A'or "' i? together with all appurtenances, for a term of o2 years, to commence on - AD, 3 , 2--_, and to end on is 3 J .2 ov at o'clock /R . _? M. L Rent Lessee agrees to pay, without demand, to Lessor as rent for the demised premises the sum of ? 1? f?s.,ftw 744- ly 0r, -60 DoDars (? f;2 ) per month in advance on the day of each calendar month beginning At J 2R0#, payable at rf )00 /AP K /'M , City of js'•J ('vs?r4WAh'V . State of or at 16 such other place as Lessor may designate. 2. Security D? t On the execution of this lease, Lessee deposits with Lessor -_1 rt?w.,A die Dollars % AZS receipt of which is acknowledged by Lessor. as security for the l idM performance by Lessee of the terms hereof, to be returned to lessee, without interestaou the full and iit*d performance by him of the provmWont hereof. ? yT 2 oW ws 1,r S f /? j oYC LtAft- ( ? 3 /?j2 j(.41- / 0.r d,? ?x AW-A- to oo//i?itsO.Oc M.nfrf 9 Quiet Enjoyment Lessor covenants that on paying the rent and performing the covenants herein contained, Lessee shall peacefully and quietly have, hold and enjoy the demised premises of 7Zs> ?Nevf iao3?J4sfI fie. Ai?46jr ?s7ts. S?v.`-.f?Cwrurl7'?w.y1?Ytoe.'?>?is+?S10 4. Use of Premises. a demised premises shall be used and (occupied by Lessee `/ exclusively as jeotK A*A'/. a.?.I Lr ? vd iorv< and neither the premises nor any V part thereof shall be used at any time during the term of this lease by Lessee for any other purpose. Lessee shall comply with all the sanitary laws, ordinances, rules, and orders of appropriate governmental authorities affecting thdcl ey,.:.and preservation of the demised premises, and the sidervaiks?tdeiteto the torm`o lei. 5. Condition of Premises. Lessee stipulates that he has examined the demised premises, including the grounds and all buildings and improvements, and that they are, at the time of this lease, in good order, repair, and in a safe, clean, and tenantable condition. Lessee relies upon his inspection of the premises and no representations, warranties or implied warranties, with regard to the premises, except as set forth specifically herein. Premises are accepted in an "as-ie condition. 6. Assignment and Subletting. Without prior written consent of Lessor, Lessee shall not assign this lease, or sublet or grant any concession or license to use the premises or any part thereof. A consent by Lessor to one assignment, subletting, concession, or license shall not be deemed to be a consent to any subsequent assignment, subletting. concession, or license. An assignment, subletting, concession, or license without the prior written consent of Lessor, or an assignment or subletting by operation of law, shall be void and shall, at Lessor's option, terminate this tease, Assignment or subletting may be prohibited by lessor with or without cause and in Lessor's sole discretion. 7. Alterations and Improvements. Lessee shall make no alterations to the buildings or the demised premises or construct any budding or make other improvements on the demised premises without the prior written consent of Lessor. All alterations, changes, and improvements built, constructed, or placed on the demised premises by Lessee, with the exception of fixtures removable without damage to the premises and movable personal properly, shall, unless otherwise provided by written agreement between Lessor and Lessee, be the property of Lessor and remain on the demised premises at the expiration or upon sooner termination of the lease. At the option of Lessor, Lessor may remove any alterations or improvements made without the written consent of lessor and charge Lessee for casts `of removal and costs to restore the premises to its prior condition which shall be a charge and fee due under this lease. 8. Damage to Premises. In the event of damage to the premises, Lessor, at Lessor's sole option, shall determine whether to repair the same and, if Lessor determines not to repair the same and such failure repair materially interferes with the value of the lease, the same shall terminate the term of the lease hereunder. Lessee shall be responsible to maintain insurance on the premises for the cost of all repairs. 9. Dangerous Materials. Lessee shall not keep or have on the leased premises anything of a dangerous, inflammable, or explosive character that might unreasonably increase the danger of fire on the leased premises or that might be considered hazardous or extra hazardous by any responsible insurance company. Lessee shall not violate any terms of any insurance policy on the premises or any-regulation or rule of any governmental Authority or any ordinance or statute governing the premises, nor any building . . - .- - - - .- ._--.- -- . such other place as Lessor may designate. 7`, j -U 2. Security Deposit On the execution of this lease, lessee deposits with Lessor A4 - „e.1 rtwe..At Frr? Dollars ($ 825 ), receipt of which is acknowledged by lAsor, as security for the taithful performance by Lessee of the terms hereof, to be returned to lessee, #Z6 without inte on the full and faithfiil performance by him of the promo hereof: /? ;^T 2 ,,Of*" 'N 3 o? tau.. srp d g--t 154411 IIoL 4,?'Lc OX- .11-x A6-tWo aro?t r?s?oc M...fH ?/9 L 3. Quiet Sujoyment Lessor covenants that on paying the rent and performing the covenants herein contained, Lessee shall peacefully and quietly have, hold and enjoy the demised premises for agreed za? .o033 3 t? r'l?d? ?vevfAf 040! .4- Use of Premises. be demised premises shall he used and I o6cupied by Lessee t4 exclusively as A6W ?k?trl? s-- 4As oil ia,vs .and neither the premises nor any part thereof -shall be used. at ;an tame d. tl tp- mt of this..lease by. Lessee :for any other purpose. Lessee shall= tp?i es, ral3rafe. governmental - authorities affecting the cleanliness,- occupancy, and preservation of the demised premises, and the sidewalks connected thereto, during the term of this lease. 5. Condition of premises. Lessee stipulates that he has examined the demised premises, including the grounds and all buildings and improvements, and that they are, at the time of this lease, in good order, repair, and in a safe, clean, and tenantable condition. Lessee relies upon his inspection of the premises and no representations, warranties or implied warranties, with regard to the premises, except as set forth specifically herein. Premises are accepted in an "as-is" condition. 6. Assignment and Subletting. Without prior written consent of Lessor, Lessee shall not assign this lease, or sublet or grant any concession or license to use the premises or any part thereof. A consent by Lessor to one assignment, subletting, concession, or license shall not be deemed to be a consent to any subsequent assignment, subletting, concession, or license. An assignment, subletting, concession, or license without the prior written consent of Lessor, or an assignment or subletting by operation of law, shall be void and shall, at Lessor's option, terminate this lease. Assignment or subletting may be prohibited by Lessor with or without cause and in Lessor's sole discretion. 7. Alterations and Improvements. Lessee shall make no alterations to the buildings or the demised premises or construct any building or make other improvements on the demised premises without the prior written consent of Lessor. All alterations, changes, and improvements built, constructed, or placed on the demised premises by Lessee, with the exception of fixtures removable without damage to the premises and movable personal property, shall, unless otherwise provided by written agreement between Lessor and Lessee, be the property of Lessor and remain on the demised premises at the expiration or upon sooner termination of the lease. At the option of Lessor, Lessor may remove any alterations or improvements made without the written consent of Lessor and charge Lessee for costs `of removal and costs to restore the premises to its prior condition which shall be a charge and fee due under this lease. 8. Damage to Premises. In the event of damage to the premises, Lessor, at Lessor's sole option, shall determine whether to repair the same and, if Lessor determines not to repair the same and such failure repair materially interferes with the value of the lease, the same shall terminate the term of the lease hereunder. Lessee shall be responsible to maintain insurance on the premises for the cost of all repairs. 9. Dangerous Materials. Lessee shall not keep or have on the leased premises anything of a dangerous, inflammable, or explosive character that might unreasonably increase the danger of fire on the leased premises or that might be considered hazardous. or extra hazardous by anyresponsdble.insumrice company. Lessee shall not violate any terms of any insurance policy on the premises or any regulation or rule of any governmental authority or any ordinance or statute governing the premises, nor any building code or zoning code thereto. io. Utilities. Lessee shall be responsible for arranging for and paying for all utility services required on the premises. ii. Maintenance and Repair. Lessee will, at his sole expense, keep and maintain the leased premises and appurtenances in good and sanitary condition and repair during the term of this lease and any renewal thereof. In particular, lessee shall keep the fixtures on or about the leased premises in good order and repair; keep the furnace clean; . -. t - keep the walks free from dirt and debris; and, at his sole expense, shall make all required repairs to the heating apparatus, and electric and gas fixtures whenever damage thereto shall have resulted from Lessee's misuse, waste, or neglect or that s his employee, family, agent, or visitor. Major maintenance and repair of the leased premises, not due to Lessee's misuse, waste, or neglect or that of his employee, family, agent, or visitor, shall be the responsibility of Lessor or his assigns. Lessee agrees that no signs shall be placed or painting done on or about the leased premises by Lessee or at his direction without the prior written consent of Lessor. 12. Right of Inspection. Lessor and his agents shall have the right at all reasonable times during the term of this lease and any renewal thereof to enter the demised premises for the purpose of inspecting the premises and all building and improvements thereon. • 13. Display of Signs. During the 1PSt - 470 days of the lease, Lessor or his agent shall have the privilege of displaying the usual "For Sale" or "For Rent" or "Vacancy" signs on the demised premises and of showing the property to prospective purchasers or tenants. 14. Subordination of Lease. Ibis lease and Lessees leasehold interest hereunder are and shall be subject, subordinate, and inferior to, any liens or encumbrances now or hereafter placed on the demised premises by Lessor, all advances made under any such liens or encumbrances, the interest payable on any such liens or encumbrances, and any and all renewals or extensions of such liens or encumbrances. 1s. Holdover by Lessee. Should Lessee remain in possession of the demised premises with the consent of Lessor after the natural expiration of this lease, a new month-to-month tenancy shall be created between Lessor and Lessee which shall be subject to all the terms and conditions hereof but shall be terminated on 9D days written notice served by either Lessor or Lessee on the other party_ Holdover by the Lessee, without the consent of Lessor, shall give the Lessor no additional rights and, on two (2) days notice from Lessor, rent or any hold over shall increase as both parties agree shall be reasonable under the circumstances, to twice the rental charged herein. Any casts for eviction or to urination during any holdover period, including reasonable attorneys fees, of Lessor, shall be paid by Lessee as part of the charges under this lease. 16. Surrender of Premises. At the expiration of the lease term, Lessee shall quit and surrender the premises hereby demised in as good state and condition as they were at the commencement of this lease, reasonable use and wear thereof and damages by the elements expected. 17. Default If any default is made in the payment of rent, or any part thereof, at the times hereinbefore specified, or if any default is made in the performance of or compliance with any other terms or condition hereof, this lease, at the option of Lessor, shall terminate and be forfeited, and Lessor may re-enter the premises and rem tr' dejai?lt or _ breach,-andivetniii o ail <,z file ease sh all not t of recei of such notice, Lessee has corrected the default or breach or has taken action reasonably h1mly to e&d such correction within a reasonable time. Lessee shall pay all reasonable attorn ' fees necessary to enforce Lessor's rights. 4 4fff HOC ?of'?/0 /AR ? SAO// P to ;MWL Avy'*W? ko7- 1PEtEAvV Qy "uoa -04- r*,F S'r.O D of a-,C# A*ry7'# 18. Abandonment If at any time during the term of the lease Lessee abandons the demised premises or any part thereof, Lessor may, at his option enter the demised premises by any means without being liable for any prosecution therefore, and without becoming liable to Lessee for damages or for any payment of any kind whatever, and may, at his discretion, as agent of Lessee, relet the demised premises, or any part thereof; for the whole or any part of the then unexpired term, and may receive and collect all rent payable by virtue of such reletting, and, at Lessor's option, hold Lessee liable for any difference between the rent that would have been payable under this lease during the balance of the unexpired term, if this lease had continued in force, and the net rent for such period realized by Lessor by means of such reletting. If Lessor's right of re-entry is exercised following abandonment of the premises by Lessee, then Lessor may consider any personal property belonging to Lessee and left on the premises to also have been abandoned, in which case Lessor may dispose of all such personal property in any manner Lessor shall deem proper and is hereby relieved of all liability for doing so. 19. Binding Effect The covenants and conditions herein contained shall apply to and bind the heirs, legal representatives, and assigns of the parties hereto, and all covenants are to be construed as conditions of this lease. 'Aa TIME IS OF THE ESSENCE. WHEREOF, the parties have executed this lease on the day and year fast above EXHIBIT "B" COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 DJ Name: Hon. CHARLES A. CLEMENT, JR. Address: '400 BRIDGE STREET OLDE TOWNE COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (7 17 ) 774-5989 17070 LOU VAZQUEZ T/A EARTHSTONE 7TH & WATER ST-,BLDG #1 NEW CUMBERLAND,. PA 17070 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFFNONRESIDENTIAL LEASE NAME and ADDRESS _ rGROSSMAN, HARRY 275 HILLSIDE DRIVE NEW CUMBERLAND, PA 17070 L J VS. DEFENDANT: NAME and ADDRESS rLOU VAZQUEZ T/A EARTHSTONE 7TH & WATER ST- BLDG #1 NEW CUMBERLAND, PA 17070 L J Docket No.: LT-0000483-04 Date Filed: 8/30/04 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PT-AINTIFF ® Judgment was entered for: (Name) '---iGROSSMANHARRY` Judgment was entered against LOU VAZQUEZ T/A EARTHSTONE in a ® Landlord/Tenant action in the amount of $ 3,232.50 on 9/24/04 . (Date of Judgment) The amount of rent per month, as established by the District Justice, is $ 825.00. The total amount of the Security Deposit is $ .00 Total Amount Establish d bb J Less • Security Deposit ApRRli d Rent in Arrears $ 1 .00-$ V Physical Damages Leasehold Property $ .00-$ 00 Damages/Unjust Detention $ .00-$ -00 Less Amt Due Defendant from Cross Complaint Interest (if provided by lease) UT Judgment Amount 'r Judgment Costs ? Defendants are jointly and severally )able. Attorney Fees This case dismissed without pre Total Judgment U 'Possession granted. Post Judgment Credits Post Judgment Costs Certified Judgment Total ? Possession granted if money judgment is not satlstled by time of eviction. ? Possession not granted. Adjudicated Amount $ 125.00 $ .00 . 00 - $ .00 $ .00 $ 3,125.00 $ 107.50 $ .nn $ 3,232.50 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 JUDGMENT/TRANSCRIPT 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 COUR OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE DISTRICT JUSTICA'rz '' UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INT,?EAF€-iTED ?N THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGf9i??'N.DESYOO P 446k FULL, SETTLES, _.. OR OTHERWISE COMPLIES WITH THE JUDGMENT. ? ... t e Hq SEP 2 4 200 a Date As . Disf_r?ct.J0ttice I certify that this is a true and correct copy of the containing the P gment`. Date , District Justice My commission expires first Monday of January, 2008 . AOPC 3158-03 SEAL EXHIBIT "C" L?,ts? ?,oa?-7 12- ' nn4hl f ?- --_-- .lr?- (N ? l l G1fA/?1L? ,?/1' l O/"? G?/!'Q/th? .?laylo+e? Ost/?f?\,?? 6 _ , 040 tfOiN? 77 ie ?a /for.??.,?1 ___.-- --- -.-.- ___ ____ .016 pfok cr- i _4 AI?-" ----Z, f Ale ZYA "I J12=- S?• r? 7.2 EXHIBIT "D" r4?p ;OMMONWEALTH OF PENNSYLVANIA ORDER FOR POSSESSION, BOUNTY OF: CUMBERLAND RETURN AND NOTICE Mag. Dist. No.:' PLAINTIFF: NAME and ADDRESS 09-1-01 FGROSSMAN, HARRY DJ Name: Hon. 275 HILLSIDE DRIVE - CHARLES A. CLEMENT, JR. NEW CUMBERLAND, PA 17070 Add'?s*"':40.0 .BRIDGE STREET L J OLDL'.TOWNE. COMMONS SUITE 3. VS. -- NEW-. CUMBERLAND, PA DEFENDANT: NAME and ADDRESS TONE, Teld0hone::(717 ): 7745989 .17070 FLOU VAZQUEZ T/A EARTHS .7TH & WATER ST- BLDG #1 ' NEW CUMBERLAND, PA 17070 J LOU.:VAZQUEZ T/A.EARTHSTONE. 7TH:..; :WATER ST-- BLDG. #1 Docket No.: LT- 00.00483.- 04 . NEW ;CUMBERLAND, PA' `17.07,0 Date Filed: 8/30/04- ,y NONRESIDENTIAL LEASE.. :. JOdgrrient.Amount . $', 5•.00 Time Filed: 1:44P.M Costs in Original LT Proceeding $_ 107.50: ` Date. Order Filed: 12/10/04 Costs in this Proceeditig'$. : .00.. Attorney. Fees $ 00. Total $ 3".232.50 TO. THE DISTRICT JUSTICE: The above named plaintiff, having obtained a judgment for possession.of real property located. at dj *?v Ct??r rI:and; PA 1707 Address, if any:: ; Requestsahat you i'ssue' an ORDER FOR POSSESSION for such property, Date:. Plaintiff: (Signature on Fife) ORDER FOR, POSSESSION .: .,. To-:. JAMES FAIR (Sheriff or Certified Constable) .', .ryr 'You are, hereb directed to deliver actual to laintiff; or. his agent,, of real Iodated. of Gfve location;, y , Y p property. f`.;. and/or add'ress): 'Date: f`M1A 20 --Time- ivE+ District Justice q heriff or rtl. Constable Received Date Time: By:+.? c RET N• ? Defendant (Name): ? Adult person in charge (Name): Servedwith copy of ORDER"F?Q R POSSESSION, and served with NOTICE TO ACA E on(Date of s rvice): '1 wary at _(L cation and Address):. 7-oefi_: 5 £ -A ieJ i.n, ? f . ? ?Z"f `P ince none of:the. above found; serv by posting a copy of the complain go icuously on the.'premises at (Date): (Tlme): < " .. ? Order satisfied by payment of rent:in arrears and costs- ? Premises vacated wit ut forcible entry and ejectment , Am' ount Paid $ ?forcible entry and ejectment (Date): Distribution $ To (Time). . ? Returned within five business days following delivery of $ To. possession to plaintiff or satisfaction by payment of rent To in arrears and costs. Expenses and f of sheriff or ce 'fied constable $ 7 $ To $ TO (Signatur of She?ff or Certified Constable) 14, (Print Name and Title) - NOTICE TO DEFENDANT TO VACATE If you, and all the occupants of this property hot authorized by.the own" ??be pres nt thereon, do not vacate this property within fifteen (15) days after the (date of service) day of 4,,1cr Age 909-V-, the law authorizes me to use, and I' must use, such force-as may be necessary to enter upon this property, by the breaking in of an? door or otherwise, and to eject you and. all unauthorized occupants. If necessary, eviction will commence on f o' Oy after 12:01 AM. At any time before actual delivery of the real property is made in.'ezecution 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 $ Costs $ AOPC 311 C-01 a . • t } t ?l . rF HARRY GROSSMAN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. LOU VAZQUEZ T/A EARTHSTONE, DEFENDANT 04-6411 CIVIL TERM ORDER OF COURT AND NOW, this ?-'Z?? day of December, 2004, IT IS ORDERED: (1) The order of District Justice Charles A. Clement, Jr., dated December 10, 2004, granting possession of 7th and Water Streets, Building #1, New Cumberland, Cumberland County, Pennsylvania, to plaintiff, IS STAYED pending further order of court. (2) A hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 2:30 p.m., Thursday, December 30, 2004, to determine if the Agreement and Lease Addendum dated October 25, 2004, abrogates the order of possession, and to consider such relief as defendant By the Cqurt, Edgar B SeI j? a 1 0'-l ?,.?n?,? Iwo-?-?-?•'? ? PIK V Bayley, J. ._ -i :;, .,i .. _ ti _. .. wu1,u David J. Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 HARRY GROSSMAN, Plaintiff V. LOU VAZQUEZ, t/a EARTHSTONE, Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6411 CIVIL TERM ANSWER TO DEFENDANT'S PETITION FOR APPEAL 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in Part. Denied in Part. It is admitted that Plaintiff and Defendant executed the aforesaid document. By way of denial, the document constitutes Plaintiffs Agreement to waive certain late fees in exchange for payments that Defendant was already obligated to make and which the Defendant failed to make subsequent to the execution of the document. Even if Defendant had made the required payments, the "agreement" was not supported by new consideration. 7. Denied. The document speaks for itself. Plaintiff made no additional promises. Plaintiff withheld enforcement of the possession not in exchange for a mere signature, but in exchange for actual payments, which payments Defendant failed to deliver. To the extent that an accord and satisfaction exists, such accord and satisfaction was breached by Defendant, thus allowing Plaintiff to enforce the original judgment for possession. 8. Denied. Plaintiff never promised to "take care" of the judgment, as neither the judgment amounts nor the amounts due under Exhibit "C" were fully paid. Defendant has failed to pay seven hundred fifty-seven dollars and fifty cents ($757.50) of the original judgment. In addition, December rent remains unpaid in the amount of $825.00. Such amount was due on December 1st. 9. Admitted in Part. Denied in Part. It is admitted that Defendant signed the document. It is denied that Defendant signed the document based on the alleged statements of Plaintiff. It is further denied that Defendant's signature constituted consideration, as Defendant was already obligated to pay the amounts set forth therein. Defendant's signature on the agreement cannot substitute for the payments that Defendant has failed to make. 10. Denied. Defendant has failed to pay $792.50, by November 19, 2004, (or at all) as required by Exhibit "C". Defendant has failed to pay December rent ($825.00) in a timely fashion or at all. Such rent was due on December 1st. Another payment of $825.00 would be due on January 1 St. 11. Denied. It is denied that Plaintiff made the aforesaid representations. It is denied that Plaintiff bore the duty to satisfy any judgment in the absence of the required payments. Plaintiff has failed to pay the amounts set forth in the agreement and the judgment. 12. Admitted in Part. Denied in Part. An Order for Possession was entered on December 10, 2004. 13. Admitted in Part. Denied in Part. It is admitted that Plaintiff obtained the Order for Possession. Plaintiff has no knowledge of what Defendant knew. Defendant should have expected to receive an Order for possession and other execution proceedings, as Defendant has seriously defaulted on all rental and other agreements with Plaintiff. Plaintiff and Defendant have been in constant communication throughout the past several months, as Plaintiff has made repeated attempts to collect all amounts due from Defendant. Defendant has made repeated promises to bring money to Plaintiff, only to miss appointments and fail to appear at the appointed time (or at all) with the promised amounts. 14. Denied. The Constable scheduled the eviction for December 27th at 3:30 P.M. 15. Admitted. 16. Denied. Defendant maintains numerous items of equipment at the premises, all of which can be hauled away on pickup trucks, as Defendant brought it to the premises in the first place. Defendant's characterization of this equipment as "heavy industrial equipment" is misleading, as is Defendant's mischaracterization of the possession Order as requiring eviction on Christmas day. Defendant's largest item is a forklift. 17. Denied. Defendant could not have reasonably believed that Defendant could remain in the leased premises without paying rent, especially where Plaintiff was continually pressing Defendant for payment in the days leading up to the possession Order. 18. Denied. Plaintiff continually looked for ways to allow Defendant to remain in the premises, including waiving late fees and entering into the document labeled "Exhibit C." It was only after Defendant failed to honor his promises and the requirements of "Exhibit C" that Plaintiff sought possession as a last resort. 19. Denied. Plaintiff would not have executed on the judgment had Defendant honored his commitments contained in "Exhibit C". Plaintiff maintained no duty to satisfy the judgment once Defendant failed to pay the amounts promised. 20. Denied. Defendant's signature is valueless to Plaintiff, as a matter of law. Plaintiff made no false statements and had no reason to induce Defendant to sign a document that reduced Defendant's obligations. The document was of no value to Plaintiff, but merely served to give Defendant one further chance to remain in the premises. 21. Denied. Defendant has suffered no detriment. Defendant was already under an obligation to relocate his business. Plaintiff merely gave Defendant the opportunity to remain in the premises and reduce his prior obligations by virtue of Exhibit C. In the absence of Exhibit C, Plaintiff would have removed Defendant from the premises months ago. Exhibit C has provided no benefit to Plaintiff. 22. Denied. Defendant has suffered no detriment. Defendant was already under an obligation to relocate his business. Plaintiff merely gave Defendant the opportunity to remain in the premises and reduce his prior obligations by virtue of Exhibit C. In the absence of Exhibit C, Plaintiff would have removed Defendant from the premises months ago. Exhibit C has provided no benefit to Plaintiff. It is denied that the equipment constitutes heavy industrial equipment. By way of further denial, this equipment will likely be subject to attachment by creditors, as other creditors are looking for Defendant. 23. Denied. Defendant has suffered no detriment. Defendant was already under an obligation to relocate his business. Plaintiff merely gave Defendant the opportunity to remain in the premises and reduce his prior obligations by virtue of Exhibit C. In the absence of Exhibit C, Plaintiff would have removed Defendant from the premises months ago. Exhibit C has provided no benefit to Plaintiff. By way of further denial, Plaintiff has suffered detriment because he cannot relet the premises. Plaintiff has lost income as a result of Defendant's failure to pay rent and live up to his promises. 24. Denied. Plaintiff has committed no fraud. It is Defendant that has unclean hands, as Defendant has continually promised to pay past due amounts and failed to live up to those promises. 25. Denied. Defendant has acted in bad faith by failing to pay amounts he has promised to pay. In the sixteen (16) months that Defendant has occupied the premises, Defendant has failed to pay the rent in a timely manner in eleven ('11) of those months. In those eleven months, Defendant has (1) failed to pay at all, (2) paid late and/or (3) paid with bad checks. 26. Denied. Had Plaintiff not allowed Defendant to execute Exhibit C, Defendant would have been forced to move his business already. The parties executed Exhibit C after the appeal period expired on the judgment and after Defendant had lost any ability to dispute the possession award or the damage award. 27. Denied. Plaintiff's efforts to work with Defendant have allowed Defendant to remain in the premises longer than he otherwise would have. The remainder of this averment is scandalous and impertinent. 28. Denied. Plaintiff was entitled to possession regardless of Plaintiffs attempts to work out a resolution and regardless of a document by which Plaintiff would forgive some of the debt in exchange for regular payments - payments that Defendant never made. The aforesaid document says nothing about voiding the possession judgment and certainly does not allow Defendant to remain in possession without making payments. Wherefore, Plaintiff requests that this Court dismiss this untimely appeal and award attorney fees in favor of Plaintiff. Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff 56-7 VERIFICATION I, Harry Grossman, verify that the statements made in this Answer are true and correct to the best of my knowledge, information and belief and that I am authorized to make these statements on behalf of Defendants. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. Date: ?- -L-) ( o y- By: aL 1 7 J2 ?'? - arry Grossman CERTIFICATE OF SERWCE AND NOW, this 28th day of December, 2004, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Gary Kelley 1119 North Front Street Harrisburg, PA 1710;2 David J. Lanza HARRY GROSSMAN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. LOU VAZQUEZ T/A EARTHSTONE, DEFENDANT 04-6411 CIVIL TERM ORDER OF COURT AND NOW, this day of December, 2004, this matter having been called for a hearing, the STAY entered by an order of December 22, 2004, of an order of District Justice Charles A. Clement, Jr., dated December 10, 2004, granting possession of 7th and Water Streets, Building #1, New Cumberland, Pennsylvania to plaintiff, IS LIFTED. By theXourt, David J. Lanza, Esquire For Plaintiff Gary Kelley, Esquire For Defendant Edgar B. Bayley, J. 7 /?--?, -o Charles A. Clement, Jr., District Justice :sal ! C) C= O r- q -Y ) .11 r ' ` rri T ; -am Curtis R. Long Prothonotary Offire of the Vrotbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor n1-1- &W [ CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573