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HomeMy WebLinkAbout03-5856PROSPERITY DEVELOPMENT CO. Plaintiffs Vo ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : C:~IN~L-'AC]~ION - EQUITY NOTICE 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 written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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 Ave. Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted an la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado gue si usted no se defienda, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y pot cualquier gueja o alivio gue es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO ?IENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUNENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249-3166 PROSPERITY DEVELOPMENT CO. Plaintiffs ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - EQUITY COMPLAINT AND NOW COMES the plaintiff, Prosperity Development Co., through its attorneys, Adler & Adler, and respectfully represents the following: 1. Prosperity Development Company, is a Pennsylvania general partnership with a principal place of business located at 2525 North Seventh Street, Harrisburg, PA. 2. Rothman, Schubert & Reed is a partnership with a principal place of business located at 355 N. 21st Street, Suite 102, Camp Hill, PA 17011. 3. On April 23, 2003, defendants entered the Agreement attached as Exhibit "A" (hereinafter, the Agreement) in the Office of the Recorder of Deeds in and for Cumberland County, which Agreement was recorded in Misc. Book 696, page 2618. 4. Pursuant to its terms, entry of the Agreement on the record acts as a lien against the Property located in Camp Hill Borough, Cumberland County, Pennsylvania, identified as Tax Parcel 09-20-1854-004 and known as 407-431 North 21st Street, Camp Hill, PA. (Hereinafter, the Property) 5. Paragraph 6 of the Agreement states This Agreement shall act as a lien upon the subject properties to the extent of any sums due and owing hereunder, and as evidence of such lien, RSR may file this Agreement in the Recorder of Deeds Office in and for Cumberland County. 6. Paragraph 5 of the Agreement states In each of the two complete years following final determination of the appeal, owner shall pay to RSR a sum equal to fifty percent of any tax reduction resulting from the appeal. 7. Pursuant to paragraph 5, nothing is due under the Agreement until there is a final determination. 8. Attached as Exhibit "B" is a certified copy of the docket from the Court of Common Pleas of Cumberland County, PA in this matter. 9. The initial determination by the County Board of Appeals was appealed by the plaintiffs. 10. Because there is no final determination, there is nothing due under the Agreement, and the lien should be stricken. ll. RSR filed an assessment appeal for Prosperity on the above property on April 12, 2002. 12. This case was scheduled for a hearing before the assessment appeal board on August 26, 2002. It was continued until October 14, 2002. 13. At that time Michael Pykosh, Esquire, represented Prosperity at the hearing. He had been retained by defendant for this purpose along with RSR, Appraisers and Analyst, as the appraiser. 14. A decision was rendered by the Board of Appeals on October 31, 2002. 15. A copy of the notes from the Board of Assessment Appeal hearing is attached as Exhibit "C.' 16. The Board did reduce the assessment from $9,132,800.00 to $8,850,000.00 as a result of the review of a 1998 court order. 17. William Rothman convinced Mr. Hughes and Mr. Freedman that they should appeal this decision. They agreed in that they saw no reason at that time not to appeal, since it was at the risk of RSR. 18. RSR filed the necessary appeal papers on December 3, 2002. 19. A hearing was set on the appeal for March 19, 2003. On February 3, 2003, Stephen Tiley filed a motion for a continuance, and Mr. Pykosh consented to the motion. 20. No other action has been taken to the knowledge of Prosperity since the Board of Appeals made its decision. WHEREFORE, plaintiff respectfully requests that the lien entered to Misc Book 696, page 2618, be stricken, and that defendants pay all costs of suit. Respectfully submitted, William L. Adle~,'~E~'q~ire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 CONSULTINGAGREEMENT ~ :::_~)LD[.R OF DEED~ ~ ,', :~ 2 P, LAI, II) OOUNTY THiS AG~E~MEWT~S ~,rmvmuucrorras ~_~_ VA¥O~ A~UU, ~J~/u~rw'm~ WITNESSETH: 10) ACCOUNTS OVER THIRTY (30) DAYS LATE ARE SUBJECT TO A 1.~% PER OWNER BY: OWNER WITNESS BY: COMMONWEALTH OF PENNSYLVANIA : COUNTY OF : SS: COMMONWEALTH OF PENNSYLVNA1A: counTY o~ C~-'~- : ON THIa, TIlE /[~'~ DA¥OF ,~/,l~/'"~ ' / ,2002, BEFORJ~ i~, A NOTARY PU]SLIC, THE PYS510 2002-05761 PROSPERITY DEVELOPMENT CO Reference No..: Case TvDe ..... : APPEAL - ASSESSMENT Ju~gmeh% ..... ~ .00 Juoge Assignea: Disposed Desc.: ............ Case Comments ............. Cumberland County Prothonotary's Office Page 1 Civil Case Inqu'iry ' (rs) THE BOARD OF ASSESSMENT APPPE Filed ........ : 12/03/2002 Time ......... : 1:48 Execution Date 0/00/0000 Jury Trial .... Disposed Date. 0/00/0000 Higher Crt 1.: Higner Crt 2.: General Index Attorney Info PROSPERITY DEVELOPMENT COMPANY APPELLANT PYKOSH MICHAEL J P O BOX 5967 HARRISBURG PA 17110 5967 CUMBERLAND COUNTY APPELLEE BOARD OF ASSESSMENT APPEALS OLD COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE PA 17013 ******************************************************************************** * Date Entries * ............. FIRST ENTRY .............. 12/03/2002 PETITION AND APPEAL FROM CUMBERLkND COUNTY EOARD OF ASSESSMENT APPEAL AND ON MOTION OF MICHAEL J PYKOSH ESQ - THE COURT ACCEPTS SAID APPEAL AND HEREBY ESTABLISHED A DE NOVO HEARING ON THE SUBJECTONS MATTER THEREFOR TO BE HELD IN CR 1 OF THE CUMBERLAND COUNTY COURTHOUSE ON 3/19/Q3.AT 9:30 AM - BY THE COURT J WESLEY OLER JR J COPIES MAILED 12/9/02 1/27/2003 NOTICE OF INTERVENTION BY DONNA S WELDON ESQ FOR EAST PENNSBORO AREA SCHOOL DISTRICT 2/14/2003 MOTION FOR GENERAL CONTINUANCE - BY STEPHEN D TILEY ESQ 2/14/2003 ANSWER - STEPHEN D T LEY THE ~OVE CAPTIONED MATTER SHCEDUBED FOR 3/19/03 IS CANCBBED g2~D TH~ MATTER IS CONTINUED GENEHA~LY AT THE CALL OF ANY P~RTY - BY THE COURT G WESLEY OLSR GR G COPIES MAIhED 2/2~/03 .............. LAST ENTRY .............. * Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal * APPEAL MISC TA/~ ON APPEAL SETTLEMENT AUTOMATION FEE JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 10.00 10.00 .00 55.50 55.50 .00 * End of Case Information * T UE COPY FROM RECORD Iff Testimony whereof, I here unto set my and the, seaJ of ~id Coud~at Cadisle, Tht~ ~, cl~y of._r~v-~ ~ ¢~,,, CUMBERLAND COUNTY BOARD OF ASSE$SMENfAPPEALS ' DATE PROPERTY OWNER REPRESENTED BY ARCEL NUMBER Gas ~-cA-i oN FAIR MARKET VALUE: New ACRES PROPERTY TYPE CC., Old Clean and Green N 0 ~iNc~l opi~io~ = -~0o0~000 ~ q:l-oo ~,~OqO~ooo-~ PROPER~ OWNER S OPINION AND EVIDENCE OF MARKET VALUE: ~.~ ~ ~I06 000-~' ' j - ' ~ ~ -~ I.- - ~o;~ ~p ~o1~ - q~o, o 0 o , Hq o, ooo ~ ~ co ~ ooo ~H q 0~oo0 = ~,~oo~ ooo DECISION ORDER: ,~ occ~L~ DECISION MAILED ~,oo~ DECISION DATE lO iH NOTES Fo~rn CUM214 (v 1] SECRETARY VERIFICATION I VERIFY THAT THE STATEMENTS MADE 1N THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: Prosperity Development Company / SHERIFF'S RETURN - REGULAR CASE NO: 2003-05856 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PROSPERITY DEVELOPMENT CO VS ROTHMAN SCHUBERT & REED REALTO DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon ROTHMAN SCHUBERT & REED REALTORS - A PARTNERSHIP the DEFENDANT , at 1501:00 at 3 LEMOYNE DRIVE LEMOYNE, PA 17043 B. NEVILLE, BOOKKEEPER/OFFICE a true and attested copy of HOURS, on the 7th day of November , 2003 MANAGER, COMPLAINT - by handing to ADULT IN CHARGE EQUITY together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 39.04 Sworn and Subscribed to before me this /g~ day of ~toth~notary' ~ ' So Answers: R. Thomas Kline 11/10/2003 WILLIAM ADLER By: PROSPERITY DEVELOPMENT CO., : Plaintiffs : ; V. : ; ROTHMAN, SCHUBERT & REED : REALTORS, A PARTNERSHIP, : Defendant : IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 03-5856 NOTICE TO PLEAD TO: Prosperity Development Co. You are hereby notified to file a written response to the .enclosed Answer and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against LowellIR. Gates, ,,~sq. Supren~e Ct. No. 40779 Gates, Halbruner & Hatch, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Telephone: (717) 731-9600 Fax: (717) 731-9627 Date: PROSPERITY DEVELOPMENT CO., Plaintiffs ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP, Defendant IN THE 'COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA C1VIL ACTION - EQUITY NO. 03-5856 _ANSWER and COUNTERCLAI]~ ~ AND NOW comes Defendant, Rothman, Schubert & Reed, Realtors, a Partnership, by and through its counsel, Gates, Halbruner & Hatch, P.C. and respectfully sets forth the following Answer and Counterclaim to Plaintiff's Complaint: 1. Admitted. Admitted in part and denied in part. By way of fiarther answer, Rothman, Schubert & Reed, Realtors, aYk/a RSR Realtors, LLC, is a Pennsylvania limited liability company, with its principal place of business at 3 Lemoyne Drive, Lemoyne, PA 17043. 3. Admitted. 4. Admitted. The writing speaks for itself, and therefore, no response is required. The writing speaks for itself, and therefore, no response is required. The averments of Paragraph 7 are conclusions of law to which no response is required. The writing speaks for itself, and therefore, no response is required. Admitted. I0. 11. 12. 13. 14. 15. 16. 17. 18. 19. Denied. The averments of Paragraph 10 are conclusions of law to which no response is required. Admitted. Admitted. Defendant is without knowledge and information sufficient to form a belief as to the truth of the matter averred in paragraph 13 of Plaintiff's Complaint, and strict proof thereof is demanded at trial. By way of further response, Defendant RSR Realtors is unclear as to the relevancy of the averments of paragraph 13. Admitted. The writing speaks for itself, and therefore, no response is required. Admitted in part, denied in part. It is admitted that the Board reduced the assessment from $9,132,800.00 to 8,850,000.00. It is denied that this was the result of the review of a 1998 court order. Denied as stated. Representatives for Plaintiffdid not need to be" ' ,, convinced to appeal, but rather willingly appealed the decision :in an effort to have the assessment reduced even further. By way of further response, both Plaintiff and Defendant contemplated an ultimate appeal to the Court of Common Pleas from the very beginning, as evidenced by Paragraph 2 of the Consulting Agreement. Admitted. Answering Defendant is without sufficient knowledge and information to form an opinion as to the truth and veracity of the allegations of Paragraph 19, and strict proof thereof is demanded at trial. 20. Answering Defendant is without sufficient knowledge and information to form an opinion as to the troth and veracity of the allegations of Paragraph 19, and strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests this Honorable Court to uphold the lien entered to Misc. Book 696, Page 2618. COUNTERCLAIM .COUNT I. 21. BREACH OF CONTRACT Paragraphs 1 through 20 are incorporated by reference as though more fully set forth herein. 22. Defendant believes, and therefore, avers that PlaintiffProsperity has signed a Contract of Sale agreeing to sell a portion of the subject property to Holy Spirit Hospital for the sum of $5.0 million, thereby making the hearing on the tax re- assessment moot. 23. 24. 25. The Contract of Sale between Plaintiff Prosperity and Holy Spirit Hospital was signed subsequent to the filing of the real estate tax re-assessment appeal with Cumberland County Court of Common Pleas. The actions of Plaintiff Prosperity serve as an intervening cause which renders Defendant unable to perform the tax re-assessment appeal as contemplated by the Consulting Agreement. Plaintiff Prosperity agreed to and signed off on the tax assessment appeal to the Court of Common Pleas of Cumberland County, and so must have considered the 26. 27. appeal meritorious at the time. Subsequent to the appeal to the Court of Comn'ton Pleas, because of the alleged Contract of Sale for the property between Plaintiff Prosperity and Holy Spirit Hospital, the hearing on the tax reassessment has been generally continued. Defendant is ready, willing and able to proceed with the re-assessment hearing before the Court of Common Pleas of Cumberland County, but Plaintiff Prosperity, through its alleged $5.0 million sale of a portion of the subject property to Holy Spirit Hospital, has rendered the reassessment appeal moot, thereby devaluing the Consulting Agreement to the point where it is essentially worthless to Defendant. 28. Holy Spirit Hospital is a tax-exempt organization, therefore any tax re-assessment would not affect it. 29. Defendants provided testimony at the Board of Assessment Appeals hearing that the property should be assessed at $7,000,000, wl~tich was the fair market value to which Plaintiff and Defendant had agreed. 30. Paragraph 2 of the Consulting Agreement contemplated an ultimate appeal to the Cumberland County Court of Common Pleas fi.om the very beginning of the relationship between Plaintiff and Defendant. 31. Plaintiff Prosperity had a duty under the Consulting Agreement to allow Defendant the opportunity to perform its obligations thereunder. 32. Plaintiff Prosperity breached that duty by rendering the Agreement essentially moot when it entered into the Contract of Sale with Holy Spirit Hospital. 33. As a result, Defendant is deprived of receiving the benefit of its bargain. WItEREFORE, Defendant respectfully requests this Honorable Court to enter judgment on the lien entered to Misc. Book 696, Page 2618 against Plaintiff for damages in an mount exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deems appropriate. C~OUNT II. 34. Paragraphs 1 through 33 are incorporated by reference as though more fully set forth herein. 35. All of the work in contemplation of the appeal, i.e. the appraisal and preparation, was completed at much cost and expense to Defendant. 36. Subsequent to the appeal to the Court of Common Pleas, because of the alleged Contract of Sale for the property between Plaintiff Prosperity and Holy Spirit Hospital, the hearing on the tax reassessment has been generally continued. 37. By signing the Agreement of Sale with Holy Spirit Hospital and discontinuing the appeal, Plalntiffrendered the Consulting Agreement impossible to perform by Defendant. 38. Defendant expended considerable time, money and effort based on the representations of Plaintiff and the Consulting Agreement. 39. Defendant relied, to its detriment, on those representations. 40. By its actions, Plalntiffhas rendered the Consulting Agreement moot. 41. Defendant is left with no recourse to recover the expenses incurred in contemplation of fulfilling its obligations under the Consulting Agreement. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment on the lien entered to Misc. Book 696, Page 2618 against Plaintiff for damages in an amount exceeding the threshold for compulsory arbitration under local rules, together with costs of suit, attorneys' fees, and such other relief as the Court deemT, p,p~opriate. ~Respect~ly s~/lbmitte/, -- Lowell R. Gate~ [,sq.- ~ Supr~zne Ct. No. 4,6779 Gate~, Haibruner & Hatch, PC 101~ Mumma Road, Suite I00 Lemoyne, PA 17043 Telephone: (717)'731-9600 Fax: (717) '731-9627 Sul~reme Ct. No. 85;734 Gates, Haibruner & Hatch, PC 1013 Mumma Road, Suite 100 Lemoyne, PA 1704:t Telephone: (717) 7.31-9600 Fax: (717) 731-9627 Date:_ NOU-~5-2~3 14~45 GATES,HRLBRNR,HATCH ?17 731 ~6~? VERIFICATION The foregoing document is based upon information which has been gathered by my counsel in preparation of the instant case. The language of the document is that of counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief: To the extent that the content of the document is that of counsel, 1 have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 1 $ Pa.C.S. §4904 relating to unswom falsification to authorities, which provide.,; that if I make knowingly false averments, I may be subject to criminal penalties. WILLIAM F. ROTHM~N Date:.. CERTIFICATE OF SERVICE I, Lowell R. Gates, Esquire, hereby certify that on this date, I served a tree and correct copy of the foregoing document upon the following person(s) by first-class mail, postage prepaid, addressed as follows: William L. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, PA 17108 Lowell R. Gates, Esq. Suprer ~e Ct. No. 46779 Gates. Halbmner & Hatch, PC 1013 Iumma Road, Suite I00 Lemo, me, PA 17043 Telephone: (717) 731-9600 Fax: (717) 731-9627 Date: PROSPERITY DEVELOPMENT CO. Plaintiffs Vw ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 03-5856 PLAINTIFF'S REPLY TO COUNTERCLAIM OF DEFENDANT AND NOW COMES the plaintiff, Prosperity Development Co., through its attorneys, Adler & Adler, and respectfully represents the following: COUNT I BREACH OF CONTRACT 21. No response required. 22. Admitted in part and denied in part. It is admitted that plaintiff executed an agreement of sale to sell part of the subject property. It is denied that the sale price in the agreement was five million dollars. It is denied that the purchaser was Holy Spirit Hospital. In fact, the purchaser was Holy Spirit Corporation. It is denied that this makes the tax assessment appeal moot in that this is a conclusion of law. 23. Admitted in part and denied in part. It is denied that the purchaser is Holy Spirit Hospital. (See paragraph 22 answer) It is admitted that the appeal to the court of common pleas was filed December 3, 2002, and that the agreement of sale was entered into on July 24, 2003, which date is subsequent to the filing of the appeal. 24. Denied. This is a conclusion of law to which no responsive pleading is required. By way of further answer thereto, the original hearing before the Court of Common Pleas on the appeal was to be heard on March 19, 2003, but a continuance was requested by defendant's counsel. Defendant could have requested a hearing any time before July 24, 2003. 25. Admitted in part and denied in part. It is admitted that Plaintiff agreed to the appeal. By way of further answer thereto, Plaintiff also recognized that defendant was handling the appeal on a contingency fee basis, and that the appeal would cost plaintiff nothing in that only if there was a tax savings would defendant be paid. Plaintiffs hoped the appeal ,vould be successful, but also realized that the Court of Common Pleas probably would have considered the motivation for the defendants to appraise the property Iow in that defendant's compensation for services rendered was dependent on this. 26. Denied. The appeal was filed in December of 2002. A hearing could have been held any time before the agreement of sale was signed, and, in fact a hearing was scheduled for March, but was continued. 27. Admitted in part and denied in part. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that defendant is ready to proceed with the appeal. It is admitted that an agreement of sale has been signed with Holy Spirit Corporation and that as of the date of this filing, plaintiff is no longer responsible for the payment of real estate taxes on the subject properties. 28. Denied. The entity of the purchaser is not Holy Spirit Hospital. The exact tax exempt status of Holy Spirit Corporation is not known at this time. 29. Admitted in part and denied in part. It is admitted that defendant provided that testimony. It is denied that the plaintiffs actually felt that this was the fair market value of the property, but consented to this valuation for tax assessment purposes. 30. Denied. This is a mischaracterization of paragraph 2 of the agreement. Paragraph 2 provides for the possibility of an appeal. --2-- 31. Denied. Under paragraph 2 of the agreement, an appeal may be brought with the approval of owner to the court of common pleas. The agreement specifically provides that the appeal is at the discretion of the owner, and that the owner has no duty or obligation to appeal to the court of common pleas. 32. Denied. See answer to paragraph 31. This is a conclusion of law to which no response is required. 33. Denied. This is a conclusion of law to which no responsive pleading is required. WHEREFORE, plaintiff respectfully requests the relief set forth in its complaint. COUNT II QUANTUM MERUIT 34. No response required. 35. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 36. Denied. See answer to paragraph 24. 37. Denied. Plaintiff took no action to discontinue the appeal. Plaintiff did not sign an agreement of sale with Holy Spirit Hospital, but with Holy Spirit Corporation. 38. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 39. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. Plaintiff is unable to determine on what representations defendant relied. 40. Denied. Plaintiff approved the appeal to the court of common pleas. Defendants had the hearing continued in March of 2003. Plaintiff admits that a reduction of the assessed value of the properties is of no current value to it. 41. Denied. This is a legal conclusion to which no responsive pleading is required. By way of further answer thereto, defendant drafted the agreement attached as Exhibit "A" to plaintiffs complaint. The agreement drafted by defendant specifically provides that defendant is not entitled to payment given the exigent circumstances. WHEREFORE, plaintiff respectfully requests the relief set forth in its complaint. Respectfully submitted, - Wffl]am L. Adler, ~e ~'~ v Attorney for Plaintiff · ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 -4- VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: Prosperity Development Company by: -5- CERTIFICATE OF SERVICE I, William L.. Adler, Esquire, Attorney for Plaintiff, hereby certify on the t ~ _day of ~to~..~,..,.r- ,2003, I served a copy of the within Reply to Counterclaim upon the following person by first class mail, postage prepaid, addressed as follows: Lowell R. Gates, Esquire GATES, HALBRUNER & HATCH, P.C. 1013 Mumma Rd. Williarn~L. ~-dl~r, Esqui~ - -6- PROSPERITY DEVELOPMENT CO. Plaintiffs V. ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EQUITY NO. 03-.t;8-56 Equity MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW COMES the plaintiff, Prosperity Development Co., through its attorneys, Adler & Adler, and respectfully represents the following: The above named plaintiff hereby moves the court for its order directing judgment for plaintiff on the pleadings, in favor of plaintiff and against defendant, to strike the lien as referenced in the requested relief herein and for the reasons set forth below. 1. Defendant admitted that on April 23, 2003, defendants entered the Agreement attached as Exhibit "A" (hereinafter, the Agreement) in the Office of the Recorder of Deeds in and for Cumberland County, which Agreement was recorded in Misc. Book 696, page 2618. 2. Defendant did not deny that Paragraph 5 of the A,greement states In each of the two complete years following final determination of the appeal, owner shall pay to RSR a sum equal to fifty percent of any tax reduction resulting from the appeal. 3. The Agreement is clear in that pursuant to paragraph 5, nothing is due under the Agreement until there is a final determination. 4. Attached as Exhibit "B" is a certified copy of the docket from the Court of Common Pleas of Cumberland County, PA in this matter. 5. It was admitted by Defendant that the initial determination by the County Board of Appeals was appealed by the plaintiffs. 6. Because there is no final determination, there is nothing due under the Agreement, and the lien as recited in paragraph 3 of the plaintiff's complaint should be stricken. 7. RSR filed an assessment appeal for Prosperity on the above property on April 12, 2002 which is reflected in the docket which is a part of this record. 8. This case was scheduled for a hearing before the assessment appeal board on August 26, 2002. It was continued until October 14, 2002 as is reflected in the docket. 9. A decision was rendered by the Board of Appeals on October 31, 2002. 10. Defendant admitted that the Board at the initial laearing did reduce the assessment from $9,132,800.00 to $8,850,000.00. 11. Defendant admitted that RSR filed the necessary appeal papers on December 3, 2002. -2- 12. A hearing was set on the appeal for March 19, 2003. On February 3, 2003, a motion for a continuance was filed and granted as is reflected in the docket. 13. No other action has been taken to the knowledge of Prosperity since the Board of Appeals made its decision. 14. The lack of merit of the defendant's counterclaim can be determined from reading the Agreement. 15. In paragraph 30 of the counterclaim of defendant, it states that the Agreement contemplated an ultimate appeal to the Court of Common Pleas. 16. The plain language of the Agreement states that :any appeal may be taken with the approval of both Owner and RSR. 17. The Agreement is clear that there was no obligation on the part of the plaintiff to even permit an appeal to the Court of Common Pleas. 18. Paragraph 31 of the defendant's counterclaim states that plaintiff had a duty under the Agreement to allow defendant to perform its obligations under the Agreement. 19. As has been stated, an appeal to the Court of Common Pleas was entirely at the discretion of Owner. 20. Defendant does not allege that plaintiff did not cooperate at the initial assessment appeal hearing. 21. Defendant alleges a breach of the Agreement when plaintiff entered into the Contract of Sale with Holy Spirit Hospital. -3- 22. There is no provision in the Agreement for this contingency. 23. In response to paragraph 33 of the counterclaim of defendant, it was admitted that the defendant had the assessment reduced at the initial hearing, and plaintiff has always been ready, willing and able to pay defendant $4,051.00, representing half the tax savings for two years, so that the defendant has been deprived of nothing. 24. In response to the quantum meruit theory, plaintiff has always been willing to pay defendant based on its success at the initial assessment :appeal. 25. Plaintiff did not discontinue the appeal as is reflected in the docket. 26. Defendant's contract does not provide for payment to defendant in the event of a sale of the property. WHEREFORE, plaintiff respectfully requests that this Court enter a judgment in favor of plaintiff and against the defendant, striking the lien entered to Misc Book 696, page 2618, and that defendants pay all costs of suit. Respectfully submitted, William L.'-Adler, Esquire Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 July 28, 2004 -4- VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREiN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. Prosperity Development Co ' ,'~o ~ , WITNESSETH: ATLAND$971,420 ,BUILDINGS g~1613g0 ,TOTALS 9,132,$00 OWNER BY: OWNER BY: WITNESS COMMONWEALTH OF PENNSYLVANIA : COUNTY OF : SS: PYSSi0 2002-05761 PROSPERITY DEVELOPMENT CO Reference No..: Case Type ..... : APPEAL - ASSESSMENT Judgment ...... 00 Judge Assigned: ' Disposed Desc.: Cumberland County P-otnenotarv,s Office Page Civil Case Inquiry (vs) THE BOARD OF ASSESSMENT APPPE Filed ..... . 12/03/2002 Time ......... 1148 Execution Date 0/00/0000 Jury Trial .... ....... Disposed Date 0/00/0000 ..... Case Comments ............. ~igher Crt 1 [ Higher Crt 2[i General Index PROSPERITY DEVELOPMENT COMPANY P O BOX 5967 HARRISBURG PA 17110 5967 CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEALS OLD COURTHOUSE 8~ ~OURTHOUSE SQUARE A~L_SLE PA 17013 APPELLANT APPELLEE Attorney Info PYKOSH MICP-A_EL j * Date Entries 12/03/2002 ............. FIRST ENTRY .............. ~?~__A~__ APPEAL FROM CUMBERLAND COUNTY BOARD OF ASSESSMENT 12/09/2002 ~LO~N~Oo~NNTM~T~ATED 12/5/02 - IN RE PETITION A/krO NOTiC~-~ ON OF MICHAEL j SAID APP PYKOSH ESQ - THE COUR EAL AND HEREBY ESTABLISHED A DE NOVO HEARING ©NT~C~PTS  U~_~ECTONS MATTER THEREFOR m0 BE HELD IN CR 10 -- ~url~ lV~l~D 12/9/02 ' 1/27/2o03 .... AREA SCHOOL DISTRICT 2/1 /2oo3 .................................... ~E ABOVE CAPTIONED MATmER SHCEDULED ~ .......... E_- HEARING iN A~E MATTER IS CONTIN~ED'GENEP. ALLY AT ~"~ ~/z~/u~ zs CANCELED .AND ~HE CO _~ -. ~ CALL OF ANY PAR,v _ U~T J WESLEY OLER JR J COPz:S ~ILED 2/21/03 -- BY .............. LAST EN * m==o . A~e Escrow Information ** .... & De~._s Bec Ba! pvrn~s/~i ~n~ ~=~ * APPEAL MISt 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE I0.00 10.00 ........ 00 55.5o 55.5o ...... ******************************************************************************** * End of Case Information TRUE COPY FROM RECORD In T.~-tim~-~.. wher~f, t ~ere u~ ~ ~ ~ Thi~day Of~ ~, ~ CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attomey for Plaintiff, hereby certify on the Z_.-~ day of ,J_~, 2004, I served a copy of the within Petition and Rule upon the following person by first class mail, postage prepaid, addressed as follows: Lowell R. Gates, Esquire GATES, HALBRUNER & HATCH, P.C. 1013 Mum~a Rd. Suite 100 Lemoyne, PA 17043 ~ William L. Adler, Esquire -6- Gates, Halbruner & Hatch, P.C. By: Albert N. Peterlin, Esquire Attorney ID No. 84180 Lowell R. Gates, Esquire Attorney ID No. 46779 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (717) 731-9627 facsimile a.peterlin @ qateslawfirm.com Attorneys for Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA PROSPERITY DEVELOPMENTCO., : Plaintiffs, .. .. V. .' : ROTHMAN, sCHUBERT & REED : REALTORS, A PARTNERSHIP, : : Defendant. : CIVIL ACTION - EQUITY NO. 03-5856 DEFENDANT'S MOTION FOR LEAVE TO AMEND ANSWFR AND COUNTERCLAIM Defendant, Rothman Schubert & Reed Realtors, LLC ("RSR" or "Defendant"), by through its attorneys, Gates, Halbruner & Hatch, P.C., hereby moves the Court to enter an Order granting RSR leave to amend the Answer and Counterclaim pursuant to Pennsylvania Rule of Civil Procedure ("Rule" or "Rules") number 1033. In support of this Motion, the Defendant avers as follows: 1. On or about November 5, 2003, Plaintiff commenced this action by filing of a Complaint. 2. On or about November 26, 2003, Defendant RSR filed an Answer and New Matter in response to the Complaint. 3. On or about December 15, 2003, Plaintiff filed a reply to RSR's Counterclaim. On or about July 28, 2004, Plaintiff filed a Motion for Judgment on the Pleadings. 5. Defendant desires to amend its answer in order to more clearly set forth its defenses and to assert an additional cause of action. A t~'ue and correct copy of the proposed Amended Answer, New Matter and Countemlaims is attached hereto as Exhibit "A" and incorporated herein by reference as though set forth in full. 6. Defendant avers that the amendment of the answer will further judicial economy and clearly set forth matters in contention. 7. Defendant's sought the concurrence of counsel for Plaintiff who declined to concur in this Motion. 8. Rule 1033 permits a party to amend their pleading by leave of court. 9. Amendments are to be liberally permitted. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, requests the Court enter an Order granting its motion for leave to amend its Answer and Countemlaims pursuant to Rule 1033. Date: August 12, 2004 By: Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. A be" t' N. F e er in, E:sc ui, Attorneys for Defendant 2 CERTIFICATE OF SERVICE I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing Defendant's Motion for Leave to Amend Answer and Counterclaim has been served this day upon the following counsel of record by United States first class mail, postage prepaid, addressed as follows: William L. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, PA 17108 Attorneys for Plaintiff Date: August 12, 2004 GATES, HAI. BRUNER & HATCH, P.C. By: Albert-N. Pe~lJn, E~q~'ir~- Attorneys for Defendant Gates, Halbruner & Hatch, P.C. By: Albert N. Peterlin, Esquire Attorney ID No. 84180 Lowell R. Gates, Esquire Attorney ID No. 46779 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (717) 731-9627 facsimile a.peterlin @ qateslawfirm.com Attorneys for Defendant IN THE COURT OF COMMON PLFAS FOR CUMBERLAND COUNTY, PENNSYLVANIA PROSPERITY DEVELOPMENT CO., : Plaintiffs, : : V. " ,, ROTHMAN, SCHUBERT & REED : REALTORS, A PARTNERSHIP, : : Defendant. : CIVIL ACTION - EQUITY NO. 03-5866 AMENDED ANSWER, NEW MATTER AND COUNTERCLAIMS Defendant, Rothman Schubert & Reed Realtors, LLC ("RSR" or "Defendant"), by through its attorneys, Gates, Haibruner & Hatch, P.C., hereby responds to the Complaint of Plaintiff, Prosperity Development Company ("Prosperity" or "Plaintiff"), in accordance with the numbered paragraphs, as follows: 1. Admitted. 2. Admitted in part, denied in part. It is admitted that RSR operated as a Pennsylvania general partnership prior to May, 2002. All other averments contained in this paragraph are specifically denied, wherefore, proof, if relevant, is demanded at trial. By way of further response, the structure of RSR was changed in May, 2002 from a general partnership to a Pennsylvania limited liability company with its principal offices located at 3 Lemoyne Drive, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Admitted. 4. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof arE; specifically denied. 5. Denied. The averments contained in this paraLgraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 6. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 7. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 8. Admitted. 9. Admitted. 10. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 11. Denied. Plaintiff, by and through its attorney, Michael J. Pykosh, Esquire ("Pykosh"), filed an appeal on its own behalf with the Cumberland County Board of Assessment (the "Board") of the assessment of certain real estate common identified as 407 through 431 North 21st Street, Camp Hill, Cumberland County, Pennsylvania (the "Property"). 12. Admitted. 2 13. Admitted in part, denied in part. It is admitted only that Plaintiff and RSR retained the services of Pykosh, an attorney-at-law, to represent Plaintiff in its appeal of the assessment of the Property to the Board. Ail other averments contained in this paragraph are specifically denied, wherefore, proof, if releva~nt, is demanded at trial. 14. Admitted. 15. Admitted. 16. Admitted in part, denied in part. It is admitted only that the Board reduced the assessment of the Property from nine million one hundred thirty-two thousand eight hundred and 00/100 dollars ($9,132,800.00) to eight million eight hundred fifty thousand and 00/100 dollars ($8,850,000.00). All other averments contained in this paragraph are specifically denied, wherefore, proof, if relevant, is demanded at trial. By way of further response, it is specifically denied that the reduction of the assessment was a result of the review of the referenced 1998 Court Order. 17. Denied. At all times relevant hereto, Plaintiff contemplated appealing any decision entered by the Board as evidenced by paragraph 2 of the Consulting Agreement (the "Consulting Agreement") dated April 4, 2002 entered into by and between Plaintiff and RSR. 18. Denied. Prosperity, by and through its attorney, Pykosh, filed the necessary appeal papers on its own behalf. 19. Denied. After reasonable investigation, RSR is without information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph, wherefore, proof, if relevant, is demanded at trial. 20. Denied. Subsequent to the decision of the Board, the Appeal was filed 3 with the Court of Common Pleas on behalf of Prosperity by its attorney, Pykosh. By way of further response, thereafter, Plaintiff entered into an Agreement of Sale regarding the sale of a portion of the Property for an amount making it impossible to obtain a reduction or further reduction in the tax assessed value of the Property, to successfully continue the Appeal or otherwise impairing RSR's ability to proceed pursuant to the Consulting Agreement. NEW MA'FI'ER IN THE FORM OF AFFIRMATIVE DEFENSES 21. RSR hereby incorporates by reference the answers to paragraphs 1 through 20 as though fully set forth herein. 22. Plaintiff has failed to state a claim against RSR upon which relief can be granted. 23. Plaintiff's claims are barred by failure of consideration where it has failed to perform its obligations pursuant to Paragraph 4 of the parties' agreement. 24. Plaintiff's claims are barred by the doctrine of unclean hands. As a matter of equity, Plaintiff's claims should not be heard because, as more fully described in RSR's Counterclaims following hereto, Plaintiff, inter alia, entered into an Agreement of Sale after entering into the Consulting Agreement and which Agreement of Sale made it impossible for RSR to successfully reduce or further reduce the tax assessed value of the Property or to otherwise proceed successfully pursuant to the Consulting Agreement. 25. Plaintiff has failed to satisfy all conditions precedent and/or subsequent to recover on its claims where Plaintiff, inter alia, entered into an Agreement of Sale after 4 entering into the Consulting Agreement and which Agreement of Sale made it impossible for RSR to successfully reduce or further reduce the tax assessed value of the Property or to otherwise proceed pursuant to the Consulting Agreement. 26. Plaintiff's claims are barred, in whole or in parl, by the applicable statutes of limitations and/or doctrine of laches. 27. Plaintiff's claims are barred, in whole or in part, by the doctrine of estoppel. 28. 29. Plaintiff's claims are barred by the doctrine of justification. Plaintiff's claims are barred and/or reduced by the doctrine of impossibility of performance and/or where the actions of Plaintiff constitute an intervening cause making it impossible for RSR to successfully reduce or further reduce the assessment of the Property or to otherwise proceed pursuant to the Consulting Agreement. 30. Plaintiff's claims are barred as a result of its breach of the Consulting Agreement and/or its breach of the implied covenant of good faith and fair dealing existing in the Consulting Agreement. COUNTERCLAIMS 31. RSR hereby incorporates by reference paragraphs 21 through 30 as though fully set forth herein. 32. On April 4, 2002, Plaintiff and RSR entered into the Consulting Agreement. 33. Pursuant to the Consulting Agreement, RSR agreed to assist Plaintiff in reducing the tax assessed value of the Property. 34. Pursuant to Paragraph 5 of the Consulting .Agreement, RSR's fee was 5 contingent upon the reduction of the tax assessed value of the Property and the amount of which constituted a percentage of such reduction in the assessment. 35. Pursuant to Paragraph 9 of the Consulting Agreement, Plaintiff retained the right to choose legal counsel, the costs of which were to be borne by RSR. 36. In April, 2002, the tax assessed value of the Property was nine million one hundred thirty-two thousand eight hundred and 00/100 dollars ($9,132,800.00). 37. On April 12, 2002, an appeal of the tax assessed value of the Property was filed with the Board. 38. On October 14, 2002, the Board held a hearing regarding the assessment of the Property. 39. At the October 14, 2002 hearing before the Board, RSR provided evidence that the tax assessed value of the Property should be seven million and 00/100 dollars ($7,000,000.00). 40. The Board reduced the assessment of the Property to eight million eight hundred fifty thousand and 00/100 dollars ($8,850,000). 41. Pursuant to Paragraph 2 of the Consulting Agreement, an unsatisfactory determination of the Board's decision may be appealed to the Court of Common Pleas or to higher courts of Pennsylvania only upon the agreement of the parties. 42. On December, 3, 2002, the decision of the Board was appealed (the "Appeal") by Plaintiff, by and through its attorney, Pykosh, in the Court of Common Pleas, Cumberland County. 43. A hearing was scheduled on the Appeal for March 19, 2003. 44. The Board, by and through its attorney, Steven D. Tiley, Esquire (the 6 "Solicitor") continued the hearing to a later date. 45. In order to proceed successfully with the Appeal, Plaintiff was required to provide its financial information for 2002 including, but not limited to, its 2002 federal and state income tax returns. 46. On July 24, 2003 and prior to the conduct of the continued hearing, Plaintiff entered into an agreement of sale ("Agreement of Sale") to sell a certain portion of the Property for approximately five million and 00/100 dollars ($5,000,000) to Holy Spirit Corporation ("Holy Spirit"), a Pennsylvania non-profit corporation. 47. Thereafter, RSR informed Plaintiff that certaiin financial information for the tax year 2002 including, but not limited to, its 2002 federal, and state tax returns was required in order to proceed with the Appeal. 48. At that time, Plaintiff informed RSR of the sale of the Property, represented that the Appeal was moot and refused to provide any of the requested financial information in breach of Paragraph 4 of the Consulting Agreement. 49. Pursuant to Paragraph 4 of the Consulting ,Agreement, Plaintiff agreed to cooperate fully with RSR in the appeal of the tax assessed value of the Property. 50. Upon information and belief, Plaintiff solicited the sale of all or a portion of the Property prior to, contemporaneous with or subsequent to the execution of the Consulting Agreement by Plaintiff and RSR. 51. The sale of the certain portion of the Property by Plaintiff at the price set forth in the Agreement of Sale or the existence of the Agreement of Sale makes it impossible to reduce or further reduce the assessment of the Property pursuant to the Appeal or to otherwise proceed pursuant to the Consulting Agreement. 7 52. At all times relevant hereto, RSR has proceeded promptly with its obligations pursuant to the Consulting Agreement. 53. Plaintiff's intentional conduct in entering into t~i~e Agreement of Sale despite having entered into the Consulting Agreement with RSR and refusal to provide financial information as required makes it impossible to re(~luce or further reduce the assessment of the Property pursuant to the Appeal or to ol:herwise proceed pursuant to theConsultingAgreement. COUNTI. BREACH OF CONTRACT 54. RSRherebyinc°rp°ratesbyreferencetheparagraphs21thr°ugh53as though fully set forth herein. 55. Plaintiff breached the Consulting Agreement by failing to cooperate with RSR as required by Paragraph 4. 56. Plaintiff failed to cooperate with RSR in accordance with the Consulting Agreement where Plaintiff sold the Property prior to a final determination being entered regarding its assessment and failed to produce necessa~Y financial information making obtaining a reduction or further reduction in the assessment impossible or otherwise impairing RSR's ability to proceed pursuant to the Consulting Agreement. 57. As a direct and proximate cause of Plaintiff's actions, RSR has suffered damages and expenses in connection with the Consulting Agreement and related appeal of the Property's assessment. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, demands this Honorable Court enter judgment in its favor as to Count I of its Counterclaims and 8 against Plaintiff, Prosperity Development Company, for damages, together with interest, costs, attorneys fees, and such other relief as the Court may deem just and proper. COUNT II. UNJUST ENRICHMENT - QUANTUM MERUIT 58. RSR hereby incorporates by reference paragraphs 21 through 57 as though fully set forth herein. 59. RSR conferred a benefit upon Plaintiff, by, inter alia, providing consulting services related to proceeding with the appeal of the tax assessed value of the Property. 60. Plaintiff appreciated the benefit of the consu~lting services provided to them without paying for the consulting services rendered on their behalf. 61. Plaintiff accepted and retained the benefits of the consulting services provided by RSR. 62. It would be inequitable for Plaintiff to retain the benefit of the consulting services provided to them by RSR without payment of the value of the services rendered. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, demands this Honorable Court enter judgment in its favor as to Count II of its Counterclaims and against Plaintiff, Prosperity Development Company, for damages, together with interest, costs, attorneys fees, and such other relief as the Courl: may deem just and proper. COUNT III. BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 63. RSR hereby incorporates by reference paragraphs 21 through 62 as 9 though fully set forth herein. 64. Plaintiff breached the implied covenant of good faith and fair dealing existing in the Consulting Agreement by evading the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and/or interference with or failure to cooperate in RSR's performance. 65. As a direct and proximate cause of Plaintiff's actions, RSR has suffered damages and expenses in connection with Plaintiff's breach of the implied covenant and good faith existing in the Consulting Agreement. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, demands this Honorable Court enter judgment in its favor as to Count III of its Counterclaims and against Plaintiff, Prosperity Development Company, for damages, together with interest, costs, attorneys fees, and such other relief as the Court may deem just and proper. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. Date: By: Albert N. Peterlin, Esquire Attorneys for Defendant 10 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA AU~ 1 7 ~ PROSPERITY DEVELOPMENTCO., : Plaintiffs, Ve ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP, Defendant. CIVIL AC'rlON - EQUITY NO. 03-5856 RULE TO SHOW CAUSF AND NOW, this /~-/~ day of upon consideration of Defendant's Motion for Leave to Amend Answer and Counterclaim, it is hereby ORDERED and DECREED that: ,2004, 2. The respondent shall file an answer to the motion within twenty (20) days of service upon the respondent; 4. upon movant of the answer to the motion; 5. Argument shall be heard on The motion shall be decided under Pa.R.C.P. No. 206.7; and Depositions shall be completed within forty-five (45) days of the service 1. A rule is issued upon the respondents to show cause why the movant is not entitled to the relief requested; ~ of the Cumberland County Courthouse; and 6. Notice of the entry of this order shall be provided to all parties by movant. BY THE COURT: Distribution: /~~' '//''''~'~ J' A~tes,N. Peterlin, Esquire Halbruner & Hatch, P.C., 1013 Mumma Road, Suite 100, Lemoyne, PA 17043 ttomeys for Defendant 2 PRAECIPE FOR LISTING CASE FOR ARG[~ENT (Must be typewritten and sutmaitted in dup[Licate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please 1 ~t the within matter for the next Arg~r~nt Court. CAPTION OF CASE (entire caption must be stated in fu] 1 ) PROSPERITY DEVELOPMENT CO. (pi nlntiff ) ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP ( Defendant ) No. 58-56 Civi3k Equity I 2003 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's d~u~er to c~~nt, etc.): (1) Plaintiff's Motion for Judgment on the Pleadings; and (2) Defendants' Motion to Amend Answer. 2. Identify counsel who will argue case: (a) for plaintiff: William L. Adler, Esquire ia,~, ~=,$: P.O. Box 11933, 125 Locust Street, Harrisburg, PA 17108 (b) for deferrl~nt: Albert N. Peterlin, Esquire ~,~ress: 1013 Mumma Road, Suite 100, Lemoyne, PA 17043 3. I ~ notify all parti~ in writing within t%~ d~m/s that this case has been I i-~ted for arc3ta~-nt. Court Date: September 22, 2004 CERTIFICATE OF SERVICE I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Listing Case for Argument has been served this day upon the following counsel of record by United States first class mail, postage prepaid, addressed as follows: William L. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, PA 17108 Attorneys for Plaintiff Date: August 30, 2004 GATES, HALBRUNER & HATCH, P.C. Albert I~. ~'e,terlin~ E~q~i~tr~ ~'/ Attorneys A~r Defendant Gates, Halbruner & Hatch, P.C. By: Albert N. Peterlin, Esquire Attorney ID No. 84180 Lowell R. Gates, Esquire Attorney ID No. 46779 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (717) 731-9627 facsimile a.peterlin @gateslawfirm.com Attorneys for Defendant IN THE COURT OF COMMON IPLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA PROSPERITY DEVELOPMENT CO., : Vm Plaintiffs, ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP, : Defendant. : CIVIL ACTION - EQUITY NO. 03-5856 AMENDED ANSWER, NEW MATTER AND COUNTERCLAIMS Defendant, Rothman Schubert & Reed Realtors, LLC ("RSR" or "Defendant"), by through its attorneys, Gates, Halbruner & Hatch, P.C., hereby responds to the Complaint of Plaintiff, Prosperity Development Company ("Prosperity" or "Plaintiff"), in accordance with the numbered paragraphs, as follows: 1. Admitted. 2. Admitted in part, denied in part. It is admitted that RSR operated as a Pennsylvania general partnership prior to May, 2002. All other averments contained in this paragraph are specifically denied, wherefore, proof, if relevant, is demanded at trial. By way of further response, the structure of RSR was changed in May, 2002 from a general Partnership to a Pennsylvania limited liability company with its principal offices located at 3 Lemoyne Drive, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Admitted. 4. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 5. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 6. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof ,~re specifically denied. 7. Denied. The averments contained in this paragraph refer to a writing which speaks for itself and any characterizations thereof are specifically denied. 8. Admitted. 9. Admitted. 10. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 11. Denied. Plaintiff, by and through its attorney, Michael J. Pykosh, Esquire ("Pykosh"), filed an appeal on its own behalf with the Cumberland County Board of Assessment (the "Board") of the assessment of certain real estate common identified as 407 through 431 North 21st Street, Camp Hill, Cumberland County, Pennsylvania (the "Property"). 12. Admitted. 2 13. Admitted in part, denied in part. It is admitted only that Plaintiff and RSR retained the services of Pykosh, an attorney-at-law, to represent Plaintiff in its appeal of the assessment of the Property to the Board. All other averments contained in this paragraph are specifically denied, wherefore, proof, if relevant, is demanded at trial. 14. Admitted. 15. Admitted. 16. Admitted in part, denied in part. It is admitted only that the Board reduced the assessment of the Property from nine million one hundred thirty-two thousand eight hundred and 00/100 dollars ($9,132,800.00) to eight million eight hundred fifty thousand and 00/100 dollars ($8,850,000.00). All other averments contained in this paragraph are specifically denied, wherefore, proof, if relevant, is demanded at trial. By way of further response, it is specifically denied that the reduction of the assessment was a result of the review of the referenced 1998 Court Order. 17. Denied. At all times relevant hereto, Plaintiff contemplated appealing any decision entered by the Board as evidenced by paragraph 2 of the Consulting Agreement (the "Consulting Agreement") dated April 4, 2002 entered into by and between Plaintiff and RSR. 18. Denied. Prosperity, by and through its attorney, Pykosh, filed the necessary appeal papers on its own behalf. 19. Denied. After reasonable investigation, RSR is without information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph, wherefore, proof, if relevant, is demanded at trial. 20. Denied. Subsequent to the decision of the Board, the Appeal was filed 3 with the Court of Common Pleas on behalf of Prosperity by its attorney, Pykosh. By way of further response, thereafter, Plaintiff entered into an Agreement of Sale regarding the sale of a portion of the Property for an amount making it impossible to obtain a reduction or further reduction in the tax assessed value of the Property, to successfully continue the Appeal or otherwise impairing RSR's ability to proceed pursuant to the Consulting Agreement. NEW MATTER IN THE FOFIM OF AFFIRMATIVE DEFENSES 21. RSR hereby incorporates by reference the answers to paragraphs 1 through 20 as though fully set forth herein. 22. granted. Plaintiff has failed to state a claim against RSR upon which relief can be 23. Plaintiff's claims are barred by failure of consideration where it has failed to perform its obligations pursuant to Paragraph 4 of the parties' agreement. 24. Plaintiff's claims are barred by the doctrine of unclean hands. As a matter of equity, Plaintiff's claims should not be heard because, as more fully described in RSR's Counterclaims following hereto, Plaintiff, inter alia, entered into an Agreement of Sale after entering into the Consulting Agreement and which Agreement of Sale made it impossible for RSR to successfully reduce or further reduce the tax assessed value of the Property or to otherwise proceed successfully pursuant to the Consulting Agreement. 25. Plaintiff has failed to satisfy all conditions precedent and/or subsequent to recover on its claims where Plaintiff, inter alia, entered into an Agreement of Sale after 4 entering into the Consulting Agreement and which Agreement of Sale made it impossible for RSR to successfully reduce or further reduce the tax assessed value of the Property or to otherwise proceed pursuant to the Consulting Agreement. 26. Plaintiff's claims are barred, in whole or in part, by the applicable statutes of limitations and/or doctrine of laches. 27. estoppel. PiaJntiff's c aims are barred, in whole or in part, by the doctrine of 28. Plaintiff's claims are barred by the doctrine of justification. 29. Plaintiff's claims are barred and/or reduced by the doctrine of impossibility of performance and/or where the actions of Plaintiff constitute an intervening cause making it impossible for RSR to successfully reduce or further reduce the assessment of the Property or to otherwise proceed pursuant to the Consulting Agreement. 30. Plaintiff's claims are barred as a result of its breach of the Consulting Agreement and/or its breach of the implied covenant of good faith and fair dealing existing in the Consulting Agreement. COUNTERCLAIMS 31. RSR hereby incorporates by reference paragraphs 21 through 30 as though fully set forth herein. 32. On April 4, 2002, Plaintiff and RSR entered into the Consulting Agreement. 33. Pursuant to the Consulting Agreement, RSR ~,greed to assist Plaintiff in reducing the tax assessed value of the Property. 34. Pursuant to Paragraph 5 of the Consulting Agreement, RSR's fee was 5 contingent upon the reduction of the tax assessed value of the Property and the amount of which constituted a percentage of such reduction in the assessment. 35. Pursuant to Paragraph 9 of the Consulting Agreement, Plaintiff retained the right to choose legal counsel, the costs of which were to be borne by RSR. 36. In April, 2002, the tax assessed value of the Property was nine million one hundred thirty-two thousand eight hundred and 00/100 dollars ($9,132,800.00). 37. On April 12, 2002, an appeal of the tax assessed value of the Property was filed with the Board. 38. On October 14, 2002, the Board held a hearing regarding the assessment of the Property. 39. At the October 14, 2002 hearing before the Board, RSR provided evidence that the tax assessed value of the Property should be seven million and 00/100 dollars ($7,000,000.00). 40. The Board reduced the assessment of the Preperty to eight million eight hundred fifty thousand and 00/100 dollars ($8,850,000). 41. Pursuant to Paragraph 2 of the Consulting Agreement, an unsatisfactory determination of the Board's decision may be appealed to the Court of Common Pleas or to higher courts of Pennsylvania only upon the agreement of the parties. 42. On December, 3, 2002, the decision of the Board was appealed (the "Appeal") by Plaintiff, by and through its attorney, Pykosh, in the Court of Common Pleas, Cumberland County. 43. A hearing was scheduled on the Appeal for March 19, 2003. 44. The Board, by and through its attorney, Steven D. Tiley, Esquire (the 6 "Solicitor") continued the hearing to a later date. 45. In order to proceed successfully with the Appeal, Plaintiff was required to provide its financial information for 2002 including, but not limited to, its 2002 federal and state income tax returns. 46. On July 24, 2003 and prior to the conduct of the continued hearing, Plaintiff entered into an agreement of sale ("Agreement ,of Sale") to sell a certain portion of the Property for approximately five million and 00/100 dollars ($5,000,000) to Holy Spirit Corporation ("Holy Spirit"), a Pennsylvania non-profit corporation. 47. Thereafter, RSR informed Plaintiff that certain financial information for the tax year 2002 including, but not limited to, its 2002 federal and state tax returns was required in order to proceed with the Appeal. 48. At that time, Plaintiff informed RSR of the sale of the Property, represented that the Appeal was moot and refused to prrevide any of the requested financial information in breach of Paragraph 4 of the Consulting Agreement. 49. Pursuant to Paragraph 4 of the Consulting Agreement, Plaintiff agreed to cooperate fully with RSR in the appeal of the tax assessecJ value of the Property. 50. Upon information and belief, Plaintiff solicited the sale of all or a portion of the Property prior to, contemporaneous with or subsequent to the execution of the Consulting Agreement by Plaintiff and RSR. 51. The sale of the certain portion of the PropeR/by Plaintiff at the price set forth in the Agreement of Sale or the existence of the Agreement of Sale makes it impossible to reduce or further reduce the assessment of t,he Property pursuant to the Appeal or to otherwise proceed pursuant to the Consulting Agreement. 7 52. obligations 53. At all times relevant hereto, RSR has proceeded promptly with its 3ursuant to the Consulting Agreement. Plaintiff's intentional conduct in entering in,to the Agreement of Sale despite having entered into the Consulting Agreement with RSR and refusal to provide financial information as required makes it impossible to reduce or further reduce the assessment of the Property pursuant to the Appeal or to otherwise proceed pursuant to the Consulting Agreement. COUNTI. BREACH OFCONTRACT 54. RSR hereby incorporates by reference the paragraphs 21 through 53 ~_s though fully set forth herein. 55. Plaintiff breached the Consulting Agreeme~t by failing to cooperate with RSR as required by Paragraph 4. 56. Plaintiff failed to cooperate with RSR in accordance with the Consulting Agreement where Plaintiff sold the Property prior to a final determination being entered regarding its assessment and failed to produce necessary, financial information making obtaining a reduction or further reduction in the assessment impossible or otherwise impairing RSR's ability to proceed pursuant to the Consulting Agreement. 57. Plaintiff breached the implied covenant of good faith and fair dealing existing in the Consulting Agreement by evading the spirit ,of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and/or interference with or failure to cooperate in RSR's Performance. 58. As a direct and proximate cause of Plaintiff's actions, RSR has suffered 8 damages and expenses in connection with the Consulting Agreement and related appeal of the Property's assessment. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, demands this Honorable Court enter judgment in its favor as to Count I of its Counterclaims and against Plaintiff, Prosperity Development Company, for damages, together with interest, costs, attorneys fees, and such other relief as the Court may deem just and proper. COUNT II. UNJUST ENRICHMENT - QUANTUM MERUIT 59. RSR hereby incorporates by reference paragraphs 21 through 58 as though fully set forth herein. 60. RSR conferred a benefit upon Plaintiff, by, .inter alia, providing consulting services related to proceeding with the appeal of the tax assessed value of the Property. 61. Plaintiff appreciated the benefit of the consulting services provided to them without paying for the consulting services rendered on their behalf. 62. Plaintiff accepted and retained the benefits of the consulting services provided by RSR. 63. It would be inequitable for Plaintiff to retain the benefit of the consulting services provided to them by RSR without payment of the value of the services rendered. WHEREFORE, Rothman Schubert & Reed Realtors, LLC, demands this Honorable Court enter judgment in its favor as to Count II of its Counterclaims and against Plaintiff, Prosperity Development Company, for damages, together with interest, costs, attorneys fees, and such other relief as the Coud: may deem just and proper. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. 2004 ~/~'./.~ , Date: September 17, By: ~/~ ~. ,~,~ AID-eft N. P~terlin, Esqui'¢~ Attorneys for Defendant 10 VERIFICATION I, William F. Rothman, verify that I am a member of Rothman, Schubert & Reed Realtors, LLC and am authorized to execute this Verification on its behalf; that I have reviewed the foregoing Amended Answer, New Matter and Countemlaims and verify the facts contained therein are true and correct to the best of my knowledge, information and belief. I further verify that these statements made by me are subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. By: Rothman, SChubert & Reed Realtors, LLC CERTIFICATE OF SERVICF I, Albert N. Peterlin, Esquire, hereby certify that a true and correct copy of the foregoing Answer, New Matterand Counterclaims has been served this day upon the following counsel of record by United States first class mail, postage prepaid, addressed as follows: William L. Adler, Esquire Adler & Adler P.O. Box 11933 125 Locust Street Harrisburg, PA 17108 Attorneys for Plaintiff Date: September 17, 2004 By: GATES, HALBRUNER & HATCH, P.C. A'I~. ~e{~n, 'Esqu{re'- Attomeys for Defendant PROSPERITY DEVELOPMENT CO. Plaintiffs ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - EQUITY : : NO. 03-51356 : PLAINTIg'F'S REPLY TO AMENDED NEW MATTER AND COUNTERCLAIM OF DEFEND____ANT AND NOW COMES the plaintiff, Prosperity Development Co., through its attorneys, Adler & Adler, and respectfully represents the following: COUNTI BREACH OF CONTRACT 21. No response required. 22. Denied. This is a legal conclusion to which no response is required. 23. Denied. This is a legal conclusion to which no response is required. 24. Denied. This is a legal conclusion to which no response is required. Plaintiff entering into an Agreement of Sale was not prohibited under the ag~;eement with defendant. What the Agreement of Sale demonstrated was that the appraisal[ of defendant was unreasonably IOW. 25. Denied. This is a legal conclusion to which no response is required. By way of further answer thereto, what made it impossible for defendant to proceed was the fact that the sale price in the Agreement of Sale was significantly higher than what was reflected in the appraisal, indicating the defectiveness of the appraisal. 26. Denied. This is a conclusion of law to which no response is required. -3.- 27. Denied. This is a conclusion of law to which no response is required. 28. Denied. This is a conclusion of law to which no response is required. 29. Denied. This is a conclusion of law to which no response is required. 30. Denied. This is a conclusion of law to which no response is required. REPLY TO COUNTERCLAIM 31. See replies set forth above. 32. Admitted. 33. Admitted. 34. Admitted. 35. Admitted. By way of further answer thereto, plaintiff did not retain counsel. Defendant retained counsel and the appraiser. 36. Admitted. 37. Admitted. 38. Admitted. 39. Admitted. 40. Admitted. 41. Admitted. 42. Admitted in part and denied in part. It is admitted that the decision was appealed on that date. Defendant had actually retained Pykosh as the attorney to be used for the appeal. 43. Admitted. 44. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 45. Denied. The appraisal was complete at the time of the initial hearing. Plaintiff is unaware of the request for this 2002 tax information at this time. --2-- 46. Denied. The sale price was $4,398,513.00. 47. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 48. Denied. After reasonable investigation defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. 49. Admitted. By way of further answer thereto, plaintiff did cooperate fully, and only limited relief was granted at the initial appeal. 50. Denied. Plaintiff started discussions with Holy Spirit Corporation in February of 2003. 51. Denied. It is not known whether a further reduction could have been obtained. It is known that the sale price ultimately obtained for the Property demonstrates that the appraisal of defendants was unreasonably low. 52. Denied. It is believed and therefore averred that the hearing before the court of common pleas was continued twice at the request of Michael Pykosh. 53. Denied. Plaintiff's conduct had nothing to do with defendant's failure to reduce the assessment. The sale reflects fair market value. It is believed that the defendant's appraisal was so low because its fees were contingent upon that. This sale was only part of what was included in the appraisal. Parts of the property included in the appraisal of defendants were valued far below what they had actually been sold for years prior. Count I Breach of Contract 54. See replies set forth above. 55. Denied. Defendant had all it needed to proceed with t]he appeal. Defendant had presented this material at the initial hearing. 56. Denied. There was no prohibition against sale in the Contract. It is further denied that plaintiff failed to provide all material requested. 57. Denied. This is a legal conclusion to which no response is required. 58. Denied. Plaintiff had nothing to do with defendant's failure. Defendant submitted a low bali appraisal at the initial appellate level. It was not accepted. That was the reason for the failure. Count II. Unjust Enrichment - Quantum Meruit 59. See replies set forth above. 60. Denied. Defendant did not confer a benefit on plaintiff. Defendant was unsuccessful in its efforts. 61. Denied. This contract was based on a contingent fee. Plaintiff has always stood ready, willing and able to pay fees due to defendant based on the contract based on its limited success at the initial appeal level and has repeatedly offered $4,051.00 to defendant as its calculation of the potential tax savings over two years. 62. Denied. Plaintiff entered into the Consulting Agreement. Defendant failed to perform in a satisfactory manner. 63. Denied. Plaintiff only received the benefit of the initial reduction from the October 14, 2002 hearing. WHEREFORE, plaintiff respectfully requests that the lien entered to Misc. Book 696, Page pay all costs of suit. ~ 2618, be stricken, and that defendants ~.~/(//~_l~//.~A/0ddler,~s,~e~ Wdliam- ~ q - Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 -6- CERTIFICATE OF SERVICE I, William L. A. dler,,~qnire, Attorney for Plainti.f~, hereby certify on the ~c.- '~ l-. x. ~,..~r~.~ 2006~II served a copy of the within Reply to ~ounterclai~day of wf.~upofi the following person by first class mail, postage prepaid, addressed as follows Albert Peterlin, Esquire GATES, HALBRUNER & HATCH, P.C. 1013 Mu~a Rd. Suite 100 Lemoyne, PA 17043 ~ (~ ~ William L. Adler, Esquire -6- VERIFICATION I VERIFY THAT THE STATEMENTS MIADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. Prosperity Development Comp~ by: -6- PROSPERITY DEVELOPMENT CO. Plaintiffs v. ROTHMAN, SCHUBERT & REED REALTORS, A PARTNERSHIP Defendant PRAECIPE Dear Prothonotary: : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION - EQUITY : NO. 03-58-56 Equity Please mark the above action settled and discontinued with prejudice. wJL €JlA William L. Adler, Esquire Thank you. Dated: January 18, 2005 Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 "'-'- h' C.:;.) ,--) ;;.Jl C_ ,"'\ '\..'." --j'j {~::::) \".) ':" - - PROSPERITY DEVELOPMENT CO. Plaintiffs ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA C:h~'CI'L-'~C I:I OtN - EQUITY NO. NOTICE 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 written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. 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 Ave. Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted an la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o pot abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado gue si usted no se defienda, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y pot cualquier gueja o alivio gue es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUNENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, PA 17013 (717) 249~3166 PROSPERITY DEVELOPMENT CO. Plaintiffs ROTHMAN, SCHUBERT & REALTORS, A PARTNERSHIP Defendant REED : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY COMPLAINT AND NOW COMES the plaintiff, Prosperity Development Co., through its attorneys, Adler & Adler, and respectfully represents the following: 1. Prosperity Development Company, is a Pennsylvania general partnership with a principal place of business located at 2525 North Seventh Street, Harrisburg, PA. 2. Rothman, Schubert & Reed is a partnership with a principal place of business located at 355 N. 21st Street, Suite 102, Camp Hill, PA 17011. 3. On April 23, 2003, defendants entered the Agreement attached as Exhibit "A" (hereinafter, the Agreement) in the Office of the Recorder of Deeds in and for Cumberland County, which Agreement was recorded in Misc. Book 696, page 2618. 4. Pursuant to its terms, entry of the Agreement on the record acts as a lien against the Property located in Camp Hill Borough, Cumberland County, Pennsylvania, identified as Tax Parcel 09-20-1854-004 and known as 407-431 North 21st Street, Camp Hill, PA. (Hereinafter, the Property) 5. Paragraph 6 of the Agreement states This Agreement shall act as a lien upon the subject properties to the extent of any sums due and owing hereunder, and as evidence of such lien, RSR may file this Agreement in the Recorder of Deeds Office in and for Cumberland County. 6. Paragraph 5 of the Agreement states In each of the two complete years following final determination of the appeal, owner shall pay to RSR a sum equal to fifty percent of any tax reduction resulting from the appeal. 7. Pursuant to paragraph 5, nothing is duc under the Agreement until there is a final determination. 8. Attached as Exhibit "B" is a certified copy of the docket from the Court of Common Pleas of Cumberland County, PA in this matter. 9. The initial determination by the County Board of Appeals was appealed by the plaintiffs. 10. Because there is no final determination, there is nothing due under the Agreement, and the lien should be stricken. 11. RSR filed an assessment appeal for Prosperity on the above property on April 12, 2002. 12. This case was scheduled for a hearing before the assessment appeal board on August 26, 2002. It was continued until October 14, 2002. 13. At that time Michael Pykosh, Esquire, represented Prosperity at the hearing. He had been retained by defendant for this purpose along with RSR, Appraisers and Analyst, as the appraiser. 14. A decision was rendered by the Board of Appeals on October 31, 2002. 15. A copy of the notes from thc Board of Assessment Appeal hearing is attached as Exhibit "C." 16. The Board did reduce the assessment from $9,132,800.00 to $8,850,000.00 as a result of the review of a 1998 court order. 17. William Rothman convinced Mr. Hughes and Mr. Freedman that they should appeal this decision. They agreed in that they saw no reason at that time not to appeal, since it was at the risk of RSR. 18. RSR filed the necessary appeal papers on December 3, 2002. 19. A hearing was set on thc appeal for March 19, 2003. On February 3, 2003, Stephen Tilcy filed a motion for a continuance, and Mr. Pykosh consented to the motion. 20. No other action has been taken to the knowledge of Prosperity since the Board of Appeals made its decision. WHEREFORE, plaintiff respectfully requests that the lien entered to Misc Book 696, pagc 2618, be stricken, and that defendants pay all costs of suit. Respectfully submitted, William Attorney for Plaintiff ADLER & ADLER P.O. Box 11933 125 Locust St. Harrisburg, PA 17108 717-234-3289 Supreme Court ID Number 39844 WITNESSETIt: OVCI~R BY: OWNER WITNESS BY: COMMONV/EALTH OF p!~NNS~t~VANIA : COUNTY OF : SS: SS: PYS510 2002-05761 PROSPERITY DEVELOPMENT CO Reference No..: Case TvDe ..... : APPEAL - ASSESSMENT Ju~gmeh% ..... ~ .00 Judge Assignea: Disposed Desc.: ............ Case Comments ............. Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry ' ' (rs) THE BOARD OF ASSESSMENT APPPE Filed ........ : 12/03/2002 Time ......... : 1:48 Execution Date 0/00/0000 Jury Trial .... Disposed Date. 0/00/0000 Higher Crt 1.: Higner Crt 2.: General Index Attorney Info PROSPERITY DEVELOPMENT COMPANY APPELLANT PYKOSH MICHAEL J P O BOX 5967 FIARRISBURG PA 17110 5967 CUMBERLAND COUNTY APPELLEE BOARD OF ASSESSMENT APPEALS OLD COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE PA 17013 * Date Entries * 12/03/2002 12/09/2002 1/27/2003 2/14/2003 2/14/2003 2/20/2003 ............. FIRST ENTRY .............. PETITION AND APPEAL FROM CUMBERLAND COUNTY BOARD OF ASSESSMENT APPEAL AND ON MOTION OF MICHAEL J PYKOSH ESQ - THE COURT ACCEPTS SAID APPEAL AND HEREBY ESTABLISHED A DE NOVO HEARING ON THE SUBJECTONS MATTER THEREFOR TO BE HELD IN CR 1 OF THE CUMBERLAND COUNTY COURTHOUSE ON 3/19/Q3.AT 9:30 AM - BY THE COURT J WESLEY OLER JR J COPIES MAILED 12/9/02 NOTICE OF INTERVENTION BY DONNA S WELDON ESQ FOR EAST PENNSBORO AREA SCHOOL DISTRICT MOTION FOR GENEHAL CONTINIIANCE - BY STEPHEN D TILEY ESQ ANSWER - BY STEPHEN D TILEY ESQ THE ABOVE CAPTIONED MATTER SHCEDULED FOR 3/19/03 IS CANCELED AND THE MATTER IS CONTINUED GENERALLY AT THE CALL OF ANY PARTY - BY THE COURT J WESLEY OLER JR J COPIES MAILED 2/21/03 .............. LAST ENTRY .............. * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adj End Bal * APPEAL MISC TAX ON APPEAL SETTLEMENT AUTOMATION FEE JCP FEE 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 10.00 10.00 .00 55.50 55.50 .00 * End of Case Information TRUE COPY FROM RECORD In TestilT~my whereof, I here unto set my and the, seal of ~id Cou~_._at Carlisle, Th. 2~, day of~ .4~.~ CUMBE~LAN~ COUNTY ~OA~ OF ~SSESS~lrkF~ALS t-. PROPERTY OWNER REPRESEIHTED BY ARCI~L NUMBER FAIR MARKET VALUE: DATE 0c+010~r. Iq -- /0 Old New q ~t~00 Clean and Green ~ 0 PROPER~ OWNER S OPINION AND EVIDENCE OF MARKET VALUE: ~$q0~ooo DECISION ORDER: $~00~000 C~cb,N ~,~ 0q0¢000 -3~ 2-,,, ~,lO~, 000-53t UU OECISION DATe I0 iq ~, DECISION MAILED NOTES Form CUM214 (v. I) SECRETARY VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: Prosperity Development Company /