HomeMy WebLinkAbout99-01899
517B.I.2JRoplyIllEMM/crs 9/219910:19 AM
LOIS G. SHEAR,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 99-1899 CIVIL
JOSEPH HUNTER and
TAMDOTHOMECAREOF
HARRISBURG, INC.,
Defendants
CIVIL ACTION - LAW
Plcwd"i.ff(~ REPLYTONEWMATTERJ;, '6~cltl,d-,
AND NOW, comes the Plaintiff, Lois G. Shear, by and through her attomeys, Smigel,
Anderson & Sacks, and replies to the allegations ofDefendants New Matters as follows:
35. Admitted.
36. Admitted that Plaintiff has never participated in the day-to-day running of
Tamdot's business. By way of further reply, Plainliffhas never been presented with the
opportunity to participate in the day-to-day running ofTamdot Homecare of Harrisburg Inc. 's
(''Tamdot'') business because Joe Hunter has operated Tamdot as a sole proprietorship and has
never consulted with Plaintiff on the day-to-day running ofTamdot's business,
37. Denied. The allegations of paragraph 37 are speculative allegations of Plaintiffs
state of mind. By way offurther reply, Joe Hunter has no way of knowing whether Plaintiff is
interested in participating in the day-to-day running ofTamdot's business because he never
contacted or consulted Plaintifffor any corporate malter, Plaintiff never expressed to Joe Hunter
that she was not interested in the corporation.
38. Admitted. By way of further reply, Plaintiff, as a shareholder ofTamdot, has no
obligation to work for or be employed by Tamdol. Additionally, Plaintiff has never been
presented with the opportunity to work for or be employed by Tamdol.
39. Admitted as staled in Plaintiffs Amended Complaint.
40. Admitted that Plaintiff has no knowlcdgc of or cxpcricncc in thc "rctail business
of selling and renting homc mcdical cquipmcnt." By way of furthcr reply, as a sharcholder of
the corporation, Plaintiff does not nced knowlcdgc or cxpcricnce in thc busincss of the
corporation.
41. Admitted that Plaintiff has ncvcr called a corporatc mceting. By way of further
reply, Joe Hunter, as President of the corporation and thc only shareholdcr involved in the
operation of the corporation, has the rcsponsibility of complying with Pennsylvania Business
Corporation Law and calling corporate meetings.
42. Denied as stated, Plaintiff, through her husband, Norman Shcar, and son, Todd
Shear, has contacted or consulted Joe Hunter, or othcr officers of Tam dot, about the affairs of
Tamdot. By way of further reply, Joe Hunter has never personally contactcd or consulted with
the Plaintiff, a major shareholder ofthc corporation, about thc affairs ofTamdot, financial or
otherwise, and has not provided annual financial statcment as required by law.
43. Dcnied as stated. Plaintiff has receivcd no bcnefits from being a shareholder of
Tamdot.
44. After reasonable invcstigation, Plaintiff is without knowledge or information
sufficient to form a belief as to thc truth of the allegation contained in paragraph 44. Therefore,
said allegation is denied. By way of furthcr reply, Joe Hunter, as President of the corporation, is
responsible to ensure that corporate mectings are held and that the corporate minute book is
properly maintained.
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45. Dcnicd. Plaintiff initiated this action aflcr inheriting hcr intcrest in Tamdol and
rccciving no benefitthercof, whcthcr financial, infomlational or dircctorial.
46. Dcnicd. Joe Hunter, among other things, has failed to effectively markClthe
busincss of Tam dot, maintain corporatc records, or include thc other shareholders in thc
"significant" decisions affecting Tamdol. Additionally, since the deaths of Norman Shear and
Todd Shear, and under Joe Hunter's sole management, the corporation has become unprofilablc.
The financial records ofthc corporation are and have been in complete disarray.
47. Denied.
48. Denied.
49. Denied.
50. Denicd.
51. Denied.
SMIGEL, ANDERSON & SACKS
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By: -...
LeRo 8mi el, Esquire
Attorney ID #096 I 7
Eric M. Morrisoll, Esquire
Attorney ID #80235
2917 North Front Street
Harrisburg, P A 171 10-1223
(717) 234-240 I
Attomeys for Plaintiff
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SI7S-P.!ftofoticclEMMicnt"10I99 10,01 AM
-
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LOIS G. SHEAR,
PlainlilT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
v.
No. 99-1899
JOSEPH HUNTER and T AMDOT HOMECARE
OF HARRISBURG, INC.,
Defendant
CIVIL ACTION - LAW
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twcnty (20) days aftcr this Complaint and Notice arc
served, by entering a written appcarance pcrsonally or by attomey and filing in writing with the Court your
defenses or objections to thc claims set forth against you. You arc warned that if you fail to do so the case
may procccd without you and a judgment may be entered against you by thc Court without further notice
for any money claimed in the Complaint or for any other claim or relief requested by thc Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
NOTICIA
Le !tan demandado a listed en /a corte. Si usted quierc defenderse de estas demandas
expucstas en las paginas siguientcs, usted tiene vicntc (20) dias de plazo al partir dc la facha de la demanda
y la notificacion. Usted dcbc prescntar una aparicncia escrita 0 cn Pcrsona 0 por abogado y archivar en la
corte cn fonna escrita sus defensas 0 sus objectiones a las demandas encontra de su pcrsona. Sea avisado
que si usted no se dcfiendc, la cortc tomara medidas y puede entrar una orden contra usted sin prcvio aviso
o notificacion y por cualquier queja 0 alivio que es pedido cn la peticion de demanda. Usted puede perder
dinero 0 sus propiedades 0 otros dcrechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN
PERSONA 0 LLA".1E POR TELEFONO A LA OFICINA CUY A DIRECCION
SE ENCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEGUJR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlislc, P A 17013
(717) 249-3166 or 1-800-990-9108
Plaintiff. A true and correct copy of the letter is attached hereto as Exhibit "I" and incorporated by
reference.
6. Because Norman Shear predeceased Todd Shear and Plainliff, upon Todd Shear's demise,
all ofTodd Shear's stoek reverted to the Plaintiff.
7. Plaintiff currently is the legal owner of more than five (5%) percent of the outstanding
common stock oflhe Corporation.
8. Since inheriting her interest in the Corporation, Plainliffhas been deprived her rights as a
shareholder and has received no benefit thereof as more fully ane! specifically set forth below.
9. Additionally, on March 7,1991, Plaintiff and her son, Todd Shear, were assigned a note
receivable in the amount of $40,892.00 from Lois Cristinziani (hereinafter" Assignment"). A true and
correct copy of the Assignment is attached hereto as Exhibit "2" and incorporated by reference.
10. The Assignment references a Stock Redemption and Purchase Agreement dated March 7,
1991, which supposedly defines the terms of the note receivable.
11. On April 26, 1991 a note receivable (hereinafter "Note") was drafted and mailed to
Hunter for his signature. A true and correct copy of the Note and enclosure letter are attached hereto as
Exhibit "3" and incorporated by reference.
12. Hunter made payments, to Plaintiff, on the Note up and until April of 1997 but, according
to the amortization schedule, owes Plaintiff$2l,550.53 plus interest.
13. Since Hunter defaulted under the Note and because Plaintiff has received no benefit from
being a shareholder of the Corporation, Plaintiff, pursuant to 15 Pa.C,S.A, Section 1508, requested
access to corporate records and/or documents by a letter dated June 29, 1998. A true and correct copy of
the letter is attached hereto as Exhibit "4" and incorporated by reference.
2
14. Hunler violated 15 Pa. C.S,A. Section 1508 by failing to produce, within spccified timc
limits, for Plaintiff's examination and inspection, the following unexhaustivc list of documents:
A. The share cenificates issued to the sharcholders;
B. Thc Corporation's Income Tax Retums from 1997 to thc prcsent;
C. The Corporation's share register showing who the sharcholders of the Corporation
are and their respective interests in the Corporation;
D. The Corporation's records showing maller, activities and decisions of the
Corporation from 1993 to the date of review;
E. The Corporation's records showing dividends declared or paid from 1993 to the
present;
F. The Corporation's records showing loans or advances by the Corporation to any
shareholder, officer, director or any affiliated company and any repayment schedules;
G. The Corporation's records showing remuneration, of any kind, paid to officers,
directors, employees and/or consultants;
H. The Corporation's financial statements, in final form, from 1996 to the present;
I. A detailed current aged accounts receivable report oflhe Corporation showing the
names of each account and the amount that remains uncollected;
J. The Corporation's invoices and/or purchase orders relating to the sale and
purchase of corporate assets from 1993 to the present; and
K. The Corporation's books and records generally.
L. The March 7, 1991 Stock Redemption and Purchase Agreement.
M. The fully executed Note for $40,892.00.
3
IS. Plaintiff filed a Petition to Compel Inspection of Corporate Records and/or Documents on
November S, 1998. A true and correct copy of the Petition to Compel Inspection ofCorporBte Records
and/or Documents is attached hcreto as'Exhibit "S" and incorporatcd by reference.
16. An Order to Compel Inspection of Corporate Records and/or Documents was issued on or
about January 26, 1999, yet Hunter has failed and/or refused to permit access thereto. A true and correct
copy of the Order to Compel Inspection of Corporate Records and/or Documents is attached hereto as
Exhibit "6," and incorporated by reference.
COUNT I
Request for Relief Under Pennsylvania Business Corporation Law
15 Pa.C.S.A. ~1767
17. Paragraphs 1 through 16 of this Complaint are incorporated herein by reference as if fully
set forth.
18. Hunter has failed and/or refused to convene meetings of the shareholders and directors of
the Corporation and has operated the business as if it were a sole proprietorship by, among other things,
withdrawing substantial sums from the Corporation's assets, incurring corporate obligations and failing
to inform or consult Plaintiff on the financial condition of the Corporation, all without Plaintiff's consent
or knowledge,
19. Hunter has failed and/or neglected to abide by the requirements of the Pennsylvania
Business Corporation Law as follows:
A. 15 Pa.C.S.A. Section 1554 by failing to fumish annual financial statements of the
Corporation to the Shareholders;
4
B. IS Pa.C.S,A. Section 1702 to 1708 by failing to provide Plaintiffwilh notice of
meetings or to secure a waiver for said noticc;
C, IS Pa,C.S.A. Section l7SS by failing to hold mcctings of shareholders;
D. IS Pa.C.S,A Section 1758 by conducting corporate business and taking action on
behalf of the Corporation. as more fully described below, without minimum voles required.
20. Hunter has breached his fiduciary duties to the shareholders and the Corporation by
taking money from the Corporation for his own benefit before paying shareholder obligations.
21. Hunter has mismanaged the Corporation by operating it for his own personal interests
without taking into consideration the other shareholders' rights.
22. If a custodian is not appointed to takc charge of the assets and the business of the
Corporation, such assets will be wasted and dissipated, the interests ofthe Plaintiff will be sacrificed and
Plaintiff will suffer the following irreparable harm:
A. Hunter will continue to shift corporate cash assets into fixed assets thereby
devaluing the corporation;
B. Hunter will continue to transfer corporate cash assets into fixed assets or to
his own accounts jeopardizing the potential for acquisition of the Corporation by third
parties;
C. Hunter will continue to avoid his responsibility to comply with the
requirements ofthe Pennsylvania Business Corporation Act thereby jeopardizing the
company's corporate existence and exposing the Officers, Directors, and Shareholders,
including the Plaintiff, to personal liability;
D, Hunter's failure to act responsibly as more specifically set forth above with
respect to the transfer of corporate assets and the disregard for the requirements of the
5
Pennsylvania Business Corpordtion Act has and will jeopardize the Corporation's legal
status, loss of which would expose the shareholders oflhe Corporation to unlimited
liability.
23. Plaintiff does not bclieve it is beneficial to the interesls of the shareholders that
the Corporation be wound up and dissolved at this point in time.
THEREFORE, Plaintiff prays and respectfully requests a decree:
A. That Plaintiff be adjudged a shareholder in Tamdot Homecare of Harrisburg, Inc.,
and the Corporation be directed to reimburse her in accordance with her ownership interest in the
Corporation and conlractual rights under the Note;
B. That a Custodian be appointed pendente lite and permanently after final
hearing to administer the books, property and assets, including good will of the
Corporation, with power under the direction of this Court to continue the business oflhe
Corporation;
C. That a Custodian be directed to make an accounting of Hunter's
management of the Corporation's affairs, and that Hunter, individually, be required to
render an accounting and repay all amounts inappropriately taken from the Corporation
with interest and costs of collection;
D. That the Corporation's assets, utilized and employed by Joseph Hunter for his
personal use, be declared a constructive trust for the benefit of the Corporation, and that Joseph
Hunter be required 10 account therefor;
E. That the profits of the Corporation be divided and that Plaintiff recover an amount
oflhe profits, retroaelively, of the Corporation as she is entitled and be paid for the cost of this
action; and
6
F. That Plainliffhave such other and furthcr reliefas is just and proper.
WHEREFORE, Plaintiff requests lhatthe Court enter its Order selling a date, time and place
for hearing, and that Hunter be eitcd to appear and show cause why a Custodian should not be appointed.
Count II
Request for Special Relief Pursuant to Pa.R.C.P. 1530, 1533 or 1534
24. Paragraphs I through 23 ofthis Amended Complaint are incorporated by reference as if
fully set forth.
25. This action is brought in aid ofa recognized and presently existing substantial interest
which the Plaintiff holds in the aforedescribed Corporation known as Tamdot Homecare of Harrisburg,
Inc. and in which officers, shareholders and directors of the Corporation remain unknown due to
Hunter's failure and/or refusal to produce such documentation.
26. The Plaintiff, as a substantial owner of this business, has a legal and equitable right to be
consulted before commitments are made for further expansion of the business, before additional debts
both long and short term are incurred, and before significant expenditures are made.
27. This action is necessary and expedient to prevent the irreparable h3m1 more fully
described in paragraph 18 above and for which there cannot be adequate monetary compensation in that:
A. Hunter in the past has made substantial expenditures from corporate assets
for his own benefit unrelated to company business;
B. Hunter has withdrawn significant sums from business accounts without
Plaintiff's authorization or approval;
7
C. If Hunter should clectto withdraw substantial cash amounts from the
business, same would inurc to the detrimcnt of Plaint ill's intcrcst in thc busincss and said
sums could nol be subsequently rccovc:red.
28. As previously sct forth in paragraph 14, Huntcr has unilatcrally and illegally failed to
perfonn under the Order to Compel Inspection of Corporate Records and/or Documents for the
following particulars:
A. Hunter has not provided the financial statements as required. Inadequate,
incomplete statements have been supplied in a dilatory fashion, the latest statement
having come in May 10, 1999;
B. Despite an Order of Court to Compel Inspection of the Corporation's
Records and/or Documents Hunter has not made available all the books and rccords
requested by the Plaintiff;
C. Hunter has unilaterally made corporate expenditures other than ordinary
and necessary business expenses without Plaintill's consent;
D. Hunter has incurred corporate obligations not in the ordinary and
necessary course of business without Plaintill's consent;
29. This action is necessary to prevent irreparable harm for which there cannot be adequate
monetary compensation in that:
A. Hunter has in the past and may in the future make substantial expenditures
from corporate assets for his own benefit irrecoverable by the Plaintiff;
B. Hunter's actions in the past and in the future may contribute to a lessening
in the value ofthe corporate asset to the Plaintiffs irreparable harm.
8
THEREFORE, PlaintifTrequests that:
A. A current accounting be made showing the present financial status of
Tamdot Homecare of Harrisburg, Inc., its assets and liabilities with monthly in-house
generated financial statements required thereaner;
B. A Custodian be appointed to take charge of the assets and business of the
Corporation and collect all monies due it;
C. A Custodian be authorized to carry on the business of the Tarndot
Homecare of Harrisburg, Inc. with power to employ labor and management in preserving
and collecting the property and assets of the Corporation and to make such contracts as
may be necessary to continue the business of the Corporation;
D. Such other relief as the Court may deem appropriate under the
circumstances.
WHEREFORE, Plaintiff requests that the Court enter its Order setting a date, time and place
for hearing on this Complaint, and that the individual Hunter be cited to appear and show cause why a
Custodian should not be appointed.
Count III
Request for an Accounting at Law
30. Paragraphs I through 29 of this Amended Complaint are incorporated herein by reference
as if fully set forth.
31. Hunter, as President of the Corporation, has a Fiduciary Relationship with the
Corporation and the Plaintiff whereby he controls monies received, or property owned, by the
Corporation for the Plaintiff's benefit ("Fiduciary Relationship").
9
32. The Fiduciary Relationship creatcs a Icgal duty on Hunter 10 account for money or
property received for, or otherwise duc to, the Corporation and the Plainliff, including profits of the
Corporation.
33. Since all ofthc books, papers and accounts of the Corporation are, and have been, in the
sole custody of Hunter, Plaintiff has had no way of ascertaining the amount of monies due and owing
her as a shareholder of the Corporation.
34. Hunter has breached the Fiduciary Relationship as set forth in this Amended Complaint.
WHEREFORE, Plaintiff requests that Hunter be directed to account for monies he received,
and expenditures he made, on behalf of the Corporation that otherwise arc due and owing Plaintiff.
SMIGEL, ANDERSON & SACKS
By, J.Q~
LeR~ iSqUire .
Attorney ID #09617
Eric M. Morrison, Esquire
Attorney ID #80235
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Plaintiff
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.320 PENN AVE" WEST READING 215-374-2226
105 "VEST MARKET ST., 'POtTSVILLE 717-622-4906
1114 HAMILTON ST., ALLENTOWN 215.820-8585
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January 17, 1984
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Mr, Joseph Hunter
225 S. 15th Street
Camp Hill, Pa 17011
Re. Agreement
Dear Joe:
Regarding Tamdot's investment of $40,000, '~s agreed.on January 11, 1984,
Todd Shear is purchasing 50% of 'X am dot/Home care of Harrisburg. He is
do~ng this by paying $27,500. in cash and making a note for the balance,
which is $12,500 at 8,50% interest paid yearly. At that time, he will
:', issue Jean Wojszwillo 2% and Dayid Kendall 5% of his stock. ",
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It is. also. agreed that'Dave Kendall a~~ Jean Wojszwillo have given up
their right to .vo!:e the stock fo'r a period of not less than 5 yesrs,'
and will do nothing' to prevent the sale of said company, All their
votes will be assigned to Norman P. Shear, and in his absence, to
Todd Shear. Todd will vote his'owo shares, and in his absence, Norman
P. Shear will vote for him. Dave Kendall' & Jean WOjszwillo'will.always
vote their shares with either Todd Shear or Norman P. Shear.
Jean Wojszwillo and Dave Kendall agree in that 'they will not compete with
Tamdot, its branches or its subsidiaries,' or survivors for two years following'
separation from the parent c?mpany, Tamdot, for any reason.
The te s of the original agreement still stand-.' ~ ~. $, 4i~ '.,.,::;i',j..
All of' e, ore ng is accepted by all t~e. ,mdeI:Signed. .. ~ ..f.:i.~;:~''l'::;''';':';f(;.
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On .tidll 7th day of
Illlsigns 'to l,oh' O. Shelll'
Amount of $40,892.00, a~ said Note Reoeivable
Stoolc Redemption and Purchase Agreement dated
tlaroh I 1991.
and Todd Shell.r
Louis (;'dst:lnzianl
a Note Reoeivll.hle
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$40,892
April 26, 1991
FOR VALUE RECEIVED, the undersigned, promises to par to the
'order ot Lois G. Shear, the sum of Forty Thousand E ght
Hundred Ninety-Two ($40,892) dollars together with interest
thereon at the rate of ten and one-halt (10 1/2t) percent per
annum on the unpaid principal balance, in accordance with the
following schedule:
Payments of principal and interest in the amount of $551.78
shall be due monthly beginning on May 1, 1991 and ending on
April 1, 2001.
If any payment due is not pqid ,within' fifteen (15) days of
the due date, there shall become due at the option of the
holder a late charge of five percent (5t) per month, or any
part thereof, on each dollar of interest and'principal so
overdue.
This note may be prepaid in whole or'in part at any time
without prem1um or penalty. All prepayments shall be applied
first to interest, then to principal payments ,in the orde~ of
their maturity. "
The undersigned agrees to pay all costs and expenses,' ,"
including all attorney fees, for the collection of this note
Upon default, All payments shall'be made with current ,rate
of exchange at the office of the holder at 1800 Oak Lane,
,Reading" Pennsylvania, 19604 or at such other place as the
holder hereof'may from time to time designate in writing.
,
At the option of the holder, this note shall become
immediately due and payable without notice or demand upon the
occurrence at any time of any of the following events: (1)
Default in any payment of pr1ncipal or interest due hereunder
not made within thirty (30) days after the due date, ,
(2) The service upon the holder hereof of a writ in which the
holder is named as trustee of the undersigned; (3) If the
undersigned or any endorser or guarantor hereof is a
corporation, trust or partnership, the liquidation,
termination or dissolution of any such organization; (4) If
any party liable hereon, whether as maker, endorser,
guarantor, surety or otherwise shall die, make an assignment
for benefit of creditors, or if a receiver of any such
party's property shall be appointed, or if a petltion in
bankruptcy or other similar ~roceeding under any law for
relief of debtors shall be f1led by or against any such
party; (5) Death business termination or failure! '
inSOlvency, appointment of a receiver, or the fil nq of any
proceedings under any bankruptcy or other law relating to the
relief of debtors, of, by, or against the maker.
I
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LclllOY ."'IOCl.
C. LtC ANDCIIIION
ITUAIII' .. aACKI
JOHN W. '''OMMe"
",OICPH .. O'AMICO
ANN Y LitVIN
HltATHCIII O. ROYC"
CAlC M. MORRISON
(
SUIOEL, ANDERSON & SACles
ATTORNEYB AT LAW
2017 NOIII'H r"ONT St-"CCT
HARRISBURCl, PENNSYLVANIA 17110.1223
17171 U4.Z401
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I'U NO,
5178-1-2
June 29, 1998
Tarndot Homecare of Harrisburg, Inc.
Attn: Joseph Hunter
1011 Market Street
Lemoyne,'PA 17043
Re: Demand for Inspection
Dear Mr. Hunter:
On behalf of Lois Shear, a shareholder in Tamdot Homecare of Harrisburg, Inc. (the
"Corporation") the undersigned, pursuant to Section 1 508(b) of the Business Corporation Law
of 1988, as amended, (the "Business Corporation Law") hereby makes demand upon the
Corporation to produce for examination and inspection the share register, books and records
of account, and records of the proceedings of the incorporators, shareholders and directors in
order that they may be copied or extracts taken therefrom. Enclosed with this demand is a
power of attorney verified by the shareholder authorizing both the undersigned counsel to act
on the shareholder's behalf in this matter.
Specifically, the shareholder demands that the Corporation immediately allow her or
her designees full access to the following documents in the possession or under control of the
Corporation, its directors, officers, employees and professional advisors, including its
attorney(s) and accountant(s):
1. Records of any kind including contracts, bills of sale, receipts, accounts
receivable or payable, invoices or purchase orders relating to the sale or
purchase of corporate assets in any form, and occurring at any time from 1993
to the present;
2. Records of any kind evidencing corporate ownership in any real estate from
1993 to the present; ,
3, Records of real estate appraisals on corporate land, buildings and plant facilities
from 1993 to the present;
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June 29, 1998
4. Records showing dividends declared or paid from 1993 to the present;
5, Records showing loans, or advances by ,the Corporation to any shareholder,
officer, director or affiliated company ani:l any repayment schedules:
6. Records showing salaries of all officers, directors, employees and consultants
frorn 1993 to the present:
7. Records showing bonuses paid to all officers, directors, employees and
consultants from 1993 to the present:
8. Records showing pension contributions made by or on behalf of all officers,
directors, employees and consultants from 1993 to the present:
9, Records showing any other remuneration paid'to all officers, directors,
employees and consultants, from 1993 to the present: including reimbursement
for expenses of any kind;
10, Records showing malter, activities and decisions of the Corporation from 1993
to the date of review:
1 I. Corporate incorne tax returns for tax years 1993 to the present.
The shareholder's requests are proper within the meaning of the Business Corporation
Law where she requires such records for the following purposes, all of which are reasonably
related to her interests as a shareholder in the Corporation:
a. . To determine the value of her shares in the Corporation;
b. To ascertain whether the business of the Corporation has and is being properly
managed;
c, To determine whether the expenditures of the Corporation since 1993 have
been in the best interests of the Corporation; and
d, To determine the propriety of instituting a lawsuit on behalf of the Corporation
or the shareholder against Joseph Hunter in his capacity as President of the
Corporation,
LIMITED POWER OF ATTORNEY FOR INSPECTION
I, Lois Shear, of~ If.../. County, Florida; a shareholder owning fifty percent (50%) of
the stock in Tamdot Homecare of Hanisburg, Inc, (the "Corporation"), appoint LeRoy Smigel,
Esquire, Harrisburg, Pennsylvania, with full power to act individually and separately as my agent
(Umy agent"), each with full power of substitution, for me and in my name, to examine the books and
rccords of the Corporation as more fully described in a demand letter addressed to the Corporation
dated Ju.r;c.2i., 1998 and sig;;cd by LcRe':i Srnig~l, Esqu1.e, G COpj' of which is attached here:o and
incorporated herein by reference, as I might do if personally present.
This Power of Attorncy shall becorne effective immediately and shall not be affected by my
subsequent disability or incapacity, All acts done by my agent pursuant to this power during any
period of my disability or incapacity shall have the same effect and inure to my benefit and bind me
and my SUccessors in interest as if I were competent and no disabled,
Questions pertaining to the validity, construction and powers created under this inStrument
shall be determined in accordance with the laws of the Commonwealth of Pennsylvania.
I have signed this Lirnited Power of Attorney this I day of ~,
1998, ~
or~ x:i&~.)
Lois Shear
VERIFICATION
I, d.........:. ~./ , aver that the allegations contained in the foregoing Limited
Power of Attorney are true and correct to the best of rny knowledge, information and belief; and that
the staternents in said Limited Power of Attorney are subject to the penalties of 18 Pa. Cons, Stat.
Ann, 94904 relating to unswom falsification to authorities,
Verified this
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day of CL .P./,_ ,1998,
(/ ,
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c<~ _ A 1..--'
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Lois Shear
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Sl'~.l.JiprTJTJON 10 COMPEL JNIPECTICN/~/tke 10'26'" 1110'..
LOIS SHEAR,
PETITIONER
v.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
NO.
TAMeOT HOMECARE OF
HARRISBURG, INC.,
RESPONDENT
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CIVIL ACTION - LAW
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PETITION TO COMPEL INSPECTION OF CORPORATE_
RECORDS AND/OR DOCUMENTS :.,' :
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1.
Petitioner, Lois G. Shear, is a citizen of
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the State -Of
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Florida, residing at One North Breakers Row, Palm Beach, Florida,
33480.
2. Respondent, Tamdot Homecare of Harrisburg, Inc., is a
corporation organized and existing under the laws of the Commonwealth
of Pennsylvania, with its principal place of business at 1011 Market
Street, Lemoyne, Pennsylvania, 17043.
: :1
3.
Petitioner believes she is the owner of fifty percent (50%)
I,
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of the common stock of Respondent, Tamdot Homecare of Harrisburg,
Inc., but Respondent, by and through its President, Joseph Hunter,
claims that Petitioner owns less than fifty percent (50%) of
Respondent.
4. Petitioner, by and through Petitioner's attorneys, Smigel,
Anderson & Sacks, in accordance with and pursuant to ~1508 of the
Business Corporation Law of 1988, made a written request upon
Respondent to produce for inspection and examination its corporate
books and records, as more specifically set out in a letter dated
"(
,
,I
,
June 29, 1998, a true and correct copy of which (together with the
verified Power of Attorney signed by Petitioner required by ~1508), is
attached hereto as Exhibit "A" and incorporated by reference.
5. By letter dated July 20, 1998, a copy of which is attached
hereto as Exhibit "B" and incorporated by reference, Respondent, by
and through its President, Joseph Hunter, failed to assimilate and/or
produce for inspection and examination all of the requested corporate
books and records specifically set out in the June 29, 1998 letter
from petitioner to Respondent.
6. On or about August 5, 1998, Petitioner, by and through
Petitioner's attorneys had access to, and inspected, only a portion of
the requested records, as more specifically set out in a letter dated
August 6, 1998, a true and correct copy of which is attached hereto as
Exhibit "C" and incorporated by reference.
7. By letter dated August 11, 1998, a copy of which is attached
hereto as Exhibit "D" and incorporated by reference, Petitioner; by
and through Petitioner's attorneys, again requested access to
Respondent's corporate books, corporate records, share register and/or
share certificates.
8. Respondent, by letter dated August 24, 1998, a copy of which
is attached hereto as Exhibit "E" and incorporated by reference,
failed to assimilate and/or provide access to the requested corporate
books, corporate records, share register and/or share certificates.
9. Petitioner's request to inspect and examine the corporate
books, records, and/or documents of Respondent is proper within the
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meaning of the Business Corporation Law as such request is reasonably
related to Petitioner's interest as a shareholder.
10, The purposes of Petitioner's request to inspect and examine
the corporate records of Respondent include, but are not limited to,
the following:
A. Determining the number and value of Petitioner's
shares;
B. Ascertaining whether the business of the
corporation has been and is being properly managed since the
death of Todd Shear, a former shareholder.
c. Determining whether the expenditures of the
Respondent since 1993 have been authorized, appropriate and
in the best interest of the corporation; and
D. Determining the propriety of instituting a lawsuit
on behalf of the Respondent against Joseph Hunter in his
capacity as President of the corporation.
11. When a shareholder seeking inspection of the share register
or list of shareholders of the corporation has complied with the
provisions of ~1508 of the Business corporation Law of 1988 regarding
the form and manner of making demand for inspection, that section
provides that it is the burden of the corporation to show that the
inspection is sought for an improper purpose.
12. petitioner has complied with all requirements of ~1508 of
the Business Corporation Law of 1988 respecting the form and manner of
making demand for inspection and examination of not only the share
register, but any and all books, corporate records and documents of
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Respondent, and the inspection sought by Petitioner is for a proper
purpose.
13. Respondent has failed to show and is unable to show that
Petitioner's request for inspection and examination of the share
register or list of shareholders, as well as all books, corporate
records and documents is for an improper purpose.
14. Petitioner has incurred the sum of Five Thousand Dollars
($5,000.00) as counsel fees, costs and expenses in connection with her
efforts to obtain the requested information to which she is legally
entitled,
WHEREFORE, Petitioner, Lois G, Shear, respectfully requests that
the Court enter an Order permitting her to inspect, examine, and copy,
if necessary, the books, corporate records and documents of
Respondent, Tamdot Homecare of Harrisburg, Inc., within ten (10) days
of the date or the Order. And further, that Respondent pay the sum of
Two Thousand Five Hundred Dollars ($2,500.00) for counsel fees,' costs
and expenses.
SMIGEL, ANDERSON & S
Date: October~, 1998,
By:
LeRoy Sm el, Esquire ID #09617
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Petitioner
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VERIFICATION
!
I, Lois G. Shear, verify that the statements contained in
the foregoing Petition to Compel Inspection of Corporate Records
and/or Documents are true and correct to the best of my knowledge,
information and belief. I understand that false statements therein ;,
are made s\Lbjpct to the penaltieR of 18 P~.C.~. ~~9C4t Lela~ing to
unsworn falsification to authorities.
Date: /O/I'l/fi
I I
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LOIS ~SHEAR, Petitioner
, -..,
.....,
,
Lc"OY ....101:1.
C. Lce ANOCRION
.TUART .. SACK'
JOHN W. '''OMMC''
JOICP'H ., D'AMICO
ANN V LeVIN
HCA THC" D. ROYC"
CftlC M. MO....I.ON
SMIGEL. ANDERSON & SACKS
ATTORNEYS AT LAW
2017 NO"'H "RONT aUICCT
HARRISBURO, PENNsnVANIA 17110.1223
1717' 234-2401
FILE COpy
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5178-1-2
June 29, 1998
Tamdot Homecare of Harrisburg, Inc.
Attn: Joseph Hunter
1011 Market Street
Lemoyne, P A 17043
" Re: Demand for Inspection
Dear Mr, Hunter:
On behalf of Lois Shear, a shareholder in Tamdot Homecare of Harrisburg, Inc. (the
"Corporation") the undersigned, pursuant to Section 1508(b) of the Business Corporation Law
of 1988, as amended, (the "Business Corporation Law") hereby makes demand upon the
Corporation to produce for examination and inspection the share register, books and records
of account, and records of the proceedings of the incorporators, shareholders and directors in
order that they may be copied or extracts taken therefrom. Enclosed with this demand is a
power of attorney verified by the shareholder authorizing both the undersigned counsel to act'
on the shareholder's behalf in this matter.
Specifically, the shareholder demands that the Corporation immediately allow her or
her designees full access to the following documents in the possession or under control of the
Corporation, its directors, officers, employees and professional advisors, including its
attorney(s) and accountant(s):
1, Records of any kind including contracts, bills of sale, receipts, accounts
receivable or payable, invoices or purchase orders relating to the sale or
purchase of corporate assets in any form, and occurring at any time from 1993
to the present;
2., Records of any kind evidencing corporate ownership in any real estate from
1993 to the present;
3, Records of real estate appraisals on corporate land, buildings and plant facilities
from 1993 to the present;
EXHIRIT
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June 29, 1998
Be advised that pursuant to Section 1508(c) of the Business Corporation Law, should
the Corporation refuse to pennit the inspection sought on behalf of the shareholder, or if the
Corporation fails to respond \0 this demand made on her behalf within five (5) business days
following receipt of this letter, the shareholder will have no recourse but to apply to the CoUrt
of Common Pleas of Cumberland County for an order compelling the requested examination
and inspection.
, '
v:r1a;Ja1
LeRoy Smigel
LRS:EMM:tkc
Enclosure
,
LIMITED POWER OF ATTORNEY FOR INSPECTION
I, Lois Shear, of ~ ~,,/; County, Florida; a shareholder owning fifty percent (50%) of
the stock in Tamdot Hornecare of Harrisburg, Inc, (the "Corporation"), appoint LeRoy Smigel,
Esquire, Harrisburg, Pennsylvania, with full power to act individually and separately as my agent
("my agent"), each with full power of substitution, for rne and in my name, to examine the books and
records of the Corporation as more fully described in a demand letter addressed to the Corporation
dated JU,iiC.2i.t 1998 arId SigaiCd by LcRc-.j" Smici~:, ESq:.al;C. Ii cop:; of ".vhich is attach~d h:i-::O aild
incorporated herein by reference, as I might do if personally present.
, This Power of Attorney shall become effective immediately and shall not be affected by my
subiequent disability or incapacity. All acts done by my agent pursuant to this power during any
period of my disability or incapacity shall have the same effect and inure to my benefit and bind me
and rny successors in interest as if I were competent and no disabled,
Questions pertaining to the validity, construction and powers created under this instrument
shall be determined in accordance with the laws of the Commonwealth of Pennsylvania,
I have signed this Limited Power of Attorney this I day of o...~,
1998, ~
or~~
Lois Shear
VERIFICATION
I, d - ~ ~ , aver, that the allegations contained in the foregoing Limited
Power of Attorney are true and correct to the best of rny knowledge, information and belief; and that
the statements in said Limited Power of Attorney are subject to the penalties of 18 Pa, Cons, Stat.
Ann, ~4904 relating to unsworn falsification to authorities,
Verified this
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day of
QJ ~ ~ ~
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,1998,
O<~ od-L- -' ~
, ,
LOIS Shear
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SMIGEL. ANDERSON ~ SACKS
ATTORNEYS AT LAW
,",,"0" ...uon
c. Lee AHot"ION
InlA'" 10 lACK'
JOHN W. '''O,,",MC''
..laiC"'" .. O'AMICO
ANN V. Lev,N
"'CA THe" o. "aye"
C"IC H. "'0"".10"
2017 NO"'H r"OH' S'''CCT
HARRISBURG, PENNSYLVANIA 17110-1223
17171 Z34.Z401
,A:A 171711:.4.'811
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5178-1-2
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August 11, 1998
Tamdot Homecare of Harrisburg, Inc.
Altn: Joseph Hunter
1011 Market Street
Lemoyne, P A 17043
"Re: Access to Corporate Books and Share Certificates
Dear Mr. Hunter:
In addition to the documents and records previously requested from you, in my June
29, 1998 letter, I am requesting that you provide me access to the corporate books of Tamdot
Homecare of Harrisburg, Inc, and, specifically, the corporate share certificates,
In order to avoid judicial recourse, you have until August 14, 1998, to comply with
this and all previous requests,
Thank you for your attention to this matter.
V~"IYYO~
LeRoy Smi I
LRS:EMM:tkc
Qc..., ()UL.o,. lc-0:, ~
EXHJan:
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TAMDOT HOMECARE
1011 MARKET STREET, LEMOYNE, PA 17043
TELEPHONE (717) 737.5584
Mr. Leroy Smigel
Smigel, Anderson & Sacks
2917 North Front St.
Harrisburg, Pa. 17110-1223
August 24, 1998
Dear Mr. Smigel,
Just a small progress report.
Honestly I am not stalling or ignoring your requests.
Believe me I want to get this behihd us as much as you do.
We have identified problems I did not know I had with
the bookeeping. Kurtz McNaney ( Don pottiger) is working
on Tamdots financials as quickly as possible.
Please feel free to contact Don to add credibality to
what I am telling you and possibly a better time line
than I am able to provide.
Respectfully Submitted,
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LOIS SHEAR.
PETITIONER
v.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY. PENNSYLVANIA
NO. 98-6297 CIVIL
TAMDOT HOMECARE OF
HARRISBURG, INC.,
RESPONDENT
CIVIL ACTION - LAW
ORDER
AND NOW, this ;Uro-tP.- day of ~...............t ' 1999.
upon consideration of Petitioner's Petition. it is hereby ORDERED that
the Rule, issued on Respondent in the above captioned matter on
November 12, 1998, is made absolute. that petitioner's Petition to
Compel Inspection of Corporate Records and/or Documents is GRANTED.
that Respondent shall be compelled to produce the corporate records
and/or documents of Tamdot Hornecare of Harrisburg. Inc.. that
Petitioner shall be allowed to inspect the Corporation's records
. and/or pocuments., ana that R....~!-'uudt::ul,. ~l...a" r=l' P,::a~;t-ioner the ~;lm ""f
Twv 'fl.~.oIII...~a.uJ F;uc J.fl1n-;;t.=aJ \.:;t:l,SOO,UUJ B....~l:ar~ F,..,..,.. "''''''',.,00.' fees, ~Q.t~
.AHa elE~en.3".! '"
BY THE COURT:
f.s'lieV~, ~~'r
TRUE copy FROM RECORD
In T,;sr mon;' \O,h r:. of. J h- r~ u~t~ set my hand
and lhe s.al 01 said Court at CorJisle, Pa.
Thjs.2~..~.. day oL.. ,)kl:\, "..... 19..~r.
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ONWHOJOOA1<ldns 'lY"'1 lIYl<;'\1v
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PRAECIPE FOR LISTING CASE FOR TRIAL
MAR 1 2 lOO'
(MIIRt be typewritten ,md 5ul:rnitted In duplicate)
'IU THE plUl'llOfoljrARY Of CIMlERLMD C(){MJ"{
Please list the following case:
(Check one)
for JURY trial at tile next tem of civil court.
x
for trial witl10ut a jury.
"
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CAPl'ION OF CASE
(entire caption must be stated in full)
(check one)
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S': ;-
LOIS G. SfIEAR,
( X)
Civil Actio~;~'La~
;,;:' ~i.~, ;-;"- . .~l
Appeal from Ailiitr!iHori--
Plaintiff
(other)
(Plaintiff)
vs.
JOSEPH HUNTER and
TAMOOr H01ECARE OF HARRISBURG, INC.,
Defendants
The trial list will be called on 4/02/02
and
Trials commence on
4/29/02
(Defendant)
Pretrials will be held on 4/10/02
(Briefs are due 5 days before pretrials.)
vs.
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 1899
Civil Term
19 99
Indicate the attorney who will try case for the party who files this praecipe:
LeRoy Smigel, Esquire, 2917 North Front street, Harrisburg, PA 17110-1260
ID #09617
Indicate trial counsel for other parties if known:
Steven E. Grubb, 320 Market st., PO Box 1268, Harrisburg, PA 17108-1268
ID #75897
This case is ready for trial.
Signed:
Esquire ID #0961
Print Narre:
Date:
March 11. 2002
A ttorney for:
Plaintiff
,
.
The shareholders ofTamdot are Joseph Hunter, Jean Wojszwillo, David Kcndall and Plaintiff,
Plaintiff's signature does not appear on the January 17, 1984 ICller, As for the remaining
allegations, the letter attached to the Complaint as Exhibit I speaks for itself. Admitted that, as a
general proposition, in the evenl of Todd Shear's demise, his stock would retum to his father,
Nonnan Shcar, and in the event of Norman Shear's demise, Todd Shear's stock would revert to
Plaintiff.
6. Admitted.
7, Admitted,
8, Denied. Since inheriting her interest in Tamdot, Plaintiff has enjoyed the same
rights and benefits enjoyed by shareholders, including Mr, Hunter, as they existed prior to
Plaintiff's inheritance of her interest in Tamdot.
9, After reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of these allegations. Therefore, said allcgations are
denied. It is furthermore denied that a "true and correct copy of the assignment is attached as
Exhibit 2 to the Complaint," since defendants have no knowledge, other than Exhibit 2 and
Plaintiff's allegation, of the assignment from Lois Christinziani to Plaintiff and Todd Shear, and
proof is demanded,
10. Admitted that Exhibit 2 references a Stock Redemption Agreement dated March 7,
1991. Denied that Defendants have knowledge or infonnation about any assignment. The answer
to Paragraph 9 is incorporated by reference. As for the remaining allegations, the Defendants are
without knowledge or information sufficient to form a belief as to the truth of the averment since
.3.
,
Defcndants havc ncvcr scen or posscsscd 8 .Stock Rcdcmption and Purchase Agrccmcnt dated
March 7,1991," and proof is demandcd,
II. Denied, The document attached to the Complaint as Exhibit 3 appears 10 have been
mailed on April 23, 1991. By way of further answer, the document attached to the Complaint as
Exhibit 3 was ncvcr executed, nor was it "mailed to Hunter for his signature," The document was
drafted and mailed to Tarndot with thc requcstthat Mr. Hunter sign in his capacity as president of
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Tamdot, As for when the Note Rcceivablc was draftcd, after reasonable investigation, Defendants
are without knowledge or information sufficient to form a belief as to the truth of the averment
and, therefore, said averment is denied,
12, Denied, Mr, Hunter did not make payments to Plaintiff on the document.
Therefore it is denied he owes Plaintiff $21 ,550,53 plus interest. Admitted that Tamdot made
payments to Plaintiff until April of 1997, By way of further answer, Tamdot ceased paying
Plaintiff at the direction of then Tamdot shareholder, Todd Shear, due to financial hardships
Tamdot was experiencing, Denied that Tamdot owes $21,550.13, plus interest. By way of further
answer, neither Tamdot nor Mr, Hunter ever executcd a Note in favor of Plaintiff,
13, Denied that Mr, Hunter "defaulted on the note." As is clear from Exhibit 3,
attached to the Complaint, Mr. Hunter was not a party to the document. By way of furthcr answer,
neither Tamdot nor Mr, Hunter ever executed a note in favor of Plaintiff, Tamdot ceased paying
Plaintiff at the direction of then Tamdot shareholder, Todd Shear, due to financial hardships
Tarndot was experiencing, Denied that "Plaintiff has received no benefit from being a shareholder
of the Corporation." Plaintiff has enjoyed the same rights and benefits enjoyed by shareholders of
-4.
.
.
Tamdot, including Mr, Hunter, as they existed prior to Plaintiff's inheritance of her interest in
Tamdot. Admitted that Plaintiff, pursuant to IS Pa. C,S.A, 9 I 508, requested access to corporate
records and/or documents by a lettcr dated June 29. 1998. Admitted that the letter attached as
Exhibit 4 is a true and correct copy of the letter sent to Tamdot.
14, Denied, The allegations of Paragraph 14 pertaining to a violation of the law are
legal conclusions to which no response is required, Defendants have produced and rnade available
for Plaintiff's examination and inspection the documents requested by Plaintiff, to the extent they
exist, as follows:
A. Defendants have produced;
B. Dcfendants have produced incorne tax returns for 1997, Defendants filed
for an extension for their 1998 tax return and, therefore, have not provided
the 1998 tax return since it has not been completed;
C, Defendants have produced;
D, To the extent they exist, Defendants have produced;
E. The Corporation has never declared or paid a dividend from 1993 to the
present;
F, The Corporation has never loaned or advanced money to any shareholder,
officer, director or any affiliated cornpany, There are no "rcpayment
schedules;"
G. Defendants have produced;
H, Defendants have produced financial statements for 1996 and 1997.
-5-
.
.
Defendants havc not produccd a financial statcmcnt for 1998, since it has
not been completcd;
Defendants have produced;
Defendants havc made thesc documents available. They are voluminous in
naturc, Plaintiff, despitc her rcpresentation, has shown no intcrest in
reviewing thcse documents;
K. To the extent they exist, Defendants have produced;
L. Defendants have never been in possession of and are not aware of the
I.
J,
"March 7,1991 Stock Redemption and Purchase Agreement";
M, A "fully executed Note for $40,892,00" does not exist.
15. Adrnitted.
16, Admitted that an Order to compel inspection of corporate records and/or documents
was issued on or about January 26, 1999, Denied that "Hunter has failed and/or refused to permit
access thereto," Soon after the initial request, Tamdot made its offices available for inspection,
Additionally, Defendants have produced the documents requested in Paragraph 14 of the
Complaint, to the extent they exist. Plaintiff remains free to examine the Corporate records,
17, The answer to Paragraphs I through 16 of the Answer are incorporated by reference
as if set out in full,
18, Admitted that Mr, Hunter has failed to convene rneetings of the shareholders and
directors of the Corporation, By way offurther answer, prior to the dernise of Norman and Todd
Shear, former shareholders of Tam dot, the convening of meetings of the shareholders and directors
-6.
.
of the Corporation was their responsibility, Denied that Mr, Hunter has "refused" to convene
meetings of the shareholders and directors of Tam dot. By way of further answer, Plaintiffhas
failed and/or refused to convene rneetings of the shareholders and directors of Tam dot, although
she has a right to do so,
Denicd that Mr, Hunter is operating the business as if it were a sole proprietorship,
Prior to the demise of Norman and Todd Shear, former shareholders in Tamdot, Mr. Hunter only
acted after their consultation and with their consent. Upon their demise, Plaintiff never showed
any interest or willingncss to participate in Tamdot's day-to-day business,
Denied that Mr, Hunter ever withdrew, for personal use, substantial sums from
Tamdot's assets. Mr, Hunter has never used COrporate assets for personal use. Any and all
withdraWals were done in the normal a.'1d necessary course of Tam dot's day-to-day running,
Admitted that Mr. Hunter incurred corporate obligations in the normal course of
business and as needed in Tamdot's day-to-day running, Denied that Mr, Hunter has ever incurred
corporate obligations which benefitted hirn personally.
Admitted that Mr, Hunter failed to consult Plaintiff on the financial condition of
Tamdot since Plaintiff never showed an interest in the financial condition of Tam dot, other than
where her own personal financial interests were affected, Denied that Mr, Hunter failed to inform
Plaintiff of the financial condition of the Corporation, Mr, Hunter has provided financial
staternents and records to Plaintiff, to the extent they exist.
19. Denied, The allegations of Paragraph 19 pertaining to violations of the law are
legal conclusions to which no response is required, By way of further answcr, Mr, Hunter answers
-7-
as follows:
.
A. Denied. Mr, Huntcr furnishcd Tamdot's annual financial statements to
Norman and Todd Shear, former shareholders of Tam dot, during the
existence of Tam dot and has recently furnished Plaintiff with annual
financial statements, to the extent they exist. Plaintiff never expressed an
interest in Tamdot's financial condition other than where hcr own personal
financial intcrests were affected.
B, Admitted. By way of further answer, Plaintiff has never provided
Defendant or Mr, Hunter, with a notice of a meeting or "to secure a waiver
for said notice," as she is entitled as a shareholder;
C, Denied as stated, Prior to their demise, it was the responsibility of former
Tamdot shareholders, Norman and Todd Shear, to convene meetings of
shareholders, Therefore, it was not Mr, Hunter's responsibility to "hold
meetings of shareholders" prior to the demise of Norman and Todd Shear.
By way of further answer, after the Shears' demisc, it is admitted that Mr.
Hunter did not hold meetings of shareholders, however, Mrs, Shear never
called a meeting of shareholders or directors, as she is entitled as a
shareholder,
D, Denied. Mr, Hunter, as president, conducted corporate business and took
action on behalf of the Corporation on a day-to-day basis, as he is permitted
to do as president of the Corporation, By way offurthcr answer, Plaintiff
-8-
.
has never shown an interest in the management and active running of
Tamdot and has never expressed any interest in taking action on behalf of
the Corporation, other than where her own personal financial interests are
affected, She has, therefore, waived her right to now complain.
20, Denied, The allegations of Paragraph 20 state a legal conclusion to which no
response is necessary, By way of further answer, it is denicd that Mr, Hunter, at any time, took
money from the Tamdot "for his own benefit before paying shareholder obligations," It is
unknown what is meant by "shareholder's obligations" but Plaintiff has enjoyed the same rights
and benefits enjoyed by shareholders, including Mr, Hunter, as they existed prior to Plaintiffs
inheritance of her interest in Tamdot. Mr. Hunter has never taken, for persona! use, any money
from Tamdot. Any money paid by Tamdot to Mr, Hunter was in the normal course of business
and as remuneration for work Mr. Hunter performed,
21. Denied, Mr. Hunter has managed Tamdot to the best of his abilities and in the best
interests of Tam dot and has never operated Tamdot for his own personal gain, By way offurther
answer, Plaintiff has never shown any interest in the management or active running of Tamdot and
has only expressed interest in Tamdot where her own personal financial interests are affected, She
has, therefore, waived her right to now complain about the management of Tam dot.
22. The allegations of Paragraph 22 state legal conclusions to which no response is
necessary, The appointment of a custodian is not in the bcst interests of Tam dot. Denied that
assets have been wasted and dissipated or that Plaintiff's interests will be sacrificed, Plaintiff now
enjoys the same rights and benefits enjoyed by shareholders, including Mr, Hunter, as they existed
-9-
.
prior to her inheritance of her interest, By way of further answer Defendants respond as follows:
A, Denied, Mr. Hunter, in his capacity as Tamdot presidcnt, will "shift
corporate cash assets into fixed assets" as is necessary and reasonable in a
business which requires fixed assets in its day-to-day running, It is denied
that this is any way "devalues the Corporation";
B, Denied. Mr, Hunter has never transferred corporate cash assets into his own
accounts, Mr, Hunter has never used corporate assets for personal use, Mr.
Hunter, in his capacity as Tamdot president, will continue to transfer
corporate cash assets into fixed assets as is necessary and reasonable in a
business which requires fixed assets in its day-to-day running, After
reasonable investigation, Defendants are without knowledge or information
as to the "potential for acquisition of the Corporation by third parties" and,
therefore, said averment is denied,
C, Denied, The allegations of Paragraph 22,C, are legal conclusions, to which
no response is necessary, By way of further answer, Plaintiff has failed to
comply with the requirements of the Pennsylvania Business Corporation Act
in her own right and has exposed the officers, directors and shareholders,
including the Defendant, Joseph Hunter, to personal liability. Mr. Hunter,
as president of Tam dot, has acted to the best of his abilities and in the best
interests of Tam dot;
D, Denied, The allegations of Paragraph 22,0. are legal conclusions, to which
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no rcsponsc is ncccssary. By way offurthcr answer, Plaintiffhas failed to
comply with the rcquiremcnts ofthc Pennsylvania Busincss Corporation Act
in her own right and has exposed the officers, directors and shareholders,
including the Defendant, Joseph Hunter, to personal liability, Mr, Hunter
has, in his capacity as Tamdot president, acted to the best of his abilities and
in the best intcrests of Tam dot.
23. After reasonable investigation, Defendants are without knowledge or infonnation as
to what the Plaintiff does or does not believe is beneficial to the interests of the shareholders,
Therefore, said avennent is denied, By way of furthcr answer, Defendant denies that Plaintiff
would have any knowledge as to what is in the best interests of the shareholders or Tamdot, since
she does not live in the vicinity of Tam dot, has shown no interest in taking an active role in the
day-to-day management of Tam dot, and has shown no interest in Tarndot other than for her own
personal benefit.
WHEREFORE, Defendants request that judgment be entered in their favor and Plaintiff's
cause of action be dismissed and that the court award all costs incurred in this action to
Defendants, including reasonable attorneys fees,
24. The answers to Paragraphs 1 through 23 are incorporated by reference as if set out
in full,
25, Admitted that Plaintiff has an interest in Tamdot. Denied that the "officers,
shareholders and directors of the Corporation remain unknown due to Mr. Hunter's failure and/or
refusal to produce such documentation." As reflected in Exhibit I attached to Plaintiff's
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Complaint, the interests in Tamdot are known, and have been known. to Plaintiff. Mr. Hunter
owns 50% of Tam dot with Plaintiff owning 46,5%, Jcan Wojszwillo owning I % and David
Kendall owning 2.5%. Mr, Hunter is, furthermore, the president of Tam dot. Denied that Mr,
Hunter has failed and/or refused to produce docurnentation, Mr. Hunter has produced all
documentation which exists and has rnade the records of the Corporation available for review by
Plaintiff, The rernaining allegations of Paragraph 25 are denied as they are legal conclusions to
which no response is necessary,
26. Admitted that Plaintiff is an owner of Tam dot. The remaining allegations are
denied, As a shareholder Plaintiff has rights pursuant to the Business Corporations Law. It is
denied that Plaintiff has the rights described in Paragraph 26, By way of further answer, Plaintiff
has never shown interest in participating in the discussion or decision making pertaining to
business expansion or long and short-term debts and significant expenditures, Plaintiff is only
interested in Tamdot for her own monetary gain and has waived her right to now complain,
By way of further answer, at all times prior to the deaths of Norman and Todd Shear, the
former shareholders in Tamdot, all decisions regarding the Corporation were made with the
consultation and consent ofNorrnan and Todd Shear, The rernaining allegations are denied as
legal conclusions to which no response is necessary,
27. The allegations of Paragraph 27 are legal conclusions to which no response is
necessary, The answer to Paragraph 18 above is incorporated by reference, By way of further
answer, response is made to each allegation as follows:
A. Denied, Mr, Hunter has never used corporate assets for his own personal
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bencfit unrelatcd to company busincss;
B, Admittcd in plll1, dcnicd in part, Admitted that Mr. Hunter, in his capacity
as Tamdot's prcsidcnt, has withdrawn significant surns from business
accounts for business purposes which werc nceded for the day-tO-day
running of the business. Denied that Mr, Hunter has cver withdrawn
significant sums from business accounts for his own pcrsonal usc or has
used thc sums for purposes other than business, By way of furthcr answer,
Mr, Hunter always consulted with Norman and Todd Shear, former
shareholders of Tam dot, pertaining to any significant expenditure of
corporate funds, Plaintiff has never shown any interest in thc management
or day-to-day running of Tam dot and has only expressed interest in Tamdot
where her own personal financial interests are affected, Therefore, it is
avcrred that Plaintiff is not interested in authorizing and approving
transactions and has waived any right to complain;
C. Denied, The allegations of Paragraph 27,C. are speculative a1legaticns of
withdrawals Hunter may make in the future. Therefore, after reasonable
investigation, Defendants are without knowledge or information sufficient to
form a belief as to the truth of those allegations, and said allegations are
denied. Mr, Hunter, in his capacity as President, may elect to withdraw cash
amounts frorn the business where it is required in the reasonable and
necessary day-tO-day running of Tam dot. By way of further answer,
-13-
Plaintiff has never shown any interest in the rnanagement or day-to-day
running of Tam dot.
28, Denied, The allegations of Paragraph 28 are legal conclusions to which no response
is necessary, By way of further answer, Defendants have performed under the Order to compel
inspection of corporate records and/or documents by making all corporate records available to
Plaintiff and by producing all requested documents, to the extent they exist. The answcr to
Paragraph 14 is incorporated by reference. Defendants answer rnore particularly as follows:
A. Denied. Defendants have produced all requested financial staternents, to the
extent they exist;
B, Denied. Defendants have produced all books and records requested by the
Plaintiff, to the extent they exist. All of Tam dot's records and documents
remain available for inspection by Plaintiff;
C. Denied. AU corporate expenditures made by Mr, Hunter, in his capacity as
corporate president, have been in the ordinary and necessary course of
business. By way of further answer, Plaintiff has shown no interest in the
active managernent and day-to-day running of Tam dot. Therefore, it is
averred that Plaintiff is not interested in consenting to corporate
expenditures and has waived any right to complain;
D. Denied, AU corporate obligations incurred by Mr. Hunter. in his capacity as
corporate president, have been in the ordinary and necessary course of
business and necessary in the day-to-day running of Tam dot. By way of
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further answer. PlaintiffhU!l never shown any interest in the active
management and day-to-day running of Tamdot, Therefore, it is averred
that Plaintiff is not interested in consenting to corporate obligations and has
waived any right to now complain,
29, The allegations of Paragraph 29 contain legal conclusions to which no response is
necessary, By way of further answer, Defendants answer more particularly as follows;
A, Denied, Mr. Hunter has never utilized corporate assets for personal benefit.
All expenditures made by Mr, Hunter, in his capacity as president, have
been in the normal coursc of the day-to-day running of Tamdot.
Defendants, after reasonable investigation, are without knowledge or
information as to the truth of the speculative allegation of what Mr, Hunter
may do in the future, therefore, said allegations are denied;
B, Denied. Mr. Hunter's actions in the past and in the future have been in the
best interests of Tam dot. By way of further answer, this allegation is
speculative with no basis in fact, and is, therefore, denied,
WHEREFORE, Defendants requests that judgment be entered in their favor and against the
Plaintiff with all costs, including reasonable attorneys fees, being accorded in favor of Defendants.
30, Paragraphs I through 29 of this Answer are incorporated by reference as if set out
in full,
31, The allegations of Paragraph 31 contain legal conclusions to which no response is
necessary, It is admitted that Mr, Hunter controls moneys received, or property owned, by the
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Corporation in his capacity as president of Tam dot. By way of further answcr, Plaintiff has shown
no interest in participating in the day-to-day management or running ofTamdot. It is denied that
Mr, Hunter, as prcsident of Tamdot, "controls moneys received or property owned by the
Corporation for the Plaintiffs benefit." Mr, Hunter controls rnoneys received or property owned
by Tamdot for Tamdot's and all of its shareholder's benefit. Plaintiff rcceives and has received the
same benefits which previous shareholders, as well as Mr, Hunter, received from Tamdot. Denied
that Plaintiff's self-serving definition of "Fiduciary Relationship" is accurate.
32, The allegations of Paragraph 32 legal conclusions to which no response is
necessary, By way of further answer, Mr. Hunter has "accountcd for money or property received
for, or otherwise due to, the Corporation," including profits of Tam dot, by making all records of
Tamdot accessible to Plaintiff and by producing to Plaintiff all requestcd documents, to the extent
they exist.
33, Denied that all of the books and papers of Tarn dot are, and have been, in the sole
custody of Mr. Hunter. Only as a result of the deaths ofNorrnan and Todd Shear did Mr. Hunter
corne into the possession of all books, and papers of Tam dot. Prior to the Shears' deaths, the
books and papers of Tarndot were in the possession and were the responsibility of the Shears,
Denied that Plaintiff has had no way of ascertaining the amount of moneys due and owing her as a
shareholder of the Corporation, Plaintiff has received the exact same benefits that shareholders,
including her deceased husband and son, and Mr, Hunter, received prior to her inheritance of her
shares of stock. By way of further answer, Plaintiff has never shown any interest in the day-to-day
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I
running of Tarn dot and has never requested, prior to her engaging counsel, to review any of the
, ..
books to asccrtain any amounts duc and owing hcr as a sharcholdcr of thc Corporation.
34, Dcnicd. The allegations ofParugraph 34 statc legal conclusions to which no
responsc is neccssary and said allegations are therefore dcnied. To the extent anything factual is
alleged, said allegations are denied,
WHEREFORE, Defendants respectfully requcst that judgment be entered in their favor
against the PlaintifTwith all costs, including reasonable attorneys fees, being entered in favor of
Defendants,
NEW MATIER
35, Plaintiff has never been to Tamdot's principal place of business at 1011 Market
Street, Lemoyne, Pennsylvania 17043,
36. Plaintiff has never participated in the day-to-day running of Tam dot's business.
37. Plaintiff has no interest in participating in the day-to-day running of Tam dot's
business,
38, Plaintiff has never done work for Tamdot and has never been employed by Tamdot.
39, Plaintiff is not a resident of the Commonwealth of Pennsylvania,
40, Plaintiff has no knowledge of or experience in the "retail business of selling and
renting horne medical equipment."
41, Plaintiff, as a shareholder in Tamdot, has never called a corporate meeting,
42, Other than through her counsel, Plaintiff has never, personally, contacted or
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consulted with Mr, Hunter, or any officers of Tam dot, about the affairs of Tam dot, financial or
otherwise,
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43. Plaintiff has received the samc bencfits paid to Norman and Todd Shear. prior to
their dcaths, sincc her inheritancc of the stock in Tamdot
44. Prior to thcir deaths, convening corporate meetings and attending to thc corporate
minutc book werc the responsibility of Normdll and Todd Shear and the corporate secretary. Pat
Sarvas,
45, Plaintiff initiated this action only after she stopped receiving rnonetary payments on
what she clairns is a debt owed to her from Tamdot.
46, Mr. Hunter has been using his best efforts in the difficult task of running Tamdot
and has, at all times, acted in the best interests of Tamdot and its shareholders.
47, It is only through the efforts ofMr, Hunter that Tamdot has remained a viable
business,
48, Defendants raise the affirmative defense of Statute of Frauds since the document
which Lois Shear attempts to enforce in this matter is not a signed document.
49. Plaintiff comes to the court with unclean hands in that she is not seeking a
custodianship out of the best interests of Tam dot, but for only her own personal financial gain.
50, Plaintiff, by her lack of any involvement or interest in the management or day-to-
day running of Tam dot, has waived her right to advance the contentions recited in her Complaint.
51, Plaintiff, by her lack of any involvernent or interest in the management or day-to-
day running of Tam dot, is estopped from advancing the contentions recited in her Complaint.
WHEREFORE, Defendants respectfully request thatjudgrnent be entered in their favor and
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, "
against thc Plaintiffwilh all costs of suit, including reasonable altomeys fces, being awarded in
their favor,
Respectfully submitted,
GOLDBEj' KATZMAN & SHIPMAN, P,C.
/ /~ j
By:?"/$f?j/ ?-; /' ,-~
Ronallr M:Katzman, ~sqriire
Altorney I.D. No, 07198
Steven E, Grubb, Esquire
Attorney I. D, No, 75897
320 Market Street
P,O, Box 1268
Harrisburg, P A 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendants
Date: 5/7[)/98
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5, This civil action Wl\S commcnced by Plaintiff for essentially two (2) major
reasons, First, Plaintiff alleges that Hunter has mismanaged the Corporation and operatcd the
Corporation as a solc proprietorship without rcgard for thc besl interesl ofthc Corporal ion's
other shareholders, including Plaintiff. Plaintiff, with voting rights on fifty (50%) pcrcent of the
Corporation's outstanding stock, has received absolutely no benefit from being a shareholder of
the Corporation and, until retaining counsel, had been excludcd from pcrtincnt Corporation
information and decisions, Second, thc Corporation, by and through Hunter, had been making
payments to Plaintiff on a Forty Thousand Eight Hundrcd Ninety-two ($40,892.00) Dollar
Corporation obligation, evidenced by an unsigned Prornissory Note, to Plaintiff from
approximately 1991 until April of 1997, For reasons unknown to Plaintiff, the Corporation, by
and through Hunter, stopped rnaking payments to Plaintiff on this Corporation obligation in
April of 1997, owing Plaintiff approxirnately Twenty Nine Thousand ($29,000,00) Dollars,
6, After gaining access to the Corporation's records andJordocuments pursuant to a
court order to compel inspection of COrporate records and/or docurnents on January 26,1999,
Plaintiff realized the extent of Hunter's mismanagernent and violations of Pennsylvania's
Business Corporation Law, resulting in gross deflation in the valuc ofhcr interest in the
Corporation and exposing her to personal liability,
7, Even though the Honorable Court issued an Order to cornpel inspection of
corporate records and/or documents on or about January Z6, 1999, Hunter has failed and/or
refused to provide all docurncnts requested,
8, Hunter was deposed by Plaintiffs counsel on May 12, 1999, Numerous
violations of Pennsylvania's Business Corporation Law were verified, including but not limited
to the following: On page 20 of Hunter's deposition transcript, Hunter admitted he did not have
2
Minutes of any Corporation mcctings from the time the Corporation was fonned on December
12, 1983 unlj) May 12, 1999, and to never adhering to the By-laws of the Corporation;
r.
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additionally, on page 31 of said transcript, Hunter admitted that the Corporation does not have a
Board of Directors and that no Corporation Board of Director rneetings had ever been held nor
any shareholders meetings, from at least 1995 through May 12, 1999; on page 33 of said
transcript, Hunter adrnitted to never providing, frorn 1995 through May 12, 1999, fonnalor
infonnalfinancial reports as to the status ofthe Corporation to thc shareholders,
9, On page 29 of the deposition transcript, Hunter admitted that the Corporation had
been rnaking payments to Plaintiff on a Note that was not signed and that there was a
Corporation obligation understood between the Corporation, him as President, and that the
Plaintiff was the beneficiary of that obligation. Hunter also admitted that the Corporation made
payments on the obligation for five (5) or six (6) years and that payments would have continued
if the Corporation had adequate cash flow,
10, Because of Hunter's misrnanagement, the Corporation incurred substantial
penalties for filing its tax retums late in 1996, 1997, 1998 and 1999. Hunter admits on page 43
of the deposition transcript that it was his negligence that caused the 1997 tax returns to be filed
late,
II, Numerous other violations of Pennsylvania's Business Corporation Law were
uncovered in Hunter's deposition including, but not limited to the failure to follow appropriate
procedures for setting Hunter's salary and fringe benefits,
12, Plaintiff has incurred substantial legal expenses over an approxirnate two (2) year
period oftirne in the pursuit of payment on the Corporation's obligation to hcr and to address
Hunter's alleged misrnanagement and breach of fiduciary duties to the Corporation and its
3
shareholders, Hunter has repeatedly "stoncwalled" Plaintiff's efforts to move this civil action
forward and/or settle this matter out of court.
13, The Defendwlls' Deposition Notice, dated Junc 6, 2000, demanding an oral
cxamination of the Plaintiff at the law offices ofGoldbcrg, Katzrnan & Shipman, P,C. in
Harrisburg, Pennsylvania, is another example of Defendants , tactic to delay this civil action and
force Plaintiff to incur unreasonable attomey expenses and unnecessarily subject Plaintiff to
unreasonable burden and inconvenience, Defendant's June 6, 2000, Deposition Notice is
attached hereto as Exhibit A,
14. Defendants have already issued Interrogatories along with a Request for
Production of Documents to Plaintiff on June 7,1999,
15, On August 6,1999, Plaintiff answered Defendants' Interrogatories thoroughly, to
the best of her knowledge and ability and provided all relevant docurnents in her possession.
16, Plaintiff has no new relevant information to offer Defendants in this matter,
17, If Defendants insist on deposing Plaintiff, said deposition would be morc
efficicntly, reasonably and effectively handled through telephone conferencing without
subjecting Plaintiff to unnecessary and unreasonable burden and/or expense,
NOW, THEREFORE, for thc reasons set forth above, Plaintiff prays this Honorable
Court to grant relief dernanded as follows:
I. Modify Defendants' Deposition Notice disallowing the August 30, 2000, 9:00
a,rn, oral deposition at the law offices of Goldberg, Katzman & Shipman, P,C, in Harrisburg,
Pennsylvania and ordering Defendants to take Plaintiff's deposition via telephone (conference
call),
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39, Admilled as stated in Plaintiff's Amcnded Complaint.
40, Admilled that Plaintiff has no knowlcdge of or cxperience in the "rctail business
of selling and renting horne medical cquiprncnt." By way of furthcr reply, as a shareholder of
the corporation, Plaintiff does not necd knowledge or cxperience in thc business of the
corporation,
41. Admitted that PlaintitThas ncver called a COrporate rneeting, By way offurthcr
reply, Joe Hunter, as President of the corporation and the only shareholdcr involved in thc
operation of the corporation, has the responsibility of complying with Pennsylvania Business
Corporation Law and calling corporate mcetings.
42, Denied as stated, Plaintiff, through her husband, Norman Shear, and son, Todd
Shear, has contacted or consulted Joe Hunter, or other officers of Tam dot, about the affairs of
Tarndot. By way of further reply, Joe Hunter has never personally contacted or consulted with
the Plaintiff, a 46.5% shareholder of the corporation, about the affairs of Tamdot, financial or
otherwise, and has not provided annual financial statement as required by law,
43, Denied as stated. Plaintiff has received no benefits from being a shareholder of
Tamdot.
44, After reasonable investigation, Plaintiffis without knowledge or information
sufficient to form a belief as to the truth ofthe allegation contained in paragraph 44. Thereforc,
said allegation is denied, By way of further reply, Joe Hunter, as President of the corporation, is
responsible to ensure that corporatc meetings are held and that the corporate rninute book is
properly maintained,
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SI78.1.2/P,oororse",ieeJEMMI", June 17, 1999 1:30 PM
Plainti ff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LOIS G, SHEAR,
v,
NO, 99-1899 CIVIL
JOSEPH HUNTER and
TAMDOT HOMECARE OF
HARRISBURG, INC"
Defcndants
CIVIL ACTION - LAW
SMIGEL, ANERSON
BY:U' '1r-
LeRoy gel, Esqui e
Attorney ID #09617
Eric M, Morrison, Esquire
Attorney ID #80235
2917 North Front Strect
Harrisburg, P A 17110
(717) 234-2401
CERTIFICATE OF SERVICE
I, LeRoy Smigel, do hereby certify that I served a true and correct copy of the Reply to
New Matter upon Defendants' attomey, Ronald M, Katzrnan, Esquire, by first class mail,
postage pre-paid, on the ~ day of Junc, 1999, at the following address:
Ronald M, Katzman, Esquire
Goldberg, Katzman & Shiprnan, P,C,
320 Market Street
P,O, Box 1268
Harrisburg, P A 171 08-1268
Respectfully submitted,
Attomeys for Plaintiff
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5/7S.I.2!POstEMMlm Jun. 17, IW'IIZ:ZO PM
LOIS G, SHEAR,
Plainliff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v,
JOSEPH HUNTER and
T AMDOT HOMECARE OF
HARRISBURG, INC"
Defendants
NO, 99-1899 CIVIL
CIVIL ACTION - LAW
PLAINTIFF'S PRELIMINARY ~BJEC~ON&
TO DEFENDANTS' NEW ATTE
Plaintiff, Lois G, Shear, by hcr undersigned attorneys, Smigel, Anderson & Sacks,
preliminarily objects to Defendants' New Matter pursuant to Pa,R,C,P, 1028(a)(4) as follows:
DEMURRER TO PARAGRAPHS 48 TO 51 OF DEFENDANTS' NEW MATTER
OBJECTION NO.1
Legal Insufficiency of paragraph 48 of Defendants' New Matter:
I. Plaintiff's Cornplaint against Defendants alleges the Defendants owe Plaintiff
$21,550,53 plus interest under a Note receivable assigned to Plaintiff on March 7,1991
(hereinafter "Assignment") and mailed to Defendants on April 26, 1991 (hereinafter "Note"), A
true and correct copy of the Assignment and Note are attached hercto as Exhibit "A" and Exhibit
"B" and incorporated by reference,
2, In paragraph 48 of Defendants' New Matter, the Defendants raise the affirmative
defense of Statute of Frauds pertaining to the enforceability of the Note because the Note
remains unsigned by Defendant Joseph Hunter in his capacity as President of Defendant Tamdot
Homecare of Harrisburg, Inc,
3. Under Pennsylvania Law, thc Statute of Frauds only requires contracts dcaling
with interests in real propcrty, declaration oftnJsts and grants thereofor promises to answer for
the debt of anothcr to be in writing, 33 Pa, Cons, Stat. Ann, SS 1-3 (West 1997).
4, There is no scction of the Pennsylvania Statute of Frauds that requires the Note be
in writing. ~ 33 Pa, Cons, Stat, Ann. SS 1-3 (Wcst 1997),
5, Defendants appear to bc rclying on a cornmon Statute of Frauds provision which
requires contracts, not to be performed within one (I) year, to be in writing,
6, The Pennsylvania courts have explicitly held that the Pennsylvania Statute of
Frauds does not contain a provision for agreements that cannot be performed within one year,
Homvak v, Cell, 427 Pa, Super, 356, 629 A,2d 138 (1993); Kohrv, Kohr, 271 Pa, Supcr, 321,
329, n,3, 413 A,2d 687, 691 n,3 (1979),
7, As such, paragraph 48 of Defendants' New Matter is legally insufficient and
should be disrnissed,
WHEREFORE, Plaintiffrespcctfully requests that this Court sustain Plaintiff's
Preliminary Objections by way of demurrer and dismiss paragraph 48 of Defendants' Answer
and New Matter to Plaintiff's Cornplaint.
OBJECTION NO.2
Legal insnfficiency of paragraph 49 of Defendants' New Matter:
8. The allegations of paragraphs I through 7 are herein incorporated by reference as
if set out in full,
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$40,892
April 26, 1991
FOR VALUE RECEIVED, tho undersigned, promises to par to the
.order of Lois G. Shear, the sum of Forty Thousand E ght '
Hundred Ninety-Two ($40,892) dollars together with interest
thereon at the rate of ten and one-half (10 1/2t) percent per
annum on the unpaid principal balance, in accordance with the
following schedule: '
Payments of principal and interest in the amount ot $551.78
shall be due monthly beginning on May 1, 1991 and ending on
April 1, 2001. ,
If any payment due is not paid within' fifteen (15) days of
the due date, there shall become due at the option of the
holder a late charge of five percent (5t) per month, or any
part thereof, on each dollar of interest and'principal so
overdue.
This note may be prepaid in whole or'in part at any time
without premium or penalty. All prepayments shall be applied
first to interest, then to principal payments in the order of
their maturity, ' ':' ' " ,
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The unders igned agrees to pay all costs and eXpenses,' ,"
including all attorney fees, for the collection of this note
upon default. All payments shall'be made with current ,rate
of exchange at the office of the holder at 1800 Oak Lane,
,Reading, Pennsylvania, 19604 or at such other place as the
holder hereo~'may from time to time designate in wr~ting.
.
At the option of the holder, this note shall become
immediately due and payable without notice or demand upon the
occurrence at any time of any of the following events: (1)
Default in anr payment of principal or interest due hereunder
not made with n thirty (30) days after the due date, ,
(2) The service upon the holder hereof of a writ in which the
holder is named as trustee of the undersigned; (3) If the
undersigned or any endorser or guarantor hereof is a
corporation, trust or partnership, the liquidation,
termination or dissolution of any such organization; (4) If
any party liable hereon, whether as maker, endorser,
guarantor, surety or otherwise shall die, make an assignment
for benefit of creditors, or if a receiver of an~ such
party's property shall be appointed, or if a petltion in
bankruptc:y or other similar proceeding und~r any law for
relief o~ debtors shall be filed by or agalnst uny such
party; (5) Death business termination or failurel '
insolvency, appoIntment of a receiver, or the fil ng of any
proceedings under any bankruptcy or other law rAlating to the
relief of debtors, of, by, or against the maker.
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Each and every party liable hereon,' either as =aker,
endorser, guarantor, surety or otherwise, hereby (11 waives
presentment, de=and, protest and notices of every k nd and
description, and,all suretyship defenses and defenses in the
nature thereof; (2) waives any defens~s based upon, and
specifically'assents to, any and all extensions and
postponements of the ti=e of payment and all other '
indulgences and forbearances which =ay be granted by the
holder to any party liable hereon! and (3) 'agrees to be
bound by all the terms contained n this note.
No delay or o=ission on the part of the holder in exercising
any right hereunder shall operate as a waiver of such right
or of any other right of such holder, nor shall any delay,
omission or waiver on anyone occasion be deemed a bar to or
waiver of the ,same or any other right on any f~ture occ~sion.
, ,
All rights and o~ligations,hereunder shall be.governed by the
laws of the Commonwealth of Pennsylvania and this note is ,
executed as and shall have the effect of a sealed instrument.
Notwithstanding"any provision herein or in any'instruments
now or hereafter securing this note, the total liability,for
payments in the nature of 'interest ,shall not exceed the,
li=itations now i=posed by the applicable laws of the state
whose laws are controlling on the subject as shall be
determined by final order of a court of competent
jurisdiction. " ; '.
Executed as a sealed instrument thi,s
'1991.
day of, April ,
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Tamdo,t,}lc?inecare of Harrisburg, Inc.
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By
Joseph Hunter, Presldent
Wltness
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, .' SENDER:
,~ . Campl,l'ltems 1 and/or 2 lor addillonal services.
. . ~818 Items 3. 48, and 4b.
!!i! . Pnnt YOU' namo and addr.ss on the reverse of this lorm so that we can relurn lhis
1: card to you.
~ . Attach lhis lorm 10 the fronl 01 the mailpiece, or on the back II space does nol
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I also wish 10 receive the
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1. 0 Addressee's Address I:
2. 0 Restricted Delivery !
Consult postmasler for fee. ii
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,.!! PS Form 3811, December 1994
10259~"..,0229 Domestic Return Receipt
EXHIBIT "C"
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PJaintiffrequests that the eorporale business continue under the direction ofa receiver ~ p. 7 of
Complaint at1b).
5. Pa. C.S.A. ~1981, the basis of Count One of the Complaint, only permits
appointment of a receiver during the involuntary winding up and dissolution of the corporation and
only when "it is beneficial to the interests of the shareholders that the corporation be wound up and
dissolved." 15 Pa. C.S.A. Seelion 1981(1), (2).
6. Receivers are appointed only in aid of some recognized, presently existing legal
right, and will not be appointed where a receivership is the sole relief asked. Bowman v. Gum. Inc.,
321 Pa. 516, 525, 184 A. 258, 262 (1936); MeDoul!all v. Huntinl!don & BroadloD. R.&C. Co., 294
Pa. 108, 117, 143 A. 574, 578 (1928).
7. Plaintiff has failed to state a cause of action under 15 Pa. C.S.A. ~ 1981 since she has
requested.Q!!!y the appointment of a receiver and not an involuntary liquidation and dissolution.
8. Plaintiff has, furthermore, failed to allege that an involuntary dissolution or winding
up is in the best interests of the shareholders of the Corporation.
9. Plaintiff's request that a receiver be appointed, while the corporation continues its
business is not recognized under the 15 Pa. C.S.A. ~ 1981.
10. A receivership, alone, is not a recognized cause of action where there is no further
legal right or remedy requested.
WHEREFORE, it is respectfully requested that Defendants' Preliminary Objections to
Count One be sustained and Count One of the Complaint be dismissed with prejudice.
OBJECTION NO.2
Legal insufficiency of Count Two of the Complaint (Demurrer)
II. The allegations of Paragraphs I through 9 are hereby incorporated by reference, as if
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VERIFICATION
[. JOSEPH HUNTER, hereby authorize that [ am the Defendant in this action; thaI [ have
read the foregoing document; that the facts stated therein are true and correct to the best of my
knowledge, information, and belief.
I understand that any false statements made herein are subject to penalties of [8 Pa. C.S.
Section 4904 relating to unsworn falsification to authorities.
DATE:
y ..~( -17
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with Certified, first.class postage prepaid, addressed to the following:
,
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LeRoy Smigel, Esquire &
Eric M. Morrison, Esquire
Smigel, Anderson & Sacks
2917 North Front Street
Harrisburg, PA 17110-1223
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By: / '" . / t .r
. Steven E. Grubb, Esquire:.
Attorney 1. D. No. 75897
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
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Attorneys for Defendants
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DATE:
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in tbtpli'"!Ite)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire c:aptioo IlIJSt be stater;! in full)
LOIS SHEAR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
VS.
JOSEPH HUN1']:;1t and
TAMDOT OF HA-'l~ISBUHG. I~C.
(Plaintiff)
(~endant)
No. 1899
Civil. LAW
19 99
1. State matter to be argued (i.e.. Plaintiff's motion for new tr:i.a1. defendant's
datm::rer to CCl11plaint. etc.):
Defendant's Preliminary Objections to Complaint
2. Identify COUl1Sel 'Nbo will argue case:
(a) for plaintiff:
Address:
Goldberg, Katzman & Shipman, P.C.
320 Market St, P.O. Box 1268
Harrisburg, PA 17108-1268
(b) for defendant:
Address:
Smigel, Anderson & Sacks
2917 N. Front St, Harrisburg, PA 17110-1223
3. I w.i.U notif'y a1l parties in writing within tl.o days that this case has
been listed for argt.ment.
4. Argunent Court Date:
May 26, 1999
PMAN, P.C.
Catecl:
.......
.
Certificate or Service
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with Certified, first-class postage prepaid, addreSSed to the following:
LeRoy Smigel, Esquire
Eric M, Morrison, Esquire
Smigel, Anderson & Sacks
2917 North Front Street
Harrisburg, P A 17110-1223
-'
DATE: 4-27-99
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LOIS G. SHEAR,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
v.
G9 - 1'8(19
No.
JOSEPH HUNTER and TAMDOT HOMECARE
OF HARRISBURG, INC.,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOT ICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action within
twenty (20) days after this Complaint and Notice are served, by entering
a written appearance personally or by attorney and filing in writing
with the Court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or
for any other claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quiere
defenderse de estas demandas expuestas en las paginas siguientes, usted
tiene viente (20) dias de plazo al partir de la facha de la demanda y la
notificacion. Usted debe presentar una apariencia escrita 0 en Persona
o por abogado y archivar en la corte en forma escrita sus defensas 0 sus
objectiones alas demandas encontra de su persona. Sea avisado que si
usted no se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso 0 notificacion y por cualquier queja 0
alivio que es pedido en la peticion de demanda. Usted puede perder
dinero 0 sus propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCllENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166 or 1-800-990-9108
'11' 1.2'~omplAl~t/EMM'Cr. 01"'/9' ~,~O~m
-
LOIS G. SHEAR,
PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
q1- /gc;9
JOSEPH HUNTER and
TAMDOT HOME CARE OF
HARRISBURG, INC.,
DEFENDANT
CIVIL ACTION - LAW
COMPLAINT FOR APPOINTMENT OF RECEIVER
PURSUANT TO 15 Pa.C.S.A. ~1981
AND NOW, comes the Plaintiff, Lois G. Shear, by and through her
attorneys, Smigel, Anderson & Sacks, and avers the following to wit:
1. Plaintiff, Lois G. Shear, is a resident of the State of
Florida, residing at One North Breakers Row, Palm Beach, Florida,
33480.
2. Defendant, Tamdot Homecare of Harrisburg, Inc., believed to
be a "C" corporation, is organized and existing under the laws of the
Commonwealth of Pennsylvania and engaged, inter alia, in the retail
business of selling and renting home medical equipment with its
principal place of business at 1011 Market Street, Lemoyne,
Pennsylvania 17043 (hereinafter the "Corporation"),
3. Defendant, Joseph Hunter, is president of the Corporation
and claims to own fifty percent (50%) of the common stock of the
Corporation (hereinafter "Hunter").
4. Plaintiff's son, Todd Shear, is believed to have been the
owner of 50% of the Corporation before his demise on July 11, 1997,
-.
as set forth in a letter dated January 17, 1984. Said letter, signed
by all shareholders of the Corporation, provides that, in the event of
Todd Shear's demise, his stock returns to his father, Norman Shear and
in the event of Norman Shear's demise, Todd Shear's stock reverts to
Plaintiff. A true and correct copy of the letter is attached hereto
as Exhibit "1" and incorporated by reference.
5. Because Norman Shear predeceased Todd Shear and Plaintiff,
Upon Todd Shear's demise, all of Todd Shear's stock reverted to the
Plaintiff.
6. Since inheriting her interest in the Corporation, Plaintiff
has been deprived her rights as a shareholder and has received no
benefit thereof as more fully and specifically set forth below.
7. Additionally, on March 7, 1991, Plaintiff and her son, Todd
Shear, were assigned a note receivable in the amount of $40,892.00
from Lois Cristinziani (hereinafter "Assignment"), A true and correct
copy of the Assignment is attached hereto as Exhibit "2" and
incorporated by reference.
8. The Assignment references a Stock Redemption and Purchase
Agreement dated March 7, 1991 which supposedly defines the terms of
the note receivable.
9. On April 26, 1991 a note receivable (hereinafter "Note") was
drafted and mailed to Hunter for his signature, A true and correct
copy of the Note and enclosure letter are attached hereto as Exhibit
"3" and incorporated by reference.
- 2 -
10. Hunter made payments, to Plaintiff, on the Note up and until
April of 1997 but, according to the amortization schedule, owes
Plaintiff $21,550.53.
11. Since Hunter defaulted under the Note and because Plaintiff
has received no benefit from being a shareholder of the Corporation,
Plaintiff, pursuant to 15 Pa.C.S.A. Section 150B, requested access to
corporate records and/or documents by a letter dated June 29, 199B. A
true and correct copy of the letter is attached hereto as Exhibit "4"
and incorporated by reference.
12. Hunter violated 15 Pa. C.S,A. Section 150B by failing to
produce, within specified time limits, for Plaintiff's examination and
inspection, the following unexhaustive list of documents:
A. The share certificates issued to the shareholders;
B. The Corporation'S Income Tax Returns from 1997 to the
present;
C. The Corporation's share register showing who the
shareholders of the Corporation are and their respective
interests in the Corporation;
D. The Corporation's records showing matter, activities
and decisions of the Corporation from 1993 to the date of review;
E. The Corporation's records showing dividends declared or
paid from 1993 to the present;
F. The Corporation'S records showing loans or advances by
the Corporation to any shareholder, officer, director or any
affiliated company and any repayment schedules;
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COUNT I
Request for Relief Under Pennsylvania Business Corporation
Law 15 Pa.C.S.A. ~1981
15. Paragraphs 1 through 14 of this Complaint are incorporated
herein by reference as if fully set forth.
15. Hunter has failed and/or refused to convene meetings of the
shareholders and directors of the Corporation and has operated the
business as if it were a sole proprietorship by, among other things,
withdrawing substantial sums from the Corporation's assets, incurring
corporate obligations and failing to inform or consult Plaintiff on
the financial condition of the Corporation, all without Plaintiff's
consent or knowledge.
17. Hunter has failed and/or neglected to abide by the
requirements of the Pennsylvania Business Corporation Law as follows:
A. 15 Pa,C.S.A. Section 1554 by failing to furnish annual
financial statements of the Corporation to the Shareholders;
B. 15 Pa.C.S.A. Section 1702 to 1708 by failing to provide
Plaintiff with notice of meetings or to secure a waiver for said
notice;
C. 15 Pa,C.S.A. Section 1755 by failing to hold meetings
of shareholders;
D. 15 Pa,C.S.A Section 1758 by conducting corporate
business and taking action on behalf of the Corporation, as more
fully described below, without minimum votes required,
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18. Hunter has breached his tiduciary duties to the shareholders
and the Corporation by ~aking money from the Corporation for his own
benefit before paying shareholder obligations.
19. Hunter has mismanaged the Corporation by operating it for
his own personal interests without taking into consideration the other
shareholders' rights.
20. If a receiver is not appointed to take charge of the assets
and the business of the Corporation, such assets will be wasted and
dissipated, the interests of the Plaintiff will be sacrificed and
Plaintiff will suffer the following irreparable harm:
A, Hunter will continue to shift corporate cash assets
into fixed assets thereby devaluing the corporation;
B. Hunter will continue to transfer corporate cash
assets into fixed assets or to his own accounts jeopardizing
the potential for acquisition of the Corporation by third
parties;
C. Hunter will continue to avoid his responsibility
to comply with the requirements of the Pennsylvania Business
Corporation Act thereby jeopardizing the company's corporate
existence and exposing the Officers, Directors, and
Shareholders, including the Plaintiff, to personal
liability;
D. Hunter's failure to act responsibly as more
specifically set forth above with respect to the transfer of
corporate assets and the disregard for the requirements of
the Pennsylvania Business Corporation Act has and will
- 6 -
jeopardize the Corporation's legal status, loss of which
would expose the shareholders of the Corporation to
unlimited liability,
THEREFORE, Plaintiff prays and reapectfully requests a decree:
A. That Plaintiff be adjudged a shareholder in Tamdot
Homecare of Harrisburg, Inc., and the Corporation be directed to
reimburse her in accordance with her ownership interest in the
Corporation and contractual rights under the Note;
B. That a Receiver be appointed pendente lite and
permanently after final hearing to administer the books,
property and assets, including good will of the Corporation,
with power under the direction of this Court to continue the
business of the Corporation;
C. That the Receiver be directed to make an
accounting of Hunter's management of the Corporation's
affairs, and that Hunter, indiVidually, be required to
render an accounting and repay all amounts inappropriately
taken from the Corporation with interest and costs of
collection;
D. That the Corporation's assets, utilized and employed by
Joseph Hunter for his personal use, be declared a constructive
trust for the benefit of the Corporation, and that Joseph Hunter
be required to account therefor;
E. That the profits of the Corporation be divided and that
Plaintiff recover an amount of the profits, retroactively, of the
- 7 -
4
action; and
Corporation as she is entitled and be paid for the cost of this
F. That Plaintiff have such other and further relief
as is just and proper.
WHEREFORE, Plaintiff requests that the Court enter its Order
setting a date, time and place for hearing, and that Hunter be cited
to appear and show cause why a Receiver should not be appointed.
Coun t II
Request for Special Relief Pursuant to Pa.R.c.p. 1530,
1533 or 1534
21. Paragraphs 1 through 20 of this Complaint are incorporated
by reference as if fully set forth.
22. This action is brought in aid of a recognized and presently
existing substantial interest which the Plaintiff holds in the
aforedescribed Corporation known as Tamdot Homecare of Harrisburg,
Inc. and in which officers, shareholders and directors of the
Corporation remain unknown due to Hunter's failure and/or refusal to
produce such documentation.
23. The Plaintiff, as a substantial owner of this business, has
a legal and equitable right to be consulted before commitments are
made for further expansion of the business, before additional debts
both long and short term are incurred, and before significant
expenditures are made.
24. This action is necessary and expedient to prevent the
irreparable harm more fully described in paragraph 16 above and for
- 8 -
which there cannot be adequate monetary compensation in that:
A, Hunter in the past has made substantial
expenditures from corporate assets for his own benefit
unrelated to company business;
B. Hunter has withdrawn significant sums from
business accounts without Plaintiff's authorization or
approval;
C. If Hunter should elect to withdraw substantial
cash amounts from the business, same would inure to the
detriment of Plaintiff's interest in the business and said
sums could not be subsequently recovered.
25. As previously set forth in paragraph 14, Hunter has
unilaterally and illegally failed to perform under the Order to Compel
Inspection of Corporate Records and/or Documents for the following
particulars:
A. Hunter has not provided the financial statements
as required. Inadequate, incomplete statements have been
supplied in a dilatory fashion, the latest statement having
come in February 3, 1998;
B, Despite an Order of Court to Compel Inspection of
the Corporation's Records and/or Documents Hunter has not
made available all the books and records requested by the
Plaintiff;
C. Hunter has unilaterally made corporate
expenditures other than ordinary and necessary business
expenses without Plaintiff's consent;
- 9 -
D. Hunter has incurred corporate obligations not in
the ordinary and nccessary course of business without
Plaintiff's consent;
26. This action is nccessary to prevent irreparable harm for
which there cannot be adequate monetary compensation in that:
A. Hunter has in the past and may in the future make
substantial expenditures from corporate assets for his own
benefit irrecoverable by the Plaintiff;
B. Hunter's actions in the past and in the future may
contribute to a lessening in the value of the corporate
asset to the Plaintiff's irreparable harm.
THEREFORE, Plaintiff requests that:
A. A current accounting be made showing the present
financial status of Tamdot Homecare of Harrisburg, Inc., its
assets and liabilities with monthly in-house generated
financial statements required thereafter;
B. A Receiver be appointed to take charge of the
assets and business of the company and collect all monies
due it;
C. A Receiver be authorized to carryon the business
of the Tamdot Homecare of Harrisburg, Inc. with power to
employ labor and management in preserving and collecting the
property and assets of the company and to make such
contracts as may be necessary to continue the business;
D. Such other relief as the Court may deem
appropriate under the circumstances,
- 10 -
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ASSIONMENT AORREMgNT
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~Iarch, 1991. Louio
and Tndd Rhoar
hereby
I.n the
defined in the
1991,
Gdotinzblll
0. Notc Receivahle
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Maroh 7,
On .dds 7th day of
/lDeigno to I,oh O. Rhe/lr
amount of $40,892.00. &3 oald Nnte Reoeivable
Stoell Redemption and purClhaoe Allreement dat.ed
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$40,892
April 26, 1991
FOR VALUE RECEIVED, the undersigned, promises to pay to the
.order of Lois G. Shear, the sum of Forty Thousand Eight
Hundred Ninety-Two ($40,892) doll!lrs together with interest
thereon !It the rate of ten and one-half (10 1/2%) percent per
annum on the unpaid principal balance, in accordance with the
following schedule:
Payments of principal and interest in the amount of $551.78
shall be due monthly beginning on May 1, 1991 and ending on
April 1, 2001.
If any payment due is not pa,idwithin fifteen (15) days of
the due date, there shall become due at the option of the
holder a late charge of five percent (5%) per month, or any
part thereof, on each dollar of interest and principal so
overdue.
This note mar be prepaid in whole or in part at any time
without premJ.um or penalty. All prepayments shall be applied
first to interest, then to principal payments in the order of
their maturity.
The undersigned agrees to pay all costs and expenses, .
including all attorney fees, for the collection of this note
upon default. All payments shall'be made with current rate
of exchange at the office of the holder at 1800 Oak Lane,
Reading', Pennsylvania, 19604 or at such other place as the
holder hereof may from time to time designate in writing.
At the option of the holder, this note shall become
immediately due and payable without notice or demand upon the
occurrence at any time of anr of the following events: (1)
Default in any payment of prJ.ncipal or interest due hereunder
not made within thirty (30) days after the due date,
(2) The service upon the holder hereof of a writ in which the
holder is named as trustee of the undersigned; (3) If the
undersigned or any endorser or ~uarantor hereof is a
corporation, trust or partnershJ.p, the liquidation,
termination or dissolution of any such organization; (4) If
any party liable hereon, whether as maker, endorser,
guarantor, surety or otherwise shall die, make an assignment
for benefit of creditors, or if a receiver of anr such
party's property shall be appointed, or if a petJ.tion in
bankruptcy or other similar ~roceeding under any law for
relief of debtors shall be fJ.led by or against any such
party; (5) Death, business termination or failure!
insolvency, appointment of a receiver, or the fil ng of any
proceedings under any bankruptcy or other law relating to the
relief of debtors, of, by, or against the maker.
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June 29, 1998
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Records showing dividends declared or paid from 1993 to the present;
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Records showing loans, or advances by.the Corporation to any shareholder,
officer, director or affiliated company and any repayment schedules;
6. Records showing salaries of all officers, directors, employees and consultants
from 1993 to the present;
7. Records showing bonuses paid to all officers, directors, employees and
consultants from 1993 to the present;
8. Records showing pension contributions made by or on behalf of all officers,
directors, employees and consultants from 1993 to the present;
9. Records showing any other remuneration paid to all officers, directors,
employees and consultants, from 1993 to the present; including reimbursement
for expenses of any kind;
10, Records showing matter, activities and decisions of the Corporation from 1993
to the date of review;
11. Corporate income tax returns for tax years 1993 to the present.
The shareholder's requests are proper within the meaning of the Business Corporation
Law where she requires such records for the following purposes, all of which are reasonably
related to her interests as a shareholder in the Corporation:
a. To determine the value of her shares in the Corporation;
b, To ascertain whether the business of the Corporation has and is being properly
managed;
c, To determine whether the expenditures of the Corporation since 1993 have
been in the best interests of the Corporation; and
d. To determine the propriety of instituting a lawsuit on behalf of the Corporation
or the shareholder against Joseph Hunter in his capacity as President of the
Corporation,
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June 29, 1998
v:r'a;k
LeRoy Smigel
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Be advised that pursuant to Section 1508(c) of the Business Corporation Law, should
the Corporation refuse to permit the inspection sought on behalf of the shareholder, or if the
Corporation fails to respond to this demand made on her behalf within five (5) business days
following receipt of this letter, the shareholder will have no recourse but to apply to the Court
of Common Pleas of Cumberland County for an order compelling the requested examination
and inspection.
LRS:EMM:tkc
Enclosure
,
LIMITED powm OF ATTORNEY FOR INSPECTION
1, Lois Shear, of ~ /i,,,~ County, Florida, a shareholder owning fifty percent (50%) of
the stock in Tamdot Homccare of Harrisburg, Inc. (the "Corporation"), appoint LeRoy Smigel,
Esquire, Harrisburg, Pennsylvania, with full power to act individually and separately as my agent
("my agent"), each with full power of substitution, for me and in my name, 10 examine the books and
records of the Corporation as more fully described in a demand letter addressed to the Corporation
dated Junc 21., 1998 and sig.lcd 0)' LcR;:,y Smlg;,::, Esq;Jirc, a ccpy vf which is attachcd hcrc:o and
incorporated herein by reference, as I might do if personally present.
This Power of Attomey shall becomc effective immediately and shall not be affected by my
subsequent disability or incapacity, All acts done by my agent pursuant to this power during any
period of my disability or incapacity shall have the same effect and inure to my benefit and bind me
and my successors in intercst as if! were competent and no disabled.
Questions pertaining to the validity, construction and powers created under this instrument
shall be determined in accordance with the laws of the Commonwealth of Pennsylvania,
I have signed this Limited Power of Attorney this / day of ~
1998, ~
orko~
Lois Shear
VERIFICATION
!, d, ~ ~u , aver that the allcgations contained in the foregoing Limited
Power of Attorney arc true and correct to the best of my knowledge, information and belief; and that
the statements in said Limited Powcr of Attorney are subject to the penalties of 18 Pa, Cons. Stat.
Ann, ~4904 relating to unsworn falsification to authorities,
Verified this
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P...~ ,1998,
f
day of
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Lois Shear
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S17~.1:2/prrlT10N TO COMPEL IN.PECT10HI~'tk~ 10/2"'. 1110...
LOIS SHEAR,
PETITIONER
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
NO.
v.
TAMDOT HOMECARE OF
HARRISBURG, INC.,
RESPONDENT
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CIVIL ACTION - LAW
-=
PETITION TO COMPEL INSPECTION OF CORPORATE_,
RECORDS AND/OR DOCUMENTS
1.
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Petitioner, Lois G. Shear, is a citizen of the State ~f
Florida, residing at One North Breakers Row, Palm Beach, Florida,
33480.
2. Respondent, Tamdot Homecare of Harrisburg, Inc., is a
corporation organized and existing under the laws of the Commonwealth
of Pennsylvania, with its principal place of business at 1011 Market
Street, Lemoyne, Pennsylvania, 17043.
3. Petitioner believes she is the owner of fifty percent (50%)
of the common stock of Respondent, Tamdot Homecare of Harrisburg,
Inc., but Respondent, by and through its President, Joseph Hunter,
claims that petitioner owns less than fifty percent (50%) of
Respondent.
4. Petitioner, by and through Petitioner's attorneys, Smigel,
Anderson & Sacks, in accordance with and pursuant to ~1508 of the
Business Corporation Law of 1988, made a written request upon
Respondent to produce for inspection and examination its corporate
books and records, as more specifically set out in a letter dated
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June 29, 1998, a true and correct copy of which (together with the
verified Power of Attorney signed by Petitioner required by 51508), is
attached hereto as Exhibit "A" and incorporl.lted by reference.
5. By letter dated July 20, 1998, a copy of which is attached
hereto as Exhibit "B" and incorporated by reference, Respondent, by
and through its PreSident, Joseph Hunter, failed to assimilate and/or
produce for inspection and examination all of the requested corporate
books and records specifically set out in the June 29, 1998 letter
from Petitioner to Respondent.
6. On or about August 5, 1998, Petitioner, by and through
Petitioner's attorneys had access to, and inspected, only a portion of
the requested records, as more specifically set out in a letter dated
August 6, 1998, a true and correct copy of which is attached hereto as
Exhibit "C" and incorporated by reference.
7. By letter dated August 11, 1998, a copy of which is attached
hereto as Exhibit "D" and incorporated by reference, Petitioner, by
and through Petitioner'S attorneys, again requested access to
Respondent's corporate books, corporate records, share register and/or
share certificates.
8. Respondent, by letter dated August 24, 1998, a copy of which
is attached hereto as Exhibit "E" and incorporated by reference,
failed to assimilate and/or provide access to the requested corporate
books, corporate records, share register and/or share certificates.
9. Petitioner's request to inspect and examine the corporate
books, records, and/or documents of Respondent is proper within the
- 2 -
.- .... ....'.
meaning of the Business Corporation Law as such request is reason!lbly
related to Petitioner's interest as a shareholder.
10. The purposes of Petitioner's request to inspect and examine
the corporate records of Respondent include, but are not limited to,
the following:
A. Determining the number and value of Petitioner's
shares;
B. Ascertaining whether the business of the
corporation has been and is being properly managed since the
death of Todd Shear, a former shareholder.
c. Determining whether the expenditures of the
Respondent since 1993 have been authorized, appropriate and
in the best interest of the corporation; and
D. Determining the propriety of instituting a lawsuit
on behalf of the Respondent against Joseph Hunter in his
capacity as President of the corporation.
11. When a shareholder seeking inspection of the share register
or list of shareholders of the corporation has complied with the
provisions of ~lS08 of the Business Corporation Law of 1988 regarding
the form and manner of making demand for inspection, that section
provides that it is the burden of the corporation to show that the
inspection is sought for an improper purpose.
12. Petitioner has complied with all requirements of ~lS08 of
the Business Corporation Law of 1988 respecting the form and manner of
making demand for inspection and examination of not only the share
register, but any and all books, corporate records and documents of
- 3 -
. - _. ....
Respondent, and the inspection sought by Petitioner is for a proper
purpose.
13. Respondent has failed to show and is unable to show that
Petitioner's request for inspection and examination of the share
register or list of shareholders, as well as all books, corporate
records and documents is for an improper purpose.
14. Petitioner has incurred the sum of Five Thousand Dollars
($5,000.00) as counsel fees, costs and expenses in connection with her
efforts to obtain the requested information to which she is legally
entitled.
WHEREFORE, Petitioner, Lois G. Shear, respectfully requests that
the Court enter an Order permitting her to inspect, examine, and copy,
if necessary, the books, COrporate records and documents of
Respondent, Tamdot Homecare of Harrisburg, Inc., within ten (10) days
of the date of the Order. And further, that Respondent pay the sum of
Two Thousand Five Hundred Dollars ($2,500.00) for counsel fees,- costs
and expenses.
SMIGEL, ANDERSON & S
Date: October~, 1998
By:
LeRoy Sm el, Esquire ID #09617
2917 North Front Street
Harrisburg, PA 17110-1223
(717) 234-2401
Attorneys for Petitioner
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VERIFICATION
I, Lois G. Shear, verify that the statements contained in
the foregoing petition to Compel Inspection of Corporate Records
and/or Documents are true and correct to the best of my knowledge.
information and belief. I understand that false statements therein
are made subjpct to the penaltip.R of 18 Pa.C.~. ~~~C4. Lela~ing to
unsworn falsification to authorities.
Date:
Nj/?j'ff
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O<~ .h: ~
LOIS ~SHEAR. Petitioner
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FILE COpy
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"EROY ....'01:1.
C. LEI: ANOe".ON
l'UA.n .. ."eK.
JOHN W. ""ON""'"
JOleftH .0 O'AMICO
ANN V LtYIN
~CATHC" O. AOyeft
CAlC .... MO.UtlION
ZQI7 NO"'.. '..OHT STfU:r.T
HARRISBURG, PENNSYLVANIA 17110.1223
17171234.2401
'noCNO.
SMIGEL, ANDERSON &; SACKS
ATTORNEYS AT LAW
'AX 171'11 1~.3ell
5178-1-2
June 29, 1998
Tamdot Homecare of Harrisburg, Inc.
Attn: Joseph Huntcr
1011 Market Strect
Lemoyne, P A 17043
" Re: Demand for Inspection
Dear Mr. Hunter:
On behalf of Lois Shear, a shareholder in Tamdot Homecare of Harrisburg, Inc, (the
"Corporation") the undersigned, pursuant to Section 1508(b) of the Business Corporation Law
of 1988, as amended, (the "Business Corporation Law") hereby makes demand upon the
Corporation to produce for examination and inspection the share register, books and records
of account, and records of the proceedings of the incorporators, shareholders and directors in
order that they may be copied or extracts taken therefrom. Enclosed with this demand is a
power of attorney vcrified by the shareholder authorizing both the undersigned counsel to act
on the shareholder's behalf in this matter,
Specifically, the shareholder demands that the Corporation immediately aIlow her or
her designees full access to the following documents in the possession or under control of the
Corporation, its directors, officers, employees and professional advisors, including its
attorney(s) and accountant(s):
1. Records of any kind including contracts, bills of sale, receipts, accounts
receivable or payable, invoices or purchase orders relating to the sale or
purchase of corporate assets in any form, and occurring at any time from 1993
to the present;
2. Records of any kind evidencing corporate ownership in any real estate from
1993 to the present;
3, Records of real estate appraisals on corporate land, buildings and plant facilities
from 1993 to the present;
EllHIRIT
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June 29, 1998
i'
4. Records showing dividends declared or paid from 1993 to the present;
5. Records showing loans, or advances by.the Corporation to any shareholder,
officer, director or affiliated company and any repayment schedules;
6. Records showing salaries of all officers, directors, employees and consultants
from 1993 to the present;
7. Records showing bonuses paid to all officers, directors, employees and
consultants from 1993 to the present;
).. ~
11. Corporate income tax returns for tax years 1993 to the present.
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8. Records showing pension contributions made by or on behalf of all officers,
directors, employees and consultants from 1993 to the present;
9. Records showing any other remuneration paid to all officers, directors,
employees and consultants, from 1993 to the present; including reimbursement
for expenses of any kind;
10. Records showing matter, activities and decisions of the Corporation from 1993
to the date of review;
The shareholder's requests are proper within the meaning of the Business Corporation
Law where she requires such records for the following purposes, all of which are reasonably
related to her interests as a shareholder in the Corporation:
a. To detennine the value of her shares in the Corporation;
b. To ascertain whether the business of the Corporation has and is being properly
managed;
c. To determine whether the expenditures of the Corporation since 1993 have
been in the best interests of the Corporation; and
d. To determine the propriety of instituting a lawsuit on behalf of the Corporation
,or the shareholder against Joseph Hunter in his capacity as President of the
Corporation.
, ..) ~.. , 1'1.
LIMITED rOWER OF ATIORNEY FOR INSPECTION
I, Lois Shear, of ~ .J?--J.- County, Florida, a shareholder owning fifty percent (50%) of
the stock in Tamdot Homecare of Harrisburg, Inc. (the "Corporation"), appoint LeRoy Smigel,
Esquire, Harrisburg, Pennsylvania, with full power to act individually and separately as my agent
("rny agent"), each with full power of substitution, for me and in my name, to examine the books and
records of the Corporation as more fully described in a demand letter addressed to the Corporation
dated JW1C.2i., 1998 and SigliCd by LcR('.y Sml~i.:l, Esq:.1irc, a cop:; of which is attach\:d h:r~:o al1d
incorporated herein by reference, as I might do if personally present.
. _ This Power of Attorney shall become effective immediately and shall not be affected by my
subsequent disability or incapacity. All acts done by my agent pursuant to this power during any
period of my disability or incapacity shall have the same effect and inure to my benefit and bind me
and my successors in interest as if I were competent and no disabled.
Questions pertaining to the validity, construction and powers created under this instrument
shall be determined in accordance with the laws of the Commonwealth of Pennsylvania,
I have signed this Limited Power of Attorney this I day of ~
1998, ~
ct'40 ~
Leis Shear
VERIFICATION
I, d. ~ ~ , aver that the allegations contained in the foregoing Limited
Power of Attorney are true and correct to the best of my knowledge, information and belief; and that
the statements in said Limited Power of Attorney are subject to the penalties of 18 Pa, Cons, Stat.
Ann, 94904 relating to unsworn falsification to authorities,
Verified this
day of (1, 11 ~ ,1998.
tJ (
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,
Lois Shear
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SMIGEL, ANDERSON & SACKS
ATTORNEYS AT LAW
FilE COPY
U"Ol' INion
C. LtC AHOCft'ON
.TUA'" .. lACK'
JOHN W. ,..o"''''c..
JoaCPH .. O'AMICO
ANN V. LeVIN
HeA THE" D. ..on..
C"'C M. MO'''''501-l
2DI7 NO"fH '''ON' Sy"CC T
HARRISBURG, PENNSYLVANIA 17110-1223
1717. Z34.2401
''''EHO.
'AX 17171.~,'.1I
5178-1-2
August 6, 1998
Tamdot Homecarc of Harrisburg, Inc,
Attn: Joseph Huntcr
1011 Market Strcet
Lemoyne, PA 17043
Re: Corporate Records
Dear Mr. Hunter:
Thank you for taking thc time out of your day to meet with Eric Morrison and me on
August 5, 1998, I apprcciate your cooperation in providing me with Tamdot Homecare, Inc.
payrolI summaries from 1996 to the present, 1993 corporate tax returns, fmancial statements
from 1993 to 1995, an accounts receivable summary sheet as of May 31,1998, along with a
1995 business valuation report prepared by Ross, Wendler & Steen, Inc., which is enclosed
with this letter. However, pursuant to my June 29, 1998 Demand for Inspection letter, you
must, under Pennsylvania law, provide me access to financial statements for 1996 to the
present, a detailed current aged accounts receivable report which shows thc name of each
account and the amount that remains uncollected, as welI as other corporate records that Stat
Medical Billing Service and/or your accountant maintains on their respective premises.
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You made representations at the August 5, 1998 meeting that Stat Medical Billing
Service was sending such records to you by the end of this week. Please contact me or Eric
Morrison immediately once you receive such documents. Time is of the essence as my client
would like to resolve this matter in a most expeditious manner.
As previously discussed, we are contacting a business broker to begin evaluating
Tamdot Homecare, Inc. for a sale, We will contact you when we can arrange a time for such
an individual to survey the premises,
EXHIBIT.
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ON 1'11/01 0:> ~'Id.ms 1WOJ' )1'1'lS'''",
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LOIS G, SHEAR,
Plaintiff
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
99-1899 CIVIL
\.
JOSEPH HUNTER and
TAMDOT HOMECARE OF
HARRlSBURG,INC"
Defendants
CIVIL ACTION - LA W
IN RE: PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER
ORDER
AND NOW, this 70. day of June, 2000, a brief argument on the plaintiffs motion
for a protective order is set for Wednesday, July 11,2000, at 3:30 p,m, in Courtroom Number 4,
Cumberland County Courthouse, Carlisle, PA,
BY THE COURT,
Eric Morrison, Esquire
For the Plaintiff
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Kevi , Hess, J,
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Steven Grubb, Esquire
For the Defendants
PRAECIPE FOR LISTING CASE FOR TRIAL
(r-tJst be typewritten cuxI sul:rnitted in dupliCAte)
ro THE PlUIHOtl1rAR'l OF ctHlERINV COUNI'Y
Please list the following case.
(Check one) for JURY trial at the next term of civil court.
X for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption lllISt be stated in full)
(check one)
LOIS G. SHEAR,
(X) Civil Action - Law
Plaintiff
Appeal fran Arbitration
(other)
(Plaintiff)
vs.
JOSEPH HUNl'ER and
TAMOOl' HCMECARE OF HARRISBURG, INC.,
Defendants
The trial list will be called on 4/02/02
and
Trials COlTIrence on
4/29/02
(Defendant)
Pretrials will be held on 4/10/02
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
vs.
No. 1899
Civil Term
19 99
Indicate the attorney who will try case for the party who files this praecipe.
LeRoy Smigel, Esquire, 2917 North Front street, Harrisburg, PA 17110-1260
ID #09617
Indicate trial counsel for other parties if known.
steven E. Grubb, 320 Market st., PO Box 1268, Harrisburg, PA 17108-1268
ID #75897
This case is ready for trial.
Signed.
I
Esquire ID 1109617
Date:
March 11 .2002
Attorney for:
Plaintiff
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LOIS G, SHEAR,
PLAINTIFF
V.
JOSEPH HUNTER and
TAM DOT HOMECARE OF
HARRISBURG, INC"
DEFENDANTS
AND NOW, this
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 99-1899 CIVIL TERM
ORDER OF COURT
l" "l--
day of March, 2002, IT IS ORDERED that a
nonjury trial shall be conducted in Courtroom Number 2, Cumberland County
Courthouse, Carlisle, Pennsylvania, at 1 :30 p,m., Monday, Allril 22, 2002,
By the Court,
,/
.' LeRoy Smigel, Esquire
For Plaintiff
,/ Steven E, Grubb, Esquire
For Defendants
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shareholder and President ofTamdot, and is allcgcd to havc operated Tamdot as if it were a sole
proprielorship by, intcr alia, sctting his salary, withdrawing substantial sums of money from the
corporate asscts without slmreholder approval, and failing to consult or infonnlhc shareholders
of the financial condition and opcration ofTamdot. Moreovcr, it is admitted that throughout the
coursc of Hunter's tenurc as prcsidcnt ofTamdot, Hunter has failed to convenc meetings of the
shareholders and directors of Tamdot.
Plaintiff also allcgcs that a Forty Thousand Eig11l Hundrcd Ninety-two ($40,892,00)
Dollar loan to Tamdot, cvidcnccd by a Notc datcd April 26, 1991, was madc by Plaintiff to
Tamdot. The Notc provides for a paymcnt schcdule that cxtends over the course often (10)
years. Although thc notc is unsigncd by Hunter, it was entcred on the books of record ofthe
corporation and he provided payments for six (6) years and then slopped making payments
because of financial trouble. Also, an Assignment Agreement dated March 7, 1991 assigned a
Note receivable in the same amount of Forty Thousand Eight Hundred Ninety-two ($40,892,00)
Dollars from Lois Christinziani to Plaintiff and her son, now deceased, Todd Shear. It is unclear
what relationship, if any, this Assignment has to the aforemcntioned Note. As provided in the
Note, payments from Tamdot began on May 1, 1991; these paymcnts were not discontinued until
after April of 1997,
Plaintiffs Complaint alleges several counts, including the request for the appointment of
a custodian, special relief, and a request for an accounting at law, Defendants' Answer with
New Maller essentially alleges that Plaintiff has never participated in the day-to-day running of
Tamdot's business, that Plaintiff has no interest in participating in the day,to-day running of the
business and that Plaintiff is only concemed with her own personal financial interests.
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II Joseph HUnlcr admits pursuant to thai tcstimony thai Lois Shcar has finy (50%) percent ofthc
Joseph Hunter provided testimony of rccord pursuant to a May 12, 1999 dcposition.
voting rights ofTamdot Corporation, that a Note was prepared for Forty Thousand Eight
Hundred Ninety-Two ($40,892,00) Dollars, and although it was nevcr signed, it was entered on
the books of record ofthc corporation and that he providcd paymcnts for six (6) ycars and then
stoppcd making payments because of financiallrouble, Hc further admits that Mrs. Shear is
entitled to those remaining payments pursuant to thc Notc, but because of alleged financial
trouble, he was unable to make them,
Joseph Hunter also admits that thcre was no Board of Dircctors and/or Shareholder
meetings in 1997, 1998, and 1999, that although the Agrecmcnt of Incorporation indicates that
he was to receive a salary of Forty Thousand ($40,000,00) Dollars, he actually takes a Sixty
Thousand ($60,000.00) Dollar salary, whercin said Agreement of Incorporation provides no
written authority to do so, Finally, Joseph Huntcr admits that he was negligent in filing
Tamdot's 1996 and 1997 tax returns which conscquently resulted in approximately Sixteen
Thousand Fifty-Four ($16,054,00) Dollars in penalties for filing late - Twelve Thousand Eight
Hundred Two ($12,802,00) Dollars in 1997 and Three Thousand Seven Hundred Twenty-One
($3,721.00) Dollars in 1996,
II. STATEMENT OF BASIC FACTS AS TO DAMAGES
Plaintiff Lois Shear is entitled to payment due and owing pursuant to an August 31, 1996
Note which calculated with interest through March 31, 2002 and late penalties as of that same
date total $98,322,14,
Further, if a custodian is not appointed to take charge of the assets and the business of the
Corporation, such assets will be wasted and dissipatcd, the intcrests of the Plaintiff will be
sacrificed nnd Plaintiff will suffer thc following irreparable haon:
A, Hunter will continue to shin corporate cash assets into fixed asscts thereby
devaluing the corporation;
8, Hunter will continue to transfer corporate cash assets into fixed
assets or 10 his own accounts jeopardizing the potential for acquisition of the
Corporation by third parties;
C. Hunter will continue to avoid his responsibility to comply with the
requirements of the Pennsylvania Business Corporation Act thereby jeopardizing
the company's corporate existence and exposing the Officers, Directors, and
Shareholders, including the Plaintiff, to personal liability,
III, STATEMENT AS TO PRINCIPAL ISSUES OF LIABILITY AND DAMAGES
This action is brought in aid of a recognized and presently existing substantial interest
which the Plaintiff holds in Corporation known as Tamdot Homecare of Harrisburg, Inc, The
principal issues of liability are:
I. Whether Joseph Hunter breached payment obligations required of him under an
August 31, 1996 Note where Hunter admits that such payments are due and owing to Plaintiffin
his May 12, 1999 deposition;
11, Whether Hunter has failed and/or refused to convene meetings of the shareholders
and directors of the Corporation and has operated the business as ifit were a sole proprietorship
shareholder and Prcsidcnt ofTamdot, and is .IIIegcd to havc operated Tamdot as ifit werc a sole
proprietorship by, inter alia, selling his salary, withdrawing substantial slims ofmoncy from thc
corporatc assets without sharcholder approval, and failing to consult or inform the shareholders
of the financial condition and opcration of Tamdot. Moreover, it is adrnilled that throughout the
course of Hunter's tenurc as president ofTamdot, Huntcr has failcd to convene mectings of the
shareholders and directors of Tamdot.
Plaintiff also alleges that a Forty Thousand Eight Hundred Ninety-two (540,892,00)
Dollar loan to Tarndot, evidenced by a Note datcd April 26, 1991, was made by Plaintiff to
Tamdol, The Note provides for a paymcnt schedule that extends over thc course often (10)
years. Although the note is unsigned by Hunter, it was entered on the books of record of the
corporation and he provided payments for six (6) years and then stopped making payments
because of financial trouble. Also, an Assignment Agreement dated March 7, 1991 assigned a
Note receivable in the same amount of Forty Thousand Eight Hundred Ninety-two ($40,892.00)
Dollars from Lois Christinziani to Plaintiff and her son, now deceased, Todd Shear. It is unclear
what relationship, if any, this Assignment has to the aforementioned Note, As provided in the
Note, payments from Tamdot began on May I, 1991; these payments were not discontinued until
after April of 1997,
Plaintiffs Complaint alleges several counts, including the request for the appointment of
a custodian, special relief, and a request for an accounting at law. Defendants' Answer with
New Matter essentially alleges that Plaintiff has never participated in the day-to-day running of
Tarndot's business, that Plaintiff has no interest in participating in the day-to-day running of the
business and that Plaintiff is only concerned with her own personal financial interests,
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by, among other things, withdrawing suhstantial sums from the Corporation's asscts, incurring
corporate obligations and failing to inform or consult Plaintiff on the financial condition of the
Corporation, all without Plaintiffs consent or knowledge;
III, Whether Hunter has failed and/or neglected to abide by the requirements of the
Pennsylvania Business Corporation Law as follows:
B, 15 Pa,C,S,A. Section 1702 to 1708 by failing to provide Plaintiff with
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A, 15 Pa,C,S,A, Section 1554 by failing to furnish annual financial
statements of the Corporation to the Shareholders;
notice of meetings or to secure a waiver for said notice;
C, 15 Pa,C,S,A. Section 1755 by failing to hold meetings of shareholders;
D, 15 Pa,C,S,A Section 1758 by conducting corporate business and taking
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action on behalf of the Corporation, without minimum votes required;
IV, Whether Hunter has breached his fiduciary duties to the shareholders and the
Corporation by taking money from the Corporation for his own benefit before paying
shareholder obligations; and
V. Whether Hunter has mismanaged the Corporation by operating it for his own
personal interests without taking into consideration the other shareholders' rights?
IV. SUMMARY OF LEGAL ISSUES REGARDING ADMISSIBILITY OF
TESTIMONY. EXHIBITS OR ANY OTHER MATTER
Plaintiff is not aware of any issues regarding the admissibility of testimony, exhibits or
other matters,
V. IDENTITY OF WITNESSES TO liE CALLED
a, Lois G, Shear rcscrves the righllo call the following wilncsscs to tcslify wilh
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respect to liability or damages, or both:
1. Lois G. Shcar
One North Breakers Row
Palm Beach, FL 33480
2. Joseph H, Huntcr
506 Gale Road
Camp Hill, PA 17011
3, Patricia A. Sarvas
4200 Danor Drive
Reading, PA 19605
4. David K. Kendal
58 East Second Street
Shillington, P A 19607
5, Gene C, Wojszwillo
RR5, Box 5924
Mohnton, PA 19540
6, Donald Stanley Pottiger
900 North 25th Street
Reading, P A 19605
b, In addition to the foregoing witnesses, Lois G. Shear reserves the right to call as
an expert:
1. John D, Sheridan, Esquire, CPA,
2080 Linglestown Road
Suite 201
Harrisburg, P A 171 10-9670
c, Lois G, Shear reserves the right to call as witnesses at trial any person identified
in the Pretrial Conference Memorandum of any other party,
VI. LIST OF EXIIIBITS
\, A letter daled January 7. 1984, evincing Todd Shear's owncrship offifly (50%)
perccnl ofTamdot Homecarc ofHarrisburg.lnc" beforc his demisc on July II, \997,
2, A Notc receivable in the amount of Forty Thousand Eight Hundred Nincty-Two
($40,892,00) Dollars from Lois Cristinziani which was assigncd to Plaintiff and her son on
March 7,1991.
3. A Note receivable that was drafled and mailed to Joseph Hunter for his signature
on April 26, 1991.
4, A letter dated June 29, 1998 addressed to Joseph Huntcr as a result of his default
under the April 26, 1991 Nole receivable providing notice of said dcfaultents of corporation,
5. All pleadings,
6, An Order to compel inspcction of corporate records and/or documents that was
issued on or about January 26,1999,
7, Tamdot financial statements from 1996 to present.
8, Minutes of August 31, 1999 meeting,
9. Documents from Hunter from an August 31,1999 meeting,
10, Tamdot business evaluation,
11, Tamdot payroll summary from 1996 to present.
12, Tamdot corporation record of 1993,
13, Tamdot tax returns from 1998 to present.
14, A January 17, 1984 letter evidencing intent of stock ownership in Tamdot.
15, A corpora Ie record showing rCllluncration paid to Officcrs, Dircctors, cmployees
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and/or consultants,
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16, A split dollar agrcemcnt dated Murch 5, 1994 betwcen Tamdot amI Joseph Hunter
for Tamdot to pay a portion of Joseph Hunlcr's lifc insurance premium,
17. A letter datcd January 6, 1998 from Lois Shear to Joseph Hunter providing notice
of default of.loscph Hunter's obligation in accordance with the terms of an April 26, 1991
Promissory Note between Tamdot Homecarc of Harrisburg, Inc, and Lois Shear,
18, A letter dated August 28, 1997 from Carl Bindman addressed to Lois Shear,
19, An Agrcement oflncorporalion dated December 10, 1983,
20, An Agreement dated Decembcr 10, 1983 between Joseph Hunter and Tamdot
corporation,
21. A letter dated January 17, 1984 regarding an Agreement signed by Norman p,
Shear, David Kendall, Gene C, Wojszwillo, Todd Shear and witnessed by Patricia A. Sarvas,
addressed to Joseph Hunter.
22, A letter dated January 17, 1984 from Norman p, Shear evidencing Todd Shear's
fifty (50%) percent ownership of TamdotIHomecare of Harrisburg in exchange for a loan he
gave Tamdot in the amount of Twenty-Seven Thousand Five Hundred ($27,500,00) Dollars for a
Judgment Note in the amount of Twelve Thousand Five Hundred ($12,500.00) Dollars,
23. A letter dated October 2, 1984 from Norman p, Shear addressed to Nathan
Silberstein, Esquire,
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24, A Ictter dated April 20, 1984 from Nonnan p, Shcar addrcsscd to Nathan
Silbcrslein, Esquirc evidcncing David Kcndall's five (5%) perccnt owncrship ofTumdot
corporation, and Gcne Wojszwillo's two (2%) pcrcent ownership ofTamdot corporation,
25, Tamdot Homccarc of Harrisburg, Inc, 's Stock Certificate dated January 17, 1984,
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authorizing five thousand (5,000) shares without par value,
26. Accounts receivable of Tam dot corporation from 1996 to present.
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27,
Deposition of David K. Kcndall datcd March 31, 2000,
28,
Deposition of Donald Stanley Pottiger dated May 12, 1999,
29, Deposition ofGcne C. Wojszwillo dated March 27, 2000,
30, Deposition of Joseph H. Hunter dated May 12, 1999,
31. Deposition of Patricia A, Sarvas dated March 3, 2000,
In addition to the foregoing Exhibits, Lois G, Shear reserves the right to introduce into
evidence all Exhibits identified in the Pre-Trial Conference Memorandum of any other party,
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:i VIII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS
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Plaintiffs current dcmand for scttlemcnt is Fifiy Thousand ($50,000,00) Dollars,
Defendants' currcnt seulemcnt offer is Forty Thousand ($40,000,00) Dollars payable over four
(4) years,
SMIGEL, ANDERSON & SACKS
Date:~'\' 0 ,
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By:
, Esquire
Supre 0 10# 09617
Keith J, Figured, Esquire
Supreme Court 10# 87443
2917 North Front Street
Harrisburg, P A 1711 0
(717) 234-2401
Attorneys for Plaintiff
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LOIS G, SHEAR,
PLAINTIFF
: IN TIlE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO, 99-1399
JOSEPH HUNTER and
T AMDOT HOMECARE OF
HARRISBURG, INC"
DEFENDANT
: CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Keith J, Figured, Esquire, hereby certify that a true and COITect copy of Plaintiffs Pretrial
Conference Statement was served upon the following as addressed below by depositing the same in the
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United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, on this ~ day of
('~ ,2002:
STEVEN E. GRUBB, ESQUIRE
320 MARKET STREET
P.O. BOX 1268
HARRISBURG,PA 17108.1268
Date: ~ <{' :}o>o.}
t
By:
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L mige, squire
Suprem Court ID#
Keith J, Figured, Esquire
Supreme Court ID# 87443
2917 North Front Street
Harrisburg, P A 1711 0
(717) 234,2401
Attorneys for Plaintiff
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