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Home My WebLink About95-03713 ~ , , \ J J. '~ B,>U o ~ ~ . ,- .. LJ:,., ., . 5 t'I~,. ~I (.)1"- .,. o 4.:~.IC..'" .... :-. :": '; ~ I en '" Do ... V"l . r , ,~,;Jr. , .It .i" ,- ~, ~c 0.... 3~ i~e 8 .~~ ~~!::~ 00 lifffi E-4U j:l 8~~~ U "'.... J,~ !~:~ ....uzl=) . , ...t III U CIIUl ~ .~ ~'rl 1II= ~~ 1II11l ~ III ~ : . ,'./l . BU ....~ Z'tl ~~ ~ > ..i2l z o 1II ..:l ~ ~~ 1II~ ~;3 ....~ fjo IIlU ~~ ~; 8~ ~~ 11l1ll '" ~ 3 j ~ ~ !( ~ g '"' ~ ~ ~ ~ ~ ~ of ~ < ~ ; U .' . ROBERT SAMPSON and LINDA SAMPSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : v, NO, 95-3713 EQUITY TERM NELSON L, MLNICH, Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' SECOND AMENDED COMPLAINT Defendant NELSON L, MINICH, by his attorney, Wayne F, Shade, Esquire, appears and files his Preliminary Objections to Plaintiffs' Second Amended Complaint pursuant to Pa,R,C,p. 1028, as follows: DEMURRER 1. The Second Amended Complaint fails to plead a claim upon which relief can be granted as to Plaintiff ROBERT SAMPSON in that the allegations of Paragraph 6 are inconsistent with the jUdicial admission of Plaintiff ROBERT SAMPSON in Paragraph 6 of his first Amended Complaint which averred that he was not a tenant after April of 1995 but that his ex-wife had "take[n] over his tenancy temporarily", 2, The Second Amended Complaint fails to plead a claim upon which relief can be granted in Count Three as to alleged intentional infliction of emotional distress in that there are no averments which would establish the conduct of Defendant as being WAYNE F, SHADE A~ at Law S] W... _rd _ c.r1ia~. Pawylv.... 1701] -- -.- -- ~~~~ '--:-:-'--"~'-::':'-~_,""""1 "~,.:J,..;.,~. WAYNI! F. SHADe Aaomcy .t lAw 33 Wut Pomfret SIrtd CulWe. PmluylvuUa 17013 so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community, 3, The Second Amended complaint fails to plead a claim upon which relief can be granted in Count Three as to alleged intentional infliction of emotional distress in that it fails to aver physical manifestations of the alleged emotional injury, WHEREFORE, Defendant respectfully requests that plaintiffs' Second Amended Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs, NONJOINDER OF NECESSARY PARTIES 4, Paragraphs 5 and 7 of the Second Amended complaint, taken together, aver that Lenny Hartman was a joint tenant of the subject property after April of 1995, but he has not been made a party to this action, WHEREFORE, Defendant respectfully requests that Plaintiffs' Second Amended complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs, Date: September 29, 1995 $~,/.;'~ Wayne/F, Shade, Esquire supreme Court No, 15712 53 West Pomfret Street carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Defendant PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in d1lpli.."te) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption IlUSt be stated in full) ROBERT SAMPSON and LINDA SAMPSON, (Plaintiff). VB. NELSON L, MINICH, (Defendant) No, 95-3713 EQUITY TERM '" C">~, c: -.:-. ;; \!' r7. :~ ;;r.:,n ,- ...:;0 -,:n -r-na V;... -;. . -.-. ,.~ r<~..:: ~f.~f: ~- .. ~~ - c- "'" 1. State matter to be argued (i.e.. plaintiff's IlDtion for new trial. defendant's dBlun:er to carplaint. etc.): CT oJ;: w ~ :::0: - CoD .." Defendant's Preliminary Objections to Plaintiffs' Second Amended Complaint 2. Identify counsel who will argue case: (a) for plaintiff: I\ddress : .Jane Muller-Peterson, Esquire Legal Services, Inc, 8 Irvine Row Carlisle, PA 17013 Wayne F. Shade, Esquirl! 53 Wl!st Pomfret Strel!t Carlisle, PA 17013 (b) for defendant: I\ddress : J. I will notify all parties in writing within two days that this case has been listed for argt.II1ent. 4, Argunent Court Date: Dl!cembl!r 6, 1995 ~...'::lltJt'cl QlvI- A omey for Plaintiffs Dated: . ~,,,..,.-, ROBERT SAMPSON and LINDA SAMPSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-3713 EQUITY TERM NELSON L. MINICH. Defendant ~ERTIFICATE OF SERYI~E I. Philip C. Briganti. hereby certify that a copy of the foregoing Praecipe for Listing Case for Argument is this 16th day of November, 1995, being served upon Wayne F. Shade, Attorney at Law, 53 West Pomfret Street, Carlisle. Pennsylvania, 17013. by regular mail. ~ i 1 i p . Bri Attorney at L LEGAL SERVICES, INC. a Irvine Row Carlisle. PA 17013 (717) 243-9400 r' " " i; ,\ ~. .. .. ,,", ~ , , , , '.., , ,; 'li' r'"~~ .'.J J/.-.J- 9~ ~L'-G.~ ~ ,'-"p11' ./ NELSON L, MINICH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, " NO, 95-5246 CIVIL TERM ROBERT SAMPSON, Defendant JURY TRIAL DEMANDED MUTUAL RELEASE THIS AGREEMENT, made this 5th of March , 1996, between NELSON L, MINICH of 370 South Middlesex Road, Carlisle, Pennsylvania 17013 (hereinafter referenced as "Minich") AND ROBERT SAMPSON of 1408 Trindle Road, CarliSle, Cumberland County, Pennsylvania 17013 (hereinafter referenced as "Sampson"), WITNESSETH: WHEREAS, the parties hereto have instituted civil proceedings against each other in the Court of Common Pleas of Cumberland county, Pennsylvania, docketed, respectively to No. 95-5246 Civil and No. 95-3713 Equity arising from an alleged Landlord and Tenant relationship; and WHEREAS, both parties wish to resolve their disputes and release and forever discharge each other from all claims against each other in satisfaction of all such claims, NOW, THEREFORE, the parties hereto, intending to bind themselves and their respective heirs, executors, administrators, successors and assigns, do hereby covenant and agree, as follows: 1, The funds deposited with the prothonotary of Cumberland County, Pennsylvania, by Sampson at No. 95-5246 Civil on account of rent shall be released to Wayne F, Shade, Esquire, Attorney for Minich, in full satisfaction of all claims of Minich for rent, 2, This Release may be filed at No. 95-5246 civil and constitute a stipulation for the release of all funds held by the prothonotary of Cumberland county, Pennsylvania, in that case to counsel for Minich, 3, By execution of this Mutual Release, the parties hereto direct their respective counsel to mark the respective bases in which they are Plaintiffs .Settled and Discontinued" with prejudice, IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and date first above written, WITNESS: alII Y-.A. e ;:::- Skh. ~~'DWLY~ , - ..' :~. -\ , I -. , - .J .." i";~ , ~I n ; c..' 0:1 , :,:.:, - " '-;1 '-'"j )~, ;'.., " 1\ ! - ~ -~ ",..' ". v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 95-3713 EQUITY TERM ROBERT SAMPSON and LINDA SAMPSON, plaintiffs NELSON L, MINICH, 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 Amended Complaint is 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, 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE NUMBER: (717) 240-6200 ROBERT SAMPSON and LINDA SAMPSON, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 95-3713 EQUITY TERM , , v, , . NELSON L, MINICH, Defendant , . SECOND AMENDED COMPLAINT The plaintiffs, Robert Sampson and Linda sampson, by and through their attorney, Jane Muller-Peterson, of Legal Services, Inc" state the following: 1, The plaintiffs are Robert Sampson an adult who lives at 1408 Trindle Road, Carlisle, PA 17013, and his estranged wife Linda Sampson, now residing at 229 S, Baltimore, Dillsburg, pennsylvania 17019, 2, The defendant is Nelson L, Minich, 3, The defendant, an adult who resides at 370 S, Middlesex Road, Carlisle, Pennsylvania 17013, is the owner of real property located at 1408 Trindle Road, 4, In January of 1995, the plaintiff Robert Sampson and the defendant entered into an oral lease for the rental of the premises located at 1408 Trindle Road, The defendant agreed to accept the plaintiff as a tenant if he paid the $300,00 monthly rate and a past due amount from the tenant he was replacing in the amount of $50,00, which he did, 5, Plaintiff Robert Sampson joined Lenny Hartman, a tenant already there when he moved in, and the two men resided in the rental premises with the plaintiff's seven-year-old child, 6, On or about April lQ95, plaintiff Robert Sampson told the defendant landlord that he would be away for several months and obtained his agreement that his estranged wife Linda sampson would move in to preserve his tenancy and to care for his seven- year-old son while he was away, 7, The tenants remained current in rent until June, when they failed to pay $30,00 of the June rent payment. 8, Plaintiff Linda Sampson informed the plaintiff Robert sampson in late June that Lenny Hartman was drinking and messing up the premises, 9, Plaintiff Robert Sampson thereupon asked for early release to deal with the problem and also called the landlord to request that he evict Lenny Hartman, 10, On July 3, 1995, the defendant orally notified plaintiff Robert Sampson's mother and plaintiff Linda sampson that he wanted all the tenants out and that the premises had to be vacated on July 15, 1995, 11, On that same date, he further told them that if he did not receive rent for half of July and the $30,00 owing from June, a total of $180,00, he would put the household belongings outside, 12, On or about July 8, 1995, the defendant removed from the residence the majority of plaintiff Robert Sampson's belongings and placed them outside, In addition, the locks to the residence were changed, thereby preventing the plaintiffs, their minor child, or Lenny Hartman from entering the residence, "-"--- 13, On July 10, 1995, when plaintiff Robert Sampson was granted early release because of the problems at his residence, he returned to the residence and saw his possessions outside. He contacted the landlord, and learned that the rent payment was late, 14, He informed the landlord that he wished to stay, 15. Plaintiff Robert Sampson was able to pay the defendant the overdue rent, 16, The defendant informed plaintiff Robert Sampson that he could not stay and that he would have to remove the rest of his belongings, which included appliances, by July 15, 1995, He further informed him that another tenant had been promised the residence. 17, On July 11, 1995, plaintiff Robert Sampson informed the defendant through his counsel, that he intended to go into court to obtain injunctive relief on the next day if he were not allowed into the residence, 18, On July 12, 1995, the court granted plaintiff Robert Sampson a preliminary injunction requiring that the defendant landlord immediately move the plaintiff's property back into the rental premises and enjoining him from depriving the plaintiff of access to the premises. 19, On July 13, 1995, the plaintiff Robert Sampson delivered to the defendant a check in the amount of the overdue rent, $330,00, the entire sum due, 20. On July 13, 1995, after having been served with the " ,. , I \, Court Order of July 12, 1995, the defendant refused to leave a key to the premises with his lawyer, and he further refused to inform plaintiff Robert sampson or his counsel as to when or where a key could be obtained, 21, Despite the Court Order of July 12, 1995, the defendant refused to return plaintiff Robert Sampson's property to the residence, but rather, left it outside under a carport, 22, The defendant was not available or did not answer the phone when the plaintiff called him, 23, After entry of a Court Order on July 17, 1995, the defendant returned plaintiff Robert Sampson's property to the residence, and provided him and his son access to the residence, 24, Because of the lockout, plaintiff Robert Sampson missed three days of work, 25, Because of the lockout, plaintiff Robert sampson had to commute to Dillsburg to sleep on the floor, 26, During the days the plaintiff's property was outside, the following items of which he is the sole owner, no joint tenant having any interest, were stolen or damaged beyond repair: a, new telephone with answering machine $165,00 b, train telephone bought for his son 80,00 c, chandelier wedding gift 300,00 d, 100 piece socket set 99.00 e, Armchair 592,00 Count One Self-Hele Eviction 27, The allegations of paragraphs one through 24 of this Complaint are incorporated herein by reference, 28, The defendant's actions constitute a trespass and self- help eviction, in violation of Pennsylvania law and public policy embodied in, inter alia, the Landlord and Tenant Act of 1951, 68 P,S, 5250,101 ~ ~, 29, The defendant's actions were intentional, wilfull, wanton, reckless, evil, and outrageous and perpetrated with a total disregard for the laws of this Commonwealth and the original Order of this court, thus entitling the plaintiff to an award of punitive damages, WHEREFORE, the plaintiff prays that the court: a) declare that the defendant's actions were illegal and constituted a self-help eviction, in violation of state law; b) restore possession of the premises to the plaintiff; c) permanently enjoin the defendant from attempting to evict the plaintiff by any means other then those prescribed in the Landlord and Tenant Act of 1951, 68 P,S, 5250,101 et ~" and the Rules of civil Procedure for District Justices, and from interfering with the plaintiff's peaceable enjoyment of the premises; d) award the plaintiff Robert sampson damages for the injuries he suffered as a result of the defendant's illegal actions, including but not limited to: $1236,00 for stolen or damaged property, $136,00 for 3 days of missed work, $25,00 for commuting to oillsburg and back, and $1,500 for humiliation, anguish and personal distress; e) award the plaintiffs $1,500,00 for the defendant's breach of the covenant of quiet enjoyment, f) award the plaintiffs punitive damages; g) order the defendant to pay the costs of this action; h) order the defendant to pay the plaintiffs' attorney's fees; and j) grant such other relief as may be just, Count Two Violation of Consumer Protection Law 30, The allegations of paragraphs one through twenty seven are incorporated herein by reference, 31. The transaction between the parties involved "trade" and "commerce," as those terms are used in the Consumer protection Law, 73 P,S, S201-2(3), 32, The defendant's actions constitute unfair or deceptive acts or practices as defined by 73 P,S, S201 and 37 Pa, Code S303,3, WHEREFORE, the plaintiffs pray that the court: a) award them all the damages prayed for in Count One of this Complaint; b) award them, under 73 P,S, S201-9,2, triple the amount of the damages they have suffered; c) order the defendant to pay the costs of this action; d) grant such other relief as may be just, ~ n Muller-Peterson A orney for Plaintiff L GAL SERVICES, INC, 8 Irvine Row Carlisle, pa 17013 (717) 243-9400 -Q Count Three Intentional Infliction of Emotional Distress 33, The allegations of paragraphs one through thirty are incorporated herein by reference. 34, The defendant intentionally did the wrongful acts enumerated above with a reckless disregard of the consequences and a mind regardless of social duty, 35, The defendant intended to and did inflict emotional distress upon the plaintiff, WHEREFORE, the plaintiffs pray that the Court enter a judgment for both actual and punitive damages against the defendant, and grant such other relief as this Court may deem reasonable and just. Respectfully submitted, The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Amended Complaint are true and correct, Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa, C,S. 54904, relating to unsworn falsification to authorities, Date: q- //- q~ L ;, The above-named plaintiff, Linda Sampson, verifies that the statements made in the above Amended complaint are true and correct, plaintiff understands that false statements herein are made subject to the penalties of 18 Pa, C,S, 54904, relating to unsworn falsification to authorities, '1/ ff 11,{ y" S' . "./luld /tlll'fJ ')ell Linda Sampson, Plaintiff Date: ,,' ../1 ri ", ..., - - .:::.. -'. .... , l.'" <, ..", ~.. ~ ." ,;!.\ .., = -.J" -:,' ~ -, '.-.... ROBERT SAMPSON, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V, NELSON B. MINICH, DEFENDANT 95-3713 EQUITY TERM ORDER OF COURT AND NOW, this 17th day of July, 1995, following a hearing on the petltlon of plaintiff for the Issuance of a preliminary Injunction, IT IS ORDERED: (1) The ex parte order entered on July 12, 1995, IS VACATED and replaced with this order, (2) Defendant, Nelson B, Minich, IS PROHIBITED from evicting plaintiff, Robert Sampson from 1408 Trlndle Road, Carlisle, Cumberland County without legal process, (3) Defendant shall return plaintiff's property to the residence, (4) Defendant, this date, shall provide plaintiff with a key to the residence, (5) This preliminary Injunction is effective Immediately based upon the security deposited with the Prothonotary pursuant to Pennsylvania Rule of Civil Procedure 1531(b)(2), following the entry of the ex parte order, I By t~ Court~ / , \1 1/ ~ ''I,,'; \ Edgar B, Bayle ,J, '-.. ,. , \ \ ,-' ,. , . ,',.., .;:: J ~, ; J 1.1, ~li (].i. "/,) ('/tLli';i-',. 'J 131. " 56, 1M z~ I L I wr ,- -""""_~'"'f""-". .'-~.-., , --- ". Jane Muller.Peterson, Esquire For Plaintiff Wayne F, Shade, Esquire For Defendant :saa _ ~4.ln..\.'\......u.l. '7/ ''1/'i~; ,,6 f, ,::,,',:SJ> " " r' .,. . . r , ~~ --:""--- .._-..... ....., , , v, ;. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 96-3713 EQUITY TERM EQUITY ROBERT SAMPSON, Plaintiff NELSON L, MINICH, Defendant NOTICE AND ORDER A Petition for Contempt of a Court Order has been brought against you in Court, You must appear in person in Court on July , 1996, at ,m" in Courtroom No, , of the Cumberland County Courthouse, Carlisle, Pennsylvania, If you do not appear in person, the Court may issue a warrant for your arrest, If the Court finds that you have failed to comply with its Order, you may be found to be in contempt of Court and committed to jail, fined, or both. 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 FOLLOWING; Court Administrator, Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 By the Court, J. " , "-.. - --.......,. . . - -~ -,-- - ~- ~ ROBERT SAMPSON, Plaintiff ;, IN THE COURT OF COMMON PLEAS OF v, CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM NELSON L, MINICH, Defendant PETITION FOR CONTEMPT The plaintiff, Robert Sampson, by and through his attorney, Jane Muller-Peterson, of Legal Services, Inc" states the following: 1, On July 12, 1995, the Court granted the plaintiff a preliminary injunction requiring that the defendant landlord immediately move the plaintiff's property back into the rental premises and enjoining him from depriving the plaintiff of access to the premises, 2. The defendant has wilfully and intentionally violated the Order in that: , a. On July 13. 1995, he refused to leave a key to the premises with his lawyer and he further refused to inform plaintiff or his counsel when or where a key could be obtained. b. He did not return plaintiff's property to the residence, but rather, left it outside under a carport, c, He was not available or did not answer the phone when the plaintiff called him on Saturday and Sunday, WHEREFORE. the plaintiff asks that the defendant be held in contempt and that this court take whatever measures it deems necessary to enforce its order,including imposing a fine and/or a ~tI~1 _\?~ J Muller-Peterson At orney for Plaintiff LEGAL SERVICES, INC. a Irvine Row ' Carlisle, pa 17013 (717) 243-9400 --- prison sentence to force the defendant to obey the order, The plaintiff further asks for any other relief that is just and proper, . ~ The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Petition are true and correct, Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa, C,S, 64904, relating to unsworn falsification to authorities. .ata, 7-/7 q:]' t.t::.~-.{,~ " NELSON B. MINICH, Defendant NO. 95-.n13 Eq....:..:hf' (' EQUITY ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. RULE TO SHOW CAUSE AND PRELIMINARY INJUNCTION AND NOW, this I~~ day of July, 1995, upon consideration of the attached Petition for a Preliminary Injunction, a Rule is hereby granted upon the defendant to show cause why a preliminary injunction enjoining tne defendant from depriving the plaintiff and his son of access to their residence and ordering the defendant to return the plaintiff's possessions to his residence, should not be granted. jJ 1995, at.)O (I.m. in Courtroom No. l'7tl day of July, rr- of the Court of Rule returnable at a hearing on the Common Pleas of Cumberland County. Pending the hearing, the defendant is enjoined from depriving the plaintiff and his child of access to~r residence, and the defendant is ordered to\~eir property \lui> OV'\o--. S~ .}?;...~ ~ back into the residence. I "(I-iM ,p t~ ~l-h~ i,.uu /{M"ft., ~ P'IO .~~ I J. A- ')iWW~ ~ ru t ~ C1} Q.w,l \)W1~ I ~ 'J ) (.J) (12-) By I' A; , ~i.. : '1 ~ . 56 j H J L 11 I Z I lOr ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NELSON B, MINICH, Defendant NO, 95- EQUITY CIVIL TERM PETITION FOR PRELIMINARY INJUNCTION The plaintiff, Robert Sampson, by his attorney, Jane Muller- Peterson of Legal Services, Inc" avers the following; 1, Robert Sampson is a tenant residing at 1408 Trindle Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2, The residence is owned by the defendant, Nelson B. Minich. 3. The parties entered into an oral, month-to-month lease, in January, 1995. 4. On April 3, 1995, the plaintiff left the residence temporarily after paying the April rent, to serve a sentence for retail theft, having made arrangements with the defendant that the plaintiff's former wife, and the plaintiff's roommate, Lenny Hartman, would continue to reside in the residence with the plaintiff's child and make rent payments during his absence and that he would resume responsibility when he returned, 5, The plaintiff's former wife and the plaintiff's roommate failed to pay $30.00 of the June 1995 rent payment, and have not paid the $300.00 payment for the July 1995 rent. 6. On July 3, 1995, the defendant orally notified the plaintiff's mother and the plaintiff's former wife that the apartment had to be vacated on July 15, 1995, He told them that if he did not receive rent for half of July and the $30,00 owing from June, a total of $180,00, he would put the plaintiff's belongings outside. 7, On or about July 8, 1995, the defendant removed from the residence the majority of the plaintiff's belongings and placed them outside. In addition, the locks to the residence were changed, thereby preventing the plaintiff, his minor child, his roommate or his former wife, from entering the residence. 8. On July 10, 1995, the plaintiff returned to the residence and saw his possessions outside, He contacted the landlord, and learned that the rent payment was late. 9. The plaintiff told the defendant he wished to stay, The plaintiff is able to pay the defendant the overdue rent. 10, The defendant told the plaintiff that he would have to remove the rest of his belongings by July 15, 1995, and that somebody would have to reimburse the defendant for the costs he incurred in removing the plaintiff's belongings from the residence, as described in Paragraph 7. In addition, the defendant told the plaintiff that he had already arranged to rent the residence to someone else and that the plaintiff had to remove his appliances and other belongings by July 15, 1995. 11. The defendant has failed to give the plaintiff or any other tenant a proper notice to quit, as required by law. 12, The defendant has illegally locked the tenants out and removed the plaintiff's belongings from the residence, in violation of the Pennsylvania Landlord/Tenant Act. 13. The plaintiff had to take time off from work to deal with the landlord's illegal actions. 14. The plaintiff was unable to get medicine for his son which is in the refrigerator and had to cancel a dental appointment for his son, as the medicine had to be taken one hour before the appointment. 15. Preliminary injunctive relief is needed to prevent immediate and irreparable harm: a. The plaintiff and his minor son are locked out of their residence and have been forced to stay with different relatives each night, where there are no beds and not enough room for them. b. The plaintiff's belongings are outside, under a carport exposed to the elements and subject to theft, c. Most of the clothing belonging to the plaintiff and his son is in the residence. 16. The plaintiff has no adequate remedy at law. 17, Greater harm will result by denying preliminary relief than by granting it because if relief is denied, the plaintiff and his minor son will have no place to live and may suffer loss of their belongings. The defendant will incur no harm if the relief requested is granted in that the plaintiff can pay him all of the overdue rent and can remain current in rent. Any other harm the defendant may claim is a result of his illegal acts. 18, The defendant has been informed that the plaintiff is bringing this action because of the defendant's use of self-help eviction measures, WHEREFORE, the plaintiff requests that this Court issue a preliminary injunction and set a date for hearing at which it will be determined whether the injunction should continue. The plaintiff further requests that the Court set no bond amount because the defendant will suffer no damage as a result of the preliminary injunction, and the plaintiffs are proceeding in forma pauDeris. In the alternative the plaintiff requests that bond be set in the amount of the rent the landlord claims is due, $330,00 Respectfully Submitted, ~H -rl~-G&t-. Jan Muller-Peterson Attorney for Plaintiff LEGAL SERVICES, INC. B Irvine Row Carlisle, PA 17013 ( 717) 243-9400 The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Petition for Preliminary Injunction are true and correct. Plaintiff understands that false statements herein are made sUbject to the penalties of lB Pa. C,S, 64904, relating to unsworn falsification to authorities. Date; 7-/2. -C;c:/ ~trA:fd~j~^ {;Jje~ Sampson-, P intiff '. - ~ f') 7:. .. Ij;A 'l.i 1> .J l/I ll, t== (jJ ~ 8 "fL ~ :\=5 !::It ..... ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95- 3'7' 3 fq"',-\,, EQUITY v, NELSON B. MINICH, 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 is 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, 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE NUMBER: (717) 240-6200 -~~~, ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NELSON B. MINICH, Defendant NO, 95- EQUITY COMPLAINT IN EQUITY CIVIL TERM The plaintiff, Robert Sampson, by his attorney, Jane Muller- Peterson of Legal Services, Inc., avers the fOllowing: 1. Robert Sampson is a tenant residing at 1408 Trindle Road, Carlisle, Cumberland County, Pennsylvania, 17013. 2, The residence is owned by the defendant, Nelson B, Minich. 3. The parties entered into an oral, month-to-month lease, in January, 1995. 4. On April 3, 1995, the plaintiff left the residence temporarily after paying the April rent, to serve a sentence for retail theft, having made arrangements with the defendant that the plaintiff's former wife, and the plaintiff's roommate, Lenny Hartman, would continue to reside in the residence with the plaintiff's child and make rent payments during his absence and that he would resume responsibility when he returned. 5. The plaintiff's former wife and the plaintiff's roommate failed to pay $30.00 of the June 1995 rent payment, and have not paid the $300.00 payment for the July 1995 rent. 6. On July 3, 1995, the defendant orally notified the plaintiff's mother and the plaintiff's former wife that the . ~ apartment had to be vacated on July 15, 1995. He told them that if he did not receive rent for half of July and the $30.00 owin9 from June, a total of $180,00, he would put the plaintiff's belongings outside. 7, On or about July 8, 1995, the defendant removed from the residence the majority of the plaintiff's belongings and placed them outside, In addition, the locks to the residence were changed, thereby preventing the plaintiff, his minor child, his roommate or his former wife, from entering the residence, 8. On July 10, 1995, the plaintiff returned to the residence and saw his possessions outside. He contacted the landlord, and learned that the rent payment was late. 9, The plaintiff told the defendant he wished to stay. 10. The plaintiff is able to pay the defendant the overdue rent. 11. The defendant told the plaintiff that he would have to remove the rest of his belongings by July 15, 1995, and that somebody would have to reimburse the defendant for the costs he incurred in removing the plaintiff's belongings from the residence, as described in Paragraph 7. In addition, the defendant told the plaintiff that he had already arranged to rent the residence to someone else and that the plaintiff had to remove his appliances and other belongings by July 15, 1995. 12. The defendant has failed to give the plaintiff or any other tenant a proper notice to Quit, as required by law. - .-.w_ .... 13. The defendant has illegally locked the tenants out and removed the plaintiff's belongings from the residence, in violation of the Pennsylvania Landlord/Tenant Act. 14. The plaintiff had to take time off from work to deal with the landlord's illegal actions. 15, The plaintiff was unable to get medicine for his son which is in the refrigerator and had to cancel a dental appointment for his son, as the medicine had to be taken one hour before the appointment. 16. The plaintiff's property has been subject to theft and damage by the weather. WHEREFORE, the plaintiff requests that this Court; a, Order the defendant to allow the plaintiff and his son access to their residence; b. Order the defendant to put the plaintiff's property back into his residence. c. Order the defendant to pay the plaintiff monetary damages he has incurred as a result of the defendant's illegal acts, d. Order such other relief as may be just and proper under the circumstances. Respectfully Submitted, a~ - 1Il~~ _ C?dc-'vl--v' ~ler-peterson Attorney for Plaintiff LEGAL SERVICES, INC. a Irvine Row CarliSle, PA 17013 (717) 243-9400 The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Complaint are true and correct. Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C.S. 64904, relating to unsworn falsification to authorities. Date; 1--A-yS ~~u!Ja~ obert Stimpson, aintiff " <- c: r- ....... ~ N co ...", = ~ ,- - c.c c.n .<:".: ROBERT SAMPSON. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 96-3713 EQUITY TERM EQU ITY v. NELSON L. MINICH, Defendant NOTJC~N~QBQEB A Petition for Contempt of a Court Order has been brought against you in Court. You must appear in person in Court on July .____..._., 1996, at .m., in Courtroom No. _________. of the Cumberland County Courthouse, Carlisle, Pennsylvania, If you do not appear in person, the Court may lssue a warrant for your arrest. If the Court finds that you have failed to comply with its Order, you may be found to be in contempt of Court and committed to jail, fined, or both. 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 FOLLOWING: Court Administrator, Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 I , I I I i l. I I By the Court, J, 1-: ~.., ROBERT SAMPSON, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3113 EQUITY TERM v. NELSON L. MINICH, Defendant PETITION FOR CONTEMPT The plaintiff, Robert Sampson, by and through his attorney, Jane Muller-Peterson, of Legal Services, Inc" states the following; 1. On July 12, 1995, the Court granted the plaintiff a preliminary injunction requiring that the defendant landlord immediately move the plaintiff's property back into the rental premises and enjoining him from depriving the plaintiff of access to the premises. 2. The defendant has wilfully and intentionally violated the Order in that; a. On July 13, 1995, he refused to leave a key to the premises with his lawyer and he further refused to inform plaintiff or his counsel when or where a key could be obtained. b. He did not return plaintiff's property to the residence, but rather, left it outside under a carport. c. He was not available or did not answer the phone when the plaintiff called him on Saturday and Sunday. WHEREFORE, the plaintiff asks that the defendant be held in contempt and that this court take whatever measures it deems necessary to enforce its order,inc1uding imposing a fine and/or a prison sentence to force the defendant to obey the order, The plaintiff further asks for any other relief that 1s just and proper. i~~, -V}{C1 J MUller-Peterson At orney for Plaintiff LEGAL SERVICES, INC. a Irvine Row Carlisle, Pa 17013 (717) 243-9400 ~ The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Petition are true and correct, Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C,S. 64904, relating to unsworn falsification to authorities. t.r.:.~~~ Date: 7-/7 0/:]' I I I I , I , j ( : -... w '" .... ~:. LO (J1 l !t 1'i I~; ~:.,,~. - ... . . . " ", - . . r t . '- .:'-~ . ,'0 \ v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95- 37/3 Eo\) 1: I '( ROBERT SAMPSON, Plaintiff NELSON B, MINICH, Defendant PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow, Robert Sampson, Defendant, to proceed in forma pauceris, I, Jane Muller-Peterson, attorney for the party proceeding in forma cauceris, certify that I believe the party is unable to pay the costs and that I am providing free legal services to the party, The party's affidavit showing inability to pay the costa of litigation is attached hereto. , Q. _ r..\1:.h....x/)_ e Muller-Peterson orney for Defendant NO. 95- CIVIL TERM ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NELSON B. MINICH, Defendant AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 1. I am the plaintiff in the above matter and because of my financial condition am unable to pay the fees and costs of this action. 2. I am unable to obtain funds from anyone, including my family and associates, to pay the costs of litigation. 3. I represent that the information below relating to my ability to pay the fees and costs is true and correct. (a) Name: Robert Samoson Address: 1408 Trindle Rd. Carlisle. PA 17013 Social Security Number: 195-38-8331 (b) If you are presently employed, state Employer: Address: Hoss's Steak & Sea House York & Market Streets York. PA 17402 Salary or wages per month: S880.00 Type of work: Cook If you are presently unemployed, state Date of last employment: _____~LA Salary or wages per month: Type of work: ______ (c) Other income within the past twelve months Business or profession: PIT at Ross stores. Inc. January throuQh M~chL-1995 $440.00/month Other self-employment: N/A Interest: N/ A Dividends: N/A Pension and annuities: N/A Social Security benefits: N/A Support payments: N/A Disability payments: N/A Unemployment compensation and supplemental benefits: N/A Workman's compensation: N/A Public Assistance: Food stamQs ~hrouQh March. 1995 Other: N/A (d) Other contributions to household support (Wife)(Husband) Name: N/A If your (husband) (wife) is employed, state Employer: Salary or wages per month: Type of work: Contributions from children: N/A (e) Property owned Cash: Checking Account: Savings Account: Certificates of Deposit: Real Estate (including home): Motor vehicle: Make ___Buick Year 1983 Amount owed SO.OO Stocks; bonds: Other: __ (f) Debts and obligations Mortgage: N/A Rent: ~OO.OO/month Loans: ______ N/A Monthly Expenses: Groceries S300.00: Electric S102.00: Telephone S40.00;_~~-Ior cftr SI00.0~ Insurance for car S36. 0.9.-:..Jy._C~p_le_$34. OO_;_Mi SC. expenses S60. 00 (g) Persons dependent upon you for support (Wife) (Husband) Name: N/A Children, if any: Name: Joshu~L Sampson Age: 7 Yrs. 4. I understand that I have a continuing obligation to inform the court of improvement in my financial circumstances which would permit me to pay the costs incurred herein. 6. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: sr'~ J) I (94 S- ( , ~"- Sampson, aintiff , .-- ..... ,- r.....' ,,, , =:... ~> '-Cl U1 ~:. - ''';{.-.". --to';. ",........ 8IIMCI8.1NC. -' ';(i).. . . .... .'2'"'' <1.',.",,", ", 'II\\IIHI fIIJW'.. ',',. ........" . ..' , ......".VN.'i"".h~ ~ti"~~-'''i "71" ut.aMA:;:~:;t:.;..,;{;jtt- . ,\l~~,,~i-.P1_ ~.,.r,","'oi''\:-,'r~~'11!..~ [' "'i't~17l7l'" J . .,c;l'W. 'I.' "'-~.\";."".~..."-~I,~""-,;"".".,, ,.. " "".1;,_ . "~T' ..,...- "'" . .. , "'''V 71 ,...." . '1'i:~:..tC;" .1Iim7i~.;. ~:?!{;~~.~::.\.:..: 'i'~\,:'.~r {!: :/~~~I~f ':1: ~~-:~'k~!<.r"~ - v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NELSON B. MINICH, Defendant NO. 96- .,'7;1 F<l....'.i" AFFIDAVIT OF CONTACT WITH LANDLORD I, Jane Muller-Peterson, do hereby affirm that on July 11, 1996, I contacted the defendant, Nelson Minich, to inform him that unless he allowed the plaintiff back into the rental premises, I would be present in the Court of Common Pleas of Cumberland County, Pennsylvania, at 1:00 on July 12, 1995, to request a preliminary injunction to stop the self-help eviction measures described in my client's petition. I further gave him the opportunity, if that time was inconvenient, to tell me when a more convenient time would be. The defendant who is an excavating contractor doing business as MINICH NL & SONS, stated he would be working on D Street in Carlisle tOday and did not propose a more convenient time. --.eM_u' 1'/1A.(lV".f _ U;.t'.cX . JarUl1uller-Peterson - - Attorney for Plaintiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made SUbject to the penalties of 18 Pa.C.S., Section 4904, relating to unsworn falsification to authorities. ~. D. I z. -L!I!Lb' Dat () , C;;;,.,"- )h"~c.&-21v'\'~c.a..~ Ja Muller-Peterson ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF ~ v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM NELSON L. MINICH, Defendant PETITION FOR CONTEMPT , ,. ,- -- The plaintiff, Robert Sampson, by and through his attorney, (.n Jane Muller-Peterson, of Legal Services, Inc., states the ~, ". following: <0 1. On July 12, 1995, the Court granted the plaintiff~ preliminary injunction requiring that the defendant landlord immediately move the plaintiff's property back into the rental premises and enjoining him from depriving the plaintiff of access to the premises. 2. The defendant has wilfully and intentionally violated the Order in that: a. On July 13, 1996, he refused to leave a key to the premises with his lawyer and he further refused to inform plaintiff or his counsel when or where a key could be obtained. b. He did not return plaintiff's property to the residence, but rather, left it outside under a carport. c. He was not available or did not answer the phone when the plaintiff called him on Saturday and Sunday. WHEREFORE, the plaintiff asks that the defendant be held in contempt and that this court take whatever measures it deems necessary to enforce its order,including imposing a fine and/or a . ~~ ./~ ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-371J EQUITY TERM NELSON B. MINICH, Defendant PRAECIPE Please change the Defendant's name in the caption in all pleadings filed in this matter from Nelson B. Minich to Nelson L. Minich. ~nl."eL-\..-c?~ Ja Muller-Peterson Attorney for Plaintiff LEGAL SERVICES, INC. a Irvine Row Carlisle, Pa 17013 (717) 243-9400 . . ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM . . v. . . NELSON B. MINICH, Defendant . . CERTIFICATE OF SERVICE I, Philip C. Briganti, hereby certify that a copy of the foregoing praecipe is this a2t~day of July, 1995, being served upon Wayne F. Shade, Attorney at Law, 53 W. Pomfret street, Carlisle, Pennsylvania, 17013, by regular mail, postage prepaid. /' l Philip C. Briganti Attorney-at-Law LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 . . .' ~ ~ ,......, c. - ~ ., ~ ......~ ~ ~ ~ - (@ r..,,( OH ~ ~~ ~~~ ~P<~ 8 '~ r..~~ O~OI o III ~Iu::: o I' U M ~ ~ z~o HUZ ::c' ..... :J' 0::> -:r ~.. ::i,.,: ...., ~-" ; "_I u~".'J" i~O'--'''\ ..- : .~., ~ ~-.' /;;~ . olj ~'l i[..1. ,I"Z .' ..: ._::;r ,.- '-' ~t,; In ....., .-. => -, 'H ''H z..... OolJ lilt:: ~~ lIlP< ~ g , tIlolJ ~~ Z't1 Ht:: :E:GI 'H > ..18 Z o III ~ . ~ r..tl ZH ~~ :E::;j! ~~ ~e!. ffi~ r.. III Q . ,,/~1 ,':' .r .,~ ,,;.-."':-',. ;. ") -1 J'). / ~"... .> . " ~Q; - ' ... ~ .. t=" 1 4 F '" III ~ ~ i ~ i I ro: i :I ~ ~ ~ i ~ lri ; u -. . .. ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NELSON L. MINICH, Defendant NO. 95-3713 EQUITY TERM ORDER OF COURT AND NOW, this day of , 1995, in accordance with the Motion of Defendant for Post-Trial Relief, the Court hereby directs that the entire record in the above- captioned matter be transcribed. By the Court, Edgar B. Bayley, J. Jane Muller-Peterson, Esquire Attorney for plaintiff Wayne F. Shade, Esquire Attorney for Defendant W^Yllll F. SII^llI: ^"onq' al LAw S3WcIII'..,lUfrttSlrcd Carli_It. l'mnI,lvani.a nUll 1 t't:l t q~ IJJo {WJ-l-- '\v-~ ~ CMN- ~ /~\I.&,Q -to CA. \V\)lJV"C.~ j ...~~ J \.NO t.-~ AAi' I \ ~ ~~ LA-- \\ v'.~I,' pc- (U vi (!..w, f Z 2./1. I ~\~,~~ {\iN1' }lu..~ ..~ ~ ,~ "---711/ cAA// . j ,. "~.'~~_."":--- ..~. :.o._~_~' - .- ~.... .. . " .' t!' ,~; . ','. :, :n, ~ ) ,:1 . 56, :1': E? 01 nz lnr . , " ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NELSON L. MINICH, Defendant NO. 95-3713 EQUITY TERM DEFENDANT'S MOTION FOR POST-TRIAL RELIEF AND NOW, comes Defendant NELSON L. MINICH, by his attorney, Wayne F. Shade, Esquire, and files the following Motion for Post- Trial Relief: By pressing claims for damages in the above-captioned matter in addition to the requested injunctive relief, Plaintiff necessitates Defendant's protecting the record by filing the following Motion for Post-Trial Relief. L It was error to prohibit Defendant from excluding Plaintiff from the property in which he had not resided for more than three months where there was no contractual relationship between the parties. 2. It was error to prohibit Defendant from excluding Plaintiff from the property in which he had not resided for more than three months where any contractual rel~tionship which did exist between the parties was based upon an admitted lie on the part of Plaintiff who was imprisoned for theft. WHEREFORE, Defendant respectfully requests that your Honorable Court find an absence of a contractual relationship WAYNE F. SHAIII! Abomty at taw 5] Weal luurl'1'l Slml l'JI,li.lr. 1'mn1)'lvlnUi 1701J ,.,.",~,",,,,,.....,.~. . ~.-.I'. - ..~ between the parties and dissolve the Preliminary Injunction of July 17, 1995. Respectfully submitted, tZ{:ff./ ~ Wayn F. Shade, Esquire Attorney for Defendant W^YN~ F. SIMIlI! AUomry .1 taw 53 Wi'll Pomrm Slml Callislt. l'nuu)'lvanil 17013 WAYNI! F. SHAIlI! Atlonq' at taw ')WC'ItI'lIlnrrnStrttt l'.di.~. 1'mn.)'lvanil l1u1) , " ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NELSON L. MINICH, Defendant NO. 95-3713 EQUITY TERM CERTIFICATE OF SERVICE I, Wayne F. Shade, Esquire, do hereby certify that I have this date served one copy of Defendant's Motion for Post-Trial Relief in the above-captioned matter upon Plaintiff herein by first class United States mail, postage prepaid, to his counsel of record, Jane Muller-Peterson, Esquire, Legal Services, Inc., 8 Irvine RoW, carlisle, Pennsylvania 17013. Date: July 25, 1995 c::a E~ Wayn~shade Attorney for Defendant ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM NELSON L. MINICH, 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 Amended Complaint is 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, 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE NUMBER: (717) 240-6200 --~ ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM v. NELSON L. MINICH, Defendant AMENDED COMPLAINT The plaintiff, Robert Sampson, by and through his attorney, Jane Muller-Peterson, of Legal SerYices, Inc., states the following: 1. The plaintiff is Robert Sampson, an adult who liyes at 1408 Trindle Road, Carlisle, PA 17013. 2. The defendant is Nelson L. Minich. 3. The defendant is the owner of real property located at 1408 Trindle Road. 4. In January of 1995, the parties entered into an oral lease for the rental of the premises located at 1408 Trindle Road. The defendant agreed to accept the plaintiff as a tenant if he paid the $300.00 monthly rate and a past due amount from the tenant he was replacing in the amount of $50.00, which he did. 5. The plaintiff joined Lenny Hartman, a tenant already there when he moved in, and the two men resided in the rental premises with the plaintiff's seven-year-old child. 6. On or about April 1995, the plaintiff told the landlord he would be away for several months and arranged to have his ex- wife move in to care for his seven-year-old son and to take over his tenancy temporarily. 7. The plaintiff's former wife and the plaintiff's roommate remained current in rent until June, when they failed to pay $30.00 of the June rent payment. B. On July 3, 1995, the defendant orally notified the plaintiff's mother and the plaintiff's former wife that the apartment had to be vacated on July 16, 1996. 9. On that same date, he further told them that if he did not receive rent for half of July and the $30.00 owing from June, a total of $180.00, he would put the plaintiff's belongings outside. 10. On or about July 8, 1995, the defendant removed from the residence the majority of the plaintiff's belongings and placed them outside. In addition, the locks to the residence were changed, thereby preventing the plaintiff, his minor child, his roommate or his former wife, from entering the residence. 11. On July 10, 1995, the plaintiff returned to the residence and saw his possessions outside. He contacted the landlord, and learned that the rent payment was late. 12. He informed the landlord that he wished to stay. 13. The plaintiff was able to pay the defendant the overdue rent. 14. The defendant informed the plaintiff he could not stay and that he would have to remove the rest of his belongings, which included appliances, by July 16, 1995. He further informed him that another tenant had been promised the residence. 16. On July 11, 1996, the plaintiff informed the defendant through his counsel, that he intended to go into court to obtain injunctive relief on the next day if he was not allowed into the residence. 16. On July 12, 1996, the court granted the plaintiff a preliminary injunction requiring that the defendant landlord immediately move the plaintiff's property back into the rental premises and enjoining him from depriving the plaintiff of access to the premises. 17. On July 13, 1995, the plaintiff delivered to the defendant a check in the amount of the overdue rent, $330.00, the entire sum due. lB. On July 13, 1995, after having been served with the Court Order of July 12, 1996 the defendant refused to leave a key to the premises with his lawyer and he further refused to inform the plaintiff or his counsel as to when or where a key could be obtained. 19. Despite the Court Order of July 12, 1996, the defendant refused to return the plaintiff's property to the residence, but rather, left it outside under a carport. 20. The defendant was not available or did not answer the phone when the plaintiff called him. 21. After entry of a Court Order on July 17, 1995, the defendant returned the plaintiff's property to the residence, and provided him and his son access to the residence. 22. Because of the lockout, the plaintiff missed three days of work. 23. Because of the lockout. the plaintiff had to commute to Dillsburg to sleep on the floor. 24. During the days the plaintiff's property was outside, the following items were stolen: a. new telephone with answering machine b. train telephone bought for his son c. chandelier wedding gift d. 100 piece socket set Count On~ Self-Hel~viction 25. The allegations of paragraphs one through 24 of this Complaint are incorporated herein by reference. 26. The defendant's actions constitute a trespass and self- help eviction, in violation of Pennsylvania law and pUblic policy embodied in, inter alia, the Landlord and Tenant Act of 1951, 68 P.S. Section 250.101 et sea. 27. The defendant's actions were intentional, wilfull, wanton, reckless, evil, and outrageous and perpetrated with a total disregard for the laws of this Commonwealth and the original Order of this Court, thus entitling the plaintiff to an award of punitive damages. WHEREFORE, the plaintiff prays that the court: a) declare that the defendant's actions were illegal and constituted a self-help eviction, in violation of state law; b) restore possessi.'n of the premises to the plaintiff; $165.00 80.00 $300.00 99.00 c) permanently enjoin the defendant from attempting to evict the plaintiff by any means other then those prescribed in the Landlord and Tenant Act of 1951, 6B P.S. Section 250.101 et seQ., and the Rules of Civil Procedure for District Justices, and from interfering with the plaintiff's peaceable enjoyment of the premises; d) award the plaintiff damages for the injuries he suffered as a result of the defendant's illegal actions, including but not limited to: $664.00 for stolen property, $136.00 for 3 days of missed work, $25.00 for commuting to Dillsburg and back, and $1,500 for humiliation, anguish and personal distress; e) award the plaintiff $1,500.00 for the defendant's breach of the covenant of quiet enjoyment. f) award the plaintiff punitive damages; g) order the defendant to pay the costs of this action; h) order the defendant to pay the plaintiff's attorney's fees; and j) grant such other relief as may be just. Count Two Violation of Consumer Protection Law 28. The allegations of paragraphs one through twenty seven are incorporated herein by reference. 29. The transaction between the parties involved "trade" and "commerce," as those terms are used in the Consumer Protection Law, 73 P.S. Section 201-2(3). 30. The defendant's actions constitute unfair or deceptive acts or practices as defined by 73 P.S. Section 201 and 37 Pa. 'i... Code Section 303.3. WHEREFORE, the plaintiff prays that the court: a) award him all the damages prayed for in Count One of this Complaint; b) award him, under 73 P.S. Section 201-9.2, triple the amount of the damages he has suffered; c) order the defendant to pay the costs of this action; d) grant such other relief as may be just. Count Three Intentional Infliction of Emotional Distress 31. The allegations of paragraphs one through thirty are incorporated herein by reference. 32. The defendant intended to and did inflict emotional distress upon the plaintiff. WHEREFORE, the plaintiff prays that the Court enter a jUdgment for both actual and punitive damages against the defendant and grant such other relief as this Court may deem reasonable and just. Respectfully Submitted, OJ..,,~~-v:2e€~~ ~ler-peterson Attorney for Plaintiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, Pa 17013 (717) 243-9400 The above-named Plaintiff, Robert Sampson, verifies that the statements made in the above Amended Complaint are true and correct. Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C.S. 64904, relating to unsworn falsification to authorities. Date: 7-~'6-9) ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM NELSON L. MINICH, Defendant CERTIFICATE OF SERVICE I, Philip C. Briganti, hereby certify that a copy of the foregoing Amended Complaint is this ~~ day of August, 1995, being served upon Wayne F. Shade, Attorney at Law, 53 W. Pomfret Street, Carlisle, Pennsylvania, 17013, by regular mail, postage prepaid. Phil i C. Bri nti Attorney-at-Law LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 t~-.". '., -. " c, ~ - .:;:. :::.~ .' l:A .. >-.. ::i>- :c ....;r. a.. ~(...,~I~ b:z:OZ en ~O(.)... .... u..'XO:' C) J- ;r _J ("W') .~. or()- I..:JPX.-J'" t.... '-u:.;r. ::!....WZ ~ ... rU'tUJ .__ -..::z:a.. 8 ...:> _ 0" r....c 0101 3~ ~ .... il~ IZi ~ j j ~ !E! Hill 8 .~a . ~~ : ~ ~ j ~i~1 "" 5~ p<5 ."" ~ ! ~ ~ lZi.o-! H~ !.'I~ ~u,..,Q 5l~ 1Zi] ~@l ~ < ~ ~ ~~ !E!1Il ol~~ "" . ..i2l ~ u ~E 1IlP< > u ~~~>< ~ ~ III Q IZi 0 @l ". ; " . " v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM ROBERT SAMPSON, Plaintiff NELSON L. MINICH, Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS Defendant NELSON L. MINICH, by his attorney, Wayne F. Shade, Esquire, appears and files his Preliminary Objections to Plaintiff's Complaint pursuant to Pa.R.C.P. 1028, as follows: DEMURRER 1. The complaint fails to plead a claim upon which relief can be granted in that Plaintiff avers in Paragraph 6 of the Complaint that he was not actually a tenant of Defendant after April of 1995 but that his ex-wife had taken over his tenancy temporarily. 2. The Complaint fails to plead a claim upon which relief can be granted in Count Three as to alleged intentional infliction of emotional distress in that there are no averments which would establish the conduct of Defendant as being so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. WAnm F. SHADP. A_"1n< l3W",_",_ CItlitIt.I'alaI)'Iv.... 17013 3. The Complaint fails to plead a claim upon which relief can be granted in Count Three as to alleged intentional infliction of emotional distress in that it fails to aver physical manifestations of the alleged emotional injury. NONJOINDER OF NECESSARY PARTIES 4. Paragraphs 5 and 7 of the Complaint aver that Plaintiff's ex-wife and Lenny Hartman were the tenants of the subject property after April of 1995, but they have not been made parties to this action. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiff. Date: August 21, 1995 w~r21. ~~qUire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Defendant WAYN1! F. SHADB Aaomcy It Llw S] West PomI'rd Strtct C'uIiole.......,".... 17013 ROBERT SAMPSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-3713 EQUITY TERM v. . . NELSON L. MINICH, Defendant . . EQUITY IN RE: TRANSCRIPT OF PROCEEDINGS TESTIMONY OF ROBERT LEE SAMPSON Proceedings held before the HONORABLE EDGAR B. BAYLEY, J., Cumberland County Courthouse, CarliSle, Pennsylvania, in Courtroom Number Two, on July 17, 1995. APPEARANCES: WAYNE F. SHADE, ESQUIRE For the Plaintiff JANE MULLER-PETERSON, ESQUIRE For the Defendant " 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 July 17, 1995, 9:48 a.m. Carlisle, Pennsylvania (Whereupon, the fOllowing proceedings were held.) THE COURT: What's the dispute here in this civil case? MR. SHADE: It's a landlord/tenant issue, Your Honor. THE COURT: It's a preliminary injunction? MR. SHADE: Yes, sir. THE COURT: What's the dispute? MR. SHADE: Well, our primary contention is that there is no lease between the parties to this case. THE COURT: Between? MR. SHADE: Between the Plaintiff and Defendant. THE COURT: MR. SHADE: THE COURT: Sampson and Minich? Right. Therefore Minich isn't entitled to relief. MR. SHADE: Actually, Minich is the Defendant. THE COURT: MR. SHADE: sampson is entitled to no relief. Correct. That's the preliminary 2 1 injunction from our perspective. 2 THE COURT: What's the issue from your 3 perspective? 4 MS. PETERSON: We think the landlord/tenant 5 eviction/ejectment is illegal and that they are proceeding 6 with self-help eviction which is, in our opinion, illegal. 7 So we can prove he does have a lease. S THE COURT: If there is a landlord/tenant 9 relationship, if there -- or if there is a legal 10 relationship, then that would require proceedings under the 11 Landlord/Tenant Act, then he obviously has to comply with 12 the terms of that. 13 MR. SHADE: Yes, Your Honor. 14 THE COURT: I understand. You may proceed. 15 MS. PETERSON: I call my client, Robert 16 Sampson to the stand first. 17 Whereupon, 18 ROBERT LEE SAMPSON, 19 having been duly sworn, testified as follows: 20 DIRECT EXAMINATION 21 BY MS. PETERSON: 22 Q Please state your name. 23 A I'm Robert Lee Sampson. 24 Q And what is your address? 25 A (NO AUDIBLE RESPONSE) 3 1 2 3 4 5 6 7 parole because of the probation at home. 8 THE COURT: You will have to speak a little 9 slower. 10 THE WITNESS: Well, when I got out of prison, 11 they left me out early on parole to take care of the 12 problems that I had at home. When I received on the 13 property, all of my stuff was sitting out under the carport. 14 BY MS. PETERSON: 15 Q I am going to back up and have you tell the 16 Court how you came to live there. How did it happen that 17 you came to live at that residence? 18 A David Detweiler, who lived there before me, 19 took me to Mr. Minich's, and I told him I was going to move 20 in, which I gave him cash $300.00 rent and $50.00 that the 21 old tenant owed him. 22 Q What was the $50.00 for again? 23 A For the other people's rent that he didn't 24 pay before. 25 Q For a tennant's arrearage? Q What is your address? A 1408 Trindle Road, Carlisle. Q Are you currently residing there? A No. Q And why are you not residing there? A When I got out of prison, they left me out on 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right. Q And when you paid that he said you could move in? A He gave me a receipt for it. Q And what month was that? A January. THE COURT: Of what year? THE WITNESS: '95. BY MS. PETERSON: Q When was the last time you paid rent? A March. Q Did you pay rent in February? A February. Every month I gave him cash. Q So which months were those that you gave him cash? A January, February, March and April. Q And then what happened in April? A Well, before April I went and told him that I was going to a computer school. Q And was that true? A No, that was a lie. Q And did you tell him how long you would be at that computer school? A I said about five months. Q And did you make arrangements to preserve 5 1 your tenancy while you were gone? 2 A I had my son's mother to take care of him. How old is your son? - . 3 Q Seven years. And did your landlord consent to the son's 6 mother living in your apartment while you were away? 4 5 A Yes. Q And what was the arrangement about rent while Q 7 A 9 she took over your tenancy? 10 14 15 16 8 17 Q A moved in. Q A Q A Q A The arrangements we had for rent was that A He was there when you moved in? Yes. Did you know him before you moved in? No. Did he ever pay rent? Well, he paid $60.00 a week to me. I took 21 care of everything else. The groceries, the electric and Q And so while you were in prison, you say that your -- the mother of your son and Lenny Hartman were to pay the rent? 18 19 20 22 the rent. 23 24 25 6 I l r , , \ I ~ \ I 1 A Lenny was to take care of Mr. Minich and the 2 rent, and my wife was to take care of groceries and all of 3 the other bills. 4 Q And did that happen? 5 A I guess not, the way it looks. 6 Q Did they pay any of the rent to -- did they 7 pay in May, to your knowledge? 8 A Yes, they did. 9 Q And did they pay in June? 10 A Yeah, they paid June. Think didn't pay July. 11 They owed $30.00 in June. 12 Q Okay. And after you were released from 13 prison -- what was that date when you were released? 14 A That was last Monday on the 10th. 15 Q And what happened on that date? 16 A When, well -- I went over to the house and it 17 was locked, and my stuff was setting outside. So I went to 18 Mr. Minich's house. He was not there but I talked to his 19 wife about letting me back in, just me and my son. She 20 said, You would have to talk to my husband. So I called him 21 on the phone Monday night, and he decided I wasn't getting 22 back in. 23 Q Did you try to render through him the $30.00 24 from June and the $300.00 from July at any time? 25 A Yes, I told him I could pay that. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And did you ever pay him for that? A Yes, I paid him with a check. Q And what did he do with that check? A He run the check back for me today on the desk. Q And on what day did you pay him that money? A I paid him on Thursday at his place of business. Q And today he paid it back to you? A He gave it back today. Q Mr. Sampson, are you employed? A Yes, I work for Hoss's in York. Hoss's Sea and Steak House. Q And about what are your earnings? A About 220 a week. Q Do you work full-time? A Yes, 40 hours, 48 hours. Q Do you have any charges pending against you? A No, I don't. Q Do you intend, if you were allowed to stay, would you be able to pay the rent and continue residing there? A Yes, I would. Q Would Lenny Hartman continue residing there? A No. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A mother-in-law. Q places? A Q A Q A Q weather? Where are you sleeping now? Well, I'll stay with my mother or my And do you have a bed at either of those No. And where are your household furnishings? At the old house on 1408 Trindle Road. Where at the home are they? Outside underneath the carport. And are they fully protected from the A They have plastic but the one end is open, and I don't know if the rain blew in or not. MS. PETERSON: I have no further questions of my client. THE COURT: Cross. CROSS-EXAMINATION BY MR. SHADE: Q Do you agree, sir, that whenever you entered into any agreement that you entered into with Mr. Sampson that it was an oral lease based on month-to-month, don't you? A It was nothing ever said to me. He just took the rent, but I didn't sign a lease. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q It was month-to-month? A Yes. Q Every month you paid the rent? A Yes. Q There was no agreement you could stay beyond one month, was there? . . A No. Q Isn't it true that at the end of June you called Mr. Minich from prison? A Yes. Q And you called collect? A Yes. Q And he accepted the charges, didn't he? A Yes, he did. Q And isn't it true that you told him that you wanted him to get this man Hartman out of the property? A Yes, I did. Q And you told him that Hartman was stealing some of your belongings, didn't you? A No, I didn't say Hartman was stealing anything. I said he left Detweiler help himself. He used to be a tenant. Q Didn't you tell Mr. Minich that Hartman was an alcoholic? A I said that. I couldn't really say, but he 10 ,-,.""...~c 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was drinking. By my wife and mother-in-law, they said he was drinking every day. Q And urinating on the carpet? A Yes. Q And wetting his bed? A Yes. Q And you told Mr. Minich that you wanted Mr. Minich to change the locks to get this Mr. Hartman out of there, didn't you? A Yes, I did. Q And also in that same telephone conversation you asked Mr. Minich to wait for the rent until you were scheduled to get out of prison in August? A Yes, I did. Q You told him that you were not scheduled to be released until around August 8th of 1995. A That's true. Q But now you say you were released on early parole to take care of your family's situation? A Yes. Q Now, you were in prison for theft, weren't you? A Yes. Q And you say you were released from prison July 10? 11 1 A Yes. 2 Q And you are aware that the unit which you had 3 been renting before you went to prison was one unit in a 4 four-unit frame building, weren't you? 5 A Yes. 6 Q Do you know where Hartman is today? 7 A No, I don't. 8 MR. SHADE: May I have a moment, Your Honor? 9 THE COURT: (INDICATED POSITIVELY) 10 MR. SHADE: Nothing further, Your Honor. 11 THE COURT: Thank you. Anything further? 12 MS. PETERSON: Nothing further. 13 THE COURT: You may step down, sir. Anything 14 further? 15 MS. PETERSON: No. 16 MR. SHADE: I know Your Honor is not crazy 17 about demurs or the theory in this defense, and it's 18 admitted any continuing relationship he had with this 19 gentleman when he went into jail was based on an admitted 20 lie, which was a fraud and that -- 21 THE COURT: Well, he just didn't want him to 22 know he was in jail. He told him he was in computer school. 23 MR. SHADE: Well, the point was he would 24 never have let anything -- he will testify if it is 25 necessary that if he had known this man was going to jail 12 1 instead of going to computer school, and it's our contention 2 that no contact and certainly no equitable relief can be 3 based on an admitted fraud. That's our basic legal defense. 4 If Your Honor wants to hear the factual defense, I believe 5 it's compelling as well but that's our legal defense. 6 THE COURT: Except that he did -- he did take 7 the rent from these people. He's always gotten his rent and 8 he actually got the rent from this guy and $30.00 owed from 9 another tenant, and $300.00 -- 10 MR. SHADE: If Hartman were Plaintiff, we'd 11 have a different problem; but Hartman is not here today, and 12 he is not in this case. 13 THE COURT: The other thing is if Sampson, 14 whatever he was in for, he paid his debt. If he is 15 entitled, under the circumstances, to remain, he can always 16 evict him. 17 MR. SHADE: Exactly. And we've already given 18 him notice of that. But again, it's just our theory that we 19 should not be held to any further contractural relationships 20 with this man which would be based on his admitted lie and 21 fraud. 22 THE COURT: okay. What's your position? 23 MS. PETERSON: Well, it's our position that 24 the contractural -- the fraud perpetrated had nothing to do 25 with the contractural relationship which was set up by the ,13 1 exchange of rent in exchange of staying at the premises. 2 THE COURT: Except that the lie resulted in J the land owner agreeing to the interim arrangement. So it 4 did have some effect. 5 MS. PETERSON: Regardless of whether he 6 agreed to the interim arrangement, he is still residing in 7 violation of the Landlord/Tenant Act. These people have 8 some kind of tenancy together. His son stayed in the place 9 this whole time. All of these people were in there to care 10 for his son, and the landlord -- 11 THE COURT: Okay. 12 MS. PETERSON: still has to evict him 13 legally. 14 THE COURT: I am going to think about it. I 15 will have an order down by the end of the day. 16 MR. SHADE: Your Honor, we would offer 17 testimony in defense. If the demur would not be sustained, 18 we would have -- I'm concerned that there 19 THE COURT: Well, factually there is no 20 dispute. And I am assuming that the man wouldn't have gone 21 along with this if he knew the true circumstances. The 22 facts are not in dispute. 23 MR. SHADE: That's fine. 24 THE COURT: It's the legal indication is vis 25 a vis legal tenants. 14 1 MR. SHADE: Yes, sir. 2 THE COURT: I understand the factual 3 situation. I will have an order down by the end of the day. 4 Adjourned. 5 (Whereupon, Court was adjourned 6 at 10:08 a.m) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 CERTIFICATE I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of the same. ~ ~ f\\..- M O-.t_ K. Troutman Court Reporter * * * The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. .. ~ 1.8. fer" ,.....- Date ,....... // vj. /- Edgar B. Bayl~, J. J 16 ,,~n'!,.1J. S 'I ~t ~l! Alk',,;:;'II1,';;'.;).}totil') A'ItJ.CHOIIJ .,.;) ""'.;0 JJ'J.JC-: r, I 56. Hd ES E OZ nnv .!,,;-/;,r;~;, ~~;'" ',' ';" ,.;'~ rr~ ~i\\'.:,~?~':_; ~rAf';~~'" t"U,~ .';':l'"" ""l~'tf:i' ':> ~;"':. . <~~~.""'~, ':!\:'c':t.'lY..~'\."":/{~-::~~: '~88IVICI8i'1fC:~1;,!t;.~ _~.ci""", ....._....... "'i~"i }~j:',,, ~,;''''i+r:t-j".,~~......:tI.,_>,:i~/f:,,~~:,~1;. . . ",--"",~'~J\~\"~ Sll.r"!.'il'M.7I24I11W' :"i~h,.:.q\t,\. -/1/.,1. "':>',;:f:f',~~. -- '; ,'-, -,:::.,!t4;(l;it'.~ ' .M"~17I""-, "",;, "-,'ii-?}tA~;tr: -- J'~:,;f,~::l;:_ ,u~'.,r ,,, ~~171111l1N4'."';', <,IJ,~mvl3ll.-),' -'~~~lJ~~:h~t}~t~~::~:l,~~~J;.;; ^"~_~,;)\~~;:t~'.:~'!~\: ... ,- - . .. ~ " ....... ~ ~ ::'-~ ..._---"~ .- ,'; ~ -..~. -.- ROBERT SAMPSON and LINDA SAMPSON, IN THE COURT OF COMMON PLEAS OF Plaintiffs v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3713 EQUITY TERM NELSON L. MINICH, Defendant PLAINTIFF'S BRIEF IN OPPOSITION TO PRELIMINARY OBJECTIONS COUNTERSTATEMENT OF FACTS In January of 1995, Robert Sampson entered into an oral month-to-month lease with Nelson Minich. He paid rent in January, February, March and April of 1995. (Tr. 5). Sometime before April Mr. Sampson told Mr. Minich that he would be away for a period of five months. (Tr. 5). At that time, he made arrangements to preserve his tenancy for the period of his absence. (Tr. 5-6). Mr Minich consented to his seven-year-old son's remaining in the residence during the period of his absence and his wife coming in to care for the couple's son and live in the residence. (Tr. 6). When Mr. sampson moved into the residence, a tenant named Lenny Hartman, whom Mr. Sampson did not know before, was already there. (Tr. 6). Mr. Sampson and Mr. Hartman entered into an arrangement for payment of household expenses whereby Lenny Hartman paid $60.00 weekly to Robert Sampson, who then paid the rent, groceries, electric bill, and everything else. (Tr. 6). The actual reason for Robert Sampson's absence was a prison sentence, not training at a computer school. (Tr. 5). During the period of Robert Sampson's absence, the agreement entered into by Mr. sampson, his wife and Lenny Hartman was that Lenny Hartman would pay $300.00 per month directly to Mr. Minich and that his wife would pay everything else directly. (Tr. 6). In June, the rent paid to Mr. Minich was $30.00 less than the total rent due. (Tr. 7). sometime in June, Robert Sampson called Mr. Minich to discuss paying the overdue rent in August when he would be released and to request that Mr. Minich evict Lenny Hartman, who had been drinking to excess. (Tr. 10,11). By Monday July 10, when Mr. Sampson was released from prison, Mr. Minich had locked his residence and placed all of his possessions outside. (Tr. 7). I upon his release from prison, Mr. Sampson offered to Mr. Minich the entire amount of the rent due, (Tr. 7-8), and requested that he and his son be allowed back into the residence. (Tr. 7). Mr. Minich refused, and Mr. sampson commenced this action against him. I The facts provided by Minich state, citing to the transcript at page 7, that Minich locked the residence and placed Mr. Sampson's property outside upon learning that sampson was in prison and would not be released for a month. There is nothing on page 7 indicating this is why Mr. Minich took these actions. It is the client's position that he took these actions upon learning of the apartment's condition. The defendant's statement of reason is inconsistent with locking out a tenant unrelated to Mr. sampson whose tenancy preceded his. 2 I. THE SECOND AMENDED COMPLAINT PLEADS A CLAIM UPON WHICH RELIEF CAN BE GRANTED AS TO PLAINTIFF ROBERT SAMPSON, AND PARAGRAPH 6 OF THE AMENDED COMPLAINT IS IN NO WAY INCONSISTENT WITH PARAGRAPH 6 OF THE SECOND AMENDED COMPLAINT The defendant claims that paragraph 6 of Plaintiff's Second Amended Complaint is inconsistent with paragraph 6 of Plaintiff's First Amended Complaint, which in his view failed to state a claim upon which relief could be granted. The defendant cannot rely upon a statement in the prior complaint to find that the current complaint fails to state a claim upon which relief can be granted. If there is any inconsistency, that is a matter to be considered in determining the credibility of the statement in the Second Amended Complaint and is a factual question not appropriately resolved in Preliminary Objections. The Second Amended Complaint standing alone states a claim upon which relief can be granted, and that should be sufficient to decide this objection in favor of the plaintiffs. The Supreme Court of Pennsylvania has held that the rule authorizing the filing of preliminary objections to a complaint never intended that testimony or anything outside of the complaint is to be considered in disposing of the questions of law raised by a demurrer to the complaint. International Union of ODeratinq Enqineers. Local No 66. AFL-CIO v. Linesville Construction ComDanv and utilitv Constructors. Inc. Pa, 322 A.2d 353 (1974). Even if the court were to accept the defendant's approach, for which he cites no authority, and consider an earlier pleading 3 in deciding whether the current complaint states a claim upon which relief can be granted, the defendant's objection fails. The two paragraphs are entirely consistent with each other, and are further consistent with the testimony taken at the preliminary injunction hearing. The First Amended Complaint in paragraph six states: "On or about April 1995, the plaintiff told the landlord he would be away for several months and arranged to have his ex- wife move in to care for his seven-year-old son and to take over his tenancy temporarily." The Second Amended Complaint states: "On or about April 1995, plaintiff Robert Sampson told the defendant landlord that he would be away for several months and obtained his agreement that his estranged wife Linda Sampson would move in to preserve his tenancy and to care for his seven- year-old son while he was away." It should be noted that the wording used in the Second Amended complaint followed the joining of an additional plaintiff, Plaintiff Robert Sampson's wife, and conveys her motivation in entering into the arrangement in addition to describing the arrangement. The brief testimony related to this issue was the following: Q And did you make arrangements to preserve your tenancy while you were gone? A I had my son's mother to take care of him. Q How old is your son? A Seven years 4 Q And did your landlord consent to the son's mother living in your apartment while you were away? A Yes In his initial description of the arrangement made between the parties, Plaintiff Robert Sampson in no way wished to convey, and did not state, that he had abandoned his tenancy. Rather, he wished to convey that the arrangement was one made so that his son could stay at home, that it was temporary, and that he would resume residency as the primary tenant upon his release from jail. Linda Sampson's motivation, which was shared by Robert Sampson, to preserve Robert Sampson's tenancy during his absence, was added to the complaint upon her joinder in the action. Other than that, the two versions of the arrangement made during Mr. Sampson's absence are simply different ways to convey the same factual situation. The situation could be characterized in two ways. First, Linda Sampson could be described as her husband's subtenant. Alternatively, she could be described as a third co-tenant. When tenants sublease rental premises with their landlords' consent, they do not relinquish their rights as tenants. The fact that the primary tenant and the tenant who moved in during his absence were husband and wife and that their child had continuous residence in the rental premises further weakens the defendant's argument that Plaintiff Robert Sampson abandoned his tenancy when he left temporarily. 5 The defendant's statement that thd parties agree that Rcbert Sampson was not a tenant after his lie about computer school is absolutely false. If Robert Sampson believed he was not a tenant, why would he have called his landlord requesting that Lenny Hartman be evicted? Why would he have tried to make arrangements to pay rent in August? Why would he have requested early release from prison and been granted early release to take care of his landlord/tenant problems? Why would he have tendered to the landlord the entire overdue rent immediately upon release from prison? The defendant appears to rely on a statement made by Judge Bayley, which he inaccurately paraphrases in his brief, (Defendant's Brief, p. 2), in concluding that Plaintiff Robert Sampson agrees his tenancy ended months before these proceedings began. That statement was: "Well factually there is no dispute. And I am assuming that the man wouldn't have gone along with this if he knew the true circumstances. The facts are not in dispute." (Tr. 14). This statement was made in response to defendant's attorney's offer to present testimony in defense. Judge Bayley did not make a finding of fact that the defendant wouldn't have gone along with this if he had known the true facts. Rather, he indicated that he would assume this in arriving at his decision, and that the other facts were not in dispute. Therefore, the testimony was not needed. His words, "I am assuming" make this interpretation of his intended meaning far 6 more reasonable than that expressed in the defendant's paraphrased version of this statement. In addition, there was no testimony at all on the question of whether the defendant would have gone along with this if he had known the true facts, and it is highly unlikely that Judge Bayley would make a factual finding prior to hearing the evidence on a relevant point. As there was no evidence on this issue, there was nothing for Plaintiff Robert sampson to deny and his failure to do so in no way establishes agreement on this issue. II. THE SECOND AMENDED COMPLAINT PLEADS SUFFICIENT ALLEGATIONS TO SUPPORT A CLAIM FOR INTENTIONAL INFLECTION OF EMOTIONAL DISTRESS The defendant contends first that the Second Amended Complaint fails to plead a claim for intentional infliction of emotional distress in that there are no averments which would establish the conduct of the defendant as being so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. "The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor." Kazatskv v. Kinq David Memorial Park, 515 Pat 183, 527 A.2d 988 (1987). In stating their claim for intentional infliction of emotional distress the plaintiffs incorporate all of the preceding averments in their complaint. Those averments include allegations that the defendant locked the plaintiffs and their 7 minor child out of their residence, (Paragraph 12), put their property outside the residence, (Paragraph 12) and even after ordered by the court to put the property back into the residence persisted in refusing to place the property inside or to allow the plaintiffs access to their residence. (Paragraph 21). Paragraph 29 provides: "The defendant's actions were intentional, wilfull, wanton, reckless, evil and outrageous and perpetrated with a total disregard for the laws of this Commonwealth and the original Order of this Court .. " Paragraph 34 states: The defendant intentionally did the wrongful acts enumerated above with a reckless disregard of the consequences and a mind regardless of social duty." These averments are sufficient to state a claim that the defendant's acts were intentional and outrageous. The defendant's attempt to liken this case to Lampus v. Lameus, Pa, ____ 660 A.2d 1308 (1995), fails. In that case the plaintiffs averments were insufficient to state a cause for intentional infliction of emotional distress. There was no averment in that case that the defendant's conduct was intentional or outrageous. The only averment related to the claim was a lengthy making reference to physical and emotional harm in addition to other harm. ~. at 1312 n.2 The defendant further notes that Second Amended Complaint fails to aver any physical manifestations of the emotional distress or the necessity of medical treatment. The plaintiffs 8 concede that in order to succeed on their claim for damages for emotional distress, they will have to offer evidence of physical manifestations of the emotional distress. They contend, however, that for purposes of pleading this cause of action, their statement in paragraph 35 that "[t]he defendant intended to and did inflict emotional distress upon the plaintiff " is sufficient to state a cause of action. III. LENNY HARTMAN IS NOT A NECESSARY PARTY TO THIS ACTION AS HIS CLAIMS ARE NOT SOLELY JOINT, BUT RATHER JOINT AND SEVERAL OR ONLY SEVERAL Pa.R.C.P. 2227 provides that "persons having 2DlY (emphasis added) a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants." The Rule applies only when the rights or liabilities of the parties are solely joint. Joinder is not required where the interest is joint and several, solely several, or separate. (7 Standard Pennsylvania Practice 2d, Joinder of parties 52227(a):1). The Pennsylvania supreme Court has provided guidelines to be applied in determining whether parties are indispensable. "The general rule is that a party in an equity action is indispensable when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. That is to say, his presence as a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without 9 impairing such rights. Mechanicsbura Area School District v. Kline, 494 Pa. 476, 431 A.2d 953, 956 (1981). The court set forth several factors to be considered in determining whether a party is indispensable. A determination involves the following considerations: (1) Do absent parties have a right or interest related to the claim? (2) If so, what is the nature of that claim or interest? (3) Is that right or interest essential to the merits of the issue? (4) Can justice be afforded without violating the due process rights of absent parties? Mechanicsbura Area School District, 431 A.2d at 956. In applying this test, the court must examine first whether Lenny Hartman has a right or interest related to the plaintiff's claims? Lenny Hartman has no interest in the plaintiffs' claims for damages. All damages requested are those incurred individually by the named plaintiffs. These include damages incurred for the harm to or theft of property in which Lenny Hartman had no interest, for costs incurred by Plaintiff Robert Sampson because he h~d to commute to Dillsburg and back and for Plaintiff Robert sampson's lost wages. In Malonev v. Rodaers, 184 Pat super. 342, 135 A.2d 88,(1957), the Superior Court held that tenants in common in real estate may enforce their claim to the extent of each of their interests without joinder of the 10 other tenants, provided the remaining tenants' rights are not prejudiced. Any damages claims Lenny Hartman might have are entirely unaffected by the named plaintiffs' claims for damages. The only interest Lenny Hartman might have related to the plaintiffs' claims is the right or interest in having the defendant's actions declared illegal, having possession of the premises restored to him, and having the defendant enjoined from attempting to evict him illegally. Next the court must look to see what the nature of Lenny Hartman's possible claim is. In other words, will any right or claim he might wish to assert be affected by an adjudication of this lawsuit? See Crv. Inc. v. Mill Service. Inc. 536 Pat 462, 640 A.3d 372 (1994). Are his rights so directly connected with and affected by litigation that he must be a party of record to protect his rights? See, Mechanicsburg Area School District at 483, 431 A.2d at 957. Because Lenny Hartman's tenancy preceded that of Robert Sampson and is based on different oral statements, the court's adjudication with regard to the legality of the eviction procedures as to the named plaintiffs will not affect Lenny Hartman's right to have the legality of the procedures as to him adjudicated in a separate proceeding. More specifically, if the court should determine, as the defendant requests, that the landlord tenant act does not apply to Plaintiff Robert Sampson because he did not truthfully state where he would be during his absence, this would not foreclose Lenny Hartman from 11 having the issue determined as to him because his tenancy preceded that of the plaintiffs and there is no averment in the pleadings or statement in the transcript indicating that plaintiff Robert Sampson made any requests as to Lenny Hartman's continued tenancy during his absence. That continued tenancy was a matter entirely independent of his own tenancy. Third, the court must determine whether Lenny Hartman's interest is essential to the merits of the issue presented here. Lenny Hartman's interests are in no way essential to the merits of the issue presented here. Whatever claim Lenny Hartman might assert has no bearing on whether the named plaintiffs prevail in this action. Although Lenny Hartman and the named plaintiffs separately dealt with the same landlord concerning the same property, their interests have nothing to do with each other. See DeCoatsworth v. Jones, 536 Pa 414, 639 A.2d 792, 797 (1994). In fact, in the matter of the joint tenancy, their interests are adverse. The events leading up to this action began when plaintiff Robert Sampson called the defendant to request that he evict Lenny Hartman because of his drinking and the resulting damage to the premises. The last consideration is whether justice can be afforded without violating the due process rights of absent parties. As the named plaintiffs' claims can be determined without prejudice to Lenny Hartman, and as his claims can be determined without involving the named plaintiffs, Lenny Hartman's due process 12 ~ rights have not been violated. It is important to note that courts in Pennsylvania have not required the joinder of tenants in common as indispensable parties when one tenant seeks relief. Tenants-in-common can each enforce a claim to the extent of their own interest without joining the other tenants. Malonev v. Rodaers, 184 Pat Super. 342, 135 A.2d 88, 92 (1957). itA tenant-in-common need not join his co-tenants where seeking only an aliquot portion of damages." Onorato V. Wissahickon Park. Incorcorated, 430 Pat 416, 244 A.2d 22, 25 (1968). In Rundle V. Dailev, 2 D. & C.4th 370 (1989), one of five siblings who were children of a decedent challenged a decedent's conveyance to his wife. The court held the remaining siblings were not indispensable parties. Even though all heirs had a right or interest in the real estate, the decree in the case would not jeopardize or prejudice their rights because each heir could present his own claim under the law. Rundle, 2 D. & C.4th at 372-373. In the present case, although Lenny Hartman, had an interest in the rental premises, he can protect his interest by bringing his own claim under the law. Robert and Linda Sampson are claiming only the portion of the damages which they personally incurred as a result of the defendant's illegal self-help eviction. Co-tenant Lenny Hartman has a separate right to claim any damages from the self-help eviction he may have incurred. By entering a decree in the underlying case, his right to seek 13 recovery for his portion of the damages due to the eviction will not be jeopardized or prejudiced. This is therefore a case in which justice can be afforded without violating the due process rights of absent parties. Finally, the defendant contends that "Rule 2227(a) is intended to protect persons such as Mr Minich in this case from being required to defend yet a second spurious action from the drunken joint tenant herein.. . " That is be no means the intent of the rule. When a defendant harms numerous people, he takes upon himself the risk that each of these people may sue him separately. This Rule of Court is not one intended to make things convenient for those whose acts harm several unrelated individuals. Therefore, for all of the reasons stated above, this court should determine that Lenny Hartman is not an indispensable party to the named plaintiffs' action. Respectfully submitted, 9Q:- ,Q Ja Muller-Peterson At rney for Plaintiffs LEGAL SERVICES, INC. a Irvine Row carlisle, Pa 17013 (717) 243-9400 14 . . ,. WAYNE F. SHADE @ NOV L L 1995 bI-- WE DD HEREBY CERTIFY THAT THE WITHIN 11 A TRUE AND CORRECT CoPY OF THE ORIGINAL FILED IN THIS ACTION. lr/_ Ai1ORHE'/ TO YOU ARE HEREBY NOTlFIED TO FILE A WRlnEN RESPONSE TO THE ENCLOSED WITHIN TWENTY (20\ DAYS FROIl SER'/lCE HEREOF OR A JUQGIlEMT YAy SE ENTERED AGAINST YOU, lr/ . AnORNE" "TLAW S3 WEST Po"'fllllT SUf,ET C""LIS\J!, PENN"LVANIA \1013 ATroftNEY ... . . i' " ..:....~-- .'-00; -- ~... - \ WAYIIB F. SHADE A.....,alLaw 53 Well PomIrd SInd c.rIiJlc.l'auu)olv.... 17013 ROBERT SAMPSON and LINDA SAMPSON, Plaintiffs :. IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-3713 EQUITY TERM NELSON L. MINICH, Defendant JURY TRIAL DEMANDED DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS STATEMENT OF FACTS The factual background of this case is set forth in the testimony of plaintiff Robert Sampson at an injunction hearing herein before Judge Bnyley on July 17, 1995. Unless otherwise specified herein, references to Sampson shall be to Plaintiff Robert Sampson. In January of 1995, Sampson entered into an oral month-to- month lease with Minich. (N.T. 4-5, 9-10) The lease continued through March. (N.T. 5) Prior to April, Sampson told Minich that he would not be living in the property for several months because he was going to computer school. (N.T. 5) He asked Minich to permit his roommate and others to remain in the property. (N.T. 5-6) Sampson admitted that he deliberately lied when he told Minich that he was going to be attending a computer school. (N.T. 5) In fact, he was going to jail for theft. (N.T. 11) By the beginning of June, the then occupant of the property, one Lenny Hartman, who is not a party to these proceedings was in default of the rent. (N.T. 7) At the end of Juno, Sampson called Minich from prison. He told Minich that Hartman was an alcoholic, that Hartman was drinking every day, that Hartman was urinating on the carpet, that Hartman was wetting his bed and that Sampson wanted Minich to evict Hartman and change the locks. (N.T. 10-11) During the same conversation, Sampson told Minich that he was being released from prison in August and askeQ Minich to wait for rent until sampson was scheduled to be released from prison. (N.T. 11) Sampson was actually released from prison on July 10, 1995. Sampson was represented by counsel at the hearing in this case, and he did not contradict the statement of Judge Bayley on the record that it is undisputed that Minich would.not have continued any relationship with sampson if he had known that Sampson was going to jail for theft and not to computer school. (N.T. 14) WAYNE F. SHAD!! Aaomcy at Llw Sl W... _... SU<d CuIWc, 1'au>l)'1v.... 170ll When Minich learned that Sampson was in prison and was not to be released for more than a month, he emptied the apartment and changed the locks. (N.T. 7) When Sampson returned from prison, he attempted to pay the rent in arrears by leaving a check at Minich's office. This check was refused and promptly returned to Sampson. (N.T. 8) Judge Bayley suggested at the hearing on July 17, 1995, that we proceed to evict Sampson. (N.T. 13) In respect of that suggestion, we commenced those proceedings which are presently pending on the appeal of Plaintiff Robert Sampson herein in this Court at No. 95-526 civil Term. Sampson has filed Preliminary -2- objections to our Complaint in that case which are also before your Honorable Court for disposition at this time. On July 12, 1995, Plaintiff Robert Sampson filed his initial complaint herein in which he requested injunctive relief. After the aforesaid hearing on July 17, 1995, Sampson filed an Amended complaint on August 1, 1995, requesting compensatory and punitive damages. We filed Preliminary Objections in the form of a demurrer and the failure to join the alleged co-tenants of Sampson. Without further action on our first set of preliminary Objections, Plaintiffs permissibly filed a Second Amended Complaint on September 11, 1995. On September 29, 1995, we filed our Preliminary Objections to the Second Amended Complaint in the form of a demurrer and the continuing failure to join the co- tenant, Lenny Hartman, as a necessary party. These Preliminary Objections are now before your Honorable Court for disposition. I. THE SECOND AMENDED COMPLAINT FAILS TO PLEAD A CLAIM UPON WHICH RELIEF CAN BE GRANTED AS TO PLAINTIFF ROBERT SAMPSON IN THAT THE ALLEGATIONS ARE INCONSISTENT WITH JUDICIAL ADMISSIONS IN THE INITIAL AMENDED COMPLAINT. WAYNII F. SHADB A_"Law S] Wat PoalInt SImI CarllIIo, l'auuylvooia 17011 The Second Amended Complaint fails to plead a claim upon which relief can be granted as to Plaintiff Robert sampson in that the allegations of Paragraph 6 are inconsistent with the jUdicial admission of Plaintiff Robert Sampson in Paragraph 6 of his first Amended Complaint which averred that he was not a tenant after April of 1995 but that his ex-wife had "take[n] over his tenancy temporarily". -3- Averments in pleadings constitute binding jUdicial admissions, conclusive in their nature insofar as their effect is confined to the case in which they are filed. stinhouse v. Herman Miller, Inc., ___ Pat Super. ___, 661 A2d 1379, 1382 (1995). The fact that Robert Sampson was not a tenant after his deliberate and calculated lie is probably the only point on which there is agreement in this case. Having pled himself out of court, we contend that the Complaint must be dismissed as to Plaintiff Robert Sampson. -4- II. THE SECOND AMENDED COMPLAINT FAILS TO PLEAD SUFFICIENT ALLEGATIONS TO SUPPORT A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. The Second Amended Complaint fails to plead a claim upon which relief can be granted in Count Three as to alleged intentional infliction of emotional distress in that there are no WAYNB P. SHADE A.....,...r..w SJ Well PcmrRl_ Cartla~. Pawylvllllt 1701) averments which would establish the conduct of Defendant as being so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. The Second Amended Complaint avers nothing more than that Plalntiffs have suffered emotional distress. Our Supreme Court has recently held in reversing the Superior Court that an allegation that a plaintiff has suffered physical and emotional pain is insufficient in itself to state a cause of action for infliction of emotional distress. Lampus V. Lampus, ___ Pat ___, 660 A2d 1308, 1312, n. 2 (1995). Moreover, the Second Amended Complaint fails to aver any physical manifestations of the WAYNB F. SHADe A_ II Low 53 Well PcmI'" _ CarliJIc, Pawylv.... \70\3 alleged emotional injury or the necessity of any medical treatment therefor. Abadie v. Riddle Memorial Hospital, 404 Pat Super. 8, 589 A2d 1143 (1991); Lazor V. Milne, 346 Pat Super. 177, 499 A2d 369 (1985); and Banyas V. Lower Bucks Hospital, 293 Pat Super. 122, 437 A2d 1236 (1981). The emotional harm to Plaintiff Linda sampson was not even significant enough in this case to have prompted her to join in this action until we required her to do so by virtue of our preliminary Objections to the initial Amended complaint. Therefore, we contend that the allegations of intentional infliction of emotional distress in this case must be dismissed. m. THE SECOND AMENDED COMPLAINT FAILS TO JOIN A JOINT TENANT AS A NECESSARY PARTY. Paragraphs 5 and 7 of the Second Amended Complaint, taken together, aver that Lenny Hartman was a joint tenant of the subject property after April of 1995, but he has not been made a party to this action. Pa.R.C.P. 2227(a) states: "Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants." On its face, Rule 2227(a) is not discretionary. It requires joinder of persons having only a joint interest in the subject matter of an action. Words and phrases shall be construed according to their common and approved usage. Pa.R.C.P. 103. Furthermore, failure to join an indispensable party deprives a court of subject matter jurisdiction and may be raised at any -5- W"YNB F. SultOn "......,...1Aw 5Jw........,"'_ CarIWe. I'coaqlv.... 17013 stage of the proceedings. DeCoatsworth v. Jones, 414 Pat Super. 589, 603-04, 607 A2d 1094 (1992). Rule 2227(a) is intended to protect persons such as Mr. Minich in this case from being required to defend yet a second spurious action from the drunken joint tenant herein whose status as a joint tenant was predicated upon the deliberate and calculated lie in this case. Plaintiffs having fa~led to join Hartman, whom they expressly aver to have been a joint tenant, we contend that the Complaint must be dismissed. Date: November 22, 1995 Respectfully submitted, ~~ ~dk. Wayn F. Shade Attorney for Defendant -6- ROBERT SAMPSON AND LINDA SAMPSON, PLAINTIFFS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NELSON L. MINICH, DEFENDANT 95-3713 EQUITY TERM BEFORE BAYLEY. J. AND HESS. J. ORDER OF COURT AND NOW, this 30th day of January, 1996, the preliminary objections of defendant to plaintiffs' second amended complaint, ARE DISMISSED. By the Co ,,;1 . "/' Jane Muller-Peterson, Esquire For Plaintiffs _ (\.....10:'" a.-' ro>'-'i.~Q.., A.. II ~o 1%, ~(r ):, --P. Wayne F. Shade, Esquire For Defendant :saa ,,~ ..,..... ,.', . "...." . ,\,.;,:;;~':,l r. ,.(' '\..... Q~:' ; :',,1 .' .. '!-.'_:'_~"~n) ... "I 'co c..' (.1:, ...\ ....) }V"""" .,.:.; ."J \....\-\.",,--..-'.'" , -\;....- :ll"':.I.!'i~It::nll ;l..'..;.....J ~_.:J ._-~,.\,;--:...;.:..:;.~ - , -,. i'; c, r.: I': tJ.I~} l:'J :..J_ ~~( i .':.'. .-. ~ ..... ,.l: '..); : I., y:, ~ ~:-.i (" : (') .'i>. .I~~ b:l (':"'1 , i}C:i i : tlJ l,- .. ~ ,,-- I , ", ::J u '-l (.l 0 ~Gl 0 <I.l CIl:ii .c NlIll:l "d~ '-" ..... ~~ Gl "'1Il ~ ..... 0 >'ObO . .....~ ~ 1Il p..CIl U ..... I:l..... '" zilas Z ~ Gl"d Gl O"d - p:: "dH O<l.l~~GlGl ~ ~ ~ O~~ ~ I:l I:ll:l "'''' . 11l . o GlGl j ~p.. l::a Z Ul >.p."'I:l.c~ ~ i I 8ciE I "d oz~ ..c <I.l Gl..... I:l ~ <I.l . CIlOU GlGl~.cGlGl {n ~ ..... =~ ~~~ "''''~~u I:r< J ~E3~ ..... UI:l ~~ l! m)!!'~'E~ Iol ce ~ o CI Z ...... HlIl ;z: O~ OZ~ Z"d CIl ~ E-tU l::a CIlOI:l HI:l CIlCll Gl~)aGl>' ~ ~ 5 p:: M ~CIl'~ ~Gl iS~ E-t '" ~ Gl..... <I.l m ~ ~ ~ ~l::a......:;j ..... l>:<:;j lIl'r-\ZlIl o~~ CIl~P: . . Gl ~l::a ~ ...... a U MH > ~l::a Sp:: IQZCl ::l "d U 0 ~ ,p:: Ul OH~ o Gl"''''1:l ~ It'\E-t t:< Z ~~ p::~ :><lIl<l.lGl.....Gl ~'" 0 o~ ~ E-t1Q ~ ~l::a CIl Gl...... I:l <I.l . z~ci~ IQZ ~ .. ...... U ::l >'''d ::l OH ~ :ii8 0 ..... I:l 0 1Il::l 0 HUZ"" p::~ E-t ..... GlU"d'",>, . , . . 1 ~ WAYNE F. SHADB A"""''' Low 5]W..._,.._ CMIUIe. """"lvlllla 1701] ROBERT SAMPSON and LINDA SAMPSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 95-3713 EQUITY TERM . . NELSON L. MINICH, Defendant JURY TRIAL DEMANDED 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 the pleadings and Notice are served, 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 pleadings or for any other claim of 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 Fourth Floor Cumberland county Courthouse Carlisle, Pennsylvania 17013 Telephone: (717) 240-6200 t1h r- ~ Wayn~ Shade Attorney for Defendant I I ~ I I ~ ROBERT SAMPSON and LINDA SAMPSON, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . v. NO. 95-3713 EQUITY TERM NELSON L. MINICH, Defendant : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM 1. - 5. Admitted. 6. The averments of Paragraph 6 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that, on or about April 1995, Plaintiff Robert Sampson told the landlord that he would be away for several months, but it is denied that Plaintiff Robert Sampson arranged to have his ex-wife move in to care for his seven year old son and to take over his tenancy temporarily. On the contrary, Defendant avers that he never received any rent from Plaintiff Robert Sampson's ex-wife and that the only rents which Defendant received after April 1, 1995, were from the Lenny Hartman identified in Paragraph 5 of Plaintiffs' Second Amended Complaint. By way of further answer, Defendant avers that Plaintiff Robert Sampson deliberately lied when he told Defendant that he would be away for several months. Plaintiff Robert Sampson told Defendant that Plaintiff Robert Sampson was going to be attending a computer school in connection with his employment when the truth was that Plaintiff Robert WAYNI! F. SHADE AIkney It Law 53 Welt Pom1m Stttd CuIWe, I'aloIyIvIllia 17013 Sampson was being incarcerated as a result of repeated theft offenses. WAYNE F. SHADE A.....,... Law 53 Writ Pomrm SCrrd Cltllolt. .-.,Iv.... 17011 7. The averments of Paragraph 7 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that Lenny Hartman remained current in rent until he failed to pay $30 of the June rent payment, but it is denied that Plaintiff Robert Sampson's former wife remained current in rent. On the contrary, Defendant avers that Plaintiff Robert Sampson's former wife never made any rental payments and never entered into a lease with Defendant. 8. The averments of Paragraph 8 of the Second Amended Complaint, being within the exclusive knowledge of Plaintiffs, are denied; and proof thereof is demanded. 9. The averments of Paragraph 9 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that Plaintiff Robert Sampson placed a telephone call to Defendant requesting that he evict Lenny Hartman. The averment that Plaintiff Robert Sampson asked for early release from prison, being within the exclusive knowledge of Plaintiff Robert Sampson, is denied; and proof thereof is demanded. 10. The averments of Paragraph 10 of the Second Amended Complaint are admitted in part and denied in part. On the assumption that the averment is that Defendant stated that he -2- wanted all persons out of the property, it is admitted that Defendant conveyed that message to all persons on the premises. As to the identities of those persons upon the premises in the absence of Mr. Hartman, it is denied that they were tenants; and the identities, being apparently within the knowledge of Plaintiffs are denied; and proof thereof is demanded. 11. The averments of Paragraph 11 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that Defendant wanted to give reasonable notice to whoever had belongings in the property to remove those belongings, but it is denied that Defendant made any reference to Plaintiffs' belongings. On the contrary, Defendant avers that he was unaware of whose belongings were in the property. By way of further answer, Defendant avers that he knew by this time that any contractual relationship with Plaintiff Robert Sampson or any of Plaintiff Robert Sampson's privies was founded upon a deliberate lie and an active fraud in the inducement in Plaintiff Robert Sampson's actively concealing his incarceration. 12. The averments of Paragraph 12 of the Second Amended complaint are admitted in part and denied in part. It is admitted that Defendant removed from the residence various items of tangible personal property. It is denied that the locks to the residence were changed. The averments as to ownership of the WAYNE F. SHADE A_"uw -3- 5) w... Pamf", sum c_.......,....... 1701] contents, being within the knowledge of Plaintiffs, are denied; and proof thereof is demanded. 13. The averments of Paragraph 13 of the second Amended Complaint as to when plaintiff Robert sampson returned to the residence, being within the exclusive knowledge of plaintiffs, are denied; and proof thereof is demanded. The averments with respect to plaintiff Robert sampson's contacts with the landlord after his release from prison are denied. On the contrary, Defendant avers that he never spoke with Plaintiff Robert Sampson after plaintiff Robert Sampson's release from prison. 14. The averments of Paragraph 14 of the Second Amended Complaint are denied. On the contrary, Defendant avers that Plaintiff Robert Sampson had no conversations with Defendant after Plaintiff Robert Sampson's release from prison. 15. The averments of Paragraph 15 of the Second Amended Complaint, being within the exclusive knowledge of Plaintiffs', are denied; and proof thereof is demanded. 16. The averments of Paragraph 16 of the Second Amended Complaint are denied. On the contrary, Defendant avers that plaintiff Robert sampson had no conversations with Defendant after Plaintiff Robert Sampson's release from prison. WAYNl! F. SHADe Attomcy It Law SlW"'_"'_ Carliolc. I'<MIylvulia .7013 -4- WAYNE F. SHADE A_....... Sl W... Pomfrd _ Cat\i.k.l'<1uu1lv.... 17013 17. Admitted. 18. Admitted. 19. The averments of Paragraph 19 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that a personal check in the amount of $330 was delivered to offices of Defendant on or about July 13, 1995. By way of further answer, Defendant avers that he was unable to negotiate the check without exposing himself to contentions of an accord and satisfaction with respect to the existence or nonexistence of a lease with Plaintiff Robert sampson. Therefore, proof that there were sufficient funds on deposit to cover the check is demanded. 20. It is admitted that Defendant acted to protect the remaining residents of the building by waiting until after a hearing to give Plaintiff Robert sampson access to the property. 21. It is admitted that Defendant secured the former contents of the property under ample cover. The averments as to ownership of the items, being within the exclusive knowledge of Plaintiffs, are denied; and proof thereof is demanded. -5- WAYNe F. SHADe Attomty at Llw S] Weal Pomf'ret Stttd CuIitIe.l'oGDoylvlAia 17013 22. The allegations that plaintiff Robert Sampson attempted to call Defendant, being within the exclusive knowledge of Plaintiffs, are denied; and proof thereof is demanded. 23. The averments of Paragraph 23 of the Second Amended Complaint are admitted in part and denied in part. It is admitted that Defendant provided Plaintiff Robert Sampson access to the residence, but it is denied that Defendant provided plaintiff Robert Sampson's son access to the residence. On the contrary, Defendant provided only Plaintiff Robert Sampson access to the residence. 24. The averments of Paragraph 24 of the Second Amended Complaint are denied. On the contrary, there was nothing about the conduct of Defendant in addressing the problems with the property which prevented plaintiff Robert Sampson from attending his employment. 25. The averments of Paragraph 25 of the Second Amended Complaint, being within the exclusive knowledge of Plaintiffs, are denied; and proof thereof is demanded. -6- .....~~: 26. The averments of Paragraph 26 of the Second Amended Complaint, being within the exclusive knowledge of Plaintiffs, are denied; and proof thereof is demanded. Count One Self-Help Eviction 27. The responses to Paragraphs 1-26 of the Second Amended Complaint are incorporated herein by reference as though fully set forth. 28. The averments of Paragraph 28 of the Second Amended Complaint, being conclusions of law, no response is required. 29. The averments of Paragraph 29 of the Second Amended Complaint are denied. On the contrary, Defendant avers that his actions were motivated primarily by a desire to correct serious deficiencies with respect to the use of the property which were endangering the lives of others in the building including children, all as more specifically set forth in the New Matter and Counterclaim herein. WHEREFORE, Defendant respectfully requests that Plaintiffs' Second Amended Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs. WAYNIl F. SHADe AIIorDcy It lAw 5lW"'_",_ ""litle, Pmooylv.... 170ll -7- Count Two Violation of Consumer Protection Law 30. The responses to Paragraphs 1-27 of the Second Amended Complaint are incorporated herein by reference as though fully set forth. 31. - 32. The averments of Paragraphs 31 and 32 of the Second Amended Complaint, being conclusions of law, no response is required. WHEREFORE, Defendant respectfully requests that Plaintiffs' Second Amended Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs. Count Three Intentional Infliction of Emotional Distress 33. The responses to Paragraphs 1-30 of the Second Amended Complaint are incorporated herein by reference as though fully set forth. 34. - 35. The averments of Paragraphs 34 and 35 of the Second Amended Complaint are denied. On the contrary, Defendant avers that his actions were at all times motivated by concerns for the safety and welfare of the other occupants of the building. WHEREFORE, Defendant respectfully requests that Plaintiffs' Second Amended complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiffs. WAYNE F. SHADE A_dUw 5) W... _... Slftd CarlWe, Pawylvonla 1701) -8- 'I NEW MATTER 36. When Plaintiff Robert Sampson departed the premises in early April of 1995, he deliberately lied to Defendant in telling Defendant that he was going to be away at a computer school in connection with his employment when, in fact, Plaintiff Robert Sampson was going to prison for repeated theft offenses. 37. As a result of Plaintiff Robert Sampson's deliberate lie as to the reason for his absence from the property, Plaintiffs are estopped from asserting any legal rights against Defendant on the basis of Plaintiff Robert Sampson's active fraudulent inducement of a continuing contractual relationship. 38. On or about June 27, 1995, Plaintiff Robert Sampson called Defendant by telephone from prison. 39. Said telephone call from Plaintiff Robert sampson was Defendant's first knowledge that Plaintiff Robert sampson was incarcerated. 40. In said telephone call to Defendant, Plaintiff Robert Sampson stated that Lenny Hartman was an alcoholic, that he was stealing items out of the house and that he was urinating on the carpets and the beds. WAYNI! F. SHADB Aaomey at Law 5lW..._",Slftd C.disle, PawyIY.... 110ll -9- WAYNE F. SHADE A_ II Law 51 W... Pomrrrt 5CRd c.ru.Ie, l'autsylv.... 17011 46. When Lenny Hartman did not have the rent to Defendant as promised, Defendant went to the premises on July 8, 1995. 47. On July 8, 1995, Defendant repeatedly knocked on the door, but no one responded. 48. When Defendant gained entry to the property on July 8, 1995, he found Lenny Hartman in a drunken state, half asleep on the bed with a burning cigarette and a bottle of beer. 49. When Defendant found Lenny Hartman on the bed on July 8, 1995, there were several empty beer bottles strewn around Lenny Hartman and several cigarette butts ground into the carpet on the floor. 50. The apartment unit in question is one of four units in a frame building which is more than one hundred years old. 51. There are families with children who live in other units of the building. 52. out of concern for the safety and welfare of the other occupants of the building, Defendant ordered Lenny Hartman out of the property. -11- 53. Lenny Hartman left voluntarily and has never sought to return to the property. WHEREFORE, Defendant respectfully requests that Plaintiffs' Second Amended Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiff Robert sampson. COUNTERCLAIM 54. The averments of Paragraphs 36-53 above inclusive are incorporated herein by reference as though fully set forth. 55. If Defendant had known that Plaintiff Robert sampson was leaving the property because he was being incarcerated for theft, Defendant would never have permitted Lenny Hartman and Plaintiff Robert sampson's minor child to remain in the property. 56. By virtue of plaintiff Robert Sampson's active fraudulent inducement, Defendant has suffered the following damages: (a) Loss of a refrigerator which was removed from the premises by plaintiff Robert Sampson or his privies; (b) Loss of a clothes dryer which was removed from the premises by plaintiff Robert sampson or his privies; and (c) Destruction of carpeting. WAYIIB F. SHADB A.....,." La.. -12- SIW............._ Callhle. I'mooylv.... 17011 WHEREFORE, Defendant demands jUdgment against Plaintiff Robert Sampson in an amount less than $25,000 plus costs, interest and attorney fees. :t-(~ r~ Wayn F. Shade, Esquire Attorney for Defendant WAYNI! F. SHADe A.....,...t.aw SlW..._..._ c..u.Ie, I'mntylvlllla 1701) -13- The statements in the foregoing Answer with New Matter and Counterclaim are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 54904 relating to unsworn falsification to authorities. Date: February 13, 1996 'L // ' ') ",' // ' ~ / .,/ .1' " N~L."~ ~ WAYNE F. SHADe A_,,"'.. 53 W", _... SUM c..lble. I'mIuyIvIlllo 17013