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YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND
AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU HUST
TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE
ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY
AN ATTORNEY AND FILING IN WRITIIlG WITH THE COURT YOUR DEFENSES
OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. '!DU ARE WARNED
THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WI!rHOUT YOU AND
A JUDGMENT MAY BE ENTERED AGAINS~ 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 ~y LOSS HONEY
OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. ij
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"
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TF.LEPHONE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
YOU DO
OR THE
HELP.
/
CLMBERLAND mUNTI' BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE PA 17013
717 249 3166
o
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
Harry Meyers
220 Cumberland Pkwy. Sts. 6 and 7
Mechanicsburg, P A 17055
Larry Pepper
220 Cumberland Pkwy. Sts. 6 and 7
Mechanicsburg, P A 17055
Paul Allen
220 Cumberland Pkwy, Sts, 6 and 7
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
.s ..t"Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill L.P.
YKacey Court
Suite 20 I
Mechanicsburg, P A 17055
DEFENDANTS
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CIVIL DNISION
JURY TRIAL DEMANDED
No.C>4-'J.(..7 C;v~t-r~
COMPLAINT
Filed on Behalf of the: PLAINTIFF
Counsel of Record for Plaintiff:
Christopher S. Lucas 77903
Christopher S. Lucas & Associates
220 Cumberland Pkwy. Ste. 4
Mechanicsburg, P A 17055
717,691.0203 telephone
717.691.3130 facsimile
cslucas({i)Iucashealthlaw.com email
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy, Ste 8
Mechanicsburg, P A 17055
Harry Meyers
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
Larry Pepper
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
Paul Allen
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 A' Kacey Court
Suite 20 I
Mechanicsburg, P A 17055
Winding Hill L.P.
5 -i'" Kacey Court
Suite 201
Mechanicsburg, P A 17055
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COMPLAINT
CIVIL DIVISION
JURY TRIAL DEMANDED
No,
AND NOW come the above named Plaintiffs (hereinafter sometimes referred to
as "unit owners"), by and through their attorneys in this matter, Christopher S. Lucas &
Associates, and say:
THE PARTIES
I. Winding Hill, L.P (hereinafter sometimes referred to as "Declarant") is a
Pennsylvania limited partnership with a principal place of business at I Kacey
Court, Suite 201, Mechanicsburg, PA 17055.
2. Eric Huck is, and at all relevant times was, a general partner of and investor in the
Declarant, Winding Hill, L.P., as well as president of Old Schoolhouse, an Office
Condominium and maintains an office at 1 Kacey Court, Suite 201
Mechanicsburg, P A 17055.
3. Harry Meyers, Larry Pepper and Paul Allen, as partners, purchased from the
Declarant business condominium units 6 and 7 in 1993.
4. Melanie DeMartyn purchased from the Declarant business condominium unit
number five on April 24, 2002.
5. Mark Wilson purchased from the Declarant business condominium unit number 8
on or about July I, 2002.
6. Old Schoolhouse originally included LOT A, LOT B and LOT D, All business
condominium units are built on LOT A. LOT B and LOT D are the subjects of
this litigation.
THE HOMESTEAD NOTE AND MORTGAGE
7. Upon information and belief, on or before August 12, 1992, the Declarant
acquired a fee interest in certain parcels of real estate hereinafter referred to as
LOT B and LOT D as shown on the PLOT PLAN attached as Exhibit I.
8. Upon information and belief, in exchange for acquiring the interest in LOT B and
LOT D, the Declarant issued a note to Homestead Savings and Loan ("Homestead
Note") in the principal amount of approximately $305,000.
9. Upon information and belief, the Homestead Note was secured by an interest
bearing mortgage held by Homestead Savings and Loan on LOT B and LOT D.
10. Upon information and belief, Homestead Savings and Loan transferred its interest
in the Homestead Note and mortgage to Homestead Trust Number Five, an entity
created by the Resolution Trust Corporation.
II. Upon information and belief, the Declarant never paid any interest or principal on
the Homestead Note and mortgage obligation.
12. Upon information and belief, as of November I, 2002, the outstanding interest
and principal was approximately $600,000.
13. Upon information and belief, on or about November 25,2002, the Declarant
purported to convey to Homestead Trust Number Five the deed to LOT Band
LOT D in exchange for satisfaction of the principal and interest due on the note
and mortgage.
CONDOMINIUM CREATION AND LOT BAND D WITHDRAWAL
14, Old Schoolhouse, an Office Condominium ("Old Schoolhouse") is a flexible
condominium association formed by the Declarant under the Uniform
Condominium Act (68 Pa. C.S, g3101, et seq.) and in which the Plaintiffs
purchased business condominium units.
15. On or about August 12, 1992, the Declarant created a Flexible Condominium and
caused to be recorded a DECLARATION OF CONDIMINIUM OLD
SCHOOLHOUSE, AN OFFICE CONDOMINIUM ("DECLARATION")
conforming to the requirements of 68 Pa. C.S. g3206 at the Cumberland County
Recorder of Deeds Office (Book 424, Page 929, attached as Exhibit 2).
16. In Article VI of the DECLARATION, the Declarant reserved the right, in
conformity with 68 Pa. C.S. g3212(2), to withdraw certain real estate hereinafter
referred to as LOT B and LOT D for a period of 7 years from the August 12, 1992
recording date.
17. The seven year period permitted by 68 Pa, C.S. g3212(2)1Article VI of the
DECLARATION expired on August 13,1999.
18. LOT B and LOT D were not withdrawn within the 7 year period permitted by 68
Pa. C.S. g3212(2)/Article VI of the DECLARATION.
19. Plaintiffs DeMartyn, Wilson, Meyers, Allen and Pepper all owned units after the
expiration of the withdrawal period identified in 68 Pa. C.S. g3212/Article VI of
the DECLARATION expired on August 13, 1999, viz August 13, 1999.
20. Accordingly, after the expiration of the withdrawal period, Plaintiffs DeMartyn,
Wilson, Meyers, Allen and Pepper all owned an interest in LOT A, LOT B and
LOT D (which collectively comprised Old Schoolhouse),
21. The first Old Schoolhouse board meeting was held on June 3, 2002.
22. At that time, and at all relevant times, there were ten shares in Old Schoolhouse,
one share corresponding to each business condominium unit in Old Schoolhouse.
23. At the time of the June 3, 2002 board meeting, the Declarant held seven shares of
the ten available in Old Schoolhouse.
24. Representing the Declarant's seven shares at the June 3, 2002 board meeting were
Eric Huck and Norman Burkholder,
25. Of the remaining three shares, two shares were held by Plaintiffs Meyers, Allen
and Pepper and one share was held by Plaintiff DeMartyn (Plaintiff Mark Wilson
had not yet purchased his unit).
26. In addition to Eric Huck and Norman Burkholder, Plaintiffs Meyers, Allen,
Pepper and DeMartyn were in attendance at the June 3, 2002 board meeting.
27. At the June 3, 2002 board meeting, the Declarant voted its seven shares and
elected Eric Huck as president of Old Schoolhouse.
28. The minutes of the June 3, 2002 board meeting indicate that Plaintiffs Meyers,
Allen, Pepper and DeMartyn were told by Eric Huck "There are two extra
undeveloped lots attached to the condominium property. Winding Hill Center
investors own these lots and they will be taken out of the condominium
association. "
29. The next Old Schoolhouse board meeting was held on September 18, 2002.
30. Representing the Declarant at the September 18, 2002 board meeting were Eric
Huck and Norman Burkholder.
31. In addition to Eric Huck and Norman Burkholder, Plaintiffs Meyers (also
representing Allen and Pepper) as well as DeMartyn were in attendance at the
September 18, 2002 board meeting,
32. At the start of the September 18, 2002 board meeting, Eric Huck presented a
single signature page to Plaintiffs Meyers and DeMartyn and stated words to the
effect that their signatures were necessary in order for the Declarant to sell LOT B
and LOT D.
33. Plaintiffs Meyers and DeMartyn expressed reservations about signing,
34. Eric Huck then stated words to the effect that the condominium owners had no
right to that land and that the signatures are a simple formality.
35. Plaintiffs Meyers and DeMartyn then agreed to sign the signature page and did in
fact sign the signature page but only because they were informed by Eric Huck
that they had no interest in LOT B and LOT D.
36. Plaintiff Meyers and Demartyn's signatures were not notarized at the September
18, 2002 board meeting.
37. At the president's direction, Plaintiff Meyers then made a motion to withdraw
LOT B and LOT D and the motion was seconded by Plaintiff DeMartyn.
38. No copy of the signature page or other document purporting to withdraw LOT B
and LOT D was ever, at any time, provided to Plaintiffs Meyers, Allen, Pepper or
DeMartyn.
39. On or about September 19, 2003, Eric Huck telephoned Plaintiff Wilson and
informed Wilson with words to the effect that Wilson needed to sign a form for
the Association.
40. On or about September 22, 2003, Eric Huck presented Plaintiff Wilson with a
document and requested Wilson's signature.
41. Plaintiff Wilson expressed reservations about signing.
42. Eric Huck stated words to Plaintiff Wilson to the effect that the others have signed
and you need to also sign.
43. Plaintiff Wilson asked Eric Huck, I am not giving away any land am I?
44, Eric Huck responded, No,
45. Eric Huck then stated words to Plaintiff Wilson to the effect that the land belongs
to Winding Hill and the signatures are just a formality.
46. Plaintiff Wilson then signed the signature page that was presented by Eric Huck.
47. Plaintiff Wilson's signature was not witnessed or notarized at that time.
48. Upon information and belief, Eric Huck later had the signatures of Plaintiffs
Meyers, DeMartyn and Wilson notarized at another time and location.
49. Upon information and belief, on or about December 2, 2002, Eric Huck then
affixed the signature page with the after supplied notary seals to a document
titled: AMENDMENT TO DECLARA nON OF CONDOMINIUM OLD
SCHOOLHOUSE, AN OFFICE CONDOMINIUM ("AMENDMENT") and
caused said document to be recorded at the Cumberland County Recorder of
Deeds Office (Book No. 692, Page 1154, attached as Exhibit 3).
50. Upon information and belief, the Declarant then deeded LOT B and LOT D to
Homestead Trust Number Five in exchange for forgiveness of approximately
$600,000.00 in mortgage obligation.
51, In making statements at Old Schoolhouse board meetings to Plaintiffs Meyers,
Allen, Pepper and DeMartyn as well as making statements to Mark Wilson
individually, Eric Huck was acting in the course and scope of his responsibilities
as general partner for the Declarant.
52. In making statements at Old Schoolhouse board meetings to Plaintiffs Meyers,
Allen, Pepper and DeMartyn as well as making statements to Mark Wilson
individually, Eric Huck was acting in the course and scope of his responsibilities
as president of Old Schoolhouse.
53. In securing the notarization of Plaintiffs' signatures, Eric Huck was acting in the
course and scope of his responsibilities as general partner for the Declarant.
54. In securing the notarization of Plaintiffs' signatures, Eric Huck was acting in the
course and scope of his responsibilities as president of Old Schoolhouse.
COUNT I
EQUITABLE CLAIM FOR BREACH OF FIDUCIARY DUTY AND DUTY OF
GOOD FAITH AND FAIR DEALING
55. The foregoing paragraphs are incorporated.
56, The Declarant was under a statutory duty of good faith and fair dealing imposed
by 68 Pa. C.S. 92112.
57. At all relevant times, Eric Huck was an investor in Winding Hill, L.P. with a
financial interest in the disposition of LOT B and LOT D.
58. At all relevant times, Eric Huck, as president of Old Schoolhouse, was under a
fiduciary duty to the Plaintiff unit owners of Old Schoolhouse.
59. At all relevant times, Eric Huck, as general partner in the Declarant was under a
fiduciary duty to Winding Hill, L.P.
60. The interests of Winding Hill, L.P. and Old Schoolhouse were materially adverse
with respect to the disposition of LOT B and LOT D.
61. As an investor and general partner in Winding Hill, L.P. and president of Old
Schoolhouse, Eric Huck had an actual conflict of interest.
62. Eric Huck breached his fiduciary duty as President of Old Schoolhouse by
inducing the Plaintiff unit owners to alienate their interest in LOT B and LOT D
to their detriment and to the benefit of the Declarant and Huck.
63. Winding Hill breached its duty of good faith and fair dealing by inducing the
Plaintiff unit owners to alienate their interest in LOT B and LOT D to their
detriment and to the benefit of the Declarant and Huck.
64. On or about December of 2002, when Winding Hill, L.P deeded LOT B and LOT
D to Homestead Trust Number Five, the Plaintiffs collectively held a 4/1 Oth
interest in Old Schoolhouse.
65. On account of the breach of fiduciary duty and duty of good faith and fair dealing,
the approximately $600,000. benefit of alienating LOT B and LOT D accrued
solely to Winding Hill, L.P. and Huck rather than being shared proportionally by
all unit owners in Old Schoolhouse.
WHEREFORE, Plaintiffs respectfully request that the court award them 4/10100 of the
$600,000 benefit received by Winding Hill, or $240,000 or in the alternative,
equitably re-allocate the shares in the Old Schoolhouse Office Condominium
Association with Winding Hill's three shares going to the Plaintiffs in lieu of
compensitory damages.
COUNT II
FRAUD IN THE INDUCEMENT
66. The foregoing paragraphs are incorporated,
67, The Declarant was under a statutory duty of good faith and fair dealing imposed
by 68 Pa. C.S. 92112.
68. Eric Huck, with knowledge of falsity, or recklessness as to truth or falsity, made a
false representation that LOT B and LOT D did not belong to Old Schoolhouse
when, during the during the September 18, 2002 board meeting, he told Plaintiffs
Meyers and DeMartyn words to the effect that the condominium owners had no
right to that land and that the signatures were a simple formality.
69. Eric Huck, with knowledge of falsity, or recklessness as to truth or falsity, made a
false representation that LOT B and LOT D belonged to Winding Hill when,
during the June 3, 2002 board meeting, he told Plaintiffs Meyers Allen Pepper
and DeMartyn that "There are two extra undeveloped lots attached to the
condominium property. Winding Hill Center investors own these lots and they
will be taken out of the condominium association."
70. Eric Huck, with knowledge of falsity, or recklessness as to truth or falsity, made a
false representation to Plaintiff Wilson when he answered "No." to the question:
"I am not giving away any land am I?"
71. Eric Huck, with intent to deceive and mislead Plaintiff unit owners into reliance
thereon, secured Plaintiff unit owners signatures under false pretences including:
a. Misstatements as to ownership of LOT B and LOT D.
b. Failure to disclose the body of the AMENDMENT to Plaintiff unit
owners.
c. Failing to attach the body of the AMENDMENT to the signature page
prior to securing Plaintiff unit owners' signature.
d. Failing to provide a copy of the AMENDMENT to Plaintiff unit owners.
e. Failing to contemporaneously notarize the signature page offered to
Plaintiff unit owners.
72, Plaintiff unit owners justifiably relied on Eric Huck's representations as to the
status of LOT B and LOT D because Eric Huck was then serving as president of
Old Schoolhouse.
WHEREFORE, Plaintiff Plaintiffs respectfully request that the court award them
4/lOths of the $600,000 benefit received by Winding Hill, or $240,000 or in the
alternative, equitably re-allocate the shares in the Old Schoolhouse Office
Condominium Association with Winding Hill's three shares going to the Plaintiffs in
lieu of compensatory damages as well as exemplary damages because Defendants'
fraud was outrageous.
COUNT III
NEGLIGENT MISREPRESENTATION
73. The foregoing paragraphs are incorporated.
74. The Declarant was under a statutory duty of good faith and fair dealing imposed
by 68 Pa. C.S. g21l2.
75. Eric Huck negligently made a false representation that LOT B and LOT D did not
belong to Old Schoolhouse,
76, Eric Huck negligently made a false representation that LOT B and LOT D
belonged to Winding Hill.
77. Eric Huck negligently made a false representation that Plaintiffs were not
alienating an interest in land.
78, Eric Huck negligently secured Plaintiff unit owners signatures under false
pretences including:
a. Misstatements as to ownership of LOT Band D.
b. Failure to disclose the body of the AMENDMENT to Plaintiff unit
owners.
c, Failing to attach the body of the AMENDMENT to the signature page
prior to soliciting Plaintiff unit owners' signature.
d. Failing to provide a copy of the AMENDMENT to Plaintiff unit owners.
e. Failing to contemporaneously notarize the signature page offered to
Plaintiff unit owners.
79. Plaintiff unit owners justifiably relied on Eric Huck's representations as to the
status of LOT B and LOT D because Eric Huck was then serving as president of
the Old Schoolhouse.
WHEREFORE, Plaintiff Plaintiffs respectfully request that the court award them
4/IO'hs of the $600,000 benefit received by Winding Hill, or $240,000 or in the
alternative, equitably re-allocate the shares in the Old Schoolhouse Office
Condominium Association with Winding Hill's three shares going to the Plaintiffs in
lieu of compensitory damages.
Dated: January.1..!..., 2004
Christopher S. Lucas
ATTORNEY FOR THE PLAINTIFFS
Pa. No. 77903
220 Cumberland Pkwy, Ste. 4
Mechanicsburg, PA 17055
717.691.0203 telephone
717.691.3130 facsimile
cslucas@lucashealthlaw.com email
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
Harry Meyers
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
Larry Pepper
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
Paul Allen
220 Cumberland Pkwy. Sts. 9 and 10
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
I Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill L.P.
I Kacey Court
Suite 201
Mechanicsburg, P A 17055
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CIVIL DIVISION
JURY TRIAL DEMANDED
No.
VERIFICATION
I, Melanie DeMartyn, affirm that the pleadings in the foregoing COMPLAINT are
true and correct to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties provided in 18 Pa.
C.S.A. S4904 pertaining to unsworn falsification to authorities.
Date:
I'H=YM~unrmilid'Pl~d~~X:f
and correct to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties provided in 18 Pa,
C.S.A. S4904 pertaining to unsworn falsification to authorities.
Date:
Jlfif
//16/0Y
I, Mark Wilson, affirm that the pleadings in the fore o' g COMPLAINT are true
and correct to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the pe ties provided in 18 Pa.
,
C.S.A. S4904 pertaining to unsworn falSif~(U :t
Date:
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SHERIFF'S RETURN - NOT FOUND
CASE NO: 2004-00267 P
COMMONTWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DEMARTYN MELANIE ET AL
VS
HUCK ERIC ET AL
R, Thomas Kline
,Sheriff or Deputy Sheriff, who being
duly sworn according to law, says, that he made a diligent search and
inquiry for the within named DEFENDANT
HUCK ERIC
but was
unable to locate Him in his bailiwick. He therefore returns the
COMPLAINT & NOTICE
, NOT FOUND , as to
the within named DEFENDANT
, HUCK ERIC
5 KACEY COURT SUITE 201
MECHANICSBURG, PA 17055
CURRENT OCCUPANT OF GIVEN BUSINESS ADDRESS STATED
THAT THEY HAVE BEEN THERE FOR SEVERAL YEARS.
Sheriff's Costs:
Docketing
Service
Not Found
Surcharge
18.00
6.90
5.00
10.00
.00
39.90
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so. ~n.sw.e..rs: ....... ,/':;:>'. ../'
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/., ~ ;:;:::.---------
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....:-.:-; R. Th~in";sI ine
Sheriff of Cumberland County
.~
CHRISTOPHER LUCAS
01/23/2004
Sworn
and subscribed to before
,n"!:. day of h
me
this
mY A.D.
(l. Cl ~ AO;a:f
Pr~ary ;'7
SHERIFF'S RETURN - NOT FOUND
CASE NO: 2004-00267 P
COMMONTWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
DEMARTYN MELANIE ET AL
VS
HUCK ERIC ET AL
R. Thomas Kline ,Sheriff or Deputy Sheriff, who being
duly sworn according to law, says, that he made a diligent search and
inquiry for the within named DEFENDANT
WINDING HILL LP
but was
unable to locate Them in his bailiwick. He therefore returns the
COMPLAINT & NOTICE
, NOT FOUND , as to
the within named DEFENDANT
, WINDING HILL LP
5 KACEY COURT SUITE 201
MECHANICSBURG, PA 17055
CURRENT OCCUPANT OF GIVEN BUSINESS ADDRESS
STATED THAT THEY HAVE BEEN THERE FOR SEVERAL YEARS.
Sheriff's Costs:
Docketing
Service
Not Found
Surcharge
6.00
.00
5.00
10.00
.00
21.00
So an swe,r:-~,.:"~:::~,~",,,,~~:~~:,,-:-./ ' "
,-.-.".-.....-..-.-. ..,-' ~,_.- -----.:
.--?:CA~ _
R, Thomas Kline '
Sheriff of Cumberland County
CHRISTOPHER LUCAS
01/23/2004
Sworn and subscribed to before me
this .1..1& day Of~
020v'lQ;D.
Q ~ Af..-c.
Proth tary , .~'
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn )
220 Cumberland Pkwy, Ste. 5 )
Mechanicsburg, P A 17055 ) CIVIL DIVISION
)
Mark Wilson ) JURY TRIAL DEMANDED
220 Cumberland Pkwy. Ste 8 )
Mechanicsburg, P A 17055 ) No. 04-267
)
Harry Meyers )
220 Cumberland Pkwy. Sts. 9 and 10 )
Mechanicsburg, P A 17055 )
)
Larry Pepper )
220 Cumberland Pkwy. Sts. 9 and 10 )
Mechanicsburg, P A 17055 )
)
Paul Allen )
220 Cumberland Pkwy. Sts, 9 and 10 )
Mechanicsburg, P A 17055 )
)
PLAINTIFFS )
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v. )
)
Eric Huck, Individually )
5 Kacey Court )
Suite 20 I )
Mechanicsburg, P A 17055 )
)
Winding Hill L.P. )
5 Kacey Court )
Suite 201 )
Mechanicsburg, P A 17055 )
)
PRAECIPE TO WITHDRAW CERTAIN PLAINTIFF PARTIES AND AMEND
CAPTION TO REFLECT ONLY REMAINING PARTIES
TO:
CUMBERLAND COUNTY PROTHONOTARY
One Courthouse Square
Carlisle, P A 17013-3387
Please mark this matter withdrawn as to Plaintiffs Paul Allen, Harry Meyers and
Larry Pepper and amend the caption as attached to reflect only the remaining Plaintiff
parties.
Date:
q/CfIO~
I
S==~==:>
Christopher S. Lucas, Esq. ........
No. 77903
Attorney for th,e Appellant/Respondent
CHRISTOPHER S. LUCAS & ASSOCIATES
220 Cumberland Pkwy. Ste. 4
Mechanicsburg, P A 17055
717.691.0203 voice
7 I 7.691.3130 Dlcsimile
cslucas(aJ,lucashealthlaw,com email
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
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Mark Wilson
220 Cumberland Pkwy, Ste 8
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 20 I
Mechanicsburg, P A 17055
Winding Hill L.P.
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04-267
AMENDED CAPTION
CERTIFICATE OF SERVICE
I, Christopher S, Lucas, hereby certify that I have served a copy of the
PRAECIPE TO WITHDRAW CERTAIN PLAINTIFF PARTIES AND AMEND
CAPTION TO REFLECT ONLY REMAINING PARTIES up the attorney for the
Defendants at the place and in the manner set forth below:
FIRST CLASS V,S. MAIL
Jack Hurley, Esq.
Rhoads and Sinon
One Market Square
P.O. Box 1146
Harrisburg, P A 17108-1146
Date:
If ('I ( b i
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Christopher S. Lucas
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Jack F. Hurley, Jr., Esquire
Attorney LD. No. 24414
Timothy J. Nieman, Esquire
Attorney LD. No. 66024
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, P A 17108-1146
(717)233-5731
Attorneys for Defendants
MELANIE DeMARTYN, MARK
WILSON, HARRY MEYERS,
LARRY PEPPER and PAUL ALLEN
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-267 Civil Term
v.
ERIC HUCK and WINDING HILL
L.P.
Defendants
NOTICE TO PLEAD
TO: Plaintiffs
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaims within twenty (20) days from service hereof or a default judgment may be
entered against you.
Respectfully submitted,
RHOADS & SINON LLP
/lA ffl-i!c
By: Jacki.~~;~ c -
Timothy J. Nieman
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
DATE: March 15,2004 Attorneys for Defendants
507247.4
Jack F. Hurley, Jr., Esquire
Attorney J.D. No. 24414
Timothy 1. Nieman, Esquire
Attorney J.D. No. 66024
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Derendants
MELANIE DeMARTYN, MARK
WILSON, HARRY MEYERS,
LARRY PEPPER and PAUL ALLEN
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-267 Civil Term
v.
ERIC HUCK and WINDING HILL
L.P.
Defendants
ANSWER, NEW MATTER AND COUNTERCLAIM
Defendants Eric Huck and Winding Hill Center, L.P., by and through their
undersigned attorneys, file this Answer, New Matter and Counterclaim, stating as
follows:
THE PARTIES
I. Denied. While Winding Hill, L.P. is a named defendant in this action,
Winding Hill Center, L.P. is the entity that was involved with the transaction at issue.
Further the correct address for Winding Hill Center, L.P. is 5 Kacey Court, Suite 101,
Mechanicsburg, Pennsylvania 17055.
2. Admitted in part and denied in part. It is denied that Eric Huck is a
general partner of Winding Hill Center, L.P. and that his business address is I Kacey
Court, Suite 201, Mechanicsburg, Pennsylvania. To the contrary, Mr. Huck is a Manager
of Winding Hill Management Group, LLC, which is the general partner of Winding Hill
Center, L.P. Also Mr. Huck's business address is 5 Kacey Court, Suite 101,
Mechanicsburg, PA 17055.
3. Admitted. By way of further answer, Plaintiffs Meyers, Pepper and Allen
have filed a Motion with the Court seeking to withdraw from this action. Defendants
have no objection to the Motion and expect that Plaintiffs Meyers, Pepper and Allen will
no longer be participating in this lawsuit. Further, the conveyance ofthe condominium
units to Plaintiffs Meyers, Pepper and Allen was on November 24,1992.
4. Admitted. By way of further answer, PlaintiffDeMartyn purchased her
unit for $115,000, which was fair consideration for the condominium unit only and did
not include an interest in Lots B and D. Further, by now seeking damages in the amount
of $60,000 Plaintiff DeMartyn is improperly seeking damages for property that she did
not bargain for or pay for.
5. Admitted. By way of further answer, Plaintiff Wilson purchased his unit
for $125,000, which was fair consideration for the condominium unit only and did not
include an interest in Lots Band D. Further, by now seeking damages in the amount of
$60,000 Plaintiff Wilson is improperly seeking damages for property that he did not
bargain for or pay for.
6. Admitted. By way of further answer, at the time that Plaintiffs purchased
their condominium units, Lots Band D were subject to three (3) mortgages held either by
the Federal Deposit Insurance Corporation, as receiver for Homestead Federal Savings
Association, or by Homestead Trust No.5. As such, Plaintiffs purchased their
condominium units with knowledge of, and subject to, these mortgages. Winding Hill
Center, L.P. was the mortgagor of only one of these mortgages, specifically the $305,000
mortgage referenced in Paragraph 8 of the Plaintiffs' Complaint. The mortgagor ofthe
other two mortgages was Cumberland Business Park Associates.
THE HOMESTEAD NOTE AND MORTGAGE
7. Admitted in part and denied in part. It is denied that Winding Hill Center,
L.P. acquired a fee interest in Lots B and D on August 12, 1992. To the contrary,
Winding Hill Center, L.P. acquired title to Lots A, Band D on or about January 16, 1991.
The original intention was to build two additional condominium buildings on Lots B and
D. The two additional buildings were not built because ofthe Federal Deposit Insurance
Corporation becoming the receiver for Homestead Federal Savings Association.
8. Denied. To the contrary, the note referenced in this Paragraph was issued
to Cumberland Business Park Associates as partial payment for the purchase price for
Lots A, B and D. The note was dated January 17,1991.
9. Denied. To the contrary, the Note was secured by a purchase money
mortgage given to Cumberland Business Park Associates on Lots A, B and D. The
mortgage was dated January 17, 1991. By way of further answer, at the time that
Plaintiffs purchased their condominium units, Lots B and D were subject to the recorded
mortgages referenced in Paragraph 6 above. As such, Plaintiffs purchased their
condominium units with knowledge of, and subject to, these mortgages.
10. Denied. To the contrary, Homestead Trust No.5 was not an entity created
by the Resolution Trust Corporation. Cumberland Business Park Associates assigned its
interest in the mortgage to Homestead Savings Association. Homestead Trust No.5
obtained title to the mortgage by the purchase from the FDIC, as receiver for Homestead
Federal Savings Association, of the interest of the FDIC in a participating loan among
Homestead Trust No.5, Mid-Penn Bank and Homestead Savings and Loan Association.
By way of further answer, at the time that Plaintiffs purchased their condominium units,
Lots B and D were subject to the three recorded mortgages referenced in Paragraph 6
above. As such, Plaintiffs purchased their condominium units with knowledge of, and
subject to, these mortgages.
11. Admitted. By way of further answer, payments were not made on the
Homestead Note and mortgage because the two additional units referenced in Paragraph
7 above were never built once the Federal Deposit Insurance Corporation became the
receiver for Homestead Federal Savings Association. As such, there was no income to
make such payments.
12. Denied.
13. Admitted. By way of further answer, in addition to the mortgage on Lots
A, B and D securing the $305,000 Note, Homestead Trust No.5 held, by assignment, a
mortgage in the original principal amount of$975,000 given by Cumberland Business
Park Associates to Homestead Savings Association, dated and recorded December 23,
1987 encumbering Lot D; and a mortgage in the original principal amount of $2,675,000
given by Cumberland Business Park Associates to Homestead Service Corporation dated
December 10,1990 and encumbering Lots B and D. As a condition of the conveyance to
Homestead Trust No.5 of Lots Band D, Homestead Trust No.5 was required to satisfy
the $305,000 mortgage which encumbered Lot A. Further, Lots B and D were
transferred because Homestead Trust No.5 was prepared to foreclose and instead took
the Lots in lieu of foreclosure because it could couple the Lots with other property that it
owned.
CONDOMINIUM CREATION AND LOT B AND D WITHDRAWAL
14. The allegations of this Paragraph are legal conclusions to which no
response is required.
15. It is admitted that the Declarant caused to be recorded a document called
DECLARATION OF CONDOMINIUM OLD SCHOOL HOUSE, AN OFFICE
CONDOMINIUM ("DECLARATION") at the Cumberland County Recorder of Deeds
Office (Book 424, Page 929). The remaining allegations of this Paragraph are legal
conclusions to which no response is required.
16. The Declaration is a writing that speaks for itself.
17. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied.
18. The allegations of this Paragraph are legal conclusions to which no
response is required.
19. It is admitted that the Plaintiffs all owned units after August 13, 1999.
The remaining allegations of this Paragraph are legal conclusions to which no response is
required.
20. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. To the contrary, the Plaintiffs knowingly agreed to allow Winding
Hill to transfer Lots Band D to Homestead Trust No.5. (See Exhibits "A" and "B"
attached hereto).
21. Admitted.
22. Admitted. By way of further answer, at the time of the first Old
Schoolhouse board meeting, Defendant Winding Hill owned seven of the ten shares of
Old Schoolhouse.
23. Admitted.
24. Admitted.
25. Admitted.
26. Admitted.
27. Admitted.
28. The minutes of the June 3, 2002 meeting is a writing that speaks for itself.
By way of further answer, at the June 3, 2002 meeting Mr. Huck and Norman Burkholder
provided an explanation and history of the project. During this presentation, Mr.
Burkholder explained that Lots B and D were subject to mortgages and had negative
equity. It was further explained that the mortgagee, Homestead Trust No.5, was going to
foreclose on Lots Band D but was willing to take the Lots back in lieu of foreclosure.
The reason for the threatened foreclosure was that once the Federal Deposit Insurance
Corporation became the receiver for Homestead Federal Savings Association, the
buildings on Lots B and D could not be constructed and after a ten year period the
accrued interest and debt exceeded the value of the Lots. It was also explained that Old
Schoolhouse would incur costs, such as property taxes, associated with the Lots.
29. Admitted.
30. Admitted.
31. Admitted.
32. Denied. It is denied that Mr. Huck presented a single signature page to
Plaintiffs Meyers and DeMartyn at the start of the September 18, 2002 board meeting. It
is further denied that Mr. Huck stated that their signatures were necessary in order for the
Declarant to sell Lots B and D. To the contrary, signatures were obtained from
Defendants in November 2002. The minutes of the September 18, 2002 board meeting
reflect that Plaintiff Meyers made a Motion "to withdraw lots six (6) B and six (6) D
from the Old Schoolhouse, An Office Condominium Association" and that Plaintiff
DeMartyn seconded this Motion. The minutes further reflect that "[ t ]he reason for this is
to free the title so that the lots can be sold by Winding Hill Center LP." Plaintiff
DeMartyn prepared and signed the minutes of the September 18, 2002 meeting.
33. It is denied that Plaintiffs Meyers and DeMartyn expressed reservations
about signing any document at the September 18, 2002 board meeting. It is further
denied that Plaintiff Meyers and DeMartyn expressed any reservations about withdrawing
Lots B and D from Old Schoolhouse since they made and seconded the Motion giving
Old Schoolhouse the authority to do so,
34. It is denied that Mr. Huck stated that the condominium owners had no
right to that land and that the signatures are simply a formality. To the contrary, Mr.
Huck is not a lawyer, but explained in layman's terms that Lots B and D were collateral
for a mortgage and that Old Schoolhouse's costs would decrease ifthe lots were removed
from the association. Plaintiffs Meyers and DeMartyn were satisfied with this
explanation as evidenced by their support for the Motion.
35. After reasonable investigation, Defendants are unable to determine why
Plaintiffs Meyers and DeMartyn signed the signature page. It is denied that Mr. Huck
informed Plaintiffs Meyers and DeMartyn that they had no interest in Lots B and D. By
way of further answer, Plaintiffs Meyers and DeMartyn never voiced concern about their
ownership interest in Lots B and D because, among other things, they knew that they did
not purchase and/or bargain for an interest in Lots B and D when they purchased their
condominium units.
36. Admitted. As stated above, the signatures were not obtained at the
September 18, 2002 board meeting.
37. It is admitted that Plaintiff Meyers made a motion to withdraw Lots Band
D and the motion was seconded by Plaintiff DeMartyn. It is denied that this was done at
the President's direction. To the contrary, Plaintiffs Meyers and DeMartyn were free to
support or oppose the motion as they saw fit.
38. Denied. To the contrary, all Plaintiffs, or their authorized representatives,
were provided with a copy of the document purporting to withdraw Lots Band D from
Old Schoolhouse prior to them signing the document.
39. It is admitted that at some point Mr. Huck contacted Plaintiff Wilson
about signing a document for the Association. It is denied that this conversation took
place on or about September 19, 2003 and that Mr. Huck implied that Plaintiff Wilson
must sign the document. To the contrary, Plaintiff Wilson, after reviewing the document
and questioning Mr. Huck concerning the document, signed the document in November
2002.
40. Denied. See the response to Paragraph 39 above.
41. It is admitted that Plaintiff Wilson asked Mr. Huck questions about the
document. It is denied that Plaintiff Wilson expressed reservations about signing the
document. To the contrary, Plaintiff Wilson voluntarily signed the document.
42. It is denied that Mr. Huck told Plaintiff Wilson that he had to sign the
document. To the contrary, Plaintiff Wilson voluntarily signed the document.
43. It is denied that Plaintiff Wilson asked Mr. Huck, 1 am not giving away
any land am I? To the contrary, this question was never posed to Mr. Huck.
44. It is denied that Mr. Huck responded, No. To the contrary, Plaintiff
Wilson never asked Mr. Huck ifhe was giving away any land.
45. Denied. To the contrary, the conversation as outlined in this Paragraph
never took place.
46. It is admitted that Plaintiff Wilson signed the document. It is denied that
he was only presented with the signature page by Mr. Huck. To the contrary, Mr. Huck
presented Plaintiff Wilson with the entire document.
47. Admitted.
48. Admitted.
49. It is admitted that the document referenced in this Paragraph was recorded
with the Cumberland County Recorder of Deeds Office. The remaining allegations are
denied. To the contrary, the signature pages were always affixed to the document,
including when the document was signed by the Plaintiffs.
50. Admitted. By way of further answer, Homestead Trust No.5 also held the
other two previously stated mortgages, and the principal of either of those mortgages was
far in excess of the value of Lots Band/or D. Winding Hill Center, L.P. was not
obligated to pay either of the obligations secured by these other two mortgages.
51. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. Mr. Huck is not a general partner of Winding Hill Center, L.P. Mr. Huck is a
Manager of Winding Hill Management Group, LLC, which is the general partner of
Winding Hill Center, L.P.
52. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied.
53. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied for the reasons outlined in Paragraph 51 above.
54. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations are
denied.
COUNT 1
EQUITABLE CLAIM FOR BREACH OF FIDUCIARY DUTY AND DUTY OF GOOD
FAITH AND FAIR DEALING
55. Defendants incorporate Paragraphs I through 54 herein by reference.
56. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. By way of further answer, Declarant breached no duties that it may have
owed to the Plaintiffs.
57. The allegations of this Paragraph are legal conclusions to which no
response is required.
58. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. By way of further answer, Mr. Huck properly discharged any
duties that he may have owed to the Plaintiffs.
59. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. By way of further answer, Mr. Huck properly discharged any
duties that he may have owed to Plaintiffs.
60. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. To the contrary, it was in the best interest of Old Schoolhouse to dispose of
Lots B and D.
61. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. By way of further answer, Mr. Huck did not have a conflict of
interest as alleged in this Paragraph and is not a general partner of Winding Hill Center,
L.P.
62. The allegations ofthis Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. By way of further answer, Mr. Huck properly discharged any
duties that he may have owed to the Plaintiffs.
63. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. By way of further answer, Winding Hill Center, L.P. properly
discharged any duties that it may have owed to the Plaintiffs.
64. The allegations of this Paragraph are legal conclusions to which no
response is required.
65. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. Even assuming that Defendants breached a duty to Plaintiffs - which
Defendants specifically deny - the Plaintiffs suffered no damages as a result of the
alleged breach because, among other things, the Plaintiffs purchased the condominiums
with knowledge that Lots B and D were subject to a mortgage, the Plaintiffs did not
bargain for an interest in Lots B and D, the Plaintiffs did not pay for an interest in Lots B
and D and Lots B and D had little, if any, value.
WHEREFORE, Defendants respectfully request that this Court enter judgment in
their favor and grant such other relief as the Court deems proper, including attorneys'
fees and costs of suit.
COUNT II
FRAUD IN THE INDUCEMENT
66. Defendants incorporate Paragraphs I through 65 herein by reference.
67. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. By way of further answer, Declarant breached no duties that it may have
owed to the Plaintiffs.
68. Denied. To the contrary, and as explained in more detail above, Mr. Huck
made no misrepresentations concerning Lots B and D.
69. Denied. To the contrary, and as explained in more detail above, Mr. Huck
made no misrepresentations concerning Lots B and D.
70. Denied. To the contrary, and as explained in more detail above, Mr. Huck
made no misrepresentations concerning Lots B and D.
71. Denied. To the contrary, and as explained in more detail above, Mr. Huck
did not secure the Plaintiffs' signatures through false pretenses.
72. Denied. To the contrary, and as explained in more detail above, Mr. Huck
made no misrepresentations concerning Lots B and D. By way of further answer,
Defendants are unable to determine what information Plaintiffs relied upon.
WHEREFORE, Defendants respectfully request that this Court enter judgment in
their favor and grant such other relief as the Court deems proper, including attorneys'
fees and costs of suit.
COUNT III
NEGLIGENT MISREPRESENT AnON
73. Defendants incorporate Paragraphs 1 through 72 herein by reference.
74. The allegations ofthis Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. By way of further answer, Declarant breached no duties that it may have
owed to the Plaintiffs.
75. The allegations ofthis Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. To the contrary, and as explained in more detail above, Mr. Huck made no
misrepresentations concerning Lots B and D.
76. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. To the contrary, and as explained in more detail above, Mr. Huck made no
misrepresentations concerning Lots B and D.
77. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, these allegations
are denied. To the contrary, and as explained in more detail above, Mr. Huck made no
misrepresentations concerning Lots B and D.
78. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent that a response is deemed appropriate, these
allegations are denied. To the contrary, and as explained in more detail above, Mr. Huck
did not secure the Plaintiffs' signatures through false pretenses.
79. Denied. To the contrary, and as explained in more detail above, Mr. Huck
made no misrepresentations concerning Lots B and D.. By way of further answer,
Defendants are unable to determine what information Plaintiffs relied upon.
WHEREFORE, Defendant respectfully requests that the Court enter
judgment in its favor and grant such other relief as the Court deems proper.
NEW MATTER
80. Paragraphs I through 79 above are incorporated herein by reference.
81. Plaintiffs' Complaint fails to state a cause of action upon which relief can
be granted.
82. Plaintiffs' Complaint fails, as a matter oflaw, to state a cause of action for
equitable relief
83. Plaintiffs' Complaint fails, as a matter oflaw, to state a cause of action for
breach of fiduciary duty.
84. Plaintiffs' Complaint fails, as a matter oflaw, to state a cause of action for
breach of the duty of good faith and fair dealing.
85. Plaintiffs' Complaint fails, as a matter oflaw, to state a cause of action for
fraud in the inducement.
86. Plaintiffs' Complaint fails, as a matter oflaw, to state a cause of action for
negligent misrepresentation.
87. Plaintiffs have not alleged the requisite elements of a claim for equitable
relief
88. Plaintiffs have not alleged the requisite elements of a claim for breach of
fiduciary duty.
89. Plaintiffs have not alleged the requisite elements of a claim for breach of
the duty of good faith and fair dealing.
90. Plaintiffs have not alleged the requisite elements of a claim for fraud in the
inducement.
91. Plaintiffs have not alleged the requisite elements of a claim for negligent
misrepresentation.
92. Plaintiffs lack standing to maintain their claims.
93. Plaintiffs' claims are barred, in whole or in part, by the statute of
limitations.
94. Plaintiffs' claims are barred, in whole or in part, by the doctrine of laches.
95. Plaintiffs' claims are barred, in whole or in part, by the doctrines of waiver
and estoppel.
96. Plaintiffs' claims are barred, in whole or in part, by the doctrine of accord
and satisfaction.
97. Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean
hands.
98. Plaintiffs' claim for equitable relief is barred because the Plaintiffs have
an adequate remedy at law.
99. Plaintiffs have not suffered immediate and irreparable harm.
100. Equitable relief is improper in this case because it will cause greater harm
to Defendants.
101. In the event that Plaintiffs have suffered damages, which is denied, such
damages were caused, in whole or in part, by the negligence or other actions of Plaintiffs.
102. In the event that Plaintiffs have suffered damages, which is denied, such
damages were caused, in whole or in part, by the acts of third parties, over whom
Defendants had no control.
103. This action should have been filed in equity since it seeks equitable relief.
104. Plaintiffs are not entitled to the relief requested because they did not pay
consideration for the lots at issue.
105. Transferring the lots at issue was in the best interest of Old Schoolhouse.
106. The Plaintiffs approved and agreed with the transfer of Lots B and D as
evidenced by their approval of the transfer at the September 18, 2002 Old Schoolhouse
board meeting.
107. The Plaintiffs have suffered no damages as a result of the transfer of Lots
B and D.
108. The Plaintiffs purchased their condominiums with knowledge that Lots B
and D were subject to mortgages that far exceeded the value ofthose lots and that those
lots were at risk of foreclosure by the mortgagees. At the time of the purchase of their
condominium units, the Plaintiffs made no inquiries as to the status of payments on the
obligations secured by such mortgages and obtained no commitments that the obligations
secured by those mortgages would be paid.
109. The Plaintiffs will be unjustly enriched if they prevail in this matter
110. The Plaintiffs did not bargain for an interest in Lots B and D when they
purchased their condominiums.
111. The Plaintiffs did not pay for an interest in Lots B and D when they
purchased their condominiums.
112. The Plaintiffs, to the extent that they held any interest in Lots B and D,
which Defendants specifically deny, did not directly hold an interest in the lots. Rather,
to the extend the Plaintiffs held any interest in the lots it was an interest in common with
all of the owners of condominium units in the common elements of the condominium.
113. Defendants expressly reserves the right to raise additional defenses that
become known after discovery.
WHEREFORE, Defendants respectfully request that the Court enter judgment in
its favor and grant such other relief as the Court deems proper.
COUNTERCLAIM
114. Counterclaim Plaintiff is Winding Hill Center, L.P., a Pennsylvania
limited partnership with its principal place of business located at 1 Kacey Drive, Suite
501, Mechanicsburg, Pennsylvania.
115. Counterclaim Defendant Melanie DeMartyn is an adult individual with an
address of220 Cumberland Parkway, Suite 5, Mechanicsburg, Pennsylvania.
116. Counterclaim Defendant Mark Wilson is an adult individual with an
address of220 Cumberland Parkway, Suite 8, Mechanicsburg, Pennsylvania.
117. On or about April 24, 2002, Ms. DeMartyn purchased a condominium unit
from Winding Hill Center, L.P. in the Old Schoolhouse office condominium.
118. On or about August 12, 2002, Mr. Wilson purchased a condominium unit
from Winding Hill Center, L.P. in the Old Schoolhouse office condominium.
119. In 2001, prior to Ms. DeMartyn and Mr. Wilson purchasing their
condominium units, all of the condominium units in Old Schoolhouse were reassessed for
tax purposes by Cumberland County. At the time of reassessment, the units ultimately
purchased by Ms. DeMartyn and Mr. Wilson were owned by Winding Hill Center, L.P.
and Winding Hill Center, L.P. had paid the real estate taxes on these units.
120. Ms. DeMartyn and Mr. Wilson, upon purchasing their units, appealed the
tax assessment. Additionally, Winding Hill Center, L.P. appealed the tax assessments on
the condominium units that it owned in Old Schoolhouse.
121. Ms. DeMartyn, Mr. Wilson and Winding Hill Center, L.P. were successful
in their assessment appeals.
122. When the refund checks were issued by Cumberland County, Ms.
DeMartyn and Mr. Wilson received refund amounts that included taxes paid by Winding
Hill Center, L.P. for all of2001 and a portion of2002, when the condominium units now
owned by Ms. DeMartyn and Mr. Wilson were owned by Winding Hill Center, L.P.
Counterclaim Count I
Conversion
123. Winding Hill Center, L.P. incorporates Paragraphs 114 through 122 as
though set forth fully herein.
124. Ms. DeMartyn and Mr. Wilson have converted tax refund monies owing
to Winding Hill Center, L.P. for their own use.
125. Ms. DeMartyn and Mr. Wilson have failed to pay the tax refund amount
for 2001 and a portion of 2002 to Winding Hill Center, L.P. despite the fact that Winding
Hill Center, L.P. owned the condominium units and paid the taxes on the condominium
units now owned by Ms. DeMartyn and Mr. Wilson during those time periods.
WHEREFORE, Counterclaim Plaintiff Winding Hill Center, L.P. respectfully
requests that this Court award it damages plus interest, costs, attorneys' fees and any
other relief that this Court deems appropriate.
Counterclaim Count II
Uniust Enrichment
126. Winding Hill Center, L.P. incorporates Paragraphs 114 through 126 as
though set forth fully herein.
127. Ms, DeMartyn and Mr. Wilson have been unjustly enriched by failing to
pay the tax refund amount for 2001 and a portion of 2002 to Winding Hill Center, L.P.
despite the fact that Winding Hill Center, L.P. owned the condominium units and paid the
taxes on the condominium units now owned by Ms. DeMartyn and Mr. Wilson during
those time periods.
WHEREFORE, Counterclaim Plaintiff Winding Hill Center, L.P. respectfully
requests that this Court award it damages plus interest, costs, attorneys' fees and any
other relief that this Court deems appropriate.
Respectfully submitted,
RHOADS & SINON LLP
By:
~pci;r1" 71 ~~
Jack F. Hurley,IJr.
Timothy J. Nieman
One South Market Square
P. O. Box 1146
Harrisburg, P A 17108-1146
(717) 233-5731
Attorneys for Defendants
EXHIBIT "A"
Old Schoolhouse, an Office Condominium
Board Meeting Minutes
June 3, 2002
Board Members in attendance: Norman R. Burkholder, Eric A. Huck, Dr. Harry Meyers, Dr.
Larry Pepper, Dr. Paul Allen, Melanie DeMartyn.
The meeting began at 6:15 P.M. and adjourned at 8:45 P.M..
The meeting opened with introductions of the owners and indoctrination of the first Board
meeting. Norman Burkholder made a motion to remove the three former Board Executives,
Joseph D. Snyder, Timothy F. Nicholson, and Robert N. Elkins. Eric Huck 2nd the motion.
We elected three new executive board members. Concerns about the voting structure heavily
leaning in favor of the Winding Hill Center, L.P. was discussed. Norman Burkholder and Eric
Huck of Winding Hill Center, assumed the position due to the weight of their votes. Dr. Harry
Meyers was unanimously voted as an executive board member. The terms are for three years.
We discussed how many Executive Board meetings per year there would be. It was suggested
that we adhere to the four meetings per year as stated in the condo By-Laws. The Executive
Board meetings were set for: Wednesday, September 18,2002 at 7:00 P.M., Wednesday, January
22,2003 at 7:00 P.M., Wednesday, May 7, 2003 at 7:00 P.M. and Wednesday, September 3,
2003 at 7:00 P.M. The meetings will be held at Dr. Meyers, Pepper and Allen office.
The annual Board meeting for all condo owners was set for Monday, November 4, 2002 at 6:30
P.M.. The meeting will be held at Dr. Meyers, Pepper and Allen office.
Officers were elected. It was unanimously agreed that Norman Berkholder would remain the
treasurer and will invoice for his services at his CPA fee. Eric Huck was elected as President,
and Dr. Harry Meyers was elected Vice President. Melanie DeMartyn was unanimously elected
secretary and will be paid for her services at $27.00/ hour. Melanie DeMartyn will attend all
meetings, executive and annual. Officers terms are for three years.
A list of common condo expenses was distributed and reviewed by all. Concerns about the cost
of pest control and security were discussed. Dr. Meyers, Pepper, and Allen are currently paying
for their own private service. They will research what they currently pay and compare this with
what the Winding Hill Center has been paying. Price shopping was considered. This may be
changed to an individual unit decision or remain as a common condo expense.
It was unanimously agreed to set the condo fee at $125.00/ month. Mr. Berkholder suggested
that a special assessment be made in the case that extra expense are necessary due to weather,
roof, paving and unexpected circumstances.
Moving the group condo sign to a viewer, friendly advantage point was discussed. Winding Hill
Center is not interested in undertaking this expense. .
Page Two, June 3, 2002 Board Meeting Minutes
Ms. DeMartyn had a question about the fire wall that is to be installed in the unit under a
purchase contract. Mr. Huck stated that the expense is for Winding Hill Center and not the
individual condo owners. Ms. DeMartyn asked about painting the door and it was stated that the
condo will remain consistent in the universal color of all outside features. Ms. DeMartyn may
paint her door at her expense.
Discussions about the door number, the county deeded unit number and the utility unit number
all being different was unanimously agreed to be a problem. Currently Mr. Huck is having an
electrician survey and resolve which unit goes with which utility meter. VOl has completed
their meter and unit coordination. It was agreed that the deeded unit number was the number that
doors and utilities need to be changed too. However this could be a problem with current
tenants and expense that they may incur changing signs, letter head etc. This remains an issue to
be discussed at future meetings.
Dr. Myers, Pepper and Allen purchased their condo in 1993. Technically condo expenses for the
past nine years have been paid by Winding Hill Center. Mr. Burkholder and Mr. Huck are
requesting that they prorate 20% of actual expenses over the last nine months when they took
over the management. Discussion about what to do about the last nine years worth of expenses
was left at Dr. Meyers saying he wanted to discuss this privately with his partners. Dr. Meyers
stated that his office spent money out of their own pocket landscaping and painting.
Dr. Meyers, Pepper and Allen had a complaint about the roofleaking when the weather resulted
in ice, an improperly installed door, outside lighting not working and a cracked window. The
roof is a problem that is being investigated by Mr. Huck. Mr. Huck stated that each condo
owner is responsible for the street light outside of their door.
There are two extra undeveloped lots attached to the condominium property. Winding Hill
Center investors own these lots and they will be taken out of the condominium association.
A checking account at Pennsylvania State Bank was unanimously authorized. The account will
be under the name: Old Schoolhouse, an Office Condominium. There was a question about
names that will appear on the account. It was unclear and will be further researched to
determine how and whom the names will appear on the account. Condo members have a right
to audit the books. Melanie DeMartyn, the secretary, will sign forms agreeing to open the
account. A capital fund for future expenses was discussed but no conclusion was made on what
to do and how much.
Respectfully submitted,
lvy/d~ 1)(' 11lu.d~
Melanie DeMartyn
.'
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EXHIBIT "B"
Old Schoolhouse, An Office Condominium
Executive Board Meeting Minutes
September 18, 2002
Members present: Eric A. Huck, Norman R. Burkholder, Dr. Harry Meyers, Melanie DeMartyn
The meeting began at 7:00 P.M. and adjourned at 8:30 P.M.
A correction to the minutes was made. Dr. Harry Meyers requested that his name be corrected
on accounting papers.
The meeting opened with discussion on the real estate tax appeals. The taxes were reassessed
retroactive back to 2001 and 2002 tax years. The refunded real estate money will be mailed to
the current owners.
Dr. Meyers asked if a notice will be sent for each unit to pay the condo fee. Eric Huck stated
that no notice will be sent and the condo fee is due the first week of each month. The fee is
curreptly set at $125.00 per month.
Norman Burkholder stated that he has gotten the checking account opened. He handed out the
balance sheet as of September 20, 2002. It was noted that there is a positive eash flow at this
time. Mr. Burkholder stated that there were some bills paid by Winding Hill Center LP after
May 1,2002, which was the starting date of the Old Schoolhouse, An Office Condominium
Association. The association will need to reimburse Winding Hill Center LP for these bills
which involved lawn maintenance expenses. Eric Huck noted that the condo expenses include
five water bills for the ten units. It is unknown why the billing is presented in five bills.
The door numbers, deeded unit numbers, utility numbers are all different. Mr. Huck handed out
a spread sheet that list each unit and the designated deeded numbers with the appropriate utility
numbers. Dr. Meyers office had been paying the utilities of another unit. This will be corrected
at the utility company. Each unit had a number on their internal PP&L box that will match a
meter number on the outside box. The question of how to unify the numbers was discussed but
no solution resulted.
Jack Hurley has been the attorney for Winding Hill Center LP since the inception of the
building. He remains an active counselor for Winding Hill Center LP.
A motion was made by Dr. Meyers to withdraw lots six (6) B and six (6) D from the Old
Schoolhouse, An Office Condominium Association. Melanie DeMartyn second the motion. The
reason for this is to free the title so that the lots can be sold by Winding Hill Center LP.
Mr. Huck is applying for insurance to protect the Directors and Officers of the association.
.
. "
Page Two, September 18, 2002 Executive Board Meeting Minutes
The Old Schoolhouse, An Office Condominium will pay for winter snow removal and lawn care
which is currently being provided by Arcadian Lawn Care. It was suggested that each unit have
a covered drum of salt for sidewalks in cases where Arcadian Lawn Care are not able to attend
to the immediate area promptly. This was suggested to cover liability issues.
Pest control is a condo association responsibility. If pest problems arise that are not otherwise
scheduled on the quarterly service individual unit owners are to contact Mr. Huck so as to unify
any problems.
Alarm systems were discussed as a condo association responsibility, Currently Dr. Meyers
contracts their service through Zeplin and Winding Hill Center LP contracts through ADT. Mr.
Huck will compare cost and Dr. Meyers will be in charge of setting up a time to have an alarm
service come in and look at each individual unit assessing cost of instillation, if necessary. It
was suggested that the association pay for smoke and fire. Motion detector additions were
discussed as a fee beyond the basic smoke and fire as a responsibility of the individual unit
owner. Mr. Burkholder gave Dr. Meyers the key to the two upper end units for access during
this cost comparing.
Dr. Meyers was concerned about the weeds growing on the bank by his office. Mowing twice a
season or planting crown vetch was a suggestion. He requested that a ceiling tile be replaced in
his office due to a leaking roof. Door # four (4) remains a problem for his office due to original
problems with instillation.
Mr. Huck made a motion that the physical year end September 30. Dr. Meyers second the
motion.
The annual board meeting is scheduled for November 4,2002 at 6:30 P.M.. The meeting will be
held at Dr. Meyers, Pepper and Allen Office.
Respectfully submitted,
1YIdfU1~ 1k1J{()/J'7;
Melanie DeMartyn
Board Secretary
l.
VERlFICA nON
Norman Burkholder, deposes and says, subject to the penalties of 18 Pa. C.S.
~4904 relating to unsworn falsification to authorities, that he is the Manager of Winding
Hill Management Group, LLC, general partner of Winding Hill Center, L.P., that he
makes this verification by its authority and that the facts set forth in the Answer and New
Matter are true and correct to the best of his knowledge, information and belief.
:3 /tz/6,/ l/%t#tf~
Date Norman Burkholder
CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2004, a true and correct copy of foreoing
document was served by means of regular United States mail, first class, postage prepaid,
upon the following:
Christopher S. Lucas, Esquire
220 Cumberland Parkway, Suite 4
Mechanicsburg, Pennsylvania 17055
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COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYL VANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
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Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, PA 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 20 I
Mechanicsburg, P A 17055
CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04-267
ANSWER TO NEW MATTEI~
80. No answer is required.
81. Denied as a conclusion oflaw.
82. Denied as a conclusion oflaw.
83. Denied as a conclusion of law.
84. Denied as a conclusion oflaw.
85. Denied as a conclusion oflaw.
86. Denied as a conclusion oflaw.
87. Denied as a conclusion oflaw.
88. Denied as a conclusion oflaw.
89. Denied as a conclusion oflaw.
90. Denied as a conclusion oflaw.
91. Denied as a conclusion oflaw.
92. Denied as a conclusion oflaw.
93. Denied as a conclusion oflaw.
94. Denied as a conclusion oflaw.
95. Denied as a conclusion oflaw.
96. Denied as a conclusion oflaw.
97. Denied as a conclusion oflaw.
98. Denied as a conclusion of law.
99. Denied as a conclusion oflaw.
100. Denied as a conclusion oflaw.
101. Denied as a conclusion oflaw.
102. Denied as a conclusion oflaw.
103. Denied as a conclusion oflaw.
104. Denied as a conclusion oflaw. By way of furtJ'ler answer, each Plaintiff
paid full consideration for the entire condominium, inc:luding common areas such
as Lots B and D.
105. Denied. By way of further answer, transfening the lots at issue
constituted an abuse of fiduciary and director responsibility and improperly
benefited Defendants at the expense of Plaintiffs.
106. Denied. By way of further answer, Plaitniffl;' apparent approval was
secured through fraudulent misrepresentations as to the ownership status of Lots
B and D.
107. Denied as a conclusion oflaw. Defendants enriched themselves of some
$600,000.00 at the expense of Plaintiffs' whose interest in Lots B and D were
defeased by way of Plaitniffs' fraud.
108. It is admitted that Plaintiffs made no inquiries as to the status of payments
on the alleged mortgages. It is specifically denied that Plaintiffs' purchased with
knowledge of any mortgages. By way of further answer, Plaintiffs believed that
the condominium was owned free and clear of any mortgages.
109. Denied as a conclusion of law. By way of further answer,justice requires
that the benefits obtained by Defendants upon the conveyance of Lots B and D be
shared by the owners of Lots Band D, including Plaintiffs.
110. Denied as a conclusion oflaw. Plaintiffs paid Defendants' asking price for
their condominium units. Full consideration was paid for Plaintiffs' share of the
common areas of the condominium association.
III. Denied as a conclusion oflaw. Full consideration was paid for Plaintiffs'
share of the common areas of the condominium association.
112. Denied as a conclusion oflaw. Plaintiffs each owned a 1110 interest in
Lots B and D.
113. Denied as a conclusion oflaw.
COUNTER CLAIM
114. Admitted.
115. Admitted.
116. Admitted.
117. Admitted.
118. Denied. The Unit at issue was purchased in July.
119. Admitted.
120. Admitted in part and denied in part. It is denied that Winding Hill Center,
L.P. appealed the assessment on the DeMartyn or Wilson units. The remainder is
admitted.
121. Admitted in part and denied in part. Plaintiffs are without knowledge of
the status of Winding Hill Center, L.P.'s appeals and therefore that averment is
denied. The remainder is admitted.
122. It is admitted that DeMartyn and Wilson ultimately received a tax refund.
It is specifically denied that Winding Hill Center, L.P. had a possessory interest in
the refund at the time that it was made.
123. No response is required.
124. Denied as stated. Winding Hill Center, L.P. did not have a possessory
interest in the tax appeal award necessary to support a cause of action for
conversion under Pennsylvania law.
125. It is admitted that DeMartyn and Wilson have not remitted their tax appeal
award to Winding Hill Center, L.P. The remainder of the averment is denied.
WHEREFORE, because Winding Hill Center, L.P. cannot show a present possessory
interest in the tax appeal award as required under Pennsylvania law (See Eisenhauer v.
Clock Towers Associates, 582 A.2nd 33,36 (Pa. Super 1990) (holding that a conversion
plaintiff must show actual or constructive possession)), its cause of action for conversion
should be dismissed with costs and attorney fees under the Dragonetti Act 42 Pa.C.S.A.
~8353(3) payable to the counter-claim defendants and counsd upon the filing of a
certified bill of costs and fees.
Date: -4l oi
~~
. ,ucas, Esq.
No. 77903
Attorney for the Appellant/Respondent
CHRISTOPHER S. LUCAS & ASSOCIATES
220 Cumberland Pkwy. Ste. 4
Mechanicsburg, P A 17055
717.691.0203 voice
717.691.3130 facsimile
cslucasCailucashc:althlaw.com email
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
)
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)
)
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Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
VERIFICATION
CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04-267
I, Melanie DeMartyn, affirm that the pleadings in the foregoing ANSWER are true and
correct to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties provided in 18 Pa. C.S.A. ~4904
pertaining to unsworn falsification to authorities. . / /
IJm, ' -1)1- La./; ,J!)-1l7(/A 11 ~ -7-07 .
I, Mark Wilson, affirm that the pleadings in the foregoing ANSWER are true and correct
to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties ~r'tv1ded in 18 Pa. C.S.A. ~4904
"""""0' '" ='w= ''''';firo"o" '" "dmri . ,. l
Date: ;.~ 1-04-
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYL VANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
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)
)
)
)
)
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Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 20 I
Mechanicsburg, PA 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04-267
I, Christopher S. Lucas, hereby certifY that I have served a copy of the ANSWER
TO NEW MA ITER AND COUNTER CLAIM upon the attorney for the Defendants at
the place and in the manner set forth below:
FIRST CLASS U.S. MAIL
Timothy Nieman, Esq.
Rhoads and Sinon
One Market Square
P.O. Box 1146
Hanisburg, PA 17108-1146
Date: l{ I i ( () 4
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Christopher S. Lucas
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COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 20 I
Mechanicsburg, P A 17055
)
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CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04..267
FIRST AMENDED ANSWER TO NEW MATTER
80. No answer is required.
81. Denied as a conclusion oflaw.
82. Denied as a conclusion oflaw.
83. Denied as a conclusion oflaw.
84. Denied as a conclusion oflaw.
85. Denied as a conclusion oflaw.
86. Denied as a conclusion oflaw.
87. Denied as a conclusion oflaw.
88. Denied as a conclusion oflaw.
89. Denied as a conclusion oflaw.
90. Denied as a conclusion of law.
91. Denied as a conclusion oflaw.
92. Denied as a conclusion oflaw.
93. Denied as a conclusion oflaw.
94. Denied as a conclusion oflaw.
95. Denied as a conclusion oflaw.
96. Denied as a conclusion oflaw.
97. Denied as a conclusion oflaw.
98. Denied as a conclusion oflaw.
99. Denied as a conclusion oflaw.
100. Denied as a conclusion oflaw.
10 I. Denied as a conclusion oflaw.
102. Denied as a conclusion oflaw.
103. Denied as a conclusion oflaw.
104. Denied as a conclusion of law. By way of fulther answer, each Plaintiff
paid full consideration for the entire condominium, including common areas such
as Lots Band D.
105. Denied. By way of further answer, transferring the lots at issue
constituted an abuse of fiduciary and director responsibility and improperly
benefited Defendants at the expense of Plaintiffs.
106. Denied. By way of further answer, Plaitniffl;' apparent approval was
secured through fraudulent misrepresentations as to the ownership status of Lots
Band D.
107. Denied as a conclusion oflaw. Defendants enriched themsdves of some
$600,000.00 at the expense of Plaintiffs' whose interest in Lots B and D were
defeased by way of Plaitniffs' fraud.
108. It is admitted that Plaintiffs made no inquiri(~s as to the status of payments
on the alleged mortgages. It is specifically denied that Plaintiffs' purchased with
knowledge of any mortgages. By way of further answer, Plaintiffs believed that
the condominium was owned free and clear of any mortgages.
109. Denied as a conclusion oflaw. By way offurther answer, justice requires
that the benefits obtained by Defendants upon the conveyance of Lots B and D be
shared by the owners of Lots B and D, including Plaintiffs.
110. Denied as a conclusion oflaw. Plaintiffs paid Defendants' asking price for
their condominium units. Full consideration was paid for Plaintiffs' share of the
common areas of the condominium association.
II I. Denied as a conclusion oflaw. Full consideration was paid for Plaintiffs'
share ofthe common areas of the condominium association.
112. Denied as a conclusion oflaw. Plaintiffs ea,:;h owned a 1110 interest in
Lots Band D.
113. Denied as a conclusion oflaw.
COUNTER CLAIM
114. Admitted.
115. Admitted.
116. Admitted.
I 17. Admitted.
118. Denied. The Unit at issue was purchased in July.
I 19. Admitted.
120. Admitted in part and denied in part. It is denied that Winding Hill Center,
L.P. appealed the assessment on the DeMartyn or Wilson units. The remainder is
admitted.
121. Admitted in part and denied in part. PlaintifIs are without knowledge of
the status of Winding HilI Center, L.P.'s appeals and therefore that averment is
denied. The remainder is admitted.
122. It is admitted that DeMartyn and Wilson ultimately received a tax refund.
It is specifically denied that Winding HilI Center, L.P. had a possessory interest in
the refund at the time that it was made.
123. No response is required.
124. Denied as stated. Winding Hill Center, L.P. did not have a possessory
interest in the tax appeal award necessary to support a cause of action for
conversion under Pennsylvania law.
125. It is admitted that DeMartyn and Wilson haw not remitted their tax appeal
award to Winding Hill Center, L.P. The remainder of the averment is denied.
126. Denied as a conclusion oflaw.
127. Denied as a conclusion oflaw.
WHEREFORE, because Winding Hill Center, L.P. cannot show a present possessory
interest in the tax appeal award as required under Pennsylvania law (See Eisenhauer v.
Clock Towers Associates, 582 A.2nd 33, 36 (Pa. Super 1990) (holding that a conversion
plaintiff must show actual or constructive possession)), its cause of action for conversion
should be dismissed with costs and attorney fees under the Dragonetti Act 42 Pa.C.S.A.
~8353(3) payable to the counter-claim defendants and counsel upon the filing of a
certified bilI of costs and fees.
Date:
'111'(60/
.
~~
Christopher S. Lucas, Esq.
No. 77903
Attorney for th(~ Appellant/Respondent
CHRISTOPHER S. LUCAS & ASSOCIATES
220 Cumberland Pkwy. Ste. 4
Mechanicsburg. P A 17055
717.691.0203 voice
717.691.3 130 facsimile
cslucasCailucashealthIaw.com emaiI
.
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, PAl 7055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 20 I
Mechanicsburg, P A 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 20 I
Mechanicsburg, PAl 7055
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CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04..267
VERIFICATION
I, Melanie DeMartyn, affirm that the pleadings in the foregoing ANSWER are true and
correct to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties provided in 18 Pa. C.S.A. ~4904
pertaining to unsworn falsification to authorities. . / /'
Date: 'd-711"JU/h ,M(JAt--1 -?07
;
I, Mark Wilson, affirm that the pleadings in the foregoing ANSWER are true and correct
to the best of my knowledge, information and belief.
I make the foregoing affirmation subject to the penalties pr \oided in 18 Pa. C.S.A. ~4904
j
,
pertaining to unsworn falsification to authori . s.
Date:
;-~ 1-04-
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, PAl 7055
PLAINTIFFS
v.
Eric Huck, Individually
5 Kacey Court
Suite 201
Mechanicsburg, P A 17055
Winding Hill Center L.P.
5 Kacey Court
Suite 201
Mechanicsburg, PAl 7055
)
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CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04-267
I, Christopher S. Lucas, hereby certify that I have served a copy ofthe ANSWER
TO NEW MATTER AND COUNTER CLAIM upon the attorney for the Defendants at
the place and in the manner set forth below:
FIRST CLASS U.S. MAIL
Timothy Nieman, Esq.
Rhoads and Sinon
One Market Square
P.O. Box 1146
H.n,oo~ PA 1710:c,~.::: '
Date: 'i \ \ ~ \ 0,\
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SHERIFF'S RETURN - OUT OF COUNTY
'CASE NO: 2004-00267 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DEMARTYN MELANIE ET AL
VS
HUCK ERIC ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
HUCK ERIC
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of YORK
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On April
29th , 2004 , this office was in receipt of the
attached return from YORK
Sheriff's Costs: So answers:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep York County 56.50
.00
93.50
04/29/2004
CHRISTOPHER LUCAS
County
Sworn and subscribed to before
this /3 ~day of
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SHERIFF'S RETURN - OUT OF COUNTY
'CASE NO: 2004-00267 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DEMARTYN MELANIE ET AL
VS
HUCK ERIC ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
WINDING HILL LP
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of YORK
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On April
29th , 2004 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing 6.00
Out of County .00
Surcharge 10.00
.00
.00
16.00
04/29/2004
CHRISTOPHER LUCAS
So answers:
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R. Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this /.3 ~day of ~
eX-O'" A.D.
'1.,t. I:.. ~:-ott,~o'~1!y" 4~
----------~----_._--~._.----~~
-
\!IIJnI-~
28 EAST MARKET ST.. YORK. PA 17401
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
INSTR\JCTIONS
PLEASE TYPE ONLY LINE I.TNlU 12
DO NOT DETACH ANV COPES
1. PLAINTIFF/Sf
Melanie DeMartyn et al
3. DEFENDANT/S!
Eric Huck et al
2. COURT NUMBER
Notice & Complaint
4. TYPE OF \NRIT OR COMPLAINT
04-267 civil
SERVE { 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD
....... Eric Huck
..".. 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT, NO., CITY, BORO, TWP., STATE AND ZIP CODE)
AT 106 Branblewood Lane Lewisberry, PA Fairview Twp
7. INDICATE SERVICE: r.J PERSONAL r.J PERSON IN CHARGE "DEPUTIZE ~~T. ~Il d 0 1ST CLASS MAil 0 POSTED Q OTHER
NOW January 30 ,20~ I, SHERIFF OF .ii.~OUNTY. PA, do hereby depulizelhe sheriff of
York COUNTY 10 execute~,ril'1l".,qy;ake return ccording
to law. This deputization being made at the request and risk of the plaintiff. .r ~;; ---< J~
SHERIFF OF COUNTY
8. SPECiAL INSTRUCTIONS OR OTHER INFORMATION THAT Will ASSIST IN EXPEDITING SERVICE: d
Illlli .... -=- "_, .
. .
~
NOTE: ONLY APPLICABLE ON IT EX: . Any deputy sheriff levying upon or attaching any property under within writ may leave same
without a watchman, in custody of whomever is feu possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before &herift's sale thereof.
9. TYPE NAME an'd ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE. . 110. TELEPHONE NUMBER 111 DATE FILED
, CHRISTOPHER LUCAS 220 CUMBERLAND PKl-JY ste I, MECHANICSBURG, 691-0203
PA 17055 1-71-04
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed).
CUMBERLAND CO SHERIFF
. _AU mbW f:'bRWE'aF' _ lIl1Jtli\ '"" 1JOWrI~m'~ fJIl.DW M&LJe
13. I acknowledge receipt of the writ < 114. DATE RECEIVED 115. Ex~~
o'complaintas indica'ed above. / R. AHREN~' 2-2-01, x~
16. HOW SERVED, PERSONAL (I) RESIDENCE (..( POSTED ( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( SEE REMARKS BEL<
17. 0 I hereby certify and retum a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.)
18. NAME rr. OF INOlVl AL SERVED / LIS",: ADDRE~SJiERE 17~OT SHOVlIN ABOVE (Relationship to Defendant) 119. Date '! se~ 120. Time of Service
C/2, c.. !-fUel\. ~-II-O'f g-.a.> M
21 ATTEMPTS I ~; 1111 RL I Date I Time l'i I'n' I Oatti~ I Miles lint I Date jlime I Miles lint I Date I Time I Miles I'nt I Date I Ti~ I Miles I"
22. REMARKS,
10'\
~o
12~~d~~~ Costs I ~rD0s~ 125 N~ w;:50 127 POSmgel ~b Toml 29. Pound Iq. Nom~ 131. Su~g. f5-J:.251 ~3~~t~
34. Foreign County Costs 135 Advance Costs 136 Service Costs \37 Nota~". 138. Mileage/Postagel t Found 139. Total Costs 140. Costs Due or Refund
2 0 ~ '1JjWO ANSWERS
44. Sig tureof . I ' j,'" -133
Oep. Shertn cr { ,
OTARY . Sig tureofYork
Cou Sheriff ~ //-
IIILLtAM '. HOSE '/fA4/l?Y.,k
48. Signature of Foreign
County Sheriff
RN SIGNATURE
41. AFFIRMED and subscribed to before me this
42 day 0' APRIL ,200443.
r---'-'-.-- ...,.---.-.--.'-'.-'
45.~EyI~t1'1
47. DATE
4-?O-04
49. DATE
151 DATE: RECEIVED
1. \lVHITE -Issuing Authority 2. PINK -Anomey 3. CANARY - Sheriff's Office 4. BLUE - Shenff's OffICe
-+-
[J
TH'Of'RHTINGEXPRE!S5.IIC.YOFlK.PA17<102 "5!':l68-8U
~
COUNTY OF YORK :l6J.. J..-.
OFFICE OF THE SHERIFP;
SERVICE CALL
(717) 771-9601
28 EAST MARKET ST., YORK. PA 17401
Melanie DeMartyn et al
_.IM;TIOl'fS
PLEAS~ T'VPI! "":UiE,. THRU 12
00 N&T1!)InlAPt AN"t' eOPl&S
2. .cOUB.T6WJMB~R .
U4-;l :/ C1Vll
4. TYPE OF VVRIT OR COMPLAINT
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
1 PLAINTIFF/Sf
3 DEFENDANT/SI
Eric Huck et al Notice & Canpaint
SERVE { 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED. OR SOLD
.. Winding Hill LP
6. ADDRESS (STREET OR RFO WITH BOX NUMBER. APT. NO., CITY, BORD, TVIIP., STATE AND ZIP CODE)
AT 106 Bramblewood Lane Lewisben:v, PA Fairview Two
7. INDICATE SERVICE: 0 PERSONAL o PERSON IN CHARGE . DEPUTIZE .0 can. ~IL d o 1ST CLASS MAIL
l:umocr.l.::m
NOW January 30 . 20~ I. SHERIFF OF ""COUNTY. PA, do hereby deputize the sheriff of
York COUNTY to execute~~n~..;;~r;t~r~Of according
to law. This deputization being made at the request and risk of the plaintiff.r ~~......- ?/' ~
, -. sHERI ,...~
.. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WLL ASSIST IN EXPEDITING SERVICE' ~
o POSTED
Q OTHER
'" .]; .. - - ., ... -
NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION; N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon Of attaching any property under within writ may leave same
without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sheriff's sale thereof.
9. TYPE NAME and ADDRESS of ATTORNEY f ORIGINATOR and SIGNATURE
CHRISTOPHER LUCAS X
12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW:
110. TELEPHONE NUMBER \11. DATE FILED
691-0203 1-21-04
(This area must be completed if notice is to be mailed).
CUMBERLAND CO SHERIFF
____FQRWE'W'.... :aAttir -'- 00." WRR'e sew 1'HIs LIE
13. I acknowledge receipt of the writ 114. DATE RECEIVED
or complaint as indica'ed above. / R. AHRENS ijXijX~$ 2 - 2 - 0
16 HOW SERVED: PERSONAL ( RESIDENCE ( ) POSTED ( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BEL'
17. Q I hereby ce.ctify anti ................. ~OT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.)
18. N~':: A.mE>TLf'"~9IfA' ~RVED f LIST ADDRES~ HERE 1Flr. SHO~ ~BOVE (Relationship to Defendant) 119. Date D!~ervr' 120. Ti~,Of Seryjce
~ ~ ;?'--?/C:.. /7", JCp<(. c..2,lrtJ OaJfri
21 ATTEMPTs~~ellr~ 13~s I ~L r~ l11me 1'3r I'n' I Date I Time I Miles I In' I Dare l11me I Miles I In' loare I Time I Miles I In' I Date I Time 'Miles I "
22. REMARKS:
23. Advance Cosls 124. Se",ice Costs 125. NIF 126. Mileage 127. PostageI2.. Sub Total 29. Pound ~ 30. Notal)' /31, su,""g'l32 Tot. Cost, I 33 Cosls Due '" Refund IChaO>
301. Foreign County Costs 135. Advance Costs 136. Service Costs 137. Notary C 138. Mileagef~psta Not Found \39. Total Costs 140. Costs Due or Refund
41. AFFIRMED and subscribed to before me this 20 44. Sig lureof 4 /} ,1S0ANSWER~.(_ 73 45DATE~//1
42 dayof APRIL . ~?O OL.3 Sheriff - /7~ /", /.,. 0"- t/'-
"V, k "M' ~"t PJl R
MELlSSAJ S' .\~~t;I\. Notary IbN TA Y iO tureofYork ~ 47. DATE
C.tv Of "'or;.; _;: co~n Cou Shenff ~ /L
M CO'"";"'C,_~.,::~c 'D 20, D06 \JILLI ~1 HOSE ,~ 4-70-04
f' / A A ~ 48 Signature of Foreign 49. DATE
4tI"~~~ ... 4-, CountyShenff
K IJIJl..EDGE RECEIP1' OF THE SHERIFF'S N S~NATURE 151. DATE RECEIVED
AUTHORIZED ISSUING AUTHORITY AND TI E
1. WHITE -Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4_ BLUE - Sheriffs Office
---~---~-~r-'-
""'"' --',>
COUNTY OF YORK
OFFICE OF THE SHERIFF
SERVICE CALL
(717) 771-9601
28 EAST MARKET ST.. YORK. PA 17401
rv.eJanie S~"l'l/jartyn et al
..L lMkitt<<llS
PlDSll\TY...t:. ONly ~1Ii1- ~ 12
DO lIIn:tJB-~ft(IIT COI ~
2, BOUIU .NUMBER . 1
4-Lh-,r CJ\.~_l
SHERIFF SERVICE
PROCESS RECEIPT and AFFIDAVIT OF RETURN
1. PLAINTIFF/Sf
3. DEFENDANT/Sf
4. TYPE OF WRIT OR COMPLAINT
'Eric Hn. -'J~ ~f- a1 f-.L::>ti("t:.) f~ (:CfT1pajrd~
SERVE { 5. NAME OF INDMDUAl. COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD
. 6 ADD~:~~S;~E:~~!~;O ~TH BOX NUMBER, APT NO., CITY, BORO, "fVt5l., STATE AND ZIP CODE)
AT 1()fi Bramblewoo0 '-ane Lewlshe!'ry, Pl. fanview'Iw)'!
7, INDICATE SERVICE' CI PERSONAL CI PERSON IN CHARGE racDEPUTlZE ~~'~.lI1d C1'ST CLASS MAlL CI POSTED CI OTHER
NOW ,',m\lincy~t , 20~ I, SHERIFF OF T l vOUNTY, PA, do hereby deputize the sheriff of
York COUNTY to execute thi$.~,d,ri'lake return t ccording
to law. This deputization being made at the request and risk of the plaintiff, f;'- /;';;::';v''''''''''<"::f~' ~
SHERIFF OF DUNTY
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT Will ASSIST IN EXPEDITING SERVICE: Cumber 1 Clnd
I:.
,iOY
--J ,~. \ t-,:
'.DI.
NorE: ~L Y APPLICABLE ON WRIT OF EXECUll0fl: N.B. WAIVER OF WATCHMAN ~ Any deputy sheriff levying upon or attaching any property under within writ may leave same
without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liabilrty on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sherilrs sale thereof.
9, lYPE NAME and ADD~E0~.~~.~~~NEYf ORIGINATOR and SIGNAllJRE I'd: ~~~E~HO~7 NUMBER I"J .?!~ ~'bEp
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW (This area must be completed if notice is to be mailed).
;....,
SflACE BELOW f:_lJSE Of' TIE ~,. - DO NOT ~ BELOW THIS LINE
13.~:;::::=:~f:=rt / :" ._.i~; ~, 11fLiB~~i~CEI,~9:. r5.~p~a~~~/~~~~~9D'
16. HOW SERVED: PERSONAL ( / RESIDENCE ( POSTED ( ) POE ( SHERIFPS OFFICE (-; -- OTHER ( SEE REMARKS eElI
17. Cl I herej)y..certify~ -...- ~ NgT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.)
,. ~~~~m~E~~~_~R\IIOD I L;ST ADDRES~H~RE IF NOT ~o~~ (Relati;""ip to DelendanQ 1'9',:le Ofr~,,:~7" 120 Ti\" ~ftf~
2'ATTEMPTSI~arem~IMi~1 ;"~r-ITo~I~3rllm'IDareITo~IMi~llnlIDareIToneIM"'I'nlloareITi~IMile.lint IDaleITime/Miles, "
22. REMARKS: '
23, Advance Cosl. 124' Service CO'''j25' NIF 126, Mileage 127, Postage12., Sub Totalj29, Pound 130, Notary 13', Su""'g, 132' Tol. Costs I " CoslsDue '"Refuod IChec>
34. ForeIgn County Costs J~..~e05lliI36, Service Costs 137, NotaryCert 13.!M~fc;.FOUnd 139, TotaiCosls 140, Co.l. Due or Refuod
41.AFFIRMEDand,ub~tot>eiore~lhi' '., ?i.J . ," /111:~ )// /' ;,1SOANSWER~ / I i ~
42 day of l ".,' i>; . 20 ~43 PRO~~T~~y:'!,I':. ,I /'Ctu-t- ' /~, / :: :::,1 !.
, - - -- CoUntY SheriII )1 ,/ ,~/ /
~'~4~~~~~ ~~~.:;.;~...'w'" /~UV~: ~rr"~.::":';;C ....
1::VVHITE..lssuing Authority 2. PINK -Attorney 3. CANARY - Sherifl's Offic:e 4. BLUE -Sllerifl's Office
I-
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn )
220 Cumberland Pkwy. Ste. 5 )
Mechanicsburg, P A 17055 ) CIVIL DIVISION
)
Mark Wilson ) JURY TRIAL DEMANDED
220 Cumberland Pkwy. Ste 8 )
Mechanicsburg, PAl 7055 ) No. 04-267
)
PLAINTIFFS ) AMENDED COMPLAINT
)
v. ) By Stipulation of Both Parties
)
Winding Hill Management LLP )
5 Kacey Court ) Counsell of Record for Plaintiff:
Suite 101 )
Mechanicsburg, P A 17055 ) Christopher S. Lucas 77903
) Law Offices Of Christopher S. Lucas
) LLC
Winding Hill L.P. ) 220 Cumberland Pkwy. Ste. 4
5 Kacey Court ) Mechanicsburg, P A 17055
Suite 101 )
Mechanicsburg, P A 17055 ) 717.691.0203 telephone
) 717.691.3130 facsimile
DEFENDANTS ) cslucas@lucashealthlaw.com email
)
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn )
220 Cumberland Pkwy. Ste. 5 )
Mechanicsburg, PAl 7055 ) CIVIL DIVISION
)
Mark Wilson ) JURY TRIAL DEMANDED
220 Cumberland Pkwy. Ste 8 )
Mechanicsburg, P A 17055 ) No. 04-267
)
PLAINTIFFS )
)
v. )
)
Winding Hill Management LLP )
5 Kacey Court )
Suite 101 )
Mechanicsburg, PAl 7055 )
)
Winding Hill L.P. )
5 Kacey Court )
Suite 101 )
Mechanicsburg, P A 17055 )
)
DEFENDANTS )
COMPLAINT
AND NOW come the above named Plaintiffs (hereinafter sometimes referred to
as "unit owners"), by and through their attorneys in this matter, Christopher S. Lucas &
Associates, and say:
THE PARTIES
I. Winding Hill, L.P (hereinafter sometimes referred to as "Declarant") is a
Pennsylvania limited partnership with a principal place of business at 5 Kacey
Court, Suite 101, Mechanicsburg, PA 17055.
2. Winding Hill Management LLP is, and at all relevant times was, a general partner
of and investor in the Declarant, Winding Hill, L.P.
3. Harry Meyers, Larry Pepper and Paul Allen, as partners, purchased from the
Declarant business condominium units 6 and 7 in 1993.
4. Melanie DeMartyn purchased from the Declarant business condominium unit
number five on April 24, 2002.
5. Mark Wilson purchased from the Declarant business condominium unit number 8
on or about July I, 2002.
6. Old Schoolhouse originally included LOT A, LOT Ei and LOT D. All business
condominium units are built on LOT A. LOT B and LOT D are the subjects of
this litigation.
THE HOMESTEAD NOTE AND MORTGAGE
7. Upon information and belief, on or before August 12, 1992, the Declarant
acquired a fee interest in certain parcels of real estat<: hereinafter referred to as
LOT B and LOT D as shown on the PLOT PLAN attached as Exhibit 1.
8. Upon information and belief, in exchange for acquiring the interest in LOT B and
LOT D, the Declarant issued a note to Homestead Savings and Loan ("Homestead
Note") in the principal amount of approximately $305,000.
9. Upon information and belief, the Homestead Note was secured by an interest
bearing mortgage held by Homestead Savings and Loan on LOT B and LOT D.
10. Upon information and belief, Homestead Savings and Loan transferred its interest
in the Homestead Note and mortgage to Homestead Trust Number Five, an entity
created by the Resolution Trust COrPoration.
II. Upon information and belief, the Declarant never paid any interest or principal on
the Homestead Note and mortgage obligation.
12. Upon information and belief, as of November 1,2002, the outstanding interest
and principal was approximately $600,000.
13. Upon information and belief, on or about November 25,2002, the Declarant
purported to convey to Homestead Trust Number Five the deed to LOT B and
LOT D in exchange for satisfaction of the principal imd interest due on the note
and mortgage.
CONDOMINIUM CREATION AND LOT BAND D WITHDRAWAL
14. Old Schoolhouse, an Office Condominium ("Old Schoolhouse") is a flexible
condominium association formed by the Declarant under the Uniform
Condominium Act (68 Pa. C.S. ~3IOI, et seq.) and in which the Plaintiffs
purchased business condominium units.
15. On or about August 12, 1992, the Declarant created a Flexible Condominium and
caused to be recorded a DECLARATION OF CONDIMINIUM OLD
SCHOOLHOUSE, AN OFFICE CONDOMINIUM ("DECLARATION")
conforming to the requirements of 68 Pa. C.S. ~3206 at the Cumberland County
Recorder of Deeds Office (Book 424, Page 929, attached as Exhibit 2).
16. In Article VI of the DECLARATION, the Declarant reserved the right, in
conformity with 68 Pa. C.S. ~32I2(2), to withdraw (~ertain real estate hereinafter
referred to as LOT B and LOT D for a period of7 y,:ars from the August 12, 1992
recording date.
17. The seven year period permitted by 68 Pa. C.S. ~32I2(2) Article VI of the
DECLARATION expired on August 13, 1999.
18. LOT B and LOT D were not withdrawn within the 7 year period permitted by 68
Pa. C.S. ~3212(2)/Article VI of the DECLARATION.
19. Plaintiffs DeMartyn, and Wilson both owned units after the expiration of the
withdrawal period identified in 68 Pa. C.S. ~3212/Article VI of the
DECLARATION expired on August 13, 1999, viz August 13, 1999.
20. Accordingly, after the expiration of the withdrawal period, Plaintiffs DeMartyn
and Wilson owned an interest in LOT A, LOT B and. LOT D (which collectively
comprised Old Schoolhouse).
21. The first Old Schoolhouse board meeting was held on June 3, 2002.
22. At that time, and at all relevant times, there were ten shares in Old Schoolhouse,
one share corresponding to each business condominium unit in Old Schoolhouse.
23. At the time of the June 3, 2002 board meeting, the Declarant held seven shares of
the ten available in Old Schoolhouse.
24. Representing the Declarant's seven shares at the Jun,e 3, 2002 board meeting were
Winding Hill Management LLP and Norman Burkholder.
25. Of the remaining three shares, one share was held by Plaintiff DeMartyn (Plaintiff
Mark Wilson had not yet purchased his unit).
26. In addition to Representatives of Winding Hill Management LLP, Plaintiff
DeMartyn was in attendance at the June 3, 2002 board meeting.
27. At the June 3, 2002 board meeting, the Declarant voted its seven shares and
elected Winding Hill Management LLP as president of Old Schoolhouse.
28. The rninutes of the June 3,2002 board meeting indicate that Plaintiff DeMartyn
was told by Representatives of Winding Hill Management LLP "There are two
extra undeveloped lots attached to the condominium property. Winding Hill
Center investors own these lots and they will be taken out of the condominium
association. "
29. The next Old Schoolhouse board meeting was held on September 18, 2002.
30. Representing the Declarant at the September 18, 2002 board meeting were
Representatives of Winding Hill Management LLP.
31. In addition to Representatives of Winding Hill Management LLP, Plaintiff
DeMartyn was in attendance at the September 18,2002 board rneeting.
32. At the start of the September 18, 2002 board meeting" Representatives of Winding
Hill Management LLP presented a single signature page to PlaintiffDeMartyn
and stated words to the effect that her signature was necessary in order for the
Declarant to sell LOT B and LOT D.
33. PlaintiffDeMartyn expressed reservations about signing.
34. Representatives of Winding Hill Management LLP then stated words to the effect
that the condominium owners had no right to that land and that the signatures are
a simple formality.
35. Plaintiff DeMartyn then agreed to sign the signature page and did in fact sign the
signature page but only because she was informed by Representatives of Winding
Hill Management LLP that they had no interest in LOT B and LOT D.
36. PlaintiffDemartyn's signature was not notarized at the September IS, 2002 board
meeting.
37. Harry Meyers then made a motion to withdraw LOT B and LOT D and the
motion was seconded by PlaintiffDeMartyn.
3S. No copy ofthe signature page or other document pUrPorting to withdraw LOT B
and LOT D was ever, at any time, provided to PlainltiffDeMartyn.
39. On or about September 19, 2003, Representatives of Winding Hill Management
LLP telephoned Plaintiff Wilson and informed Wilson with words to the effect
that Wilson needed to sign a form for the Association.
40. On or about September 22, 2003, Winding Hill Management LLP presented
Plaintiff Wilson with a document and requested Wilson's signature.
41. Plaintiff Wilson expressed reservations about signing.
42. Representatives of Winding Hill Management LLP stated words to Plaintiff
Wilson to the effect that the others have signed and you need to also sign.
43. Plaintiff Wilson asked Representatives of Winding Hill Management LLP, "I am
not giving away any land am I?"
44. Representatives of Winding Hill Management LLP responded, ''No.''
45. Representatives of Winding Hill Management LLP then stated words to Plaintiff
Wilson to the effect that the land belongs to Winding Hill and the signatures are
just a formality.
46. Plaintiff Wilson then signed the signature page that was presented by Winding
Hill Management LLP.
47. Plaintiff Wilson's signature was not witnessed or notarized at that time.
48. Upon information and belief, Winding Hill Management LLP later had the
signature of Plaintiff DeMartyn notarized at another time and location.
49. Upon information and belief, on or about December 2,2002, Representatives of
Winding Hill Management LLP then affixed the signature page with the after
supplied notary seals to a document titled: AMENDMENT TO DECLARATION
OF CONDOMINIUM OLD SCHOOLHOUSE, AN OFFICE CONDOMINIUM
("AMENDMENT") and caused said document to be recorded at the Cumberland
County Recorder of Deeds Office (Book No. 692, Page 1154, attached as Exhibit
3).
50. Upon information and belief, the Declarant then deeded LOT B and LOT D to
Homestead Trust Number Five in exchange for forgiveness of approximately
$600,000.00 in rnortgage obligation.
51. In making statements at Old Schoolhouse board me<otings to Plaintiff DeMartyn
as well as making statements to Mark Wilson individually, Representatives of
Winding Hill Management LLP were acting in the (:ourse and scope of their
responsibilities as general partner for the Declarant.
52. In securing the notarization of Plaintiffs' signatures, Representatives of Winding
Hill Management LLP were acting in the course and scope of his responsibilities
as general partner for the Declarant.
COUNT I
EQUITABLE CLAIM FOR BREACH OF FIDUCIARY DUTY AND DUTY OF
GOOD FAITH AND FAIR DEALING
53. The foregoing paragraphs are inCOrPorated.
54. The Declarant was under a statutory duty of good faith and fair dealing imposed
by68 Pa. c.s. ~2I12.
55. At all relevant times, Winding Hill Management LLP was an investor in Winding
Hill, L.P. with a financial interest in the disposition of LOT B and LOT D.
56. At all relevant times, Winding Hill Management LLP was under a fiduciary duty
to the Plaintiff unit owners of Old Schoolhouse.
57. At all relevant times, Winding Hill Management LLP, as general partner in the
Declarant was under a fiduciary duty to Winding HiIll, L.P.
58. The interests of Winding Hill, L.P. and Old Schoolhouse were materially adverse
with respect to the disposition of LOT B and LOT D.
59. Winding Hill breached its duty of good faith and fair dealing by inducing the
Plaintiff unit owners to alienate their interest in LOT B and LOT D to their
detriment and to the benefit of the Declarant and Huck.
60. On or about December of 2002, when Winding Hill, L.P deeded LOT B and LOT
D to Homestead Trust Number Five, the Plaintiffs collectively held a 4/1 Oth
interest in Old Schoolhouse.
61. On account of the breach of fiduciary duty and duty of good faith and fair dealing,
the approximately $600,000.00 benefit of alienating LOT B and LOT D accrued
solely to Winding Hill, L.P. and Winding Hill Mana.gement LLC rather than
being shared proportionally by all unit owners in Old Schoolhouse.
WHEREFORE, Plaintiffs respectfully request that the court award them 4/1 Oths of the
$600,000 benefit received by Winding Hill, or $240,000 or in the alternative,
equitably re-allocate the shares in the Old Schoolhouse Office Condominium
Association with Winding Hill's three shares going to the Plaintiffs in lieu of
compensatory damages.
COUNT II
FRAUD IN THE INDUCEMENT
62. The foregoing paragraphs are inCOrPorated.
63. The Declarant was under a statutory duty of good faith and fair dealing imposed
by 68 Pa. C.S. ~21 12.
64. Winding Hill Management LLP, with knowledge of falsity, or recklessness as to
truth or falsity, made a false representation that LOT B and LOT D did not belong
to Old Schoolhouse when, during the during the September IS, 2002 board
meeting, Plaintiff DeMartyn was given words to the effect that the condominium
owners had no right to that land and that the signatures were a simple formality.
65. Winding Hill Management LLP, with knowledge offalsity, or recklessness as to
truth or falsity, made a false representation that LOT B and LOT D belonged to
Winding Hill when, during the June 3, 2002 board meeting, PlaintiffDeMartyn
was told that "There are two extra undeveloped lots attached to the condominium
property. Winding Hill Center investors own these lots and they will be taken out
of the condominium association."
66. Winding Hill Management LLP, with knowledge of falsity, or recklessness as to
truth or falsity, made a false representation to Plaintiff Wilson when the answer
"No." was given to the question: "I am not giving away any land am I?"
67. Winding Hill Management LLP, with intent to deceive and mislead Plaintiff unit
owners into reliance thereon, secured Plaintiff unit owners signatures under false
pretences including:
a. Misstatements as to ownership of LOT B and LOT D.
b. Failure to disclose the body of the AMENDMENT to Plaintiff unit
owners.
c. Failing to attach the body of the AMENDMENT to the signature page
prior to securing Plaintiff unit owners' signature.
d. Failing to provide a copy of the AMENDMENT to Plaintiff unit owners.
e. Failing to contemporaneously notarize the signature page offered to
Plaintiff unit owners.
WHEREFORE, Plaintiff Plaintiffs respectfully request Ithat the court award them
4/IOths of the $600,000 benefit received by Winding Hill, or $240,000 or in the
alternative, equitably re-allocate the shares in the Old S,:;hoolhouse Office
Condorninium Association with Winding Hill's three shares going to the Plaintiffs in
lieu of cornpensatory damages as well as exemplary damages because Defendants'
fraud was outrageous.
COUNT III
NEGLIGENT MISREPRESENTATION
68. The foregoing paragraphs are inCOrPorated.
69. The Declarant was under a statutory duty of good faith and fair dealing imposed
by 68 Pa. C.S. ~2I 12.
70. Winding Hill Management LLP negligently made a false representation that LOT
B and LOT D did not belong to Old Schoolhouse.
71. Winding Hill Management LLP negligently made a false representation that LOT
B and LOT D belonged to Winding Hill.
72. Winding Hill Management LLP negligently made a false representation that
Plaintiffs were not alienating an interest in land.
73. Winding HilI Management LLP negligently secured Plaintiff unit owners
signatures under false pretences including:
a. Misstatements as to ownership of LOT B andl D.
b. Failure to disclose the body of the AMENDMENT to Plaintiff unit
owners.
c. Failing to attach the body of the AMENDMENT to the signature page
prior to soliciting Plaintiff unit owners' signature.
d. Failing to provide a copy of the AMENDMENT to Plaintiff unit owners.
e. Failing to contemporaneously notarize the signature page offered to
Plaintiff unit owners.
WHEREFORE, Plaintiff Plaintiffs respectfully request that the court award them
4/IOths of the $600,000 benefit received by Winding HiH, or $240,000 or in the
alternative, equitably re-allocate the shares in the Old Sehoolhouse Office
Condominium Association with Winding Hill's three shares going to the Plaintiffs in
lieu of compensatory damages.
Dated: July.Jd:1, 2005
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ChriStOpher S. LUcas
ATTORNEY FOR THE PLAINTIFFS
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Pa. No. 77903
220 Cumberland Pkwy. Ste. 4
Mechanicsburg, PA 17055
717.691.0203 telephone
717.691.3130 facsimile
cslucasCailucasheaIthlaw.com emaiI
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn
220 Cumberland Pkwy. Ste. 5
Mechanicsburg, P A 17055
Mark Wilson
220 Cumberland Pkwy. Ste 8
Mechanicsburg, P A 17055
PLAINTIFFS
v.
Winding Hill Management LLP
5 Kacey Court
Suite 101
Mechanicsburg, P A 17055
Winding Hill L.P.
5 Kacey Court
Suite 101
Mechanicsburg, P A 17055
DEFENDANTS
VERIFICATION
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CIVIL DIVISION
JURY TRIAL DEMANDED
No. 04..267
I, Melanie DeMartyn, affirm that the pleadings in the foregoing COMPLAINT are
true and correct to the best of my knowledge, information allld belief.
I make the foregoing affirmation subject to the penalties provided in 18 Pa.
C.S.A. ~4904 pertaining to unsworn falsification to authorities.
Date: 7. ;2.fJ .05- ~ .JVdtjyt~~.J
I, Mark Wilson, affirm that the pleadings in the foregoing COMPLAINT are true
and correct to the best of my knowledge, information and helief.
I make the foregoing affirmation subject to the p'enalties provided in 18 Pa.
C.S.A. ~4904 pertaining to unsworn falsifica .
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Date: ,_ to - 0"
COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY PENNSYLVANIA
Melanie DeMartyn )
220 Cumberland Pkwy. Ste. 5 )
Mechanicsburg, PA 17055 ) CIVIL DIVISION
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Mark Wilson ) JURY TRIAL DEMANDED
220 Cumberland Pkwy. Ste 8 )
Mechanicsburg, P A 17055 ) No. 04..267
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PLAINTIFFS )
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v. )
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Winding Hill Management LLP )
5 Kacey Court )
Suite 101 )
Mechanicsburg, P A 17055 )
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Winding Hill L.P. )
5 Kacey Court )
Suite 101 )
Mechanicsburg, PAl 7055 )
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DEFENDANTS )
CERTIFICATE OF SERVICI~
I, Christopher S. Lucas, have served upon the party below and in the manner
indicated, the foregoing COMPLAINT.
BY FIRST CLASS U.S. MAIL
Timothy Neiman, Esq.
Rhoades and Sinon LLP
One South Market Square
P.O. Box 1146
Hanisburg, P A 17 I 08-1156
Dated: July ?i) , 2005
CO~
Christopher S. Lucas
ATTORNEY FOR THE PLAINTIFFS
Pa. No. 77903
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MELANIE DeMARTYN, MARK
WILSON, HARRY MEYERS,
LARRY PEPPER and PAUL ALLEN
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-267 Civil Term
v.
ERIC HUCK and WINDING HILL
L.P.
Defendants
PRAECIPE TO SETTLE. DISCONTINUE AND END
TO: THE PROTHONOTARY
Kindly mark the above-captioned action as settled, discontinued and ended.
CHRISTOPHER S. LUCAS &
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By:
Christopher S. Lucas, Esquire
220 Cumberland Parkway, Suite 4
Mechanicsburg, P A 17055
(717) 691-0203
Attorneys for Plaintiffs
RHOADS & SINON LLP
By:
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Jack F. Hurley, Jr., Esquire
Timothy J. Nieman, Esquire
One South Market Square
P. O. Box 1146
Hanisburg, P A 17 I 08-1146
(717) 233-5731
Attorneys for Defendants
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