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Home My WebLink About02-2656 " II THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. Od-..- d-u,5"Co BEATRICE A. WARD, Defendant CIVIL ACTION - IN EQUITY PETITION FOR PRELIMINARY INJUNCTION NOW COMES Plaintiff, Thomas Derrick, by and through his attorneys, cunningham & Chernicoff, P.C., and petitions this Honorable Court on Plaintiff's behalf for the issuance of a Preliminary Injunction, enjoining the Defendant, Beatrice A. Ward, from denying Plaintiff physical access to the demised premises known and numbered as 84SA Meadow Lane, Camp Hill, Cumberland County, pennsylvania and enjoining the Defendant from using or otherwise disposing of any personal property owned by the Plaintiff and directing Defendant to return to Plaintiff all of Plaintiff's personal property taken by the Defendant until further Order of the Court. 1 II This Petition is respectfully submitted because, as more fully set forth in Plaintiff's Complaint: Facts SUDDortina the SDecial Relief 1. Plaintiff, Thomas Derrick, is an adult individual who resided at 845A Meadow Lane, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant, Rebecca A. Ward, is an adult individual who resides at 845 Meadow Lane, Camp Hill, Cumberland County, pennsylvania. 3. On or about September 30, 2002, plaintiff and Defendant executed a residential lease agreement related to the premises known and numbered as 845A Meadow Lane, Camp Hill, Cumberland County, pennsylvania, hereinafter referred to as the "demised premises". 4. On May 4, 2002, Defendant engaged in "self-help" and wrongfully evicted Plaintiff from the demised premises. 2 " Ii I S. plaintiff has and will suffer immediate and irreparable harm if a Preliminary Injunction is not granted. 6. Defendant's conduct deprives Plaintiff of the property rights to which he is entitled by operation of law. 7. Unless enjoined, the actions of the Defendant will result in further wasting, diminution and conversion of the Plaintiff's assets which cannot be totally compensated by damages. 8. Unless Defendant is enj oined preliminarily, the status gyQ will not be preserved, and the Plaintiff's interests will be injured. 9. The Defendant's wrongful conduct is manifest and the Preliminary Injunction herein prayed for and special relief is reasonably suited to abate Defendants' wrongful conduct. 3 II 10. The Defendant will not be substantially harmed if the Preliminary Injunction sought by this Petition is granted, pending final determination of the matter on the merits. 11. There is a substantial likelihood that Plaintiff will ultimately be successful in the merits of his claims. 12. Defendant will not suffer any appreciable injury if the requested Preliminary Injunction is issued because the status QUo among the parties will be restored to where it was before Defendant's wrongful conduct. Defendant will be merely restrained from taking advantage of her wrongful acts. WHEREFORE, plaintiff/Petitioner prays this Honorable Court to issue a Preliminary Injunction and upon hearing, grant a preliminary Injunction enjoining the Defendant as follows: 1. Enjoining the Defendant from withholding access from the Plaintiff to the demised premises known and numbered as 84SA Meadow Lane, Camp Hill, Cumberland County, Pennsylvania. 4 . . . !I !I I 2. Enjoining the Defendant from using or otherwise disposing of any of the Defendant's personal property which was located in the demised premises. 3. Enjoining the Defendant from entering into any contracts or leases which in any way would transfer the right to occupy the demised premises to a third party; and 4. Such other relief as the Court may deem proper. Respectfully submitted, Date: d~~ 17106-0457 Plaintiff) bl\docs\petition\derrick 5 II II I .' VERIFICATION I verify that the statements made in the foregoing PETITION FOR PRELIMINARY INJUNCTION 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. ~4904, relating to unsworn falsification to authorities. ~h1.~ THOMAS DERRICK Date: ~~.;l. ~ ~ cJOZ- '. .. (") '~.~. ,-) C 1 I~ -r} f'~ 1 I .:: .:2: :...) V.l r', ',..-' :~:? '5" .F' (-: ~:h; ;< C) :.r-.. C ~:'J Z :::::> =< :1J I V .....-:.: .J THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - EQUITY BEATRICE A. WARD Defendant NO. 02-2656 EQUITY TERM ORDER OF COURT AND NOW, this 31st day of May, 2002, upon consideration of Plaintiffs Petition for Preliminary Injunction, a hearing is scheduled for Thursday, June 20, 2002, at 11 :00 a.m., in Courtroom No.1, Cwnberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Jordan D. Cunningham, Esq. - Cop~t..c' ~~Uy ~(,)~ 2320 North Second Street P.O. Box 60457 Harrisburg, P A 17106-0457 Attorney for Plaintiff Beatrice A. Ward 845 Meadow Lane Camp Hill, PA 17011 Defendant, Pro Se - Clef! t'Y1;).L LuL t, /3/ CJ~ - '":::J::/Y} :rc ... ViNv'/':1\SNN3d A1NPO:J CI\:\:r1;".~:::gkf\jnC) -l'ITi:\ lId [- fmr 20 Ac}ilON':;':,,::~ c! U. :l() 3~)H:~C--G3 ,\j . " THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0) - oZc'j-e,.. Ef.;u', rei v. BEATRICE A. WARD, Defendant CIVIL ACTION - LAW IN EQUITY NOTICE TO DEFENDANT NAMED HEREIN: 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 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 . II NOT:IC:IA Le han demandado a usted en la corte. si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO OSI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OLLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 Respectfully -- CumfING Date: 5~3!o2- I P.C. D. Cunningham, Esquire #23144 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 Telephone: (717) 238-6570 (Attorneys for Plaintiff) 2 II " , THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CJ;L. ;U S-l ~ CIVIL ACTION - IN EQUITY v. BEATRICE A. WARD, Defendant COMPLAINT AND NOW COMES, THOMAS DERRICK, Plaintiff herein, by and through his counsel, Cunningham & Chernicoff, P.C. and file his Complaint against BEATRICE A. WARD, Defendant herein, and in support thereof avers as follows: PARTIBS 1. Plaintiff, Thomas Derrick is an adult individual who resided at 845A Meadow Lane, Camp Hill, Cumberland County, pennsylvania. 2. Defendant, Beatrice A. Ward, is an adult individual who resides at 845 Meadow Lane, Camp Hill, Cumberland County, Pennsylvania. 1 II II VENUE 3. Venue of this Complaint lies properly with this Court because the transactions and occurrences which give rise to the subject matter took place in Cumberland County, pennsylvania. BACKGROUND 4. On or about September 30,2002, Plaintiff and Defendant executed a residential lease agreement. A true and correct copy of the residential lease agreement is attached hereto, made part hereof, is incorporated herein by reference and is marked Exhibit "P-l". 5. During the course of the term of the lease, certain monthly rent payments became overdue, but were being paid in a partial manner. 6. On May 4, 2002, Plaintiff, without notice, changed the lock to the demised premises and effected a "self help" 2 II eviction with the benefit of first having obtained a judicial judgment for possession. 7. plaintiff, since May 4, 2002, has been denied access to his personal property. 8. Plaintiff, since May 4, 2002, has been denied use of the demised premises. COUNT I CONVERSION 9. Plaintiff incorporates the allegations of Paragraphs 1 through 8 of this Complaint herein as if more fully set forth. 10. Since May 4, 2002, and at all times relevant hereto, Defendant, has wrongfully and without legal justification withheld from Plaintiff his personal property. 3 I: 11. The personal property taken by Defendant from the Plaintiff has been converted to use and benefit of the Defendant. 12. Defendant knew, or should have known, that she had no legal right or privilege to take Plaintiff's personal property. 13. Defendant took Plaintiff's property without the consent or knowledge of the Plaintiff named herein. 14. Defendant's wrongful and unlawful use of Plaintiff's personal property has deprived Plaintiff of the use, benefit, and possession of the personal property. 15. Defendant had no legal excuse or legal justification for her wrongful and unlawful use of Plaintiff's personal property. 4 II 16. In engaging in the conduct herein above averred, Defendant acted intentionally, willfully, maliciously, recklessly, and with wont on disregard of Plaintiff's rights and interest. 17. As a result of Defendant's intentional use and theft of Plaintiff's personal property, Plaintiff has been damaged. 18. As a result of Defendant's action in converting Plaintiff's personal property, Plaintiff has suffered the loss of the use of the personal property and incurred attorneys' fees and costs in an attempt to secure the property. WHEREFORE, Plaintiff respectfully requests as follows: (a) That the Defendant and her agents be restrained until final hearing, and perpetually thereafter, from any way diminishing the quantity and value of the personal property which is being held by the Defendant. 5 II (b) That it be ordered and decreed that the Defendant and her agents be declared a trustee for the benefit of the Plaintiff. (c) That the Defendant be ordered to account for all of Plaintiff's personal property of any kind or description which Defendant obtained as the result of her actions. (d) That the judgment be entered against Defendant for a sum equal to the cost to replace any of the Plaintiff's personal property which has been usurped, sold or destroyed; the value to repair the personal property if it had been damaged; and/or the fair rental value of the Plaintiff's personal property for the period he has been dispossessed of the same. (e) That judgment be entered against Defendant for Plaintiff's attorneys' fees and costs. (f) And such other relief as the Court may deem just and proper. 6 1/ I COUNT II - WRONGFUL EVICTION 19. Plaintiff incorporates the allegations of Paragraphs 1 through 18 of this Complaint herein as if more fully set forth. 20. The Defendant's actions amount to the eviction of the Plaintiff. 21. The Defendant's actions are intentional and amount to a trespass. 22. Defendant failed to serve a Notice to Quit and/or Termination as required by the terms of the Lease and/or the pennsylvania Landlord Tenant Act of 1951, as amended. 23. Defendant failed to obtain a judgment for possession from a District Justice or the Court of Common Pleas prior to evicting Plaintiff from the demised premises. 7 II ,i I 24. Defendant failed to obtain an Order of Possession from a District Justice or the Court of Common Pleas prior to evicting Plaintiff. 25. Plaintiff, as a direct result of Defendant's action, has incurred costs in being required to pay for temporary lodging. 26. Plaintiff, as a direct result of Defendant's action, is of the opinion and therefore avers he will be required to pay an increased amount of monthly rent to obtain a comparable place to live. 27. Plaintiff, as a direct result of Defendant's actions, is of the opinion and therefore avers he will incur expenses in moving that he otherwise would not have had to incur. 28. Plaintiff, as a direct result of Defendant's actions, has incurred and will continue to incur attorneys' fees that he otherwise would not have had to incur. 8 II WHEREFORE, Plaintiff demands judgment in favor of Plaintiff and against Defendant in an amount in excess of Ten Thousand and 00/100 Dollars ($10,000.00) together with costs, reasonable attorneys' fees and interest. COUNT III - PUNITIVE DAMAGBS 29. Plaintiff incorporates by reference the averments of Paragraphs 1 through 28 of the Complaint as if more fully set forth herein. 30. The Defendant's actions in evicting Plaintiff without due process of law were intentional, willful, outrageous, and illegal. 31. The Defendant's actions were without legal justification and violated Plaintiff's constitutional right to due process. 32. The Courts of Common Pleas of Cumberland County have long held the pennsylvania Landlord Tenant Act provides 9 II the complete and exclusive remedy for a landlord seeking to vindicate his or her rights and a landlord is not allowed to resort to a "self-help" eviction. WHEREFORE, Plaintiff demands punitive damages be assessed against Defendant in an amount sufficient to give warning to the community that such wanton and illegal wrongful evictions will not be approved in the community. Respectfully submitted, Date: S P.C. dan . Cunningham, Esquire .D. 23144 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 (Attorneys for Plaintiff) bl\docs\complain\derric 10 I: VERIFICATION I verify that the statements made in the foregoing COMPLAINT 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. ~4904, relating to unsworn falsification to authorities. ~ W. ~},,~.~ THOMAS DERRICK Date: ~ -;;J-?- -.?~ II B X H I BIT ~P-l. LEASE AGREEMENT ....4' LEASE A.GREEMi: ~de this . ,4 n? 1<:":' ;/J-/Q <J YO d., 0,>44 , , .::<","', t'9' between) IInd 771-;;:;;;"", C; I~ .:tJ~.Ie..c...H..IL c.lled -n:NANT-. Hereinafter called "LANOLQRDH Wt'l'NESSETH: In consideration ot the rents and covenants set forth and contained on the part ot the TENANT to be paid, performed and wlLlseIV@C, the l..AHOLORO does hereby lellse unto the TeNANT the premise!! hereinafter dl!scrlbed under the conditions set torth herein. 1. 'l'EIU'l: The t~rlll of this lease shall be tor a period ::!" 9' .;rO,.,) beginninq on the ~ day 0'_, ~_ and terminating on the ~_ day of 3.d., :w~1 2 LOCAnON. cd;,r )rre? L~ Ju Qm/J W:~h '-4- ~ J. r(Ewts: T.mant agrees to pay to Landlord .u rent tor the above dllUcrlbed prelllises, the SUIII .I or~" each month, In advance t1ve~rs per day as additional beginnIng on the first day at the term on this lease. Further. Tenant aqrees to pay a late charqe ot tent [,)I. each day the rent h hte atter the tilth 15th) day of the due date. (Note: Late tee aSSllssment wUl be based on the day the ~onthly rent is received by the Landlord whether in person or by U.S. Mail). .1. 3~('URITY DEPOSIT: Tenant shall pay to the Laf>dlord at the beqinning of the term at this lease a SUlll IIlqual to one (1) month's rent as o;ecur1ty tow.rds the performance of the teC1lls at this le",ae. Upon expiution ot the term ot this lea$8. the Landlord shalt inspect $aid pr.!mlses to determine it any da_qe exists tollowing the removal at Tenant from the property. Any damages to the leased area or any repairs necessitated as a result at the Tenant's use of the lease area :!Ihall be done by the Landlord at the expense of the Tenant and deducted from thol :lIecurity jepo:!lit. The Landlord shall account to the Tenant tor the unused portion ot the security deposit within thirty (301 days foLlowing the expiratiQn of the term af the lease. ~. ALTf.RA'l'IONS: Tenant agrees nQ~ to make any alterations. additions, improvements. or other changes to any part ut the premuu'" <lr it" :lIciiiri~s wlthout the express written consent of the Landlord. ~. !NDt"l~1FIC1\.TION: T~nant shal: i:ldemnlfy and save Landlord harmLess from any liability imposed upon Landlord, adjudicated or other-oIl>>e, by ,.; ctllo? ?: IIn)" personal injury or property daiUge frol'll any use of the premises by the Tenant, their agents and invitee, or by any IIct$ done :h"r~<)J; ~j:; ~h,! Tenant, theIr agents and invitee. including court costs and counsel fees. Hr:P;,;l<~: L/lndlord <llJ'rees and covenants to be responsible (or any and all repairs to the exterior ot the premises and also "grees to be ''-'.~,'~''5il.".. for all repalrs to the interior of the premises including the heatinq facilities. plumJJinq (acilities. eLectrical facllitle" and "Ia; ,.t~nance and repairs of any appliances which are provided by the Landlord. However, in the event that such repairs are necessary due to ,!... neqligent acts of the Tenant or its agents, then such repairs shall be perfo;nlled at the expense of the Tenant. r addition the Tenant 15 respv:Sl.::>l(:, fOl' keeping any and all smoke detectorll placed in the premises supplied with workinq batterles. ~. i<.S$IGNMENT: Tenant Covenants and agrees not to assiqn, sublet or transfer their interest in the premises to any other party. 9. r.llJ(E:.; .".NO INSURANCE: The Landlord agrees to pay all taxes and assessments levied aqainst the prellli.us durinq the terlll of this ~ea$e. fn "<.Jui~i<)!l, Landlord aqrees to be responsible tor !lre insurance coverage for the exterior of the prellli:!lf$ includinq the structunI of the '-',i!cJing. ,en...nt agrees to be responsible for fire insurance coverage on It.s contents ....ithin the leased area and for IIny thl"j p....rt.,. ~a3~a:ty ~n:llUrance coverage for its occupancy and use of the premises. 'JTILr.rll';S: L.a.ndlorc:l snsl~ be responslble for tt,a payment of utiLity bill~ for electricity, heat, water. seweraqol, trash, televisions dnd other related .a.ssessments. The Tanant shall be responsible for the payment at telephone service. The Tenant aqrees that the LandloI;d ~ha:: have ~he right to temporarily stop the service of water, se....er..ge. electricity, or heat, in the event of accident or faiLure of it and ~:; (acilitlite repairs or alterations to these services. ACCESS SY WUlOLORD: Tenant agrees to permit the landlord to enter upon the said premises at all reasonable time:; to examine the condition thereof. tor llIaking any repairs deem necessary, or for showing the premises to any p.rties. ..2. SURRENDER OF THE PREMISES: The Tenant covenants with the Landlord that the tenant has received the premises i.n qood order and -;onditior, and at the expiration of this leaae, Tenant will yield said pr.misea in .'!$ good order ",nd condition as when the same were rented ~:; the "'unant, with the exception of ..ny damage c..use by tiots, fire. flood, incef>diaries, acts of God, or public enemy, the elements. or.:1:!nary "~ar IInd tear anct othpr causes beyond the Tenants control. However. tenant Shall be Liable tor any repalrs resultina from 13. CLEANING: Tenant aqrees to permlt no waste at the premises or use the preMises tor any unlawful purpose. Tenant shall keep the leased area of the preais.. free and clear of any refuse, junk or other debria. All trash and refule Shall be stored outside the leased pre~ises In appropriate trash containers permitted by local qovernaental requIatlons. The Tenant also aqr.e. that the interior and exterior of the property 1<1111 be kept cleAn and neat, includlnq all sidewalks, porches, and yards. The Tenant will be respon,ibl. for snOI<l relllOval trom the sidewalks and por~hes. 14. PETS: Tenant aqrees that there shall be no pets or other animals either domestic or otherwiSe brouqht, permitted or kept on the premises at any time. 1:'. gA!,.E, The Landlord herein shall have Ute right to .sell the property at any time to any third party without qivinCjl notice to the te~ant. 16. USE: Tenant agrees that the premises shall be used only for the indiVidual and dwelling for the Tenant only. Without specifi.c written permission of the landlord, no more than the person listed on the Lease Agreement shall live in the leased property; livIng in Shall be ,jefined as spending IllOre than three (3) consecutive niqhts in the premises or more than five (5) niqhts in any thirty day period. 17. EXPIRATION: Both parties hereby agree that either party hereto may terminate this lease at the end ot the said term by CjIivinq the other party written notice of at l.ast thirty (30) days prior thereto but in detault of such notic., this lease Shall continue upon the same terl1llS and conditions as herein contained ror il further period until terminated by either party hereto qiven by the thirty (30~ daYIl written notice for removal. However, if L.ndlord shall have qiven aueh written notice prior to the expiration of any term hereby created at hi. ~ntention to change the tenns, covenantlS or conditions or this lease, and Tenant shall hold over after the expiration of the tilll. mentioned :n ,;uch notice, Tenant shall be considered as tenant under the terllls, covenants and conditions m.ntioned in such notice for a further terms , a:l described above. It is the intention hereot that if t"e oriqinal term shall be renewed or extended under the terlllS hereinabove provided <.;r otherwise, such renewal or extension shall be the sasne terma and conditions of thia lease as are effective ilalJ\ediately prior to the tlxpiratl.on of the said original lease. (Note: It the Tenant defaults in providing the above mentioned 30 day lease termination notice or breaChes ~he lease during the lease period, one month'lS security will be forfeited.l 18. OEFAIJLT; Upon the occurrence of any default such as failure to pay installment of rent when due, failure to perform any terms or co',diL'Jn:l at thiS le.se, abandolllllent by Tenant of the Leased premises or insolvency ot the tenant, the leaae shall be deemed to have been r..re..cl-..,c ...rld t:.ereupon by that fact itself and without entry or other action by Landlord: al I\.t the option of the Landlord, the rent tor the r-emainder of the term ot this lease shall be immediately become due and payable. !) At the option of the Landlord, this lease and the terlll created hereby as well as all the right, title and interest of tenant ho:n,under shalL ceilse and tar",inate and become absolutely void wLthout any right on the part ot the Tenant to slIve tarfeltu~e by payment of any ~um or by performance of any term, covenant or condition broken or defaulted, and the Landlord shall be entitled to r"c<Jver dalllages tor ,uch event ot defllult in an amount equal to the amount of the rent and othel:" charges reserved for the balance of term hereof, 1e,1S the fair rental value of the. leased premises for the balance thereof. cJ At the option of the LAndlord, he may lease the demised premises or any part or parte thereof to such person or persons as may, ~n Landlord's discr-etion ~eem best without affecting tenant liability for any loss ot rent for the balance of the term. d) Tenant shall pay to Landlord, as additional rent on demand, all of L.lndlord's costs, charqes and expenses inclUding ..ithout limitation the rellsonable tees for coun.sel, lIgents or others retaIned by LlIndlord tor the enforcement of tenant's covenants under tllis lease. 1'1. ENTIRE Ac;REEKEN:: This :ease consti.tutes the sole under-standing of the parties hereto and any lImendlllents or addltion~ shall be ,dt....-:tive ?nly when reduced to writing and signed by the parties hereto. ,N WI1'NESS l'lHEREOf', the parties hereto have executed this le"se contract the day and year Urst above written, intending to be le9a11y bound tneraby. ~~ ;J, I1v~1 TENANT ~~ LANDLOR -; ./ /( ~ ~ 00 ..so 4... >- .J ~ :' ~.... ~ <<> ~ ~ ~ -. (,OJ ::--~ 1. i ..'-~ ',1 C~; ,-"'"l ;~ \".~ J .r-~ '...0 ~ ~ r- ~ In "" ~ '-= ~€J CASE NO: 2002-02656 P SHERIFF'S RETURN - REGULAR f~ COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DERRICK THOMAS VS WARD BEATRICE A RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT _ EQUITY was served upon WARD BEATRICE A DEFENDANT at 1438:00 HOURS, on the ~ day of June the at 845 MEADOW LANE ,~ BEATRICE WARD CAMP HILL, PA 17011 by handing to a true and attested copy of COMPLAINT _ EQUITY together with and at the same time directing ~ attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 10.35 .00 10.00 .00 38.35 So Answers: .r~~~~ R. Thomas Kline 06/06/2002 CUNNINGHAM Sworn and Subscribed to before By: Depl1ty Sheriff <<- me this /0 - day of C)".. .;loo..z..- A. D. ~, () i1.t.,''/''- ~ rothonotary , THOMAS DERRICK, Plaintiff IN THE COURT OF COMMO PLEAS OF CUMBERLAND COUNTY, P NNSYL VANIA v. CIVIL ACTION - EQUITY BEATRICE A. WARD Defendant NO. 02-2656 EQUITY TERM ORDER OF COURT AND NOW, this 20th day of June, 2002, upon consid ration of Defendant's Motion for Continuance, a copy of which is attached hereto, and upon relation of Plaintiffs counsel, Jordan D. Cunningham, Esq., that he will not oppose the motion, the motion is granted and the hearing on Plaintiffs petition for a p eliminary injunction is rescheduled to Thursday, July 25,2002, at 1:30 p.m., in Courtro m No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Jordan D. Cunningham, Esq. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106-0457 Attorney for Plaintiff .~ ~ (, ,J/~ 0;;" Jeffrey N. Yoffee, Esq. 214 Senate Avenue Suite 203 Camp Hill, PA 17011 Attorney for Defendant ~, :rc \f1NW\lASNN3d I I "lnr"'J"\ {1"V"1' ..,"'.^'n..... /\..LI~ ;Vvl \.Jl\. ,-' !!'::.J:]t'} ~ h..} ;'1, 'C' II I O'? IY'f 20 r.;J.v ~;a I." ~'fl, J AlJltLcr::;,; .:n j~); {1()--{L; 1'. i' , FILE No. 449 04/08 '93 23:49 ID:UlNIERFAX6500 PAGE 2 DI;lll.ll.ICK, Plaintiff V:s. IN THE CODa~ 0 COMMON PLe~s OF CCMBERLAND COO TY, P~NNsrLVANIA 'term TRIC!: A. WARP, Defendant NO. 02-2656 E CIVIL ACT-ION - QUITY OR.DER AND NOW, this day of --' 2002, in sideration of the moti.on for continuan!::!;' fHee! y the CotQndant'" !lel on or around June 19, 2002, it is hereby Orcie>r.ed th....t. ch... on Pl.aintiff's petition for prel.1.rnin.u:y in Ut:lct:i.on i" he";IlIl"y tinued from JUne 20. 2002 aT- 11: 00 a.m. amil:cooh duled to July 2~, 2 at 1:30 p.m. ~n Courtroom No.1, C\.UI\berland vWIl..y Court:nOlJSe, lisLe. P@nn~y'vania. ler, Jr. J_ 90/c0"d PC:91 c00c-61-Nnr , FILE No. 449 04/06 '93 23:49 ID:LANIERFAX6500 PAGE 3 .,", DERRICK, Plaintiff 119. IN THE coaaT OF COMMON Pr..E:AS OF CUMBERLAND COUN PENNS~LVAN!A TRICE A. WARD, Defendant NO. 02-2656 Equity Term CIVIL ACTION MOTION FO~ CONTINUANC2 1. The l;mdersiqned is an Attorney in t1'le of tic which represents A. Ward.. 2. Prior t.o filing this motion, t.he unaersi9ne was not _bola to ak with the Defendant, Beatric* A. Ward, Over the t. lephone. 3. Ontil a few days ago, the undersigned knew bsoolU~e1y nothing t this case. 4. On or around May 31, 200~, Plaintiff, Thoma Derrick filed a against the Defendant as well as a petitio for preliminary Generally, the complaint i:l reque!!tinq puni ti ve damages an a.lleged wrongful eviction ot Plaintift, by his landlord/fortlle):' the c~fendant. Generally, the petition for preliminary requests the Court Order Defendant to all w plaintiff back int the rented premi:ses a.nd require Defendant 1;.0 91 e Plaintiff back his personal property. 5. Although the undersigned sent a. fax to At orney Cunnin9ham (wh represents the Plaintiff, Thomas Derrick) 6. Currently, a hearing on the preliminar June 13. 200', the undersigned did not hear back until Monday, ne 17, 2002. injunction is ~ch duled for June 20 at 11:00 a.m. in front of th~ Ho orable J. Wesley Ole , Jr. 90/m"d VC:91 c00c-61-Nnr -' FJ~ No. 449 04X>6 '93 23:49 ID:LANIERFAX6500 PI=a 4 " 7. The undersigned has learned that July 25, 20f at date .Judge olex- ha.$ available fo~ a hearing :lh ld he ~ing be continued. 1:30 p.m. is t:h the June 20t~ B. No~man M. ~offe, Esq. i5 the Attorney who i representing the 9. Norman H. YOffe, Esq. is outside of the ed StBtes and 1s De endant. retu~ning until sometime on June 19t 2002. 10. Before he left the Unj,ted States Norman M. toffe, Esq. to arrange a continu~nce of the June 20 hearing via nicCltions with the chambers of .Judge Oler and ia communications 11. As matterS stand now, Attorney Cunningham not prepared to ttempted communications with Attorney Cunningham_ continuance of tne June 20 hearing. 12. The undersigned never spoke with NODMn M. YOffe, Esq. abOut why he "'an'ted this lllatter OOn'l:inued but the undersign d believes it was 13. There is a pOSSibility tha.t the undersi and Attot"ney bee use Norman M. Yetfe, Esq. was leaving the United tates on June S, 200 , returning sometime on June l~, 2002 and there w S not enough time to dequately prepare for a June 20, 2002 hearing. CUn ingham can negotiate an interim aqree~nt wouJ.d allow A1:1:. rney Cunn1n9ham to agree to a continuance of the June ;20 hearing, how ver, until the undersigned is able to Defendant, the und rsigned cannot enter into any agreement. 90/p0'd pE:91 E00E-61-Nnr FILE 11Io. 449 04A)6 '93 23:49 m;LANIERFAX6500 PAGE 5 WMZ~FORE, the unaersigned requests tnat the hearing on J?~ 1nt1ff' 5 pet! 't1on tOr pre.u.Il\.1Ilary injunction l:Ie co l:inued from ,J~ne 20, Z002 at ~l:OO a.m. untl! JUly 25, 2002 at 1:30 p.rn ~OFF& , YOFFE, P.C. -- 2n:. ward t1g1'1 90/~0'd Vc:9l c00c-6l-Nnr 90'd ll:llOl I &a.....L... ,~.... ................ ~ tlERIUCJC:, Plaintiff VS. nl TJlli: COtmT OF CUkSERLAND COUNT term B lolMD, Defendant NO. 02-2656 Equi CIVIL ACTION CE~TIFICAT~ OF SERVICE The undersiqned certifies that on the date icated below, ne ser ed the forelJoinq motion for continuance I) . Cunningham, Esq seJ'vice 'Was accomplished by faxing the him at .cax ff23B- 460 Service Wa~ also made by mailing the same to h m at the a~dress set forth below: JOr an D. Cunninqham, Esq. 232 North Second Street P.O. BOle 60457 Har isburlJ. PA 17106-0457 ~o~~ , YO~~2, p. . D~to June 17, 2002 , ESQUIRE Attorney for Date dant 214 Senate Avenue, Su~te 203 Camp Bill, PA 170 1 ('117) 975-1838 Attorney IO No. 07135 90/90'd VC:91 c00c-61-Nnr THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 02-2656 Equity Term BEATRICE A. WARD, Defendant CIVIL ACTION - EQUITY 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 , ~..-,,L,c,....,,....{...~L.c4l": twenty (20) days after th~s Answer and New Matter", are servea, 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. NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 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 OR (800)990-9108 IF YOU DO THE OFFICE NOT I C I A Le han demandado a usted en la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defenses 0 sus objeciones alas demandas en contra de su persona. Sea avisado gue si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier quej a 0 ali vio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME FOR 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 OR (800)990-9108 ward\answer THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 02-2656 Equity Term BEATRICE A. WARD, Defendant CIVIL ACTION - EQUITY DEFENDANT'S ANSWER TO COMPLAINT AND NOW comes Defendant by her attorney, Norman M. Yoffe, Esquire, and makes her answers to the respective paragraphs of the Complaint, as follows: 1 . Admi t t ed . 2. Admitted with the qualifications that her middle initial is "T" and not "A". 3. Admitted. 4. Denied. The written lease Agreement attached to the Complaint as Exhibit "P-1" was executed on September 30, 2000. 5. Denied. During the terms of the lease (and its automatic renewal period), the rent was constantly in arrears. 6. Denied. No eviction took place. See New Matter as filed. 7. Denied. Plaintiff's personal property that was in the leased premises on May 4, 2002 has bee packed-up and held for him by Defendant in another portion of the premises. 8. Admitted. 9. No further answer required. 10. Denied. The lease became cancelled on or before May 4, 2002. See New Matter. Plaintiff's personal property is being held for him to pick up. 11. Denied. See Paragraphs 7 and 10 of this Answer which are incorporated herein by reference thereto. See also New Matter. 12. Denied. Defendant has not "taken" Plaintiff's personal property. It is available for him to pick up anytime. 13. Denied. There has been no taking of Plaintiff's property. 14. Denied. As heretofore pleaded, Plaintiff hasn't been denied the use, benefit and/or possession of his personal property. 15. Denied. The Answer to Paragraph 14 is incorporated herein by reference thereto. 16. Denied. This averment pleads a conclusion of law and an erroneous one at that. 17. Denied. There has been no theft of Plaintiff's personal property, or use thereof by Defendant. Plaintiff has suffered no damages at the instance of Defendant. 18. Admitted in part and denied in part. It's denied that Plaintiff has suffered the loss of use of his personal property, or that there has been any conversion thereof. Admitted that Plaintiff has incurred attorney fees and costs. WHEREFORE, Defendant requests the court to dismiss the Complaint as to Count I. 19. No further answer required. 20. Denied. There has been no eviction. See New Matter. 21. Denied. There has been no trespass committed by Defendant. See New Matter. 22. Denied. No such notice is required by the lease or the Act. However, Defendant did in fact give such a notice. 23. Admitted. 24. Admitted. 25. Denied. Since the lease came to an end, Defendant isn't responsible for Plaintiff's lodging costs thereafter, and therefore is without knowledge or information sufficient to form a belief as to same. 26. Denied. Defendant after investigation is unable to determine the veracity of this averment. The same is therefore denied and proof thereof demanded at trial, if relevant. 27. Denied. Plaintiff's moving expenses are a normal and foreseeable consequence of his agreeing to terminate the lease. 28. Admitted in part and denied in part. It I S admitted that Plaintiff is incurring attorney fees in this matter. It's denied that any such costs are the fault or responsibility of Defendant. WHEREFORE, Defendant requests the Court to dismiss Count II of the Complaint. 29. No further answer required. 30. Denied. No eviction occurred. See New Matter filed. 31. Denied. This averment pleads a conclusion of law and requires no further answer. 32. Denied. This averment pleads a conclusion of law and requires no further answer. WHEREFORE, Defendant requests the Court to dismiss Count III of the Complaint. NEW MATTER 33. Plaintiff was since almost the lease's inception, constantly delinquent on the rent payments to Defendant. 34. On May 3, 2002, Plaintiff was in arrears for the rent for the months of April and May 2002 (exclusive of late charges) . 35. Because of the aforesaid delinquency, Plaintiff was in default of his lease obligations, and Defendant, exercising her options per Paragraph 18(a) of the lease caused same to terminate and become void. 36. On April 13, 2002, Plaintiff orally acquiesced in the aforesaid termination and agreed to physically vacate the apartment by May 3, 2002. 37. Plaintiff thereafter (on or about April 24, 2002), requested to defer until May 2, 2002, so he could get his friends to help in the moving. 38. Defendant agreed to the extra day. 39. Plaintiff failed to vacate on May 4, 2002. 40. On late May 4, 2002 (around 1:00 p.m.), or May 5, 2002, Defendant changed the lock on the apartment (and her living quarters as well), leaving the door to Plaintiff's apartment open however. 41. Defendant left the apartment door unlocked until May 24 or May 25, 2002. 42. After Ma 5, 2002, Defendant undertook to completely clean the apartment which was in a filthy condition, with burn marks on the carpeting and throughout. 43. Defendant packed up all personal property of Plaintiff and stored the boxes containing same premises in the storage shed in the rear of the property. 44. Defendant has had no contact with Plaintiff, either by way of phone, letter or otherwise, since April 24, 2002. 45. By virtue of the foregoing, the lease came to an end by Defendant's electing her aforesaid option pursuant thereto and/or by the specific agreement of the parties. 46. By virtue of the foregoing, Defendant has not violated any duty to Plaintiff and is not liable to him for any damages whatsoever. WHEREFORE, Defendant reiterates her request that the Complaint be dismissed. COUNTERCLAIM 47. Paragraph 1, 2 and 11 of the Complaint and Answer, and Paragraphs 33 to 46 to the New Matter are incorporated herein by reference thereto. 48. By virtue of the foregoing, Plaintiff is indebted to Defendant for rent for April and may of 2002, in the amount of $575.00 per month, plus late charges amounting to $3,205.00 (at $5.00 per day) for a total of $4,355.00. 49. During Plaintiff's occupancy, the premises were so improperly maintained and cared for that dirt, debris and refuse accumulated, together with unwashed dishes and eating utensils, all of which caused unreasonable and intolerable odors and constituted a severe health hazard, affecting as well Defendant I s living areas of the same building. 50. By virtue of the foregoing, Defendant was constrained to thoroughly clean the premises on February 11, 2002, which took Defendant five hours (spent mainly to clean the floors and the bath tub, the latter of which had dirt and other filth encrusted thereon) . 51. Defendant was obliged to repeat the cleaning process starting on May 13, 2002 and not completing the job until May 23, 2002. 52. The value of Defendant's cleaning services unrelated and in addition to those ordinarily and usually concomitant to a tenant's vacating amount to $300.00. 53. Pursuant to paragraph 18 (d) of the lease, Defendant is entitled to recover her reasonable attorney fees, which ,at this point are $1,500.00 and continuing. WHEREFORE, Defendant demands judgment against Plaintiff in the amount of $6,155.00 (plus such additional attorney fees as may hereafter occur) . YOFFE & YOFFE, P.C. /it7+ By . YOFFE, ESQUIRE Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 07135 ward\answer THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 02-2656 Equity Term BEATRICE A. WARD, Defendant CIVIL ACTION - EQUITY VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing Answer are true 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. !l4904 relating to unsworn falsification to authorities. Dated: 7 { ( ';'s' 0,. (') ;'".~) "") c:: 'il ~ C_ lJ (<: I~l I", .L._ :......) (/) u -. ~, '- '.. J:~: .. -/' , ).> C L~ -. --j :u -< - -< I! THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 02 - 2656 EQUITY CIVIL ACTION .. IN EQUITY BEVERLY A. WARD, Defendant PETITION TO WITHDRAW AS COUNSEL AND NOW COMES your Petitioner, Cunningham & Chernicoff, P.C., who files this Petition for Withdraw as Counsel and in support thereof, avers the following: I. Counsel became involved in representing the Plaintiffs Thomas Derrick interests as a direct result of his request to represent his interests before the Court with regard to all matters related to eviction from his former resident by his former landlord. 2. Respondent, Thomas W. Derrick, has been given the opportunity by the Defendant to retrieve his personal goods from the apartment he occupied and all his goods were returned in an order! y manner. 3. Respondent, Thomas W. Derrick, refuses to follow counsel's direction in this matter. 1 4. Respondent has failed to provide to counsel current addresses and telephone numbers at which Respondent could be contacted. 5. Respondent has failed to pay any counsel fe,es incurred in this matter. WHEREFORE, Cunningham & Chemicoff, P.e. respectfully request this Honorable Court to enter an Order allowing it to withdraw its representation of Plaintiff's interests in the above captioned matter. Date: /1/0 ~L- , By: Respectfully submitted, ~HERNICOFF' P.C. ~ Jor D. Cunningham, Esquire LD. #23144 2320 North Second Street P. O. Box 60457 Harrisburg, P A 17 I 06-0457 (717) 238-6570 bl\docs\petition\derrick3 2 " '" .:t::, i':. , , C:J r." ~. ~'2DOl v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 2656 EQUITY CIVIL ACTION - IN EQUITY THOMAS DERRICK, Plaintiff BEVERLY A. WARD, Defendant ORDER AND NOW, this ~ day of IJ e v ~ "'-" L,6, 2002, upon review of the annexed Petition and upon motion of Jordan D. Cunningham, Esquire, a Rule is hereby issued upon 3.nd. ~t!.~UlJ~lt -\t:r ~2 lTc. ~ the Plaintiff, Thomas Derrick, to show cause, if any , why the relief requested in said I"- Petition should not be granted. Rule returnable t ~ days from the date of service. BY THE COURT: l1D'~- 11-/'1-02- I' l RXS ........ ~ Z71 :?; ...... ,'., "l "'~~!"". (:i i liul'I (,1.1 -;('1 ''''''..1' -Jh cl"7~ S t./. ~ln,'c.A vs Case No. iJ ~ -;L O'..ft _fiS e.4.h J'Ce.- /!IIa y b Statement of Intention to Proceed To the Court: fA or'? If s w. D e-tf. 'ok iotends to proceed with the ahove captioned matter. Print Name 1),~fI7fJ5 W, bef.e,"",/c Sign Name ~I/. ~ Date: /~ - /fI- J.tJtJ..f- Attorney for (C.e..pf'e-:;eH r If, Mr self Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the tennination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the tennination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The tennination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a unifonn statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360.710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases . The purpose of Ro.lle 230:2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to tenninate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will tile a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230( d) for relief from the order of termination. An example of such an occurrence might be the tt;mlinati()~n of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. ;;..,0/;1 ..,~ I~ ~~l ~J~~ I ~(' U'''J ?If.'1 j.v-J ''(7) --tV' IV 1JvI '?, -? I pi' ~ J'J-' .v/,):~1~1l woJ.- J 5'/ ~;;l v ,."l, n J' r:/_?_~\'" .~ ,-\. ,-, ":;'-, ",., '0 "','~\. -- .' -- ._',- ~2: '"$)~\ ~<;.... $ ~,~ ~~' , \~~ ~\;\ '?.,' .' . , .' 'v' ~ V #'~# .' .. .' .' .' -*,,' ,,~ Thomas Derrick vs C~eNo92-2656 Equity Beatrice A. Ward Statement of Intention to Proceed Print Name Jordan D. Derrick, Plaintiff To the Court: ThomRs Derric.k Date:October 17, 2005 Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901 (b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for re1ieffrom the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirtyMday period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently oftennination under Rule 230.2. CERTIFICATE OF SERVICE I do hereby state that on the \'t~ay of October 2005, I served a true and correct copy of the foregoing Statement of Intention to Proceed in the captioned matter, by placing the same in the United States mail, first-class, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Norman M. Yoffe Yoffe & Yoffe, P.e. 214 Senate Avenue Suite 203 Camp Hill, PA l7011 uJJ - ~x1 Angela L. HeWItt Legal Secretary . ~; C) (":':.> -n en ~--j i' ~"l -r:-: o (..,) THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02 - 2656 EQUITY BEVERLY A. WARD, Defendant CIVIL ACTION - IN EQUITY PETITION TO MAKE RULE ABSOLUTE TO WITHDRAW AS COUNSEL AND NOW COMES your Petitioner, Cunningham & Chemicoff, P.C., who files this Petition to Make Rule Absolute to Withdraw as Counsel and in support thereof, avers the following: I. Counsel became involved in representing the Plaintiff Thomas Derrick interests as a direct result of his request to represent his interests before the Court with regard to all matters related to his eviction from his former residence. 2. Respondent, Thomas W. Derrick, was given the opportunity by the Defendant to retrieve his personal goods from the apartment he occupied and all his goods were retumed in an orderly manner. I 3. Respondent, Thomas W. Derrick, refuses to follow counsel's direction in this matter. 4. Respondent failed to provide to counsel current addresses and telephone numbers at which Respondent could be contacted. Later it was determined he has been incarcerated at various correctional facilities in the last two (2) years. 5. On November 8, 2002, Plaintiffs Counsel filed a Petition to Withdraw as Counsel. 6. On November 18, 2002, a Rule was issued by the Honorable Wesley Oler, Jr. against the Plaintiff to show cause why the relief sought should not be granted. 7. On November 25, 2002, your Petitioner forwarded the original Petition and Rule to Withdraw as Counsel upon the Plaintiff. 8. The Petition and Rule were served on December 11, 2002 on Plaintiff on his then last known address via certified mail. A true and correct copy of receipt of delivery of certified mail is attached hereto, made part hereof and marked Exhibit "P-l". 2 9. On May 27, 2003, the Honorable J. Wesley 01er forwarded correspondence received from the Plaintiff regarding his understanding that counsel may have withdrawn from the case. 10. Between November 2002 and July 25,2005, Plaintiffs Counsel was never contacted by Plaintiff. 11. On July 25,2005, Plaintiff telephoned Counsel's office but counsel could not reach Plaintiff at the telephone number left by the Plaintiff. 12. In September 2005, Plaintiffs Counsel received Notice of an intent to purge this matter due to inactivity. 13. Plaintiffs Counsel contacted the Prothonotary's Office and was advised Plaintiff had contacted the Prothonotary's office to object to the purge of the case. 14. The Prothonotary's Office advised Plaintiffs Counsel the Plaintiff was an inmate at the Cumberland County Prison. 3 15. On October 17,2005, Plaintiffs Counsel forwarded correspondence to the Plaintiff attaching copies of the Rule and Petition to Withdraw as Counsel advising him of his intent to make the Rule served upon him as absolute. A true and correct copy of the correspondence is attached hereto, made part here of and is marked as Exhibit "P-2". 16. The correspondence, Petition and Rule were served on or before October 24, 2005 on Plaintiff on his last known address via certified mail. A true and correct copy of receipt of delivery of certified mail is attached hereto, made part hereof and marked Exhibit "'P-3". 17. As of the date of this pleading, Plaintiffs Counsel has not been contacted by the Plaintiff. 18. Respondent has failed to pay any counsel fees incurred in this matter. WHEREFORE, Cunningham & Chemicoff, P.C. respectfully request this Honorable Court to enter an Order Absolute directing the Prothonotary to mark the entry of the appearance of Cunningham & Chemicoff, P.C. in the above captioned matter as withdrawn. 4 Respectfully submitted, Date: /~;:j ICOFF, P.C. F:\HOMEIAHEWITTIDOCSID-FIDERRICKIPETWDRA W.WPD 5 \ EXlll13I'f ""p-l ~~ .----- END . Complete iteml1 andfor 2 for additi0nai eervice8. -Complete Items 3, 48, and 4b. . Print your name and address on the reverse of this form 10 that we can retum this card to you. -Attach this form to the front of the mallpiece, or on the back if space does not permit. _Writs"R8tum RBC6ipt ReqUBBtecr on the mallpiece below the article number. -The Return Receipt will show to whom the article was delivered and the date delivered. , ~. -! ;; : ~ ! .. 5 lS 11 3. Article Addressed to: 0 111.1>0",,,,-,> W, vrr.cK f R'i I (Y) H 't: S~r /,? I-k~. ,qoq X'mer l-hjheJa1-Sl-VkJ C(Vli~/e.1 PA 17013 $ o ,.. .!! I else wish to receive the following services (for an extre fee): 1. 0 Addressee's Address ~ 2. 0 Restricted Delivery j Consult postmesler for fee. J 48. Article Number . II: E " 1i II: 01 C .. " .e " o ,.. ... c ~ i)Q). S1~-OOo3- 10.l.-61S0 4b. Service Type o Registered o Express Mail o Return Receipt for Merchendise 7. Date of Delivery iJ - J<f2- 8. Addressee's Address (Only if requested and fee is paid) t:rCertlfied o Insured o COD 102595.97.S.0179 Domestic Return Receipt . . JORDAN D. CUNNINGHAM ROBERT E. CHERNICOFF MARC W. WITZIG HENRY W VAN ECK JOHN M. HYAMS CUNNINGHAM & CHERNICOFF, r.c. ATTORNEYS AT LAW P.O. BOX 60457 HARRISBURG, PENNSYLVANIA 17106-0457 HERSHEY TELEPHONE (717) 534-2833 IRS NO. 23-2274135 Street Address: 2320 N. 2nd Street Harrisburg, PA 17110 TELEPHONE (717) 238-6570 FAX (717) 238-4809 November 25, 2002 Mr. Thomas W. Derrick RE/MAX Sterling Associates 1909 Ritner Highway Suite 1 Carlisle, PA 17013 PERSONAL AND CONFIDENTIAL Re: Derrick v. Derrick; Our File No. 403101 and Derrick v. Ward; Our File No. 410402 Dear Mr. Derrick: Enclosed are two (2) separate Rules to Show Cause why I should not be allowed to withdraw my appearance on your behalf in the above captioned matters. I have forwarded this letter to you by both certified mail and first-class at your last known address. U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic MatI Only; No Insurance Coverage Provided) Very truly yours, CUNNINGHAM & CHERNICOFF, P.C. o IJ1 M <0 ru 0- M n1 Jordan D. Cunningham Postage $ Certified Fee /" Dr I}, ';:( \.{' Postmark Here rn Peturn Receipt Fee o (Endor~~ment Required) o o Restricl,-,d Delivery Fee (Endorsement Roquired) Total Postage & Fees $ Receipt 's mail o n1 ::20 ~_~~_I!)J0~j-~____O~_LL~'_~,h{ u Street, Apt. No.; or PO Box No. roo", o o l'- City, Stare, ZIP+ 4 PS Form 3800, May 2000 See Reverse for Instructions \lflV 1 2?t1f11 THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02 - 2656 EQUITY CIVIL ACTION - IN EQUITY BEVERLY A. WARD, Defendant Ii , ORDER AND NOW, this )'idJday of~fe.P~)eR , 2002, upon review of the annexed Petition and upon motion of Jordan D. Cunningham, Esquire, a Rule is hereby issued upon C<..N'J, Dc.te,.{Jo...s I::. they ha.\ie.. the Plaintiff, Thomas Derrick, to show cause, if any -..., why the relief requested in said /, Petition should not be granted. Rule returnable /<:1 days from the date of service. lit . . ~ ;.~.,.~ -,- "I' j:: ~'" " '." , "'. '.~' "'/1, '".., ~ \ -; J I,' -,.- . . .~,-;:O :i'lj.-) ,i-, .i"/ t:JilU .1: ,.r ,; ",. r ...... /" ~ . ../'. n,'~" .,; ."Uft afC<Jrllsle, I"l. ';ijt:;;:d',,?I:. ,(~~,~~ '))t.f.,'~, .0..1.:....,.., ~O~(l -. .Wla.?:J ;(..j.J..w.:r.l/l0..an. .'. . ~r!)lhonolary THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 02 - 2656 EQUITY CIVIL ACTION - IN EQUITY BEVERLY A. WARD, Defendant PETITION TO WITHDRAW AS COUNSEL AND NOW COMES your Petitioner, Cunningham & Chernicoff, P.C., who files this Petition for Withdraw as Counsel and in support thereof, avers the following: 1. Counsel became involved in representing the Plaintiffs Thomas Derrick i~lerests ,.. as a direct result of his request to represent his interests before the Court with regard to all matters related to eviction from his former resident by his former landlord. 2. Respondent, Thomas W. Derrick, has been given the opportunity by the Defendant to retrieve his personal goods from the apartment he occupied and all his goods were retumed in an orderly manner. 3. Respondent, Thomas W. Derrick, refuses to follow counsel's direction in this matter. 1 4. Respondent has failed to provide to counsel current addresses and telephone numbers at which Respondent could be contacted. 5. Respondent has failed to pay any counsel fees incurred in this matter. :1 WHEREFORE, Cunningham & Chemicoff, P.C. respectfully request this Honorable Court to enter an Order allowing it to withdraw its representation of Plaintiffs interests in ,( the above captioned matter. Date: ///8;;2- , By: bl\docslpetitionlderrick3 Respectfully submitted, Jor n D. Cunningham, Esquire LD. #23144 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 2 EXHIBIT "P-2 " 7 G HERSHEY TELEPHONE (717) 534-2833 IRS NO. 23-2274135 t'; 'J';' ,j ~ ,; ~ $ C-,;'1;f'i'dr'",," I r ::)C.,,:IP:.;;k ;'-kr<~ Street Address: 2320 N. 2nd Street Harrisburg. PA 17110 ,PHONE (717) 238-6S70 FAX (717) 238-4809 Via Certified Mail # 70001530000331934601 Tom Derrick c/o Cumberland County Prison 1101 Clairmont Road, Block F Carlisle, P A 17013 Re: Thomas Derrick v. Beverly Ward Dear Mr. Derrick: Enclosed are copies of Motions and Orders signed by Judge Oler on November 18,2002, granting my leave to withdraw as your counsel in the above-captioned matter and the matter of Beverly Ward v. Thomas Derrick. Obviously, you must have received copies of these petitions, which I forwarded to you on November 25, 2002, as you wrote to Judge Oler on May 27,2003, citing my anticipated withdrawal as counsel. I never heard from you with regard to this case since the fall of 2002. You attempted to call one time this summer on July 25, 2005, however, I could never reach you at the number that you left. Since November of 2002, I have never had personal contact with you. I have never received payment for counsel fees and costs, and based upon information I received from your mother regarding the defendant's actions in attempting to work with you in this matter, I desired to withdraw as counsel. You must file an objection to the case being dismissed by October 25,2005. A letter as simple as you stating, "I will proceed to list the case for trial" would be sufficient in order to avoid dismissal of the case. I will be filing a Rule to make absolute my Motion to Withdraw as Counsel on October 21,2005, as I had mailed you the Motion to Withdraw as Counsel on December 11,2002 via Certified Mail. If you do not contact the Prothonotary in writing by CUNNINGHAM & CHERNICOFF, P.c. ATTORNEYS AT LAW Tom Derrick Page 2 October 17, 2005 October 25, 2005, this matter will be dismissed for lack of activity. If the case is dismissed for lack of activity it is with prejudice and you will not be able to bring the action again. Very truly yours, CUNNINGHAM & CHERNICOFF, P.e. ~ O"? cDcc"b J.! lr. I\fl \(\~}l(I,~ !P Jordan D. Cunningham JDC:pjk Enclosure F:\HOMElAHEWITI\DOCS\D-F\DERRICKT. WPD JORDAN D. CUNNINGHAM ROBERI' E. CHERNlCOFF MARC W. WITZIG HENRY W. VAN ECK JOHN M. HYAMS CUNNINGHAM & CHERNICOFF, P.c. ATTORNEYS AT LAW P.O. BOX 60457 HARRISBURG, PENNSYLVANIA 17106-0457 HERSHEY TELEPHONE (717) 534-2833 IRS NO. 23-2274138 Street Address: 2320 N. 2nd Street Harrisburg. PA 17110 TELEPHONE (717) ~70 FAX (717) 238-4809 November 25, 2002 Mr. Thomas W. Derrick RE/MAX Sterling Associates 1909 Ritner Highway Suite 1 Carlisle, PA 17013 PERSONAL AND CONFIDENTIAL Re: Derrick v. Derrick; Our File No. 403101 and Derrick v. Ward; Our File No. 410402 Dear Mr. Derrick: Enclosed are two (2) separate Rules to Show Cause why I should not be allowed to withdraw my appearance on your behalf in the above captioned matters. I have forwarded this letter to you by both certified mail and first-class at your last known address. Very JDC/bam P.C. . Cunningham Enclosure Sent Certified Mail. Return Receipt Reauested and bv first-class mail II ! I I 11 ~ i NOV 12m THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 02 - 2656 EQUITY CIVIL ACTION - IN EQUITY ;i v. BEVERLY A. WARD, Defendant i! ORDER AND NOW, tlri, ~ day oifer~"R ,2002, _ re~'w of tho =""" :1 Petition and upon motion of Jordan D. Cunningham, Esquire, a Rule is hereby issued upon OJJd. Dete",do.'st:. th~ ho.l/e, the Plaintiff, Thomas Derric~to show cause, ifanytllllii, why the relief requested in said Petition should not be granted. Rule returnable / ~ days from the date of service. "",,">q>: ("(~''''l' F~OM RECC'.0 I._ .i -.. ',-,I ..' .. 1 - nd I~ T',,::n~c"; ;J', I ilar~ unto sd r:l'j no a~',j .. · '1ttrrt "",,,,,ro, p" Th:.....tL.. Of..N.01.~....,~Q.~ .-' 'In ~):J.... . ~. . . . . . rothanotary I I 'I II I, THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 02 - 2656 EQUITY BEVERL Y A. WARD, Defendant CIVIL ACTION - IN EQUITY :: I: PETITION TO WITHDRAW AS COUNSEL AND NOW COMES your Petitioner, Cunningham & Chernicoff, P.C., who files this Petition for Withdraw as Counsel and in support thereof, avers the following: 1. Counsel became involved in representing the Plaintiffs Thomas Derrick interests as a direct result of his request to represent his interests before the Court with regard to all matters related to eviction from his former resident by his former landlord. 2. Respondent, Thomas W. Derrick, has been given the opportunity by the Defendant to retrieve his personal goods from the apartment he occupied and all his goods were retumed in an orderly manner. 3. Respondent, Thomas W. Derrick, refuses to follow counsel's direction in this matter. 1 II II II I, 4. Respondent has failed to provide to counsel current addresses and telephone numbers at which Respondent could be contacted. 5. Respondent has failed to pay any counsel fees incurred in this matter. I :1 WHEREFORE, Cunningham & Chernicoff, P.C. respectfully request this Honorable Court to enter an Order allowing it to withdraw its representation of Plaintiffs interests in II the above captioned matter. Date: // /8 ~L- . By: bl\docs\petition\derrick3 Respectfully submitted, Jor D. Cunningham, Esquire LD.#23144 2320 North Second Street P. O. Box 60457 Harrisburg, P A 17106-0457 (717) 238-6570 2 BEVERLY L. DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA DOMESTIC RELATIONS SECTION v. DOCKET NO. 254 S 1990 P ACSES CASE NO. 303100222 THOMAS W. DERRICK, Defendant OTHER STATE ID NO. 17295/RJD 'I Ii '. q ORDER AND NOW, this {j!Jay of n !1tfhtl1t.A""2002, upon review of the annexed Petition and upon motion of Jordan D. Cunningham, Esquire, a Rule is hereby issued upon the Defendant, Thomas W. Derrick, to show cause, ifany he has, why the relief requested in said Petition should not be granted. Rule returnable I () days from the date of service. BY THE COURT: IJ / f;lrVL/n /J~~i!;) I J,/ , :~ -r..::, ':~:'~ .~~.. ~~~ -"'~":' ;1 \'~'.~ ,": ", .t. -"4' '\" ~ _", " ,., ... . . ~. . p ..; ~" ~-+t... ~/; .,'.. .. 10.tU'PJ!:~ . . '. ':_" ..~~ ':_Le;.:'!:....="~'''''''':. ':......:....~-,t"j :.,:>....f~~-._.; .. . __ _.. ."',T.t' .;.ir..'~,:,<,", .." .. ..... "'",1,,' ;!:.'U__, ... --."......L~, I i I , I I 'I I, 'II BEVERL Y L. DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA DOMESTIC RELATIONS SECTION v. DOCKET NO. 254 S 1990 PACSES CASE NO. 303100222 d ..: THOMAS W. DERRICK, Defendant OTHER STATE ID NO. 17295/RJD = w PETITION TO WITHDRAW AS COUNSEL .~ ~ -a ~ , !: = AND NOW COMES your Petitioner, Cunningham & Chernicoff, P.C:, who frl'eS this Petition for Withdraw as Counsel and in support thereof, avers the following: I.. Counsel became involved in representing the Defendant's Thomas Derrick interests as a direct result of his request to represent his interests before the Court with regard to all matters related to support, including but not limited to a modification of the present Support Order and representation before the Court on charges of contempt. 2. Respondent, Thomas W. Derrick, on one occasion was to appear at a modification hearing at the Office of Domestic Relations and failed to advise the undersigned he was hospitalized. As a result, the undersigned appeared at the hearing only to discover that Respondent had advised both the Office of Domestic Relations of his hospitalization and his former wife of his hospitalization and had requested a continuance of the hearing. 3. Respondent has failed to provide to counsel current addresses and telephone numbers at which Respondent could be contacted. '. I " .1 :1 I :i 4. Respondent has failed to pay any counsel fees incurred in this matter. q WHEREFORE, Cunningham & Chernicoff, P.C. respectfully request this Honorable Court to enter an Order allowing it to withdraw its representation of Defendant's interests in the above captioned matter. :1 ;i .. ~ i . II Respectfully submitted, I I, Date: / / )~Z- . Cunningham, Esquire LD. 3144 2320 North Second Street P. 0, Box 60457 Harrisburg, PA 17106-0457 (717) 238-6570 i! , I; bl\docs\petilion\derrick2 2 EXHIBIT "P-3 " SENDER COMPLErE THIS SECTION . Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailplece, or on the front if space permits. 1. Article Addressed to: 10 rTL lJe..<:r'lJ) . rr)e.LUll~J ~o PILt<:c,N 1[ 0 I 0ki...rrc::,i;t-Pjd. i _~iC1J:., F C~) Pi\. 17013 C . . . . o Agent Addressee C. Date of Delivery O. Is delivery ad d' erent from item 1? 0 Yes It YES, enter delivery address below: 0 No 3. Service Type ..Certified Mall D Registered o Insured Mail o Express Mail o Return Receipt for Merchandise DC.O.D. 4. Restricted Delivery? (Extra Fee) DYes 2. Article Number rr..,,"sferfrom service labeJ) 7 DOO 15 BOCCe?, 3 i(l:j PS Form 3811, February 2004 Domestic Return Receipt 1/ 106 I 102595-02-M-1540 CERTIFICATE OF SERVICE I do hereby state that on the n--Y?ay of November 2005, I served a true and correct copy of the foregoing Petition to Make Rule Absolute to Withdraw as Counsel in the captioned matter, by placing the same in the United States mail, first-class, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Norman M. Yoffe Yoffe & Yoffe, P.C. 214 Senate Avenue Suite 203 Camp Hill, PA 17011 Thomas Derrick c/o Cumberland County Prison 1101 Clairmont Road, Block F Carlisle, P A 17013 fJJy~r Legal Secretary ;:--~ 0, ., () ., .:!} [ (! . ~ ~j (') ,'_~ n:l -j :~O .< C,) r 'Y NOV 1 7 2005 -~'i. I .-..:.:..:::.:...-.::_:.:.::------1 THOMAS DERRICK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANlA v. NO. 02 - 2656 EQUITY BEVERLY A. WARD, Defendant CIVIL ACTION - IN EQUITY ORDER rt. AND NOW, this 2.-"'"0 day of --.1J ., " . , 2005, upon review of the annexed Petition and upon motion of Jordan D. Cunningham, Esquire, the Rule issued upon the Plaintiff, Thomas Derrick, to show cause, if any he has, why the Petition to Withdraw as Counsel should not be granted as made Absolute and the Prothonotary is directed to mark the appearance of Cunningham & Chernicoff, P.e. as counsel for the Plaintiff, Thomas Derrick, as withdrawn. BY THE COURT: J. '1'< (: ~) '.Ji,)' ;S'JZ j)j'/.-!" :!.C)