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LARRY L. WINDEMAKER, IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaint.i.ff .
.
v. : CIVIL ACTION - LAW
.
.
DONNA STAMBAUGH, . No. 94-7075 civil Term
.
:
Defendant. .
.
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend
against the claims set forth in the following pages, you must
take action within twenty (20) days after this 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.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
10. Defendant has wi1fully remained in possession of
the premises after notice to quit and still refuses to vacate the
same, interfering with Plaintiff's right to exclusive enjoyment
of his said property.
11. Because the Defendant refused to voluntarily
vacate the premises and because the Plaintiff was reluctant to
unilaterally exclude Defendant in the interests of their three
children living in the household, Plaintiff initiated eviction
proceedings through District Justice Glenn R. Farner.
12. Fol10wing Defendant's failure to appear for the
hearing scheduled before District Justice Farner on November 15,
1994, judgment was entered by District Justice Farner on that
date against Defendant, granting Plaintiff possession of the
premises and evicting the Defendant.
13. The Defendant continues to refuse to leave
Plaintiff's residence, although she has no right or entitlement
of any nature to continue to reside there, and she has filed the
instant appeal to this Honorable Court from the said District
Justice judgment.
14. Because the Defendant has resided in the
Plaintiff's home as his guest and at his sufferance only, she has
no legal right or entitlement to continue residence there, and
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MAllE the ;;; ~ doy or TII~
thousnnd IIlne hundred eighty-six 09861 (j
BETWEEN WILI,IAM F. MARTSON, Administrator d.b.n.c.t.a. of the Estnte of
In the year of our Lord one
Anno n. Oswald, decoosed, Inte of Sliver Spring TownshIp, Cumberland County,
Pennsylvania, hereinafter referred to as Grantor,
AND I.ARRY I" WINDEMAlmR of 124 West Portland Street, Meehanlesburg,
Cumberland County, Pennsylvanln, hereinafter referred to as Granteel
WITNESSETII, that In eonsldcration of the sum of SIXTY TIIOUSAND
($60,000.00) Dollars, In hand peld, the receIpt whereof Is hereby acknowledged, the
sold Grantor does hereby grant and convey to the sold Grantee, his hclrs and asslgnsl
ALl, that certain lot of ground situate In Silver Spring Township,
Cumberland County, Pennsylvenla, bounded and described os follows:
DEalNNING at a point at the corner of lands herein conveyed and lands
now or formerly of Arco Manufacturing Company, which point Is South 18
degrees 3 minutes East 129.24 feet from a splice In the center line of the
southern section of U.S. Route No. II; thence South 18 degrees 3 minutes
East 175 feet to 0 fcncc post at Une of lands now or formerly of James
McCormick, thence by sold lands and lands of the Shlllelah Form, South 59
degrees 34 minutes West 280.5 feet to a point, thence by sold latter lands
South 77 degrees 7 minutes West 105.6 feet to a fence post; thence by
same, North 24 degrees West 175 feet to a point, thence by lands now or
formerly of Areo Monufaeturlng Compllny, North 64 degrees 30 minutes 30
seconds East 401.68 feet to a point, the place of BEalNNING.
CONTAINING 1.66 acres ond being described occordlng to a survey of
George W. Walker, Registered Surveyor.
TOGETHER with a rlght-of-wny for Ingress, egress nnd regress to nnd from
the premises herein convcyed over the property now or formerly of Areo
Mnnufncturlng Company for nccess to U.S. Route No. II, ns such rlght-of-
way sholl exist or os sholl be agreed upon wIth the right to permanently
Improve the surfnce thereof. Thcse rIghts sholl occrue to the grantee, his
heirs nnd nsslgns.
I.EBB, HOWEVER, nU that certnln rcnl estnte contnlnlng 0.218 acres
gronted ond conveycd by Corl C. Oswald, Executor of the Lost Will and
Testament of Anno D. Oswald, to Albcrt L. l)asldn and Virginia M, Gnsldn,
his wife, by deed doted May 19, 1980, and recorded In the Cumberland
County Recorder's afrlr.e In Deed Dook "Y", Volume 28, Poge 754.
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800;, p 32 re1050
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AND ALSO LESS, all that certnln real estnte contnlnlng 0.065 acres
descrlhed In a dced exccuted hy Carl C. Oswnld, Executor of the I,ast WI11
and Testnment of Anna n. aswald, to Arco Manufacturing Company by an
unrecorded dccd dated Novembcr I, 1974, and bounded and described
therein as follows:
nEGlNNING at A point at the corner of Innds herein conveyed
nnd other Innds of Arco Mnnufacturlng Company, which point Is
referenced 13.15 feet more or less westwardly along the center
line of northbound section of U.S. Route No. II (I,.R. 34) from
the Intersection of said center line with tho center line of
Township Road T-{i82 and further referenced 238 feet more or
less southwardly from the center line of U.S. Route No. It I
thence along other lands of Arco Manufncturlng Compnny,
North 64 degrees 30 minutes 30 seconds east for a distance of
119.13 feet to a pipe at line of lands of Anna n. aswaldr thence
nlong lands of Annn B. Oswald, South 36 degrees 41 minutes 36
seconds west for a distance of 39.93 feet to a pipe, at line of
land to be conveyed to Albert L. Gaskin and Virginia M.
Gaskin, his wlfc, by Carl C. Oswald, Executorl thence along
same, South 49 degrees 46 minutes 02 seconds west, for a
distance of 87.77 feet to a post along lands of Albert L. Gaskin
and Virginia M. GaSkin, his wlfel thence along same, North 24
degrees west, for a distance of 40.98 feet to a point, the Place
of BEGINNING. Containing 0.065 acres and being described
according to a survey of Louis J. Harford, Registered Surveyor,
dated June 28, 1974. Said deed Is believed to have been
executed but not recorded. Delivery thereof Is likewise
unknown, therefore, any and all rights of Anna B. Oswald In and
to sold described tract of land Are released and qultclnlmed to
the Grantee herein, his heirs and assigns without any warranty
of title.
BEING the same property which was convcyed to Anna n. aswald by Decd
of Arco Manufacturing Company, a Pennsylvania Corporation, dated
January 3, 1966, and recorded In the office of the Recorder of Deeds In and
for Cumberland County, Pennsylvania, In Deed nook "W", Volume 21, Page
565, less the tracts referred to above.
The said ANNA B. aSWALD, having died February 6, 1974, created under
terms of her Last WI11 and Testament a life estate for Carl C. aswald, her
husband. The said Carl C. Oswald having died February 12, 1986, Letters
of Administration D.n.N.C.T.A. on the Estate of Anno B. Oswald were
granted on March 5, 1986 to William F. Martson by the Register of Wills of
Cumberland County, Pennsylvania, subsequent to the filing of
Renunciations of their rights to administer the estate having been flied
with the Register of Wills of Cumberland County, Pennsylvania, by David
Paul Oswald and Robert Allen Oswnld, grandsons and heirs of Anna B.
Oswald nnd Carl C, Oswuld.
AND the said Grantor hereby covenAnts and agrees that he wl11 warrant specially
the property herehy conveyed.
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5, Denied, Defendant denies that at various times through
the course of the relationship of the parties, Defendant has
resided with the Plaintiff in the residence as his paramour and
as his guest, Defendant repeats and incorporates by reference
her averments contained above in Paragraph 4,
6. Admitted in part and denied in part. Defendant admits
that the parties never entered into any type of written or oral
lease agreement, However, she denies that at no time did the
parties enter into any written or oral agreement of any nature.
Rather, Defendant avers that the parties entered into a verbal
agreement that they were husband and wife,
7. Denied, Defendant denies that all timeR, shs has
resided in the said residence only as a guest of Plaintiff.
Rather, as Plaintiff's common-law wife, she is an equitable co-
owner of said residence, and as such had and has the right to
reside there,
8, Admitted in part and denied in part, Defendant admits
that Plaintiff requested that Defendant leave this property, but
shs refused to do so, Defendant denies that the residence is
solely Plaintiff's property, to the extent this is implied.
Defendant also denies that the relationship between the parties
was as paramours and that the parties' relationship ceased in the
summer of 1994,
9. Admitted in part and denied in part, Defendant admits
that Plaintiff served her with said notice, but denies that the
legal effect of the notice was to require her to quit the
premises and deliver possession of the same within thirty (30)
days,
10, Admitted in part and denied in part. Defendant admits
that as of the date Plaintiff's Complaint was filed she wilfully
remained in possession of the premises after notice to quit.
However, she subsequently vacated the property. Defendant denies
that by remaining in the residence she was interfering with
Plaintiff's right to exclusive enjoyment of this property,
because he had no such right. To the extent it is implied,
Defendant denies that the property belongs solely to Plaintiff,
but rather avers that the property is jointly owned by Plaintiff
and Defendant,
11, Admitted in part and denied in part, Defendant admits
that Plaintiff initiated eviction proceedings through District
Justice Glenn R, Farner, because Defendant refused to voluntarily
vacate the premises, However, Defendant denies that Plaintiff
initiated said proceedings because Plaintiff was reluctant to
unilaterally exclude Defendant in the interest of their three
children living in the household,
12, Admitted in part and denied in part, Defendant admits
the averments set forth in Paragraph 12 of Plaintiff's Complaint,
except she avers that the hearing before District Justice Farner
was scheduled on December 15. 1994, rather than November 15,
1994,
13. Admitted in part and denied in part. Defendant admits
that she has filed the instant appeal to this Honorable Court
from the district justice judgment entered on December 15, 1994,
However, Defendant denies that she continues to refuse to leave
this residence, and that the residence is solely owned by
Plaintiff, to the extent this is implied, Defendant further
denies that she has no right or entitlement of any nature to
continue to reside there,
14, Admitted in part and denisd in part, Defendant admits
that Plaintiff seeks the entry of jUdgment against her, ejecting
her from the premises and directing her to vacate the Tesidence
immediately, However, Defendant denies that she has residsd in
the residence as Plaintiff's guest and only at his sufferance,
and that she has no legal right or entitlement to reside there,
15, Denied. Defendant denies that during her residence with
Plaintiff, she has brought seven cats into the premises, which
have caused substantial damage to the carpeting. By way of
further answer, Defendant avers that with Plaintiff's consent,
she brought one cat into the residence, which subsequently had a
litter of six kittens. The cat and five of the kittens have
been given away, with the remaining kitten being retained by
Plaintiff as a pet, These cats were pets of both parties, and
did not cause substantial damage to the carpeting in the
residence,
16, Denied, Defendant denies that there is damage to the
carpet and that the carpets have the odor of cat urine, She also
denies that if there were an odor of cat urine, it would be
impossible to remove, Defendant further denies that the carpet
in two bedrooms of the home must be replaced and the balance of
the carpets in the house must be cleaned,
17. Admitted in part and denied in part. Defendant admits
that Plaintiff seeks entry of jUdgment against Defendant in the
amount of $1500.00, However, Defendant denies that Plaintiff is
entitled to such a jUdgment, and that such a jUdgment would
represent the cost of replacing carpet in two bedrooms and having
the remaining carpets in the house cleaned fo11owing her
departure from the premises. Defendant also denies that the
al1eged replacement and cleaning of carpeting is necessary.
NEW MATTER
18. Defendant became Plaintiff's common-law wife as of
January 1986, continues to be his wife and as such has an
equitable ownership interest in the residence 10cated at 6619
Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania
17055.
19, The cats which occupied the said residence were owned
and cared for jointly by Plaintiff and Defendant,
20. Defendant no longer occupies this residence, and has
established a separate residence for herself and her children
located at 1380 Grandview Court, Carlisle, Cumberland County,
Pennsylvania 17013,
WHEREFORE, Defendant requests that the relief requested by
Plaintiff be denied, and requests such other and further relief
as this Court may deem reasonable and just,
QQUN.IER.QL.\lM
COUNT I - UNLAWFUL EVICTION
21. Defendant resided with Plaintiff in the dwelling located
at 6619 Carlisle Pike, Mechanicsburg, Cumberland County,
Pennsylvania 17055, from approximately July 1986 until Defendant
left the residence in January 1995,
22. The parties' three children, as well as one child of
Defendant, which was born prior to the parties' relationship,
have also resided at the residence during this period of time.
23, On October 25, 1994, Plaintiff commenced an eviction
action before District Justice Glenn R, Farner (Larry L,
Windemaker v. Donna Stambauqh, LT-0000420-94),
24. On December 15, 1994, District Justice Farner entered a
jUdgment in favor of Plaintiff granting him possession of the
prsmises and court costs in the amount of $73,00.
25, On December 15, 1994, following the district justice
hearing on that date, Plaintiff locked Defendant out of the
residence,
26, Prior to excluding Defendant from the residence,
Plaintiff failed to obtain an Order for Possession, or otherwise
follow the procedures required under Pa. R,C,P,D.J. 515-519,
27, On December 19, 1994, Defendant filed an appeal from the
district justice jUdgment, and obtained a supersedeas to the
judgment for possession, A copy of Defendant's Notice of
!-
Appeal, Praecips to Enter Rule to File Complaint, and Rule to
File, is attached hereto, incorporated by reference and marked as
Dsfendant's Exhibit "A,"
28, The Notice of Appeal, Praecipe to Enter Rule to File
Complaint, and Rule to File was sent by certified mail to
Plaintiff on December 19, 1994, and received by Plaintiff on
December 20, 1994,
29, Despits having received the Notice of Appeal with the
supersedeas to the judgment of poss~ssion indicated clearly
thereon, Plaintiff unlawfully continued to deny Defendant access
to the dwelling on numerous occasions, thus depriving her of the
use and enjoyment of the premises and access to her children, and
requiring that she seek shelter elsewhere.
30. Even when Plaintiff permitted Defendant to enter the
premises, he locked Defendant and her oldest child, Tiffany, out
of Tiffany's bedroom,
31, As the result of Plaintiff's actions in unlawfully
excluding Defendant from the residence, Defendant had to spend
one night at a motel at a cost of $29.68, four nights sleeping in
her car, and approximately eight nights with friends and
relatives,
32, By unlawfully excluding Defendant from the residence,
Plaintiff intended to cause and in fact caused Defendant to
suffer separation from her children, as well as severe stress,
anxiety, discomfort, embarraBsment, annoyance, nervousness,
inconvenience and emotional distress.
WHBREFORB, Defendant requests that a judgment be entered in
her favor and against Plaintiff in the amount of $29.68 as
compensation for Defendant's monetary losses, and such other and
further relief as this Court may deem reasonable and just,
together with costs of suit,
COUNT II - INTBNTIONAL INFLICTION OF EMOTIONAL DISTRESS
33, Defendant repeats and incorporates by reference her
averments contained in Count I of her Counterclaim,
34, Plaintiff, by his unlawful and outrageous conduct, has
intentionally caused Defendant to suffer extreme emotional
distress.
WHERBFORE, Defendant requests that a jUdgment be entered in
her favor and against Plaintiff in the amount of $1,000,00,
togsther with costs of suit,
COUNT III - CONVERSION
35, Defendant repeats and incorporates by reference her
averments set forth in Counts I and II of this Counterclaim,
36, Subsequent to Defendant's departure from this residence,
Plaintiff has held and continues to hold the following items of
Defendant's personal property over Defendant's objections, and
despite her demands that he restore her with possession of thess
items:
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