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HomeMy WebLinkAbout14-2191Supreme Co Cour, art d,7� ennsylvania eas County For Prothonotary Use Only: 1: �f Docket No:l,( )V d/9 / The information collected on this form is used solely for court administration purposes. This form does not supplenient or replace the filing and service ofpleadings or other papers as required by law or rules of court. Co m ncement of Action: Complaint 0 Writ of Summons ® Transfer from Another Jurisdiction 0 Petition 0 Declaration of Taking Lead Plaintiff's Name: Gaa s C rrt 6ri il, U2, ead Defen nt' 'am : ' cha faa li _b /AK inn Are money damages requested? Wofes 0 No Dollar Amount Requested: (check one) ®within arbitration limits Dearn arbitration limits Is this a Class Action Suit? 9 Yes Cie‹.- 'o Is this an MDJAppeal? 9 Yes Eptir Name of Plaintiff /Appellant's Attorney: 0 Check here if you have no attor y y C &CL■ are Self- Represented [Pro Se] Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) ® Intentional O Malicious Prosecution O Motor Vehicle O Nuisance ® Premises Liability Product Liability (does not include mass tort) O Slander/Libel/ Defamation • Other: MASS TORT • Asbestos Tobacco O Toxic Tort - DES ® Toxic Tort - Implant ® Toxic Waste © Other: PROFESSIONAL LIABLITY O Dental ® Legal • Medical El Other Professional: CONTRACT (do not include Judgments) ® Buyer Plaintiff ® Debt Collection: Credit Card ® Debt Collection: Other ® Employment Dispute: Discrimination ® Employment Dispute: Other O Other: REAL PROPERTY © Ejectment 0 Eminent Domain/Condemnation ® Ground Rent Landlord/Tenant Dispute © Mortgage Foreclosure: Residential 0 Mortgage Foreclosure: Commercial © Partition © Quiet Title ® Other: CIVIL APPEALS Administrative Agencies O Board of Assessment O Board of Elections Dept. of Transportation Statutory Appeal: Other O Zoning Board O Other: MISCELLANEOUS Di Common Law /Statutory Arbitration • Declaratory Judgment O Mandamus 0 Non - Domestic Relations Restraining Order Quo Warranto 0 Replevin Other: Updated 1/1/2011 GARDNER'S GOURMET GRIL LLC, d /b /a SAUCY'S RISTORANTE, Plaintiff v. RICHARD TONKIN and DIANE TONKIN, Defendants IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA • CIVIL ACTION - LAW AND EQUITY • NO. N. aiq/ 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 an 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. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249 -3166 (800) 990 -9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acciOn dentro de los prOximos veinte (20) dias despues de Ia notificaciOn de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en Ia demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya par Ia Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Anthony T. Mc Beth, Esquire 407 North Front Street Harrisburg, PA 17101 (717) 238-36868 Attorney for Plaintiff GARDNER'S GOURMET GRILL,: IN THE COURT OF COMMON PLEAS OF LLC, d/b/a SAUCY'S : CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, Plaintiff : CIVIL ACTION - LAW AND EQUITY v. : NO. RICHARD TONKIN and DIANE TONKIN, Defendants : COMPLAINT 1. Plaintiff is a limited liability company registered in the Commonwealth of Pennsylvania with its registered office located at 25 South High Street, Newville, Cumberland County, Pennsylvania. 2. The Defendants are adult individuals, married to each other and residing at 54 Quarry Hill Road, Newville, Cumberland County, Pennsylvania. 3. On or about July 5, 2013, the parties entered into a written lease whereby Plaintiff leased space from Defendants located at 25 South High Street, Newville, Cumberland County, Pennsylvania. A copy of the lease, is attached hereto, marked Exhibit A and incorporated herein by reference. 4. Plaintiff used the leased premises to operate an Italian restaurant under the trade name listed in the caption. 5. Plaintiff paid all of its rent through and including March, 2014, sometimes being forced to do so in cash in that Defendant Richard Tonkin periodically entered the restaurant, depriving Plaintiff of the quiet enjoyment of the leased premises, demanding rent payment. 6. On those occasions, Richard Tonkin demanded payment of rent from cash then at that very moment in the cash register of Plaintiff's business; in each such instance, Plaintiff paid the rent from the cash that was in cash register. 7. On March 26, 2014, without warning, without cause and in direct violation of the lease, Defendants unilaterally changed the locks on the leased premises and, from that time forward, have denied access to the leased premises by Plaintiff's agents. 8. Through its agents, Plaintiff believes and therefore avers that Defendants' purported justification for unilaterally excluding Plaintiff from the leased premises is Plaintiff's failure to pay one or more water bills; utilities not specifically listed as the responsibility of the landlord in the lease are left to the tenant, the Plaintiff. 9. To the extent that Plaintiff failed in payment of the water bill or in any other provision of the lease, the fault thereof lies with Defendants; despite repeated requests, Defendants consistently refused to provide Plaintiff with copies of any utility bill for which Plaintiff was responsible under the lease. 2 10. Plaintiffs revenue had declined precipitously during the winter of 2013-14, leading Plaintiff's agents to stop running the restaurant actively and, instead, to offer the business for sale and the lease for assignment. 11. Plaintiff's agent had informed the Defendants of this circumstance in March, 2014, and had informed Defendants of Plaintiffs intention to sell the business and assign the lease. 12. Initially, Defendants appeared willing to work with Plaintiffs agents in this regard and, indeed, Plaintiff's agents had engaged an agent of their own to help find a new tenant for the leased premises and, possibly, to buy the LLC from Plaintiff's agents. 13. No language in the lease prohibits assignment thereof. 14. As mentioned above, Defendants unilaterally changed the locks on the leased premises, without warning and without justification, thereby denying access thereto by Plaintiffs agents, and that access continues to be denied; Defendants provided no prior notice of their intention in direct violation of paragraph 6 of the lease. 15. There are many items inside the leased premises (assuming Defendants have not converted any of the items, an event that Plaintiffs agents fear may have already happened) that are vital to the transition by Plaintiff described above. 16. Those items include, but are not necessarily limited to, a significant amount of food inventory that has probably spoiled by now, various pieces of electronic equipment, and various records regarding Plaintiff itself and Plaintiff's employees, all of which are necessary for both Plaintiff and its agents to accurately and timely, file various types of tax 3 returns including, but not limited to, the tax return for the LLC, the LLC members' 2013 Income Tax Returns and the Forms 941 regarding Plaintiffs payroll transactions. 17. Additionally, directly because of the Defendants' unjustified lock out, Plaintiff has lost at least one opportunity for a viewing of the premises by a potential assignee of the lease and potential purchaser of Plaintiff's business. 18. Inasmuch as Plaintiff has been locked out of the leased premises, Plaintiff has not yet paid its rent for April, 2014; nonetheless, Plaintiff has tendered payment for the April, 2014 rent in the amount required by the lease, $600.00. A copy of the check Plaintiff has tendered (which is in the undersigned's possession) is attached hereto, marked Exhibit B and incorporated herein by reference. 19. Furthermore, contrary to verbal representations that Defendant Richard Tonkin made the to undersigned on or about April 8, 2014, Plaintiff has paid its rent for March, 2014. A copy of Plaintiffs check tendered to the Defendant, and negotiated, is attached hereto, marked Exhibit C and incorporated herein by reference. The check is for $210.00, but Plaintiff paid the balance of the March rent by Defendant Richard Tonkin barging into the leased premises and taking cash out of Plaintiffs cash register. COUNT I - INJUNCTIVE RELIEF 20. The facts set forth in paragraphs one through eighteen are incorporated herein by reference. 21. Since the March 26, 2014 lockout, Plaintiff has been suffering irreparable harm and will continue to do so in that Plaintiff cannot gain access to any of the items that are on the 4 premises that were listed above and Plaintiff has lost at least one opportunity for a potential viewing of the leased premises by a potential buyer and assignee of the lease. 22. With respect to Plaintiff regaining possession of the various items on the premises listed above, any remedy at law is inadequate in that Plaintiff's agents need the actual items to be able to continue to transition the business as described above and to keep current with Plaintiff's various tax obligations. A list of all of the Plaintiff's movable equipment and fixtures which, hopefully are still in the leased premises and not converted by the Defendants, is attached hereto, marked Exhibit D and incorporated herein by reference. 23. Greater harm will result to the Plaintiff (and already has done so) by the continued denial of access to the leased premises than would be visited upon the Defendants should this Court order Defendants to permit continued possession and quiet enjoyment of the premises to Plaintiff. 24. There is no legal justification for Defendants' continuing course of conduct. 25. In view of the circumstances described above, Plaintiff, through its agents, believes and therefore avers that intervention by this Court, specifically an order requiring Defendants to afford Plaintiff possession and quiet enjoyment of the leased premises, has become necessary. 26. Plaintiff, through its agents, further believes and therefore avers that Defendants' conduct both prior to the filing of this complaint and, presumably into the future if there is no intervention by the court, is arbitrary, vexatious and undertaken in bad faith, thereby 5 entitling Plaintiff to reimbursement of its attorney's fees pursuant to 42 Pa.C.S.A. §2503. WHEREFORE, Plaintiff requests this Honorable Court to enter an order requiring Defendants to afford Plaintiff not only access to the leased premises, but continued possession thereof and quiet enjoyment thereof through the conclusion of the initial lease term, which would end on or about June 30, 2016;. Plaintiff also requests that the Court award its attorney's fees, award Plaintiff its costs and provide any other relief the Court deems appropriate. COUNT II - MONEY DAMAGES FOR SPOILATION OF FOOD INVENTORY AND FOR ADDITIONAL LIABILITY TO PLAINTIFF AND ITS AGENTS FOR UNTIMELY TAX FILING 27. The facts set forth in paragraphs one through eighteen are incorporated herein by reference. 28. Plaintiff expended significant sums for the food inventory that presumably is still at the leased premises. 29. Assuming that the food inventory is still present at the leased premises, it has almost certainly spoiled, cannot be used for resale and has become essentially worthless. 30. To the extent that Plaintiff has suffered an economic loss because of the spoilage of the food inventory, that loss came about directly from the intentional, arbitrary and unjustified conduct of the Defendants in locking Plaintiff's agents out from the leased premises. 31. Additionally, as noted above, all of Plaintiff's tax records (absent conversion by the Defendants) are located in the leased premises; without access to those documents, Plaintiff's tax filings will be late, and Plaintiff will probably incur interest and penalties for 6 late filing, such costs to Plaintiff all coming about from the Defendant's unjustified lockout of the premises. 33. Justice therefore demands that Plaintiff be compensated, by Defendants, for any economic losses it has suffered as a result of the lockout, including spoilation of the food inventory, and possible tax penalties as described above. 34. Plaintiff, through its agents, further believes and therefore avers that Defendants' conduct both prior to the filing of this, complaint and, presumably into the future if there is no intervention by the court, is arbitrary, vexatious and undertaken in bad faith, thereby entitling Plaintiff to reimbursement of its attorney's fees pursuant to 42 Pa.C.S.A. §2503 WHEREFORE, Plaintiff requests this Honorable Court to enter judgment for Plaintiff and against the Defendants, jointly and severally, for an amount in excess of the Cumberland County arbitration limits; Plaintiff also requests interest, the costs of this action (including attorney's fees) and any other relief this Court deems appropriate. COUNT III - MONEY DAMAGES FOR LOSS OF BUSINESS OPPORTUNITY 35. The facts set forth in paragraphs one through eighteen are incorporated herein by reference. 36. Plaintiff, in March, 2014, possessed a business opportunity to allow a viewing of the leased premises by a party or entity that not only appeared to be willing to accept the lease as tenant, but to actually purchase Plaintiff's business. 37. Plaintiff lost that opportunity because of the inability to arrange a view of the leased premises. 7 38. Plaintiff's inability to arrange and allow a viewing of the leased premises came about, and will continue to come about, directly because of the Defendants' unjustified exclusion of Plaintiff's agents from the leased premises. 39. Defendants have undertaken their course of conduct, principally the lockout described herein, without justification. 40. Plaintiff has suffered damages directly because of the Defendants' intentional and unjustified conduct described herein, leading to the loss of at least one business opportunity for Plaintiff. 41. Plaintiff, through its agents, accordingly believes and therefore avers that justice demands that Defendants compensate Plaintiff for its existing loss of business opportunity and for any loss of business opportunity in to the future as long as Plaintiffs agents remain locked out of the leased premises, and that compensation is required to come from the Defendants. 42. Plaintiff, through its agents, further believes and therefore avers that Defendants' conduct both prior to the filing of this complaint and, presumably into the future if there is no intervention by the court, is arbitrary, vexatious and undertaken in bad faith, thereby entitling Plaintiff to reimbursement of its attorney's fees pursuant to 42 Pa.C.S.A. §2503. WHEREFORE, Plaintiff requests this Honorable Courtto enter judgment for Plaintiff and against the Defendants, jointly and severally, for an amount in excess of the Cumberland County arbitration limits; Plaintiff also requests interest, the costs of this action (including attorney's fees) and any other relief this Court deems appropriate. 8 9 nthony T h, Esq. Attorney fo Plai tiff 407 North ., First Floor Harrisburg, PA 17101 (717) 238-3686 Supreme Court I.D. # 53729 LEASE AGREEMENT THIS LEASE AG EMENT, made on5 July 2013, between Richard and Diane Tonkin, hereinafter called "Lessor" and Gardner's Gourmet Grill, LLC, dba Saud 's Ristorante, hereinafter called "Tenant ". The Parties hereto, tenant Hereby an Cumberland Coun 1. TERM: The t 2016 (unless provided.) Either party, withou giving to the other written notice shall the following terms ending to be legally bound, and agree as follows: Lessor hereby leases to tenant and s as tenant, the premises known as: 25 South High St, Newville PA 17241 of (hereinafter "leased premises ") on the following terms and conditions: shall commence on the 1st of July 2013 and shall end on the 30th of June, ner terminated under the previsions hereof or renewed or extended as hereinafter cause, may terminate this lease at the end of the initial term or of any renewal term by not less than 30 days written notice prior to such expiration date. If no such e given by either party, then the term of this lease shall be automatically renewed upon and conditions, on a year to year basis. 2. RENT:. Tenant sh aii pay to Lessor (54 Quarry Hill Road, Newville PA 17241) as rent for the leased premises for the i 'tie] 3 year term the total sum of twenty six thousand four hundred ($26,400.00) dollars, payable ' advance without demand, in equal monthly installments of six hundred ($600.00) dollars, on the fir day of each month for the first twelve months, and eight hundred ($800.00) dollars on the first day of • : h month for the next twenty four months. An optional two years may be renewed for a rent to be detennu ed by the permanent improvements made to the property. A maximum increase would be $100 each year A $25 late fee may be applied if rent is late by 5 or more days. 3. USE OF PRE t+. ES: The leased premises shall be used and occupied as a restaurant only and and for no other p rpose. The Saucy's Ristorante shall occupy the premises only. Tenant shall not use the leased premi-:s for any disorderly or immoral purpose; nor shall commit any waste or permit any nuisance in or ab• the leased premises; nor shall Tenant do or allow anything to be done in and about the leased premi : which violate any laws or increase the rate of fire or other insurance to jeopardize coverage of same. Tenant is responsible for maintaining working smoke detectors. Candles may not be used on premises. 4. UTILITIES A SERVICES: The following utilities and services shall be provided and paid by Lessor: Trash and heat. Excessive trash needs may result in an additional monthly charge. All other utilities and servi s shall be supplied by Tenant at Tenant's expense. In the event that Lessor pays for any such utilities rtenant uses services and the same unreasonably, then Tenant shall pay as additional rent a charge of ch excess use. Lessor shall not be responsible for failure to furnish or for the delay in furnishing any su utility or service when such failure or delay is caused by repairs or improvements or for any cause wha soever beyond Lessor's control. No such delay or failure to furnish utility service shall be caused to suspend rental payment or be construed as a constructive eviction, 5. SECURITY DE ' s STT: Tenant shall have the security deposit waived in lieu of work done to the property. All wor to be done must be approved by the lessor. If there shall be dam . _• es to the leased premises for which Tenant is responsible or defaults in rent, Lessor may require a Securi Deposit to the extent required to reimburse Lessor for the damage to the leased premises and/or defa It in rent. However, Lessor shall not be limited to or required to apply or retain the whole or any portion of Security Deposit, but may look to Tenant directly and independently for reimbursement or pa ment of any damages or default by tenant. 6. WAIVER OF N e TICE: Tenant hereby waives all rights to legal notice wherever provided by statute or common law a * agrees that (5) day written notice of any proceedings to recover possession in the event of default at 7. RULES: LEASE AGREEMENT any time shall be sufficient. A: Keep from makii g loud noises and disturbances. B: All trash must b bagged, tied securely and disposed of weekly. Business generated trash only may be put into dumpste no large items, furniture, etc. C: Pay for repairs o all damages, including drain stoppages and broken windows. D: Tenants may not repair their motor vehicles on the premises if such repairs will take longer than a Single day or leave vehicles with expired licenses or inspections parked on premises for more than one week. E: Tenants agree to low owners to inspect the premises at any reasonable time. F: No parking is pro ided. G. Keep parking clean. Keep sidewalk clear of snow in winter. H: The restaurant ar : are smoke free areas. I: Tenants are respo ible for maintaining smoke detectors. Notify landlord if they are not functional J. Tenants are perm ed to make all necessary changes to the inside of the building required to pass inspection. K. Rent should be m: fled to 54 Quarry Hill Road, Newville PA 17241 by the first of the month. Tenant *0 VI FR AUOARtiOR" Saucy's •Ristorante, LLC 09-12 Gardner's, Gourmet Grill, LLC 1 S High St Newville, PA 17241 717-776-1257 PA v TO THE I ORDER OF . : . - !.. . .. '• 002207 Metro Bank . 20'N'obla Ave 'C'arlisle; PA 17013 . :. • 888-937.0004 mymet:obank, cam • • 60484J313 DOLLARS ZIA raital 4rfrai:ote. .,AFIditel,1;164'44 FOR 000 2 20 70 1:0 31,30 L8461: 284 3 35 19960 4/10/2014 METRO BANK Check Images Check Images Account: BUSINESS CHECKING ( *1996) I Check Number: 2196 1 Date Posted: 3/14/2014 I Amount: $210.00 Zoom In Q Zoom Out Q Print Saucy's Rlstorante, LLC 09-12 Gardner's Gourmet Grill, LLC 1 S High St Newville, PA 17241 717 -776 -1257 PAYp Moho pnk 30 Nobli'Avo Carlisle, PA 17013 111-037-0004 mym.lrobnk:own 30. 134/313 FOR 002196 3 -1--43 /Oa DOLLARS $./rases iseaman if :r9 ft&aorml:n/wt!' LA 0002396113 1:03L30L846t: ©187632 ©10 >031301846< Metro Bank Hub #18 2014 -03 -14 0187632010 ry C� � J -c_ - N O W 68 .13:58.3/14/2014.1802.7591.118 ^ Q TIr000nUsCk C:3/14/2014 ysi55014M 2843351998 3210.00 v Technical Support: 800 - 204 -0541 Copyright ©2009 Metro Bank Online Banking. Member All Rights Reserved. - Metro Bank is a wholly owned subsidiary of Metro Bancorp, Inc. and is not affiliated with Metro Bank Ltd, Great Britain EAttGiT t� C https: // online. mymetrobankcom / Accounts /Checldmag eViewer.aspX?i= 2 &n= 2196&d= 2014- 03- 14 + OVA 3a00 %3a00Z8ra= 210. 00& S= Both&i dent= 7632010&_h_= gdj... 1/1 Salucy's Equipment LARGE Equipment Serial Number Age Value 4' Randell SS refrigerated prep station 12 $250.00 9' Hood & Vent System 7 $1,200.00 3 Drawer 27" SS Cabinet $93.00 True TSSU- 72- 30M -B -ST 72" Mega Top 3 Door Sandwich/ 1- 2545480 3 $3,000.00 Salad Prep Refrigerator — 30 pans 9 foot SS Prep station w /storage & hand -wash station 3 $4,000.00 KM -280M Hoshizaki Slim Line Crescent Cube Restaurant 3 $1,500.00 Ice Maker. Lower cabinet w /counter -tops 2 $1,064.00 Vulcan 12.5 qt. Mixer w /attachments 9 $1,800.00 Fujitsu 24CL — 24,000 BTU Halcyon Air Conditioner, DDA006682 2 $1,566.00 Ductless Mini -Split System, 18 SEER 3 Compartment SS Sink — Advanced Tabco FC- 1818 -18RL 2 $675.00 7' Commercial Hood w /suppression system 2 $3,700.00 US Range, 6 Burner w /Lava Rock Char broiler Gas 54" wide 01836 -10 $4,100.00 39" deep on castors, modified to grill True T — 49 Commercial Reach -in 2 -door Cooler $4,900.00 Champion Flat Top Griddle, 75000BTU GGM -36H $1,800.00 151/2" H X 36" WX263/4" D Berkel 808 Meat Slicer 27-807 -8587 $1,600.00 Frymaster 40 lb Double Fryer GF4OST $790.00 3 120 WF Commercial Adcraft Elec. Full Size 12 X 20 3 $509.00 Food Warmers Booths, Tables and Chairs (40 seat capacity) $1,261.00 True Value Single door fridge GDM -26 1.5 $889.00 True Value Double door fridge TS-49 4 $2,200.00 Double door Pepsi fridge GDM- 37pe57222 4mo $1,698.00 36" X 36" freezer 4mo $134.00 8' Frigidaire chest freezer 1 $449.00 Pepsi mixing station w /CO2 tank and ice chest 6mo $1,980.00 A Coca -Cola drink machine /mixing station and 2 $1,800.00 tea dispenser w /CO2 tanks 3 Metro steel shelving units and 1 short 4' stand 5 $471.00 1 Bakers Pride fire -brick oven w/4 compartments 17 $3,800.00 2 6' SS Table ( I/ $481.00 36" X 15" SS Table EX igir " 1 $146.00 Page 1 Saucy's Equipment 24" X 17" SS Table on caster 2 $144.00 36" X 36" SS Table $48.00 2 7' SS Table 3 $584.00 8' SS Table 1 $432.00 Security System w/cameras and 90 day recorded history $1.000.00 New wall with glass window added to make dining room more pleasing/ AC more $675.00 efficient for customers! decrease noise Page 2 • Saucy's Equipment SMALLER Equipment & Supplies Serial Number Age Value 4/X15" Steel Dish rack 1 $10000 5 Advertising Signs 1 $50.00 2 Mop Buckets with strainer 2 $100.00 Misc. Dishes/Dishware/Utensils for restaurant and catering $137.00 2 Scales 1 $62.00 Edmund Burlington Commercial Can Opener 4 $168.00 Heartland Spectrum 2.0 Credit Card Terminal 1 $93.00 Amano Ato Atomic Time Clock 120V'P1X-75 2 $391.00 GE Microwave 5 $28.00 13 Single Menu holders 1 $48.00 15 Bi-fold Menu holders 1 $130.00 Service-ticket holders 1 $53.00 2 Advertising easels 1 $53.00 i OPEN" sign flag 1 $28.00 14 Insulated Pizza Delivery Bags 2 $189.00 1S^X1B''X{7' and 2O^X2O'X12^Nylon 8 16" Coupe Pizza Pans $40.00 10 18" Coupe Pizza Pans $58.00 38 Black Plastic Serving Baskets $0G0 2 Full size and 4- 1/4 Baking Sheets $16.00 3 8^X8^X3" Baking Pans $3.00 7 6^X9^X1^ Baking Pans $5.00 3 12" Pizza Screens $3.00 8 14" Pizza Screens $23.00 8 16^ Pizza Screens $28.00 10 18"X3G^X3^ Dough Proofing Boxes $97.00 4 Slot Pizza Screen Rack $10.00 10 Slot Pizza Pan Rack $37.00 Misc. Commercial Grade Utensils $10.00 Waitress station 1 $20.00 6 Waiter stands $59.00 1 3 Panasonic phone system for 2 lines 2 $62.00 1 Cash register with abilities to download to Quick Books daily 1 $188.00 1 HP Printer w/fax abilities 1 $118,00 1 24^QSshelf 1 $20.00 2 Baby boosters 2 $124.00 Misc. Storage containers. SS and commercial plastic $218.00 Pasta "hand crank" machine 2mo $48.00 Variety of cutting boards $96.00 French-fry oil cleaner $259.00 Serving trays $48.00 Page 1 Saucy's Equipment Variety of cook ware and soup terrains $58.00 Pizza Rack 1 $54.00 3 Pizza shovels $96.00 2 cases of Pepsi cups, 2 cases of Coke cups, Misc paper $410.00 goods, "To-Go" containers, dough containers, variety of spices, food items, sauces and oils Page 2 VERIFICATION I, Audra Gardner, am Chief Executive Officer and a Member of Gardner's Gourmet Grill, LLC. On behalf of Gardner's Gourmet Grill, LLC, I verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C. S. §4904 (relating to unsworn falsification to authorities). APRTT. 10, 9014 Date , CEO and Member, Gardn ourmet Grill, LLC GARDNER'S GOURMET GRILL,: LLC, d/b/a SAUCY'S RISTORANTE, Plaintiff v, RICHARD TONKIN and DIANE TONKIN, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW AND EQUITY (-) NO. PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Th1. e captioned captioned case involves a commercial landlord denying access to leased premises by Plaintiff and its agents. 2. Plaintiff has filed a complaint contemporaneously with the filing of this motion, and the facts set forth in the complaint are incorporated herein by reference. 3. Because of the urgency of the situation described in the complaint, Plaintiff, through its agents, believes and therefore avers that preliminary injunctive relief from this Court is necessary so that Plaintiff can at least attempt to mitigate the loses that it has suffered, suffering same directly as a result of Defendants' unjustified conduct in excluding Plaintiff's agents from the leased premises. 4. Plaintiff is suffering immediate and irreparable harm, and will continue to do so as long as the lockout continues. 5. Plaintiffs probability of success on the merits is high in that Defendants' conduct is completely unjustified and in violation of the commercial lease. 6. The harm that Plaintiff is suffering in the absence of injunctive relief from this Court is greater than any harm that may be visited upon the Defendants should the Court grant Plaintiff the injunctive relief that it seeks. 7. The public interest would not be adversely affected if this Court were to grant a preliminary injunction. 8. In view of the circumstances that obtain in the captioned case, Plaintiff believes and therefore avers that preliminary injunctive relief from this Court is necessary so that Plaintiff can mitigate the losses that Defendants have already caused to Plaintiff, and so that Plaintiff can continue to transition assignment of the commercial lease and a purchase of Plaintiff's business from an outside party. WHEREFORE, Plaintiff requests this Honorable Court to convene a hearing to determine whether to grant a preliminary injunction in Plaintiffs favor, and to ultimately grant a preliminary injunction in Plaintiff's favor, allowing Plaintiff's agents access to the leased premises, continued possession thereof and quiet enjoyment thereof; Plaintiff also requests that this Court order Defendants to reimburse Plaintiff for its costs, including attorney's fees and to provide any other relief the Court deems appropriate. ony T. Attorney for P 407 North Fron St., First Floor Harrisburg, PA 17101 (717) 238-3686 Supreme Court I.D. # 53729 VERIFICATION I, Audra Gardner, am Chief Executive Officer and a Member of Gardner's Gourmet Grill, LLC. On behalf of Gardner's Gourmet Grill, LLC, I verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C. S. §4904 (relating to unsworn falsification to authorities). APRTI, 10, 9014 Date , 0 and Merili 'err- Gardn Gourmet Grill, LLC GARDNER'S GOURMET GRILL,: IN THE COURT OF COMMON PLEAS OF LLC, d/b/a SAUCY'S : CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, v. Plaintiff : CIVIL NO. ACTION 1-6,7LAW AND 'EUITY �q_ G RICHARD TONKIN and . DIANE TONKIN, • Defendants ORDER AND NOW, this //„ ,J day of April, 2014, up consideration of Plaintiff's Motion for Preliminary Injunction, a hearing thereon is set for 12g n iL.24 /6 ,2014 at /- 3e) f.M. in Courtroom Number of the J Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania. BY THE COURT: el/A:ift:t,_ (6e-/C_ J. 7C. -- E Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY r` \ ~ �g� r` P^". ����o `r`°` �\4 ���� NPR 2.1 ^`, "�_ �k\�u^`^�" ^". . " Gardners Grourmet Grill LLC d/b/a Saucy's Ristorante vs. Richard Tonkin (et al.) Case Numbe 2014-2191 SHERIFF'S RETURN OF SERVICE 04/11/2014 02:23 PM - Deputy William Cline, being duly sworn according to law, served the requested Complaint & Notice by "personally" handing ahuocopyto,apemunrepn*oenUngthemaalveobo bmtheDefendant.to wit: Richard Tonkin at 54 Quarry Hill Road, Penn Township, Newville, PA 17241. WIE�UM CLINE, DEPUTY 04/11/2014 02:23 PM - Deputy William Cline being duly sworn according to law, served the requested Order, Plaintiffs Motion for Preliminary Injunction and Complaint & Notice by "personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Diane Tonkin a; 54 uarry Hill Road, Penn Township, Newville, PA 17241. NE, DEPUTY SHERIFF COST: $58.05 SO ANSWERS, April 15, 2014 I� R ANDERSON, SHERIFF (c) CountySuite Sheriff, Teleoseft, 111C. GARDNER'S GOURMET GRILL, : LLC, d/b /a Saucy's Ristorante, Plaintiff v. NO, 2014 -2191 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RICHARD TONKIN and DIANE TONKIN, Defendants CIVIL ACTION -LAW AND EQUITY.. NOTICE TO PLEAD To: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 Harrisburg, Pennsylvania 17110 YOU ARE HEREBY DIRECTED TO PLEAD TO THE ATTACHED NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE THEREOF, OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. T icia D. Naylor I.D. 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b /a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.2014 -2191 CIVIL TERM CIVIL ACTION -LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION NOW, come Richard Tonkin and Diane Tonkin ( "Tonkins "), by and through their attorneys, BARIC SCHERER LLC, and files the within Defendants' Answer to Motion for Preliminary Injunction and, in support thereof, set forth the following: 1. Denied. To the contrary, no access was denied to Plaintiff and its agents and Plaintiffs owners authorized the changing of the locks. 2. Admitted in part, denied in part. It is admitted that a complaint was contemporaneously filed with the filing of the motion. The facts are denied as set forth in the complaint. 3. Denied. To the contrary, no access has been denied and therefore no urgency exists to warrant preliminary injunctive relief. 4. Denied. To the contrary, no access has been denied and therefore no harm has been suffered. 5. Denied. To the contrary, Defendants' conduct was consented to by Plaintiffs owners and was not in violation of the lease and therefore Plaintiffs probability of success is low. 6. Denied. To the contrary, Defendants have a greater interest in protecting and securing their interest in the premises and mitigating their damages than Plaintiff has in having unlimited access to their personal property which is currently not in use. 7. This averment is a conclusion of law for which no response is required. To the extent a response is required, it is denied. 8. This averment is a conclusion of law for which no response is required. To the extent a response is required, it is denied. WHEREFORE, Defendants request this Honorable Court to (a) deny Plaintiff's request for a preliminary injunction; (b) dismiss Count I of Plaintiff's complaint; (c) order Plaintiff to pay to the Prothonotary all amounts due under the lease agreement and continue to make monthly rental payments to the Prothonotary as it accrues during pendency of the above captioned matter; (d) confirm Defendants' legal possession of the property; and/or (e) provide such other relief this Honorable Court deems appropriate. NEW MATTER 9. On or about July 5, 2013, the parties entered into a Lease Agreement ("Lease Agreement"). A true and correct copy of the Lease Agreement was attached as Exhibit "A" to Plaintiffs complaint and is incorporated herein by reference. 10. The term of the Lease Agreement was July 1, 2013 through June 30, 2016. 11. The Lease Agreement set rent at $26,400.00 payable in monthly installments of $600.00 per month during the initial term of the lease. 12. The Lease Agreement provides for a late charge in the amount of $25.00 for rent 5 or more days late. 13. The Lease Agreement provides that Plaintiff is to pay for water/sewer utilities. 14. On October 10, 2013, Defendants provided Plaintiff with copies of the water /sewer bills for the months of June, July and August. A true and correct copy of the water /sewer bills for the months of June, July and August are attached hereto as Exhibit "A" and incorporated herein by reference. 15. Plaintiff failed to make payment of the water /sewer bills for the months of June, July and August and the water /sewer bills continue to accrue. True and correct copies of the water /sewer bills for the months of September through February are attached as Exhibit "B" and incorporated herein by reference. 16. Defendant, Richard Tonkin, had several conversations with Plaintiff's owners regarding the accruing water /sewer charges. 17. Plaintiff failed to pay any water /sewer charges and Plaintiff's owner, Fletcher Gardner acknowledged that charges were approaching $1,000.00. 18. Plaintiff breached its obligation to pay the rent and late charges for the months of February and March when due. 19. On March 4, 2014, Defendant, Richard Tonkin hand delivered a 5 day notice to quit as required by the lease agreement. A true and correct copy of Defendants' notice to quit is attached hereto as Exhibit "C" and incorporated herein by reference. 20. On March 9, 2014, Plaintiff's owner, Fletcher Gardner hand delivered $390.00 cash to Defendants residence to be applied to February's rent. 21. On March 13, 2014 Plaintiff's owner, Fletcher Gardner hand delivered a check in the amount of $210.00 to Defendants residence to be applied to February's rent . 22. Plaintiff failed to make payments as required by Defendants' notice to quit and failed to pay in full all amounts due under the terms of the lease agreement including a late charge for the month of February, rent and late charge for the month of March and water /sewer charges in the amount of $900.42. 23. On March 24, 2014, Plaintiff consented to the changing of the locks to the premises, thereby giving up possession of the lease premises to Defendants. 24. On March 26, 2014, Defendants changed the locks and posted notices on the doors of the leased premises providing information on how to access the property. True and correct copies of the posted access notices are attached here to as Exhibit "D" and "E" and incorporated herein by reference. 25. Defendants lawfully regained possession of the lease premises and have not denied Plaintiff access to the property. 26. Defendants have not disposed or converted any property belonging to Plaintiff. 27. In accordance with the Court Order dated April 16, 2014, Defendants permitted access to the premises to permit Plaintiff's removal of tax documents and other necessary items on April 16, 2014. 28. On April 16, 2014, Plaintiff removed a DVR from the premises. It is believed and therefore averred that the DVR contains surveillance data which would disprove several averments of Plaintiff's complaint. 29. On March 9, 2014, Plaintiff's owner, Fletcher Gardner informed Defendant, Diane Gardner that Plaintiff had not been operating the restaurant business for at least a week. 30. Plaintiff admitted in Paragraph 10 of its complaint that it "stopped running the restaurant." 31. Plaintiff's was not operating the restaurant business, and therefore no food items of value could be spoiled. 32. No immediate threat of harm exists to warrant granting a preliminary injunction in this matter. WHEREFORE, Defendants request this Honorable Court to (a) deny Plaintiff's request for a preliminary injunction; (b) dismiss Count I of Plaintiff's complaint; (c) order Plaintiff to pay to the Prothonotary all amounts due under the lease agreement and continue to make monthly rental payments to the Prothonotary as it accrues during pendency of the above captioned matter; (d) order a copy of DVR surveillance data be provided to Defendants; (e) confirm Defendants' legal possession of the property; and /or (f) provide such other relief this Honorable Court deems appropriate. Date: Respectfully submitted, BARIC SCHERER LLC Trici. D. Naylo 1.D. # 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 VERIFICATION I verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief This verification is signed by Tricia D. Naylor, Esquire, Attorney for Defendants and is based upon the statements provided by Defendants, as well as documents reviewed by the undersigned as attorney for Defendants. This verification will be substituted and ratified by a verification signed by the Defendants who are presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Dated: q) CERTIFICATE OF SERVICE I hereby certify that on April 9, 2014, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of Defendants' Answer with New Matter to Plaintiff's Motion for Preliminary Injunction, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 Tric a D. Naylor, s4-tic-1 /10/13 Newville Water & Sewer Autnonty Account No. Service Address 0256 25 SOUTH HIGH STREET /2013 Service Period Meter Readings From To Current Previous Usage Due 05131113 0 /30/13 W 1382 0‘ 0 38.30 A 74 79 5,7 Prior Prior Balance: CR -58.74 ( 0 17 05 Prior Balance: 0.00 Ttis Billing? 0,79 otal Due: sn 7g To: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. Newville Water & Sewer Authority Account No. Service Address 0256 25 SOUTH HIGH STREET Due 09/10/2013 Service Period Meter Readings Service Period From To Current I Previous Usage Due i 06/30/13 107/31/13 W 1273 11&""N 9000 W 1382 0‘ 0 38.30 9000 79 5,7 Prior Prior Balance: CR -58.74 ( This Billing: 114.82 Total Due: 56.08 To: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- */14-74,1 CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. Newville Water & Sewer Authority Account No. Service Address 0256 25 SOUTH HIGH STREET Dupla/10001:1 Meter Readings Service Period From To Current Previous Usage Due 07/31/13 08/31/13 W 1382 1373 9000 79 5,7 0 0 9000 380 Prior Balance: 0.00 This Billing: 114.82 Total Due: 114.82 To: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- CT TSTOMPD V'T' A r1/4T Pm Tv IN •••• •••• -tk-F1 c? 7 Newville Water & Sewer Authority Account No. Service Address 0258 25 SOUTH HIGH STREET Due 11 0/2013 Service Period Meter Readings Meter Readings From To liga Previous Usage Due 00131/13 09/30113 1382 12000 B Ma 0 20 I Prior Balance: 0.00 Ns Ball: Total Due: 147.73 3 i5 :71 2b'13 To: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- • CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. Newville Water & Sewer Authority t No. Service Address 55 25S0ii. G Service Period To Prior Balance: 10131/13 1404 j304 0 147.73 This Mk* RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- 10000 a3_24 innon 49 CR Total Due: 273.52 CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. Newville Water & Sewer Authority SAccount No. Service Address 1. • -I A li CM 111.- "4 11 - 1 I ' Service Period Meter Readings Fmtp To LZEI Frevious EINIMIIIIIMINIIIIIIMIIIIIIIPM11. 01.11111111111111rnill'illIIIII This Billing: Usage Total Due: Due I ' 111130125' N., Prior : ce: ' EXHIBIT RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- k■ !v. f'7/ Newville Water & Sewer Authority Account No. Service Address 0256 25 SOUTH'S-09H STREET Service Period JMeterReadings Due 03/1W2014 From To Current Previous Due 1241/13 01131/14 w Prior Balance: 0.00 147R a 14t9 This Billing: 02 RR 7000 7000 Total Due: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- PK-eV tt) bgrtirrr.A.tts1g CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. Newville Water & Sewer Authority Account No. Service Address 0256 25 SOUTH HIGH STREET Service Period Meter Readings From To Current 01/31/14 02/28/14 s 14301 Prior Balance: 52.88 This Billing: To: RICHARD TONKIN 54 QUARRY HILL ROAD NEWVILLE, PA 17241- Due /10/2014 Previous 5000 5000 Total Due: Due 1961 , CUSTOMER - RETAIN THIS PORTION FOR YOUR RECORDS. 14 7.511Y March 4, 2014 This is a waiver of notice that due to default in rent, a 5 day notice is being given to recover possession of the property, as per the rental lease. In order to stay this recovery, $600 (February rent) must be paid in cash within 5 days, by the end of the day this Saturday. Butch Tonkin EXHIBIT C Locks changed Contact ,Landlord for access • Call Landlord @ • 717-386-7937 11E11 III II GARDNER'S GOURMET GRILL,: IN THE COURT OF COMMON PLEAS OF LLC, d /b /a SAUCY'S : CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, Plaintiff : CIVIL ACTION - LAW AND EQUITY v. : NO. 14 -2191 Civil RICHARD TONKIN and DIANE TONKIN, Defendants : PLAINTIFF'S PETITION FOR CONTEMPT OF COURT'S ORDER DATED APRIL 16, 2014 CP CD r` -r, ri 1. A hearing on Plaintiff's prior Motion for Preliminary Injunction was scheduled for April 16, 2014; Plaintiffs and the undersigned were present. 2. Defendants were not present, but the Court was able to reach Diane Tonkin by telephone. 3. Mostly as an accommodation to the Defendants, the Court postponed the hearing on preliminary injunction until April 29, 2014 and ordered Defendants to allow agents of Plaintiff into the leased premises for retrieval of equipment and tax records; the Court specifically ordered that the access be granted between 5:30 P.M. and 8:00 P.M. on that same date, April 16, 2014. 4. The Court's Order was subsequently reduced to writing, although the Court fully recited all terms of the Order with Diane Tonkin listening by telephone, and Diane Tonkin stated that she understood the terms of the Order. A copy of the Court's Order dated April 16, 2014 is attached hereto, marked Exhibit A and incorporated herein by reference. 5. Agents of Plaintiff appeared at 25 South High Street, Newville, to implement the Court's April 16 Order on April 16, 2014 at 5:30 P.M. 6. Defendant Richard Tonkin was present and did not allow the agents access to the premises; nonetheless, one of the agents was briefly able to enter and was able to retrieve a video recorder belonging to Plaintiff, and a few tax and administrative records relating to Plaintiff's business. 7. Defendant Richard Tonkin's conduct represents a blatant disobedience of this Court's April 16, 2014 Order; Plaintiff believes and therefore avers that both Defendants should be held in contempt, the penalties for which should include a fine, reimbursement of Plaintiff's attorney's fees, jail time or any other sanction that the Court deems appropriate. WHEREFORE, Plaintiff requests that Defendants be held in contempt as described above; Plaintiff also requests any other relief this Court deems appropriate. 2 hony . M Attorney for tiff 407 North Fr. • .t., First Floor Harrisburg, PA 17101 (717) 238 -3686 Supreme Court I.D. # 53729 GARDNER'S GOURMET_ GRILL, : IN THE COURT OF COMMON PLEAS OF LLCi 'd/b/a SAUCY'S-; " • - • : CUMBERLAND.COUNTY, PENNSYLVANIA RISTORATT,E,_ c) .1 CIVIL ACTION - LAW -rnA iiICHARDTONKINI DIANE TONKIN, zr7 ,3C3 C) 1 Defendants : 14-2191 CIVIL TERM 4.<7;:s. • r—= Cr-n 1:PC, =c) c? RE: MOTION FOR PRELIMINARY INJUNCTION '"'" • ORDER OF COURT AND NOW, this 16th day of April, 2014, this being the time and place set for a Motion for the Preliminary Injunction, and the Defendant, Diane Tonkin, having indicated that she and her husband have not received sufficient notice and having requested a continuance of the hearing, and over the objection of the .Plaintiff for the 'continuance, this matter is hereby continued. The... Defendant are-irCted to appear for a hearing on the Motion for Preliminary Injunction on Tuesday,' April 29, 2014, at 2.:.30 p.m. in Courtroom Number 5. This Court will allow no longer than 45 minutes for the hearing on that date. It is noted that the Defendant has indicated that they have obtained counsel in this matter, and they are instructed to bring counsel with them and have counsel enter their appearance if they wish counsel to represent them at the time set for this Motion for Preliminary Injunction. Pursuant to an agreement between the parties, the defendant shall make available and give access to the Plaintiffs of the property located at 25 South High Street, Newville, Pennsylvania, on Wednesday, April 16, 2014, between the hours of 5:30 p.m. to 8:00 p.m., so that the Plaintiffs may obtain tax documents and other necessary items at this time. Defendants are further in agreement that they shall not remove any property that N1817- ic4ll (Gardner's Gourmet Grill LLC,d/b/a Saucy's Ristorante v. Richard Tonkin and Diane Tonkin, 14-2191 Civil) is currently located in that address until this Court has a chance to have the hearing on the Motion for Preliminary Injunction. By the Court, Anthony T. McBeth, Esquire For the Plaintiff Richard and Diane Tonkin 54 Quarry Hill Road Newville, PA 17241 Pro Se Defendants :vae VERIFICATION I, Audra Gardner, am Chief Executive Officer and a Member of Gardner's Gourmet Grill, LLC. On behalf of Gardner's Gourmet Grill, LLC, I verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C. S. §4904 (relating to unsworn falsification to authorities). April 25, 2014 Date Au: r711T ner, CEO and Member, Gard ;+ s Gourmet Grill, LLC GARDNER'S GOURMET GRILL,: IN THE COURT OF COMMON PLEAS OF LLC, d /b /a SAUCY'S : CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, Plaintiff : CIVIL ACTION - LAW AND EQUITY v. : NO. 14 -2191 Civil RICHARD TONKIN and DIANE TONKIN, Defendants CERTIFICATE OF SERVICE I, Anthony T. McBeth, Attorney for Plaintiff, hereby certify that I have served the attached document by placing same in the United States mail, first class, postage pre -paid addressed as follows: Richard and Diane Tonkin 54 Quarry Hill Road Newville, PA 17241 �. .� -r i��i 4 A � Sth, Es. Attorney for ''ffs nthony T. 407 North Front St., First Floor Harrisburg, PA 17101 (717) 238 -3686 Supreme Court I.D. # 53729 GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b /a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2014 -2191 CIVIL TERM CIVIL ACTION -LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants c) mW ril PRAECIPE FOR ENTRY OF APPEARANCE --c?' TO THE PROTHONOTARY: >c-) Please enter our appearance on behalf of the Defendants, Richard Tonkin and Dialt Tonkin in the above captioned matter. Respectfully submitted, BARIC SCHERER LLC Xft -o N) C) Tricia D. Naylor, I.D. #83760 19 West South Street Carlisle, PA 17013 (717) 249 -6873 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on April 29, 2014, I, Tricia D. Naylor, Esquire, of Baric Scherer LLC, did serve the Praecipe for Entry of Appearance, by first class U.S. mail, postage prepaid, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 Tricia P Naylor. • s uire GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b /a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVAI Plaintiff v. NO. 2014 -2191 CIVIL TERM CIVIL ACTION -LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants r- <cp CD C) - -4 DEFENDANTS' ANSWER TO PLAINTIFF'S PETITION FOR CONTEMPT NOW, come Richard Tonkin and Diane Tonkin ( "Tonkins "), by and through their attorneys, BARIC SCHERER LLC, and files the within Defendants' Answer to Petition for Contempt and, in support thereof, set forth the following: 1. Admitted. 2. Admitted. 3. Denied in part, admitted in part. It is admitted that Court postponed the hearing on preliminary injunction until April 29, 2014 and granted Plaintiff access to the property between 5:30 p.m. and 8:00 p.m. on April 16, 2014 to "obtain tax documents and other necessary items at this time." It is denied that Plaintiff was permitted to retrieve equipment. To the contrary, electronic equipment was specifically addressed during the April 29, 2014 hearing and was not made part of the rder granting Plaintiff access to the property. 4. Adiaiitted. 5. Admitted. tted. 6. Denied in part, admitted part. It is admitted that Defendant Richard Tonkin was present and that Plaintiff removed various items including a box of documents and a piece of electronic equipment. It is denied that Richard Tonkin did not allow access to the property. To the cD -4' contrary, Defendant Richard Tonkin, accompanied by Mr. Robert Grey, unlocked the property and permitted access to the property between the hours of 5:30 p.m. and 8:00 p.m. 7. Denied. To the contrary, Defendant complied with the court order and it was Plaintiff's owners who were in violation of the court order. WHEREFORE, Defendants request this Honorable Court to deny Plaintiff's request to issue an order of contempt against Defendants. Date: ti 1A4 114' Respectfully submitted, B RIC SCHERER LLC i Tri is D. Naylor, I.D. # 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 VERIFICATION I verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief This verification is signed by Tricia D. Naylor, Esquire, Attorney for Defendants and is based upon the statements provided by Defendants, as well as documents reviewed by the undersigned as attorney for Defendants. This verification will be substituted and ratified by a verification signed by the Defendants who are presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Dated: 9 fr/i/IP CERTIFICATE OF SERVICE I hereby certify that on April s •, 1 , 2014, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of Defendants' Answer Plaintiffs Petition for Contempt, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 Trici • D. Naylor, Esq GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b/a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2014-2191 CIVIL TERM CIVIL ACTION-LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS Please attach the following Substitute Verifications to the Defendants' Answer with New Matter to Plaintiff's Motion for Preliminary Injunction filed in this matter on April 25, 2014. Date: Respectfully submitted, BARIC SCHERER LLC Tricia Naylor, I.D. 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION I, Richard Tonkin verify that the statements made in the foregoing Defendants' Answer with New Matter to Plaintiff's Motion for Preliminary Injunction are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: Z `1 (/ Richard Tonkin VERIFICATION I, Diane Tonkin verify that the statements made in the foregoing Defendants' Answer with New Matter to Plaintiff's Motion for Preliminary Injunction are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: Diane Tonkin CERTIFICATE OF SERVICE I hereby certify that on Aprilq , 2014, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of Praecipe to Attach Substitute Verifications, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b /a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2014 -2191 CIVIL TERM CIVIL ACTION -LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS Please attach the following Substitute Verifications to the Defendants' Answer to Plaintiff's Petition for Contempt filed in this matter on April 29, 2014. Date: Respectfully submitted, BARIC SCHERER LLC Trici., D. Naylor, I.D. #83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 _.4 rrr eat VERIFICATION I, Richard Tonkin verify that the statements made in the foregoing Defendants' Answer to Plaintiffs Petition for Contempt are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: `l /Z-14 Richard Tonkin VERIFICATION I, Diane Tonkin verify that the statements made in the foregoing Defendants' Answer to Plaintiff s Petition for Contempt are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: V/V Diane Tonkin CERTIFICATE OF SERVICE I hereby certify that on April 41 , 2014, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of Praecipe to Attach Substitute Verifications, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 GARDNER'S GOURMET GRILL, IN THE COURT OF COMMON PLEAS OF LLC, d/b/a SAUCY'S RISTORANTE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. RICHARD TONKIN and DIANE TONKIN, Defendants . CIVIL ACTION - LAW . 2014-2191 CIVIL TERM IN RE: MOTION FOR PRELIMINARY INJUNCTION/PETITION FOR CONTEMPT ORDER OF COURT AND NOW, this 29th day of April, 2014, this being the time and place set for a hearing on a Motion for Preliminary Injunction and a Petition for Contempt, the evidence is .deemed closed and this matter is taken under advisement. The parties are hereby ordered to provide to this Court within 3 days hereof a proposed order as to the wording of the language as to how they would like the equipment that is currently in the rental property to be returned to the Gardners. By the Court, Chri/tylee L. Peck, J. Anthony T. McBeth, Esquire For the Plaintiff Tricia D. Naylor, Esquire For the Defendants pcb CO i'es /72/3 lscL. .=/eY) 2C -< ca LID GARDNER'S GOURMET GRILL, : LLC, d/b/a Saucy's Ristorante, : Plaintiff v. RICHARD TONKIN and DIANE TONKIN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2014-2191 CIVIL TERM cfrio, CA ..� CIVIL ACTION—LAW AND EQUITY:� —+ xm s„.. c .r. 'p DEFENDANTS' MOTION FOR STATUS/SETTLEMENT CONFERENCE AND NOW, come the Defendants, Richard Tonkin and Diane Tonkin, by and through their attorneys, Baric Scherer LLC, and respectfully represent as follows: 1. Plaintiff is represented in this by Anthony McBeth, Esquire. 2. Defendants are represented by Tricia D. Naylor, Esquire. 3. Defendants are the owners of 25 South High Street, Newville, Pennsylvania (the "premises"). 4. Plaintiff and Defendants entered into a Lease Agreement for the premises. 5. Plaintiff filed a complaint against Defendants on April 10, 2014 along with Plaintiff's Motion for Preliminary Injunction. 6. The Honorable Judge Peck issued an order on April 11, 2014 scheduling a hearing for April 16, 2014. 7. Defendants were served with the Complaint, Preliminary Injunction and Order of Court on April 21, 2014. 8. On April 16, 2014, the Honorable Judge Peck issued an Order continuing the hearing until April 29, 2014. 9. The August 16, 2014 Order permitted Plaintiff to remove tax documents from the premises and prohibited Defendants from removing any property from the premises prior to the hearing date. 10. Defendants filed an Answer to Plaintiff's Motion for Preliminary Injunction on April 25, 2014. 11. On April 29, 2014, after a hearing on a Motion for Preliminary Injunction and Petition for Contempt, the Honorable Judge Peck ordered the parties to submit a proposed order to the Court within 3 days. 12. On May 2, 2014, the parties submitted two proposed orders to the Court. 13. To date, Plaintiff's personal property remains in the premises. 14. Due to the action being filed by Plaintiffs in the Court of Common Pleas of Cumberland County, Defendants were unable to pursue possession, rent and moneys due through the Magisterial District Justice. 15. Defendants believe and therefore aver that the list of personal property attached to Plaintiffs complaint is not accurate. 16. Due to the nature of the proceedings, Defendant's legal possession of the premises has not been confirmed by the Court. 17. By the Order dated April 16, 2014, the Court has directed Defendants not to remove any personal property of Plaintiffs from the premises. 18. Without legal possession of the premises and without being able to remove Plaintiff's personal property, Defendants are unable to rent the premises and thereby mitigate their damages. 19. In order to reach a resolution to this matter, Defendants made a settlement offer to Plaintiff on or about September 11, 2014. 20. Plaintiff has failed to respond to the proposed settlement. 21. Five months have elapsed with no activity on this case. 22. Defendants have been unable to rent the premises due to the pending litigation. 23. Attorney McBeth was unavailable for comment when this motion was filed. WHEREFORE, undersigned counsel respectfully requests that this Honorable Court schedule a status/settlement conference in this case to set deadlines and procedures for removal of Plaintiff's personal property and to grant possession of the premises to Defendants. Respectfully submitted, Bari , Scherer LLC Trici ; D. Naylor, I.D. 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on October 8, 2014, I, Tricia D. Naylor, Esquire, did serve a copy of Defendants' Motion for Status/Settlement Conference, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 Tric a D. Naylor, VERIFICATION I verify that the statements made in the foregoing Defendants' Motion for Status/Settlement Conference, are true and correct to the best of my knowledge, information and belief. This verification is signed by Tricia D. Naylor, Esquire, Attorney for Defendants and is based upon the statements provided by Defendants, as well as documents reviewed by the undersigned as attorney for Defendants. This verification will be substituted and ratified by a verification signed by the Defendants who are presently unavailable to sign said verification. I understand that false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Dated: / / .214 GARDNER'S GOURMET GRILL, : IN THE COURT OF COMMON PLEAS OF LLC, d/b/a Saucy's Ristorante, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2014-2191 CIVIL TERM CIVIL ACTION -LAW AND EQUITY RICHARD TONKIN and DIANE TONKIN, Defendants PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS r� rnW 2. --t fir'- > "D Q —d (e) Please attach the following Substitute Verifications to the Defendants' Motiornforco C▪ =▪ , Status/Settlement Conference filed in this matter on October 8, 2014. Date: 10(... Respectfully submitted, BARIC SCHERER LLC Trici. D. Naylor, E I.D. • 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on OctoberP1-2014, Tricia D. Naylor, Esquire, of Baric Scherer LLC, did serve a copy of Praecipe To Attach Substitute Verifications, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pennsylvania 17101 VERIFICATION I, Richard Tonkin, verify that the statements made in the foregoing Defendants' Motion for Status/Settlement Conference are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: MI6 // 4/ Richard Tonkin VERIFICATION I, Diane Tonkin, verify that the statements made in the foregoing Defendants' Motion for Status/Settlement Conference are true and correct to the best of my knowledge, information and belief. I hereby ratify the verification previously supplied by my attorney, Tricia D. Naylor, Esquire and execute this verification as a substituted verification. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. DATE: Diane Tonkin GARDNER'S GOURMET GRILL, LLC, d/b/a SAUCY'S RISTORANTE, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW RICHARD TONKIN and DIANE TONKIN, Defendants : NO. 14-2191 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR STATUS/ SETTLEMENT CONFERENCE C). r•-4 C? = =� rnm - c, . M.M. r-, _. < ci _i, -r; 171 G - N ' ORDER OF COURT AND NOW, this 21st day of October, 2014, upon consideration Defendants' Motion for Status/Settlement Conference, a hearing is scheduled for Wednesday, December 17, 2014, at 3:00 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. Xnthony T. McBeth, Esq. 407 North Front Street First Floor Harrisburg, PA 17101 Attorney for Plaintiff ricia D. Naylor, Esq. 19 West South Street Carlisle, Pa 17013 Attorney for Defendants :rc C� .-O 4 eS P2a..tice zah 1. BY THE COURT, hrist ee L. Peck, y J. GARDNER'S GOURMET IN THE COURT OF COMMON PLEAS OF GRILL, LLC, d/b/a SAUCY'S CUMBERLAND COUNTY, PENNSYLVANIA RI STORANTE, Plaintiff V. CIVIL ACTION—LAW i ; z;u NCD RICHARD TONKIN and DIANE TONKIN, '" Defendants NO. 14-2191 CIVIL TERM y Lam ' IN RE: PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION`< ORDER OF COURT AND NOW, this 21St day of October, 2014, upon consideration of Plaintiff's Motion for Preliminary Injunction and Defendant's Answer thereto, and following a hearing held on April 16, 2014 (at which time Plaintiff was represented by Anthony McBeth, Esq., but Defendants were not yet represented by counsel of record) and on April 29, 2014 (at which time Plaintiff had the same counsel and Defendants retained Tricia Naylor, Esq.), and the parties having submitted proposed orders to this Court thereafter, and the Plaintiff having testified at the hearing that it now wishes to abandon the leasehold premises after retrieval of Plaintiff's property contained therein, and Defendants having indicated a willingness to allow Plaintiff to retrieve Plaintiff's property from the leasehold premises so that the leasehold premises may be leased to another party, it is hereby ordered that Plaintiff and Defendants shall work through their respective counsel to come to an agreement as to the property that shall be removed from the leasehold premises and work together for agreed upon dates for the exchange and when the Plaintiff may enter the leasehold premises to obtain the agreed upon property. No party may remove any property from the leasehold premises until such time as the parties come to a mutual agreement as to the items to be removed. In the event the parties are not able to agree, the parties shall bring their respective positions on the matter to this Court at the Status Conference (set by separate Order of Court) for proposed resolution of the matter. It is further ordered that Plaintiff shall provide a copy of any video, DVD or DVR surveillance taken at the leasehold premises from February 1, 2014 to April 30, 2014 to the Defendants within 30 days of the date of this Order. In all other respects, the Plaintiffs motion for preliminary injunction is hereby denied. BY THE COURT, Christylee L. Peck, J. nthony T. McBeth, Esq. 407 North Front Street First Floor Harrisburg, PA 17101 Attorney for Plaintiff - --'"Tricia D. Naylor, Esq. 19 West South Street Carlisle, Pa 17013 Attorney for Defendants �� - Y//Y GARDNER'S GOURMET IN THE COURT OF COMMON PLEAS OF GRILL, LLC, d/b/a SAUCY'S CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, Plaintiff V. CIVIL ACTION-LAW RICHARD TONKIN and DIANE TONKIN, Defendants NO. 14-2191 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR CONTEMPT OF COURT'S ORDER DATED APRIL 16, 2014 ORDER OF COURT AND NOW, this 21" day of October, 2014, upon consideration of Plaintiff s Petition for contempt of Court's Order Dated April 16, 2014, and following a hearing held on April 29, 2014, the petition for contempt is denied. BY THE COURT, Chris" lee L. Peck, J. ./ Anthony T. McBeth, Esq. 407 North Front Street First Floor Harrisburg, PA 17101 v,r" ro Attorney for Plaintiff .ti Tricia D. Naylor, Esq. 19 West South Street Carlisle, Pa 17013 -c Attorney for Defendants :rc t v ,z�� y GARDNER'S GOURMET GRILL, LLC, d/b/a SAUCY'S CUMBERLAND COUNTY, PENNSYLVANIA RISTORANTE, Plaintiff . IN THE COURT OF COMMON PLEAS OF v. RICHARD TONKIN and DIANE TONKIN, Defendants • • • • CIVIL ACTION - LAW NO. 14-2191 CIVIL TERM IN RE: STATUS CONFERENCE ORDER OF COURT C"--) C.) AND NOW, this 17th day of December, 2014, this being the time and place set for a status conference, specifically regarding the removal of certain property that was previously ordered by this Court to remain in the leasehold premises until the parties came to an agreement as to its removal, and pursuant to an agreement between the parties, it is ordered as follows: The Order herein incorporates by reference Defendants' Exhibit 1, a November 10, 2014, letter from Tricia D. Naylor, Esquire, to Anthony T. McBeth, Esquire, entered at this status conference of December 17, 2014. 1) It is ordered that all of the items listed on Exhibit A to Defendants' Exhibit 1 marked into evidence on 12/17/14 are permitted to be removed from the leasehold premises by the Plaintiff if, in fact, those items are located in the leasehold premises, with the exception that the Plaintiff shall not take the security system listed on Exhibit A to Defendants' Exhibit 1. In addition thereto, the Plaintiff shall return the DVR and any software and components that go with the security system that were previously removed by the Plaintiff. 2) The Plaintiff shall remove and return all items on Exhibit A that have a reference to Pepsi, such items shall be returned by Ms. Garner to Pepsi or to their owner. 3) The parties agree that the Champion flat griddle listed on Exhibit A is not on the leasehold premises and, therefore, the Defendants owe nothing to Ms. Garner for that property. 4) It is further ordered that the items listed on the first page of Defendants' Exhibit 1 marked into evidence this day shall stay in the leasehold premises, such property specifically listed as follows: 9' hood and vent system Fujitsu 24 CL - 24,000 BTU Halcyon Air Conditioner 7' commercial Hood with suppression system Wall with glass window Lower cabinet with counter tops Toilets Cabinetry All sinks contained in the leasehold premises, with the sole exception that the Plaintiff may remove a 3 -bay stainless steel sink located in the kitchen. All other small personal items may be removed by the Plaintiff so long as they are not in dispute and are not fixtures to the property. 5) Before any property shall be removed as agreed to and ordered herein, the Plaintiff shall pay a security amount to the Defendants in the amount of $800. Such security payment is to be paid to the Defendants, specifically, Tricia Naylor, Esquire, for placement in her IOLTA account, not less than 24 hours in advance of the removal of the property. Such security deposit shall be paid in cash or from the IOLTA account of Anthony McBeth, Esquire, directly to Attorney Naylor's IOLTA account. 6) The parties will work together to arrive at a mutual date when an auctioneer shall be present at the leasehold premises to remove the items as agreed to and ordered herein. Such date shall be not later than 30 days from the date of this Order. The parties may each have a representative present during the removal of the property. If the property is not removed within 30 days of the date herein as ordered herein, then in such event the Plaintiff must pay to the Defendants monthly rent each month that the property is still in the leasehold premises at a rate of $800 per month. 7) In the event that the property is not removed by the end of February 28, 2015, then the Defendants may unilaterally remove the property in the leasehold premises and dispose of the property as they wish without any further obligation to the Plaintiff. 8) After all of the items are removed as agreed to as ordered herein, the Plaintiff through counsel shall file a praecipe to discontinue the complaint and such complaint shall be dismissed with prejudice. The parties further agree that at that time the Defendants will not seek any back rent. Nothing in this Order prevents the Defendants from litigating any financial claim as a result of any damage to the leasehold premises during removal of the items as listed herein. thony J. McBeth, Esquire 7kthe Plaintiff Tricia D. Naylor, Esquire For the Defendants pcb By the Court, Co ies P&Iick ha_ EV