HomeMy WebLinkAbout95-04002
CDMMONW"UH a. PlNNnLYANIA
""_~_._.d____. .._____" ___
COUll 0' COMMOH 'UAS
L\lll1berland
"JUDICIAL OIl'llel
NOTICE OF APPEAL
fllOM
DISTRICT JUSTICE JUDGMENT
COMMON 'UAS No.
95-4002 Civil Term
NOTICE OF APPEAL
Notice it. giwo that the appellant hen filed in the above Court 01 Cornman PItH.u un opplml from Ihlt judgment fendered by Ihe Di.trict Ju,ticlt on the
dale and in the co.. menlioned bel"",
llAMlC'T.fJ'Piiii.Nl
_Veneranck' B._Alvcar,...lI.D..__________,_____
~oomr6f"IHiUANr
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I. COOl
1>0 Ph"ManLGrO.vc..jload,~.------------ _NcchnnicsIJ\lr<J ___J'/L__ _ 17!l:;5~____
0...11 Of~' IN It<< (Ax Of j/\H,'II/ rrl,"'~H.'"
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_ ~: 1~~lo-~5_ _ . &- ,~/. / lInthOny__~ .~!>ticoJ_Esq '-___
Thi. bIo,k will be .gned ONLY when Ihi. nololion i. requi,ed uncl.r Po. RCPJP, No. 1.1/ /lant was CLAIMANT (sea Pa, R.CP,JP. No,
10088.
Thi. Nolie. of Appeal, when received by Ih. Di.hid Ju.I;,., will op.IOt."." IOOl(6)in.1clionlJeIOfeDis/,ictJuslice,}lOMUST
SUPERSEDEAS to lhe judgmenl for po.....on in Ihi. ,o.e, FILE A COMPLAINT wi//Jin twenty (20) d.1YS r1/1er
IIIing "is NOTICE 01 APPEAL
--'~---" -S1In.iiINt! 'of p;oi;iOiloi..ity-{)(-bt~)lI'Y
__ _.____.__ _.._____.____.u_~__ ___ ___ _ _ ___ ._ _ _ .______ __"._..__._"
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This sec/Ion 0/ 101111 /0 bo IIsed ONLY wit"" "PI'''''''"1 w"s DEFENDI1Nrtsr.'fJ p" nCPJp No /On',7I III ,1e/IOt' l,clOto Dls/llet J,jSllce,
IF NOT USED, do/xII IrOllI copy 0/ 1I0lleo 01 r1JJflC.1/ /0 bo sOlVed 111'011 iI/YlC"r.'fJ /.
PRAECIPE. To Prothonotary
Enter rule upon
Matt-Corcoration
N.VIIl..(f1ill,H./It"'hJ
_____ _ , oppell.e(.), 10 fil. 0 complainl in Ihi. app.al
(Common Plea. Nn
95-4002 Civil Term
.1 within twenty (20) day' ofter servic
-~
RULEI To
Matt Corporation
~11I!O/.lI'Jd.""l'''J
_______.opp.lleel.),
lInthony J.
gf.r.nlr
,5'I)I'1r.111.11'O 11/l1H
tieo, Esq.
(1) Yoo ore nolified lhal 0 rule i. h",.by .nl",.d upon you 10 fiI. " compl"inl in Ihi. appeal wilhin lwenty (20) day. after Ih. dole of
..vtee of this rule upon you by penonal servin, Of by certified or regidered moil
Dote:
(2) If you do nol file 0 complainl within this lime. 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU,
(3) The dot. of ....ic. of thi. rule if ....i,. woo by moil I. the dot. of mo"j'li. ~ J- r
July 28, .1995, ~L ~(j,'\.LL] '-~~'~
s." 011'" Ofy 01 t,
f {,
COUIT FILl TO II FILlD WITH 'IOTHONOTARY
NJflC 312.84
_.- ...- .---- -.-...-..-.----------...------....---. -..- ",-_...,*"" ..-,,-.- _._~~..,. ....--~-.---
PROOF or SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
ITI,I,; I"nol f'I ,,"VICO MU51 tlE IILU) IVITI/lIIIIVr: (oj 1M \'$ ArrCllli/illf} 1110 Ilotic;o 0/ oppoal, Chock o1",,/lcill,/o Im<os)
COMMONWEAlTH Of PENNSYlVANIA
COUNTY Of __ . ____
:n
AFFIDAVIT: I hereby ,wear or ollirm Ihul IllHVttd
r-I ",. 'I'Y ,,' 'ho N"ti, " 01 Apr"ol, Co,",,,,,,,, 1'1.." N.:,____. _,____ _______,__,_, upon Iho D1.lrlct Ju,licc d.,lonolod Iheru'n on
Iddto ,-J _'.UlvicOI.__.._.___.. .~.,' 1")"____ [1 by pCI~,.~nC"!1 ~erVh:'1l 0 by (ccrllllcdl (roC)I!.IOf(.d) mull, ~tlndor'l
Il'(f.lp' q""dlUd "malo, IIIlJ upon thu iJppullt!I:, (lIJmo)._.._.~~_... . on
__, If.' . __~rll~i' I ('r,nl101 1C'fVICIl [] l:y lcmllflud) (fcol:fcrcd) mall, sQndor'~ recolpt ulludlUJ llttrolu,
rJ lInrl funhor Ihul I !i(!/'tf'd Ihr Hull! 10 hit, n Cnmpbirll urr:olf1ponyino Iho obovo Nollea of Appuol upon tho oppollec(s) to
.....lmI11Ih,. Rule wns(1t:ldrm,'1)(j 11n ___...___ _ _..___________._.19__,0 bv por!OnOl5Crvlcn [J Lv (certified) (roOI,torcd)
moll, 'CIIUO", rncclpl otllldll'd heflltn.
~WORN
THIS
(AFFIRMED) AND
DAY OF
WB~(~mED
BEfORE Mf
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF: CUMBERLAND
09-3-04
COMMON PLEAS 'NOTIFICATION
PLAINTIFF REQUEST FORM
NA..,[ &lid ADORlsn
!MATT CORPORATION .,
1200 CAMP HILL BY-PASS
CAMP HILL, PA 17011
L ~
VS.
a.llg 00,1 No
OJNalT'. Hun
_...
GLENN R. FARNER
5002 LENKER STREET
MECHANICSBURG, PA
........ 171 'I) 7,61-8230
17055-0000
DEFENDANT:
r.
ALVEAR, M.D., VENERANDA B
60 PLEASANT GROVE RD.
MECHANICSBURG, PA 17055
L 7U 9'f- '-/UTJ,2 e:p~
NJJ.IE and AOOAfI8
.,
GLENN R. FARNER
5002 LENKER STREET
MECHANICSBURG, PA 1'1055-0000
Docket No,: CV-0000210-95
Date Flied: 4/21/95
DlsposlllonDate: 6/29/95
Pie,." be advilDd that an appeal h.I btlon filed In the above captioned ca... Kindly Ule Ihl, form to Indicat. the ,..ull'
In thl. call, Rnd return 10 tho IIIulng Ruthorlty (U.tod abovo).
REsulT' OF APPEAL '. Common PI." Judg.
SUMMARY APPEAL
APPEAL STRICKEN. opp.nl hn. b..n dl.ollowod,
APPEAL DISCONTINUED. opponl ho. boon dl.onllnu.d by .pp.lI.nl.
DISTRICT JUSTICE DECISION UPHELD, court h.. roach.d .omo d.cl.lon .. o,lgln.1 dl.I,lcllu.lic. d,cl.lon,
_ dill,!ct IUlllco offico ilia eelloct remaining finos/cOIII.
APPEAL SUCCESSFUL. court hftl rOllchod decialon 'avo,abl.lo dofendant.
full refund to be inuod bV district JusUeo office.
partla' r.fund to bo Inuod by dillrlct JUIUe. offico.
REVISED DISTRIBUTION OF FIN~S AND COSTS
If district JUltlce ottlco II to 'saUl II plrilal refund, pleal' '"dlnl. IInV new distribution In thl .moul'1t(.)
of fin.. end COlt. .1 a 'olult of lhe COUr1'. decision.
FINE
COUNTY CRT COST
STATE CRT COST
BTATE csn
HEARING COST
EMS
CAT
JCP
DVC
CVC
CCD
'-, .......
OTHER(pl.... .p.clfyl
CIVIL APPEAL ,
~ ,APPEALSTBICKEN .' opp.ol ho. b..n dl,.lIow.d, ' ,
,~ APPEAL DIsCONTINUED,. opp.ol hc~.n dl.conlinu.d by .pp,lIont
--:.. DISTRICT JUSTICE DE~SION UPHELD. court h.. ...ch.d Ih. ..m. d.cl.lon ..Ih. dl.lrlct jU'llc'ludgm.nt
- DISTRICT JUSTICE DE ISION DIS'rlISSED. court h.. ,..ch.d . d.cl.lon Ih.1 do.. nol concur wnh Ih. dl.trlclju,llc. JUdgm.nt.
WRIT OF CERTIORARI. "
WRIT STRlC'KEN . .pp.o' h.. boon dl.ollow,d,
WRIT DISCONTINUED. wrll h.. boon dl.conlinu.d by .ppollnnl.
DISTRICT JUSTICE DECISION SET ASIDE 'Iho c... will b. r.h..rd dU.lo Irr.gula,lly, I.ck of Iwl.dlcllon, 0' Improper Vlnu"
.,-- WRIT DISMISSED. dl.lrlcl JU'llc. d.cl,lon w.. nol found 10 b.llowod, 'ocklng lu,l.dlcllon , or h.vlng Improper v.nu..
STATEMENT OF OBJECTION CPl.... glv.. g.ner'l.umm.ry 0' tho ...ult..
OBJECTION DISCONTINUED. ob)oclion h.. b..n dl.conlinu.d by Ih. opp.lI.nl.
OBJECTION DENIED. obJoclion hn. b..n d.nl.d by Ih. Court 01 Common PI...
OBJECTION UPHELD. app.llnn!'. objoclion ha. boon uph.ld by Ih. Court of Common Pl....
-..'....--...,
AOPC 729,05
FORM PRINTED:
7/31/95 15:51:57
IN THB COURT or COKKON PLEAS
CUHBERLAND COUNTY, PENNSYLVANIA
HlTT CORPORATION,
Plaintiff
I
I
I
I
I
I
I
I
CIVIL ACTION -- LAW
v.
No. t5-U02'/
and
No. t5-U03
DOHINGO T. ALVEAR, H.D., and
VlNERANDA B. ALVEAR, H.D.,
Defendant.
NOT ICE
You have been sued in Court. If you wish to defend against
the elaims set forth in the following pages, you must take action
within twenty (20) days after this Answer and New Matter \lith
Counterelaims are served, by entering a written appearance
personally or by attorney and filing in writing with the Court your
defenses or objeetions to the elaims set forth against you. You
are warned that if you fail to do so the ease may proceed without
you and a judgment may be entered against you by the Court without
further notice for any money elaimed in the Answer and New Matter
with Counterelaims or for any other elaim or relief requested by
the Defendant_ You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Court Administrator
4th Floor
Cumberland County Courthouse
Carlisle, PA 17013
(717)240-6200
NAUMAN, SMITH, SHISSLER AND HALL
.
by: Be~j:~i'~~.'''~~~la;~ Jr. :O.~;~~,L
Supreme Court IDj 66283
200 North Third Street
P. O. Box 840
Harrisburg, PA 17108
Telephone: 717/236-3010
Counsel for MATT Corporation
Date: August 17, 1995
5. Domingo T. Alvear, M.D., is the president of Geneva
Properties, Inc., a Pennsylvania corporation.
6. Geneva properties, Inc., is the titled owner of a
residential condominium complex known as "Brighton Place," located
adjacent to Geneva Drive in Upper Allen Township, Cumberland
county, Pennsylvania.
7. During 1993, Matt Corporation was providing property
management services to Geneva Properties, Inc., including the
advancement of funds to pay for service costs incurred for the
Brighton Place project, pursuant to an agreement under which Geneva
Properties, Inc., would reimburse Matt Corporation for the latter's
out-of-pocket costs.
COUNT I
Matt corooration v. Dominao T. Alvear. M.D..
and Veneranda B. Alvear. M.D.
8. The averments of Paragraphs 1-7 above are incorporated
herein by reference as if stated in full.
9. During 1993, Domingo T. Alvear, M.D., and Veneranda B.
Alvear, M.D., had a line of credit with Pennsylvania state Bank
with an approved credit line of $100,000.00.
10. At the same time that Matt corporation was providing
property management services to Geneva Properties, Inc., Domingo T.
Alvear requested that Matt corporation advance funds to make
2
payments on the aforementioned line of credit of Domingo T. Alvear
and Veneranda B. Alvear with Pennsylvania state Bank.
11. The parties agreed that Matt corporation would make
payments on the aforementioned line of credit of Domingo T. Alvear
and Veneranda B. Alvear with the understanding that the funds would
be promptly repaid upon billing by Matt Corporation.
12. Pursuant to the parties' agreement, Matt Corporation
advanced funds on the tollowing dates and in the following amounts
for payments on the aforementioned personal loan obligation of
Domingo T. Alvear and Veneranda B. Alvear:
March 5, 1993 $ 364.93
June 3, 1993 $ 584.55
September 8, 1993 $2,054.67
December 28, 1993 S 648.27
TOTAL $4,013.44
13. Following billing of the above amounts by Matt
corporation, Domingo T. Alvear and Veneranda B. Alvear failed and
refused and continue to fail and to refuse to pay the funds
advanced by Matt Corporation on their behalf.
WHEREFORE, Matt Corporation, Plaintiff, requests that this
Honorable Court enter judgment in favor of Plaintiff and against
Domingo T. Alvear, M.D., and Veneranda B. Alvear, M.D., jointly and
severally, in the amount of Four Thousand Thirteen and 44/100
Dollars ($4,013.44), in accordance with the agreement between the
3
parties, plus prejudgment interest and costs, which total amount is
within the jurisdictional limit for compulsory arbitration.
COUNT II
Matt Corooration v. Veneranda B. Alvear. M.D.
14. The averments of Paragraphs 1-13 above are incorporated
herein by reference as if stated in full.
15. Veneranda B. Alvear, M.D., is vice president of GLAMH
Anesthesia Services, Ltd., a Pennsylvania corporation headquartered
at 100 Chestnut Street, suite 100, Harrisburg, Pennsylvania.
16. It is believed and therefore averred that Veneranda B.
Alvear, M.D., is custodian of the GLAMM Anesthesia Retirement
Savings Plan and the GLAMM Anesthesia Profit Sharing Plan, which
are on deposit with Pennsylvania National Bank.
It is further
believed and therefore averred that Veneranda B. Alvear borrowed
funds from the aforementioned plans prior to February 26, 1993.
17. At the same time that Matt Corporation was providing
property management services to Geneva Properties, Inc., Domingo T.
Alvear requested that Matt Corporation advance funds to make
payments to Pennsylvania National Bank on the aforementioned loan
obligations of Veneranda e. Alvear, M.D., for funds borrowed from
the GLAMM Anesthesia Retirement Savings Plan and the GLAMH
Anesthesia Profit Sharing Plan.
18. In makin9 this request, Domingo T. Alvear, M.D., was
actin9 as the agent of Veneranda B. Alvear, M.D.
4
19. Matt corporation and Veneranda B. Alvear, M.D., acting
throu9h her agent, Domingo T. Alvear, agroed that Matt Corporation
would make payments on the aforomentioned loan obli9ations of
Veneranda B. Alvear for funds borrowed from the GLAMM Anesthesia
Retirement Savings Plan and the GLAMM Anesthesia Profit Sharin9
Plan, with the understanding that the funds would be promptly
repaid upon billing by Matt Corporation.
20. Pursuant to the request of Domingo T. Alvear, M.D., and
the agreement between the parties, Matt corporation advanced funds
on the followin9 dates and in the followin9 amounts for payments on
the aforementioned personal loan obligations of Veneranda B.
Alvear, M.D.:
March 8, 1993 $1,310.86
March 17, 1993 $ 990.06
June 30, 1993 S4.007.58
TOTAL $7,003.25
21. FOllowin9 billin9 of the above amounts by Matt
Corporation, Veneranda B. Alvear, M.D., failed and refused and
continues to fail and to refuse to pay the funds advanced by Matt
Corporation on her behalf.
WHEREFORE, Matt Corporation, Plaintiff, requests that this
Honorable Court enter jud9ment in favor of Plaintiff and a9ainst
Veneranda B. Alvear, M.D., Defendant, in the amount of Seven
Thousand Three and 25/100 Dollars ($7,003.25), plus prejudqment
5
)
)
)
)
)
)
)
)
)
)
)
CHARLES R. DAVIS, )
Additional Defendant )
MATT CORPORATION
PlaintilT
vs
DOMINGO T. ALVEAR, M.D.
and VENERANDA B. ALVEAR, M.D.
Defendants
vs
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
NO. 95-4002 ./
NO. 95-4003
CIVIL ACTION LAW
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of the undersigned on behalf of the PlaintilT, Matt
Corporation and the Additional Defendant, Charles R. Davis.
~
<: .' Vr~
Salilue L. Andes -
Attorney for PlaintilT and
Additional Defendant
Supreme Court 10 \7225
525 North 12th Street
Lemoyne, P A 17043
(717) 76\-536\
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1IA'1''1' COallORA'1'IOII,
Plaintiff
III '1'HI COUa'1' 01' COIUCOII PUU
CUllBIRLUD COUJl'l'Y, PIIlIlBYLVAIlIA
v.
110. 15-4002
DOIlIIlGO '1'. ALVlU, II.D.
an4 VlIlIRAIlDA B. ALVlU, N.D.
Dsfsn4ants
110. 15-4003
v.
CBUU' a. DAVIS,
A44itiona1 Dsfsn4ant
CIVIL AC'1'IOII - LAW
PRAICIP. '1'0 WI'1'HDRAW APPIARAHCI
Please enter upon the docket that the undersi9ned is
withdrawin9 its appearance as counsel of record for MATT
corporation, Plaintiff, and Charles R. Davis, Additional Defendant.
IIAQIIAIl, -JlI'1'.'. _'~8P; AIlD BALL
/ / I /. ..
/ "
/ . 1,.'. . I
/ . / ,
I . I
By:,' II . I
~obn 1ivan,
Supr e Court ID* 07257
aoo/ orth Third street
P.O. Box 840
Harrisbur9, PA 17108-0840
Telephone: (717) 236-3010
Counsel for: Plaintiff and
Additional Defendant
Date: May 9, 1996
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v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
/
NO. 95-4002
HA'1''1' CORPORATION,
plaintiff
DOMINGO T. ALVEAR, M.D.
an4 VENERANDA B. ALVEAR, M.D.
Dafan4ants
NO. 95-4003
v.
CIVIL ACTION - LAW
CBULBS R. DAVIS,
Additionel D.tend~nt
ORDER
AND NOW, this II tl day of ~, 1996, whereas the
record in the above mentioned proceedings indicates that Samuel L.
Andes, Esquire, has entered his appearance on behalf of MATT
corporation, plaintiff, and Charles R. Davis, Additional Defendant,
and it further appears from the record, that a Praecipe has been
entered wherein the firm of Nauman, Smith, Shissler , Hall has
withdrawn its appearance for the Plaintiff and Additional
Defendant, the Court therefore finds that the Rule to Show Cause
previously issued in this matter, has become moot. Now therefore,
the Rule is dismissed.
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specifically denied that the Matt Corporation was retained to advance funds to
pay for seNices and costs incurred for the Brighton Place project. It is further
specifically denied that an agreement existed under which Geneva Properties, Inc.
would reimburse the Matt Corporation for the latter's out-of-pocket expenses.
Strict proof thereof is demanded,
COUNT I
MATT CORPORATION v. DOMINGO T, ALVEAR. M,D.
and VENERANDA 8, ALVEAR. M,D,
8. The foregoing numbered paragraphs are incorporated herein by reference.
9. Admitted.
10. Denied, It is specifically denied that Defendant Domingo T. Alvear requested
that the Matt Corporation advance funds to make payments on the
aforementioned line of credit with Pennsylvania State Bank. Strict proof thereof
is demanded.
11. Denied. It is specifically denied that Domingo T. Alvear and Veneranda B.
Alvear ever agreed that the Matt Corporation would make payments on the
aforementioned line of credit with the understanding that the funds would be
promptly repaid upon billing by the Matt Corporation. Strict proof thereof is
demanded,
12. Denied. It is specifically denied that Domingo T. Alvear and Veneranda B.
Alvear ever requested the Matt Corporation to make any such payments. It is
-3.
billed by the Matt Corporation, the averments are specifically denied. It is
admitted that neither Domingo T, Alvear nor Veneranda B, Alvear paid the Matt
Corporation the funds requested, By way of further response, it is denied that
either Domingo T, Alvear or Veneranda B, Alvear had any obligation to do so.
Strict proof thereof is demanded at trial.
WHEREFORE, the Defendants, Domingo T. Alvear and Veneranda B. Alvear,
respectfully request that this Honorable Court dismiss Count I of the Plaintiffs
Complaint, enter judgment in the Defendants' favor, and award the Defendants any
other costs that this Court deems just and appropriate,
NEW MATIER
22, The foregoing numbered paragraphs are incorporated herein by reference.
23. The claims contained in Counts I and II are barred under the doctrine of failure
of consideration.
24. The claims contained in Counts I and II are barred as a result of fraud.
25. The claims contained in Counts I and II are barred under the doctrine of laches.
26. The claims contained in Counts I and II are barred as a result of the applicable
statute of frauds.
27. The claims contained in Counts I and II are barred under the applicable statute of
limitations,
28. Plaintiffs damages, if any, are subject to setoff.
29. Matt Corporation is owned and operated by Charles Davis (hereinafter "Davis").
.6.
30. All of the services Matt Corporation provided to Geneva Properties, Inc.
(hereinafter "Geneva") were perfonned by Davis,
31. Prior to Geneva retaining Matt Corporation, Davis represented himself as an
expert property manager.
32. As a result of Davis' representations regarding his real estate expertise, Geneva
hired Matt Corporation as its manager,
33. Matt Corporation was retained to prepare financial projectiona for Geneva,
organize sales efforts, and coordinate the building schedule for the Brighton Place
Condominium,
34. Matt Corporation made numerous representations to the owners of Geneva,
including Domingo T. Alvear, regarding Geneva's profitability.
35. Matt Corporation represented that after an infusion of additional cash, Geneva
would become profitable,
36. As a result of Matt Corporation's representations, Domingo T. Alvear and
Veneranda B. Alvear (hereinafter the "A1vears") made a cash contribution in
August, 1992 to Geneva in the amount of $61,343,00,
37. These funds were given directly to Matt Corporation on behalf of Geneva.
38. Thereafter, Matt Corporation made additional representations regarding Geneva,
stating that Geneva would become profitable, but that additional cash was needed.
39. As a result, the Alvears agreed to loan Geneva additional money.
.7.
40. Matt Corporation and the Alvears agreed that Geneva would use part of the
funds it received from the Alvears to service the debt the A1vears' incurred to
loan funds to Geneva,
41. Matt Corporation, as manager of Geneva, agreed to use Geneva's funds in the
manner set forth in the preceding paragraph,
42, The A1vears never requested that Matt Corporation use, nor consented to Matt
Corporation using, its own funds to service the aforementioned debt.
43. The A1vears believe and therefore aver that the Matt Corporation never used its
own funds to service the loan debt.
44. The A1vears believe and therefore aver that the Matt Corporation used funds
from other properties it managed to service the aforementioned debt.
45. Geneva is solely liable to the Plaintiff to the extent Plaintiff proves any actual
damages,
46. Matt Corporation has never accounted for any of the funds loaned by the Alvears.
WHEREFORE, Defendants respectfully request that this Honorable Court
Dismiss the Plaintiffs Complaint.
COUNTERCLAIM
AND NOW, pursuant to Rule 1031 of the Pennsylvania Rules of Civil Procedure,
the Defendants set forth the following Counterclaim and aver in support thereof as
follows:
47. The foregoing numbered paragraphs are incorporated herein by reference.
-8.
48, As a result of the representations made by Matt Corporation regarding Geneva's
profitability and Matt Corporation's agreement that Geneva would service the
aforementioned debt, the Alvears loaned Geneva $61,323 in August, 1992,
$100,000,00 in September, 1992, and an additional $100,000,00 in Janual)', 1993.
49. These loans were made directly to Matt Corporation and the funds were to be
delivered to Geneva,
SO, The Alvears' loans to Geneva based upon Matt Corporation's representations
totalled $261,343.00,
51. To date, Matt Corporation has never accounted for the three loans made by the
Alvears to Matt Corporation for the benefit of Geneva,
52. During 1994, Matt Corporation continued to act as property manager for Geneva
Properties,
53. During 1994, 29 units developed by Geneva in Brighton Place were sold to buyen.
54. As a result of those sales, Geneva should have received net proceeds of
$58,641.91. A copy of a summaI)' of Geneva's sales for 1994 is attached hereto
and incorporated herein as Exhibit "A."
55, Counterclaimants believe and therefore aver that Matt Corporation never directed
these proceeds to any Geneva account.
56. Counterclaimants believe and therefore aver that Matt Corporation took
possession of the proceeds at the various closings and never turned them over to
Geneva,
57. To date. Matt Corporation has never supplied counterclaimants with an accurate
accounting for these proceeds,
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"
58. In addition, as a result of the property settlements in 1994, Matt Corporation
obtained "payoffs" from the settlements,
59, These payoffs were made to Matt Corporation at the closings and totaled
$18,262,27 for the units sold during 1994,
60, Matt Corporation has never satisfactorily accounted to Counterclaimants for these
payoffs,
COUNT I . FRAUQ
61. The foregoing numbered paragraphs are incorporated herein by reference.
62. Matt Corporation misrepresented the financial health of Geneva by stating that
the company would be profitable if additional cash contributions were made.
63. Matt Corporation made these representations verbally and through written
projections of income provided to the counterclaimants,
64, By making the misrepresentations, Matt Corporation intended to induce the
Alvears to make additional cash contributions to the company.
65. The Alvears justifiably relied on Matt Corporation's misrepresentation, since it
was hired as Geneva's manager,
66. As a result of the Alvear's justifiable reliance on Matt Corporation's
misrepresentation, the Alvears have suffered significant damages, as set forth
above,
67. As a result of Matt Corporations' actions, the Alvears have incurred and will
continue to incur significant costs pursuant to their personal guarantees of a loan
made by Consumers Life Insurance Company to Geneva.
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WHEREFORE, counterclaimants respectfully demand judgment against Matt
Corporation in an amount in excess of the maximum amount requiring mandatory
arbitration, together with any other relief which this Court deems just and appropriate.
COUNT II . CONVERSION
68. The foregoing numbered paragraphs are incorporated herein by reference.
69. Counterclaimants believe and therefore aver that Matt Corporation received and
held the proceeds from unit sales which were intended to be delivered to Geneva
Properties.
70. Counterclaimants believe and therefore aver that Matt Corporation received and
held the loans counterclaimants' loans, which were intended to be delivered to
Geneva Properties,
71. On numerous occasions, counterclaim ants requested accountings of the proceeds
and funds received by Matt Corporation.
72. Matt Corporation has refused to provide any accounting of the proceeds and
funds.
73. Counterclaimants believe and therefore aver that some or all of the proceeds and
funds delivered to Matt Corporation for Geneva Properties were diverted from
Geneva Properties,
74. Counterclaimants believe and therefore aver that Defendant Matt Corporation
used the funds intended to be delivered to Geneva for the use and benefit of
Matt Corporation,
75. Defendant Matt Corporation has failed and refused and continues to fail and
refuse to return said proceeds and funds to counterclaimants
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