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GATEWAY CENTER CORPORATION v. JOHN W. MERRIAM AND FIDELITY BANK. APPEAL JOHN W. MERRIAM (09/18/81)

filed: September 18, 1981.

GATEWAY CENTER CORPORATION
v.
JOHN W. MERRIAM AND THE FIDELITY BANK. APPEAL OF JOHN W. MERRIAM



No. 1911 Philadelphia,1980, Appeal from Final Decree of the Court of Common Pleas, Civil Action-Equity, of Montgomery County at No. 77-4951.

COUNSEL

John Rogers Carroll, Philadelphia, for appellant.

Marc H. Jaffe, Ardmore, for appellees.

Wickersham, Popovich and Watkins, JJ.

Author: Wickersham

[ 290 Pa. Super. Page 420]

This is an appeal from a final injunction which forbids appellant, John W. Merriam, to aid Northland Equities, Inc.

[ 290 Pa. Super. Page 421]

    in the prosecution of its damage action pending in the federal court in which Merriam is also a counterclaim defendant. Not only does the injunction forbid Merriam from helping Northland Equities, Inc. in the prosecution of its case, but it also forbids him to communicate with Northland's counsel, who also was defending Merriam in the counterclaim, and forbids him to use that lawyer any further in that defense. Finally it forbids Merriam to receive any part of the proceeds of that claim.

The theory on which the lower court entered this injunction is that by providing assistance to Northland Equities, Inc., the plaintiff in the federal case, Merriam breaches the terms of a release he gave to the instant plaintiff, Gateway Center Corporation, in 1975.

In the fall of 1970, the General Services Administration of the United States published a solicitation for bids for a lease of office space in the Philadelphia area, and three qualified bidders responded. The first bidder was the plaintiff, Gateway Center Corporation (hereinafter Gateway), which had no space but proposed to construct a building for the purpose of housing government offices at 36th and Market Streets in Philadelphia. The second qualified bidder was John W. Merriam, appellant, owner of the Curtis Building located at 6th and Walnut Streets, and the third qualified bidder was Northland Equities, Inc. (hereinafter Northland Equities), equitable owner of the Terminal Commerce Building located at 401 North Broad Street, Philadelphia. In February, 1971, the General Services Administration awarded the bid to Gateway.

Merriam alone protested and subsequently filed suit in Merriam v. Kunzig et al., Civil Action No. 71-2262 (subsequently captioned Merriam v. Sampson et al.) to set aside the award and lease on the ground that it had been fraudulently procured, based upon specific allegations of material misrepresentations by Gateway in its bid as to its ownership or dominion over the ground, its building plans, its permits and its construction financing. In March, 1975, on the eve of trial, Gateway settled its case with Merriam for a payment

[ 290 Pa. Super. Page 422]

    of $1,500,000 and on March 31, 1975, Merriam gave Gateway a release which provides that John W. Merriam, as the releasor, discharges all claims he and certain described privies of his, have or had or ever would have against Gateway or certain named individuals, as the releasees. It is a general release in which the releasors are described as follows:

JOHN W. MERRIAM . . . does for himself and his successors, assigns, trustees, agents, employees, attorneys, legal representatives, heirs, executors and administrators, acting in their capacities as such, and on behalf of any firm or corporation in which he owns the controlling interest, the successors or assigns of any such firm or corporation, the past, present and future officers, directors, agents and employees of such firm or ...


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