HomeMy WebLinkAbout05-6721VIE KEPNER, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
:PENNSYLVANIA
v.
AND CONNIE SCHULTZ, :CIVIL ACTION/~ - ~
Defendants :No. CS=L7Jt ~,tvc.r T-t-v.~~
COMPLAINT
1. The Plaintiff is Bonnie Kepner, an adult individual,. who resides at 169 East
nfret Street, Cazlisle, Pennsylvania, ] 7013.
2. The Defendants are Tom and Connie Schultz, an adult individual, who reside at
Hamilton Road, Boiling Springs, Pennsylvania, 17007.
3. From October 29, 1990 to the present, the Defendants, Tom and Connie
iultz, either owned, operated managed, maintained or corttrolled certain premises
ated at 169 East Pomfret Street in the Borough of Carlisle, County of Cumberland,
f State of Pennsylvania.
4. From October 29, 1990 to the present, the Plaintiff was tenant of the
and was the lessee of the above described premises (Exhibit A).
5. Beginning approximately in the yeaz 1995, the roof of said premises began to
6. Said leaking increased in intensity with each passing year, and by 2003 water
damaged the roof, ceiling and interior to such an extent that a hole large enough to
u bats into the building was created. Defendants covered the hole with a screen
ibit B).
7. To provide an additional buffer from water entering the living area of the
ing without having to effect significant repairs on the roof, in 2004 Defendants
Iled a drop ceiling, essentially as astop-gap measure (Exxhibit C).
8. On July 2Q 2005, Plaintiff contacted her insurance company in regard to a
i for a mattress and clothes damaged by water that had leaked in through the roof.
claim was denied under Plaintiff's policy (Exhibit D).
4. A contractor was obtained to repair the roof and scaffolding went up
hounding the premises on November 11, 2005.
10. No substantive work was completed on November 14-15, 2005.
11. No work at all was completed November 16-20, 2005.
12.On or about November 16, 2005, the Defendants left for a two week
nation, telling the Plaintiff that she could contact the sister of Defendant Tom Schultz
there were any problems.
13. Plaintiff attempted to contact said sister of Defendant Tom Schultz, without
14. Some work was done on the premises on November 21-22, 2005.
15. The last day that the roof of the premises was worked on was November 22,
16. On November 29, 2005, there was significant rain in the Cazlisle area. At
ximately 8:30 p.m. on November 29, 2005, the Plaintiff contacted the contractor
the roof. The contractor intimated that the Historical 'Society of Carlisle had to
and approve any shingles to be placed on the roof, and a meeting with the
ical Society was slated for November 30, 2005.
17. No work on the roof arose from any purported meeting between the
actor and the Historical Society.
18. From the inception of the lease to the present, damage includes but is not
d to the following:
a. The carpet is saturated with rainwater.
b. The drop ceiling is bowed in many places and on the verge of collapse in many
c. Cracks in plaster have been patched with screen, which only serves to keep
bats and not water.
d. The foundation is falling down.
e. There aze numerous cracks throughout the building.
f. Personal items, including expensive ones such as mattresses have been
troyed by rainwater.
f
BONNIE KEPNER, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
:PENNSYLVANIA
v.
'OM AND CONNIE SHULTZ, :CIVIL ACTION
Defendants : No. OS-6721
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
th in the following pages, you must take action within twenty (20) days after this
fended Complaint and Notice are served, by entering a written appearance personally or
attorney and filing in writing with the Court your defenses or objections to the claims
forth against you. You are warned that if you fail to do so the case may proceed
hout you and a judgment may be entered against you by the Court without further
:ice for any money claimed in the Complaint of for any other claim or relief requested
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
(OT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
'BONNIE KEPNER, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
:PENNSYLVANIA
v.
TOM AND CONNIE SHULTZ,
Defendants
CNIL ACTION
No. OS-6721
ORDER
AND NOW, this
day of
2006, Plaintiffis
damages in the amount of
for rent abatement for all past
the premises in question were in breach of the implied warranty of habitability and
covenant to repair in the lease, as well as costs for heat loss, replacements for water-
personal items, attorneys' fees, and all appropriate civil penalties.
BY "CHE COURT,
J.
BONNIE KEPNER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
TOM AND CONNIE SHULTZ,
Defendants
CIVIL ACTION
No. OS-6721
AMENDED COMPLAINT
1. The Plaintiff is Bonnie Kepner, an adult individual, who resides at 169 East
Pomfret Street, Cazlisle, Pennsylvania, 17013.
2. The Defendants aze Tom and Connie Shultz, adult individuals, who reside at 10
Hamilton Road, Boiling Springs, Pennsylvania, 17007.
3. From October 29, 1990 to the present, the Defendants, Tom and Connie Shultz,
either owned, operated managed, maintained or controlled certain premises located at
169 East Pomfret Street in the Borough of Carlisle, County of Cumberland, and State
of Pennsylvania.
4. From October 29, 1990 to the present, the Plaintiff was tenant of the
Defendants, and was the lessee of the above described premises (Exhibit A).
5. Beginning approximately in the yeaz 1995, the roof of said premises began to
leak.
6. Said leaking increased in intensity with each passing year, and by 2003 water
had damaged the roof, ceiling and interior to such an extent that a hole large enough to
allow bats into the building was created. Defendants covered the hole with a screen
(Exhibit B).
7. To provide an additional buffer from water entering the living area of the
building without having to effect significant repairs on the roof, in 2004 Defendants
installed a drop ceiling, essentially as astop-gap measure (Exhibit C).
8.On July 20, 2005, Plaintiff contacted her insurance company in regard to a
claim for a mattress and clothes damaged by water that had leaked in through the roof.
This claim was denied under Plaintiff's policy (Exhibit D).
9. A contractor was obtained to repair the roof and scaffolding went up
surrounding the premises on November 11, 2005.
10. No substantive work was completed on November 14-15, 2005.
11. No work at all was completed November 16-20, 2005.
12.On or about November 16, 2005, the Defendants left for a two week vacation,
telling the Plaintiff that she could contact the sister of Defendant Tom Shultz if there
were any problems.
13. Plaintiff attempted to contact said sister of Defendant Tom Shultz, without
success.
14. Some work was done on the premises on November 21-22, 2005.
15. The last day that the roof of the premises was worked on was November 22,
2005.
16.On November 29, 2005, there was significant rain in the Cazlisle area. At
approximately 8:30 p.m. on November 29, 2005, the Plaintiff contacted the contractor
about the roof. The contractor intimated that the Historical Society of Cazlisle had to
view and approve any shingles to be placed on the roof, and a meeting with the
Historical Society was slated for November 30, 2005.
17. No work on the roof arose from any purported meeting between the contractor
and the Historical Society.
18. From the inception of the lease to the present, damage includes but is not
limited to the following:
a. The carpet is saturated with rainwater.
b. The drop ceiling is bowed in many places and on the verge of collapse
in many places.
c. Cracks in plaster have been patched with screen, which only serves to
keep out bats and not water.
d. The foundation is falling down.
e. There are numerous cracks throughout the building.
f. Personal items, including expensive ones such as mattresses have been
destroyed by rainwater.
33. Under 73 P.S. § 201-1 et seq., Defendants have a duty to refrain from unfair
or deceptive acts or practices in the conduct of their business dealings with the
Plaintiff.
34. Defendants have engaged in the following unlawful practices:
a. Failing to comply with the terms of any written guarantee or warranty
given to the buyer at, prior to or after a contract for the purchase of goods or
services is made;
b. Making repairs, improvements or replacements on tangible, real or
personal property, of a nature or quality inferior to or below the standard of that
agreed to in writing; and
c. Using a lease which contains a confessed judgment clause that waives
the consumer's right to assert a legal defense to an action.
35. The Defendants' engaging in unlawful practices have caused the Plaintiff to
incur costs for heat loss, replacements for water-damaged personal items, rent on an
uninhabitable house, and attorneys' fees.
WHEREFORE, Plaintiff asks that she be awazded rent abatement for all past
months the Court finds that the condition of the apartment was in breach of the
implied warranty of habitability and the covenant to repair in the lease, as well as costs
for heat loss, replacements for water-damaged personal items, attorneys' fees, all
appropriate civil penalties and other costs the Court deems appropriate.
Respectfully Submitted,
~~6 b
Date
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Cazlisle, PA 17013
Supreme Court I.D. No. 92977
(717)245-9688
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire hereby certify that I served a true and correct
copy of the Amended Complaint, by depositing same in the United States Mail,
ti
first class, postage pre-paid on the ~b " day of ~~nuNry , 2006, from
Carlisle, Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aaron Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717)245-9688
VERIFICATION
I, Michael M. Jerominski, Esquire, attorney for the Plaintiff herein, have'sufficient
knowledge of the facts contained in this Amended Complaint and verify that the
statements made in the foregoing Amended Complaint are true and correct to the best
of my knowledge, based upon information received from the Plaintiff. I understand that
false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904
relating to unsworn falsification to authorities. A verification executed by the Plaintiff will
be filed of record as soon as it becomes available.
Date Michael M. Jerominski, squire
,~x.
ARTICLE OF AGREEMENT
MADE thisaQ~ clay of September, A.D. 1993, between THOMAS A. SHULTZ
and CONNIE R. SHULTZ, husband and wife, licensed Commonwealth of
Pennsylvania real estate salespersons, of 10 Hamilton Road, Sailing Spring.
(:;oath Middle--ton Township), Cumberland County, Pennsylvania, herei.naf.ter
,eferred to as "Landlord", and
BONNIE L. KEP[JER, of 169 East. Pomfret Street, Carlisle, Cumberland County,
Pernsylvania, hereinafter referred to as "Tenant".
WITIdESSETH, that the sat-d Landlord, in consideration of the rents and
covenants hereinafter mentioned, doth demise and leas? unto the Tenant to
be used as a residential dwelling, the premises situate in the Borough of
Carlisle, Cumberland Cor_rnty, and Commonwealth of Pennsylvania, described as
follows:
Being known and numbered as 169 East Pomfret Street, Carlisle,
Cumberland County, Pennsylvania.
TO HAVE AND HOLD unto the Tenant, subject to the conditions of this
Agreement, for the term beginning on the 1st day of October, 1993, and
ending on the 30th day of September, 1994.
IN CONSIDERATION OF WHICH the said Tenant agrees to pay to Landlord the
sum of Six Thousand Six Hundred and No/100 i$6,600.00) Dollars, payable as
follows: Five Hundred Fifty and No/100 tS550.00) Dollars per month, in
advance, beginning on or before October, 1993, and thereafter on or before
the 1st day of each succeeding month so long as this lease remains in
forr_e. In addition, all charges for services to the premises shall be paid
by Tenant, including charges for electricity, telephone, refuse removal,
water and sewer rent, and heat.
AS A FURTHER CONSIDERATION for. the use and occupancy of said premises,
Tenant hereby agrees to faithfully keep and be bound by the following
covenants, conditions and agreements:
The said premises are to be kept and maintained in good repair and
condition as at present and at the expiration of this lease, they are to be
surrendered in like repair and condition, natural wear and damages
happening by fire, storm or other casualties only excepted, with Tenant
promptly delivering to handlord, at his address, all keys for the demised
premises.
The premises axe to be kept in a clean and sanitary condition and all
ashes or other garbage which may accumulate thereon during the term are to
ho removed, and in case of failure to remove the same, Landlord may collect
as rent due and in arrears the cost of removal; the water, lighting or
other service f.or the use of the occupants of the said premises furnished
by any public .service company during the said term shall he paid for by
Tenant unless otherwise provided herein, or the same may be collected by
Landlord as rent due and in arrears. Tenant shall keep the lawn mowed, to
be no longer than 6" in length at any time.
Ncthi.ng shall be done upon said premises contrary to the conditions of
the, policies of insurance upon the buildings thereon whereby T_he hacard may
be increased or tl;e insurance invalidated; neither the whole nor. any
portio^ of the said premises shall be sublet, nor shall this lease or any
i_ritere::;i. therein be assigned, nor shall Tenant remove or attempt tc remove
- 7 -
from said premises during the term of this lease, without the written
consent of Landlord; and no unlawful business shall at any time be carried
on upon said premise:;.
If the house .is damaged by faire or other. casualty, Landlord shall
_*epair it within a reasonable time and-rent shall continue unless the
casualty renders the house untenable, in which case this lease shall
terminate and the Tenant, upon payment of all rent to the date the house is
surrendered, shall not be liable for any further rent.
Tenant agrees to pay as "additional rent" any and all sums which may
become due by reason of the failure of Tenant to comply with all of the
covenants of this lease and any and all damages, costs, and expenses which
the Landlord may Buff-er or incur. by reason of any default of the Tenant or
failure on his part to comply with the covenants of this lease, and each of
them, and also any and all damages to the demised premises caused by any
act or neglect of the Tenant.
Landlord expressly reserves the right to enter upon the premises at
reasonable times for the purpose of making necessary inspection or repairs,
or to show the same to prospective purchasers or tenants, and may display
"For Rent" or "For Sale" cards or signs thereon.
All rent shall be payable without notice or demand at the address of
Landlord or at such other place as Landlord may from time to time designate
by notice in writing. Tenant. agrees to pay a late payment charge of $10.00
if rent is not paid in full on the 1st of each month plus $2.00 per day on
late rental payments beginning on the 2nd day of each month. Post date of
mailing on envelope shall be considered the date received.
If default shall be made in the payment of any part of the said rent
after the same becomes due, or in case of a breach or evasion or any
attempt to break or evade any of the covenants or conditions of this
agreement, the entire rent reserved for the full term of this lease
remaining unpaid shall become due and payable at once and may fortho-rith he
collected, and at the same time the Landlord may forfeit and ann~zl the
unexpired portion of this lease and enter upon and repossess the said
premises with or without process of law, and without giving any notice
whatsoever.
Acceptance by the Landlord of any of the said rent at any time after.
the same shall become due, after default has been made in the payment
thereof, or any failure to enforce any of the rights herein reserved to
Landlord or any of the conditions herein contained, shall not in any wise
be considered a waiver of the right to enforce the same at any time without
any notice whatsoever, and any attempt to collect the rent by one
proceeding shall not be considered as a waiver of the right to collect the
same by any other proceeding, but all of the rights of Landlord, and all
conditions may be enforced together or successively at the option of
Landlord.
Receipt of a $525.00 secur.i.ty deposit, paid by Tenant is acknowledged by
Landlord and has been deposited in a security deposit- account of Landlord
at Meridian Sank.
It is her.el~y mutually agreed that either. Landlord or Tenant may
terminate this= lease ar_ the end of the. initial term by giving to th.: other
_ "~
party written notice at least 30 days prior thereto, Yrut in default of such
notice, this lease shall. continue an a month to month basis upon the same
terill a17d conditions as were in f~.~rce immediately prior to the expiration
of the ir.itiral term, until properly terminated by either Landlord or
Tenant.
The monthly rent may be increased by the Landlord giving 90 days'
written notice to the 'Penant of the increase.
Tenant: agrees to use due care in the use of t:he house, the appliances
therein, and all other parts oY Landlord's property, to give notice to
Landlord of the need for repair thereof, and to pay for all repairs to the
house, its contents, and to all other parts of Landlord's property which
are necessitated by any act or lack of care on the part of Tenant, members
of Tenant's family, or Tenant's visitors. Landlord will make necessary
repairs tc the house within a reasonable time after Tenant notifies
Landlord in writing of the need fox repairs. Tenant agreed not to do or
permit any act or practice injurious to the building which may be
disturbing to other residents, which may affect the insurance on the
building, or which is r_ontrary to any law. Painting and similar cosmetic
maintenance shall be performed by Tenant, with Landlord providing
matari.al.s.
Landlord shall not be liable fox property damage or personal injury
resulting from any failure to maintain or repair the house, the appliances
therein, or any other part of L'andlord's property unless the damage or
injury results from a failure or refusal to make repairs for which Landlord
is responsible under the terms of this lease within a reasonable time
following written notice by Tenant of the need fox repairs.
Tenant further agrees that Landlord shall not be liable for property
damage or personal injury occurring in the house or elsewhere on Landlord's
property unless the darnage or injury results directly and exclusively from
Landlord's negligence.
It is further agreed that if Tenant shall become insolvent, make an
assignment for the benefit of creditors, commit any act of bankruptcy, file
a voluntary petition in bankruptcy, or if any judgment shall be entered or
an involuntary petition in bankruptcy he filed against Tenant, ail the rent
reserved for the full term of this :Lease remaining unpaid shall become due
and collectible immediately.
The Tenant hereby waives the usual notice to quit, and agrees to
surrender said premises at the expiration of said term, or the termination
of this lease without any notice whatsoever. And upon any proceeding
instituted for the recovery of said rent, Tenant waives the benefit of all
appraisement, stay and exemption laws, the rights of inquisition on real
estate, and all bankruptcy or insolvency laws now in force or hereafter
passed.
Upon the breach of any of the covenants or agreements of this lease or
upon its termination by forfeiture, default or. expiration, any attorney of
any Ccurt of P.ecord of Pennsylvania in hereby aui:hox'ized to appear for anc]
to confess judgment i.n an amicable action of ejectment: against Tenant and
in favor of Landlord for the premises herein described, and to direct the
imrnediate issuing of a writ of possession to include a clause for costs and
rent due and for cirar_ges collectible hereunder as rent, waiving all
_ ._
.rregularii.ies, without' notice and without askinc; leave of court.
It is further agreed tf;at the Y_errn. and conditions of this ayreernent
and lease shall. in no way be changed or altered except by a writing signed
by all of the parties hereto.
Tne conditions of this agreerneni: shall extend to the adircinis'~rators and
exe~,LttorS of all the parties hereto.
The rules and regulations in regard to the demised premises are printed
on the last page of this lease, and the said Tenant covenants and agrees
that t:he said rules and regulations shall- be faithfully observed by the
Tenant, all members of Tenant's family and all guests of the Tenant,
IN WITNESS WHEREOF, the parties aforesaid have hereunto set their hands
and seals the day and year first above written.
IN THE PRESENCE OF
(SEAL)
Thomas A. Shultz
(SEAL)
'e R. Shultz
~~~~~;~ (SEAL)
Bonnie L. Kep er
(SEAL)
Checks or money orders for monthly payment of rent shall be made
payable to Thomas A. Shultz and mailed or delivered to him at 10 Hamilton
Road, Boiling Springs, PA 17007, or any other location indicated in
writing by Landlord to Tenant,
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State Farm Insurance
July 29, 2(,~:' =
R
BONNIE L tCl•3~r; rER
169 E POMFRET ST
CARLISLE PA 17013
RE: Our Claim Number: 38-P751-008
Date of Loss: July 20, 2005
Dear Ms. Kepner:
Companies®
STATI IARM ~~^~~
® (J I ~~
INSURANCI
Fire Claims Central
PO Box 11
Concordville, PA 19331-0011
This letter shall serve as confirmation of our conversation from July 27, 2005, in reference to
the renter's claim you submitted. As we discussed, over the past several years, you have been
experiencing a roof leak which had been causing damage in your son's bedroom. You advised
that your landlord has attempted on numerous occasions to fix the problem, but, unfortunately,
those attempts have been unsuccessful. I explained that your personal property is covered for
named perils, and unfortunately, at this time, there is no named peril to provide coverage for
your personal property. At this time, I would like to bring your attention to the policy provisions
regarding your claim.
SECTION I -LOSSES INSURED
COVERAGE B -PERSONAL PROPERTY
We insure for accidental direct physical loss to property described in Coverage B caused
by the following perils, except as provided in SECTION I -LOSSES NOT INSURED:
1. Fire or lightning.
2. Windstorm or hail. This peril does not include loss to property contained in a building
caused by rain, snow, sleet, sand or dust. This limitation does not apply when the
direct force of wind or hail damages the building causing an opening in a roof or wall
and the rain, snow, sleet, sand or dust enters through this opening.
F_~
HOME OFFICES: BLOOMINGTON, ILLINOIS 61710-0001 1~
' ' ' BONNIE L KEPNER
38-P751-008
Page 2
July 29, 2005
Thi ?eril does not include loss to outdoor antennas caused directly or indirectly by ice
(ott ~• than hail), snow or sleet, all whether driven by wind or not.
This eril includes loss to watercraft of all types and their trailers, furnishings,
equiF lent, and outboard motors, only while inside a fully enclosed building.
3. Explosion.
4. Riot or civil commotion.
5. Aircraft, including self-propelled missiles and spacecraft.
6. Vehicles, meaning impact by a vehicle.
7. Smoke, meaning sudden and accidental damage from smoke.
This peril does not include loss caused by smoke from agricultural smudging or
industrial operations.
8. Vandalism or malicious mischief, meaning only willful and malicious damage to or
dest4uction of property.
9. Theft, including attempted theft and loss of property from a known location when it is
probable that the property has been stolen.
This peril does not include:
a. loss of a precious orsemi-precious stone from its setting;
b. loss caused by theft:
(1) committed by an insured or by any other person regularly residing on the
insured location. Property of a student who is an insured is covered while
located at a residence away from home, if the theft is committed by a person
who is not an insured;
(2) in or to a dwelling under construction or of materials and supplies for use in
the construction until the dwelling is completed and occupied; or
(3) from the part of a residence premises rented to others:
(a) caused by a tenant, members of the tenant's household, or the tenant's
employees;
BONNIE L KEPNER
38-P751-008
Page 3
July 29, 2005
(b) of money, bank notes, bullion, gold, goldware, silver, silverware,
pewterware, platinum, coins and medals;
(c) of securities, checks, cashier's checks, traveler's checks, money orders
and other negotiable instruments, accounts, deeds, evidences of debt,
letters of credit, notes other than bank notes, manuscripts, passports,
tickets and stamps; or
(d) of jewelry, watches, fur garments and garments trimmed with fur,
precious and semi-precious stones;
c. loss caused by theft that occurs away from the residence premises of:
(1) property while at any other residence owned, rented to, or occupied by an
insured, except while an insured is temporarily residing there. Property of a
student who is an insured is covered while at a residence away from home;
(2) watercraft of all types, including their furnishings, equipment and outboard
motors; or
(3) trailers and campers designed to be pulled by or carried on a vehicle.
If the residence premises is a newly acquired principal residence, property in the
immediate past principal residence shall not be considered property away from the
residence premises for the first 30 days after the inception of this policy.
10. Falling objects. This peril does not include loss to property contained in a building
unless the roof or an exterior wall of the building is first damaged by a falling object.
Damage to the falling object itself is not included.
11. Weight of ice, snow or sleet which causes damage to property contained in a
building.
12. Sudden and accidental discharge or overflow of water or steam from within a
plumbing, heating, air conditioning or automatic fire protective sprinkler system, or
from within a household appliance.
This peril does not include loss:
a. to the system or appliance from which the water or steam escaped;
b. caused by or resulting from freezing;
' BONNIE L KEPNER
38-P751-008
Page 4
July 29, 2005
t i ,
c. ;aused by or resulting from water or sewage from outside the residence
premises plumbing system that enters through sewers or drains, or water which
enters into and overflows from within a sump pump, sump pump well or any other
system designed to remove subsurface water which is drained from the foundation
area; or
d. caused by or resulting from continuous or repeated seepage or leakage of water
or steam which occurs over a period of time and results in deterioration, corrosion,
rust, mold, or wet or dry rot.
13. Sudden and accidental tearing asunder, cracking, burning or bulging of a steam
or hot water heating system, an air conditioning or automatic fire protective sprinkler
system, or an appliance for heating water.
This peril does not include loss:
a. caused by or resulting from freezing; or
b. caused by or resulting from continuous or repeated seepage or leakage of water
or steam which occurs over a period of time and results in deterioration, corrosion,
rust, mold, or wet or dry rot.
14. Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler
system, or of a household appliance.
This peril does not include loss on the residence premises while the dwelling is
vacant, unoccupied or being constructed, unless you have used reasonable care to:
a. maintain heat in the building; or
b. shut off the water supply and drain the system and appliances of water.
15. Sudden and accidental damage to electrical appliances, devices, fixtures and wiring
from an increase or decrease of artificially generated electrical current. We will pay up
to $1,000 under this peril for each damaged item described above.
16. Breakage of glass or safety glazing material which is part of a building, storm door
or storm window, and is covered under SECTION I -ADDITIONAL COVERAGES,
Building Additions and Alterations.
This peril does not include loss on the residence premises if the residence has been
vacant for more than 30 consecutive days immediately before the loss.
' BbNNIE L KEPNER
38-P751-008
Page 5
July 29, 2005
17. Breakage of glass, meaning damage to personal property caused by breakage of
glass which is a part of a building on the residence premises. There is no coverage
for loss or damage to the glass.
SECTION I -CONDITIONS
e r
7. Suit Against Us. No action shall be brought unless there has been compliance with
the policy provisions. The action must be started within one year after the date of loss
or damage.
If you have any further questions or concerns in regard to the claim, please feel free to contact
us at the number below.
Sincerely,
John Dougherty
Claim Representative
888 620 2650 ext 7607
Fax 888 620 X652
State Farm F.re and Casualty Company
1 3/71 1 /0 7 27 01 7
cc: 38-6278
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'Tutu Law Offices
RON TURD, Esquire
GALEN R. WALTZ, Esquire
www.TuroLaw.com
28 South Pitt Street
Carlisle, Pennsylvania 17013
(717) 245-9688
JAMES M. ROBINSON, Esquire
RICHARD D. KOCH, Esquire *
MICHAEL M. JEROMINSKI, Esquire
MICHAEL R. SMITH, Esquire
*Also Admitted in Maryland
December 2, 2005
Tom Shultz
10 Hamilton Road
Boiling Springs, PA 17007
Re: Property at 169 East Pomfret
Dear Mr. Shultz:
(800) 562-9778
Fax (717) 245-2165
I am writing on behalf of my client, Bonnie Kepner, who rents the property at 169 East Pomfret
Street in Calisle from you.
In short, the property is in deplorable condition through no fault of my client. It is clear that the
roof has been leaking for at least eight years, and despite your having been notified of this condition
repeatedly by Ms. Kepner, nothing has been done to repair the roof except for measures that, at best,
are merely cosmetic.
The total lack of concern for the roof has led to the following conditions in the property:
1. The carpet is saturated with rainwater.
2. The drop ceiling is bowed in many places and on the verge of collapse in many places.
3. Cracks in plaster have been patched with screen, which only serves to keep out bats and
not water.
4. The foundation is falling down.
5. There are numerous cracks throughout the building.
6. Personal items, including expensive ones such as mattresses have been destroyed by
rainwater.
7. Rainwater has literally pooled in light fixtures affixed to the ceiling, creating a danger of
electrocution and ruining electrical work.
8. Ms. Kepner has been forced to use approximately two dozen buckets and containers in
order to minimize the damage that the rainwater has caused. There are so many places where water
is leaking in that she has run out of containers for rainwater and has to resort to using blankets during
heavy rainfalls.
9. The property smells unbearably, and the contamination of the property has aggravated Ms.
Kepner's asthma so much, that she has had to stay at her mother's house.
E,r .
me wn~e ia.t~nnix
~ - ++ s
4J ~
To make matters worse, contractors you hired on or about November 11, 2005, have failed to
show up to do work on the building on any days since then, with the exception of November 21 and
22, 2005. Furthermore, you have asked Ms. Kepner to conceal information from or essentially lie to
the Historical Society and insurance adjusters.
To sum up, the property is unfit for habitation. If work replacing the roof and ceilings and
repairing all damage due to water are not commenced by December 7, 2005, and repaired to Ms.
Kepner's satisfaction, Ms. Kepner will have no choice but to pursue all legal remedies at her disposal.
If you have any questions, feel free to contact me.
Sincerely,
/~y1 /Yyl. Qi~
Michaei M. Jerominski, Esquire
MMJ/mmj
cc: Bonnie Kepner
<._
g. Rainwater has literally pooled in light fixtures affixed to the ceiling, creating
danger of electrocution and ruining electrical work.
h. Ms. Kepner has been forced to use approximately two dozen buckets and
ainers in order to minimize the damage that the rainwater has caused. There aze so
~y places where water is leaking in that she has run out of containers for rainwater
has to resort to using blankets during heavy rainfalls.
i. The property smells unbeazably, and the contamination of the property
ravated Ms. Kepner's asthma so much that she has had to stay at her mother's
19. The Defendant landlords had ample notice of the condition of the roof, and
Tom Schultz has been to the premises approximately fifteen (15) times
the last calendar year.
20. Defendants also had notice given to them on Hume:rous occasions by the
iff regazding the condition of the roof.
21. The Defendants have refused to fix the roof and interior of the premises.
pit E).
22. The lease governing the premises calls for repairs to be made upon notice in
g given by the tenant. Such notice was given in the form of a letter from
attorney, dated December 2, 2005 (Exhibit F).
COUNT I -IMPLIED WARRANTY OF HABITABILITY
23. Paragraphs I-22 are incorporated by reference herein as ifset out in full.
24. Defendants had notice of the condition of the roof and interior.
25. Defendants had ample opportunity to make repairs on the roof and interior of
premises.
26. Defendants have refused to repair said roof and interior of the premises.
WHEREFORE, Plaintiff asks that she be awarded rent abatement for all past
is the Court finds that the condition of the apartment was in breach of the implied
my of habitability and the covenant to repair in the lease, as well as costs for heat
replacements for water-damaged personal items, and other costs the Court deems
COUNT II -BREACH OF CONTRACT
27. Paragraphs 1-26 aze incorporated by reference herein as if set out in full.
28. Defendants and Plaintiffs entered into a valid lease, dated September 20,
993, and renewed on a yearly basis each yeaz thereafter.
29. The lease states that "[l]andlord shall not be liable for property damage or
nal injury resulting from any failure to maintain or repair the house, the appliances
in, or any other part of Landlord's property unless the damage or injury results
a failure or refusal to make repairs for which Landlord is responsible under the
of this lease within a reasonable time following written notice by Tenant of the
of repairs."
30. Defendants have breached their duty to repair the premises and keep them
31. Plaintiff has suffered pecuniary losses including, but not limited to, monies
to replace personal items damaged by the Defendants' failure and refusal to repair
premises and payment of rent for a dwelling that is uninhabitable.
WHEREFORE, Plaintiff asks that she be awarded rent abatement for all past
mths the Court finds that the condition of the apartment was in breach of the implied
rranty of habitability and the covenant to repair in the lease, as well as costs for heat
s, replacements for water-damaged personal items, specific performance as to repair
the roof and any water- or mold-damaged portions of the premises, and other costs
Court deems appropriate.
COUNT III -NEGLIGENCE
32. Paragraphs 1-31 aze incorporated by reference herein as if set out in full.
33. Defendants had the duty or obligation to conform to certain standazds of
luct for the protection of the Plaintiff against the foreseeable risk of water and mold
age should they fail or refuse to repair the roof of the premises.
34. Defendants failed to conform to certain standards of conduct for the protection
ie Plaintiff against the foreseeable risk of water and mold damage when they failed
refused to repair the roof of the premises.
35. The Defendants' failure and refusal to repair the roof and interior of the
Wises proximately caused the water and mold damage to the premises.
36. Defendant's failure and refusal to repair the roof and interior of the premises
red the Plaintiff to incur costs for heat loss, replacements for water-damaged
zonal items, and rent on an uninhabitable house.
WHEREFORE, Plaintiff asks that she be awazded rent abatement for all past
hs the Court finds that the condition of the apartment was in breach of the implied
mty of habitability and the covenant to repair in the lease, as well as costs for heat
replacements for water-damaged personal items, and other costs the Court deems
COUNT IV -FAIR TRADE AND BUSINESIS PRACTICES
37. Paragraphs 1-36 aze incorporated by reference herein as if set out in full.
3&. Under 73 P.S. § 201-1 et seq., Defendants have a dluty to refrain from unfair
deceptive acts or practices in the conduct of their business dealings with the Plaintiff.
39. Defendants have engaged in the following unlawfi~] practices:
a. Failing to comply with the terms of any written guarantee or warranty given
the buyer at, prior to or after a contract for the purchase of goods or services is made;
b. Making repairs, improvements or replacements on tangible, real or personal
aperty, of a nature or quality inferior to or below the standard of that agreed to in
iting; and
c. Using a lease which contains a confessed judgment rlause that waives the
nsumer's right to assert a legal defense to an action.
40. The Defendants' engaging in unlawful practices have caused the Plaintiff to
costs for heat loss, replacements for water-damaged personal items, rent on an
house, and attorneys' fees.
WHEREFORE, Plaintiff asks that she be awazded rf;nt abatement for all past
hs the Cour[ finds that the condition of the apartment vvas in breach of the implied
snty of habitability and the covenant to repair in the lease, as well as costs for heat
replacements for water-damaged personal items, attornieys' fees, all appropriate
penalties and other costs the Court deems appropriate.
Respectfully Submitted,
lfL1
Michael M. Jero:minski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court LD. No. 92977
(717)245-9688
VERIFICATIOIN
I verify that the statements made in the foregoing Complaint are true and correct.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904 relating to unsworn falsification to authorities.
i"
Date Bonnie Kepn
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire hereby certify that I served a true and correct
copy of the Complaint, by depositing same in the United States Mail, first class,
J
postage pre-paid on the LZ '- day of `,)etem ei 2005, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstem~acher
Fenstermacher and As:>ociates P.C.
5115 East Trindle~ Road
Mechanicsburg, PA 17050-3624
TURD LAW' OFFICES
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court 1.D. No. 92977
(717)245-9688
ARTICLE OF AGREEMEN`.C
MADE this~Q.~ day of September, A.D. 1993, between THOMAS A. SHIILTZ
anal CONNIE R. SHULTZ, husband and w.i.fe, licensed Commonwealth of
Pennsylvania real estate salespersons, of 10 Hamilton P.oad, Bnilinq Springs
(south Middleton Township), Cumberland County, Pennsylvania, hereinaf.tE:r_
.eferred to as "Landlord", and
E3ONNIE L. KEPIdER, of 169 East. Pomfret Street, Carlisle, Cumberland County,
Pennsylvania, hereinafter referred to as "Tenant".
wITNESSETH, that the said Landlord, in consideration of the rents and
covenants hereinafter mentioned, doth demise and lease unto the Tenant to
be used as a residential dwelling, the premises situate in the Borough of
Carlisle, Cumberland County, and Commonwealth of Pennsylvania, described as
follows:
Being known and numbered as 169 East Pomfret Street, Carlisle,
Cumberland County, Pennsylvania.
TO HAVE AND HOLD unto the Tenant, subject to the conditions of this
Agreement, for the term beginning on the 1st day of October, 1993, and
ending on the 30th day of September, 1999.
IN CONSIDERATION OF WHICH the said Tenant agrees to pay to Landlord the
sum of six Thousand Six Hundred and No/100 ($6,600.00) Dollars, payable as
follows: Five Hundred Fifty and No/100 (5550.00) Dollars tier month, in
advance, beginning on or before October, 1993, and thereafter on or before
the 1st day of each succeeding month so long as this lease remains in
force. In addition, all charges for services to the premises shall be paid
by Tenant, inr_ludinq charges for electricity, telephone, refuse removal,
water and sewer rent, and heat.
AS A FURTHER CONSIDERATION for. the use and occupancy of said premises,
Tenant hereby agrees to faithfully keep and be bound by the following
covenants, conditions and agreements:
The said premises are to be kept and maintained in good repair and
condition as at present and at the expiration of this lease, they are to be
surrendered in like repair and condition, natural wear and damages
happening by fire, storm or other casualties only excepted, with Tenant
promptly delivering to Landlord, at his address, all keys for the demised
premises.
The premises are to be kept in a clean and sanitary condition. and all
ashes or other garbage which may accumulate the:eeon during the term are to
be removed, and in case of failure to remove the same, Landlord may collect
as rent due and in arrears the cost of removal; the water, lightin~3 or
other service for the use of the occupants of the said premises furnished
by any public service company during the said to=_rm shall be paid for by
Tenant unless otherwise provided herein, or the same may be collected by
Landlord as rent due and in arrears. Tenant shall keep the lawn mowed, to
be no longer than 6" in length at any time.
Nothing shall be dont° upon said premisFS contrary to the conditions of
the policies of insurance upon the buildings thereon whereby the hazard may
be increased or 'the insurance invalidated; neither the whole nor any
portion of the said premises shall be sublet, nor shall this b ase or any
interest therein be assigned, nor shall Tenant remove or attempt tr, remove
~ -
from said premises during the term of this lease, without the written
consent of Landlord; and no unlawful business shall at any time be carried
on ,zpon said premises.
If the house is damaged by fire or other. casualty, Landlord shall
repair it within a reasonable time and-rent shall continue unless the
casualty renders the house untenable, in which case this lease shall
Y.erminate and the Tenant, upon payment of all rent tc th2 date the house is
surrendered, shall not he liable for any further rent.
Tenant agrees to pay as "additional rent" a.ny and all sums which may
become due by reason of the failure of Tenant t.o comply with all of the
covenants of this lease and any and all damages, costs, and expenses which
the Landlord may suffer or incur by reason of a.ny default of the Tenant or
failure on his part to comply with the covenants of this lease, and each of
them, and also any and all damages to the demised premises caused by any
act or neglect of the Tenarxt.
Landlord expressly reserves the right to enter upon the premises at
reasonable times for the purpose of making necessary inspection or repairs,
or to show the same to prospective purchasers or tenants, and may display
"FOr Rent" OY "FOr Sale" CaYd5 OY signs thereon.
All rent shall be payable without notice or demand at the address of
Landlord or at such other place as Landlord may from time to time designate
by notice in wYiting. Tenant agrees to pay a late payment charge of $10.00
if rent is not paid in ftz11 on the 1st of each month plus $2.00 per day on
late rental payments beginning on the 2nd day of each month. Post date of
mailing on envelope shall be considered the date received.
If default shall be made in the payment of any part of the said rent
after the same. becomes due, or in case of a breach or evasion or any
attempt to break or evade any of the covenants or conditions of this
agreement, the entire rent reserved for the full term of this lease
remaining unpaid shall become due and payable at once and may forthwith be
collected, and at the same time the Landlord may forfeit and annul the
unexpired portion of this lease and enter upon .and repossess the said
premises with or without process of law, and without giving any notice
whatsoever.
Acceptance by the Landlord of any of the said rent at any time after
the same shall become due, after default has been made in the payment
thereof., or any failure to enforce any of the rights herein reserved to
Landlord or any of the conditions herein contained, shall not in any wise
be considered a waiver of the right to enforce 'she same at any time without
any notice whatsoever, and any attempt to collect the rent by one
proceeding shall not be considered as a waiver of the right to collect the
same by any other proceeding, but all of the rights of Landlord, and all
conditions may be enforced together or successively at the option of
Landlord.
Receipt of a 5525.00 security deposit paid by Tenant is acknowledged by
Landlord .and has been deposited in a security deposit account of Landlord
at Meridian Sank.
It is hereby mutually agreed that either Land7.o'rd or Tenant may
terminate this lease at the end of the initial germ by giving to the other
_ ~ _
party written notice at least 30 days prior thereto, but in default of such
notice, this lease shall. continue on a month to month basis upon the same
terms and conditions as were in f~-~rr_e immediately prior to the expiration
of the initial term, until properly terminated by wither Landlord oz
Ten<rnt.
The monthly rent may be increased by the Landlord giviny ~0 days°
written notice to the Tenant of the increase.
Tenant: agrees to use due care in the use of i:he house, the appliances
therein, and all other parts of Landlord's property, to give notice to
Landlord of the need for repair thereof, and to pay for all repairs to the
house, its contents, and to all other parts of Landlord's property which
are necessitated by any act: or lack of care on the part of Tenant, members
of Tenant's family, or Tenant's visitors. Landlord will make necessary
repairs 'to the house within a reasonable time after Tenant notifies
Landlord in writing of the need for repairs. Tenant agreed not to do or
permit any act or practice injurious to the building which may be
disturbing to other residents, which may affect: the insurance on the
building, or which is contrary to any law. Painting and similar cosmetic
maintenance shall be performed by Tenant, with Landlord providing
materials.
Landlord shall not be liable fox property damage or personal injury
resulting from any failure to maintain or repair the house, the appliances
therein, or any other part of L,andlord's property unless the damage or
injury results from a failure or refusal to make repairs for which Landlord
is responsihle under the terms of this lease within a reasonable time
following written notice by Tenant of the need for repairs.
Tenant further agrees that Landlord shall not be liable for property
damage or personal injury occurring in the house or elsewhere en Landlord's
property unless the damage or injury results directly and exclusively from
Landlord's negligence.
It is further agreed that if Tenant shall become insolvent, make an
assignment for the benefit of creditors, commit any act of bankruptcy, file
a voluntary petition in bankruptcy, or if any judgment shall be entered or
an involuntary petition in bankruptcy be riled against Tenant, ail the rent
reserved for. the full term of this lease remaining unpaid shall become due
and collectible immediately.
The Tenant hereby waives the usual. notice to quit, and agrees to
surrender said premises at the expiration of said term, or the termination
of this lease without any notice whatsoever. And upon any proceeding
instituted for the recovery of said rent, Tenant waives the benefit of al.l
appraisement, stay acrd exemption laws, the rights of inquisition ort real
estate, and all bankruptcy ar insolvency laws now in force or hereafter
passed.
Upon the breach of any of the covenants or agreements of this lease oz
upon its termination by forfeiture, default or E=xpiration, any attorney of
any Ccurt of Record of E'ennsylvania in hereby authorized to appear for and
tc confess judgment in an amicable action of ejectment against Tenant and
in favor of_ Landlord for the premises herein desr_ribed, and to direr_t the
immediate issuing of a writ of possession t:~ include a clause for costs and
rent due and far charges collectible hereunder as rent, waiving all
- -
irregularities, without notice and without aslci.ng leave of court.
I*_ is further agreed that the terms and conditions of this agreement
and lease shall. in no way be changed or altered except by a writing signed
by all of the parties hereto.
'Phe conditions of thin agreement: shall extend to the administrators and
executors of all the parti~=_s hereto.
The rules and regulations in regard to the demised premises are printed
on the last page of this 1P_aSe, and the said Tenant covenants and .agrees
that t:he said rules and regulations shall. be faithfully observed by the
Tenant, all members of Tenant's family and all guests of the Tenant.
IN rAITNESS WHEREOF, the parties aforesaid have hereunto set their hands
and seals the day and year first above written.
IN THE PRESENCE OF
~-~y-"~ ( SEAL )
Thomas A.. Shultz
f (SEAL1
.. 'e R. Shultz
(SEAL)
Bo_. Kep er ____
Checks or money orders for monthly payment of rent
payable to Thomas A. Shultz and mailed or del>v~ered to
P.oad, Boiling Springs, PA 17007, or any other location
writing by Landlord to Tenant.
(SEAL)
shall. be made
him at 10 Hamilton
indicated in
- 4 -
OCCUPANCY RULES AND REGULATIONS
7. Upon termination of the lease, Tenant shall surrender the haue,e tc
Landlord in cornpliance with the following conditions:
(a) No damage to the house, or appliances of Landlord,
beyond fair wear and tear. Dirt is not fair wear and tear.
(b) The entire house, including Landlord appliances,
bathroom, closets and cabinets must be clean.
(c) No stickers on or holes in ~~/alls. All burned-out light:
bulbs to be replaced.
(d) All keys must be returned.
(e) All debris, rubbish and discards roust he placed in
proper. rubbish containers.
2. Tenant shall not change locks or install additional locks, chains
or other fasteners without the written consent of Landlord.
~. At the termination of the lease, Tenant. must remove all personal
property not belonging to Landlord from the house.
4. Tenant and his guests shall not at any time make any noise, or do
anything or conduct themselves in any way which disturbs any other tenant
or interferes with the rights, comfort or convenience of any other tenant.
5. Tenant agrees that Landlord may change these regulations from time
to time as may be required to protect the house or Landlord's other
property, or add to the comfort and convenience of ali tenants in the
community of which the house is a part.
6. Tenant is responsible for lawn care and snow removal as needed and
in acr_ardanr..e with the other conditions of this lease.
7. Tenant will be certain to leave at least as much fuel oil as was
available at the beginning of the lease period when vacating the premises.
- 5 -
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SECTIONI-LOSSESINSURED
COVERAGE B -PERSONAL PROPERTY
We insure for accidental direct physical loss to property described in Coverage B caused
by the following perils, except as provided in SECTION I -LOSSES NOT INSURED:
1. Fire or lightning.
2. Windstorm or hail. This peril does not include loss to property contained in a building
caused by rain, snow, sleet, sand or dust. This limitation does not apply when the
direct force of wind or hail damages the building causing an opening in a roof or wall
and the rain, snow, sleet, sand or dust enters through this opening.
State Farm Insurance Companies®
July 29, 2Go: ~=
f
BONNIE L i(tr,°rER
169 E POMFRET ST
CARLISLE PA 17013
RE: Our Claim Number:
Date of Loss:
Dear Ms. Kepner:
38-P751-008
July 20, 2005
STATI fAMM P~~
L[ I ~% /
® CJ
INSU EANCE
0
Fire Claims Central
PO Boz 11
Concordville, PA 19331-0011
This letter shall serve as confirmation of our conversation from ,;luly 27, 2005, in reference to
the renter's claim you submitted. As we discussed, over the past several years, you have been
experiencing a roof leak which had been causing damage in your son's bedroom. You advised
that your landlord has attempted on numerous occasions to fix the problem, but, unfortunately,
those attempts have been unsuccessful. I explained that your personal property is covered for
named perils, and unfortunately, at this time, there is no named peril to provide coverage for
your personal property. At this time, I would like to bring your attention to the policy provisions
regarding your claim.
HOME OFFICES: BLOOMINGYON. ILLINOIS 61710-0001
BONNIE L KEPNER
38-P751-008
Page 2
July 29, 2005
.,
Thi ,?eril does not include loss to outdoor antennas caused directly or indirectly by ice
(ott ~ ~ than hail), snow or sleet, all whether driven by wind or not.
This eril includes loss to watercraft of all types and their trailers, furnishings,
equiF lent, and outboard motors, only while inside a fully enclosed building.
3. Explosion.
4. Riot or civil commotion.
5. Aircraft, including self-propelled missiles and spacecraft.
6. Vehicles, meaning impact by a vehicle.
7. Smoke, meaning sudden and accidental damage from smoke.
This peril does not include loss caused by smoke from agricultural smudging or
industrial operations.
8. Vandalism or malicious mischief, meaning only willful and malicious damage to or
destruction of property.
9. Theft, including attempted theft and loss of property frorn a known location when it is
probable that the property has been stolen.
This peril does not include:
a. loss of a precious orsemi-precious stone from its sel:ting;
b. loss caused by theft:
(1) committed by an insured or by any other person regularly residing on the
insured location. Property of a student who is an insured is covered while
located at a residence away from home, if the theft is committed by a person
who is not an insured;
(2) in or to a dwelling under construction or of materials and supplies for use in
the construction until the dwelling is completed and occupied; or
(3) from the part of a residence premises rented to others:
(a) caused by a tenant, members of the tenant's household, or the tenant's
employees;
BONNIE L KEPNER
38-P751-008
Page 3
July 29, 2005
(b) of money, bank notes, bullion, gold, goldware, silver, silverware,
pewtenvare, platinum, coins and medals;
(c) of securities, checks, cashier's checks, traveler's checks, money orders
and other negotiable instruments, accounts, deeds, evidences of debt,
letters of credit, notes other than bank notes, manuscripts, passports,
tickets and stamps; or
(d) of jewelry, watches, fur garments and garments trimmed with fur,
precious and semi-precious stones;
c. loss caused by theft that occurs away from the residence premises of:
(1) property while at any other residence owned, rented to, or occupied by an
insured, except while an insured is temporarily residing there. Property of a
student who is an insured is covered while at a residence away from home;
(2) watercraft of all types, including their furnishing:>, equipment and outboard
motors; or
(3) trailers and campers designed to be pulled by or carried on a vehicle.
If the residence premises is a newly acquired principal residence, property in the
immediate past principal residence shall not be considered property away from the
residence premises for the first 30 days after the inception of this policy.
10. Falling objects. This peril does not include loss to property contained in a building
unless the roof or an exterior wall of the building is first damaged by a falling object.
Damage to the falling object itself is not included.
11. Weight of ice, snow or sleet which causes damage to property contained in a
building.
12. Sudden and accidental discharge or overflow of water or steam from within a
plumbing, heating, air conditioning or automatic fire protective sprinkler system, or
from within a household appliance.
This peril does not include loss:
a. to the system or appliance from which the water or steam escaped;
b. caused by or resulting from freezing;
BONNIE L KEPNER
38-P751-008
Page 4
July 29, 2005
r
c. ,aused by or resulting from water or sewage from outside the residence
premises plumbing system that enters through seHrers or drains, or water which
enters into and overflows from within a sump pump, sump pump well or any other
system designed to remove subsurface water which is drained from the foundation
area; or
d. caused by or resulting from continuous or repeated seepage or leakage of water
or steam which occurs over a period of time and re<.~ults in deterioration, corrosion,
rust, mold, or wet or dry rot.
13. Sudden and accidental tearing asunder, cracking, burning or bulging of a steam
or hot water heating system, an air conditioning or automatic fire protective sprinkler
system, or an appliance for heating water.
This peril does not include loss:
a. caused by or resulting from freezing; or
b. caused by or resulting from continuous or repeated seepage or leakage of water
or steam which occurs over a period of time and results in deterioration, corrosion,
rust, mold, or wet or dry rot.
14. Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler
system, or of a household appliance.
This peril does not include loss on the residence premises while the dwelling is
vacant, unoccupied or being constructed, unless you have used reasonable care to:
a. maintain heat in the building; or
b. shut off the water supply and drain the system and appliances of water.
15. Sudden and accidental damage to electrical appliances, devices, fixtures and wiring
from an increase or decrease of artificially generated electrical current. We will pay up
to $1,000 under this peril for each damaged item described above.
16. Breakage of glass or safety glazing material which is part of a building, storm door
or storm window, and is covered under SECTION 1 -ADDITIONAL COVERAGES,
Building Additions and Alterations.
This peril does not include loss on the residence premises if the residence has been
vacant for more than 30 consecutive days immediately t~efore the loss.
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Turo Law Offices
RON TURD, Esquire
GALEN R. WALTZ, Esquire
JAMES M. ROBINSON, Esquire
RICHARD D. KOCH, Esquire'
MICHAEL M. JEROMINSKI, Esquire
MICHAEL R. SMITH, Esquire
www.TuroLaw.com
28 South Pitt Street
Carlisle, Pennsylvania 17013
(717)245-9688
(800) 562-9778
Fax (717) 245-2165
"Also Admitted in Maryland
December 2, 2005
Tom Shultz
10 Hamilton Road
Boiling Springs, PA 17007
Re: Property at 169 East Pomfret
Dear Mr. Shultz:
I am writing on behalf of my client, Bonnie Kepner, who rents the property at 169 East Pomfret
Street in Calisle from you. -
In short, the property is in deplorable condition through no fault of my client. It is clear that the
roof has been leaking for at least eight years, and despite your having been notified of this condition
repeatedly by Ms. Kepner, nothing has been done to repair the roof except for measures that, at best,
are merely cosmetic.
The total lack of concern for the roof has led to the followinc3 conditions in the property:
1. The carpet is saturated with rainwater.
2. The drop ceiling is bowed in many places and on the verge of collapse in many places.
3. Cracks in plaster have been patched with screen, which only serves to keep out bats and
not water.
4. The foundation is falling down.
5. There are numerous cracks throughout the building.
6. Personal items, including expensive ones such as mattresses have been destroyed by
rainwater.
7. Rainwater has literally pooled in light fixtures affixed to the ceiling, creating a danger of
electrocution and ruining electrical work.
8. Ms. Kepner has been forced to use approximately two dozen buckets and containers in
order to minimize the damage that the rainwater has caused. There are so many places where water
is leaking in that she has run out of containers for rainwater and has to resort to using blankets during
heavy rainfalls.
9. The property smells unbearably, and the contamination of the property has aggravated Ms.
Kepner's asthma so much, that she has had to stay at her mother's house.
EXHIBIT
IIIL \ V OLL i\li\. Il/.\
~ ~ ~ ~
To make matters worse, contractors you hired on or about Povember 11, 2005, have failed to
show up to do work on the building on any days since then, with thie exception of November 21 and
22, 2005. Furthermore, you have asked Ms. Kepner to conceal iniformation from or essentially lie to
the Historical Society and insurance adjusters.
To sum up, the property is unfit for habitation. If work replacing the roof and ceilings and
repairing all damage due to water are not commenced by December 7, 2005, and repaired to Ms.
Kepner's satisfaction, Ms. Kepner will have no choice but to pursue all legal remedies at her disposal.
If you have any questions, feel free to contact me.
Sincerely,
Michael M. Jerominski, Esquire
MMJ/mmj
cc: Bonnie Kepner
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BONNIE KEPNER, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
Civil Action - No. OS-6721
TOM AND CONNIE SCHULTZ,
Defendants.
DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT
AND NOW COME the Defendants, Tom and Connie Shultz, incorrectly
captioned as "Tom and Connie Schultz," through their attorneys, Fenstermacher and
Associates, P.C., and make the following Preliminary Objections to Plaintiffs
Complaint, stating in support thereof as follows:
I. Preliminary Objection Under Pa. R.C.P. 1024 (a)(4)
1. Plaintiff's Complaint was filed on or about December 27, 2005.
2. Plaintiffs Complaint sounds in four separate counts, Count I-Implied Warranty
of Habitability, Count II -Breach of Contract, Count III -Negligence, and Count
IV -Fair Trade and Business Practices.
3. At paragraph 28 of Plaintiff's• Complaint, under Count II -Breach of Contract,
Plaintiff avers that, "Defendants and Plaintiffs entered into a valid lease, dated
September 20, 1993, and renewed on a yearly basis each year therealier."
4. At paragraph 29 of Plaintiff s Complaint, under Count II -Breach of Contract,
Plaintiffquotes the lease, stating the following, "[l]andlord shall not be liable for
property damage or personal injury resulting from any failure to maintain or
repair the house, the appliances therein, or any other part of Landlord's property
unless the damage or injury results from a failure or refusal to make repairs for
which Landlord is responsible under the terms ofthis lease within a reasonable
time following written notice by Tenant of the need of repairs."
5. At paragraph 30 of Plaintitf's Complaint, under Count II -Breach of Contract,
Plaintiff avers that Defendants breached their duty, found in the quote above, to
repair the premises.
6. At paragraph 31 of Plaintiff s Complaint, under Count II -Breach of Contract,
Plaintiff avers that Plaintiff has suffered pecuniary loss due to the breach of
contract.
7. At paragraph 33 of Plaintiff's Complaint, under Count III-Negligence, Plaintiff
avers that Defendants had a duty or obligation to conform to certain standards of
conduct for the protection of the Plaintiff against the foreseeable risk of water and
mold damage should they fail or refuse to repair the room of the premises.
8. At paragraph 36 of Plaintiff s Complaint, under Count III -Negligence, Plaintiff
avers that Defendants failure and refusal to repair the root and interior of premises
caused the Plaintiff to incur loss.
9. The contract between Plaintiff and Defendants is the necessar}~ aspect that gives
rise to Defendants' duty or obligation to conform to certain standards of conduct
for the protection of the Plaintiff against the foreseeable risk of water and mold
damage should they fail or refuse to repair the room of the premises.
10. Plaintiff has alleged that Defendants have committed the tort of negligence in
failure to carry out a contractually imposed duty.
l t . Under the'`gist of the action" doctrine, a party cannot convert a breach of contract
claim into a tort claim, such as negligence, where the contract is a necessary
aspect giving rise to plaintiff's cause of action.
WHEREFORE, Defendants Tom and Connie Shultz, incorrectly captioned as
'`Tom and Connie Schultz," respectfully request judgment in their favor and against
Plaintiff; striking Count III of Plaintiff's Complaint sounding in negligence, together with
costs and such other and further relief as the court deems appropriate.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
J hn R. Fens ermac ter
upreme Court LD #29940
Matthew Aaron Smith
Supreme Court LD. #94603
51 IS East Trindle Road
Mechanicsburg, PA 17050
(717) b91-5400
Attorneys for Plaintiff
DATED: ~~~ l7 Zoa6
CERTIFICATE OF SERVICE
AND NOW, on this day ofJauuary, 2006, I, Matthew Aaron Smith, Esquire,
hereby certify that 1 have served the foregoing Defendants' Preliminary Objections tv
PlaintitEs Complaint, by mailing a tme and correct copy by United States tirst class mail,
addressed as follows:
Michael M. Jerominski, Esq.
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
FENSTERMACHERAND ASSOCIATES, P. C.
By.
atthew A n Smi~~ the
... ,
_.
'~
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SHERIFF'S RETURN - REGULAR
CASE NO: 2005-06721 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KEPNER BONNIE
VS
SCHULTZ TOM ET AL
DAVID MCKINNEY Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SCHULTZ TOM
the
DEFENDANT at 0945:00 HOURS, on the 28th day of December 2005
at 10 HAMILTON ROAD
BOILING SPRINGS, PA 17007
by handing to
TOM SCHULTZ
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs
Docketing 18.00
Service 5.76
Postage .37
Surcharge 10.00
.00
34.13
Sworn and Subscribed to before
me this /j ~ day of
_ i 7trf~~ A.D.
Pr nota~'
So Answers:
R. Thomas Kline
12/28/2005
RON TURD
By' ~ r~~L
Deputy Sherif~
SHERIFF'S RETURN - REGULAR
CASE N0: 2005-06721 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KEPNER BONNIE
VS
SCHULTZ TOM ET AL
DAVID MCKINNEY
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
SCHULTZ CONNIE
was served upon
DEFENDANT
the
at 0945:00 HOURS, on the 28th day of December 2005
at 10 HAMILTON ROAD
BOILING SPRINGS. PA 17007
TOM SCHULTZ, ADULT IN CHARGE
by handing to
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this j~~ day of
~~ ~ o?crUU A.D.
P .onot ry
So Answers:
.1==
R. Thomas Kline
12/28/2005
RON TURD
By : ~ ,,, ~,, ~ //
Deputy- Sheriff
BONNIE KEPNER, IN THE COURT OF' COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
Civil Action - No. OS-6721
TOM AND CONNIE SHULTZ,
Defendants.
NOTICE TO PLEAD
TO: Michael M. Jerominski, Esq.
Turo Law Offices
28 South Pitt Street
Cazlisle, Pa 17013
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE
HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOFJ.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By
J9hn R. Fensterrrhacher '
Supreme Court LD. #29940
Matthew Aaron Smith
Supreme Court 1.D. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Defendants
DATED: ~G - F~ - 2CbG
BONNIE KEPNER, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
Civil Action - No. OS-6721
TOM AND CONNIE SHULTZ,
Defendants.
ANSWER TO PLAINTIFF'S AMENDED COMPLAINT WITH NEW MATTER
AND NOW come Defendants Tom and Connie Shultz by and through their
attorneys, the Offices of Fenstermacher and Associates, P.C., and file this Answer to
Plaintiff s Amended Complaint with New Matter, as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Pazagraph 5 and, therefore, such pazagraph is
deemed denied and strict proof thereof is demanded at trial. Furthermore, it is
averred that Defendants never received written notice of need for repairs to the
roof at 169 East Pomfret Street, Carlisle, Pennsylvania, hereinafter the "Premises"
from Plaintiff or authorized agent, prior to December 2, 2005.
6. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny that leaking increased in intensity with each
passing yeaz, it is denied that by 2003 water had damaged the roof, ceiling and
interior to such an extent that a hole large enough to allow bats into the building
was created, it is denied a screen was subsequently installed to cover the
aforementioned hole.
7. Admitted in part, denied in part. It is admitted that Defendants installed a drop
ceiling, it is denied that the drop ceiling was installed in 2004 or as a stop-gap
measure.
8. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Pazagtaph 8 and, therefore, such paragraph is
deemed denied and strict proof thereof is demanded at trial.
9. Admitted in part, denied in part. It is admitted a contractor was obtained,
however it is denied scaffolding went up surrounding the Premises on November
11, 2005. Furthermore, it is averred that the contractor had scaffolding up,
surrounding the Premises, and was working on the Premises by November 2,
2005 at the latest.
10. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Paragraph 10 and, therefore, such pazagraph is
deemed denied and strict proof thereof is demanded at trial.
11. Denied, on November 16, 2005, in a telephone conversation, Plaintiff informed
Defendants that Willie Delancey had been working on the roof of the Premises.
12. Denied. On the morning of November 16, 2005, Defendants telephoned Plaintiff
advising her that they would be out of town from the morning of November 20,
2005 until December 4, 2005. During this telephone discussion, Plaintiff was
given both the contractor's phone number and the phone number of the sister of
Defendant Tom Shultz should she have any problems.
13. Denied and proof thereof is demanded. Defendant Tom Shultz's sister has an
operating answering machine and no message from Plaintiff was ever received.
14. Admitted.
15. Denied. Plaintiff's Amended Complaint was filed with the Office of the
Prothonotary of Cumberland County on January 26, 2006. Between November
22, 2005 and January 26, 2006, the roof of the Premises had been worked on, on
at least the following dates: December 8, 2005, December 24, 2005, December
28, 2005, January 7, 2006, January 9, 2006 and January 12, 2006.
16. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Pazagraph 16 and, therefore, such pazagraph is
deemed denied and strict proof thereof is demanded at trial.
17. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Pazagraph 17 and, therefore, such pazagraph is
deemed denied and strict proof thereof is demanded at trial. It is averred,
however, that work has been done on the roof since November 30, 2005.
18. Admitted in part, denied in part:
a. Denied. Plaintiff informed Defendants of a wet carpet however
Defendants can neither affirm nor deny whether the carpet was saturated
with rainwater. Therefore, such subpazagraph is deemed denied and strict
proof thereof is demanded at trial.
b. Denied. Plaintiff informed Defendants of the drop-ceiling which bowed in
places however Defendants can neither affirm nor deny whether it is "on
the verge of collapse." Therefore, such subparagraph is deemed denied
and strict proof thereof is demanded at trial.
c. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Subparagraph 18(c) and, therefore,
such pazagraph is deemed denied and strict proof thereof is demanded at
trial.
d. Denied and strict proof thereof is demanded at trial.
e. Denied and strict proof thereof is demanded at trial.
£ Denied. Plaintiff informed Defendants that personal items had been
damaged however Defendants can neither affirm nor deny whether the
personal items had been destroyed by rainwater. Therefore, such
subpazagraph is deemed denied and strict proof thereof is demanded at
trial.
g. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Subparagraph 18(g) and, therefore,
such paragraph is deemed denied and strict proof thereof is demanded at
trial.
h. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Subparagraph 18(h) and, therefore,
such pazagraph is deemed denied and strict proof thereof is demanded at
trial.
i. Denied and strict proof thereof is demanded at trial.
19. Admitted in part, denied in part. It is admitted that Defendant Tom Shultz has
been on the Premises approximately fifteen (15) times during the calendaz year, it
is denied in so much as that, after reasonable investigation, Defendants do not
have sufficient information to either admit or deny whether they had "ample
notice" and, therefore, such averment is deemed denied and strict proof thereof is
demanded at trial.
20. Admitted in part, denied in part. It is admitted that Defendants were given notice
of the condition of the roof, it is denied in so much as that, after reasonable
investigation, Defendants do not have sufficient information to either admit or
deny whether notice was given on "numerous occasions" and, therefore, such
averment is deemed denied and strict proof thereof is demanded at trial.
21. Denied and strict proof thereof is demanded at trial.
22. Admitted.
COUNT I -IMPLIED WARRANTY OF HABITABILITY
23. No response required.
24. Admitted.
25. Denied. After reasonable investigation, Defendants do not have sufficient
information to either admit or deny Pazagraph 25 and, therefore, such pazagraph is
deemed denied and strict proof thereof is demanded at trial.
26. Denied and strict proof thereof is demanded at trial.
WHEREFORE, Defendants, Tom and Connie Shultz, respectfully request
judgment be denied Plaintiff, Bonnie Kepner, and that this Honorable Court enter
judgment for Defendants and award all costs and fees associated in defending this action.
COUNT II -BREACH OF CONTRACT
27. No response required.
28. Admitted.
29. Admitted.
30. Denied. This pazagraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this pazagraph is hereby denied.
31. Denied. This pazagraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this paragraph is hereby denied.
WHEREFORE, Defendants, Tom and Connie Shultz, respectfully request
judgment be denied Plaintiff, Bonnie Kepner, and that this Honorable Court enter
judgment for Defendants and award all costs and fees associated in defending this action.
COUNT III -FAIR TRADE AND BUSINESS PRACTICES
32. No response required.
33. Denied. This pazagraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this paragraph is hereby denied.
34. Denied. This pazagraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this pazagraph is hereby denied.
a. Denied. This subpazagraph asserts a legal conclusion to which no
response is required. Waiving none of the foregoing, to the extent that a
response is required, this pazagraph is hereby denied.
b. Denied. This subpazagraph asserts a legal conclusion to which no
response is required. Waiving none of the foregoing, to the extent that a
response is required, this pazagraph is hereby denied.
c. Denied. This subpazagraph asserts a legal conclusion to which no
response is required. Waiving none of the foregoing, to the extent that a
response is required, this pazagraph is hereby denied.
35. Denied. This paragraph asserts a legal conclusion to which no response is
required. Waiving none of the foregoing, to the extent that a response is required,
this pazagraph is hereby denied.
WHEREFORE, Defendants, Tom and Connie Shultz, respectfully request
judgment be denied Plaintiff, Bonnie Kepner, and that this Honorable Court enter
judgment for Defendants and award all costs and fees associated in defending this action.
NEW MATTER
36. Defendants incorporate herein their responses to Pazagraphs I through 15 above
as though set forth at length.
37. On or about Apri12, 2002, Defendant Tom Shultz began working on the roof of
the Premises.
38. On or about April 10, 2002, Defendant Tom Shultz did work on the roof and other
azeas of the Premises.
39. On or about May I5, 2002, Defendant Tom Shultz did work on the roof of the
Premises, including, but not limited to, scraping the front and back of the roof.
40. On or about May 16, 2002, Defendant Tom Shultz did work on the roof of the
Premises, including, but not limited to, priming the front of the roof.
41. On or about May 18, 2002, following a heavy rain, Defendant Tom Shultz left a
message on Plaintiff's answering machine inquiring as to how the roof held up in
the rain. Plaintiff called back stating she didn't really have any "drips."
42. On or about May 22, 2002, Defendant Tom Shultz painted the roof of the
Premises.
43. On or about July 18, 2002, Defendant Tom Shultz attempted to replace the ceiling
tiles in Plaintiff's son's bedroom.
44. On or about July 20, 2002, Defendants:
a. Finished work on the ceiling tiles in Plaintiffls son's bedroom;
b. Painted around the windows of the premises; and
c. Started to paint the soffit, fascia, and "fancy boazds" aoound the gazage.
45. On or about July 26, 2005, Plaintiff called Defendants alleging that a leak in the
roof had caused water damage to personal property. Defendants contacted
roofing companies to inquire as to solutions to the leaky roof.
46. On or about August 15, 2005, Plaintiff and Defendants agreed to a $600 rent
reduction over two months to compensate Plaintiff for alleged property damage.
47. On or about August 17, 2005, Defendants arranged for John Hockensmith, a
masonry contractor, to inspect the foundation of the Premises. Following the
inspection, Mr. Hockensmith came to the conclusion that the house was in no
danger of falling off the foundation.
48. On or about September 7, 2005, Defendant Tom Shultz swept the roof of the
Premises and trimmed branches and limbs.
49. On or about September 9, 2005, Defendant Tom Shultz spoke to Willie Delancey,
a contractor, about working on the roof of the Premises.
50. On or about September 12, 2005, Willie Delancey provided estimates for the
work to be done on the roof of the Premises.
51. On or about October 31, 2005, Defendants entered into an agreement with Willie
Delancey to fix the roof of the Premises.
52. On or about November 2, 2005, Willie Delancey scraped the rust off of the roof
of the Premises.
53. On or about November 16, 2005, Plaintiff called Defendants informing them that,
among other things, Willie Delancey had been working on the roof of the
Premises.
54. On or about November 19, 2005, Defendants visited the Premises to see if
progress on the roof had been made. Defendants noticed that the front tin had
been removed along with the cedar shakes underneath, plywood had been laid
down, and felt was in place.
55. On or about December 8, 2005, Willie Delancey worked on the roof of the
Premises.
56. On or about December 24, 2005, Willie Delancey worked on the roof of the
Premises.
57. On or about December 24 - 26, 2005, Willie Delancey installed the sheeting and
felt on the addition roof of the Premises.
58. On or about January 7, 2006, Willie Delancey began installing new shingles on
the back roof of the Premises.
59. On or about January 8, 2006, Willie Delancey had installed new shingles on about
a third of the back roof of the Premises.
60.On or about January 10, 2006, Willie Delancey had installed new shingles on the
entire back roof of the Premises.
61. Plaintiffls Amended Complaint and all claims thereunder aze barred by the
doctrine of equitable estoppel.
62. Plaintiff s Amended Complaint and all claims thereunder aze barred by the
doctrine of consent.
63. Plaintiff s Amended Complaint and all claims thereunder aze barred by the
doctrine of laches.
64. Plaintiff s Amended Complaint and all claims thereunder are barred by the
doctrine of release.
65. Plaintiff s Amended Complaint and all claims thereunder aze barred by the
doctrine of statute of limitations.
66. Plaintiff s Amended Complaint and all claims thereunder are ban•ed by the
doctrine of truth and waiver.
WHEREFORE, Defendants, Tom and Connie Shultz, respectfully request
judgment be denied Plaintiff, Bonnie Kepner, and that this Honorable Court enter
judgment for Defendants and awazd all costs and fees associated in defending this action.
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
Supreme Court LD. #29940
Matthew Aaron Smith
Supreme Court I.D. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717)691-5400
Attorneys for Defendants
DATED: ~(- ~v~ -ZppC
VERIFICATION
I, Connie Shultz, hereby verify that the statements made in this document are true
and correct. I understand that false statements aze made subject to the penalties of 18 Pa.
C.S. § 4904, relating to sworn falsification to authorities.
Date: February 15, 2006 U
Shultz
CERTIFICATE OF SERVICE
AND NOW, on this Ln"day of February, 2006,1, Matthew Aazon Smith, Esquire,
hereby certify that I have served the foregoing Defendants' Answer to Plaintiff's Amended
Complaint with New Matter, by mailing a true and correct copy by United States fast class
mail, addressed as follows:
Michael M. Jerominski, Esq.
Turo I,aw Offices
28 South Pitt Street
Cazlisle, PA 170] 3
FENSTERMACHER AND ASSOCIATES, P.C.
By:
tthew Aaron Smi
r..• ~ .~
~ 1
r~
BONNIE KEPNER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
TOM AND CONNIE SHULTZ,
Defendants
CIVIL ACTION
No. OS-6721
ANSWER TO NEW MATTER
36. No response required.
37. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 37, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
38. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 38, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
39. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 39, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
40. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 40, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
41. Admitted to the extent that Defendant Tom Shultz left a message on Plaintiff's'
answering machine inquiring as to how the roof held up in the rain. Admitted to the
extent that Plaintiff called back stating she didn't really have any "drips." By way of
further answer, dripping did begin shortly after the aforementioned telephone exchange.
42. Denied.
43. Denied.
44.
a. Admitted to the extent that work on the ceiling tiles ceased. Denied to the
extent that the work constituted any sort of meaningful repair.
b. Admitted. By way of further answer, the window painting alluded to occurred
only on the exterior of the property.
a Admitted.
45. Denied to the extent that Plaintiff called Defendants alleging a leak in the roof had
caused water damage to personal property on or about July 26, 2005. By way of further
answer, the Plaintiff called the Defendants alleging a leak in the roof had caused water
damage to personal property on or about July 20, 2005. Denied After reasonable
investigation, Plaintiff does not have sufficient information to either admit or deny
Paragraph 45 as it relates to whether or not Defendants contacted roofing companies to
inquire as to solutions to the leaky roof, and therefore said pazagraph is deemed denied
and strict proof is demanded at trial.
46. Denied.
47. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 47, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
48. Admitted.
49. Denied After reasonable investigation, Plaintiff does not hive sufficient information
to either admit or deny Paragraph 49, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
50. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Pazagraph 50, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
51. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 51, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
52. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 52, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
53. Admitted in part and denied in part Admitted to the extent that the Plaintiff spoke
to the Defendants. All other allegations are denied After reasonable investigation,
Plaintiff does not have sufficient information to either admit or deny all other allegations
in Paragraph 53, and therefore said paragraph is deemed denied and strict proof is
demanded at trial.
54. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Pazagraph 54, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
55. Denied. After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 55, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
56. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 56, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
57. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Pazagraph 57, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
58. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 58, and therefore said pazagraph is deemed denied and
strict proof is demanded at trial.
59. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Paragraph 59, and therefore said paragraph is deemed denied and
strict proof is demanded at trial.
60. Denied After reasonable investigation, Plaintiff does not have sufficient information
to either admit or deny Pazagraph 60, and therefore said pazagraph is deemed denied and
strict proof is demanded at trial.
61. Denied This paragraph asserts a legal conclusion to which uo response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
62. Denied This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
63. Denied This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
64. Denied This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
65. Denied This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
66. Denied This paragraph asserts a legal conclusion to which no response is required.
Waiving none of the foregoing, to the extent that a response is required, this paragraph is
hereby denied.
WHEREFORE, Plaintiff asks that she be awazded rent abatement for all past
months the Court finds that the condition of the apartment was in breach of the implied
warranty of habitability and the covenant to repair in the lease, as well as costs for heat
loss, replacements for water-damaged personal items, specific performance as to repair of
the mof and any water- or mold-damaged portions of the premises, attorneys' fees, all
appropriate civil penalties and other costs the Court deems appropriate.
Respectfully Submitted,
3/- /off
Date
~~~Ij'/ylar~t' ~'l~-
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pi1i Street
Carlisle, PA 17013
Supreme Court LD. No. 92977
(717)245-9688
tIFICATION
in the foregoing Answer to New Matter aze true and
herein are made subject to the penalties of 18 Pa.C.S.
authorities.
n j
r
Bonnie Kepner
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Answer to New Matter, by depositing same in thE; United States Mail, first class,
F
postage pre-paid on the ~ day of MG+~c~ 2006, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aazon Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
~.
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court LLI. No. 92977
(717)245-9688
_.
WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3)
azbitrators to whom the case shall be submitted.
Respectfully submitted,
S 2 U b G~~1~IM/~ ~ .
Date Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Petition to Appoint Arbitrators, by depositing same in the United States Mail, first
class, postage pre-paid on the Z.~J day of MA 2006, from Cazlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aazon Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURO LAW OFFICES
iZ /n'1.
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Cazlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
VERIFICATION
I, Michael M. Jerominski, Esquire, attorney for the Plaintiff herein, have sufficient
knowledge of the facts contained in this Petition to Appoint Arbitrators and verify that the
statements made in the foregoing Petition to Appoint Arbitrators are true and correct to the best
of my knowledge, based upon information received from the Plaintiff. I understand that false
statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn
falsification to authorities.
S fi~Ob ~~v~ ~•
Date Michael M. Jerominski, Esquire
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BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Michael M. Jerominski, Esquire, counsel for the Plaintiff in the above action,
respectfully represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is for rent abatement for all past months
the premises in question were in breach of the implied warranty of habitability and the
covenant to repair in the lease, as well as costs for heat loss, replacements for water-
damaged personal items, attorneys' fees, and all appropriate civil penalties. The
Defendants demand judgment in their favor, as well as costs and fees associated with the
action. It is submitted that neither Plaintiff s or Defendants' demands exceed compulsory
azbitration limits.
3. The following attorneys aze interested in the case as counsel or aze otherwise
disqualified to sit as arbitrators: Michael M. Jerominski, John R. Fenstermacher, Matthew
Aaron Smith, Ron Turo, Galen R. Waltz, James M. Robinson, Richazd D. Koch, and
Michael R. Smith.
f
BONNIE KEPNER, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
:PENNSYLVANIA
v. .
TOM AND CONNIE SHULTZ, :CIVIL ACTION
Defendants : No. OS-6721
PRAECIPE TO WITHDRAW PETITION FOR APPOINTMENT OF
ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Michael M. Jerominski, Esquire, counsel for the Plaintiff in the above action,
respectfully represents that:
1. The above-captioned action is at issue.
2. The Plaintiff desires that the Petition for Appointment of Arbitrators filed on
May 10, 2006 be withdrawn without prejudice.
WHEREFORE, the Plaintiff prays your Honorable Court to withdraw the Petition
for Appointment of Arbitrators filed on May 10, 2006
Respectfully submitted,
r o b ~~ ~I.
Date Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Praecipe to Withdraw Petition to Appoint Arbitrators, by depositing same in the United
A
States Mail, first class, postage pre-paid on the 15 { day of ,NI ~y , 2006,
from Cazlisle, Pennsylvania, addressed as follows:
John R. Fenstermacher
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
0~2~( /h~1
Michael M. Jerominski'Esquire
Turo Law Offices
28 South Pitt Street
Cazlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
VERIFICATION
I, Michael M. Jerominski, Esquire, attorney for the Plaintiff herein, have sufficient
knowledge of the facts contained in this Praecipe to Withdraw Petition to Appoint Arbitrators
and verify that the statements made in the foregoing Petition to Appoint Arbitrators are true and
correct to the best of my knowledge, based upon information received from the Plaintiff. I
understand that false statements herein made aze subject to the penalties of 18 Pa. C.S.A. §4904
relating to unsworn falsification to authorities.
Date Michael M. Jero ', Esquire
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BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
ORDER OF COURT
AND NOW, this ~ day of , 2006, in consideration
of the foregoing Praecipe, the Petition for Appointment of Arbitrators filed on May 10,
2006 is hereby withdrawn.
Michael M. Jerominski, Esquire
Attorney for Plaintiff
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
John R. Fenstermacher, Esquire
Attorney for Defendants
Fentsermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
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klti~~lte~l,~.`al~~~i~t1'di1J
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BONNIE KEPNER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
TOM AND CONNIE SHULTZ,
Defendants
CIVIL ACTION
No. OS-6721
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Michael M. Jerominski, Esquire, counsel for the Plaintiff in the above action,
respectfully represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is for rent abatement for all past months
the premises in question were in breach of the implied warranty of habitability and the
covenant to repair in the lease, as well as costs for heat loss, replacements for water-
damaged personal items, attorneys' fees, and all appropriate civil penalties. The
Defendants demand judgment in their favor, as well as costs and fees associated with the
action. It is submitted that neither Plaintiff's or Defendants' demands exceed compulsory
arbitration limits.
3. The following attorneys are interested in the case as counsel or are otherwise
disqualified to sit as arbitrators: Michael M. Jerominski, John R. Fenstermacher, Matthew
Aaron Smith, Ron Turo, Galen R. Waltz, James M. Robinson, Richard D. Koch, and
Michael R. Smith.
WHEREFORE, your Petitioner prays your Honorable Court to appoint three (3)
arbitrators to whom the case shall be submitted.
Respectfully submitted,
Z~-1o~ ~ ~'2,n~i X1'1. 4/~
Date Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Petition to Appoint Arbitrators, by depositing same in the United States Mail, first
class, postage pre-paid on the L~" t day of ~e e,r ~ct 2006, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aaron Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
~~
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
ORDER OF COURT
AND NOW, this 1 I~ day of ~ (~~',i~/~ , 2006, in consideration
of the foregoing Petition, Lfu-O~l~ Esq.,
Esq., and Esq., are
appointed arbitrators in the a ve-captioned action as prayed for.
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Defendant
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Law Firm
Address
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Oath
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United
States and the Constitution of this Commonwealth and that we will discharge the dut' s ur office
with fide i
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We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
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Date of Hearing:~~~ Z
Date of Award: ?b Z 6
In The Court of Common Pleas of Cumberland
County, Pennsylvania No. d~ -
Civil Action -Law.
r, dissents. (Insert name if applicable.
(Chairman)
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Notice of Entry of Award
Now, the 30~'' day of Gov er , 20 D(o , at .3:45 P.M., the above award was
entered upon the docket and notice thereof given by mail to the parties or their attorneys.
Arbitrators' compensation to be paid upon appeal: $ oZ~'D . DO
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By:
'~~ ) rothonotary
Plaintiff
m ~' ~ I(I Il9 ~ C: c~H U i..T Z
Defendant
Oath
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United
States and the Constitution of this Commonwealth and that we will discharge the dut' s ur office
with fid '
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We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
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Date of Hearing: .~0 Z
Date of Award: o~
In The Court of Common Pleas of Cumberland
County, Pennsylvania No. ~~~ -
Civil Action -Law.
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Notice of Entry of Award
,dissents. (Insert name if applicable.)
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(Chairman)
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Now, the 30~` day of Azov er , 20 b(o , at 5 P.M., the above award was
entered upon the docket and notice thereof given by mail to the parties or their attorneys.
Arbitrators' compensation to be paid upon appeal:
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BONNIE KEPNER, IN THE COURT OF COMMON PLEAS
Plaintiff OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
Civil Action - No. OS-6721
TOM AND CONNIE SCHULTZ,
Defendants.
NOTICE OF APPEAL
FROM AWARD OF BOARD OF ARBITRATOR TO THE PROTHONOTARY:
Notice is given that Defendants appeal from the award of the board of arbitrators
entered in this case on November 30, 2006.
h~~'
A jury trial is~demanded.
I hereby certify that the compensation of the arbitrators has been paid.
Respectfully submitted,
DATED: d3..~~t4w~.r~ _~
FENSTERMACHER AND ASSOCIATES, P.C.
By: t
ohn R. nstermacher
Supreme Court I.D. #29940
Matthew Aaron Smith
Supreme Court I.D. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Plaintiff
~.
CERTIFICATE OF SERVICE
AND NOW, on this ~ day of January, 200 I, Matthew Aaron Smith, Esquire,
hereby certify that I have served the foregoing Notice of Appeal by mailing a true and
correct copy by United States first class mail, addressed as follows:
Michael M. Jerominski, Esq.
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
FENSTERMACHER AND ASSOCIATES, P.C.
By:
M ew Aaron mith
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~' BONNIE KEPNER, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
~'',, :PENNSYLVANIA
~f V.
TOM AND CONNIE SHULTZ, :CIVIL ACTION
Defendants : No. OS-6721
MOTION TO QUASH APPEAL
1. On November 30, 2006, the Plaintiff and Defendants appeared before a Board
of Arbitrators.
2.On November 30, 2006, the Arbitrators awarded the Plaintiff the sum of
$8,440.00.
3. On November 30, 2006, at 3:45 p.m., said award was entered upon the docket
and notice thereof given by mail to the attorneys for the parties. (Exhibit A).
4. Pa. R. C. P. 1308 states that an appeal shall be taken by "filing a notice of
appeal...not later than thirty days after the day on which the Prothonotary makes the
notation on the docket that notice of entry of the arbitration award has been provided as
required by Rule 1307(a)(3)..."
5. The thirtieth day after the notation was made on the docket and notice sent to
the parties' attorneys was Saturday, December 30, 2006.
6. 1 Pa.C.S.A. 1908 states that, for the purpose of computation of time, should the
final day of the time period fall "on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation."
7. As the thirtieth day of the time period fell on Saturday, December 30, 2006,
and Monday, January 1, 2007, was a legal holiday, the last day to appeal the arbitrators'
award would have been Tuesday, January 2, 2007.
', ~ 8.On January 3, 2007, Defendants filed a "Notice of Appeal from Award of
Board of Arbitrator [sic] to the Prothonotary," a day after the thirty day period for appeal
had expired.
9. The Court of Common Pleas of Cumberland County was open for business on
January 2, 2007.
WHEREFORE, Plaintiff requests This Honorable Court quash the Defendants'
appeal.
_ ~ ~ U~
Date
Respectfully Submitted,
~~ ~~ ,
Michael M. Jero nski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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Defendant
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Address
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Oath
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United
States and the Constitution of this Commonwealth and that we will discharge the duti s ur office
with fide itv.
Signa re Si re Sign e'
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Name (Cha ~ ) Nam Name
Law Fum
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Address
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city, zip
Law Firm
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Address
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Award
We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the
following award: (Note: If damages for delay are awarded, they shall be separately stated.)
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Date of Hearing: ,~~ Z
Date of Award: Q Z~~
In The Court of Common Pleas of Cumberland
County, Pennsylvania No. d~~ -_~~
Civil Action -Law.
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Notice of Entry of Award
dissents. (Insert name if applicable.)
(Chairman)
EXHIBIT
~~
Now, the 30 day of ov her , 20 I~(~ , at 3: 5' P.M., the above award was
entered upon the docket and notice thereof given by mail to the parties or their attorneys.
Arbitrators' compensation to be paid upon appeal
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Prothonotary
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CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Petition to Appoint Arbitrators, by depositing same in the United States Mail, first
class, postage pre-paid on the y ~h day of _~r~ 2007, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aaron Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
:1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
ORDER OF COURT
AND NOW, this ~ ~ ~ day of , 2007, upon
consideration of Plaintiff's Motion to Quas Appeal, a Rule is issued upon the
~I Defendants to show cause why the relief requested should not be granted.
RULE RETURNABLE within 20 days of service.
J.
cc
Michael M. Jerominski, Esquire
~hn R. Fenstermacher, Esquire
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BONNIE KEPNER,
Plaintiff
v.
Docket No.: OS-6721
TOM AND CONNIE SHULTZ,
Defendants
Civil Action -Law
REPLY IN OPPOSITION TO PLAINTIFF'S
MOTION TO QUASH APPEAL
AND NOW come Defendants Tom and Connie Shultz by and through their attorneys, the
Offices of Fenstermacher and Associates, P.C., and file this Defendants' Reply in Opposition to
Plaintiff s Motion to Quash Appeal:
1. Admitted.
2. Admitted. By way of further explanation, the decision was not unanimous, there was one
dissent.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Denied. Tuesday, January 2, 2007, was a Federal Holiday pursuant to Executive Order of
the President of the United States, December 28, 2006.
8. Admitted in part, denied in part. It is admitted that Defendants filed a Notice of Appeal
from Award of Board of Arbitrator to the Prothonotary, however it is denied that it was
filed after the thirty day period for appeal had expired.
9. Admitted.
NEW MATTER
10. On December 26, 2006, Gerald R. Ford, 38`h president of the United States of America,
died.
11. On December 28, 2006, George W. Bush, 43~d president of the United States of America,
issued an Executive Order pursuant to his authority vested in him by the Constitution and
laws of the United States of America ordering that January 2, 2007, "shall be considerd
as falling within the scope of Executive Order 11582 of February 11, 1971." A true and
correct copy of the December 28, 2006, Executive Order is attached and hereto incorporated
as Exhibit "A."
12. Executive Order 11582 of February 1 1, 1971 states in pertinent part, "Holiday means .. .
any other calendar day designated as a holiday by Federal statute or Executive order." A
true and correct copy of Executive Order 11582 is attached and hereto incorporated as
Exhibit "B."
13. Both Rule 106(b) of the Pennsylvania Rules of Civil Procedure and 1 Pa.C.S.A 1908
explicitly state, "Whenever the last day of any such period shall fall on Saturday or
Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the
United States, such day shall be omitted from the computation."
14. Executive Order 11582 permits the office of the President to establish a Holiday by
Executive order.
15. President Bush declared January 2, 2007 a Holiday via the December 28, 2006 Executive
Order.
2
16. Neither Pa.R.C.P 106(b) nor 1 Pa.C.S.A. 1908 state that computation of time is
dependant on, or related to whether the Prothonotary's Office or Court House is open for
business.
17. Both Pa.R.C.P 106(b) nor 1 Pa.C.S.A. 1908 do state that any day made a legal holiday by
the laws of the United States are to be omitted from computation.
18. Since Tuesday, January 2, 2007, was a Federal Holiday, it was properly omitted from
computation and Defendants' Appeal was timely when it was filed on Wednesday,
January 3, 2007.
19. John R. Fenstermacher, Esq., of Fenstermacher and Associates, P.C., Defendants'
counsel, put Ron Turo, Esq., of Turo Law Offices, Plaintiff s counsel, on notice of the
aforementioned facts prior to Plaintiff's Motion to Quash Appeal.
20. Subsequent to the receipt of Plaintiff's Motion to Quash Appeal, Defendants' counsel
once again informed Plaintiff s counsel of the aforementioned facts via a January 12,
2007 letter. A true and correct copy of the January 12, 2007 Correspondence is attached
and hereto incorporated as Exhibit "C."
21. Plaintiff's counsel was on notice as to the timeliness of Defendants' Appeal and yet they
insisted, and continue to insist, on pursuing their Motion to Quash Appeal.
22. Plaintiff s Motion to Quash Appeal is without merit and meant only to force Defendants
to incur further legal fees.
WHEREFORE Defendants ask that this Court deny Plaintiff's Motion to Quash Appeal
and award Defendants attorneys' fees and other legal costs that the Court deems appropriate.
3
Respectfully submitted,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
John R. Fenstermacher
Supreme Court I.D. #29940
Matthew Aaron Smith
Supreme Court I.D. #94603
5115 East Trindle Road
Mechanicsburg, PA 17050
(717) 691-5400
Attorneys for Defendants
DATED: ~$ -~la`wcrrl "~OOT
EXHIBIT "A"
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release December 28, 2006
EXECUTIVE ORDER
PROVIDING FOR THE CLOSING OF GOVERNMENT DEPARTMENTS AND AGENCIES
ON JANUARY 2, 2007
By the authority vested in me as President by the
Constitution and laws of the United States of America, it is
hereby ordered as follows:
Section 1. All executive departments, independent
establishments, and other governmental agencies shall be closed
on January 2, 2007, as a mark of respect for Gerald R. Ford, the
thirty-eighth President of the United States. That day shall be
considered as falling within the scope of Executive Order 11582
of February 11, 1971, and of 5 U.S.C. 5546 and 6103(b) and other
similar statutes insofar as they relate to the pay and leave of
employees of the United States.
Sec. 2. The first sentence of section 1 of this order
shall not apply to those offices and installations, or parts
thereof, in the Department of State, the Department of Defense,
the Department of Justice, the Department of Homeland Security,
or other departments, independent establishments, and
governmental agencies that the heads thereof determine should
remain open for reasons of national security or defense or other
essential public business.
GEORGE W. BUSH
THE WHITE HOUSE,
December 28, 2006.
# # #
EXHIBIT "B"
FENSTERMACHER AND ASSOCIATES, P.C.
ATTORNEYS AND COUNSELORS AT LAW
JOHN R. FENSTERMACHER
DIRECT DIAL (717) 691-5420
January 12, 2007
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, Pennsylvania 17013
RE: Bonnie Kepner vs. Tom and Connie Shultz
~ Dear Mike:
*MEMBER PENNSYLVANLI AND
NEW JERSEY BAF
We are in .receipt of your Motion to Quash Appeal. As you are aware, John
Fenstermacher advised Mr. Turo at the time the appeal was filed that January 2, 2007
was a federal holiday. Despite the notification, you failed to acknowledge that
information in your Motion. January 2, 2007 was a legal holiday pursuant to Executive
Order from the President of the United States, George W. Bush. A true and accurate
copy of the aforementioned Executive Order has been enclosed.
Rule 106(b) of the Pennsylvania Rules of Civil Procedure states, "Whenever the
last day of any such period shall fall on Saturday or Sunday, or any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation." As you carefully explained in the Motion, the thirtieth
day fell on Saturday, December 30, 2006. Monday, January 1, 2007, however, was a
legal holiday, and, because of the untimely death of President Gerald Ford, Tuesday,
January 2, 2007 was as well. Therefore, the final date on which we were permitted to
file our Appeal should be properly computed to be Wednesday, January 3, 2007. As
you are aware, we met this deadline.
PL,FA.SE RESPOND TO: MECHANICSBURG OFFICE: OCEAN CITY OFFICE:
THE JONAS RUPP HOUSE (717) 691 5400 26 BAY AVENUE
5115 FAST TRIIVDLE ROAD FAX (717) 691-5441 OCEAN CtIY NJ 08226
MECHANICSBURG, PENNSYLVANIA 17050 www.fenstermacherandassociates.com (609) 391-9461
john@fenstennacherandassociates.com
THE JONAS RUPP HOUSE
We demand that you withdraw your Motion as it is a waste of the Court's time
and our time to address a matter that is so clear. In the event you fail to withdraw this
Motion, we will provide this correspondence to the Court and seek fees and costs.
Very truly yours,
FENSTERMACHER AND ASSOCIATES, P.C.
By:
Matthew Aaron Smith
Enclosures
EXHIBIT "C"
Federal Register -Executive Orders
http://www.archives.gov/federal-register/codification/executive-orde...
THE U.~. NATIC~Ntt~L t~i~~H IVES ,~ R.EC~RT~S r'~DI NISTR.~TICaN
www.archives.gov
Thursday, January 18, 2007
Executive Order 11582--Observance of holidays by Government agencies
Source: The provisions of Executive Order 11582 of Feb. 11, 1971, appear at 36 FR 2957, 3
CFR, 1971-1975 Comp., p. 539, unless otherwise noted.
By virtue of the authority vested in me as President of the United States, it is hereby ordered as
follows:
Section 1. Except as provided in section 7, this order shall apply to all executive departments,
independent agencies, and Government corporations, including their field services.
Sec. 2. As used in this order:
(a) Holiday means the first day of January, the third Monday of February, the last Monday of
May, the fourth day of ]uly, the first Monday of September, the second Monday of October, the
fourth Monday of October,l the fourth Thursday of November, the twenty-fifth day of December,
or any other calendar day designated as a holiday by Federal statute or Executive order.?
(b) Workday means those hours which comprise in sequence the employee's regular daily toor of
duty within any 24-hour period, whether falling entirely within one calendar day or not.
Sec. 3. (a) Any employee whose basic workweek does not include Sunday and who would
ordinarily be excused from work on a holiday falling within his basic workweek shall be excused
from work on the next workday of his basic workweek whenever a holiday falls on Sunday.
(b) Any employee whose basic workweek includes Sunday and who would ordinarily be excused
from work on a holiday falling within his basic workweek shall be excused from work on the next
workday of his basic workweek whenever a holiday falls on a day that has been administratively
scheduled as his regular weekly nonworkday in lieu of Sunday.
Sec. 4. The holiday for afull-time employee for whom the head of a department has established
the first 40 hours of duty performed within a period of not more than six days of the
administrative workweek as his basic workweek because of the impracticability of prescribing a
regular schedule of definite hours of duty for each workday, shall be determined as follows:
(a) If a holiday occurs on Sunday, the head of the department shall designate in advance either
Sunday or Monday as the employee's holiday and the employee's basic 40-hour tour of duty shall
be deemed to include eight hours on the day designated as the employee's holiday.
(b) If a holiday occurs on Saturday, the head of the department shall designate in advance either
the Saturday or the preceding Friday as the employee's holiday and the employee's basic
40-hour tour of duty shall be deemed to include eight hours on the day designated as the
employee's holiday.
(c) If a holiday occurs on any other day of the week, that day shall be the employee's holiday,
and the employee's basic 40-hour tour of duty shall be deemed to include eight hours an that
day.
(d) When a holiday is less than a full day, proportionate credit will be given under paragraph (a),
(b), or (c) of this section.
Sec. 5. Any employee whose workday covers portions of two calendar days and who would,
except for this section, ordinarily be excused from work scheduled for the hours of any calendar
day on which a holiday falls, shall instead be excused from work on his entire workday which
1 of 2 1 / 18/2407 12:41 PM
Federal Register -Executive Orders
commences on any such calendar day.
http: //www.archives.gov/federal-register/codi fication/executive-orde...
Sec. 6. In administering the provisions of law relating to pay and leave of absence, the workdays
referred to in sections 3, 4, and 5 shall be treated as holidays in lieu of the corresponding
calendar holidays.
Sec. 7. The provisions of this order shall apply to officers and employees of the Post Office
Department and the United States Postal Service (except that sections 3, 4, 5, and 6 shall not
apply to the Postal Field Service) until changed by the Postal Service in accordance with the
Postal Reorganization Act.
Sec. 8. Executive Order No. 10358 of June 9, 1952, entitled Observance of Holidays by
Government Agencies, and amendatory Executive Orders No. 11226 of May 27, 1965, and No.
11272 of February 23, 1966, are revoked.
Sec. 9. This order is effective as of January 1, 1971.
1 Editorial note: The observance of Veterans Day was changed to November 11 by Pub. L.
94-97 (89 Stat. 479, 5 U.S.C. 6103), effective Jan. 1, 1978.
2 Editorial note: The birthday of Martin Luther King, Jr., was made a legal public holiday by
Pub. L. 98-144 (97 Stat. 917, 5 U.S.C. 6103 nt.) and is observed on the third Monday in
January.
Page URL: http:l/www.archives.gov/federal-register/codfication/exea~6ve-order/11582.html
The U.S. National Archives and Records Administration
8601 Adeiphi Road, College Park, MD 20740-6001 • Telephone: 1-86-NARA-NARA or 1-866-272-6272
2 of 2 1/18/2007 12:41 PM
CERTIFICATE OF SERVICE
AND NOW, on this ~~ day of January, 2007, I, Matthew Aaron Smith, Esquire, hereby
certify that I have served the foregoing Defendants' Reply in Opposition to Plaintiff's Motion to
Quash Appeal, by mailing a true and correct copy by United States first class mail, addressed as
follows:
Michael M. Jerominski, Esq.
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
FENSTERMACHER AND ASSOCIATES, P.C.
By:
atthew Aaron S 'th
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer
to complaint, etc.):
Plaintiff s Motion to Quash Appeal
2. Identify counsel who will argue case:
(a) for Plaintiff: Turo Law Offices
Address: 28 South Pitt St.
Carlisle, PA 17013
3.
4
(b) for Defendant: Fenstermacher and Associates, P.C.
Address: 5115 East Trindle Road
Mechanicsburg, PA 17050
I will notify all parties in writing within two days that this case has been listed for
argument.
Argument Court Date: February 28, 2007
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Date Michael M. Jerominsla E quue
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Suprejtn~=~a-# I.D. No. 92977
(717} ~=9f688
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Praecipe for Listing Case for Argument, by depositing same in the United States Mail,
first class, postage pre-paid on the ~t1 f M day of ~ ah U Qf~_, 2007, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aaron Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURO LAW OFFICES
Michael M. Jeromins ,Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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BONNIE KEPNER,
Plaintiff
v.
TOM AND CONNIE SHULTZ,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
No. OS-6721
ANSWER TO NEW MATTER
AND NOW comes the Plaintiff, Bonnie Kepner, by and through her attorneys,
Turo Law Offices, and files this Answer to New Matter:
10. Admitted.
1 1. Admitted.
12. Admitted.
13. Admitted.
14. Admitted to the extent that that Executive Order 11582 permits the office of
the President to establish a holiday by Executive order. Denied to the extent that a
holiday was indeed established.
15. Denied. The first sentence of Section 1 of President George W. Bush's
Executive Order of December 28, 2006, states that "[a]ll executive departments,
independent establishments, and other governmental agencies shall be closed on January
2, 2007, as a mark of respect for Gerald R. Ford, the thirty-eighth President of the United
States: ' The Executive Order does not even contain the word "holiday." Furthermore,
Defendants fail to note that Section 2 states that "[t]he first sentence of section 1 of this
order shall not apply to those offices and installations, or parts thereof, in the Department
of State, the Department of Defense, the Department of Justice, the Department of
Homeland Security, or other departments, independent establishments, and governmental
agencies that the heads thereof determine should remain open for reasons of national
security or defense or other essential public business" (emphasis added). The Boazd of
County Commissioners of Cumberland County is responsible for deciding whether or not
the Court shall be open, and also responsible for setting what days aze to be holidays in
Cumberland County. As the Court is charged with carrying out "essential public
business", the Boazd of County Commissioners declined to take any action to close the
Court on January 2, 2007.
16. Admitted.
17. Admitted.
18. Denied.
19. Admitted.
20. Admitted.
21. Denied to the extent that Plaintiff s counsel was on notice as to the timeliness
of Defendants' Appeal, as this erroneously presupposes the timeliness of Defendants'
Appeal. Admitted to the extent that Plaintiff insisted, and continues to insist, on pursuing
her Motion to Quash Appeal.
22. Denied.
WHEREFORE, Plaintiff requests This Honorable Court quash the Defendants'
appeal.
'L,` ()~'
Date
Respectfully submitted,
~ ~.
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Cazlisle, PA 17013
Supreme Court I.D. No. 92977
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Answer to New Matter, by depositing same in the United States Mail, first class,
postage pre-paid on the ~ day of -5~kva~~ 2007, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Matthew Aaron Smith
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURD LAW OFFICES
~~
Michael M. Jerominski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BONNIE KEPNER,
Plaintiff Docket No.: OS-6721
v. :
TOM AND CONNIE SHULTZ, Civil Action -Law
Defendants
ORDER
i
AND NOW, this~~ day of , 2007, upon consideration of
Defendants' Reply in Opposition to Plaintiff's Motion to Quash Appeal, this Court hereby
DENIES Plaintiff s Motion to Quash Appeal
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PRAE~E FO-R I.iS'TING CASTE FOR TI~tIAL
(Must be typewritten and submitted in duplicate)
THE PROTHONOTARY OF CUMBERLAND COUNTY
Ploase list the following case:
® for JURY trial at the next berm of civil court.
^ for trial wltho~tt i j.ry.
ON OF CASE
capdoII must be stand in full)
Bonnie Kepner (Plaintiff
vs. The tri:l list wia be dolled on 3 / 2 0 / 0 7
and n / a
Trials commatce on 4 / 16 / 0 7
Tom and Connie (Dtfe~dant)
i vs. Shultz
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(check one)
^ Civil Action -Law
® Appeal firnn arbitration
(other)
Pretriais will be held an 3 / 2 8 / 0 7
(Brief's an due S darys btfor~e prttrials
No. 05-6721 Civil Tezm
Indicate the attorney who will try case for the party who files this praecipe:
Ron Turo, Esquire, Turo Law Offices
Indicate trial counsel for other partite if known:
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John R. Fenstermacher, Esquire, Fenstern~hcher and Asyuo~ea'~"es
This case is ready for trial Si~ned• :' U
Print N : Ron Turo
Date: 2 / 1 / 0 7 Attorney far: Bonnie Kepner
CERTIFICATE OF SERVICE
I, Michael M. Jerominski, Esquire, hereby certify that I served a true and correct copy of
the Praecipe for Listing Case for Trial, by depositing same in the United States Mail, first
N
class, postage pre-paid on the ~ " day of ~e~ubr7 2007, from Carlisle,
Pennsylvania, addressed as follows:
John R. Fenstermacher
Fenstermacher and Associates P.C.
5115 East Trindle Road
Mechanicsburg, PA 17050-3624
TURO LAW OFFICES
Michael M. Jeromin"ski, Esquire
Turo Law Offices
28 South Pitt Street
Carlisle, PA 17013
Supreme Court I.D. No. 92977
(717) 245-9688
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Bonnie Kepner
v.
Tom and Connie Shultz
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO
OS-6721 CIVIL TERM
ORDER OF COURT
AND NOW, March 1, 2007, by agreement of counsel, the above-captioned matter
is continued from the February 28, 2007 Argument Court list. Counsel is directed to relist the case
when ready.
By the
Edgar. Bayley, J.
~chael M. Jerominski, Esquire
For the Plaintiff
~n Fenstermacher, Esquire
For the Defendant
Court Administrator
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BONNIE KEPNER, IN THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v.
Civil Action - No. 05-6721
TOM AND CONNIE SHULTZ,
Defendants
PRAECIPE TO SETTLE AND DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned action SETTLED AND DISCONTINUED. ~zra r,~t:sF~eJ.
submitted,
~URO LA OFFICES
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By:
Turo, Esquire
2 South Pitt Street
C Aisle, PA 17013
(7 7) 245-9688
omey for Plaintiff
DATED: ~ 11 ~}~~~ ~
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