HomeMy WebLinkAbout94-07000
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PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(ThIS prool ol..mc. MUST BE FILED W/HIIN TEN (/OJ VA YS AF TER "''''g (/1. "o',ce 01 appeal, Check appltcall/o bo...)
COMMONWEALTH OF PENNaVLVANIA
COUNTY OF ; II
AFFIDAVIT: I her.by swellr 0' allirm that I served
o 0 copy of lhe Notice of Appeal. Common PIOBS No. ._ . upon tho District Justice designated thoreln on
(d.t.ol..,.,c.) , 19_, 0 by persollal service 0 by (certilied) (register.d) mall, ..nd.r's
receipt oUached hereto, and upon the appellee, (n8me) , on
, 19---0 by parsonal service 0 by (corlllied) (reglslered) m8il, sender's rllceipt aUached herato,
o and further thai I served Ihe Aule to File a Complaint accompanying the .bove Nollceo' Appoal upon Ihe appellee(l) to whom
the Aule was addressed on . 19_ 0 by personal selVlce 0 by (cerlllied) (registered)
mail, sendor's receipt attached horeto.
SWOAN (AFFIAMED) AND SUBSCAIBED BEFOAE ME
THIS DAY OF , 19_
Signatur. 01 Imam
Slgn,'ur. 01 ottlCl" belOt. wflom ""/CI."" was mado
TilI_olo"",,1
My commllllon expires on
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JAMES TOULOUMES and
FROSO TOULOUMES,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
CIVIL ACTION. LAW
NO, 94.7000 CIVIL TERM
DAVID R, TOMLINSON and
AMY J, TOMLINSON.
Defendants
JURY TRIAL DEMANDED
COMPLAINT
I, Plaintiffs, James and Froso Touloumes, are adult individuals residing in
Cumberland County, Pennsylvania and are the owners ofan apartment complex located at 5
West Pine Street, Mt. Holly Spring5, Cumberland County, Pennsylvania 17065,
2, Defendant. Amy J. Tomlinson. is an adult individual residing at 24 Center Street.
Mt. Holly Springs, Cumberland County, Pennsylvania 17065,
3, Defendant. David R, Tomlinson, is an adult individual with a last known address
at 5 West Pine Street, Mt. Holly Springs, Cumberland County, Pennsylvania 17065,
COIINT I - BREACH OF LEASE AGREEMENT
4, Paragraphs I through 3 are incorporated herein by reference.
5, On August I, 1994. Plaintiffs, by written lease agreement, leased a second floor
apartment located at 5 West Pine Street, Mt. Holly Springs. Cumberland County, Pennsylvania
17065 to Defendants (hereinafter referred to as the "Lease Agreement"), A copy of the Lease
Agreement is attached hereto and marked as Exhibit "A",
6, On or about August I, 1994, Defendants took possession of said premises, subject
to the terms of the attached Lease Agreement.
7, Pursuant to the Lease Agreement. the term of said Lease was to be for a period of
one (I) year, commencing on the first day of August, 1994 and ending on the 31 st day of July,
1995, The amount of rent for this period was Five Thousand Three Hundred Forty Dollars
($5,340,00) payable in monthly installments of Four Hundred Forty.Five Dollars ($445,00) due
on the first day of each month in advance, Additionally, Defendants agreed to pay a late
payment charge of five perccnt (5%) per month ofthc amount ofrcnt not paid within fivc (5)
days after the duc datc,
8, Defendants' rent for thc months of August, September and October 1994 were
paid in full, but not in a timely fashion in breach of the Lease Agreement..
9, Pursuant to the attached Lease Agreement, Defendants wcre to pay a security
deposit afFour Hundred Forty Five Dollars ($445,00) to be paid two months from the date of
said Lease Agreement,
10, Defendants paid Plaintiffs $300,00 toward the $445,00 Novembe~ monthly rent,
Defendants have failed to pay rent since the partial rent payment in Novcmber 1994,
II, Defcndants failure to pay full rent for the month of November and all months
thereafter constitute a breach of the Lease Agreement.
12, Pursuant to paragraph I (g) of the Lease Agreement, Defendants agreed not to
deliberately or negligently destroy, deface, damage, impair, or remove any part of the premises
or the prop~rty contained in thc premises,
13, Dcfendants breached the Lcase Agreement by deliberately or negligently causing
damage to the premises in the nature of cigarette burns to an awning,
14, The cost to repair the aforesaid damage has been estimated at $280,90,
15, Pursuant to paragraph 5 of the Lease Agreement, Defendants agreed to pay a
security deposit of$445,OO within two months of the signing of the Lease Agreement.
16, Defendants breached the Lease Agreement by failing to pay said security deposit
by the agreed date,
17, Pursuant to paragraph 7 of the Lease Agreement, Defendants agreed to pay
specified utilities including water and sewer service,
18, Defendants breached the Lease Agreement by failing to pay the water and sewer
bill of$187,81.
19, Defendants vacated and abandoned the premises on December 5, 1994, but have
retained the keys to said apartment.
20, The apartment, rented by Defendants, remains empty as of the present date,
21, Pursuant to paragraph 6 of the Lease Agreement, Plaintiffs are entitled to bring
action to recover the whole balance of the rent and other charges or damagcs caused by the
Defendants if Defendants failed to pay rcnt or any other Slll11to Plaintiffs when due; if
Defendants vacated or abandoned the premises or in any other way defaulted on the provisions
of the Lcase Agrcemcnt,
22, The aforcsaid breachcs of the Lcase Agrcement constitutc matcrial brcaches of
contract,
23, The apartment rcnted to Dcfcndants was habitable at all times rdcvant hcreto,
24, Plaintiffs scek $3,765,00 as the remainder of rent that remains unpaid pursuant to
the Lease Agrecment, $280,90 for damages to the premises and $187,81 for the water and sewer
bill,
WHEREFORE, Plaintiffs demand judgment against the Defendants in the amount of
$4,233,71 plus interest and costs,
COUNT II - TRESPASS
25, Paragraphs !through 24 of this Complaint are incorporated herein by reference,
26, The damage to Plaintiffs' awning caused by Defendants was unlawful and without
privilege,
27, As a direct and proximate result of Defendants aforesaid conduct, Plaintiffs have
sustained damage in the amount of$280,90,
WHEREFORE, Plaintiffs demand judgement against Defendants in the amount of
$280,90 plus interests and costs,
COUNT III - NEGLIGENCE
28, Paragraphs I through 27 of this Complaint are incorporated herein by reference,
29, The aforesaid damage caused to Plaintiffs' awning was the direct and proximate
result of the negligence, recklessness and carelessness of Defendants,
30, The negligence, recklessness, and carelessness of Defendants consisted of the
following:
(a) failing to keep cigarette ashes in a non-combustible container;
(b) allowing cigarette ashes to fall onto and burn Plaintiffs' awning;
(c) permitting Defendants' guests or invitees to allow cigarette ashes to burn
Plaintiffs' awning; and
(d) otherwise allowing and/or causing damage to Plaintiffs' awning,
28, As a direct and proximate result of the aforcsaid ncgligence, rccklcssness, and
carelessness of Defendants, Plaintins' awning was damaged in the amount of $280, 90,
BPSIDENTIAL T .RASE
, ' TIlls lease made this ~ty or.A-s1/QQtj between JIM. '\ P(?OSd /cnJ~ w4Ai-
p//(i.n. Mi. #olly ~ftio PA,. ("Landlord" herein) and /JIHlld 1!.;iNJ annw
J."OMIi.tMof 'S ~.s-I-. Ml. IIMvSf1,PIJ. ("Tenl1l1t" horeln), the (lDJtles intending to be legally . I
bound hereby:
WITNESSBTII: That Land:~.~~~es to Tenant and Tenant lets fro1Jl Landlord.
that certain JJJ,.e.~~~~-' located at FIvE.. c.&!~~,;.e,~o€.",F"TA..u-~
cumberland County, Pennsylvania ('Prembl:s" herein), for the tcnn o~nc (()ye:i 6Cg{nnln\-. .
on the MdAy of tS99t/ a~d ending on the Blo1ray of J"Jv JtI9!i at the rent
OfAIJt-"!t:'tJA.o .J}fI'liI~s5340.) for the wnn, Wable rn monthly Installments
of FIfA/l.. """ Y . Dollars (Wl/,S;) each on the ill day of each month In advance.
Tenantllgrees to pay a late pllyment charge of five pereent (5 %) per month of the amount of rent
not paid within I1ve (~) days after duc dattl. This IllaSC Is UpOIl Ihe following conditlon~,
covena.nu aud agreemenu:
1. Use of PremIses: Tenant agrl:e~ that Tenant and all persons on the Premises with
Tenant's consent shall:
. (a) use the Premises only lIS a single family dwcllingj
(b) not carry on any unlawful, disreputable or hazardous activities or any acUvltle.1
constituting a nubance of any kind on the Premises;
(c) keep the Premises clean and safcj
(d) dispose from thc Premises all tTUsh, garbage, nlbbish, and other waste In the
manner established by Landlord and by applicable local taw;
(e) keep the sidewalks clear of all debris including snow and provide for gms to be
cut on the property;
(I) use due care in use 01' the promises, the appliances thcrein, and all other paris of
Landlord's propeny, give prompt notice to Landlord of thc oeed for repair thereof. aod pay for
all repairs thereto which do not exceed $ in cost or which are necessitated by any lack of
care on the part of the Tenant, Clogged plumbing shall be corrected at Tenant's expense
regardless of cost.
(g) not delibel"dtcly or negligently destroy, deface, damage, Impair, or remove any
part of the Premises or the property contained ill the Premises;
(h) not hang pictures or othcr ohjecL' from the wall~ unless hanging Is accomplished
by means of angle type picture hangers;
(I) conduct himself or herself Inll manner that wi\1not unreasonably disturb hlR/hcr
EXHIBIT "A"
.~-~
,
'-SENT BY:MDWO. ; 7-28-84; W33'; MDW&.O-t 1717486~344;#, 3/ 6
neighbors' peaceful enjoymcnt of their properties, Such prohibited disturllance shall include.
but nllt he IImiled 10, th" playing of musical irl,~trumenls, audio equipment, Iclevision, or the
creation of any othcr noise loud enouf:h to di.LUrb neighbors between 9:00 p,m. and 8:00 a.IO,
(j) make no llllerations or Rddition~ to the Premises including, but not limited to,
painting, rebuilding, removing, or repairing, withulltthe prior written consent of the ulldlord.
Unless the LamUord gives written permission 10 remove an alteration, such allerutlon shall be
the property of the Landlordj
(k) neither keep nor ,~tore hazardous or combustible materials on tho Premises;
.
(I) pennlt Landlurd at llny time o,r tim... :., erect and mllintaln, on or nCllr the
Premises, 'Salv', "Rent" ~r "Information" ~igns that infom! the publie that the Preml~cs lll'C
available and direct the public to the L:tndlord or agentj and
, (m) keep and maintain the Premises in as cood repair and condition as at present and
at eKplratloD or proper earlier tennination of this lease, peacefully surrender the Premises, fret:
from trash or debris, in like repair ~no condition, lIatur~1 wear llnd damagt:s happenlnc by fire,
5tonn or other ca.:luatties only excepted,
2, Assliwnent and Subleasing Prohibited: Tenant slulJj not assign this l\lalle or
sublet the Premises.
3. Landlord's Duty to Repair: Subjc:ctto paral:llIph 1(0 of this lea~e, undlord
wll1 make necessary 'repairs to the Premise~ and L:tndlord's appliances therein ilia reasonable
time after Tenant notifies Landlord of the need for repairs.
4, Landlord's R1iht of Entry: undlord or any person authorized by Landlord,
with tho prior ~'PCCi/ie consent of Tenant, which con~enc shall not be unreasonably withheld,
shall have the right 10 enter the Premise~ at reasonable times to in~pecl, make repail'li ur
allcl'".ltlons as needed, to enforce this lease, and to show th~ Prcmises to prospective tenants or
purchasers, Insurers or appraisers; providl:d, however, that Tenant's consent shlllJ not be
necessary in case of emergency, ~ (~ -ro t... fCu~k. twv /IfII111L
" Security Deposit: TenanYagrecs to pay a ~e.:urity deposit of S LJ45''UfJIJII tile
s.irAi,,[ ,," lJ.de, The security deposit shall be held by Landlord as security for the payment
of all rent and other amounts dill: from Tena.ntto Landlord, for the Tenant's perfollllance of this
lease, and against any damages caused to the Premises. Ten~nt understands ano agrees that the
security d~posit may not be applil:d as rem or agalmt any other amount due from the Tenant to
Landlord, withoul Landlord's written consent, and thatmonthiy rent as specili~d herein will be
paid each month Including the lasl month of thi~ lease tenn, Within thirty (30) U<iy~ fOllowing
expiration of this least:, Landlord shalll'\:turn the security uepo~jl, less any deductions from it
as described above, by check payable to all persons signing tills lease as TenUlts, mailed III a
forwarding address which must be furnished by Tenant.
6. Landlord's Remeditl'J: If Tenant shall fail 10 pay rent or llny other slim to
J..andlnrd when due, shall default on llny other provisions of this lease, shall fail to take
possession of Ihe Premises on Ihe teml commencement date, shall vac~te or abandon the
Premis~s, or shall remove or attempt 10 remove his possessions from the Premises before paying
~
.
~.
SENT 8Y:~l\'O
: 7-28.a~: 1~:33 i,
MDIY.w-.
17174864344:# 4/ 6
co Landlord all cont du: tu Ih~ end of the lease limn undlord, in addition 10 all Olh~r remedi~
provided by I/lw, may:,
a, Tcnninalc lhis lease:
b, Bring action to ~over possession uf lhe Premi~s;
c, Bring action 10 recover Ihe whule balance of the renl ami ulher chaJ'jll,\.1 or
damages caused by Tenant's defaull,
7. Utilities nod TllXesl Garbage removal, eleclric, gas, oll, 1Illephone, cable
tclevi~jon, or IIny other service for the use of Tenanl allh~ Premises during th~ S/licllenn Rhall
be paid fur by Ih~ Tennn! unle,\,~ (1therwIR~ provided herein. In case of Tenanl's failure 10 pay
Ihe ahove descJ!.bed costs Ihe Landloru mav collec.t as renl uu~ \I1l1mll,tS double Ihe saiu cOSts.
-r11,t... wr:LWL- .4t d.~~ ~ ~ ~ .aa...1I ~ .
:~~f"'UJl.~.x:k ~/oIMIf.
8, Forbearance. Late PllymentS: Acceplanco by lbe Landlord of any of Ih~ said
renl at llny time aft~r the same Rhall become due, after default has bl:cn made In the payment
thereof, or any failur~ to enforce any of th~ rights hcrein reservc:d tu tho Landlord, or allY of
the penaitlcs, forfeitures ur cmldilions herein contained, shall not in /lny wise be considerecl a
waiver of Ihe right to enforee the same at /lny tim~ withotlt any notice whalSO<lVer and any
attempt to eullcctthe n:nl by one proceeding shall not be considered as a ~/liver llf the right 10
collect the samtl by any other proc~ing, bUI all of lhtl righU of Ihe Landlord, and all
forfeimrcs, penalties and conditions mllY be enforced together or successively at th~ uption of
Ihe Landlord. It is further agreed that if lhe Tenant shall becllme insolvent, make an assignment
for the benefit of creuitors, com mil any act of bankruptcy, me a volunuuy pctition in
bankruptcy, or if any judgment shall be entereu or an involuntary petition In bankruptcy tiled
againsl the Tenant, all rent reserved for the full lerm of lhis lease ~haJl become due and
col1ectibl~ imme<liatllly by distress or oth~JWi.le.
9, Confe.<iRlon of Judimentl Upon breach of any of tho eovcnanu or agreements
of this lease or upon its termination by forfeiture, defaull or .:xpiration, the Prothonotary or any
Anomey Is hllreby nuthori?c;d to appear for and 10 confess Judgment in an amicable action of
eJectlllent against the said Tenant and in favor of the t...Inc1ll1rd for the Premhes herein describcd
and to direct the immcdiat~ b~uini of a writ of possessiclO with costs and renl due, waiving lIl1
IrreiUlarities, without nOlic.: and without llskinll kave of Court.
10. Notice to Quit: Walv\:rl Tenanl hereby waives the Notice to Quit requirements
of the PelU1sylvania Landlord and Tenant Act \11' 1951, liS amended, 6l! P,S, 25U,IOI et sll'l"
which pruviues for Iifteen (15). thirty (30), or ninelY (90) day noti<.:~ to quit In .:enaln
circumstances. ]nlleu therCl,)f, in lhe event Tenant faib III pay the I'cnt when due, or breaches
any Ulher lenus or condiliun~ of th.is lease, Landlord shall be required to give Ten:lJll only five
(5) days notice prior 10 commencing legal action again,~tthe Tenant. TIle notice ~hall be served
by any of the fllllowing lI1eal1l: By noLifying the Tenanl in p.:rson, by delivering a copy of the
nOlice by cenjfied (1r regi.\tllred mail, or by postinll said nol.ice on the Premis s,
I have read and do understanu this paragraph 10, Tenant's Initials: