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Home My WebLink About03-1684Thomas J. Weber, Esquire- I.D. #58853 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 A ttorneyfor Plaintiff JAMES MCMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant IN THE COURT OF COMMON PLEAS, CUMERLAND COUNTY, PENNSYLVANIA No.C - t CIVIL ACTION - EQUITY NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Answer, New Matter, Cross Claim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO Fl ND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 Telephone: (717) 249-3166 Thomas J. Weber, Esquire - I.D. #58853 Goldberg, Katzman & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff JAMES MCMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant IN THE COURT OF COMMON PLEAS, CUMERLAND COUNTY, PENNSYLVANIA No. ~)3 -- //,,,~0y CIVIL ACTION - EQUITY COMPLAINT AND NOW COMES the Plaintiff, James McMillen, M.D., by and through his counsel Goldberg, Katzman & Shipman, P.C., and respectfully seeks judicial intervention to accomplish dissolution of the parties' Partnerships and in support thereof avers the following: 1. James McMillen, M.D., is an adult individual residing at 514 Range End Road, Dillsburg, Pennsylvania 17019. 2. R. Lynn Magargle, M.D., is an adult individual with a business address at 3335 Market Street-3344 Chestnut Street, Camp Hill, Pennsylvania. 3. In the 1970's, Drs. McMillen and Magargle, along with Dr. Thomas R. Hobbs decided to form a Partnership for purposes of providing professional medical services. 4. The nature of the Partnership and parties' respective rights and obligations were controlled as of July l, 1978, by Partnership Agreement. A true and correct copy of the Partnership Agreement is attached hereto as Exhibit A. .'.'OD^IA IPCDOCS[DOCSI8299112 I Partnership. 6. As of December 31, 1987, partner Thomas R. Hobbs withdrew from the Since December 31, 1987, the Partnership has continued to operate with Drs. McMillen and Magargle each being 50% partners. 7. In the 1970's Drs. McMillen, Magargle and Hobbs entered into a second Partnership, namely HMS Enterprises Partnership for purposes of holding certain real property located at 3335 Market Street-3344 Chestnut Street, Camp Hill, Pennsylvania. Plaintiff is not in possession of a copy of the HMS Enterprises Partnership agreement, but believes a copy of the same is in the possession of the Defendant. 8. As of December 31, 1987, Dr. Thomas R. Hobbs removed himself from participation in HMS Partnership. 9. Since December 31, 1987, Drs. McMillen and Magargle have been equal 50% partners in the HMS Partnership. 10. By correspondence dated January 18, 2002, counsel for Dr. Magargle confirmed that the Medical Partnership would terminate as of January 18, 2002. See correspondence attached hereto as Exhibit B. 11. It was decided amongst the parties that to consummate a full division of their respective interests in the two partnerships, the HMS Enterprises Partnership would also be terminated. 12. In furtherance of his cooperation in the termination of the Medical Partnership, Plaintiff, Dr. James McMillen vacated the premises previously housing the Medical practice and owned by the real estate partnership on or about March 8, 2002. : :ODMA tPCDOCS~DOCSI8 2 99112 2 13. Since January of 2002, Dr. McMillen has been working diligently in order to effectuate complete dissolution of the Partnerships and distribution of the assets. 14. Dr. McMillen's actions have included depositing substantial sums of money into the Medical Partnership account from fees received by him for services rendered prior to the separation. 15. There is no evidence of Dr. Magargle depositing any Partnership funds in the Partnership account, the same instead appearing to have been improperly converted to his own use. 16. It is believed and therefore averred Dr. Magargle has diverted partnership assets to his own benefit. 17. Dr. McMillen's efforts have also included conveying numerous offers to Dr. Magargle for purposes of terminating Partnership affairs and distribution of the assets. 18. Dr. Magargle has failed to properly respond to Dr. McMillen's overtures or offer any counterproposal to properly wind up the affairs of the two Partnerships. 19. Dr. Magargle has also undertaken certain actions believed to diminish the value of the remaining Medical Partnership assets and real property held by the Real Property Partnership. These actions include but are not limited to termination of the property management company that the Partnership had employed for a number of years. This activity resulted in a reduction of income flowing to the real property Partnership. 20. Without judicial involvement, Defendant, Dr. Magargle is content to merely use and operate both Partnerships' assets for his own personal gain. : .-()D3.,I/l IPCDOCSlDO(TSI82991 i2 3 21. The Medical Partnership Agreement provides that if the Partnership terminates by voluntary agreement of the partners all debts of the Partnership shall be discharged and all remaining Partnership property, valued at its then fair-market value, shall be divided equally among the partners according to their interest in the Partnership. See Exhibit A, ¶13. 22. HMS Partnership, through the parties, sold the real property located at 3335 Market-3344 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania on or about February 10, 2002. 23. The net proceeds of the sale were distributed evenly between the two partners. 24. Dr. Magargle has remained on the premises as a tenant of the new owner. 25. The building is scheduled to be demolished on or about April 16, 2003. 26. Dr. Magargle has maintained exclusive control over the books and accounts of both Partnerships since January 18, 2001. 27. Dr. McMillen has repeatedly requested that the books and records be turned over to the Partnerships' accountants so that an accounting could be provided. 28. Dr. Magargle, through an appraiser of his own selection, has obtained an appraisal of the personal property held by the Medical Partnership. 29. The appraised value the Medical Partnership personal property was $3,338. See "appraisal" attached hereto as Exhibit C. 30. Consistent with his efforts to amicably terminate tile Partnership activities and dissolve the same, Dr. McMillen has offered Dr. Magargle $1,669 as his share of the Medical Partnership real property. 31. Dr. Magargle has failed to respond to this offer or offer a counterproposal. .- :O£9A4.d IP( 'I)OCNII)~.)( 7S~,$'2,~9 ! ~2 4 32. Dr. Magargle's appraiser failed to place a value on the computer software system held by the Medical Partnership. 33. Dr. McMillen is entitled to one-half of this value. 34. Records for drug studies performed by Dr. McMillen remain at 3335 Market-3344 Chestnut Street. 35. As the physician in charge of the studies, it is the responsibility of Dr. McMillen to retain those records. Until the sale of the real property, Dr. McMillen had possession of the drug study 36. records. 37. removal of the records. Dr. McMillen arranged with the new owner of the building for the orderly 38. Dr. Magargle has improperly blocked the removal of the records. 39. Dr. McMillen has made repeated requests for possession of the records. correspondence attached hereto as Exhibit D. See COUNT 1 ACCOUNTING 40. The averments contained in paragraphs I through 39 are incorporated herein as if set forth in their entirety. 41. Dr. McMillen, as a 50% partner in the McMillen/Magargle Medical Partnership and the HMS Enterprises Partnership, is entitled to a full and complete accounting of both Partnerships' activities since January 18, 2002. WHEREFORE, Dr. McMillen respectfully requests the Court enter an Order demanding Dr. Magargle to produce within thirty (30) days of said Order a full and complete accounting of .' :ODM.4 It CDOCS[DOCSIS_ 991,~ 5 the Partnership activities for both the McMillen/Magargle Medical Partnership and the HMS Enterprises Partnership from January 18, 2002, to the date of the response. COUNT 2 PERSONAL PROPERTY 42. The averments contained in paragraphs 1 through 41 are incorporated herein as if set forth in their entirety. 43. Dr. Magargle has valued the real property of the Medical Partnership at $3,338. 44. Dr. McMillen has offered to make payment of 50% of the same to Dr. Magargle so as to acquire the real property. WHEREFORE, Dr. McMillen respectfully requests the Court enter an Order requiring that Dr. Magargle divest himself of all personal property in the Medical Partnership upon receipt of the payment of $1,669 from Dr. McMillen. COUNT 3 ALL OTHER PARTHERNSHIP PROPERTY 45. The averments contained in paragraphs 1 through 44 are incorporated herein as if set forth in their entirety. 46. Dr. McMillen is entitled to 50% of any value found in the Medical Partnership and HMS Partnership as revealed by the accounting to be supplied by Dr. Magargle pursuant to Count I of this Complaint. WHEREFORE, Dr. McMillen respectfully requests the receipt of 50% of all Partnership value. : :ODM,4 IPCDOCS~DOCSt8299112 6 54. removed. 55. 56. COUNT 4 INJIJNCTIVE RELIEF 47. The averments contained in paragraphs 1 through 46 are incorporated herein as if set forth in their entirety. 48. Dr. Magargle is improperly retaining certain closed patient records pertaining to drug studies in which Dr. McMillen was the lead investigator. 49. Dr. Magargle has no recognizable right to the records. 50. Dr. Magargle's improper retention of the records exposes Dr. McMillen to potential breaches of the drug study requirements and corresponding applicable federal regulations. 51. Continued retention of the records exposes Dr. McMillen to irreparable harm. 52. There is no alternative remedy other than to grant Dr. McMillen possession of the records. 53. Greater harm will befall Dr. McMillen, the patients and the integrity of the drug studies should Dr. Magargle retain possession, than will be caused to Dr. Magargle by allowing Dr. McMillen to gain possession. Dr. McMillen is willing to provide Dr. Magargle with an inventory of the records The building is scheduled to be demolished on or about April 16, 2003. After destruction of the building, he will lose control of the records and risk violation of' the studies' parameters. .'.'OD^,L~t II'CDOCS~DOCSI8 2991 !2 7 WHEREFORE, Dr. McMillen respectfully requests that the Court enter an Order requiring Dr. Magargle to provide to Dr. McMillen all drug study records currently stored, or ever stored, at the Partnerships' office. Date: April 10, 2003 GOLDBERG. KATZMAN & SHIPMAN, P.C. Tho'ma~ J. W~ber, [z~quire Attorney I.D. No. 58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 A ttori~ey.for the Plamti.[',[' :.'ODM'.,q IPCDOCS~DOCS~8299 ] ~2 8 01/08/2002 TUE 16'34 PAX 717 233 5830 Claraval & Claraval 34:Kohr 1/18/80 ~004/'014 HOBBS-McMILLEN-MACARCLE MECICAL PARTNERSHIP AGREEMENT BY THIS AGREZMENT, effective July 1, 1978, Thomas R, Hobbs, Ph.D., M.D., James I, McMillen, M.D., and R.'Lynn Magargle, M.D., agree to engage i~ the practice of medicine as partners in accordance with the terms and conditions hereinafter stated. 1. Nature of Business - The parties hereby agree to engage in the general practice of medicine as partners and to maintain their office in Camp Hill, Pennsylvania under the name "HOBBS-McMILLEN-MARGARGLE MEDICAL PARTNERSHIP", This Agreement shall supercede any prior agreememt or under- standing regarding the conduct of the practice. 2. Term - The partnership shall be effective July 1, 1978 and shall continue subject to the terms of :his Agreement until terminated as provided herein or otherwise by agreement or operational law, 3. Ass,~ption of'Asset~ and Liabilities - The partnership expressly ass~me~ all of the indebtedness, obligations, liabilities, leases, and con[racts of the predecessor partnership which engaged in the practice of medicine under the name Hobb~-McMillen Medical Partnership. The members of ~aid predecessor partnership agree that the partnership existing under terms of this agreement shall become ve~ted wi~h all the right, title and interest of ~he predecessor partnership in all of ~he property, acnounts, goodwill and o~her asse~s of said partnership. ~, 4. Duties of Partners - Each partner shall d~vote hi~ time diligently and faithfully to the partnership business and shall not either directly or 01/08/2002 TUE 16:35 ~005/014 FAX 717 233 5830 Claraval & Claraval indirectly engage in any other professional activities without the con~ent of the other partners. No partner shall undertake any professional matter or accept any office or trust except for the benefit of the partnership unless upon agreement of the partners. 5. C~ital - Capital of the partnership ~hall be such as recorded on the books of account of the partnership. Each partner shall maintain a capital account equal :o that of :he o:her partners. In the event that add~ional capital ~hall be needed for the partnership busines~ it ~hall be contributed by the par~ner~ eRually. 6. Profits and Lo~ses - The ne~ profit~ and losses of the partnership each year shall be divided equally among the partners. 7. Drawing~ and Wi~hdrawal~ - The partners shall have such drawing accoun:s chargeable a~ainst anticipated profits and shall be entitled to ~uch withdrawals against their shares of the profits of the partnership as may, from time to time, be determined by the partners. There ~hai1 be no withdrawals from the capital of the partnership excepn upon the unanimous agreement of the partners~ 8. Management, Duties, Restrictions - Each partner shall have an equal right in the managemen: of the partnership business. No partner shall, wi thou: the consen~ o~ :he remaining partner(s); (a) Endorse any no~e, or a¢~ as an accommodation party, or otherwise become surety for any person. - 2 - 01/08/2002 TUE 16:35 r~o06.;014 FAX 717 233 5830 Claravsl & Cl~r~val (b) On behalf of the partnership borr?__w, or lend money, or make, deliver or accept any co~nmeroial paper, or execute any mortgage, bond or lease, or purchase or contract to purchase~ or sell or contract to sell any' property for or of the partner- ship other than the type of property~bought and sold in the regular course of it~ business. (c) Assign, mortgage, or sell his share in the partner- ship or in its capital asset~ or property, or enter into any agreement as a result of which any per,on shall become interested wi~h him in the partnership, or do any ac: detrimental to the best in~ereste of the partnership or which would make i~ impossible to carry on the ordinary business of the partnership. ~.' (d) Uae any of the monies or effects of the partnership for any purpose or u~e not connected with ~he partnership business. (e) Lease, purchase, sell, mortgage or construct any real estate, buildinE or real e~tate improvement, or enter into any contract for any such purpose, on 5ehalf of ~he partnership. (f) Make, execute, or deliver any assignment for the benefit of creditors or any pe~i~ion in bankruptcy. 9. Book~ and Banking.- The partnership books shall be maintained at the principal office of partnership, and each partner shall at all times have access thereto. The books shall be closed and balanced a~ ~he end of - 3 - 01/05/2002 TUE 16:36 FAX ?if 233 5830 ClaraYal & ClaraYal ~007/014 each accounting year. All monies received ~hall be deposited promptly in a partnership bank account maintained at Dauphin Deposit ~ank and Trust Company, or at such other bank aa agreed upon by the partners from time to time, and shall be withdrawn in the name of and_so%ely~for the~p~!~ose~ of the partnership on the signature of any one partner. 10. Vacation - Each partner shall be entitled to an equal amount of time for vacation or for attendance at courses intended ~o further his medical education. The partners shall agree annually as to the precise amount of vacation and education time each will be entitled to during the year. 11. Death - The parties desire ~o arrange for the sale to the partner- ship of the partnership interest of a partner who dies if at the time of ~aid partner's death bhere are at lea~t ~wo surviving partnera or for the sale ~o the surviving partner alone if only one survives. (a) Purchase .o.f__partnership interest on death - Upon the death of a partner, the partnership, and contingently the remaining partner(s), shall purchase the entire i=terest of the deceased partner i~ ~he partnership, and the estate of the deceden[ shall sell such interest to the partnership or to the surviving partner(s), as the case may be, (b) Purchase price - Th~ purchase price of ~he interest of a deceased partner shall be one-third (I/3) of the total partnership cash as of the date of death plus one-chird (1/3) - 4 - 01/08/2002 TUE 16:36 PAX 717 233 5830 Cla. raval & Claraval ~00S,'014 of all partnership accounts 'receivable as hereinafter defined (valued by excluding all accounts receivable which have been referred to a collection bureau for collection and deducting from the total face amount of t~e accounts receivable (except as hereinafter provided) an additional ten percent (10%) to reflect such accounts as may not be collectible), less one-third (1/3) of any current or accrued obligations as of said date (including any obligation attributable ko the purchase of capital assets) plus one-third (1/3) of the total fair marke~ value of all other partnership tangible property as determined by an independent professional appraiser less one-~hird of any encumberance thereon (unless such encumbrance is included in current obligations as aforesaid). For purposes of the foregoing, accounts receivable shall include mmoun~s billed pharmaceutical companies for drug studies undertaken by the partnership and further shall in- clude work in process for such companies for which no billing has been rendered. The accountant then serving the partnership shall make a determination of the value of such work in process for purposes of ~he foregoing, and his determination ~hall be binding and conclusive on all parties hereto. Unless and solely to the extent that as of the valuation date there is actual knowledg, of any uncollectable accoun~ (to include work - 5 - 01/08/2002 TIIE 16:36 FAX 717 233 5830 Claraval & Claraval ~009/014 in process) with regard to the pharmaceutical companies such ~m~unts shall not be reduced ten percent (10%) as a reserve for uncollectables as provided above. The deceased partner shall have no further obligation with regard to partnership liabilities and shall be reimbursed on account of any payments required to made thereon. The fractions put forth herein are based on ~he existence of three equal partners, and if there is a differen~ number of partner(s) at the time of the death of a partner, or a different relative ownership, the fractions shall be modified to reflect any such differences ac the time of death of the deceased partner. (c) Payment of purchase price - The purchase price for the intarst of a deceased partner shall be paid within one hundred twenty (120) days following the death of the partner. !2. Disability - If a partner becomes so sick or disabled (due to either physical or mental infirmities) as to ba unable to perform his duties hereunder, his withdrawal~ shall be continued on the following basis: during the first thirty (30) days of such sickness or disability, the sick or disabled partner shall continue his withdrawal at hi~ same percentage in effect immediately prior to his sickness or disability, thereafter at fifty (50) percent of said withdrawal for the next following sixty (60) days, and thereafter at gwenty-five (25) percent of said withdrawal for the next following ninety (90) days, at which time his right to withdrawals shall cease. This paragraph contemplates that ail partnership funds shall be - 6 - 01/08/2002 TUE 16:37 FAX ?17 233 5830 Claraval & Claraval ~010,014 reduced down to the amount of necessary working capital at the end of each fis- cal period. Thereafter, the sick or disabled partner shall be treated as a withdrawing partner under the provisions of paragraph 13 herein, and the part- nership and contingently the remaining partner(s), shall have the option to purchase provided for in paragraph 13 for ~ period of sixty days commencing with the end of the withdrawal period as aforesaid, gach remaining partner shall not exercise his option to withdraw during the said period of sickness or disability. In the event of re-occurring or consecutive disabilities of a partner, the foregoing withdrawal rights shall be in effect only once (in the aggre- gate) during any consecutive twenty-four month period. 13. lermination and Withdrawal - The death, disability or withdrawal of a partner shall not terminate the partnership if more than one partner survives. The partnership ~hall be ter~ninated at any time by agreement of all uhe partners. In the event that a partner notifies in writing the remaining partner(s) of his intention to' withdraw, the partnership and contingently remaining partner(s), shall have an option(s) (which as to remaining partners shall be equal) to purchase the interest of the withdraw- ing partner during the six month period following receipt of said notice at its then value (i.e. effective date of withdrawal) as defined in paragraph il(b) hereof. Payment for ~uch purchase shall be made within'one hundred twenty (I20) days of the date of exercise. If ~he option(s) provided for above are no: totally exercised, or if ~he partnership ~erminates by voluntary agreement of :he partners, all debts of the partnership shall be discharged, and all remaining partnership property, valued at its then fair - 7 - 01/08/2002 TUE 16:37 ~011/014 FAX 717 233 5830 Claraval & ClaraYal market value, shall be divided equally among the partners according to their interests in the partnership. 14. Accounting year - The accounting year of the partnership shall be the calendar year. 15. Professional Expense~ - Partners'~rill be reimbursed for expenses incurred in carrying on :he partnership's businees in accordance with partnership policy. Partners are also expected :o use their best efforts to maintain and expand the practice of the partnership even :hough this may involve expenditures which are not reimbursable. Such expenditures may. include automobi'Ie or other travel expenses, costs of office decorations, ~ubscription~ to professional journals, entertainment of other members of ~he profession, and participation in professional association and alumni or community organization affairs. 16. General - Any matter not specifically covered by this Agreemen~ shall be determined by the applicable provisions of the Uniform General partnership Ac~ as adopted by the Commonwealth of Pennsylvania, IN WITNESS WHEREOF,.the partie~ hereto have hereunto set their hands and seals the day and year first above written (s~kt) Thomaa R. Hobbs, Ph.D., M.D, /'"James I. McMillen, M.D / ' -8 - Exhibit B JAN.-18'02(FRI) 15:05 BUTLER LAW FIRM TEL:717 236 7777 500 Nord~ Thl=l ~ H~n~bu,g. PA 17101 Po~ Offl~ Box 1004 Harrlsbu~ PA 17106.100~ Tel: 717.236, t485 ~ 717-236.7777 la~l~e~burl, flaw fl rm.~o m ~ D. Burr BAr Too]~ January 18, 2002 VIA FACSIMILE & U.S. MAlL Thomas J. Weber, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg. PA 17]01 Re: McMillan and Magargl¢ Medical Partnership Dear Tom: This letter will corff'u-m that the McMilh'm - Magargle Medical Partnership will terminate at the close of business on Friday, January 18, 2002, Dr. MoMillan and Dr. Magargle will each operate his separate practice starting at the opening of bush~ess on Monday. January 21, 2002. Dawn will be employedby Dr. Magargle. Thc other staff members will be employed by Dr. McMillan. The level of professionalism between Dr. McMillan and Dr. Magargle appears to be improving, However, the same can not be said for the interaction of Dr. McMillan's staff with Dr. Magargle. I would appreciate your impressing upon Dr. McMillan the importance of' speaking with his staff and insisting that they treat Dr. Magargle with the proper amount of respect and professionalism, We still have to deal with the most important outstanding issue involving the office. That matter must be resolved on Monday or Tuesday of next week. After that matter has been resolved, you and I should meet with the accountams to make sure that we have a good game plan in affect for dealing wi.'th the affairs of the terminated partnership and with incoming mail and telephone calls. Your cooperation in this matter is appreciated, Very truly yours, RDB/clf cc: Dr. R. Lynn Magargle Robert Claraval, Esquire Exhibit C APR-I~-ZOOZ FROM- T-O~Z ~.LAuUt ~. WULfI~ & A~$UEIAIE$ 717-761-2763 ~ ~Z~,zt 5~ C~ap ilfl/~ PA. 17011 ~ng T~ ~C C~ (2) B~ TV ~ A~I ~, 2002 500.00 70,00 IO. O0 1.00 10.00 750.00 5 O0 1.00 fiO.O0 300.00 450.00 ~).00 20.00 1.00 '70.00 ' ;*-141 0~:53^M ' · T-052 L,I. AUUI: L. IflfULr· & A.~3UL. IAII:3 AU~TIO~I~I]]{~ & AI~p,I&AISBI~$ 2009 LINCOLN STR~fT · CA~I~ HILL. PA 1701 ] 717-?&1.2763 ,Scale,, gtool cra whml, naumanOme~, blood preu~m: u~t - aid C~-~ (6) ~~ ~nms ~ ~0.~ ~ ~ ~ ~m~ ~g~ - ~ ~difi~ 15.00 $000 500 10.00 10.00 lO. O0 120.00 i0.00 1.00 25.00 15.00 35.00 1.00 1.00 1.00 150,~ 5.~ 20.~ lO.~ [~l~Ga!. EXAM ROOM Oak (bura~dy upholsta, y) cha~r~ ~ vi=mr- old ~aumanor.rmt~ blrsad pressu~ unit - P~lmo~ar~ fuactJon machlnc - old (4) ~jm Otoer, ope& OpthnJ,-noscop- with Wel~-Allen #71100 ~ _ old )0.00 5.00 lO. O0 25. O0 1.00 150.00 20.00 5.00 20.00 10.00 AI'FRAISAL TOTAL ~his ~atr l~-keg Ys~c appr~isaJ is true s~l omvt~ to tim best of my abil~.y a~ aa a~Uon~u- wit~ 35 years mmenmme . Member:. Cet-,Lta. ed Appraia~n's Oaild of Am~'ioa CLAUDE C, WOLF~ & A~:~OC-tATES W, ~. D~sty Chapman~ CAGA Exhibit 320 MARKET STREET ' STRAWBERRY SQUARE P.O. BOX 1268 * HARRISBURG, PENNSYLVANIA 717.234.4161 · 717.234.6808 (FAX) 17108-1268 GOLDBERG, KATZMAN ATTORNEYS A'F LAW SHIPMAN, P.C. February 28, 2003 OF COUNSEL F. LEE SHIPMAN COUNSEL JosHua D. Locx ARNOt. D B. KOGAN .~.RTHUR L. GOLDBERG (195i-2.000) HARRY B. GOLDBERG (1961-t998) RONALD M. KATZMAN PAUL J. ESPOSITO NElL I-I ENDERSHOT J. JAY COO.ER THoMAs E. BRENNER JOHN A. ST:tTLER APRIL L, STRANG-KUTAY GUY .ri. BROOKS JEFFERSON' J. SHIPMAN JERRY J. Russ() MICHAEL J. CROCENZI ,'~'HO>,,IAS J. XNEBER S'FEVEN E. GRUBS JOHN DELORENZO JOHN .~.. ;.X{INOSKY PxOYCE L. MORRIS D,.WID M. S'rECKEL ?{E.:(I'HER [~. ?ATERNO Via Facsimile 236-7777 And First Class Mail Ronald D. Butler, Esquire Butler Law Firm P.O. Box 1004 Harrisburg, PA 17108-1004 Re: McMillen/Magargle Partnership Dear Ron: 'Dr. McMillen has some records at the old practice site which must be maintained to comply with regulatory provisions and the requirements of various drug studies. As the principal researcher on these studies, the records should follow iDr. McMillen. It is my understanding that these records are currently and, have been for some time, housed in the basement. I contacted Maryann Klementic at McNees Wallace in order to work out a convenient way to obtain the records prior to demolition of the building. Ms. Klementic was kind enough to provide such a procedure. Unfortunately, your client has apparently blocked Dr. McMillen's efforts to obtain the records. As indicated, these are not active patient files but instead historical records that must be maintained by Dr. McMillen. Your client's interference with our efforts to obta~ t1!9 records is unfounded. To appease any concerns your client may have, I am prepared to direct Dr. McMillen to prepare an inventory of all records removed so that all parties are aware of what has been obtained. Kindly inform me of your client's position in this regard as soon as possible. In the event we do not obtain a satisfactory response, we will need to :.'OD,[ I..I tI'CDOCSiDO(?S!.~$$67' 4 :j.,RI, IS;I.?: :)1.'1,'11:1{: 717.£.45.;}.c';7 ° ~.'{~I,:K :)fl:It:l:: 717.:';43.791 ' RonaM Bullet, Esquire Pag~ 2 Febrnaty 28, 2003 pursue formal avenues to obtain the records. These efforts will also include immediate enforcement of Dr. McMillen's rights to the personal property that have been delayed for over a year now. Ve~B~y°urs'. , Thomas J. Weber TJW/sam cc: Dr. James McMillen (victfctcximile 766-7883) .': ( .1I).~ I. 1 I '(.'!9(){ '~; 19¢)( '.~;i ',?..; 6 7.4 VERIFICATION I, James McMillen, M.D., hereby acknowledge that I am the Plaintiff in this action; that I have read the foregoing and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to' unsworn falsification to authorities. ......... James McMillen, M.D. Date: JAMES MCMILLEN, M.D. V. R. LYNN MAGARGLE, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-1684 EQUITY TERM CIVIL ACTION - EQUITY ORDER OF COURT AND NOW, this 17TM day APRIL, 2003, a heating on Plaintiff's Motion for Preliminary Injunction is scheduled for WEDNESDAY~ APRIL 23~ 2003~ at 11:00 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Cra'lisle, Pa. Edward E. Guido, J. Thomas J. Weber, Esquire For the Plaintiff Ronald D. Butler, Esquire For the Defendant :sld JAMES McMILLEN, M.D., : Plaimiff : v. : No. 03-1684 : R. LYNN MAGARGLE, M.D., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530 within Twenty (20) days from service hereof or a default judgment may be entered against you. CLARAVAL & CLARAVAL P.O. Box 11965 Harrisburg, PA 17108-1965 (717) 233-4'780 Supreme Court I.D. # 19222 Attorneys for Defendant JAMES McMILLEN, M.D., : Plaintiff : : v. : No. 03-1684 : R. LYNN MAGARGLE, M.D., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY DEFENDANT'S ANSWER WITH NEW MATTER AND MOTION FOR SPECIAL RELIEF PURSUANT TO Pa.R.C.P. 1530 AND NOW comes the Defendant R. Lynn Magargle, M.D. by his attorney Robert F. Claraval of Claraval & Claraval and hereby Answers the Complaint and pleads a New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530. 1. Admitted. It is admitted that James McMillen, M.D., is an adult individual residing at 514 Range End Road, Dillsburg, Pennsylvania, 17109. 2. Admitted. It is admitted that R. Lynn Magargle, M.D., is an adult individual with a business address at 3335 Market Street - 3344 Chestnut Street, Camp Hill, Pennsylvania. 3. Admitted. It is admitted that in the 1970s Drs. McMillen and Magargle along with Dr. Thomas R. Hobbs decided to form a partnership for purposes of providing professional medical services. 10. Admitted. It is admitted that Attorney Ronald Butler on behalf of Dr. Magargle wrote to Plaintiff's counsel and advised that the medical partnership would terminate as of January 18, 2002. Said letter was the direct result of negotiation between the parties and their counsel. 11. Admitted. It is admitted that the parties determined to consummate a full division of their respective interest in the two parmerships by terminating the,' HMS Enterprises partnership and the medical partnership. 12. Admitted. It is admitted that the Plaintiff Dr. James McMillen vacated the premises previously housing the medical practice and owned by the real estate partnership on March 12, 2002. This vacation by Dr. McMillen was the result of negotiations by the parties and their counsel. 13. Denied. It is denied that since Dr. McMillen absented himself from the practice that he has been working diligently in order to effectuate complete dissolution of the partnerships and distribution of the assets. To the contrary, issues have arisen between the parties which have not been resolved because of the actions of Dr. McMillen as described below. 14. Denied. It is denied that Dr. McMillen has deposited substantial sums of money into the medical partnership account from fees received by him for services rendered prior to the separation. A strict accounting of those alleged deposits are requested from Dr. McMillen. -3- 15. Denied. The allegation that Dr. Magargle has not deposited partnership funds into the partnership account is false. To the contrary, Dr. Magargle has deposited whatever funds were earned by the medical parmership in the parmership account under proper accounting methods. benefit. 16. Denied. It is denied that Dr. Magargle has diverted any partnership assets to his own Paragraph 16 is scandalous, impertinent and untrue. 17. Admitted. It is admitted that both parties have conveyed offers through their counsel to terminate the partnership and distribute the assets. 18. Denied. It is denied that Dr. Magargle has failed to properly respond to Dr. McMillen's offers to wind up the affairs of the two partnerships. Such statement is false. Moreover, the actions of the parties in selling the real estate owned by HMS Enterprises Parmership demonstrates that the averment is false. 19. Denied. It is denied that Dr. Magargle has taken any action to diminish the value of the remaining medical partnership assets and real property held by HMS Enterprises. To the contrary, Dr. Magargle has invested his own time and money into both the medical partnership and the real estate partnership. Said investments of time and money will be demonstrated by the independent accountant's investigation. -4- 20. Admitted. It is admitted that additional judicial involvement is appropriate, not because of Dr. Magargle's actions but for the Court to appoint an independent accounting firm to review the actions of Dr. McMillen for the past two years to determine if Dr. McMillen has diverted any funds to his own use which are properly owed to the partnership. 21. Admitted. It is admitted that the partnership agreement provides for the distribution of the partnership assets. 22. Admitted. It is admitted that HMS Partnership solid the property housing the former medical practice at 3335 Market Street - 3344 Chestnut Street, Camp Hill. By way of further action, said action demonstrates the level of cooperation that Dr. Magargle extended to Dr. McMillen. 23. Admitted. It is admitted that the net proceeds of the sale of the real estate were distributed evenly between Drs. Magargle and McMillen. 24. Admitted in part and denied in part. It is admitted that Dr. Magargle remained on the premises as a tenant of the new owner until the premises were demolished. It is denied that this averment has any relevance. 25. Admitted. It is admitted that the real estate which formerly housed the medical partnership has been demolished with the demolition beginning on or about April 24, 2002. -5- 26. Denied. It is denied that Dr. Magargle has maintained exclusive control over the books and the accounts of both partnerships since January 18,2001. This averment is false. Plaintiff Dr. McMillen remained in the premises where the partnership books were located until March 12, 2002. Moreover, when the Plaintiff Dr. McMillen absented himself from the premises he took with him a computer containing the partnership checkbook, the physical checkbook and certain payroll information. 27. Admitted and denied. It is admitted that Dr. McMillen has requested certain books and records. By way of further answer, Dr. Magargle has also requested certain information from Dr. McMillen. Therefore, it is appropriate that an independent accounting firm be appointed bythe Court to review all of the books and records of both partnerships. 28. Admitted. It is admitted that Dr. Magargle has obtained an appraisal of the personal property held by the medical partnership. That appraisal has been provided to Dr. McMillen's counsel. By way of further answer, Dr. Magargle has repeatedly requested an inventory of the items of personal property Dr. McMillen removed from the partnership. Those items include, but are not limited to, a computer, exam table, furniture and computer software. Dr. McMillen has refused to provide that appraisal. 29. the property. Admitted. It is admitted that Exhibit C, the apprais al, indicates a value of $3,338 for -6- 30. Admitted in part and denied in part. It is admitted that Dr. McMillen has made offers with respect to the personal property. It is denied that those offers are acceptable because they do not encompass a resolution of many other issues existing between the parties. 31. Denied. It is denied that Dr. Magargle has failed to respond. To the contrary, Dr. Magargle's attorney Ronald Butler has made numerous proposals to settle the dispute existing between the former partners. 32. Admitted. It is admitted the appraisal, Exhibit C, does not contain a value of computer software leased by the partnership. It is further admitted that a value should be placed on the software by the accountants appointed by this Court. 33. Admitted. It is admitted that Dr. McMillen is entitled to the share indicated by the partnership agreement and by Pennsylvania law. By way of furtlher answer, Dr. McMillen is also responsible for contributing to the partnership an amount equal to all partnership assets which he holds that should have been properly placed in partnership use arid in partnership accounts. 34. Denied. It is denied that any records for drug studies performed by Dr. McMillen remain at 3335 Market Street- 3344 Chestnut Street, Camp Hill. To the contrary, those records have been or shortly will be removed per Order of this Honorable Court dated April 24, 2003 and agreement of counsel. -7- 35. Admitted. It is admitted that the responsible physician for a drug study has responsibility for maintaining records. Accordingly, the records 'which Dr. McMillen claims are his have been provided to him as per Paragraph 34. 36. Admitted. Until the sale of the real property, the records which Dr. McMillen allegedly claims are his responsibility were housed at the former medical partnership office. 37. The averments of Paragraph 37 are now irrelevant since the drug studies in question have been or shortly will be obtained by Dr. McMillen. However, it is denied that Dr. Magargle refused to cooperate with Dr. McMillen in obtaining the records that were rightfully to be in the custody of Dr. McMillen. 38. The averments of Paragraph 38 are now irrelevant since the drag studies in question have been or shortly will be obtained by Dr. McMillen. 39. The averments of Paragraph 39 are now irrelevant since the drug studies in question have been or shortly will be obtained by Dr. McMillen. Howew.~r, it is denied that Dr. Magargle refused to cooperate with Dr. McMillen in obtaining the records that Dr. McMillen claimed were his. -8- Count I 40. Dr. Magargle's averments as contained in his answers to incorporated by reference thereto. Paragraphs 1-39 are 41. Admitted in part and denied in part. It is admitted that both Dr. Magargle and Dr. McMillen have a right to a full and complete accounting of both partnerships' activities. It is denied that the accounting should begin on January 18, 2002. To the contrary, the accounting by the Court appointed accountants should begin on January 1,2001. By beginning on that date the accountants will provide a full overview of the actions of Dr. McMillen leading up to the dissolution of the partnerships. WHEREFORE, Dr. Magargle moves this Honorable Court to appoint an accounting firm in accordance with his New Matter and Motion. Count II - Personal Property 42. Dr. Magargle's averments as contained in his answers to Paragraphs 1-41 are incorporated by reference thereto. -9- 43. for itself. Admitted. It is admitted that Dr. Magargle's appraisal of the personal property speaks 44. Denied. It is denied that it is appropriate that Dr. McMillen make any payment at this point in time for the personal property as there has been no full and complete accounting of all monies owed to the partnership accounts by Dr. McMillen. WHEREFORE, Dr. Magargle moves this Honorable Court for an Order appointing an accounting firm who shall then determine what funds are owed by each partner to each partnership or what items of property each former partner should return to each partnership. Count III - All Other Partnership Property 45. Dr. Magargle's averments as contained in his answers to Paragraphs 1-44 are incorporated by reference thereto. 46. Admitted. It is admitted that both partners Dr. Magargle and Dr. McMillen are entitled to the proceeds of the assets of the partnerships as determined by the partnership agreements and by Pennsylvania law. -10- WHEREFORE, Dr. Magargle moves this Honorable Court for an Order appointing an accounting firm who shall then determine the assets of each partnership and each partner's share. Count IV - Injunctive Relief' 47. No answer is required. 48. Paragraph 48 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 49. Paragraph 49 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 50. Paragraph 50 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 51. Paragraph 51 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 52. Paragraph 52 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. -11- 53. Paragraph 53 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 54. Paragraph 54 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 55. Paragraph 55 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 56. Paragraph 56 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. New Matter and Motion for Special Relief - Accounting Pursuant to Pa.R.C.P. 1530 57. The averments above are incorporated by reference thereto. 58. Pa.R.C.P. 1530 provides in part: "(a) Any pleading demanding relief may include a demand for an accounting." -12- 59. Pa.R.C.P. 1515 provides in part: "In actions involving complicated accounts, or questions requiring the evidence of experts, the Court may employ an accountant or other expert to aid in the proper disposition of the action." 60. Prior to the cessation of operation of the medical partnership as described above, Dr. McMillen denied Dr. Magargle the right to participate fully in the operation of the business. 61. Dr. McMillen took control of the partnership books and refused to permit Dr. Magargle access to them. 62. Although repeatedly requested to do so, Dr. McMillen refused to render an accurate accounting to Dr. Magargle concerning funds received by Dr. MciMillen which upon information and belief are partnership monies. 63. Upon information and belief, Dr. McMillen has engaged in business activities including lecturing which have generated income but has failed to deliver that income to the partnership in violation of the partnership agreement. 64. Dr. Magargle does not have possession of or access to the books and records of the medical partnership and therefore is unable to have a full accounting accomplished for the practice. The accounting should begin on January 1,2001 when Dr. McMillen re-associated himself with the -13- partnership. It is believed and therefore averred that a thorough accounting performed by neutral Court appointed accountants is necessary to review the books and records of the partnerships since January 1, 2001 to determine each partner's share of the partnership assets upon dissolution of the partnerships. 65. This Court is authorized to order an accounting pursuant to Pa.R.C.P. 1530 "Special Relief Accounting." 66. If a neutral Court appointed accounting firm does not review the books and records of the medical and real estate partnerships then the parmerships will suffer irreparable harm because they will be dissolved without first having a full and fair accounting. 67. Dr. McMillen must be ordered to fully cooperate with the Court appointed accounting firm so that the accountants are able to conduct a full, fair and comprehensive accounting of the actions of the partnerships from January 1, 2001 to the present. Dr. Magargle will also cooperate fully with the accounting firm. 68. Dr. Magargle will suffer irreparable harm if the partnerships are dissolved without a full and fair accounting. -14- 69. There is no alternate remedy for either Dr. Magargle or the medical and real estate partnerships but for the Court to appoint an accounting firm with a broad range of authority. 70. The accounting firm formerly retained by the partnership is not appropriate to conduct the review and audit because the firm is currently employed by Dr. McMillen for his private practice. 71. Dr. McMillen has removed from the partnership certain items of personal property including but not limited to a computer, exam table, furniture and computer software. WHEREFORE, Dr. R. Lynn Magargle moves this Honorable Court to appoint an accounting firm to review the books and records of the McMillen Magargle medical partnership and of HMS Enterprises parmership from January 1, 2001 to the present amd to render to the Court a full accounting of the assets and liabilities of the partnerships and to specify any funds due and owing to the partnerships by either Dr. McMillen or Dr. Magargle. A proposed order is attached. Date: CLARAVAL & CLARAVAL By '~OBERT F. ~L'~-RAVA~- P.O. Box 11965 Harrisburg, PA 1710g-1965 (717) 233-4'180 Supreme Court I.D. #19222 Attorneys for Defendant -15- MAY-05-2003 OZ:14PU FiO~R. L~nn Ma;arile MD. ~i? 'r30~039 T-~47 P.OOZ/OOZ F-Sg? PLCS.A. ~49(~ rehtlna,o ,,,~vo,~ J~l.G~m.~ mhor~ JAMES McMILLEN, M.D., Plaintiff Vo R. LYNN MAGARGLE, M.D., Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-1684 CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that I have this day served a true: and correct copy of the attached Defendant's Answer with New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530 by first class mail, postage prepaid, addressed to the following person: Thomas J. Weber, Esq. Goldberg, Katzman & Shipman P.O. Box 1268 Harrisburg, PA 17108-1268 Date: CLARAVAL & CLARAVAL By DENISE I. WILLIAMS, Secretary SHERIFF'S RETURN - REGULAR CASE NO: 2003-01684 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCMILLEN JAMES MD VS MAGARGLE R LYNN MD CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon MAGARGLE R LYNN MD the DEFENDANT , at 1442:00 HOURS, on the 16th day of April at 3335 MARKET STREET , 2003 CAMP HILL, PA 17011 DARLAMAGARGLE, WIFE by handing to a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing He____r attention to the contents thereof. Sheriff.s Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this L ~ day of 7~, ~ ~'{A~, A.D. ~P~oth°notary So Answers: 04/17/2003 GOLDBERG KATZ~/S'H,t~MAN JAMES McMH.LEN, M.D., Plaintiff Vo R. LYNN MAGARGLE, M.D., Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-1684 CIVIL ACTION - EQUITY NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer with New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530 within Twenty (20) days from service hereof or a default judgment may be entered against you. CLARAVAL & CLARAVAL P.O. Box 11965 Harrisburg, PA 17108-1965 (717) 233-4780 Supreme Court I.D. #19222 Attorneys for Defendant JAMES McMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-1684 CIVIL ACTION - EQUITY DEFENDANT'S ANSWER WITH NEW MATTER AND MOTION FOR SPECIAL RELIEF PURSUANT TO Pa.R.C.P. 1530 AND NOW comes the Defendant R. Lynn Magargle, M.D. by his attorney Robert F. Claraval of Claraval & Claraval and hereby Answers the Complaint and pleads a New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530. 1. Admitted. It is admitted that James McMillen, M.D., is an adult individual residing at 514 Range End Road, Dillsburg, Pennsylvania, 17109. 2. Admitted. It is admitted that R. Lynn Magargle, M.D., is an adult individual with a business address at 3335 Market Street - 3344 Chesmut Street, Camp Hill, Pennsylvania. 3. Admitted. It is admitted that in the 1970s Drs. McMillen and Magargle along with Dr. Thomas R. Hobbs decided to form a partnership for purposes of providing professional medical services. 4. Admitted. It is admitted that the nature of the partnership and parties' respective rights and obligations were controlled as of July 1, 1978 by a partnership agreement. It is admitted that a copy of the partnership agreement is attached to the Complaint as Exhibit A. By way of further answer, the terms of the partnership and of the dissolution of the partnership are governed by Pennsylvania law. 5. Admitted. It is admitted that as of December 31, 1987 partner Thomas R. Hobbs - withdrew from the partnership. 6. Admitted. It is admitted that since December 31, 1987, the partnership continued to operate with Drs. McMillen and Magargle each being 50% partners. 7. Admitted. It is admitted that in the 1970s Drs. McMillen, Magargle and Hobbs entered into a second partnership, namely HMS Enterprises Partnership, for purposes of holding certain real property located at 3335 Market Street - 3344 Chestnut Street, Camp Hill, Pennsylvania. 8. Admitted. It is admitted that as of December 31; 1987, Dr. Thomas R. Hobbs removed himself from participation in the HMS Partnership. 9. Admitted. It is admitted that since December 31, 1987 Drs. McMillen and Magargle have been equal partners in the HMS Partnership. -2- 10. Admitted. It is admitted that Attorney Ronald Butler on behalf of Dr. Magargle wrote to Plaintiff's counsel and advised that the medical partnership would terminate as of January 18, 2002. Said letter was the direct result of negotiation between the parties and their counsel. 11. Admitted. It is admitted that the parties determined to consummate a full division of their respective interest in the two parmerships by terminating the HMS Enterprises partnership and the medical partnership. 12. Admitted. It is admitted that the Plaintiff Dr. James McMillen vacated the premises previously housing the medical practice and owned by the real estate partnership on March 12, 2002. This vacation by Dr. McMillen was the result of negotiations by the parties and their counsel. 13. Denied. It is denied that since Dr. McMillen absented himself from the practice that he has been working diligently in order to effectuate complete dissolution of the partnerships and distribution of the assets. To the contrary, issues have arisen between the parties which have not been resolved because of the actions of Dr. McMillen as described below. 14. Denied. It is denied that Dr. McMillen has deposited substantial sums of money into the medical partnership account from fees received by him for services rendered prior to the separation. A strict accounting of those alleged deposits are requested from Dr. McMillen. -3- 15. Denied. The allegation that Dr. Magargle has not deposited partnership funds into the partnership account is false. To the contrary, Dr. Magargle has deposited whatever funds were earned by the medical partnership in the partnership account under proper accounting methods. 16. Denied. It is denied that Dr. Magargle has diverted any partnership assets to his own benefit. Paragraph 16 is scandalous, impertinent and untrue. 17. Admitted. It is admitted that both parties have conveyed offers through their counsel to terminate the partnership and distribute the assets. 18. Denied. It is denied that Dr. Magargle has failed to properly respond to Dr. McMillen's offers to wind up the affairs of the two partnerships. Such statement is false. Moreover, the actions of the parties in selling the real estate owned by HMS Enterprises Partnership demonstrates that the averment is false. 19. Denied. It is denied that Dr. Magargle has taken any action to diminish the value of the remaining medical partnership assets and real property held by HMS Enterprises. To the contrary, Dr. Magargle has invested his own time and money into both the medical partnership and the real estate partnership. Said investments of time and money will be demonstrated by the independent accountant's investigation. -4- 20. Admitted. It is admitted that additional judicial involvement is appropriate, not because of Dr. Magargle's actions but for the Court to appoint an independent accounting firm to review the actions of Dr. McMillen for the past two years to determine if Dr. McMillen has diverted any funds to his own use which are properly owed to the partnership. 21. Admitted. It is admitted that the partnership agreement provides for the distribution of the partnership assets. 22. Admitted. It is admitted that HMS Partnership sold the property housing the former medical practice at 3335 Market Street - 3344 Chestnut Street, Camp Hill. By way of further action, said action demonstrates the level of cooperation that Dr. Magargle extended to Dr. McMillen. 23. Admitted. It is admitted that the net proceeds of the sale of the real estate were distributed evenly between Drs. Magargle and McMillen. 24. Admitted in part and denied in part. It is admitted that Dr. Magargle remained on the premises as a tenant of the new owner until the premises were demolished. It is denied that this averment has any relevance. 25. Admitted. It is admitted that the real estate which formerly housed the medical partnership has been demolished with the demolition beginning on or about April 24, 2002. -5- 26. Denied. It is denied that Dr. Magargle has maintained exclusive control over the books and the accounts of both partnerships since January 18,2001. This averment is false. Plaintiff Dr. McMillen remained in the premises where the partnership books were located until March 12, 2002. Moreover, when the PlaintiffDr. McMillen absented himself from the premises he took with him a computer containing the partnership checkbook, the physical checkbook and certain payroll information. 27. Admitted and denied. It is admitted that Dr. McMillen has requested certain books and records. By way of further answer, Dr. Magargle has also requested certain information from Dr. McMillen. Therefore, it is appropriate that an independent accounting firm be appointed by the Court to review all of the books and records of both partnerships. 28. Admitted. It is admitted that Dr. Magargle has obtained an appraisal of the personal property held by the medical partnership. That appraisal has been provided to Dr. McMillen's counsel. By way of further answer, Dr. Magargle has repeatedly requested an inventory of the items of personal property Dr. McMillen removed from the partnership. Those items include, but are not limited to, a computer, exam table, furniture and computer software. Dr. McMillen has refused to provide that appraisal. 29. the property. Admitted. It is admitted that Exhibit C, the appraisal, indicates a value of $3,338 for -6- 30. Admitted in part and denied in part. It is admitted that Dr. McMillen has made offers with respect to the personal property. It is denied that those offers are acceptable because they do not encompass a resolution of many other issues existing between the parties. 31. Denied. It is denied that Dr. Magargle has failed, to respond. To the contrary, Dr. Magargle's attorney Ronald Butler has made numerous proposals to settle the dispute existing between the former partners. 32. Admitted. It is admitted the appraisal, Exhibit C, does not contain a value of computer software leased by the partnership. It is further admitted that a value should be placed on the software by the accountants appointed by this Court. 33. Admitted. It is admitted that Dr. McMillen is entitled to the share indicated by the partnership agreement and by Pennsylvania law. By way of further answer, Dr. McMillen is also responsible for contributing to the partnership an amount equal to all partnership assets which he holds that should have been properly placed in partnership use and in partnership accounts. 34. Denied. It is denied that any records for drag studies performed by Dr. McMillen remain at 3335 Market Street- 3344 Chesmut Street, Camp Hill. To the contrary, those records have been or shortly will be removed per Order of this Honorable Court dated April 24, 2003 and agreement of counsel. -7- 35. Admitted. It is admitted that the responsible physician for a drug study has responsibility for maintaining records. Accordingly, the records which Dr. McMillen claims are his have been provided to him as per Paragraph 34. 36. Admitted. Until the sale of the real property, the records which Dr. McMillen allegedly claims are his responsibility were housed at the former medical partnership office. 37. The averments of Paragraph 37 are now irrelevant since the drug studies in question have been or shortly will be obtained by Dr. McMillen. However, it is denied that Dr. Magargle refused to cooperate with Dr. McMillen in obtaining the records that were rightfully to be in the custody of Dr. McMillen. 38. The averments of Paragraph 38 are now irrelevant since the drug studies in question have been or shortly will be obtained by Dr. McMillen. 39. The averments of Paragraph 39 are now irrelevant since the drag studies in question have been or shortly will be obtained by Dr. McMillen. However, it is denied that Dr. Magargle refused to cooperate with Dr. McMillen in obtaining the records that Dr. McMillen claimed were his. -8- Count I 40. Dr. Magargle's averments as contained in his answers to Paragraphs incorporated by reference thereto. 1-39 are 41. Admitted in part and denied in part. It is admitted that both Dr. Magargle and Dr. McMillen have a right to a full and complete accounting of both partnerships' activities. It is denied that the accounting should begin on January 18, 2002. To the contrary, the accounting by the Court appointed accountants should begin on January 1,2001. By beginning on that date the accountants will provide a full overview of the actions of Dr. McMillen leading up to the dissolution of the partnerships. WHEREFORE, Dr. Magargle moves this Honorable COurt to appoint an accounting firm in accordance with his New Matter and Motion. Count II - Personal Property 42. Dr. Magargle's averments as contained in his answers to Paragraphs 1-41 are incorporated by reference thereto. -9- 43. for itself. Admitted. It is admitted that Dr. Magargle's appraisal of the personal property speaks 44. Denied. It is denied that it is appropriate that Dr. McMillen make any payment at this point in time for the personal property as there has been no full and complete accounting of all monies owed to the partnership accounts by Dr. McMillen. WHEREFORE, Dr. Magargle moves this Honorable Court for an Order appointing an accounting firm who shall then determine what funds are owed by each partner to each partnership or what items of property each former partner should return to each partnership. Count III - All Other Partnership Property 45. Dr. Magargle's averments as contained in his answers to Paragraphs 1-44 are incorporated by reference thereto. 46. Admitted. It is admitted that both partners Dr. Magargle and Dr. McMillen are entitled to the proceeds of the assets of the partnerships as determined by the partnership agreements and by Pennsylvania law. -10- WHEREFORE, Dr. Magargle moves this Honorable Court for an Order appointing an accounting firm who shall then determine the assets of each partnership and each partner's share. Count IV - Injunctive Relief 47. No answer is required. 48. Paragraph 48 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 49. Paragraph 49 is moot in light of the Order issued .April 24, 2003 by this Honorable Court through Judge Edward Guido. 50. Paragraph 50 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 51. Paragraph 51 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 52. Paragraph 52 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. -11- 53. Paragraph 53 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 54. Paragraph 54 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 55. Paragraph 55 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. 56. Paragraph 56 is moot in light of the Order issued April 24, 2003 by this Honorable Court through Judge Edward Guido. New Matter and Motion for Special Relief - Accounting Pursuant to Pa.R.C.P. 1530 57. The averments above are incorporated by reference thereto. 58. Pa.R.C.P. 1530 provides in part: "(a) Any pleading'demanding relief may include a demand for an accounting." -12- 59. Pa.R.C.P. 1515 provides in part: "In actions involving complicated accounts, or questions requiring the evidence of experts, the Court may employ an accountant or other expert to aid in the proper disposition of the action." 60. Prior to the cessation of operation of the medical partnership as described above, Dr. McMillen denied Dr. Magargle the right to participate fully in the operation of the business. 61. Dr. McMillen took control of the partnership books and refusexl to permit Dr. Magargle access to them. 62. Although repeatedly requested to do so, Dr. McMillen refused to render an accurate accounting to Dr. Magargle concerning funds received by Dr. McMillen which upon information and belief are partnership monies. 63. Upon information and belief, Dr. McMillen has engaged in business activities including lecturing which have generated income but has failed to deliver that income to the partnership in violation of the partnership agreement. 64. Dr. Magargle does not have possession of or access to the books and records of the medical partnership and therefore is unable to have a full accounting accomplished for the practice. The accounting should begin on January 1, 2001 when Dr. McMillen re-associated himself with the -13- partnership. It is believed and therefore averred that a thorough accounting performed by neutral Court appointed accountants is necessary to review the books and records of the partnerships since January 1, 2001 to determine each partner's share of the partnership assets upon dissolution of the partnerships. 65. This Court is authorized to order an accounting pursuant to Pa.R.C.P. 1530 "Special Relief Accounting." 66. If a neutral Court appointed accounting fu'm does not review the books and records of the medical and real estate partnerships then the partnerships will suffer irreparable harm because they will be dissolved without first having a full and fair accounting. 67. Dr. McMillen must be ordered to fully cooperate with the Court appointed accounting firm so that the accountants are able to conduct a full, fair and comprehensive accounting of the actions of the partnerships from January 1,2001 to the present. Dr. Magargle will also cooperate fully with the accounting firm. 68. Dr. Magargle will suffer irreparable harm if the partnerships are dissolved without a full and fair accounting. -14- 69. There is no alternate remedy for either Dr. Magargle or the medical and real estate partnerships but for the Court to appoint an accounting firm with a broad range of authority. 70. The accounting firm formerly retained by the partnership is not appropriate to conduct the review and audit because the firm is currently employed by Dr. McMillen for his private practice. 71. Dr. McMillen has removed from the partnership certain items of personal property. including but not limited to a computer, exam table, furniture and computer software. WHEREFORE, Dr. R. Lynn Magargle moves this Honorable Court to appoint an accounting f'mn to review the books and records of the McMillen Magargle medical partnership and of HMS Enterprises partnership from January 1, 2001 to the present and to render to the Court a full accounting of the assets and liabilities of the partnerships and to specify any funds due and owing to the partnerships by either Dr. McMillen or Dr. Magargle. A proposed order is attached. Date: CLARAVAL & CLARAVAL OBERT F./2L"~tAVAL \ P.O. Box 11965 Harrisburg, PA 17108-1965 (717) 233~4780 Supreme Court I.D./119222 Attorneys for Defendant -15- MAY-06-2003 OZ:14PM FROM~R. LynmMa~ar~le MD. 717 730 6039 , -~ T-$47 P.002/002 F-597 JAMES McMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03-1684 CIVIL ACTION- EQUITY CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Defendant's Answer with New Matter and Motion for Special Relief Pursuant to Pa.R.C.P. 1530 by first class mail, postage prepaid, addressed to the following person: Thomas J. Weber, Esq. Goldberg, Katzman & Shipman P.O. Box 1268 Harrisburg, PA 17108-1268 Date: CLARAVAL & CLARAVAL DENISE I. WILLIAMS, Secretary ~tAY 0 7 ~003 ~' JAMES McMILLEN, M.D., Plaintiff Vo R. LYNN MAGARGLE, M.D., Defendant ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · No. 03-1684 · CIVIL ACTION - EQUITY AND NOW, this day of ., 2003, a Rule to Show Cause is issued upon the Plaintiff James McMillen, M.D. to show cause why this Court should not appoint an accountant to examine the books and records of the McMillen Magargle medical partnership and the HMS Enterprises partnership from January 1,2001 to the present date. Rule returnable ~} days from service. ~ ~ ~'~~~... BY THE EDWARD H. GUIDO, Judge ,0 ViNVAa,,I~SNN~Id JAMES McMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · No. 03-1684 · CIVIL ACTION - EQUITY PRAECIPE TO THE PROTHONOTARY: Please substitute the attached original Verification for the photocopy attached to original Answer with New Matter and Motion filed in the above action. CLARAVAL & CLARAVAL B ~ P.O. Box 11965 Harrisburg, PA 17108-1965 (717) 233-4780 Supreme Court I.D. # 19222 Attorneys for Plaintiff ~00S/002 The l&Mua~ of the fo~oJ~ documen~ ~a ~_~. of oounael hud not n~e~ my °wn; h°wever, l lmvo read the foregoing .dgcument and to the extent that it is lmeed upon ~on that I have give~ to counsel, it ~a ~ and collect to the best of my knowledse, ~,,tton. end I undermnd tbe;t any Mse ~ berr~ ere made subject to the penalties of 18 P&C.S.A. g4904, reJadn8 to unswom ~alaifle~on to a~orlties. Thomas J. Weber, Esquire - I.D.//58853 Goldberg, KatTanan & Shipman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff JAMES MCMII.LEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant IN THE COURT OF COMMON PLEAS, CUMEP~AND COUNTY, PENNSYLVANIA Docket No. 03-1684 CIVIL ACTION - EQUITY PLAINTIFF'S ANSWER TO NEW MATTER AND MOTION FOR SPECIAL RELIEF 57. The averments contained in paragraphs 1 through 56 of Plaintiff's Complaint are incorporated herein as though set forth in their entirety. 58. The averments contained in paragraph 58 of Defendant's New Matter refer to Pa. R.C.P. No. 1530, which as a writing speaks for itself. 59. The averments contained in paragraph 59 of Defendant's New Matter refer to Pa. R.C.P. No. 1515, which as a writing speaks for itself. 60. Denied. It is specifically denied that Dr. McMillen denied Dr. Magargle any right to participate fully in the operation of the business. By way of further answer, it is acknowledged that due to Defendant's lack of interest and/or business acumen, that he was content to leave the vast majority of the responsibility for overseeing the business operations to Dr. McMillen. 61. Denied. It is denied that Dr. McMillen took control of the partnership books and/or refused Dr. Magargle to access them. By way of further answer, since the separation of the partners, the accounts have remained under the custody and/or control of in Dr. Magargle. 62. Denied. Dr. McMillen has never refused to provide access regarding the partnership's business activities. Since the separation of the partners, Dr. McMillen has repeatedly suggested that an accounting be conducted. Defendant has refused to cooperate, necessitating the initiation of this litigation. 63. Denied. It is denied that Dr. McMillen has not properly transferred any and all funds properly characterized as partnership funds to the partnership. Dr. McMillen's efforts in lecturing, similar to those of Dr. Magargle working at the MRI center, reading cardiograms at the Rehab, and lecturing at Penn National Race Track, were always outside of the partnership. It is admitted that since the separation of the partners, Dr. McMillen has engaged in business activities and rightfully retained control over all funds generated from the same. 64. Denied. Upon information and belief, Plaintiff avers that the Defendant maintains access to all partnership records. By way of further answer, Dr. McMillen does not have any objection to an accounting beginning as of January 1, 2001. It is denied that the accounting necessitates a court appointment to be properly completed. 65. The averments contained in paragraph 65 of Defendant's New Matter constitute conclusions of law to which no response is required. 66. The averments contained in paragraph 66 of Defendant's New Matter constitute conclusions of law to which no response is required. To the extent they are deemed factual in nature, they are denied. It is admitted that an accounting should be completed. By way of further answer, the retention ora court-appointed accountant at this time will cause an excessive increase in the expense associated with completing the accounting and further delay the resolution of these matters, which have been pending in excess of fifteen (15) months. The partnership had a long-standing relationship with a initially suggested their involvement, objects now merely in an effort to further delay and escalate the cost of this matter. 71. Admitted. By way of further answer, unlike Defendant's actions of retaining the vast majority of the partnership assets under his own control, Plaintiff did remove limited materials when he physically separated from the partnership establishment. This occurred with Defendant's knowledge and the absence of any complaint. Attached hereto as Exhibit F is a list of the equipment removed and an estimation as to its value. WHEREFORE, Dr. McMillen respectfully requests that the Court refrain from appointing an accountant and, instead, issue an Order requiring both parties to cooperate fully with the partnership accountants for purposes of preparing an accounting covering the period from January 1, 2001, up until the present. Each party should be ordered to pay the cost of providing their own materials to the accountant. The cost of the accounting should be recognized as a partnership expense. Date: May 28, 2003 Respectfully submitted, ATZMAN & SlitlPMAN, P.C. homas J. Weber, E~j~uire Attorney I.D. No. 58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 A ttorney.for the Plainti.[/' ::OI),{L, iP(TDO('S!I)(.;C.%' 96267k1 4 500 North Third Street Twelfth Floor Harrisburg, PA 17101 Mailing Address: Post Office Box 1004 Harrisburg, PA 17108.1004 Tel: 717.236.1485 Fax: 717.236.7777 lawyers@butleriawfirm.co m Ronald D. Butler Jana Butler Toole Benjamin J. Butler April 17, 2002 Thomas J. Weber, Esquire Goldberg, Katzman & Shipman, P.C. 320 East Market Street Harrisburg, PA 17101 Re: McMillen and Magargle Medical Partnership Dear Tom: Thomas .l. Weber, Esquire April 17, 2002 Page Txvo '~ Thomas J. Weber, Esquire April 17, 200~ Page Three Thomas J. Xageber, Esquire April 17, 2002 Page Four 20. The McMillen/Magargle checking account should be immediately turned over to Steve Scheuchenzuber. He should make all deposits and write all checks until the dissolution process has been completed. Thomas J. Weber, Esquire April 17, 200~ Page Five Ronald D. Butler RDB/clf Enclosures cc: Robert F. Claraval, Esquire iLO. Box 1268 * 7 I ?.?'?'4-4161 GOLDBERG, KATZNIAN ~o SHIPMAN, P.C. h '[' T O R N E '~ .'-; :',, 'J* [ , .',. W June 3,2002 OF COUNSEL F, [~EE SHIPMAN J OS14 l:..\ [). VIA HAND DELIVERY Ronald D. Butler, Esquire Butler Law Firm 500 North Third Street P.O. Box 1004 Harrisburg, PA 17108-1004 Re: McMillen / Magargle Partnerships Dear Ron: My client has now had an opportunity to digest your correspondence of April 17, 2002, ~ide the Ronald D. Butler, Esq. Julle .~, 2002 Page 2 Ronald D. Butler, Esq. June 3, 2002 ~ Page 3 Ronald D. Butler, Esq. June ~ a, 2002 * Page 4 Ronald D. Butler, Esq. June 3, 2002 ,, Page 5 20. Agreed. Ronald D. Butler, Esq. June 3, 2002 ~ Page 6 Ronald D. Butler, Esq. June 3, 2002 . Page 7 TJW:sjb cc: Dr. James McMillen 74404.9 500 North T, 3treet Twelfth Hoot Harrisburg, PA 17101 Mailing Address: Post Office Box 1004 Harrisburg, PA 17108.1004 Tel: 717.236.1485 Fax: 717.236.7777 lawye}s@butlerlawfirm.com Ronald D. Butler Jana Butler Toole Benjamin J. Butler June 14, 2002 VIA FAX AND FIRST CLASS MAIL Thomas J. Weber, Esquire Goldberg, Katzman & Shipman, P.C. OZLI P_,aS£ l~vtill'lq.~i, o ..... Han-isburg, PA 17101 Re: McMillen and Magargle Medical Partnership Deal' Tom: I have had an opportunity to revie~v your letter of June 3, 2002 with Dr. Magargle. comments are as ~bllows: OLII' Thomas J. Weber, Esquire Dr. Magargle will xvork with the accountants and provide them any intbrmation that they need. Thomas J. Weber, Esquire June 14. 2002 Page Three 10. The documentation referred to m your Exhibit "C" should be reviewed by the accounting firm. 11. The documentation refen'ed to m your Exhibit "C" should be reviewect by the accounting firm. 14, The receipts referred to in your Exhibit "C" should be reviewed by the accountin~ f~1111. -- rather: 15. It ai 20. We are all in agreement on this matter. '~ /~.:SF:~:gS ~ ~ Zo r-e0~ '~/17/0L L~'r't>-~.,, e~q-~'~tair A Thomas .I. ~,\,~be~' Esquire .lune 14. 2002 Page Foul- Thomas J. Weber. Esquire June 14. 2002 Page Fi~ e ~ Very truly yours, Ronald D. Butler RDB/clf Enclosures cc: Robert F. Claraval, Esquire R. Lynn Magargle, M.D. 320 MARKET STREET · STRAWBERRY SQUARE P.O. BOX 1268 · HARRISBURG, PENNSYLVANIA 17108-1268 717.234.4161 * 717,234,6808 (Fax) GOLDBERG, KATZMAN ~ SHIPMAN, P.C. ATTORNEYS AT LAW June 27, 2002 OF COUNSEL E LEE SHIPMAN COUNSEL JOSHUA D. LOCK ARNOLD B. ~OGAN .&-RTHUR L. GOLDBERG (1951-2000) HARRY [~. GOLDBERG (1961-!998) RONALD M. KATZMAN PAUL J. ESPOSITO NEIL HENDERSItOT J. JAY COOPER THOMAS E. BRENNER jOHN A. ,~TATLER :~,PRIL L. STRANG-~UTAY GUY H. BROOKS JEFFERSON J. SHIP!'.tAN JERRY J. RUSSO MICHAEL J. f2ROCENZI THOX~AS J. W~E~ STEVEN E. Gm:n~ JOHN DELORENZO JOHN R. NINOSKY ROYCE L. NIORR~S DAVID M. S'rE(:KEL Ronald D. Butler, Esquire Butler Law Firm P.O. Box 1004 Harrisburg, PA 17108-1004 Re: McMillen / Magargle Medical Partnerships Dear Kon: Please allow this to serve as a response to your correspondence of June 14, 2002, received in my office June 17, 2002. OFFICE; 7i7.245.U597 · T,)RK f) FFIC:¢: 717.342.7912 Ronald D. Butler, Esq. ~lune 27, 2002 Page 2 ~ Ronald D. Butler, Esq. June 27, 2002 Page 3 ' Ronald D. Butler, Esq. June 27, 2002 Page 4 20. Since we are all in agreement, the matter should be turned over to the accountants immediately. Ronald D. Butler, Esq. lune 27, 2002 Page 5 Kindly confer with your client to determine whether this approach is acceptable. If it is not then I would suggest that we conduct a meeting with all interested pal-ties and the accountants as soon as possible. ~ yours, , Thom/ts J. Webei: TJW/sam cc: Dr. lames McMillen (sent via facsimile 766-7883) 81320.1 .120 ~VIARKET STREET ~, STRAWBERRY SQUARE P.O. BOX 1268 ,, HARRISBURG, PENNSYLVANI^ 17108-I765 717.234.4161 · 717.234.6808 (FAx) Go LDBERG, KATZMAN ~ SHIPMAN, P.C. ATTORNEYS AT LAW March 5, 2003 OF COUNSEL LEE SHIPMAN C, OUNSEL jOSHUA D. Loc:-:. ARNOLD 3. KOGAN .CRTHUR Z. GOLDBERG t 195 i-2000) HARRY 3. GOLDltERG (i96i-t998) RONALD M. K,-',TZMAN PAUL J. ESPOSITO NEiL ?IENDERSHOT j. J.-w COOPER T;-~o,x~^s E. JOHN .~.. STXTLER APRIL L, STR^NG-KU'I'^¥ (J.i:Y H. BROOKS jEFFERSON J. SItIPMAN JEI',RY j. Rt;sso ~vilCItAEL J. CROC:iNZI TH o..',L~.s jOHN DF, LORENZO JOHN R. DA\'!D J'.]. i l E..'-. I'll [5 R [~. Via Facsimile 236-7777 And First Class Mail Ronald D. Butler, Esquire Butler Lax,,, Firm P.O. Box 1004 Harrisburg, PA 17108-1004 Re: McMillen/Magargle Partnership Dear Rom This letter is intended to be yet another effort to resolve the outstanding issues regarding the separation of the medical pm-tnership that took place a full 13 ~,5 months ago. Initially, please reference my correspondence of last week regarding Dr. McMillen's needed access and possession of the study records in the basement of the practice. As a result of regulatory requirements, this point it is nonnegotiable. Ronald Butler, £squire Page 2 MaTch 5, 2003 You had previously suggested turning the financial matters over to the Partnership accountants. At that time We had immediately agreed. Yet to date it has not been done. Dr. McMillen requests that all financial records for both Partnerships be immediately turned over to Hartman & Scheuchenzuber. At a minimum, this should include copies of the Practice management reports tbr March, April and any subsequent months until collection of the account receivables are complete. Copies of all day sheets from the McMillen & Magargle account and all snapshots from .~anuary 19, 2002, to the present and ongoing until collection of account receivables is complete. Complete copies of the snapshot reports from June I, 2001, through January 18, 2002. The account should also be provided with all accounts of HMS including rent receipts, deposits and payments. Kindly advise me as to when these records will be provided to the accountant. You had indicated sharing with us a list of your outstanding issues. To date I' have not received the same but look fbrward to it. As stated in my previous correspondence, we will not tolerate allowing this matter to drag on endlessly. In the event your client will not immediately acquiesce in allowing access to the requested files, we will be forced to proceed to litigation. TJ \V/sam Very truly yours, TI -l- boreas J. Weber Dr. James McMillen (via./acsimi/e 766-7883) SZ0 MARKET STREET '~ STRAWBERRY SQUARE P.O. Bo:.: 1Z68 .., H.~RR. ISatJ~C,, PENNSYI. VANIA 17108-1268 717.234.4161 · 717.234.6808 GOLDBERG, KATZMAN ~-~ SHIPMAN, P.C. ATTORNE¥£ AT LAW October 22, 2002 OF COUNSEL LEE SHIPMAN COUNSEL jossu.x D. Loc'x :~It. NOLD ~. KOGAN Ronald D. Butler, Esquire Butler Law Firm P.O. Box 1004 Harrisburg, PA 17108-1004 Re: McMillen/Magargle Partnership Dear Ron: ,:[RTtt!_:R ~. GOLDBERG (I951-2000) ~ARRY B. GOLDBERG (I96i-i9981 [{ONALD .¥!. PAUL j. ESPOSITO .~xr E I L HENDERSHOT J. Lw THOMAS E. BRENNER JOHN A. APRIL L. ~TRANG-[(UTAY Guy H. JEFFERSON j. SHIPMAN jERRY J. Russo MICItAEL j. CROCENZI ~'HOMAS J. [VEBI{R jOHN DEI, ORENZO It has been some time since the Agreement of Sale was signed for the real property. At the conclusion of our last meeting, you had indicated you would be in touch with me shortly so that we could address the remaining issues pertaining to the personal property. I do not want to see the momentum gained from selling the real estate dissipate without making meaningful advances on the outstanding issues. Your correspondence of last spring suggested that all financial matters for the Partnership be turned over to the accountants. We immediately agreed, yet it has not yet occurred. I believe that this should be done as soon as possible. Once the accountants are able to provide us with an accounting of the practice's activities, the only remaining issues should be leR to the valuation of the office equipment. Kindly contact me as soon as possible so that we can discuss how to move this matter along and identify any outstanding issues on your end. ( \,'~ ') Thomas J. Weber TJW/sam cc: Dr. James Mc/VI/lien OFFICE EQUIPMENT TAKEN ON TERMENATION OF PARTNERSHIP RESEARCH: 3 tables ~ $20. $60. 5 stack chairs ~ $5. $25. 5 shelves ~ $25. $125. Old Computer $1. 2 metal desk ~ $20. $40. 2 old lamps $9.98 new $2. SALLY' S OFFICE: 1 exam table @$150. wood desk ~ $20. Filing cabinet ~ $20. 2 stools ~ $5. Filing cabinet small-broken $150. $20. $2O. $10. $2. FRONT OFFICE: 2 filing cabinets small @ $15. 2 shelves ~ $25. $30. $50. BILLING AREA: Filing cabinet ~$15. $15. $55O. CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Robert F. Claraval Claraval & Claraval P.O. Box 11965 Harrisburg, PA 17108-1965 , KATZMAN & SHIPMAN, P.C Tho~,~squire Attorney I.D. No. 58853 Date: May 28, 2003 :.'( )D3:L4 q>CDO¢'S~DO(.'SI84123119 JAMES McMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-1684 : CIVIL ACTION - EQUITY . DEFENDANT'S MOTION FOR I-IEARING REGARDING APPOINTMENT OF ACCOUNTANT On or about May 5, 2003 the Defendant Petitioner R. Lynn Magargle,~. fil~ an~ Answer with New Matter to Plaintiff Respondent James McMillen, M.D.' s action in equity. 2. Pursuant to Pennsylvania Rule of Civil Procedure 1530 that Answer with New Matter contained a Motion for Special Relief. 3. That Motion requested this Honorable Court appoint a neutral accountant to review the books and records of the former medical partnership beginning on January 1,2001 and up to the time of the dissolution of the partnership. 4. On May 8, 2003 this Honorable Court issued a Rule to Show Cause upon the Plaintiff Respondent Dr. McMillen why the relief requested by Dr. Magargle should not be granted. 5. On May 28, 2003 Plaintiff Dr. McMillen filed an Answer to the New Matter and Motion for Special Relief. 6. Dr. McMillen objected to the appointment of an accountant by the Court, setting forth various reasons why the appointment should not occur. 7. Dr. Magargle disagrees with each of the reasons asserted by Dr. MeMillen, most importantly Dr. Magargle objects to the accounting firm who formerly represented the partnership (Hartman & Scheuchenzuber) from being appointed to conduct the instant accounting because that firm now is employed by Dr. McMillen to perform professional accounting services for his practice. 8. It is anticipated that an accounting of the former MeMillen Magargle medical partnership practice may reveal discrepancies in prior accounting procedures. Since Hartman & Scheuchenzuber were the accountants in place at that time it is inappropriate for them to review their own work. Therefore, for that reason alone, the former accounting firm of Hartman & Scheuchenzuber should not be permitted to perform the instant accounting. 9. Accordingly, Dr. Magargle requests a hearing before this Honorable Court to determine whether this Court should appoint a neutral accounting firm of the Court's own choosing to review the accounts ofMcMillen Magargle medical partnership and real estate partnership from January 1, 2001 to the dissolution of the partnership. CLARAVAL & CLARAVAL Date: ~//C./U )k ~1 ~J~) 2~ B ROBERT r P.O. Box 11965 Harrisburg, PA 17108-1965 (717) 233-4780 Supreme Court I.D. #19222 Attorneys for Defendant -2- JAMES McMILLEN, M.D., Plaimiff R. LYNN MAGARGLE, M.D., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 03-1684 : : CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the attached Defendant' s Motion for Hearing Regarding Appointment of Accountant by first class mail, postage prepaid, addressed to the following person: Thomas J. Weber, Esq. Ooldberg, Katzman & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 Date: 1 410- CLARAVAL & CLARAVAL DENISE [. WILLIAMS, Secretary t~/~'f 0 7 t003 ~ JAMES McMILLEN, M.D., Plaintiff R. LYNN MAGARGLE, M.D., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 03-1684 : : CIVIL ACTION - EQUITY RULE TO SHOW CAUSE day of ?~__~ . 2003, a Rule to Show Cause is AND NOW, this issued upon the Plaintiff James Mc ,Millen, M.D. to show cause why this Court should not appoint an accountant to ex ~amifie the books and records of the McMillen Magargle medical partnership and the HMS Enterprises partnership from January 1, 2001 to the: present date. EDWARD H. GUIDO, Judge TRUE COPY FROM RECORD Testimony whereof, jI here unt..o set my ha~. RECEIVED HAY 0 8 2003 JAMES MCMILLEN, M.D. V. R. LYNN MAGARGLE, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-1684 EQUITY TERM C1VIL ACTION - EQUITY ORDER OF COURT AND NOW, this 17TM day JUNE, 2003, after consultation with counsel the hearing on Defendant's Motion for Hearing Regarding Appointment of Accountant is continued in anticipation of receiving a stipulation resolving the matter. We will reschedule the hearing upon request of either party. Edward E. Guido, J. homas J. Weber, Esquire P.O. Box 1268 Harrisburg, Pa. 17108-1268 ~p.obert F. Claraval, Esquire O. Box 11965 Harrisburg, Pa. 17108-1965 :sld JAMES MCMILLEN, M.D., Plaintiff IN THE COURT OF COMMON PLEAS, CUMERLAND COUNTY, PENNSYLVANIA Docket No. 03-1684 R. LYNN MAGARGLE, M.D., · Defendant · CIVIL ACTION - EQUITY ORDER AND NOW this __ day of April 2003, based upon Plaintiff's Motion for Preliminary Injunction and the parties' agreement as conveyed to this Court, the following Order is entered: 1. No later than Monday, April 28, 2003, Defendant shall provide to Plaintiff a complete census of all partnership drug study records in Defendant's possession, custody or control. The census shall include the protocol number for the study. 2. The census shall identify all protocol numbers which Defendant asserts that he was principal/chief investigator, and shall provide evidence to support this assertion. ("Magargle studies")· 3. Defendant shall grant Plaintiff's designee access to all non-Magargle drug study records identified on the census. Access shall be for purpose of Plaintiff's designee taking possession of any and all records including the regulation binders; the Case Report Forms otherwise referred to as the Patient Drug Study Charts; and all source documents and transferring them to Plaintiff's business address. Access shall be granted during normal business hours no later than Wednesday, April 30, 2003. 4. Upon regaining possession of the records, Plaintiff shall, consistent with the drag study requirements and any applicable FDA regulations, notify the drug study sponsors of the make the same. provided. 5. change in location for the records. If any additional notice is required to the FDA, Plaintiff will Plaintiff shall provide Defendant with evidence that the applicable notice was By no later than April 30,2003, Plaintiff shall provide Defendant with a list, including study protocol number, of all drug studies conducted prior to January 18, 2002, in Plaintiff's possession, custody or control. 6. Plaintiffretains the right to challenge Defendant's assertion that he was the principal/chief investigator on any of the Magargle st 'U~~ensus. 320 MARKET STREET * STRAWBERRY SOUARE P.O. Box 1268 · HARRISBURG, PENNSYLVANIA 17108-1268 717.5'34.4161 · 717.234.6808 (FAx) GOLDBERG, KATZMAN ~ SHIPMAN, P.C. ATTORNEYS AT LAW April 23, 2003 OF COUNSEL F. LEE SHIPMAN COUNSEL JOSHUA D. LOCK ARNOLD B. KOGAN ARTHUR L. GOLDBERG (1951-2000) HARRY B. OOLDBERG (1961-1998) RONALD M. KATZMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CROCENZI THOMAS J. WEBER STEVEN E. GRUBB JOHN DELORENZO JOHN R. NINOSKY ROYCE L. MORRIS DAVID M. STECKEL HEATHER L. PATERNO Via Facsimile - 240-646~ And First Class Mail The Honorable Edward E. Guido Cumberland County Courthouse 4th Floor, One Courthouse Square Carlisle, PA 17013-3387 Re~ McMillen v. Magargle Docket No. 03-1684 Dear Judge Guido: As I have conveyed to your chambers, the parties in this matter were able to reach an agreement for the entry of an Order covering the issue raised in my client's Motion for Preliminary Injunction. Enclosed is a copy of a proposed Order in a format agreed to by both parties. By copy of this letter, I am requesting Mr. Butler to inform your chambers of his agreement. Based upon the agreement of the parties and assuming you will be willing to execute the proposed Order, I would respectfully request that the Injunction Hearing scheduled for today be cancelled. Should you have any questions or wish to discuss this matter in greater detail, please do not hesitate to contact me. Thomas J. Weber TJW/sam Enclosures cc: Ronald D. Butler, Esquire (w/eric.) (viafitcsimile - 236-7777) ::ODMA\PCDOCS\DOCS\90742\ 1 CARLISLE OFFICE: 717.245.0597 · YORK OFFICE: 717.843.7912 APr- RI]TI,ER I,AW PIRM 2,36 7777 Tl~..lfd~ Root Hat.lmm, PA 1710~.1IX)4 Tel.* 7~7 Fam 717.2~6.??T/ lawve~butlerlaw4irm.com April23,2003 VIA FAX AND FIRST CLASS MAIL The Honorable Edward E, Guido Cumberland county Courthouse 4a~ Floor. One Courthouse Square Carfisle, PA 17013-3387 Re: MeMillen v. Magargle Doaket No. 03-1684 Dear Judge Guido: My cli~.'nt, Dr. R. Lynn Magargle, baa inamact~d me to inform you that he i; in agremuent with thc terms o£thc propoaod Order aa aubrnJtted to you by Thomas J, Weber, attorney Jar Dr. James MeMillen. Let m= lu,uw it mzyrhing fuJ tl Jet is required. Very truly yours, Ronald ~, ~utter RDB/clf cc: Tl'mmas J. Weber, Esquire (xfia fax only) APR.-2S'03(WRD) 1S:50 I~II?I,RR I,AW FIRM TEl,:717 2Sfi 7777 P. ~, PA 17101 Hnms~, PA ZT1U&~ F,~ ~7.2,~ T/7'/ TO T0~tl number 0fpa~cs, including this page: MESSAGE: COi~Fr~A. L This communication is intended for thc solc uae of the individual to whom it is addressed and may coutah~ infonuation that is privflcgcd, confidcutial and ca~pt ~om disolosure under applicable law, ff thc rca. dcr of th~m nomznunic.~tion is not thc mtcndcd rcoJpicnt et- thc employee or agent t~r delivoring the 0oomltmicat~n ~o th~ intm~d~cl re.~ipi~nt, you ar~ him:by notified that ally dissemingt/on, dlstributioll or ~opyha§ of this oommuni~ation my be striotly prohibitad. Ii'you l~vo rooeived ibis oommunio~tion in re'rot, please noti~ th~ smadar immediately by tclcphonc ~all re, id fotura the oommuriioatiem m the address abuvc via Ltm Uulicd Sate,, Pust,~l. Service, Th;ml~ you. ~PR.E3.E003 8:4?DM GOLDBERG K~TZM~N ~0.9E6 P.E P.O. BOX 1268 · HA~alsnua~, PENNSYLVANIA 1710B-1268 ?17.Z3~.4161 - 7X7.~$4.6808 (FAx} Apr]J23, 2003 OP COUNSEL F. L~ JOSHUA D. L~cg. AR~JOLD B. ~OOAN AItTlirJR L. (~OLDBERO (!0gl.2000) HARRY B, OOLongnO (1061-1~t08) RONALD M. KATZMAN PAUL J. ESPO$1TO L J~v Coov~ Jotl~ A. STATLER ~RIL L. GUY H. BROOK5 J~;~SRSON I, MICHAEL J, ~RO~ENgl THO~ J, JoHN DELOREN~ JOHN R, Ro~c~ L, Monms DAVID M. 5'F~CKEL Vi_a Facal.m__i!e - 240-6462 AndFirst Class The Honor-able ~dward kL ~ido C~b~l~ Co~ Courthouse 4~ Floor, One Co~ouse 5qum C~H~e, PA 17013-3387 McMiliea v. Magatgle Docket No_ 03-1684 Dear J'udge Guido: As I have conveyed to your chambers, the parties in this matt= were ~le m reach sn a~reement for the entry o£an Order coverin_a the issue raised in my cli~t's Motion for Preliminary Injunction. Enclosed is a copy of' s proposed Order in a format agreed to by both parties. By copy of this l~er, I am requesting Mr. Buffer to inform your chambers of his agreement. B~sed upon thc a~eement of the parties m~d assuming you will be willing to execute the proposed Order, I would respectfully request that the Injunction He--in8 8ohedulod for today bo cancelled. Should you have any questions or wi~h to discuss thi~ m~,tr~' in great~l- detail, please do not hesitate to contact me. Thomas J. Weber TJ'W/sam Enclosures cc: Ronald D. Butler, Esquire (w/eric.) (v/afacximile - 236-7777) ::ODMA~PCDOC$'OOC$~90742~ 1 CAll[ISLe OPI*XC~: 717.Z45.0597 · YoRx OI~I~ICE; 717.843,791Z ~PR.83.8003 8:48AM GOLDBERG KATZMAN M0.986 JAMES MCMIr,LEN, lVI. D., Plaintiff LYNN MAGARGLE, M.D., Dcfc~xlau, IN THE-COURT OF COMMONPL~S, CUMERLAND COUNTY, PENNSYLVANI~ Docket No. 03-1684 crV~L ACTION - F. QU1TY ORDER AND NOW mia. day of April 2003, based upon Plaintiff's Motion for Preliminary Injunction and the parties' asreement as conveyed to this Court, the following Order is ell~ed: 1. no later than Monday, April 2tl, 2003, Defendant shall provide to Plaintiffa complete 6~nsus of ~11 partizcrship chul~ ~tudy records in D~xmlant,~ possession, custody or control, The census shall include the protocol number for the study. 2. The census shall identify all protocol numbers which Defendant asserts that he was Principal/ohiefinvestigator, and shall provide evidence to support this a,sscriion. ("Magargle 3. Defendant shall grant Plaintiff's desi~ve~ ~css ~ all aoa-Magarglc dru~ study records identified on the cmsus. Access shall be for purpose of Plaintiff's designee taking possession of any and all records h~cluding the regulation binders; the Case Report Forms otherwise referred to as the Patient Drug Study Charts; and all source documents and tmusf'erring them to Plainti/Fs business address. Access sh.,,ll be ffranted duri~ ~-,! business hours no later than Wedllesday~ April 30, 2003. 4. Upon regaining possession of the records. Plaiatiff shall, consistent with the dru~ study requirements and any applicable FDA regulations, notify the drug study sponsors of the APR.~B.~003 8:48AM ~OLDBER~ KATZMAM M0.9~6 P.4 change in location for the records. malce the same. provided. 5. It' any additional notice is required to the lZDA, Plaintiff-will Plaintiff shall provide Defendant with evidence that the applicable notice wa~ By no later flum April 30,2003, Plain'fiffshall provide Dffeadant with a list, ine. hsding ~mdy protoe, o! m~mber, of. all dru~ studie..s e. ondu~ext prior to ]'anuary 18, 2002, in Pl~ti~ltil2Ps pu.~s~iun, cu~tudy ur cuntrul. 6, Plaintiff retains the right to challenge Defendant's assertion that he was the principal/chief investigator on any of the M~g~gle studies identified in the census. 2 RPR.£3.~00~ ~:4?RM ~OLDBER~ KRTZMRM NO.~6 p.~ EAC$1MILE TRAN$/~I$$ION The Law Offices of Golclberg Katz~an 3:~0 Market P.O. Box 1268 Harr~b~g, PA 1'/108-1268 Telephone: (717) 23~4161 F~: ~17) 234-6808 Sehder: Thomas J, Weber, Esquire E-mail: ~_ _JWCc'~ _cd~s Iow.~ _on'l ~'O 'lhe Honorable Edward E. Guido FAX ~ 240-6462 DATE April 23, 2005 RD. McMillen v. Magargle Docket Ho. 03~ 1684 This facsimile message consists of 4 page(s) (including this sheet). A copy of this fax will NOT follow by regular mail. MESSACE: