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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(BOO) 990-910B
NOTICIA
Le han demandado a usted en la corte, Si usted qulare defenderse de estas demandas
expuestas en las paquinas sigulentes, Listed tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notlflcacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado
y archlvar en la corte enforma escrita SIlS defensas 0 sus obJeciones alas demandas en contra de su
persona. Sea avlsado que sl usted no se de/lende, la corte tomara medldas y puede entrar una orden
contra usted sin previa avlso 0 notiflcacion y por cualquler queJa 0 allvlo que es pedldo en la peticion
de demanda. Usted pLlede perder dlnero 0 sus propledades 0 otros derechos Importantes para
usted,
LLEVE ESTA DEMANDA A UN ABOOAGO INMEDIATAMENTE, SI NO 1'IENE ABOGAOO 051 NO
TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR
TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA
AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAl.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
(BOO) 990-91 DB
Respectfully submitted,
By
St en M. Greecher,
Attorney's 1.0, No. 3B 3
111 North Front Street
P. O. Box 889
Harrisburg, PA 17108-0BB9
(717) 234-4121
ATTORNEYS FOR PLAINTIFF
DATE: /;t~)
26419.1 V (I
.
1. Plaintiff, Advantage Engineering Services, Inc., is a Pennsylvania
corporation with Its principal business at 3707 Walnut Street, Harrisburg, Dauphin County,
Pennsylvania.
2. Defendant, Lake Manawa-Carlisle, L.P" purports to be a limited partnership
or other business entity located at 11506 Nicholas Street, Omaha, Nebraska,
3. Defendant, Lake Manawa-Carllsle, Inc" indiviqually and trading as lake
Manawa-Carlisle, L.P., purports to be a Nebraska corporation located at 11506 Nicholas
Street, Omaha, Nebraska, and Is represented to be the General Partner of Lake
Manawa-Carllsle, L.P.
4. lake Manawa Centre, Ltd., individually and trading as Lake Manawa-
Carlisle, L.P., purports to be a business entity with a principal place of business at 11506
Nicholas Street, Omaha, Nebraska.
5, Lake Manawa Centre, Inc" individually and trading as Lake Manawa
Centre, Ltd., purports to be a corporation or other business entity with a principal place of
business at 11506 Nicholas Street, Omaha, Nebraska,
6. Defendant, Dial Companies, which may also be known as Dial Companies,
Incorporated, individually and trading as Lake Manawa-Carllsle, L.P., Lake Manawa-
Carlisle, Inc., Lake Manawa Centre, Ltd., and lake Manawa Centre, Inc. Is a Nebraska
corporation with a principal place of business at 11506 Nicholas Street, Omaha,
Nebraska.
7. Defendant, Dial Properties Company, (hereinafter "Defendant Dial
Properties"), individually and trading as lake Manawa-Carllsle, L.P., Lake Manawa-
2
Carlisle, Inc., Lake Manawa Centre, Ltd" and Lake Manawa Centre, Inc" Is a Nebraska
corporation with a principal place of business at 11506 Nicholas Street, Omaha,
Nebraska,
8. Defendant, Dial MGT Company (hereinafter "Defendant Management"),
Individually and trading as Lake Manawa-Carllsle, L.P" Lake Manawa-Carllsle, Inc" Lake
Manawa Centre, Ltd., and Lake Manawa Centre, Inc., is a Nebraska corporation with a
principal place of business at 11506 Nicholas Street, Omaha, Nebraska.
9. It Is believed that Dial Companies, Dial Properties, and Dial Management
may be the same entity and responsible for the obligations and damages set forth herein.
Hereinafter, Defendants Dial Companies, Dial Properties, and Dial Management are
referred to individually and colleotively as the Dial Defendants, and all allegations made
with respect to the Dial Defendants are made with respect to the Dial Defendants
collectively and are also made with respect to each of the Dial Defendants individually.
10. Defendant, Richard N, Cooper (hereinafter "Defendant Cooper"),
individually and trading as Lake Manawa-Carlisle, L.P., Lake Manawa, Carlisle, Inc., l.ake
Manawa-Centre, Ltd., Lake Manawa Centre, Inc., and the Dial Defendants is an adult
individual and an officer, employee, member, ownor or partner of the above named
business entities located at 11506 Nicholas Street, Omaha, Nebraska,
11, Defendant, Donald F. Day (hereinafter "Defendant Day"), individually and
trading as Lake Manawa-Carlisle, L.P., Lake Manawa, Carlisle, Inc., Lake Manawa-
Centre, Ltd" Lake Manawa Centre, Inc., and the Dial Defendants is an adult individual
3
and an officer, employee, member, owner or partner of the above named business
entities located at 11506 Nicholas Street, Omaha, Nebraska.
12. Defendant, T, L, Clauff (hereinafter "Defendant Clauff'), individually and
trading as Lake Manawa-Carlisle, L..P., Lake Manawa, Carlisle, Inc.. Lake Manawa-
Centre, Ltd., Lake Manawa Centre, Inc., and the Dial Defendants is an adult Individual
and an officer, employee, member, owner or partner of the above named business
entitles located at 11506 Nicholas Street, Omaha, Nebraska,
13. Additionally and alternatively, Defendants Lake Manawa-Carlisle, LP, Lake
Manawa-Carlisle, Inc., Individually and trading as Lake Manawa-Carlisle, LP, Lake
Manawa Centre, Ltd., individually and trading as Lake Manawa-Carlisle, LP, Lake
Manawa Centre, Inc" Individually and trading as Lake Manawa Centre, Ltd., are
unincorporated associations engaged in the business of land development and
acquisition and the retaining of engineering services with a principal place of business at
11506 Nicholas Street, Omaha, Nebraska,
14. Additonally and alternatively, the Dial Defendants is or are an
unincorporated association engaged in the business of land development and acquisition
and the retaining of engineering services with a principal place of business at 11506
Nicholas Street, Omaha, Nebraska,
15, l.ake Manawa-Carlisle, LP, Lake Manawa-Carlisle, Inc., Lake Manawa
Centre, Ltd., Lake Manawa Centre, Inc" and the Dial Defendants are referred to
collectively herein as the Entity Defendants,
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16. The Entity Defendants are jointly and severally liable for the obligations that
are at Issue in this case.
17. The Entity Defendants are agents for one another and responsible therefor
for the acts, omissions and obligations of one another as set forth herein,
1B. The allegations with respect to Entity Defendants refer to the Entity
Defendants individually and collectively,
19. The Entity Defendants are part of a common scheme through their
relationship and are part of an overall organization organized for the transaction and
matters at issue in this case. Thereby, each Entity Defendant is liable for the acts and
omissions of each and every other entity defendant.
20. At all times relevant hereto, the Defendants conducted business in
Pennsylvania, particularly with respect to all matters at issue herein, and Defendants'
conduct has resulted in harm to Plaintiff, Advantage Engineering Services, Inc.
COUNT I
21. On February 5, 1996, Plaintiff, Advantage Engineering Services, Inc" and
Lake Manawa-Carlisle, LP, by its General Partner, Lake Manawa-Carlisle, Inc" entered
into an agreement, a true and correct copy of which is attached hereto and incorporated
herein as "Exhibit A" (hereinafter "Agreement"), which involves certain engineering work,
22. The Agreement involves certain engineering work to be performed by
Advantage Engineering Services, Inc, with respect to property located in Cumberland
5
County, Pennsylvania, for which Advantage Engineering Services, Inc. was to be paid
$96,000.00 plus expenses,
23. Said Agroement was signed by Defendant Richard N, Cooper as President
of Lake Manawa-Carlisle, Inc" as General Partner of Lake Manawa-Carlisle, LP,
24, Upon the aforesaid acceptance of the Agreement, Plaintiff promptly
commenced performance and continued performance under the Agreement, having
previously undertaken performance of the engineering services on a good faith basis in
January 1996 as set forth at Paragraph No 2 of the Agreement.
25. Thereafter, Plaintiff provided invoices to Defendant, Richard N. Cooper, and
Lake Manawa-Carlisle, LP,
26, On February 12, 1996, Plaintiff received an initial payment of $16,5BO.00,
pursue'"t to said Agreement for services rendered and expenses incurred. Payment was
made to Plaintiff by means of a check drawn on Defendant Lake Manawa Centre, Ltd., a
true and correct copy of which is altached hereto as "Exhibit B".
21, On March 20, 1996, Defendant, Richard N. Cooper, writing on stationery of
Dial Companies, and signing on behalf of Dial Properties Company, wrote to Plaintiff,
Advantage Engineering Services, Inc" and directed that Plaintiff discontinue further
performance under the aforesaid Agreement. A copy of the March 20, 1996 letter is
attached hereto as "Exhibit C".
2B. Plaintiff, Advantage Engineering Services, Inc" has performed substantial
work and incurred substantial expenses beyond the aforesaid initial payment and has
6
.
substantially performed under the Agreement and is entitled to be paid In full the agreed
upon amount due under the Agreement.
29. Plaintiff, Advantage Engineering Services, Inc., has demanded payment for
services due under the Agreement, and payment has not been made,
30. Pursuant to the Agreement, Interest at the rate of one and one-half (1-1/2%)
percent per month is due on late payments, A claim is made herein for said interest on
the amount due.
31. In addition, as a result of the breach of contract by Defendants as set forth
herein, Plaintiff, Advantage Engineering Services, Inc., has suffered lost profits,
consequential damages, Incidental damages, costs and expenses, for which Plaintiff
makes a claim herein in addition to the amounts due and payable under the Agreement.
32, Lake Manawa Centre, Ltd., individually and trading as lake Manawa-
Carlisle, LP, or lake Manawa Centre, Inc., individually and trading as Lake Manawa
Centre, Ltd., as evidenced by the payment made to Plaintiff, Advantage Engineering
Services, Inc., may by assignment or otherwise have become liable under the agreement.
WHEREFORE, Plaintiff requests that judgment be entered In its favor and against
Defendants, Lake Manawa-Carlisle, LP and Lake Manawa-Carllsle, Inc., individually and
trading as Lake Manawa-Carlisle, LP, Lake Manawa Centre, ltd., individually and trading
as lake Manawa Carlisle, L.P., and Lake Manawa Centre, Inc., individually and trading
as Lake Manawa Centre, ltd, in an amount in excess of the limits for mandatory
arbitration, plus interest and ClOSts of suit.
7
.-
COUN" \I
". ThO ....aUo" ,,,,,lal,,,d In p".."ph' , Ihrough " of \h& .",In
C",","'"' ,,<>1"."''''''''' _In .. d '0" ", ",<th.
:l4. AI .. 11m.' ,.I."n' h.'.'o, RloI",d N. cOOl'" ." .clln, ., the .,.nl,
,....., _"'eo, '" ,h. ."".nl .,.nt. ,."", '" .",,10'''' of lhO 01.1 O...nd.n"
.nd lhO 0;.1 O...nd.nls '" I"ble 'ot .\1.,,, .nd om"''''"' 01 RIoh"d N. con..'
35. AI \1m _thol .-h.nI N COOP.' ._I.d lhO """m.nl oIl"U<> In ,hi'
"'", hO." aol"," .cll09 on b.h.\I '" 'h. 0;.1 De'end'''ts .nd Ihe 01.1001<>""'"
". \he IIue p..'" IP lhO ",..omenl and ,.ble '''' .\1 ob\l,.,\On, 'hO",,,nd.' .nd .\1
,.,,,,,"1' doo lhO",,,nd" .nd .\1 d"""" .'" ,''',., ,,,,,.1,,", b, PI.'nl~, ",v.ntO"
Engineering Set'Jlces, Inc.. as set lorth In count \.
36. PI""'" bel""" .nd lhO- "." lhot O..<>",.nl L.k. ....,....c.",Ie,
LP , .nd Lak. M.""'C."'''' In" Ih. p"""",.d pa<\1e' '0 \he AQ"",m.nt. .\lh p,"""",
""'. .n"".' Ih.1 .'" n".' ",,,,,.d .nd .... non~'I,Ia" .nd ""',. "",., held ""' '"
\he 0'" Defend"" " .,;"ng eo<<Ie' th.' e.....d Inlo th. ""..,monl "".n In ,'" th.
0101 O.fend.... _ ,he ".. p,''''' '0 \he ",,,,,,,,,,..
,7. ThO 0\01 Oefend.n" had ....,'" 'nlO . pOI""''' .,,,.,,,,,,1 .lIh 0"'.
AIellO '0' ,,,I ..1eIe In Co"",.,Iond C,"n~, penn",,,n'" on ot .oouI J.n""'" 17 , ,,,,,.,
po"oanl '0 ""'''' Dial "",eod.n" _ ,.,01"'" '0 h"'. eng'n..,ln' .....1"'"
p.rlonned, .N,h en"ne",ng "._ ." lhO _'ot" Ih.1 .." """"".d 10 b.
perl_d '" PI""'" "",,", ",,,nl.ge Eng,nee"'" S..-' In" ""'" .nd "'""'"
8
oopy of the purohase agreement between the Dial Defendants and David Aiello Is
attached hereto as "Exhibit D".
38. As set forth above, Richard N. Cooper, writing on stationery of Dial
Properties and signing on behalf of Dial Properties Company, wrote to Plaintiff,
Advantage Engineering Services, Inc., on March 20, 1996, and directed that Plaintiff
disoontinue further performance under the Agreement at issue in this case, (See "Exhibit
COO hereto.)
39, The Dial Defendants have breached the Agreement at Issue In this case.
The Dial Defendants have refused to make payment due to Plaintiff, Advantage
Engineering Services, Inc., despite demand for said payment by Plaintiff, Advantage
Engineering Services, Inc..
40. The Dial Defendants are liable to Plaintiff, Advantage Engineering Services,
Inc. for payment due under the Agreement, plus interest as set forth in the Agreement.
41, In addition, Plaintiff, Advantage Engineering Services, Inc., has sustained
lost profits, consequential damages. incidental damages, costs and expenses, for which
Plaintiff makes a claim herein in addition to the amounts due and payable under the
Agreement.
WHEREFORE, Plaintiff demands judgment against the Dial Defendants In an
amount in excess of the limits for mandatory arbitration, plus attorneys' fees, Interest, and
costs of suit.
9
COUNT III
42. The allegations contained In Paragraphs 1 through 41 of the within
Complaint are incorporated herein as if fully set forth.
43. Plaintiff, Advantage Engineering Services, Inc., entered into an oral
Agreement with the Dial Defendants to provide the engineering services at Issue in this
case. Said oral agreement was entered into by Advantage Engineering Services and the
Dial Defendants through Richard N, Cooper, their agent, servant, and employee acting
within his capacity as slJch,
44. Pursuant to said oral agreement, Plaintiff, Advantage Engineering Services,
Inc. had begun performing engineering services in January 1996.
45, Pursuant to said oral agreement, Plaintiff, Advantage Engineering Services,
Inc., was to be paid $96,000,00 plus expenses.
46. Piaintlff, Advantage Engineering Services, Inc., has substantially performed
its obligations under said oral agreement.
47. Despite demands for payment of the amount due, Plaintiff, Advantage
Engineering Services, Inc., has not been paid the amount due to it, for which a claim Is
made herein.
4B. In addition, Plaintiff, Advantage Engineering Services, Inc., has sustained
lost profits, consequential damages, incidental damages, costs and expenses, for which
Plaintiff makes a claim herein in addition to the amounts due and payable under the
Agreement.
10
49. Lake Manawa Centre, Ltd., Individually and trading as Lake Manawa-
Carlisle, LP, or Lake Manawa Centre, Inc" Individually and trading as Lake Manawa
Centre, Ltd" as evidenced by the payment made to Plaintiff, Advantage Engineering
Services, Inc" may by assignment or otherwise have become liable under the oral
contract.
WHEREFORE, Plaintiff demands judgment against the Dial Defendants and Lake
Manawa Centre, Ltd" Individually and trading as lake Manawa-Carllsle, L.P., Lake
Manawa Centre, Inc" individually and trading as lake Manawc. Centre, Ltd., in an amount
In excess of the limits for mandalory arbitration, plus attorneys' fees, interest, and costs of
suit.
COUNT IV
50. The allegations contained in Paragraphs 1 through 49 of the within
Complaint are incorporated herein as if fully set forth.
51. Plaintiff, Advantage E.ngineering Services, Inc., provided engineering
services as requested by the Dial Defendants, Lake Manawa-Carlisle, LP and Lake
Manawa-Carllsle, Inc" trading as Lake Manawa-Carllsle, LP,.
52. It was understood by all parties that Plaintiff, Advantage Engineering
Services, Inc. expected to be paid for said engineering services,
53, The Dial Defendants, lake Manawa-Carllsle, LP, and Lake Manawa-
Carlisle, Inc. trading as Lake Manawa-Carllsle, LP, received the benefit of the engineering
services.
11
54. Lake Manawa Centre, LId" Individually and trading as Lake Manawa-
C~rllsle, LP, and Lake Manawa Centre, Inc" Individually and trading as Lake Manawa
Centre, L1rl" are liable hereunder to the extent that they are assignees of the Dial
Defendants or assignees of Lake Manawa-Carlisle, LP, or Lake Manawa-carllsle, Inc"
trading as Lake Manawa-Carllsle, LP.
55. Plaintiff, Advantage Engineering Services, Inc., is entltlod to receive the fair
and reasonable value of the engineering services it provided,
56. Plaintiff, Advantage Engineering Services, Inc" has not been paid the fair
and reasonahle value of the engineering services It provided.
WHEREFORE, Plaintiff demands judgment against the Entity Defendants in an
amount in excess of the limits for mandatory arbitration, plus attorneys' fees, Interest, and
costs of suit.
COUNT V
57, The allegations contained in Paragraphs 1 through 56 of the within
Complaint are incorporated herein as if fully set forth,
5B. Richard N, Cooper, Donald F. Day, and T, L. Clauff, (hereinafter "the
Individual Defendants"), acting through Richard N. Cooper on their own behalf and on
behalf of the Dial Defendants caused the Agreement to be entered into between Plaintiff,
Advantage Engineering Services, Inc., and Lake Manawa.Carlisle, LP, with Lake
Manawa.Carlisle, Inc. as its General Partner,
12
59. Said Individual Defendants, acting through Richard Cooper on their own
behalf and on behalf of the Dial Defendants represented and held out Lake Manawa-
Carlisle, LP, and Lake Manawa.Carlisle, Inc, as existing entities Involved in the land
development, shopping center development and retail store development business.
60. Said Individual Defendants, acting through Richard N, Cooper on their own
behalf and on behalf of the Dial Defendants, intended that Advantage Engineering
Services, Inc. rely on their representations with respect to Lake Manawa-Carlisle, LP, and
Lake Manawa-Carlisle, Inc., and thereby enter Into the Agreement with Lake Manawa-
Carlisle, LP, and Lake Manawa-Carlisle, Inc., and to provide engineering services as set
forth herein,
61. In fact, Lake Manawa-Carlisle, LP, and Lake Manawa-Carlisle, Inc, are non-
existent entities,
62, Tha Individual Defendants through Richard N, Cooper, on their own behalf
and on behalf of Dial Defendants, caused Advantage Engineering Services, Inc, to enter
Into the Agreement with Lake Manawa-Carlisle, LP, with Lake Manawa-Carlisle, Inc. as Its
General Partner for the purpose of avoiding payment for the services rendered by
Advantage Engineering Services, Inc. and to shield the real parties in Interest from the
obligations under the Agreement.
63. Further, the payment that was made to Advantage Engineering Services,
Inc. was made by means of a check drawn on Defendant, Lake Manawa Centre, Ltd., In a
further effort to shield and insulate the real parties to the Agreement from obligations
13
thereunder and responsibility to make payment for the services rendered by Plaintiff,
Advantage Englnl,ering Services, Ino,
64. As a dlrnet and proximate result of the misrepresentations set forth herein,
Advantage Ennimmring Enninemin9 Services entered into the Agreement and provided
engineerinn !!Ilfvleos llellorth therein, providing substantial services with respect to the
Agreement, c()ntllnlno !!uIJstllnllEII benefits on the Individual Defendants and the Dial
Defendants, inourrln\! considerable expenses, expending many hours of professional
time, for which AdvllntaOll Engineering Services makes a claim herein.
65. All n result of the conduct of the Individual Defendants and the Dial
Defendants ~s set forth herein, Advantage Engineering Services Is entitled to recover the
benefit of the bargain pursuant to the Purchase Agreement, incidental damages,
consequeilllal damages, and lost profits.
66, Advantage Engineering Services did not discover and, through the exercise
of ordinary care, could not have discovered the misrepresentations set forth herein until
some date after Advantage Engineering Services received the March 20, 1996 letter
attached hereto as Exhibit "C",
67. The conduct of the Individual Defendants and Dial Defendants as set forth
herein Is outragoous conduct.
WHEHEFORE, PI('\intlff, Advantage Engineering Services. Inc., requests that
judgment be entered in its favor in an amount In excess of the mandatory limits for
arbitrallon and against the Individual Defendants and the Dial Defendants, plus interest,
pUlllllivo damage!!, and costs of suit.
14
COUNT VI
6B. The allegations contained in Paragraphs 1 through 67 of the within
Complaint are Incorporated herein as if fully set forth.
69. Lake Manawa-Carlisle, LP, and Lake Manawa-Carlisle, Inc., Lake Manawa
Centre, Ltd. and Lake Manawa Centre, Inc, were never formed as entities and are in fact
unincorporated associations.
70, The Individual Defendants and/or the Dial Defendants are the members of
the Lake Manawa-Carlisle, LP and Lake Manawa.Carlisle, Inc, unincorporated
associations and, as such, are liable for all obligations of Lake Manawa-Carlisle, LP, and
Lake Manawa-Carlisle, Inc, as set forth herein.
WHEREFORE, Plaintiff, Advantage Engineering Services, Inc" requests that
judgment be entered in its favor in an amount in excess of the mandatory limits for
arbitration and against the Individual Defendants and the Dial Defendants, plus interest
and costs of suit.
COUNT VII
71. The allegations contained in Paragraphs 1 through 70 of the within
Complaint are incorporated herein as if fully set forth.
72. Lake Manawa-Carlisle, LP, Lake Manawa.Carlisle, Inc., Lake Manawa
Centre, Ltd" and Lake Manawa Centre, Inc, held themselves out as corporate
partnership, limited liability. or other entities and are, therefore, estopped from claiming
that no corporate partnership, limited liability, or other entity exists.
15
73, The Dial Defendants held out Lake Manawa-Carllsle, LP, Lake Manawa-
Carllslo, Ino" LBkH Manawa Centre, Ltd" and Lake Manawa Centre, Inc. as existing
entitles and are liable for their obligations and for the damages suffered by Plaintiff,
Advantage Engineering Services, Inc.
74. The Individual Defendants held out Lake Manawa-Carlisle, LP, Lake
Manawa,Carllsle, Inc" Lake Manawa Centre, Ltd., and Lake Manawa Centre, Inc. as a
corporate pal1nershlp, limited liability, or other entitles and are estopped from denying
their existence and are liable for their obligations and the damages suffered by
Advantage Engineering Services, Inc.
WHEREFORE, Plaintiff, Advantage Engineering Services, Inc., requests that
Judgment be entered against all Defendants in an amount in excess of the mandatory
IImito for arbitration, plus interest, and costs of suit,
COUNT VIII
75, The allegations contained in Paragraphs 1 through 74 of the within
Complaint are incorporated herein as if fully set forth.
76. The Individual Defendants and/or the Dial Defendants owned and controlled
the Lake Manawa-Carlisle, LP, Lake Manawa-Carlisle, Inc., and Lake Manawa Centre,
Ltd., and Lake Manawa Centre, Inc,
77. The Individual Defendants and/or the Dial Defendants created and
operated the Lake Manawa Centre entitles as mere shells with insufficient capitalization,
16
substantial Intermingling of corporte and personal affairs to avoid payment under the
aforesaid agreement.
7B. The Individual Defendants and/or the Dial Defendants operated the Lake
Manawa-Carlisle, LP, Lake Manawa-Carlisle, Inc., Lake Manawa Centre, Ltd., and L.ake
Manawa Centre, Inc, as their alter egos for personal gain,
'79. The veil of limited liability of Lake Manawa-Carllsle, LP, Lake Manawa-
Carlisle, Inc., Lake Manawa Centre, Ltd" and Lake Manawa Centre, Inc, should be
pierced and the Individual Defendants and/or the Dial Defendants should be held liable
for the acts and omissions, obligations, and liabilities of Lake Manawa-Carllsle, LP, Lake
Manawa-Carlisle, Inc.. Lake Manawa Centre, Ltd., and Lake Manawa Centre, Inc.
WHEREFORE, Plaintiff demands judgment against the Individual Defendants and
the Dial Defendants in an amount In excess of the limits for mandatory arbitration, plus
interest and cost of suit.
COUNT IX
BO. The allegations contained In Paragraphs 1 through '79 of the within
Complaint are Incorporated herein as if fully set forth,
B1. The Dial Defendants are unincorporated associations, the members of
which are the Individual Defendants.
B2. The Individual Defendants are also liable for all obligations of the aforesaid
unincorporated associations as set forth herein and for the damages caused to Plaintiff,
17
Advantage Engineering Services, Inc, by the unincorporated associations and for all
damages for which they are liable asset forth herein.
WHEREFORE, Plaintiff demands Judgment against the Individual Defendants In an
amount in excess of the limits for mandatory arbitration, plus Interest and costs of suit.
COUNT X
B3. The allegations contained in Paragraphs 1 through B2 of the within
Complaint are Incorporated herein as If fully set forth,
84. The Individual Defendants own and operate the Dial Defendants as mere
shells with Insufficient capitalization and substantial Intermingling of corporate and
personal affairs to avoid payment to Advantage Engineering Services, Inc.
B5. The Individual Defendants operate the Dial Defendants as their alter egos
and for their own gain.
B6, The veil of limited liability of the Dial Defendants should be pierced and the
Individual Defendants should be held liable for the actions, Inactions, and conduct of the
Dial Defendants and for the damages caused to Advantage Engineering Services, Inc. by
18
Exhibit A
Exhibit B
Exhibit C
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Exhibit D
This Agreement Is dated as of the _lLlh...day of JAnuary, 1996, between David Aiello
("Seller"), and Dial Companies, a Nebraska COl'poratlon, or assigns, ("Purchaser");
WITNESSETH:
1. SRle Rnd PurchRse. Seller shall sell and Purchaser shall purchase, subject to the
terms and conditions herein, Lot number 14 and Lot number 15 of the final subdivision pIAn
known as Eden Business Park as recorded or to be recorded in the Recorder's office of
Cumberland County Pennsylvania, said Eden Business Park is located in the Borough of Carlisle
and South Middleton Township, Cumberland County, Pennsylvania.
2. Purchase rrlc~ The purchase price for the Land shall be Nine Million Four
Hundred Twenty Thousand Dollars (59,420,000.00) (the "Purchase Price") payable as follows:
(a) One Hundred Thousand Dollars ($100,000.00) paid contemporaneously with the
execution by Purchaser of this Agreement to a mutually acceptable title company
(the "Escrow") to be held in an interest bearing escrow account, (the "Deposit"')
with interest accnting to Purchaser. It being understood that Dial Companies shall
place a demand note for One Hundred Thousand Dollars (SI00,OOO.00) with
f Chicago Title Omaha during the 30 day inspection period. On or before February
17, 1996, the note will be replaced with One Hundred Thousand Dollars
($100,000.00) cash; and
(b) At the end of the inspection period, Dial Companies will escrow the One Hundred
Thousand Dollars (SI00,OOO.00) cash and a note in the amount of Four Million
Nine Hundred Thousand Dollars (S4,900,OOO.00). The note will be subject to the
necessary governmental approvals being obtained by Purohaser according to
paragraph 23 of this agreement.
(0)' The balance ofNhie Million Three Hundred Twenty Thou.and Dollars
(59,320,000.00) paid on the date of the closing of this sale (the .Closing") by
oertified check or Federal wirll transfer; provided, however, that if the survey to be
prepared pursuant to Section 4 herein reveals that the Land contains more or less
than Forty-Seven Rnd eight one-hundredth. (47.08) acres, then the Purohase
Price lhown above shall be increased or decreased as applicable so that it shall be
an amount equal to the product obtained by multiplying Two Hundred Thou.and
Dollars (5200,000.00) by the actual number of Acres, as deflned in Section 4
herein, shown by the surveyor's certification.
3. Escrow. Purchaser and Seller shall deliver signed instructions to Chicago Title
Insurance Company, (the "Escrow") as escrow holder, within thirty (30) calendar days of both
parties execution of this Agreement which shall provide for closing as provided herein. Bscrow
fees shall be the sole responsibility of Purchaser. The "Close ofBscrow" or the "Closins" shall be
PurChase Agreemenl . Carlisle, P A
the date Selle.-s special warranty deed is recorded, Concurrently with Seller's exooutlon of the
esorow instruotions, Seller shall exeoute a special warranty deed to convey title of the Property to
Purchaser, and Escrow Agent shall hold said deed until the Close of Escrow. For all purposes, the
date of the "opening of escrow" shall be the date of this Agreement. In the event of any
inconsistency between the escrow Instnlctions and this Agreement, this Agreement shall control,
notwithstanding the fhet that either pal1y may have Intentionally or inadvertently executed such
Inconsistent instructions.
4. Survey, Seller, at Its expense, shall deliver to Purohaser a current survey of the
Land prepared by 'a Registered Surveyor (the "Survey"). The Surv'.lY, in form suitable to
Purchaser and "Title Company", as detined in Section 4 herein, shall (a) locate all present and
future easements, rights-of-way, 100-year flood plain, building lines, utility lines, roadways and
encroachments on or abutting the Land, (b) contain an ae<:urate metes and bounds description of
the Land and (c) contain the certltication of the surveyor as to the number of Acres (accurate to
two (2) decimal places) contained in the Land, Purchaser shall have seven (7) days from the date
of receipt of the Survey to approve same or to notifY Seller of its objections thereto. If Purchaser
notifies Seller of objections to the Survey, Seller shall have the Survey corrected as expeditiously
as reasonably possible, This shall be an ALTA Survey,
S. Title Insurance. Purchaser, at Purchaser's expense and within seven (7) days of
the date on which is receives a satisfactory Survey as provided in Section 4 hereof, shall order a
standard foml ALTA Owner's Title Commitment Policy (the "Commitment") covering the Land
and issued by a title insurance company of Purchaser's choice ("Title Company"), together with
copies of all instruments, ifany, referred to in the Commitment as exceptions to title. Purchaser
shall have twenty (20) days after receipt of the Commitment, together with copies of alk
documents constituting exceptlolls to title and survey, to review and approve the Commitment. If
any exceptions appear in the Commitment, other than the standard pre-printed exceptions (whlch
shall be totally deleted in the Policy except that the survey exception may except shortages in
area), whlch are objectionable to Purchsser, Purchaser sh81I, within such twenty (20) day period,
notifY Seller in writing of such fact. Upon the expiration of sllid twenty (20) day period, Purohaser
shall be deemed to have accepted all exceptions of title as shown on the Commitment, except for
matters to which notice under the preceding sentence has been given by Purchaser, and such
exceptions shall be included in the term .Permitted Exceptions. as used herein. Seller shall, within
ten (10) days of receipt of said notice, clear the title of the defects and objections so specified.
The parties agree to olose within seven (7) days following the date upon which all conditions and
contingencies, including without limitation defects in and objections to title, are satisfied.
6. Title an~ I;)eed. At the Closing, SeUer shall' convey to Purchaser, by Special
Warranty Deed in a form acceptable to Purohaser, marketable fee simple title to the Land, free
and clear of any and all encumbrances, subject only to the Pennltted Exceptions as provided in
Section 5 herein. At the Closing, Purchaser shall also be able to obtain, at Purchaser's expense, a
standard form ALTA Owner's Title Insurance Policy (the "Policy.) issued by the Title Company,
insuring marketable fee simple title to Purchaser in the fuU amount of the Purohase Price and
containing no exceptions or conditions other than the Permitted Exceptions as provided in Section
5 hereof.
Page 2
Puri:hase "81'ccmenl - Carlllle. P A
7. TRIM and Auelllment., Real prollerty taxos, wator rates and sewer chargC8 and
ronts. if any, shall be prorated and adjusted as or lhe date of settlement on either a fiscal or a
calendar year basis as may be applicable to the partioular tax or charge Involved.
8. TrRn.fel' Rnd SI!1M 'faxes, The expense and cost of all Federal, state and local
documentary or revenue stamps, transfer, sales and olher taxes, if any, relating to the sale of the
Land shall be split equally between the Purohaser and Seller on the date of Closing, Both parties
agree to execute any tax returns required to be flied in connection with any such taxes.
9. Default bv Purchaser. If Purchaser shall default in the perfolTl1ance of any of the
temls and conditions of this Agreement, or if the Closing shall not occur through the fault of
Purchaser, Seller shall. at its sole discretion elect to,
(a) receive from the escrow agent the full purchase price and retain all deposit
monies held by the escrow agent and other sums paid by the Purchaser on account
I of the purchase price, whether required by this agreement or not, or
(b) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of the purchase price to the Seller's damagC8, or
(c) apply all deposit monies held by the escrow agent and other sums paid by the
Purchaser on account of the purchase price as liquidated damagC8 for such default.
In the event that the Seller elects to retain the monies as liquidated damages in accordance with
this paragraph, the Seller shall be released from all liability or obligation as this agreeinent shall be
NUll.. AND VOID. In any event the Seller and Purchaser shall also be entitled to specific
performance and all other remedies available at law or in equity.
In the event either party brings an action to enforce its rights hereunder, the costs of such .
action, including reasonable attomey's fees of the prevailing party, shall be borne by thel
non-prevailing party. .
10. Default bv Sel~r, Except for a willful default hereunder on the part of the Seller,
in which case Purchaser shall have all remedies available to them at law, If Seller fail, or refusC8 to
comply fully with the tenns of this Agreement through no fault of the Purchaser, then the esorow
amount shall be delivered by the escrow agent to Purchaser and such amount shall constitute
liquidated damages, and no other rights or remedies shall be enforceable or available to Purchaser
against Seller, Purchaser shall also be entitled to specific perfolTl1ance against Seller.
II. Riehl of (i:ntrv. At any time prior to the Closing. and at Purchaser's sole expense,
Purchaser or its authorized agents shall have the right to enter upon the Land, at reasonable times
and upon at least soven (7) days prior notice, to inspect the same and make such surveys and lite
anlllyses, test borings and engineering studies as Purchaser may deem necessary. Purchaser hereby
agrees to indemnitY and hold Seller hannloss in connection with any said entry and to restore the
Land to its previous state in the IIvent ofany borings or other alteration of the Land.
12. Brokeral!e Fees. Upon the closing of this transaction. Seller shall pay from the
proceeds as referred to in paragraph two above to Gary Green Real Estate, 250 Bast Market
Street, Harrisonburg, Virginia 2280 I, a real estate selling fee, which fee has been agreed to by
separate agreement between Seller and Gary Green Real Estate. Esch Party represent. and
Page 3
Pul1lhase AS-I- Carll.le, PA
(b) Preparatlon of Spec la/ Warranty Deeds;
(0) One-half(ll2) Revenue stamps or transfer tax;
(d) Brokerage fee.
l.ly Purohaser:
(a) Title insurance examination and premium;
(a)/Preparation ofMortgagc, Deed of Trust or other applicable financlnglnstrumen!s;
(b) Recording fees;
(c) One-half(ll2) Revenue stamps or transfer tax;
(d) Escrow fees, if any.
18, .TIme orEssent~i Atcepfance, Time is expressly declared to be of the essence of
this Agreement. Seller shall have Two (2) days from the date of receipt of this Agreement to
accept and agree to the tenns and conditions herein.
19, Miscellaneous Provisions:
(a) Entire Aereement. This Agreement contains the entire agreement between
Beller and Purohaser, and there are no other tenos, ('.andltions, promises, undertakings, statements
or representations, express or implied, concerning' the sale contemplated by this Agreement.
(b) Beadlnls. The headings to the Sections hereof have been Inserted for
convenience of reference only and shall in no way modiI}- or restriot any provisions hereof or be '.
used to construe any such provisions.' ""
(0) ModJ(lcatlons. The terms of this Agreement may I\ot be amended, waived or
tennlnated orally, but only by an instrument In writing signed by both Seller and Purchaser.
(d) SUCc:esson\ This Agreement shall insure to the benefit of and bind the parties
hereto and their respective successors and assigns.
(d) Govemlnl! Law, This Agreement is being delivered and is intended to be
perfonned in the Commonwealth of Pennsylvania, and shall be construed and enforced in
accordance with the laws of such Commonwealth.
(e) ~hlbltL The exhibits attached to this Agreement are incorporated herein and
made a part hereof as though fully set out herein.
(t) Gencfm Wherever the context so requires, all words herein in the neuter
gender shall be deemed to include the Masculine or feminine genders, all singular words shall
include the plural, and all plural words shalllnc/ude the singular.
20. Addltlona' Warranties bv Sellm Seller hereby represents and warTftnts to the
best of hi~, knOWledge to Purchaser thllt the Land is not contaminated with, nor threatened with
Pages
Purch~sc Agreement. Carlisle, PA
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contamination from outside sources by, any chemical, material or substanco to which exposure is
prohibited, limited or regulated by any federal, slate, county, local or regional authority or whloh
Is known to pose a hazard to health and safety and that the Land has never been used for a
landfill, dump site, storage of hazardous substances, or by a manufacturer of any product or for
,
any other individual use. This representation and warranty shall survive the Closing. In the event
that Purchaser notllles Seller (either before or after the Closing) that the representation set forth
in Paragraph 20 Is untrue and such notice is accompanied by a report from an engineering
company with experience in evaluating such matters, then Seller agrees, at its sole cost and
expense, to perfonn such acts as may be necessary to cause the Land to be in compliance with all
federal, state and local environmental laws, rules and regulations. In the event that Seller falls so
to perfonn such acts prior to the Closing, then Purchaser may postpone the Closing for such
period of time as may be necessary for Seller to do so. This Paragraph 20 shall sUlVive the
Closing.
21. CondlClon of Propertv. It is understood and agreed that the Purohaser, or its
representative, has made an inspection of the property prior to the execution of this Agreement,
and based on the inspection and infonnation which may have been provided by the Seller as to the
condition of the property, has entered into this Agreement. Seller hereby warrants and guarantees
that the property will remain in its present condition, as of the execution of this Agreement to and
including the day that title to said property is transferred to Purchaser, subject to the remaining
tenns and oonditions ofthis Agreement.
22. Construction of Improvements, Within fifteen (15) calendar days of both parties
execution of this Agreement, Seller shall provide Purohaser with complete plans and specifications
in accordance with the site/grading/utility plans for the Eden Business Park whloh shall. be' .'
attached hereto and marked Exhibit A (collectively referred to herein as the .Construotion Plans
and Specifications").
No improvements or alterations which substantially vary from the approved plans may be
made without the prior consent of Purchaser. Seller warrants and guarantees that all work shall
be pCrfonned in a good and workmanlike maMer and in confonnllnce with the above- mentioned
Construction Plans and Specifications and all applicable governmental regulations. .
23, ~.J!ntlnl!enclt.li.
(a) This contract is contingent upon Finat land development plan approval for
Lot number 14 and Lot number 15 of the final subdivision plan known as Eden Business Park as
recorded or to be recorded in the Recorder's office of Cumberland County Pennsylvania. Said
land development plans shall generally follow the Eden Park Center development concept plan
attached hereto and' marked &b.Ib.iU!. prepared by Advantage Engineering Services, Inc, File
#208 dated August 10, 1995 as revised December 28, 1995 showing a Lowes Home
Improvement Store on lot 14 and a Wal-Mart Super Center on lot 15. Seller to cooperate with
and assist Purchllser with the land development plan municipal approval process. All land
development plan approval costs shall be the responsibility of the Purchaser.
(b) Seller at or prior to closing, shall deliver this site pad ready to within six (6)
inches of finish grade and compacted to local specifications for buildllble property and providing
all public streets, utlllties, buffers to within five feet of pad as requested by Purchaser, Seller may
Page 6
Purohase Agreement - Carll.I~, P A
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ADVANTAGE ENGINEERING SERVICES,
INC. ,
Plaintiff
va.
LAKE MANAWA-CARLISLE, L.P.,
RICHARD N. COOPER, Indi.vidually,
and RICHARD N. COOPER t/a
LAKE MANAWA"CARLISLE, L.P.,
and DIAL COMPANIES a/k/a DIAL
PROPERTIES, CO.,
Defendants
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
I IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-5731 CIVIL('rE~
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CIVIL ACTION - LAW ~J
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ss:
Before me, the undersigned notary public, this day,
personally appeared CATHLEEN A. KORR of the law firm of Hepford,
Swartz & Morgan, 111 North Front Street, Harrisburg, Pennsylvania
17101, satiSfactorily proven to be the within affiant, and who
being duly sworn according to law, deposes and says that on May 15,
1998, she mailed the Writ of Summons in the above-captioned case
by Certified Mail Return Receipt Requested, Restricted Delivery,
Article No. Z 424 268 874 addressed to Dial Properties Co., 11506
Nicholas Street, Omaha, Nebraska 68154, and the same was received
hereto.
on May 19, 1998, as indicated by the return receipt card attached
~~A.~
Cathleen A. Kohl'
Sworn to and BU2i~f,ibed
before me this "day
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13. · r""ed to: 4a. r1Icf. umber
Z 424 288 875
DIAL COMPANIES 4b. S.rvtce Type
11506 NICHOLAS STREET 0 R.gIIl.r8d
OMAHA, NE 68154 CJ ~lCpre.. Mall
CJ Retum~1ot
7. Oal. 0 a/hrGry
6. Received By: (Print NIm8J
8. Addre....'. Add"
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MAY 15. 1998
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US POllal SeNlco
Receipt for Certltled Mall
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TOTAL Postapu fit. $ 5.52 l
~ POIlma " 'Ie
Ie MAy 15, 1998
+
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3, Articlo Addrtseed to:
LAKE MANAWA CENTRE, LTD.
11506 NICHOLAS STREET
OMAHA. NE 68154
I allO wish to recelva lIla
foltowlnq I8MeaI (for an
extlllfH): j
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lb. Sarvlce vpa ~.-
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5. Reoelved By: (Print Namoi
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