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Home My WebLink About06-4890 WENDY LYNN KIRK D/B/A CHASE ALEXANDRA BOUTIQUE, Plaintiff VS. DAVID J. BECKER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Itv. ot... Lj ~ q 0 ~ T Q..<.- CIVIL ACTION-LAW IN EJECTMENT PLAINTIFF'S PETITION FOR EMERGENCY INJUNCTION AND NOW, this 21st day of August 2006 comes the Plaintiff, WENDY LYNN KIRK, D/B/A CHASE ALEXANDRA BOUTIQUE, by and through her undersigned attorneys, MCSHANE & HITCHINGS, LLC and Justin J. McShane and Joseph L. Hitchings, Esquire, an avers in support of its Petition for Emergency Injunction as follows: 1. Prior to, but no later than May 31, 2006 Plaintiff and Defendant entered into an oral Lease Agreement for the lease of a commercial building located at 5023 EAST TRINDLE ROAD_2ND FLOOR, MECHANICSBURG, PA in Cumberland County 2. The property was used by Plaintiff to operate a clothing boutique where various garments, jewelry and other items were for retail sale under the business name Chase Alexandra Boutique. Approximately forty thousand dollars ($40,000.00) in various items were inventoried at this location. 3. The oral contract was for a month to month tenancy for the Plaintiff to use entire second floor for her business. 4. The Plaintiff paid the agreed upon rental fee of six hundred dollars ($600.00) as well as the utilities in advance for the months of June, July and August. 5. Said checks in averment four (4) supra were accepted and cashed by the Defendant. 6. On August 8, 2006, the Defendant threatened to "change the locks" and deny the Plaintiff access to her business and belongings. 7. On August 9, 2006, Plaintiff appeared at the business to discover that the Defendant had carried through on his threat. The Defendant had entered the property, changing the locks on the doors, and refusing access to the Plaintiff and effecting a self-help extra-legal eviction. 8. At the time of the extra-legal seizure, there were numerous items of personal and business property belonging to the Plaintiff were in the building. 9. On August 9, 2006, the Plaintiff called the Defendant to seek access to her belongings. The Defendant denied her claim and admitted to changing the locks. 10. Prior counsel for the Plaintiff, Andrew C. Sheely, Esquire, sent a letter via fax to the Defendant asserting a demand for access to the business. A true and correct copy is herein attached to this Petition as Exhibit "A". 11. The undersigned, through Constable, personally served the Defendant with another letter asserting the Plaintiff's demands. A true and correct copy is herein attached to this Petition as Exhibit "B". 12. To date, the Defendant has not allowed the Plaintiff access to the building despite repeated demands. 13. Despite the fact that Plaintiff had no lawful justification for seizing the property and retaining Defendant's business and personal belongings, local law enforcement will not help the Plaintiff retrieve these items. 14. Plaintiff cannot operate her business without the items still located at the premises, has paid in full the agreed upon rental rate for August and will suffer irreparable harm unless this Court enjoins Defendant from blocking Plaintiffs access to the property. 15. Plaintiff has time sensitive documents and items that have been promised to be delivered to customers, other retailers and wholesalers in the building as well as property belonging to third parties. 16. Since there was no Court Order granting Defendant possession of the premises, and there is no case currently pending before this or any other Court, Defendant had no legal justification or authorization to seize the property and exclude Plaintiff from the premises. 17. Plaintiff has incurred the sum of seven hundred and fifty dollars, $750.00, in attorney's fees in this matter, which but for the unlawful act of the Plaintiff, would not have been incurred. WHEREFORE, Plaintiff, WENDY LYNN KIRK, D/B/A CHASE ALEXANDRA BOUTIQUE, respectfully request that this Honorable Court enter an Order enjoining the Defendant from blocking or in any way prohibiting the Plaintiff access to the property located at 5023 EAST TRINDLE ROAD_2ND FLOOR, MECHANICSBURG, P A 17055. The Plaintiff further requests that this Honorable Court order the Defendant to grant the Plaintiff a means of access to 5023 EAST TRINDLE ROAD_2ND FLOOR, MECHANICSBURG, PA 17055 upon demand without notice to the Defendant and independent of the Defendant. The Plaintiff requests that the Court order the Defendant to allow the plaintiff to remove any items contained at 5023 EAST TRINDLE ROAD-2ND FLOOR, MECHANICSBURG, PA 17055. The Plaintiff requests that this Court issue an order allowing the Plaintiff access to 5023 EAST TRINDLE ROAD_2ND FLOOR, MECHANICSBURG, PA 17055 for the entire month of August. The Plaintiff requests that an order be issued to the Defendant directing him to immediately return to the property any items removed from the property. And further, Defendant is directed to pay to Plaintiff, counsel fees in the amount of seven hundred and fifty dollars, $750.00. Respectfully submitted, ~' <. By: Joseph L. Hitchings, Attorney for Plaintiff Supreme Court 1.D 65551 48ll Jonestown Road Suite 125 Harrisburg, P A. 17109 Telephone: (717) 657-3900 Fax: (717) 657-2060 Date: August 21, 2006 EXHIBIT A COpy ANDREW C. SHEELY A'ITORNEY AT lAW Telephone, (717) 697-7050 127 Sonth Mad",t Street P,O. Box 95 Mecknicaburg, Pennsylvania 17055 Fax, (717) 697,7065 August 11, 2006 David J. Becker FOR ADDRESSEE ONLY 5021-5023 E. Trindle Road Mechancisburg, PA 17055 David J. Becker FOR ADDRESSEE ONLY 3 Northwatch Lane Mechanicsburg, PA 17050 RE: Wendy L. Kirk 5021-5023 E. Trindle Road Mechanicsburg, PA 17050 ACCESS NOTICE Dear Mr. Becker: Please be advised that I represent Wendy L. Kirk, a tenant of your real estate located at 5021- 5023 E. Trindle Road, Mechanicsburg, Pennsylvania. My understanding is that you have changed the locks at the property so as to deny Wendy L. Kirk of reasonable access to the leased premises, including her personal property and goods located at the above-referenced address. Your unilateral action to deprive Wendy L. Kirk access to the leased property and her personal property constitutes a breach of your lease and essentially a conversion of her personal contents with a value in excess of $40,000.00. This letter serves as written notice to you from Wendy L. Kirk confirming her request for immediate access to the leased premises so that she can remain in the leased premises through August 31, 2006 pursuant to your representations. In the event you do no grant her such access, I have been authorized to pursue any and all legal actions to recover her property and pursue appropriate damages for loss of business use, conversion of her personal property and unilateral termination of her lease. Pending such access, you are directed to refrain from removing or altering her property at the leased premises. You should contact Wendy directly today and/or over the weekend to arrange immediate access to the lease premises. ~i7 tr~17~ ~~~LY ACSlbmk / c: Wendy L. Kirk Certified Mail #7001 2510000030292295 Certified Mail #7001 2510000030292264 Regular Mail EXHIBIT B MCSHANE & HITCHINGS, LLC AITORNEYS AT LAW Joseph L. Hitchings, Esquire JLH@McShaneandHitchings.com Main Office: 4811 Jonestown Road Suite 125 Harrisburg, PA 17109 East Office: 2669 Shillington Road Suite 211 Sinking Spring, P A 19680 Judy B. Coheu Office Manager Justin J. McShane, Esquire Justin@1866mcshane.com Pam Rudy Legal Assistant Michael D. Matter, Esquire MDM@McShaneandHitchings.com Tel: (717) 657-3900 Fax: (717) 657-2060 http://www.mcshaneandhitchings.com Amanda Snyder Paralegal Shawn M. Curry, Esquire SMC@McShaneandHitchings.com Please send all mail to Harrisburg Deann K. Silks Legal Assistant August 18, 2006 Via personal hand delivery David J. Becker 3 Northwatch Lane Mechanicsburg, P A 17050 Re: Wendy Lynn Kirk d/b/a Chase Alexandra Boutique Mr. Becker: Previously you had been served with a letter drafted by Attorney Sheely with respect to Wendy Lynn Kirk and her business of Chase Alexandra Boutique. This letter was dated August 11,2006. As of to day's date, Ms. Kirk has retained this firm to represent her interests. You have illegally and through extra-judicial process evicted her from her place of business. You cannot lawfully do so. You are now placed on notice yet again that you must stop and grant her immediate access. Unless you immediately cease from blocking or in any way prohibiting her access to the property located at 5023 EAST TRINDLE ROAD_2ND FLOOR, MECHANICSBURG, P A 17055 (hereinafter referred to as "the premises"), we will seek an injunction in Court. YOU MUST ALLOW HER ACCESS TO THE PREMISES BY NO LATER THAN AUGUST 21. 2006 AT 9 AM. OTHERWISE. WE WILL FILE FOR AN EMERGENCY PETITION IN CUMBERLAND COUNTY COURT AT 9:30 AM SEEKING NOT ONLY AN INJUNCTION BUT ALSO ATTORNEY'S FEES. Make no mistake, Ms. Kirk demands a means of access to 5023 EAST TRINDLE ROAD-2ND FLOOR, MECHANICSBURG, PAl 7055 upon demand without need of advance notice to you and independent of any of your actions for the entire month of August. It is beyond any dispute that you accepted and cashed a check in the amount of six hundred dollars ($600.00) for rent this entire month. It is also beyond dispute that at the very least an enforceable oral contract for a month-to month tenancy was created when you first accepted her check for June's rent. This creation of a landlord tenant relationship was further reinforced by your acceptance and cashing of two (2) more checks in that amount for rent in the months subsequent. It is beyond any dispute that you have evicted her without use of the judicial system. Despite your thoughts to the contrary, the well-settled law in Pennsylvania states that you may not exclude her from that property without first resorting to the judicial system. What you have done is effect a self-help eviction. This is illegal and actionable. You must stop. You may contact me directly to avoid Ms. Kirk filing the injunction. We are available 24 hours per day. I assure you that the petition and order have already been drafted. Her resolve in this matter is total. jbc/JJM . ' . . WENDY LYNN KIRK D/B/A CHASE ALEXANDRA BOUTIQUE, Plaintiff VS. DAVID J. BECKER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERlAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW IN EJECTMENT VERIFICATION I, Wendy Lynn Kirk, verify that the statements made in this Plaintiff's Petition For Emergency Injunction in averments one (1) through nine (9), twelve (12), as well as fourteen (14) through seventeen (17) are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. .d-t 17/6~ Date ~~~ en y ~ynn Kirk -' .. WENDY LYNN KIRK D/B/A CHASE ALEXANDRA BOUTIQUE, Plaintiff VS. DA VlD J. BECKER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW IN EJECTMENT CERTIFICATE OF SERVICE I, Justin J. McShane of MCSHANE & HITCHINGS, LLC Attorneys for the Plaintiff, do hereby certify that I served a true and correct copy of the attached Petition by personal service through Constable Robert Tapper upon the person listed below: David J. Becker 3 Northwatch Lane Mechanicsburg, P A 17050 Respectfully Date: August 21, 2006 n ,,~ c- ~'" 0 ''''' ~ < "" ." ;;'::;"0:1:: ",.. 7',., ~;:" ~., c:: ~ t {I";:t n1- ;:~. : r- 4:::, {j) N -OjTl ~ .."J W :"G r'" L , ~ '.~ ( ) :<>- :;~~~j ..: ::l!: - )..l );.~ ~ 'j,) >.D On1 -- ... --f "-, -. -t\ :'0 '" i;'" v-... 1.0 -< f;;:\ f.!\. ~ , '. WENDY LYNN KIRK D/B/A CHASE ALEXANDRA BOUTIQUE, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 06-4890 - Civil Term DAVID J. BECKER, Defendant CIVIL ACTION-LAW IN EJECTMENT PRAECIPE TO WITHDRAW MOTION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: On August 22, 2006, the Plaintiff filed a motion titled "Petition for Emergency Injuction". Please withdraw this motion and mark this matter closed. The parties have reached a settlement. Respectfully submitted, MCSHANE & HITCHINGS, LLC Date: August ~ 2006 By: ( . WENDY LYNN KIRK DIB/ACHASE ALEXANDRA BOUTIQUE, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 06-4890 - Civil Term DAVID J. BECKER, Defendant CIVIL ACTION-LAW IN EJECTMENT CERTIFICATE OF SERVICE I, Justin J. McShane of MCSHANE & HITCHINGS, LLC Attorneys for the Plaintiff, do hereby certify that I served a true and correct copy of the attached Praecipe to Withdraw Motion by First Class Mail upon the person listed below: Thomas D. Gould, Esquire 2 East Main Street Shiremanstown, P A Respectfu1ly submitted, Date: August~, 2006 By: <::) C <:' "'"tJi."t"- r"\\1"1 --;" ,-- 'J-: -' r::.. ....... "'" =' "'" (/') rg I '!";'(: :;:~~ ~;; :2 e l -0 ::!,l: o o (..11 ~ -4 ::r:-" nlF: --om ::~c\... ?:]t;'~,1, {~2~~ 6rn ._,~ ~