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HomeMy WebLinkAbout06-3041LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, wife, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. dL 3Qy 1 ?i his : CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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, Pennsylvania 17013 (717) 249-3166 Marlin R. McCaleb Attorney for Plaintiff LAW OFFICES MARLIN R. McCALEB LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs herein are Lee R. Seitz and Judith A. Seitz, his wife, adult individuals who live and reside at 9 South Washington Street, Borough of Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendants herein are Kim C. Raraigh and Cathleen D. Raraigh, his wife, adult individuals who live and reside at 7 Gordon Drive, Carlisle (North Middleton Township), Cumberland County, Pennsylvania 17013. 3. On or about May 10, 2002, Plaintiffs, as Landlord, and Defendants, as Tenant, entered into a written Commercial Lease Agreement ("Lease") providing for Plaintiffs to lease to Defendants, and for Defendants to rent from Plaintiffs, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania ("Leased Premises"), for use as a family restaurant for a term of seven (7) years commencing June 1, 2002, under the terms and conditions therein set forth. A true copy of said Lease is attached hereto and made a part hereof by reference thereto, LAW N ES 11 marked Exhibit "A" MARLINR. . McCALEB 4. Under and by reason of said Lease, Defendants agreed, inter alia, that during the term of said lease: (a) they would pay all real estate taxes assessed against the Leased Premises; and (b) they would use due care in the use of the heating, ventilating and air conditioning systems and they would be responsible and pay for the reasonable maintenance of same; and (c) if litigation was necessary to enforce Defendants' obligations under the said Lease, they would pay the costs and expenses thereof, including reasonable attorney's fees. 5. Defendants thereafter entered into possession of the Leased Premises and altered the interior design of the building thereon by installing interior walls and partitions. 6. The walls and partitions installed by Defendants interfere with the free flow of air from the ductwork of the heating, ventilating and air conditioning systems and reduce the efficiency of those systems. 7. In addition, Defendants failed to properly maintain the heating, ventilating and air conditioning systems by failing to periodically clean and/or replace the air filters, causing them to clog and restrict air flow, to unduly stress those systems and to burn out switches and relays, resulting in premature wear and tear on the components of those systems, so LAW OFFICES II MARLIN R. McCALEB -2- that the systems do not operate efficiently, they do not adequately provide or distribute warm air in the winter months or cool air in the summer months, and on some occasions they have not operated at all. 8. Plaintiffs believe and therefore aver that it will cost $6,500.00 to correct and repair the problems and defects described in Paragraphs 6 and 7, above, in order to restore the heating, ventilating and air conditioning systems to reasonable, proper and efficient operation. 9. The following real estate taxes have been assessed against the Leased Premises for the following periods, all of which have been paid by Plaintiffs to avoid interest and penalties: 2003: County/Municipal: $323.89 School District: 1,236.59 2004: County/Municipal: 344.90 School District: 1,314.20 2005: County/Municipal: 381.84 School District: 1,490.11 Total: $5,091.53 10. Plaintiffs have demanded payment from Defendants in the amount of $11,591.53, being the total of the amounts set forth in Paragraphs 8 and 9, above, which amount, or any part thereof, Defendants have failed and refused to pay. LAW OFFICES MARLIN R. McCALE6 _3_ 11. As the result of their actions or inactions as described in Paragraphs 5, 6 and 7, above, their failure and refusal to pay the real estate taxes as described in Paragraph 9, above, and their failure and refusal to pay as described in Paragraph 10, above, Defendants have breached their obligations under the said Lease as described in Paragraph 4(a) and (b), above. Wherefore, Plaintiffs demand judgment in their favor and against the Defendants herein in the amount of $11,591.53, together with interest thereon and costs and expenses of suit, including reasonable attorney's fees. Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiffs LAW OFFICES II MARLIN R. McCALEB -4- VERIFICATION We, LEE R. SEITZ and JUDITH A. SEITZ, being the Plaintiffs herein, hereby verify that the statements contained in this Complaint are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn fa: Date: May 25, 2006 LAW OFFICES II MARLIN R. McCALEB _ 5 _ COMMERCIAL LEASE AGREEMENT This Commercial Lease Agreement dated this L day of May, 2002, between LEE R. SEITZ and JUDITH A. SEITZ, his wife, collectively as Landlord, and KIM PARAIGH and CATHY RARAIGH his wife, collectively as Tenant. 1. LEASED PREMISES. Landlord agrees to let and demise unto Tenant, upon the terms and conditions contained herein, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania (Leased Premises), as more fully bounded and described asset forth in a certain Lease dated July 31,1973, by and between Pierson K. Miller and wife and Robert M. Frey and wife, on the one part, and Frank B. Darcey, Jr. and Robert P. Neuhauser, on the other part, which said Lease is entered for record in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Record Book Volume 208, Page 517, and is incorporated herein by reference thereto. 2. TERM OF LEASE. The term of this Commercial Lease Agreement is seven (7) years, commencing on the 1st of June, 2002, and terminating on the 31st of May, 2009. 1 RENTAL PAYMENT. Tenant shall pay to Landlord the sum $113,400.00 as basic rental for the lease term. Upon the execution of this Commercial Lease Agreement, and prior to the Tenant's taking possession of the Leased Premises, Tenant shall pay to Landlord the sum of $2,7DD.00, representing payment of the first and last months' rent hereunder. Landlord shall hold the last month's rent without obligation of interest to Tenant. The remainder ofthe rent shall be payable monthly, in advance, on the first day of each month during the leaseterm, commencing July 1, 2002, in the amount of $1,350.00, without prior demand by Landlord. Payment of rent shall be at the business address of Landlord or, upon notice to Tenant at another, location to be designated by Landlord to Tenant. If Tenant shall take possession of the Leased Premises prior to the commencement of the lease term, Tenant shall pay to Landlord the sum of for each such day of possession prior to the commencement of the lease term. Ir;.?sL Landlordand Tenantagree that timely payment of the rental and performance of all terms and conditions of this lease agreement is of the essence of this lease agreement. If the monthly rental shall not have been paid after the 15th of the month when the rental shall have been due, then Tenant agrees to pay the late charge of $20.00 per day retroactive to the day when the payment was due to compensate Landlord for additional administrative costs, expenses and liquidated damages caused by the late payment. If payment is made to Landlord at the proper address by first class mail, postage prepaid, then the date of the postmark shall be deemed to be the date of payment. The time and manner of payment of the rental is subject to the right of Landlord to accelerate the rent and enforce collection of the entire unpaid balance of the rental for the remaining term of the lease if Tenant shall breach the terms or conditions of this Commercial Lease Agreement, 4. SECURITYDEPOSIT. Upon execution ofthis Commercial Lease Agreement, and prior tothe Tenant's taking possession of the Leased Premises, Tenant shall pay to Landlord a sum equal to one(]) month's rent ($1,350.00), which amount shall be held by Landlord as a security deposit. Such security deposit shall be held by Landlord in an interest-bearing account for the benefit of Tenant and the interest earned thereon shall be accumulated and reported to Tenant's taxpayer identification number and shall be used for the same purposes as the security deposit. As preconditions to the return of the security deposit to Tenant; 1) Tenant shall vacate the Leased Premises and Landlord shall inspect the Leased Premises for damage; 2) Tenant shall have complied with all leaseterms, conditions and rules and regulations; 3) Tenant shall have paid in full the rental, additional rental and late charges if any. Landlord may apply all or any part of the Security Deposit to reimburse Landlord for any and all loss, damage and expense arising from the Tenant's breach of the terms, and conditions, or rules and regulations of this Commercial Lease Agreement or nonpayment of rent, additional rent or late charges, if any. Tenant: acknowledges that the Security Deposit is not to be considered to be payment of the last month's rent. 5. INABILITY OF LANDLORD TO GIVE POSSESSION. If Landlord is unable to transfer possessionto Tenantupon the commencement ofthis Commercial Lease Agreement, then theleaseterm shall begin, but Tenant's duty to pay rent shall be suspended until Landlord is able to transfer possession to Tenant. Landlord shall not be liable to Tenant for damages if Landlord is unable to transfer possession of the Leased Premises for causes reasonably beyond the control of Landlord. For purposes of this provision, the holding over of the prior tenant suspends the Landlord's duty to transfer possession of the Leased Premises to Tenant. 6. DESTRUCTION OF LEASE' DPREMISES. Tenant shall notify Landlord as soon as possible of any casualty loss in or about the Leased Premises and Tenant shall notify Landlord immediately of any circumstance or condition in or about the Leased Premises which threatens the Leased Premises, or the property or safety of Tenant, Landlord or others. Ifthe Leased Premises is partially destroyed by fire or other casualty, Tenantshall have the right and option 1) to continue to occupy the habitable portion of the premises, or2) to terminate this Commercial Lease Agreement absolutely and receive all sums prepaid on account of rent through the date of transfer of - possession to Landlord. Tenant shall not have the option of terminating the lease if the loss was the result of the negligence of Tenant, Tenant's employees or business invitees. 7. INSURANCE. Tenantshall obtain and maintain, atTenant's expanse, public liability insurance with a minimum single limit for personal injury of $1,000,000.00 for any occurrence and of $100,000.00 for property damage for any one occurrence. Such insurance shall name both Tenant and Landlord as insureds. Tenant shall, at Tenant's expense, keep the buildings and improvements on the Leased Premises, as such improvements may exist from time to time, insured for the full replacement value thereof against loss or damage by fire and other perils customarily included under standard "all risk" policies, naming Landlord and Tenant as co-insureds as their interests may appear, with the proceeds of any loss to be payable to Landlord. Landlord shall apply said proceeds to the costs of restoration of the Leased Premises. Tenant, upon request, shall provide Landlord with certificates of insurance in form acceptable to Landlord to the extent of the aforesaid minimum limits and amounts, which certificates shall be subject to cancellation only upon ten (10) days notice to Landlord. - 8. SUBLETTING AND ASSIGNMENTS. Tenant shall not assign this Commercial Lease Agreement or enter into any sublease agreement without the prior written consent of Landlord. Any attempted assignment or sublease by Tenant without the prior written consent of Landlord is null find void and is a breach of the conditions of this Commercial Lease Agreement. If Landlord shall consent to an assignment or sublease, any such consent shall not be deemed to be a consent to any subsequent assignment or sublease. 9. RELIEF OF LANDLORD FROM LIABILITY. Tenantreleases Landlord from liability for any personal injury or damage to property of Tenant, Tenant's employees or business invitees not arising from the negligence or intentional acts of Landlord or Landlord's agents or employees. Landlord shall not be liable for any injury or damage caused by water, rain, snow or ice that may leak or flow from EXHIBIT "A" whatever source into or about the Leased Premises or the building within which the Leased Premises is located. 10. USE AND OCCUPANCY OF TIM LEASED PREMISES. The Leased Premises may be occupied only for commercial (non-residential) purposes and may be used only as: a family restaurant for the preparation and retail sale of food and food products for consumption on or off the Leased Premises. No other use shall be permitted without the prior consent in writing of Landlord. Tenant shall occupy and use the Leased Premises in conformance with all applicable Federal, State and Local rules, regulations, laws and ordinances now in force or that may be enacted in the future. Tenant shall not store any flammable, hazardous, or toxic substances inconsistent with the property's intended use as described herein or engage in any activity on or about the Leased Premises which activities or substances expose Tenant, Landlord, or others to a risk of injury, loss or damage. 11. SUBORDINATION. The parties acknowledge and agreethatthisCommercial LeaseAgreement is under, subject, and subordinate to any and all mortgages and security intereststhat presently encumberthe property or that in the future may encumber the property of which the Leased Premises is a part. 12. CARE AND MAINTENANCE OF LEASED PREMISES. Tenant shall use due care in the use and occupancy of the Leased Premises and all appliances, furniture (if applicable), fixtures, and all heating, ventilating and air conditioning systems within the Leased Premises. Tenant also shall exercise due care when using any part of the building within which the Leased Premises is located. Tenant shall be responsible and shall pay for the reasonable maintenance of the Leased Premises and for all repairs thereto during the lease term. Upon termination of this Commercial Lease Agreement for any cause, Tenant shall peaceably surrender possession of the Leased Premises and its contents to Landlord in as good order and repair as upon the commencement of the lease term, excepting only reasonable wear and tear. Tenant shall notify Landlord of any repairs or the need for repairs within the Leased Premises. Tenant shall make repairs to the roof necessary to correct the existing leaks. Landlord shall pay to Tenant's contractor up to S 9,671.00 on account of said repairs. Any costs in excess of said amount sliC be paid by Tenant. 13. RIGHT OF ENTRY. Landlord, Landlord's agent and persons authorized by Landlord shall have the right to enterthe Leased Premises at all reasonable times to inspect, perform maintenance, do repairs and show the premises to prospective tenants and purchasers.. 14. UTILITIESAND TAXES. Tenant shall pay and be responsible for all utilities and municipal services servicing the Leased Premises, including but not limited to water and sewer rents, electricity, telephone, refuse collection and snow and leaf removal. Tenant shall pay all real estate taxes assessed against the Leased Premises during the term of this lease. Real estate taxes for calendar year 2002 and for fiscal year 2001-2002 shall be pro-rated between the parties as of June 1, 2002. Real estate taxes for calendar year 2009 and for fiscal year 2008-2009 shall be pro-rated between the parties as of May 31, 2009. Landlordshall have the rightto temporarily suspendany utility or other services to the Leased Premises in order to do maintenance and repair or protect the property of Landlord or Tenant from risk of harm or loss. 15. REMEDIES. The parties acknowledge and agree that time is of the essence and if Tenant shall fail to pay the rental reserved or any other charges when due, or if Tenant shall breach any other term or condition of this Commercial Lease Agreement, which breach is not corrected within fifteen (15) days after written notice thereof by Landlord to Tenant, then Landlordshall havethe right and option, without notice EXHIBIT "A" of termination or notice to quit, to pursue any or all of the following remedies: a) Termination of lease without prior notice. b) Bring an action in court to recover possession of the Leased Premises without prior Notice to Tenant to Quit the Leased Premises. c) Bring an action to recover the whole balance of the rent and charges due for the unexpired lease term. d) Bring an action for damages caused by Tenant's breach which damages include reasonable attorney's fees and costs. All remedies contained in this Commercial Lease Agreement shall be. cumulative and concurrent If Landlord shall pursue any remedy, it shall not be deemed to be a waiver of the right to seek any other remedy that may exist. Either party shall have the right to require strict compliance withthe terms and conditions of this Lease Agreement without having insisted upon strict compliance at any time during the term of this Lease Agreement. Any conduct which is inconsistent with the right to insist upon strict compliance shall not be a waiver of the right to insist upon strict compliance in the future, shall not create a custom, and shall not modify the terms and conditions of the Lease Agreement 16. ATTORNEY'S FEES AND COSTS. If Landlord shall enforce the provisions of the Commercial Lease Agreement in any court against the Tenant, Landlord shall be entitled as part of any court judgment to be reimbursed for all costs and expenses of enforcement including reasonable attorney's fees. 17. GOVERNMENTAL POWER OF EMINENT DOMAIN. If all or any part of the Leased Premises (or the building within which the Leased Premises is located) shall be condemned under the government's power of eminent domain, the lease shall terminate as to the portion taken. Landlord shall not be liable to Tenant for any claims by Tenant for loss of use of all or any portion of the Leased Premises (or the building within which the Leased Premises is located) or because this Commercial Lease Agreement has been terminated. 18. SALE OF PERSONAL PROPERTY. The parties mutually agree that Landlord shall sell to Tenant, and Tenant shall purchase from Landlord, the following items of personal property, fixtures and equipment: NSF Walk-In, Double Door Freezer/Refrigerator, installed, ready to run; NSF Walk-In Shelving; Digital Dining Computer System; NSF Silver King 28" Refrigerator, Sentry Safe; and Trash Cans. Tenant shall pay to Landlord on or before the execution of this Commercial Lease Agreement, the sum of S 12,975.00, in cash, the receipt of which is hereby acknowledged by Landlord. 19. RENOVATIONS. Tenant may make renovations to the Leased Premises consistent with Tenant's intended use as set forth in Paragraph 10, above. All such renovations shall be the sole responsibility of and shall be paid by, Tenant. All such renovations shall be subject to the approval of Landlord, which approval shall not be unreasonably withheld. All such renovations shall become the property of Landlord upon the termination of the lease term, or, at Landlord's option, Tenant shall restore the Leased Premises to the same condition as existing on the date this Commercial Lease Agreement is executed. 20. BINDING EFFECT. This Commercial Lease Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of the parties hereto. Tenant shall not have the EXHIBIT "A" right to assign this lease or sublet the Leased Premises without the prior written consent of Landlord. Landlor '///?? /? Lee Seitz Judith A. Seitz ----' enant: K' Raraigh athy R oh EXHIBIT "A° 'OO U? 4 U d Fr Cil r c CT) SA =i ?Q jrn _ 5{ G ?fl -C Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorney for Kim C. Raraigh and Cathleen D. Raraigh LEER. SEITZ and JUDITH A. SEITZ, his wife Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Term CIVIL ACTION -LAW PRAECIPE FOR ENTRY OF APPEARANCE Please enter my appearance in the above action on behalf of the above named Defendants, Kim C. Raraigh and Cathleen D. Raraigh. Respectfully submitted, CALDWELL & Dat 2006 By: Vr/ / _'? effre. T, v ire, Esquire Atto ey I.D. No. 73617 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant, Adair Construction Services, Inc. 06481-001/103590 CERTIFICATE OF SERVICE AND NOW, thisay of la e 2006,1 hereby certify that I have served a copy of the within document on the fol owin by depositing ositin a true and correct of py g y p g copy the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Marlin R. McCaleb, Esquire 214 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 & KEARNS By: l i Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232 -7661 (717) 232 - 2766 (fax) Attorney for Kim C. Raraigh and Kathleen D. Raraigh LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiff vs. KIM C. RARAIGH and CATHLEEN D RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-03041 CIVIL ACTION LAW PETITION UNDER Pa. R.C.P. NO. 237.3 TO OPEN DEFAULT JUDGMENT AND NOW comes Defendants, Kim C. Raraigh and Cathleen D. Raraigh, by Jeffrey T. McGuire, Esquire, their attorney, and file this Petition to Open Default Judgment as follows: 1. Judgment by default was entered against Defendants on July 17, 2006. 2. Less than ten (10) days have passed since entry of the judgment. 3. Defendants have a meritorious defense as set forth in the verified Answer with New Matter and Joinder Complaint, copies of which are attached hereto and marked as Exhibit «A„ 4. Pa. R.C.P. No. 237.3 provides that judgment shall be opened if the petition is filed within ten (10) days after entry of the judgment and if the proposed answer states a meritorious defense. 5. No prior determinations have been made by the Court and there are no matters or related cases pending before the Court. WHEREFORE, your petitioner prays your Honorable Court to open the judgment and grant them leave to file the proposed Answer with New Matter and Counter-Claim. Respectfully DATED: -I lo'? CALDWEkt & By: WGuire, Esquire ELL & KEARNS I.D. #73617 3631 North Front Street Harrisburg, PA 17110 (717) 232 -7661 (717) 232 - 2766 (fax) Attorney for Kim C. Raraigh and Cathleen D. Raraigh 2 e 0 c 1 VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relat Date: ,P1 6 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this 2- day of July, 2006, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: A . U 06481/104415 4 Exhibit A Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Term : CIVIL ACTION - LAW NOTICE TO PLEAD To: Lee R. Seitz and Judith A. Seitz c/o Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. RespecIfRlly submitted, C By: DW Date: / 66 Ya'14d McG uire, Esquire ey I. D. # 73617 well l & Kearn s, P. C. 3631 North Front Street Harrisburg, PA 171 10-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh, Defendants e 0 ' a Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and IN THE COURT OF COMMON PLEAS JUDITH A. SEITZ, his CUMBERLAND COUNTY, PENNSYLVANIA wi fe, Plaintiffs, No. 06-3041 Civil Term vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his : Wife, Defendants. CIVIL ACTION - LAW DEFENDANTS' ANSWER WITH NEW MATTER AND NOW, comes Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, by and through their attorney, Jeffrey T. McGuire, Esquire, of Caldwell & Kearns, PC, and files the within Answer with New Matter and avers in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part. It is admitted that walls and/or partitions were installed. The walls and/or partitions did not go all the way to the ceiling and did not interfere with the air circulation. 6. Denied. By way of further answer see paragraph 5 above. 4 1 4 0 7. Denied. By way of further answer, the premises were apparently leased without Defendants' permission to Luigi Areana and Defendants had no access to the property on or after Apri 12 004. 8. Denied. 9. Denied. 10. Admitted. 11. Denied. Plaintiffs breached the agreement by leasing or subleasing the premises to Luigi Areana. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. NEW MATTER 12. Defendants incorporate their answers to paragraphs 1 through l l to Plaintiffs' Complaint as if written herein at length. 13. Plaintiffs' cause of action fails to include any claims against the current tenant. 14. Upon information and belief the premises are currently leased or subleased to Luigi Areana. 15. Beginning on or about April 2004, Plaintiffs have been accepting all rent payments from Luigi Areana. 16. Defendants did not give permission to Luigi Areana to occupy the premises. 4 J 1 7. Defendants did not give permission to Plaintiffs to lease or sublease the premises to Luigi Areana. 18. Plaintiffs are holding a security deposit and last month's rent for Defendants in the total amount of $2,700.00. 19. The security deposit and last month's rent should be held in an interest-bearing account. 20. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendants should be credited for the amount of the security deposit, last month's rent and interest. 21. Plaintiffs breached the Lease Agreement by allowing Luigi Areana to occupy the premises without Defendants' pennission. 22. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendant asserts that Luigi Areana, an entity not currently a party to this action, is solely liable to Plaintiffs. 23. Luigi Areana may be jointly and severally liable for the alleged damages suffered by Plaintiffs. 24. Plaintiffs' cause of action may be barred by the Doctrine of Accord and Satisfaction. 25. Plaintiffs' cause of action may be barred by the Doctrine of Waiver and/or Estoppel. 26. If Plaintiffs sustained damages as alleged in their Complaint, which is expressly denied, then the damages were caused by the acts or omissions of entities or individuals over which Defendant had no control, or legal duty to control. 27. Plaintiffs' cause of action may be barred in whole or in part by the Parole Evidence Rule. 28. Plaintiffs' cause of action may be barred in whole or in part by the Doctrine of Release. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. My submitted, Date: 7 ?1 L By: *r. Guire, Esquire #73617 earns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh, Defendants 06481-001/104361 t ? VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: 71D 1/0 (-, J 6 cGuire, Esquire AND NOW, this ? j 'da hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: CE TIFIC TE OF SERVICE ? Y of / 2006, I Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife. Defendants. vs. Luigi Areana, Additional Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-3041 Civil Term CIVIL ACTION - LAW 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 Joinder 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D LEE R. SEITZ and JUDITH A. SEITZ, his wi fe, Raraigh, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : No. 06-3041 Civil Term vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. vs. Luigi Areana, Additional Defendant. CIVIL ACTION - LAW NOTICIA Le han demandado a usted en ]a corte. Si usted quiere defenderse de estas demandas expuestas en ]as paginas siguientes, usted Ilene viente (20) dias de plazo a] partir de la fecha de la demanda y la notificacion. Usted Debe presenter una apariencia escrita o en persona o por abogado y archivar en 1a corte en forma escrita sus defensas o sus objeciones a ]as demandas en contra de su persona. Sea avisado que si usted no se defiende, ]a corte tomara medidas y puede entrar una orden contra usted sin previo a vino o notificacion, y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Jeffrey T_ McGuire, Esquire Attorney J.D. No_ 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisbur-, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. vs. Luigi Areana, Additional Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Term CIVIL ACTION - LAW JOINDER COMPLAINT OF DEFENDANTS, KIM C. RARAIGH AND CATHLEEN D. RARAIGH AND NOW, comes Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, by and through their attorney, Jeffrey T. McGuire, Esquire, of Caldwell & Kearns, PC, and files this Joinder Complaint against Luigi Areana and in support thereof, avers as follows: Defendants, Kim C. Raraigh and Cathleen D. Raraigh, are individuals residing at 7 Gordon Drive, Carlisle, Pennsylvania, 17013. 2. Additional Defendant, Luigi Areana is an adult individual residing at an unknown address and operating a business at 1968 Spring Road, North Middletown Township, Cumberland County, Pennsylvania. 1 3. Plaintiffs, Lee R. Seitz and Judith A. Seitz are adult individuals who reside at 9 South Washington Street, Mechanicsburg, Pennsylvania, 17055. 4. On or about May 26, 2005, Plaintiffs filed a Complaint against Defendants in the Court of Common Pleas of Cumberland County. A true and correct copy of said Complaint is attached hereto as Exhibit "A" and incorporated herein by reference. 5. The Complaint arises out of a lease for the premises located at 1968 Spring Road North Middletown Township, Cumberland County, Pennsylvania. 6. On or about April 2004 Luigi Areana began occupying the premises and pay rent therefore. 7. Defendants did not give permission for Luigi Areana to occupy the premises. 8. Luigi Areana began occupying the premises without Defendants' knowledge. 9. Additional Defendant Luigi Areana is herein joined to protect the right of indemnity and contribution for Defendants. 10. Defendants aver that Additional Defendant Luigi Areana is alone liable to Plaintiffs, or in the alternative, that Additional Defendant Luigi Areana is jointly and severally liable to the Plaintiffs, or is liable over to Defendants on Plaintiffs' cause of action. H. . In the event any party was unjustly enriched, it was Additional Defendant, not Defendants. 12. In the event Plaintiff suffered harm as a result of this unjust enrichment, such harm was caused by additional Defendant. 2 WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court find Additional Defendant Lui-i Areana solely liable to the Plaintiff, or in the alternative, jointly and severally liable to the Plaintiff, or liable over to Defendants on Plaintiffs' cause of action. NEW MATTER 13. Defendants incorporate their answers to paragraphs l through 11 to Plaintiffs' Complaint as if written herein at length. 14. Plaintiffs' cause of action fails to include any claims against the current tenant. 15. Upon information and belief the premises are currently leased or sublased to Luigi Arean a. 16. Beginning on or about April 2004, Plaintiffs have been accepting all rent payments for Luigi Areana. 17. Defendants did not give permission to Luigi Areana to occupy the premises. 18. Defendants did not give permission to Plaintiffs to lease or sublease the premises to Luigi Areana. 19. Plaintiffs are holding a security deposit and last month's rent for Defendants in the total amount of $2,700.00. 20. The security deposit and last month's rent should be held in an interest-bearing account. 21. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendants should be credited for the amount of the security deposit, last month's rent and interest. 3 k k ? k 22. Plaintiffs breached the Lease Agreement by allowing Luigi Areana to occupy the premises without Defendants' permission. 23. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendant asserts that Luigi Areana, an entity not currently a party to this action, is solely liable to Plaintiffs. 24. Luigi Areana may be jointly and severally liable for the alleged damages suffered by Plaintiffs. 25. Plaintiffs' cause of action may be barred by the Doctrine of Accord and Satisfaction. 26. Plaintiffs' cause of action may be barred by the Doctrine of Waiver and/or Estoppel. 27. If Plaintiffs sustained damages as alleged in their Complaint, which is expressly denied, then the damages were caused by the acts or omissions of entities or individuals over which Defendant had no control, or legal duty to control 28. Plaintiffs' cause of action may be barred in whole or in part by the Parole Evidence Rule. 29. Plaintiffs' cause of action may be barred in whole or in part by the Doctrine of Release. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and 4 against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. Respe l y submitted, -<-? Date: 66 By. Je ey . McG ire, Esquire to ey I. D. # 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh Defendants 06481-001/104363 5 a ) / t VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: ?/d 1/b 6 Je re cGuire, Esquire 6 AND NOW, this hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: CE TIFIC TE OF SERVICE ? ?'day of 2Q06, I _PJT Exhi bi+ A LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3C 41 r KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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, Pennsylvania 17013 (717) 249-3166 Marlin R. I,,IcCaleb? Attorney for Plaintiff LAW OFFICES ARLIN R. MCCALEB tNA COPY FROM REWRO ostiMWY wfW,'Wf, i hele unto 30 #1 NW ?+ I'M mI at sa?Q ;?n 1144 carte.. ft. . if , ' LEE R. SEITZ and : IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs LAW OFFICES I?RLIN R. MCCALEB vs. NO. C `i J C,4- z- C' T ?. . KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs herein are Lee R. Seitz and Judith A. Seitz, his wife, adult individuals who live and reside at 9 South Washington Street, Borough of Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendants herein are Kim C. Raraigh and Cathleen D. Raraigh, his wife, adult individuals who live and reside at 7 Gordon Drive, Carlisle (North Middleton Township), Cumberland County, Pennsylvania 17013. 3. On or about May 10, 2002, Plaintiffs, as Landlord, and Defendants, as Tenant, entered into a written Commercial Lease Agreement ("Lease") providing for Plaintiffs to lease to Defendants, and for Defendants to rent from Plaintiffs, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania ("Leased Premises"), for use as a family restaurant for a term of seven (7) years commencing June 1, 2002, under the terms and conditions therein set forth. A true copy of said Lease is attached hereto and made a part hereof by reference thereto, marked Exhibit "A". LAW OFFICES AARLIN R. MCCALEB 4. Under and by reason of said Lease, Defendants agreed, inter alia, that during the term of said lease: (a) they would pay all real estate taxes assessed against the Leased Premises; and (b) they would use due care in the use of the heating, ventilating and air conditioning systems and they would be responsible and pay for the reasonable maintenance of same; and (c) if litigation was necessary to enforce Defendants' obligations under the said Lease, they would pay the costs and expenses thereof, including reasonable attorney's fees. 5. Defendants thereafter entered into possession of the Leased Premises and altered the interior design of the building thereon by installing interior walls and partitions. 6. The walls and partitions installed by Defendants interfere with the free flow of air from the ductwork of the heating, ventilating and air conditioning systems and reduce the efficiency of those systems. 7. In addition, Defendants failed to properly maintain the heating, ventilating and air conditioning systems by failing to periodically clean and/or replace the air filters, causing them to clog and restrict air flow, to unduly stress those systems and to burn out switches and relays, resulting in premature wear and tear on the components of those systems, so -2- that the systems do not operate efficiently, they do not adequately provide or distribute warm air in the winter months or cool air in the summer months, and on some occasions they have not operated at all. 8. Plaintiffs believe and therefore aver that it will cost $6,500.00 to correct and repair the problems and defects described in Paragraphs 6 and 7, above, in order to restore the heating, ventilating and air conditioning systems to reasonable, proper and efficient operation. 9. The following real estate taxes have been assessed against the Leased Premises for the following periods, all of which have been paid by Plaintiffs to avoid interest and penalties: 2003: County/Municipal: $323.89 School District: 1,236.59 2004: County/Municipal: 344.90 School District: 1,314.20 2005: County/Municipal: 381.84 School District: 1,490.11 Total: $5,091.53 10. Plaintiffs have demanded payment from Defendants in the amount of $11,591.53, being the total of the amounts set forth in Paragraphs 8 and 9, above, which amount, or any part thereof, Defendants have failed and refused to pay. LAW OFFICES II MARLIN R. McCALEB _3 . 11 , 11. As the result of their actions or inactions as described in Paragraphs 5, 6 and 7, above, their failure and refusal to pay the real estate taxes as described in Paragraph 9, above, and their failure and refusal to pay as described in Paragraph 10, above, Defendants have breached their obligations under the said Lease as described in Paragraph 4(a) and (b), above. Wherefore, Plaintiffs demand judgment in their favor and against the Defendants herein in the amount of $11,591.53, together with interest thereon and costs and expenses of suit, including reasonable attorney's fees. Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiffs LAW OFFICES %RLIN R. MCCALEB -4- VERIFICATION We, LEE R. SEITZ and JUDITH A. SEITZ, being the Plaintiffs herein, hereby verify that the statements contained in this Complaint are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authoritdes. Date: May 25, 2006 j ? Judith A. Seitz LAIN OFFICES NRLIN R. MCCALEB -5- C01\01ERCIAL LEASE AGREEMENT This Commercial Lease Agreement dated this _LQ day of May, 2002, between LEE R. SEITZ and JUDITH A. SEITZ, his wife, collectively as Landlord, and KIM IZARAIGH and CATI-3Y RA_P.AIGH, his wife, collectively as Tenant. 1. LEASED RIZEAIISES. Landlord agrees to let and demise unto Tenant, upon the terms and conditions contained herein, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania (Leased Premises), as more fill ly bounded and described asset forth in a certain Lease dated July 31, 1973, by and between Pierson K. Miller and wife and Robert M. Frey and wife, on the one part, and Frank B. Darcey, Jr. and Robert P. Neuhauser, on the other part, which said Lease is entered for r ecord in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Record Book Volume 208, Page 517, and is incorporated herein by reference thereto. 2. TERM OF LEASE. The term of this Commercial Lease Agreement is seven (7) years, commencing on the 1st of June, 2002, and terminating on the 31st of May, 2009. 3. RENTA.LPAY-NMNT. Tenant shall pay to Landlord the sum Sl 13,400.00 as basic rental for the lease term. Upon The execution of this Commercial Lease Agreement, and prior to the Tenant's taking possession of the Leased Premises, Tenant shall pay to Landlord the sum of $2,700.00, representing payment of the first and last months' rent hereunder. Landlord shall hold the last month's rent without obligation of interest to Tenant. The remainder ofihe rent shall be payable monthly, in advance, on the first day of each month during the lease term, commencing July l; 2002, in the amount of 51,350.00, without prior demand by Landlord. Payment of rent shall be at the business address of Landlord or, upon notice to Tenant at another location to be designated by Landlord to Tenant. If Tenant shall take possession of the Leased Premises prior to the commencement of the lease term, Tenant shall pay to Landlord the sum of for each such day of possession prior to the commencement of the lease term-3 kct- Landlordand Tenantagree that timely payment ofthe rental and performance of all terms and conditions of this lease agreement is of the essence of this lease agreement. If the monthly rental shall not have been paid after the 15th of the month when the rental shall have been due, then Tenant agrees to pay the late charge of $20.00 per day retroactive to the day when the payment was due to compensate Landlord for additional administrative costs, expenses and liquidated damages caused by the late payment. If payment is made to L2ndlord at the proper address by first class mail, postage prepaid, then the date of the postmark .shall be deemed to be the date of payment. The time and manner of payment of the rental is subject to the right of Landlord to accelerate the rent and enforce collection of the entire unpaid balance of the rental for the remaining Term of the lease if Tenant shall breach the terms or conditions of this Commercial Lease Agreement. 4. SECURITY DEPOSIT. Upon execution of this Commercial Lease Agreement, and prior tothe Tenant's taking possession ofthe Leased Premises, Tenant shall pay to Landlord a sum equal to one(]) month's rent ($1,350.00), which amount shall be held by Landlord as a security deposit. Such security deposit shall be held by Landlord in an interest-bearing account for the benefit of Tenant and the interest earned thereon shall be accumulated and reported to Tenant's taxpayer identification number and shall be used for the same purposes as the security deposit. As preconditions to the return of the security deposit to Tenant; 1) Tenant shall vacate the Leased Premises and Landlord shall inspect the Leased Premises for damage; 2) Tenant shall have complied with all lease terms, conditions and rules and regulations; 3) Tenant shall have paid in full the rental, additional rental and late charges if any. Landlord may apply all or any part of the Security Deposit to reimburse Landlord for any and all loss, damage and expense arising from the Tenant's breach of the terms, and conditions, or rules and reb nations of this Commercial Lease Agreement or nonpayment of rent, additional rent or late charges, if any. Tenant acknowiedDes that the Security Deposit is not to be considered to be payment of the last month's rent. 5. INABILITY OF LANDLORD TO GIST, POSSESSION. If Landlord is unable to transfer possessiontoTenantupon the commencement ofthis Commercial Lease Agreement; then the leaseterm shall begin, but Tenant's duty to pay rent shall be suspended until Landlord is able to transfer possession to Tenant. Landlord shall not be liable to Tenant for damages if Landlord is unable to transfer possession of the Leased Premises for causes reasonably beyond the control of Landlord. For purposes of this provision, the holding over of the prior tenant suspends the Landlord's duty to transfer possession of the Leased Premises to Tenant. 6. DESTRUCTION OF LEASED PREMISES. Tenantshall notify Landlord as soon as possible of any casualty loss in or about the Leased Premises and Tenant shall notify Landlord immediately of any circumstance or condition in or about the Leased Premises which threatens the Leased Premises, or the property or safety of Tenant, Landlord or others. If the Leased Premises is partially destroyed by fire or other casualty, Tenantshall have the right and option 1) to continue to occupy the habitable portion of the premises, or 3) to terminate this Commercial Lease Agreement absolutely and receive all sums prepaid on account of rent through the date of transfer of possession to Landlord. Tenant shall not have the option of terminating the lease if the loss was the result of the negligence of Tenant, Tenant's employees or business invitees. 7. RgSURANCE. Tenantshall obtain and maintain, at Tenant's expense, public Ilability insurance with a minimum single limit for personal injury of $1,000,000.00 for any occur, once and of $100,000.00 for property damage for any one occurrence. Such insurance shall name both Tenant and Landlord as insureds. Tenantshall, at Tenant'sexpense, keep the buildings and improvements on the Leased Premises, as such improvements may exist from timeto time, insured forthe full replacement value thereof against loss or damage by fire and other perils customarily included under standard "all risk" policies, naming Landlord and Tenant as co-insureds as their interests may appear, with the proceeds of any loss to be payable to Landlord. Landlord shall apply said proceeds to the costs of restoration of the Leased Premises. Tenant, upon request, shall provide Landlord with certificates of insurance in form acceptable to Landlord to the extent of the aforesaid minimum limits and amounts, which certificates shall be subject to cancellation only upon ten (10) days notice to Landlord. 8. SUBLETTING AND ASSIGNTMENTS. Tenant shall not assign this Commercial Lease Agreement or enter into any sublease agreement without the prior written consent of Landlord. Any attempted assignment or sublease by Tenant without the prior written consent of Landlord is null and void and is a breach of the conditions of this Commercial Lease Agreement. If Landlord shall consent to an assignment or sublease, any such consent shall not be deemed to be a consent to any subsequent assignment or sublease. 9. RELIEFOF LANDLORD FROM LIABILITY. Tenantreleases Landlord from liability for any personal injury or damage to property of Tenant, Tenant's employees or business invitees not arising from the negligence or intentional acts of Landlord or Landlord's agents or employees. Landlord shall not be liable for any injury or damage caused by water, rain, snow or ice that may leak or flow from EXHIBIT "A" whatever source into or about the Leased Premises or the building within which the Leased Premises is • l ocated. 10. USE AND OCCUPANCY OF THE LEASED PREMISES. The Leased Premises may be occupied only for commercial (non-residential) purposes and may be used only as: a family restaurant for the preparation and retail sale of food and food products for consumption on or off the Leased Premises. No other use shall be permitted without the prior consent in writing of Landlord. Tenant shall occupy and use the Leased Premises in conformance with all applicable Federal, State and Local rules, regulations, laws and ordinances now in force or that may be enacted in the future. Tenant shall not store any flammable, hazardous, or toxic substances inconsistent with the property's intended use as described herein or engage in any activity on or about the Leased Premises which activities or substances expose Tenant, Landlord; or others to a risk of injury, loss or damage. 11. SUBORDINATION. The parties acknowledge and agree that this Commercial Lease Agreement is under, subject, and subordinate to any and al l mortgages and security interests that presently encumber the property or that in the future may encumber the property of which the Leased Premises is a part 12. CAPE AND MAINTENANCE OF LEASED PREMISES. Tenant shall use due care in the use and occupancy of the Leased Premises and all appliances, furniture (if applicable), fixtures, and all heating, ventilating and air conditioning systems within the Leased Premises. Tenant also shall exercise due care when using any part of the building within which the Leased Premises is located. Tenant shall be responsible and shall pay for the reasonable maintenance of the Leased Premises and for all repairs thereto during the lease term. Upon termination of this Commercial Lease Agreement for any cause, Tenant shall peaceably surrender possession of the Leased Premises and its contents to Landlord in as good order and repair as upon the commencement of the lease term, excepting only reasonable wear and tear. Tenant shall noil y Landlord of any repairs or the need for repairs within the Leased Premises. Tenant shall make repairs to the roof necessary to correct the existing leaks. Landlord shall pay to Tenant's contractor up to S 9,671.00 on account of said repairs. Any costs in excess of said amount shall be paid by Tenant. 13. RIGHT OF ENTRY. Landlord, Landlord's agent and persons authorized by Landlord shall have the right to enterthe Leased Premises at all reasonable times to inspect, perform maintenance, do repairs and show the premises to prospective tenants and purchasers.. 14. UTILITIESANID T_4A'ES. Tenant shall pay and be responsible for all utilities and municipal services servicing the Leased Premises, including but not limited to water and sewer rents, electricity, telephone, refuse collection and snow and leaf removal. Tenant shall pay all real estate taxes assessed against the Leased Premises during the term of this ]ease. Real estate taxes for calendar year 2002 and for fiscal year 2001-2002 shall be pro-rated between the parties as of June 1, 2002. Real estate taxes for calendar year 2009 and for fiscal year 2008-2009 shall be pro-rated between the parties as of May 31, 2009. Landlord shall have the right to temporarily suspend any utility or other services to the Leased Premises in order to do maintenance and repair or protect the property of Landlord or Tenant from risk of harm or loss. 15. REMEDIES. The parties acknowledge and agree that time is of the essence and if Tenant shall fail to pay the rental reserved or any other charges when due, or if Tenant shall breach any other term or condition of this Commercial Lease Agreement, which breach is not corrected within fifteen (15) days after written notice thereof by Landlord to Tenant, then Landlord shall havethe right and option, without notice EXHIBIT "A" L ' I • of termination or notice to quit, to pursue any or all of the following remedies: a) Termination of lease without prior notice. b) Bring an action in court to recover possession of the Leased Premises without prior Notice to Tenant to Quit the Leased Premises. c) Bring an action to recover the whole balance of the rent and charges due for the unexpired lease term. d) Bring an action for damages caused by Tenant's breach which damages include reasonable attorney's fees and costs. All remedies contained in this Commercial Lease Agreement shall be cumulative and concurrent. If Landlord shall pursue any remedy, it shall not be deemed to be a waiver of the right to seek. any other remedy that may exist. Either party shall have the right to require strict compliance with the terms and conditions of this Lease Agreement without having insisted upon strict compliance at any time during the term of this Lease Agreement. Any conduct which is inconsistent with the right to insist upon strict compliance shall not be a waiver of the right to insist upon strict compliance in the future, shall not create a custom, and shall not modify the terms and conditions of the Lease Agreement. 16. ATTORNEY'S FEES AND COSTS. If Landlord shall enforce the provisions of the Commercial Lease Agreement in any court against the Tenant, Landlord shall be entitled as part of any court judgment to be reimbursed for all costs and expenses of enforcement including reasonable attorney's fees. 17. GOVT, RNMENT -A-L POWER OF EMDq--PNT DONLUN. If all or any part of the Leased Premises (or the building within which the Leased Premises is located) shall be condemned under the government's power of eminent domain, the lease shall terminate as to the portion taken. Landlord shall not be liable to Tenant for any claims by Tenant for loss of use of all or any portion of the Leased Premises (or the building within which the Leased Premises is located) or because this Commercial Lease Agreement has been terminated. 18. SALE OF PERSONAL PROPERTY. The parties mutually agree that Landlord shall sell to Tenant, and Tenant shall purchase from Landlord, the following items of personal property, fixtures and equipment: NSF Walk-In, Double Door Freezer/Refrigerator, installed, ready to run; NSF Wall:-In Shelving; Digital Dining Computer System; NSF Silver King 28" Refrigerator,, Sentry Safe; and Trash Cans. Tenant shall pay to Landlord on or before the execution of this Commercial Lease Agreement, the sum of S 12,975.00, in cash, the receipt of which is hereby acknowledged by Landlord. 19. RENOVATIONS. Tenant may make renovations to the Leased Premises consistent with Tenant's intended use as set forth in Paragraph 10, above. All such renovations shall be the sole responsibiki y of, and snail uc paid by, Tenant. nil sucn renovations snail be subject io the approval - o7 Landlord, which approval shall not be unreasonably withheld. All such renovations shall become the property of Landlord upon the termination of the lease term, or, at Landlord's option, Tenant shall restore the Leased Premises to the same condition as existing on the date this Commercial Lease Agreement is executed. 20. BINDING EFFECT. This Commercial Lease Agreement shall be binding upon the heirs, cxecutors, personal representatives, successors and assigns of the parties hereto. Tenant shall not have the EXHIBIT "A" right to assign this lease or sublet the Leased Premises without the prior written consent of Landlord. Landlor L Lee Seitz Judith A. Seitz enant: K' _ Raraighrr Cam"" ?i athy Ra.r ' gh EXHIBIT "A" r ' • • • t +`) r- a ?- Ti r Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. + 1 I 3631 North Front Street i Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Term CIVIL ACTION - LAW NOTICE TO PLEAD To: Lee R. Seitz and Judith A. Seitz c/o Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. submitted, Date: _ ,[ 116 6 By: F Je ?OlcGuire, Esquire ey I. D. # 73617 aldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh, Defendants Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Tenn CIVIL ACTION - LAW DEFENDANTS' ANSWER WITH NEW MATTER AND NOW, comes Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, by and through their attorney, Jeffrey T. McGuire, Esquire, of Caldwell & Kearns, PC, and files the within Answer with New Matter and avers in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part. It is admitted that walls and/or partitions were installed. The walls and/or partitions did not go all the way to the ceiling and did not interfere with the air circulation. 6. Denied. By way of further answer see paragraph 5 above. 7. Denied. By way of further answer, the premises were apparently leased without Defendants' permission to Luigi Areana and Defendants had no access to the property on or after April 2004. 8. Denied. 9. Denied. 10. Admitted. 11. Denied. Plaintiffs breached the agreement by leasing or subleasing the premises to Luigi Areana. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. NEW MATTER 12. Defendants incorporate their answers to paragraphs 1 through 11 to Plaintiffs' Complaint as if written herein at length. 13. Plaintiffs' cause of action fails to include any claims against the current tenant. 14. Upon information and belief the premises are currently leased or subleased to Luigi Areana. 15. Beginning on or about April 2004, Plaintiffs have been accepting all rent payments from Luigi Areana. 16. Defendants did not give permission to Luigi Areana to occupy the premises. 17. Defendants did not give permission to Plaintiffs to lease or sublease the premises to Luigi Areana. 18. Plaintiffs are holding a security deposit and last month's rent for Defendants in the total amount of $2,700.00. 19. The security deposit and last month's rent should be held in an interest-bearing account. 20. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendants should be credited for the amount of the security deposit, last month's rent and interest. 21. Plaintiffs breached the Lease Agreement by allowing Luigi Areana to occupy the premises without Defendants' permission. 22. To the extent that plaintiffs are entitled to recover, which is expressly denied, Defendant asserts that Luigi Areana, an entity not currently a party to this action, is solely liable to Plaintiffs. 23. Luigi Areana may be jointly and severally liable for the alleged damages suffered by Plaintiffs. 24. Plaintiffs' cause of action may be barred by the Doctrine of Accord and Satisfaction. 25. Plaintiffs' cause of action may be barred by the Doctrine of Waiver and/or Estoppel. 26. If Plaintiffs sustained damages as alleged in their Complaint, which is expressly denied, then the damages were caused by the acts or omissions of entities or individuals over which Defendant had no control, or legal duty to control. 27. Plaintiffs' cause of action may be barred in whole or in part by the Parole Evidence Rule. 28. Plaintiffs' cause of action may be barred in whole or in part by the Doctrine of Release. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. Respe lly submitted, Date: !L_? By: Je cGuire, Esquire I. D. # 73617 ald ell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh, Defendants 06481-0011104361 VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: 2 a/ O (I J4KK cGuire, Esquire 6 C TIFIC E OF SERVICE AND NOW, this __QC! day of- 2006, I hereby certify that I have I/ (j served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: 4-a-- r > ?7 ^; i i .? :.: _• ti _.. (.? ?-t1Y-' _?{Yi - '. ?? C .. ?,.} ad .. `? ?.?' Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street 1 ow Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. VS. Luigi Areana, 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 Joinder 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Term Additional Defendant.: CIVIL ACTION - LAW Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 (fax) Attorneys for Kim C. Raraigh and Cathleen D. Raraigh, his wife, Defendants LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs, VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his Wife, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-3041 Civil Tenn VS. Luigi Areana, Additional Defendant. CIVIL ACTION - LAW JOINDER COMPLAINT OF DEFENDANTS, HIM C. RARAIGH AND CATHLEEN D. RARAIGH AND NOW, comes Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, by and through their attorney, Jeffrey T. McGuire, Esquire, of Caldwell & Kearns, PC, and files this Joinder Complaint against Luigi Areana and in support thereof, avers as follows: 1. Defendants, Kim C. Raraigh and Cathleen D. Raraigh, are individuals residing at 7 Gordon Drive, Carlisle, Pennsylvania, 17013. 2. Additional Defendant, Luigi Areana is an adult individual residing at an unknown address and operating a business at 1968 Spring Road, North Middletown Township, Cumberland County, Pennsylvania. Plaintiffs, Lee R. Seitz and Judith A. Seitz are adult individuals who reside at 9 South Washington Street, Mechanicsburg, Pennsylvania, 17055. 4. On or about May 26, 2005, Plaintiffs filed a Complaint against Defendants in the Court of Common Pleas of Cumberland County. A true and correct copy of said Complaint is attached hereto as Exhibit "A" and incorporated herein by reference. 5. The Complaint arises out of a lease for the premises located at 1968 Spring Road North Middletown Township, Cumberland County, Pennsylvania. On or about April 2004 Luigi Areana began occupying the premises and pay rent therefore. 7. Defendants did not give permission for Luigi Areana to occupy the premises. 8. Luigi Areana began occupying the premises without Defendants' knowledge. 9. Additional Defendant Luigi Areana is herein joined to protect the right of indemnity and contribution for Defendants. 10. Defendants aver that Additional Defendant Luigi Areana is alone liable to Plaintiffs, or in the alternative, that Additional Defendant Luigi Areana is jointly and severally liable to the Plaintiffs, or is liable over to Defendants on Plaintiffs' cause of action. 11. In the event any party was unjustly enriched, it was Additional Defendant, not Defendants. 12. In the event Plaintiff suffered harm as a result of this unjust enrichment, such harm was caused by additional Defendant. 2 WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court find Additional Defendant Luigi Areana solely liable to the Plaintiff , or in the alternative, jointly and severally liable to the Plaintiff, or liable over to Defendants on Plaintiffs' cause of action. NEW MATTER 13. Defendants incorporate their answers to paragraphs 1 through 11 to Plaintiffs' Complaint as if written herein at length. 14. Plaintiffs' cause of action fails to include any claims against the current tenant. 15. Upon information and belief the premises are currently leased or sublased to Luidi Areana. 16. Beginning on or about April 2004, Plaintiffs have been accepting all rent payments for Luigi Areana. 17. Defendants did not give permission to Luigi Areana to occupy the premises. 18. Defendants did not give permission to Plaintiffs to lease or sublease the premises to Luigi Areana. 19. Plaintiffs are holding a security deposit and last month's rent for Defendants in the total amount of $2,700.00. 20. The security deposit and last month's rent should be held in an interest-bearing account. 21. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendants should be credited for the amount of the security deposit, last month's rent and interest. 22. Plaintiffs breached the Lease Agreement by allowing Luigi Areana to occupy the premises without Defendants' permission. 23. To the extent that Plaintiffs are entitled to recover, which is expressly denied, Defendant asserts that Luigi Areana, an entity not currently a party to this action, is solely liable to Plaintiffs. 24. Luigi Areana may be jointly and severally liable for the alleged damages suffered by Plaintiffs. 25. Plaintiffs' cause of action may be barred by the Doctrine of Accord and Satisfaction. 26. Plaintiffs' cause of action may be barred by the Doctrine of Waiver and/or Estoppel. 27. If Plaintiffs sustained damages as alleged in their Complaint, which is expressly denied, then the damages were caused by the acts or omissions of entities or individuals over which Defendant had no control, or legal duty to control 28. Plaintiffs' cause of action may be barred in whole or in part by the Parole Evidence Rule. 29. Plaintiffs' cause of action may be barred in whole or in part by the Doctrine of Release. WHEREFORE, Defendants, Kim C. Raraigh and Cathleen D. Raraigh, respectfully request this Honorable Court to dismiss the Complaint and enter judgment in its favor and against Plaintiffs at no cost to Defendants but together with such costs, expenses and attorneys fees as authorized by law, and which the Court deems just, necessary and appropriate under the circumstances. Date: /21 b 6 Resp u y submitted, By: ?- Je ey . McG re, Esquire to ev I. D. # 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Kim C. Raraigh and Cathleen D. Raraigh Defendants 06481-001/104363 VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: ? 91/6 6 6 CERTIFICATE OF SERVICE AND NOW, this day of 2006, I hereby certify that I have served a copy of the within document on the follo ng by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P. O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS f By: J?,Ok1bIt - LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. CG-3041 i? CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER 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, Pennsylvania 17013 (717) 249-3166 1 J J Marl'in R. McCaleb Attorney for Plaintiff LAW OFFICES MARLIN R. McCALEB IWA DOPY FROM REOORO 11 aS Mony Whe'W, I here unto W"NW. ?+ ft deal d said, jr, jo Caraw. R LEE R. SEITZ and : IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs VS. NO. DL _3011 C,4?d Tz- KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION - LAW COMPLAINT 1. Plaintiffs herein are Lee R. Seitz and Judith A. Seitz, his wife, adult individuals who live and reside at 9 South Washington Street, Borough of Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendants herein are Kim C. Raraigh and Cathleen D. Raraigh, his wife, adult individuals who live and reside at 7 Gordon Drive, Carlisle (North Middleton Township), Cumberland County, Pennsylvania 17013. 3. On or about May 10, 2002, Plaintiffs, as Landlord, and LAW OFFICES MARLIN R. McCALEB Defendants, as Tenant, entered into a written Commercial Lease Agreement ("Lease") providing for Plaintiffs to lease to Defendants, and for Defendants to rent from Plaintiffs, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania ("Leased Premises"), for use as a family restaurant for a term of seven (7) years commencing June 1, 2002, under the terms and conditions therein set forth. A true copy of said Lease is attached hereto and made a part hereof by reference thereto, marked Exhibit "A". 4. Under and by reason of said Lease, Defendants agreed, inter alia, that during the term of said lease: (a) they would pay all real estate taxes assessed against the Leased Premises; and (b) they would use due care in the use of the heating, ventilating and air conditioning systems and they would be responsible and pay for the reasonable maintenance of same; and (c) if litigation was necessary to enforce Defendants' obligations under the said Lease, they would pay the costs and expenses thereof, including reasonable attorney's fees. 5. Defendants thereafter entered into possession of the Leased Premises and altered the interior design of the building thereon by installing interior walls and partitions. 6. The walls and partitions installed by Defendants interfere with the free flow of air from the ductwork of the heating, ventilating and air conditioning systems and reduce the efficiency of those systems. 7. In addition, Defendants failed to properly maintain the heating, ventilating and air conditioning systems by failing to periodically clean and/or replace the air filters, causing them to clog and restrict air flow, to unduly stress those systems and to burn out switches and relays, resulting in premature wear and tear on the components of those systems, so LAW OFFICES II MARLIN R. MCCALEB -2- that the systems do not operate efficiently, they do not adequately provide or distribute warm air in the winter months or cool air in the summer months, and on some occasions they have not operated at all. 8. Plaintiffs believe and therefore aver that it will cost $6,500.00 to correct and repair the problems and defects described in Paragraphs 6 and 7, above, in order to restore the heating, ventilating and air conditioning systems to reasonable, proper and efficient operation. 9. The following real estate taxes have been assessed against the Leased Premises for the following periods, all of which have been paid by Plaintiffs to avoid interest and penalties: 2003: County/Municipal: $323.89 School District: 1,236.59 2004: County/Municipal: 344.90 School District: 1,314.20 2005: County/Municipal: 381.84 School District: 1,490.11 Total: $5,091.53 10. Plaintiffs have demanded payment from Defendants in the amount of $11,591.53, being the total of the amounts set forth in Paragraphs 8 and 9, above, which amount, or any part thereof, Defendants have failed and refused to pay. LAW OFFICES II MARLIN R. MCCALEB -3- e e 11. As the result of their actions or inactions as LAW OFFICES MARLIN R. MCCALFB described in Paragraphs 5, 6 and 7, above, their failure and refusal to pay the real estate taxes as described in Paragraph 9, above, and their failure and refusal to pay as described in Paragraph 10, above, Defendants have breached their obligations under the said Lease as described in Paragraph 4(a) and (b), above. Wherefore, Plaintiffs demand judgment in their favor and against the Defendants herein in the amount of $11,591.53, together with interest thereon and costs and expenses of suit, including reasonable attorney's fees. A04 Marlin R. MidI Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiffs -4- VERIFICATION We, LEE R. SEITZ and JUDITH A. SEITZ, being the Plaintiffs herein, hereby verify that the statements contained in this Complaint are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. / Date: May 25, 2006 Seitz LAW OFFICES II MARLIN R. McCALEB _ r, _ .. COMMERCIAL LEASE AGREEME, NT This Commercial Lease Agreement dated this I D day of May, 2002, between LEE R. SEITZ and JUDITH A. SEITZ, his wife, collectively as Landlord, and IQM RARAIGH and CATHY RARAIGH, his wife, collectively as Tenant 1. LEASED PREMISES. Landlord agrees to let and demise unto Tenant, upon the terms and conditions contained herein, the premises known and numbered as 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania (Leased Premises), as more fully bounded and described as set forth in a certain Lease dated July 31, 1973, by and between Pierson K. Miller and wife and Robert M. Frey and wife, on the one part, and Frank B. Darcey, Jr. and Robert P. Neuhauser, on the other part, which said Lease is entered for record in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Miscellaneous Record Book Volume 208, Page 517, and is incorporated herein by reference thereto. 2. TERM OF LEASE. The term of this Commercial Lease Agreement is seven (7) years, commencing on the 1st of June, 2002, and terminating on the 31st of May, 2009. 3_ RENTALPAYMENT. TenantshallpaytoLandlordthesum$113,400.00asbasic rental for the lease term. Upon the execution of this Commercial Lease Agreement, and prior to the Tenant's taking possession of the Leased Premises, Tenant shall pay to Landlord the sum of $2,7D0.00, representing payment of the first and last months' rent hereunder. Landlord shall hold the last month's rent without obligation of interest to Tenant. The remainder of-the rent shall be payable monthly, in advance, on the first day of each month during the lease term, commencing July 1, 2002, in the amount of $1,3 50.00, without prior demand by Landlord. Payment of rent shall be at the business address of Landlord or, upon notice to Tenant at another location to be designated by Landlord to Tenant. If Tenant shall take possession of the Leased Premises prior to the commencement of the lease term, Tenant shall pay to Landlord the sum of for each such day of possession prior to the commencement of the lease term. `t3 ?'UR5 X? Landlordand Tenantagree that timely payment of the rental and performance of all terms and conditions of this lease agreement is of the essence of this lease agreement If the monthly rental shall not have been paid after the 15th of the month when the rental shall have been due, then Tenant agrees to pay the late charge of $20.00 per day retroactive to the day when the payment was due to compensate Landlord for additional administrative costs, expenses and liquidated damages caused by the late payment. If payment is made to Landlord at the proper address by first class mail, postage prepaid, then the date of the postmark shall be deemed to be the date of payment The time and manner of payment of the rental is subject to the right of Landlord to accelerate the rent and enforce collection of the entire unpaid balance of the rental for the remaining term of the lease if Tenant shall breach the terms or conditions of this Commercial Lease Agreement. 4. SECURITYDEPOSIT. Upon execution of this Commercial Lease Agreement, and prior tothe Tenant's taking possession of the Leased Premises, Tenant shall pay to Landlord a sum equal to one (1) month's rent ($1,350.00), which amount shall be held by Landlord as a security deposit. Such security deposit shall be held by Landlord in an interest-bearing account for the benefit of Tenant and the interest earned thereon shall be accumulated and reported to Tenant's taxpayer identification number and shall be used for the same purposes as the security deposit. As preconditions to the return of the security deposit to Tenant; 1) Tenant shall vacate the Leased Premises and Landlord shall inspect the Leased Premises for damage; 2) Tenant shall have complied with all I ease terms, conditions and rules and regulations; 3) Tenant shall have paid in full the rental, additional rental and late charges if any. Landlord may apply all or any part of the Security Deposit to reimburse Landlord for any and all loss, damage and expense arising from the Tenant's breach of the terms, and conditions, or rules and regulations of this Commercial Lease Agreement or nonpayment of rent, additional rent or late charges, if any. Tenant acknowledges that the Security Deposit is not to be considered to be payment of the last month's rent. S. INABILITY OF LANDLORD TO GIVE POSSESSION. If Landlord is unable to transfer possessionto Tenantupon the commencement ofthis Commercial Lease Agreement, than the leaseterm shall begin, but Tenant's duty to pay rent shall be suspended until Landlord is able to transfer possession to Tenant. Landlord shall not be liable to Tenant for damages if Landlord is unable to transfer possession of the Leased Premises for causes reasonably beyond the control of Landlord. For purposes of this provision, the holding over of the prior tenant suspends the Landlord's duty to transfer possession of the Leased Premises to Tenant. 6. DESTRUCTION OF LEASED PREMISES. Tenantshall notify Landlord as soon as possible of any casualty loss in or about the Leased Premises and Tenant shall notify Landlord immediately of any circumstance or condition in or about the Leased Premises which threatens the Leased Premises, or the property or safety of Tenant, Landlord or others. If the Leased Premises is partially destroyed by fire or other casualty, Tenantshall have the right and option 1) to continue to occupy thehabitable portion of the premises, or 2) to terminate this Commercial Lease Agreement absohrtely and receive all sums prepaid on account of rent through the date of transfer of -- possession to Landlord. Tenant shall not have the option of terminating the lease if the loss was the result of the negligence of Tenant, Tenant's employees or business invitees. 7. INSURANCE. Tenantshall obtain and maintain, at Tenant's expense, public liability insurance with a minimum single limit for personal injury of 51,000,000.00 for any occurrence and of $100,000.00 for property damage for any one occurrence. Such insurance shall name both Tenant and Landlord as insureds, Tenant shall, at Tenant's expense, keep the buildings and improvements on the Leased Premises, as such improvements may exist from time to time, insured for the full replacement value thereof against loss or damage by fire and other perils customarily included under standard "all risk" policies, naming Landlord and Tenant as co-insureds as their interests may appear, with the proceeds of any loss to be payable to Landlord. Landlord shall apply said proceeds to the costs of restoration of the Leased Premises. Tenant, upon request, shall provide Landlord with certificates of insurance in form acceptable to Landlord to the extent of the aforesaid minimum limits and amounts, which certificates shall be subject to cancellation only upon ten (10) days notice to Landlord. - 8. SUBLETTING AND ASSIGNMENTS. Tenant shall not assign this Commercial Lease Agreement or enter into any sublease agreement without the prior written consent of Landlord. Any attempted assignment or sublease by Tenant without the prior written consent of Landlord is null and void and is a breach of the conditions of this Commercial Lease Agreement. If Landlord shall consent to an assignment or sublease, any such consent shall not be deemed to be a consent to any subsequent assignment or sublease. 9. RELIEFOF LANDLORD FROM LIABILITY. Tenant releases Landlord from liability for any personal injury or damage to property of Tenant, Tenant's employees or business invitees not arising from the negligence or intentional acts of Landlord or Landlord's agents or employees. Landlord shall not be liable for any injury or damage caused by water, rain, snow or ice that may leak or flow from. EXHIBIT "A" • . ' 1 y f ' whatever source into or about the Leased Premises or the building within which the Leased Premises is located. 10. USE AND OCCUPANCY OF THE LEASED PREMISES. The Leased Premises may be occupied only for commercial (non-residential) purposes and may be used only as: a family restaurant for the preparation and retail sale of food and food products for consumption on or off the Leased Premises. No other use shall be permitted without the prior consent in writing of Landlord. Tenant shall occupy and use the Leased Premises in conformance with all applicable Federal, State and Local rules, regulations, laws and ordinances now in force or that may be enacted in the future. Tenant shall not store any flammable, hazardous, or toxic substances inconsistentwith the property's intended use as described herein or engage in any activity on or about the Leased Premises which activities or substances expose Tenant, Landlord, or others to a risk of injury, loss or damage. 11. SUBORDINATION.Tlteparbesacknowledgeand agree that this Commercial Lease Agreement is under, subject, and subordinate to any and all mortgages and security interests that presently encumber the property or that in the future may encumber the property of which the Leased Premises is a part. 12. CARE AND MAINTENANCE OF LEASED PREMISES. Tenant shall use due care in the use and occupancy of the Leased Premises and all appliances, furniture (if applicable), fixtures, and all heating, ventilating and air conditioning systems within the Leased Premises. Tenant also shall exercise due care when using any part of the building within which the Leased Premises is located. Tenant shall be responsible and shall pay for the reasonable maintenance of the Leased Premises and for all repairs thereto during the lease term. Upon termination of this Commercial Lease Agreement for any cause, Tenant shall peaceably surrender possession of the Leased Premises and its contents to Landlord in as good order and repair as upon the commencement of the lease term, excepting only reasonable wear and tear. Tenant shall notify Landlord of any repairs or the need for repairs within the Leased Premises. Tenant shall make repairs to the roof necessary to correct the existing leaks. Landlord shall pay to Tenant's contractor up to $ 9,671.00 on account of said repairs. Any costs in excess of said amount shall be paid by Tenant. 13. RIGHT OF ENTRY. Landlord, Landlord's agent and persons authorized by Landlord shall have the right to enterthe Leased Premises at all reasonable times to inspect, perform maintenance, do repairs and show the premises to prospective tenants and purchasers.. 14. UTILITIES AND TABS. Tenant shall pay and be responsible for all utilities and municipal services servicing the Leased Premises, including but not limited to water and sewer rents, electricity, telephone, refuse collection and snow and leafremoval. Tenant shall pay all real estate taxes assessed against the Leased Premises during the term ofthis lease. Real estate taxes for calendar year 2002 and for fiscal year 2001-2002 shall be pro-rated between the parties as of June 1, 2002. Real estate taxes for calendar year 2009 and for fiscal year 2008-2009 shall be pro-rated between the parties as of May 31, 2009. Landlord shall have the right to temporarily suspend any utility or other services to the Leased Premises in order to do maintenance and repair or protect the property of Landlord or Tenant from risk of harm or loss. 15. REMEDIES. The parties acknowledge and agree that time is of the essence and if Tenant shall fail to pay the rental reserved or any other charges when due, or if Tenant shall breach any other term or condition of this Commercial Lease Agreement, which breach is not corrected within fifteen (15) days after written noti ce thereof by Landlord to Tenant, then Landlord shall have the right and option, without notice EXHIBIT "A" of termination or notice to quit, to pursue any or all of the following remedies: a) Termination of lease without prior notice. b) Bring an action in court to recover possession of the Leased Premises without prior Notice to Tenant to Quit the Leased Premises. c) Bring an action to recover the whole balance of the rent and charges due for the unexpired lease term. d) Bring an action for damages caused by Tenant's breach which damages include reasonable attorney's fees and costs. All remedies contained in this Commercial Lease Agreement shall be cumulative and concurrent If Landlord shall pursue any remedy, it shall not be deemed to be a waiver of the right to seek any other remedy that may exist. Either party shall have the right to require strict compliance with the terms and conditions of this Lease Agreement without having insisted upon strict compliance at any time during the term of this Lease Agreement. Any conduct which is inconsistent with the right to insist upon strict compliance shall not be a waiver of the right to insist upon strict compliance in the future, shall not create a custom, and shall not modify the terms and conditions of the Lease Agreement 16. ATTORNEY'S FEES AND COSTS. If Landlord shall enforce the provisions of the Commercial Lease Agreement in any court against the Tenant, Landlord shall be entitled as part of any court judgment to be reimbursed for all costs and expenses of enforcement including reasonable attorney's fees. 17. GOVERNMENTAL POWER OF EMINENT DOMAIN. If all or any part of the Leased Premises (or the building within which the Leased Promises is located) shall be condemned under the government's power of eminent domain, the lease shall terminate as to the portion taken. Landlord shall not be liable to Tenant for any claims by Tenant for loss of use of all or any portion of the Leased Premises (or the building within which the Leased Premises is located) or becausethis Commercial Lease Agreement has been terminated. 18. SALE OF PERSONAL PROPERTY. The parties mutually agree that Landlord shall sell to Tenant, and Tenant shall purchase from Landlord, the following items of personal property, fixtures and equipment: NSF Walk-In, Double Door Freezer/Refrigerator, installed, ready to run; NSF Walk-In Shelving; Digital Dining Computer System; NSF Silver King 28" Refrigerator, Sentry Safe; and Trash Cans. Tenant shall pay to Landlord on or before the execution of this Commercial Lease Agreement, the sum of S 12,975.00, in cash, the receipt of which is hereby acknowledged by Landlord. 19. RENOVATIONS. Tenant may make renovations to the Leased Premises consistent with Tenant's intended use as set forth in Paragraph 10, above. All such renovations shall be the sole responsibility of, and shall be paid by, Tenant. All such renovations shall be subject to the approval of Landlord, which approval shall not be unreasonably withheld. All such renovations shall become the property of Landlord upon the, termination of the lease term, or, at Landlord's option, Tenant shall restore the Leased Premises to the same condition as existing on the date this Commercial Lease Agreement is executed. 20. BINDING EFFECT. This Commercial Lease Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of the parties hereto. Tenant shall not have the EXHIBIT "A" 4 4, f'., right to assign this lease or sublet the Leased Premises without the prior written consent of Landlord. Raraigh J14at y Rara4h La ndlor Lee R Sei Judith A Seitz ?- ! enant. EXHIBIT "A" . ?. . ... ,.. ? ^ r ^Yl 1 .? ?_ i C t %... j _ 4- LEE R. SEITZ and : IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs VS. : NO. 06 - 03041 KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants : CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMEgT BY DEFAULT LAW OFFICES MARLIN R. McCALEB TO THE PROTHONOTARY: Please enter judgment herein in favor of the Plaintiffs and against the Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, for failure to file an Answer or to otherwise plead to the Complaint herein within twenty (20) days after service thereof, in the amount of $11,591.53, as set forth in Plaintiffs' Complaint. Plaintiffs' Complaint was served upon the Defendants on June 8, 2006, and Defendants' response thereto was due to be filed on or before June 28, 2006. I certify that Notice of Intent to Enter Default Judgment, as required by Pa.R.C.P. 237.1, a true copy df which is attached hereto, was mailed to each of the Defendants herein and their attorney of record on July 3, 2006, (at least ten days prior hereto) by ordinary United States mail, postage prepaid. Date: July 17, 2006 L? Marlin R. McCaleb Attorney for Plaintiffs AND NOW, July 17, 2006, judgment is hereby entered in favor of the Plaintiffs, Lee R. Seitz and Judith A. Seitz, his wife, and against the Defendants, Kim C. Raraigh and Cathleen D. Raraigh, his wife, in the amount of $11,591.53, as above. Pro of y LEE R. SEITZ and : IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs VS. : NO. 06 - 03041 KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION - LAW To: Kim C. Raraigh, Defendant 7 Gordon Drive Carlisle, Pennsylvania 17013 Cathleen D. Raraigh, Defendant 7 Gordon Drive Carlilse, PA 17013 Jeffrey T. McGuire, Esquire Attorney for Defendants CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 Date of Notice: July 3, 2006 IMPORTANT NOTICE LAW OFFICES AARLIN R. MCCALEB YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS' AT A REDUCED FEE OR NO FEE: I, . . CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 x,4 414? Marlinleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiff 0 LAW OFFICES II MARLIN R. McCALEB _ 2 _ S ? ?- ] ?i T? ? C <T ??./ [ ?. ? '? ? ', ? ? ? ? U r _ ?' ? ?` - ?_ ? ? (?? it -?{ m ?' LEE R. SEITZ and : IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PENNSYLVANIA wife, Plaintiffs VS. NO. 06 - 03041 KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION - LAW CERTIFICATE OF RESIbENCE TO THE PROTHONOTARY: I hereby certify that the residence and post office address of the Defendants herein, KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, and each of them, is: 7 Gordon Drive Carlisle, PA 17013 Date: July 17, 2006 M rlin R. McCaleb Attorney for Plaintiffs ' LAW OFFICES MARLIN R. McCALEB r7 ^S ?- ,s .?_ ___.. 7?l _?. 1f,1 e-, 01 LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-03041 CIVIL ACTION LAW PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification for the Attorney Verification with regard to the Joinder Complaint of Defendants. & KEARNS M uire, Esquire o ey I. . No. 73617 63 North Front Street Harrisburg, PA 17110 (717) 232-7661 Date 7 *00 LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-03041 CIVIL ACTION LAW CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this day of 2006, on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: ti VERIFICATION The undersigned hereby verify that the facts set forth in the foregoing document are true and correct to the best of their knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Dated: 7 -? YJ? C.• r7 Kim C. Raraigh Dated: ZCathleen D. Raraigh r_., ' c;, ` ? ? < ., __ ?,- ,_ti r I LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-03041 CIVIL ACTION LAW PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification for the Attorney Verification with regard to Defendants' Answer with New Matter. & KEARNS Date d 6 I Jn. No. 73617 63 ort h Front Street Harrisburg, PA 17110 (717) 232-7661 LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-03041 VS. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants CIVIL ACTION LAW CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this day of 2006, on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Martin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: VERIFICATION The undersigned hereby verify that the facts set forth in the foregoing document are true and correct to the best of their knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unworn falsification to authorities. Dated: 7-11- 06 Kim C. Raraigh Dated: / / D CP Cathleen D. Raraigh 6 T LEE R. SEITZ and IN THE COURT OF COMMON PLEAS OF JUDITH A. SEITZ, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. ORDER OF COURT AND NOW, this 31sT day of JULY, 2006, a Rule is issued upon Plaintiffs to KIM C. RARAIGH and NO. 2006 - 3041 CIVIL TERM CATHLEEN D. RARAIGH, Defendants Show Cause why the Petition to Open Default Judgment should not be granted. Rule returnable ten (10) days after service. Court, Od-atlin R. McCaleb, Esquire For the Plaintiffs effrey T. McGuire, Esquire For the Defendants Ad Edward E. Guido, J. J DID nF 1 tr I,k • -? j'? _.. •?, LEE R. SEITZ and : IN THE COURT OF COMMON JUDITH A. SEITZ, his : CUMBERLAND COUNTY, PEN wife, Plaintiffs VS. NO. 06-3041 CIVIL TERM KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants VS. LUIGI AREANA, Additional Defendant CIVIL ACTION - LAW PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER AND NOW come the Plaintiffs, Lee R. Seitz and Judi Seitz, his wife, by and through their attorney, Marlin McCaleb, Esquire, and Reply to Defendants' New Matter follows: 12. The averments of Paragraphs 1 through 11 of LAW OFFICES MARLIN R. McCALEB Plaintiffs' Complaint are incorporated herein and made hereof by reference thereto. 13. Admitted, for the reasons set forth in 16, 17, 21, 22 and 26, below, the averments of which incorporated herein and made a part hereof by reference thereto. 14. Admitted, for the reasons set forth in Paragx below, the averments of which are incorporated and made hereof by reference thereto. 15. Admitted. Plaintiffs have accepted said rent OF A. part 15, kph 16, a part in mitigation of the damages for which Defendants would otherwise be responsible under the Lease. 16. Admitted, but Defendants' permission was not required. Defendants assigned all of their rights unde the Lease, including the right of possession, to Lee Woodal Stadium 54, Ltd. ("Woodall") on or about July 7, 2003. Woodall thereafter subleased the premises to Luigi Areana on or about April, 2004, without the knowledge or consent of Plaint ffs. 17. Denied as stated for the reasons set forth in Paragraph 16, above, the averments of which are incorpo ated herein and made a part hereof by reference thereto. 18. Admitted, but Defendants assigned their right in and to the security deposit and last month's rent to Woodal on or about July 7, 2003. 19. Admitted. 20. The averments of Paragraph 20 set forth a leg 1 conclusion to which no responsive pleading is required. By way of further Reply, the averments of Paragraph 20 are denied for the reasons set forth in Paragraphs 16 and 18, above, t e averments of which are incorporated herein and made a part hereof by reference thereto. 21. The averments of Paragraph 21 set forth a lega conclusion to which no responsive pleading is required. By way of further Reply, the averments of Paragraph 21 are deni d for the reasons set forth in Paragraphs 15, 16, 17 and 18, a ove, LAW OFFICES MARLIN R. McCALEB _2_ I s__ the averments of which are incorporated herein and made a part hereof by reference thereto. 22. The averments of Paragraph 22 set forth a conclusion to which no responsive pleading is required. of further Reply, Luigi Areana's occupancy of the premi and/or payment of rent is irrelevant to Plaintiffs' cau action against Defendants for the reasons set forth in Paragraphs 15, 16, 17 and 18, above, the averments of w incorporated herein and made a part hereof by reference thereto. 23. The averments of Paragraph 23 set forth a conclusion to which no responsive pleading is required of further Reply, the averments of Paragraph 23 are the reasons set forth in Paragraphs 15, 16, 17, 18 and ?2, above, the averments of which are incorporated herein a part hereof by reference thereto. 24. The averments of Paragraph 24 set forth a 1 conclusion to which no responsive pleading is required of further Reply, there was no accord and satisfaction. 25. The averments of Paragraph 25 set forth a I LAW OFFICES MARLIN R. McCALEB conclusion to which no responsive pleading is required.', of further Reply, there was no waiver and/or estoppel. 26. The averments of Paragraph 26 set forth a legal conclusion to which no responsive pleading is required. 1 By way es e of ich are By way for made By way By way By way of further Reply, the averments of Paragraph 26 are denied for -3- 4._ _. the reasons set forth in Paragraphs 15, 16, 17, 18, 22 and 23, above, the averments of which are incorporated herein and made a part hereof by reference thereto. 27. The averments of Paragraph 27 set forth a legal conclusion to which no responsive pleading is required. 28. The averments of Paragraph 28 set forth a legal conclusion to which no responsive pleading is required. By way of further Reply, there was no release. WHEREFORE, Plaintiffs demand judgment in their favor and against the Defendants herein in the amount of $11,591.53, together with interest thereon and costs and expenses of suit, including reasonable attorney's fees, as stated in Plaintiffs' Complaint. Marlin taleb 30- Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiffs LAW OFFICES II MARLIN R. MCCALEB -4- I %-- f VERIFICATION I, LEE R. SEITZ, being one of the Plaintiffs herein, LAW OFFICES MARLIN R. McCALEB hereby verify that the statements contained in this Plaintiffs' Reply to Defendants' New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, to authorities. Date: August 2' , 2006 relating to unsworn falsification Lee R. Seitz -5- 4.. 0 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Plaintiffs' Reply to Defendants' New Matter was served upon the other parties in interest herein or their attorneys, on August _J, 2006, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Jeffrey T. McGuire, Esquire Attorney for Defendants Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 Harold S. Irwin, III, Esquire Attorney for Additional Defendant 64 South Pitt Street Carlisle, PA 17013 Luigi Areana Additional Defendant 1968 Spring Road Carlisle, PA 17013 Marlin R. McCaleb LAW OFFICES MARLIN R. McCALEB o HAROLD S. IRINK, III, ESQUIRE ATTORNEY IS NO. 29920 s1 SOUTH PITT STREET CARLISLE PA 17013 (717) 243 MO ATTORNEY FOR DEFENDANT LEE R. SEITZ and JUDITH A. SEITZi PlalntMfs Va. KIM C. RARAIOH and CATHLEEN D. RARAIOHv Defendants Va. LUIOI ARENAy Additional Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2006 - 3041 CIVIL TERM NOTICE TO PLEAD TO: LEE R. SEITZ and JUDITH A. SEITZ, plaintiffs, and their attorney, MARLIN R. McCALEB, ESQ., and KIM C. RARAIGH and CATHLEEN D. RARAIGH, defendants, and their attorneys, CALDWELL & KEARNS, ESQS.: You are hereby notified to plead to the within New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. NOTICE TO PLAINTIFF 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 counterclaim 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 mat be entered against you by the court without further notice for any money claimed in the counterclaim or for any other claim or relief requested by the joinder defendant. 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, Pennsylvania 17013 Telephone (717) 243-3166 LEE R. SEITZ and JUDITH A. SEITZ9 Plaintiffs Va. KIM C. RARAIOH and CATHLEEN D. RARAIOH9 Defendants Vs. LUIOI ARENA, Additional Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTYp PENNSYLVANIA CIVIL ACTION - LAW NO. 2006 - 5041 CIVIL TERM ANSWER OF ADDITIONAL DEFENDANT TO DEFENDANTS JOINDER COMPLAINT NOW, comes the additional defendant, Luigi Arena, by his attorney, Harold S. Irwin, III, Esquire, and responds to defendants Kim C. Raraigh and Cathleen D. Raraigh's joinder complaint, representing as follows: 1. The averments of this paragraph of defendants' joinder complaint are admitted. 2. The averments of paragraph one of defendants' joinder complaint are admitted in part and denied in part. It is denied that the additional defendant is Luigi Areana. On the contrary, the additional defendant's name is Luigi Arena. The remaining averments of this paragraph are admitted. (NOTE: throughout the joinder complaint, additional defendant, Luigi Arena, is variously identified as Luigi Areana and Luidi Areana. Without mentioning this misidentification each time it occurs in the joinder complaint, additional defendant is properly identified as Luigi Arena.) 3. The averments of this paragraph of defendants' joinder complaint are admitted. 4. The averments of this paragraph of defendants' joinder complaint are admitted. 5. The averments of this paragraph of defendants' joinder complaint are admitted. 6. The averments of this paragraph of defendants' joinder complaint are admitted. 7. The averments of this paragraph of defendants' joinder complaint are admitted in part and denied in part. It is admitted that defendants did not give their express, written permission to the additional defendant to occupy the premises which are the subject of this action. However, additional defendant believes and therefor avers that defendants were specifically aware of additional defendant's occupation of the premises and have continued to be aware thereof for over two years and have taken no action thereon. By way of further response, defendants did assign all their right, title and interest in the lease for said premises to Lee A. Woodall on July 7, 2003 (see Exhibit "A", incorporated herein and attached hereto), who subsequently sold his business to the additional defendant and assigned his interest in the lease to additional defendant. 8. The averments of this paragraph of defendants' joinder complaint are denied by reason that after reasonable investigation, additional defendant is without knowledge sufficient to form a belief therein and proof thereof at trial is demanded, if relevant. By way of further response, however, additional defendant believes and therefor avers that defendants were specifically aware of additional defendant's occupation of the premises and have continued to be aware thereof for over two years and have taken no action thereon. 9. The averments of this paragraph of defendants' joinder complaint are denied by reason that after reasonable investigation, additional defendant is without knowledge sufficient to form a belief therein and proof thereof at trial is demanded, if relevant. By way of further response, said averments are conclusions of law to which no response is required. However, if a response is required, additional defendant specifically denies that he has any liability to plaintiff or to defendant in that he has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. 10. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, additional defendant specifically denies that he has any liability to plaintiff or to defendant in that he has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. 11. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, additional defendant specifically denies that he has been unjustly enriched. On the contrary, additional defendant has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. Furthermore, as is enumerated below in additional defendant new matter and counterclaim, additional defendant has suffered damages as the result of the plaintiffs' failure to properly maintain the premises. 12. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, additional defendant specifically denies that plaintiff has suffered any harm as the result of additional defendant's occupation of the premises. On the contrary, additional defendant has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. Furthermore, as is enumerated below in additional defendant new matter and counterclaim, additional defendant has suffered damages as the result of the plaintiffs' failure to properly maintain the premises. WHEREFORE additional defendant demands that the joinder complaint against him be dismissed. ADDITIONAL DEFENDANTS ANSWER TO DEFENDANTS NEW MATTER 13. Additional defendant incorporates by reference his responses to defendant's joinder complaint, paragraphs one through twelve inclusive, as fully as if set forth herein at length. 14. The averments of this paragraph of defendants' joinder complaint are admitted. By way of further response, additional defendant believes and therefor avers that no claims were filed by the plaintiff against the defendant because additional defendant has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. 15. The averments of this paragraph of defendants' joinder complaint are admitted. By way of further response, additional defendant has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. 16. The averments of this paragraph of defendants' joinder complaint are admitted.. 17. The averments of this paragraph of defendants' joinder complaint are denied by reason that after reasonable investigation, additional defendant is without knowledge sufficient to form a belief therein and proof thereof at trial is demanded, if relevant. By way of further response, defendants have given tacit approval in that that did assign all their right, title and interest in the lease to Lee A. Woodall and additional defendants believe and therefor aver that they were aware of additional defendant's occupation of the premises at the time thereof and have continued to be aware thereof with no objection. 18. The averments of this paragraph of defendants' joinder complaint are denied by reason that after reasonable investigation, additional defendant is without knowledge sufficient to form a belief therein and proof thereof at trial is demanded, if relevant. By way of further response, defendants have given tacit approval in that that did assign all their right, title and interest in the lease to Lee A. Woodall and additional defendants believe and therefor aver that they were aware of additional defendant's occupation of the premises at the time thereof and have continued to be aware thereof with no objection. 19. The averments of this paragraph of defendants' joinder complaint are specifically denied. On the contrary, when defendants assigned all their right, title and interest in the lease to Lee A. Woodall, they also assigned their interest in the security deposit and last month's rent to Lee A. Woodall (see Exhibit "A", incorporated herein and attached hereto). 20. The averments of this paragraph of defendants' joinder complaint are admitted. 21. The averments of this paragraph of defendants' joinder complaint are specifically denied. On the contrary, when defendants assigned all their right, title and interest in the lease to Lee A. Woodall, they also assigned their interest in the security deposit and last month's rent to Lee A. Woodall (see Exhibit "A", incorporated herein and attached hereto). At the time of Lee A. Woodall's assignment of all his right, title and interest in the business, such assignment also included his interest in the security deposit and last month's rent. Accordingly, the additional defendant is entitled to such funds, plus any interest which said account shall have or should have earned. 22. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, said averments are denied. On the contrary, defendants assigned all their right, title and interest in said lease to Lee A. Woodall, who has since assigned his interests to additional defendant. 23. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, those averments are denied. On the contrary, additional defendant has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. Furthermore, as is enumerated below in additional defendant new matter and counterclaim, additional defendant has suffered damages as the result of the plaintiffs' failure to properly maintain the premises. 24. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. However, if a response is required, additional defendant specifically denies that he has any liability to plaintiff or to defendant in that he has continued to honor all provisions of the lease as known to him at the time he occupied the premises and plaintiff has continued to accept said lease payments each month with no objection. 25. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. 26. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. 27. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. 28. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required. 29. The averments of this paragraph of defendants' joinder complaint are conclusions of law to which no response is required WHEREFORE additional defendant demands that the joinder complaint against him be dismissed. ADDITIONAL DEFENDANTS NEW MATTER TO DEFENDANTS' JOINDER COMPLAINT 30. Additional defendant incorporates by reference his responses to defendant's joinder complaint, paragraphs one through twelve inclusive, and his answers to defendants' new matter, paragraphs fourteen through twenty-nine inclusive, as fully as if set forth herein at length. 31. On July 7, 2003, defendants assigned all their right, title and interest in the lease for the subject premises to Lee A. Woodall. A copy of the Assignment of Commercial Lease Agreement is incorporated herein by reference and attached hereto as Exhibit ..A„ 32. The plaintiffs acknowledged, accepted and approved this assignment by defendants by execution of the assignment agreement on or about July 2, 2003. 33. Along with the assignment to Woodall of all their right, title and interest in the lease, defendants also assigned to Woodall their interest in the security deposit and last month's rent in the total amount of $2,700.00. 34. The foregoing assignment expressly did not relieve defendants of any responsibilities, obligations or duties as set forth in the lease from plaintiffs to defendants. 35. Defendants have failed to join an indispensable party in this matter by failing to join Lee A. Woodall, to whom they assigned all their right, title and interest in the lease as aforesaid, and who was primarily responsible for all of the lessees' obligations from July 2, 2003 through at least April, 2004 and subsequent to April, 2004, continued to be responsible for the payment of all financial obligations of the lessees beyond the payment of basic rent of $1,350.00 per month. 36. Additional defendant, Luigi Arena, took over responsibility for the payment of rent to plaintiffs as of May 1, 2004. In addition, plaintiff would not permit additional defendant to take possession of the premises until he paid approximately $1,500 in additional rent and late fees incurred by the former occupant, Lee A. Woodall. 37. Additional defendant has paid rent to plaintiffs each and every month since May 1, 2004. Said rent has been accepted by plaintiffs, who have made no claim or demand upon joinder defendant for any other amount. 38. Both plaintiffs and defendants have been aware of the occupation of the premises by additional defendant since on or about May 1, 2004, have made no objection thereto and have never formally demanded of additional defendant that he execute a new lease or comply with any other terms other than the payment of $1,350.00 per month rental payments. 39. Additional defendant has offered to pay additional rent to plaintiffs, provided plaintiffs install a properly functioning HVAC unit and make improvements to the parking lot. 40. To date, plaintiffs have refused and neglected to provide such improvements and the failure to do so has resulted in damages to the additional defendant in various amounts as described in the counterclaim below. ADDITIONAL DEFENDANT'S COUNTERCLAIM AGAINST PLAINTIFF 41. Additional defendant incorporates by reference his responses to defendant's joinder complaint, paragraphs one through twelve inclusive, his answers to defendants' new matter, paragraphs fourteen through twenty-nine inclusive, and the averments of his new matter, paragraphs thirty-one through forty, inclusive, as fully as if set forth herein at length. 42. Along with the assignment to Woodall of all their right, title and interest in the lease, defendants also assigned to Woodall their interest in the security deposit and last month's rent in the total amount of $2,700.00. In addition, plaintiff would not permit additional defendant to take possession of the premises until he paid approximately $1,500 in additional rent and late fees incurred by the former occupant, Lee A. Woodall. 43. Woodall assigned all his right, title and interest in the lease to the additional defendant by his agreement of sale dated February 24, 2004, a copy of which is incorporated herein by reference and attached hereto as Exhibit "B". 44. Additional defendant has experienced a multitude of instances in which the HVAC unit on the roof of the premises has failed. 45. Additional defendant has advised plaintiffs that the HVAC unit is inadequate for the premises, that it cannot be properly maintained any longer, that it must be replaced and have requested numerous times that plaintiffs replace said unit. 46. Additional defendants have also requested that the plaintiffs make repairs to the parking lot which is in serious disrepair. 47. Plaintiffs have refused and continue so to refuse to replace the HVAC unit or to make any repairs to the parking lot. 48. Most recently, during the week of July 30, 2006, additional defendant had to close down his business for a three day period due to the failure of the HVAC unit. 49. In addition, in order to minimize his damages, additional defendant installed at his own cost and expense an individual air conditioning unit in the premises so that they could re-open for business. 50. The closure of his business for three days and the costs of maintenance and installation of the new air conditioning unit resulted in damages to additional defendant of at least $5,000, for which he makes claim. WHEREFORE additional defendant demands that the joinder complaint against him be dismissed and that judgment be entered against the plaintiff for the security deposit and last month's rent in the amount of $2,700, plus interest, the $1,500 rent and late charges paid by the additional defendant for time during which the former occupant was responsible, plus the amount of $5,000 in damages, as enumerated above and such other relief as the Court may deem appropriate. August 15, 2006 HAROLD S. IRWIN, VERIFICATION I hereby state that the facts and information set forth in the foregoing Answer, New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. August ? , 2006 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing answer, new matter and counterclaim was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: MARLIN R McCALEB ESQ PO BOX 230 MECHANICSBURG PA 17055 Attorney for Defendants JEFFREY T McGUIRE ESQ CALDWELL & KEARNS 3631 N FRONT ST HARRISBURG PA 17110 Attorney for Plaintiffs August .t , 2006 HAROLD S. IRWIN, 111 Attorney for Joinder 1 64 South Pitt Street Carlisle, Pennsylvania 17013 (717) 243-6090 Supreme Court ID No. 29920 EXHIBIT "A" ASSIGNMENT OF COMMERCIAL LEASE AGREEMENT This Assignment entered into the day and year hereinafter set forth by and between Lee Woodall Stadium 54, Ltd. (hereinafter referred to as "Woodall'), and Kim and Cathleen Raraigh (hereinafter referred to as "Raraighs"). WHEREAS, Raraighs are named signators to a Commercial Lease dated May 10, 2002, being the Tenant named therein, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A"; WHEREAS, Woodall wishes to lease the said premises under the same terms as set forth in the aforesaid Lease Agreement. NOW THEREFORE, the parties hereto, based upon their mutual covenants, agreements, and promises, stipulate and agree as follows: 1. Raraighs hereby assign all of, their rights, interests, and benefits under the Commercial Lease dated May 10, 2002, to Woodall. 2. Woodall hereby assumes each and every responsibility, duty, and obligation of Raraighs set forth in the Commercial Lease dated May 10, 2002. 3. This Assignment of Lease made by Raraighs, and assumption of responsibilities by Woodall, is not intended to relief Raraighs of any responsibilities, obligations or duties as set forth in the Commercial Lease Agreement dated May 10, 2002, with respect to their obligations to the landlords named therein, Lee R. Seitz and Judith A. Seitz (hereinafter referred to as "Seitz"). 4. As it is anticipated that final settlement on the sale of the business known as The Village Kettle located at 1968 Spring Road, North Middleton Township, Cumberland County, Pennsylvania from Raraigh to Woodall shall take place during the month of June 2003, and Woodall's obligation hereinunder shall begin with any and all obligations due as of July 1, 2003. 5. Raraigh hereby specifically assign to Woodall the security deposit paid by them to Seitz in the amount of $1,350.00, as well as the prepayment of the last month's rent under the Commercial Lease, again being in the sum of $1,350.00. 6. By executing this document, Seitz acknowledge their receipt and review of the within Assignment and further acknowledge that they will accept payments from Woodall to be applied towards the obligations under the Commercial Lease Agreement dated May 10, 2002. However, Seitz has not, through the execution of this Agreement, released Raraigh from any of their responsibilities to meet these obligations as set forth in the aforesaid Commercial Lease Agreement. 7. This Assignment is being accepted and approved by Seitz pursuant to paragraph 8 of the aforementioned Commercial Lease Agreement. 8. At the time of execution of this Assignment, Seitz and Raraighs aclmowledge that both parties are in compliance with all aspects of the Commercial Lease Agreement relevant at the time of signing. IN WITNESS WHEREOF, the parties hereto have set forth their hand and seals the day and year hereinafter written. rL Date ? Ls Date 40- EXHIBIT "B" February 24, 2004 Lee A. Woodall 21 West Mulberry Hill Rd Carlisle PA 17013 Agreement of sale: DEPOSITION EXHmrr This is an agreement of sale to Luigi and Lee Woodall. This is the sale of Lee Woodall's Village Kettle. Lee Woodall will still be involved until the full payment is completed. Luigi will be able to operate his business out of the Village Kettle and Lee Woodall will act as owner until Luigi's debt is satisfied. Upon signing this Luigi will immediately be able to begin business in the restaurant. Lee Woodall will make sure all bills are paid up to date aipd then Luigi will take over all bills that will appear in Lee Woodall's-name until they are transferred in Luigi's name. Lee Woodall will change the lease over to Luigi when the debt is fully satisfied and will set the right channels so that the transaction is smooth and clear. Luigi. will pay $130,000 dollars to Lee Woodall for the village kettle and will start with a dow nt of $50,000 dollars and the rest to be paid within a i JETS-zed or to be paid off at anytime the remainder equaling $80,000 dollars. Mr. Woodall is responsible to pay off his loan with the bank.and Luigi is not responsible for that. Luigi will claim all taxes on the property, which is included in the rent of $1,350. The restaurant will change names and Mr. Woodall will make sure that the proper channels are done and will take on the expense for doing so. This agreement is in effect upon the receipt of the initial deposit. Luigi also will allow Lee Woodall a week to pay all outstanding bills for the restaurant so that it is properly functioning for Luigi. Luigi will not have any rent payments due until May 1, 2004. 'r.m f/T 4 " o Rx ?-'? ?' r . G7 f1l Ln ? : V C7 , I O ` c ) c rn `? to cn w Jeffrey T. McGuire, Esquire Attorney I.D. No. 73617 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232 -7661 (717) 232 - 2766 (fax) Attorney for Kim C. Raraigh and Kathleen D. Raraigh LEE R. SEITZ and JUDITH A. SEITZ, IN THE COURT OF COMMON PLEAS his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-03041 VS. KIM C. RARAIGH and CATHLEEN D. CIVIL ACTION LAW RARAIGH, his wife, Defendants PETITION TO MAKE RULE ABSOLUTE AND NOW, come Defendants, Kim C. Raraigh and Cathleen D. Raraigh, by Jeffrey T. McGuire, Esquire, their attorney, and file this Petition to Make Rule Absolute as follows: 1. On July 24, 2006, Defendants filed a Petition under Pa.R.C.P. No. 237.3 to Open Default Judgment. 2. On July 31, 2006, this Honorable Court issued a Rule to Show Cause as to why the relief requested should not be granted. The Rule was returnable from twenty (20) days of service by Defendant's counsel. 3. On August 3, 2006, Defendant's counsel served Plaintiff's counsel the Rule to Show Cause via first class mail. A true and correct copy of the letter to Plaintiff's counsel is attached hereto as Exhibit "A". 4. Plaintiff has not filed a response to Defendant's Petition. 5. Plaintiff has filed a reply to Defendant's New Matter. 6. Plaintiff agrees to the opening of the Default Judgment. WHEREFORE, it is respectfully requested this Honorable Court make the Rule absolute and open the Default Judgment. DATED: August / 9 , 2006 Respectfully submitted, CALD By: McGuire, Esquire ELL & KEARNS I.D. #73617 06481/105377 2 3631 North Front Street Harrisburg, PA 17110 (717) 232 -7661 (717) 232 - 2766 (fax) Attorney for Kim C. Raraigh and Cathleen D. Raraigh VERIFICATION I, Jeffrey T. McGuire, Esquire, Attorney for Defendants, Kim C. Raraigh and Cathleen D. Raraigh, who is authorized to make this Verification on Defendant's behalf, verifies that the information contained in the foregoing document is true and correct to the best of my information, knowledge and belief.. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: U g Exhi bi+ JAMES R. CLIPPINGER CHARLES J. DEHART. 111 JAMES D. CAMPBELL. JR. JAMES L. GOLDSMITH P. DANIEL ALTLAND JEFFREY T. MCGUIRE- STANLEY J. A. LASKOWSKI DOUGLAS K. MARSICO BRETT M. WOODBURN RAY J. MICHALOWSKI DOUGLAS L. CASSEL 'BOARD CERTIFIED CIVIL TRIAL ADVOCATE CALDWELL & KEARNS A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3631 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA 17110-1533 August 3, 2006 Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 RE: Lee R. Seitz and Judith A. Seitz V. Kim C. Raraigh and Cathleen D. Raraigh Cumberland County No. 2006-3041 Civil Term Dear Mr. McCaleb: OF COUNSEL RICHARD L. KEARNS CARL G. WASS THOMAS D. CALDWELL. JR. 11928 - 20011 717-232-7661 FAX: 717-232-2766 thefirm0caldwellkeams.com Enclosed please find a copy of Judge Guido's Order dated July 31, 2006, issued in reference to the above-captioned matter. Very truly yours, re . M ui , Caldwell & Kearns JTM/se Enc. cc: Kim and Cathleen Raraigh 06481/104843 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this L ?day of August, 2006, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 CALDWELL & KEARNS By: Lo' G? F G?.' N (V D9 . e 21 F ECEIVED UG 2 $ 2UUb LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiff vs. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-0304] CIVIL ACTION LAW ORDER AND NOW, this ?Z day of Q Nom, 2006 upon consideration of Defendant's Petition to Open Default Judgment and Plaintiffs answer thereto, it is hereby ORDERED that the default judgment entered agains J. 0 Ano IZ.3 Wd ROR9001 A'dlL() Iv iLO;:d 3H130 d3LaL-0111i SHERIFF'S RETURN - REGULAR e ? CASE NO: 2006-03041 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEITZ LEE R ET AL VS RARAIGH KIM C ET AL DOUGLAS RUZANSKI , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon RARAIGH KIM C the DEFENDANT , at 1528:00 HOURS, on the 8th day of June 2006 at 7 GORDON DRIVE CARLISLE, PA 17013 by handing to CATHLEEN D RARAIGH, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 ? Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 32.79,/ 06/12/2006 (L 11111pl, MARLIN MCCALEB Sworn and Subsci bed to By: ; before me this day Depu S iff of A.D. SHERIFF'S RETURN - REGULAR c ? CASE NO: 2006-03041 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEITZ LEE R ET AL VS RARAIGH KIM C ET AL DOUGLAS RUZANSKI , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PAPATMT CA`T' TT RRN D the DEFENDANT , at 1528:00 HOURS, on the 8th day of June , 2006 at 7 GORDON DRIVE CARLISLE, PA 17013 by handing to CATHLEEN D RARIGH a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 4- Sworn and Subscibed to before me this of So Answers: 6.00 .00 00 10.00 R. Thomas Kline .00 16.00-/ 06/12/2006 ry11,11b' MARLIN MCCALEB By. day De-pr-- S iff A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-03041 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEITZ LEE R ET AL VS RARAIGH KIM C ET AL JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT JOINING ADDL was served upon AREANA LUIGI the ADD'TL DEFEND. , at 1500:00 HOURS, on the 9th day of August 2006 at 1968 SPRING ROAD CARLISLE, PA 17013 by handing to LUIGI AREANA a true and attested copy of COMPLAINT JOINING ADDL together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing Service 18.00 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 32.79./ 08/10/2006 - CALDWELL KEARNS Sworn and Subscibed to By: before me this day put heriff of A.D. LEE R. SEITZ and JUDITH A. SEITZ, his wife, Plaintiffs V. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants V. LUIGI ARENA, Additional Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3041 CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR WITHDRAWAL AND ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw my appearance on behalf of Lee R. Seitz and Judith A. Seitz, his wife, the Plaintiffs in this matter. Thank you. Date: October 25, 2007 Marlin R. McCaleb, Esquire Supreme Court I.D. #06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 Please enter my appearance on behalf of Lee R. Seitz and Judith A. Seitz, his wife, the Plaintiffs in this matter. Thank you. Date: !L - 11 4urAemckley, quire e Court I.D. 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 C-2 P O - N i . '1 LEE R. SEITZ and JUDITH A. SEITZ, his wife Plaintiffs V. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants V. LUIGI ARENA, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3041 CIVIL TERM C ° Mr m X CIVIL ACTION - LAW CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Praecipe was served via first class mail, postage prepaid, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 Harold S. Irwin, III Irwin Law Office 64 S. Pitt Street Carlisle, PA 17013 Date: I , zth1Y ca tv Attorney for Plaintitts Supreme Court I.D.# 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 C Av ?° Q M co rT -r7 t L J 5m .- I LEE R. SEITZ and JUDITH A. SEITZ, his wife Plaintiffs V. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants V. LUIGI ARENA, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3041 CIVIL TERM : CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE JUDGES OF SAID COURT: Joseph D. Buckley, Esquire, counsel for the plaintiffs, Lee R. Sietz and Judith A. Seitz, his wife, in the above action, respectfully represents that: 1. The above captioned action is at issue. 2. The claim of the plaintiff in the action is $47,500.00, plus costs of this action and reasonable attorney's fees per the agreement. 3. The claim of the defendant in the action is unknown, but believed to be a partial contribution from the additional defendant. 4. The claim of additional defendant is unknown. The following attorney is interested in the case or is otherwise disqualified to sit as arbitrator: Marlin R. McCaleb. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, Z - Z 2- ZOa-e/ e h D. uckley, Esquire Att ey for the Plaintiffs CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing Praecipe was served via first class mail, postage prepaid, addressed as follows: Jeffrey T. McGuire, Esquire Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 Harold S. Irwin, III Irwin Law Office 64 S. Pitt Street Carlisle, PA 17013 Date: / Z-zi_Ug Attorney for Plaintiffs Supreme Court I.D.# 38444 1237 Holly Pike Carlisle, PA 17013 (717) 249-2448 ,?.,, ? ?`= PJ ... ?? _ ? {?. t ?{7 ?'" ? ,,,, J ?. ?. ,.X t ? y t j l% AI 1 LEE R. SEITZ and JUDITH A. SEITZ, his wife Plaintiffs V. KIM C. RARAIGH and CATHLEEN D. RARAIGH, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-3041 CIVIL TERM v. LUIGI ARENA, Additional Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW,nn 31 , 2008, in consideration of the foregoing petition, Esquire, L(?. Esquire, and Esquire, are appointed arbitrators in the above captioned action as pr ed for. By the Court, P.J. c C-) N u ' r li? O r C? K In The Court of Common Pleas of Cumberland Plaintiff County, Pennsylvania No. - 3v& Z?I Defendant Civil Action - Law. o(, - 30q I Oath We do solemnly swear (or ) at wetwill support, obey and defend tl a Constitution of the United States and the Constitution of this Commonwealth and that we will disc*ge the duties of our office with fidelity. I I e Signature 4- I?gna e I L, a DAV D 0J, l??r6-&1, iq/a- /j, Name (Chairman) Name ;Name Ill ZS- (77c7'K" Z 3- 2-0`7 71 '7 `7 Imo -NOLJ?A C, Law Firm Law Firm ? i?Q.fccrlo ?- ?vista? I.LC Law Firm f U Z. 3 3 i ?V 4C.5- I /r laprysuc 3/ Address Address Address Q A-MC' 4-1 LL City-?` Zip City, Zip 7v r 'City, zip ? * ISa55 # )0109 I Award We, the undersigned arbitrators, having been duly appointed and sworn (off affirtned), make the following award: (Note: If damages for delay are awarded, the s4l be separately stated.) -:Z0 a9 Date of Hearing: i=-4eLj , I It 2 00r7 Date of Award:-Ma-a, gt q . Arbitrator, dissots. (Insert name if applicable T (Chairman) 7 CA ?-j Su Jot- i cy Notice A I of Entry of Award Now, the 13* day of -) 20_01 at 8 :07 A .M., the above award was entered upon the docket and notice thereof given by mail to the parties or tlleir attorneys, Arbitrators' compensation to be paid upon appeal: $ Wo. 00 ?I,t?,WLA By: Prothonotary Deputy sA rA.fi ??44'?' CA