HomeMy WebLinkAbout94-01190
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EILEEN J. HEBERUG,
Plaintiff
IN niE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL AcrION - EQUITY
NO. 1190 EQUITY 1994
VB.
UBERTY HOLDING COMPANY, :
and JOHN E. MUMMA,
Defendants
ORDER
.
AND NOW, this I f day of March, 1994, on relation of counsel that they have
settled the mailers therein raised, the pending motion for preliminary injunction is deemed
DISMISSED.
BY TIIE COURT,
Ad-
Marcus A. McKnight, III, Esquire
For the Plaintiff
Hubert X. Gilroy, Esquire
For the Defendants
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EILEEN J. HEBERLIG,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
1190 EQUITY 1994
IN EQUITY &ATLAW
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LIBERTY HOLDING COMPANY,
and JOHN E. MUMMA,
DEFENDANTS
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PRAECIPE TO RELEASE FUND!i
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SETfLE & DISCONTINUE
TO: LAWRENCE E. WELKER, PROTHONOTARY
1.
Please Settle and Discontinue this case and issue a settlement certificate.
2.
Please pay the sum of $2,300.00 which had been deposited pursuant to this action to
Irwin, McKnight & Hughes, attorneys for the plaintiff.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
BROUJOS, GaROY & HOUSTON, P.C.
Hubert X. G' oy, Esquire
4 Hanover reet
Carlisle, J\ 17013
(717) 2 3-5838
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EILEEN J. HEBERLIG,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
1190 EQUITY 1994
.
.
LmERTY HOLDING COMPANY,
and JOHN E. MUMMA,
DEFENDANTS
IN EQUITY & AT LAW
PRAECIPE TO RELEASE FUNDS
AND
SETI'LE & DISCONTINUE
TO: LAWRENCE E. WELKER, PROTHONOTARY
1.
Please Settle and Discontinue this case and issue a settlement certificate.
2.
Please pay the sum of $2,300.00 which had been deposited pursuant to this action to
Irwin, McKnight & Hughes, attorneys for the plaintiff.
. ,.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
BROUJOS, GILROY & HOUSTON, P.C.
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Cumberlud County, Pcnnsyl\-ani&
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IRWIN, IHWIN & ~[cI{NIGHT
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EILEEN J. HEBERLIG,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CI\'Y.I!I!l4 1/'70 fJ4/99V
IN EQUITY & AT LAW
V.
LmERTY HOLDING COMPANY,
and JOHN E. MUMMA,
Defendants
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, order 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 ajudgment may be entered against
you by the court without further 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.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
EILEEN J. HEBERLIG,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
ova 1"4 /1</" l1.~ /1 tJ Y
IN EQUITY & AT LAW
v.
LmERTY HOLDING COMPANY,
and JOHN E. MUMMA,
Defendants
AND NOW, this
COMPLAINT IN EOUITY
/rJ 1 day Of~, 1994, comes EILEEN J. HEBERLIG,
by her attorneys, IRWIN, IRWIN & McKNIGHT and makes the following Complaint in Equity
against the Defendants, LmERTY HOLDING COMPANY and JOHN E. MUMMA,
individually as follows;
I.
The Plaintiff, Eileen J. Heberlig, is an adult individual residing at 149 East Louther Street,
Carlisle, Pennsylvania 17013.
2.
The Defendant, Liberty Holding Company is believed to be a corporation or a partnership
doing business in the Commonwealth of Pennsylvania at 1442 Trindle Road, Carlisle,
Pennsylvania 17013.
3.
The Defendant, John E. Mumma, is an adult individual and has a place of business situate
at 1255 Claremont Road, Carlisle, Cumberland County, Pennsylvania 17013.
4.
The parties entered into a lease agreement dated April 24, 1994 a copy of which is
attached to this complaint and is made a part hereof and is marked as Exhibit "A".
2
S.
The plaintiff moved into the premises at 28 South Courthouse Avenue, Carlisle, PA 17013
on May I, 1992 and conducted a retail clothing consignment business.
6.
The plaintiff paid the sum of Four Hundred and no/IOO (S400.00) Dollars per month from
May 1,1992 through and including the month of December 1993. The plaintiff continued to pay
Four Hundred and no/I 00 throughout 1993 and the defendants did not collect the additional sum
ofSl00.00 per month through 1993.
7.
In late December 1993, snowfall made movement on the sidewalks in front of the leased
premises treacherous for the plaintiff, her customers and consignees.
8.
Throughout the month of January 1994, the defendants failed to remove the ice and snow
in front of the plaintiffs business. The plaintiff was unable to pay the rent due January I, 1994.
9.
The plaintiff was unable to pay the rent due on February I, 1994 and on February 3, 1994,
the plaintiff herself fell in front of the leased premises on a ridge of ice and injured her back. She
reported her fall to Mr. Mumma, defendant, on February 3, 1994.
10.
The defendant, John E. Mumma, retaliated by sending a letter dated February 9, 1994
which plaintiff never received. On February 9, 1994, the defendant changed the locks to the
leased premises and barred the plaintiff from her place of business.
3
II.
Despite repeated requests, the defendants have refused to pennit the plaintiff to enter the
premises in order to wrap up her business and return her consigned items of clothing to their
owners.
COUNT I
Breach of Contract
12.
The averments of paragraphs one through eleven are herein incorporated by reference and
made a part of this court.
13.
The plaintiff has with the filing of this complaint, paid into the Office of the Prothonotary
the sum of Two Thousand Three Hundred and nollOO ($2,300.00) Dollars which constitutes the
maximum damages which the defendants can claim pursuant to the written lease.
14.
The defendants have by their actions breached the lease agreement entered into by the
parties as follows:
1. By failing to provide a written thirty-day notice of the intention to
tenninate the lease as provided by paragraph eleven (II) of the Lease.
2. By failing to provide a Notice to Quit and otherwise follow the
procedures for possession of the Landlord Tenant Act.
3. By unlawfully detaining the property of the plaintiff and the clothing
of her consignees.
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4. By changing the locks and barring her from the property without
notice or explanation.
IS.
The plaintiff seeks the following relief from the Court:
a. Immediate possession of the premises at 28 South
Courthouse Avenue; and possession of the belongings of the plaintiff
and of her consignees.
b. Damages from February 9, to the date that the plaintiff
regains possession of her premises sufficient enough to pay the lost
income of the plaintiff for her failure to have use of the property.
c. Any other equitable relief required by the Court.
COUNT II
INTENTIONAL AND/OR NEGLIGENT
INTERFERENCE WITH THE BUSINESS OF THE PLAINTIFF
16.
The averments of Fact contained in paragraph one (I) through fifteen (IS) of this
complaint are herein incorporated by reference and are made a part hereof.
17.
The defendants, John E. Mumma and Liberty Holding Company, deliberately locked the
plaintiff out of the place of business of the plaintiff without warning a notice as required by the
lease and the laws.
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18.
The defendants knew that the action of locking the plaintiff out of her place of business
would cause immediate and severe irreparable harm to her business and they sought to
intentionally end her business.
19.
The defendants, John E. Mumma and Liberty Holding Company did negligently harm the
plaintiff as follows:
a. By changing the locks to the leased premises without
notification, the defendants knew or should have known that severe
and irreparable harm would be done to the plaintiff and her reputation
in the business community.
b. By changing the locks without notice to the place of
business, the defendants knew or should have known that the plaintiff
would be denied the revenue from her consignment business.
20.
The actions of the defendants in changing the locks to the plaintiff's leased premises
without notice constituted reckless and outrageous conduct sufficient for the Court to award
punitive damages against the Defendants.
6
By:
WHEREFORE, the plaintiff requests that in addition to the relief previously requested, the
Court award damages to the plaintiff in an amount in excess of Twenty Thousand and nollOO
($20,000.00) Dollars as well as punitive damages, costs, and interest as pennitted by law.
Respectfully submitted,
IRWIN, IRWIN & McKNIGHT
Date: March 10, 1994
doc:&'newCOll1plbcberIis-doc
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M'\Y-17-1~1 10: 17 FROM ICD i=tlD 51ERL1H3
TO
912432248 P.e2
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COMMERCIAL LE1ISE
pARfiES
THIS AGREEMENT OF LEASE, made this :(1 T1I day of ,4Pt.lL.
/992., bet-.,ean J../~1.1"1 I-bt.1Jl.J6 ~Pl\"''' (for the purpose of this
Lease to ]:)e known as the "Lessor") and Ell.oW ff: for the purpose
of this Lease to be known as the "Lessee"). rn;e,6LUl'.
PREMISES
WITNESSETH, that the said LeSsor, in consideration of the
rents and covenants hereinafter mentioned, does demise and lease
unto the said Lessee, all that certain space cons:l.stinq of
approximately F"...rc: I-lu~ (500 t;b) square feet,
to be used for the sole purpose of ~,.:(" c......T"H~ ON CD-J..,.,..J",E,.Jr
AT ;18 ~o>JT1-< Cs:,...ntTI-'D~ f>.rr>,.J~ c.H......~l.f. pA I"ol:!> ·
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TO HAVE AND 'rO HOLD unto the Lessee, sul:lject to the
conditions of this Aqreement for the term beq:l.nninq on the / s-r' day
of f'/\A4 I \qC\::<J . This Lease shall be in ef!ect for a term of
O""E. 'iEf'4l . At the end of said term, Lessee shall have an option
to renew the Lease, the terms and conditions of which shall !:le
re-neqotiated ]:)y Lessor and Lessee at the time of such renewal.~
The Lessee shall notify the Lessor in writinq 60 day. prior to the
expiration of the lease tea as to whether it intends to excercise
this option.
RENT
IN CONSIDERA'rION of which, the said Lessee aqrees to pay to
the said Lessor for the use of sald premises, the SUlII of (lifBoo - )
~a,)~ \\l.",u";)A/-lt,) Elt:ft-IT HUl'iPJ2.Etl l:t:...J..M~, to be payable as follOWS,
viz, the first month of the considerat:ion of FCullI-lUNDa.EO" .)("$b>-)
Dollars, to be payable on tft,... ;:~,\"''l:2 anc1 thereafter in monthly
installlllents of (&Lj.oo- ) OOllars, on the first day of each
calender month from '3U,.n!; I 1'I~z.. to A-j'lI.IL I ffl3. AAd.
Dc11A.~ 041 t,t,.... '1):31!- diiy of Q~,..h ~~, o~gar
-.oath. from to .
'* il-'.e. I..f.~!'e:€ ~H'Al.\.. ~ 11-lE. (:ol'n.... oF' !.Je1".s,.",e" ~ 'De..-I~E%> flte""~ ~
f'<,L. \'\Jr<<: S.....,..ro ~ep,Q. 'i"elUl\ F"cOl... ~c.~ ~ n'le:-. '1~l..,.).n-\ !l.LL.
Elf\lEt... -raltm':> ,...ro c.-Jllfn...S '" n.l<S UEA!>\! r.,.mA,"""(;, n<e: SMlt.
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!'I'lY-17-1991 lEl'17 FR01 ICD AND STERl.1l'Ci
TO
9124:lZ:4S . P. 03
It i.s further aqreea that the property is leased for a
rental ot "'1800 for the term hereof, payable at the time of the
makinq of this lease and that the provisions herein contained for
the payment of such rent in installments are for the convenience of
the Lessee onlY, Upon default in the payment of such rent, the
entire rent for the full lease term then remaininq unpaid shall at
once become due and payable.
All rental paY1Dents are due and payable on the due date as
specified in this paraqraph or within Three (3) days thereafter
(qrace period) without penalty. However, after !l:OO P,lII. on the
3rd day after the due date as afor8lllentionea, any rental payment:
not paid will be subject to a late charqe of Ten (10%) percent of
the rental paY1Dent(s) due and payable.
SECURITY DEPOSIT
Lessee aqrees to deposit with Le!isor, at the t:l.me of siqninq
this Aqreement of Lease, the sum of ,.~- tHL as security for the
faithful perfot'lllal1ce of all t.'1e terms, covenants and conditions of
this lease, which sum shall be returned to Lessee at the expiration
of the lease term and any subsequent hola-over, sul:lject to the
provisions of this Aqreement of Lease ana, in particular, this
section.
If Lessee defaults in the performance of any of the terms,
covenants ana conditions of this Agreement of Lease at any time,
Lessor may, at its sole option, use, apply or retain the security
deposit, or any portion thereof, as necessary for the payment of
any rent or any other sum for which Lessee may be in default, or
for any sum that Lessor may expend or be required to expend as a
result of Lessee's default of any of the terms, covenants and
conditions of this Aqreement of Lease, including but not limited
to damllqes to the leasehold property caused by the neqliqent or
intentional acts or omissions of Lessee, his invitee. or 1:I.cansees.
OTILITIES
The Lessee shall payor cause to be paid all charqes for
elee1>rie,;.1:.l, liqkt, telephone, or any other cOlll1llunication or
utility service used in or rendered or supplied to the demised.
premises throuqhout the term of this lease, and. to i=demnify the
Lessor and save it ha=less aqainst any 1:I.ability or l5amaqes on
such account. ~ "E~__ ~ PA., oL. ~~E Tt> ~c: PA':b A'-'-~E5 ~
'::..Ct;rl2.,C.IT'-\ L..'''~ I J-loa.T AH.. c.c.'l)oTl->C, W'\'1U. "NO ~~ c.uA~ A,.JT)
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'iIASl4 Lol"I~ x;... ...~c:~ '1M> ~"'Clf: 1SII6::. 1'l!!<>-....eG1<.
-:1'-:1'- ~ se:c..uttT'1 ~s". IS \)\JE Avo ~LS WI~IN 'eo 1)/I"'1S
C1F c..c...."'e-I\JC.<!/ne,.r1'" * 11-115 l..~E'~a ~l!> LSAI'L'" r,.,.,... 6e ~
MN- ~ \/hD """" 1\.\ G' Ot Sc../2.6"f'\-" a>I' ntt: l...e")S ~.
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M'lY-17-1S91 10118 FR01 ICD FV-lD STERLlt-.O
TO
912432248 P.B4
COMMON AREA 'MAIN'l'ENANCE CHARGE
THE DEMISE HEREIN CONTAINED IS MADE AND ACCEPTED ON
TEE FOLLOWING EXPRESS CONDITIONS 1
1. PLACE 01" PAYMENT
The rent reserved shall be promptly paid on the several days
and times specified herein without deduction or abatement, unless
hereinafter provided on the contrary, at the principal office of
the Lessor.
%tRiER CI'n J:lB'1ELGFSS
160 E:. PRBGRflSS AVE. SeITE Z D
..R1tJUUSBlffi(: , PA 171 09
L.J6E/l.N Ht,'b/'lG, ~y
P:o. Coy. '~'l
~L.\s..e fJA 110\3.
2. INABILITY TO GIVE POSSESSION
The Lessor shall not be liable to the Lessee for any damaqes
which may be caused to the Lessee by the failure of the Lessor to
qive possession of the demised premises at the time aqreed upon, if
said failure is not d.ue to any fault on the part of the Lessor,
unless hereinafter provid.ed to the contrary.
EN
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I1<Y-17-1991 le: 13 FROM ICD i=tlD SlEllLIH3
TO
912432248 P.es
3 . HOLDING OVER AS RENEWAL
A holding over by the Lessee beyond the term of this Lease or
any hereinafter duly author:l.zed addit:l.onal term shall be deemed a
renewal of the lease on a 1Il0n..h to month bas:l.s, w:l.th said renewal
being under and sul:lject to all prov:l.s:l.ons contained in th:l.s
Aqreement of Lease, and shall be at the opt:l.on of the Lessor.
Lessee shall be deemed to have held over under this paraqraph
unless it shall have notified Lessor in writinq of :l.ts intention
to surrender the prem:l.ses at the end of the term hereof at least
(~) days prior to the exp:l.ration of the term hereof.
4 . NEGATIVE COVENANTS OF LESSEE
(a) WASTE DAMAGE OR DlJURY TO PREMISES; RESTORATION
No waste, damage or injury to the premises shall be
committed and at the end of the term the dem:l.sed prem:l.ses shall be
restored, at the option of the Lessor, to the sllllle condition in
which they were at the cOllllllencement of the term, and the cost of
said restoration shall be paid by the Lessee, which cost shall be
treated as additional rent due and owing under the teas of the
Lease. This paragraph is subject to the except:l.on of ordinary wear
and tear and unavoidable damage by fire, elements, casualty, or
other cause or happen:l.ng not dUe to the Lesse.'s neql:l.qence.
(b) LAWFUL pOSSESSION; FIRE PREVENTION
Said Lessee shall not carry on any unlawful or immoral
business in or about the demised prem:l.ses, and shall not carry on
any business which will endanger the buildinq from f:l.re or cause a
forfeiture of any fire insurance that the Lessor has or lIlay
hereafter have on said bU:I.lding. The Lesse. shall use every
precaution against fire or activities Which would cause a
forfeiture of any fire :l.nsu=ance that the Lessor has or may
hereafter have on said bu:l.lding, The Lessee shall not operate any
machinery or equipment that may be harmful to the buildinq or
disturbinq to other occupants of the building; further, the Lessee
shall not place weights in any portion of the dem:l.se premises
beyond tIle safe carryinq capacity of the structure.
4
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~Y-17-1991 10: 19 FRO'I ICD RND STERLII-G
TO
912432248 P.e6
(c) ALTERATIONS AND DlPRO'n:MmrS
The Lessee shall not have the privileqe of 1lIIprovinq the
leased premises for Lessee's own purposes, unless the Lessor
approves any proposed improvement(s) in vritinq, and 1lIIprovelllents
are made at Lessee's expense. All additions, alterations, and
improvements ude in or to the demised premises by either Lessor or
Lassee, shall become the property of Lessor and b. surrendered.
with the prnisu upon the expiration or sooner terlllination of this
lease, provided, however, that the Lessor shall have the riqht to
require the Lessee to remove such fixtures at the Lessee's cost
upon such ter.mination of this leue.
The Lessee shall imdemnify the Lessor aqa:l.nst any mechanic's
lien or other lien arisinq out of makinq any alteration, repair,
addition, or improvement by the Lesse..
(d) ASSIGNING, ETC. BY LESSEE
The Lessee shall not have the privileqe of assiqninq or
sul:llettinq said premises, or mortqaqinq any interest it may have by
virtUCl of this Lease Aqnement.
ee) t1SE RESTRICTIONS
Lessee shall use the lease premises for the purpose of
conducting the business hereinafter set forth and for no other
pUrpose, that is: ~,,_ Co~Co"",&t;r c:.....r:r.....psttJ.
. Lessee shall not abandon or leave
vacant the demised premises, shall not per=it, license, or SUffer
the occupancy of any other party in the demised prelllises and shall:
(i) Display no merchandise outside the demised premises nor in
any way obstruct the halls or sidewalks adjacent thereto and store
all trash and refuse in appropriate containers vithin the demised
premises and attend to the daily disposal thereof in manner
designated by the Lessor.
(ii) Load or unload all merchandise, supplies, fixtures,
equipment, and furniture and caUSe the collection of rubbiSh only
throuqh the rear service door (east door of mall). No deliveries
of any kind shall be made throuqh the front entrance.
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912432248 P.07
(i:l.i) Prevent the demised premises trOlll beinq used in any way
which will injure the reputation of the salIle or frOlll beinq use4 in
any way which may be a nuisance, annoyance, inconvenience, or
damaqe to the other tenants, includinq, without lWtinq the
qenerality of the foreqoing, noise by the playinq of any musical
instrument or radio or television or the use of a microphone, loud
speaker, electrical equipment or other equipment which may be heard
outside of the demised premises.
(iv) Display or affix no sign, advertisinq, placard, name,
trademark, inll:l.gnia, decal, advertisinq matter, or any other item
or i'tCllllson any exterior door, wall or window space in the demised
premises or witin five feet of the front of the demised pru:l.su in
the case of an open storefront, or within any entrance to the
demised premises without permission of the Lessor. Lessor shall
have the riqht without notice to Lessee and without any liab:l.1ity
for damaqe to the demised premises reasonably caused therby, to
remove any items displayed or affixed in violation of the forQ(Joinq
provisions.
(vi) Abide by all reasonable rules and re<jU1ations
establ:l.shed by Lessor, frOlll tiJlle to time, with respect to the
common area, facilities, improvements, and sidewalks.
5. LESSOR'S RIGB'l'S
(a) RIGB'l' OF INSPECTION
It is aqreed and understood that the Lessor, said Lessor's
duly authorized agents, and said Lessor's heirs, executors,
administrators, successors and/or assigns, may enter the prem:l.ses
hareby leased at any time durinq the term, for the purpose of
inspectinq and makinq of any repairs to the premises or adjoining
apartments.
(b) RULES AND REGULATIONS
The Lessor may from time to time establish reasonable rules
and regulations for the safety, care and cleanliness of the
premises, and for the preservation of qood order therein. Such
rules and requlat:l.ons shall, when notice thereof is given to
Lessee, fo:on a part of this Lease. No rule or regulation shall be
arbitrary, but shall be reasonable in every respect.
eiJ
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6
6. RESPONSIBILITY OF LESSEE
(a) DAMAGE OR INJtlRIES TO PROPERTY
All damaqes or injnuries done to the premises by the Less..
and/or said Lessee's customers, clerks, servants, aqents,
employees, visitors of the Lessee, and individuals for whOlll the
Lessee is respons:\']:)le, other then those caused I:ly ordinary wear and
tear, shall be repaired by the Lessee herein. Th. toe..ee
covenants and aqrees to make said repairs upon twenty (20) days'
written notice qiven to said Lessee by the said Lessor, and if the
Lessee shall neglect to make said repairs or commence to make the
same prClllptly or complete the same within twenty (20) days after
receivinq said notice, the Lessor shall have the r:l.qht to male.
said repairs at the expense and cost of the Lessee, and the amount
thereof may be collected as additional rent accruinq for the
month followinq the date of the said repairs, and if said expense
is made at the expiration of the term, then the cost so made may be
collected by the Lessor as additional rent for the use of the
premises durinq the entire tarm.
(b) PAYMENT OF JUDGEMEN'rS, E'l'C.
The Lessee shall bear, pay and discharqe when and as the sallie
become due and payable all judqments and lawfUl claims for dalIIaqes
or otherwise aqainst said Lessor, arisinq frClll the Lellse.'s use or
occupancy of said leased premises and w:l.1l assume the burd8D aDd
expense of defendinq all such suits, whether brouqht before or
after the expiration of this Lease, and w:l.1l protect, indemnify and
save harmless the Lessor, or said Lessor's aqenu, servants,
employees, and the public at large by reason of or on account of
the use or misuse of the premises hereby leased, or any part
thereof, due to the negligence of the Lessee and/or the said
Lessee's aqents, clerks I servants, employees, visitor., CWltomers,
and individuals for whom the Lessee is respons:\']:)le.
7
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I'1'\Y-17-1991 10:21 FRO'! ICD FNl STEllI..IH3 .'
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912432248 P.09
(e) REDIBORSEMENT OF EXPENSES OF CURING 'l'ENAN'l'S DEFAt1U
In case the Lessor, by reason of the failure of the Lessee,
after due notice, to perform any covenant, ten, or condition of
the lease, shall payor incur any SUJII of money, or shall expend any
SUlllS for legal services due to 1:I.tiqation, then the sum or sums so
paid or incurred , with interest, shall be added to the installlDent
of rent next becominq due, and shall be collectible as additional
rent, in the same maMer and with the sue rQll\edies u if it had
been ordinarily reserved.
Cd) OISCHARGE OF LIABILI'1'Y BY LESSEE
In consideration of securing the wi thin Lease at the
above-stated rent, the Lessee does hereby releasa and discharqe the
Lessor, its aqents, servants and/or Q1I\ployees, and said Lessor's
heirs, executors, administrators, successors and/or assigns, from
any and all liability by reason of any injury, loss and/or damage
to any person and/or property in the dQll1.1sed premises, whether
belonging to Lessee or any other person, caused by any fire, the
breaking, bursting, stoppage and/or leakaqe of any water pipe, gas
pipe, SClwer, basin, water closet, stealll pipe and drain in any part
or portion of the demised pram1sCls and/or any part or portion of
~~e building, of which the demised premises is a part, and from
all liability for any and all injury, loss and/or damage caused by
the water, gas, steu, waste and contents of Aid vater pipes, qas
pipes, steam pipes, sewers, basins, water closets and drains, or
from any kind of injury, loss and/or damaqe which may arise from
any other cause ~on the premises or in the building, unless
directly attributable to Lessor's neqligenee.
7. COMPLIANCE WITH GOVERNMENTAL REGULATIONS
The Lessee shall comply with all the orders, rules
requlations and requirements of every kind and nature relating to
the use of the demised premises, now or hereafter in effect, of the
federal, state, municipal or other qovernmental authority havinq
power to enact, adopt, impose or require the sUle, Whether they be
usual or unusual, ordinary or extraordinary, and the Lessee shall
pay all costs and expenses incidental to such comp1:l.ances and
shall indemnify, defend and save harmless the Lessor frail all
axpenses and duages by reason of any notices, orders, violations
or penalties filed against or imposed upon the premises or against
the Lessor thereof because of the failure of the Lessee to comply
with this covenant, with the exception of s'l:::uctural repairs which
shall be deemec to incluce smoke detec'l:ors for purposes of this
aqree1:lent) which shall be the responsibility of the Lessor.
(--0
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912432248 P .10
8. LIABILITY INSURANCE
'1'he Lessee shall, during the demised tarlll, at its own
expense, keep in force such insurance policies as will tully
protect the Lessee against claims for personal injury or property
damage occurring on the demised premises, with such insurance to
afford protection with lilDits of not less that $!00,000.00 with
respect to injury or death to person, and with limits of not less
than $!00,000.00 for damaqe to property, or with not less than a
$1,000,000.00 combined sinqle lilDit. In addition, under the
foregoing terms, Lessee shall also carry fire legal l:I.eJlility
insurance with l.iJllits of not less than $50,000.00. Lessee agrees
to have Lessor added as an additional insured on said insurance
policy.
9. FIRE INS'lmANCE
Lessee shall carry fire insurance for :l.mprovements,
betterments, and Lessess's contents with extended coveraqe on the
leased premises in an amount not less then $ 10 ~- .
Lessee agrees to have Lessor added as an additional insured on said
insurance policy. Lessee aqre.s to release sul:lroqation rights on
said insurance pOlicy to Lessor in case ot damage caused to the
demised premises by virtue of tire, liqhtninC;, or perils of
extended coverage.
(\.1
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912432248 P.ll
10. CASUAL'l'Y DAMAGE TO LEASED PREMISES
In the event that the premises occupied. by the Lessee shall,
durinq said terJI be destroyed by fire or other casualty, thereby
makinq the premises untenantable and unfit for occupancy so that
the owners thereof deem it advisable to construct a new buildinq,
the Lessee or Lessor herein shall have the riqht to terminate this
Lease upon qivinq lS days notice in writinq to the other party, and
the term of this Lease shall cease upon the expiration of 15 days
after the date of said notice. In the event, however, that the
said buildinq shall be damaqed by fire, but not destroyed, the
Lessor shall cause the buildinq to be repaired and restored to its
former condition, then to act with the qraatest possible
diliqence. The monthly rent shall be abated for the period from
the date that the damaqe occurred to the date that the required
repairs or restoration work is completed. The amount by which
the monthly rent shall be abated shall be determined on the ~asis
that the ratio of the floor are untenantable bears to the floor
area of the entire premises. Provided, however, that even if the
buildinq is not deemed to be destroyed, if the fire dalDaqe to the
buildinq is such that the LeSsee cannot reasonably and practicallY
use the buildinq, the Lessee or the Lessor shall have the r:l.qht to
terminate this Lease by qivinq 15 days notice in vritinq to the
other party as set forth above in this praaqraph. The tessee
herein aqrees that in the event that the buildinq shaU be 10
partially destroyed by fire as to render said repairs necessary
that the said lessor shall' thereupon have the riqht tbrouqh his
servants and aqents, and that the servants and aqents of any'
contractor employed by the Lessor shaU have the riqht to take
possession of the premises for the purpose of makinq such repairs,
and the so takinq of possession shall not be an eviction of the
Lessee herein and shall in no manner affect this tcarm of Lease.
11. LESSOR I S TEmfiNATION OF LE1ISE
The said Lessee hereby accepts notice to quit, remove from,
and surrender up possession of the said demised premises to the
said :Lessor, its successors and assiqns, at the expiration of the
said term, whenever it may be determined, whether by forfeiture or
otherwise, upon 30 days notice to that effect, all fUrther notice
beinq hereby waived.
10
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"912432248
P.12
And on failure to pay rent, for the space of ten clays, after
wri'l:ten notice, besides the distress, or upon breach of any other
condition of this Lease the Lessee shall be a non-tenant, subject
to dispossession by the Lessor, without rurther notice or process
of law, with release of error and of clamaqes, and the said Leasor
may re-enter the premises and disposses the Lessee without thera})y
becominq a trespasser.
12 . WAIVER OP DEIWfI) FOR RENT
The Lessee does also hereby waive any and all demand for
payment of the rent herein provided for, either on the day due or
on any other day, either on the land itself or in any other place,
and aqrees that such dllllW1d shall not be a condition of re-entry or
of recovery of possession without leqal procession without legal
process or by means of any action or proceed.inqs whatsoever,
except as provided to the contrary in paragraph 11 of this Lease
Aqreement.
13. REMEDIES COHt1I.ATIVE
All rUlllldies ot Lessor herein shall be cumulative and
concurrent.
14. LIABILITY RELIEF
The Lessee hereby rel:l.eves the Lessor from all liab:l.lity by
reason of any injury, loss and/or damaqe to any person or property
in the demised PruUses, which may arise from or be due to the use,
misuse or abuse of the elevator(s), hatche., openinqs, stairways,
hallways, that may be (or have been) constructed in the bu:l.lcUnq,
or from any kind of injury, loss ancl/or clamaqe, which lIaY arise
from any other cause on the premises or in the buildinq unless
directly attributable to Lessor's neqliqence.
11
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912432248 P.13
1S. CONDEMNATION
In the event that the premises demised or any part thereof is
taken or condemned for II. PUblic or quasi-pu.bl:!.c use, this Lease
shall, as to the part so taken, terminate as the date title ahall
vest in the condemnor, and rent shall abate in proportion to the
square teet of the leased space taken or condemned or shall cease
it the entire premises be so taken. It a part taJcen IIUbs1:antially
and reasonably interferes with the function and effiCiency of the
Lessee's business, the Lessee may terminate the leue on the
r8lllain1nq portion of the or:!.qinally demised pru.ises, .by
deliverinq a fifteen (15) day written notice to the Lessor, end
any dispute under this paraqraph shall be subject to the
arbitration in accordance with the rules ot the America Arbitration
Association. In any event, the Lessee waives all claims against
the Lessor by reason o.f the complete. or partial taking of the
demised pr8lllises.
16. QUIET ENJOYMENT
'l'he Lesse, upon payinq the said rent and perfotlllinq the
covenants of this lease, on its part to be perforllled, shall and .y
peaceably and quietlY have, hold and enjoy the demised pra:l....
for the terlll atoresaid and any herein dUly authorized addit:\.oJllll
tet'lll.
17. LEASE CONTAINS ALL AGRE!:MENTS
It is lXIlX'essly understood by the parties that the Whole
aqreement is embodied in th:l.a aqreement (executed in duplicate) and
that no part oX' items are omitted unless the sallie be hereinafter
modified by written aqreement(s).
18. GENDER AND NUMBER
'l'he neuteX' gender, where used henin, shall be deemed to be
masculine or feminine, and the sinqular number, where used herein,
shall be deemed to be plural, whenever, the sense of the instrument
so requires; further, the masculine or feminine gender, where used
herein, shall be deemed to be sinqular whenever the sense of the
instrument so requires.
19. HEIRS, ETC.
This Lease Aqreement shall be binding upon the heirs,
executors, administrators, successors, and/or assiqns of the
parties hereto.
12
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VERIFICATION
The foregoing Complaint is based upon information which has been gathered by my
counsel and myself in the preparation of this action. The language of the Complaint may in part
be the language of my counsel and not my own. I have read the statements made in this
Complaint and to the extent that it is based upon information which I have given to my counsel it
is true and correct to the best of my knowledge, information and belief. To the extent that the
contents of the statements are that of counsel, I have relied upon counsel in making this
verification. I understand that false statements herein made are subject to the penalties of 18 Pa.
C.SA Section 4904, relating to unsworn falsification to authorities.
~~~
Date: March 10, 1994
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IRWIN, IRWIN & ~rcKNIGlIT
EILEEN J. HEBERLIG,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
GIVIL 1994 /11f() ~~ 1<f<;L/
IN EQUITY & AT LAW LI U
\
V.
LmERTY HOLDING COMPANY,
and JOHN E. MUMMA,
Defendants
ORDER OF COURT
AND NOW, this /()' day of mauh
. 1994, upon consideration of the
Petition for a Preliminary Injunction and Complaint filed by the plaintiffs, a hearing is set for
rn areA If', 1994 at /I: 0 0 ,., .M. in Courtroom Number
'1 of the Cumberland County Courthouse, Carlisle, Pennsylvania 17013.
By the Court,
. II. J..
Judge
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--
EILEEN J. HEDERLIG.
PlalntllT
: IN TIlE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYLVANIA
CIVIlrti9'4 II 'lu E;....z, 1<;' '1 r
IN EQUITY & AT LAW
V.
LmERTY HOLDING COMPANY.
and JOHN E. MUMMA.
Defendants
PETITION FOR A PRELIMINARY INJUNCTION
AND NOW comes thc petitioner, Eilccn J. Hcbcrlig, by her attorney, Irwin, Irwin &
McKnight and makes the following rcqucst for a prcliminary objection.
I.
The petitioner is Eileen J. Heberlig, an adult Individual residing at 149 East Louther
Street, Carlisle, Pcnnsylvanla 17013.
2.
The Rcspondents arc Liberty Holding Company with its address of 1442 Trindle Road,
Carlisle. PennsylvaniA 17013, and John E. Mumma, an adult individual situate at 1255 Claremont
Road, CArlisle, Pcnnsylvanla 17013.
3.
The petltloncr WAS bArred from thc leased premises by the defendants on February 9, 1994
whcn the defendAnts chAnges the locks at 28 South Courthouse Avenue, Carlisle, Pennsylvania
17013. ^ copy of the complaint is attached hercto and made a part of this Petition.
4.
The petitioner was engaged in a retail clothing consignment business which consisted of
individuals who would give items of clothing to the petitioner for retail sale at her place of
business. When purchased by the public, the clothing owners would receive a percentage of the
income.
S.
From February 9, 1994 the petitioner has sustained continuous and irreparable harm by
being denied access to her business records as well as the clothing which belongs to over three
hundred (300) private individuals who have consigned the clothing items to the petitioner.
6.
The petitioner has paid into the Court the sum of Two Thousand Three Hundred and
nollOO (52,300.00) Dollars which is the maximum claimed by the respondents.
7.
The petitioner respectfully seeks a preliminary injunction which:
a. Restores the petitioner to possession of 28 South
Courthouse Avenue, Carlisle, Pennsylvania 17013 in order to conduct
her business and regain access to the records and the items of clothing
consigned to her.
b. Require the respondents to provide the petitioner either a
key for the new lock or to restore the locks to fit the key which the
petitioner currently possesses in order for her to conduct her business.
>.."
c. Any othcr relicf or damages which the Court finds
approprlntc In order to maintain the status quo and that the respondents
be bnrrcd from further interference with her business unless pennitted by
thc Court.
WHEREFORE, the petitioner secks the grant of a preliminary injunction as set forth
above.
Respectfully submitted,
IRWIN, IRWIN & McKNIGHT
By:
Date: March 10, 1994
VERIFICATION
The foregoing Petition is based upon information which has been gathered by my counsel
and myself in the preparation of this action. The language of the Petition may in part be the
language of my counsel and not my own. I have read the statements made in this Petition and to
the extent that it is based upon information which I have given to my counsel it is true and correct
to the best of my knowledge, information and belief. To the extent that the contents of the
statements are that of counsel, I have relied upon counsel in making this verification. I understand
that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904,
relating to unsworn falsification to authorities.
~:~~~
Date: March 10, 1994
i :~'.: ._-<.~~:-(-~,...,!~~
EILEEN J. HEBERLIG,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LmERTY HOLDING COMPANY,
and JOH~ E. MUMMA,
Defendants
CIVIL 1994
IN EQUITY & AT 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, order and
notice are served, by entering a written appearan<;e 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 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.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
EILEEN J. HEBERLIG,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
LmERTY HOLDING COMPANY,
and JOHN E. MUMMA,
Defendants
CIVIL 1994
L"'l EQUITY & AT LAW
.
.
COMPLAINT IN EOUlTY
/. ~ 4..L
Al\'D NOW, this /eJ day ofFellfUBf)', 1994, comes EILEEN J. HEBERLIG,
by her attorneys, IRWIN, IRWIN & McKNIGHT and makes the following Complaint in Equity
against the Defendants, LmERTY HOLDING COMPANY and JOHN E. MUMMA,
individually as follows:
1.
The Plaintiff, Eileen J. Heberlig, is an adult individual residing at 149 East Louther Street,
Carlisle, Pennsylvania 17013.
2.
The Defendant, Liberty Holding Company is believed to be a corporation or a partnership
doing business in the Commonwealth of Pennsylvania at 1442 Trindle Road, Carlisle,
Pennsylvania 17013.
3.
The Defendant, John E. Mumma, is an adult individual and has a place of business situate
at 1255 Claremont Road, Carlisle, Cumberland County, Pennsylvania 17013.
4.
The parties entered into a lease agreement dated April 24, 1994 a copy of which is
attached to this complaint and is made a part hereof and is marked as Exhibit "A".
2
f
S.
The plaintiff moved into the premises at 28 South Courthouse Avenue, Carlisle, PA 17013
on May 1, 1992 and conducted a retail clothing consignment business.
6.
The plaintiff paid the sum of Four Hundred and nollOO ($400.00) Dollars per month from
May I, 1992 through and including the month of December 1993. The plaintiff continued to pay
Four Hundred and noli 00 throughout 1993 and the defendants did not collect the additional sum
ofSlOO.OO per month through 1993.
7.
In late December 1993, snowfall made movement on the sidewalks in front of the leased
premises treacherous for the plaintiff, her customers and consignees.
8.
Throughout the month of January 1994, the defendants failed to remove the ice and snow
in front of the plaintiff's business. The plaintiff was unable to pay the rent due January I, 1994.
9.
The plaintiff was unable to pay the rent due on February I, 1994 and on February 3, 1994,
the plaintiff herself fell in front of the leased premises on a ridge of ice and injured her back. She
reported her fall to Mr. Mumma, defendant, on February 3, 1994.
10.
The defendant, John E. Mumma, retaliated by sending a letter dated February 9, 1994
which plaintiff never received. On February 9, 1994, the defendant changed the locks to the
leased premises and barred the plaintiff from her place of business.
3
11.
Despite repeated requests, the defendants have refused to permit the plaintiff to enter the
premises in order to wrap up her business and return her consigned items of clothing to their
owners.
COUNT I
Breach of Contract
12.
The averments of paragraphs one through eleven are herein incorporated by reference and
made a part of this court.
13.
The plaintiff has with the filing of this complaint, paid into the Office of the Prothonotary
the sum of Two Thousand Three Hundred and nollOO ($2,300.00) Dollars which constitutes the
maximum damages which the defendants can claim pursuant to the written lease.
14.
The defendants have by their actions breached the lease agreement entered into by the
parties as follows:
1. By failing to provide a written thirty-day notice of the intention to
tenninate the lease as provided by paragraph eleven (II) of the Lease.
2. By failing to provide a Notice to Quit and otherwise follow the
procedures for possession of the Landlord Tenant Act.
3. By unlawfully detaining the property of the plaintiff and the clothing
of her consignees.
4
4. By changing the locks and barring her from the property without
notice or explanation.
IS.
The plaintiff seeks the following relief from the Court:
a. Immediate possession of the premises at 28 South
Courthouse Avenue; and possession of the belongings of the plaintiff
and of her consignees.
b. Damages from February 9, to the date that the plaintiff
regains possession of her premises sufficient enough to pay the lost
income of the plaintiff for her failure to have use of the property.
c. Any other equitable relief required by the Court.
COUNT 11
INTENTIONAL AND/OR NEGLIGENT
ThITERFERENCE WITH THE BUSINESS OF THE PLAINTIFF
16.
The averments of Fact contained in paragraph one (I) through fifteen (IS) of this
complaint are herein incorporated by reference and are made a part hereof.
17.
The defendants, lohn E. Mumma and Liberty Holding Company, deliberately locked the
plaintiff out of the place of business of the plaintiff without warning a notice as required by the
lease and the laws.
5
18.
The defendants knew that the action of locking the plaintiff out of her place of business
,
would cause immediate and severe irreparable harm to her business and they sought to
intentionally end her business.
19.
The defendants, John E. Mumma and Liberty Holding Company did negligently harm the
plaintiff as follows:
a. By changing the locks to the leased premises without
notification, the defendants knew or should have known that severe
and irreparable harm would be done to the plaintiff and her reputation
in the business community.
b. By changing the locks without notice to the place of
business, the defendants knew or should have known that the plaintiff
would be denied the revenue from her consignment business.
20.
The actions of the defendants in changing the locks to the plaintiffs leased premises
without notice constituted reckless and outrageous conduct sufficient for the Court to award
punitive damages against the Defendants.
6
-.",-.--
WHEREFORE, the plaintiff requests that in addition to the relief previously requested, the
Court award damages to the plaintiff in an amount in excess of Twenty Thousand and no/lOO
($20,000.00) Dollars as well as punitive damages, costs, and interest as pennitted by law.
Respectfully submitted,
IRWIN, IRWIN & McKNIGHT
By:
Date: March 10, 1994
doWnea'comp/heberlls-doc
7
..
91243Z24S P. e2
,'.
MAY-17:1=':'1 10: 17 FR01 ICD A-lD S7ElL.1H3
TO
\J"J
\V)
J
~\)
1\
CO}!MERcIAL IDoSE
PARTIES
THIS AGREEMENT OF LEASE, made this :(1 T1I day of ,4Pt.lL.
/992., bet....een '-/~1.1"1 I-b~.J6 ~pl\..." (for the purpose of this
Lease to }Je known as the "Lessor") and 6...aW:r. for the purpose
of this Lease to be known as the "Lessee"). ~e.6Lu(.
PREMISES
WITNESSETH, that the said Lessor, in consideration of the
rents and covenants hereinafter mentioned, does demise and lease
unto the said Lessee, all. that certain space consisting of
approximately r,ve; I-lU~ (500 t;b) square feet,
to be used for the sole purpose of ~,,.:(,, c......Tt-l./olb ON CD-J'i>,.,..J",E,.Jr
AT ;18 ~ o>JT1-< Cs:,...ntTI-'D~ f>.rr>,.J~ CN......~l.f. PA I"ol:!> ..
.
TERM
TO HAVE AND 'rO BOLD unto the Lessee, sul:lject to the
conditions of this Ac;reement for the term beqinninq on the I sr day
of /l'lA4 I \9~:;;J . This Leese shall be in e:f!ect for a term of
0...1'0 >.(t:f\{.l. . At the end of said term, Lessee shall have an option
to renew the Lease, the ter-..s and conditions of which shall !le
re-neqotiated by Lessor and Lessee at the time of such renewal.*"
The Lessee shall notify the !.esso:' in vritinq 60 days prior to the
expiration of the lease tea as to wbether it intends to excercise
this option.
RENT
IN CONSIDERATION of which, the said Lessee aqrees to pay to
the said. Lessor for the use of said preJ:lises, the SUlD of (1'1[300 - )
P=t... \\-l.~"::>AI-l~ E'I(:,\-IT !-lurJ1)r2.EP 1:w.N.!., to be payable as folloWS.
vb, the first month of the consideration of F.....n.l-luNl),u:D '7 .)(~~-)
Dollars, to be payable on Pv>.z...... ;:~,I"'~~ and thereafter in monthly
installInents of (6Ljoo- ) Dollars, on the first day of each
calend.er month frol:l :SU...ns I 1'\ '1z.. to t\i'1llL. I ffl.3. A:ld.
Do11A_~ 011 t..\~ lir3~ day of ~::Il('~ ,..., (l'~~ar
1llODt.'1. fre1'1 to .
'* "T\-I.::. ~~!.E€ ~H"A1.1... ~ 'liiE. bfOllN oF L.e^'O.."e:. ~ ~I!.f:z> "'j\tfll1'!.t!>
~ \"1-W: 'O."'-~ 4~ ..-e/l.J\\ F"cL ~<'tI::ll>'- f"aot. '(1'\~ '1~l..3'~ &\.1.1.-
~ ~n.fn'" ,...ro c:-JPI'l1....~ '" ~!> LEAS\! tILMA'fo),tlc:' ~ ~'i:.
1
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~
EXHIBIT "A"
~-17-1SS1 Hl: 17 FROM ICD ~ STE<l..IN:i
TO
'-'1~~4C ,..
It is further aqreod that tho property is leased for a
rental of P'IBoo for the ten hereof, payable at the time of the
ma~inq of this lease and ~~at the provisions herein contained for
the paY1'lent of such rent in installments are for the convenience of
the Lessee only. tJpon default in the payment of such rent, the
entire rent for the full lease ten then remaining unpaid shall at
once become due and payable-
All rental pa~"1Ilents are due and payable on the due date as
specified in this paraqraph or within Three (3) days thereafter
(grace period) without penalty. However, after 5:00 p.m. on the
3rd day after the due date as aforeJllllntionCld, any rental payment
not paid will be subject to a late cbartJo of Ten (10%) percent of
the rental payment (s) due and payable.
SECURI'l'Y DEPOSIT
Lessee aqrees to deposit with Lelsor, at the tilDe of siqning
this Aqreement of Lease, the sum of !1a:>- fHL as security for the
faithful performance of all t.~e teDs, covenants and conditions of
this lease, ....hieb sum shall be returned to Lessee at the expiration
of the lease te:rm and any subsequent hold-over, subject to the.
provisions of this Aqreetlent of Lease and, in particular, this
section.
If Lessee defaults in the performance of any of the te1'l:lS,
covenants and conditions of this AqrllllmClnt of teaSel at any til:le,
Lessor ::lay, at its sole option, use, apply or retain the security
deposit, or any portion thereof, as necessary for the paYl:lent of
any rent or any other sum for whieb Lessee 1IIay be in default, or
for any Su::l ~~at Lessor may expend or be required to expend as a
resul t of Lessee I s defa'l:l t of any of the tems, covenants and
conditions of this Aqreement of Lease, includinq but not limited
to camaqes to the leasehold property caused by the neq1igent or
intentional acts or otlissions of Lessee, his invitees or licensees.
tlTILITIES
The Lessee shall payor cause to be paid all charqes for
oleetr':e':'t), ~, telephone, or any other co=unication or
utili"'y service used in or rendered or supplied to ~e demised
pre:nises throughout the term of this lease, and to il:ldelnnify the
Lessor and save it ha=less aqainst any liability or damages on
such account. -n't" LE~"'" &/+M.L- P...., oL CA>!.E jb c,t: PAIS> A......CH...u.fS f;oc-
~...a.:n:.IC.IT"1, L..I(.~ ll-loo--r I Au... t.cr'J)m-..c., ~ ANt> :)~ ~A~5A,.t1)
.IU>S-l L.li',<.ti :l:.<...."l>C~ 'l\"l> ~/I~ 1S.'l6::' ~.......r..
~:l'- TI+t:: Se:c..uerT'1 "I>eA:.<;" 1':0 "i)lJ€ ~ ~u: Wlf'l..l',.) ,.. 1:>f<"1!o
O'F Cb"'....o!NC.<!/'I'Ie.sr trF "I1-l15 l.~..eor'Z ~.~ L..EA~e ~ tot. ~
"^^"- ~ I/b.D""" ~ to ;:>c S<..J2,E:'l"\." cr ntf: \..E-;'s oJ'.
2 [-{J
~
MAY-l'j'-lS91 10:18 FilO1 ICD FWD STERLIIG
TO
912432248 P.B4
THE DEMISE HEREIN CONTAINED IS MADE AND ACCEPTED ON
'niE FOLLO\oo"ING EXPRESS CONDITIONS 1
1. PLACE OF PAYM!:NT
'!'he rent reserved shall be prol:lptly paid on the several days
and times specitied herein without deduetion or abatement, unless
hereinafter provided on the contrary, at the principal office of
the Lessor.
:riflER CITY !)t'n:LO~ER5
160 f:. PROGnESS h'~. S~:::n: 1 tl
..BAFJtIE;~, PA :1.7109
LJ6EIJ..T'1 He'l>I'lG, CoNNJ'(
P:o. Coy. '~'l
~I.,slo€ .pA 110':3,
2. INABILITY TO GIVE POSSESSION
The Lessor shall not be liable to the Lessee for any damages
which :nay be caused to the Lessee by the failure of the Lessor to
qive possession of the decised premises at the time aqreed upon, if
said failure is not due to any fault on the part of the Lessor,
unless hereinafter provided to the contrary.
ciJ
~fl>.A
MHY.-17-1291 10: 18 FiID1 leD FtlIl 5iE?\.JHj
TO
912~4p P.05
3 . HOLDING OVER AS RENEWAL
A holding over by the Lessee beyond the term of this Lease or
any hereinafter duly authorized additional term shall be deemed a
renewal of the lease on a mcn".h to month basis, with said renewal
being under and subject to all provisions contained in this
Aqreement of Lease, and shall be at the option of the Lessor.
Lessee shall be deemed to bave held over under this paraqraph
unless it shall bave notified Lessor in writinq of its intention
to surrender the premises at the end of the term hereof at least
(/Po) days prior to the expiration of the term hereof.
". NEGATIVE Co~ANTS OF LESSEE
(a) WASTE DAMAGE OR INJURY TO PREMISES; RESTORATION
No waste, damage or injury to the premises shall be
committed and at the end of the term the demised premises shall ))e
restored, at the option of the Lessor, to the sue condition in
which tbey were at the co:mencue:lt of the term, and the cost of
said restoration shall be paid by the Lessee, which cost shall ))e
treated as additional rent due and owing under the ter:lS of the
Lease. This paraqraph is subject to the exception of ordinary wear
and tear and unavoidable damage by fire, elements, casualty, or
other cause or happening not due to the Lessee's neqlige.nce.
(b) LAWFUL pOSSESSION; FIlU: PREVENTION
Said Lessee shall not carry on any unlawful or il::l:loral
business in or about the dedsed pre.:nises, and shall not carry on
any business which will endanger the building from fire or cause a
forfeiture of any fire insurance that the Lessor has or may
hereafter have on said buildinq. The Lessee shall use every
precaution against fire or activities which would cause a
forfeiture of any fire insurance that the Lessor has or may
hereafter have on said buildinq. The Lessee shall not operate any
rnachiner"i or equipment that.lI:ay be harmful to the building or
disturbing to other occupants of the buildinq; further, the Lessee
shall not place weigbts in any portion of the demise premises
beyond the safe carrying capacity of the structure.
4
[~J
-S-rf'/'r
MAY-17-1~91 10:19 FROM ICD Roll) mlH3
TO
912432248 P.06
(c) ALTERATIONS AND D'.PROVtzmrrs
'rhe Lessee shall not have the privileqe of i:lproving thll
leased premises for Lessee's own purposes, unless the Lessor
approves any proposed improvement(s) in \n'itinq, and improvelllents
are =at!e at Lessee's expense. All additions, alterations, ant!
illlprovel:lents made in or to the demised prel:lises by either Lessor or
LeSSGO, shall become the property of Lessor and be surrendered
with the premises upon the expiration or sooner teaination of this
lease; provided, however, that the Lessor shall have the right to
require the Lessee to remove such fixtures at the Lessee~s cost
upon such teaination of this leasll.
The Lessee shall imdemnity the Lessor against any mechanic's
lien or other lien arising out of making any alteration, repair,
adc1ition, or improvaent by the Lessee.
(d) ASSIGNING, ETC. BY LESSEE
The Lessee shall not have thll privileqe of assigning or
Subletting saic1 prel:lises, or :nortgaginq any interest it may have by
virtue of this Lease Agreement.
(e) USE lU:STRIC'l'IONS
Lessee shall use the lease premises for the purpose of
conducting the business hereinafter set forth anc1 for no other
purpose, that is: ~'L.. Cc,r.,c.""'&o:r" c:..an..p!>t+of.
. Lessee shall not abandon or leave
vacant t.~e del:lised premises, shall not peait, license, or SUffer
the occupancy of any other party in the dcunised pr9lll1ses and shall:
(i) Display no l:lerchandise outside the dwsed premises nor in
any way obst:::uct the halls or side\oicllks adjacent thereto and store
all trash and refuse in appropriate containers within the de::ised
prol:lises and attend to the daily c1isposal thereof in manner
desiqnatet! by the Lessor.
(ii) Load or unload all merchandise, supplies, fixtures,
equipment, and furniture and cause the collection of rubbish only
through thQ rear service door (east door of I:Iall). No deliveries
of any kind shall be :ade t.'1rouC;;h thll front entrance.
f -{J
Sh-A
'":.'<,....... ,.
-~.'~...~,
f'V:;Y-17-1~Sl 10: 19 FR()1 ICll i=tlD STER;..1H3
TO
912432248 P.ll7
(iii) Prevent the demised premises fro~ being used in any way
....hich will injure the reputation of the sue or from ))eing used in
any way which 'may be a nuisance, annoyance, inconvenience, or
damaqe to the other tenants, including, without lildt:l.ng the
qenerality of the foregoinq, noise by the playinq of any musical
inst:t"U]:lent or radio or television or the use of a microphone, loud
speaker, electrical equipl:lent or other equipment which may be heard
outside of the demised premises.
(iv) Display or affix no sign, advertising, placard, name,
t=ademark, insiqnia, decal, advertising matter, or any other item
or itemson any exterior door, wall or window space in the demised
prQmises or wltin five feet of the front of the demised pruises in
the case of an open storefront, or within any entrance to the
demised prenises without p=ission of the Lessor. Lessor shall
have the riqht without notice to Lessee and without any l:\.ability
for damaqe to the demised' prel:lises reasonably caused therby, to
remove any items displayed or affixed in violation of the foreqoing
provisions.
(vi) Abide by all reasonable rules and requlations
established by Lessor, from ti::le to tae, with respect to the
common area, facilities, improvuents, and sidewalks.
5. LESSOR'S RIG1i'l'S
(a) RIGB'l' OF IliSPEC'rION
It is aqreed and understood that the Lessor, said Lessor's
duly authorized agents, and said Lessor's heirs, executors,
a~ministrators, successors and/or assiqns, may enter the premises
hereby leased at any time during the tea, for the purpose of
inspectinq and making of any repairs to the premises or adjoining
apartments.
(b) RULES AND REliOLATIONS
The Lessor may fro~ time to ti::le establish reasonable rules
and requlations for the safety, care and cleanliness of the
premises, and for the preservation of qood order therein. Such
rules and requlations shall, when notice thereof is given to
Lessee, fOn:! a part of this Lease. No rule or requlation shall be
arbitrary, but shall be reasonable in every respect.
0iJ
'Srrp.-
6
6. RESPONSIBILITY OF LESSEE
(a) DAMAGE OR INJllRIES '1'0 PROPERTY
All da:aqes or injnu:,ies done to the premises by the Lessee
and/or said Lessee's customers, clerks, servants, agents,
employees, visitors of the Lessee, and individuals for whOlll the
Lessee is responsible, other then those caused by ordinary wear and
tear, shall be repaired by the Lessee herein. The Lessee
covenants and aqrees to make said repairs upon twenty (20) days'
written notice qiven to said Lessee by the said Lessor, and if the
Lessee shall neqlect to make said repairs or co=mence to make the
same protlptly or complete the SGe within twenty (20) days after
receivinq said notice, the Lessor shall have the right to make
said reprirs at the expense and cost of the Lessee, and the amount
thereof lIIay be collected as additional rent accruing for the
month following the date of the said repairs, and if sdd expense
is made at the expiration of ths ter1ll, then the cost so made lIay be
collected by the Lessor as additional rent for the use of the
pr811lises during the entire term.
(b) PAYMENT OF JUDGEMDlTS, ETC.
The Lessee shall bear, pay and discharqe when and as the sue
become due and payable all judg::lSnts and lawful claims for masts
or otherwise aqainst said Lessor, arising from the Lessee's use or
occupancy of said leased premises and will assume the burden and
expense of defending all such suits, whether brcuqht before or
after the expiration of this Lease, and will protect, indemnify and
save ha=1ess the Lessor, or said Lessor's aqents, servants,
er.Iployees, and the public at large by reason of or on account of
the use or misuse of the premises hereby leased, or any part
thereof, due to the neql1qence of the Lessee and/or the said
Lessee's aqents, clerks, servants, employees, visitors, custotlers,
and individuals for whom the Lessee is responsible.
7
~
~
MAY-17-19>'1 10:21 FROM ICD FWD STER1./H3 ..
TO
912432248 P.1l9
(e) REIMBORSoa:NT OF EXPENSES OF CURING TENANTS DEFAULT
!n case the Lessor, by reason of the failure of the Lessee,
after due notice, to perform any covenant, term, or condition of
the lease, shall payor incur any sum of money, or shall expend any
sums for legal services due to litiqation, then the 1Ul:l or sums so
paid or incurred, with interest, shall be added to the installment
of rent next becominq due, and shall be collectible as additional
rent, in the same maMer and with the sallie reJ:ledies as if it had
been ordinarily reserved,
(d) DISCHARGE OF LIABILITY BY LESSEE
In consideration of securing the within Lease at the
above-s'tated rent, the Lessee does hercaby release and discharge the
Lessor, its aqents, servants and/or employees, and said Lessor's
heirs, executors, administ~ators, successors and/or assigns, f~
any and all liability by reason of any injury, loss and/or damage
to any person and/or property in the demised preJllises, whether
belonginq to Lessee or any other person, caused by any fire, the
breakinq, bursting, stoppage and/or leakaqe of any water pipe, gas
pipe, sewer, basin, water closet, stealll pipe and drain in any part
or portion of the demised preni.ses and/or any part or portion of
t.;e buildinq, of which the dwsed premises is a part, and from
all liability for any and all injury, loss and/or damage caused by
the ....ater, gas, steam, waste and conte:lts of said water pipes, qas
pipes, steam pipes, sewers, basins, water closets and drains, or
from any kind of injury, loss and/or daJ:age which may arise from
a."'lY other cause ,on the pre:tises or in the bu:l.ldinq, unless
directly attributable to Lessor's neqligence.
7. COM?LIANCE WI~ GOVERNMEN'l'AL REGtJLATIONS
The Lessee shall cOl:lPly with all the orders, rules
regulations and requiretlents of every kind and nature relating to
the use of the demised prel:lises, now or hereafter in effect, of the
federal, state, ~unicipal or other governmental authority having
power to enact,adopt, iJ::pose or require the sll.l:le, whether they be
usual or unusual, ordinary or extraordinary, and the Lessee shall
pay all costs and expenses incidental to such compliances and
shall inde=ify, defend and save har:nl.ess the Lessor from all
Qxpenses and damages by reason of any notices, orders, violations
or penalties filed against or iJnposed upon the premises or aqainst
the Lessor thereo: because of tile failure of t!:e Lessee to c:o:::;:ly
....i'th this covenant, wit.; tile eltception of structural repairs \/h1c!l
shall be deemed to include smoke detectors fer purposes of this
agree::.ent) ....hic.'l sball be t.'1e respens~ility of the Lessor.
,~..1'2' .:tf.'i";;~:tl
(~
-s-#
,. .-
. .
~Y-17-1991 10121 FR01 ICD ~ STEilLtH3
TO
912432248 . P .10 .
8. LIABILITY INStlRANCE
..
'l'he Lessee shall, during the demised term, at its own
expense, keep in force such insurance policies as will tully
protect the :Lessee aqainst claims for personal injury or property
damage occurring on the demised premises, with such insurance to
afford protection with li2llits of not less that $500,000.00 with
respect to injury or death to person, and with l.b1its of not less
than $500,000.00 for da=aqe to property, or with not less than a
$1,000,000.00 col:lbined single l:l.lDit. In addition, under the
foreqoinc; te=, Lessee shall also carry fire leqal liability
insurance with liJllits of not less than $50,000.00. :Lessee agrees
to have Les:ior added as an additional insured on said :\.nsuranc&
pol:l.cy .
9. FIRE INSURANCE
Lessee shall carry fire insurance for improvements,
bettenents, and :Lesse51 I s contents with extended coverage on the
leased pr~l:lises in an Ulount not less then $ /0 coe:. - .
:Lessee agrees to have Lessor added as an additio'nal insured on said
insurance policy. Lessee aqrees to release subrogation riqhts on
said insurance policy to Lessor in case of damage caused to the
demised prelllises by virtue of fire, lightning, or perils of
extended coveraqe.
t.\-~
-s;~.
MAV-17-l~91 . 11:\:22 ",01 leD I'M> STEN..1H3
TO
912432249 ~.11
10. CASUALTY IW'.AGE '1'0 UASED PREMISES
In the event that the prelllises occupied by 'the Lessee shall,
durinq said tenD be destroyed by fire or other casualty, thereby
making the pretlises untenantable and unfit for occupancy so that
the owners thereof deem it advisable to construct a new building,
the Lessee or Lessor herein sball have the riqht to terminate this
Lease upon qivinq 15 days notice in writing to the other party, and
the term of this Lease sball cease upon the expiration of 15 days
after the date of said notice. In the event, however, that the
said buildinq shall be dalllaqecl by fire, but not destroyed, the
Lessor shall cause the building to be repaired and restored to its
fOrlller condition, then to act with the greatest possible
diligence. The 1Donthly rent shall be abated for the period from
the date that the da~aqe occurred to the date 'that the required
repairs or restoration work is completed. The amount by which
the monthly rent shall be abated shall be determined on the basis
that the ratio of the floor area untenantable bears to the floor
area of the entire prenises. Provided, however, that even if the
building is not clee::led to be destroyed, :I.! the fire da:maqe to the
building is such that the Lessee canr.ot reasonably and practically
Use the builc!inq, the Lessee or the Lessor shall have the right to
terminate this Lease by qivinq 15 days notice in writing to the
other party as set forth above in this praagraph. The Lessee
herein agrees that in the event that the building shall be so
partially destroyed by fire liS to render said repairs necessary
that the said lessor shall thereupon have the right through his
servants and aqents, and that the serva.'1ts and agents of any.
contractor employecl by the Lessor shall have the right to take
possession of tIle premises for the purpose of maJdnq such repairs,
and the so takinq of possession shall not be an eviction of the
Lessee herein and shall in no manner affect this term of Lease.
11, LESSOR'S TDUaNA'1'ION OF LUSt
The said Lessee hereby accepts notice to quit, remove frOl:l,
line! surrene!er up possession of the said clemised premises to the
said Lessor, its successors and assiqns, at the eXpiration of the
said te~, whenever it may be deter=ined, whether by forfeiture or
otherwise, upon 30 days notice to that effect, all fUrther notice
being hereby waived.
10
~~~~, ~
(~
~
!1=lY-17-1991 10:22 FROM ICD ~ S'Tm.1H3
TO
~1.!~""
And on failure to pay rent, for the space of ten days, after
written notice, besides the distress, or upon breach of any other
condition of this Lease the Lessee shall be a non-tenant, subject
to dispossession by the Lessor, without fUrther notica or process
of law, ....ith release of error and of daJ:lages, and the sdd Lessor
may re-enter the prwses and disposses the Lessee without therGby
becoming a trespasser.
12 . WAIVER OF DEMAND FOR RENT
'l'he Lessee does also hereby waive any and all demand for
payment of the rent herein provided for, either on the day due or
on any other day, either on the land itself or in any other place,
and aqrees that such dCll:laI1d shall not be a concUtion of re-entry or
of recovery of possession without legal procession without legal
process or by means of any action or proceedings whatsoever,
except as provided to the contrary in Paragraph 11 of this Lean
Agreement.
13. REMEDIES COHOLM'IVE
All remedies of Lessor herein shall be cumulative and
conCU%%'ent.
14. LIABILITY RELIEF
'l'he Lessee hereby relieves the Lessor from all liability by
reason of any injury, loss and/or damage to any person or property
in the demised premises, which may arise fX'Clm or be due to the use,
:nisuse or abuse of the elevator(s), hatches, openinqs, stairways,
hallways, that may be (or have been) constructed in the building,
or from any kind of injury, loss and/or dUlaqe, which -y ar:l.sG
from any other cause on the premises or in the building unlGSS
directly attributable to Lessor's neqliqence.
11
&
-:s;:trr/
M'lY-l (-1 '=91. 10: 2:l FROM ICD FMl SiERLJ/'G
TO
912432248 . P .13,
1.5. COlmEMNATION
In the event that the premises del:llsed or any part thereof is
taken or condemned for a public or quad-public use, this Lease
shall, as to the part so taken, ter.ninate as the date title shall
vest in the condemnor, and rent shall abate in proportion to the
square feet of the leased space taken or condemled or shall cease
if the entire premises be so taken. If a part taJcen substantially
and reasonably interferes with the function and efficiency of the
Lessee I s business, the Lessee ltay terminate the lease on the
remaining portion of the oriq:l.nally demind pre:nises, .by
del:l.vering a fifteen (15) day written notice to the Lessor, and
any dispute under this paragraph shall be sul:lject to the
arbitration in accordance with the rules of the A:lerica Arbitration
Association. In any event, the Lessee waives all cla1llls against
the Lessor by reason o,f the complllte' or partial taking of the
demised premises.
16. Qt1IET ENJOYMEN'l'
'1'he Lesse, upon paying the said rent and perfonlinq the
Covenants of this lease, on its part to be performed, shall ancl MY
peaceably and quietly have, hold and enjoy the demised premisu
for the teX':l atoresaid and any herein dUly authorized additional
term.
17 . LUSE COll'l'AINS ALL AGRZEMEN'1'S
.
It is expressly understood by the parties that the Whole
aqreement is embodied in this aqreelllent (executed in duplicate) and
that no part or itel:ls are ol:l1tted unless the Sa%:le be hereinafter
modified by written aqreement(s).
18. GENDER AND h"UKBER
The neuter qender, where used herein, shall be deemed to be
maSCUline or fe:inine, and the singular nUlllber, where used herein,
shall be deemed to be plural, whenever, the sense of the instrument
so requires: further, the masculine or feminine gender, where used
herein, shall be de8l:led to be singular vhenever the sense of the
inst~ent so requires.
19.
BIIRS, ETC.
shall be bindinq upon the beirs,
successors, and/or assiqns of the
'1'his Lease Agreement
executors, a~inistratQrs,
parties hereto.
12
&
-:s;rJ..
VERIFICATION
The foregoing Complaint is based upon information which has been gathered by my
counsel and myself in the preparation of this action. The language of the Complaint may in part
be the language of my counsel and not my own. I have read the statements made in this
Complaint and to the extent that it is based upon information which I have given to my counsel it
is true and correct to the best of my knowledge, information and belief. To the extent that the
contents of the statements are that of counsel, I have relied upon counsel in making this
verification. I understand that false statements herein made are subject to the penalties of 18 Pa.
C.S.A Section 4904, relating to unsworn falsification to authorities.
~,~
ED.. N. HEBERLI
Date: March 10, 1994