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HomeMy WebLinkAbout14-3221 COMMONWEALTH OFPENNSYLVANIA COURT OF COMMON PLEAS NOTICE OFAPPEAL Judicial District, County Of FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. Itl- '30 NOTICE OF APPEAL N otice is Given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge onthe date and inthe case referenced below. NAME OF APPELLANT MAG.DIST.NONAME OF MOJ ADDRESS OF APPELLANT of Ty STATE ZIPCODE DATE OF JUDGMENT IN THE CASE OF(Plaintiff) This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C.P,D,J. No. 1001(6) in action This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Judge, A COMPLAINT MUST BE FILED operate as a SUPERSEDEAS to the judgment for possession in this case, within twenty (20)days after filing the NOTICE of APPEAL. Signature ol`PothonotarlorDeputy PRAECIPE TDENTER RULE TOFILE COMPLAINT AND RULE TC> FILE (This section ofform kzbo used ONLY when appellant was DEFENDANT(see Pa.R.C.F\D.l No. 1001(7) in action before Magisterial District Judge. 0cNOT USED, detach from copy ofnotice ofappeal to beserved upon appellee. PRAECIPE: To Prothonotary Enter rule upon DAVI 0 appe||ea(s). to fi|eecomplaint inthis appeal ^ r exec(s) (Common Pleas No. 14 )within twenty(2O)days of judgment f non pros Signature of appellant or attiomey or agent RULE: To appellee(s) Name of appellec(s) <1> You are notified that arule is hereby entered upon you to file scomplaint in this appeal within twenty(20)days after the date of service ofthis rule upon you bypersonal service orbycertified orregistered mail. (2) {fyou donot file a complaint within this time,a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date ofservice ofthis rule ifservice was bymail isthe date ofthe mai|ing _"h Date _ ' ' oroeputy YOU MUST INCLUDE" ACOPY OFTHE NOTICE OFJUDGMENT/TRANSCRIPT FORM VV�HTH|SNOTICE OPAPPEAL. \/IN A0pC31z-05 /` { tmooONH�����owO� ' - | JJJ 8� l 187 OAT-1/ Odd � COMMONWEALTH OF PENNSYLVANIA Notice of Judgment/Transcript Civil COUNTY OF CUMBERLAND Case Mag. Dist. No: MDJ-09-2-02 David Feldgus MDJ Name: Honorable Jessica Brewbaker V. Address: 18 North Hanover Street, Suite 106 Delimaker LLC TA: South Side Deli, William D Business Central Building Barnett III, Amy Barnett, William Barnett Carlisle, PA 17013 Telephone: 717-240-6564 Delimaker LLC TA: South Side Deli Docket No: MJ-09202-CV-0000047-2014 46 West High St. Case Filed: 3/13/2014 Carlisle, PA 17013 Disposition Summary (cc-Cross complaint) Docket No Plaintiff Defendant Disposition Disposition Date MJ-09202-CV-0000047-2014 David Feldgus Delimaker LLC TA:South Side Judgment for Plaintiff 04/29/2014 Deli MJ-09202-CV-0000047-2014 David Feldgus William D Barnett III Judgment for Plaintiff 04/29/2014 MJ-09202-CV-0000047-2014 David Feldgus Amy Barnett Judgment for Plaintiff 04/29/2014 MJ-09202-CV-0000047-2014 David Feldgus William Barnett Judgment for Defendant 04/29/2014 Judgment Summary Participant Joint/Several Liability Individual Liability Amount Amy Barnett $2,207.22 $0.00 $2,207.22 David Feldgus $0.00 $0.00 $0.00 Delimaker LLC TA:South Side Deli $2,207.22 $0.00 $2,207.22 William Barnett $0.00 $0.00 $0.00 William D Barnett III $2,207.22 $0.00 $2,207.22 Judgment Finding (`Post Judgment) In the matter of David Feldgus vs. Delimaker LLC TA: South Side Deli; William D Barnett III; Amy Barnett; William Barnett on MJ-09202-CV-0000047-2014,on 4/29/2014 the judgment was awarded as follows: Judament Component Joint/Several Liability Individual Liability Deposit Applied Amount Civil Judgment $2,010.72 $0.00 $2,010.72 Costs $196.50 $0.00 $196.50 Grand Total: $2,207.22 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF 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 MAGISTERIAL DISTRICT JUDGES,IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. �fh Eta* Magisterial District Judge Jessica Brewbaker `� MDJS 315 Page 1 of 3 Printed:05/27/2014 2:50:44PM s David Feldgus Docket No.: MJ-09202-CV-0000047-2014 V. Delimaker LLC TA: South Side Deli, William D Barnett 111, Amy Barnett, William Barnett certify that this is a true and correct copy of the record of the proceedings containing the judgment. /� t Date } ;} Magisterial District Judge 1LI IAM "4 0 GV 17 .�a MDJS 315 Page 2 of 3 Printed:05/27/2014 2:50:44PM r.� David Fcldgus y:; Docket No. MJ-09202=CV-0000047-201.4 V. D'elimaker LLC TA: South Side Deli, William D Barnett'III;_Amy Barnett;,lNilliam Barnett Participant List Privates) r yyr f Jason Eugene-Kelso, Esq. < 79`St'P5'ul Drive Chambersburg, PA 17201 Pwintiff(s)' David Feldgus. 154 Spring:Road Rear Ste 1 Carlisle; PA 17013 . : Defendant(s) .. ` OArrty Barnett 46 West High St.: Carlisle, PA :17013 William D Barnett 111 46 West High St Carlisle, PA 1701.3 ; William Barnett 46 West High St: Carlisle,PA 17013 Delimaker LLC TA: South Side`-Deli .46.West High St, Carlisle; PA 17013 45 .� . MDJS 315 „ Page 3 of 3 Printed:05/27/2014 2:50.44PM : IN THE COURT OF COMMON PLEAS OF DAVID FELDGUS, : CUMBERLAND COUNTY, : PENNSYLVANIA (--) Plaintiff : c --Q a vs. : No. 2014-3221 ma) = m cp r— DELIMAKER, LLC, t/a Southside Deli, _<> WILLIAM D. BARNETT, III, AMY : CIVIL ACTION1--=-7 <c---1 --c) BARNETT AND WILLIAM BARNETT : r" -"- Defendants 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 '1 a copy of the Notice of Appeal, Common Pleas No. , upon the Magisterial District Judge designated therein on (date of service) N-1.41--`9 2011-1 , I=1 by personal service by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name)i.., n ,jui-C_ _a_ 20 IL) by personal service by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) j(AFFIRMED) AND SUB§CRIBED BEFORE ME THIS.,31Y^ DAY OF e , 20 P-1 My commission expires onbe4i, 20 / AOPC 312A - 05 QALZMANN Ol_JUGHES, P.C. Attorneys at Law 79 ST. PAUL DRIVE CHAMBERSBURG, PENNSYLVANIA 17201 m ru D 3020 0000 7763 7013 3020 0000 7763 0023 Honorable Jessica Brewbaker 18 N Hanover Street, Suite 106 Carlisle, PA 17013 U.S, Postal Service TM CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Postage Codified Foo Return Receipt Fee (FndOrnemOnt Required) Restricted petivary Foe tEnndorsemont Required) Total Postage & Fee rSannt la M( 5trvet. APr I.or PO BOX NO. • I ciy Siris 7!i'V4 Postmark Mora See Reverse tor Instructions ��PITNEY BOWES 02 1P $ 006.48° s 0003933696 JUN 02 2014 MAILED FROM ZIP CODE 17201 OALZMANN HUGHES, P.C. Attorneys at Law 79 ST. PAUL DRIVE CHAMBERSBURG, PENNSYLVANIA 17201 -a D 0000 7763 D nJ D m m D N I�wawr�.iira'i 1' a .r. r . r r r a r r '3P i i i i i 7013 3020 0000 7763 0016 Mr. David Feldgus 154 Spring Road, Rear, Suite 1 Carlisle, PA 17013 U.S. Postal ServiceTM • CERTIFIED MAILTM RECEIPT (Domestic Mall Only; No Insurance Coverage Provided) For delivery Information visit our website at www.usps.com s O FOCI1A Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees .qant a USE Postmark Here City, State, ZIP -1•4 PS Form 3800, August 2006 See Reverse for Instructions 'C)�PZF$ POST. a '���PiTNEY BOWES 02 IP $ 006.48° 0003933696 JUN 02 2014 MAILED FROM ZIP CODE 17201 Supreme CourtofTennsyivania ,„- :- , CourfjACommon:Pleas For Prothonotary Use Only: CMI.00 .ei-Ske—et Docket No: ! CO tr)/1 ber 1 - ''';''' County The infOrmation collected on tins form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rides of court. Commencement of Action: S ' Complaint 0 Writ of Summons 0 Petition Transfer from Another Jurisdiction 0 Declaration of Taking E C Leadrf s Name: Le fendant's Name: , T VG lady 0 3 J , 11/14W Dollar Amount Requested: TE5iThin arbitration limits I Are money damages requested? 1, (es 0 No (check one) 0 outside arbitration limits 0 N Is this a Class Action Suit? 0 Yes - 'No Is this an MDJ Appeal? Tes 0 No ,... A Name of Plaintiff/Appellant's Attomet4 k fe, I( 0 L___1 V c e 0 Check here if you hare no attorney (are a Self-Represented (Pro Sej 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) CONTRACT(do not include Judgments) CIVIL APPEALS 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment 0 Motor Vehicle 0 Debt Collection:Other 0 Board of Elections 0 Nuisance 0 Dept.of Transportation 0 Premises Liability 0 Statutory Appeal:Other S 0 Product Liability(does not include 0 E mass tort) Employment Dispute: Slander/Libel/Defamation Discrimination C Qt-laier: ,_ r 041 0 Employment Dispute:Other 0 Zoning Board 0 Other: T ero f6 tty I 0 Other: : 0 MASS TORT ; 0 Asbestos N 0 Tobacco 0 Toxic Tort-DES 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Ejectment 0 Common Law/Statutory Arbitration 0 Other: B 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent Ej Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations 0 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto 0 Dental 0 Partition 0 Replevin 0 Legal 0 Quiet Title 0 Other: 0 Medical 0 Other: 0 Other Professional: Updated 1/1/1011 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY David Feldgus • Plaintiff • Civil Action–Law • V. • Docket NO. 2014-3221 :') r-) Deli Maker LLC,T/A Southside Deli, : _ r-nrw c_ _ r And William Barnett, III A/K/A • Appeal from MDJ 09-2-02 — -13 ' William Barnett • CV 47-2014c --acp -� And Amy Barnett • Defendants • -< • NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages you must take action within twenty(20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you.You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff.You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE AN ATTORNEY 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 S. Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY David Feldgus • Plaintiff ▪ Civil Action—Law V. ▪ Docket NO. 2014-3221 Deli Maker LLC,T/A Southside Deli, : And William D. Barnett, Ill A/K/A Appeal from MDJ 09-2-02 William Barnett CV 47-2014 And Amy Barnett • Defendants • COMPLAINT And now, here comes the Plaintiff, David Feldgus, By and through his Attorney, Daniel Pollock, Esq.to bring forth this complaint at law against the Defendants concerning the matter set forth below. PARTIES 1. The Plaintiff is David Feldgus who resides at 154 Rear Spring Road, Carlisle Pa. 17013. 2. The Defendant Deli Maker LLC. Trades as South Side Deli and is located at 46 W. High Street, Carlisle, Pa. 17013 3. The Defendant William D. Barnett III A/K/A William Barnett is an Adult individual who resides at 115 Petersburg Road, Carlisle, Pa. 17013. 4. The Defendant Amy Barnett is an adult individual who resides at 115 Petersburg Road. Carlisle, Pa. 17013 She is the wife of William D. Barnett III. COUNT I Destruction of property 5. Paragraphs 1-4 are incorporated by reference. 6. On or about July 1, 2011. William and Amy Barnett entered into an agreement to rent the property of David Feldgus located at 103 E. South Street, Carlisle, Pa. 17013 in order to run their business, Southside Deli. 7. During the month of September 2013 the Barnett's terminated the lease to rent the 103 E. South Street in order to move to a bigger location on W. High Street in Carlisle, Pa. 8. While a tenant at the 103 E. South Street the Defendants had a ventilation hood installed on the roof of the Building in order to further their business. 9. At the end of the lease, Mr. Feldgus refunded the Defendant's their security deposit because there was not any readily visible damage done to the building. 10. Upon leaving the premises, after receiving their security deposit returned,the Defendants removed the ventilation hood that they had installed for their business. 11. Mr. Feldgus, not needing the ventilation hood, agreed that the Defendants may remove the installation hood from his building under the condition that the building be restored to its condition prior to the installation of the ventilation hood. 12. On November 27, 2013 the Defendants remove the ventilation system from 103 E. South Street. 13.The defendants failed to restore 103 E. South Street to its pre-Ventilation hood condition as agreed upon. 14. The Installation of the Ventilation system resulted in a cut support beam for the building. 15. This support beam was never repaired by the Defendant. 16. The cut support beam and the subsequent removal of the ventilation system led to the destabilizing of the exterior walls of the building at 103 E. South Street 17. The removal of the ventilation system resulted in damage to the roof. 18. The Defendant failed to repair the roof. 19. The damage to the roof done by the defendant resulted in water damage being done to the interior of 103 E. South Street 20. The Defendants failed to repair the water damage done by their removal of the ventilation system and their failure to secure the roof after the removal of same. Wherefore the Plaintiff Prays that the Defendants be found liable for the damage • caused by their removal of the ventilation system. COUNT II FAILURE TO COMPLY WITH Zoning requirements. 21. Paragraphs 1-20 are incorporated by reference. 22. When the Defendants installed the Ventilation system on the roof of 103 E. South Street they failed to get the necessary approval from the Carlisle Historical and architectural review board as required by buildings located in the Carlisle Historical district.( Hereinafter to be referred to as HARB) 23. 103 E. South Street is located in the Carlisle Historical district. 24. All changes to buildings located in the Historical District must be approved by HARB. 25. The fact that approval was not sought was only discovered when the Ventilation system was removed. 26. Mr. Feldgus had to seek permission to repair 103 E. South Street from HARB in order to avoid penalties and fines. 27. So far The structural repairs and electrical repairs have had to be made pursuant to industry standards Wherefore the Plaintiff prays that the Defendant be held liable to the Plaintiff for changes done to the building that were not in compliance with the rules of the Carlisle Historical and Architectural review board.. COUNT III Trespass 28. Paragraphs 1-27 are incorporated by reference. 29.The removal of the ventilation system by the defendants resulted in several repairs due to the defendants' wanton behavior in the removal of the ventilation system. 30. The removal of the ventilation system was done without cause or concern for the integrity of the electrical system of the building. 31.The removal of the ventilation system resulted in electrical wires being cut in a manner where the wires were left open and bare as opposed to being marked and tied back as per industry standard. 32.This manner of cutting of the electrical wires led to Mr. Feldgus having to have the entire electrical system of 103 E. South Street to be re done and re certified. 33. The manner by which the defendants left 103 E. South Street after the removal of the Ventilation system left many Building code violation due to the way that the defendants decimated the electrical system. Wherefore the Plaintiff Prays that the Defendant be found liable for the repairs needed to bring the building up to code COUNT IV TRESPASS Destruction Of value of the building 34. Paragraphs 1-33 are incorporated by reference 35. At the time of the termination of the lease with Southside Deli. Mr. Feldgus was receiving$700 per month for rent 36.Due to the damages done by the Defendants to the building Mr. Feldgus is only able to rent his building for$550 per month 37. This decrease in the ability to rent this premises at the higher rent is solely due to the condition of the building left by the defendants by the removal of the ventilation system Wherefore the Plaintiff Prays that the Defendant be held liable for the difference in rent for the term of the lease as a result of the wanton manner in which they caused damage to 103 E. South Street when they removed the ventilation system. DAMAGES 38. Paragraphs 1-37 are incorporated by reference. 39.The cost to repair the exterior walls as a result of the damage done by the Defendants is in excess of$6,000 40. The Cost to repair the electrical damage is in excess of$3,000 41. The Lost rent due to the condition of the building is in excess of$2,000 42.The lost value of the building due to the damage done by the defendants has yet to be fully determined 43.The interest on the loans taken by Mr. Feldgus to repair this property is in excess of $100 per month. Wherefore the Total amount of Damages sought By Mr. Feldgus falls below the Arbitration Maximum of$30,000. Wherefore Mr. Feldgus Prays that the Defendants be held liable for all of the damages that they have caused by wantonly removing the ventilation system without care as to the condition of 103 E. South Street. Respectfully Submitted, itkil Daniel Pollock, Esq. Attorney for the Plaintiff David Feldgus Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17065 Pa. Super. Id. 70315 Phone#(717) 486-0030 Cell # (717) 226-0119 E-Mail Dbigdanp @ Aol.com I, David Feldgus, do affirm that the contents of this complaint are true and correct to the best my memoryandr0e4collect. I governingifvauthorities. • thatflstatements madetih.erein are subject to theof 18 pcs49 VZ 17/V_ Date David Feldgus • AFFIDAVIT OF SERVICE On June 23, 2014, I Daniel Pollock, Esq.did mail by first class mail a copy of this complaint to the following parties at the following addresses: Jason Kelso Esq. C/0 Salzman Hughes Attorneys at Law 79 St.Paul Drive Chambersburg, Pa. 17201 William Barnett 115 Petersburg Road Carlisle Pa. 17013 Amy Barnett 115 Petersburg Road Carlisle, Pa. 17013 Delimaker LLC. T/A Southside Deli 46 W. High Street Carlisle, Pa. 17013 ly S bmi ed, AI A / OP' •aniel Pollock, Esq. Attorney for the Plaintiff David Feldgus : IN THE COURT OF COMMON PIAS._OF DAVID FELDGUS, : CUMBERLAND COUNTY, _i :PENNSYLVANIA rn Plaintiff -, -s _ vs. : No. 2014-3221 s { <:' --� -tea cp -, DELIMAKER LLC, t/a Southside Deli` WILLIAM D. BARNETT, III, AMY : CIVIL ACTION ^� BARNETT AND WILLIAM BARNETT : .a Defendants PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter the appearance of Melissa J. Kelso, Esquire ascounsel for the Defendants, Delimaker, LLC t/a/ Southside Deli, William D. Barnett, Amy Barnett, and William Barnett, in the above -captioned case. Date: 11\L\11014 SALZMANN HUGHES, P.C. 1 B y: Melissa J. Kelso, Esq. Attorney I.D. No. 306793 Garret J. Brouwer, Esq. Attorney I.D. No. 312042 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on the HIL day of July 2014, I served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Daniel Pollock, Esquire 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 Attorney for Plaintiff By: SALZMANN HUGHES, P.C. Garret J. Brouwer, Esq. Melissa L. Kelso, Esq. Attorney ID No. 306793 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 Attorneys for Defendants Zi7 JUL 14 Ff', 2: CUMBERLAND COL PENN'S YLvA t its, DAVID FELDGUS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff vs. : No. 2014-3221 DELIMAKER, LLC, t/a Southside Deli, WILLIAM D. BARNETT, III, AMY BARNETT AND WILLIAM BARNETT Defendants : CIVIL ACTION NOTICE TO PLEAD TO: David Feldgus do Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, SALZMANN HUGHES, P.C. By: Melissa J. Kelso, Esq. Attorney I.D. No. 306793 Garret J. Brouwer, Esq. Attorney I.D. No. 312042 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Attorney for Defendants DAVID FELDGUS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff vs. : No. 2014-3221 DELIMAKER, LLC, t/a Southside Deli, WILLIAM D. BARNETT, III, AMY : CIVIL ACTION BARNETT AND WILLIAM BARNETT : Defendants DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT And now comes Defendants, by and through their counsel, who hereby object to Plaintiffs Complaint and in support thereof aver as follows: 1. Plaintiff, David Feldgus ("Plaintiff') filed this Complaint on or about June 23, 2014, following Defendants', Delimaker LLC's, William D. Barnett, III's, Amy Barnett's, and William Barnett's appeal from judgment entered in MDJ 09-2-02, CV 47-2014. 2. The below action filed at the Magistrate District Court involved alleged damage to Plaintiff's property by Defendants during and after Defendants' lease of the premises from Plaintiff. 3. Due to numerous legal and procedural deficiencies in Plaintiff's Complaint, Defendants now file the instant Preliminary Objections. The Court should dismiss Plaintiff's Complaint for failure to conform to rule of court. 4. A party may object to a pleading where the pleading fails to conform to rule of court. Pa.R.C.P. 1028(a)(2). 5. Pa.R.C.P. 1019(a) requires that a party state the material facts upon which it bases its claim in a concise manner. 6. Pa.R.C.P. 1019(h) and (i) require that a party plead whether it bases its claim upon a written or oral agreement and that the party must attach a copy of the relevant writing to its pleading. 7. Plaintiff bases his claim upon a written lease agreement. 8. Plaintiff does not, however, attach a copy of this lease agreement to his Complaint. 9. Plaintiff's Complaint therefore fails to conform to rule of court and the Court should dismiss Plaintiff's Complaint. Wherefore, Defendants respectfully request that this honorable Court grants Defendants' Preliminary Objections to Plaintiff's Complaint and dismisses Plaintiff's Complaint in its entirety. The Court should dismiss Plaintiff's Complaint as to Defendant Deli Maker LLC because Plaintiff fails to state a claim upon which the Court may grant relief against this Defendant. 10. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading on the basis that the pleading fails to state a legally sufficient cause of action (demurrer). 11. When ruling on a demurrer, the Court must consider only those facts pled in the complaint and must accept as true all well pled material facts. Bayada Nurses, Inc. v. Corn., Dept. of Labor and Industry, 8 A.3d 866 (Pa. Super. 2010). 12. The Court need not, however, accept as true conclusions of law, unwarranted inferences, allegations or expressions of opinion. Id. 13. Plaintiff included Defendant, Deli Maker LLC as a party to this action. 14. Plaintiff then asserts, however, that he entered into the lease agreement with only Defendants, William and Amy Barnett. See Complaint, ¶ 6. 15. Plaintiff has failed to plead any facts regarding the involvement of Defendant Deli Maker LLC or plead any facts against it to support a claim against it. 16. Plaintiff, in fact, does not make any factual allegations against Defendant Deli Maker LLC. 17. Because Plaintiff does not actually assert a claim against Defendant, Deli Maker LLC, the Court should dismiss Plaintiffs Complaint at to this Defendant for failure to state a legally sufficient claim. Wherefore, Defendants respectfully request that this honorable Court grant Defendants' Preliminary Objections and dismiss any claim(s) against Defendant, Deli Maker LLC. The Court should dismiss Plaintiffs claims for Trespass, Counts III and IV, because Plaintiff fails to plead a legally sufficient cause of action. 18. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading on the basis that the pleading fails to state a legally sufficient cause of action. 19. In order to plead a claim for trespass, Plaintiff must plead and aver facts to support that Defendants, without privilege to do so, entered his land and removed a structure, causing damage to the property. Miller v. Stroud Twp., 804 A.2d 749, 753 (Pa. Commw. Ct. 2002). 20. Plaintiff asserts two claims for Trespass against Defendants at Counts III and IV of his Complaint. 21. Plaintiff specifically pleads that he agreed that Defendants must remove the fixture upon which he centers his claim. Complaint, ¶11. 22. Because Plaintiff permitted Defendants to remove the fixture, Plaintiff cannot assert a legally sufficient cause of action for trespass, because he has alleged facts that demonstrate unequivocally that Defendants had the privilege to remove the fixture. 23. The Court, therefore, should dismiss Plaintiff's claims for trespass, Counts III and IV, of Plaintiff's Complaint. Wherefore, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Counts III and IV of Plaintiff's Complaint. The Court should dismiss Plaintiff's claim for Zoning Violation, Count II, because Plaintiff has failed to plead a legally sufficient cause of action. 24. Plaintiff asserts a claim for Failure to Comply with Zoning Requirements against Defendants at Count II of his Complaint. 25. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading where the pleadings fails to state a legally sufficient cause of action. 26. Further, pursuant to Pa.R.C.P. 1028(a)(5), a party may preliminary object to a pleading for lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action. 27. Section 617 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10617, reads in pertinent part as follows: "...any aggrieved owner ... of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute an appropriate action ....When any such action is instituted by a landowner ..., notice of that action shall be served upon the municipality at least 30 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice is given." (emphasis supplied). 28. Plaintiff's Complaint fails to allege that he provided the municipality with notice of this action at least thirty (30) days prior to filing his Complaint. 29. His failure to fulfill this condition precedent renders his claim invalid pursuant to 53 P.S. § 10617. 30. The Court, therefore, should dismiss Count II of Plaintiff's Complaint. Wherefore, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Count II of Plaintiff's Complaint. The Court should dismiss Count I, destruction of Property, because Plaintiff fails to plead this claim with the requisite specificity. 31. Pa.R.C.P. 1028(a)(3) permits a party to object to a pleading based on insufficient specificity. 32. Pa.R.C.P. 1019(a) requires that a plaintiff plead the material facts upon which it bases its cause of action in a concise and summary form. 33. In determining whether a plaintiff pleads his claim with sufficient specificity, the court must ascertain whether the plaintiff has pled facts specifically enough to permit the defendant to prepare a defense. Pa.R.C.P. 1019(a); Unified Sportsmen of Pennsylvania v. Pennsylvania Game Corn 'n, 950 A.2d 1120 (Pa. Commw. 2008). 34. Plaintiff asserts a claim for Destruction of Property at Count I of his Complaint. 35. Plaintiff fails, however, to allege what underlying cause of action he bases this claim on. 36. If Plaintiff contends that this is an intentional tort, he does not assert this in his Complaint. 37. If Plaintiff contends that Defendants violated the lease agreement, he does not assert this in his Complaint and fails to even attach the agreement to his Complaint. 38. Without informing Defendants of his cause of action, Defendants cannot respond to Plaintiff's Complaint, let alone prepare a defense. 39. The Court should, therefore, dismiss Count I of Plaintiffs Complaint for failure to plead it with the specificity required by the Pennsylvania Rules of Civil Procedure. Wherefore, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Count I of Plaintiff's Complaint. The Court should strike Paragraphs 39-43 of Plaintiffs Complaint, damages for specific repairs, or require Plaintiff to plead a more specific claim for damages. 40. Plaintiff alleges that he was forced to make specific repairs to the Property, yet lists only approximate minimum values of damages. 41. Plaintiffs assertions regarding concrete damages fail to meet the specificity requirements as well. 42. The Court should therefore strike Paragraphs 39-43 of Plaintiffs Complaint and require Plaintiff to file an amended pleading that avers his damages with the requisite specificity. Wherefore, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and strike Paragraphs 39-43 of Plaintiffs Complaint. The Court should strike the word "wanton" from Paragraph 29 of Plaintiffs Complaint and scandalous and impertinent matter. 43. A party may object to a pleading for the inclusion of scandalous or impertinent matter. Pa.R.C.P. 1028(a)(2). 44. Immaterial allegations not related to proof of the cause of action constitute impertinent or scandalous material that the Court may strike. Common Cause/Pennsylvania v. Corn., 710 A.2d 108 (Pa. Commw. Ct. 1998). 45. Plaintiff avers that Plaintiff engaged in "wanton behavior" at Paragraph 29 of his Complaint. 46. The facts alleged by Plaintiff, however, fail to rise to the level of wanton conduct. 47. The pleading of wanton conduct leaves Defendants open to the possibility of Plaintiff asserting a claim for punitive damages at some point in the future, despite the fact that Plaintiff does not allege any wanton, reckless or malicious conduct in his Complaint. 48. Plaintiff cannot simply call behavior, which he condoned and requested, such as the removal of a fixture, wanton and support a claim for punitive damages. 49. The word "wanton," therefore, had no relevance to his cause of action and the Court should strike this word from Paragraph 29 of his Complaint. Wherefore, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and strike the word "wanton" from Paragraph 29 of Plaintiffs Complaint. The Court should dismiss Plaintiffs Complaint and require him to file a more specific pleading that conforms to rules of court. 50. Pa.R.C.P. 1028(a)(3) permits a party to object to a pleading backs on insufficient specificity. 51. Pa.R.C.P. 1019(a) requires that a plaintiff plead the material facts upon which it bases its cause of action in a concise and summary form. 52. In determining whether a plaintiff pleads his claim with sufficient specificity, the court must ascertain whether the plaintiff has pled facts alleged facts specifically enough to permit the defendant to prepare a defense. Pa.R.C.P. 1019(a); Unified Sportsmen of Pennsylvania v. Pennsylvania Game Corn'n, 950 A.2d 1120 (Pa. Commw. 2008). 53. Review of Plaintiff's Complaint leaves Defendants without any notice of what claims Plaintiff actually makes. 54. Plaintiff alleges that Defendants undertook actions at the request and consent of Plaintiff, but Plaintiff now makes claim for those actions. 55. Plaintiff alleges that a lease agreement is at issue, yet fails to explain how Defendants violated that agreement or even attach the agreement to his Complaint. 56. Defendants have no notice of Plaintiff claims and factual support of his claims that would permit them to prepare a defense. 57. Plaintiff's Complaint fails to meet the specificity requirements of the Pennsylvania Rules of Civil Procedure. 58. The Court should therefore dismiss it in its entirety. Wherefore, Defendants respectfully request that this Honorable Court grant their Preliminary Objections to Plaintiff's Complaint and dismiss Plaintiff's Complaint in its entirety. Respectfully Submitted, SALZMANN HUGHES, P.C. Date: 1 N ('L() M By: e'issa J. Kelso, Esq. Attorney I.D. No. 306793 Garret J. Brouwer, Esq. Attorney I.D. No. 312042 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on the day of July 2014, I served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Daniel Pollock, Esquire 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 Attorney for Plaintiff By: SALZMANN HUGHES, P.C. Garret J. Brouwer, Esq. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY David Feldgus Plaintiff Civil Action —Law V. Docket NO. 2014-3221 Deli Maker LLC, T/A Southside Deli, : And William Barnett, Ill A/K/A Appeal from MDJ 09-2-02 William Barnett CV 47-2014 And Amy Barnett Defendants (.7.° c G . fl . 01 rrt °t _, c ' -cam .37 or1 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages you must take action within twenty(20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAN NOT AFFORD TO HIRE AN ATTORNEY 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 S. Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY David Feldgus Plaintiff Civil Action —Law V. Docket NO, 2014-3221 Deli Maker LLC, T/A Southside Deli, : And William D. Barnett, Ill A/K/A Appeal from MD1 09-2-02 William Barnett CV 47-2014 And Amy Barnett Defendants AMENDED COMPLAINT And now, here comes the Plaintiff, David Feldgus, By and through his Attorney, Daniel Pollock, Esq. to bring forth this complaint at law against the Defendants concerning the matter set forth below. PARTIES 1. The Plaintiff is David Feldgus who resides at 154 Rear Spring Road, Carlisle Pa. 17013. 2. The Defendant Deli Maker LLC. Trades as South Side Deli and is located at 46 W. High Street, Carlisle, Pa. 17013 3. The Defendant William D. Barnett Ill A/K/A William Barnett is an Adult individual who resides at 115 Petersburg Road, Carlisle, Pa. 17013. 4. The Defendant Amy Barnett is an adult individual who resides at 115 Petersburg Road. Carlisle , Pa. 17013 She is the wife of William D. Barnett III. COUNT Destruction of property 5. Paragraphs 1-4 are incorporated by reference. 6. On or about July 1, 2011. William and Amy Barnett entered into an agreement to rent the property of David Feldgus located at 103 E. South Street, Carlisle, Pa. 17013 in order to run their business, Southside Deli. 7. During the month of September 2013 the Barnett's terminated the lease to rent the 103 E. South Street in order to move to a bigger location on W. High Street in Carlisle, Pa. 8. While a tenant at the 103 E. South Street the Defendants had a ventilation hood installed on the roof of the Building in order to further their business. 9. At the end of the lease, Mr. Feldgus refunded the Defendant's their security deposit because there was not any readily visible damage done to the building. 10. Upon leaving the premises, after receiving their security deposit returned, the Defendants removed the ventilation hood that they had installed for their business. 11. Mr. Feldgus, not needing the ventilation hood, agreed that the Defendants may remove the installation hood from his building under the condition that the building be restored to its condition prior to the installation of the ventilation hood. 12. On November 27, 2013 the Defendants remove the ventilation system from 103 E. South Street. 13. The defendants failed to restore 103 E. South Street to its pre- Ventilation hood condition as agreed upon. 14. The Installation of the Ventilation system resulted in a cut support beam for the building. 15. This support beam was never repaired by the Defendant. 16. The cut support beam and the subsequent removal of the ventilation system led to the destabilizing of the exterior walls of the building at 103 E. South Street 17. The removal of the ventilation system resulted in damage to the roof. 18. The Defendant failed to repair the roof. 19. The damage to the roof done by the defendant resulted in water damage being done to the interior of 103 E. South Street 20. The Defendants failed to repair the water damage done by their removal of the ventilation system and their failure to secure the roof after the removal of same. Wherefore the Plaintiff Prays that the Defendants be found liable for the damage caused by their removal of the ventilation system. COUNT H FAILURE TO COMPLY WITH Zoning requirements. 21. Paragraphs 1-20 are incorporated by reference. 22. When the Defendants installed the Ventilation system on the roof of 103 E. South Street they failed to get the necessary approval from the Carlisle Historical and architectural review board as required by buildings located in the Carlisle Historical district.( Hereinafter to be referred to as HARB) 23. 103 E. South Street is located in the Carlisle Historical district. 24. All changes to buildings located in the Historical District must be approved by HARB. 25. The fact that approval was not sought was only discovered when the Ventilation system was removed. 26. Mr. Feldgus had to seek permission to repair 103 E. South Street from HARB in order to avoid penalties and fines. 27. So far The structural repairs and electrical repairs have had to be made pursuant to industry standards Wherefore the Plaintiff prays that the Defendant be held liable to the Plaintiff for changes done to the building that were not in compliance with the rules of the Carlisle Historical and Architectural review board.. COUNT Ill Trespass 28. Paragraphs 1-27 are incorporated by reference. 29. The removal of the ventilation system by the defendants resulted in several repairs due to the defendants' wanton behavior in the removal of the ventilation system. 30. The removal of the ventilation system was done without cause or concern for the integrity of the electrical system of the building. 31. The removal of the ventilation system resulted in electrical wires being cut in a manner where the wires were left open and bare as opposed to being marked and tied back as per industry standard. 32. This manner of cutting of the electrical wires led to Mr. Feldgus having to have the entire electrical system of 103 E. South Street to be re done and re certified. 33. The manner by which the defendants left 103 E. South Street after the removal of the Ventilation system left many Building code violation due to the way that the defendants decimated the electrical system. Wherefore the Plaintiff Prays that the Defendant be found liable for the repairs needed to bring the building up to code COUNT IV TRESPASS Destruction Of value of the building 34. Paragraphs 1-33 are incorporated by reference 35. At the time of the termination of the lease with Southside Deli. Mr. Feldgus was receiving $700 per month for rent 36. Due to the damages done by the Defendants to the building Mr. Feldgus is only able to rent his building for $550 per month 37. This decrease in the ability to rent this premises at the higher rent is solely due to the condition of the building left by the defendants by the removal of the ventilation system Wherefore the Plaintiff Prays that the Defendant be held liable for the difference in rent for the term of the lease as a result of the wanton manner in which they caused damage to 103 E. South Street when they removed the ventilation system. DAMAGES 38. Paragraphs 1-37 are incorporated by reference. 39. The cost to repair the exterior walls as a result of the damage done by the Defendants is in excess of $6,000 40. The Cost to repair the electrical damage is in excess of $3,000 41. The Lost rent due to the condition of the building is in excess of $2,000 42. The lost value of the building due to the damage done by the defendants has yet to be fully determined 43. The interest on the loans taken by Mr. Feldgus to repair this property is in excess of $100 per month. Wherefore the Total amount of Damages sought By Mr. Feldgus falls below the Arbitration Maximum of $30,000. Wherefore Mr. Feldgus Prays that the Defendants be held liable for all of the damages that they have caused by wantonly removing the ventilation system without care as to the condition of 103 E. South Street. Respectfully Submitted, Daniel Pollock, Esq. Attorney for the Plaintiff David Feldgus Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17065 Pa. Super. Id. 70315 Phone # (717) 486-0030 Cell # ( 717) 226-0119 E -Mail Dbigdanp @ Aol.com I, David Feldgus do affirm that the contents of this complaint are true and correct to the best of my memory and recollect. I understand that statements made herein are subject to the penalties of 18 Pa.C.S. 4904 governing unsworn falsification to authorities. Date David Feldgus AFFIDAVIT OF SERVICE On August 6„ 2014, I Daniel Pollock, Esq. did mail by first class mail a copy of this complaint to the following parties at the following addresses: Jason Kelso Esq. C/O Salzman Hughes Attorneys at Law 79 St.Paul Drive Chambersburg, Pa. 17201 Respectfully Submi Daniel Po Ick, Es Attorney for the Plaintiff David Feldgus Melissa L. Kelso, Esq. Attorney ID No. 306793 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 Attorneys for Defendants DAVID FELDGUS, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff vs. : No. 2014-3221 DELIMAKER, LLC, t/a Southside Deli, WILLIAM D. BARNETT, III, AMY : CIVIL ACTION BARNETT AND WILLIAM BARNETT : Defendants NOTICE TO PLEAD TO: David Feldgus c/o Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. By: Respectfully submitted, SALZMANN HUGHES, P.C. Melissa J. Kelso, Esq. Attorney I.D. No. 306793 Garret J. Brouwer, Esq. Attorney I.D. No. 312042 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Attorneys for Defendants : IN THE COURT OF COMMON PLEAS OE DAVID FELDGUS, : CUMBERLAND COUNTY,- -,. (J) rn- PENNSYLVANIA ..14'9_•^1 Plaintiffrte-'- 1 -; vs. : No. 2014-3221 -< ---IC:-..1) ''''r:.5. -e ( p. --1J DELIMAKER, LLC, t/a Southside Deli, 7 ru'c WILLIAM D. BARNETT, III, AMY : CIVIL ACTION v , BARNETT AND WILLIAM BARNETT : --: •-` Defendants DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW comes Defendants, by and through their counsel, SALZMANN HUGHES, P.C., who hereby object to Plaintiff's Amended Complaint and in support thereof aver as follows: 1. Plaintiff, David Feldgus ("Plaintiff') filed this Complaint on or about June 23, 2014, following Defendants', Delimaker LLC's, William D. Barnett, III's, Amy Barnett's, and William Barnett's appeal from judgment entered in MDJ 09-2-02, CV 47-2014. 2. Defendants filed Preliminary Objections on or about July 14, 2014. 3. Plaintiff filed this Amended Complaint on or about August 6, 2014 and served Defendants on August 15, 2014 with his Amended Complaint. 4. The below action filed at the Magistrate District Court involved alleged damage to Plaintiff's property by Defendants during and after Defendants' lease of the premises from Plaintiff. 5. Due to numerous legal and procedural deficiencies in Plaintiff's Amended Complaint, Defendants now file the instant Preliminary Objections. The Court should dismiss Plaintiff's Amended Complaint for failure to conform to rule of court. 6. A party may object to a pleading where the pleading fails to conform to rule of court. Pa.R.C.P. 1028(a)(2). 7. Pa.R.C.P. 1019(a) requires that a party state the material facts upon which it bases its claim in a concise manner. 8. Pa.R.C.P. 1019(h) and (i) require that a party plead whether it bases its claim upon a written or oral agreement and that the party must attach a copy of the relevant writing to its pleading. 9. Plaintiff bases his claim upon a written lease agreement. 10. Plaintiff does not, however, attach a copy of this lease agreement to his Complaint. 11. Plaintiff's Amended Complaint therefore fails to conform to rule of court and the Court should dismiss Plaintiff's Amended Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grants Defendants' Preliminary Objections to Plaintiff's Amended Complaint and dismisses Plaintiff s Amended Complaint in its entirety. The Court should dismiss Plaintiffs Amended Complaint as to Defendant Deli Maker LLC because Plaintiff fails to state a claim upon which the Court may grant relief against this Defendant. 12. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading on the basis that the pleading fails to state a legally sufficient cause of action (demurrer). 13. When ruling on a demurrer, the Court must consider only those facts pled in the complaint and must accept as true all well pled material facts. Bayada Nurses, Inc. v. Com., Dept. of Labor and Industry, 8 A.3d 866 (Pa. Super. 2010). 14. The Court need not, however, accept as true conclusions of law, unwarranted inferences, allegations or expressions of opinion. Id. 15. Plaintiff included Defendant, Deli Maker LLC as a party to this action. 16. Plaintiff then asserts, however, that he entered into the lease agreement with only Defendants, William and Amy Barnett. See Amended Complaint, ¶ 6. 17. Plaintiff has failed to plead any facts regarding the involvement of Defendant Deli Maker LLC or plead any facts against it to support a claim against it. 18. Plaintiff, in fact, does not make any factual allegations against Defendant Deli Maker LLC. 19. Because Plaintiff does not actually assert a claim against Defendant, Deli Maker LLC, the Court should dismiss Plaintiff's Amended Complaint at to this Defendant for failure to state a legally sufficient claim. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss any claim(s) against Defendant, Deli Maker LLC. The Court should dismiss Plaintiff's claims for Trespass, Counts III and IV, because Plaintiff fails to plead a legally sufficient cause of action. 20. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading on the basis that the pleading fails to state a legally sufficient cause of action. 21. In order to plead a claim for trespass, Plaintiff must plead and aver facts to support that Defendants, without privilege to do so, entered his land and removed a structure, causing damage to the property. Miller v. Stroud Twp., 804 A.2d 749, 753 (Pa. Commw. Ct. 2002). 22. Plaintiff asserts two claims for Trespass against Defendants at Counts III and IV of his Amended Complaint. 23. Plaintiff specifically pleads that he agreed that Defendants must remove the fixture upon which he centers his claim. Amended Complaint, ¶11. 24. Because Plaintiff permitted Defendants to remove the fixture, Plaintiff cannot assert a legally sufficient cause of action for trespass, because he has alleged facts that demonstrate unequivocally that Defendants had the privilege to remove the fixture. 25. The Court, therefore, should dismiss Plaintiff's claims for trespass, Counts III and IV, of Plaintiff's Amended Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Counts III and IV of Plaintiff s Amended Complaint. The Court should dismiss Plaintiff's claim for Zoning Violation, Count II, because Plaintiff has failed to plead a legally sufficient cause of action. 26. Plaintiff asserts a claim for Failure to Comply with Zoning Requirements against Defendants at Count II of his Complaint. 27. Pa.R.C.P. 1028(a)(4) permits a party to object to a pleading where the pleadings fails to state a legally sufficient cause of action. 28. Further, pursuant to Pa.R.C.P. 1028(a)(5), a party may preliminary object to a pleading for lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action. 29. Section 617 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10617, reads in pertinent part as follows: "...any aggrieved owner ... of real property who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute an appropriate action ....When any such action is instituted by a landowner ..., notice of that action shall be served upon the municipality at least 30 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice is given." (emphasis supplied). 30. Plaintiff's Amended Complaint fails to allege that he provided the municipality with notice of this action at least thirty (30) days prior to filing his Complaint. 31. His failure to fulfill this condition precedent renders his claim invalid pursuant to 53 P.S. § 10617. 32. Further, Plaintiff fails to set forth any damages he suffered for the alleged violation of HARB. 33. In fact, Plaintiff expressly states that he had to seek permission from HARB in order to avoid penalties and fines. Amended Complaint ¶26. 34. Plaintiff fails to set forth what repairs he sought permission from HARB and how it relates to the claims against Defendants. 35. The Court, therefore, should dismiss Count II of Plaintiffs Amended Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Count II of Plaintiffs Amended Complaint. The Court should dismiss Count I, Destruction of Property, because Plaintiff fails to plead this claim with the requisite specificity. 36. Pa.R.C.P. 1028(a)(3) permits a party to object to a pleading based on insufficient specificity. 37. Pa.R.C.P. 1019(a) requires that a plaintiff plead the material facts upon which it bases its cause of action in a concise and summary form. 38. In determining whether a plaintiff pleads his claim with sufficient specificity, the court must ascertain whether the plaintiff has pled facts specifically enough to permit the defendant to prepare a defense. Pa.R.C.P. 1019(a); Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com 'n, 950 A.2d 1120 (Pa. Commw. 2008). 39. Plaintiff asserts a claim for Destruction of Property at Count I of his Amended Complaint. 40. Plaintiff fails, however, to allege what underlying cause of action he bases this claim on. 41. If Plaintiff contends that this is an intentional tort, he does not assert this in his Amended Complaint. 42. If Plaintiff contends that Defendants violated the lease agreement, he does not assert this in his Amended Complaint and fails to even attach the agreement to his Complaint. 43. Without informing Defendants of his cause of action, Defendants cannot respond to Plaintiff's Amended Complaint, let alone prepare a defense. 44. The Court should, therefore, dismiss Count I of Plaintiff's Amended Complaint for failure to plead it with the specificity required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and dismiss Count I of Plaintiffs Amended Complaint. The Court should strike Paragraphs 39-43 of Plaintiff's Amended Complaint, damages for specific repairs, or require Plaintiff to plead a more specific claim for damages. 45. Plaintiff alleges that he was forced to make specific repairs to the Property, yet lists only approximate minimum values of damages. 46. Plaintiff's assertions regarding concrete damages fail to meet the specificity requirements as well. 47. The Court should therefore strike Paragraphs 39-43 of Plaintiff's Amended Complaint and require Plaintiff to file an amended pleading that avers his damages with the requisite specificity. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and strike Paragraphs 39-43 of Plaintiff's Amended Complaint. The Court should strike the word "wanton" from Paragraph 29 of Plaintiff's Amended Complaint and scandalous and impertinent matter. 48. A party may object to a pleading for the inclusion of scandalous or impertinent matter. Pa.R.C.P. 1028(a)(2). 49. Immaterial allegations not related to proof of the cause,of action constitute impertinent or scandalous material that the Court may strike. Common Cause/Pennsylvania v. Com., 710 A.2d 108 (Pa. Commw. Ct. 1998). 50. Plaintiff avers that Plaintiff engaged in "wanton behavior" at Paragraph 29 of his Amended Complaint. 51. The facts alleged by Plaintiff, however, fail to rise to the level of wanton conduct. 52. The pleading of wanton conduct leaves Defendants open to the possibility of Plaintiff asserting a claim for punitive damages at some point in the future, despite the fact that Plaintiff does not allege any wanton, reckless or malicious conduct in his Amended Complaint. 53. Plaintiff cannot simply call behavior, which he condoned and requested, such as the removal of a fixture, wanton and support a claim for punitive damages. 54. The word "wanton," therefore, had no relevance to his cause of action and the Court should strike this word from Paragraph 29 of his Amended Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grant Defendants' Preliminary Objections and strike the word "wanton" from Paragraph 29 of Plaintiff's Amended Complaint. The Court should dismiss Plaintiff's Amended Complaint and require him to file a more specific pleading that conforms to rules of court. 55. Pa.R.C.P. 1028(a)(3) permits a party to object to a pleading backs on insufficient specificity. 56. Pa.R.C.P. 1019(a) requires that a plaintiff plead the material facts upon which it bases its cause of action in a concise and summary form. 57. In determining whether a plaintiff pleads his claim with sufficient specificity, the court must ascertain whether the plaintiff has pled facts alleged facts specifically enough to permit the defendant to prepare a defense. Pa.R.C.P. 1019(a); Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com 'n, 950 A.2d 1120 (Pa. Commw 2008). 58. Review of Plaintiffs Amended Complaint leaves Defendants without any notice of what claims Plaintiff actually makes. 59. Plaintiff alleges that Defendants undertook actions at the request and consent of Plaintiff, but Plaintiff now makes claim for those actions. 60. Plaintiff alleges that a lease agreement is at issue, yet fails to explain how Defendants violated that agreement or even attach the agreement to his Complaint. 61. Defendants have no notice of Plaintiff claims and factual support of his claims that would permit them to prepare a defense. 62. Plaintiff's Amended Complaint fails to meet the specificity requirements of the Pennsylvania Rules of Civil Procedure. 63. The Court should therefore dismiss it in its entirety. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Preliminary Objections to Plaintiff's Amended Complaint and dismiss Plaintiff's Amended Complaint in its entirety. Date: Ci MALI By: Respectfully Submitted, SALZMANN HUGHES, P.C. Melissa J. Kelso, Esq. Attorney I.D. No. 306793 Garret J. Brouwer, Esq. Attorney I.D. No. 312042 Salzmann Hughes, P.C. 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on the 9 day of September 2014, I served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Daniel Pollock, Esquire 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 Attorney for Plaintiff By: SALZMANN HUGHES, P.C. Ga et J. Brouwer, Esq.