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004331-0002I/Jlnuary', 1994</DJUKKM/49'67
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MICHAEL A, SERLUCO t/a
CONSOLIDATED PROPERTIES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
q~ fir (:'ll-il r,,-....
NO. 96 7178 CIVIL TERM
Plaintiff
v.
CIVIL ACTION - LAW
MARGARITE J, McCANDLESS,
Defendant
TO: Margarlte J. McCandless
Apt. '2
5265 East Trlndle Road
Mechenlcsburg, PA 17055
You are hereby notified that on 01.."",-,_"-<)' ,>' -":. , 1996, judgment by confession was
entered against you In the sum of $962.31 In the above-captioned cese.
Date: (-1..............,. !; 11(/.\"
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I P othonotary
A Cuti
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
Court Administrator
Cumberland County Court House
1 Courthouse Square
Carlisle, Pennsylvania 17013
Telephone: (717) 240-6200
I hereby certify that the fOllowing Is the address of the Defendant stated in the certificate of
residence:
Apt. '2
5265 East Trlndle Road
Mechenlcsburg, PA 17055
~~~
Attorney for Plaintiff
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00433l-OOO:Zllllnuary 5, 1996IDJUKKM/49567
MICHAEL A. SERLUCO t/a
CONSOLIDATED PROPERTIES.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
'II.. 'Ii c.:.u,.~ r............
NO, 9& 7178 CIVIL TERM
CIVIL ACTION. LAW
Plaintiff
v,
MARGARITE J. McCANDLESS.
Defendant
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorn~y. a copy of which is attached to the
Complaint filed in this action. I appear for the Defendant and confess judgment In favor of the Plaintiff and
against the Defandant as follows:
Unpaid Rent (less applicable deposit)
5% Late Fees
Attorney's Collection Fee
$440.30
$22,01
$500.00
TOTAL:
$962,31
JOHNSON. DUFFIE. STEWART & WEIDNER
Dete: January 5, 1996
~~L-
BY:
David J. Lanza
Attorney 1.0. 155782
301 Market Street
P.O. Box 109
Lemoyne. PA 17043-0109
(7171761-4540
Attorneys for Defendant
~JJ.-0002111.nuary'. I9961D1UKKMl49567
MICHAEL A. SERLUCO t/a
CONSOLIDATED PROPERTIES.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
NO, 96-7178 CIVIL TERM
CIVIL ACTION - LAW
Plaintiff
v.
MARGARITE J, McCANDLESS,
Defendant
COMPLAINT PURSUANT TO RULES 291511bl AND 2971lal
FOR CONFESSION OF JUDGMENT FOR MONEY DAMAGES
AND NOW. comes the Plaintiff, by and through his ettorneys, Johnson. Duffie. Stewart a. Weidner.
and avers as follows:
1, Tha Plaintiff is Michael A. Serluco tla Consolidated Propertlel, In adult Indlvidull with a
place of business at 400 N. Front Street. Wormleysburg, Cumberland County, Pennlylvanla 17043,
2, The Defendant, Margarlte J. McCandless. Is an adult Individual residing at 6266 East Trindle
Roed. Apt, 112. Mechanlcsburg, Cumberland County, Pennsylvania 17066.
3, On or ebout April 22. 1992, the Plaintiff and Defendant entered Into a Le88e Agreement,
a true and correct copy of which land the renewal thereunderlls attached hereto as Exhibit. A. and made
a part hereof by reference.
4, Said Lease Agreement has not been assigned by the Plaintiff.
6, No judgment on the Lease Agreement has been entered In any jurisdiction,
6. The aforesaid Lease land the renewal thereunder) requires Defendant to pay unto Plaintiff
$450.00 per month.
~331-0002l1/inUlry 50 1996/DILlKKMl49567
WHEREFORE. the Plaintiff demands Judgment egelnst the Defendant in the amount of Nine Hundrad
Sixty-Two Dollera and Thlrty'One Cents ($962.31), plus costs, interest and attorney fees.
JOHNSON, DUFFIE. STEWART & WEIDNER
Date: January 6. 1996
BY:
~~j ((~
David J, Lanza
Attorney I,D, '66782
301 Market Street
P.O, Box 109
Lemoyne. PA 17043-0109
(717) 761.4640
Attorneys for Plaintiff
J1J
CJO:t331-GOO:1I11.illlOry., 1996IDJUKKMI.9S67
VERIFICATION
I, Mlch.el A. Serluco. do verify that the statements made In the foregoing Complelnt for Confelllon
of Judgment ere true and correct to the best of my knowledge, Information and belief, I understand that
false statements made herein ere subject to the penalties of 18 Pa.C,S, 14904 relating to unsworn
falsiflcetlon to authorities.
Oeted:
//~~
LEASE AGREEMENT
THIS LEASE, made this 22nd day of Apri.L.1992 BETWEEN
CONSOLIDATED PROPER~, The Owner or Landlord,
AND Harqarite McCandless
(Hereinafter whether one or more, referred to as "Tenant")
WITNESSETH: That Owner hereby leases to Tenant and the latter
lets from the former, the apartment designated as:
50
B3 Mechanicsbur
PA 17055
Pennsylvania, hereinafter called the "premises", for the term of
Twelve (12) Months beginning on the 15th day of June. 1992
and ending on the 14th day of June. 1993, at the rent of
Pive Thousand Two Hundred and Twentv 00/100 ($5.220.00) per year
payable in monthly installments of Four Hundred Thirtv Five and
00/100 Dollars ($435.00 I due on 1st of each and every month in
advance.
This letting is upon the f~llowing terms and conditions:
1. Rent. Tenant agrees to pay to Landlord the monthly rent
set forth above on the 15th day of each month in advance, at such
place as Landlord shall designate. Tenant further shall pay a late
charge of five (5%) percent per month of the amount of rent in
default on the 18th day of each month. If rental is mailed, the
postmark date will determine the day of payment. If any check for
the rent is returned to Landlord for insufficient funds or other
reasons, a $20.00 service charge will be charged.
2. Waiver of Notice to Ouit. Tenant hereby waives the usual
notice to quit and agrees to surrender the premises at the
expiration of said term, or the termination of this lease for
whatever reason, forfeiture or otherwise without notice from lessor
whatsoever. If proceedings shall be commenced by lessor to recover
possession of the premises, either at the expiration of the term or
earlier termination of the lease, or for non-payment of rent, or
for an other reason, tenant specifically waives the right to three
(3) months notice and to fifteen (15) or thirty (30) days notice or
any other notice required under the Landlord and Tenant Act of 1951
as amended, and agrees that no notice whatsoever shall be required.
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EXHIBIT "A"
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3. Tenant ore-m.lture termination. Tenant may terminate this
'lease without case prior to its expiration date only by giving
written notice to Landlord at least two full calendar month~ (60
days) in advance of the termination date effective from either the
1st or 15th of any given month; and, if Tenant elects to move prior
to the termination date, Tenant must pay to Landlord, at the time
notice is given, all rent due to the termination date. In any
event, rent must be paid to termination date prior to Tenant' s
move, upkeep of the unit must be maintained to termination date,
and utilities must be maintained to termination date. If a
termination by the Tenant takes effect prior to the original
termination date, Tenant shall also pay to Landlord at the time
notice of termination is given liquidated damages for premature
termination which shall be $435.00 if the lease terminates during
the first nine (9) months of the lease term, and which shall be
two-thirds (2/3) of that amount if the lease terminates during the
10th or 11th month. Should Landlord rent the unit prior to
termination date, Tenant shall be entitled to the return of his
rental payment in an amount equal to the rent received by Landlord
prior to the termination date, less ($217.50) towards the cost of
re-rental.
4. Rental Increases and Renewals. Landlord may increase the
monthly rent or change the term of this Lease on written notice to
Tenant gIven at least Seventy (70) days in advance of the 15th day
of the month in which the increase in rent or change in Lease term
is effective, but Landlord may not make an increase or a change in
the Lease term during the term of the Lease. Rent increases or
change in Lease term shall take effect in the manner specified by
Landlord unless Tenant shall terminate the Lease as provided in
Paragraph 3 hereof. This lease shall continue for a like term
under the same terms and conditions as stated herein unless either
party shall give notice in writing to the other party at least
sixty (60) days prior to the end of this lease of his intention to
terminate the lease agreement or continue same under changed terms
or conditions.
5. Use. No unit shall be used for any other purpose other
than a private dwelling for the Tenants or Tenants and his, her or
their immediate family. No professional business or home
occupation of any nature shall be permitted to be conducted within
the Unit even if accessory to the main residential use of the Unit.
Tenant shall not permit or suffer anything to be done or kept upon
or within the Unit or which will interfere with the rights of the
other occupants, annoy them with unreasonable noises or otherwise,
nor will Tenant commit or permit any nuisance or commit or suffer
any immoral or illegal act to be committed within the Unit.
6. Utilities, Tenant understands that equipment for
utilities to service the Unit is installed therein and Tenant
agrees that the cost of utilities shall be paid as follows:
(2)
shade or blind in or at any window of the apartment without
prior consent of the Owner or Agent, Damage to storm doors
and windows due to negligence will be the responsibility of
the tenant.
D. Tenant shall use plumbing and electrical installations
only for their intended purposes and shall be fully
responsible for the maintenance of same and for cleaning any
stoppages in waste water lines,
E. Maximum occupancy:
permitted to occupy the
McCandless and child,
No more than Two person (s) will be
apartment, designated as Marqarite
F, Tenant(s) agree(s) that Owner or Agent may change their
regulations from time to time as may be required to protect
the apartment or Owner's other property to add to tenant's
enjoyment of it.
G. Tenant(s) are allowed only ~ parking space(s) in
parking lot.
H. No washer/dryer or dishwasher will be permitted to be kept
or used at premises.
9, Deliver of Possession bv Landlord, If, due to
circumstances beyond Landlord's control, the unit shall not be
ready for occupancy at the beginning of the term herein provided,
thia Lease shall nevertheless remain in effect and the rent shall
be abated proportionately until the Unit is ready and Landlord
shall not be liable for delay; provided, if the Unit shall not be
ready of occupancy sixty (60) days after the beginning of the term
as herein provided, Tenant shall have the right to cancel this
Lease by written notice delivered to Landlord at any time after the
expiration of sixty (60) days, but not after the Unit is ready of
occupancy. Tenant's remedy shall be limited to such right of
cancellation and upon such cancellation neither party shall have
any further rights against the other, save Landlord shall repay any
deposit made by Tenant. If Tenant shall occupy the Unit prior to
the beginning of the term as herein provided, such occupancy shall
be subject to the terms of this Lease and Tenant shall pay prior to
occupying the Unit rent for the same period from the date of such
occupancy to the beginning of said term.
10. Damaoe bv Fire. If the Unit is damaged by fire or other
casualty, Landlord shall repair within a reasonable time and rent
shall continue unless the casualty renders the Unit untenantable,
in which case this lease shall terminate and Tenant, upon payment
of all rent to the date the Unit is surrendered, shall not be
liable for any further rent, If only a portion of the Unit is
rendered untenantable, the Tenant may, with the mutual agreement of
Landlord, alternatively choose to continue in possession and shall
thereupon be entitled to a pro rata reduction in the amount of rent
(4 )
provided that the election to proceed under this alternative shall
not be a waiver of Tenant's right to terminate if repairs are not
made within ninety (90) days.
11, Propertv Damaqe and Personal In;urv. Tenant agrees that
Landlord shall not be liable for property damage or personal injury
occurring in the Unit or elsewhere on the Property unless the
damage or injury results directly from Landlord's negligence.
Tenant is instructed to purchase, at Tenant's expense, a Tenant's
Homeowner's Policy to insure his personal injury to Tenant, other
occupants, guests, or visitors, that occurs within the Unit or
elsewhere on the Property.
12. Riqht of Entrv, Landlord, or any person authorized by
Landlord, shall have the right to enter the Unit at reasonable
times to inspect, replace appliances as needed, and, after notice
of termination is given, to show the Unit to prospective Tenants.
Landlord shall give Tenants notice of his or their intention to
enter, if possible. However, Tenant consent shall not be necessary
in case of emergency.
13. Securitv Deposit. Tenant agrees to pay as security
deposit the amount of Four Hundred Thirtv Five and 00/100 ($435.00)
Dollars prior to the occupancy of the Unit. The security deposit
shall be held by Landlord as security for the payment of all rent
and other amounts due from Tenant to Landlord, for the Tenant's
performance of this Lease and against any damages caused by Tenant
or Tenant's family or other occupants to the Unit or the Owner's
Property. Tenant understands and agrees that the security deposit
may not be applied as rent or as against any other amount due from
Tenant to Landlord, without Landlord's written consent, and that
monthly rent will be paid each month, including the last month of
the Lease term. Within thirty (30) days following the termination
of this Lease, Landlord shall return the security deposit, less any
deductions from it on account of amounts owed by Tenant to Landlord
by check payable to all persons signing this Lease, mailed to a
forwarding address which must be furnished by Tenant in writing
within twenty (20) days after removal from the Unit.
14. Default.
A. If any rent for the Unit comes due under the terms of this
Lease and if the same remains unpaid for five (5) days after
written notice thereof by Landlord to Tenant, there shall be deemed
a default of this Lease.
B. If Tenant fails to comply with any term, covenant or
provision of this Lease other than the payment of rent, and if
tenant shall fail to make reasonable measures to cure such
noncompliance within fifteen (15) days after written notice thereof
by Landlord to Tenant, there shall be deemed a default of this
(5)
Lease.
C. If Tenant shall file a petition in bankruptcy or
receivership or if such a petition is filed against Tenant and
reasonable measures to discharge same are not taken within thirty
(30) days or written notice of such petition by Landlord to Tenant,
there shall be deemed a default of this Lease.
D. If Tenant shall make an assignment for the benefit of
creditors or becomes insolvent, there shall be deemed a default of
this Lease.
E. Upon default of this Lease, Landlord may enter the Unit as
agent of Tenant and in Landlord's own right without being liable
for prosecution or damages therefor and relet the Unit as agent of
Tenant and receive rent thsrefor.
F. Upon such entry, Landlord shall use reasonable efforts to
relet the Unit.
G. Upon such entry, all rights of Tenant to possess the unit
under this Lease shall be forfeited. Such entry by Landlord shall
not operate to release tenant from any rent to be paid or covenants
to be performed during the full term of this Lease,
H. Upon such entry, Landlord shall be authorized to make such
reasonable repairs in or to the Unit as may be necessary to place
the same in good order and condition for the purpose of reletting.
I. Tenant shall be liable to Landlord for the reasonable
costs of such repairs and all reasonable expenses in reletting,
inclUding, but not limited to, any real estate brokerage commission
actually paid.
15. CONFESSION OF JUDGMENT FOR MONEY. TENANT AGREES THAT IF
THE RENT OR ADDITIONAL RENT OR ANY CHARGE RESERVED IN THIS LEASE AS
RENT SHALL REMAIN UNPAID FOR A PERIOD OF FIVE ( 5 ) DAYS AFTER
WRITTEN NOTICE IS PROVIDED, THAT LANDLORD MAY CAUSE JUDGMENT TO BE
ENTERED AGAINST TENANT, THAT FOR THAT PURPOSE TENANT HEREBY
AUTHORIZED AND EMPOWERS LANDLORD OR ANY PROTHONOTARY, CLERK OF
COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS
JUDGEMENT AGAINST TENANT AND AGREES THAT LANDLORD MAY COMMENCE AN
ACTION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURES FOR THE
RECOVERY FROM TENANT FOR ALL RENT HEREUNDER, INCLUDING ALL
ACCELERATION OF RENT PERMISSIBLE UNDER THE PROVISIONS OF THIS LEASE
AND ALL CHARGES RESERVED HEREUNDER, AS WELL AS FOR INTEREST AND
COSTS AND ATTORNEYS FEES OR COMMISSIONS, FOR WIlICH AUTHORIZATION TO
CONFESS JUDGMENT, THIS LEASE, A TRUE AND CORRECT COpy THEREOF,
SHALL BE SUFFICIENT WARRANT. SUCH JUDGMENT MAY BE CONFESSED
AGAINST TENANT FOR THE FULL AMOUNT OF RENT AND ARREARS AND ALL RENT
DUE TO THE END OF THE TERM HEREIN PROVIDED, AS WELL AS FOR INTEREST
AND COSTS AND ATTORNEYS COMMISSIONS OF FIVE (5%) PERCENT OF THE
(6)
FULL AMOUNT OF LANDLORD'S CLAIM AGAINST TENANT OR AN ATTORNEYS FEE
OF FIVE HUNDRED ($500.00) DOLLARS, WHICHEVER SHALL BE GREATER.
Tenant, by affixing his signature immediately at the end of
this paragraph, hereby consents to the warrant of attorney to
confess judgment and such consent is made understandingl!,
intentionally and voluntarily and that Tenant's annual income is n
excess of $10,000.00,
TENANT:
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16. CONFESSION OF JUDGMENT FOR POSSESSION OF UNIT. TENANT
AGREES THAT IF THIS LEASE SHALL BE TERMINATED, EITHER BECAUSE OF
CONDITIONS BROKEN DURING THE TERM OF THIS LEASE OF ANY HOLDING OVER
THEREOF, OR WHEN THE TERM HEREBY CREATED SHALL HAVE EXPIRED, THEN,
IN THAT EVENT, LANDLORD MAY CAUSE A JUDGMENT OF EJECTMENT TO BE
ENTERED AGAINST TENANT FOR POSSESSION OF THE UNIT, AND FOR THAT
PURPOSE TENANT HEREBY AUTHORIZED AND EMPOWERS ANY PROTHONOTARY,
CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR
TENANT AND CONFESS JUDGMENT AGAINST TENANT IN EJECTMENT FOR
POSSESSION OF THE UNIT. FURTHER, TENANT COVENANTS AND AGREES THAT
LANDLORD MAY COMMENCE AN ACTION PURSUANT TO THE PENNSYLVANIA RULES
OF CIVIL PROCEDURES FOR THE ENTRY OF AN ORDER IN EJECTMENT FOR
POSSESSION OF REAL PROPERTY, AND TENANT FURTHER AGREES THAT A WRIT
OF POSSESSION PURSUANT THEREOF MAY BE ISSUED FORTHWITH, FOR WHICH
AUTHORIZATION TO CONFESS JUDGMENT AND FOR THE ISSUANCE OF A WRIT OR
WRITS OF POSSESSION PURSUANT THEREOF MAY BE ISSUED FORTHWITH, FOR
WHICH AUTHORIZATION TO CONFESS JUDGMENT AND FOR THE ISSUANCE OF A
WRIT OR WRITS OF POSSESSION PURSUANT THEREOF, THIS LEASE, OR A TRUE
AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT.
Tenant, by affixing his signature immediately at the end of
this paragraph, hereby consents to the warrant of attorney to
confess judgment and such consent is made understandingly,
intentionally and voluntarily and that Tenant's annual income is in
excess of $10,000.00.
TE~ANT:
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17. Subordination. This Lease is subject and subordinate to
the lien of all existing mortgages and all mortgages hereinafter
placed upon any part of the Property which includes this Unit.
Tenant agrees, on request, to execute such further instruments
evidencing such subordination as Landlord may request, and, if
Tenant fails to do so, Landlord is hereby empowered to do so in the
name of Tenant.
1B, Assiqninq and Sublettinq, Tenant shall not assign this
Lease or sublet all or any portion of the Unit without Landlord's
prior written consent.
19. Declaration of Governinq Laws. This Lease shall be
governed by, construed and enforced in accordance with the laws of
the Commonwealth of Pennsylvania.
20. Cumulative Remedies. The specified remedies to which
Landlord may resort under the terms of this Lease are cumulative
and are not intended to be exclusive of any other remedies or means
of regress to which Landlord may be lawfully entitled in case of
any default or threatened default by the Tenant of any provision or
provisions of this Lease.
21. Entire Aqreement and Modification. This Lease contains
the entire agreement between the parties and any executory
agreements hereafter made shall be ineffective to change, modify or
discharge this Lease in whole or in part, unless such executory
agreement is in writing and signed by the parties against whom
enforcement of the Lease, modification or discharge is sought.
22. Lease Bindinq Upon Heirs. Executors. Administrators.
Successors. and Assiqns. The term "Tenant" used herein shall refer
collectively to all persons named above, and signing this lease as
Tenant, and the liability of each such person shall be joint and
several. Notice given by Landlord to any person named as Tenant or
by any such person to Landlord, shall bind all persons signing this
lease as Tenant. The term "Tenant" shall also refer to any persons
named as heirs, executors, administrators, successors, of the
respective parties hereto as if they were in every case named and
expressed.
23. Severabilitv. If any provision of this Lease shall be
declared invalid or unenforceable, the remaining provisions of this
Lease shall continue in full force and effect,
(B)
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MICHAEL A SERLUCO t/a
CONSOLIDATED PROPERTIES,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
V.
MARGARITE J, MCCANDLESS,
Defendant
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-98 CIVIL TERM
CIVIL ACTION - LAW
PETITION TO STRIKE OR OPEN JUDGMENT BY CONFESSION
COMES NOW the defendant, Margarite J. McCandless, by
counsel, Philip C, Briganti, Esquire, Legal Services, Inc" and
petitions this Honorable Court to strike or open the judgment by
confession entered against her in the above-captioned matter on
January 5, 1996, for the following reasons:
I. Pendencv of a Prior Action
1. On September 21, 1995, Plaintiff filed a civil Complaint
before District Justice Robert V. Manlove (Consolidated
ProDerties v. Marqarite McCandless, Docket No. CV-419-95) seeking
a judgment against Defendant for rent and late fees for July and
August 1995, and cleaning charges. A copy of this civil
Complaint is attached hereto as Exhibit "A" and incorporated
herein by reference.
2. On December 4, 1995, District Justice Manlove entered
jUdgment in favor of Defendant, awarding Plaintiff $0.00 on it's
civil Complaint. See Exhibit "B".
J. On December 18, 1995, Plaintiff filed an appeal from
said District Justice judgment to the Cumberland County Court of
Common Pleas (Michael A. Serluco t/a Consolidated Procerties v.
Marqarite J. McCandless, No, 95-7178 Civil Term), and
subsequently filed a Complaint in that action, which remains
pending, averring the same facts and causes of action, and
requesting the same relief, as the Complaint filed in this case.
See Exhibit "C",
4, Plaintiff filed his Complaint in the instant case on
January 5, 1996, while his appeal from the District Justice
judgment in the prior action remained pending,
5. Because of the pendency of the prior action, Plaintiff is
barred from filing the case at bar and it must be stricken,
II. Waiver
6. Defendant repeats and incorporates by reference her
averments set forth above in Paragraphs 1 through 5.
7. By bringing this prior action, Plaintiff waived its
right to commence confession of judgment proceedings against
Defendant.
III, Confession of JUdqment provisions Prohibited bv HUD
8. Paragraph 15 of the parties' lease provides that
Plaintiff may confess judgment against Defendant for unpaid rent
and other charges. See Plaintiff's Exhibit "A".
9, The parties' most recent renewal of their lease, dated
March 17, 1995, was executed when Defendant rented the subject
premises from Plaintiff under the HUD Section 8 Existing Housing
Program, from which Plaintiff received rent subsidies, See
Plaintiff's Exhibit "A".
10, The regulations governing the HUD Section 8 Existing
Housing Program, at 24 CFR Section 882, Subpt, B, App, I,
prohibit lease clauses providing for confession of jUdgment, and
therefore render the confession of jUdgment provisions in the
parties' lease void and unenforceable,
IV, Confession of Judament Clause is Unconstitutional
11. Judgment by confession is an unconstitutional violation
of Defendant's Fourteenth Amendment right to due process, because
she did not knowingly, intelligently or voluntarily waive her
rights to notice and a hearing, and no evidentiary hearing was
held to determine if she adequately waived these rights.
12, Pursuant to Swarb v. Lennox, 314 F. Supp. 1091 (E.D. PA.
1970), aff'd 405 U,S, 191 (1972), confession of judgment clauses
are presumptively unconstitutional against persons who make less
than $10,000.00 per year.
13. Defendant belongs to the class protected by Swarb v,
Lennox, because although in April 1992 Defendant signed a
statement contained in the parties' lease indicating that her
income was in excess of $10,000.00, she did not understand what
she was signing, and in fact her income was well below $10,000.00
at that time, as well as when she signed the most recent renewal
of the parties' lease in March 1995.
14, JUdgment by confession violates an individual's right of
access to the courts as guaranteed by the Constitution of the
Commonwealth of Pennsylvania, Art. 1, Section 11.
V. Parties' Lease is a Contract of Adhesion
15. The parties' lease is a contract of adhesion, over the
terms of which Defendant had no bargaining power, and which
contained terms, including but not limited to the confession of
judgment clauses, which are oppressive and unconscionable, and
were not knowingly, intentionally or voluntarily assented to by
Defendant.
VI, Violation of the Plain Lanquaqe Consumer Contract Act
16. The parties' lease is a "consumer contract" within the
meaning of the Plain Language Consumer Contract Act, 73 P.S.
section 2201 ~ ~.
17, This lease, including but not limited to it's confession
of judgment clauses, and late fee and attorney's fees provisions,
does not comply with the Plain Language Consumer Contract Act's
"test of readability" set forth under 73 P.S. section 2205, and
is unenforceable.
VII. EstoDDel
18. Since in or about July 1992, Defendant's rent has been
subsidized by HUD, through rental payments made to Plaintiff
through the Section 8 Existing Housing Program.
19, Each subsequent year, through and inclUding 1994,
Defendant signed a renewal of her lease with Plaintiff, and
Plaintiff executed paperwork necessary to participate in and
receive rental subsidies from, the Section 8 Program,
20. On or about March 17, 1995, Defendant executed a renewal
of her lease with Plaintiff, reasonably believing that Plaintiff
would continue participating in the Section 8 Program and having
received no indication that such participation would cease.
21. On or about July 26, 1995, after Plaintiff'S agent,
carey Twigg, had represented to her and for some time led her to
believe that Plaintiff would continue participating in the
Section 8 Program, Ms. Twigg informed Defendant that Plaintiff
would no longer participate and demanded that Defendant vacate
the premises and pay the full, unsubsidized rent.
22. Defendant would not have executed the renewal to her
lease in March 1995 if Plaintiff had not led her to believe that
it would continue to participate in the section 8 Program, or
informed her that it would cease participating, because she could
not afford to pay the full unsubsidized rent for her apartment,
23. In light of Plaintiff's long-term participation in the
Section 8 Program, and other actions and representations on which
Defendant reasonably relied in concluding that Plaintiff would
continue participating in the Section 8 Program and receiving a
rent subsidy from HUD, Plaintiff is estopped from collecting rent
form Defendant at a rate in excess of $57,00 per month, the
amount established for her under the Section 8 program, and which
Defendant has already paid through and including August 1995.
VIII. Improcer Withdrawal from HUD section 8 Proqram
24. Pursuant to 24 eFR section 882,215(b) (2), a landlord's
Housing Assistance Payments contract, under which the landlord
agrees to participate in the Section 8 Program, is coextensive
with the term of the lease,
25. Pursuant to 24 eFR Section 882,215(c), a Section 8
landlord can only terminate for specified good cause.
26. Because Defendant's lease was never properly terminated
prior to Plaintiff's withdrawal from the section 8 Program in
July 1995 and there was not good cause for terminating her lease,
it was improper for Plaintiff not to continue to participate in
the Section 8 Program and refuse to accept rent subsidies from
HUD.
27. Plaintiff could have received payments from HUD to
cover the alleged unpaid portions of Defendant's rent for July
and August 1995, and only did not receive these payments because
it improperly failed to complete the necessary paperwork with the
Housing Authority of Cumberland County,
28, By failing to complete the necessary paperwork to
receive the rent subsidy payments, Plaintiff waived its right to
collect these payments and is estopped from cOllecting these sums
from Defendant.
IX. Violation of the Unfair Trade Practices and
Consumer Protection Law
29. Defendant repeats and incorporates by reference her
averments set forth above in Paragraphs through 28.
30. The inclusion of the confession of judgment clause in
the parties' lease, and Plaintiff's other described conduct with
respect to the HUD Section 8 Program, constitute unfair or
deceptive acts or practices in the conduct of trade or commerce
within the meaning of the Unfair Trade Practices and Consumer
Protection Law (73 P.S. Section 201-1 et ~.), and render the
judgment against Defendant unenforceable,
WHEREFORE, Defendant respectfully requests this Court to
strike the judgment by confession entered against her or, in the
alternative, that the judgment against her be opened; and to stay
execution on the judgment pending a final order in this case,
COUNTERCLAIM
AND NOW as her CounterClaim, Defendant represents as
follows:
I. Failure to Return Securitv Deoosit
31. Prior to moving into the rental premises in or about
June 1992, Defendant remitted to Plaintiff a security deposit in
the amount of $435.00.
32. Since she moved out of the rental premises on or about
August 31, 1995, Plaintiff, without just cause, has failed to
return her security deposit, or the interest accruing thereon, in
violation of 68 P.S, Section 250,512,
33. Pursuant to 68 P.S, Section 250.512(c), because
Plaintiff failed to return Defendant's security deposit or the
unpaid interest within thirty days after her surrender of the
premises to Plaintiff and Plaintiff's acceptance of said
premises, Plaintiff is liable to her for double the amount of her
deposit and the accrued interest.
WHEREFORE, Defendant respectfully requests judgment against
Plaintiff in the amount of $870.00, plus double any accrued
interest on this sum since it was deposited with Plaintiff,
II. Violation of the Unfair Trade Practices and
Consumer Protection Law
34. Defendant repeats and incorporates by reference her
averments set forth above in Paragraphs 1 through 33,
35. Plaintiff is engaged in "trade" or "commerce" within
the meaning of the Unfair Trade Practices and Consumer Protection
Law, 73 P.S. Section 201-1 et~, (hereinafter "the Act"),
36. Plaintiff's actions as described herein constitute
unfair or deceptive acts or practices in the conduct of trade or
commerce within the meaning of Section 3 of the Act (73 P.s.
Section 201-3),
37. As a direct and proximate consequence of said unfair or
deceptive acts or practices, Defendant has suffered actual
damages which include, but are not limited to, the following:
a. moving expenses of $100,00
b. a $600.00 security deposit, which she had to pay at her
new residence after wrongfully being forced to move because of
Plaintiff's misconduct,
c. her $435.00 security deposit with Plaintiff, plus
accrued interest thereon, which Plaintiff has failed to return to
her.
d. such other damages as may be proven at trial.
WHEREFORE, pursuant to section 9,2 of the Act (73 P.S.
Section 201-9,2), Defendant requests judgment against Plaintiff
for her actual damages or $100.00, whichever is greater; three
times her actual damages as a statutory penalty; reasonable
attorney's fees; and such other and further relief as this Court
may deem reasonable and just.
III. Violation of the Plain Lanauaae Consumer Contract Act
38. Defendant repeats and incorporates by reference her
averments set forth above in paragraphs 16 and 17.
WHEREFORE, Defendant respectfully requests that, pursuant to
73 P.S. Section 2207, she be awarded statutory damages in the
amount of $100.00, court costs and reasonable attorney fees.
Respectfully submitted,
-....--~~LTli OF PENNSYLVANIA
COUNTY OF: CUMBERLAND
CIVIL COMPLAINT
09-1-02
'~rlF' _...~
Consolidated Properties
400 North Front Street
Wormlaysburg, PA 17043 .
L
VI, .
DEFENDANT: _... .......
r
Margarita McCandless
5265 East Trlndle Road, Apt '2
Mechantcsburg, PA 17055
L
I
.....DllLNal '
01__
Robert V. MANLOVE
- 1507 Market Street
Camp HU1, PA
,_. (7171761-0503 17011-0000
..J
.,
I,
..J
Dockol No,: CV-I,19-95
Dolo Flied: 9/21/95
FIlJHO cue,s I
BEAYINO COSTS I
TOTAL .
AMOUNT
33,50
6,00
DArE PAlO
9/ 21/ 95
9/ 21/ 95
/ /
TO THE DEFENDANT: Tho Obov0l181l1od 1'181111111(s) alksludgment again" YOlJ'or' 440,30 10000hIt wIlh
cosls upon the lollowlng claim (Civil Ilnel mUll Include cMlllon of Ihe IlllUla or ordinance
vtolOled) :
Rent & Late Fees (July and August 1995)
Cleaning Charges
Subtotal
$825.30
$ 50,00
-------
T875.30
($435,00 )
Less Security Deposit
Total Amount Due Consolidated Prope~tles
as of 9115/95
-------.
$440.30
;i
I. Consolidated Propert lesl Carey Twl 99 Vtlflly thll the 'aclll. 'orrh Inlhll compllllnl_lruaand
correcl 10 the bell 01 my knowl8dge, Inlo,"'81I011, and beflel, TIlII 118temtlfllll mlllla lubjecllO lhe panIIlll8I 01
Sec\1on 4904 of Iha Crimea Code (10 PA, S,C,A, 54904) related 10 unlworn '''llIlcatlon 10 IUlhorllln,
(~!tffJ..:'/~n)
PloInlJII'o
AIIomor:
Add'lI"
Tlllpholae:
IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT. NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE
TELEPHONE NUMBER, YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNI,ESS YOU 00,
JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT, .
If YOlJ havo 8 clalm agalnsllha 1'101111111 which II wllhln dlllrlcllulllco /urlldlclIOn and which you Intend
10 ollsll ollha he8rlng, you mUll 11I011 on 0 CORlpllllnllOlm nllhla 0 IIca 0110011 'lva (Il) dayll befora
Iho dAlo 101 'or tho 1I00/lnll, II you lIavo 0 clahn OllohlSllho plolnllll wlllch Is nol willlln t.Illlrlcl Justlco
jurlldlcllon, you may /OlluDllln'o/lIIallon I/om IlIls olf/co os 10 1110 P/ocadU/OII you may 'ollow.
-
;.:: XIII;.'/F
'~J'I
004338-0002I/Januar/5, 1996IDIUKKM/49567
MICHAEL A, SERLUCO t/a
CONSOLIDATED PROPERTIES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-7178 CIVIL TERM
Plaintiff
v.
CIVIL ACTION gA~;
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MARGARITE J, McCANDLESS,
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COMPLAINT PURSljANl' TQ A"'''I:6 233 "D/ AND 29111.;:~ ~ 1~
FOR CU""I:~~IU'" 0,. JtI"l!MENT FeR MaNE, UAMAUES 'JIX::::;
Dafendant
AND NOW, comes the Plaintiff, bV and through his attorneys, Johnson, Duffie, Stewart & Weidner,
and avers as follows:
1. The Plaintiff is Michael A. Serluco t/a Consolidated Propertlas, an adult individual with a
place of business at 400 N. Front Street, Wormlevsburg, Cumberland County. Pennsylvania 17043.
2, The Defendant, Margarite J, McCandless, is an adult Individual residing at 5265 East Trindla
Road, Apt. 112, Machanicsburg, Cumberland Count v, Pennsvlvanla 17055.
3, On or about April 22, 1992, the Plaintiff and Defendant entered into a Lease Agreement,
e true and correct copy of which land the renewal thereunder) is attached hereto as Exhibit. A. and made
a part hereof bV reference.
4.
Said Lease Agreement has not been assigned bV the Plaintiff.
..j..,......"... ,.... A........", I,.. b.." ..."..", .", j."~,,,,JjI
5,
6, The aforesaid Lease land the renewal thereunder) requires Defendant to pay unto Plaintiff
$450,00 par month,
00433I-ooo::!IIII.uory 5, 19961DJUKKM/49561
7,
1995,
Defendant hes failed to maka the required monlhly rental payments from and after July of
8,
Defendant is also obligated to pay late charges In the amount of five (5%) percent per
month,
9, As a result of Defendant's fellure to make the monthly payments, the remaining monthly
payments have become immediately due and payable.
10, Under the terms of the aforesaid Agreement, the Defendant Is also obligated to pay the
Plaintiff the expenses of collection, including attorney's fees of five (5%1 percent of the amount dua or
f500,OO, whichever is greeter,
11 , There Is justly due and owing to the Plaintiff from the Defendant on account of the aforesaid
breach the sum of Nine Hundred Sixty-Two Dollars and Thirty-One Cents ($962,31 I. calculated 81 follows:
Unpaid Rent
5% Late Fees
Attorney's Collection Fee
.440.30
$22,01
$500.00
TOTAL:
$962.31
12. Plaintiff has demanded the total em aunt due, but Defendant has refused and neglected end
stili refuses and neglects to pay the same or any part thereof,
t
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0lM331-00027/PcbnIUY 20, Ill96IDJUKKM/50241
MICHAEL A, SERLUCO t/a
CONSOLIDATED PROPERTIES,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-98 CIVIL TERM
CIVIL ACTION - LAW
Plaintiff
v,
MARGARITE J, McCANDLESS,
Defendant
ANSWER TO PETITION OF DEFENDANT TO STRIKE OR OPEN JUDGMENl
1. Admitted,
2, Admitted In pert. Denied In pert, It is admitted that District Justice Manlova entered
judgment In favor of Defendant. By way of denial, the decision of District Justice Manlovelslrrelevent
to the issues of this cese.
3, Admitted In pert, Denied In pert, It Is admitted that Plaintiff flied an appeal end
subsequently flied a Complaint averring the same facts, By way of denial, the confession of judgment
constitutes a uparate substantive legal right which Plsintlff Is not required to waive by virtue of the
pendency of the proceedings before the District Justice.
4. Admitted,
6. Denied, This averment constitutes a conclusion of law which requires no responsive
plesdlng. By way of further answer, Plaintiff attempted to file the confession of judgment to thallme
term and caption number as the pending appea', but was prevented by the Prothonotary. By way of
further denial, Plaintiff Is entitled to confess judgment as a separate substantive right which cannot be 10lt
by virtue of the pendency of an eppeal from a District Justice decision,
&, Denied, Plaintiff repeats his denials set forth In paragraphs 1 through 15,
004331-OOO2711'tbruuy 20, 1996IDlUKKM/S0241
7. Denied, Pllintlff hIS not wllved Inv right to commence conf..slon of judgment
procllding., BV WIV of further denill, this Iverment constitutes e conclusion of Ilw which r.qulr'l no
responslv. p1..dlng,
8, Admltt.d,
9, Denied, The plrties' most recent renewal of the le..e WIS not executld pursulnt to Inv
HUD S.ction 8 sublidV progrlm, BV w.v of further denial, Exhibit 'A' makll no r.fer.nc. to the f.ct.
.neg.d In this Iv.rment.
10. Denl.d, The regulltions referred to In this Iverment hive no Ippllclbllitv to thl. c..., BV
WIV of further d.nl.I, Plllntlff Iccepted no rent pursulnt to the le..e It issue In this CII. from the S.ctlon
8 rent lubsldV progrlm. BV WIV of further denill, this averment constitutes I conclusion of Ilw which
r.quirel no responsive plelding,
11, Denied, Defendlnt .xecuted I seplrlte confession of judgment CIIUH explllnlng the
ConHquenc.1 of deflult under the lelH,
12, Denied, This everment constitutes I conclusion of Ilw which requires no re.ponslv.
p1'lding,
13, Denied, Defendlnt doe. not belong to env clell protected bV the cited luthorltv, BV WIV
of further dlnlll, It Is Ibsurd to suggest thlt Deflndent could not und.rstlnd the m'lnlng of I Itlt.m.nt
thlt her Income exceeded .10,000 per velr, To the extent that Defendlnt's income Is or WIS below
.10,000 per velr, Defendant has committed fraud in obtllning the laase to the premiHs bV fllHIV
representing her Income level,
14, Denied, This Iverment constitutes a conclusion of law which requires no responslv.
pleedlng. BV wev of further denial, confession of judgment does not violate anvone'a right to Icceas to
the courts,
004331-G0027/Febr1.U7 20, 1996IDIUXKM150241
, 5, Denied, Defendlnt mllntllns Ind his maintllned the .blllty to find living .ccommod.tlon.
elsewhere, Defendlnt represented to Plaintiff that Defendant Is a college student, At .11 times, D.f.nd.nt
hIS m.lnt.ln.d . sufficient level of educltion to understend simple lelle terms,
, 6. Denied, Thll Iverment conltitutel I conclullon of law which requirel no relponalv.
pleldlng,
, 7, Denl.d. Any aVlrage perlon II ceplble of reading thll lelle, elpeci.lly .n Indlvldu.1 who
curr.ntlv .tt.ndl coll.g. or who h.s .ttended college.
, 6, Admltt.d In INIrt, D.nI.d In INIrt, It II .dmltted that HUD hlllublldlzed D.fend.nt'. r.nt
from tlm. to tlm., By WIV of d.nl.l, Defendlnt hll never knowingly tlken Plrt In .ny HUD Section 8
progr.m, By wlY of further denl.I, any execution of .nv HUD /elSe by .ny former emplovee of Pl.lntlff'.
h.1 be.n un.uthorlz.d bV PI.lntlff,
19. Admltt.d In INIrt, D.nI.d In INIrt, It II .dmltted thet HUD haa sublldlz.d D.f.nd.nt'l r.nt
from tlm. to tim.. By wlY of denial, Defendant hll never knowingly tlken p.rt In .ny HUD Section 8
program, By w.y of further d.ni.I, .ny .xecutlon of .nv HUD I.... by .nv form.r .mp/oy.. of Pl.lntiff'l
h.1 been un.uthorlzed bV PI.lntlff,
20, Admltt.d In INIrt, D.nI.d In part, It il .dmltted thlt Defendant executed. renew.,I....
with Pl.intlff on or .bout Merch 17, 1995, BV WIV of denl.I, Pllintiff's agent, C.rey Twigg, informed
Defend.nt prior to the execution of the Merch 17'" lease that Pllintlff hid never .greed to the terms of
eny HUD Section 8 lelle end would not sign e HUD Section 8 lei Ie, Plaintiff Informed Defend.nt thet
D.f.ndent would be responsible for In of the terml In Plllntlff'l lellle,
21, Admitted In INIrt, Denl.d In INIrt, It il denied that Carey Twigg ever r.prennt.d to
D.f.nd.nt th.t PI.lntlff would plrtlclplte In the Section 8 progr.m. It il admltt.d that Plaintiff one. ag.ln
demlnded the full un subsidized rent from Defendlnt. It Is Idmltted thlt Plllntlff dem.nd.d th.t
D.f.nd.nt v.c.te the premises IS . result of Defendlnt'l f.llure to PlY rent In vlolltion of IlIn t.rml,
Including Defendlnt's possession of Inlmals In the aforesaid premlles.
004331-oocn7IFcllNlry 20, 1996IDJUKKMI50241
'2. Denlad, Pllllntlff never led Defendllnt to believe that Plaintiff would partlclpata In the
Sactlon 8 program, BV wav of further denial, Defendant executed Plaintiff's lease despite being Informad
that Plaintiff would not participate In the Section 8 program,
23, Denlad, Pllllntlff never represented to Defendant that Plaintiff could participate in the
Section 8 program. BI' wav of further denial, Defendant did not reasonablv reiI' upon anI' auch
repre..ntatlons of Pllllntlff. BV wav of further denial, Plaintiff never informed Defendant that Defandant
could have animals on the premises In violation of the le88e,
24. Denlad, This averment constitute. a conclusion of law which requires no re.ponalva
pleading.
25, Denlad, This averment constitutes a conclusion of law which require. no ra.ponalva
p1aadlng. BV waV of further denial, to the extent that Plaintiff had engaged In anI' ra/atlonahlp with HUD
or Section 8, Plaintiff hlld good cause for termination, Including Defendant's lease vio/ationll,
26, Danlad, Defendant'slessa was properlv termlnllted pursuant to Defendant'.'ea.. violation.
a. wan a. Dafendant'. fllllure to pal' rent, BV wav of further denial, Plaintiff had never authorized anI'
participation In the HUD Section 8 program.
27, Denlad, Defendent was not entitled to receiva plIvments from HUD in light of Defendant'a
lea.. violation.. BV Will' of further denllll. Defendllnt was Informed In March of 1995 that Plaintiff would
not sign e HUD lell.. or receive pavments from HUD,
28. Danlad, At 1111 tlmea. P1l1intlff Informed Defendllnt that Defendant WII' aollllV obligatad to
make the Ilia.. pavments, BV Will' of further denllll, Defendllnt wlllved its right to reiI' upon HUD
pevments bV remllinlng in the premises and signing Pllllntlff's lease after being informed thet Plaintiff
would not IIccept HUD conditions,
29. Danlad, Plaintiff repeats Its denials of paragraphs 1 through 28.
00433~7/Feb.....,. 20, I !I96IDJlJXKMIS0241
30. Denied, Plaintiff hlSangaged In no deceptive behevlor. By WlY of further dlnlll, the
Inclusion of I confession of judgment clause In I lelse cannot constitute e deceptive prlctlce, especllUy
In light of Defendant's signature Immediately below that clause,
WHEREFORE, Plaintiff respectfuUy requests that this Court dismiss Defendant's Petition.
ANSWER TO COUNTERCLAIM
31. Admlttld,
32, Admlttld In part, Dlnlld In part, It Is admitted that Plaintiff hss refuHd to rlturn the
security deposit, By way of denial, Plelntiff has just cause for refusing to return the security deposit,
Including nonpayment of rent and damage resulting from animal occupancy,
33. Denied, Plaintiff Informed Defendant that Dafendant would not receive her security deposit,
By way of further denial, the section quoted by Defendent hIS no application In light of Defendsnt'S'IIH
vloIltlons,
WHEREFORE, Plaintiff respectfuUy requasts that this Court dismiss Dafendant's Countercllim.
34. Denied. Plaintiff Incorporates tha denials of paragraphs 1 through 33.
35. Denied, This avarment constitutes ! conclusion of 'ew which requires no responelvI
pleading.
36. Denlld, Plaintiff has engaged In no unfair or deceptive acts or practices, By way of further
denial, the mere inclusion of clause giving certain remedies to the Plaintiff cannot constitute a deceptive
practice, espscllUY where Defendant has signed Immediately below that clause.
37. Denied, Defendant Wa! obligated to Incur moving tIlCpense! regerdleu of eny actions of
Plaintiff, By way of further denial, Defendant Is required to maintain a security deposit regardless of the