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Upon verification, that Plaintiffs have vacated the said premises known as SO West
Louther Street, Carlisle, Pennsylvania, the Intervening Defendant Sunshine shall pay the sum
of Thiny-five Hundred Dollars ($3,SOO.00) to Plaintiff.
The above referred payments, totalling the sum of Seven Thousand Dollars ($7,000.00)
represent consideration to Plaintiffs for the Plaintiffs vacating said premises on or before
October IS, 1996 and no later than October IS, 1996.
D, Plaintiffs hereby agree that they waive any right to any and all notices,
stat\ltory or otherwise, regarding eviction from the premises if they hold over after October
15. 1996 and that Plaintiffs' purponed possession of the property after October 15, 1996 will
be considered a trespass.
E. Time is of the essence of this Stipulation Agreement.
F. Accordingly, if Plaintiffs purpon or attempt to hold possession of the
premises after October 15. 1996, Plaintiffs further agree to be responsible for any and all
attorney's fees. costs and/or other incidental or consequemial damages incurred in removing
Plaintiffs from the premises as trespassers.
Q, The Panies agree to enter into a mutual release simultaneously with the
execution of this Stipulation. This mUlUallease is attached as Exhibit "A" to this Stipulation.
H, The Panies agree that Plaintiffs will cause their legal counsel to deliver
to Defendant Schlusser's legal counsel an original executed Praecipe. which shall in the form
attached as Exhibit "B" in order to permit the Defendants to cause this underlying Declaratory
Judgment Action to be settled, satisfied and dismissed with prejudice and so marked on the
Prothonotary's record which Praecipe shall be executed and presented simultaneously with the
execution of this Stipulation.
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CERTIFICATE OF SERVICE
I hereby certify that a copy of tlv: foregoing Stipulation of the Parties was served this
date by depositing same in the Post Office at Carlisle. PA, first class mail, postage prepaid.
addressed as follows:
Robert L. O'Brien. Esquire
O'BRIEN. BARIC & SCHERER
17 West South Street
Carlisle. PA 17013
(717) 249-6873
Richard C, Rupp. Esquire
RUPP AND MEIKLE
The Wagner Building - Suite 303
3SS North 21st Street
Camp Hill. PA 17011
(717) 761-34S9
MARTSON, DEARDORFF. WILLIAMS & OTIO
By ~\r-
Ivo V. Otto, ill, Esquire
Ten East High Street
Carlisle. PA 17013
(717) 243-3341
Attorneys for Intervenor
Sunshine Development, Inc.
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MlITUAI. REI.EASE AND SE'I'TI.EMENT AGREEMENT
TIllS AGREEMENT, executed this day of September, 1996, by DOMa
Francisco and James Rosario tldJb/a Beauty and the Beach and James E. Schlusser, is a murual
release intended to extinguish all rights and claims by Donna Francisco and James Rosario
against James E. Schlusser, and to extinguish all rights and claims by James E. Schlusser
against Donna Francisco and James Rosario as follows.
WHEREAS. Donna Francisco and James Rosario filed a Complaint for Declaratory
Judgment against James E. Schlusser for the interpretation and enforcement of an alleged lease
within the real estate premises known as SO West Louther Street. Carlisle, PA;
WHEREAS, James E, Schlusser filed a New Maner Counterclaim against Donna
Francisco and James Rosario for certain sums representing rent and eviction, which claims
arose under a Lease Agreement for same premises.
WHEREAS, all Parties desire that all matters in controversy among them be resolved
amicably without the necessity of further legal proceedings,
NOW, THEREFORE, with the intent to be legally bound and in consideration of the
execution of a Stipulation among the Parties and this Murual Release and SenIement
Agreement for other good and valuable consideration. the Parties agree as follows:
1. By this General Release DOMa Francisco and James Rosario t/d/b/al Beauty
and the Beach do. for themselves. and each of them. their heirs, executors, assigns, release
and forever discharge James E. Schlusser from any and all claims, demands, damages, actil)ns,
suits, attorney's fees, and costs. obligations or liabilities of any kind, known or unknown,
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prior to or including the date of this Mutual Release, relating to any and all losses, injuries and
damages incurred by them or either of them which are or could have been complained of
arising out of the aforesaid Declaratory Judgment litigation, or the Lease Agreement which the
Parties had entered into, or any other matter relating to the premises known as SO West
Louther Street, Carlisle, PeMSylvania, or any other matter, known or unknown, from any
time heretofore to the present.
By this General Release, James E. Schlusser, does for himself, his heirs, executors and
assigns, release and forever discharge Donna Francisco and JameJ Rosario from any and all
claims, demands, damages, actions, suits, attorney's fees, obligations or liabilities of any kind,
known or unknown, prior to or including the date of this mutual release, relating to any and all
losses. injuries and damages incurred by him, which arc or could have been complained of
arising out of the aforesaid Declaratory Judgment litigation or the Lease Agreement, or any
other matter relating to the premises known as 50 West Louther Street, Carlisle, PeMSylvania,
or any other matter, known or unknown. from any time hereto from to the present.
This Mutual Release is a compromise of any and all rights or claims by Donna
Francisco and James Rosario against James E. Schlusser, and any and all rights or claims by
James E. Schlusser against Donna Francisco and James Rosario.
The execution of the Stipulation or this Mutual Release and Settlement Agreement shall
not be construed as any admission of liability or wrongdoing on the pan of either Party and
liability for each Parry is expressly denied.
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By this Mutual Release, the panies hereby authorize their respective attorneys to
execute the aforesaid Stipulation to settle the litigation and for Donna Francisco's and James
Rosario's attorney to execute a Praecipe to Dismiss the litigation, which Praecipe shall be
delivered to James E. Schlusser's attorney.
The Parties agree to cause their respective attorneys to file all necessary documentation
with the Cumberland County Coun of Common Pleas to cause the litigation matter known as
Donna Frnncisco and James Rosario v. James E Schlusser, No. 96-217 Civil Term,
Declaratory Judgment Action. to be dismissed and marked satisfied, settled and dismissed with
prejudice.
IN WITNESS WliFREOF, intcnding to b: lcgally bound. the undersigned have set
their hands and seals on the day and ycar ftrst above wrincn.
WITNESS:
DONNA FRANCISCO
JAMES ROSARIO
JAMES E. SCHLUSSER
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DONNA FRANCISCO and
JAMES ROSARIO,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
v,
NO.: 96-217 CIVIL TERM
JAMES E. SCHLUSSER,
DECLARATORY JUDGMENT ACTION
Defendant
ORDER
AND NOW, this ~day of September, 1996, upon consideration of the attached
Petition to Intervene of Sunshine Development, Inc,. said Petition is hereby granted and the
above caption shall be amended to include Sunshine Development, Inc.. as a Defendant.
BY THE COURT,
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5. The proposed Intervenor, Sunshine Development, Inc., is a Pennsylvania
corporation with an address of P.O. Box 216, Waynesboro, Pennsylvania 17268,
6, The proposed Inlervenor, Sunshine Development, Inc., had entered into an
Agreement of Sale to purchase the propeny known as 50 West Louther Street, Carlisle,
Pennsylvania from Defendant, James E. Schlusser, by an Agreement as amended dated August
15, i995. A copy of said Agreement and Amendment is attached as Exhibit "B".
7. The proposed Intervenor, Sunshine Development, Inc., and Defendant, James
E. Schlusser, had allowed the Agreement to expire on or about April 1st by reason of a failure
of conditions that were needed to be met and the filing of the Plaintiffs' Declaratory Judgment
Action. However, believing that the Panies have reached a settlement among lhe Plaintiffs.
Defendant Schlusser and the proposed Intervenor Sunshine Development, Defendant Schlusser
and the proposed Intervenor have agreed to enter into an Addendum No.2 to the Agreement
of Sale thereby reviving the Agreement of Sale. Addendum No.2 is attached as Exhibit "e".
8. Therefore. the proposed Intervenor. Sunshine Development, Inc., has an
equitable interest in the propeny known as 50 West Loulher Slreet. Carlisle, Pennsylvania,
and is an indispensable Pany to this Declaratory Judgment Action.
9. Ivo V. Otto, III, counsel for the proposed Intervenor has contacted counsel for
the Plaintiff, Roben L. O'Brien, and counsel for Defendant, Schlusser. Richard C. Rupp and
both of those Panies consent to the intervention of Sunshine Development, Inc. as a Pany
Defendant.
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DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
~~:. I CIVIL TERM
W'V-' J.I'?
V.
JAMES E. SCHLUSSER,
Detendant
DECLARATORY JUDGMENT ACTION
NOTICE
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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) da~'s after this complaint and notice are served, by
entering a written appearance personally or by an 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, tr.e
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.
The Court of Common Pleas of Cumberland County is required by law
to comply with the Americans with Disabilities Act of 1990. For
information about accessible facilities and reasonable accommodations
available to disabled individuals having business before the court,
please contact our office. All arrangements must be made at least 72
hours prior to any hearing or business before the court. You must
attend the scheduled conference or hearing.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
.I OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, Pennsylvania 17013
Telephone Number (717) 240-6200
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DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-
CIVIL TERM
V.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
AND NOW, this
ORDER OJ' COURT
day of
I 1996, upon
review ot the at~ached Complaint, a hearing is set in this matter for
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day of
I 1996 at
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a.m./p.m. in Courtroom #
, Cumberland County Courthouse, 1
Courthouse Square, Carlisle, Pennsylvania, 17013.
BY THE COURT,
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DONNA FRANCISCO and
JAMES ROSARIO,
Plaintirts
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNT~, PENNS~LVANIA
NO. 96-
CIVIL TERM
V.
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JAMES E. SCHLUSSER,
Defendant
: DECLARATOR~ JUDGMENT ACTION
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ACTION FOR DECLARATORY JUDGMENT
1) Plaintitfs are Donna Francisco and James Rosario, adult
individuals having a business location known as Beauty and the Beach
located at 50 West Louther Street, carlisle, Pennsylvania.
2) Defendant is James E. SChlusser, adult individual with a
mailing address of 61 Creek Road, Carlisle, Pennsylvania.
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3) Defendant is the purported owner of record of the real
estate comprising 50 West Louther Street, where the Plaintiffs'
business is located.
4) This matter is brought before the Court pursuant to the
Declaratory Judgments Act, 42 Pa.C.S.A. 5 7531 et seq.
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5) Plaintiffs and Defendant entered into a landlord/tenant
arrangement during the Summer of 1994. The Plaintiffs were interested
in relocating a hair styling business to operate in conjunction with a
tanning salon. The tanning salon had been located, for a number of
years, at the property owned by Defendant. Plaintiffs had purchased
the equipment and business operation from ~he fo~er owners.
6) Plaintiffs and Defendant negotiated an agreement to expand
and remodel the existing tanning salon business. During the course vf
the negotiations, the parties acknowledged that the terms of the lease
agreement would be for a period of 36 months. Based upon the
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representations, Plai~titts undertook extensive ettorts in remodeling
and, in tact, 4tilized Detendant to provide some ot the labor and
materials.
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7) Oetendant prepared a written lease, a copy ot which is
attached hereto marked as Exhibit "A" and incorporatad herein by
reterence, and presented same to Plaintitts. When Plaintitt~ pointed
out to Detendant that the lease term was limited to a year, Oetendant
agreed that he would prepare d moditication to provide tor the 36
month term that the parties had orally agreed to.
8) In December, 1994, the parties agreed that the balance due
Detendant tor labor and materials provided t~r the Plaintitts'
remOdeling would be repaid by a $500.00 payment and payments ot
$100.00 per month tor the upc~ming 27 payments. A copy ot same is
attached hereto marked as Exhibit "B" and incorporated herein by
reterence. During this time trame, in the latter halt ot 1994,
Oetendant continually reassured Plain~:fts that their lease term would
be through August, 1997.
9) Thereatter, Defendant was approached by a prospective
purchaser who wished to acquire Defendant's land as part of the
expansion ot the Carlisle Post Office. In anticipation of the
possible sale ot his business, Defendant did an about tace and by
Memorandum dated July 24, 1995, attempted to assert that the terms ot
the lease would expire depending upon his ability to sell the
property. A copy ot this Memorandum is attached hereto marked as
Exhibit "e" and incorporated herein by reference.
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10) Plaintiffs had their attorney send a letter dated September
8, 1995 to Defendant outlining their position that the lease did not
expire until 1997. D~fendant failed to respond to Plaintiffs'
attorney or to Plaintiffs directly in reference to their claim. A
copy of this letter is attached hereto marked as Exhibit "0" and
incorporated herein by reference.
11) News stories continued to surface in the press about the
Post Office project and by letter dated December 15, 1995, Plaintiffs'
attorney once again wrote Defendant in reference to the situation with
Plaintiffs' lease. A copy of this letter is attached hereto marked as
Exhibit "E" and inc::lrporated herein by reference.
12) Despite the offer to sit and talk with Defendant, Defendant
did not attend the December 19, 1995 meeting.
13) Thereafter, Defendant's attorney, on or about December 30,
1995, served the attached Exhibit "F" upon Plaintiffs.
WHEREFORE, pursuant to the Declaratory Judgment Act, Plaintiffs
respectfully request that the Court:
A) convene a hearing and take testimony as to the term of
the lease agreement between Plaintiffs and Defendant for the property
located at 50 West Louther Street, Carlisle;
B) upon determining that the lease agreement extends to
August, 1997, enjoin the Defendant from terminating the Plaintiffs'
rights as of January 31, 1996: and,
C) provide such other relief as is just and equitable.
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I verify that the statements made in the foregoing petition
are true and correct to the bast of my knowledge, information and
belief. I understand that false statements herein are made subject to
the penal~ies of 18 Pa. C.S. ! 4904, relating to unsworn falsification
to authorities.
DATE: ~~- 1'1 {qq<." ("'6.. '2 \'j- "
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DONNA FRANCISCO
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DATE:
JAMES ROSARIO
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LEASE !\GilEEMENT
MADE THIS lsc day of September, 1994, between James E.
Schlusser nereinaf':er Lessor, AND Donna Francisco and James Rosarie.
tradeing and doing business as Tropical Sunsations, hereinafter
Lessees.
1. PRE:-lISES. Lessor, in consideration of the rents and
covenanCs hereina~ter set forth, does demise and lease unto
Lessees, to be used as a Sun Tanning and Beauty Solon, the premises
sicuata in the Bcr.'lugh of Carlisle, County of Cumberland, and
Commonwealth of Pennsylvania, known and designated as follows:
A Commercial unit located at 50 West Louther Street,
Carlisle Cumberland County, Pennsylvania.
with the following improvements:
2. TERM or LEASE. To have and to hold by Lessees subject
to the conditions of this Agreement for the term beginning on the
1st day of Sepcember 1994, and ending on the 31th day of August
1995.
3. RE:I':'. !n consideraeion of '.~hich Lessees agree to pay to
Lessor for the use and occupancy of the premises the sum of
Seven Thousand Eighty and 00/100 (Si,OBO.OO) Dollars, lawful money
of the United Staces, payable as follows: rive aundred Sixty rive
and 00/100 (SS65.00l Dollars for two months, and Five Hundred Ninty
Fi'Te and 001100 (SS:l5.00l for ten months. with the first
installment due and owing for the first month upon the signing of
this Agreement, and on or before the first (1st) day of each
monch for each successive month during the above term. If Lessees
fail to pay the rent due and owing by the first day of the month,
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a late fee or Three Dollars (S3.00) per day will be due and owing
for each day t~ereafter until the rent is paid in full as
liquidated damages for late payment. If Lessees pay by :nail,
Lessees are responsible for any delay in receipt by Lessor of such
payment. Lessees shall pay to Lessor ~~enty ($20.00) Dollars for
any check retur~ed by Lessor.
4. SE:C:.JRI~'! AND DAMAGE: DEPOSIT. (XXXXXXXXXXXXXX) Lessees
have upon the signing of this Agreement deposited with Lesser the
additional sum or xxxxxxxxxxxxxx and 00/100 (SxOO.OO) Dollars as
security fer the ~ull and faithful per~ormance by Lessees of the
ter.;ns, conditions ar.d covenants of this Agreement on Lessees' part.
Said deposit wil: be refunded to Lessees after the termination of
this Agreement un':'ess Lessees should be in default, or should
othe~~ise violate the terms of this Agreement, for which the said
amount may be uti:i:ed and credited against any amount as may be
determined to be due Lessor.
5. CONDIT:CNS OF PREMISE:S.
a) The premises are to oe ~ept in a clean and sanitar/
condition and all ashes and garbage wh~ch may accumulate thereon
during the term are to be removed by Lessees at least once a week.
b) A:: garbage must be placed in bags or containers,
and no more than two (2) regular si:e bags may accumulate until
disposed of. All bags placed outside :nust be In a sealed container
unless it is placed at curb no more than twelve (12) hours prior
to SCheduled pickup.
c) The premises are to be kept and maintained in as
good repair and condition as at present, and at the expiration of
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this Agreement, they are to be surrendered in the like repair and
condition, natural wear and tear caused by the elements and damages
happening by ~ire, storm or other casualties only excepted.
Lessees shall not drive nails or tacks into the woodwork or
ceilings or use adhesive type hangers anywhere on the premises, or
allow the same to be done.
d) Las sees shall be responsible for all repairs not
exceeding Fi!:teen (S 15.00 Dollars. All repairs must be
repor~ed to and approved by Lessor.
e) Lessees shall be responsible for the mowing and
trimming of the lawn on the premises and proper discollal of
clippings.
f) Lessees shall be responsible for the removal of snow
and ice from the public sidewalk adjacent to their unit and all
private sidewalks leading to their unit, within 24 hours of its
accumulation.
g) Lessees shall be responsible for the following
items: light bulb replacemenc, smoke detector maintenance and
replacement of battery, (Use the very best battery as it will save
you in the long run. Cheap batteries 'oIill not work at all or for
only a shcrt time.), unclogging of plumbing linos, replacement of
electrical fuses, refilling and inspection of fire extinguisher,
exterrninacing if needed, exte~inating of neighboring units Lf you
are the cause excessive pest problems, and reporting all leaks and
dripping faucets.
h) Lessees may request Lessor to make repairs as
outlined in 5-g or Lessor may do so if problems are unattended.
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Charges for such repairs will be $15.00 per visit and S15.00 per
hour after the first half hour plus all material requir'!d. Such
items will be deduc<:ed fr:lm security deposit if not paid '",hen
invoiced.
il ~o fixtures or appliances shall be removed and
replaced with ~essees' own ~ixtures unless as outlined in paragraph
5-j below. (such as ceiling fans or air conditioners)
j) Any alterations, construc<:ion of any kind or nature
whatsoever, demolition, or change in the premises, whether minor
or major in charac<:er, are prohibited unless Lessees first obtain
consent from Lessor setting forth the nature and scope of said
repairs and alterations in '",ri ting. In any event any repair,
additions or added amenities shall become the property of the
Lessor unless Lessor !?er:ni':s their ramo"al, at the expense of the
Lessees. In such case, the premises is to be returned to the exac<:
condition as it was prior to any alterations.
k) Lessees shall be responsible for the repair,
replacement and !?r~!?er ~aint9nance __ all air conditioning
equipment, exhaust fans, adver~ising signs, or other items related
to operating a business.
1) Lessor, or his chosen representative, shall have
the right upon reasonable notice to Lessees, to enter the premises,
wi th or 'oIithoue !?rasence of the Lessees, for purposes of being
assured the prami"!es are beir.g properly cleaned, repaired and
maintained.
m) Lessor, or his chosen representative, shall have
the right. upon reasonable notice to Lessees, to enter the premises
Ad
December 14, 1994
Beauty and the Beach
50 West Louther Street
Carlisle, PA 17013
Dear Jim and Conna:
This let~er is to confirm our conversation of Dece~er 5, 1994
concerning the amount due for remodeling.
The amount of 5500.00 shall be paid as soon as possible and
the balance of 52700.00 to be paid as an additional amount of rent
of at least 5~00.JO per month until paid off.
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Amendment of Lease
The current ~onthly rental rate shall be increased the amount
of one hundred (5~00.001 dollars over the amount of the current
monthly rate :or the upcoming twen~y-seven payments. The current
rate with the incr9ase will be six hundred ninety-five (5695.00)
dollars for the duration of the current term. This increase is to
cover amounts incurred for remodeling.
Agreed James Rosario
Agreed Donna =rancisco
Agreed James Schlusser
Sincerely,
James E. Schlusser
P.S. I will not charge for changing the locks or for the keys.
However, if future changes are required, I will need to charge you.
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O'BRIEN. BARIC d SCHERER
17 WUI Soulh Sl'tll
C.Jrlislt. Pennsylvanra 170lJ
Sleven J. 'Fishman
01 Counsel
Robert L. O'Hnen
DavId .~. Bane
J{iehaei A. Scherer
(717) 149.687]
F.~,'( (7/7) 149.j755
September 8, 1995
James E. Schlusser
61 Creek Roaa
Carlisle, Pennsylvania
17013
RE:
50 West Louther Street
Carlisle, PA
Dear Mr. Schlusser:
This of~ice represents Donna Francisco and James
Rosario, who lease property from you.
I have reviewed the ~atter with Ms. Francisco and
certain relevant documents pertaining thereto and have advised
her that her lease does not expire until 1997. Accordingly,
unless you are ~illing to purchase the balance of the lease te~,
she and Mr. Rosario ~ill not agree to your demand for an early
termination. We fully expect that you will disclose to your
prospective purchaser, our position in reference to the lease
tarA should he wish to consider the same in light of his
anticipated use of the property. As a matter of law, the
purchaser takes the property subject to all existing leases.
Should you wiSh to discuss purchasing the remainder of
their lease, please contact me.
Ve~i truly yours,
O'BRIEN, BARIC' SCHERER
~ .,
~_.' '_ ...... I '-'--
. . ,. "-"--
Robert L. O'Brien, Esquire
RLO/au
Enc
cc: Donna Francisco
File
J)
;II;)
O'ORIEN, OARIC & SCHERER
17 Wu" S<Jwll SItUt
C~,lisl.. P.nllsY/\'QII/Q 1701]
St.v.n I: FishnrQn
Of Counstl
Robar L. O'O"ell
DQ"ld .1. Ba"c
.\liLllacl A. S,lIera
(7171149.687]
FAX (n7J 149-5755
December 15 1995
James E. Schlu;;e~
61 Creek Road
CJrlisle. Penns~ iv;),nia 1 ':'0 13
RE: ~n \\'e<t L(luthe~ Stree:
Carli'ie. Penn<vl\':mia
Dear ~(r. Schlus;~~:
It is my :lnderstanding that your property on West Loulher Slreet will Je sold
sometime in Fe~rJar:', It is also my understanding that you have failed to disclose to the
purchaser the pOSition taken by my c1ie::ts in reference to the existence and term of their
lease, While you have agre~d to suspend repayment of Ihe balance due you for work done
on the premises you ha\'c~ not responded to my letter of September 8. 1995.
~ly clients are curremly experiencing problems in the conduct of their business
occasioned by stories in the press of the pOSt office project. A location in the downtown
Carlisle area is extremely important for their .:u~tomer base. In the event the timing of the
project is going :0 impact on their current lea;e they must have adequate time to prepare
for relocation. C:Jrreml\'. in re\'iewin~ their iinancial records. the\' found that the rent
checks delivered :0 \'Ou have not been - ne!:ot:aletl. \Iv clients have' not idea whv yOU are
doim: thb as vm; have .:ho;en to rer:1:lin -;iient ahout this whoie maner. In short. your
sile::ce is deeine..: ;),n ac.:~;J:;:n.:~ ~y Y"u IIi 7.\ .:iien:s posilion that their lease extends to
September. 199-.
I would s>.:ggest thai you meet Ilnh my cliems in my office at 3:30 a.m. on T'esday,
December 19, 1905 to tlis.:uss this m:llte~. In the event you .:huose not 10 altend.:,e will
have no alternative but to .:omac: the pru;pectlve purchaser tlirectly in reference to the
lease provision.
Sincerely,
RLO/jc
cc: Dunna Franciso
File'
~d~
Robert L. O'Brien. Esquire
""I' nll~':f"'Jifrl~~'.I:r
E
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l..r\W I)FFfCES
RUPP AND MEIKLE
HUBERT I; RU'" JR
"ICHAND t' 11I':P'
,\ PIlo,t.s:SIONAI.. (OJlJPOIl"nON
rnr: 'N"\i,""ER 1t\JILDI~ll it..:ITE JO:)
1S\ 'iOltTlI ~:il' '.ITRtt,.
C'\.\IP )iILL. PA l7011
ANN 'ltIKLE tlllh:,Uo", ,Ill"" ,.:\
i-:"l:'l :'~l UU
"'AILIN() .r\QOU.sS
'OlJOXJi'
t;.U.." HILI.., PA 1:00...);;1811
Ru,r,,;c i i'1':'\ :':10.0:1.14
D.cemDe~ 29, 1995
Robert L. O'Brian. Esquire
O'9ricn. Baric' Scharer
17 West South Street
Carlisle, PA 17013
Re: James E. Schlusser
Our File Mo. 5-3100.01
Dear Mr. O'Brien:
I re9resene James E. Schlusser and LeighAnn Schlu8ser. his
wite. I am in receipt ot your t~o letters to James E. Schlusser
who owns the property locat.~ at 50 West Louther Street, Carlisle,
in which your clients. Beauty ~nd the Beach, are tenants.
Please be advised that Mr. fichlusser does not accept your
interpretation ot the amendment to the lease that there is an
extension to February or March of 1997. To the contrary, the
amendmen-c was to pay for improv'!ments at the monthly rate of
SlOO.OO in the fo~ of rene through the end of the current te~.
The current te= of the lease daead 3epeember 1. 1994 ended on
August 31, 1995. The amendment to ~h~s lease occurred in writing
on December 14, 1994. The amendment is clear. However, there was
no agreement to handle any unpaid balance of the improvements.
There was no automatic renewal in Mr. Schlusser's lease with
your clients: ~ 1'~g pa::"":.:.s!: ha.:a ~ot rnu~~al:y antared into an
extension of the lease. Itr. Schlusser offered a three month
extension of the lease (and month to month thereafter) by his
letter dated July 24, 1995, which offer was never accepted by your
clienes and is *ithdrawn. Therefore, there is no automatic renewal
and the lesso:' opts to tenlinate said lease. 'lour clients are
holding over as "at will" tenants.
Please find enclosed the Motice to Quit which is also being
delivered to your clients. '(our clients are hereby notified to
quit and vacate Mr. Schlusser's property on or before January 31,
1996.
.
,-- "~:~".~
1=
I . - / '7f,.,
,4 /1
Robert L. O'Brien, Esquire
December 28, 1995
Page Two
In any event, if there were an extension, which we disagree
with completely, your clients have not paid the full rent, which
rent was increased by r~e additional monthly sum of $100.00 to halp
defray the costs of improvements made by Kr. Schlusser to his
building at 50 West Louther Street. Therefore, your clients are in
default in the payment of rent, and as the lease provides an
automatic te~ination clause, our client is hereby exercising said
te~ination clause by reason of the default in rent. Again, your
client:s have to .January J 1, 199~ t:n ~..li 't t...~Q P:"'3~!.~~!J.
Please be advised that if your clients hold over after January
31, 1996, Kr. Schlusser intends to institute legal action to evict
and intends to collect the reasonable attorneys' fees incurred in
such legal ac~ion with your clients.
Mr. Schlusser proposes to your clients that if they have
vacated the premises on or before January 31, 1996, he will agree
that there will be no sums due for any prior improvement work which
they had agreed to pay; he will waive and forgive the $100.00 per
month which has not been paid but otherwise is dUe. He will waive
the rent for January 1996.
Hovever, if your olients do not vacata the pramises in
acoordance with tha notica to quit, Kr. Sohluaaer intands to hold
your olients :aaponsihla for all rants, costs, raasonahle
attorneys' fees in oonneotion with any litigation with your
cliant5, inoluding but not limited to, any and all coats, damagas,
attornays' faes and loss of orotits which ..y be oaused by your
clients affecting tha sala of this building by Hr. Schlussar.
We look for~ard to an amicable termination of this leasehold
.oiiIi tl1 ~''::Jur r.:l.:.ents' '/:lca1: i.~r:: t:~G :,r~!"L!.!::J~ c~.J:!~'.~'!::-~' :!~, 1995.
RCR/las
Very t.. ~y yours., '-7
,../ ,
t< ,'L " k.( (, .~._
Richard C. RUPP' /P
,
,
cc: Mr. James E. Schlusser
Enclosure
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NOTICE TO QUIT
NOTICE OF TERMINATION
TO: JAMES ROSARIO
DONNNA FRANCISCO
TIDIBIAI BEAUT"i AND THE BEACH
46 WEST LOUTHER STREET
FIRST FLOOR
c;.RLISLE, 'i'A 17013
NOTICE IS HEREB"i GIVEN THAT YOUR TENANCY IN THE PREMISES
LoaTED AT 46 WEST LOUTHER STREET, FIRST FLOOR, BOROUGH OF
CARLISLE, COUNTY OF CUMBERLAND, STATE OF PENNS"iLVANIA, IS
TERMINATED AS OF JANUARY 31, 1996.
DEMAND IS HEREBY MADE THAT YOU VAaTE AND REMOVE FROM THE
PREMISES AND DELIVER UP POSSESSION 1'0 THE UNDERSIGNED ON OR BEFORE
JANUARY 31, 1996.
THIS NOTICE IS INTEllDED TO COMPL'l WITH THE PROVISIONS OF
PENNSYLVANIA LANDLORD TENANT STATUTE.
DATED: DECEMBER 29, 1995
JAMES E. SCHLUSSER, LANDLORD
AI?'
, '.t1t..u'..oArAi\l..~fNr)()C~""1 ILIA'.. I ...
(~<)I/I\l91C1t...I.'O,\M
1__C6'I!.f)IQI\)lA....
11111
AGRFE'\fFNT OF 'iAl E
TIllS AGREEl\1EN1" of sale is entered into this 15th day of August, 1995. by and between
JAl\lES E. SCHLUSSER. 61 Creek Road. Carlisle Cumberland County, Pennsylvania. hereinafter
called "Seller", and SUNSHINE DEVELOPl'vlENT, INC., a Pennsylvania corporation, P. O. Box
216, Waynesboro, Pennsylvania. hereinafter called "Purchaser"
IT IS MUTUALLY AGREED AS FOLLOWS:
I, The SeUer agred to seU. grant and convey to the Purchaser. and the Purchaser agrees
to purchase and accept the conveyance of the following described real estate situate in Carlisle.
Cumberland County, Pennsylvania. bounded and described as follows:
Description of property: See Exhibi~ "A" attached.
2. Purchaser agrees to pay the sum of S266,500,00 to the Seller as the full purchase
price and consideration for said premises. payable in cash, unless otherwise herein provided. at
s~nlement of this transaction as scheduled and provided herein below.
3. Subject to the conditions set forth in paragraph 7 hereof. final settlement of this
transaction shall be made at the office of MARTS ON. DEARDORFF, Wll.LIAMS &. OTTO. 10
East High Street, Carlisle, PeMSylvania. and shall be made on or before February 29, 1996, at which
time of settlement the Seller shall tender to the Purchaser a properly drawn and executed deed of
special warranty, conveying to the Purchaser a good and marketable title in fee simple, clear of all
encumbrances, except easements or building and use restrictions visible on the ground or of prior
record.
4. AU real estate taxes for the current year shall be prorated between the parties to date
offinal settlement. county and borough or township ta.xes on a January lto December 31 year basis
and the school tax on a July Ito June 30 basis. Pennsylvania Realty Transfer Tax and any other sale
or transfer taxes to be paid equally by Seller and Purchaser. The Purchaser shall be responsible for
any additional Pennsylvania Realty Transfer Tax imposed 011 any assigrunent of tllis Agreement.
5. The Seller assumes the risk of loss by lire or other casualty until transfer of title and
agrees that the property shall remain in substantially its present condition until date of settlement.
reasonable wear and tear excepted, and if it is not, the Purchaser may rescind this contract.
6. Should the Seller fail or refu~e to convey as hereinafter provided in addition to any
other remedies at law or in equity the Purchaser may require the return of the hand money paid and
reasonable title examination expenses incurred by the Purchaser.
For the perfonnance of this Agreement and intending to be legally bound hereby, the parties
bind themselves. their heirs. personal representatives, successors and assigns, as witness their hands
and seals the day and year first written above.
c^-h,'&/l- ft(311
7. Settlement (1flhi~ lran~acti(1n ~hall he contingen(upon the following
a. Agreement between I'urcha~er and (he United Slate~ government for lea~ing of the
property by the US I'o~tal Service;
b Receipt of all regulatory approvals from the Borough of Carli~le and other relevant
a!!encie~ for the development of the property consistent with ~ubparagraph 7a herenfincluding, hut
nol limited to. conclusion of arrange men IS between Buyer and the Borough ofCarli~le for the lease
ofapproximatcly 40 parking ~pace~ on the north side of West Loulher Street.
8. Seller acknowledges Seller's nhligation to pay the sum oftl 3.40000 to George L.
F.hener & As~ociates for real estate brokerage ~ervices. which ~um shall be paid at closing. Further,
Ehener & A~sociale~ agrees to rebale (he ~um of S 1.50000 10 Seller in reduction of ~uch
commi~sion at c1(1~ing.
WITNESS
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SELLER
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James E. Schlusser
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REAL ESTATE BROKER:
ATTEST:
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GF.ORG~~' EnEN~ ASSOCIATES
F''-'{.
ByW~' ,,1('''1 (SF.AL)
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The spouse l,fthe Seller herein joins in the w'
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----"'1111
ADDENDUM Tn AGRFFMrNT or SAl F
TIllS is nn Addendum to an Agreement of Sale daled as of August IS, 1995, by and between
JAMES E. SCHLUSSER. 61 Creek Road. Carlisle. Cumberland County, Pennsylvania. hereinafter
c.'Illed "Seller" and SUNS"'N~ DEVELOPMENT. INC" a Pennsylvlfnia corporation. P.O. Box 216,
Wayneshoro. Pennsylvania. herein-.ller called "Purchaser".
WIIERE/\S. Ihe panies have enlered into a cenain Agreement of Sale of which this
Addendum iJ pan of even date herewith; and
WHEREAS, Ihe panies desire Ihatthe leons oflhis Addendum shall be added to supplement
the lenos of such Agreement of Sale,
NOW. TIIERErORE. intending 10 he legally bound hereby. the panies do hereby agree as
fllllows:
I, Purchaser hereby deposits Ihe sum oflllREE TI10USAND DOLLARS ($3.000.00)
aJ a down payment on the property. 10 be held by Seller's agent. George L. Ebener. Such deposit
shall he held in escrow hy Seller's agent aforesaid and may be placed in nn interest bearing account
with interest enmed thereon to be credited 10 Seller. Such escrow shall be disbursed to Seller upon
Ihe earlier of:
(a) Ihe lerminalion of this I\greement by virtue of Purchaser's inabililY to cause any
mailers on which st'lllt'menl is contingcnr lU he resolved or.
(b) at final selllement. in which event sllch amount shall be applied to the purchase price
for the benefit of Purchaser.
2. Notwithstanding an~lhing to Ihe contrary in the above referenced Agreement of Sale
or in Ihis ,\ddenrful11. <elllemenr shall not take place prior to January I. 1996.
J. Plinr to final <Nllcl11cnl. Seller shall be at liberty to remove from the premises three
new \\indolVs. t IVO new rfnllrs. a new waler heater and two refrigerators. Any openings created hy
Ihe removal of such items shall he <ealed ofTby Seller at Seller's sole Co'!pe:nse: promptly upon the:
removal of such items.
e~ ~
IN WITNESS WHEREOf. Ihe panies hereto have caused this Agreement to be executed as
ofAugu~t IS, 1995.
WITNESS.
SELLER: ~~
(1nLAo r
J~E. Schlusser . -
PURCHASER:
ATTEST:
REAL ESTATE BROKER:
GEORGE L EBENER & ASSOCIATES
By"
TIle spouse of Seller herein join~ in the within A
~-G
'-
ADDENDUM NO.2 TO AGREEMENT OF SAI.E
THIS is an Addendum 10 an Agreement of Sale as amended da(ed as of August 15,
1996, by and between JAMES E. SCHLUSSER, with mailing address of 61 Creek Road,
Carlisle, Cumberland County, Pennsylvania, hereinafter called "Seller" and SUNSHINE
DEVELOPMENT, INC., a Pennsylvania corporation, with mailing address of P.O. Box 216,
Waynesboro, Pennsylvania, hereinafter called "Purchaser".
WHEREAS, the Parties have enlered inlo a certain Agreement of Sale as amended of
which this Addendum is part of; and
WHEREAS, the Parties desire that the terms of this Addeoduln shall be added in order
to revive, revise and supplement the terms of such Agreement of Sale, as amended.
NOW THEREFORE. intending to be legally bound hereby, the Parties do hereby agree
as follows:
1, The purchase price shall be .educed between Seller and Purchaser from the sum
of TWO HUNDRED & SIXTY.SIX THOUSAND FIVE HUNDRED DOLLARS
($266,500.00) by the sum of FIVE THOUSAND FOUR HUNDRED DOLLARS ($5,400.00)
to the new sales price of TWO HUNDRED & SIXTY-ONE THOUSAND ONE HUNDRED
DOLLARS ($261,100.00). In addition, the Agreement is further amended to provide that the
Realtor. George Ebener, will charge a sales commission 10 the Seller of EIGHT THOUSAND
ONE HUNDRED DOl.LARS ($8,100.00) in lieu of the original commission.
2, The Purchaser shall purchase and Seller shall sell the property known as 50
West Louther Street, Carlisle, Cumberland County, Pennsylvania subject to any and all
existing leases including an alleged lease with Donna Francisco and James Rosario t1d/b/a
Beauty and the Beach.
E AtJ.{",'+- c..
CERTIFICATE OF SERVICE
I hereby cenify that a copy of the foregoing Stipulation of the Panies was served this
date by depositing same in the Post Oflice at Carlisle, PA, first class mail. postage prepaid,
addressed as follows:
Roben L. O'Brien. Esquire
O'BRIEN, BARIC & SCHERER
17 West South Street
Carlisle, PA 17013
(717) 249.6873
Richard C. Rupp. Esquire
RUPP AND MEIKLE
The Wagner Building. Suite 303
355 Nonh 21st Street
Camp Hill, PA 17011
(717) 761-3459
MAl1TSON, DEARDORFF, WlLUAMS & OTTO
By
Ivo V, Otto, III, Esquire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Intervenor
Sunshine Development. Inc,
Date:
4
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MIJTUAL RE1,EASE AND SETTLEMENT AGREEMENT
THIS AGREEMENT, executed this
day of September, 1996, by Donna
Francisco and James Rosario tld/b/a Beauty and the Beach and James E. Schlusser, is a mutual
release intended to extinguish all rights and claims by Donna Francisco and James Rosario
against James E. Schlusser, and to extinguish all rights and claims by James E. .'lchlusser
against Donna Francisco and James Rosario as follows.
WHEREAS. Donna Francisco and James Rosario filed a Complaint for Declaratory
Judgment against James E. Schlusser for the interpretation and enforcement of an alleged lease
within the real estate premises known as 50 West Louther Street, Carlisle, PA;
WHEREAS, James E. Schlusser filed a New Malter Counterclaim against Donna
Francisco and James Rosario for cenain sums representing rent and eviction, which claims
arose under a Lease Agreement for same premises,
WHEREAS, all Parties desire that all matters in controversy among them be resolved
amicably without the necessity of further legal proceedings.
NOW, THEREFORE, with the intent to be legally bound and in consideration of the
execution of a Stipulation among the Parties and this Mutual Release and Settlement
Agreement for other good and valuable consideration, the Parties agree as follows:
1. By this General Release Donna Francisco and James Rosario t/d/b/al Beauty
and the Beach do, for themselves, and each of them. their heirs, executors, assigns, release
and forever discharge James E. Schlusser from any and all claims. demands. damages, actions,
suits. attorney's fees. and costs, obligations or liabilities of any kind, known or unknown.
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By ,his Mutual Release, the Parties hereby authorize their respective allomeys to
execute the aforesaid Stipulation to sellle the litigation and for Donna Francisco's and James
Rosario's allomey to execute a Praecipe to Dismiss the litigation. which Praecipe shall be
delivered to James E. Schlusser's allomey,
The Parties agree to cause their respective allomeys to file all necessary documentation
with the Cumberland County Court of Common Pleas to cause the litigation matter known as
Donna Francisco aod James Rosario v. James E Schlusser, No. 96-217 Civil Term,
Declaratory Judgment Action, to be dismissed and marked satisfied, settled and dismissed with
prejudice.
IN WITNESS WHEREOF, intending to be legally bound, the undersigned have set
their hands and seals on the day and year rust above written.
WITNESS:
DONNA FRANCISCO
JAMES ROSARIO
JAMES E, SCHLUSSER
3
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. ., .
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DONNA FRANCISCO and
JAMES ROSARIO,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
v,
No.: 96-217 CIVIL TERM
JAMES E. SCHLUSSER,
DECLARATORY JUDGMENT ACTION
Defendant
v.
SUNSHINE DEVELOPMENT, INC.
Intervening Defendant
PRAECIPE TO DISMISS
TO TIlE PROTHONOTARY:
Kindly mark the above-captioned Declaratory Judgment Action as settled, satisfied and
dismissed with prejudice.
O'BRIEN, BARIC & SCHERER
Robert L. O'Brien, Esquire
Attorney for Plaintiffs
Date:
0-'&
,
DONNA FRANCISCO and
JAMES ROSARIO,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
i'ENNSYL VANIA
Plaintiffs
v,
No.: 96-217 CIVIL TERM
JAMES E, SCHLUSSER,
DECLARATORY JUDGMENT ACTION
Defendant
v,
SUNSHINE DEVELOPMENT, INC.
Intervening Defendant
PRAECIPE TO DISMISS
TO THE PROTHONOTARY:
Kindly mark the above-{;aptioned Declaratory Judgment Action as settled, satisfied and
dismissed with prejudice,
O'BRIEN, BARIC & SCHERER
~~D6A oLLr-'
Robert L. O'Brien, Esquire
Attorney for Plaintiffs
Date: 'i ",,'5/76
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DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-
CIVIL TERM
V.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
ORDER OJ' COURT
AND NOW, this
day of
, 1996, upon
review of the attached Complaint, a hearing is set in this matter for
the
day of
, 1996 at
J.
a.m./p.m. in Courtroom #
, Cumberland County Courthouse, 1
Courthouse Square, carlisle, Pennsylvania, 17013.
BY THE COURT,
~
J
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-
CIVIL TERM
V.
.
.
.
.
.
.
JAMES E. SCHLUSSER,
Defendant
: DECLARATORY JUDGMENT ACTION
ACTION FOR DECLARATORY JUDGMENT
1) Plaintiffs are Donna Francisco and James Rosario, adult
individuals having a business location known as Beauty and the Beach
located at 50 West Louther Street, Carlisle, Pennsylvania.
2) Defendant is James E. Schlusser, adult individual with a
mailing address of 61 Creek Road, Carlisle, Pennsylvania.
3) Defendant is the purported owner of record of the real
estate comprising 50 West Louther Street, where the Plaintiffs'
business is located.
4) This matter is brought before the Court pursuant to the
Declaratory Judgments Act, 42 Pa.C.S.A. S 7531 et seq.
5) Plaintiffs and Defendant entered into a landlord/tenant
I
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arrangement during the Summer of 1994. The Plaintiffs were interested
in relocating a hair styling business to operate in conjunction with a
tanning salon. The tanning salon had been located, for a number of
years, at the property owned by Defendant. Plaintiffs had purchased
the equipment and business opera.tion from the former owners.
6) Plaintiffs and Defendant negotiated an agreement to expand
and remodel the existing tanning salon business. During the course of
the negotiations, the parties acknowledged that the terms of the lease
agreement would be for a period of 36 months. Based upon the
representations, Plaintiffs undertook extensive efforts in remodeling
and, in fact, utilized Defendant to provide some of the labor and
materials.
7) Defendant prepared a written lease, a copy of which is
attached hereto marked as Exhibit "A" and incorporated herein by
reference, and presented same to Plaintiffs. When Plaintiffs pointed
out to Defendant that the lease term was limited to a year, Defendant
agreed that he would prepare a modification to provide for the 36
month term that the parties had orally agreed to.
8) In Decembar, 1994, the parties agreed that the balance due
Defendant for labor and materials provided for the Plaintiffs'
remodeling would be repaid by a $500.00 payment and payments of
$100.00 per month for the upcoming 27 payments. A copy of same is
attached hereto marked as Exhibit "B" and incorporated herein by
reference. During this time frame, in the latter half of 1994,
Defendant continually reassured Plaintiffs that their lease term would
be through August, 1997.
9) Thereafter, Defendant was approached by a prospective
purchaser who wished to acquire Defendant's land as part of the
expansion of the Carlisle Post Office. In anticipation of the
possible sale of his business, Defendant did an about face and by
Memorandum dated July 24, 1995, attempted to assert that the terms of
the lease would expire depending upon his ability to sell the
property. A copy of this Memorandum is attached hereto marked as
Exhibit "C" and incorporated herein by reference.
.'
10) Plaintiffs had their attorney send a letter dated September
8, 1995 to Defendant outlining their position that the lease did not
expire until 1997. Defendant failed to respond to Plaintiffs'
attorney or to Plaintiffs directly in reference to their claim. A
copy of this letter is attached hereto marked as Exhibit "0" and
incorporated herein by reference.
11) News stories continued to surface in the press about the
Post Office project and by letter dated December 15, 1995, Plaintiffs'
attorney once again wrote Defendant in reference to the situation with
Plaintiffs' lease. A copy of this letter is attached hereto marked as
Exhibit "E" and incorporated herein by reference.
12) Despite the offer to sit and talk with Defendant, Defendant
did not attend the December 19, 1995 meeting.
13) Thereafter, Defendant's attorney, on or about December 30,
1995, served the attached Exhibit "F" upon Plaintiffs.
WHEREFORE, pursuant to the Declaratory Judgment Act, Plaintiffs
respectfully request that the Court:
A) convene a hearing and take testimony as to the term of
the lease agreement betw6en Plaintiffs and Defendant for the property
locdted at 50 West Louther Street, Carlisle;
5) upon determining that the lease agreement extends to
August, 1997, enjoin the Defendant from terminating the Plaintiffs'
rights as of January 31, 1996; and,
C) provide such other relief as is just and equitable.
.'
Respectfully submitted
O'BRIEN, BARIC & SCHERER
BY:
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Robert L. O'Brien, Esquire
Attorney for Plaintiffs
I.D. # 28351
17 West South Street
Carlisle, PA., 17013
(717) 249-6873
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I verify that the statements made in the foregoing petition
are true and correct to the best of my knowledge, information and
belief. X understand that false statements herein are made subje~t to
the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification
to authorities.
DATE: Jr- 11+J:19 ~ ~. a _!J.n_- _ -:"\
DONNA FRANCISCO
DATE: ~ 1'1 ,qq~ ~~&~
JAMES ROSARIO
LEASE AGREEMENT
MADE THIS 1st day of September, 1994, between James E.
Schluseer hereinafter Lessor, AND Donna Francisco and James Roeario
tradeing and doing business as Tropical Sunsations, hereinafter
Lessees.
1. PREMISES. Lessor, in consideration of the rents and
covenants hereinafter set forth, does demiee and lease unto
Lessees, to be used as a Sun Tanning and Beauty Solon, the premises
situate in the Borough of Carlisle, County of Cumberland, and
Commonwealth of Pennsylvania, known and designated as follows:
A Commercial unit located at 50 West Louther Street,
Carlisle Cumberland County, Pennsylvania.
with the following improvements:
2. TERM OF LEASE. To have and to hold by Lessees subject
to the conditions of this Agreement for the term beginning on the
1st day of September 1994, and ending on the 31th day of August
1995.
3. RENT. In consideration of which Lessees agree to pay to
Lessor for the use and occupancy of the premises the sum of
Seven Thousand Eighty and 00/100 ($7,080.00) Dollars, lawful money
of the United States, payable as follows: Five Hundred Sixty Five
and 00/100 ($565.00) Dollars for two months, and Five Hundred Ninty
Five and 00/100 ($595.00) for ten months. with the first
installment due and owing for the first month upon the signing of
this Agreement, and on or before the first (1st) day of each
month for each successive month during the above term. If Lessees
fail to pay the rent due and owing by the first day of the month,
A
a late fee of Three Dollars ($3.00) per day will be due and owing
for each day thereafter until the rent is paid in full as
liquidated damages for late payment. If Lessees pay by mail,
Leseees are responsible for any delay in receipt by Les30r of such
payment. Lessees shall pay to Lessor Twenty ($20.00) Dollars for
any check returned by Lessor.
4. SECURITY AND DAMAGE DEPOSIT. (xxxxxxxxxxxxxx) Lesseee
have upon the signing of this Agreement deposited with Lessor the
additional sum of XXXXXXXXXXXXXX and 00/100 ($xOO.OO) Dollars as
security for the full and faithful performance by Lessees of the
terms, conditions and covenants of this Agreement on Lessees' part.
Said deposit will be refunded to Lessees after the termination of
this Agreement unless Lessees should be in default, or should
otherwise violate the terms of this Agreement, for which the said
amount may be utilized and c~edited against any amount as may be
determined to be due Lessor.
5. CONDITIONS OF PREMISES.
a) The premises are to be kept in a clean and sanitary
condition and all ashes and garbage which may accumulate thereon
during the term are to be removed by Lessees at least once a week.
b) All garbage must be placed in bags or containers,
and no more than two (2) regular size bags may accumulate until
disposed of. All bags placed outside must be in a sealed container
unless it is placed at curb no more than twelve (12) hours prior
to scheduled pickup.
c) The premises are to be kept and maintained in as
good repair and condition as at present, and at the expiration of
this Agreement, they are to be surrendered in the like repair and
condition, natural wear and tear caused by the elements and damages
happening by fire, storm or other casualties only excepted.
Lesllees shall not drive nails or tacks into the woodwork or
ceilings or use adhesive type hangers anywhere on the premises, or
allow the same to be done.
d) Lessees shall be responsible for all repairs not
exceeding Fifteen ($ 15.00 ) Dollars. All repairs must be
reported to and approved by Lessor.
e) Lessees shall be responsible for the mowing and
trimming of the lawn on the premises and propet" disposal of
clippings.
f) Lessees shall be responsible for the removal of snow
and ice from the public sidewalk adjacent to their unit and all
private sidewalks leading to their unit, within 24 hours of its
accumulation.
g) Lessees shall be responsible for the following
items: light bulb replacement, smoke detector maintenance and
replacement of battery, (Use the very best battery as it will save
you in the long run. Cheap batteries will not work at all or for
only a short time.), unclogging of plumbing lines, replacement of
electrical fuses, refilling and inspection of fire extinguisher,
exterminating if needed, exterminating of neighboring units if you
are the cause excessive pest problems, and reporting all leaks and
dripping faucets.
h) Lessees may request Lessor to make repairs as
outlined in 5-g or Lessor may do so if problems are unattended.
Charges for such repairs will be $15.00 per visit and $15.00 per
hour after the first half hour plus all material required. Such
items will be deducted from security deposit if not paid when
invoiced.
i) No fixtures or appliances shall be removed and
replaced with Lessees' own fixtures unless as outlined in paragraph
5-j below. (such as ceiling fans or air conditioners)
j) Any alterations, construction of any kind or nature
whatsoever, demolition, or change in the premises, whether minor
or major in character, are prohibited unless Lessees first obtain
consent from Lessor setting forth the nature and scope of said
repairs and al tera tions in writing. In any event any repair,
additions or added amenities shall become the property of the
Lessor unless Lessor permits their removal, at the expense of the
Lessees. In such case, the premises is to be returned to the exact
condition as it was prior to any alterations.
k) Lessees shall be responsible for the repair,
replacement and proper maintenance of all air conditioning
equipment, exhaust fans, advertising signs, or other items related
to operating a business.
1) Lessor, or his chosen representative, shall have
the right upon reasonable notice to Lessees, to enter the premises,
with or without presence of the Lessees, for purposes of being
assured the premises are being properly cleaned, repaired and
maintained.
m) Lessor, or his chosen representative, shall have
the right, upon reasonable notice to Lessees, to enter the premises
with or without presence of the Lessees for the purpose of making
necessary repairs, or to show the same to prospective purchasers
or Lessees, and may display "For Rent" and/or "For Sale" signe
thereon.
6. UTILITIES. The services for the use of the Lessees at
the premiees furnished by any public service company, utility, or
authority during the term shall be paid for by Lessees, including,
but not limited to electric, gas, and telephone, with the
exception that Lessor shall be responsible for water and sewer.
Lessees shall not give permission to any utility to alter premises
or add wiring, etc.
7. ACTIVITIES ON PREMISES.
a) Nothing shall be Jone upon the premises contrary to
the conditions of the policies of insurance upon the buildings and
grounds thereon whereby the hazards may be increased or the
insurance invalidated.
b) No unlawful business shall at any time be carried
out upon the premises.
c) No pets or animals are permitted on the premises,
with the exception of fish in small tanks.
d) Lessees, members of their family, visitors, and
servants, shall not at any time make any noise, do anything or
conduct themselves in any way which disturbs others or interferes
with their rights, comfort or convenience of others. All cooking
equipment must be used in such a way as to prevent noxious odors
from permeating the building.
e) No barbecue grills may be used indoors or under
porch roofs or awnings, and no ashes shall be disposed of on the
premiees.
f) No kerosene or other type of burning portable
heaters are permitted on the premises.
g) No clothes washing machines are permit tad on the
premises.
h) Lessees are responsible for carrying proper renter
insurance and is responsible for any damages to premises by
burglars or vandals to Lessees's unit.
e. SUBLETTING. Neither the whole nor any portion of the
premises shall be sublet, nor shall this Agreement or any interest
therein be assigned without Lessor's consent and permission.
9. DEFAULT. If Lessees have not paid the rent due in full
within five (5) days of the time it is due, or if Lessees have
breached or evaded or have attempted to breach or evade any of the
covenants or conditions of this Agreement, they shall be considered
to be in default, whereupon the entire rent reserved for the full
term of this Agreement remaining unpaid shall become due and
payable at once and may forthwith be collected, and at the same
time Lessor may annul the unexpired portion of this Agreement.
Lessees hereby waive the usual notices to quit required by the
Landlord and Tenant Act of 1951 (Act of April 6, 1951, P.L. 69),
as amended from time to time, and any other notices required by any
other statute, ordinance or regulation.
10. RIGHTS RESERVED
a) Acceptance by Lessor of any of the said rent after
the same shall become due, or after default has been made in the
payment thereof, or Clny fCli1ure to enforce dny of the right or
conditions herein reserved to Lessor, shall not in any way be
considered a waiver of the right to enforce the same at any time
without any notice whatsoever.
b) Any attempt to collect the rent or to enforce a
right or condition by one proceeding shall not be considered as a
waiver of the right. or condition by any other proceeding, but
rather allot the rights of Lessor may be pursued together or
successively at the option of the Lessor.
c) Lessees agree to pay to Lessor a reasonable
attorney's fee if it becomes necessary for Lessor to contact an
attorney in order to collect rent due and payable or to enforce
Lessor's rights or conditions of this Agreement.
d) In the event that this lease is for a corporation
or similar business, Lessor may file judgments against other owned
corporations or the like and individual officers or owners of such
corporations or the like that are responsible for the operation of
the business.
11. TERMINATION OF TERM.
a) Lessees agree to surrender the premises at the
expiration of said term and hereby waives notice to quit required
by the Landlord and Tenant Act of 1951 (Act of April 6, 1951, P.L.
69) as amended from time to time, and any other notices required
by any other statute, ordinance or regulation.
b) Failure of Lessees to completely vacate the premises
at the expiration of the term may, at the option of Lessor, be held
and deemed a renewal of this Agreemenc for another year and so on
from year to year thereafter until at least thirty (30) days notice
is given by either party terminating this Agreement at the end of
a term. Each such renewal shall be subject to the conditions
contained in this Agreement, with the exception that rent amount
may be adjusted.
c) This Agreement may be renewed for another full term,
or other mutually agreeable term, if both parties agree prior to
the expiration of the term contained herein.
d) All items and personal belongings left by Lessees
after vacating the premises shall be considered abandoned after
fifteen (15) days and become the property of Lessor.
12. WRITTEN MODIFICATION. The terms and conditions of this
Agreement shall in no way be changed or altered except by a writing
signed by all parties hereto.
13. JOINT AND SEVERAL LIABILITY. The liability of each
Lessee hereto shall be joint and several. Notice given by Lessor
to anyone Lessee shall be considered notice to all.
14. HEIRS AND ASSIGNS. All rights and liabilities herein
given to, or imposed upon, the respective parties hereto, shall
extend to and bind the several and respective heirs, executors,
administrators, and assigns of said parties.
15. ENTIRE AGREEMENT. Lessor and Lessees agree that this
Agreement sets forth all the promises, agreements, conditions, an
understandings between Lessor and Lessees relative to the premises,
an~ there are no promises, agreements, conditions, or
understandings, either oral or written, between them other than
set forth herein.
IN WITNESS WHEREOF, the parties aforesaid have hereunto set
their hands and seals the day and year first written above.
16. SPECIAL CONDITIONS. All alterations paid for by lessee
or others to accommodate a tanning salon and beauty salon shall
become property of lessor at the termination of this agrement.
These alterations are to include Room partitions, carpeting,
special electrical wiring, air conditioning units, cooling fans,
front door, ceiling tile, and any other remodeling done to
accommodate lessees' use.
DO NOT SIGN THIS AGRI!lEHENT UNTIL YOU HAVE READ IT CAREFULLY.
MAKE SURE YOU UNDERSTAND EVERY PROVISION AND THAT ALL TERMS AND
CONDITIONS AGREED UPON ARE SET FORTH IN IT. IT IS A BINDING LEGAL
DOCUMEN'l' .
WITNESS:
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December 14, 1994
Beauty and the Beach
50 Weet Louther Street
Carlisle, PA 17013
Dear Jim and Donnal
This letter is to confirm our conversation of December 5, 1994
concerning the amount due for remodeling.
The amount of $500.00 shall be paid as soon as poseible and
the balance of $2700.00 to be paid as an additional amount of rent
of at least $100.00 per month until paid off.
,
Amendment of Lease
The current monthly rental rate shall be increaeed the amount
of one hundred ($100.00) dollars over the amount of the current
monthly rate for the upcoming twenty-seven payments. The current
rate with the increase will be six hundred ninety-five ($695.00)
dollars for the duration of the current term. This increase is to
cover amounts incurred for remodeling.
Agreed James ROAario
Agreed Donna Francisco
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Agreed James Schlusser 'j, .. .
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Sincerely,
James E. Schlusser
P.S. I will not charge for changing the locks or for the keys.
However, if future changes are required, I will need to charge you.
:B
LoJ'" Office,
O'BRIEN, BARIC d SClfERER
J 7 Well South Street
CarIn Ie. Penn.lyl'aHla 1701J
Ste,en J. Fishman
01 Counsel
Robert L. O'Brien
Dim" ..l. Baric
.Ilichael .-I. Scherer
(717) 149.687J
FAX (7/7) U9.j7jj
September 8, 1995
James E. Schlusser
61 Creek Road
Carlisle, Pennsylvania
17013
RE:
50 West Louther street
Carlisle, PA
Dear Mr. Sr.hlusser:
This otfice represents Donna Francisco and James
Rosario, who lease property trom you.
I have reviewed the matter with Ms. Francisco and
certain relevant documents pertaining thereto and have advised
her that her lease does not expire until 1997. Accordingly,
unless you are willing to purchase the balance of the lease term,
she and Mr. Rosario will not agree to your demand for an early
termination. We fully expect that you will disclose to your
prospective purchaser, our position in reference to the lease
term should he wish to consider the same in light ot his
anticipaeed use of the property. As a matter of law, the
purchaser takes the property subject to all existing leases.
Should you wish to discuss purchasing the remuinder of
their lease, please contact me.
Very truly yours,
O'BRIEN, BARIC & SCHERER
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Robert L. O'Brien, Esquire
RLO/au
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cc: Donna Francisco
File
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O'BRIEN. BARIC & SCI/ERER
I::' H't'lt S'/lIth Strict
Corli,"'- PCI/I/IY/"Ol/,O 17013
SteVtn ), Fishman
Of Counul
Rabat L. () '8nc.'1J
DaHu ..4, BtJ.'H.'
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(7/7) 249-6873
FAX (7/7) 249-5755
December IS, 1995
James E. Schlusser
61 Creek Road
Carlisle, Pennsylvania 17013
RE: 50 West Lc,uther Street
Carlisle, Pennsylvania
Dear Mr. Schlusser:
It is my understanding that your property on West Lauther Street will be sold
sometime in February. It is also my understanding that you have failed to disclose to the
purchaser the position taken by my clients in reference to the existence and term of their
lease. While you have agreed to suspend repayment of the balance due you for work done
on the premises you have not responded to my letter of September 8, 1995,
My clients are currently experiencing problems in the conduct of their business
occasioned by stories in the press of the post office project. A location in the downtown
Carlisle area is extremely important for their customer base, In the event the timing of the
project is going to impact on their current lease they must have adequate time to prepare
for relocation. Currently. in reviewing their financial records, they found that the rent
checks delivered to you have not been negotiated. ~Iy clients have not idea why you are
doing thb as you have chosen to remain silent about this whole matter. In short, your
silence is deemed an acceptant:e by you of my clients position that their lease extends to
September, 1997.
I would suggest that you meet with my clients in my office at 8:30 a,m, on T':esday,
December 19, 1995 to discuss this matter. In the event you choose not to attend. we will
have no alternative but to contact the prospective purchaser directly in reference (0 the
lease provision,
Sincerely,
RLO/jc
cc: Donna Franciso
File'
~~
Robert L. O'Brien. Esquire
"l~ nlN"fr.H"l~ltr
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LAW UFFICES
RUPP AND MEIKLE
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TIn: WAliNt:R IWII.IlINn i1!ITf.lll.l
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<:'\.\11' JULI.. PA 17011
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MAILlNtI AI>DRESS
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CAMP tIILL, PA I70U1.o3U
ANN \4t:lKI.t: f;RIKMlIN nUll.. ItJI
TILE'AX. 17111 'r.IO'02l4
December 29, 1995
Robert L. O'Brien, Esquire
O'Brien, Baric , Scherer
17 West South Street
Carlisle, PA 17013
Re: James E. Schlusser
Our File No. S-3100.01
Dear Mr. O'Brien:
I represent James E. Schlusser and LeighAnn Schlusser, his
wite. I am in receipt ot your two letters to James E. Schlusser
who owns the property located at 50 West Louther Street, Carlisle,
in which your clients, Beauty ~nd the Beach, are tenants.
Please be advised that Mr. Schlusser does not accept your
interpretation of the amendment to the lease that there is an
extension to February or March ot 1997. To the contrary, the
amendment was to pay for improvements at the monthly rate of
$100.00 in the form of rent through the end of the current term.
The current term of the lease dated September 1, 1994 ended on
August 31, 1995. The amendment to this lease occurred in writing
on December 14, 1994. The amendment is clear. However, there was
no agreement to handle any unpaid balance of the improvements.
There was no automatic renewal in Mr. Schlusser's lease with
your clients. The parties ha'/e not mutually entared into an
extension of the lease. Mr. Schlusser offered a three month
extension of the lease (and month to month thereafter) by his
letter dated July 24, 1995, which offer was never accepted by your
clients and is withdrawn. Therefore, there is no automatic renewal
and the lessor opts to terminate said lease. Your clients are
holding over as "at will" tenants.
Please find enclosed the Notice to Quit which is also being
delivered to your clients. ~our clients are hereby notified to
quit and vacate Mr. Schlusser's property on or before January 31,
1996.
\=
. .,
Robert L. O'Brien, Esquire
December 28, 1995
Page Two
In any event, if there were an ey,tension, which we disagree
with completely, your clients have not paid the full rant, which
rent was increased by the additionallllonthly SUIII ot $100.00 to help
de tray the costs of improvelll.nts made by Mr. Schluaser to his
building at 50 West Louther Street. Therefore, your clients are in
default in the payment of rent, and as the lease provides 5n
automatic termination clause, our client is hereby exercising said
termination clause by reason of the default in rent. Again, your
clients have to January J 1, 199'5 to cr.lit tl':o p!'9!li!lI!!J.
Please be advised that if your clients hold over after January
31, 1996, Mr. Schlusser intends to institute legal action to evict
and intends to collect the reasonable attorneys' fees incurred in
such legal action with your clients.
Mr. Schlusser proposes to your clients that if they have
vacated the premises on or before January 31, 1996, he will agree
that there will be no sums due for any prior improvement work which
they had agreed to pay; he will waive and forgive the $100.00 per
month which has not been paid but otherwise is due. He will waive
the rent for January 1996.
Howavar, it your olianta do not vacate the pr_isell in
accordanoe with the notice to quit, Mr. Sohlua.er intanda to hold
your olienta r..ponai~le tor all renta, costa, reasonable
attorneya' faaa in connaotion with any litigation with your
clients, inoluding ~ut not lialted to, any and all costa, d..agas,
attorneys' teea and lo.a of Drotits which ..y be cau.ed ~y your
olients affeoting the aale ot this building ~y Mr. Schluaaer.
We look forward to an amicable termination of this leasehold
with y~ur clients' v3cat~n~ thp ~r~"j.~o~ C~ J~n~~~y 21, 1396.
RCR/las
Very-t~y yours, ._~
k;:. k,( , (, ;~.7i1'-)
Richard C. RUpp (/~
cc: Mr. James E. Schlusser
Enclosure
. "
NOTICE TO QUIT
NonCE OF TERMINATION
TO: JAKES ROSARIO
DONNNA FRANCISCO
TIDIBIAI BEAUTY AND THE BEACH
46 WEST LOUTHER STREET
FIRST FLOOR
CARLISLE, ~A 17013
NOTICE IS HEREBY GIVEN THAT YOUR TENANCY IN THE PREMISES
LOCATED AT 46 WEST LOUTHER STREET, FIRST FLOOR, BOROUGH OF
CARLISLE, COUNTY OF CUMBERLAND, STATE OF PENNSYLVANIA, IS
TERMINATED AS OF JANUARY 31, 1996.
DEMAND IS HEREBY MADE THAT YOU VACATE AND REMOVE FROM THE
PREMISES AND DELIVER UP POSSESSION TO THE UNDERSIGNED ON OR BEFORE
JANUARY 31, 1996.
THIS NOTICE IS INTENDED TO COMPLY WITH THE PROVISIONS OF
PENNSYLVANIA LANDLORD TENANT STATL~E.
DATED: DECEMBER 29, 1995
JAKES E. SCHLUSSER, LANDLORD
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DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E, SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
CERTIFICATE OF SERVICE
I, Richard C, Rupp, Esquire, hereby certify that I served a true and correct copy of an
Acceptance of Service in the above-captioned action by first class mail, postage prepaid, by
depositing the same in the United States Mails at Camp Hill, Pennsylvania to the Plaintiffs'
attorney of record at the address below:
Robert L, O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
02q
RICHARD C. RUPP, ES UIRE
Attorney for Defendant
DATE: February &, 1996
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E. SCHLUSSER.
Defendant
DECLARATORY JUDGMENT ACTION
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY, LAWRENCE E. WELKER
Please enter my appearance on behalf of the Defendant, James E, Schlusser. in the
above-captioned action.
RUPP AND MEIKLE
By: /,:/, , cC:;;;
~iCh[~, Esquire
Attorney J.D. #34832
Attorney for Defendant
P.O. Box 395
Camp Hill, PA 17011
The Wagner Building
355 Nonh 21st Street, Suite 303
Camp Hill, PA 17011
(717) 761-3459
DATE: February
~. . 1996
DONNA FRANCISCO and
JAMES ROSARIO.
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-217 CIVIL TERM
v.
JAMES E, SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
CERTIFICATE OF SERVICE
I, Richard C, Rupp. Esquire, hereby certify that I served a true and correct copy of a
Praecipe to Enter Appearance in the above-captioned action by first class mail, postage prepaid,
by depositing the same in the United States Mails at Camp Hill. Pennsylvania to the Plaintiffs'
attorney of record at the address below:
Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
rZ ,--/'
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RICHARD C. RUPP, E~
Anorney for Defendant
DATE: February
(p ,1996
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The Wq;ncr Bulldln.
H5 Nurth %111 SUM
Suilc )0)
Camp ftill, PA 11011
(711l1M.l459
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY , PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT
NOW COMES Defendant, James E, Schlusser, by his counsel. Rupp and Meikle, and
files the within Preliminary Objections to Plaintiffs' Complaint for Declaratory Judgment action
as follows:
1. The Plaintiffs have filed a Declaratory Judgment Action Complaint only against
James E. Schlusser, the title owner to the real estate premises being leased to the Plaintiffs,
known as SO West Louther Street, Borough of Carlisle, Pennsylvania.
2. The Plaintiffs are aware that the premises being leased are under an agreement
of sale between the Defendant James E. Schlusser and Sunshine Development, Inc. as a buyer.
3. The buyer of the said premises under the sales agreemeont Is an equitable owner
to the said real estate premises.
COUNT I
4. As the Plaintiffs have failed to join the purchaser of the premises under the sales
agreement as the equitable title owner, the Court does not have jurisdiction in accordance with
the Declaratory Judgment Action Act 42 Pa. C.S.A. ~7S31 et seq.
S. The Plaintiff's Complaint should be dismissed pursuant to Pa.R.Civ.P.
~1028(a)(l).
WHEREFORE, Defendant respectfully request that this Honorable Court enter an Order
dismissing Plaintiffs' Complaint and awarding Defendant reasonable counsel fees incurred in
preparing these Preliminary Objections, the supporting brief and attending any oral argumem.
COUNT II
6. In accordance with the Declaratory Judgment Action Law, Sunshine Development,
Inc. the equitable owner of the real estate premises constitutes an indispensable party to this
action.
2
7. By reason of Plaintiff's failure to join an indispensable party to this action,
Plaintiffs' Complaint should be stricken pursuant to Pa.R,Civ.P. ~1028(a)(S).
WHEREFORE, Defendant respectfully request that this Honorable Court enter an Order
dismissing Plaintiffs' Complaint and awarding Defendant reasonable counsel fees incurred in
preparing these Preliminary Objections, the supporting brief and attending any oral argumcnt.
Respectfully submitted,
RUPP AND MEIKLE
By:
~(~
355 North 21st Street. Suite 303
P.O. Box 395
Camp Hill. PA 17011
(717) 761-3459
Attorneys for Defendant
3
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
CERTIFICATE OF SERVICE
I, Richard C. Rupp, Esquire, hereby certify that I served a true and correct copy of
Defendant's Preliminary Objections to Plaintiffs' Complaint in the above-captioned action by
first class mail, postage prepaid, by depositing the same in the United States Mails at Camp Hill,
Pennsylvania to the Plaintiffs' attorney of record at the address below:
Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
RI HARD C. RUPP, ESQUIRE
Attorney for Defendant
DATE: February 21, 1996
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Ridwd C. RLJpp, Esquire
Alwmey 1.0. '34832
The Waaner DuihJjl1~
IS3 Nunh 21st Slrcct
Sultc 303
CIl1ll' Ilill, PA 11011
(717)161.3459
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY , PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
ANSWER AND COUNTERCLAIM
TO THE ACTION FOR DECLARATORY JUDGMENT
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
S. Admitted.
6. Admitted in part and denied in part. It is admitted that Plaintiffs requested
Defendant to allow an expansion of the existing tanning salon business. It is admitted that
Defendant agreed to an expansion and remodeling of the existing tanning salon business. The
remaining averments of paragraph 6 are denied. To the contrary, the parties did not negotiate
any term of a lease. The Defendant, as Lessor, presented a lease for one year which the
Plaintiffs accepted and were in agreement with.
It Is denied Ihat the Plaintiffs relied on any representations of Defendant and undertook
eXlensive eff'lrIs In remodeling the premises. To the contrary, the Defendant provided most of
the remodellngsleps required to expand and remodel the tanning salon.
7, Admllted in pllrt and denied in part. It is admitted that Defendant prepared a
wriuen lellse, a copy of which Is attached to Plaintiff's Complaint as Exhibit "A" and presented
the same In Plallllit'fs, It is denied that the Plaintiffs pointed out to Defendant the lease term was
limited tn one year, II is denied that the Defendant agreed he lliould prepare a modification to
provide fnr the 36 month term that the parties orally agreed to. To the contrary. there was
minimal dbcusslon concerning the lease term limited to a year. Defendant did not agree to
prepare a modilication to provide for a 36 month term. The parties did not orally agree to a 36
month term, To the contrary, the Defendant prepared the lease for a one year term and the
Plaintiffs accepted it. It was only after the Plaintiffs learned that there might be an expansion
of the post office that Plaintiffs inquired of Defendant as to extending or renewing the lease.
The Defendant pointed out to Plaintiffs the renewal and extension terms within the one year
lease hy letter,
g, Admiued in part and denied in part. It is admitted that in December 1994, the
purties reached an agreement as to what the tenants' share of the remodeling expense incurred
by Defendant would be in the remodeling of Defendant's premises. Plaintiffs agreed to pay
Defendant $.500.00 and $100.00 per month through the current term. There was no agreement
reached beyond the current term of the current lease. A copy of the Amendment to the Lease
2
is attached to Plaintiff's Complaint as Exhibit "B" and speaks for itself. It is denied that
Defendant continually reassured Plaintiffs that their lease term would be through August 1997
at any time. To the contrary, it was only after the Plaintiffs learned of a possible post office
expansion they inquired as to an extension or renewal of the lease and the Defendant would not
agree to an extension beyond the current term of the lease.
9. Admitted in part and denied in part. It is admitted that Defendant was approached
by a prospective purchaser who wished to acquirc Defendant's land as part of the expansion of
the Carlisle Post Office. It is admitted that the Defendant James E, Schlusser sent a letter dated
July 24, 1995 to the Plaintiffs which lettcr speaks for itself. The remaining averments of
paragraph 9 of Plaintiff's Complaint are hereby denied. It is denied that Defendant did any
about face by his letter dated July 24, 1995. To the contrary, the parties had not reached any
agreement lJeyond the term of the current lease. The Plaintiffs' inferences from the letter dated
July 24, 1995 are denied as the document speaks for itself and no further answer is required.
10. Admitted.
II. Admitted.
12. Admitted in part and denied in part. It is admitted that approxirnately s:oo p.m.
on December IS, Defendant received an offer to discllss Attorney O'Brien's letter with Attorney
O'Brien in Attorney O'Brien's offices the next morning. Defendant did not have an opportunity
to obtain legal counsel by the next morning and did not attend the December 19, 1995 meeting.
3
16. Said Lease between Plaintiff and Defendant expired and terminated on August 31.
1995.
17. The ~'-Iaintiffs are tenants who continue to hold over on a month-to-month basis,
IS. By written letter from Attorney Richard C. Rupp, Attorney for the Defendant, to
Attorney for Plaintiffs, Robert O'Brien, the Defendant has given notice to the Plaintiffs that their
lease is terminated by reason of Defendant as Lessor electing not to renew the lease.
19. The Defendant personally provided the Plaintiffs with a Notice to Quit, copy of
which is attached as Exhibit "A" hereto and incorporated herein by reference on or before
December 31, 1995.
COUNT I . EJECTMENT
20. Defendant's answers to paragraphs 1 through 19 are incorporated herein by
reference as if set forth at length.
21. The Defendant was at all times herein mentioned and still is the title owner to the
real estate premises known as SO West Louther Street, Borough of Carlisle, Pennsylvania.
22. Said tract of land subject to this law suit is known as SO West Louther Street.
Borough of Carlisle, Pennsylvania.
23. On August 31, 1995, the one year term lease between the Defendant and the
Plaintiffs expired.
5
24. Said one year term lease between the Defendant and Plaintiffs contained an option
for renewal, which option was in the Lessor.
2.5. The Lessor did not exercise the option to renew contained in the parties' one year
lease.
26. Since September I, 1995, the tenants have held over in the leased premises
without a lease.
27, On December 29, 1995, Defendant's attorney faxed and rnailed a letter to
Plaintiffs' attorney informing Plaintiffs' attorney that the lease had expired as of August 31,
1995 and that the Defendant was terminating any month-to-month hold over of the Defendant's
premises. Exhibit "F" to Plaintiffs' Complaint.
28, The Defendant on or about December 30, 1995, personally provided the Plaintiff's
with a Notice to Quit signed by the Defendant.
29. The Notice to Quit provided that the tenants were to quit and vacate the premises
known as SO West Louther Street on or before January 31,1996.
30, As of February I, 1996, the Plaintiffs continue to unlawfully retain possession of
the above described real property without right or authority of law.
31. As of February I, 1996, the Plaintiffs continue to be in possession of the above
described property and continue to withhold the possession thereof from Defendant to his
damage and detriment.
6
WHEREFORE, Defendant prays:
(a) That Defendant recover possession of the above described real property from the
Plaintiffs and have a judgment entered against the Plaintiff for possession of the above described
real property.
(b) That Plaintiff be awarded damages, including reasonable attorneys' fees plus costs
of suit and further other relief as may be deemed just and equitable in this matter.
7
COUNT II - EJECTMENT
32. Plaintiff's paragraphs 1 through 31 of Defendant's Answer and Counterclaim are
incorporated herein by reference as if set forth at length.
33. In the alternative, by written amendment to the written lease between the parties
dated December 14, 1994 the parties agreed to payments of additional rent from Lessees to
Lessor.
34. The amendment provided that the Plaintiffs as the tenants would pay to the
Defendant as Lessor the sum of $100.00 to repay the Defendant for remodeling costs made to
the premises by the Defendant.
35. Said $100.00 per month was to payable as additional rent through the end of the
current term of the lease,
36. On or about September of 1995, the Plaintiffs stopped paying the $100.00 of
additional rent.
37. The Defendants are in default of the written amendment to the written one year
lease between the parties. The lease provides that the tenants waive the right to require a
dllmand for the rent by the landlord.
38. By reason of the breach of condition of the lease of paying the additional rent, the
Plaintiffs have breached their lease and have forfeited their right to their leasehold in the said
above real property.
39. The Defendant's attorney on behalf of the Defendant informed the Plaintiffs'
attorney of said breach by his letter dated December 28, 1995 which is Exhibit "F" to Plaintiff's
Complaint.
40. On or about December 30, \995 the Deff:ndant personally gave a Notice to Quit
to the Plaintiffs.
41. As of February I, 1996, the Plaintiffs continue to unlawfully retain possession of
the above described real property without right or authority of law.
42. As of February \, 1996, the Plaintiffs have been in possession of the above
described property and continue to withhold the possession thereof from the Defendant to his
damage and detriment.
WHEREFORE, Defendant prays that:
(a) Defendant recover possession of the above described real property from Plaintiffs
in a judgment against the Plaintiffs for the possession of the above described property.
8
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-217 CIVIL TERM
v.
JAMES E. SCHLUSSER,
Defendant
DECLARATORY JUDGMENT ACTION
CERTIFICATE OF SERVICE
f, Richard C. Rupp, Esquire, hereby certify that I served a true and correct copy of
Defendant's Answer and Counterclaim to the Action for Declaratory Judgment in the above-
captioned action by first class mail, postage prepaid, by depositing the same in the United States
Mails at Camp Hill, Pennsylvania to the Plaintiffs' attorney of record at the address below:
Robert L. O'Brien, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
4, g".
RICHf\RD C. RUPP, ESQUIRE
Attorney for Defendant
DATE: April 1, 1996
DONNA FRM/CISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NO. 96-217 CIVIL TERM
DECLARATORY JUDGMENT ACTION
JAMES E. SCHLUSSER,
Defendant
ANSWER TO COUNTERCLAIM
14. The Plaintiffs averments in paragraphs one (1) through
fourteen (13) of the Action For Declaratory Judgment are
incorporated herein,
15. As indicated in the Action For Declaratory Judgment,
the Plaintiffs reached an agreement with the Defendant that the
term of the initial lease would extend into 1997. This fact is
documented in Plaintiffs Exhibit B.
16. It is denied that the lease has expired. The
Plaintiff's aver that the lease continues by the parties
agreement reached in the latter part of 1994. Despite the
receipt of the September 8, 1995 letter from Plaintiff's attorney
(Plaintiff's Exhibit D) the Defendant made no response and
thereby, through his silence, is now estopped from asserting that
the lease has expired. Finally, the Plaintiffs claim that the
doctrine of promissory estoppel precludes the Defendant's attempt
to terminate their lease right in the property.
17, The Plaintiffs aver that they have a lease in the
property through August, 1997.
18. It is admitted that such a letter was sent and
received, however, the subject of the term of the lease is the
subject of this action and accordingly, the plaintiffs deny that
the lease is not currently effective.
19. It is admitted that the Defendant posted on ths door of
their business a notice,
WHEREFORE, the Plaintiffs demand judgment in their favor.
ANSHER COUNT I-EJECTMENT
20. plaintiffs averments in the Action For Declaratory
Judgment and answers in paragraphs one (1) through twenty (20)
are incorporated herein.
21. Admitted the Defendant is the title owner and the
plaintiffs assert that they have a leasehold interest in the
property.
22, Admitted.
23. As more fully set forth earlier it is denied that a one
year lease term existed hetween the parties.
24. Again, the Plaintiffs deny the existence of a one year
lease and aver that they have a lease through August, 1997.
25. The option was waived by the parties agreement in the
latter part of 1994.
26. It is denied that the plaintiffs have held over as it
is their position that the lease continues through August, 1997.
27, Admitted,
28, Admitted.
29. Admitted.
r'
30, Plaintiffs aver that they are in lawful possession of
the property,
31. Plaintiffs state that they are in lawful possession of
the property.
WHEREFORE, Plaintiffs demand judgment in their favor and
against the Defendant,
ANSWER TO COUNT II-EJECTMENT
32. The Plaintiffs original averments and all responses in
paragraphs one (1) through thirty-one (31) are incorporated
herein.
33. Agreed that they cost of the improvements would be
amortized over the upcoming twenty-seven (27) monthly lease
payments,
34. Admitted,
35. The amount was to be amortized over the upcoming
twenty-seven (27) monthly lease payments with the first paymente
of $500.00 and $695.00 forwarded for the month of January, 1995
as reflected in the communication from Plaintiffs to Defendant
dated December 29, 1994 and being page 2 of Exhibit B.
36. The parties discussed and agreed that the basic rent of
$595.00 would be paid but that the $100.00 additional monthly
charge for the renovations would be suspended pending resolution
of the parties dispute over the term of the lease, This was in
order to reflect that fact that if the Defendant did have the
right to terminate the lease the Plaintiffs wouldn't be further
penalized by having paid for improvements which they could not
utili~e.
37. The Plaintiff~ aver their lease is through August, 1997
and they are not in default.
38, The Plaintiffs deny that they are in breach of their
lease,
39. The Plaintiff acknowledge receipt of said letter but
deny that they are in breach of the lease,
40. Admitted.
41. The Plaintiffs aver that they are lawfully in
possession of the property,
42. The Plaintiffs aver that they are lawfully in
possession of the property.
WHEREFORE, the Plaintiffs demand judgment in the favor and
against the Defendant.
ANSWER TO COUNT III
43. The Plaintiffs original averments and all responses in
paragraphs one (1) through forty-two (42) are incorporated
herein.
44. The Plaintiffs agree that the resolution of the lease
term is tied to the amount due Defendant for the renovation
expenses.
45. If indeed the Plaintiffs are to benefit for the full
term of the lease through August, 1997, they agree that they are
obligated to pay the additional $100.00 per month.
WHEREFORE, Plaintiff requests judgment in their favor and
against Defendant.
~
I
i
ANSWER TO COUNT IV
46. The Plaintiffs original averments and all responses in
paragraphs one (1) through forty-five (45) are incorporated
herein,
47. The Plaintiffs aver that the efforts by Defendant to
unlawfully terminate the lease have forced them to incur legal
expenses to protect their rights under the lease. The Plaintiffs
contend that they are not responsible to pay the legal expense of
the Defendant in his efforts to terminate the lease between the
parties,
WHEREFORE, the Plaintiffs request judgment against the
Defendant and a determination that their lease continues through
August, 1997.
Respectfully submitted,
O'BRIEN, BARIC & SCHERER
r~_
Robert L. O'Brien, Esquire
I,D, i 28351
17 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
DONNA FRANCISCO and
JAMES ROSARIO,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
JAMES E. SCHLUSSER,
Defendant
NO. 96-0217 CIVIL TERM
ORDER OF COURT
AND NOW, this
~1L
day of July, 1996, a pretrial conference
in the above matter is SCHEDULED for Friday, September 27, 1996, at
11100 a.m., in Chambers of the undersigned judge, Cumberland County
Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be
submitted by counsel in accordance with C.C.R.P. 212-4, at least
five days prior to the pretrial conference.
TRIAL in the matter is SCHEDULED for Monday, october 21, 1996,
beginning at 9100 a.m. and continuing until 12100 noon; and Friday,
October 25, 1996, commencing at 1130 p.m.
BY THE COURT,
J.
Robert L. O'Brien, Esq. ......-<.~~( (:-<-/"<1 I' 'i. 'i...
17 West South Street
Carlisle, PA 17013
Attorney for Plaintiffs
Richard C. Rupp, Esq. .,,,t_._'uA c../u/
Suite 303
355 North 21st Street
Camp Hill, PA 17011
Attorney for Defendant
7 ,. 'It
- ~. y
Cumberland County Court Administrator -C"/(J J;, ('/ dd,~.... 7/11t t:. .t(..,;
:rc
Richard C. Rupp, I.quir.
I.D. . lUU
l5S N. U.t Street, Ste lQJ
Camp H111. PA 11011
(1111.161~Jng
Plaintifh
IN THB COURT OF COMMON PLBAS
OF CUMBBRLAND COUNTY
PBNNSYLVANIA
DONNA FRANCISCO and
JAMBS ROSARIO
v.
NO. 96-217
CIVIL TERM
JAMES B. SCHLUSSER
DECLARATORY JUDGMENT ACTION
MOTION FOR HEARING
On behalf of Defendant, James E. Schlusser, now comes his
attorneys, RUPP and MEIKLE and Richard C. RUpp, who makes the
following Motion:
WHERBAS, a Complaint was filed on January 17, 1996 seeking a
Declaratory Judgment by Plaintiffs, Donna Francisco and James
Rosario concerning a lease of leased premises from Defendant;
VERIFICATION
I, RICHARD C. RUPP, Attorney for the Defendant, James E, Schlusser, in the above
captioned Declaratory Judgment Action, hereby verify that the statements made in the forgoing
Motion bre true and correct to the best of my knowledge and information and are made subject
to IS Pa. C.S.A. 4904 relating to unsworn falsification to authorities.
Date: f) / O~ ! q"
Ric ard C. Rupp, Esquire
Attorney for Defendant
James E. Schlusser
4
CERTIFICATE OF SERVICE
I, Richard C. Rupp, Esquire, hereby certify that I served a true and correct copy of the
foregoing Motion in the above-captioned action by first class mail, postage prepaid, by depositing
the same in the United States Mails at Camp 1Iill, Pennsylvania to the Plaintiff' '5 attorney of
record at the addless below:
Robert L. O'Brien, Esquire
17 W. South Street
Carlisle, PA 17013
~UF~
Attorney for Defendant
DATE: July ()Z-, 1996
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