HomeMy WebLinkAbout97-05923
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MATT CORPORATION,
Plaintiff
23
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
SAMIR J. SROUJI, GILLIAN
R. SROUJI, and LEMOYNE
SQUARE ASSOCIATES,
Defendants NO. 97-5923 CIVIL TERM
~E: PRETRIAL CONFERENCE
A pretrial conference was held on Wednesday,
August 25, 1999, before the Honorable Edward E. Guido, J.
Present for the Plaintiff was Michael L. Bangs, Esquire,
and present for the Defendants was C. Lee Anderson,
Esquire.
This is a contract or quantum meruit case which
counsel have indicated should take two days to try
including jury selection. There are no scheduling
conflicts other than the fact that Defendants' counsel is
unavailable on Thursday morning because of an argument
scheduled in the Commonwealth Court. Settlement is not
likely.
All motions in limine, with supporting authority,
are to be filed with the Court Administrator by close of
business on Wednesday, September 8, 1999. Any responses
thereto are to be filed with the trial judge at the
commencement of trial.
Any suggested points for charge are to be filed
with the trial judge at the commencement of trial.
Likewise, any trial briefs counsel would like the Judge to
consider shall be filed with the trial judge at the
commencement of trial.
By '"~
Edward E. Guido, J.
Michael L. Bangs, Esquire
For the plaintiff
C. Lee Anderson, Esquire
For the Defendants
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MATT CORPORATION,
Plaintifl'
vs.
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CIVIL ACTION - LAW
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
NO. 97-5923 CIVIL TERM
SAMIR j, SROUJI and GILLIAN R.
SROUJI, his wifc, individually and
tld/b/a LEMOYNE SQUARE
ASSOCIATES,
Defendants
I'ltE-TrUAL MEMORANDUM
1. STATEMENT OF BASIC FACTS AS TO LIABILITY,
Plaintiff, Mall Corporation (hereinaner rcferrcd to as "Mall"), provided certain services
to the Dcfendants, Samir J. Srouji and Gillian R. Srouji. his wife, individually and tld/b/a
Lemoyne Square Associates (hcreinafter refcrred to as "Srouji"). These ineluded obtaining a
new tenant for Srouji's building and relocating tenants who wcre currently in the building to
another location. Srouji agrecd to pay Mall all of the out-of-pocket costs that Mall incurred for
having the relocation occur and in bringing the new tcnant in. These involved construction costs
for both the relocating tenant and the ncw tenant. Also, thcre was a payment of moving costs for
the relocating tenant as well as an incentive payment to the rclocating tenant to get the tenant to
move out of Srouji's bUliding.
Additionally, Srouji agrecd to pay Mall a commission in the amount of two and one-half
(2V, %) perccnt ofthc gross lcasc for thc new tenant.
Srouji has failed to reimburse Mall for the out-of-pocket costs it incurred in relocating the
tenant and obtaining the new tenant in Srouji's building and has failed to pay Mall for the
... SUMMARY OF LEGAL ISSUES REGARDING ADMISSABILITY
OF TESTIMONY, EXHIBITS OR OTIIER MATTERS,
A Motion for Summary Judgmcnt was filcd by thc Dcfendants on August 5, 1999. and is
currently bcfore thc Court for rcsolution.
Additionally, PlaintilT discovcrcd, allcr rcvicwing Dclendunts' Pre-Trial Memorandum,
they intend to call Jamcs Smcltzer, CPA. Thcy also list a rcport from Mr. Smcltzcr as an exhibit.
Plaintiff has yct to see that rcport and rcscrvcs thc right to objcctto Mr. Smcltzer's testimony and
the report provided it is givcn thc opportunity to rcvicw it shortly, Otherwise, Plaintifl'is
objecting the listing of this witncss at this latc datc,
Finally, the Defendants havc Iistcd an cxhibit, Numbcr 5. which purports to bc a letter
betwccn counsel for thc partics. Plaintiff objccts to thc cntry of this cxhibit.
5. INDENTITY OF WITNESSES TO BE CALLED.
Charles Davis, Prcsident, Malt Corporation
Samir Srouji
Gillian Srouji
David Remmcl
David McLane
A representative of Fulton Bank
Rebuttal witncsses as necessary which may include, but not be limited to, any contractors
who did work on the buildings and other employees of Mall Corporation.
3
6. LIST OF EXIIIBITS WITH A BRIEF IDENTIFICATION OF EACH,
The parties have exchanged a numbcr of documents in the production of documents. The
exhibits will include copies of all invoices submilled by Mall to Srouji; copics of alllcases for
thc various tcnants; copics of all invoiccs paid by Mall to the appropriatc individuals or
companies who did work to relocatc thc tcnant and bring thc ncw tcnant in on bchalf of Srouji;
copies of cancelled chccks; copies offinancial infommtion pertaining to Srouji's operation of the
building and any loans obtained for thc relocation costs by Srouji; and any othcr documcnts
cxchanged betwccn thc partics that nccds to bc uscd during thc trial dcpending on thc focus of
the testimony providcd by the various witncsses.
7. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS.
Defendants havc not madc any sclllcment offcr.
Respectfully submillcd,
MI HAEL L. BANGS
Allomey for Plaintiff
302 South 18th Street
Camp Hill, PA 17011
(717) 730-7310
Suprcme Court ID 1141263
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day served the foregoing Pre-Trial Memorandum
by depositing a copy of same in the United States mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed to the following:
C. Lee Anderson, Esquire
Smigel, Anderson & Sacks
2917 North Front Street
Harrisburg, P A 17110-1223
DY S. CH SBRO
Paralegal c
Michael L. Bangs, Esquire
DATE:~
5
Care Services Mainstay of Central Pennsylvania, Inc. ("Mainstay"). Mainstay wished to lease
the 8,100 squarc feet of space comprising the second floor of 4 Lemoyne Square. At that time
there were four tenants in the building. Two of the tenants (not involved in this case) occupied
the entirc first floor. Two other tcnants, Landmark Realty and Source One Mortgage, occupied
part of thc sccond floor, Icaving thc rcmaining portion unleased. Because the building was not
completely occupied, it was not gencrating maximum revenues. The Sroujis nceded another
tenant. However, because Mainstay wishcd to leasc the entire second floor, the existing second
floor tenants had to leave in ordcr to make thc space available.
It is against this backdrop that Plaintirrs claims arise. On June I, 1996, Mainstay
became a tenant, occupying the second floor. A five year lease was entered into between
Lemoyne Square Associates and Mainstay, with totallcase payments of at least S504,225.00
(does not reflect rent incrcases) to bc paid ovcr the fivc year period,
Plaintiff claims that Defcndants orally agrecd to pay it a sum equal to 2Y.'% of the gross
lease payments (S 12,605.62) as a commission for sccuring the tenant. Defendants deny that any
such agreement was ever entered into.
Plaintirrs remaining claims totaling an additional S81,188.44, arc for relocation fees and
build-out costs associated with the old tcnants, Landmark Realty and Source One Mortgage,
moving out, and the new tenant, Mainstay, moving in. Most of those costs are tied to the move
of Mainstay into the building. According to the lease between Lemoyne Square and Mainstay,
which was extensively revised during ncgotiations, the landlord was to pay for the costs of
certain renovations that are itemizcd in an addendum to the lease (Addendum I - Tenant
Renovations). However, the language which makcs it clear that the landlord is to pay for the
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2. If not, whether Plaintiffs claim for reimbursement should be limited to the
amounts reflected in the cancelled checks for payments it has produced.
V. WITNESSES TO BE CALLED.
Samir Srouji, M.D.
Gillian Srouji
James Smeltzer, C.P.A.
David McLane
David Remmel
Loan Officer from Fulton Bank
VI. EXHIBITS.
1. Letter of February 26, 1997 - Release Agreement.
2. Mainstay lease agreement muhiple versions.
3, Copies of checks from Lemoyne Square to MA IT Corporation, Landmark Realty
and outside vendors.
4. Report from James Smeltzer, C.P.A.
5. Letter of March 23, 1999 from Ann Levin, Esquire to Michael Bangs, Esquire
offering payment.
5
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97 - 5923
MA IT CORPORATION,
PLAINTIFF
SAMIR J. SROUJI, and GILLIAN R.
SROUJI, his wife, individually and tld/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
CIVIL ACTION - LAW
CERTifiCATE OF SERVICE
I, C. Lee Anderson, Esquire, attorney for Dcfendants in the above-captioned matter, do
hereby certify thatl served a true and correct copy of Defendants' Pretrial Memorandum was
served on counsel for Plaintiffby depositing the same in thc U.S. Mail, first class, postage
. )
prepaid, on the A day of August, 1999, addresscd as follows:
Michael L. Bangs. Esquire
302 South 18th Street
Camp Hill, PA 17011
SmIgel, Anderson & Sacks
Date: -L1 u i ' ,r) I <'{ '" ,.{
By:
C, Lee de
1.0.21315
Ann V. Levin, Esquire
1.0. 70259
2917 North Front Street
Harrisburg, PA 17110
(717) 234-240 I
Attomcys for Dcfendants
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MATT CORPORATION,
PLAINTIFJi'
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
DEFENDANTS' OBJECTIONS TO PLAINTIFF'S
PRAECIPE FOR LISTING CASE FOR TRIAL
AND NOW, comes Defendants, Samir J. Srouji, and Gillian R.
Srouji, his wife, by and through their counsel, Smigel, Anderson &
Sacks, and file the following objections:
1. Defendants object to this matter being listed for trial for
the following reasons:
a. Discovery is not yet complete in this matter.
b. Defendants' Supplemental Request for Production of
Documents is outstanding.
c. Defendants' document request to third parties is
outstanding.
d. Depositions of the parties and/or other relevant third
parties have not yet been taken.
e. Plaintiff's counsel was notified in correspondence
dated February 11, 1999 that discovery was not complete.
f. Contrary to the representations of Plaintiff's counsel,
this case is not ready for trial.
2. Defendants object to listing the matter for trial without a
jury.
3. Plaintiff has endorsed a pleading demanding a jury trial.
4. "A demand for trial by jury may not be withdrawn without the
consent of all parties who have appeared in the action." Pa.R.C.P.
1007.1 (c) (1) .
5. Defendants do not consent to the withdrawal of the demand
for a jury trial.
WHEREFORE, it is respectfully requested that the above referenced
matter be removed from the trial list.
Date: February~, 1999
SMIGEL, ANDERSON & SACKS
LJL)
LeRoy Smigel, Esquire
I.D. #09617
Ann V. Levin, Esquire
I.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
By:
Attorneys for Defendants
- 2 -
MATT CORPORATION,
PLAINTlFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and tldlbla
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I do hereby certify that on the ",l~
day of February, 1999, I
served a true and correct copy of the foregoing Defendants' Objections
to Plaintiff's Praecipe for Listing Case for Trial by depositing same
in the United States first class mail, postage prepaid, addressed as
follows:
Michael L. Bangs, Esquire
302 South 18th Street
Camp Hill, PA 17011
SMIGEL,
By:
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Le oy Smigel, Esquire
LD. #09617
Ann V. Levin, Esquire
LD. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
&. SACKS
Attorneys for Defendants
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MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and
things pursuant to Rule 4009.22, Defendants certify that
(1) a copy of the subpoena was mailed to Plaintiff's counsel on
February 11, 1999;
(2) a copy of the proposed subpoena, is attached to this
certificate;
(3) Plaintiff's counsel has waived the 20-day notice period; and
(4) the subpoena which will be served is identical to the
subpoena which was mailed to Plaintiff's counsel on February 11, 1999.
SMIGEL,
ERSON & SACKS
j 1
Date: February 25, 1999
By:
y Smigel, Esquire
09617
Ann V. Levin, Esquire
10# 70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
'n}i" ~ ~ :;;,t-r' "In A',': ..II'.' .', " ' ,,;;~'n
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and tldlbla
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL AC~ION - LAW
SUBPOENA TO PRODUCE DOCUMENTS OR
THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Managed Care Services Mainstay
of Central Pennsylvania, Inc.
4 Lemoyne Drive
Lemoyne, PA 17043
Within twenty (20) days after service of this subpoena, you are
ordered by the court to produce the following documents or things:
(1) All correspondence directed to or received from MATT
Corporation;
(2) All bills, paid and unpaid, submitted to MATT Corporation;
(3) All bills, paid and unpaid, submitted to Samir Srouji,
Gillian Srouji and Lemoyne Square Associates;
(4) All contracts, drafts of contracts, lease agreements and
drafts of lease agreements between Managed Care Services Mainstay of
Central Pennsylvania, Inc. and MATT Corporation;
(5) All contracts, drafts of contracts, lease agreements and
drafts of lease agreements between Managed Care Services Mainstay of
Central Pennsylvania, Inc. and Samir Srouji, Gillian Srouji and
Lemoyne Square Associates;
at the offices of Smigel, Anderson & Sacks, 2917 North Front Street,
Harrisburg, Pennsylvania on , 1999, at 5:00 p.rn,
You may deliver or mail legible copies of the documents or
produce things requested by this subpoena, together with the
certificate of compliance. to the party making this request at the
address listed above. You have the right to seek in advance the
reasonable cost of preparing the copies or producing the things
sought.
If you fail to produce the documents or things required by this
subpoena within twenty (20) days after its service, the party serving
this subpoena may seek a court order compelling you to comply with it.
This subpoena was issued at the request of the following person:
SMIGEL, ANDERSON & SACKS
By:
LeRoy Smigel, Esquire
ID# 09617
Ann V. Levin, Esquire
ID# 70259
2917 North Front Street
Harrisburg, PA 17110-1223
Attorneys for Defendants
Date:
By:
(Prothonotary)
SEAL OF THE COURT
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~mTT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
DEFENDANTS' OBJECTIONS TO PLAINTIFF'S
PRAECIPE FOR LISTING CASE FOR TRIAL
AND NOW, comes Defendants, Samir J, Srouji, and Gillian R.
Srouji, his wife, by and through their counsel, Smigel, Anderson &
Sacks, and file the following objections:
1, Defendants object to this matter being listed for trial for
the following reasons:
a. Discovery is not yet complete in this matter.
b. Defendants' Supplemental Request for Production of
Documents is outstanding.
c, Defendants' document request to third parties is
outstanding.
d. Depositions of the parties and/or other relevant third
parties have not yet been taken.
e. Plaintiff's counsel was notified in correspondence
dated February 11, 1999 that discovery was not complete.
f. Contrary to the representations of Plaintiff's counsel,
this case is not ready for trial.
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIPICATB OF SERVICE
I do hereby certify that on the -< ~
day of February, 1999, I
served a true and correct copy of the foregoing Defendants' Objections
to Plaintiff's Praecipe for Listing Case for Trial by depositing same
in the United States first class mail, postage prepaid, addressed as
follows:
Michael L. Bangs, Esquire
302 South 18th Street
Camp Hill, PA 17011
SMIGEL,
ERSON " SACKS
By:
J~
Le oy Smigel, Esquire
I,D. #09617
Ann V. Levin, Esquire
I,D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
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MA TT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
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CIVIL ACTION - LAW
vs,
NO. 97-5923 CIVIL TERM
SAMIR J. SROUJI and GILLIAN
SROUJI, his wife, individually and
tJd/b/a LEMOYNE SQUARE
ASSOCIATES,
Defendants
PLAINTIFF'S RESPONSE TO DEFENDANTS'
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
I. Admined.
2. Admitted.
3. Admilled.
4. Admitted.
5. Admitted. By way of further response, Plaintiff, at Plaintiff's time and expense,
copied all documents then available to and provided same to Def:ndants.
6. Admilled in part. It is admilled that the Plaintiff provided the documents to
Defendants; there are a numbcr of documents; however. it is arguable whether the documents
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could be characterized as voluminous, The documents are not in chronological order and to the
extent Plaintiff handwrote a rough draft of correspondence, it is attached to the lyped
correspondence. Furthermore, the documcnts were provided to Defendants in the same fashion
received by Plaintiff. By way of furthcr response, Defendants' Request for Documents were
extremely broad, continuing requests such as ... all documcnts having any bearing upon
I'lulnllf1"s cluim (Defendants' Document Request #1); any and all statements concerning the
uction (I>c1imdunts' Document Request #2); all documents that support Plaintiffs claim that
I'hllntifT provided management and real estate services; that Defendants authorized Plaintiff to
Iind tenunts; that I'laintitTwas authorized to takc the action Plaintiff alleged (Defendants'
Document Requests /15-7) [Plaintiffs claim is for breach of contract and quantum merit for the
reul eslute Illunagement scrvices provided by Plaintiftl; the entire contents of ailY and all claims
prepured in this maUcr excluding mental impressions (Defendants' Document Request #10).
7. Denied. The documentation provided by Plaintiff is as easily discernable by Plaintiff
U9 Defendants.
H. Admitted in part. It is admitted that Defendants' counsel wrote Plaintiff and by way
of lilrther response, Defcndants retumcd the documents to Plaintiff. It is denied that the response
is insuflicient and not in compliance with Pa R,C.P, Rule 401(a) which specifically states, in
pertinent part, the following:
. . . when the documcnts may bc identificd only after revicw of a larger
group of documents and the burden of identifying the documents would be
substantially the same for the party serving the rcqucst as for the party served, the
party scrvcd may afford the party serving the request rcasonable opportunity to
identify the documents to examinc or inspect and to obtain copies,
I'll. R,C.P. Rule 4009.12(2)(i), 42 Pa. C,S,A.
I'luintifT went further and providcd copics to Defendants; Plaintiff acknowledges that the
documents are not grouped strictly in chronological fashion. This was how the documents were
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received by Plaintiff, Plaintiff has not refused to provide any documentation; hence there was no
list of documents created regarding documents not provided; further, Plaintitl"s counsel received
no list of documents from Plaintiff.
9. Admitted in part. It is admitted that Defendants elected to return the documents to
Plaintiff, It is denied that Plaintiff has not complied with the applicable rules of discovery and
Plaintiff incorporates herein by reference the answer set forth in Paragraph 8 above. Defendants
having received the documents once but choosing to rcturn same have always had the
opportunity to retrieve the documents. The burden of putting the documents in chronological
order - if that is what Defendants desire be done - is equal to both PlaintifT and Defendants and
therefore Defendants should be required to place the documents in the order it deems appropriate.
By way of further response, the nature of Defendants' request (e.g. all documents
supporting Plaintitl"s claim for instance) and Plaintiffs case (breach of contract and quantum
merit) is such from Plaintiffs response, the Defendants can discern that Plaintiff claims that all
documents provided support his claim,
10. Admitted. Plaintiffs counsel indicated the cause fO}r the delay in his letter of October
8,1998.
II, Admitted. By way of further response, the letter speaks for itself.
12. Admitted.
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have this day served the foregoing PLAINTIFF'S
RESPONSE TO DEFENDANTS' MOTION TO COMPEL PRODUCTION OF
DOCUMENTS, by depositing a copy of same in the United States mail, postage prepaid, at
Camp Hill, Pennsylvania, addressed to the following:
LeRoy Smigel, Esquire
Ann V. Levin. Esquire
Smigel, Anderson & Sacks
2917 N. Front Street
Harrisburg, PA 17110
DATE:~
WENDY S. CHE
Paralegal I
Michael L, Bangs, Esquire
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MATT CORPORATION.
Plaintiff
vs.
SAMIR J. SROUJI, and
GILLIAN R, SROUJI, his wife,
individually and IAl/b/a LEMOYNE
SQUARE ASSOCIATES,
Defendants
NOTICE
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IN TIlE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY.
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97 - 5"'9 ). j CIVIL TERM
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in
the following pages, you must take action within twenty (20) days after this Complaint and Notice are
served, by entering a wrillcn appearance personally or by allomcy and filing in writing with the Court
your defenses or objections to lhc claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgmcnt may be entered against you by the Court
without further notice for any money c1aimcd in the Complaint or for any other claim or relief
requested by the PlaintifT. You may losc money or property or other rights important to you,
YOU SHOULD TAKE THIS PAPERS TO YOUR LA WYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Fourth Floor, Cumbcrland County Court House
Carlisle, Pennsylvania 17013
Telephone: (717) 240-6200
""rl( 11M.'t'MI"!llk-T"',IlI\"'1
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IN TilE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
MAlT CORPORATION,
Plaintiff
CIVIL ACTION - LAW
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and IId/b/a LEMOYNE
SQUARE ASSOCIATES,
Defendants
NO. 97 - ~-9J-1
CIVIL TERM
COMPLAINT
AND NOW comes the Plaintiff, Malt Corporation, by and through its attorney, Michael
L. Bangs, Esquire, and files the following Complaint:
I. Plaintiff, Malt Corporation, is a corporation organized and existing pursuant to the
Pennsylvania Business Corporation Law with a principal place of business at 1200 Camp Hill
ByPass, Post Office Box 901, Camp Hill, Cumberland County, Pennsylvania.
2. Defendants, Samir J. Srouji and Gillian R. Srouji. are adult individuals who reside at
105 Oakwood Drive, Worrnleysburg, Cumberland County, Pennsylvania.
3. At all times relevant hereto, Defendants Samir J. Srouji and Gillian R. Srouji were the
principals of a partnership known as Lemoyne Square Associates, with offices located at 10S
Oakwood Drive, Worrnleysburg, Cumberland County, Pennsylvania.
4. Plaintiff provided management and real estate services for Defendant Lemoyne Square
Associates.
5. In or about February and March, 1996, Defendants engaged the services ofPlaintitl'
specifically to find a tenant for the building owned by Defendants at 4 Lemoyne Square,
Lemoyne, Pennsylvania.
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6. Plaintiff and Dcfendants orally agreed that Plaintiff would act as an agent for
Defendants and would undertake finding a tenant for Defendants' building at 4 Lemoyne Square,
and be paid a commission rate of two and onc-half(2 V,%) percent of the gross lease upon
securing said tenant which is less than the standard and ordinary commission ratc typically
charged for this servicc.
7. Based upon the agreemcnt ofthc partics, Plaintiff endeavored to secure a tenant at 4
Lemoyne Square, and did secure a tenant for 4 Lemoyne Square.
8. Plaintiff, acting as agent for Defendants, secured n tenant for 8100 square feet for the
building, 4 Lemoyne Squarc. Attached hereto and marked as Exhibit B is a true and correct copy
of the leasc.
9. In order to complcte the deal with the new tenant, Plaintiff and Defendants agreed that
Plaintiff was authorized to provide an incentive paymcnt to the new tenant to induce it to rent the
8100 square teet; to pay relocation costs to thc existing tenants of 4 Lcmoyne Square; to make
improvements to the 8100 square feet to be leased at 4 Lemoyne Square in order to accommodate
the new tenant; and to make improvements to the premises where thc relocated tenants intended
to move to in order to secure the Icase for the 8100 square feet with thc new tenant.
10. Plaintiff, acting on behalf of Dcfendants, incurred certain costs for relocation of the
existing tenants; for the improvements made to 4 Lemoyne Squarc and to the premises where the
relocated tenants moved to; and to pay a certain relocation fee to the relocated tenants, in the
amount of $81,188.44.
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II. Plaintiff paid for all improvcments and thc reloclltion costs and invoiccd Defendants
for those costs. Attached hereto and marked as Exhibit A I-A 13 are true and correct copies of
those invoices.
12. The services rendered by Plaintiff to Dcfendants were consistent with the lIgreement
of the parties and were performed timely, diligently, and satisfactorily to Defendants.
13, Piaintiff's commission fec of$12,605.65 for securing the tenant is fair, reasonable,
and customary in the industry.
14. Although a tenant has moved into thc improved space at 4 Lemoyne Square solely as
a result of Plaintiff's efforts, Defendants have failed and refused to pay Plaintiff despite repeated
demands by Plaintiff.
COUNT I
BREACH OF CONTRACT
15. Paragraphs I through 14 are incorporatcd hcrein by reference as though more fully
set forth herein.
16, Defcndants' failure to pay Plaintiff the commission eamed for leasing the property
together with the improvemcnts and relocation costs which Plaintiff caused to be made at
4 Lemoyne Square constitute a breach of the agreement of the parties for which Defendants are
liable to Plaintiff.
17. As a result of the brcllch of the agreement, Plaintiff has been damaged in the amount
of$93,794.09.
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WHEREFORE, Plaintiff demands judgment in its favor and against Defendants in the
amount of $93,794.09 together with interest and costs of suit.
COlJNT II
UN.IUST ENRICHMF.NT
18. Paragraphs I through 17 are incorporated herein by reference as though more fully
set forth herein.
19, Solely as a result of PlaintilT's efforts, Defendants have a tenant in a newly improved
office space at 4 Lemoyne Square,
20. Defendants have been unjustly enriehed by efforts of Plaintiff in that Plaintiff paid
for the improvements to be made to the leased premises; paid relocation costs for the former
tenants and paid for improvements for the former tenants to their new location; and secured a
new tenant in the premises at 4 Lemoyne Square.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendants in the
amount of $93,794.09 together with intcrest and costs of suit.
Respectfully submitted,
VF.RIFICA TION
CIIARLES It DAVIS, being duly sworn according to law, deposes and says that he is
thc Prcsidcnt of MATI' Corporation, a Pennsylvania corporation. thc Plaintiff hercin, and that as
such Prcsident, he is authorized to make this Vcrification on its bchalfand that the facts set forth
in the forcgoing Complaint are true and correet to the best of his knowledge, information and
belief.
~~~1JiZ~ .
CHARLES R. DAVIS
er___ IIAL
__ L CMIIIIO, ..... MIl
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~ATT Corporation
1200 ClImp Hill ByP.../ P.O. Box SOl/Camp Hili. PA 17001.0901/ (7171737.3003/ FAX (7171761,0578
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Lemoync Square Associatrs
Samlr J, Sroujl, MD
105 Oakwood Drive
Wonnleysburs, PA 17043
Invoice No.: 250A
Invoice Date: 5/28/96
Due UPOII Reulpt
INVOICE
Work performed: LABOR provided by Tom Davis at 4 Lcmoyne from 5/5/96 to
5/25/96:
42,S hours @ $10.00 per hour
SEE ATl'ACHBD
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$425.00
Total Amount Due:
S4%S.00
Plwe Remit To: MATI' Corporation, r.o, BOI901, Camp Bill, PA 17001-0901
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EXHIBIT ^-2
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MATT Corporation
1200CImp HUyl'a8/ P.O, Bac llOl/ CImp HI, PA 17001.ol101/ (717) m.m / FAX (717) 701457l1
~
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Lemoyna Square Assocllltas
Dr. Samlr Sroujl
105 OakwoOd Drive
Wormlaysburv, PA 17043
Due Upon Recll",
InYOICI Date: 7123198
POI:
Invoice Number: 519
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Work Description: Relocate Landmark Commerclal ReaUy Inc.
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Total Amount Duo:
$5,033.12
Pin.. Remit To: MATT corpo~on, P.O. Box 901, camp Hili, PA 17001-4901
EXHIBIT A-4
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MATT Corporation
1200 CImp,,1lyPMe I P.O. Bac 8011 CImp HI, PA 17l101.(1llQ11 (717) 737-31lO31 FAX (717) 701.om
..... '
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Lemoyne Squire AsIOdlltll
81mlr J. Sroujl, MD
105 OlkwOOd DItVI
WormleysbUrg, PA 17043
Due upon ReceI",
Invoice Date: 8I3OIIl8
POI:
Invoice Number: 587
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Work oncrlptlon: Reimbursement for payment made to $1,502,30
Landmark Commerclal Realty for
relocltlon.
Total AmoUnt Due: 11,802030
P..... Remit To: MATT corporetlon, P.O. Box 901, Camp Hili, PA 17001-4901
EXHIBIT A-6
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MATT Corporation
1200 CImp HlIlyPMe / P ,0. IIall101/ CImp HI, PA 17OO1.ol101/ (717) 737-31lO3/ FAX (717) 701<<78
Lemoyne Square AssocIlItll
81mlr J. Sroujl, MD
105 Oakwood DItVI
Wormleysburg, PA 17043
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Invoice Date: 12/1011I8
POt:
Due Upon ReceIpt
Invoice Number: 888
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Work Dnc:tptlon: Carpet for LarlClmork Inc. In 20 Erford $8,880.00
Road
Total Amount Due: 81,110.00
Pili" Remit To: MATT Corporation, P.O. Box 901, Camp Hili, PA 17001~1
EXHIBIT A-7
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(C(Q)[P)"')f.
MATT Corporation
1200 CImp HlIlyPMe I P ,0, Bac 8011 CImp HI, PA t7OO14111t 1(717) 737-31lO31 FAX (717) 701.om
Lemoyne Squire Assocllltes
Slmlr J. Sroujl, MD
105 OakwoOd Drlve
Wormleysburv, PA 17043
InvoIcI Date: 1213OJ98
POt:
DUI Upon Receipt
Invoice Number: 1194
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Work DelCrlptlon: Remove okland Install new entrance 10
018111 new space enlrence for Mainstay.
$4404.00
, Cl. ItJtI/I(:'/ (.. Jilt (u/f, PI/ (ir .:..
tAl/.) lAIIP('L L'~ . r . {J
/)Jlli'fl llll :11((.'", II <"/ 7 ,/"
b;lI~NiC~", d-J'L:.. (JII .
"/)/ III ;VJ!'n7tt
Total Amount Due: $444.00
Pie... Remit To: MATT Corporetlon, P.O. Box 901, Camp Hili, PA 17001.no1
EXHIBIT A-9,
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MATT Corporation
t2llO Camp HI ~/ P.O, IIall101l Camp HI, PA 17001.ol101/ (717) 737-31lO31 FAX (717) 7Ot457ll
Lemoyne Square A8SCClolel
Samlr J. Sroujl, MO
105 Oakwood DrIv.
Wormleysburg, PA 17043
Invoice Date: 1/13197
POt:
Due Upon Receipt
Involc. Number: 102
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Work Delcrtptlon: Labor and molerlols to Install bo.. and
carpet for relocollon of Mainstay
ServIces Inc. to 4 Lemoyne square.
$20,m.14
Total Amount Due: '20,771.1.
PI.I.. R.mlt To: MATT Corporation, P.O. Box 901, Camp Hili, PA 17001.0901
EXIIIBIT A-IO
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MATT Corporation
1200 c:.n., ,,1yIWI1 P.O.lIalllOt 1 Camp HI, PA 17001.ol1011 (717) 731-30031 FAX (717) 701.om
Lemoyne Squire AssocIItIl
81mlt J. Sroujl, MD
105 OlkwOOd DrIve
Wormleysburg, PA 17043
Due Upon Reel/pt
Invoice om.: ~5197
Invoice Number: rae I
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Wort! Perfonned: LABOR provided by John Wolers lit 4 Lemoyne Square :
1.5 hours CD
$20.00 per hour-
S30.00
Labor on 1130 to nx lights In Malnstay'l
kitchen
Total Amount Due: S30.oo
Pie... Remit To: MATT corporetlon, P.O. Box 901, Camp Hili, PA 17001-4901
EXHIBIT A-ll
10/22197
16:05
~TT KCL 810 .. 717 730 7374
to(l. J?l 005
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MATT Corporetlon
1200 Camp HIli 8yf'1./l'lO, 1101 toll Camp Hili, "'" 17001.QllOl/ t7tn 731-3003 ,'AX 17171 7tl.oll7t
I'
LemoyII8 Square AaIOClIIOI
Samit J, Srouji, MD
105 oakwood DrIve
Wormlcylbur& PA 17043
DATE: 7/29/96
1m: AltcntioDl for Landmark. Inc, . N9637
1'l' A TEMEJ![
ReaovatiOll walk tbr ana OD I8COIId floor
of20 Ereord Road
516,288,00
11
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SIQN".,nt QItQC#tId
PIeuo remit to:
Eel
p,O, BolE 459
DIJbburs, PA 17019-0459
EXHIBIT A-12
T.F.ASE
THIS LEASE, daled as of 2J!!. day of ,?/f"(t!H",,, by and between LEMOYNE ,
SQUARE ASSOCIATES, a PeMsylvania Pa~Land1ord"), and MANAGED i
CARE SERVICES MAINSTAY OF CENTRAL PENNSYLVANIA, INC., a Pennsylvania
Corporation (Ihe "Tenant"), provides:
WIT N E S S F. T II:
L
DH~rlptlon orDrmlJM PrrmlsH
The Landlord hereby leases to the Tenant, and the Tenanl hereby hires from the LMdlord,
the enlire Second Floor, containing approximalcly 8,100 square feel, more or less, of those
certain premises (the "Demised Premises") situated in the Borough of Lemoyne, County of
Cumberland, PeMsylvania, and more particularly described on Rxhihil "A" (which is attached
hereto and by litis reference made a part hereof and incorporated herein), together with 40
assigned parking spaces adjacent to the building in which the Demised Premises ore located and
. 'known as "Four Lemoyne Square" and the right to use, in common with other tenants, till
common areas provided to olher tenanls of Ihe building in which Ihe Premises are located. all for
a lerm (the "Term") of five (5) years, commencing at 12:01 a.m. on May 1, 1996 (the
"Commencement Date"), and ending at 12:00 midnight on April 30, 2001, subject to and in
accordance with the terms, provisions, covenants and conditions contained herein.
The Term of this Lease may be extended for one consecutive additional period offive (5)
years; provided that the Tenanl shall first give the Landlord ninety (90) days' prior written notice
of its intent to extend the Term of this Lease althe same Rentas provided herein,
n.
lW1t.
A The Tenant shall pay to the Landlord. without notice, demand, offset or reduction,
annual renl ("Rent'') in the amount of One Hundred Eighl Thousand Eight Hundred Forty-Five
an.:! 00/100 (SI00,845,()0)(based upon an annual rate of Twelve and 45/100 (SI2.45) per square
foot), payable in equal mcnlhly installments of Eight Thousand Four Hundred Three and 75/100
Dollars (S8,403.75) on the firsl (1st) day of each and every month of the Term. The Rent shall be
paid at the offices of the Landlord, or to such olher person or entity or at such other place or
address as Ihe Landlord may hereafter direcl in writing, Renl shall be adjusled, beginning with the
fourth (4Ih) year of Ihe Term, as provided in Paragraph lX,B below, Notwithstanding the
foregoing to Ihe contrary, as compensalion to Ihe Tenant for the costs associated with the
termination of the Tenant's existing lease and Ihe move from such space to the Demised Premises,
Ihe Tenonl shall have no obligalion 10 pay any Renl for the months of May, June and July, ,1996.
B. If the Landlord does not receive from the Tenant each monthly renlal payment when it
" is due, the Landlord, at its option, may charge the Tenant a laic charge equal to five percent (5%)
of Ihe mOlldl1y rental payment (Iogether wilh any additional renl as hcrclnafter provided) as
additional rent, and such laic charge shall be due and payable by the Tenant to the Landlord
immediately upon notice to the Tenant.
C, The Landlord shall pay all real estate taxes assessed against the Demised Premises,
The Tenant shall pay all personal property taxes assessed againsl the property of the Tenant
located thereat.
m.
IIse orDl!mlsed Premls~.
The Tenanl shall use the Demised Premises only fot the purposes of a heallh care delivery
and menIal health care and subslance abuse trcotmenl purposes logether with related
administrative functions or for any other lawful purpose,
IV.
Malntenanre and Repllln: the Tenant's Obligation to Notify.
The Landlord shall keep the Demised Premises in reasonably good working order and
condition and shall make all repairs and replocemenls not OCC8Sioned by the negligent or willful
act of the Tenanl, its sgenls, employees, conlroctors, invilces or licensees. The Tenant shall
provide notice 10 the Landlord of any repairs or replacemenls required to be undertaken by the
Landlord pursuant to this Article IV,
V.
The I..ndlom Not I.lable; Indemnity It,y tbe Tl!nant.
The Landlord shall not be liable for any injury to persons (mcluding death) or for any loss
or damage 10 propcrty resulting from any cause other than the gross negligence or willful,
wrongful acl of the Landlord. The Tenant shall indemnifY and hold Ihe Landlord harmless for and
" from any and all suits, actions, damage, liability and expense (including attorneys' fees) arising
from or oul of (A) any occurrence in or on the Dcmiscd Prcmises or (8) the occupancy or use by
the Tenanl oflhe Demised Premises,
.YI.
Tnlunnr.:e...
The Tenant shall, at all times during the tenn of lhis Lease or any renewal thereof, carry
with an insurance carrier acceptable to Ihe Landlord and qualified to do business in the
Commonwealth ofPeMsylvania, public liability insurance (which may be an umbrella policy)
naminglhe Landlord as co-insured, with a Iimil ofliability of not less than $1,000,000,00 per
person and $1,000,000,00 per occurrence, The Landlord shall insure Ihe Dcmised Premises
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agalnsllire and other casualties (wilh extended coverage) allhe replacemenl cost of the Demised
Premises, Certlflcales of such insurance shall be furnished 10 the Landlord before the occupancy
oCthe Demised Premises by the Tensnt.
VB.
nfl_dmdlon to '~.tHl P...ml!lH.
A IC the Demised Premises are damsged by fire, the clements, accident or other casualty
and are thereby rendered unlensble, in whole or in part, tha Landlord shall have the option (to be
exercised in its sole discrelion) to (I) lenninate this Lease immediately by giving written notice of
such lennination to the Tenant, in which evenl neither the Landlord nor the Tenant shall, after the
dole of such notice, have any further liability to the other hereunder; or (2) cause such damage to
be repaired, in which event Ihe Renl shall be abated in full, and such abalement sholl commence
on Ihe date Ihe Landlord is nolifled of the damage and shall, continue until the repairs have bccn
compleled, If the Landlord causes Ihe Dcmised Premises to be rcpoired, such repairs shall be al
the sole cost and expense of the Landlord (unless such damBge was caused by the Tenant or any
sgent, contractor, employcc, invilcc or Iicenscc of the Tenanl, in which event such damage shall
be repaired allhe sole cost and expensc of the Tcnant).
B, The Landlord shall not be required to repair or replace, or to compensate the Tenant
for, any property which the Tenant is entitled to remove from the Demised Premises.
C. The Landlord shall be obligaled to make no payments for damBges, compensation or
clsims for inconvenience, loss of business or annoyance arising from any damage to or repair of
Ihe Demised Prcmises or Ihe building in which the Demised Premises are localed,
vm.
Eminent Domain.
IC all or any part of the Demised Premises, or all means of access thereto, arc taken or
condemned pursuant to the power of emincnt domain, or by purchase in lieu thereot; this Lease
shall terminate and the Tenant shall have no claim againsl the Landlord or to any portion of the
award or purchue price for the value of any uncxpired Term of this Lcase, bul the foregoing shall
not limit the Tenant's right to compensation from the condemning or purchasing oulhority for the
value of any of the Tenanl's property taken (olhcr than Tenanl's leasehold inlcresl in the
Demised Premises) so long as the same does nol decrease the amount olherwise due to the
Landlord, In Ihe event of a tcmporary taking pursuant to the power of eminent domain, this
Lease shall not Icrminale bul the lerm hereof shall be extended by Ihe period of the taldng and the
" Rent shall abate in proportion to the area for the period of such taking,
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IX.
!il~",If!H Provided IQ' the )..and'om or the T.nant
A. 1'h1'l Tllnll.nl'lI. Ohlla/ltion for Services, The Tenant shall provide, at ita own cost,
janilorialservices of Ihe Demised Premises and all electricity for Ihe Demised Premises (mcluding
heal, air conditioning and venlilation); provided, however, that the Landlord shall, at the
Landlord's sole cost and expense, cause Ihe Demised Premises to be separately zoned for heating,
air conditioning and venlilalion and 10 be separately melered by the applicable electric company.
B, The l.II.ndlord'g Ohlill/ltion for Servi"L~ The Landlord shall provide to the Tenant, at
Ihe Tenanl's expense walcr, sanilary sewcr and all other public ulilities provided 10 other tenanls
of the building in which Ihe Demised Premises are localed logcther wilh repair and mainlenance
and upkeep of all common areas serving the building, The Landlord shall have no liability for any
failure ora provider ora public utilities in the provision Iherefor. Commencing in the fourth (4th)
year of the Lease lenn, the Tenant shall pay, as additional Rent hereunder, the Tenant's Pro Rata
, . Share (based upon Ihe ratio of Ihe rentable srea of the Dcmised Premises to the rentable area of
Ihe building in which the Demised Premises are located) of the increase in all operating cosls for
Ihe building in which Ihe Demised Premises are localed over and above the operating costs for the
building in which Ihe Demised Premises are locatcd in the immedialely preceding year, but not to
exceed an annual increase of two and one-half percenl (2-1/2%) over the Rent payable in the
immediolely preceding year,
X.
Right.! of the Tenant Subordinate.
This Lease, and Ihe rights of the Tenanl hereunder, r.re subject and subordinate to all
mortgages which may now or hereafter affect this Lease, the Demised Premises, the building in
which the Demised Prcmises are localed or Ihe land on which such building is constructed, The
foregoing subordination provision shall be self-operalive and no further instrument of
subordinalion shall be required; provided, however, that in confinnation of such subordination,
the Tenant hereby agrees, upon the request oflhe Landlord, 10 execule and deliver, in recordable
form, any instrument of subordination or confinnation of subordination required by the Landlord,
Notwithstanding the foregoing subordination, the mortgsgee shall continue 10 recognize the rights
oflhe Tenanl under this Lease so long as the Tenant is not in defaull hereunder, Notwithstanding
lhe foregoing subordination, in Ihe evenl of a foreclosure under any mortgage affecting the
Demised Premises or the building in which the Demised Premises are located, the holder of the
nole secured by Ihe mortgage or the purchaser at such foreclosure sale shall have the option to
recognize lhis Lease, in which event this Lease shall continue in full force and effect and the
Tenanl shall attorn 10 the new Landlord hereunder.
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XL
Pl!nonsl Propl!rty st RiJk ofthl! Tl!nsnt
All personal property of every kind and description which may at any time be placed in or
on the Demised Premises by Ihe Tenanl (including bul not Iimiled to the equipment and inventory
of Ihe Tenant) shall be at the Tenant's sole risk. At the conclusion of the Term of this Lease, any
personal property remaining at the Demised Premises shall, at the option of the Landlord, become
lhe property of Ihe Landlord; provided. however, thai the Landlord may require that any or all
sllch property be removed from the Demised Premises by the Tenant and should the Tenant not
do so, may remove any or all such property at the expense of the Tenant.
xu.
AU.....tlonl and Tmprov..m..nb.
Prior to Ihe Commencemenl Dale, the Landlord shall, at the Landlord's sole cost and
cxpense, undertake and complete the following work allhe Demised Premises 10 the satisfaction
oflhe Tenant:: .
A. Repainl the entire Demised Premises in a color selected by the Tenanl;
B, Provide two (2) conilections between the existing three suites locsled within
the Demised Premises as more particularly identified on Rxhihit "A";
C. Clea., the Demised Premises;
D, Relocate the existing two kilchenettes within the Demised Premises Into a
central lunchroom at a location identified on Rxhihit "A";
E, Replace all carpets and floor coverings within the Demised Premises with
carpet and floor coverings selected by the Tenant; and
F. Provide building standard algnage in Ihe lobby oflhe building in which the
Demised Premises are located,
Q, Complete all renovations described on Addcndum I, with the exception of
Item #12 which will be provided by Ihe Tenant at the Tenanl's cost,
The Tenanl shall not alter or improve, nor cause any alterations or improvements to be made to,
the Demised Premises wilhout the Landlord's prior wrillen consent.
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xm.
CnVl!nant tA Can tor Dl!ml.ect ..............
The Tenant covenants and agrees 10 conunit no waste and to take good care of the
Demised Premises. The Tenanl shall, al the Tenanl's sole cost and expense and to the complete
sntisfaction of the Landlord, repair any and all damage or injury to the Demised Premises, and
Ihe building in which Ihe Demised Premises are localed, that is caused by the Tenant or any
ngent, employee, contractor, invilee or licensee oflhe Tcnant. If the Tenant fails to make such
repairs, Ihe Landlord may, after ten (10) days prior written notice to the Tenant, make such
r,;pairs and Ihe cost of such repairs shall be deemed to be additional rent hereunder and sha11 be
paid by Ihe Tenant to Ihe Landlord within len (10) days after demand is made therefor upon the
Tenant. The Tenant covenants and agrees to quit and surrender the Demised Premises in clean
nnd good condition, reasonable wear and leer excepled,
XIV.
D~I.ult 01 the T..n.nt.
A Each of the following shall, if not cured within the time periods prescribed In
Paragraph XlV(B) hereof, constitute an event of default (hereinafter called an "Event of Default")
under this Lease:
I. The Rent or any additional rent is not paid when due.
2. The Tenant fails or is unable 10 pay Its debts generally as they become due;,
trnnsfers property in fraud of creditors; makes an assignmenl for the benefit of creditors; or has a
receiver or trustee appointed for any of the Tenant's assets with such appointment not being
vacaled within thirty (30) days.
3, The Tenant foils to comply with any term, provision, covenant or condition of this
, Lease.
B, The Landlord shall give the Tenanl written notice of each and every Eveut of Default
as it or they occur and the Tenant shaU have len (10) days from the date of such notice to cure
any and all Events of Default described in Paragraph XIV(A)(I) hereof and thirty (30) days from
Ihe dale of such notice to cure (or commence and prosecule a good faith effort to cure, If an
Evenl of Default cannot reasonably be cured within such thirty-day period but in no event longer
than one hundred twenty (120) days any and all Evcnts of Default described in Paragraph
XIV(A)(3) hereof.
Upon nOlice to the Tenanl by the Landlord of the occurrence of an Event of Default and
the failure of Ihe Tenanl to cure such Event of Default within the time periods stated above, the
Landlord shall have Ihe righl and oplion (1) to tenninale this Lease by written notice to the
Tcnanl (in which evenllhe Tenant shall immedialely surrender the Demised Premi~ to the
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Landlord) and relsln all monlCJ rccclvcd from the Tenant (bUI withoul prejudice to the Landlord's
rights 10 recover from the Tenant any amounls remaining to be paid under the Lease.
including Ihe Rent not yel due and payable), or (2) to enler the Demised Premises and remove tho
Tenant and tho Tenant'l property therefrom with or without force and wilhout being liable to the
Tcnanll" any maMer whalsoever for any damage, and to attempl to relet tho Demised
Premises for Ihe Tenant's account on such tenns as Ihe Lr.ndlord alone shall detennine, or (3) to
continue lhis Lease and sue for Ihe Tcnanl's performance hercunder (including psymOOI of the
r.enl or any additional rent as it becomes due). In all events, the Landlord Ihall be entitled to
rccover from the Tenanl all COsll and expcnles incurred by the Landlord as a result of an Event of
Default, Including reasonable allomeys' fees, The proceeds of any re1etting during tho term of this
Lease shall be applied first 10 all expensCJ Incurred 81 a rCJul1 of the Tooanl's default and of such
rclelling (including, without Iimilotion, rcasonable attorneys' fees, leasing commissions and the
. . cost of any alterations and redecorating of the Demised Premises that the Landlord deems to bo
desirable) and second to payment of the Rent and any additional rent due hereunder, The Tenant
shall be liable to the Landlord for any deficiency (including all costs of collection and reasonable
attorneys' fees) bul shall not be entilled 10 any surplus that may arise,
The remediCJ provided the Landlord abovo are in addition to, and not in lieu o~ any other
rights and remediCJ the Landlord may have under this Lease, at law or in equity. No delay by the
Lnndlord in the enforcement of the provisions of this Lease shall be deemed to constitute a waiver
of nny defaull of the Tenanl, and the pursuil by the Landlord of ono or more remedies shall not be
deemed to constilute an election of remedies to tho exclusion of any other remedy.
Notwithslanding any olher provision of this wse, the Landlord shall be under no obligation to
rclel Ihe Demised Premises if the Tenanl, for any reason whalsoever, vacates the Demised
Premises befnre Ihe end oflho Tenn,
XV.
Nntlte5.
Any notice, requCJt or demand required or pennitted to be given pursuant to this Lease
shall bo in writing and dclivered by messenger or scnt by Unlled Slates mai~ certified, postage
prepaid, return receipt requested or prepaid by guaranleed overnighl delivery service (a.a. Federal
ExprCJs), to the following persons at the indicaled addresses:
To Ihe Landlord:
105 Oakwood Drive
Wonnleysburg, Pennsylvania 17043
Four Lemoyne Square
Camp Hill. PA 17011
Either party may, at any time, designate by written notice to tho other party (In accordance with
Ihe provisions of this Article XV) 0 change in the above address or addresses, but such change
shllll be binding upon the person to whom II is senl only from and after the date of receipt by such
person,
To the Tenant:
- 7 -
The Landlord and the Tenant, Intending to be legally bound hereby, have ~II"'" this
J.ClIse 10 be execuled by their respective duly authorized rllprcsenlativos this ?-f1I day of
AlA~t!N .1996.
A-TrEST. \tJ:t......
MANAGED CARE SERVICES MAINSTAY
OFCENT~ENNSYLVANIA' 1Ne.,
a pennsy . corpp~~
By: -
Name: David H. McLane, .D.
Title: President
~~t;)
^ TIEST:
LEMOYNE SQUARE ASSOCIATES
aPennsyl~aPartn~mp
By: .'
Name: Samir Srouji, MD.
.
- 10 -
.'
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
I
I
SAMIR J. SnOUJI, and
GILLIAN R. SROUJI, his wite,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
: NO. 97 - 5923
CIVIL ACTION - LAW
TOI MATT corporation, plaintiff and
Micha.l L. 8anq., Baquire, Attorney for Plaintiff
You are hereby notified to file a written response to the
enclosed Answer and New Matter within twenty (20) days from service
hereof or a judgment may be entered against you.
SMIGEL, ANDERSON & SACKS
By:
~ e)
, . "U~-:J
LeR y smigel, Esquire
1. D. #09617
Ann V. Levin, Esquire
1.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defe~dants
SQIJ.2.7/ANSWJl.JI TU COMPI.T/AVIiUd 12/11fY11lHYun
MAT1' CORPORATION,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS
I CUMBER~ND COUNTY, PENNSYLVANIA
I
v.
.
.
SAMIR J. SROUJI, and
GILl,IAN R. SROUJI, his wite,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
ANSWER WITH NEW MATI'ER TO COMPLAINT
AND HOW, comes Defendants, Samir J. Srouji, and Gillian R.
Srouji, his wlfe, by and through their counsel, Smigel, Anderson &
Sacks, and files the following answer:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. It is admitted that
Plaintiff provided management services for Defendants. It is denied
that Plaintiff provided real estate services for Defendants.
5. Denied. It is denied that in or about February and March,
1996, Defendants engaged the services of Plaintiff specifically to
find a tenant for the building owned by Defendants at 4 Lemoyne
Square, Pennsylvania. By way of further answer, Plaintiff approached
Defendants with a proposal for a possible tenant for a portion of the
space at 4 Lemoyne Square, Lemoyne, Pennsylvania (EXhibit "A").
6. Denied. It is denied that Plaintiff and Defendants orally
agreed that Plaintiff would act as an agent for Defendants and would
undertake finding a tenant for Defendants' building at 4 Lemoyne
-- '--- -.....- $.. .--
.~. ,'. .
Square. It is denied that Plaintiff and Defendants orally agreed that
Plaintiff would be paid a commission rate of 2.5\ of the gross lease
upon ..curing .aid tenant.
7. Admitted in part and denied in part. It is denied that
based upon an agreement of the parties Plaintiff endeavored to secure
a tenant at 4 Lemoyne squaro. It is admitted that Plaintiff did
secure a tenant for 4 Lemoyne Square.
8. Denied. It is denied that Plaintiff acted as agent for
Defendants and in that capacity secured a tenant for the building at 4
Lemoyne Square. It is further denied that Exhibit "B" attached to
Plaintiff's Complaint is a true and correct copy of the lease.
9. Denied. It is denied that Plaintiff and Defendants agreed
that Plaintiff was authorized to provide an incentive payment to the
new tenant to induce it to rent the 8,100 square feet; to pay
relocation costs to the existing tenants at 4 Lemoyne Square; to make
improvements to the 8,100 square feet to be leased at 4 Lemoyne square
in order to accommodate the new tenant; and to make improvements to
the premises where the relocated tenants intended to move in order to
secure the lease for the 8,100 square feet for the new tenant.
10. Denied. It is denied that Plaintiff acted on behalf of
Defendants in incurring certain costs for relocation of the existing
tenants; for the improvements made to 4 Lemoyne Square and to the
premises where the relocated tenants moved to; and to pay a certain
relocation fee to the relocated tenants in the amount of $81,188.44.
11. k'mitted in part and denied in part. It is admitted that
Plaintiff invoiced Defendants on or about September 10, 1997. After
- 2 -
reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
allegations contained in paragraph 11 of Plaintiff's complaint.
12. Denied. It is denied that any alleged services rendered by
Plaintiff to Defendants were consistent with an agreement of the
parties or were performed timely, diligently and satisfactorily to
Defendants.
13. Denied. It is denied that Plaintiff is entitled to a
commission of $12,605.65 for securing a tenant. It is further denied
that the alleged commission f~e is reasonable and customary in the
industry.
14. Denied. It is denied that Defendants have failed or refused
to pay Plaintiff despite repeated demands by Plaintiff.
15. No response required.
16. The allegations contained in paragraph 16 constitute a legal
conclusion to which no response is required. To the extent a response
is required, the allegations in paragraph 16 are expressly denied and
strict proof thereof is demanded at trial.
17. Denied. It is denied that Plaintiff has been damaged as a
result of an alleged breach of agreement.
18. No response required.
19. Admitted in part and denied in part. It is admitted that
Mainstay acquired a tenant as a result of Plaintiff's efforts. It is
denied that Defendants authorized Plaintiff to expend any sums on
Defendants' behalf to improve the office space at 4 Lemoyne Square.
20. The allegations contained in paragraph 20 constitute a
- 3 -
legal conclusion to which no response is required. To the extent a
response is required, the allegations in paragraph 20 are expressly
denied and strict proof thereof is demanded at trial.
NEW MATTER
21. Defendants repeat and reallege the averments of paragraphs 1
through 20 which are incorporated by reference herein.
22. Plaintiff and Defendants never had an agreement or contract
regarding Plaintiff providing real estate services to Defendants.
Plaintiff provided management services only pursuant to a letter
agreement dated November 8, 1991. Attached hereto and marked as
Exhibit "8" is a true and correct copy of the letter encompassing the
terms of the agreement.
23. Plaintiff approached Defendants on or about November 20,
1995 via correspondence. Plaintiff presented a proposal on behalf of
Mainstay, Inc. to lease 8,100 square feet of office space in the
building known as 4 Lemoyne Square.
24. Defendants rejected a letter agreement proposed by Charles
R. Davis of MATT corporation which suggested that Defendants authorize
MATT Corporation to act as an agent for Lemoyne Square Associates
during negotiations with tenants.
25. Defendant, Samir J. Srouji, did authorize MATT corporation
to act as agent for Lemoyne Square Associates for negotiations with
Landmark regarding the relocation from the building at 4 Lemoyne
Drive. Plaintiff never performed in an acceptable manner and created
difficulties and expense for Defendants.
26. Plaintiff and Defendants never discussed a commission due to
- 4 -
Plaintiff for obtaining a tenant at 4 Lemoyne Square. Defendants did
discuss with Plaintiff a commission that would be due Plaintiff in the
event that Mainstay, Inc. were to purchase the building at 4 Lemoyne
Square. Mainstay, Inc. did not purchase the building. Plaintiff had
acquired tenants for the building at 4 Lemoyne Square prior to his
acquisition of Mainstay, Inc., and there was never any expectation or
agreement that he would be paid or receive a commission.
27. Defendants never received any invoices from MATT Corporation
until September 10, 1997. Correspondence dated September 10, 1997
enclosed invoices that had never before been presented to Defendants.
Defendants agreed to waive three months' rent to Mainstay, Inc. in
lieu of paying for any tenant renovation.
28. Plaintiff's claims are barred under the Doctrine of Accord
and Satisfaction.
29. Plaintiff's claims are barred by the applicable Statute of
Limi tations.
30. Plaintiff's claims lack for failure of consideration.
31. Plaintiff's claims are barred by the Doctrine of Laches.
32. Plaintiff's claims have been satisfied by payment. By
letter dated February 26, 1997, Charles Davis, on behalf of MATT
Corporation, agreed to accept $5,746 as payment in full for all
outstanding invoices up to February 26, 1997. Attached hereto and
marked as Exhibit "C" is a true and correct copy of said letter.
33. Plaintiff's claims are barred by the Statute of Frauds.
WHEREFORE, Defendants respectfully request that this Honorable
Court dismiss Plaintiff's complaint with prejudice and enter judgment
\
- 5 -
in favor of Defendants.
Date: December 18, 1997
Respectfully submitted,
SNIGIL, ANDBRSON , SACKS
By: ~~L,,, U ;(~~
LeRoy Smigel, Esquire
1.0. 109617
Ann V. Levin, Esquire
1.0. 170259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
- 6 -
. . ~ ~--~""-
- . . . "
. ...."'11 ,
VERIFICATION
I, Saair J. Srouji, verify that the statements contained in
the foregoing pleading are true and correct to the best of my knowledge,
information and belief. I understand that false statements therein are
made subject to the penalties of 18 Pa.C.S. S4904, relating to unsworn
falsification to authorities.
Date:
Ie] /1 'ill!
1
CoO/
MATT CORP~RATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wite,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIA'l'ES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CBRTIrICATB or SERVICE
I, LeRoy Smigel, Esquire, do hereby certify that on the 18th day
of December, 1997, I served a true and correct copy of Defendants'
Answer with New Matter to Plaintiff's Complaint by depositing same in
the United States First Class Mail, postage prepaid, addressed as
follows:
Michael L. Bangs, Esquire
302 South 18th Street
Camp Hill, PA 17011
SMIGEL, ANDERSON , SACKS
J ' -------J
By: ,,,_,_ J .~.,-,,-,_
~eR y Smigel, Esquire
I.D. #09617
Ann V. Levin, Esquire
I.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
-
-
MATT Corporation
P,O, BOX 901/2331 MARKET STREET / CAMP HILL, PA 170t 1/ (717) 737-3003
November 8, 1991
Dr. Samir Srouji
Lemoyne Square Aeaociates
3438 Trindle Road
Camp Hill, PA 17011
Re: 4 Lemoyne Square
Dear Dr. Srouji:
This letter will confirm our oonversation concerning
possible management services for the property known as 4 Lemoyne
Square. Lemoyne. PA and owned by Lemoyne Square Associates.
We are pleased to quote you the sum of $150.00 per month as
a management fee for services on the property. Provided in this
service fee would be the following:
Receiving tenant requests and complaints:
24 hour
1.
service.
2. Oversee all tenant renovations and upgrades to the
building to see that they comply with owners wishes and building
standard.
3.
building
4.
5.
Review and approve all vendor work performed in the
and on the property.
Review and bid all vendor contracts annually.
Prepare an annual budget of income and operating
expenses.
6. Arrange for and supervise MATT employees or any outside
contractors to perform regular maintenance work on the property.
7. Identify major repair requirements and advise Lemoyne
Square Associates. who shall thereafter approve those repairs.
MATT Corporation shall supervise execution of repairs.
All maintenance work performed on the property by MATT
employees shall be billed at actual pay rates. plus 45\ for
payroll and fringe benefit expenses. All costs of outside
vendors performing work on the property shall be billed to
Lemoyne Square Associates at cost. All purchases of supplies and
materials for the property will be billed at cost. MATT
Corporation shall secure approval for any expenditure prior to
work being performed.
...
Page 2
4 Lemoyne Square
November 11, 1991
I am hopeful that this basic outline of services meets with
your approval. We can begin service within a week of receiving
your approval. If you are in agreement with this basic outline
please execute one copy of this letter and return to our office.
I would then have an agreement prepared for your review and
signature.
I look forward to the possibility of working for you and
thank you in advance for the opportunity to quote your service.
CA;)}. .
Charles R. Davis
CRD/js
APPROVED
DATE
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IN TIlE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
MA IT CORPORA nON,
Plaintiff
CIVIL ACTION - LA W
SAMIR J, SROUJI and
GILLIAN R, SROUJI, his wife,
individually, and IId/b/a
LEMOYNE SQUARE ASSOCIA TES,
Defendants
NO, 97-5923 CIVIL TERM
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MA TIER
2 I, No answer required,
22, Admilled in part and denied in part, II is denied that Plaintiff and Defendants never
had an agreement or contracl regarding Plaintiff providing real estate services to Defendants and
Plaintiff incorporates the allegations contained in its Complaint hcrein as if more fully set forth.
II is admitted that the document dated November 8, 1991, shows an agreement between the
parties for on-going management services which were in fact provided by PlaintifT to Defendant
from 1991 onward.
23. Admitted in part, It is admilled that Plaintiff sent the leller of November 20, 1995, to
Defendants and identified a potential tenant for Defendants' building with proposed terms and
conditions, The rest of the averment or any other meaning of the avemlent is denied,
24, Denied, It is spccifically dcnied that Defendants rcjected the proposal by Charles R.
Davis of MAlT Corporation that MA IT Corporation was to act as the agent for Lcmoyne
Square Associates during negotiations with the tenant. It is specifically averred that the
Defendants not only authorized but permitted MA rr Corporation to act us its agent during
negotiations with the tenant in question,
25. Admitted in part and denied in part, It is admitted that MA IT Corporation acted as
agent with negotiations with Landmark regarding the relocation from the building at 4 Lemoyne
Square, It is denied that MA IT Corporation did not perform in an acceptable manner or that it
created difficulties and expense for Defendants,
26, Denied, It is specifically denied that there was never a discussion between the
Plaintiff and Defendants for the payment of commission for the work performed by Plaintiff in
securing the tenant Mainstay, lnc" in Defendants' building, It is also specifically denied that any
discussion of commission was related to whether or not Mainstay, Inc,. decided 10 purchase the
bLlilding, It is averred that Plaintiff was to be compensated via commission for the work in,
securing Mainstay, Ine" as a tenant for Defendants,
27, Denied, Plaintiff is without knowledge sufficient to form a belief as to the truth of
this averment and therefore it is denied and strict proof thereof is demanded at the trial of this
case,
28, Denied, This averment is a legal conclusion to which no answer is required, To the
extent that a response is required, the pllegations in Paragraph 28 are expressly denied and strict
proof thereof is demanded at the trial of this case,
29, Denied, This averment is a legal conclusion to which no answer is required, To the
extent that a response is required. the allegations in Paragraph 28 are expressly denied and strict
2
VERIFICATION
CHARLES R. DA VIS, being duly sworn according to law, deposes and says thai he is
the President of MA IT Corporation. 0 Pennsylvania corporation. Plaintiff herein, and that as
such President, he is authorized to make this Verification on its behalf and that the facts set forth
in the foregoing Answer to New Maller are true and correct to the best of his knowledge,
infonnation, and belief,
Date: IZ-f,,-Q7
dfiJ=
CHARLES R, DA VI
CERTIFICATE OF SERVICE
I HEREB Y CERTIFY that I have this day served the foregoing Answer to New Molter by
depositing 0 copy of some in the United States mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed to the following:
Ann V. Levin, Esquire
Smigel, Anderson & Sacks
2917 North front Street
Harrisburg, PA 1711~-1223
DATE:~
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MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
RULE TO SHOW CAUSE
AND NOW, this
".... day of
Ald~
, 1998,
upon consideration of the foregoing Motion to Compel production of
Documents, a Rule is hereby issued on Plaintiff to show cause, if any
there be, why the relief requested should not be granted.
-R~LK ftET~LB
O......':G rROf1 CER',,'ICC.
!
I.' ",':'
RULE RETURNABLE at a he.piRS to be held on this matter and
scheduled for the
'...., {
.....;
day of
; ;i ,~ " j,' /( ,:"'1__/
, 1998, at
,~; ,)(> o'clock ~.m, in Courtroom No. ~, Cumberland County
Courtho~se, Carlisle, Pennsylvania.
BY THE COURT I
A 4-,
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.
.
..
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R, SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS
AND NOW, come Defendants, Samir J. Srouji and Gillian R. Srouji,
by and through their counsel, Smigel, Anderson & Sacks, and file the
following Motion to Compel production of Documents against Plaintiff,
and in support thereof, avers the following:
1. Defendants, Samir J. Srouji and Gillian R. Srouji, are adult
individuals who reside at 105 Oakwood Drive, Wormleysburg,
Pennsylvania.
2. Plaintiff, Matt Corporation, is a corporation with a
principal place of business at 1200 Camp Hill Bypass, P.O. Box 901,
Camp Hill, Pennsylvania.
3. On or about October 27, 1997, Plaintiff filed a Complaint
against Defendants alleging breach of contract and unjust enrichment.
4. A Request for Production of Documents was served on
Plaintiff on or about February 20, 199B. A true and correct copy is
marked as Exhibit "A", attached hereto and made a part hereof.
5. On or about April 9, 199B, Plaintiff filed an an5wer to
Defendants' Request for production of Documents. A true and correct
copy is marked as Exhibit "B", attached hereto and made a part hereof.
.#
6, The answer to the Request for production of Documents,
referenced attached documentation. The additional documentation
provided by Plaintiff was voluminous, in no particular order and
failed to even refer to which question it was responding.
7. It was impossible for Defendants to discern which documents
were in response to which request.
8. On or April 14, 1998 Defendants' counsel advised counsel for
Plaintiff that the documentation provided in response to the request
for production was insufficient and not in compliance with
Pennsylvania Rule of civil Procedure 4009.12(b). A true and correct
copy of that correspondence is marked as Exhibit "C", attached hereto
and made a part hereof.
9, Defendant afforded Plaintiff an opportunity to arrange the
documentation in accordance with the Rules of Civil Procedure.
10. Plaintiff failed to respond for a period in excess of five
months.
11. On or about October 9, 1998 counsel for Plaintiff indicated
that he would not be organizing the documentation he had previously
provided and that he felt his answers to the Request for production of
Documents were sufficient. A true and correct copy of this
correspondence is marked as Exhibit "D", attached hereto and made a
part hereof.
12. On or about October 16, 1998 counsel for Defendant contacted
counsel for Plaintiff via telephone. During that conversation,
Defendants' counsel advised Plaintiff's counsel that a Motion to
Compel production of Documents would be filed. Plaintiff's counsel
again indicated that he would not be filing a revised answer.
~
13, Counsel for Plaintiff has not objected to any of the
requests for production.
14. The documents requested by Defendants are essential to the
proper defense and presentation of their case. Without the documents,
Defendants' case is unduly prejudiced.
15, Plaintiff's conduct in responding to Defendants' discovery
request is unjustified and has necessitated the filing of the instant
motion.
16. It is anticipated that Defendants' will incur legal fees in
the amount of $750.00 for the preparation, filing and disposition of
this motion.
WHEREFORE, Defendants respectfully request that this Honorable
Court enter an Order:
A. Compelling Plaintiff to produce all of the documents
requested by Defendants in conformance with Pa.R.C.P. 4009.12
within fifteen (15) days from the entry of said Order, and upon
Plaintiff's failure to comply within the allotted time, to suffer
sanctions to be imposed by further order of court;
B. Directing Plaintiff to pay Defendants' reasonable
counsel fees and costs incurred in connection with the filing,
preparation and disposition of the instant motion in the amount
of $750.00; and
Date:
C. Granting further relief as is deemed necessary and just.
SMIGEL,jANDERSON & ~KS '_~
By: ..lb.- J ~}
LeRoy Smigel, Esquire ID U09617
Ann V. Levin, Esquire ID U70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
liJ- ,) 9- 9V
"
INSTRUCTIONS
If you object to any of Ihe following rcquesls on the grounds that the allomey-cllenl,
ollomey workproduct or any other privilcge is applicable thcrcto, with respect 10 Ihat document:
a, Statc its date;
b, Identi fy the author;
c, Identify each pcrson who prepared cr participated in preparalion of Ihc
documents;
d, Idcntify each person who receivp.d the original or a copy thereof;
e, Identify each person from whom the documents or any portion thereof
were received;
f. Slate the presenl local ion of Ihc documenl and all copies thcreof;
g, Identify each person who has ever had possession, custody or control of il
or a copy thcreof; and
h, Provide sufficienl infonnation concerning the documenl and the
circumstanccs thereof 10 explain Ihe claim of privilege and 10 pennillhe
adjudication of the property of that claim,
As referred 10 herein, "document" or "conlcnts" shall include wrillen, printed, typed,
recorded, or graphic maller, however produced or rcproduced, including correspondcnce,
lelegrarns, or olher writlen communications, date processing slorage unils, lapes, contracls,
agreements, noles, memoranda, analyses, projections, indices, work papcrs, sludics, reports,
surveys, diaries calendars, film, photographs, diagrams, drawings, minulcs of meelings, or any
other writing (including copics of any of Ihe forcgoing, regardless of whether you are now in
posscssion, custody or control of Ihe original) now in your posscssion, custody or control, your
fonner or presenl counsel, agents, employees, officcrs, insurcrs, or any other person ocling on
your behalf,
.
'"
MATT CORPORATION,
PLAINTIFF
:.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
SAMIR ], SROUJI, and
GILLIAN R, SROUJI, his wife,
individually and IId/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 . 5923
CIVIL ACTION . LAW
DEFENDANTS' REQUEST FOR THE
PRODUCTION Of' DOCUMEm:S
TO: MATT Corporation, Plaintiff
Michael L. Bangs, Esquire, Attorney for Plaintiff
302 S. 18th Street
Camp Hili, PA 17011
Kindly produce at thc law offices of Smigel, Anderson & Sacks, counsel for Defendanls,
localed at 2917 North Fronl Street, Harrisburg, PeMsylvania 17110, within thirty (30) days of
the dale of this Requesl thc following documents:
1. All documents (as defined in the Instructions) relevanllo or having any bearing
upon Plaintifrs claim for damages in this aclion.
- .
,
2. Any and all statcmcnts concerning the aClion, as dcfined by Rule 4003.4, from all
witnesses including any slalemcnts from Ihe parties herein, or their rcspcclive agenls, servants or
employees,
"
3. All documenls (as defined in Ihe Instructions) conlaining the names and home and
business addrcsses of 011 individuals conlacted as polenlial witnesses.
- 2 -
.
.'
4, Reports of any and all experts who willtcstify altnal,
S. All documents (os defined in the Instructions) or othcr evidence which supports
your claim thai you providcd management and real eslale serviccs for Defendants os alleged in
Paragraph 4 of your Complainl.
.3 .
. ,
6. All documents (as defined in the Instructions) or other evidence which supports
your claim that on or about February and March, 1996, the Defendants cngeged your services to
find a tenant for the building at 4 Lemoyne Squarc as allegcd in Paragraph S of your Complaint.
7. All documents (as defined in Ihe Instructions) or other evidenco which supports
your claim Ihat Dcfendants authorized Plaintiff 10 take the aclions sel forth in Porograph 9 of
your Complaint.
.4.
.
,
.
8, To thc cxlcnlthalthey arc not alrcady attached as cxhibits in Plainlifrs Complaint,
documents, writings, noles, memoranda, cancelled chccks, or othcr evidencc which supports your
claim that you incurrcd and paid for the cxpcnscs allegcd in Paragraphs 10 and 11 of your
Complaint.
9. All documcnls (as defincd in thc Instruclions) or othcr cvidence which supports
your claim that serviccs wcrc perfonned or donc in a timcly, diligcnl fashion and satisfactorily
to Defendants as allcgcd in Paragraph 12 of your complainl.
- s -
10, The cntire contents of any and all claims and investigation files prcpared in this
maller, however labeled, excluding refercnces to mental impressions, conclusions or opinions
rcpresenting thc value or mcril of thc claim or defcnse, or respecting slrolegies or tactics in
privileged communications from counsel.
,I
SMIGEL, ANDERSON & SACKS
Date: February 20, 1998
......-.--'
Le oy Smigel, Esquire
I,D. #09617
Ann V. Lcvin, Esquire
I,D. #70259
2917 North Fronl Sired
Harrisburg, P A 17110-1223
(717) 234-2401
Attorneys for Defendants
J
By: _
- 6-
'c
r, Charlcs R. Davis, vcrify Ihal thc stotemcnts conlained in the forcgoing Answer
to Defendants' Requcst for Production of Documcnts are true and correcl to the bcSI of my
knowledge, infonnation and belief, r understand thai false statcments Iherein are made subject
10 the pcnalties of 18 Pa,C,S, ~4904, relating to unsworn falsification to authorities,
Date:
CHARLES R. DAVIS
MA IT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
SAMIR ], SROUJI, and
GILLIAN R. SROUJI, his wifc,
individually and IId/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIFICATE QF SERVIC~
I, Ann V. Levin, Esquire, allomey for Defendants in the above-caplioned maller, do
hcreby certify that I served a true and correct copy of the foregoing Request for Production of
Documents on counsel for Plaintiff by depositing same in the U,S. Mail, first class, poslage
prepaid, on the 20th day of February, 1998, addressed as follows:
Michael L. Bangs, Esquire
302 S, 18th Strcel
Camp Hill, PA 17011
SMIGEL, ANDERSON & SACKS
By:
.J ' J ~ -:)
LeRoy Smigcl, Esquire
1.0. #09617
Ann V, Levin, Esquire
I.D. #70259 ,
2917 North Fronl Street
Harrisburg, PA 17110-1223
(717) 234-2401
Allomey for Defendants
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
SAMIR J. SROUJI, and
GILLIAN R, SROUn, his wife,
individually and tJd/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 . 5923
CIVIL ACTION - LAW
DEFENDANTS' REQUEST FOR THE
PRODUCTION OF DOCUMENTS
TO: MATT Corporation, Plaintiff
Michael L. Bangs, Esquire, Attorney for Plaintiff
302 S, 18th Street
Camp Hili, PA 17011
Kindly produce at the law offices of Smigel, Anderson & Sacks, counscl for Defendants,
located al 2917 North Front Street, Harrisburg, Pennsylvania 17110, within thirty (30) days of
the date of this Request the following documents:
I. All documents (as defined in the Inslruclions) relevanllo or having any bearing
upon Plaintifrs claim for damagrs in Ihis action.
See attached documents.
.
. " .
4, Reports of any and all experts who will testify at trial.
Undetermined at this timel will provide if applicable.
S. All documents (as delincd in the Instructions) or olher evidence which supports
your claim that you provided managemenl and real estale services for Defendanls as alleged in
Paragraph 4 of your Complaint.
See attached documents.
.3.
. " ,
6, All documents (as defined in the Instructions) or other evidence which supports
your claim that on or about February and March, 1996, the Defendants engaged your services to
find a tenant for the building at4 Lemoyne Square as alleged in Paragraph 5 of your Complaint.
See attached documents.
7. All documents (as defincd in the Inslructions) or other evidence which supports
your claim that Defendants authorized Plaintiff 10 lake lhe actions sel forth in Paragraph 9 of
your Complaint.
See attached documents.
- 4-
. .' ,
. .
8,
To the cxtentthatthey are not already auached as exhibits in Plaintiffs Complaint,
documents, writings, notes, memoranda, cancelled checks, or olher evidence which supports your
claim that you incurred and paid for the expenses allegcd in Paragraphs 10 and 11 of your
Complaint.
See attached documents.
9, All documenls (as defined in the Instructions) or other evidence which supports
your claim that services were performed or donc in a limcly, diligcnt fashion and salisfaclori1y
to Defendants as alleged in Paragraph 12 of your complaint.
See attached documents.
I
I
. S .
. .' .
10, The entire contents of any and'all claims and investigation files prepared in this
matter, however labekd, excluding references to mental impressions, conclusions or opinions
representing the value or merit of the claim or defense, or respecting strategies or tactics in
privileged communications from counsel.
See attached documents.
SMIGEL, ANDERSON & SACKS
Date: February 20, 1998
By: _
J
.~
<-^--'"
Le oy Smigel, Esquire
1.0, #09617
Ann V, Levin, Esquire
I.D, #70259
2917 North Front Street
Harrisburg, P A 17110-1223
(717) 234-2401
Attorneys for Defendants
- 6 -
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--- -.. - --- --... -------. --- .. ------.-.---
,
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
SAMIR J. SROUlI, and
GILLIAN R. SROUJI, his wife,
individually and IId/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO, 97 . 5923
CIVIL ACTION . LAW
I, Ann V, Lcvin, Esquire, attorney for Defendants in the abovc-captioncd maller, do
hereby certify that I scrvcd a true and correct copy of the forcgoing Rcquest for Production of
Documents on counscl for Plaintiff by depositing same in the U,S. Mail, first class, poslage
prcpaid, on the 20th day of February, 1998, addressed BI follows:
Michael L, Bangs, Esquire
302 S, 18th Strcel
Camp HlII, PA 17011
SMIGEL, ANDERSON & SACKS
By:
.J . rJ L -=>
LeRoy Smigel, Esquire
1.0.1109617
Ann V. Levin, Esquire
1.0. #70259 ,
2917 North Fronl Street
Harrisburg, PA 17110-1223
(717) 234-2401
Allomey for Defendants
.
. . I .
VERIFICATION PURSUANT TO Pa. R.C.P. I024(~l
I, MICHAEL L. BANGS I Esquire, counsel for Plaintiff, verify that the statements made
in the foregoing Plaintiffs Answers to Defendants' Request for Production of Documents ore
true and correct to the best of my knowledge, infonnation, and belief based upon infonnation and
documents provided to me by Plaintiff. I understand that the slatements herein ore made subject
to the penalties of 18 Pa. C,S, Section 4904 relating to unsworn falsification 10 authorities.
DATE: 1/, / ;, t
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-_.------~-
-.,.-..,-.-
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CEltTIFICATE OF SERVICE
IIIEREDY CERTIFY thotl hove this doy served the foregoing Plaintiff's Answers to
Defcndonts' Request for Production of Documents by hond delivering the original of some,
oddrcsscd 10 the followlnll:
Ann V. Lcvin, Esquirc
Smlllcl, Anderson & Socks
2917 North Front Strect
Ilorrlsburlll PA 7110-1223
DATE:
,
. ,
. .' .
- , ..-
, .' ,
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~
MICHAEL J.. BANGS
A'ITOR,NEV AT LAW
302 SOlJl'H 18TII STREET . CAMP HIU. PA 17011
PIIONt 717.730.7310
FAX 717.730-73H
Oclober 8, 1998
Ann V. Levin, Esquire
Smigcl, Anderson & Sacks
2917 North Fronl Slrcet
Harrisburg, P A 11110-1223
RE: Matt Corporation vs, Samir Srouji. et aI.
Cumberland County No. 97-5923 Civil Tenn
Dear AM:
Enclosed you will find Plaintirr s answers 10 your Inlerrogatories. I apologize for the
delay in getting these responses 10 you. I hod some significant family issucs 10 take core of ovcr
the summer months and am only now just catching up with my work.
I notc that you senl me a letter in April and returned the documents Ihat I senl over to you
in accordance with your Production of Documents requcst. I do not agree with your statcmcnt in
your letter concerning the effecl of Rule 4009,12,
First, your request for production of documents are extrcmely broad, However. I did nol
object to them but merely answered those paragraphs in accordance with your request.
Second, I went beyond the requirements of the Rule when I copied my client's complete
file and sent it over to you. Under the Rule that you cited, I need only made those l!ocumcnts
available to you and you could then examine them or inspect them and obtain the copies that you
felt corresponded to your rcquest. I have no obligation to break apart those documents which I
may use to prove my case.
Finally, in order to give you the complete file, I attached hand-written notes thai my
client had prcpared. If you will notc, the hand-written notes ore backed up by typed written
lellers, The hand-written notes are merely redundanl and are not different from those lellers. I
could merely purge Ihe file of those if you want me to do so, I do not intend to obtain additional
copies of those written documents for you,
" . . ,
. .' .
I .' .
Ann V. Levin, Esquire
2
Oclober 8, 1998
If you want to argue over my production request, then so be It. I again will make this file
available for you 10 pick up if you wish. If you wanl to sel up o lime 10 come ovcr 10 my office
and review them and then obtain copies on your own, you may do that as well. The choice is
yours,
I intend to gel this case back on track for resolution. If you intend 10 conduct the
deposition of Mr. Davis, please providc me with several dales when you ore available for
conducting his deposition. If you intend 10 eonducl thc dcposition of Mr. Davis, I will conducl
the depositions of your clients as well, If you do nol intend 10 conduct Ihe deposition of
Mr, Davis, then I will forego conducting the depositions of your clients and I will mercly list the
casc for trial. If you intend to conduct my client's deposition, please providc me with several
dates when your clients arc also available and we can gct them completed in a timely fashion.
Please let me hear from you within tcn (10) days. If! do nol hear from you, I will assume that
you do not wish to conducl the depositions and I willlisl the case for trial.
Michocl L. Bangs
wsc
Enclosurcs
cc: Matt Corporolion
. )
~ 4 ' ,
. . . . ' .. .
MATT CORPORATION, IN THE COURT OF COMMON PLEAS
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
~ERTIFICATE OF SERVICE
I, Ann V. Levin, Esquire, Attorney for Defendants, do hereby
certify that on October 29, 1998, I served the foregoing Motion to
Compel Production of Documents in the above captioned matter, by
depositing same in the United States Mail, first class, postage paid,
addressed as follows:
Michael Bangs, Esquire
302 S. 18th Street
Camp Hill, PA 17011
SMIGEL,
ERSON & SACKS
JLJ
Le oy Smigel, Esquire
ID #09617
Ann V. Levin, Esquire
ID #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
By:
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TOTHEPROTHONOTARYOF Cumberland COUNTY
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Illr JUR Y trial at the ncxtterm of civil court ~
Illr trial without a jury
PRAECIPE FOR I.ISTING CASE FOR TRIAl.
(Must bc typcwrillcn and submillcd in duplicatc)
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.....----------...-----...........--.--..-----..-..--------.-.----..---------------------------------.-----.----------
CAPTION OF CASE
(entire caption must be statcd in full)
(check one)
MATT CORPORATION,
Plaintiff
(X ) Civil Action. Law
( ) Appeal from Arbitration
( )
vs.
SAMIR J. SROUJI AND GILLIAN
R. SROUJI, his wife, individually,
and t/d/b/a LEMOYNE SQUARE
ASSOCIATES,
(other)
Defendants
The trial list will be called on
and
TRIALS commence on
PRETRIALS will be held on
(briefs arc due 5 days before pretrials)
(Tbe party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel, pursuant to
local Rule 214-1.)
NO. 5923 CIVIL
19~7
Indicate the allomey who will try case for the party who files this praecipe:
Michael L. Bangs, Esquire
Indicate trial counsel for other parties ifknown:
LeRoy Smiqel, Esquire
Ann V. Levin, Esquire
This case is ready for trial.
Signcd'
Print Name: Michael L.
Allomey Illr: Plaintiff
MA IT CORPORA TION,
Plaintiff
IN THE COllRT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
vs.
97-5923 CIVIL
SAMIR J, SROUJI and GILLIAN
R, SROUJI, his wife,
individually and tld/b/a LEMOYNE :
SQUARE ASSOCIATES,
Defendants
CIVIL ACTION - LAW
IN RE: NONJlJRY TRIAL
ORDER
AND NOW, this
I ,. day of February, 1999, a pretrial conference in Ihe above
captioned nonjury trial is set for Friday, March 26, 1999, at I :30 p.m, in the Chambers of the
undersigned,
BY THE COURT,
Michael L. Bangs, Esquire
For the Plaintiff
Q~~"" t1.~J... ;>./t"/~,1v
LeRoy Smigel, Esquire
Ann V, Levin, Esquire
For the Defendants
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CUM~-l:,:~\;"/'..:!.I CCUNlY
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MU:HAEt t. RAN(;S
ATIORNEY AT I.AW
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302 SOUiB I/lT/I STRF.t..T . CAMP lULL PA 17011
PIIONE 717-7,10.7311I
FAX 717.730-7374
March 3,1999
The Honorable Kevin A. Hess
Judge of the Court of Common Pleas
Cumberland County Court house
One Courthouse Square
Carlisle, P A 17013
A1TN: ROBBIE
RE: Matt Corporation vs, Samir J. Srouji, et 01.
Dear Robbie:
Plcase accept this letter as confirmation that the pre-trial conference originally scheduled
in this matter has been rescheduled, The pre-trial conference will now be held on April 5, 1999,
at 9:00 a,m,
Very truly yours,
~-
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cc: Matt Corporation
Ann V, Levin, Esquire
. A ,', .
, .-
MA Tr CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
97-5923 CIVIL
SAMIR ], SROUJI, GILLIAN R,
SROUJI, and LEMOYNE
SQUARE ASSOCIATES,
Defendants
CIVIL ACTION - LAW
IN RE: DEFENDANTS' MOTION TO COMPEL
ORDER
AND NOW, this
r'l1
day of March, 1999, pretrial conference in lhe above
captioned mailer set for March 26, 1999, is continued to Monday, April 5, 1999, at 9:00 a,m. in
the Chambers of the undersigned,
BY THE COURT,
Michael L. Bangs, Esquire
For the Plaintiff .. , 3/"'/Ql<
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Ann V. Levin, Esquire
For the Defendants
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MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
JURY TRIAL DEMANDED
SAMIR J. SROUJI, and
GILLIAN R, SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO" 97 - 5923
CIVIL ACTION - LAW
NOTICE TO PLEAD
TOI MATT Corporation, Plaintiff and
Michael L. Bangs, Esquire, Attorney for Plaintiff
You are hereby notified to file a written response to the
enclosed Amended Answer with New Matter and Counterclaim within twenty
(20) days from service hereof or a judgment may be entered against
you.
SMIGEL, ANDERSON & SACKS
~ ,~
By:' V ~7~ )
L Roy Smigel, Esquire
I.D. #09617
Ann V. Levin, Esquire
I.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
'l01<; .. 7jAHtJ MI~hr.:M TOJ \\:.Ml'U/AVl.Ikld U1/11/')') I Oi,prn
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
JURY TRIAL DI!MANDEO
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
AMENDED ANSWER WITH NEW MATTER
AND COUNTERCLAIM TO COMPLAINT
AND NOW, comes Defendants, Samir J. Srouji, and Gillian R.
Srouji, his wife, by and through their counsel, Smigel, Anderson &
Sacks, and files the following answer:
COUNTERCLAIM
FRAUD
34. Defendants repeat and reallege the averments contained in
their Answer with New Matter to Complaint filed on December 23, 1997.
35. On or about February 28, 1996, Plaintiff presented
Defendants with a proposed lease between Lemoyne Square Associates and
Managed Care Services Mainstay of Central Pennsylvania, Inc.
(hereinafter "Mainstay").
36. Defendants found this proposed lease unacceptable.
Specifically, paragraph 12, regarding alterations and improvements to
be made at the landlord's sole cost and expense was unacceptable.
37. Defendant refused to sign the proposed lease.
38. Defendant, Samir Srouji, advised Plaintiff that paragraph 12
of the proposed lease regarding the specific expenses for which
Defendant would agree to be responsible was unacceptable. Plaintiff
made notations on the drafted lease indicating the changes requested
by Defendant, See copy of the proposed lease attached hereto as
Exhibit "A".
39. On or about March 7, 1996, Plaintiff presented Defendants
with a second proposed lease already signed by David McLane, on behalf
of Mainstay.
40. The second proposed lease was also unacceptable. plaintiff
did not have the corrections that Defendant had indicated needed to be
made.
41. Defendant refused to sign the second proposed lease.
42. Later that same day, on or about March 7, 1996, Plaintiff
presented Defendant with a signature page to the alleged corrected
lease agreement between Mainstay and Defendant.
43. plaintiff represented to Defendant that the requested
changes had been made even though they had not. Defendant was induced
to sign an unenforceable lease through fraud and misrepresentation.
44. Thereafter, Defendant requested a copy of the signed lease
for his records. A copy of the lease was never provided by Plaintiff.
45. On or about May 15, 1996, on the initiative of Mainstay, an
amendment to the March 7, 1996 lease between Mainstay and Defendant
was prepared by Plaintiff and presented to Defendant for signature for
the purpose of changing the date of possession of Mainstay.
46, Paragraph 6 of the amended lease indicates as follows:
"The parties acknowledge that Addendum I ("Tenant
Renovations") which is attached to the lease has been signed
by tenant but not by landlord. Landlord hereby acknowledges
and agrees that Addendum I of the lease is binding upon it."
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47, Addendum I was not provided to Defendant in conjunction with
the signing of the March 7, 1996 lease presented by Plaintiff.
Plaintiff referenced that Addendum I was an authorization by
Defendants permitting Mainstay to perform renovations.
48, A review of Addendum I does not provide information as to
who is responsible for the numbered tenant renovations.
49. On or about September 22, 1997, Defendant obtained a copy of
the signed lease from Mainstay.
50. Upon review of the lease provided by Mainstay, Defendant
discovered that paragraph 12 of the lease did not contain the
revisions he had specified.
51. Paragraph 12 of the lease provided to Defendants by Mainstay
also contained additional paragraphs which would require Defendant to
assume additional costs and expenses,
52, The aforementioned lease provided by Mainstay also required
Defendant to assume responsibility for renovations listed on an
attached Addendum I. Defendant did not see Addendum I and his
signature is not on Addendum I. A copy of Addendum I is attached
hereto as Exhibit "B".
53. The aforementioned lease is unenforceable as it was procured
through fraud and misrepresentation.
54. Plaintiff's conduct was reckless, extreme and outrageous and
the aforementioned facts support that plaintiff knew or had reason to
know that its actions created liability to Defendants and with
appreciation of the aforementioned facts, plaintiff deliberately
proceeded to misrepresent and defraud Defendants.
- 3 -
WHEREFORE, Defendants demand judgment in their favor and against
plaintiff in the amount of $93,794.09 together with interest and costs
of suit, punitive damages and any other relief that this court deems
just and proper.
Respectfully submitted,
SMIGEL,
ERSON " SACKS
Date:
March 17, 1999
By:
/~-~
LeR y Smigel, Esquire
I.D. 1109617
Ann V. Levin, Esquire
I.D. 1170259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
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VERIFICATION
I, Samir J. Srouji, verify that the statements contained in
the foregoing pleading are true and correct to the best of my knowledge,
information and belief. I understand that false statements therein are
made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn
falsification to authorities.
Date:
'3 - /7. qr
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<f <5 THIS LEASE, dated as of the _ day of November, 1995, by and between LEMOYNE
SQUARE ASSOCIATES, a Pennsylvania (the "Land/orlf'), and
MANAGED CARE SERVICES MAINSTAY OF CENTRAL PENNSYL V ANIA,INC., a
Pennsylvania corporation (the "Tenant"), provides:
~
WI nUH ~ E I H:
I.
Descriolion of Demised Premises,
The Landlord hereby leases to the Tenant, and the Tenanl hereby hircs from the Landlord,
the entire second floor, containing approximately 8,100 square feet, more or less, of those certain
premises (the "Demised Premises") situatcd in the Borough of Lemoyne, County of Cumberland,
Pennsylvania, and more particularly dcscribed on Exhibit "A" (which is attached hereto and by
this reference made a part hereof and incorporated herein), together with _ assigned parking
spaces adjacent to the building in which the Demised Premises are located and known as "Four
Lemoyne Square" and the right to use, in common with other lenants, 011 common areas provided
to other tenants of the building in which the Premises are located, all for a term (the "Term") of
five (5) years, commcncing at 12:01 a,m, on May I, 1996 (the "Commencement Date"), and
ending at 12:00 midnight on April 30,2001, subject to and in accordance with the terms, provi-
sions, covenants and conditions contained herein.
The Term of this Lease may be extended for one consecutive additional period of five (~)
ycars; provided that the Tenant shalllirsl give the Landlord ninety (90) days' prior written notice
of its intcnt to extend the Term of this Lease at the same Rent as provided herein.
11,
Rent.
A. The Tenant shall pay to the Landlord, without notice, demand, offset or reduction,
annual rent ("Rent") in the amount of One Hundred Eight Thousand Eight Hundred Forty-five and
001100 Dollars ($100,845,OO)(based upon an annual rate of Twelve and 451100 Dollars ($12.45)
per square foot), payable in equal monthly installmcnts of Eight Thousand Four Hundred Three
and 75/100 Dollars ($8,403.75) on the lirst (1st) day of each and every month of the Term. The
Rent shall be paid at the offices of the Landlord, or to such other person or entity or at such other
place or address as the Landlord may hereafter direct in writing. Rent shall be adjusted,
beginning with the fourth (4") year of the Term, as provided in paragraph IX.B below, Notwith-
standing the foregoing 10 the contrary, as compensation to the Tenant for the costs associated with
the terminalion of the Tenant's existing lease and the move from such space to the Demised
Premises, the Tenant shall have no obligation to pay any Rent for the months of May, June and
Julj', 1996,
-
I
'Ii"
D. If the Landlord does not receive from the Tenant each monthly rental payment
when it is due, the Landlord, at its option, may charge the Tenant a late charge equal to five
percent (5%) of the monthly rental payment (together with any additional rent as hereinafter
provided) as additional rent, and such late charge shall be due and payable by the T~nant to the
Landlord immediately upon notice to the Tenant.
C, The Landlord shall pay all real estate taxes assessed against the Demised Premises,
The Tenant shall pay all personal property taxes assessed against thc property of the Tenant
located thereat.
Ill.
Use of Demised Premises,
The Tenanl shall use the Demised Premises only for the purposes of a health care delivery
and mental heath care and substance abuse treahnent purposes together with related administrative
functions or for any other lawful purpose,
IV.
Maintenance and Reoairs: the Tenant's Oblil!ation to Notify.
Thc Landlord shall keep lhe Demised Premises in reasonably good working order and
condition and shall make 011 repairs and replacements not occasioned by the negligent or wilful
act of the Tenant, its agents, employees, contractors, invitees or licensees, The Tenant shall
provide notice to the Landlord of any repairs or replacements required to be undertaken by the
Landlord pursuant to this Article IV.
V.
The Landlord Not Liable: Indemnity bv the Tenant.
The Landlord shall not be liable for any injury to persons (including death) or for any loss
or damage to property resulting from any cause other than the gross negligence or wilful, wrong-
ful act of the Landlord, The Tenant shall indemnify and hold the Landlord hannless for and from
any and all suits, actions, damage, liability and expense (including attomeys' fees) arising from or
out of (A) any oecurrence in or on the Demised Premises or (B) the occupancy or use by the
Tenant of the Demised Premises.
VI.
Insurance,
The Tenant shall, at all times during the lenn of this Lease or any renewal thereof, carry
with an insurance carrier acceptable 10 the Landlord and qualified to do business in the Common-
wealth of Pcnnsylvanla, public liability insurance (which may be an umbrella policy) naming the
.2.
~
I
Landlord as co. insured, with a limit of liability of not less than SI,OOO,OOO,OO per person and
S 1,000,000,00 per occurrence, The Landlord shall insure the Demised Premises against fire and
other casualties (with extended coverage) at the replacement cost of the Demised Premises.
Certificates of such insurance shall be fumished to the Landlord before the occupancy of the
Demised Premises by the Tenant.
VII.
De~truction to Leased Premises.
A, If the Demised Premises arc damaged by fire, the elements, accident or other
casualty and arc thereby rendered untenantable, in whole or in part, the Landlord shall have the
option (to be exercised in its sole discretion) to (I) terminate this Lease immediately by giving
written notice of such termination to the Tenant, in which event neither the Landlord nor the
Tenant shall, after the date of such notice, have any further liability to the other hereunder; or (2)
cause such damage to be repaired, in which event the Rent shall be abated in full, and such
abatement shall commence on the date the Landlord is notified of the damage and shall continue
until the repairs have been completed. If the Landlord causes the Demised Premises to be
repaired, such repairs shall be at the sole cost and expense of the Landlord (unless such damage
was caused by the Tenant or any agent, contractor, employee, invitee or licensee of the Tenant, in
which event such damage shall be repaired at the sole cost and expense of the Tenant),
B, The Landlord shall not be required to repair or replace, or to com~ensate the
Tenant for, any property which the Tenant is entitled to remove from the Demised Premises.
C, The Landlord shall be obligated 10 make no payments for damages, com~ensation
or claims for inconvenience, loss of business or annoyance arising from any damage to or repair
of the Demised Premises or the building in which the Demised Premises are located.
VIII.
Eminent Domain,
If all or any part of the Demised Premises, or all means of access thereto, are taken or
condemned pursuanlto the power of eminent domain, or by purchase in lieu thereof, this Lease
shall terminate and the Tenant shall have no claim against the Landlord or to any portion of the
award or purchase price for the value of any unexpired Term of this Lease, but the foregoing shall
not limit the Tenant's right to compensation from the condemning or purchasing authority for the
value of any of the Tenant's property taken (other than the Tenant's leasehold interest in the
Demised Premises) so long as the same docs not decrease the amount otherwise due to the
Landlord, In the event of a temporary taking pursuant to the power of eminent domain, this
Lease shall not terminate but the term hereof shall be extended by the period of the taking and tho
Rent shall abate in proportion to the area for the period of such taking,
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IX.
Services Provided bv the Landlord or the Tenant.
A. The Tenant's ObliljJation for Services. The Tenant shall provide, at its own cost,
janitorial services of the Demised Premises and all electricity for the Demised Premises (including
heat, air conditioning and ventilation); provided, however, that the Landlord shall, at the .
Landlord's sole cost and expense, cause the Demised Premises to be separately zoned for heating,
air conditioning and ventilation and to be separately metered by the applicable electric company.
B. The Landlord's ObliRation for Services. The Landlord shall provide to the Tenant,
at the Tenant's expense water, sanitary sewer and all other public utilities provided to other
tenants of the building in which the Demised Premises arc located together with repair and
maintenance and upkeep of all common areas serving the building. The Landlord shall have no
liability for any failure of a provider of a public utilities in the provision therefor. Commencing
in the fourth (4") year of the Lease term, the Tenant shall pay, as additional Rent hereunder, the
Tenant's Pro Rata Share (based upon the ratio of the rentable area of the Demised Premises to the
rentable area of the building in which the Demised Premises are located) of the increase in all
operating costs for the building in which the Demised Premises are located over and above the
operating costs for the building in which the Demised Premises are located in the immediately
preceding year, but not to exceed an annual increase of two and one-half percent (2\1,%) over the
Rent payable in the immediately preceding year.
X.
RiRhts of the Tenant Subordinate.
This Lease, and the rights of the Tenant hereunder, are subject and subordinate to all
mortgages which may now or hereafter affect this Lease, the Demised Premises, the building In
which the Demised Premises are located or the land on which such building Is constrUcted. The
foregoing subordination provision shall be self-operative and no further instrument of subordina-
tion shall be required; provided, however, that in confirmation of such subordination, the Tenant
hereby agrees, upon the request of the Landlord, to execute and deliver, in recordable form, any
instrument of subordination or confirmation of subordination required by the Landlord. Not-
withstanding the foregoing subordination, the mortgagee shall continue to recognize the rights of
the Tenant under this Lease so long as the Tenant is not in default hereunder. Notwithstanding
the foregoing subordination, in the event of a foreclosure under any mortgage affecting the
Demised Premises or the building in which the Demised Premises are located, the holder of the
note secured by the mortgage or the purchaser at such foreclosure sale shall have the option to
recognize this Lease, in which event this Lease shall continue in full force and effect and the
Tenant shall attorn to the new landlord hereunder.
.4.
XI.
Personal Propertv at Risk of the Tenant.
All personal property of every kind and description which may at any time be placed in or
on the Demiscd Premises by the Tenant (including but not limited to the equipment and inventory
of the Tenant) shall be at the Tcnant's sole risk. Atlhe conclusion of the Term of this Lease, any
personal property remaining at the Dcmised Premises shall, at the option of the Landlord, become
the property of the Landlord; provided, however, lhatthe Landlord may require that any or all
such property be removed from the Demised Premises by the Tenant and, should the Tenant not
do so, may remove any or all such property at the expense of the Tenant.
XII.
Alterations and Imorovcments.
Prior to the Commencement Dale, the Landlord shall, at the Landlord's sole cost and
expense, undertake and complete the following work at the Demised Premises:
A. <:lL Repaint the entire Demised Premises in a color selected by the Tenant;
B. ate.. Provide two (2) connections between the existing three suites located within the
Demised Premises as more particularly idcntified on Exhibit "A"j
c.~/,
Clean the Demised Premises;
D.
Relocate the existing two kitchenettes within the Dcmised Premises into a central
lunchroom at a location identified on Exhibit "A";
Replace all carpets and floor coverings within the Demised Premises with carpet
and floor coverings selected by the Tenant; and
F9'/( Provide building standard signage in the lobby of the building in which the
. Demised Premises are located.
E.
The Tenant shall not alter or improve, nor cause any alterations or improvements to bc made to,
the Demised Premises without the Landlord's prior written consent.
XIII.
Covenant to Care for Demised Premises.
Thc Tenant covenants and agrees to commit no waste and to take good care of the Dcmised
Premises. The Tenant shall, at the Tenant's sole cost and expensc and to the complete satisfaction of
the Landlord, repair any and all damage or injury to the Demised Premises, and the building in
which thc Demised Premises arc located, that is caused by thc Tcnant or any agent, employec,
contractor, invitee or Iicensce of the Tenant. If the Tenant fails to make such repairs, the Landlord
- 5 -
. .
may, after ten (10) days prior wriuen notice to the Tenant, make such repairs and the cost of such
repairs shall be deemed to be addilional rent hereunder and shall be paid by the Tenant to the
Landlord within ten (10) days aftcr demand is made thcrefor upon thc Tenant. The Tenant covenants
and agrees to quit and surrender the Demised Premises in clean and good condition, reasonable wear
and tear excepted.
XIV.
Default of the Tenant.
A. Each of the following shall, if not cured within the time periods prescribed In
Paragraph XIV (B) hereof, constitute an event of default (hereinafter called an "Event of Default")
under this Lease:
1. The Rent or any additional rent is not paid when due.
2. The Tenant fails or is unable to pay its debts generally as they become due;
transfcrs property in fraud of creditors; makes an assignment for the bcncfit of creditors; or has a
receiver or trustee appointed for any of the Tenant's assets with such appointment not bcing vacated
within thirty (30) days.
3. The Tenant fails to comply with any term, provision, covenant or condition of
this Lease.
B. The Landlord shall give the Tenant written noticc of each and every Event of Default
as it or they occur and the Tenant shall have tcn (10) days from the date of such notice to cure any
and all Events of Default dcscribed in Paragraph XIV(A)(I) hereof and thirty (30) days from the date
of such notice to cure (or commence and prosecutc a good faith effort to cure, if an Event of Default
cannot reasonably bc cured within such thirty-day period but in no event longer than one hundred
twenty (120) days) any and all Events of Default described in Paragraph XIV(A)(3) hercof.
Upon notice to the Tenant by the Landlord of the occurrencc of an Event of Dcfault and the
failure of the Tenant to cure such Event of Default within the time periods stated above, the
Landlord shall havc the right and option (I) to terminate this Lease by written notice to the Tenant
(in which evcnt the Tenant shall immediately surrender thc Demised Prcmises to the Landlord) and
retain all monies received from the Tenant (but without prejudice to the Landlord's rights to recover
from the Tenant any amounts remaining to be paid under thc Lease, including thc Rent not yet due
and payable), or (2) to enter thc Demised Premises and remove the Tenant and the Tenant's property
therefrom with or without forcc and without being liable to the Tenant in any manner whatsoever for
any damage, and to attempt to relet the Demised Premises for the Tenant's account on such terms as
the Landlord alone shall determine, or (3) to continuc this Leasc and sue for the Tenant's perfor-
mance hereunder (including payment of the Rent or any additional rent as it becomes due). In all
ev~nts, the Landlord shall be entitled to rccuvcr from the Tenant all costs and expenses incurred by
the Landlord as a result of an Event of Default, including reasonable attomeys' fces. The proceeds
of any reletting during the term of this Lease shall bc applied first to all expenses Incurred as a result
of the Tenant's default and of such rcletting (including, without limitation, reasonable attomeys' fecs,
- 6 -
, .
Icasing commissions and the cost of any altcrations and redecorating of lhc Demised Premises that
the Landlord deems to be desirable) and sccond to payment of the Rent and any additional rent due
hereunder. The Tenant shall be liable to thc Landlord for any deficiency (including all costs of
collection and reasonable auorneys' fees) but shall not be entitled to any surplus that may arise.
The remedies provided the Landlord above are in addition to, and not in lieu of, any other
rights ar.d remedies the Landlord may have under this Lease, allaw or in equity. No delay by the
Landlord in the enforcement of the provisions of this Lease shall be deemed to constitute 8 waiver of
any default of lhe Tenant, and the pursuit by thc Landlord of one or more remedies shall not be
deemed to constitute an election of remedies to the exclusion of any other remedy. Notwithstanding
any other provision of this Lease, the Landlord shall be under no obligation to relet the Demiscd
Pr~mises if the Tcnant, for any reason whatsoever, vacates the Demised Pr~mises before the end of
the Term.
XV.
Notices.
Any notice, request or demand required or permitted to be given pursuant to this Lease shall
be in writing and delivered by messcnger or sent by United Statcs mail, certified. postage prepaid.
return receipt requested or prepaid by guaranteed overnight delivery servicc ~ Federal Express).
to the following pcrsons at the indicated addresscs:
To the Landlord:
105 O~kwood Drive
Wormleysburg, Pcnnsylvania 17043
To the Tcnant:
Four Lemoyne Square
Camp Hill> Pcnnsylvania 17011-,
. :,,',;~ '\1' , ,-: ,; -.. ":.
Eithcr party may, at any time, designate by written notice to the other party (in accordance with the
provisions of this Article XV) a change in the above address or addrcsses, but such change shall be
binding upon the person to whom it is sent only from and after the datc of receipt by such person.
XVI.
Holdovcr Tenancv.
Any holding ovcr by the Tenant with the consent of the Landlord after the expiration of the
Term of this Lcasc (or any rencwal or extcnsion thereof) shall be construed to be a tenancy from
month to month and shall be at the Rent (and in accordance with) all of the other terms, provisions,
covenants and conditions containcd in this Lease.
- 7 -
XVII.
Succcssors and AssiRns.
This Leasc and all of the term5, provisions, covenants and conditions contained herein shall
inure to the benefit of, and bc binding upon, the Landlord and the Tenant and their respective
successors and assigns.
XVIII.
Relationshlo of Parties.
Nothing contained in this Lease shall be deemcd or construed by the parties hcrcto or by any
third person as creating the relationship of principal and agent or a partnership or joint venture
between the parties hereto, it being expressly undcrstood and agreed that no provision contained
herein nor any act of the parties hercto shall be deemed to crcate any relationship betwcen the parties
hereto other than the relationship of landlord and tenant.
XIX.
Severability.
If any provision of this Lease or the application thereof to any person or circumstance shall,
for any reason or to any extent, be held or detcrmined to be invalid or unenforccable, the rcmainder
of this Lease and the application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted by law.
XX.
Waiver.
No waiver of any condition or legal right or remedy shall be implied by the failure of either
party to declare a forfeiture, or for any other rcason, and no waiver of any condition or covcnant
shall be valid unless it be contained in a writing signed by both parties, nor shall the waiver of a
breach of any condition be claimed or pleaded to excuse the future breach of the same condition or
covenant.
XXI.
Ri2ht of First Refusal.
A. The Tenant shall havc thc right of first refusal to fCnt any additional space With~
building in which the Demised Premises are located, upon thirty (30) days' prior written noticc by )
the Landlord and upon such terms and conditions as the Landlord is willing to lease such space to an
unrelated third party.
;
/
- 8 .
B. The Tenant shall have the right of first refusnllo purchase lhe building in which the
Demised Premises are located and the property on which such building is located, upon thirty (30)
days' prior written notice by the Landlord and upon such terms and cOlldilions as the Landlord is
willing to sell it to an unrclated third party.
C. The rights of first refusal contained in this Article XXI shall bc in effect at all times
during the Term of this Lease, as the same may be extended. The Landlord and the Tenant shall
execute a memorandum of the rights of first refusal contained in this Article XXI which shall be
recordcd in the Office of the Recorder of Deeds of the County of Cumbcrland, Pennsylvania, at the
expcpse of the Tenant.
XXII.
Aoolicable Law.
This Lease shall be governed by and constrUed in accordance with the laws of the
Commonwealth of Pennsylvania.
XXIII.
Entire ARreement.
This Lease contains the entire agreement bctwecn the Landlord and the Tenant relative to the
Demised Premises, and supersedes all prior and contemporaneous negotiations, understandings and
agreements, written or oral, between the parties. This Lease shall not be amended or modified, and
no waiver of any provision hereof shall be effective, unless and until set forth In a written InstrUment
authorizcd and executed with the same. formality as this Lea.~e.
The Landlord and the Tenant, intcnding to be legally bound hereby, have caused this Lease to
be executed by their rcspective duly authorized representatives this _ day of Novembcr, 1995.
A TrEST:
MANAGED CARE SERVICES MAINSTAY OF
CENTRAL PENNSYLVANIA, INC., a PeMsylvania
corporation
By:
Namc:
Title:
David H. McLane, Ph.D.
President
LEMOYNE SQUARE ASSOCIATES, a PeMsy1vanla
ATTEST:
By:
Namc:
Title:
Samlr Srouji, M.D.
- 9 -
EXHIBIT "Au
DESCRIPTION OF DEMISED PREMISES
. 10.
ADDENDUM I
TENANT RENOVATIONS
1) Extend existing partial walls to full height on drawing dated 2121196
2) R~move existing walls as designated on drawing dated 2/21/96
-4
3) Provide new doors wherc designated on drawing dated 2/21/96
4) Providc new walls in areas as designated on drawing dated 2121/96
S) Provide new carpet in areas as designated on drawing dated 2/21196 at $16 per sq.
yd. installed
6) Paint the entire second floor as shown on drawing dated 212 1/96
7) Reopen existing door on south entrance as shown on drawing dated 2/21/96
8) Paint all bathroom areas
9) Install floor tile in lunch room arC8 and corridor as shown on drawing dated
2121/96
10) 19 Partition Units purchased and installed by Tellllrlt including wiring and
telecommunications
11) Kitchen Sink to be installed in Kitchen Area as part ofimprovements
12) Refrigerator to be provided by Tenant at Tenant's expense
LEMOYNE SQUARE ASSOCIATES
By:
MANAGED CARE SERVICES MAINSTAY OF
CENT~ PIiNNSYL V ANIA, INC.
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MATT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
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CIVIL ACTION - LA W
vs.
NO. 97-5923 CIVIL TERM
SAMIR J. SROUJI and GILLIAN R.
SROUJI, his wife, individually, and
v&b~LEMOYNESQUARE
ASSOCIATES.
Defendants
PRELIMINARY OBJECTIONS TO DEFENDANTS'
AMENDED ANSWER WITH NEW MATTER AND COllNTERCLAIM
AND NOW comes Plaintiff, by and through its allomey, Michael L. Bangs, Esquire, who
files the within-captioned Preliminary O~jections to Defendants' Amended Answer with New
Malter and Counterclaim and in support thereof avers the following:
1. Plaintiff's Complaint was filed on October 24, 1997.
2. Defendants filed an Answer and New Maller on December 23, 1997.
3. Defendants did not file a counterclaim at the time of filing its original Answer and
New Malter.
4. Defendants filed and served on Plaintiff an Amended Answer and New Matter with
Counterclaim on March 23, 1999.
5. This case is scheduled for a pre-trial conference on April 5. 1999.
6. Defendants' Amended Answer and New Maller contains a Counterclaim titled
"Fraud."
7. Defendants' Counterclaim alleges. inter alia, that Plainliffarranged a lease between
Defendants and a third party (hcreinaftcr "Mainstay") and made provisions for improvements
and amendments to the lease which Defendants were allegedly induced to sign through "fraud
and misrepresentation." (Defendants' Counterclaim, Paragraph 35, 43, 46, 50-52).
8. Defendants allege that in March. 1996, Plaintiff presented Defendants with a proposed
lellSe between Defendants and Mainstay which Defendants allege was unacceptable until
corrected and that Plaintiff thereat\er presented Defendants with a signature page to the "alleged
corrected lellSe," which Defendants presumably signcd. (Defendants' Counterclaim, Pamgraph
49).
9. Defendants allege that on or about May 15, 1996. it reccived an amended lellSe which
incorporated the addendum of March. 1996. that is, Addendum I Tenant Renovations;
Defendants allcge that it WllS not providcd with Addendum 1. (Defendants' Counterclaim,
Paragraph 46-47).
10. Defendants allcgc that on or about Septcmbcr 22,1997, it obtained a copy of the
"signcd" lellSe from the third party: Mainstay.
I. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT:
PRELIMINARY OB.JECTION IN THE NATURE OF A MOTION TO STRIKE.
11. Paragraphs I lhrough 10 are incorporatcd hercin by rcference.
12. Defendants' Counterclaim was improperly filed more than twenty (20) days after
service of the Complaint. well outside the applicable time within which to file an answer and
counterclaim. Pa. R.C.P. Rule 1026.42 Pa. C.S.A.
2
13. Defendants did not seek agreement of counsel or leave of court for filing the
untimely pleading and accordingly the Defendants' Amended Answer with New Maller and
Counterclaim is not properly before this Court and should be stricken.
14. Defendants have not suggested in its Amended Answer with New Maller and
Counterclaim, or plead, that it hIlS only newly become aware of facts which it alleges form the
basis of the Countcrclaim after the filing of its original Answcr with New Mallcr in Dccember,
1997; quite to the contrary, Defendants have allcged that itlcamed of the subjcctlcase and
addendum first in May, 1996 (May IS, 1996), and thcrcafter saw the subject lease with the
addendum in September, 1997. (Paragraph 45 and 49, respectively).
15. Defcndants have subscqucntly testificd at a discovery deposition, that Defendant
Samir Srouji knew of the subjectlcasc and addendum by September, 1997.
16. This case is schcdulcd for a prc-trial confcrcncc on April 5, 1999.
17. Defendants' Counterclaim is barred by the applicable Statutc of Limitations.
18. Dcfendants are not prejudiced if thc Amended Answer with New Mallcr and
Counterclaim is strickcn because its dcfense which it has formally plcad in its original Answer
and New Mallcr is that it did not authorizc charges incurred for tenant improvcments (in this
instancc, Mainstay) which is thc esscncc of its Countcrclaim.
19. Plaintiff is tremendously prejudiced by the Defendants' inexcusable delay in filing
thc Amcnded Answer with Ncw Maller and Counterclaim and thcrefore Defendants' Answer
with New Maller and Counterclaim should bc stricken.
3
WHEREFORE, Plaintiff rcspcctfully rcquests this Honorablc Court to grant Plaintiff's
Prcliminary Objcction in thc Naturc of a Motion to Strikc Dcfendants' Amcndcd Answcr with
Ncw Mallcr and Counlcrclaim,
II. INSUFFICIENT SPECIFICITY OF PLEADING:
PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR A
MORE SPECIFIC PLEADING
20. Paragraphs I through 19 arc incorporatcd hcrcin by rcfcrcncc as though fully sct
forth hcrcin.
21. Dcfcndants' Counterclaim titlcd "Fraud" has not bcen plead with sufficicnt
particularity pursuant to Pa. R.C. Rulc 1019, 42 Pa. C.S,A,
22. Defendants do not allcgc facts which would substantiatc a claim of fraud other than
to plead Icgal conclusions.
23. Plaintiff is unablc to sufficicntly dcfcnd against Dcfcndants' allcgations of fraud
bccausc Defcndants havc failcd to plead how Plaintiff commilled fraud against answcring
Dcfendants or what actions constitutcd fraud.
24. Vicwing thc Countcrclaim in its cntircly, Dcfcndants' Countcrclaim titled "Fraud"
lacks sufficient specificity and Dcfcndants should bc requircd to plcad its claim offraud with
sufficient particularity.
25. Dcfcndants havc plcad a spccific amount of damagcs in its "Whcreforc" clause
($93,794.09), but fail cd to sct forth thc basis for its spccial damagcs contrary to Pa. R.C. Rule
1019,42 Pa. C.S.A.
4
MA TT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
97.5923 CIVIL
SAMIR 1. SROUJI, GILLIAN R.
SROUJI, and LEMOYNE
SQUARE ASSOCIATES,
Defendants
CIVIL ACTION. LAW
IN RE: PRETRIAL CONFERENCE
ORDER
AND NOW, this
p.
day of April, 1999, following conference with counsel
in Chambers, this case is stricken from the list of mailers to be tried without ajury. The
Prothonotary is directed to list this case for the week of jury trials commencing July 12, 1999.
BY THE COURT,
Michael L. Bangs, Esquire
For the Plaintiff
Ann V. Levin, Esquire
For the Defendants
- ~u_.~.t~f.
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FL!:IJ C:'F1Ci:
CF r" - --,,'n")T'~Y
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99 APR -S Al11O: 21
CUMI:li:.hLlJ ,.J COUf'fTY
PENN~'YLVANIA
"
tl"
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBEP.LAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
JURY TRIAL DEMANDED
CIVIL ACTION - LAW
RULE TO SHOW CAUSE
AND NOW, this ~ day of
~~""'J
, 1999, upon
consideration of Defendants' Motion to Amend Answer with New Matter, a
Rule is hereby issued upon Plaintiff to show cause why Defendants'
Answer with New Matter should not be amended as proposed by Defendants
in their Motion.
RULE RETURNABLE
IS-
DAYS FROM SERVICE.
BY THB COURT.
/ .I
^~.A~
1
J.
/'
SOlS :.l 1!MOTION/AVL!kl,1 04lGl/H };2JFrn
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
JURY TRIAL DEMANDED
CIVIL ACTION - LAW
MOTION TO AMEND ANSWER WITH NEW MATTER
AND NOW, comes Defendants, Samir J. Srouji, and Gillian R.
Srouji, his wife. by and through their counsel, Smigel, Anderson &
Sacks, and moves the Court to grant a Rule on Plaintiff, 11att
Corporation, to show cause why the Defendants' Answer with New Matter
previously filed in the above action should not be amended to include
Defendants' Countercl.aim for Fraud as set forth in the attached
Exhibit "A".
SMIGEL,
ERSON Ii SACKS
Date: April 1, 1999
By:
(j,A_
C. ee Anderson, Esquire
I.D. 1121315
Ann V. Levin, Esquire
1.D. 1170259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
SO~'.3'''/1.M.:) I.Nsw[R TO COMPLT/A'- '~1~ ClIP/U 1 Otpnl
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
JURY TRIAL DOONOEO
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
AMENDED ANSWER WITH NEW MATTER
AND COUNTERCLAIM TO COMPLAINT
AND NOW, comes Defendants, Samir J. Srouji, and Gillian R.
Srouji, his wife, by and through their counsel, Smigel, Anderson &
Sacks, and files the following answer:
COUNTERCLAIM
FRAUD
34. Defendants repeat and reallege the averments contained in
their Answer with New Matter to Complaint filed on December 23, 1997.
35. On or about February 28, 1996, Plaintiff presented
Defendants with a proposed lease between Lemoyne Square Associates and
Managed Care Services Mainstay of Central Pennsylvania, Inc.
(hereinafter "Mainstay").
36. Defendants found this proposed lease unacceptable.
Specifically, paragraph 12, 'regarding alterations and improvements to
be made at the landlord's sole cost and expense was unacceptable.
37. Defendant refused to sign the proposed lease.
38. Defendant, Samir Srouji, advised Plaintiff that paragraph 12
of the proposed lease regarding the specific expenses for which
Defendant would agree to be responsible was unacceptable. Plaintiff
made notations on the drafted lease indicating the changes requested
by Defendant. See copy of the proposed lease attached hereto as
Exhibit "A".
39. On or about March 7, 1996, Plaintiff presented Defendants
with a second proposed lease already signed by David McLane, on behalf
of Mainstay.
40. The second proposed lease was also unacceptable. Plaintiff
did not have the corrections that Defendant h~d indicated needed to be
made.
41. Defendant refused to sign the second proposed lease.
42. Later that same day, on or about March 7, 1996, Plaintiff
presented Defendant with a signature page to the alleged corrected
lease agreement between Mainstay and Defendant.
43. Plaintiff represented to Defendant that the requested"
changes had been made even though they had not. Defendant was induced
to sign an unenforceable lease through fraud and misrepresentation.
44. Thereafter, Defendant requested a copy of the signed lease
for his records. A copy of the lease was never provided by Plaintiff.
45. On or about May 15, 1996, on the initiative of Mainstay, an
amendment to the March 7, 1996 lease between Mainstay and Defendant
was prepared by Plaintiff and presented to Defendant for signature for
the purpose of changing the date of possession of Mainstay.
46. Paragraph 6 of the amended lease indicates as follows:
"The parties acknowledge that Addendum I ("Tenant
Renovations") which is attached to the lease has been signed
by tenant but not by landlord. Landlord hereby acknowledges
and agrees that Addendum I of the lease is binding upon it."
- 2 -
47. Addendum I was not provided to Defendant in conjunction with
the signing of the March 7, 1996 lease presented by Plaintiff.
Plaintiff referenced that Addendum I was an authorization by
Defendants permitting Mainstay to perform renovations.
48. A review of Addendum I does not provide information as to
who is responsible for the numbered tenant renovations.
49. On or about September 22, 1997, Defendant obtained a copy of
the signed lease from Mainstay.
50. Upon review of the lease provided by Mainstay, Defendant
discovered that paragraph 12 of the lease did not contain the
revisions he had specified.
51. Paragraph 12 of the lease provided to Defendants by Mainstay
also contained additional paragraphs which would require Defendant to
assume additional costs and expenses.
52. The aforementioned lease provided by Mainstay also required
Defendant to assume responsibility for renovations listed on an
attached Addendum I. Defendant did not see Addendum I and his
signature is not on Addendum I. A copy of Addendum I is attached
hereto as Exhibit "B".
53. The aforementioned lease is unenforceable as it was procured
through fraud and misrepresentation.
54. Plaintiff's conduct was reckless, extreme and outrageous and
the aforementioned facts support that Plaintiff knew or had reason to
know that its actions created liability to Defendants and with
appreciation of the aforementioned facts, Plaintiff deliberately
proceeded to misrepresent and defraud Defendants.
- 3 -
WHEREFORE, Defendants demand judgment in their favor and against
Plaintiff in the amount of $93,794.09 together with interest and costs
of suit, punitive damages and any other reliaf that this court deems
just and proper.
Respectfully submitted,
SMIGEL,
ERSON & SACKS
Date: March 17, 1999
By:
j
')
LeR y Smigel, Esquire
I.D. #09617
Ann V. Levin, Esquire
I.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
"
"
II
- 4 -
,If! LEASE
, ~
<f ~ THIS LEASE, dated as of the _ day of November, 1995, by and between LEMOYNE
SQUARE ASSOCIATES, a Pennsylvania (the "Landlord"), and
MANAGED CARE SERVICES MAINSTAY OF CENTRAL PENNSYLVANIA,INC., a
Pennsylvania corporation (the "Tenant'), provides:
.Yl II l:i IH .s. IH H:
I.
DescriDtion of Demised Premise~.
The Landlord hereby leases to the Tenant, and the Tenant hereby hires from the Landlord,
the entire second floor, containing approximately 8, I 00 square feel, more or less, of those certain
premises (the "Demised Premises") situated in the Borough of Lcmoyne, County of Cumberland,
Pennsylvania, and more particularly described on Exhibit "A" (which is attached hereto and by
this reference made a part hereof and incorporated herein), together with _ assigned parking
spaces adjacent to the building in which the Demised Premises are located and known as "Four
Lemo)'l1e Square" and the right to use, in common with other tenants, all common areas provided
to other tenants of the building in which the Premises are located, all for a term (the "Term") of
fivc (5) years, commencing at 12:01 a.m. on May I, 1996 (the "Commencement Date"), and
ending at 12:00 midnight on April 30, 200 I, subject to and in accordance with the terms, provi-
sions, covenants and conditions contained herein.
The Term of this Lease may be extcnded for one consecutive additional period of five (5)
years; provided that the Tenant shall first give the Landlord ninety (90) days' prior written notice
of its intent to extend the Term of this Lease at the same Rent as providcd herein.
II.
Rent.
A. The Tenant shall pay to the Landlord, without notice, demand, offset or reduction,
annual rent ("Rent") in the amount of One Hundred Eight Thousand Eight Hundred Forty-five and
00/100 Dollars ($100,845.00)(based upon an annual rate of Twelve and 451100 Dollars ($12.45)
per square foot), payable in equal monthly installments of Eight Thousand Four Hundrcd Three
and 751100 Dollars ($8,403.75) on the first (1st) day of each and every month of the Term. The
Rcnt shall be paid at the offices of the Landlord, or to such other person or entity or at such othcr
place or address as the Landlord may hereafter direct in writing. Rent shall be adjustcd,
beginning with the fourth (4") year of the Term, as provided in paragraph IX.B below. Notwith-
standing the foregoing to the contrary, as compensation to the Tenant for the costs associated with
the termination of the Tenant's existing lease and the move from such space to the Demised
Premises, the Tcnant shall have no obligation to pay any Rent for the months of May, June and
July, 1996. i
- ,\1"
.'
B. If the Landlord does not reccive from the Tenant each monthly rental payment
when it is due, the Landlord, at its option. may charge the Tenant a late charge equal to five
percent (5%) of lhe monthly rental payment (together with any additional rent as hereinafter
provided) as additional rent, and such lale charge shall be due and payable by the Tenant to the
Landlord Immediately upon notice to the Tenant.
C. The Landlord shall pay zll real estate taxes assessed against the Demised Premises.
The Tenant shall pay all personal property taxes assessed against the property of the Tenant
located thereat.
III.
Use of Demised Premises.
The Tenant shall use the Demised Premises only for the purposes of a health care dellvcry
and mental heath care and substance abuse treatment purposes together with related administrative
functions or for any other lawful purpose.
IV.
Maintenance and Reoairs: the Tenant's Obliealion to Notifv.
The Landlord shall keep the Demised Premises in reasonably good working order and
condition and shall make all repairs and rcplacements not occasioned by the negligent or wilful
act of the Tenant, its agents, employees, contractors, invitees or IIccnsees. The Tenant shall
provide notice to thc Landlord of any repairs or replacements required to be undertaken by the
Landlord pursuant io this Article IV.
V.
The Landlord Not Liable: Indemnitv bv the Tenant.
The Landlord shall not be liable for any Injury to persons (including death) or for any loss
or damage to property resulting from any cause other than the gross negligence or wilful, wrong-
ful act of the Landlord. Thc Tenant shall indemnify and hold the Landlord harmless for and from
any and all suits, actions, damage, liability and expense (including attomeys' fees) arising from or
out of (A) any occurrence in or on the Demised Premises or (B) the occupancy or use by the
Tenant of the Demiscd Premises.
VI.
Insurance.
The Tenant shall, at all times during the term of this Lease or any renewal thereof, carry
with an insurancc carrier acceptable to the Landlord and qualified to do business In the Common-
weahh of Pennsylvania, public liability insurance (which may be an umbrella policy) naming thc
- 2-
. .
Landlord as co-insured, with a limit of liability of not less than $1,000,000.00 per person an'd
$1,000,000.00 per occurrence. The Landlord shall insure the Demised Prcmises against fire and
other casualties (with extended coverage) otthe replaccment cost of the Demised Premises.
Ccrtificates of such insurance shall be furnished to the Landlord before the occupancy of the
Demised Premises by the Tenant.
VII.
Destruction to Leased Premises.
A. If the Demised Premises are damaged by fire, the elements, accident or other
casualty and are thereby rendered untenantable, in whole or in part, the Landlord shall have the
option (to be exercised in its sole discretion) to (1) tcrminate this Lcase immediately by giving
written notice of such tennination to the Tcnant, in which event neither the Landlord nor the
Tenant shall, after the date of such notice, have any further liability to the other hereunder; or (;!)
cause such damage to be repaired, in which event the Rent shall be abated in full, and such
abatement shall commence on the date the Landlord is notified of the damage and shall continue
until the repairs have been completed. If the Landlord causes the Demised Premises to be
repaired, such repairs shall be at the sole cost and expense of the Landlord (unless such damage
was caused by the Tenant or any agent, contractor, employee, invitee or licensee of the Tenant, in
which event such damage shall be repaired at the sole cost and expense of the Tenant).
B. The Landlord shall not be required to repair or replace, or to compensate the
Tenant for, any property which the Tenant is entitled to remove from the Demised Premises.
C. The Landlord shall be obligated to make no payments for damages, compensation
or claims for inconvenience, loss of business or annoyance arising from any damage to or repair
of the Demised Prcmises or the building in which the Demised Premises are located.
VIII.
Eminent Domain.
If all or any part of the Demised Premises, or all means of access thereto, are taken or
condcmned pursuant to the power of eminent domain, or by purchase in lieu thereof, this Lease
shall terminate and the Tenant shall have no claim against the Landlord or to any portion of the
award or purchase price for the value of any unexpired Term of this Lcase, but the foregoing shall
not limit the Tenant's right to compensation from the condemning or purchasing authority for the
value of any of the Tenant's property taken (other than the Tenant's leaschold interest in the
Demised Premises) so long as the same does not decrcase the amount otherwise due to the
Landlord. In the event of a temporary taking pursuant to the powcr of eminent domain, this
Lease shall not terminate but the term hereof shall be extended by the period of the taking and the
Rent shall abate in proportion to the area for the period of such taking.
- 3 -
. .
'1
'""1
IX.
Services Provided bv the Landlord or the Tenant.
A. :The Tenant's ObliRation for Services. The Tenant shall provide, at its own cost,
janitorial services of thc Demised Premises and all electricity for the Demised Prcmises (including
heat, air conditioning and ventilation); provided, however, that tho Landlord shall, at thc .
Landlord's sole cost and expense, cause thc Demised Premiscs to be separately zoned for heating,
air conditioning and ventilation and to bc scparately metered by the applicable electric company.
B. :The Landlord's ObliRation for Services. The Landlord shall provide to the Tenant,
at the Tenant's expense water, sanitary sewer and all other public utilities provided to other
tenants of the building in which the Demised Premises are located together with repair and
maintenance and upkeep of all common areas serving the building. The Landlord shall have no
Iiabiiity for any failure of a provider of a public utilities In the provision therefor. Commencing
in thc fourth (4") year of the Lease term, the Tcnant shall pay, as additional Rent hercunder, the
Tenant's Pro Rata Sharc (based upon the ratio of the rentable area of the Demised Premises to the
rentable arca of the building in which thc Demised Premises are located) of the increase in all
opcrating costs for thc building in which the Demised Premises are located over and above the
operating costs for the building in which the Demised Premises arc located in the immediately
preceding year, but not to exceed an annual increase of two and one-half percent (2\1.%) over the
Rent payable in the immediately preceding year.
X.
Rights of the Tenant Subordinate.
This Lease, and the rights of the Tcnant hereunder, are subject and subordinate to all
mortgages which may now or hereafter affect this Lease, the Demised Premiscs, the building in
which the Demised Premises are located or the land on which such building is constrUcted. The
foregoing subordination provision shall bc self-operative and no further instrUment of subrdina-
tion shall be required; provided, however, that in confirmation of such subordination, the Tenant
hereby agrees, upon the request of the Landlord, to execute and deliver, in recordable form, any
instrument of subordination or confirmation of subordination required by the Landlord. Not-
withstanding the foregoing subordination, the mortgagee shall continue to recognize the rights of
the Tenant under this Lease so long as the Tenant is not in default hereunder. Notwithstanding
the foregoing subordination, in the event of a foreclosurc under any mortgage affecting the
Demised Premises or the building in which the Demised Premises arc located, the holder of the
notc secured by the mortgage or the purchaser at such foreclosure salc shall have the option to
recognize this Lease, in which event this ,Lease shall continue in full force and effect and the
Tenant shall attorn to the new landlord hereunder.
- 4 -
\
XI.
Personal ProoerlY at Risk of the Tenant.
All personal property of every kind and description which may at any time be placed in or
on lhe Dcmised Premises by the Tcnant (including but not limited to the equipment and inventory
of the Tenant) shall be at the Tenant's sole risk. At the conclusion of the Term of this Lease, any
personal property remaining at the Demised Premises shall, at the option of the Landlord, become
the property of the Landlord; provided, however, that the Landlord may require that any or all
such property be removed from the Demised Premises by the Tenant and, should the Tenant not
do so, may remove any or all such property at the expense of the Tenant.
. ,
XII.
Alterations and Imorovements.
Prior to the Commencement Date, the Landlord shall, at thc Landlord's sole cost and
expense, undertake and complcte the following work at the Demised Premises:
A. <:lL Repaint the entire Demised Premises in a color selccted by the Tenant;
B. ~ Provide two (2) connections between the existing thrce suites located within the
Demised Prcmises as more particularly identified on Exhibit "A";
c.~/, Clcan the Demised Premises;
D. Relocate the existing two kitchencttes within the Demised Premises into a central
lunchroom at a location identified on Exhibit "A";
E. Replace all carpets and floor coverings within the Demised Prcmises with carpet
and floor coverings selected by the Tenant; and
F9'/( Provide building standard signagc in the lobby of the building in which the
. Dcmised Premises are located.
The Tenant shall not altcr or improve, nor causc any alterations or improvements to be made to,
the Demised Premises without the Landlord's prior written consent.
XIII.
Covenant to Care for Demised Premiscs.
The Tenant covenants and agrees to commit no waste and to take good car: of the Demised
Premises. The Tenant shall, at the Tenant's solc cost and cxpense and to the complete satisfaction of
the Landlord, repair any and all damage or injury to the Demised Premises, and the building in
which the Dcmiscd Premises arc located, that is caused by the Tenant or any agent, employee,
contractor, invitee or licensee of the Tenant. If the Tenant fails to make such repairs, the Landlord
- s .
. .
\
may, aOer tcn (10) days prior written notice to thc Tenant, make such repairs and the cost of such
repairs shall be dcemed to be addilional rent hereunder and shall be paid by the Tenant to the
Landlord within tcn (10) days aOcr demand is made therefor upon the Tenant. The Tenant covenants
and agrees to quit and surrendcr the Demised Premises in clean and good condition, reasonable wear
and tear excepted.
XIV.
Default of the Tenant.
A. Each of the following shall, if not cured within the time periods prescribed In
Paragraph XIV(B) hereof, constitute an cvent of default (hereinafter called an "Event of Default")
under this Lease:
I. The Rent or any additional rent is not paid when due.
2. The Tenant fails or is unable to pay its debts generally as they become due;
transfers property in fraud of creditors; makes an assignment for the bencfit of crcditors; or has a
receiver or trustee appointed for any of the Tcnant's assets with such appointment not being vacated
within thirty (30) days.
3. The Tenant fails to comply with any term, provision, covenant or condition of
this Lease.
B. The Landlord shall give the Tenant written notice of each and every Event of Default
as it or they occur and the Tenant shall have ten (10) days from the date of such notice to cure any
and all Events of Default described in Paragraph XIV(A)(I) hereof and thirty (30) days from the date
of such notice to cure (or commence and prosccutc a good faith effort to cure, if an Event of Default
cannot reasonably bc cured within such thirty-day period but in no evcnt longer than one hundred
twenty (120) days) any and all Events of Default described in Paragraph XIV(A)(3) hereof.
Upon notice to the Tenant by the Landlord of the occurrence of an Event of Dcfault and .he
failure of the Tenant to cure such Event of Dcfault within the time periods stated above, the
Landlord shall have the right and option (I) to terminate this Lease by writtcn notice to the Tenant
(in which event the Tcnant shall immediately surrender thc Demised Premises to the Landlord) and
retain all monies received from the Tenant (but without prejudicc to thc Landlord's rights to recover
from thc Tenant any amounts remaining to be paid under the Lease, including the Rent not yet due
and pa)'ablc), or (2) to enter the Demised Premises and remove the Tenant and the Tcnant's property
therefrom with or without force and with,out being liable to the Tenant in any manner whatsoever for
any damage, and to attempt to rclet the Demised Premises for the Tenant's account on such terms as
the Landlord alone shall determine, or (3) 10 continue this Lease and sue for the Tenant's perfor-
mance hereunder (including payment of the Rcnt or any additional rcnt as it bccomes due). In all
events, the Landlord shall be entitled to recover from the Tenant all costs and expenses incurred by
the Landlord as a result of an Event of Default, including reasonable attomcys' fees. The proceeds
of any reletting during the term of this Lease shall be applied first to all expenses incurred as a result
of the Tenant's default and of such rcletting (including, without limitation, rcasonable attorneys' fecs,
- 6 -
~
leasing commissions and the eost of any alterations and redecorating of the Demised Premises that
the Landlord deems to be desirable) and second to payment of the Rent and any additional rent due
hereunder. The Tenant shall be liable to the Landlord for any deficiency (including all costs of
collection and reasonable attorneys' fees) but shall not be entitled to any surplus that may arise.
The remedics provided the Landlord above are in addition to, and not In Iicu of, any other
rights and remedies the Landlord may have under this Lease, at law or in equity. No delay by the
Landlord in the enforcement of the provisions of this Lease shall be deemcd to constitute a waiver of
any default of the Tenant, and the pursuit by the Landlord of one or more remedies shall not be
deemed to constitute an election of remedies to the exclusion of any other remedy. Notwithstanding
any other provision of this Lease, the Landlord shall be under no obligation to relet the Demised
Premises if the Tenant, for any reason whatsoever, vacates the Demiscd Premises before the end of
the Term.
XV.
Notices.
Any notice, request or demand required or permitted to be given pursuant to this Lease shall
be in writing and delivered by messenger or sent by United States mail, certified, postage prepaid,
return receipt requested or prepaid by guaranteed overnight delivery service ~ Federal Express),
to the following persons at the indicated addresses:
To the Landlord:
10S Oakwood Drive
Wormleysburg, Pcnnsylvania 17043
To the Tenant: Four Lemoyne Square
Camp Hill> Pcnnsylvania 17011'..
. :.,'.\: ~I'(. :,.:- ~
Either party may, at any time, designate by written notice to the other party (in accordance with the
provisions of this Article XV) a change in the above address or addrcsses, but such change shall be
binding upon the person to whom it is sent only from and after the date of receipt by such person.
XVI.
Holdover Tenancv.
Any holding over by the Tenant with the consent of the Landlord after the expiration of the
Term of this Lcase (or any renewal or ext,ension thcreof) shall be construed to be a tenancy from
month to month and shall be at the Rent (and in accordance Wilh) all of the other terms, provisions,
covenants and conditions contained in this Lease.
.7-
,
\
XVII.
Successors and AssiRns.
This Lease and all of the terms, provisions, covenants and conditions contained herein shall
inure to the benefit of, and be binding upon, the Landlord and the Tenant and their respcctive
successors and assigns. '
XVIII.
Relationshio of Parties.
Nothing contained In this Lease shall bc deemed or construed by the parties hereto or by any
third person as creating the relationship of principal and agent or a partnership or joint venture
between the parties hereto, it being expressly und~rstood and agreed that no provision contained
herein nor any act of the parties hereto shall be dcemed to create any relationship bctwecn thc parties
hereto other than the relationship of landlord and tenant.
XIX.
Severabilitv.
If any provision of this Lease or the application thereof to any person or circumstance shall,
for any reason or to any extent, be held or determined to be invalid or unenforceablc, the remainder
of this Lease and the application of such provision to other persons or circumstances shall not be
affectcd thereby, but rather shall be enforced to the greatest extent permitted by law.
XX.
Waiver.
No waiver of any condition or legal right or remedy shall be implicd by the failure of either
party to declare a forfeiture, or for any other reason, and no waiver of any condition or covenant
shall be valid unless it be containcd In a writing signcd by both parties, nor shall the waiver of a
breach of any condition be claimed or pleaded to excuse the future breach of thc same condition or
covenant.
XXI.
Ri~ht of First Refusal.
A. The Tenant shall have the right of first refusal to rent any additional space With~
building in which the Demised Premises are located, upon thirty (30) days' prior writtcn notice by )
the Landlord and upon such terms and conditions as the Landlord is willing to lease such space to an
unrelated third party.
/
- 8 -
. .
EXHIBIT "A"
DESCRIPTION OF DEMISED PREMISES
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ADDENDUM I
TENANT RENOV A TlONS
1) Extend existing partial walls to full height on drawing dated 2/21/96
2) Remove existing walls as designated on drawing dated 2/21/96
3) Provide new doors where designated on drawing dated 2/21/96
4) Provide new walls in areas as designated on drawing dated 2/21/96
5) Provide new carpet in areas as designated on drawing dated 2/21/96 at $16 per sq.
yd. installed
6) Paint the entire second floor as shown on drawing dated 2/21/96
7) Reopen existing door on south entranc,e as shown on drawing dated 2/21/96
8) Paint all bathroom areas
9) Install floor tile in lunch room area and corridor as shown on drawing dated
2/21/96
10) 19 Partition Units purchased and installed by Tenant including wiring and
telecommunications
11) Kitchen Sink to be installed in Kitchen Area as part of improvements
12) Remgerator to be provided by Tenant at Tenant's expense
LEMOYNE SQUARE ASSOCIATES
By:
Dy:
MANAGED CARE SERVICES MAINSTAY OF
CENr~ PENNSYLVANIA, INC.
(j~#~
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBER~ COUNTY, PENNSYLVANIA
v.
JURY TRIAL DnwmED
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
reA
I, Ann V. Levin, Esquire, do hereby certify that on the ~~
day of March, 1999, I served a true and correct copy of Defendants'
Amended Answer with New Matter and Counterclaim to Complaint by
depositing same in the United States first class mail, postage
prepaid, addressed as follows:
Michael L. Bangs, Esquire
302 South 18th Street
Camp Hill, PA 17011
:."'L~TI
~eRoy Smigel, Esquire
1.D. #09617
Ann V. Levin, Esquire
1. D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(must bc typcwrittcn and submittcd in d'Jplicate)
TO THE PROTIIONOTARY:
Please list the within mattcr for the next:
(check one)
(sce local rule of court
1112 for proper forum)
Pre-Trial Argument Court
_X__ Argument Court
.-.-...------.---------.-.---.-.-----------------------..-------..--.......---...-.....--------.......--..............
CAPTION OF CASE
(Cniire caption must be stated in full)
MATT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Ys.
CIVIL ACTION - LA W
SAMIR J. SROUJI and GILLIAN R. SROUJI,
his wife, individually, and tldlb/a
LEMOYNE SQUARE ASSOCIATES,
Defendants
NO. 97-5923 CIVIL TERM
JURY TRIAL DEMANDED
I. State matter to be argued (Le. Plaintiffs motion for new trial, Defendant's demurrer to
complaint, etc.):
Plaintiffs Preliminary Objections to Defendants' Amended Answer with New Matter and
Counterclaim.
2. Identify counsel who will argue case:
(a) for Plaintiff: Michael L. Bangs, Esquire
(b) for Defendant: Ann V. Levin, Esquire
3. I will notify all parties in writing within two days that this case has been listed for
argument.
Date: April 9, 1999
YV;.~(/(j 7~~;/~
MICHAEL L. BANGs"
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MATT CORPORA nON.
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
vs.
)
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)
)
)
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)
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JURY TRIAL DEMANDED
CIVIL ACTION - LAW
SAMIR J. SROUJI and GILLIAN R.
SROUJI, his wife, individually and
u&bffi LEMOYNE SQUARE
ASSOCIATES,
Defendants
NO. 97.5923 CIVIL TERM
PLAINTIFF'S ANSWER TO DEFENDANTS' MOTION TO AMEND
ANSWER WITH NEW MATTER
AND NOW comes the Plaintiff by and through its allomey, Michacl L. Bangs, Esquire,
and files this Answer to Defendants' Motion to Amend Answcr with New Matter, in accordance
with the following:
I. On March 23, 1999, thc Defendants filcd the Amcnded Answer with New Malter and
Counterclaim. which is the subject of this Motion, without seeking leave of court or without
filing a prior Motion to Amend Answcr with New Maller.
2. On April 5. J 999, thc Plaintiff filed Preliminary Objections to the Amended Answer
with New Maller and Counterclaim.
3. Plaintiff listed those Preliminary Objections for argument. said argument to occur on
May 26, 1999.
4. Plaintiff incorporates hcrein by reference all of the issues raised in the Preliminary
Objections filed to Defendants' Ame:lded Answer with New Matter and Counterclaim as ifmore
fully set forth herein.
2
S. Defendants filed the Motion to Amend Answer with New Maller on or about AprilS,
1999, more than ten days ufter they filed their Amended Answer with New Maller and
Counterclaim, which was nol done with leave of court or by agreement of opposing counsel.
6. Defendants should not be permilled to file this Amendcd Answer with New Maller
and Counterclaim in thatthcy have faiicd to seek agrecment of counsel or Icavc of court before
they filed the documcnt previously; they have waited approximately fiftcen (IS) months after
filing their original Answer with New Maller; thcy have filed this Amended Answer with New
Maller and Counterclaim outside the applicable Statule of Limitations for fraud; they filed the
Amended Answer with New Maller and Counterclaim after the Plaintiff listed this case for trial;
they filed this Amended Answer with New Mallcr and Countcrclaim after thc partics had
already conducted depositions of the principals of lhe litigation; they are allempting to raise a
claim for fraud in the Amended Answer with New Mallcr and Counterclaim yet those swne
defenses were raised in their prcvious Answer with New Matter; and the Plaintiff would be
extremely prejudiced by allowing them to wnend their pleadings now and the Defendants would
suffer no prejudice since Ihey have already raised lhese defenses in the underlying litigation.
7. The swne issues that are raised herein are raised in lhe Preliminary Objections filed by
Plaintiff and in the quest for judicial economy, the Court should defer this Motion until it
resolves the Preliminary Objections filcd by Plaintiff to Defendants' Amended Answer with New
Matter and Counterclaim.
WHEREFORE. upon consideration oflhe Plaintiffs Response to the Motion to Amend
Answer with New Malter, thc Court herein defers the resolution of this Motion untiluftcr it has
3
resolved the Preliminary Objections filed by Plaintiff to Defendants' Amended Answer with
New Malter and Counterclaim.
Respectfully submiued,
I~j //
ICHAEL L. BANGS
Auomey for Plaintiff
302 South 18th Street
CampHiII,PA 17011
(717) 730-7310
Supreme Court ID #41263
4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I havc this day scrvcd thc forcgoing PlainliWs Answer to
Defendants' Molion to Amend Answer with New Malter by depositing a copy of same in the
United Stales mail. postage prcpaid. at Camp Hill, Pennsylvania, addrcssed to the following:
DATE:~
LcRoy Smigel, Esquire
Ann V. Levin, Esquire
Smigel. Anderson & Sacks
2917 North Front Street
Harrisburg, PA 17110-1223
u.) ( II ~Li ( OLf'.JlJi 0
DY S. CHESBRO
Paralegal
Michael L. Bangs, Esquire
5
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
ORDER
AND NOW, this
day of
, 1999, upon
consideration of Defendants' Motion to Compel, Plaintiff's president,
Charles Davis, ~s hereby ordeL'ed to answer, under penal ty of contempt,
all questions that Defendants have regarding the March 7, 1996 lease
and other areas of inquiry which arise following his answers thereto.
BY THE COURT:
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501'i l 11MOTIOIl TO CCMn:IJ^VI./kl,1 05/01/'1') 'J;5l1.Iln
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
MOTION TO COMPEL
AND NOW, come Defendants, Samir J. Srouji, and Gillian R. Srouji,
his wife, by and through their counsel, Smigel, Anderson & Sacks, and
file the instant Motion to Compel against Plaintiff and in support
thereof, aver the following:
1. This action was instituted by Plaintiff filing a complaint
against Defendants alleging breach of contract and unjust enrichment.
2. Pursuant to a Notice of Oral Deposition, Plaintiff's
president, Charles Davis, appeared for a deposition at the offices of
Defendants' counsel on March 26, 1999.
3. During the deposition of Charles Davis, counoel for
Defendants asked Mr. Davis questions concerning the March 7, 1996
lease between the Defendants and third parties. The lease was
attached as Exhibit "B" to Plaintiff's complaint.
4. Mr. Davis was directed by his counsel not to answer.
5. Defendants' counsel reserved the right to question Mr. Davie
further regarding the March 7, 1996 lease.
6. Defendants seek to question Charles Davis further regarding
the March 7, 1996 lease and the circumstances surrounding the signing
of said lease and later addendums.
7. This area of questioning is relevant to the underlying
defense of the action initiated by Plaintiff as well as to a
counterclaim Defendants have sought leave of court to file.
8. Defendants are prejudiced by Plaintiff's president's failure
to answer deposition questions as they are unable to move forward with
the additional discovery necessary to prepare their defense in this
case.
9. Pursuant to Pa.R.C.P. 4019(b), Defendants seek an order
compelling Plaintiff's president, Charles Davis, to answer under oath
Defendants' questions concerning the March 7, 1996 lease between
Defendants and third parties and all questions arising from said
inquiry.
10. This Honorable Court, pursuant to Pa.R.C.P. 4019, has the
authority and discretion to sanction a party for failure to respond to
discovery.
WHEREFORE, it is respectfully requested that this Court enter an
order compelling Plaintiff's president, Charles Davis, to answer,
under penalty of contempt, all questions that Defendants have
regarding the March 7, 1996 lease and other areas of inquiry which
arise following his answers thereto.
~- 17
Date: -2..j.._..:>
, 1999
SMIGEL, ~ERSON & SACKS
By: ~ L/ L---.)
C. Lee Anderson, Esquire
I.D. #21315
Ann V. Levin, Esquire
I.D. #70259
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Defendants
- 2 -
MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNT~, PENNS~LVANIA
v.
SAMIR J. SROUJI, and
GILLIAN R. SROUJI, his wife,
individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES.
DEFENDANTS
NO. 97 - 5923
CIVIL ACTION - LAW
CERTIFICATB OF SBRVICB
- .z .-.I
I, Ann V. Levin, Esquire. do hereby certify that on the .:;J
day of nnay , 1999, I served a true and correct copy of the
foregoing Motion to Compel by depositing same in the United States
first class mail, postage prepaid, addressed au followsl
Michael L. Bangs, Esquire
302 South 18th Street
Camp Hill, PA 17011
SMIGBL. ANDIRSON ~ SACKS
I
B '" t). )
YI C, t~~ 'Ant ~ruol;,- 'i~qu re
I,D. 1/21315
Ann V. Levin. Esquire
I.P. 1170259
2917 North pront Street
lIarrloburg, PA 17110-1223
(717) 234 -2401
Attorneys for Defendants
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MATT CORPORATION,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97 - 5923
SAMIR 1. SROUJI, and GILLIAN R.
SROUJI, his wifc, individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
CIVIL ACTION - LAW
rRAECIPE
ToniE PROTHONOTARY:
Plcasc withdraw Dcfcndants' Motion to Compcl filcd on or about May 4, 1999.
SMIGEL, ANDERSON & SACKS
Datc: May ,( U , 1999
By:
Lv~
C. Lcc Andcrson, Esquirc
1.0.#:21315
Ann V. Levin, Esquire
1.0. #: 70259
2917 North Front Street
Harrisburg, P A 17110
(717) 234-240 I
Allomeys for Defendanls
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97 - 5923
MATT CORPORA nON,
PLAINTIFF
SAMIR J. SROUJI, and GILLIAN R.
SROUJI, his wife, individually and IId/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Ann V. Levin, Esquire, attorncy for Defendants in the above-captioncd matter, do
hereby certify that 1 servcd a true and corrccl copy of the foregoing Praccipc on counsel for
Plaintiff by depositing same in the U.S. Mail, first class, postage prepaid, on the.2Q day of
May, 1999, addresscd as follows:
Michacl L. Bangs, Esquire
302 South IS"h Street
Camp Hill, PA 17011
Smigel, Anderson & Sacks
By:
Lv~~
C. Lee Anderson, Esquirc
J.D.21315
Ann V. Levin, Esquire
J.D. 70259
291'7 North Front Strcet
Harrisburg, P A 17110-1223
(717) 234-2401
Attomcys for Dcfcndants
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MATT CORPORA nON
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
v
SAMIR J. SROUJI, GILLIAN R. SROUJI, AND
LEMOYNE SQUARE ASSOCIATES
: NO. 1997-5923 CIVIL TERM
ORDER OF COURT
AND NOW, June 15, 1999, by agreement of counsel, the above captioned case is
hereby continued from the JULY trial term. Counsel is directed to relist the case when ready.
By the Court,
Michael L. Bangs, Esquire
For the Plaintiff
AmI V. Levin, Esquire
For the Defendant
Court Administrator
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MATI CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-5923
SAMIR 1. SROUJI, and GILLIAN R.
SROUJI, his wife, individually and lid/b/a
LEMOYNE SQUARE ASSOCIATES,
Defendants
CIVIL ACTION-LAW
IN RE: MOTION TO AMEND ANSWER WITH NEW MA TIER AND
COUNTERCLAIM
BEFORE HESS. J.
ORDER
,
AND NOW, this41 day of June, 1999, the defendants' motion to amend answer
with new matter and counterclaim is DENIED.
BY THE COURT,
./JJ
C. Lee Anderson, Esquire
Attorney for Defendants
Kj A. Hess, J.
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Michael L. Bangs, Esquire
Attorney for Plaintiff
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MATI CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 97-5923
SAMIR J. SROUJI, and GILLIAN R.
SROUJI, his wifc, individually and t/d/b/a
LEMOYNE SQUARE ASSOCIATES,
Dcfcndants
CIVIL ACTION-LAW
IN RE: MOTION TO AMEND ANSWER WITH NEW MA TIER AND
COUNTERCLAIM
BEFORE HESS. J.
OPINION AND ORDER
This mallcr is bcforc thc court on a pctition to amend an answcr with new matter
and counterclaim by thc dcfendants. According to thc complaint, thc plaintiff providcd
managcment and real cstatc scrviccs to dcfendants for property owncd by thc defendants.
Plaintiff allcges that he was authorizcd by dcfcndants to providc a former tcnant,
Landmark Commcrcial Rcalty, a cost inccntivc to movc from the defendants' propcrty, as
wcll as undcrwrite thc tcnant's relocation cxpcnscs for which defendants wcre to latcr
reimbursc plaintiff. Dcfendants also allcgedly authorizcd plaintiff to incur cxpenses for
thc purposcs of securing a ncw tcnant (Mainstay).
This casc was commcnccu by thc filing of a complaint on Octobcr 24, 1997.
:Jcfendants filed an answcr with ncw mailer on Dccembcr 23, 1997. On or about March
23, 1999, dcfcndants filcd an amcndcd answcr with new mallcr and countcrclaim titled
Fraud. Plaintiff filcd preliminary objcctions on April 5, 1999. On April 8, 1999,
dcfendants filcd a motion and rulc to show causc scckinS lcavc of court to filc an
amcndcd answcr.
"
97-5923 CIVIL
Thc policy of Pcnnsylvania courts is that amcndmcnts to plcadings should bc
libcrally allowed in ordcr to secure a dctcrmination of cascs on thcir mcrits, exccpt in
thosc instanccs whcrc surprisc or prcjudicc to thc othcr party would rcsult, or whcrc thc
proposcd amcndmcnt is against a positivc ruic of law. Tanncr v. Allstatc Ins. Co., 321
Pa.Supcr. 132, 137,467 A,2d 1164, 1167 (1983), citing Postcrnack v. Amcrican Casualtv
Companv of Reading, 421 "a. 21, 218 A,2d 350 (1966); Gregg v, Gacon Constnlction
Comoanv, 249 Pa.Supcr. 377, 378 A.2d 344 (1977); Sands v. Forrest, 290 Pa.Supcr. 48,
434 A.2d 122 (1981); Pulco v. Broad Streel Hospital, 267 Pa.Super. 581, 407 A.2d 394
(1979); Connorv. Alleghcnv General Hospital, 501 Pa. 306,461 A,2d 600 (1983).
Thc mcaning of prejudice and surprisc in the context of Rule 1033 amcndments to
pleadings has becn developed in a number of opinions. In Bata v, Central-Penn National
Bank of Philadelohia, 448 Pa. 355,293 A.2d 343 (1972), cert. denied 409 U.S. 1108, 93
S.Ct. 910, 34 L.Ed.2d 689 (1973) thc court wrote:
All amcndments have this in common: they are offered later in
time than the pleading which they seek to amend. If thc
amendment contains allcgations which would have been
allowed inclusion in the original pleading (the usual case), then
the question of prcjudice is presented by the time at which it is
offered rather than by thc substance of what is offered. The
possible prejudice, in othcr words, must stem from the fact that
the new allegalions arc offercd late rathcr than in the original
plcading, and not from thc fact thatthc opponcnt may losc his
casc on thc mcrits ifthc plcading is allowed... (448 Pa. at 380,
293 A,2d at 357) (emphasis in original; footnotc omittcd).
Dcfendants filcd thcir amcndcd answcr with ncw mattcr and counterclaim
approximately fiftecn (15) months aftcr the filing of its original answcr and ncw mailer.
Dcfendants did not plcad that thcy have only bccomc awarc of facts giving rise to thc
countcrclaim. Defcndants admit in thcir countcrclaim that thcy had knowledge of the
2
97.5923 CIVIL
subject uddendllm to the lease, whieh allegedly obligated him to rcimbursc Mainstay or
plaintiff for improvcmcnts madc to thc propcrty in May 1996 and Septcmber 1997.
Dcfcndant Srouji tcstified at a discovcry deposition that hc saw thc signed Icase in
September, 1997, three months prior to thc filing of his original answer with ncw mallcr.
Thc schcdulcd trial datc is rapidly approaching and lhis court rccognizes that the
rcspcctive partics nced adcquatc time to prcparc for thc trial.
Wc are satisficd that thc plaintiff would bc prejudiced by thc untimcly filing of
defcndants' counterclaim. To ullow such an amcndment affects adverscly the plaintiffs
ability to prepare for trial bccausc, among other things, it adds u new causc of action not
previously pled. Defendant couid easily havc includcd thc countercluim with his original
answcr. Wc will not now pcrmit it on thc cvc of trial.
In addition to thc standard of prejudicc or surprise, thc law is also wcll established
that a proposcd amcndmcnt may bc denicd whcn it is against a positivc rulc oflaw. (fthe
proposed amendment is against a positive rulc of law, its allowancc IVould bc futile.
Tanner v. Allstate Ins, Co., 321 Pa.Supcr. 132, 138-139,467 A.2d 1164, 1167, (1983),
see also Olio v. Amcrican Mutual Insuruncc Comoanv, 482 Pa. 202, 393 A.2d 450
(1978); Associates ofPhilinsbllrl! v. Hurwitz, 292 Pa.Supcr. 406,437 A.2d 447 (1981);
Chapman v. Citv of Philadclnhia. 290 Pa.Supcr. 281, 434 A.2d 753 (1981). Such would
be the casc if the propos cd amcndmcnt is outsidc the statutc of limitations.
In gcneral, the statutory period will bcgin to run when the cause of action accrues,
i.e. the date on which the injury is sustaincd. Boroul!h of Mifllinhurl! v. Heim, 705 A.2d
456,466-467, (Pa.Supcr. 1997), citing Pounds v, Lehman. M.D., 384 Pa.Super. 358, 361,
558 A.2d 872, 873 (1989). Our supremc court has held:
3
I . 97.5923 CIVIl.
As II mallcr of gcncrul rulc, II party asscrting II CIlUSC of IIction
is undcr II duty to usc ull rcasonablc diligcncc to bc propcrly
informcd of thc fllcts IInd circumstanccs upon which II potcntilll
right of rccovcry is bllscd and to institutc suit within thc
prcscribcd stlltulory pcriod. Thus, thc statutc of limitlltions
bcgins to run as soon as thc right to institutc and maintain a suit
ariscs; lack of knowlcdgc, mistakc or misundcrslanding do not
toll thc running of thc statutc of limitations. (Citations
omillcd.)
Pocono Intcrnational Raccwav. Inc. v. Pocono Producc. Inc., 503 Pa. 80, 84,468 A.2d
468,471 (1983).
Turning to thc facts of thc inslant CIlSC, dcfcndant, by his own plcading,
acknowlcdgcs that hc was awarc of thc addcndum no latcr than May 15, 1996, IInd was at
least on noticc by this datc. The slatutc of limitations for a causc of action in fraud is two
ycars. 42 Pa.C.S.A. Scction 5524. A proposal to amcnd in thc spring of 1999 is
thcrcforc outsidc thc statutc of limitations.
ORDER
.
AND NOW, thisWday of Junc, 1999, thc dcfcndants' motion to nmcnd answcr
with new mattcr and countcrclaim is DENIED.
BY THE COURT,
C. Lce Andcrson, Esquire
Allomey for Defcndants
,
I
Michael L. Bangs, Esquire
Allomey for Plaintiff
4
PRAECIPE FOR LISTiNG CASE FOR TRIAL
(Must be lypewrillen und submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Pleuse list the following case:
(Check one)
(X )
( )
for JURY triul at the nextlerm of civil court
for lrial without a jury
..................------...---...-...........----.......----......---........---...----....-..................--.....
CAPTION OF CASE
(entire caption must be stated in full)
MATT CORPORATION,
Plaintiff
(check one)
VS.
( x ) Civil Action. Law
( ) Appeal from Arbitration
( )
(other)
SAMIR J. SROUJI, GILLIAN R.
SROUJI, and LEMOYNE SQUARE
ASSOCIATES,
Defendants
The trial list will be called on
*R~ Auqust 17, 1999
TRlALScommenceon September 13, 1999
PRETRIALS will be held on 8 /25 /99
(briefs are due 5 days before pretrials)
(The party listing this case for trial
shall provide forthwith a copy of the
praecipe to all counsel. pursuant to
local Rule 2l4-\.)
NO. 5923
CIVIL
1997
Indicate the attorney who will try cuse for the party who files this praecipe:
Michael L. Banqs, Esquire
Indicate trial counsel for other parties if known:
C. Lee Anderson, Esauire
This case is ready for trial.
Signed:
Print Name:
Attomey for:
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MATT CORPORATION.
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. In . 5923
SAMIR J. SROUJI. and GILLIAN R.
SROUJI. his wife, individually and IId/b/a
LEMOYNE SQUARE ASSOCIATES,
DEFENDANTS
CIVIL ACTION. LAW
NOW COME the defendants, Smair J. Srouji. Gillian R. Srouji and Lemoyne Square
Associates. by and through their attorneys, Smigel. Anderson & Sacks, and make the following
motion for summary judgment.
1. This is an action alleging money damages as a result of the breach of a contract
and based on a claim for unjust enrichment.
2. Plaintiff claims damages in the amount of $93,794.09.
3. On February 26. 1997 the parties entered into a written agreement which
constituted an accord and satisfaction for the claim in question.
4. Plaintiff agreed to accept the slim of$5,746.00 as payment in full for "all
outstanding invoices to date, including, bul not limited to, management fees. invoices for
services furnished by vendors to MATT Corporation for Lemoyne Square Associates, and all
other invoices for services or goods provided to or for Lemoyne Square Associates." A copy of
said agreement is attached hereto as Exhibit "A".
,UI5.2.7
5, Atlhe dcposition of Charles Davis. President of MATT Corporation. taken on
March 26. 1999. hc admitted to signing the document ill question but disagreed that it meant
what it said.
6. Mr. Davis' testimony does not, however, crcatc an issue of fact which would
prcclude this court from finding that the parties had entcrcd into an accord and satisfaction.
7. Following thc signing ofthc agreement of February 26,1997, Plaintiff received
the sum ofS2,873.00. and was latcr tcndcrcd anothcr payment ofS2.870.00 which was not
acccpted.
8. Pursuant to the agrecment ofthc panics. Plaintiff is now only entitled to receive
thc sum of S2.870.00 on its claim againstthc Defendanls.
WHEREFORE, Defendants pray that this honorabie court enter summary judgment in
thcir favor and against Plaintiff except as to the sum ofS2.870.00.
Respectfully submittcd.
SMIGEL, ANDERSON & SACKS
By:
/
Date: August~, 1999
?,/
C. 'e Anderson. Esquire
1.0.#.2\315
Ann V. Levin, Esquire
I.D. #: 70259
2917 North Front Street
Harrisburg, P A 17110
(717) 234-2401
Attorneys for Defendants
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UMO\llE SQUAIU ASSOCIATlS
105 Oakwood Drive, Wonnleysbur& PA 11043
Febl\l1lY 26, 1991
Mr, Charles Davi.
MA IT Corporation
PO. Bo~ 901
Camp Hill, PA 11001-0901
Our Charlie:
Thi.lc1ter ill follow-up of cur diseullion on FobrullY 25, 1991. AJ per OUflarccment,
the amount of $5,146,00 cover. all current obliaatlolll owed by Lcmoync Square
Associate. 10 MA IT Corporation, This amount cover. all oUlltandinalnvoice. to date,
includin& but not limited to, management fee.. invoices for services furnished by vendor.
10 MA IT Corporation for l.emoyne Square A.sociates, and all olher invoice. for ICrvices
or aoods provided to or for Lemoyne Square Associates,
Payment of such aarced amount shall be u follows: half(S2,81l00) will be furnished
prior to seulement orche sale of4 Lemoyne Drive and the remainina half(S2,81J.OO) will
be paid atseulement.
Yours truly,
Samlr J, SrooJI, MD.
Acknowledaed and confirmed by Charle. Davi. for MA IT Corporation.
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MATT CORPORATION,
Plaintiff
vs.
SAMlR J. SROUJI and GILLIAN R.
SROUJI, his wife, individually, and
IId/b/a LEMOYNE SQUARE
ASSOCIATES,
Defendants
)
)
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 97-5923 CIVIL ACTION
CIVIL ACTION - LA W
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER AND NEW MATTER TO DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
I. Admitted.
2. Admitted.
3. Denied. It is specifically denied that the parties entered into any written agreement on
February 26, 1997, which constituted an accord and satisfaction for the claims in question. On
the contrary, Charles Davis merely acknowledged receipt ofa partial paymcnt towards several
outstanding invoices owed to Matt Corporation by the Defcndants in this case.
4. Denied. It is spccifically dcnied that Plaintiffagrced to acccptthe sum 01'$5,746.00
as payment in full for damages that excccd $90,000.00. Further, it is denied that Exhibit A
referenccs any such agreement.
5. Denied as stated. During Charles Davis' dcposition, hc admiucd to signing a
document indicating his rcceipt of$2,873.00, which was a partial paymcnt for scvcral
outstanding invoiccs owed by Defcndants to Plaintiff.
6. Denicd. It is spccifically dcnicd thatthc allcgcd agrccmcnt purportcd by Defendant
raises to thc lcvel of an accord and satisfaction in this casc. Thcrc is an issuc of fact as stated in
M"rr "!'I'\lillllll""ll~lN filii \l't.\IotAIIY It.Ul.,l,tI'i1 -'H,Ur II l..~~nl~~ I'
Mr. Davis' testimony and as raised in the Affidavit which is filed concurrent hereto concemiug
his meaning and understanding of the document in question when it was signed.
7. Denied as stated. It is admitted that Charles Davis received a check in the amount of
$2,873.00 as indicated and acknowicdgcd by Mr. Davis. It is dcnied that the remaining
$2.873.00 was ever tendered by the Defendant. During the course of this litigation, the
Defendant attempted to submit a check in the amount of$2,873.00 which was submitted to
Plaintiff with a caveat that acceptance of it was deemed to bc payment in full of outstanding
claims. Charles Davis refused to acccptthe rcmaining paymcnt sincc it did not constitute
payment in full of all outstanding claims in this casC.
8. Denied. There is no agreement between the parties whereby Charles Davis, on behalf
of Matt Corporation, would accept a total payment of$5,746.00 in full satisfaction of damages
that exceed $90,000.00.
WHEREFORE, Plaintiff requests this Honorable Court to deny Defcndants' Motion for
Summary Judgment.
NEW MATTER
9. The answers to Paragraphs I through 8 are incorporated herein by reference as though
more fully set forth.
10. Plaintiff, as outlined in the complaint herein, provided numerous services for
Defendants and management services and invoiced Defendants for those services.
11. Defendants refused to pay those invoices dcspite repeated requcsts by Plaintiff to pay
for those invoices.
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12. After ChlU'les Davis. Prcsident of I'laintiff, had requested payments on several
occasions from Defcndants, Dr. Srouji. on behalf of Delendants. agreed to make a payment
towards two separatc invoiccs which wcre due and owing for payment of one-half a discounted
amount agreed upon by thc two partics lor the paymcnt of two scplU'atc invoiccs.
13. Dcfcndant Dr. Srouji prcscntcd Exhibit A to Charles Davis atthc same timc that he
presented a chcck to Mr. Davis for paymcnt of onc-half of thc amount agrced upon by the two
plU'ties for the paymcnt of two scparate invoices.
14. Dcfendant Dr. Srouji would not give Mr. Davis thc partial paymcnt unless Mr. Davis
signed lhe letter prepared by Dcfendant Dr. Srouji.
15. Mr. Davis. as indicatcd in his Affidavit and his d~'position tcstimony, signed thc
document only to acknowlcdgc rcccipt of a partial paymcnttowlU'ds thc outstanding invoices.
16. ChlU'lcs Davis in no way was acccpting only IItotlll 01'$5,746.00 in full satisfaction
of damages that were in excess of $90.000.00. that were due and owing to Plaintiff.
17. Defendant Dr. Srouji ncver tcndcred thc remaining payment of the sums indicated on
this leller until wcll after thc Iiliglltion had cnsucd whercin hc had his counsel submit payment of
the second part of tl.e paymcntto Charlcs Davis in cxchangc for a full and complete release
between the parties.
18. Thc documcnt allllch~d as Exhibit A to thc Dcfcndants' Motion for Summary
Judgment in no way is II complcte agrcement bctwcen the partics whcrcby Plaintiff would have
acccpted that paymcnt in full satisfaction of all claims hcrcin. and docs not raisc to the level of
an accord and satisfaction.
l.4.Ht "H'''U1U"H1I1NI1IllIl'l,ACOY I\llIlMl'HT...lllil:H II 1'_UI\k IT
WHEREFORE, Plaintill'reques\S Defendants' Motion for Summary Judgment be
denied.
Respectfully submilled,
7 /~ L
ICf AEL L. BANGS
Allomey for Plaintiff
302 South 18th Street
Cump Hill, PA 17011
(717) 730-7310
Supreme Court ID 1141263
MAn ",.I"U ro"'HKIH fl. IUMMUV AIlXiMf/lTIAIJ{oIIH II 1'H"11!U> jl
VERIFICATION
CHARLES R. DAVIS, being duly swom according to law, deposes and says that he is
the President of MATT CORPORA nON, a Pennsylvania corporation, the Plaintiff herein, and
that as such President, he is authorizcd to makc this Verification on its behalf and that the facts
set forth in the foregoing Answer and New Maller are truc and correct to the best of his
knowledge, information and bclief, and furthcr undcrstands that falsc statcments herein are made
subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to
authorities.
MATT CORPORATION
BY: ~ {v;2() .
CHARLES R. DAVIS, President
"
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that 1 have this day served the foregoing Plalntlfrs Answer and
New Malter to Defendants' Motion for Summary Judgment by depositing a copy of same in
the United States mail, postage prepaid, at CluTlp lIill. Pennsylvania, addrcsscd to the following:
C. Lce Andcrson, Esquirc
Smigcl. Anderson & Sacks
2917 North Front Strcct
lIarrisburg, P A 17110-1223
DATE:
75/ZLI Ier!
,
MATT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
SAMIR J. SROUJI, GILLIAN
R. SROUJI, and LEMOYNE
SQUARE ASSOCIATES,
Defendants
NO. 97-5923 CIVIL TERM
ORDER OF COURT
AND NOW, this 25th day of August, 1999, the
Defendants' Motion for Summary Judgment filed on August 9,
1999, is DENIED.
Edward E. Guido, J.
Michael L. Bangs, Esquire
For the Plaintiff
C. Lee Anderson, Esquire
For the Defendants
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MAn CORPORATION,
Plaintiff
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
vs.
NO. 97-5923 CIVIL ACTION
CIVIL ACTION - LA W
SAMIR J. SROUJI and GILLIAN R.
SROUJI, his wife, individually, and
u&bfuLEMOYNESQUARE
ASSOCIATES,
JURY TRIAL DEMANDED
AFFIDA VIT of CHARLES R. DAVIS
IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I, CHARLES R. DAVIS, herein swear and dcposc as follows:
I. I am thc President of Mall Corporation, thc Plaintiff in thc above-captioned mailer.
2. During the course of doing work for and on bchalf of thc Dcfendants, I submilled
various invoiccs to the Dcfendants, said invoiccs are allachcd to thc Complaint filcd herein.
3. I was ncver able to get any of thc Dcfcndants to pay all ofthc invoices whcn they
wcre submilled and in facl. many invoiccs submittcd by mc wcrc ncvcr paid and thcy form the
basis for thc Complaint that I havc filed in this casc.
4. Aftcr rcpeatcd, on-going attcmpts to gct thc Dcfcndants to pay thc outstanding
invoiccs,l had a discussion in Fcbruary, 1997, with Defcndant Dr. Srouji, and reviewed with him
two specific invoiccs which wcrc the mosl outstanding at thaI timc. The two invoiccs are
attached to this Allidavit.
5. Defcndant Dr. Srouji and I discusscd thc two invoiccs and in an allemptto get at least
those invoices paid, I agrccd to acccpt a discounted paymcnttowards those two invoices. This
discussion happencd on or about Fcbruary 25, 1997.
6. Dcfcndant Dr. Srouji instructed that I pick up a chcck from him the following day.
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6. I mct with Dcfcndanl Dr. Srouji on Fcbruary 26, 1997, whcrein he prcsentcd me, for
the lirsltime, the teller dated February 26, 1997, and indicatcd that he would not provide me
with the paymcnt that he had agrecd upon the day before without me signing thc signature line
on the bottom of the page.
7. Defendant Dr. Srouji prcscntcd to me a chcck in thc amount of$2,873.00 on February
26, 1997, which was notthc amount that he had agreed to pay mc the previous day.
8. I signed the signaturc linc on thc lellcr dated February 26, 1997, only understanding
that I was acknowledging rcccipt of a chcck in thc amount of $2,873.00, which was 10 be applied
towards the two invoices that we had discussed the prcvious day.
9. I never intended the reccipt of this check in the amount of$2,873.00, nor the promise
to make an additional like payment to mc, as being paymcnt in full for all outstanding invoices
duc and owing by Defendants in this case.
10. Defendant Dr. Srouji refused to give me the check that he had promised to pay me
the day before for payment towards these invoices unless [ signed that document.
II. Defendant Dr. Srouji had alrcady placed Mall Corporation in a precarious position by
his failure to pay the outstanding invoices since Matt Corporation had incurred many of the debts
with outside vendors and was responsible to pay those outside vendors.
12. I received the check in the amount of $2.873.00. solely and exclusively to be applied
towards two specific invoices that we had discussed in an allempt to at least get those invoices
paid in full.
13. [was never paid the remaining sum of $2,873.00, following the settlement of 4
Lemoyne Square. 4 Lemoyne Square sell led in Scptember, 1998.
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14. I was finally offered an additionul payment of 52,873.00 by Defendants' counsel in
Murch, 1999, but with the caveat that acceptance of that payment would sellle all outstanding
claims that Mall Corporation had against the Defendants which was unacceptable to me.
~-b
SWORN TO AND SU~~D
BEFOR ME THI Y
OF ,1999.
NOTAlW.IIAL
WINO'/ S. CHUIIO. ~ FIMt
Lower AIen Twp.. C. b I J c;..,
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MATT Corporation
1200 c:.mp ~, P.O.Ilclac!101 I c.mp HI, PA 11l101.QlO1' (717) m-3C11i3, PAX (717) 781.Q571
Lemoyne SqU8re AssocIates
Dr. S8mlr SrouJI
105 Oakwood Drive
Wonnleysburg, PA 17043
DU8 Upon Ree8/pt
InYOlce Date: 7/23/96
POI:
Invoice Number: 519
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Wortc DelcrfpUon: Relocate Landmark Commerclal Really Inc.
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Total Amount DU8: $5.033.12
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Please Remit To: MATT Corporation, P.O. Box 901, Camp Hili, PA 17001~901
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. -MATT Corporation
1200 Camp Hill ByPaa./P.O. Box 9011 Camp Hill, PA 11001.0901/(7171131.3003/ FAX 1711) 161-0518
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I.emoyne Square Asaoclates
Samir J. Srouji MD
10S Oakwood Drive
Wormleyaburs. PA 17043
invoice No.: 411
invoice Date: 6/14/96
pOll:
nile Upon Receipt
INVOICE
Work Performed: Reimbursement MATT Corporation for payment made to Jerry
J.ijce for wallpapering at 20 Erford Road
Jeny Rice
Total Amount Due:
$1,000.00
51,000.00
Please Remit To: MATT Corporation, P.O. Bos 901, Camp Bill, PA 17001-0901
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