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96 OCT \8 AH 9125
CUM6l:HINlL) COUNTY
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and correct copy of the same is attached hereto and made a part hereof as Exhibit "B,.
3. On or about August 28, 1996, Defendants served a First Request for
Production of Documents upon Plaintiff, Phelaro, Inc. A true and correct coPy of
the same Is attached hereto and made a part hereof as Exhibit "C."
4. As of this date, Plaintiff has not responded to Defendants' First
Request for Production of Documents.
5, Plaintiff, in the case sub justice, seeks possession of a check book
presently held by PNC Bank, N,A. The interrogatories to which the Plaintiff
objects concern, inter alia, the very foundation of Defendants' claim to the subject
checkbook, to wit: the factual background leading to an agreement between
Plaintiff and Defendants' predecessor. in. interest.
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6. The interrogatories to which Plaintiff objects are directly relevant to
the issue of who hatl a superior right to possession of the checkbook and are
reasonably calculated to lead to the discovery of admissible evidence,
7. In addition to the blanket objections, Plaintiff has failed to respond at
al\ to Interrogatory No, I, and Interrogatory Nos. 14 through 17,
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The Defendants are entitled to an Order in 8ub8tantially the form
attached hereto, compelling Plaintiff to 8ubmit full and complete answers to the
di8covery propounded upon it.
Respectfully 8ubmitted,
METTE, EVANS .I: WOODSIDE
By:
AttorneY8 for Defendants
Jame8 H. Best and PNC Bal1k. N.A.
DATE: October 111, 1996
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Exhibit A
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(A)
"Document" means any written, printed, typed, or other graphic
matter of any kind or nature, however produced or reproduced, including
photographs, microfilms, phonographs, video and audio tapes, punch cards,
magnetic tapes, discs, data cells, drums, and other data compilations from which
information can be obtained,
(B) "Identify" or "Identity" means when used in reference to ..
,
(1) A natural person, his or her:
(a) full name; and
(b) present or last known residence and employment
address (including street name and number, city or
town, and state or county);
(2) A document:
(a) its description (e.g., letter, memorandum, report, ete,),
title, and date;
(b) its subject matter;
(c) its author's identity;
(d) its addressee's identity;
(e) its present location; and
(0 its custodian's identity;
(3) An oral communication:
(a) its date;
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1, Pleue atate your full name, each other name, if any, which you havlI used
or by which you have been known, Pleue also provide a brief description of
your educational background,
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De.cribe the disposition of funds identified in response to the preceding
Interrogatory, and specifically provide the name of the individual or entity
that roceived the sale proceeds, the name, account number and financial
inBtltution into which the funds were depoflited, and provide a detailed
deacription of the ultimate use of those funds, Identify all documents which
.-eference, 1'Ilflect or relate to the disposition of these funds.
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4, Do you contend that the Phelaro, Inc, . Allentown checking account which is
the lubject of this Replevin Action was wtt established by agreement of the
parties based upon a specific concern over the accounting of funds derived
from the aale of restaurant property owned by Phelaro of Allentown, Inc.
and/or it parent company. Phelaro, Inc,?
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If your answer to the immediately preceding Interrogatory la "y.... delCribe
your understanding of the agreement between the Trust Department of the
First Bank and Trust Company and Mr, Richard E. Phelan which led to the
establlahment of the C!hecking account which la the subject of thla Action.
Identify all documents which reference, reflect or relate to your
understanding of this agreement,
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8. Identify allnoticos and all other documents provided to any shareholder or
director of Phelaro. Ine, of the action taken by Richard E. Phelan as set
forth in the purported written consent of the Board of Directors dated April
11, 1996 as attached to Plaintift's Complaint, .
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12, Do you contend that James H, Best and/or PNC Bank, N.A. breached ita
arreement with Mr, Phelan regarding the dlsposition of funds from the
checking account which is the subject of this action? If so, identify each and
Elvery instance of breach and describe with particularity the manner in
which you believe either Mr, Best or PNC Bank, N,A, falled to comply with
the agreement between the parties to permit withdrawals from the checking
account subject to joint approval of Richard E, Phelan and PNC Bank, N,A.
and/or James H. Best, In addition, state with particularity each and every
item of damage which you contend you have suffered as a result of said
breach and identify all documenta which reference, reflect or relate to any
such breach and any such item of damage,
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18. 'J:XMrt witnesR8S
Identify each expert you intend to call 88 a witness at the trial of this
matter, and for each expert state:
(a) . The subject matter about which the expert is expected to testify; and
(b) The substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each opinion,
(You may file 88 your answer to this interrogatory the report of the
expert or have the interrogatory answered by your expert,)
ANSWEllr
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CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing
document upon the penon(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand
delivery, as follows:
Douglas B. Marcello, Esquire
THOMAS, mOMAS &: HAFER
305 North Front Street
P,O, Box 999
Harrisburg, PA 17108
METTE, EVANS &: WOODSIDE
By:
,CL1-1ltl\
Christo her C. Conner, Es.quire
Sup, Ct, I,D, *36407
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110.0950
(717) 232-5000
Attorneys for Defendants
Date: f; 12-~ f-t"
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PHILARO, INC.,
Plaintiff,
Defendant..
I IN '1'H1 COURT or COMMON PLIAS
I CtJMBlRIoAND COUNTY, PINNSYLVANIA
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I CIVIL ACTION - LAW
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I ACTION IN RBPLBVIN
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I NO. 96-2956 CIVIL
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I JURY TRIAr. DBMANDBD
v.
JANIS H. BBST and
PNC Bank, N.A.,
PLAINTIrp's OBJBCTIONS TO DEPENDANTS' INTBRROGATORIBS
2. Objection. Plaintiff objects to Interrogatory No, 2 as
it seeks information chat is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action, Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith.
3, Objection. Plaintiff objects to Interrogatory No.3 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action. Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith, and to the
extent that it would cause unreasonable annoyance, oppression,
burden or expense to the responding party.
4. Objection. Plaintiff objects to Interrogatocy No.4 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action, Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith,
5, Objection, Plaintiff objects to Interrogatory No, 5 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action, Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith.
6. Objection, Plaintiff objects to Interrogatory No.6 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action, Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith.
7. Objection. Plaintiff objects to Interro~atory No, 7 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action. Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith.
10, Objection, Plaintiff objects to Interrogatory No, 10 as
it seeks information that is not relevant and is not reasonably
calculated to lead to the discovery of admissible evidence in that
action, Additionally, Plaintiff objects to the interrogatory to
the extent the information is sought in bad faith,
11, Plaintiff objects to Interrogatory No, 11 as it seeks
information that is not relevant and is not reasonably calculated
to lead to the discovery of admissible evidence in that action.
Additionally, Plaintiff objects to the interrogatory to the extent
the information is sought in bad faith,
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12. Plaintiff objects to Interrogatory No. 12 as it seeks
information that is not relevant and is not reasonably calculated
to lead to the discovery of admissible evidence in that action,
Additionally, Plaintiff objects to the interrogatory to the extent
the information is sought in bad faith,
13. With regard to Interrogatory No,
13 requesting
information with regard to any agreement as to the making of
payments on behalf of the corporation, Plaintiff objects to
Interrogatory No, 13 as it seeks information that is not relevant
and is not reasonably calculated to lead to the discovery of
admissible evidence in that action,
Additionally, Plaintiff
objects to the interrogatory to the extent the information is
sought in bad faith,
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Respectfully submitted,
THOMAS, THOMAS (& HArlR
By:
.,
Dougla
Atto y
P,O. Box 999
305 Front Street
Harrisburg, Pennsylvania 17108
(717) 755-7238
DATE:
7 /gr ffr;,
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Attorney for Plaintiff
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'1'HOIIU , '1'HOIIU . BAr..
Doug1.. .. "~c.11o, ..qui~.
iOS Ko~th r~ont .t~..t
..~~i.bu~g,'A 1710.
(717) 237-7100
Atto~.y fo~ 'laintiff
PHILARO, INC.,
Plaintiff,
Defendant..
I IN TIm COURT OF CONNON PLIAS
I CUNBIRLAND COt1N'1'Y, ~IDmSYLVAN:tA
I
I CIVIL ACTION . LAW
I
I ACTION IN RlPLIVIN
I
I NO. 96-2956 Civil
I
I JURY TRIAL DIMANDID
v.
JANIS R. BEST and
PNC Bank, N.A.,
CERTIPICATE OF SERVICE
ANJ:) NOW, this;;2. 1.t!1day of September 1996, I, MARTHA L. CLARK,
a secretary in the law firm of Thomas, Thomas & Hafer, hereby
certify that I sent a true and correct copy of PLAINTIPF'S
OBJIlCTIONS TO DIPBNDANTS' INTERROGATORIES via facsimile and by
placing a copy of the same in the United States Mail, first class,
postage prepaid, to the following:
Christopher C, Connor, Esquire
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O, Box 5950
Harrisburg, PA 17110-0950
7na~ :If f~aA.10
Martha L. Clark
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1. AB used herein, the terms "you" and 'your" mean the person to whom
this request for production is directed, its predecessors, successors, subsidiaries,
affiliates, divisions, principals, and all members, officers, employees, agenta,
representatives and other persons acting (or who acted) or purporting to act (or
who purported to act) on ita behalf,
2. "Person" or "persons" means all natural persons, corporations,
partnerships or other business associations, and all other legal entities, including
all members, officers, predecessors, assigns, divisioDll, affiliates and subsidiaries.
3. AB used herein, the term "documents" means all non-identical copies,
whether different from the originals by reason of any notation made on such
copies or otherwise, including without limitation to correspondence, memoranda,
notes, diaries, statistics, letters, telegrams, minutes, contracts, reports, studies,
checks, statementa, receipts, returns, summaries, pamphlets, books, prospectuses,
certificates, drawings, plans, interoffice and intraoffice communications, or offers;
notations in any form made of conversations, telephone calls, meetings or other
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communications; bulletins, printed matter (including newspapers, magazines and
other publications, and articles an clippings therefrom), press releases, computer
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printouts, teletypes, telecopies, invoices, orders, confirmations, shipping or delivery
advised, ledgers, worksheets (and all drafts alterations, modifications, changes and
amendments of any of the foregoing), graphic or aural records or representations
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7, Each request for production of a document or documents shall be
deemed to call for the production of the original document or documents, to the
extent that they are in or subject to, directly or indirectly, your control. In
addition, each request should be considered BB including all copies and, to the
extent applicable, preliminary drafts of documents which, as to content, differ in
any respect from the original or final draft or from each other (e.g., by reBBon of
handwritton notes or comments having been added to one copy of a document but
not on the original or other copies thereoO.
B. The term .communications. is used here in the broad sense and
includes, but is not limited to, any and all conversations, meetings, discussions,
and any other occasion for verbal exchange, whether in person or by telephone, as
waIl as all letters, memoranda, telegrams, cables, and other writings of
documents.
9. Unless otherwise set forth herein, all documents requested are for the
time period commendng 1970 through the present.
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1, All statements, signed statements, transcripts of recorded statements
or interviews of any person or witness relating to, referring to or describing any of
the factual allegations set forth in the Amended Complaint.
2. All expert opinions, reports, summaries or other writings in your.
custody or control or your attorney or insurers, which relate to the subject matter
of this litigation.
3. All documents, correspondence or other drawings, sketches, diagrams,
or writings in your custody or control or your attorney or insurers, which reference
or relate to the accounting and disposition of funds received from the sale of the
restaurant/tavern owned by Phelaro of Allentown, Inc. and/or Phelaro, Inc,
4. All documents, correspondence or other drawings, sketches, diagrams
or writings in your custody or control or your attorney or insurers, which reference
or relate to the actions taken by Richard E. Phelan to appoint Linda Phelan as the
Treasurer of Phelaro, Inc.
5. All documents, correspondence or other drawings, sketches, diagrams
or writings in your custody or control or your attorney or insurers, which reference
or relate to any other action taken by Richard E. Phelan to fill officer or director
positions since 1990.
6. All documents, correspondence or other drawings, sketches, diagrams
or writings in your custody or control or your attorney or insurers, which refe'ence
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or relate to the agreement between Richard E. Phelan and Defendants or
Defendants' predecessors which led to the establishment of the checking account
which is the subject of this action.
7. All documents, correspondence or other drawings, sketches, diagrams
or writings in your custody or control or your attorney or insurers, which reference
or relate to Plaintiff's allegation that no agreement precludes Plaintiff from
possessing the checkbook or making payments on behalf of the corporation.
8. All statements and/or transcripts of interviews of fact witnesses
obtained in this matter.
9. All documents identified in your answers to any set of interrogatories
propounded by any party in this litigation.
10. All documents which you intend to rely upon or introduce at trial of
this litigation.
NOTE:
Ai!, referred to herein, "document" includes written,
printed, typed, recorded, or graphic matter, however
produced or reproduced, including correspondence,
telegrams, other written communications, data
processing storage units, computer disks, tapes,
contracts, agreements, notes, memoranda, analyses,
projections, indices, work papers, studies, reports,
surveys, diaries, calendars, films, photographs, diagrams,
drawings, minutes of meetings, or any other writing
(including copies of any of the foregoing, regardless of
whether you are now in possession, custody, or control of
the original) now in your possession, custody, or control,
your former or present counsel, agents, employees,
officers, insurers, or any other person acting on your
behalf.
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CBRTIFICATB OF SBRVlCB
I hereby certify that I am this day serving a copy of the foregoing
document upon the person(s) and in the manner indicated below, which lervice
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand
delivery, as follows:
Douglas B. Marcello, Esquire
maMAS, THOMAS .. HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
METrE, EVANS" WOODSIDE
" '
By:
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Date: August 28, 1996
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CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing
document upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand
delivery, as follows:
Douglas B. Marcello, Esquire
THOMAS, THOMAS .. HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
METTE, EVANS" WOODSIDE
By:
Chris her C. Conner, squire
Sup. Ct. I.D. #36407
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Dllte: October lIS, 1996
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5. On or about April 12, 1996, Richard E. Phelan, sole
surviving Director, President, and majority shareholder of Phelaro,
Inc. hand delivered to Defendant Best correspondence dated April
11, 1996, a true and correct copy of which is attached hereto as
"Exhibit B."
6. That correspondence notified Defendants that,
pursuant to a Corporate Resolution, Phelaro, Inc. had appointed
Linda Phelan as Secretary and Treasurer of the corporation, thereby
filling the vacancy in those positions created by the death of
David Magaro (formerly an officer of Phelaro, Inc.).
7. That correspondence and the Corporate Resolution
annexed thereto make clear that Phelaro, Inc. has made a demand
upon Defendant Best for return of the corporation's checkbook.
8. Despite such demand, Defendants have refused to
relinquish the same.
9. An additional demand was directed to the attorney
for the Estate, John M. Eakin, Esquire, by correspondence dated
April 17, 1996, a true and correct copy of which is attached hereto
and made a part hereof as "Exhibit C."
10. Subsequent to his receipt of this correspondence,
Mr. Eakin conformed the Defendants' refusal to I'elinquish
possession of the corporation's checkbook to the corporation
(Plaintiff/Phelaro, Inc.).
11. Plaintiff, Phelaro, Inc., has an immediate right to
the possession of its own checkbook, which right has been
frustrated by Defendants' refusal to relinquish the same.
- 2 -
WHIRlrORI, Plaintiff Phelaro, Inc. demands judgment in
its favor and against Defendants, James H. Best and PNC Bank, N.A.
for possession of the subject Phelaro, Inc.'s checkbook, together
with costs of this action, and such other and further relief as
this Court deems appropriate.
THOMAS, THOMAS & HAFER
BYI-:~?X>7:;;;~
Attorney I.D. No. 36510
P.O. Box 999
305 Front Street
Harrisburg, Pennsylvania 17108
(717) 755-7238
Attorney for Plaintiff
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THE _,,\tEAl)
Gn~o~ MAN
opirit- Jv1erehari (2) Grccer
RICHARD B. Ptll!,LMi
April 11, 1996
James Best, Senior Vice President
PNC Bank, N.A.
4242 Carlisle Pike
P.O. Box 308
Camp Hill PA 17001..{)308
Re: Phelaro, Inc.
Dear Mr. Best:
I enclose a Unanimous Consent of Directors in Lieu of a Meeting, which I believe to be self-
explanatory. Among the actions I have taken In my capacity as sole director of Phelaro, Inc.
is the appointment of my wife, Linda Phelan, as Secretary and Treasurer of the corporation
10 fill the vacancy in those positions created by the death of David Magaro. Inasmuch as '
Linda Phelan will now be acting as the Treasurer of the corporation, I hereby request that
you immediately tender possession of the checkbook for the corporation (which you currently
hold) to her. Additionally, I believe it is likely that you will need to cooperate in the .
execution of new signature cards for this account, and I expect your cooperation in this
regard.
Linda Phelan's fll'st act as Treasurer will be to make payment to PNC Bank of Loan No.
550??oo3138-00018, a loan evidenced by a certain Promissory Note date June 5, 1995 in the
original amount of Four Hundred Thirty-Seven Thousand Four Hundred Forty-One !I'Id
23/Dollars ($437,441.23). The payoff of this obligation is reflected in an April 4, 1996
letter from Eric D. Krimmel as Eighty-Six Thousand Nine Hundred Fifty-Two and
85/Dollars ($86,952.85) as of April 17, 1996. Per your attorney, John Eakin's letter of
April 9, 1996, addressed to my attorney. Mark D. Bradshaw, you have indicated that, with
my agreement, "this loan can be paid off immediately." I am in agreement that this loan
should be paid off, and, per the enclosed Consent, have instructed the Treasurer of the
Corporation to do so.
Additionally, I understand from conversations my attorneys have had with Lowell Gates,
attorney for the estate of David Magaro, that Mr. Gates is in agreement that certain amounts
due and owing to Variety Amusement and Variety Investments should be promptly paid.
114 EAST ALLEN STREET, MECHANICSBURG, PENNA. 17055
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without knowledge or information sufficient to form a belicf liS to the truth of the
remaining averments of Paragraph 3 regarding the naturc and scope of the stock
certificates issued by Phelaro, Inc. Said remuining averments therefore are denied
and strict proof thereof, if admissible, is demanded at the time of trial.
4. Admitted in part and denied in part. It is admitted that Defendants
are in the possession of a checkbook for the account designated Phelaro, Inc. -
Allentown, checking account number 50-3012-7531. By way of further response,
the New Matter below is incorporated by refere:lce 8!! though fully set forth
herein.
5. Admitted in part and denied in part. It is admitted only that
Richard E. Phelan hand delivered to Defendant BEST the subject correspondence.
The remaining averments of Paragraph 5 are conclusions of law to which no
responsive pleading is required, By way of further response, the New Matter
below is incorporated by reference as though fully set forth herein.
6. Denied. Because the letter of April 12, 1996 is a written document
which speaks for itself, the averment!! of Paragraph 6 which attempt to
characterize, summarize or reiterate the express language of the April 11, 1996
correspondence are specifically denied. Further, any implicit averment that the
2
actions described in the subject correspondence are in compliance with the
Pennsylvania Business Corporation Law or are in compliance with the Articles of
Incorporation and Bylaws of Phelaro, Inc. are specifically denied. By way of
further response, the New Matter below is incorporated by reference as though
fully set forth herein.
7. Denied. Because the letter of April 12, 1996 is a written document
which speaks for itself, the averments of Paragraph 7 which attempt to
characterize, summarize or reiterate the express language of the April 11, 1996
correspondence are specifically denied. Further, any implicit averment that the
actions described in the subject correspondence are in compliance with the
Pennsylvania Business Corporation Law or are in compliance with the Articles of
Incorporation and Bylaws of Phelaro, Inc. are specifically denied, By way of
further response, the New Matter below is incorporated by reference as though
fully set forth herein.
8. Admitted in part and denied in part. It is admitted only that, by
agreement of the parties, Defendants have not unilaterally tendered control of the
subject checkbook to Richard E. Phelan. Any implicit averment that any
individual officer or director of Phelaro, Inc. is authorized to distributed funds
3
from the subject account is specifically denied. By way of further response, the
New Matter below is incorporated by reference as though fully set forth herein.
9. Admitted in part and denied in part. It is admitted only that the
correspondence dated April 17, 1996 was directed to the attention of John M.
Eakin, Esquire. Because the letter of April 17, 1996 is a written document which
speaks for itself, the averments of Paragraph 9 which attempt to characterize,
summarize or reiterate the express language of the April 17, 1996 correspondence
are specifically denied. Further, any implicit averment that the actions described
in the subject correspondence are in compliance with the Pennsylvania Business
Corporation Law or are in compliance with the Articles of Incorporation and
Bylaws of Phelaro, Inc. are specifically denied. By way of further response, the
New Matter below is incorporated by reference as though fully set forth herein.
10. Denied. After reasonable investigation, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the
averments of Paragraph 10 of the Complaint concerning whether or not Mr. Eakin
uconformed" the Defendants' refusal to rf;linquish possession of the subject
checkbook. Said averments therefore are denied and strict proof thereof, if
admissible is demanded at the time of trial. By way of further response, the New
Matter below is incorporated by reference as though fully set forth herein.
4
true and correct copy of correspondence from Wayne P. Kautz, Senior Vice
President and Senior Trust Officer of The First Bank and Trust Company to
Richard E. Phelan dated March 18, 1991 confirming this agreemont is attached
hereto and made a part hereof as Exhibit "A." References to monetary figures and
enclosures have been redacted and/or :-emoved from this correspondence in order
to avoid unnecessary disclosure of potentially sensitive information.
14. The agreement between the Trust Departm~nt of The First Bank and
Trust Company and Mr. Richard E. Phelan was based upon a specific concern over
the accounting of funds derived from the sale of restaurant property owned by
Phelaro of Allentown, Inc., and/or its parent company, PHELARO, INC., Plaintiff
herein. As a result of this concern over the proper accounting and distribution of
funds derived from the sale of the Allentown restaurant, Richard E. Phelan and
The First Bank and Trust Company agreed to establish a new PHELARO, INC. -
Allentown account, care of The First Bank and Trust Company Trust Department,
and agreed that 1.111 revenue derived from the sale of the Allentown restaurant
would be placed into the account and that any withdrawal from the subject
account would require the signatures of a member of the Trust Department of
I
First Bank and Trust Company as well as Richard E. Phelan unless otherwise
mutulllly agreed upon.
6
15. Plaintiff, PHELARO, INC., and Defendant, PNC BANK, N,A., have
operated pursuant to the agreement set forth in the prcceding paragraphs for a
period of approximatcly five years.
16. Plaintiffs purported resolution of April 11, 1996 and Plaintifrs
purported appointment of Linda Phelan as an officer and director of the subject
corporation is in violation of the Pennsylvania Business Corporation Law and the
Articles of Incorporation and Bylaws of Phelaro, Inc. and, as such, the subject
corporate resolution is null and void.
17. Plaintiffs Complaint is barred by the doctrine of unclean hands.
18. Plaintiffs Complaint is barred by the doctrine of waiver.
19. Plaintiffs Complaint is barred by the doctrine of estoppel.
20. Plaintiffs Complaint is barred by t.he doctrine of laches.
21.. Plaintiffs Complaint is barred by Defendant, PNC BANK's superior
right to possession.
7
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VElJIlIQAT'~
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I, JAMES H. BEST, have read the foregoing document and verify that the
facts set forth therein are based upon information I obtained from documents and
former employees and are true and correct to the best of my knowledge,
information and belief. To the extent that the foregoing document and/or its
language is that of counsel, I have relied upon counsel in making this Verification.
I undcrstand that any falsc statements made herein are subject to the
penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities.
DATE:9,/1~/~al ~
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I, JAMES H. BEST, an authorized representative of PNC BANK, N.A., have
read the foregoing document and verify that the facts set forth therein are true
and correct to the best of my knowledge, information and belief. To the extent
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that the foregoing document and/or its language is that of counsel, I have relied
upon counsel in making this Verification.
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I understand that any false statements made herein are subject to the
penalties of 18 Pa. C.S.A. 14904, relating to unsworn falsification to authorities.
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717 (,91.411411
The First Bank and Trust Co.
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March 18, 1991
Mr. Richard E. Phelan
Gingerbread Man Office
114 E. Allen street
Mechanicsburg, PA 11055
RE: ESTATE OF WILLIAM G. MAGARO
,
Dear Mr. Phelan:
We received a list ot deposits and checks paid tor the
Allentown account from Hr. Ocker. untortunately it is not a
complete accounting. There was ot checks written
to Magaro-Phelan. What happened to these tunds when Magaro-
Phelan got them? It the Allentown checks were diverted to
Magaro-Phelan why on the year end statement ot "agaro-Phelan
j,s there not an accounts psyable to Allentown. There is an
outBtandinq note in the amount ot for Allentown.
However that balance just raises another question I On the
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:~~n 3;~B ~~~ ~~~;e::r~ d~:nt a~~t:~:~d a~~o~~;ewa~a~ t put l!~
too?
Your liBt ShOWB waB paid out ot Allentown monies to
FaBt Eddie'B and yet the year end Btatement of FaBt Eddie'B
shows nothing payable to Allentown I I
,
Aside from the fact that a clearer accounting iB required ot
All.ntown monieB we are deeply concerned that contrary to our
agreement at our recent meeting nothing has been done at this
date to BtOP using Allentown monieB. ThiB statement shows
there iB a balance ot as of February 28, 1991.
March'B check iB due and we would anticipate that you will do
as we agreed and get together to open a new Allentown account
with you and I aB signerB on the account. The account would
require both signatures to make a withdrawal.
We look,torward to your cooperation on this matter.
Sincerely,
Wayne P. Kautz
Sr. Vice President and Sr. Trust Officer
ee: John M. Eakin, Esquire
Stanley A. Smith, Esquire
David W. Magaro, eo-Exe~utor
WPKlcam
A PNC BANK
-
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing
document upon the person(s) and in the manner indicated below, which service
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satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by
depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania,
First Class Mail, postage prepaid, as follows:
Douglas B. Marcello, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
,
,
METTE, EVANS & WOODSIDE
By:
Christo her C. Conner, Esquire
Sup. Ct. I.D. #36407
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Defendants
Date: July IS, 1996 .
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the express language of the March 18, 1991 correspondence are
specifically denied. It is specifically denied'that any agreement
prec~udes Plaintiff from possessing the checkbook or making
payments on behalf of the corporation. Plaintiff further denies
any allegations of accounting improprieties set forth in the
letter. It is further denied that such a procedure is required as
the majority of the shareholders of the corporation have determined
that such a procedure is not necessary.
15. Admitted in part and denied in part. Answering Defendant
is without information or belief as to the truth of the averment
that Defendants have operated pursuant to the alleged agreement set
forth in Exhibit A, hence it is denied and proof is demanded at the
time of trial. It is further denied that such a procedure is
required as the majority of the shareholders of the corporation
have determined that such a procedure is not necessary.
16. Denied. It is denied that the resolution of April 11,
1996 and/or the appointment of Linda Phelan as an officer and
director of the subject corporation was in violation of the
Pennsylvania Business Corporation Law and/or the Articles of
Incorporation and Bylaws of Phelaro, Inc. or are null and void.
17. Denied. It is denied that Plaintiff's Complaint is
barred by the doctrine of unclean hands.
18. Denied. It is denied that Plaintiff's Complaint is
barred by waiver.
19. Denied. It is denied that Plaintiff's Complaint is
barred by the doctrine of estoppel.
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PHELARO, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
JAMES H. BEST and P.N.C.
BANK, N.A.,
Defendant.
96-2956 CIVIL TERM
ORDER OF ~OURT
AND NOW, this 9th day of December, 1996, upon
consideration of Defendants' Motion To Compel Answers to
Intarroqatories and Request for Production of Documents, and
fOllowinq a discovery conference held in chambers of the
undersiqned judge on this date in which Plainiff was represented
by Douglas B. Marcello, Esquire, and Defendants were represented
by Christopher c. Conner, Esquire, the motion of Defendants is
granted.
Plaintiff reserves the right to interpose
objections with respect to the request for production of
documents to the extent that such objections have not been
addressed in the disposition of the instant motion. Plaintiff
shall furnish the answers and materials ordered hereunder within
30 days of today's date.
By the Court,
J
OF J~()rMY
95 pEe 16 Ptl 21 [;7
(,'UMGU';..... 'U ll"lINTY
PENNSYLVANIA
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