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HomeMy WebLinkAbout06-2763 I v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. Cla -d.71..."6 c'0l;TEJ~~ FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs DONALD E. SLlKE, and DES ASSOCIATES, Defendants : CIVIL ACTION - LAW PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a Writ of Summons against the above-referenced Defendants. The Defendants may be served at the following addresses: Donald E. Slike DES Associates cfo Bradley J. Gunnison, Esquire Buchanan Ingersoll One South Market Square Harrisburg, PA 17101 Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. DATED 4;fo Ip , ~ ~ ....., ~ ~ ~ (") = 1i \ = c: "'" ~::o ;;::: ::lC -o.t:;.:- "'" . i~ -< ~~ '- & - " Cv U1 ~ r-- r;: ~_.' "'0 ...:- ._~ ~ ~ ~~~ ::lI: Z ~ -() .t' ~ .. ~ Z 0 --l:.. g :::< N --(, Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Court of Common Pleas FRANK ROBERTO AND JUNE M. ROBERTO Plaintiff Vs. No 06-2763 CIVIL TERM DONALD E.SLIKE AND DES ASSOCIATES C/O BRADLEY J. GUNNISON, ESQ. BUCHANAN INGERSOLL ONE SOUTH MARKET SQUARE HARRISBURG, PA 17101 In CivilAction-Law Defendant To DONALD E. SLIKE AND DES ASSOCIATES, You are hereby notified that FRANK ROBERTO AND JUNE M. ROBERTO, the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Curtis R. Long Prothonotary Date MAY 15, 2006 By Attorney: Name: JOHN R. FENSTERMACHER Address: FENSTERMACHER AND ASSOCIATES, P.C. 5115 EAST TRINDLE ROAD MECHANICSBURG, PA 17050 Attorney for: Plaintiff Telephone: 717-691-5400 Supreme Court ID No. 29940 ., " FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 06-2763 Civil Term DONALD E. SLIKE, and DES ASSOCIATES, : CNIL ACTION - LAW Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, P A 17013 (717) 249-3166 ~, FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 06-2763 Civil Term DONALD E. SLIKE, and DES ASSOCIATES, : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW come Plaintiffs Frank Roberto and June M. Roberto by and through their attorneys, the Offices of Fenstermacher and Associates, P.C., and file this Complaint, as follows: 1. Plaintiffs Frank Roberto and June M. Roberto, hereinafter the "Robertos," are adult individuals residing at 270 North Old Stonehouse Road, Carlisle, Pennsylvania 17015. 2. Defendant Donald E. Slike, hereinafter "Slike," is an adult individual residing at 1 00 East Lauer Lane, Camp Hill, Pennsylvania 17011. 3. Defendant DES Associates, hereinafter "DES," is a Pennsylvania limited partnership with an address for conducting business at 1302 Slate Hill Road, Camp Hill, Pennsylvania 17011. 4. Donald E. Slike is the sole General Partner of DES Associates. 5. On or about December 2,2002, Plaintiffs Frank Roberto and June M. Roberto, d/b/a 2 -, "The Hop," entered into a lease agreement, hereinafter "Lease Agreement 1," with Defendant DES Associates as to the premises at 1111 Spring Road, Carlisle, Pennsylvania, hereinafter "Carlisle Premises." A true and correct copy ofthe lease agreement is attached and hereto incorporated as Exhibit "A." 6. On or about December 10, 2002, Plaintiffs Frank Roberto and June M. Roberto, d/b/a "The Hop II," entered into a lease agreement, hereinafter "Lease Agreement 2," with Defendant DES Associates as to the premises at 3619 Simpson Ferry Road, Camp Hill, Pennsylvania, hereinafter "Camp Hill Premises." A true and correct copy of the lease agreement is attached and hereto incorporated as Exhibit "B." 7. Lease Agreement 1 was to end on March 14,2008. 8. Lease Agreement 2 was to end on the last day of January, 2008. 9. Pursuant to the clauses and stipulations of Lease Agreement 1 and Lease Agreement 2, the Carlisle Premises and Camp Hill Premises were to be used solely as restaurants. 10. Lease Agreement 1 and Lease Agreement 2 contain the following identical "Paragraph 3:" If the Lessee should remove or prepare to remove, or attempt to remove from the remove the premises hereby leased before the expiration of the term or at any time during the continuance of this 3 " lease, or if the Lessee shall be in default in the payment of any installment of rent for period of ten days, or should there be a default in any of the covenants or conditions as herein contained, then in that even, rent for the term of twelve months at the rate which it is then due and collectable under the terms ofthis lease shall immediately become due and payable and shall be collectible by distraint or otherwise. 11. Lease Agreement 1 and Lease Agreement 2 contain the following identical "Paragraph 12:" The said Lessee hereby confesses judgment for the rent reserved under this agreement of lease, together with an attorney fee of fifteen percent for collection, and execution may be issued thereon from time to time for any rent due and owing under this lease, and judgment in ejectment as herein provided may be entered concurrently therewith. 12. Lease Agreement 1 and Lease Agreement 2 contain the following identical "Paragraph 13:" 4 " The Lessee does hereby, upon breach of any of the conditions or covenants of this lease during the original term or any renewal ... agrees that an amicable action of ejectment may be entered by the Prothonotary of the Court of Common Pleas of the County of Cumberland as if a complaint in ejectment has been filed by the Lessor as plaintiff against Lessee as defendant for all and singular property herein described ... and Lessee further authorizes the immediate issuance of a writ of possession upon a praecipe therefore by the plaintiffs attorney... 13. Lease Agreement 1 and Lease Agreement 2 contain the following identical "Paragraph 21 :" The second party does hereby waive any and all demand for payment of the rent herein provided for, either on the day due or any other day, either on the land itself or in any other place, and agrees that such demand shall not be a condition of re-entry or of recovery of possession without legal process or by means of any action or proceeding whatsoever. 5 " 14. On or about April 18, 2003, the Robertos opened The Hop at the Carlisle Premises. 15. Following a few months of operation, the Robertos decided to close The Hop and sell their equipment. 16. The Robertos scheduled an auction to take place on October 11, 2004, through the Jennings Auction Group, LLC, to sell their remaining restaurant equipment. 17. The Robertos had invested $767.27 in the aforementioned auction. A true and correct copy of an invoice for the October 11, 2004 Auction is attached hereto and incorporated as Exhibit "C." 18. On or about October 7, 2004, Frank Roberto received a call from Defendant Slike. Defendant Slike suggested that Frank Roberto terminate the auction and that he should sell the business as a "turn-key" business, complete with the equipment and fixtures previously set for auction. 19. Frank Roberto terminated the auction on the advice of Defendant Slike. 20. Subsequent to the termination of the auction, Defendant Slike came to The Hop. During the visit he stated that Frank Roberto needed to "stop the bleeding" and sell the shop, equipment and fixtures as a package deal. 21. During the visit Defendant Slike never discussed sharing monies received from the sale of the equipment, fixtures or the financing of another buyer. 6 -, 22. During the visit Defendant Slike never advised Frank Roberto that he was going to change the locks of The Hop at the Carlisle Premises. 23. During the visit Defendant Slike never discussed removing any equipment or fixtures from The Hop. 24. The entire meeting between Defendant Slike and Frank Roberto was witnessed by Tom Griffie. 25. Following Defendant Slike's visit with Frank Roberto at The Hop, Frank Roberto found a potential buyer for the restaurant equipment in Tally and Mamdoh Elbayomy. A true and correct copy of a signed letter of intent is attached hereto and incorporated as Exhibit "D." 26. The transaction with Tally and Mamdoh Elbayomy was never consummated, however, because Defendant Slike attempted to negotiate a separate contract with the Elbayomys rather than discussing a lease agreement in conjunction with the preexisting agreement between the Elbayomys and the Robertos. 27. Following the Elbayomy deal falling through, Frank Roberto found another potential buyer in Luis Rodriguez. 28. Frank Roberto made initial contact with Luis Rodriguez and had a signed letter of intent for the sale of the restaurant equipment pending a lease agreement between Luis Rodriguez and Defendant Slike. A true and correct copy of the signed letter of intent is attached hereto and incorporated as Exhibit "E." 7 " 29. Defendant Slike subsequently found out about the arrangement and converted the Robertos' restaurant equipment by selling it at a lower price to Luis Rodriguez without the Robertos' permission. 30. On or about February 24,2005, Defendant Slike informed Frank Roberto that he had made the deal with Luis Rodriguez and asked Frank Roberto to come to his office to discuss the matter. 31. At the office, Defendant Slike attempted to get Frank Roberto to sign a legal release on the matter. 32. Frank Roberto refused to sign the release and Defendant Slike became enraged and threatened Frank Roberto with legal action. 33. Following the meeting with Frank Roberto, Defendant Slike entered into a lease agreement with Luis Rodriguez for the Carlisle Premises and converted the personal property of the Robertos for his own personal use and benefit. 34. On or about March 1,2003, the Robertos opened The Hop II at the Camp Hill Premises. 35. Upon commencement of occupancy, the Camp Hill Premises was found to be in disrepair. 36. On or about April 30, 2003, Robert D. Willis, Agent 981 of the Pennsylvania Department of Agriculture, Bureau of Food and Safety and Laboratory Services, conducted an inspection of the Camp Hill Premises. Agent Willis noted in his 8 '-- report that the front exterior of the establishment was in extremely poor condition with openings and that the license would be withheld until an adequate effort to remedy the violations had begun. 37. On or about December 22,2003, a follow-up inspection revealed that the neon sign provided by the Defendants was in violation of fire codes. 38. On or about January 12, 2004, a follow-up inspection revealed that the leased Camp Hill Premises required exterior paint and that the exterior walls were not free of breaks, or loose materials and was not weatherproof. 39. Repair of the exterior building violations were the responsibility of the Defendants. 40. Defendants were contacted by both Lower Allen Township and Frank Roberto as to the above-mentioned violations. 41. Due to the Defendants neglect and failure to bring the Camp Hill Premises up to code, the Robertos were never able to obtain a permanent Certificate of Occupancy from Lower Allen Township. 42. The Robertos were forced to close the Hop II because they were unable to obtain a permanent Certificate of Occupancy. 43. Eventually, due to the closing of the Hop II, the Robertos were unable to meet the rent requirements pursuant to Lease Agreement 2. 44. The Robertos agreed to sell the equipment they had not moved to the Carlisle 9 .... Premises to Lance Barthel. The sale was contingent on Mr. Barthel agreeing to a lease agreement with Defendant Slike. 45. Shortly after the Robertos put Mr. Barthel in touch with Defendant Slike, Mr. Barthel called Frank Roberto to inform him that Defendant Slike had attempted to sell him the Robertos' equipment. 46. Defendant Slike did not have permission to sell the Robertos' equipment on their behalf. 47. The potential sale of the remaining equipment subsequently fell through because Mr. Barthel no longer wanted to deal with Defendant Slike. 48. Following the Barthel deal falling through, the Robertos were forced to close the Camp Hill Premises temporarily, displaying a "Closed For the Season Sign," by the local Fire Marshall, following a small electrical fire. The Fire Marshall also informed Defendant Slike but Slike failed to make the required improvements. 49. Defendant Slike changed the lock of the Camp Hill Premises denying the Robertos access to the premises and their restaurant equipment. A true and correct copy of the list of assets converted by DES, through its agent Slike, is attached hereto and incorporated as Exhibit "F." 50. The Robertos spent approximately $322,644.95 to renovate both the Hop and the Hop II in an attempt to bring both locations up to code. A true and correct copy of an invoice sent to Defendant Donald Slike is attached hereto and incorporated as 10 - Exhibit "G." COUNT I INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: LANCE BARTHEL 51. Paragraphs 1 through 50 are incorporated fully herein by reference. 52. The Robertos had an agreement to sell all the Camp Hill Premises's restaurant equipment to Lance Barthel. 53. DES, through its employee, Donald E. Slike, intentionally interfered with the Robertos' contractual and business affairs when Slike attempted to sell Mr. Barthel the Robertos' equipment without the Robertos' permission. 54. Without the benefit of legal process, DES, through its employee Slike, deprived the Robertos of their personal property and business relations. 55. Such conduct constitutes intentional, improper, and non-privileged interference with the Robertos' business and their contractual relations. 56. As a direct and proximate result of DES's unlawful interference, through its employee Slike, the Robertos have suffered financial harm in excess of $500,000.00. 11 ~, WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT II INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: TALLY AND MAMDOH ELBAYOMY 57. Paragraphs 1 through 56 are incorporated fully herein by reference. 58. The Robertos had a potential agreement to sell the Carlisle Premises' restaurant equipment to Tally and Mamdoh Elbayomy. 59. DES, through its employee, Donald E. Slike, intentionally interfered with the Robertos' contractual and business affairs when Slike attempted to negotiate a separate contract with the Elbayomys without privilege, right or permission from the Robertos. 60. Without the benefit oflegal process, DES, through its employee Slike, deprived the Robertos of their personal property and business relations. 61. Such conduct constitutes intentional, improper, and non-privileged interference with the Robertos' business and their contractual relations. 62. As a direct and proximate result of DES's unlawful interference, through its 12 ~- employee Slike, the Robertos have suffered financial harm in excess of $500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT III INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: LUIS RODRIGUEZ 63. Paragraphs 1 through 62 are incorporated fully herein by reference. 64. The Robertos had a signed agreement to sell the Carlisle Premises' restaurant equipment to Luis Rodriguez. 65. DES, through its employee, Donald E. Slike, intentionally interfered with the Robertos' contractual and business affairs when Slike subsequently found out about the Roberto-Rodriguez agreement, contacted Mr. Rodriguez and sold him the Robertos' restaurant equipment at a lower price without the Robertos' permission. 66. Without the benefit of legal process, DES, through its employee Slike, deprived the Robertos of their personal property and business relations. 13 ~, 67. Such conduct constitutes intentional, improper, and non-privileged interference with the Robertos' business and their contractual relations. 68. As a direct and proximate result of DES's unlawful interference, through its employee Slike, the Robertos have suffered financial harm in excess of $500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT IV BREACH OF CONTRACT 69. Paragraphs 1 through 69 are incorporated fully herein by reference. 70. Lease Agreement 1 is signed by Donald E. Slike as General Partner of DES Associates, Frank Roberto and June M. Roberto. 71. Pursuant to Lease Agreement 1, Paragraph 13, certain procedures must be followed in order to eject the lessees from the Carlisle Premises. 72. Paragraph 13 of Lease Agreement 1 requires an amicable action of ejectment be entered by the Prothonotary of the Court of Common Pleas of the County of 14 '- Cumberland before the Robertos may be ejected from the Carlisle Premises. 73. Paragraph 13 of Lease Agreement 1 requires the issuance ofa writ of possession before the Robertos maybe ejected from the Carlisle Premises. 74. Defendant DES, through its employee Slike, prevented the Robertos from gaining access to the Carlisle Premises when Slike changed the locks ofthe Carlisle Premises effectively ejecting the Robertos. 75. Without the benefit oflegal process, DES, through its employee Slike, deprived the Robertos of their personal property and business relations. 76. Such conduct constitutes an intentional breach of contract because Lease Agreement 1 requires specific actions for ejecting defaulting lessees. 77. As a direct result ofthe Defendants' breach of contract, the Robertos have been damaged in excess of$500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. 15 , , COUNT V BREACH OF CONTRACT 78. Paragraphs 1 through 77 are incorporated fully herein by reference. 79. Lease Agreement 2 is signed by Donald E. Slike as General Partner of DES Associates, Frank Roberto and June M. Roberto. 80. Pursuant to Lease Agreement 2, Paragraph 13, certain procedures must be followed in order to eject the lessees from the Camp Hill Premises. 81. Paragraph 13 of Lease Agreement 2 requires an amicable action of ejectment be entered by the Prothonotary ofthe Court of Common Pleas ofthe County of Cumberland before the Robertos maybe ejected from the Camp Hill Premises. 82. Paragraph 13 of Lease Agreement 2 requires the issuance ofa writ of possession before the Robertos maybe ejected from the Camp Hill Premises. 83. Defendant DES, through its employee Slike, prevented the Robertos from gaining access to the Camp Hill Premises when Slike changed the locks of the Camp Hill Premises effectively ejecting the Robertos. 84. Without the benefit oflegal process, DES, through its employee Slike, deprived the Robertos of their property and business relations. 85. Such conduct constitutes an intentional breach of contract because Lease Agreement 2 prescribes specific actions for ejecting defaulting lessees. 16 . , 86. As a direct result of the Defendants' breach of contract, the Robertos have been damaged in excess of $500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT VI BREACH OF CONTRACT 87. Paragraphs 1 through 86 are incorporated fully herein by reference. 88. Lease Agreement 1 is signed by Donald E. Slike as General Partner of DES Associates, Frank Roberto and June M. Roberto. 89. Pursuant to Lease Agreement 1, Paragraph 3, in the event of a default in the payment of any installment of rent or a default in any of the covenants or conditions within Lease Agreement 1, rent for the term of twelve (12) months shall immediately become due and payable and shall be collected by distraint. 90. Pursuant to 68 P.S. S 250.302, distraint must be made in writing. Section 250.302 states in pertinent part: 17 .., Notice in writing of such distress, stating the cause of such taking, specifying the date oflevy and the personal property distrained sufficiently to inform the tenant or owner what personal property is distrained and the amount of rent in arrears, shall be given, within five days after making the distress, to the tenant ... personally, or by mailing the same to the tenant ... at the premises, or by posting the same conspicuously on the premises charged with the rent. 91. Defendant DES, through its employee Slike, took possession of the Robertos' restaurant equipment through de facto distraint when Slike changed the locks of the Carlisle Premises. 92. The Defendants had a duty to follow the legal requirements of notice when they distrained the Rob erto s ' personal property. 93. The Defendants failed to follow the statutory requirements of 68 P.S. 9 250.302. 94. Such conduct constitutes an intentional breach of contract because Lease Agreement 1 prescribes a specific legal action, distraint, which is governed by the laws of Pennsylvania. 95. As a direct result of the Defendants' breach of contract, the Robertos have been damaged in excess of$500,000.00. 18 ~, WHEREFORE, Plaintiffs Frank: Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT VII BREACH OF CONTRACT 96. Paragraphs 1 through 95 are incorporated fully herein by reference. 97. Lease Agreement 2 is signed by Donald E. Slike as General Partner of DES Associates, Frank: Roberto and June M. Roberto. 98. Pursuant to Lease Agreement 2, Paragraph 3, in the event of a default in the payment of any installment of rent or a default in any of the covenants or conditions within Lease Agreement 2, rent for the term of twelve (12) months shall immediately become due and payable and shall be collected by distraint. 99. Pursuant to 68 P.S. 9250.302, distraint must be made in writing. Section 250.302 states in pertinent part: Notice in writing of such distress, stating the cause of such taking, specifYing the date of levy and the personal property distrained sufficiently to inform the tenant or owner what personal property is 19 . , distrained and the amount of rent in arrears, shall be given, within five days after making the distress, to the tenant ... personally, or by mailing the same to the tenant ... at the premises, or by posting the same conspicuously on the premises charged with the rent. 100. Defendant DES, through its employee Slike, took possession of the Robertos' restaurant equipment through de facto distraint when Slike changed the locks of the Camp Hill Premises. 101. The Defendants had a duty to follow the legal requirements of notice when they distrained the Robertos' personal property. 102. The Defendants failed to follow the statutory requirements of68 P.S. 9 250.302. 103. Such conduct constitutes an intentional breach of contract because Lease Agreement 2 prescribes a specific legal action, distraint, which is governed by the laws of Pennsylvania. 104. As a direct result of the Defendants' breach of contract, the Robertos have been damaged in excess of $500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration 20 . , limitations, plus costs and such other relief as the Court deems just and proper. COUNT VIII BREACH OF IMPLIED WARRANTY OF HABITABILITY 105. Paragraphs 1 through 104 are incorporated fully herein by reference. 106. Lease Agreement 2 is signed by Donald E. Slike as General Partner of DES Associates, Frank Roberto and June M. Roberto. 107. Pursuant to the clauses and stipulations of Lease Agreement 2 the Camp Hill Premises was to be used solely as a restaurant. 108. Defendants were contacted by both Lower Allen Township and Frank Roberto as to the above-mentioned exterior building violations at the Camp Hill Premises. 109. Due to the Defendants' neglect and failure to bring the Camp Hill Premises up to code, the Robertos were never able to obtain a permanent Certificate of Occupancy from Lower Allen Township. 110. Due to the Robertos inability to obtain a permanent Certificate of Occupancy, the Hop II had to be closed for business. 111. The Defendants' failure to do such acts of repair rendered the Camp Hill Premises unfit for the known uses and purposes for which the Robertos had 21 contracted. 112. The Defendants' neglect ofthe Camp Hill Premises did in fact make them uninhabitable for the known uses and purposes of the Robertos. 113. As a direct result of the Defendants' breach of implied warranty of habitability, the Robertos have been damaged in excess of $500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. COUNT IX CONVERSION 114. Paragraphs 1 through 113 are incorporated fully herein by reference. 115. Defendants knew the Robertos owned the restaurant equipment located within the Camp Hill Premises and Carlisle Premises. 116. Defendants had no right, power or authority to prevent the Robertos from full and fair use of the restaurant equipment. 117. Defendant DES, through its employee Slike, prevented the Robertos from full and fair use of the restaurant equipment when Slike changed the locks of the 22 " Camp Hill Premises and Carlisle Premises. 118. Such conduct constitutes intentional conversion of the Robertos personal property for the Defendants' personal use and gain. 119. As a direct result ofthe Defendants' conversion, the Robertos have been damaged in excess of$500,000.00. WHEREFORE, Plaintiffs Frank Roberto and June M. Roberto demand judgment against Defendants in the amount of $500,000.00, which exceeds the compulsory arbitration limitations, plus costs and such other relief as the Court deems just and proper. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: John R. Fens ermacher Supreme Court I.D. #29940 Matthew Aaron Smith Supreme Court I.D. #94603 5115 East Trindle Road Mechanicsburg, P A 17050 (717) 691-5400 Attorneys for Plaintiffs DATED: 7.1- O~fd~' lfA1' 23 , , EXHIBIT "A" 24 This Agreement, made the 1- ,...0. day of & ~!v\l\h.,.i/\ A. D. 2002 Between DES Associates, a Pennsylvania Limited Partnership, of the one part, and Frank Roberto and June M. Roberto, d/b/a ~"-t_ 1-1 c. \='~ , of the other part, Witnesseth, that the said party, in consideration of the rents and covenants hereinafter mentioned, do demise and lease unto said second party, to be used as a restaurant only, the premises situate in the Borough of Carlisle, Cumberland County, state of Pennsylvania, described as follows: Commercial storeroom, containing approximately 4,000 square feet, and known and numbered as 1111 Spring Road, Carlisle, Pennsylvania, and most recently occupied as a West Coast Video store. To have and to hold unto said second party, subject to the conditions of this agreement, for the term beginning on the second day of December, 2002, and ending on the fourteenth day of March, 2008. In consideration of which said second party agree that they will pay to the said first party for the use of said premises, the sum described in paragraph 22 and other consideration hereinafter mentioned under this triple-net Lease Agreement. TIIE DEMISE HEREIN CONTAINED IS MADE AND ACCEPTED ON TIIE FOLLOWING EXPRESS CONDITIONS: 1. No waste shall be committed; and at the end of the said term the demised premises shall be delivered in as good condition as at the commencement thereof, ordinary wear and tear and unavoidable damage by fire, tempest and lightning excepted.. 2. The rent reserved shall be promptly paid on the several days and times herein specified without deduction or abatement, at the principal office of the said Lessor. 3. If the Lessee should remove or prepare to remove, or attempt to remove from the premises hereby leased before the expiration of the term or at any time during the continuance of this lease, or if the Lessee shall be in default in the payment of any installment of rent for the period of ten days, or should there be a default in any of the covenants or conditions as herein contained, then in that event. rent for the term of twelve months at the rate which it is then due and collectible under the terms of this lease shall immediately become due and payable and shall be collectible by distraint or otherwise. 4. At the e~'Piration of the term the demised premises will be restored at the option of the Lessor in the same condition in which they were at the commencement of the term. and the cost of the said restoration shall be paid by the Lessee, which cost will be treated as additional rent due and owing under the terms of the lease. 5. A holding over by the Lessee beyond the term of this lease shall be a renewal of the term of this lease for another like term, and the said renewal shall be under and subject to all the provisions as +. contained in tIus agreement of lease; provided however, that such renewal shall be at the option of the Lessor. 6. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the failure of the Lessor, if said failure is not due to any fault on his part. to give possession of the premises herein demised, at the time agreed upon. 7. Said Lessee shall not carry on any unlawful or immoral business in or about the demised premises, and shall not carry on any business which will endanger the building from fire or cause a forfeiture of any fire insurance that the Lessor has or may hereafter have on said building. 8. The Lessee agrees to pay all bills which may be incurred for light, heat or power used or consumed upon the demised premises, and also all bills for water rent which may accrue for water used during the term of the lease. The Lessor shall not be respoDSlble in any way in the event that the supply of heat is cut off by reason of any cause beyond the control of the Lessor. And the Lessee does hereby release the Lessor from any damage which may result to him by reason of the failure of the supply of heat. Should the Lessee fail to pay any bills as aforesaid, the Lessor shall have the right to pay the same, and the amount as paid shall be chargeable to the Lessee as additional rent. The Lessee agrees to keep the plate glass insured at his own risk. 9. The Lessee agrees to keep the premises in a good condition of repair. All refuse of any kind shall be removed from the premises at the cost of the Lessee at least once a week or oftener, if need be. All snow shall be cleaned off from the sidewalks before it shall have frozen and become hardened. Should the Lessee fail to comply with the provisions of this clause of the lease, the Lessor may enter the premises and make said repairs or remove said refuse and do all other things as herein provided to be done by the Lessee at the expense of the Lessee, and said expense thus incurred may also be collected as additional rent under the lease. 10. In the event of the filing of a petition in banlauptcy, whether voluntary or involuntary, by or against the Lessee herein, there shall become due immediately upon the filing of said petition, rent for twelve months, at the rate that the rent is then payable under this agreement of lease, and the Lessor shall have the further right in said event, to forfeit and terminate this lease. The said forfeiture to be effected by giving notice in writing to the Lessee herein or to the person then in charge of the demised premises. Should an execution issue against the Lessee out of any court, twelve months' rent shall thereupon become due and owing. 11. In the event that the premises occupied by the Lessee shall during said term be destroyed by fire, thereby making the premises untenantable and unfit for occupancy so that the owners thereof deem it advisable to construct a new building, the Lessor herein shall thereupon have the right to cancel and terminate this lease upon giving fifteen days' notice in writing to the Lessee herein, and the term of this lease shall thereupon cease at the expiration of fifteen days after the expiration of said notice. In the event, however, that the said building shall be damaged by fire, but not destroyed, the Lessor will thereupon cause the same to be repaired and restored to its former condition, they to act with the greatest possible diligence, and if the said fire shall have rendered the premises untenantable, payment of rent thereunder shall be suspended from the time when the Lessee herein shall notify the Lessor of such condition, until such time as the building is so repaired and again ready for occupancy, and the Lessee herein agrees that in the event that the building shall be so partially destroyed by fire as to render said repairs necessary that the said Lessor shall thereupon have the right through his servants and agents, and that the servants and agents of any contractor employed by the Lessor shall have the right to take possession of the premises for the purpose of making such repairs, and the so taking of possession shall not be an eviction of the Lessee herein and shall in no manner affect this term of lease. 12. The said Lessee hereby confesses judgment for the rent reserved under this agreement of lease, together with an attorney fee of fifteen percent for collection, and execution may be issued thereon ., from time to time for any rent due and owing under this lease, and judgment in ejectment as herein provided may be entered concurrently therewith. 13. The Lessee does hereby, upon breach of any of the conditions or covenants of this lease during the original term or any renewal, and also when and as soon as the tenn hereby created or any extension or renewal thereof shall have expired agrees that an amicable action of ejectment may be entered by the Prothonotary of the Court of Common Pleas of the County of Cumberland as if a complaint in ejectment has been filed by the Lessor as plaintiff against the Lessee as defendant for all and singular the property herein described and as if said complaint in ejectment had been duly served personally upon the Lessee by the Sheriff of said County within said County and bad been duly returned by said Sheriff served personally upon said Lessee, and the said Lessee hereby authorizes and empowers any attorney of any court of record to appear for the Lessee in said amicable action of ejectment and confess judgment therein in favor of the Lessor and against the Lessee for said premises and said Lessee further authorizes the immediate issuance of a writ of possession upon a praecipe therefor by the plaintiff's attorney and the Lessee hereby waives any and all right of stay of execution and releases to the Lessor all errors and defects whatsoever in entering said action or judgment or in causing said writ to issue or in any proceeding thereon or concerning the same and agrees that no writ of error, objection or exception shall be made or taken thereto, and if after execution and return of the writ the defendant shall re-enter into possession, the prothonotary, upon praecipe and affidavit setting forth the facts, filed within three years after the return of the writ upon which execution was completed shall issue a new writ of possession 14. And further, it is agreed and understood. that the Lessor, his heirs, or assigns, may enter the premises hereby leased at any time during the term, either in the presence or absence of the said Lessee for the purpose of ascertaining whether the said premises are kept in good order and repair during business hours. Further, that the Lessor reserves the right to display a "for rent or sale" sign upon the said premises, and to show same to prospective tenants or buyers. 15. All damages or injuries done to the said premises other than those caUsed by fire and by ordinary wear and tear or by the acts or omission of the landlord shall be repaired by the Lessee herein. And the Lessee covenants and agrees to make said repairs upon five days' notice given to him by the Lessor, and if he shall neglect to make said repairs or commence to make the same promptly or within ten days after said notice as given to him, the Lessor shall have the right to make the said repairs at the e.xpense and cost of the Lessee, and the amount thereof may be collected as additional rent accruing for the month following the date of the said repairs, and if the said expense is made at the e~'Piration of the term, then the cost so made may be collected by the landlord as an additional rent for the use of the premises during the entire term. 16. And the said Lessee hereby accepts notice to quit, remove from, and surrender up possession of the said demised premises to the said Lessor, his heirs or assigns, at the expiration of the said term, whenever it may be determined, whether by forfeiture or otherwise, without any further notice to that effect, all further notice being hereby waived. And on failure to pay rent due, for the space of ten days besides the distress, or upon breach of any other condition of this lease, the Lessee shall be a non-tenant, subject to dispossession by the said Lessor, without further notice or process of law, with release of error and of damages, and the said Lessor may re-enter the premises and disposess the Lessee without thereby becoming a trespasser. And the Lessee hereby waives the benefit of all exemption laws of this Commonwealth that now are in force or may hereafter be in force, or in any action or actions that may accrue on this contract, and in any distress or distress that may be made for collection of the whole of said rent or any part thereof. Waiving also the benefit of stay of execution, inquisition, extension, and all errors, in all proceedings arising out of this lease. 17. No showcase, sign or hanging or protruding sign or permanent obstruction of any kind shall be kept or maintained by the tenant on, the reservation or sidewalk in front of the demised premises, said space to be Used only for purpose of ingress and egress. 18. The party of the second part will bear, pay and discharge when and as the same become due and payable all judgments and lawful claims for damages or otherwise against said parties of the first part arising from its use or occupancy of said leased premises or the sidewalk in front and side of said premises, and will assume the burden and expense of defending all such suits, whether brought before the expiration of this lease and will protect, indemnify and save harmless the said party of the first part, his agents, servants, employees and public at large by reason of or on account of the use or misuse of the premises hereby leased or the sidewalk in front of the said premises, or any part thereof, due to the negligence of the lessee or his agents. 19. And in consideration of securing the within lease at the above stated rent, said Lessee does hereby release and discharge said Lessor, his heirs or assigns, from any and all liability for damage that may result from the bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin, water-closet, steam pipe and drain, and from all liability for any and all damage caused by the water, gas, steam, waste and contents of said water pipes, gas pipes, steam pipes, sewers, basins, water-closets and drains. . 20. It is expressly understood by the parties that the whole agreement is embodied in this agreement, which includes the attached Addendum with additional paragraphs numbered 22 through 40, and that no part or item is omitted. 2 L The second party does hereby waive any and all demand for payment of the rent herein provided for, either on the day due or on any other day, either on the land itself or in any other place, and agrees that such demand shall not be a condition of re-entry or of recovery of possession without legal process or by means of any action or proceedings whatsoever. Witness the hands and seals of the parties, the day and year first above written. /IUoJfL<<//Cuul~~ l,~ Don E. Slike, General Partner DES Associates ! ' " f : i 'l .,.. . j' 'I; i _ l ' t / ',\..' /.. : \-'''I.:.~.'v\_(. ,.' .---' ..- / ~ /~ " -- .- ~. .~-? ~ :~/';,c -c:& -r'1!:-~-=1:: I~:""C:~(.~~-.r -~~ C" 1/ . ii. (7 f ( I /' , - . (. /-./ ,/ / ',, / I 'Frank Roberto, Lessee / i /1." , ~ '-.._LU r--,. .~. ~\:.." 2c. June M. Roberto, Lessee , This Addendum to Lease is attached to and made a part of Lease Agreement between the parties hereto. This is a triple-net Lease Agreement. In the event of any conflict between the terms of the Lease and the terms of this Addendum, this Addendum shall control. 22. Lessee shall pay rent in accordance with the following schedule: (a) From Lease signing until March 14,2003, Lessee shall have "free" rent. During this "free" Period, Lessee shall be responsible for utilities, taxes, insurance and maintenance. (b) For the next twenty-four months, at the rate of $3,000.00 per month. (c) For the next twelve months and for each twelve month period thereafter, at the rate of 103% of the rental for the prior twelve months. 23. All rental payments are due on the fifteenth day of the month. A five percent (5%) penalty shall be added for any payment not received within five days following the due date. 24. All notices to Lessor shall be in writing, addressed as follows: Mr. Donald E. Slike P. O. Box 292 Camp Hill, P A 17001-0292 25. Lessee shall pay all rent to 1302 Slate Hill Road, Camp Hill, Pennsylvania or mail to P.o. Box 292, Camp Hill, PA 17001-0292, unless notified in writing of change in address by Lessor. 26. Lessee shall be responsible for all sewer charges, along with all other utilities as set forth in paragraph 8. 27. If water heater replacement is necessary at the time of signing of this Lease Agreement, Lessor shall replace the existing water heater with a 40-gallon gas water heater. Lessor also agrees to supply up to four windows, of a size to be mutually agreed upon by Lessor and Lessee, with Lessee to be responsible for installation of said windows. Lessor and Lessee agree Lessee shall purchase the existing fuel oil from Lessor at one-half the current market price. Lessor agrees to apply a top coat to the existing paving during the spring of2003; Lessee shall be responsible for striping the parking area afterward, and Lessee shall keep the premises, both interior and exterior, including parking lot, signage, sidewalk, driveways, root: spouting, heating, air conditioning, plumbing, electrical system and other equipment in good repair, and replace all glass broken with glass of equal quality, and at the end of the term, surrender and deliver the Premises to the Lessor in good order and condition, reasonable wear and use only excepted. Lessee's obligations to maintain and repair shall include, but not be limited to, doors, any devices or appurtenances thereto, plate glass and windows. Lessee agrees to purchase and maintain at all times during the term of this Lease and any renewal option a comprehensive maintenance agreement for the heating and air conditioning units. " 33. If less than 50% of the Premises shall be damaged or destroyed by fire, or other casualty, Lessor shall, at its own cost and expense, promptly repair and restore the Premises, including any leasehold additions or improvements covered by Lessor's insurance (but excepting Lessee's trade fixtures, equipment or other personal property) made thereto or thereon to a condition substantially equal to the condition of the Premises immediately prior to such damage. Such repair shall be completed within a period of one hundred twenty (120) days after such damage. The rent and other charges shall abate from the date of the damage until the Lessor shall have repaired or restored the premises to the condition described above. Should more than fifty percent (50%) of the Premises leased herein be damaged or destroyed by fire during the last year of the lease term, either party shall have the option to terminate this Lease upon fifteen (15) days notice in writing to the other from the date of the damage. 34. If Lessor must commence legal action against Lessee for collection of rent or for possession upon default, Lessee shall be liable for reasonable attorney fees for such efforts and! or legal proceedings. 35. Any entry by the Lessor pursuant to paragraph 14 cannot unreasonable interfere with the Lessee's normal business operations, and the Lessor shall be limited to posting "for sale" or "for rent" signs on the Premises to the last six (6) months of the Lease (or option period) or until after default in the payment of rent. 36. The premises is to be used as a restaurant only. The sale of White Mountain Creamery ice cream shall also be part of the use of the premises, with a royalty of two percent (2%) of all White Mountain Creamery ice cream sales being paid to Lessor by Lessee. Any other use must first be approved by Lessor in writing. 37. Lessee will not dispose of materials on the property, and will not process, store or handle any "hazardous substance" as defined in 42 use section 9601 or any "hazardous waste" as defined in 42 USC section 6903, and Lessee shall be liable to Lessor, its successors and assigns, for any costs incurred in connection with the processing, storage or handling of hazardous wastes or hazardous substances on Lessor's property. 38. Lessor hereby grants to Lessee a Right of First Refusal to purchase the Premises during the base term of this Lease Agreement ("Refusal Period"). In the event Lessor receives a bonafide written offer to purchase from a third party within the Refusal Period that Lessor is willing to accept, Lessor shall forward a true copy of said offer to Lessee. In the event Lessee does not accept the offer within ten (10) days following receipt of same, this Right of First Refusal shall expire and lapse and Lessor shall be free to sell according to the terms of the offer. In the event the terms of the offer are materially changed thereafter, Lessor shall resubmit the offer to Lessee pursuant to the terms hereof .... The Affidavit of Lessor to the bonafide purchaser shall be deemed to be conclusive evidence of Lessee's failure or refusal to accept the offer. If Lessor elects not to sell pursuant to the offer, the Lessee's Right of First Refusal shall not expire and shall continue during the Refusal Period. Notwithstanding the foregoing, the Right of First Refusal shall not arise with respect to a transfer by Lessor to a spouse, lineal descendant, and/or spouse of a lineal descendant of Lessor, or to an entity in which Lessor or a spouse, lineal descendants and/or the spouse of a lineal descendant own a fifty percent (50%) or greater interest (a Related Party), however, the Premises shall remain subject to the Right of First Refusal in the hands of such Related Party. 39. A security deposit of Three Thousand Dollars ($3,000.00) shall be paid by Lessee to Lessor at the signing of this Lease Agreement. The security deposit will not be used as rent at any time. 40. Lessee understands Lessor also leases space for an automatic teller machine (ATM) to Defense Activities Federal Credit Union (DAFCU) andlor its assigns, and that customers of DAFCU and/or its assigns will access the property by automobile and park thereon while utilizing the ATM service. The ATM is the personal property of DAFCU and/or its assigns and shall not be considered part of the real estate. Lessor shall continue to receive the rent from DAFCU and/or its assigns, and Lessee may not, at any time, limit A TM customers from accessing the ATM. Witness the hands and seals of the parties, the day and year first above written. VVitness: ~ JUl:tf1lfM/. . /41J~ Lessor: ~~,ALt~ Donald E~ Slike, General Partner DES Associates Lessee: /: I, . ,. . ,! ',I-f :' {-, '. ;,1.... "". t,' ~.tf/'- ~",/ I / \ {(;,\ l.": ", /-) ," ,.2!~"-'1 ~ ~':~-.~... ,~: . "-:-- ~~~- /i ( { / ' I : r . ,-'!..J ! . . :! . I ':i If Frank Roberto, Lessee . , .' i I:, /~ \ - \ :\ " .-1 \.\ _~'-"'., ,"i "\ "V... .... \ . ~\. ~ \..\~. '. June M. Roberto, Lessee .. EXHIBIT "B" 25 ~\r-- \ This Agreement, made the '10 day of M c.., A. D. 2002 Between Donald Slike, of the one part, and Frank Roberto and June M. Roberto, d/b/a , of the other part, Witnesseth, that the said party, in consideration of the rents and covenants hereinafter mentioned, do demise and lease unto said second party, to be used as a restaurant only, the premises situate in Lower ADen Township, Cumberland County, state of Pennsylvania, described as follows: End-unit commercial storeroom, known and numbered as 3619 Simpson Ferry Road, Camp Hill, Pennsylvania, and most recently occupied as a White Mountain Creamery store. To have and to hold unto said second party, subject to the conditions of this agreement, for the term beginning on the second day of December, 2002, and ending on the last day of January, 2008. In consideration of which said second party agree that they will pay to the said first party for the use of said premises, the sum described in paragraph 22 and other consideration hereinafter mentioned under this triple-net Lease Agreement. THE DEMISE HEREIN CONTAINED IS MADE AND ACCEPTED ON THE FOLLOWING EXPRESS CONDITIONS: I. No waste shall be committed; and at the end of the said term the demised premises shall be delivered in as good condition as at the commencement thereof, ordinal)' wear and tear and unavoidable damage by fire. tempest and lightning excepted. 2. The rent reserved shall be promptly paid on the several days and times herein specified without deduction or abatement. at the principal office of the said Lessor. 3. If the Lessee should remove or prepare to remove, or attempt to remove from the premises hereby leased before the expiration of the term or at any time during the continuance of this lease. or if the Lessee shall be in default in the payment of any installment of rent for the period of ten days, or should there be a default in any of the covenants or conditions as herein contained, then in that event, rent for the term of twelve months at the rate which it is then due and collectible under the terms of this lease shall immediately become due and payable and shall be collectible by distraint or othern-isc. 4. At the expiration of the term the demised premises will be restored at the option of the Lessor in the same condition in which they were at the commencement of the term. and the cost of the said restoration shall be paid by the Lessee, which cost will be treated as additional rent due and owing under the terms of the lease. 5. A holding over by the Lessee beyond the term of this lease shall be a renewal of the term of this lease for another like term. and the said renewal shall be under and subject to all the provisions as contained. in this agreement of lease; provided however, that such renewal shall be at the option of the Lessor. 6. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the failure of the Lessor, if said failure is not due to any fault on his part, to give possession of the premises herein demised, at the time agreed upon. 7. Said Lessee shall not carry on any unlawful or immoral business in or about the demised premises, and shall not carry on any business which will endanger the building from fire or cause a forfeiture of any fire insurance that the Lessor has or may hereafter have on said building. 8. The Lessee agrees to pay all bills which may be incurred for light, heat or power used or consumed. upon the demised premises, and also all bills for water rent which may accrue for water used during the term of the lease. The Lessor shall not be responsible in any way in the event that the supply of heat is cut off by reason of any cause beyond the control of the Lessor. And the Lessee does hereby release the Lessor from any damage which may result to him by reason of the failure of the supply of heat. Should the Lessee fail to pay any bills as aforesaid, the Lessor shall have the right to pay the same, and the amount as paid shall be chargeable to the Lessee as additional rent. The Lessee agrees to keep the plate glass insured. at his own risk. 9. The Lessee agrees to keep the premises in a good condition of repair. All refuse of any kind shall be removed from the premises at the cost of the Lessee at least once a week or oftener, if need be. Ail snow shall be cleaned off from the sidewalks before it shall have frozen and become hardened. Should the Lessee fail to comply v,1.th the provisions of this clause of the lease, the Lessor may enter the premises and make said repairs or remove said refuse and do aU other things as herein provided to be done by the Lessee at the expense of the Lessee, and said expense thus incurred. may also be collected as additional rent under the lease. 10. In the event of the filing of a petition in bankruptcy, whether voluntary or involuntary, by or against the Lessee herein, there shall become due immediately upon the filing of said petition, rent for twelve months, at the rate that the rent is then payable under this agreement of lease, and the Lessor shall have the further right in said event, to forfeit and tenninate this lease. The said forfeiture to be effected by giving notice in writing to the Lessee herein or to the person then in charge of the demised. premises. Should an execution issue against the Lessee out of any court, twelve months' rent shall thereupon become due and owing. I L In the event that the premises occupied by the Lessee shall during said term be destroyed by fire, thereby making the premises untenantable and unfit for occupancy so that the owners thereof deem it advisable to construct a new building, the Lessor herein shall thereupon have the right to cancel and terminate this lease upon ghing flfteen days' notice in writing to the Lessee herein. and the term of this lease shall thereupon cease at the expiration of fifteen days after the expiration of said notice. In the event, however, that the said building shall be damaged by fire, but not destroyed, the Lessor will thereupon cause the same to be repaired and restored to its former condition, they to act with the greatest possible diligence, and if the said fire shall have rendered the premises untenantable, payment of rent thereunder shall be suspended from the time when the Lessee herein shall notify the Lessor of such condition. until such time as the building is so repaired and again ready for occupancy. and the Lessee herein agrees that in the event that the building shall be so partially destroyed by fire as to render said repairs necessary that the said Lessor shall thereupon have the right through his servants and agents, and that the servants and agents of any contractor employed by the Lessor shall have the right to take possession of the premises for the purpose of making such repairs, and the so taking of possession shall not be an eviction of the Lessee herein and shall in no manner affect this term of lease. 12. The said Lessee hereby confesses judgment for the rent reserved under this agreement of lease, together with an attorney fee of fifteen percent for collection. and execution may be issued thereon from time to time for any rent due and owing under this lease, and judgment in ejectment as herein provided may be entered concurrently therewith. 13. The Lessee does hereby, upon breach of any of the conditions or covenants of this lease during the original term or any renewal, and also when and as soon as the term hereby created or any extension or renewal thereof shall have expired agrees that an amicable action of ejectment may be entered by the ProthonotaIy of the Court of Common Pleas of the County of Cumberland as if a complaint in ejectment has been filed by the Lessor as plaintiff against the Lessee as defendant for all and singular the property herein described and as if said complaint in ejectment had been duly served personally upon the Lessee by the Sheriff of said County within said County and had been duly returned by said Sheriff served personally upon said Lessee, and the said Lessee hereby authorizes and empowers any attorney of any court of record to appear for the Lessee in said amicable action of ejectment and confess judgment therein in favor of the Lessor and against the Lessee for said premises and said Lessee further authorizes the immediate issuance of a writ of possession upon a praecipe therefor by the plaintiff's attorney and the Lessee hereby waives any and all right of stay of execution and releases to the Lessor all errors and defects whatsoever in entering said action or judgment or in causing said writ to issue or in any proceeding thereon or concerning the same and agrees that no writ of error, objection or exception shall be made or taken thereto, and if after execution and return of the writ the defendant shall re-enter into possession, the prothonotary, upon praecipe and affidavit setting forth the facts, filed within three years after the return of the writ upon which execution was completed shall issue a new \\oTIt of possession 14. And further, it is agreed and understood that the Lessor, his heirs, or assigns, may enter the premises hereby leased at any time during the term, either in the presence or absence of the said Lessee for the purpose of ascertaining whether the said premises are kept in good order and repair during business hours. Further, that the Lessor reserves the right to display a "for rent or sale" sign upon the said premises, and to show same to prospective tenants or buyers. 15. All damages or injuries done to the said premises other than those caused by fire and by ordinary wear and tear or by the acts or omission of the landlord shall be repaired by the Lessee herein. And the Lessee covenants and agrees to make said repairs u{Xln five days' notice given to him by the Lessor, and if he shall neglect to make said repairs or commence to make the same promptly or within ten days after said notice as given to him, the Lessor shall have the right to make the said repairs at the e:\.-pense and cost of the Lessee. and the amount thereof may be collected as additional rent accruing for the month following the date of the said repairs, and if the said expense is made at the e:\.l'iration of the tenn., then the cost so made may be collected by the landlord as an additional rent for the use of the premises during the entire term. 16. And the said Lessee hereby accepts notice to quit, remove from, and surrender up possession of the said demised premises to the said Lessor, his heirs or assigns, at the expiration of the said term. whenever it may be determined, whether by forfeiture or otherwise, without any further notice to that effect, all further notice being hereby waived. And on failure to pay rent due, for the space of ten days besides the distress, or upon breach of any other condition of this lease, the Lessee shall be a non-tenant. subject to dispossession by the said Lessor, \\oithout further notice or process of law, with release of error and of damages, and the said Lessor may re-enter the premises and disposess the Lessee without thereby becoming a trespasser. And the Lessee hereby waives the benefit of all exemption laws of this Commonwealth that now are in force or may hereafter be in force, or in any action or actions that may accrue on this contract, and in any distress or distress that may be made for collection of the whole of said rent or any part thereof. Waiving also the benefit of stay of execution. inquisition, extension, and all errors, in all proceedings arising out of this lease. 17. No showcase, sign or hanging or protruding sign or permanent obstruction of any kind shall be kept or maintained by the tenant on, the reservation or sidewalk in front of the demised premises, said space to be used only for purpose of ingress and egress. ,~ 18. The party of the second part will bear, pay and discharge when and as the same become due and payable all judgments and lawful claims for damages or otherwise against said parties of the first part arising from its use or occupancy of said leased premises or the sidewalk in front and side of said premises, and will assume the burden and expense of defending all such suits, whether brought before the expiration of this lease and will protect, indemnify and save harmless the said party of the first part, his agents, servants, employees and public at large by reason of or on account of the use or misuse of the premises hereby leased or the sidewalk in front of the said premises, or any part thereof, due to the negligence of the lessee or his agents. 19. And in consideration of securing the within lease at the above stated rent, said Lessee does hereby release and discharge said Lessor, his heirs or assigns, from any and all liability for damage that may result from the bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin, water-closet, steam pipe and drain, and from all liability for any and all damage caused by the water, gas, steam, waste and contents of said water pipes, gas pipes, steam pipes, sewers, basins, water-closets and drains. 20. It is e~'Pressly understood by the parties that the whole agreement is embodied in this agreement, which includes the attached Addendum with additional paragraphs numbered 22 through 39, and that no part or item is omitted 21. The second party does hereby waive any and all demand for payment of the rent herein provided for, either on the day due or on any other day, either on the land itself or in any other place, and agrees that such demand shall not be a condition of re-entry or of recovery of possession without legal process or by means of any action or proceedings whatsoever. Witness the hands and seals of the parties, the day and year first above written. J{~tHW<<J j>>01VJ-~ ./ .j .~ Frank Roberto, Lessee June M. Roberto, Lessee -- This Addendum to Lease is attached to and made a part of Lease Agreement between the parties hereto. This is a triple-net Lease Agreement. In the event of any conflict between the terms of the Lease and the terms of this Addendum, this Addendum shall control. 22. Lessee shall pay rent in accordance with the following schedule: (a) From Lease signing until January 31, 2003, Lessee shall have "free" rent. During this "free" Period, Lessee shall be responsible for utilities, taxes, insurance and maintenance. (b) For the next twenty-four months, at the rate of$I,200.00 per month. (c) For the next twelve months, at the rate of$I,450.00 per month. (d) For the next twelve months, at the rate of $1,600.00 per month. (c) For the next twelve months, at the rate of$I,750.00 per month. 23. All rental payments are due on the first day of the month. A five percent (5%) penalty shall be added for any payment not received within five days following the due date. 24. All notices to Lessor shall be in writing, addressed as follows: Mr. Donald E. Slike P. O. Box 292 Camp Hill, P A 17001-0292 25. Lessee shall pay all rent to 1302 Slate Hill Road, Camp Hill, Pennsylvania or mail to P.O. Box 292, Camp Hill, P A 17001-0292, unless notified in writing of change in address by Lessor. 26. Lessee shall be responsible for all sewer charges, along with all other utilities as set forth in paragraph 8. 27. When weather permits, Lessor agrees to paint the front of the exterior of the leased premises. Lessee shall keep the premises, both interior and exterior, including parking lot, signage, sidewalk, driveways, roof, spouting, heating, air conditioning, plumbing, electrical system and other equipment in good repair, and replace all glass broken with glass of equal quality, and at the end of the term., surrender and deliver the Premises to the Lessor in good order and condition, reasonable wear and use only excepted. Lessee's obligations to maintain and repair shall include, but not be limited to, doors, any devices or appurtenances thereto, plate glass and windows. Lessee agrees to purchase and maintain at all times during the term of this Lease and any renewal option a comprehensive maintenance agreement for the heating and air conditioning units. Lessee shall be responsible for and pay for the cost of housekeeping of the Premises, including lawn and landscaping care, sweeping, trash removal, snow removal, lighting and striping of any parking area. Lessee shall make, at its sole cost and expense, all repairs necessary to maintain the Premises and the fixtures in neat and orderly condition. If Lessee refuses or neglects to make such repairs, or fails to diligently prosecute the same to completion, after written notice from Lessor of the need therefor, Lessor may make such repairs at the expense of Lessee and such expense shall be collectable as additional rent. 28. Lessee shall, within thirty (30) days of receipt of billing from Lessor, reimburse Lessor the cost of real estate taxes ( at face) and insurance for the leased premises. 29. A holding over by the Lessee beyond the term of this Lease or any option term shall be a renewal of the term of this Lease for another month, and thereafter from month to month until thirty (30) days notice is given by either party of intention to terminate the Lease. 30. Lessee shall have the option to renew this Lease Agreement for two additional five (5) year terms, provided a six (6) months written notice (prior to the expiration of the then-current lease term) of intention to exercise the option is provided to Lessor. The monthly rental for each year of the option period( s) shall be negotiated based on the fair- market rental at that time; if Lessee and Lessor cannot agree, each shall choose an independent appraiser. These two appraisers shall choose a third independent appraiser who shall be engaged to determine a fair market rental. The monthly rent shall, however, in no way be less than the last monthly rent of the initial lease term. The second option is automatically forfeited if the first option is not exercised. 31. In the event of a filing of a petition in bankruptcy, either voluntary or involuntary, Lessor shall be entitled to all rights permitted under the Bankruptcy Code, and Lessee shall provide adequate assurance of future rentals or this Lease shall terminate. 32. Lessee shall maintain insurance on the contents of the property and liability insurance, listing Lessor as additional insured, and shall indemnify, hold harmless and defend Lessor from and against any and all costs, expenses (including reasonable counsel fees) liabilities, losses, damages, suits, actions, fines, penalties, claims or demands of any kind asserted by or on behalf of any person or governmental authority, arising out of or in any way connected with, and Lessor shall not be liable on account of (a) any failure by Lessee to perform any of the agreements, terms, covenants or conditions of the Lease Agreement required to be performed by Lessee; (b) any failure by Lessee to comply with any statutes, ordinances, regulations or orders of any governmental authority; or (c) any accident, death or personal injury, or damage to or loss or theft of property, which shall occur in or about the Premises. 33. If less than 50% of the Premises shall be damaged or destroyed by fire, or other casualty, Lessor shall, at its own cost and expense, promptly repair and restore the Premises, including any leasehold additions or improvements covered by Lessor's insurance (but excepting Lessee's trade fixtures, equipment or other personal property) made thereto or thereon to a condition substantially equal to the condition of the Premises immediately prior to such damage. Such repair shall be completed within a period of one hundred twenty (120) days after such damage. The rent and other charges shall abate from the date of the damage until the Lessor shall have repaired or restored the premises to the condition described above. Should more than fifty percent (50%) of the Premises leased herein be damaged or destroyed by fire during the last year of the lease term, either party shall have the option to tenninate this Lease upon fifteen (15) days notice in writing to the other from the date of the damage. 34. If Lessor must commence legal action against Lessee for collection of rent or for possession upon default, Lessee shall be liable for reasonable attorney fees for such efforts and/or legal proceedings. 35. Any entry by the Lessor pursuant to paragraph 14 cannot unreasonable interfere with the Lessee's normal business operations, and the Lessor shall be limited to posting "for sale" or "for rent" signs on the Premises to the last six (6) months of the Lease (or option period) or until after default in the payment of rent. 36. The premises is to be used as a restaurant only. The production and sale of White Mountain Creamery ice cream shall also be part of the use of the premises, with a royalty of two percent (2%) of all White Mountain Creamery ice cream sales being paid to Lessor by Lessee. Any other use must first be approved by Lessor in writing. 37. Lessee will not dispose of materials on the property, and will not process, store or handle any "hazardous substance" as defined in 42 USC section 9601 or any "hazardous waste" as defined in 42 USC section 6903, and Lessee shall be liable to Lessor, its successors and assigns, for any costs incurred in connection with the processing, storage or handling of hazardous wastes or hazardous substances on Lessor's property. 38. A security deposit of One Thousand Two Hundred Dollars ($1,200.00) shall be paid by Lessee to Lessor at the signing of this Lease Agreement. The security deposit will not be used as rent at any time. 39. Lessor agrees to replace the existing water heater with a 40 gallon water heater. Lessee agrees to purchase the following equipment from Lessor: Coil and compressor for approx 8' X 8' cooler (not the cooler itself), 3-compartment stainless steel sink, 3-2door freezers, 2- dipping cabinets, 1 convection oven, 2-door display freezer, cash register, stack clothes washer & dryer, 36" in-counter refrigerator, all counters, all tables, all chairs, ice-making machine, 2-Taylor soft ice cream machines (2 heads & twist each) and the picnic tables on the deck. The purchase price shall be Sevei\ Thousand Dollars; Lessor agrees to finance the $7,000.00 at 0% annual interest, with monthly payments of no less than $175.00 starting no later than six months after store opening. Lessee agrees to grant .. Lessor a security interest in said equipment. If, at the expiration of eighteen months of lease payments Lessee has not achieved a break-even level of operations and desires to close the business, Lessee may do so by giving Lessor a six months written notice, thus terminating this Lease Agreement January 31, 2005. This option to terminate the Lease Agreement early is available only if Lessee closes, not relocates, the business, and only during the month of July, 2004. T{." <-\.'^ \5 (l'~" ()./-. to e (0"5<:' i 5 e\c:b'(~.l$ ed I f\\..,,'1 (e \J"~'':''\;:; bdCLv.....U:- ,~~ L"'^- ~~ ~\i...,v',,\'O~L,\f :)~~t 6 pcu6 fv-t <-V' .f-o ~ II \J(\.t.~\..'0v'f Jw fi.c.,..U.Sl-5'. ~ Witness the hands and seals of the parties, the day and year first above written. Witness: ~({tttleiL/ ~.~ Do aId SliRe, Lessor / Lessee: Frank. Roberto, Lessee June M. Roberto, Lessee EXHIBIT "C" 26 z o i= () ::) <( -;;t S2 "'""" "'""" 25 .,- ! 010\ ,....,100 i ~l<'! Lt')1"7 ! ~ C'~l""" '-":!'r) ! fJ) [_.\ o. ~I ~ 10 i IU I I I Ch; (f) if; i (f) r~ 81'3 tilt i~ I ; q'lq 1< ('\11 If) -.;t' u') IQ lz I I ! I~ I I i c:: -.:: \.4 1l4l',' -.;t' 8 81 ~ ~ ..~ ~8 .B,~ '" ". 0 01...... It: NJU u1'@ I l..s.s CI.. ! I I f-~ I I I i l i , , i I II I ! i I I I I I I ! I i .l-J I i ~ I I .-; I I I crI I I Ii::' I I 'j t'l ; I I !;:r... ! I I c:: ! I .....10 I, I ~ I.C ! ad 1-' .~I.~ I C::l 0 2..J U I!~'-I'r' cnO ('_". S c C::! W l~ \..I ~ l-iIW ! l:l.. ~ P-; .~ < ! <: p:.. I bt' r'~ 4-J f O. ~!I 1-<1- ~ '-l<!.!;::lo--<t'l i~1 ;;:;!..D, OJ1 ~ ~~ ~f '.fJ '"0 ,.J 1f;rJ ~I'g ~II ~ lzj"'!lt-< ,.q ~ ! \--{ ~!~ p....~ '\]\ '>~ '\ ........., \ "'-, \ '0 \~ ~ \ s:', ~ C' ~ ~ I i I i , , (f), (fJ. I I I I I OJ~ ~Ild -.;t' \0 I .;..J l-' U U 010 I I N N I I I c:: c::1 I 8 r' ;:l g I '0 '0 U U I ..s I' ..s I I I ! I I I I I ! I I ',' i i ! I I I ! j I I I I ~ I ! g. I I 8. I J b I iH <:.> I ~z ! ~ i.11 ""0 u a3'!' g i ji p.:::,~ I I i I i I I I I I I' I I I I I i I I I I I I I I I I I I . i I i . , I I I I I I I I I I I I I I ! , I I i I I I I ! ! I I i , \ \ \t--.).. ~~t t\.~ , ,:) \~" ! I I I I I I I I i 001 0 ~.,ll' I! ('\n~ ~, I 01, If) ['-.1 '1',....... <<II' t'l, u' 1- a '?l I ; I I I 1 ) CfJj (f) (fl" I I (/;0 t , I i I I I i ! ! t I I I ! i !i i I i I I i I i I I I I I I ! I I I I I liT i I Iii : I i I I I I , I Iii I i 1 I I I j I I I I I I I I I ! 'I ! I ' , I I I ! I q I · .gl 'fl I gl D j bfJ. tl -v;:< l,l :;.. c:: I (: \.4 I ~I '.;:3 t:: P..d I ~ r.rJ. ~ "I Olr!"' ~ co;..." c..,"'... q. "21 C'!p! ~ :BI e<:! (~\ .";:1 bf:J ...., 8 ~ ,.at ~ ~I 'fl 0 OJ; r. ~ I o 0 ~ I .~'-Jl p.q Lt') t;j: I ifj -< i ! I I EXHIBIT "D" 27 Letter of Intent Tally Elbayomyand Mamdoh Elbayomy is in agreement with Frank Roberto to purchase the listed equipment located at 1111 Carlisle Springs Road, Carlislet Pennsylvania 17013. Confinnation of this purchase depends on obtaining a lease from Mr. Donald E. Slike, Property Owner. A deposit is retained, in escrow, by Frank Roberto, the Seller, until lease is acquired. ~)(/J( fC mOMi JY\(tw-c\~~t>~. ~:g/6/0f Witness . Buyer , Date \'\~/[jY f:'L&tot1'l ~\~i~ 1ft!@. CI~(06(o&/ WitnesS Buyer' Date y\Q)\j (j 'iel ~~~~-~~ ~.& y Witness I Seller Date EXHIBIT "E" 28 Letter of Intent 1111, C' fl o,(,'9u,:<I!.IId .$~.,-::.c: is in agreement with Frank Roberto to purchase the listed equipment located at 1111 Carlisle Springs Road, Carlisle, Pennsylvania 17013. "Coll:timiatioooftlds.purchase'dependS-otlobtittntng-aleaseftoniMi: -Donald E:-Slike, -- Property Owner. A deposit is retained, in escrow, by Frank Roberto, the Seller, until1ease is acquired. ~ ~Q,c ( -'60 ~OS Date -~,---- .1 fL {c IE d R cJ(/r (.9 J ~ /- :3e> -C?$ , - - - - - Buyer------- - ---------Dauf -;MPH Lk//P5 A~.d/IZI1.. Witness ~~~~8~/~j--- , Seller Date <- EXHIBIT "F" 29 Schedule "A" The Assets 18 Booths 1 8' Table 32 Tables 1 Triangular Table 2 Round Tables 69 Chairs 2 Plastic Baby Seats 2 High Chairs 6 Trash Cans 1 6' Bay Marie Make-up Table FM! F ABX Metals, Inc. Rocky Mount, NC 1 Stainless Steel- Bar Sink 1 Towel Dispenser 1 7' Stainless Table with angle and 2 shelves I Large Conveyor Belt Gas Pizza Oven 1 5' Stainless Table 1 7' Stainless Hood 4 Pan Racks and 32 Baking Pans 1 Refrigerated Make-Up Cooler 9' Hobart 1 Walk-In Cooler 10' X 8' & 4 - 4' X 2' Shelving 1 Hobart Mixer L-800 with Bowl & Accessories 1 Hobart Slicer & Stainless Steel 3' X 2' Table 1 2-drawer freezer Migal, Camden NJ 1 3-Compartment Stainless Sink 30 Plasti~ Dough Trays 1 Ice Making Machine, Series 450 1 Stainless Steel 5' Table 1 Sani-~erv Convey-~-Broil 1 5' Gas Grill 1 2-Bumer Gas Cook Top 1 6' Table 1 Hood 1 11' Hood & Ansul System 1 Goldstar Microwave Oven 1 Gas Fryer American Range Storeroom Shelving & Utensils 1 Sentry Supreme 5330 safe on wheels, approx 18" X 20" .. EXHIBIT "G" 30 .' Frank Roberto 270 N. Old Stone House Road Carlisle, P A 17013 (717) 385-4091 September 26, 2005 Donald E Slike DES Associate P.O.Box 292 Camp Hill, P A 17001-0292 The following invoice is submitted to you for renovations incurred at: III Spring Road Carlisle, P A 17013 and 3619 Simpson Ferry Road CampHill,PA 17011 Total $121,904.80 95,483.05 105.257.10 $322,644.95 1. Labor and Materials 2. Fixed and Variable Costs 3. Equipment There will also be claims submitted for pain and suffering, additional amounts for the loss of business known as The Hop and accrued legal fees. These amounts to be determined at a later date. Legal notification will be forthcoming. Sincerely, Frank Roberto cc:fr/JR , Esq 30 Days Net. The APR is at 19.9% r VERIFICATION I, Frank Roberto, Plaintiff in the above-captioned case, hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. ~4904 relating to unsworn falsification to authorities. ~, ~~a~ Frank Roberto DATE: /o/;.~/~ro . ... VERIFICATION I, June M. Roberto, Plaintiff in the above-captioned case, hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. ~4904 relating to unsworn falsification to authorities. ~. .. ~ \'Y). -R , ). q-\ . J e M. Roberto DATE: \Q-.)..1-0b .. .. CERTIFICATE OF SERVICE AND NOW, this 27th day of October, 2006, I, Matthew Aaron Smith, hereby certify that I have served the foregoing Complaint by mailing a true and correct copy by United States first class mail, postage prepaid, addressed as follows: Nicole L. Borda, Esq. Buchanan Ingersoll, PC One South Market Square 213 Market Street, 3rd Floor Harrisburg, Pennsylvania 17101 FENSTERMACHER AND ASSOCIATES, P.c. BY:!t+~ atthew A on Smi 33 o c_ :;;-- ~. ) :;'11 -'r, (,..J " C'" Carol A. Steinour 1.0. No. 55969 Kimberly M. Colonna 1.0. No. 80362 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 06-2763 CIVIL TERM DONALD E. SLlKE and DES ASSOCIATES, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs, and JOHN R. FENSTERMACHER, ESQUIRE, and MATTHEW AARON SMITH, ESQUIRE, their attorney You are hereby notified to file a written response to the enclosed Answer to Complaint with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC BYCbvofA~ Carol A. Steinour 1.0. No. 55969 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Hershey Entertainment & Resorts Company Date: December 7, 2006 -2- Carol A. Steinour 1.0. No. 55969 Kimberly M. Colonna 1.0. No. 80362 McNees Wallace & Nurick LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs v. DONALD E. SLlKE and DES ASSOCIATES, Defendants Attorneys for Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 06-2763 CIVIL TERM : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM 1. Admitted. 2. Admitted. ANSWER 3. Admitted in part, denied in part. The correct address of DES Associates is 3619 Simpson Ferry Road. Defendants Donald E. Slike ("Stike") and DES Associates ("DES") admit the remaining averments of paragraph 3. 4. Admitted. 5. Admitted. 6. Denied. To the contrary, the Lease for the Camp Hill Premises, as described in the Complaint, was between Plaintiffs June and Frank Roberto and Donald E. Slike. DES Associates had no interest in the Lease Agreement or the Camp Hill Premises. By way of further answer, the copy of the lease attached as Exhibit B is not a true and correct copy, as it is missing the signatures for June and Frank Roberto. 7. Admitted. 8. Admitted. 9. Denied as stated. Paragraph 36 of Lease Agreements 1 and 2 specifically states that other uses shall be permitted upon approval by Lessor. 10. Admitted. 11. Admitted. 12. Admitted in part, denied in part. Defendants Slike and DES admit that paragraph 12 of the Complaint correctly states a portion of paragraph 13 of Lease Agreement 1 and Lease Agreement 2. Defendants Stike and DES deny that paragraph 12 of the Complaint sets forth the entire text of paragraph 13 of Lease Agreement 1 and Lease Agreement 2. 13. Admitted. -2- 14. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 14, and the same are therefore denied. 15. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 15, and the same are therefore denied. 16. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 16, and the same are therefore denied. 17. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 17, and the same are therefore denied. 18. Admitted in part, denied in part. Defendants Slike and DES admit that Slike had a conversation with Plaintiff Frank Roberto about terminating the auction. Defendants Slike and DES deny the specific averments regarding the details of that conversation and deny that the conversation took place over the telephone. By way of further answer, Defendant Slike met Plaintiff Frank Roberto at the Carlisle Premises. At the end of the conversation, Defendant Slike and Plaintiff Frank Roberto had agreed to an arrangement whereby Roberto would cancel the auction and sell the equipment to a subsequent lessee. During that conversation, Roberto also agreed that he and/or Slike would provide financing, if necessary, and that he would divide the proceeds of the sale evenly with Stike. -3- 19. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 19, and the same are therefore denied. 20. Admitted in part, denied in part. Defendants Slike and DES admit that Defendant Slike visited the Carlisle Premises to speak with Plaintiff Frank Roberto. Defendants Slike and DES deny the specific averments regarding the conversation. Paragraph 18 is incorporated herein by reference. By way of further answer, during this visit, Slike learned that some of Slike's equipment which Plaintiffs wrongfully removed from the Camp Hill Premises was being stored in a back room at the Carlisle Premises. 21. Denied. To the contrary, Defendant Slike and Plaintiff Frank Roberto agreed that they would provide financing to the purchaser, if necessary, and evenly divide the proceeds from the sale of Roberto's equipment and fixtures. 22. Denied. To the contrary, Defendant Slike told Plaintiff Frank Roberto that he was going to change the locks before he did so. Plaintiff had already agreed to vacate the Premises and agreed to have the locks changed. 23. Denied. To the contrary, Defendant Slike and Plaintiff Frank Roberto discussed options regarding the sale of the equipment and fixtures. Defendant Slike and Plaintiff Frank Roberto agreed that the equipment and fixtures at the Carlisle Premises should be sold to a subsequent lessee, financing provided if necessary, and the proceeds be divided evenly. Defendant Slike and Plaintiff Roberto shook hands in agreement. -4- 24. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 24, and the same are therefore denied. 25. Admitted in part, denied in part. Defendants Slike and DES admit that Tally and Mamdoh Elbayomy expressed an interest in purchasing the restaurant equipment that remained at the Carlisle Premises. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 25, and the same are therefore denied. By way of further answer, Defendant Slike prepared the Letter of Intent form attached as Exhibit D. 26. Admitted in part, denied in part. Defendants Slike and DES admit that the transaction with the Elbayomys was never consummated. Defendants deny that any act or failure to act on the part of Defendant Slike had any effect on the Elbayomys' decision. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 26, and the same are therefore denied. 27. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 27, and the same are therefore denied. 28. Admitted in part, denied in part. Defendants Slike and DES admit that Luis Rodriguez signed the Letter of Intent attached as Exhibit E. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the remaining averments of paragraph 28, and the same are therefore denied. By -5- way of further answer, Defendant Slike prepared the Letter of Intent form attached as Exhibit E. 29. Denied. To the contrary, Plaintiff Frank Roberto directed Luis Rodriguez to get in touch with Defendant Slike, who then made arrangements with Rodriguez to purchase the equipment for a price certain. Defendant Slike provided financing for the purchase, as agreed to by Plaintiff Frank Roberto. By way of further answer, 50% of all monies paid by Rodriguez on the note have been placed in escrow by Defendant Slike. 30. Admitted in part, denied in part. Defendants Slike and DES admit that Defendant Slike called and informed Frank Roberto and that he had reached an agreement with Rodriguez. Defendants Slike and DES deny the remaining averments of paragraph 30. By way of further answer, Defendant Slike and Frank Roberto discussed the terms of the deal with Rodriguez, which were consistent with the agreement between Slike and Roberto regarding the sale of the equipment at the Carlisle Premises. 31. Admitted in part, denied in part. Defendants Slike and DES admit that Defendant Slike asked Plaintiff Frank Roberto to sign a release incorporating the agreement they had already made in October 2004. Defendants Slike and DES deny any implication that Slike attempted to force or coerce Roberto into signing a release. 32. Admitted in part, denied in part. Defendants Slike and DES admit that Plaintiff Frank Roberto refused to sign a release that he had already agreed to orally, that Slike lost his temper because of Frank Roberto's irrational behavior, and that Slike told Roberto that he (Slike) would try to recoup his costs from Roberto. -6- 33. Admitted in part, denied in part. Defendants Stike and DES admit that Defendant Slike entered into an agreement with Luis Rodriguez for the rental of the Carlisle Premises and for purchase of the equipment therein. Defendants Slike and DES deny that Defendant Slike converted the equipment for his own personal use and benefit. To the contrary, Defendant Slike and Plaintiff Frank Roberto had reached an agreement whereby they would divide the proceeds from the sale of the equipment remaining at the Carlisle Premises. Defendant Slike's agreement with Luis Rodriguez is consistent with that agreement. 34. Denied. After reasonable investigation, Defendants Stike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 34, and the same are therefore denied. 35. Denied. To the contrary, the Camp Hill Premises were in good repair. By way of further answer, pursuant to paragraph 27 of the Lease, the Robertos, as tenants, had the contractual obligation to keep the premises, including both the interior and the exterior in good repair. 36. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 36, and the same are therefore denied. 37. Denied. After reasonable investigation, Defendants Stike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 37, and the same are therefore denied.r -7- 38. Denied. Defendants Slike and DES deny that an inspection took place on January 12, 2004. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 38, and the same are therefore denied. 39. Denied. To the contrary, pursuant to paragraph 27 of the Lease attached to the Complaint as Exhibit 8, Plaintiffs Frank and June Roberto had the responsibility to keep the exterior and interior of the premises in good repair. 40. Denied. Defendants incorporate their responses to paragraphs 37 and 38 as if set forth in full. 41. Denied. Defendants Slike and DES did not have a contractual obligation to ensure that the Premises met all applicable codes for the operation of a restaurant. 42. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 42, and the same are therefore denied. 43. Denied. To the contrary, Plaintiffs stopped paying rent months before they closed the restaurant. 44. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 44, and the same are therefore denied. 45. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 45, and the same are therefore denied. -8- 46. Denied. To the contrary, Plaintiff Frank Roberto gave Defendant Slike permission to negotiate the sale of Roberto's equipment to Barthel. By way of further answer, some of the equipment at the Camp Hill Premises was the property of Defendant Slike which Plaintiffs promised to pay for and never did. 47. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 47, and the same are therefore denied. 48. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 48, and the same are therefore denied. 49. Denied. To the contrary, Defendant Slike changed the locks on the Camp Hill Premises only after Plaintiff Frank Roberto had removed most of the equipment, including some equipment that belonged to Defendant Slike, and instructed PP&L to turn off the utilities. Defendants Slike and DES specifically deny that the list of assets attached as Exhibit F includes any items from the Camp Hill Premises. To the contrary, the assets listed on Exhibit F are the equipment from the Carlisle Premises, which is the subject of an agreement between Defendant Slike and Plaintiff Frank Roberto. 50. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 50, and the same are therefore denied. -9- COUNT I INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: LANCE BARTHEL 51. Defendants Slike and DES incorporate paragraphs 1-50 of their Answer as if set forth in full. 52. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 52, and the same are therefore denied. 53. Denied as a conclusion of law. If it is deemed that a response is necessary, Defendants DES and Slike deny that Defendant Slike attempted to sell Plaintiffs' equipment without their permission. Defendants DES and Slike further deny that Defendant Slike interfered with Plaintiffs' contractual and business affairs. Defendants DES and Slike incorporate paragraph 46 of this Answer. 54. Denied. Defendants DES and Slike deny that they deprived Plaintiffs of their personal property and business relations. By way of further answer, Defendants Slike and DES incorporate paragraphs 18, 23 and 49 of this Answer. 55. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants Slike and DES deny that they acted in any manner to interfere with Plaintiffs' business and contractual relations. 56. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 56, and the same are therefore denied. -10- WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT II INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: TALLY AND MAMDOH ELBAYOMY 57. Defendants Slike and DES incorporate paragraphs 1-56 of their Answer as if set forth in full. 58. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 58, and the same are therefore denied. 59. Denied as a conclusion of law. By way of further answer, Defendants Slike and DES deny that they attempted to negotiate a separate contract with the Elbayomys. Defendants Slike and DES further deny that Defendant Slike interfered with Plaintiffs' contractual and business affairs. 60. Denied. Defendants DES and Slike deny that they deprived Plaintiffs of their personal property and business relations. By way of further answer, Defendants incorporate paragraphs 18 and 23 of this Answer. 61. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants Slike and DES deny that they acted in any manner to interfere with Plaintiffs' business and contractual relations. -11- 62. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 62, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT III INTENTIONAL INTERFERENCE WITH CONTRACTUAL AND BUSINESS AFFAIRS: LUIS RODRIGUEZ 63. Defendants Slike and DES incorporate paragraphs 1-62 of their Answer as if set forth in full. 64. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 64, and the same are therefore denied. 65. Denied as a conclusion of law. If it is deemed that a response is necessary, Defendants Slike and DES incorporate paragraphs 29 and 33 of this Answer. 66. Denied. Defendants DES and Slikedenythattheydeprived Plaintiffs of their personal property and business relations. By way of further answer, Defendants Slike and DES incorporate paragraphs 18, 23, 29 and 33 of this Answer. 67. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants Slike and DES deny that they acted in any manner to interfere with Plaintiffs' business and contractual relations. -12- 68. Denied. After reasonable investigation, Defendants Stike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 68, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Stike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT IV BREACH OF CONTRACT 69. Defendants Slike and DES incorporate paragraphs 1-68 of their Answer as if set forth in full. 70. Admitted. 71. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Carlisle Premises. Plaintiffs voluntarily surrendered the Premises. 72. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Carlisle Premises. Plaintiffs voluntarily surrendered the Premises. 73. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Carlisle Premises. Plaintiffs voluntarily surrendered the Premises. 74. Denied. To the contrary, prior to changing the locks, Plaintiff Frank Roberto and Defendant Slike agreed that Plaintiffs would surrender the Carlisle Premises, that Stike was permitted to change the locks, and that the proceeds from the sale of the equipment remaining at the Carlisle Premises would be divided evenly between Plaintiffs and Defendant DES. Defendant Slike also agreed to assume payment for all utilities. -13- 75. Denied. Defendants DES and Slike deny that they deprived Plaintiffs of their personal property and business relations. By way of further answer, Defendants Slike and DES incorporate paragraphs 18, 23 and 74 of this Answer. 76. Denied as a legal conclusion. By way of further answer, Defendants Slike and DES incorporate paragraphs 71 and 74 of this Answer. 77. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 77, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT V BREACH OF CONTRACT 78. Defendants Slike and DES incorporate paragraphs 1-77 of their Answer as if set forth in full. 79. Denied. To the contrary, Lease Agreement 2 is signed by Donald Slike as an individual. 80. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Camp Hill Premises. Plaintiffs voluntarily surrendered the Premises. 81. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Camp Hill Premises. Plaintiffs voluntarily surrendered the Premises. -14- 82. Denied as a legal conclusion. By way of further answer, Plaintiffs were not ejected from the Camp Hill Premises. Plaintiffs voluntarily surrendered the Premises. 83. Denied. Prior to the time the locks were changed, Plaintiffs had removed all of the equipment from the Camp Hill Premises, with the exception of two hoods. The removed equipment included items belonging to Defendant Slike. Further, prior to the time the locks were changed, Plaintiffs had closed their business and asked PP&L to shut off service to the Premises. Thus, Plaintiffs had effectively quit the Premises prior to Stike changing the locks. 84. Denied. Defendants DES and Slike deny that they deprived Plaintiffs of their personal property and business relations. By way of further answer, Defendants incorporate paragraphs 49 and 83 of this Answer. 85. Denied as a legal conclusion. By way of further answer, Defendants Slike and DES deny that they breached the contract. Defendants Stike and DES incorporate paragraphs 80 and 84 of this Answer. 86. Denied. After reasonable investigation, Defendants Stike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 86, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. -15- COUNT VI BREACH OF CONTRACT 87. Defendants Slike and DES incorporate paragraphs 1-86 of their Answer as if set forth in full. 88. Admitted. 89. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants DES and Slike deny any implication that they attempted to distrain any of Plaintiffs' property. Defendants incorporate paragraphs 18, 23 and 74 of this Answer. 90. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants DES and Slike deny any implication that they attempted to distrain any of Plaintiffs' property. Defendants incorporate paragraphs 18, 23 and 74 of this Answer. 91. Denied. Defendants incorporate paragraphs 18, 23 and 74 of this Answer. 92. Denied. Defendants Slike and DES did not distrain Plaintiffs personal property. Defendants Slike and DES incorporate paragraphs 18, 23 and 74 of this Answer. 93. Denied as a legal conclusion. Further denied that Defendants had any obligation to follow statutory requirements when they had reached a binding agreement with Plaintiffs. 94. Denied as a legal conclusion. Defendants Stike and DES did not distrain the Plaintiffs personal property. Defendants Slike and DES incorporate paragraphs 18, 23 and 74 of this Answer. -16- 95. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 95, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT VII BREACH OF CONTRACT 96. Defendants Slike and DES incorporate paragraphs 1-95 of their Answer as if set forth in full. 97. Denied. On the contrary, Lease Agreement 2 is signed by Donald Slike as an individual. 98. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants DES and Slike deny any implication that they attempted to distrain any of Plaintiffs' property. Defendants Slike and DES incorporate paragraphs 49, 80 and 83. 99. Denied as a legal conclusion. If it is deemed that a response is necessary, Defendants DES and Slike deny any implication that they attempted to distrain any of Plaintiffs' property. Defendants Slike and DES incorporate paragraphs 49, 80 and 83. 100. Denied. Defendants Slike and DES incorporate paragraphs 49,80 and 83. 101. Denied. Defendants Slike and DES did not distrain Plaintiffs' personal property. Defendants Slike and DES incorporate paragraphs 49,80 and 83. -17- 102. Denied as a legal conclusion. Defendants Slike and DES further deny that they had any obligation to follow statutory requirements when they had reached a binding agreement with Plaintiffs. 103. Denied as a legal conclusion. Defendants Slike and DES did not distrain the Plaintiffs' personal property. Defendants Slike and DES incorporate paragraphs 49,80 and 83 of this Answer. 104. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 104, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT VIII 105. Defendants Slike and DES incorporate paragraphs 1-104 of their Answer as if set forth in full. 106. Denied. To the contrary, Lease Agreement 2 is signed by Donald Slike as an individual. 107. Denied. Paragraph 36 of Leases 1 and 2 specifically states that other uses shall be permitted upon approval by Lessor. 108. Denied. Defendants Slike and DES incorporate paragraphs 37 and 38 ofthis Answer. -18- 109. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 109, and the same are therefore denied. By way of further answer, Defendants Slike and DES incorporate paragraph 41 of this Answer. 110. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 110, and the same are therefore denied. Defendants Slike and DES incorporate paragraph 41 of this Answer. 111. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 111, and the same are therefore denied. By way of further answer, Defendants Slike and DES incorporate paragraph 41 of this Answer. 112. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 112, and the same are therefore denied. By way of further answer, Defendants Slike and DES incorporate paragraph 41 of this Answer. 113. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 113, and the same are therefore denied. By way of further answer, there is no cause of action for breach of the implied warranty of habitability for commercial leases in Pennsylvania. -19- WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. COUNT IX 114. Defendants Slike and DES incorporate paragraphs 1-113 of their Answer as if set forth in full. 115. Denied as stated. Some of the equipment located in the Camp Hill Premises belongs to Defendant Slike. 116. Denied. See paragraphs 22,23,49, 74 and 83. 117. Denied. See paragraphs 22,23,49,74 and 83. 118. Denied as a legal conclusion. By way of further answer, see paragraphs 22, 23,49, 74 and 83. 119. Denied. After reasonable investigation, Defendants Slike and DES are without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 119, and the same are therefore denied. WHEREFORE, Defendants DES Associates and Donald E. Slike demand that judgment be entered in their favor and against Plaintiffs, and that costs be awarded in their favor. NEW MATTER 120. Defendants Slike and DES incorporate paragraphs 1-119 of their Answer as if set forth in full. -20- Carlisle Premises 121. At the time Plaintiff Frank Roberto met with Defendant Stike at the Carlisle Premises in October 2004, Plaintiffs had not made any rental payments for over a year. 122. As of October 2004, Plaintiffs were no longer operating a restaurant at the Carlisle Premises. 123. During the meeting in October 2004, Plaintiff Frank Roberto informed Defendant Slike that he was going to sell the restaurant equipment through an auction at the Premises that was scheduled to take place in less than a week 124. Some of the equipment Frank Roberto intended to sell through the auction belonged to Defendant Slike. 125. Defendant Slike and Plaintiff Frank Roberto discussed the relative merits of selling the equipment at auction or selling the equipment to a subsequent lessee of the Carlisle Premises. 126. After discussing the matter with Defendant Slike, Plaintiff Frank Roberto agreed that the best option was to sell the equipment to a subsequent lessee, provide financing if necessary, and divide the proceeds evenly with Defendant Slike. 127. Defendant Slike and Plaintiff Frank Roberto shook hands in agreement. 128. Defendant Slike informed Plaintiff Frank Roberto that he was going to change the locks at the Carlisle Premises, to which Plaintiff agreed. 129. By agreement, Plaintiffs surrendered the Carlisle Premises in October 2004. 130. Plaintiffs' claims pursuant to Lease Agreement 1 are barred by accord and satisfaction. -21- 131. Plaintiffs cannot recover any damages pursuant to Lease Agreement 1 because such claims have been released. 132. Plaintiffs consented to Defendant Slike changing the locks at the Carlisle Premises. Camp Hill Premises 133. When Plaintiffs opened the Camp Hill Premises, for reason(s) not known to Defendants, Plaintiffs failed to obtain a Certificate of Occupancy from Lower Allen Township. 134. In November 2003, the Lower Allen Codes Inspector found that the Township had never received any documentation or certification that the Commercial Hood and fire suppression system installed in the restaurant complied with the Fire and Mechanical Codes. See Notice of Violation, attached as Exhibit 1. 135. Additionally, the Lower Allen Codes Inspector found that Plaintiff had never received a Certificate of Occupancy. See Exhibit 1. 136. On November 20, 2003, the Codes Inspector issued a second Notice of Violation dealing with exterior and door maintenance issues. See Notice of Violation, attached as Exhibit 2. 137. Pursuant to paragraph 27 of the Lease, Slike, as landlord, was responsible for painting the front of the exterior of the Premises. Plaintiffs, as tenants, were responsible for making "all repairs necessary to maintain the Premises and the fixtures in neat and orderly condition." By the terms of paragraph 27, Plaintiffs had the responsibility to maintain the exterior and interior parts of the restaurant. -22- 138. Plaintiffs removed all of the equipment from the Camp Hill Premises sometime in December 2003 or the first quarter of 2004, with the exception of two hoods. 139. Some of the removed equipment included equipment owned by Defendant Slike and never paid for by Plaintiffs. 140. A list of the equipment owned by Slike and removed without permission by Plaintiffs is set forth in paragraph 39 of Lease Agreement 2. 141. In March 2004, Plaintiffs asked PP&L to turn off the utilities to the Premises. 142. Plaintiff voluntarily surrendered the Premises in March 2004, at the latest. 143. Defendant Donald Slike did not change the locks until after Plaintiffs had voluntarily surrendered the Premises. 144. Plaintiffs' claims pursuant to Lease Agreement 2 are barred by accord and satisfaction. 145. Plaintiffs cannot recover any damages pursuant to Lease Agreement 2 because such claims have been released. 146. Plaintiffs have failed to state a claim upon which relief can be granted. 147. A commercial tenant cannot bring an action for breach of the implied warranty of habitability. 148. Plaintiffs' claims are barred by the applicable statute of limitations. -23- COUNTERCLAIMS Count I - Breach of Lease DES Associates v. Robertos (Carlisle Premises) 149. Counterclaim Plaintiff Donald Slike incorporates paragraphs 1-148 as if set forth in full. 150. On December 2, 2002, DES and Frank Roberto and June M. Roberto (the "Lessees") entered in to an Agreement ("Lease Agreement 1 ") by which DES, as landlord, agreed to lease to the Lessees, as tenant, the premises identified as 1111 Spring Road, Carlisle, Pennsylvania ("the Carlisle Premises") from DES. A true and correct copy of Lease Agreement 1 is attached to Plaintiffs' Complaint as Exhibit A. 151. Lease Agreement 1 constitutes a valid and binding written contract between DES and the Lessees. 152. Paragraph 22 of Lease Agreement 1 states as follows: Lessee shall pay rent in accordance with the following schedule: (a) From Lease signing until March 14, 2003, Lessee shall have "free" rent. During this "free" Period, Lessee shall be responsible for utilities, taxes, insurance and maintenance. (b) For the next twenty-four months, at the rate of $3,000.00 per month. (c) For the next twelve months and for each twelve month period thereafter, at the rate of 103% of the rental period for the prior twelve months. Complaint. Ex. A, at 11 22. 153. Paragraph 23 of Lease Agreement 1 states as follows: All rental payments are due on the fifteenth day of the month. A five percent (5%) penalty shall be added for any payment no received within five days following the due date. -24- 154. Paragraph 2 of Lease Agreement 1 provided that the rent "shall be promptly paid on the several days and times herein specified without deduction or abatement...." 155. Lessees made rent payments due under Lease Agreement 1 for the months ending April 14, 2003, May 14, 2003, June 14, 2003, July 14, 2003, and August 14, 2003. 156. Lessees have made no other rent payments under Lease Agreement 1. 157. By agreement, Lessees surrendered the Carlisle Premises in October 2004. 158. Lessees have failed to pay rent for the additional fourteen months that they leased the Carlisle Premises. 159. The rents due and owing under Lease Agreement 1 are as follows: Month ending September 14, 2003 5% Penalty Month ending October 14,2003 5% Penalty Month ending November 14, 2003 5% Penalty Month ending December 14, 2003 5% Penalty Month ending January 14, 2004 5% Penalty Month ending February 14, 2004 5% Penalty Month ending March 14, 2004 5% Penalty Month ending April 14, 2004 5% Penalty Month ending May 14, 2004 5% Penalty Month ending June 14, 2004 5% Penalty Month ending July 14, 2004 5% Penalty Month ending August 14, 2004 5% Penalty -25- $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 $ 3000.00 $150.00 TOTAL $ 3000.00 $150.00 $ 2419.35 $150.00 $43,519.35 Month ending September 14, 2004 5% Penalty Month ending October 8,2004 5% Penalty 160. Additionally, Lessees have failed to pay taxes and insurance due under the Lease Agreement 1 . 161. Lessees owe a total of $2,867.51 for County taxes, $6,435.96 for School taxes, and $1,372.90 for insurance through March 31, 2004. 162. Despite DES's demands for payment, Lessees have failed to pay the rents due and owing under Lease Agreement 1. 163. Lessees' failure to pay the rents due and owing under Lease Agreement 1 constitutes a breach of Lease Agreement 1 . 164. DES has been damaged by Lessees' failure to pay the rents due and owing under Lease Agreement 1. 165. Paragraph 34 of Lease Agreement 1 provides that if DES must commence legal action to collect rent, Lessees shall be liable for reasonable attorneys' fees for such efforts and/or legal proceedings. WHEREFORE, Counterclaim Plaintiff DES demands that judgment be entered in its favor and against Counterclaim Defendants Frank Roberto and June M. Roberto and that DES be awarded damages in the amount of the unpaid rents, with interest, taxes, insurance, attorneys' fees, and costs of suit. -26- COUNT II - Breach of Lease Donald Slike v. Robertos (Camp Hill Premises) 166. Counterclaim Plaintiff Donald Slike incorporates paragraphs 1-165 as if set forth in full. 167. On December 10,2002, Donald Slike and the Robertos ("Lessees") entered in to an Agreement ("Lease Agreement 2") by which Slike, as landlord, agreed to lease to the Robertos, as tenants, the premises identified as 3619 Simpson Ferry Road, Camp Hill, Pennsylvania ("the Camp Hill Premises") from Slike. A true and correct copy of Lease Agreement 2 is attached to Plaintiffs' Complaint as Exhibit B. 168. Paragraph 22 of Lease Agreement 2 states as follows: Lessee shall pay rent in accordance with the following schedule: (a) From Lease signing until January 31,2003, Lessee shall have "free" rent. During this "free" Period, Lessee shall be responsible for utilities, taxes, insurance and maintenance. (b) For the next twenty-four months, at the rate of $1,200.00 per month. (c) For the next twelve months, at the rate of $1,450.00 per month; (d) Forthe next twelve months, at the rate of $1,600.00 per month; (e) For the next twelve months, at the rate of $1,750.00 per month. Complaint. Ex. A, at 11 22. 169. Paragraph 23 of Lease Agreement 2 states as follows: All rental payments are due on the first day of the month. A five percent (5%) penalty shall be added for any payment no received within five days following the due date. 170. Paragraph 2 of Lease Agreement 2 provided that the rent "shall be promptly paid on the several days and times herein specified without deduction or abatement...... -27- 171. Lessees made rent payments due under Lease Agreement 2 for the months of February 2003, March 2003, April 2003, May 2003, June 2003, July 2003, and August 2003. 172. Lessees have made no other rent payments under Lease Agreement 2. 173. Lessees voluntarily surrendered the Camp Hill Premises in March 2004. 174. Lessees have failed to pay rent for the additional seven months that they leased the Camp Hill Premises. 175. The rents due and owing under Lease Agreement 2 are as follows: September 2003 5% Penalty October 2003 5% Penalty November 2003 5% Penalty December 2003 5% Penalty January 2004 5% Penalty February 2004 5% Penalty March 2004 5% Penaltv TOTAL $ 1200.00 $60.00 $ 1200.00 $60.00 $ 1200.00 $60.00 $ 1200.00 $60.00 $ 1200.00 $60.00 $ 1200.00 $60.00 $ 1200.00 $60.00 $8,820.00 176. Additionally, Lessees have failed to pay taxes and insurance due under the Lease Agreement 2. 177. Lessees owe a total of$811.78 for County taxes, $2,179,32 for School taxes, and $1,117,22 for insurance through October 8, 2004. 178. Despite Slike's demands for payment, Lessees have failed to pay the rents due and owing under Lease Agreement 2. -28- 179. Lessees' failure to pay the rents due and owing under Lease Agreement 2 constitutes a breach of Lease Agreement 2. 180. Slike has been damaged by Lessees' failure to pay the rents due and owing under Lease Agreement 2. 181. Paragraph 34 of Lease Agreement 2 provides that if Slike must commence legal action to collect rent, Lessees shall be liable for reasonable attorneys' fees for such efforts and/or legal proceedings. WHEREFORE, Counterclaim Plaintiff Donald E. Slike demands that judgment be entered in his favor and against Counterclaim Defendants Frank Roberto and June M. Roberto and that he be awarded damages in the amount of the unpaid rents, with interest, taxes, insurance, attorneys' fees, and costs of suit. COUNT III - Breach of lease Slike v. Robertos 182. Slike and DES incorporate paragraphs 1-181 of their Answer with New Matter and Counterclaim. 183. The Robertos entered into an agreement with Paul Tucker d/b/a Paul Tucker Carpentry ("Tucker") to complete some renovations to the Carlisle Premises. 184. The Robertos have failed to make payment in full to Tucker for the renovation work performed. 185. As a result of the Robertos failure to pay, Tucker has filed a Mechanics' Lien against the Robertos and Slike in the amount of $19,701.75 (the "Lien"). 186. The Lien remains unpaid and operates as a lien against the Carlisle Premises. -29- WHEREFORE, Counterclaim Plaintiff Donald E. Slike demands that judgment be entered in his favor and against Counterclaim Defendants Frank Roberto and June M. Roberto and that he be awarded damages in the amount of $19,701.75. McNEES WALLACE & NURICK LLC ByC~~A~ '. CaroY A. Steinour J.D. No. 55969 Kimberly M. Colonna J.D. No. 80362 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: December 7,2006 Attorneys for Defendants DES Associates and Donald E. Slike -30- ./ LOWER ALLEN TOWNSHIP 1993 HUMMEL AVENUE CAMP HILL, PA. 17011-5938 (717) 975-7575 FAX (717) 737-4182 NOTICE OF VIOLA nON OF THE CODE OF LOWER ALLEN TOWNSHIP CHAPTER 162 KNOWN AS "PROPERTY MAINTENANCE CODE" NO. 2003-28 Donald Slike & Rose Marie (Name of Record Owner) Frank Roberto (Name of Occupant or other Person Against whom action may be taken) P.O. Box 292 3619 Simpson Ferry Road Camp Hill, Pa. 17011 (Address of Record Owner) Camp Hill, PA 17011 (Address of occupant or other Person Against whom action may be taken) Re: 3619 Simpson Ferry Road (Location of Property upon which violation exists) 13-23-0553-001A (Tax MaplParcel) You are hereby notified that you are violating the Lower Allen Township Code of Ordinances, known as the "Code", Chapter No. 162 as amended. The Section or Sections of the Ordinance, which you have violated, and an explanation of the violations are listed on the second page of this Notice. You must comply with this Notice of Violation promptly and must commence action to correct or remove the following-listed violations no later than 11/21/2003. All violations must be completely corrected or removed no later than 12/21/2003. Failure to either commence action to correct or remove the violation within the time first specified above or to completely correct or remove the violations by the second date specified above, constitutes a violation of the "Code" of Lower Allen Township Chapter No.162. Violations of Chapter No.l.2L may result in the institution of criminal enforcement proceedings before a District Justice where the District Justice may impose a fine of not more than One ($1000.00) Thousand Dollars, plus all costs of prosecution, including the Townships' attorney's fees, incurred as a result of such action, and in lieu thereof, to undergo imprisonment of not more than (30) days for each violation. Each day that a violation continues shall constitute a separate offense and may subject you to a daily fine. The Township may also institute other appropriate action at law or in equity, which may be necessary to enforce the provisions of Chapter No. 162. Date: November 20, 2003 ~~ Cod~s Inspector Signature Exhibit 1 2 Section 70 Description of violations Electrical hazard present in the property Neon tubes installed on the building are missing insulation posing an electrical hazard The neon tubes must be removed or replaced to abate this hazard F -310.1 Requires the abatement of electrical hazards BOCA National Fire Prevention Code J 996 Edition Unsafe Condition risk of fire 1 Above mentioned neon tubes when operated create an unsafe condition putting the building and occupants at risk of fire as evidenced by the electrical fire that occurred on 11/5/03. The neon tubes should not be energized or electrified in any manor. F-II0.1 Requires the removal or remedy of all unsafe conditions BOCA National Fire Prevention Code 1996 Edition Unapproved cookin2 equipment / fire suppression system in use The Township has no documentation or certification that the Commercial Hood and suppression system installed in the restaurant is compliant with the requirements of the Fire and Mechanical Codes. This information must be provided to the Township along with test / installation details indicating that the suppression system is appropriate for all the cooking equipment that is in use in the restaurant. F-309.1 Requires that all commercial cooking equipment, hood systems and hood suppression systems be approved and installed in accordance with the Mechanical and Fire Codes BOCA National Fire Prevention Code 1996 Edition No certificate of occupancy has been issued by the Township for the operation of The Hop A certificate of occupancy is required to occupy / use any building within the Township 118.1 Requires that a certificate of occupancy is required prior to opening for business BOCA National Building Code 1996 Edition This listing of violations may not represent all violations presently occurring on this property. Other violations may appear upon application for required permits or upon further investigation, and the Township reserves it's right to take any and all action authorized to enforce it's "Code" as to all violations. This list represents only violations of the "Code", Chapter No. 70. Violations of other Sections may have occurred, and the Township reserves its rights to enforce these and any other "Code" Sections. Permits are required for Demolition, Construction, Reconstruction, Alterations and Major Repairs to all structures of all types. Date: November 20, 2003 Mark A. Richter (Codes Inspector) Certified Mail Article No.: Date Mailed by Certified Mail: Date(s) Copy Mailed by Regular Mail: Date hand delivered to LOWER ALLEN TOWNSHIP 1993 HUMMEL AVENUE CAMP HILL, PA. 17011-5938 (717) 975-7575 FAX (717) 737-4182 NOTICE OF VIOLATION OF THE CODE OF LOWER ALLEN TOWNSHIP CHAPTER 162 KNOWN AS "PROPERTY MAINTENANCE CODE" NO. 2003-28 Donald Slike & Rose Marie (Name of Record Owner) Frank Roberto (Name of Occupant or other Person Against whom action may be taken) P.O. Box 292 3619 Simpson Ferry Road Camp Hill, Pa. 17011 (Address of Record Owner) Camp Hill, PA 17011 (Address of occupant or other Person Against whom action may be taken) Re: 3619 Simpson Ferry Road (Location of Property upon which violation exists) 13-23-0553-001 A (Tax Map/Parcel) You are hereby notified that you are violating the Lower Allen Township Code of Ordinances, known as the "Code", Chapter No. 162 as amended. The Section or Sections of the Ordinance, which you have violated, and an explanation of the violations are listed on the second page ofthis Notice. You must comply with this Notice of Violation promptly and must commence action to correct or remove the following-listed violations no later than 11/21/2003. All violations must be completely corrected or removed no later than 12/21/2003. Failure to either commence action to correct or remove the violation within the time first specified above or to completely correct or remove the violations by the second date specified above, constitutes a violation of the "Code" of Lower Allen Township Chapter No. 162. Violations of Chapter No. ~ may result in the institution of criminal enforcement proceedings before a District Justice where the District Justice may impose a fine of not more than One ($1000.00) Thousand Dollars, plus all costs of prosecution, including the Townships' attorney's fees, incurred as a result of such action, and in lieu thereof, to undergo imprisonment of not more than (30) days for each violation. Each day that a violation continues shall constitute a separate offense and may subject you to a daily fine. The Township may also institute other appropriate action at law or in equity, which may be necessary to enforce the provisions of Chapter No. 162. Date: November 20, 2003 ~~ Codes Inspector Signature Exhibit 2 l" 2 Chapter 162 Description of violations BOCA National Property Maintenance Code 1996 Edition Exterior Paint flakin2, peelin2, and chippin2 Exterior of the building needs to be repainted PM-304.2 Requires that all exterior painted surfaces shall be maintained in good condition free of peeling, flaking and chipping. E2ress door in The Hop sticks and does not operate properly Doors must be maintained in good operating condition PM-304.16 Requires that doors and door hardware be maintained in good working condition Exterior Walls wood rottin2 in places Rotten wood must be replaced PM-304.6 Exterior walls must be free of breaks, loose or rotting materials and maintained weatherproof. The surface must be properly coated to prevent deterioration. This listing of violations may not represent all violations presently occurring on this property. Other violations may appear upon application for required permits or upon further investigation, and the Township reserves it's right to take any and all action authorized to enforce it's "Code" as to all violations. This list represents only violations ofthe "Code", Chapter No. 162. Violations of other Sections may have occurred, and the Township reserves its rights to enforce these and any other "Code" Sections. Permits are required for Demolition, Construction, Reconstruction, Alterations and Major Repairs to all structures of all types. Date: November 20, 2003 Mark A. Richter ( Codes Inspector) Certified Mail Article No.: Date Mailed by Certified Mail: Date(s) Copy Mailed by Regular Mail: Date hand delivered to 12/05/2008 08:43 F~X 717 237 5300 MCNEES WALLACE & ~URICK ~002/()03 VERlfICATIQt:! Subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. \'. \~t~-- Dated: December ~ ' 2006 12/05/2008 08:58 FAX 717 237 5300 ~CNEES WALLACE & NURICK 1ll001/001 YERIF!~.ATION Subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities, I hereby certify that the facts set forth in the foregoing document are true and correct to the best of my information and belief. ,.. . ..' ;.._~ .",.....- D aid E. Slike. General Partner DE Associates Dated: December ~ I 2006 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: John R. Fenstermacher, Esquire Matthew Aaron Smith, Esquire Fenstermacher and Associates, P.C. 5115 East Trindle Road Mechanicsburg, PA 17050 ~ Michele Beery, Secret Carol A. Steinour Dated: December 7,2006 C) ~; :-: , '" ;:::;, c.:::.::> Q"\ c::;, r7i C') , Co 5i; --/ ::t'....... r'll ;=:::! "TJI"'1l :~<)9 '~t c':.l !;3~ 1:5 rfl ~ ~:o "'< .:t'~ -~"". -.l;,.. is ..:::- N FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 06-2763 Civil Term DONALD E. SLIKE, and DES ASSOCIATES, : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 FRANK ROBERTO and JUNE M. ROBERTO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 06-2763 Civil Term DONALD E. SLIKE, and DES ASSOCIATES, Defendants : CIVIL ACTION - LAW PLAINTIFFS' ANSWER WITH NEW MATTER TO DEFENDANTS' NEW MATTER AND COUNTERCLAIMS AND NOW come Plaintiffs Frank Roberto and June M. Roberto by and through their attorneys, the Offices of Fenstermacher and Associates, P.C., and file this Plaintiffs' Answer with New Matter to Defendants' New Matter and Counterclaims, as follows: 120. No response required. 121. Admitted. By way of further explanation, the Robertos aver that they had not paid Defendants the rental payments in question because Defendant Slike had failed to fulfill the duties of landlord as per the lease agreements. 122. Admitted. By way of further explanation, the Robertos were no longer operating a restaurant at the Carlisle Premises because Defendant Slike had changed the locks. 123. Denied. The Robertos never met with Defendant Slike as to the pending auction. On or about October 7, 2004, Defendant Slike, upon hearing about the pending auction, phoned Plaintiff Frank Roberto and threatened to cancel the auction. 2 124. Denied. None of Defendant Slike's equipment was under contract with the Auctioneer and strict proof thereof is demanded at trial. 125. Admitted. 126. Admitted in part, denied in part. It is admitted that eventually Plaintiff Frank Roberto acquiesced to Defendant Slike's suggestion to sell the equipment to a subsequent lessee, however it is denied that Plaintiff Frank Roberto agreed to split the proceeds evenly with Defendant Slike. 127. Denied. Plaintiff Frank Roberto did not shake hands in agreement with Defendant Slike. 128. Denied. Defendant Slike did not inform Plaintiff Frank Roberto that he was going to change the locks at the Carlisle Premises, nor did Plaintiff Frank Roberto agree to the change of the locks. 129. Denied. The Robertos did not surrender the Carlisle Premises by agreement. 130. Denied. This paragraph asserts a legal conclusion to which no response is required. Waiving none ofthe foregoing, to the extent that a response is required, this paragraph is hereby denied and strict proof thereof is demanded at trial. 131. 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 and strict proof is thereof is demanded at trial. 132. Denied. The Robertos never consented to Defendant Slike changing the locks at the 3 Carlisle Premises. 133. Admitted. By way of further explanation, the Robertos' failure to obtain a Certificate of Occupancy from Lower Allen Township was because of Defendant Slike's failure to keep the Camp Hill Premises up to code. (See Generally Plaintiffs' Complaint). 134. Admitted in part, denied in part. It is admitted that the Notice of Violation was produced, however the rest of Defendants' averment is denied in so much as the company that installed the equipment produced the necessary documentation to Lower Allen Township. 135. Admitted. 136. Admitted. By way of further explanation, exterior and door maintenance issues were Defendant Slike's responsibility. (See Generally Plaintiffs' Complaint). 137. Admitted in part, denied in part. It is admitted that paragraph 27 ofthe Agreement states as such, it is denied exterior and interior repairs were the sole responsibility of the Robertos. (See Generally Plaintiffs' Complaint). 138. Admitted. 139. Denied. Defendant Slike's equipment was left at the Camp Hill Premises with the exception of two (2) soft serve ice cream machines and one (1) convection oven that were stored at the Carlisle Premises with Defendant Slike's tables and chairs. 140. Denied. By way of further explanation, the Robertos incorporate Paragraph 139 as if set fully herein. 4 141. Admitted. By way of further explanation, Plaintiff Frank Roberto requested that PP&L turn off the utilities to the Camp Hill Premises only after the Robertos had vacated the Premises and had kept the heat on through the winter months so that the pipes would not freeze despite no longer using the Premises. 142. Denied. The Robertos did not voluntarily surrender the Camp Hill Premises. 143. Denied. Defendant Slike unilaterally changed the locks of the Camp Hill Premises effectively ejecting the Robertos. 144. 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 and strict proof is thereof is demanded at trial. 145. Denied. This paragraph asserts a legal conclusion to which no response is required. Waiving none ofthe foregoing, to the extent that a response is required, this paragraph is hereby denied and strict proof is thereof is demanded at trial. 146. Denied. This paragraph asserts a legal conclusion to which no response is required. Waiving none ofthe foregoing, to the extent that a response is required, this paragraph is hereby denied and strict proof is thereof is demanded at trial. 147. 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 and strict proof is thereof is demanded at trial. 148. Denied. This paragraph asserts a legal conclusion to which no response is required. 5 Waiving none ofthe foregoing, to the extent that a response is required, this paragraph is hereby denied and strict proof is thereof is demanded at trial. ANSWERS TO DEFENDANTS' COUNTERCLAIMS COUNT I - Breach of Lease DES Associates v. Robertos (Carlisle Premises) 149. No response required. 150. Admitted. 151. Admitted. 152. Admitted. 153. Admitted. 154. Admitted. 155. Admitted. 156. Admitted in part. By way of further explanation, the Robertos made no further rental payment as a result of Defendants' multiple breaches of contract. (See Generally, Plaintiffs' Complaint). 157. Denied and strict proof ofthe aforementioned "agreement" is demanded at trial. 158. Admitted in part. By way of further explanation, the Robertos incorporate Paragraph 156 as if set forth fully herein. 159. Denied. By way of further explanation, the Robertos incorporate Paragraph 156 as 6 if set fully herein. 160. Denied and strict proof thereof is demanded at trial. 161. Denied and strict proof thereof is demanded at trial. 162. Admitted in part. By way of further explanation, the Robertos incorporate Paragraph 156 as if set forth fully herein. 163. 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 and strict proof is thereof is demanded at trial. 164. Denied. The Robertos have not damaged Defendant DES and strict proofthereofis demanded at trial. 165. 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 and strict proof is thereof is demanded at trial. WHEREFORE, Plaintiffs Frank Roberto and June Roberto respectfully request judgment be denied Defendant DES, and that this Honorable Court enter judgment for Plaintiffs and award all costs and fees associated with this action. COUNT II - Breach of Lease Donald Slike v. Robertos (Camp Hill Premises) 7 166. No response required. 167. Admitted. 168. Admitted. 169. Admitted. 170. Admitted. 171. Admitted. 172. Admitted in part. By way of further explanation, the Robertos made no further rental payment as a result of Defendants' multiple breaches of contract. (See Generally, Plaintiffs' Complaint). 173. Denied and strict proof ofthe aforementioned "agreement" is demanded at trial. 174. Admitted in part. By way of further explanation, the Robertos incorporate Paragraph 172 as if set fully herein. 175. Denied. By way of further explanation, the Robertos incorporate Paragraph 172 as if set fully herein. 176. Denied and strict proofthereofis demanded at trial. 177. Denied and strict proof thereof is demanded at trial. 178. Admitted in part. By way of further explanation, the Robertos incorporate Paragraph 172 as if set fully herein. 179. 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 8 hereby denied and strict proof is thereof is demanded at trial. 180. Denied. The Robertos have not damaged Defendant Slike and strict proof thereof is demanded at trial. 181. Denied. This paragraph asserts a legal conclusion to which no response is required. Waiving none ofthe foregoing, to the extent that a response is required, this paragraph is hereby denied and strict proof is thereof is demanded at trial. WHEREFORE, Plaintiffs Frank Roberto and June Roberto respectfully request judgment be denied Defendant Donald Slike, and that this Honorable Court enter judgment for Plaintiffs and award all costs and fees associated with this action. COUNT III - Breach of Lease Slike v. Robertos 182. No response required. 183. Admitted. It is admitted that the Robertos entered into an agreement with Paul Tucker d/b/a Paul Tucker Carpentry to complete some renovations to the Carlisle Premises, however it is further averred that the Robertos entered into agreement only after they detrimentally relied on the advice of Defendant Slike who proceeded to breach the Lease Agreements. 184. Admitted in so much as the Robertos have not paid that which has been demanded. 185. The Robertos are without information sufficient to form a belief as to the truth of the 9 averments found in Defendants' Paragraph 185. 186. The Robertos are without information sufficient to form a belief as to the truth of the averments found in Defendants' Paragraph 186. WHEREFORE, Plaintiffs Frank Roberto and June Roberto respectfully request judgment be denied Defendant Donald Slike, and that this Honorable Court enter judgment for Plaintiffs and award all costs and fees associated with this action. NEW MATTER TO DEFENDANTS' COUNTERCLAIMS 187. Paragraphs 1 through 186 are incorporated fully herein by reference. 188. Defendants' breaches of both Lease Agreements, as enumerated in Plaintiffs' Complaint, stand as affirmative defenses to Defendants' claims that Plaintiffs' breached the Lease Agreements. 189. Defendants' Answer with New Matter and Counterclaim and all claims thereunder are barred by the doctrine of equitable estoppel. 190. Defendants' Answer with New Matter and Counterclaim and all claims thereunder are barred by the doctrine of consent. 191. Defendants' Answer with New Matter and Counterclaim and all claims thereunder are barred by the doctrine oflaches. 192. Defendants' Answer with New Matter and Counterclaim and all claims thereunder 10 are barred by the doctrine of release. 193. Defendants' Answer with New Matter and Counterclaim and all claims thereunder are barred by the doctrine of statute of limitations. 194. Defendants' Answer with New Matter and Counterclaim and all claims thereunder are barred by the doctrine of truth and waiver. WHEREFORE, Plaintiffs Frank Roberto and June Roberto respectfully request judgment be denied Defendants DES and Donald Slike, and that this Honorable Court enter judgment for Plaintiffs and award all costs and fees associated with this action. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: J R. Fen te ac er upreme Court J.D. #29940 Matthew Aaron Smith Supreme Court J.D. #94603 5115 East Trindle Road Mechanicsburg, P A 17050 (717) 691-5400 Attorneys for Plaintiffs DATED: ).Ct-7: "'- 1"/ 'J "Y111ef7 - LUO r 11 VERIFICATION I, Frank Roberto, Plaintiff in the above-captioned case, hereby certify and verify that the facts set forth in the foregoing Plaintiffs' Answer with New Matter to Defendants' New Matter and Counterclaims are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. ~4904 relating to unsworn falsification to authorities. - ~~;::_- /? ~ /"> -----------.....- . .-/-~~ Frank Roberto DATE: D/-.2 r:;- - (;)? 12 VERIFICATION I, June M. Roberto, Plaintiff in the above-captioned case, hereby certify and verify that the facts set forth in the foregoing Plaintiffs' Answer with New Matter to Defendants' New Matter and Counterclaims are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. s. 94904 relating to unsworn falsification to authorities. ,~ ~ ;~... .. ) M. ~ Ju M. Roberto DATE: \ - :L C\ - 0 I 13 CERTIFICATE OF SERVICE AND NOW, on this ~ay of January, 2007, I, Matthew Aaron Smith, Esquire, hereby certify that I have served the Plaintiffs' Answer with New Matter to Defendants' New Matter and Counterclaims, by mailing a true and correct copy by United States first class mail, addressed as follows: Carol Steinour, Esq. McNees Wallace & Nurick, LLC P.O. Box 1166 100 Pine Street Harrisburg, Pennsylvania 17108 FENSTERMACHER AND ASSOCIATES, P.e. 14 C1 ~,) (" .- L. o -11 .~ ,- r.i :TI 1'- jT""; '? '. -J ",."";.. '~""o(!oO ....."_.... () ~, -','{'< (.) r..._' ':r> O-r., :< <"'~