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HomeMy WebLinkAbout97-00527 LAW OfFICES SAlOIS, GUIDO, SHUFF & MAS LAND 26 W, HlOIf STREET 2109 MARKET STREET CARLISLE, PA 170!3 CAMP ifiLL. PA 17011 PIfONE (717) 243-6222 PIfONE (717) 737.3405 CERTIFIED COPY; . APR 24 199BLP subject to the Declaration and its by-laws. The Members of the Board are elected by, and must be comprised of, Westwood Village Unit Owners. The Council, on the other hand, is responsible for the management, care and maintenance of the condominium buildings and grounds, with the exception of the Community Facilities. Unlike the Board, the Council, while elected by the unit owners, need not be comprised of unit owners, Additionally, although the Council is subject to the Declaration, unlike the Board, the Council is subject to and governed by the Code of Regulations of Westwood Village Condominium recorded in the Cumberland County Recorder of Deeds office at Miscellaneous Book 213, Page 283, as amended (the "Code") . Both the Board and the Council levy assessments on the unit owners in order to support their respective activities, In connection with those assessments, on July 9, 1986, the Council and the Board entered into a written contract (the "Agreement") whereby the Council agreed to collect a single monthly fee from the unit owners and then to disperse therefrom a portion of the fee, previously agreed upon, to the Board to cover care, maintenance and management of the Community Facilities, The Agreement was duly adopted and executed by the Council and the Board, Prior to the effective date of the Agreement, contrary to the Declaration, the affairs of both the Condominium and the Association were managed by the Council, The Agreement was entered into as the result of the mutual desire of the Council and the Board to each assume responsibility for the affairs of its respective areas and to promote the operational efficiency of both the Council and the Board. The Agreement became effective on July 9, 1986, and specifically provides that the Agreement shall remain in effect until rescinded by both a majority of the Council and a majority of the Board. Both the Board and the Council adhered to the Agreement until July 8, 1996, when Council, by letter from its President, informed the Board that it planned to repudiate the Agreement and that Council would stop collecting asseosments on behalf of the Board after December 31, 1996, Since that date, Council has refused to collect assessments on behalf of the Board, As evidenced by Council's letter, Council's repudiation of its obligations under the Agreement was purely a coercive tactic employed to force the Board to agree to Council's demand to consolidate the Board and the Council. Due to Council's refusal to collect the monthly assessments on behalf of the Board as required by the Agreement, the Board has incurred significant expense in connection with the collection of same. As a result of Council's repudiation of the Agreement, the Board instituted the instant action for Declaratory Judgment, requesting this Honorable Court to enter an Order of declaratory judgment as follows: A, Declaring that the Agreement is valid and enforceable. B. Declaring that the Council is bound to collect the assessments for the Community Facilities levied by the Board pursuant to the Agreement. C. Declaring that the Council shall reimburse the Board tor all costs of collection of assessments for Community Facilities after December 31, 1996. D. Declaring that the Council shall reimburse the Board for , all attorneys fees incurred in enforcing the Agreement. E. Ordering such other relief as this Honorable Court deems appropriate. II, The Principal Issues Before the Court are as Follows: (al Whether the Agreement is a valid and enforceable contract between the parties. (bl Whether the Council breached its obligations under the Agreement by its repudiation of the Agreement as set forth in the letter dated July 8, 1996, and its refusal and failure to collect assessments on behalf of the Board as required by the terms of the Agreement since on or about December 31, 1996, entitling Plaintiff to the recovery of costs of collection incurred by Plaintiff after December 31, 1996, as a result of the Council's breach of the Agreement. (c) Whether the Plaintiff is entitled to the specific performance of Council's obligations under the Agreement, III. Statement as to the Principal Issues of Liability and Damaaes: (a) Whether the Board is entitled to reimbursement for all costs of collection of assessments for community facilities after December 31, 1996, which costs were incurred as a direct result of Council's breach of its obligations under the Agreement, (b) Whether the Board is entitled to reimbursement from the Council for all reasonable attorneys fees incurred in enforcing the Agreement. IV. Summary of Leaal Issues Reaardina Admissibility of Testimony. Exhibits, or any Other Matter. and Leaal Authorities Relied on: None. V. The Identity of Witnesses to be Called: (a) Larry Phillips (b) John Calaman (c) Acting Secretary of the Council (d) Acting Secretary of the Board (e) Anne Nisson (f) Dickson Hemma (g) Barbara Morgan (h) Jerry Vogle (i) Bill Hicks (j) Grace Lovell (k) Bill Bopp (1) Sherry Akens (m) Mary Miller t (n) Deanna Robinson (0) James Stevens and/or Custodian of Records for Property Management Inc. Plaintiff reserves the right to identify additional witnesses, p VI. List of Exhibits with Brief Identification of Each: (a) Code of regulations of Westwood Village Condominium recorded in the Cumberland County Recorder of Deeds Office at Miscellaneous Book 213, Page 328 and the amendments thereto. (b) Declaration creating and establishing Westwood Village Condominium recorded in the Cumberland County Recorder of Deeds Office at Miscellaneous Book 213, Page 283 and the amendments thereto. (c) Minutes of the meeting of the Board approving the Agreement, (d) Minutes of the meeting of the Council approving the Agreement. (e) Memorandum of Understanding between the Council of Westwood Village Condominium and the Board of Directors, Westwood Village Community Association, Inc, dated July 9, 1986, (f) Articles of Incorporation filed on behalf of Westwood Village Community Association, Inc, (g) Letter dated July 8, 1996 from William H, Hicks, President for Council of Westwood Village to Ms. Anne Nisson, President, Board of Directors Westwood Village, ;; .; , ~ APR 2 9 1998tR Shumaker Williams,p.c. AttORNEYS AT LAW P. 0, BOX B8. HARRISBURG, PENNSYLVANIA 17108 .'6 Despite the general consensus to consolidate the roles of the Board and Council, the Board refused to do so and insistcd on forcing Council to comply with the temlS of the memorandum, On July 8, 1996, Council provided the Board six months notice that it would no longer comply with the tenns of the memorandum elTective December 31, 1996, Aller Council ceased abiding by the temlS of the memorandum, the Board liIed this Declaratory Judgment action on January 13, 1997 requesting this Court declare the memorandum between the Board and Council valid and enforceable and requesting this Court declare that Council is "bound" to adhere to the tenns of the memorandum, II, Statement of Basic Facts as to Damages: The Board has not sulTered any damages as a result of any actions taken by Council. Once it discovered its financial condition was adversely aITected by the memorandum, Council notified the Board, Aller the Board refused to work the maller out, Council provided the Board with six months notice of its intent to not collect the Board's assessments per the memorandum, Thus, the Board had ample time to put in place alternative collection arrangcments and mitigate their potential damages, Moreover, because Council no longer uses the Condominium offices or club house free of charge, the Board is free to lease thcse facilities to produce additional revenue, Thus, the Board has not been damaged by the actions alleged in this action, 2 I V. Summary of Le~allssues Re~ardln~ Admlsslb11lt)' ofTestlmony. Exhiblls or any Other Matter. and Le~al Autborllles Relief Upon None. V. Identity of Wllnesses to be Called A, Larry Phillips 8, John Calaman C, Acting Secretary of the Council 0, Acting Secretary of the Board E, Ann Nisson F, Dickson Hemma G, Barbara Morgan H, Jerry Vogel L Bill Hicks J, Grave Lovell K, Bill Bopp L. Sherry Akens 4 M, Mary Miller N, Deanne Robinson 0, James Stevens and/or Custodian of Records for Property Management, Ine, p, Robert Maxwell, Property Management, Ine, Plaintiff reserves the right to identify additional witnesses, VI. List of Exhibits with Brief Identification of Each A. Code of Regulations of Westwood Villnge Condominium recorded in Cumberlnnd County Recorder of Deeds' Office at Miseellnneous Book 213, Page 238, and the amendments thereto, B. Declamtion erenting and estnblishing Westwood villnge Condominium recorded in the Cumberland County Recorder of Deeds' Office nt Miseellnneous Book 213, Page 283, and the amendments thereto, C. Minutes of the meeting of the Bonrd approving the Agreement. D, Minutes of the meeting of the Council npproving the Agreement. E, Memorandum of Understnnding hetween the Council of Westwood Villnge Condominium and the Bonrd of Directors, Westwood Villnge Community Assoeiation,lne, dnted July 9, 1986, F, Articles of Incorporation liled on behnlf of Westwood Villnge Community 5 ~ >- 11- rl) rc ~I .;J \.() <:J t.,- 8 ~ UJ(! <' - ~ ~." .... 00 ~ c~( , , 1\ I.J.. .. ~..:: =:r- ....,; - lLC" , '.1 to c,'< ' "<.J} l, 11 0'" (" i :.-; ~ U-l' " [,:" ~. t.\j -j \( ,- ~~.; '!h. (f} u -' ~ ", r- :,) u en u ~ !~U .0: VI- . . ... ~::~~ ~ :i! ~ ::i.......... ::&:E!::!:: ~ ~ ~ IS ..tt ~ I ~ " " Po UJ ... ~ N iE = ~ i '" ... u .. ~ '" !;: ,:: ~~ r<I ." III I Po ... '" ,:: Cl ,:: !;l z . U . ." ~ OJ 0 .., ~ . III '" ~ ... om r<lU'" . OJ E-< ~ r.. 5 t!lzPo > Cl ~ ~o 0 ~ ''": UJ ~ i 0 !il . ~ U ..:l c::l !::!alll !;:~ r..!!J U !;: 5 0 ~ ... 0'" H t:l ",g'l'~ U ClE-< z U .c-Mf"'I 8~ ..:l'" r<I ~ .!!l:: ~ ~ f;j ...:0: Cl rn :cu;.:r: r<I ~g ~~ ... hcc E-< ~ c::l UJUJ ... ;Oil" " z !il~ 00 < ~ui2i H U uu rn . . . WESTWOOD VILLAGE COMMUNITY ASSOCIATION, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. q I /. .'j ,y / CIVIL ACTION - LAW COUNCIL OF WESTWOOD VILLAGE CONDOMINIUM, Defendant DECLARATORY JUDGMENT COMPLAINT Plaintiff brings this action pursuant to the Declaratory Judgment Act, 42 Pa. C.S.A. S7531, et seq., and Pa. R.C.P. 1601, and in support thereof avers as follows: 1. Plaintiff is the Westwood Village Community Association, Inc., a duly incorporated Pennsylvania non-profit corporation with an address at 650 Westwood Drive, Enola, Pennsylvania 17025. 2. Defendant is the Council of Westwood Village Condominium, 650 Westwood Drive, Enola, Pennsylvania 17025. 3. Westwood Village Condominium is a condominium complex located in Enola, Cumberland County, containing several different types of residential dwellings as well as a club house, tennis court, swimming pool and various parking areas. 4. Plaintiff (the "Board") and Defendant (the "Council") are the two governing bodies of the Westwood Village Condominium created in the Condominium Declaration of January 9, 1975. 5. The Board is responsible for the care and maintenance of the community facilities of the condominium, including the club house, tennis court and swimming pool. 6. The Council is responsible for the management, care and maintenance of the condominium, with the exception of the aforementioned community facilities. 3 7. The Board and the Council each assess monthly fees to the unit owners to support their activities. 8. On July 9, 1986, the Council and the Board entered into a contract, entitled "Memorandum of Understanding Between the Council of Westwood Village Condominium and the Board of Directors of the Westwood Village Community Association" (the "Agreement"). A copy of the Agreement is attached hereto and marked as Exhibit "All. 9. The Agreement provides in pertinent part that the Council shall collect a monthly fee from all unit owners on behalf of the Board and the Council and then deliver to the Board the portion of the combined fee assessed for community facilities. 10. On July 8, 1996, by letter from Council President William Hicks, Council informed the Board that it planned to repudiate the Agreement and that Council would stop collecting assessments on behalf of the Board after. December 31, 1996. A copy of that letter is attached hereto and marked as Exhibit "B". 11. The Council has refused to collect assessments on behalf of the Board for January, 1997. 12. The Board believes and therefore avers that the July 9, 1986 Agreement between the Board and the Council is a valid contract and that the Council is currently acting in breach of that contract. WHEREFORE, Plaintiff respectfully requests this Honorable Court to take jurisdiction of this controversy and that after hearing and adjudication it enter an Order of Declaratory Judgement as follows: a. Declaring that the contract entered into by the Board of 4 / I ~ :: ~ - - " ;v MEMORANDUM OP UNDERSTANDING betwecn The Council of Westwood Villagc Condominium and Thc Board of Directors Westwood VilJlage Community Association, Inc. 1. The Council of Westwood Village Condominium, hereinafter referred to as the Council, and the Board of Directors, Weutwood Village Community Asuociation, Inc., hereinafter referred to as the Board, hereby agree in principle to the following I a. The Council is responsi~e for the affairs of Westwood Village Condominium, hereinafter referred to lm the Condominium. The Condominium consistu of those partu of Westwood Village that have been submitted to the provisions of the "Unit Property Act", 1963, July 3, P.L. 196. The Council shall govern the affairs of the Condominium according to the provisionu of the "Unit Property Act", the "Declaration Creating and Establishing Westwood Village Condominium", and the "Code of Regulations of Westwood Village Condominium". b. The Board is responsible for the affairu of Westwood Village Community Association, Inc., hereinafter referred to as the Association. The Association, a non-prOfit membership corporation, incorporated under the laws of the Commonwealth of Pennsylvania, is the entity to which the Developer (M.L.W. Construction Corporation, a Maryland corporation, and M.L.W.'s s~bsequent succe~son;,,~Dfl...aM,i~9ns~ eitheU~ .j~~\I~i;~~~f/:;;~~~~~~t1tQ~~g';I~~~~~~;ftI6i~ ~'~Ii~. .D~.l..aJ:ation Qf':Covenan~ and Restrictions,''::weii'tWJJ.Qli!t o,::;:r......:.Lage.-Community Association, "Inc. The board shall govern ""'thll"affairs of the Association according to the provis ions of the "Declaration of Covenants and Restriction, West~ood Village Community Association, Inc." and the "By-laws of Westwood Village Comm~nity Ass~ciation, Inc." c. Prior to the effective date of this Memorandum of Understanding, Council members have managed the affairs of both the Condominium and of the Association. It is the desire of both the Council and the Board that each entity assume responsibility for the affairs of its respective area. 1 " Exhibit "All (,. In order to promote the opcrational entities, the Council and the Board themselveo the following. a. Meetin9o. i. The Council shall conduct ite rcgular meetingo at intervalu opecified in the Code of Regulations of Westwood Village Condominium, Article IV. Any Unit Owner or resident may attend regular Council meotings. Council rcocrveo for itoelf the right to caucus privately for purposes of discussion. Special Council meetings may be callcd for the purposc of transactin9 urgent business. efficiency of both hereby covenant for ii. The Board shall conduct its regular meetings at intervals specified in the By-laws of Wcstwood Village Community Associ at ion, Inc., Article V. Any Association Member or resident may attend regular Board meetings. The Board reserves for itself the right to caucus privately for purposes of discussion. Special Board meetings may be called for the purposc of transacting urgent busineDs. b. Assessments. i. Thc Council shall determinc assessments applicable to "Common Elements" in accordance with the appropriate Condominium documents. ii. The Board Dhall determine "Community Facilities" lmsessments in accordance with the appropriate Association documents. iii. The Council shall collect from the Unit Owners and Association Members a combined monthly Condominium and Association fee. As the fees are collected, Council shall deliver to the Board that port ion of the combined fees that is assessed for "Community Facilities". c. Maintenance Contracts. When appropriate, both the Council and the Board shall endeavor to utilize the services of the sarra maintenance contractors for both Condominium and' Association requirements. If both the Council and the Board should jointly agree to use th~ service~of a particular contractor, thl;! contract price shall be ftemized as to what charges are applicable to the Condominium and to the Association, and such charges shall be paid accordingly by " each entity. 2 PRAECIPE FOR LISTING CASE FOR ARGUMENT (~t be typewritten dtld sulmi.ttcd lZ\ duplicate) TO THE PROTHONO'l'AIl\' OF CUMBERLAND COUNTY: Please llst the witlun matter fer the next ~t Coort. ._ ______.... ____ __ a. __ _ __ _ _ _ _ ______ _._ ____ _ .___ __ _ ___ ----__________......____...__________________ CAPTION OF CASE (cntm caption must be 5~ted in full I Westwood Village Community Association, Inc. ( plaintilf) vs. Council of Westwood Village Condominium ( Deferdant) 1'10. 97-527 Civil 19 1. State matter to be argued (i.e.. pldintiff's ITOtion for new trial. defendant' 5 demurrer to complaint. etc.): Defendant's preliminary objections in the nature of a motion to dismiss for lack of subject matter jurisdiction. 7. Identify mUl'.sel who will argue case: (a) for plaintiff: Address: David J. Freed, Esquire 2109 Market Street Camp Hill, PA 17011 (bl for defendant: Address: Richard C. Ruben, Esquire 113 Locust Street Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argument Court Date: April 16, 1997 '" '.a' ~'P'" David J. Freed, Esquire Ddtoo: March 18, 1997 'J:>o ...:'.\'cr. r-;:...... \.. Attorney for Plaintiff, Westwood Village Community Association, Inc. ~ -. lOlNEZ (.!Il) xv:! . azz-z\:z (.!Il) lOll 1 VJ '~lJnIl5ImIVII ~33lJJ.5 ~5nJOl \:\I N3HmI .:> OlIVH:>m 5:DI:I:IO MV'I " - () .0 0 F; -.I -n -" [:i ~ ,;J nl:" :::~ '::!J ;.~':;. ' ilr_ ~},~ ~ :~ nr.1 <::> .26 - . '. -.." -'Of! <:!23 I , r. ;-")nl ~ .:-J if~ c::> -<., !(J (r: l:. I: l , I .. ! " l .. I , -' .. -. " r- c> C' II SAIDIS, GUIDO, I 1./ SHUFF & l\IASLAND II I, II II II I' II II I! Ii II II " 26 W. High SU"ttl Carli~le. PA II WESTWOOD VILLAGE COMMUNITY ASSOCIATION, INC., Plaint if f IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-527 COUNCIL OF WESTWOOD VILLAGE CONDOMINIUM, Defendant CIVIL ACTION - LAW DECLARATORY JUDGMENT ANSWER TO NEW MATTER AND NOW comes the Plaintiff, Westwood Village Community Association, Inc., by and through its attorneys Saidis, Guido, Shuff & Masland and respectfully avers the fOllowing in support of the Answer to New Matter as filed by the Defendants: 13. No response is required. 14. Denied; it is specifically denied that the Memorandum of Understanding is not a binding obligation on the parties. Specifically, it is a binding obligation and enforceable undertaking of counsel pursuant to the Condominium documents, and this is precisely what the Plaintiff is asking the Court to decide in its Declaratory Judgment action, 15. Denied; the Plaintiff Community Association and the Defendant Council are two distinct administrative bodies, and no formal undertaking has taken place to separate the two bodies. 16. Denied; the contingencies have not been met to consolidate and merge the activities of the Plaintiff and Defendant. 17. Denied; it is specifically denied that the issues raised in the Complaint are m'ltters within the power of the political voting process of the Board and Council. Because they are two separate entities and have not been merged in one body, ~ ~ l.- .~ f:; ,~ ('o' J-:- tl/~.-.\ '. , -. -- .- . ). - (:. ). - -,. '....' '.: .. yo, (" , CJr cT, ~:.: I". "- ::..; -.J . Q":t.' !-:: " j ,~ '-i '\.1... j ,.... -. 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