Loading...
HomeMy WebLinkAbout08-6340IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. * Plaintiff/Counterclaim Defendants * V. * TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. * Defendants/Counterclaim Plaintiffs * * * * * * * * 0 F- - G 3 Va C-' J, / fie--'M Superior Court of Fulton County, Georgia Civil Action No.: 2005-CV-99496 * * * * * * PETITION FOR LETTERS ROGATORY Jack C. Tranter, Thomas C. Dame, and the firm of Gallagher Evelius & Jones LLP, on behalf of Defendants/Counterclaim Plaintiff, Triad Health Management of Georgia, LLC ("Triad" or "Defendant"), hereby request this Court to issue Letters Rogatory in accordance with Pennsylvania law for the taking of depositions of a witness in Pennsylvania for use in the civil action pending in the State of Georgia, and to order the issuance of subpoenas duces tecum upon the deponent found within this county, and state as follows: 1. The above captioned action is currently pending in the Superior Court for Fulton County, State of Georgia, Civil Action number 2005-CV-99496. This Georgia action arises out of Mariner Health Care, Inc. and Mariner Health Care Management Company (collectively "Mariner" or "third party defendants") operating five Georgia nursing homes for more than three years as an unlawful holdover tenant. During those three years, Mariner appears to have made substantial profit on these five nursing homes. The present suit represents Triad's claim for damages for the three years it was kept from operating the five nursing homes. 2. Moreover, Mariner tried to ruin Triad's business so that Triad would be unable to occupy and operate the Facilities. The Counterclaim Defendants with the aid of several nonparties made an effort to place Triad in an involuntary bankruptcy proceeding and interfere with Triad's business and contractual relationships with vendors and lenders. These actions by the Counterclaim Defendants were improper and without privilege, done intentionally and maliciously. 3. As a result of the Counterclaim Defendants' intentional, unlawful conduct, Triad suffered lost profits and other consequential damages. Undersigned counsel has reason to believe that Anthony F. Misitano, whose business address is 3500 Market Street, Suite 202, Camp Hill, PA 17011, may possess information relevant to the matters at issue in the present case, including potential tortuous conduct of the defendants. 4. For the reasons set forth above, Triad seeks to take the videotaped, evidence deposition of Anthony F. Misitano with knowledge of the matters set forth in Exhibit A to the Subpoena For Deposition Duces Tecum, which is attached hereto as Exhibit 1 in accordance with Pa.R.C.P. No. 234.1. Triad also requests those documents identified in Exhibit A to the Subpoena. 5. For the reasons set forth above, Triad also seeks to take the videotaped, evidence deposition of Anthony F. Misitano in his role as the managing member of Pinehurst Medical, LLC with knowledge of the matters set forth in Exhibit A to the Subpoena For Deposition Duces Tecum, which is attached hereto as Exhibit 2 in accordance with Pa.R.C.P. No. 234.1. Triad also requests those documents identified in Exhibit A to the Subpoena. 6. Triad, on behalf of Jack C. Tranter, Thomas C. Dame, and the firm of Gallagher Evelius & Jones LLP, requests this Court, in this county where the deponent resides and/or has a # 366248 place of employment, to issue letters rogatory in accordance with Pennsylvania law for the taking of depositions of Anthony F. Misitano, personally, and in his role as the managing member of Pinehurst Medical, LLC, in Pennsylvania for use in the civil action pending in the Superior Court for Fulton County, State of Georgia, and to order the issuance of two subpoena duces tecum requiring the appearance of said deponent to appear for the depositions duces tecum. WHEREFORE, Defendant/Counterclaim Plaintiff, Triad Health Management of Georgia, LLC requests this Court to issue letters rogatory in accordance with Pennsylvania law for the taking of depositions of a witness in Pennsylvania for use in the civil action currently pending in the Superior Court for Fulton County, State of Georgia, and to order the issuance of two subpoenas duces tecum upon the deponent requiring his appearance for depositions duces tecum, an d to include a request for those documents identified in Exhibit A to the Subpoenas, which are attached hereto as Exhibits 1 and 2, and incorporated herein, and for such other relief as this Court deems just. # 366248 Respegt submitted, Jack C. Tranter Thomas C. Dame Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, MD 21201 (410) 727-7702 (admitted pro hac vice Fulton County, Georgia) Attorneys for Defendants/Counterclaim Plaintiff Triad Health Management of Georgia, LLC Dated: October 23, 2008 # 366248 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/AUSTELL, INC. Plaintiff/Counterclaim Defendants File No. ©t,` G 3 YO c-,rvi v. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs SUBPOENA TO ATTEND AND TESTEFY TO: Anthony F. Misitano 3500 Market Street, Suite 202 Camp Hill. PA 17011 1. You are ordered by the court to come to Geiger & Loria Reporting Service, 2408 Park Drive, Suite B, Harrisburg, PA 17110 (Specify Courtroom or other place) at Harrisburg Cumberland County, Pennsylvania, on November 14, 2008 at 9: 00 o'clock, A. M,. to testify on behalf of your knowledge of the matters set forth in the attached Exhibit A in the above case, and to remain until excused 2. And bring with you the following: See attached documents identified in Exhibit A. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Notice: Your testimony shall be taken before a certified stenographic reporter and recorded by ?a videotape operator. REQUESTED BY A PARTY/ATTORNEY IN COIvI1 LkNCE WITH Pa.R.CYNo.734.2(a): Name. Thomas C. Dame, Esq. Address: Gallagher Evelius & Jones LLP 218 N. Charles St, Ste 400, Baltimore, Telephone: (410) 727-7702 Supreme Court ID # Date: ft" 00-88 IN-1008OWN Toff MD 21201 00%W a L. aft ft" a p ftv" 240 F wk Dr. HW id urg PA 17110 BY THE COURT: Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in crnmection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) EXHIBIT 1 Prothonotary/Clerk, Civil Division EXHIBIT A DEPOSITION DUCES TECEW OF ANTHONY F. MISITANO 1. The terms "Brian Center Nursing Care/Austell, Inc." or "Brian Center" means and includes Counterclaim Defendant Brian Center Nursing Care/Austell, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Brian Center's behalf. 2. The term "Mariner Health Care, Inc." or "Mariner" means and includes Counterclaim Defendant Mariner Health Care, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner's behalf. 3. The term "Mariner Health Care Management Company" means and includes Counterclaim Defendant Mariner Health Care Management Company, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner Health Care Management's behalf. 4. The term "Sava Senior Care" or "Sava" means and includes Sava Senior Care, SavaSeniorCare, LLC, and/or SavaSeniorCare Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Sava who may be acting or purporting to act on Sava's behalf. # 366248 5. The term "Millennium" or "Millennium Administrative" means and includes Millennium Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millennium's behalf. 6. The term "Millennium Management" or "Millenium Healthcare" means and includes Millenium Healthcare Management, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millenium Healthcare's behalf. 7. The term "Family Senior Care LLC", "Family Senior Care Holdings LLC" or "Family Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Family Senior Care who may be acting or purporting to act on Family Senior Care's behalf. 8. The term "Dynamic Senior Care Holdings LLC" or "Dynamic Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Dynamic Senior Care who may be acting or purporting to act on Dynamic Senior Care's behalf. 9. The term "ABCO Holdings, Inc", "ABCO Holding, Inc" or "ABCO" means and includes its employees, representatives, investigators, agents, attorneys or any other person in # 366248 possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO who may be acting or purporting to act on ABCO's behalf. 10. The term "ABCO Jeffersonville Operating Company LLC" or "ABCO Jeffersonville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them. or on their behalf, or any other person known to ABCO Jeffersonville who may be acting or purporting to act on ABCO Jeffersonville's behalf. 11. The term "ABCO Lagrange Operating Company LLC" or "ABCO Lagrange" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lagrange who may be acting or purporting to act on ABCO Lagrange's behalf. 12. The term "ABCO Lumber City Operating LLC" or "ABCO Lumber City" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lumber City who may be acting or purporting to act on ABCO Lumber City's behalf. 13. The term "ABCO Thomasville Operating LLC" or "ABCO Thomasville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Thomasville who may be acting or purporting to act on ABCO Thomasville's behalf. # 366248 14. The term "ABCO Powder Springs Operating LLC" or "ABCO Powder Springs" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Powder Springs who may be acting or purporting to act on ABCO Powder Springs' behalf. 15. The term "National Senior Care, Inc." or "National Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to National Senior Care who may be acting or purporting to act on National Senior Care's behalf. 16. The term "Triad Health Management of Georgia, LLC" or "Triad" means and includes Counterclaim Plaintiffs, their affiliates, employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Triad who may be acting or purporting to act on Triad's behalf. 17. The term "Counterclaim Defendants" means and includes Brian Center Nursing Care/Austell, Inc., Mariner Health Care, Inc., and Mariner Health Care Management Company, Boyd Gentry, Harry Grunstein, and Clarence "Butch" Shelton, jointly or severally. 18. The term "Counterclaim Plaintiffs" means and includes Triad Health Management of Georgia, LLC, Triad at LaGrange, LLC, Triad at Lumber City, LLC, Triad of Thomasville, LLC, and Triad of Jeffersonville, LLC. # 366248 19. The term "Facilities" means and includes five nursing facilities previously leased by William M. Foster to Brian Center and located in Jeffersonville, LaGrange, Lumbar City, Powder Springs and Thomasville, Georgia. 20. The term "document" shall mean any original and all copies of any written, printed, typed, photocopied, photographic or reproduced, including without being limited to, all reports, contracts, diaries, calendars, statements, affidavits, desk pads, correspondence, communications, e-mail, telegrams, teletypes, memoranda, notes, bills, work papers, journals, studies, drawings, graphs, charts, photographs, films, slides, magnetic and electronic recordings, sound recordings, lists, minutes and entries in books of account relating or inferring in any way to the subject matter of this request, and other data compilation from which information can be obtained and translated, if necessary, through detective devices into reasonably usable form. The term "Document" shall also mean any and all computer records, data and information of whatever kind whether printed out or stored on or retrievable from any floppy diskette, compact diskette, magnetic tape, optical or magnetic-optical disk, hard drive or rapid access memory, including without limitation, all back-up copies, undeleted data, and dormant or remnant files. 21. The term "communication" means any written, oral or electronic conversation, interactions, meetings, telephone conversations, emails, letters, contact, promise, threat, representation, exchange, or inducement of which Sava has any knowledge or information, whether internal or external. 22. The term "Fiscal Year" or "Fiscal Years" means the twelve-month period or periods ending June 30''* 23. The singular and plural shall be construed interchangeably herein. 24. As used herein, the words "or" and "and" shall mean "and/or." # 3W248 [1.1:61 Jul N : XIIIJ -jV ? You are directed to make available the following requested documents at the time of your deposition. To expedite your deposition, you may want to forward the following documents to Thomas C. Dame on or before November 12, 2008. Please call Mr. Dame at 410-727-7702 to arrange for delivery of the documents. A reasonable copying and shipping charge will be paid on request. 1. Any and all documents related to your involvement in any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. 2. Any and all documents related to your involvement with any of the following entities with regard to efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Millennium, Millennium Management, Sava Senior Care, National Senior Care, Family Senior Care, Dynamic Senior Care, or any of the ABCO entities. 3. Any and all documents related to your involvement with any of the following persons with regard efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. 4. Any and all documents related to any communication with creditors or vendors of Triad concerning any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. # 366248 5. Any and all documents related to the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 6. Any and all documents related to your involvement in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 7. Any and all documents related to the involvement of the following persons in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Harry Grunstein, William Foster, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. # 366248 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/AUSTELL, INC. Plaintiff/Counterclaim Defendants . File No. V. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs SUBPOENA TO ATTEND AND TESTIFY TO: Anthony F. Misitano, as managing member of Pinehurst Medical. LLC 12 Maybelle Court Mechanicsburg, PA 17050 1. You are ordered by the court to come to Geiger & Loria Reporting Service, 2408 Park Drive, Suite B, Harrisburg, PA 17110 (Specify Courtroom or other place) atHarrisburg, Cumberland County, Pennsylvania, on November 14. 2008 at 1:00 o'clock, _P .M,. to testify on behalf of your knowledge of the matters set forth in the attached Exhibit A in the above case, and to remain until excused. 2. And bring with you the following: See attached documents identified in Exhibit A. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Notice: Your testimony shall,be taken.before a_certified stenographic Name: Thomas C. Dame, Esq. Address: Gallagher Evelius & Jones LLP 218 N. Charles St, Ste 400, Baltimore, Telephone: (410)727-7702 Supreme Court ID # Date: [ANCE WI'M N.LCY14o.234.2(s): 1 WW Toff GWW i Left PApwfk? Swvioo MD 21201 2409 PWk Dr. 3uiN IiorriNtp PA 17110 BY THE COURT: Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. RC.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) EXHIBIT Prothonotary/Clerk, Civil Division EXHIBIT A DEPOSITION DUCES TECUM OF ANTHONY F. MISITANO AS THE MANAGING MEMBER OF PINEHURST MEDICAL, LLC DEFE41TIONS 1. The terms "Brian Center Nursing Care/Austell, Inc." or "Brian Center" means and includes Counterclaim Defendant Brian Center Nursing Care/Austell, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Brian Center's behalf. 2. The term "Mariner Health Care, Inc." or "Mariner" means and includes Counterclaim Defendant Mariner Health Care, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner's behalf. 3. The term "Mariner Health Care Management Company" means and includes Counterclaim Defendant Mariner Health Care Management Company, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner Health Care Management's behalf. 4. The term "Sava Senior Care" or "Sava" means and includes Sava Senior Care, SavaSeniorCare, LLC, and/or SavaSeniorCare Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Sava who may be acting or purporting to act on Sava's behalf. # 366248 5. The term "Millennium" or "Millennium Administrative" means and includes Millennium Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millennium's behalf. 6. The term "Millennium Management" or "Millenium Healthcare" means and includes Millenium Healthcare Management, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millenium Healthcare's behalf. 7. The term "Family Senior Care LLC", "Family Senior Care Holdings LLC" or "Family Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Family Senior Care who may be acting or purporting to act on Family Senior Care's behalf. 8. The term "Dynamic Senior Care Holdings LLC" or "Dynamic Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Dynamic Senior Care who may be acting or purporting to act on Dynamic Senior Care's behalf. 9. The term "ABCO Holdings, Inc", "ABCO Holding, Inc" or "ABCO" means and includes its employees, representatives, investigators, agents, attorneys or any other person in # 3W248 possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO who may be acting or purporting to act on ABCO's behalf. 10. The term "ABCO Jeffersonville Operating Company LLC" or "ABCO Jeffersonville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Jeffersonville who may be acting or purporting to act on ABCO Jeffersonville's behalf. 11. The term "ABCO Lagrange Operating Company LLC" or "ABCO Lagrange" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lagrange who may be acting or purporting to act on ABCO Lagrange's behalf. 12. The term "ABCO Lumber City Operating LLC" or "ABCO Lumber City" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lumber City who may be acting or purporting to act on ABCO Lumber City's behalf. 13. The term "ABCO Thomasville Operating LLC" or "ABCO Thomasville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Thomasville who may be acting or purporting to act on ABCO Thomasville's behalf. # 3W248 14. The term "ABCO Powder Springs Operating LLC" or "ABCO Powder Springs" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Powder Springs who may be acting or purporting to act on ABCO Powder Springs' behalf. 15. The term "National Senior Care, Inc." or "National Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to National Senior Care who may be acting or purporting to act on National Senior Care's behalf. 16. The term "Triad Health Management of Georgia, LLC" or "Triad" means and includes Counterclaim Plaintiffs, their affiliates, employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Triad who may be acting or purporting to act on Triad's behalf. 17. The term "Counterclaim Defendants" means and includes Brian Center Nursing Care/Austell, Inc., Mariner Health Care, Inc., and Mariner Health Care Management Company, Boyd Gentry, Harry Grunstein, and Clarence "Butch" Shelton, jointly or severally. 18. The term "Counterclaim Plaintiffs" means and includes Triad Health Management of Georgia, LLC, Triad at LaGrange, LLC, Triad at Lumber City, LLC, Triad of Thomasville, LLC, and Triad of Jeffersonville, LLC. # 3W248 19. The term "Facilities" means and includes five nursing facilities previously leased by William M. Foster to Brian Center and located in Jeffersonville, LaGrange, Lumbar City, Powder Springs and Thomasville, Georgia. 20. The term "document" shall mean any original and all copies of any written, printed, typed, photocopied, photographic or reproduced, including without being limited to, all reports, contracts, diaries, calendars, statements, affidavits, desk pads, correspondence, communications, e-mail, telegrams, teletypes, memoranda, notes, bills, work papers, journals, studies, drawings, graphs, charts, photographs, films, slides, magnetic and electronic recordings, sound recordings, lists, minutes and entries in books of account relating or inferring in any way to the subject matter of this request, and other data compilation from which information can be obtained and translated, if necessary, through detective devices into reasonably usable form. The term "Document" shall also mean any and all computer records, data and information of whatever kind whether printed out or stored on or retrievable from any floppy diskette, compact diskette, magnetic tape, optical or magnetic-optical disk, hard drive or rapid access memory, including without limitation, all back-up copies, undeleted data, and dormant or remnant files. 21. The term "communication" means any written, oral or electronic conversation, interactions, meetings, telephone conversations, emails, letters, contact, promise, threat, representation, exchange, or inducement of which Sava has any knowledge or information, whether internal or external. 22. The term "Fiscal Year" or "Fiscal Years" means the twelve-month period or periods ending June 30t'- 23. The singular and plural shall be construed interchangeably herein. 24. As used herein, the words "or" and "and" shall mean "and/or." # 388248 DOCUMENTS REQUESTED You are directed to make available the following requested documents at the time of your deposition. To expedite your deposition, you may want to forward the following documents to Thomas C. Dame on or before November 12, 2008. Please call Mr. Dame at 410-727-7702 to arrange for delivery of the documents. A reasonable copying and shipping charge will be paid on request. 1. Any and all documents related to your involvement in any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. 2. Any and all documents related to your involvement with any of the following entities with regard to efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Millennium, Millennium Management, Sava Senior Care, National Senior Care, Family Senior Care, Dynamic Senior Care, or any of the ABCO entities. 3. Any and all documents related to your involvement with any of the following persons with regard efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. 4. Any and all documents related to any communication with creditors or vendors of Triad concerning any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. # W6248 5. Any and all documents related to the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 6. Any and all documents related to your involvement in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 7. Any and all documents related to the involvement of the following persons in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Harry Grunstein, William Foster, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. # 3N248 n IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. Plaintiff/Counterclaim Defendants V. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs * * * * * * * * * * * Superior Court of Fulton County, Georgia * Civil Action No.: 2005-CV-99496 * * * * * * * * * * * * CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of October, 2008 a copy of the foregoing Petition for Letters Rogatory was mailed first class, postage pre-paid, to: Christopher P. Galanek, Esq. Jennifer B. Dempsey, Esq. Ashley Palermo, Esq. Powell, Goldstein, Frazer & Murphy, LLP One Atlantic Center - Fourteenth Floor 1201 West Peachtree St., NW Atlanta, GA 30309-3488 Thomas E. Reilly, Esq. Troutman Sanders LLP 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308-2216 Jack C. Tranter Thomas C. Dame Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, MD 21201 (410) 727-7702 (admitted pro hac vice Fulton County, Georgia) Attorneys for Defendants/Counterclaim Plaintiff Triad Health Management of Georgia, LLC # 3W248 -6M 00 IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. * Plaintiff/Counterclaim Defendants * V. * TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. * Defendants/Counterclaim Plaintiffs * * * * * * * * Superior Court of Fulton County, Georgia Civil Action No.: 2005-CV-99496 * * * * * * AMENDED PETITION FOR LETTERS ROGATORY Jack C. Tranter, Thomas C. Dame, and the firm of Gallagher Evelius & Jones LLP, on behalf of Defendants/Counterclaim Plaintiff, Triad Health Management of Georgia, LLC ("Triad" or "Defendant"), hereby request this Court to issue Letters Rogatory in accordance with Pennsylvania law for the taking of depositions of a witness in Pennsylvania for use in the civil action pending in the State of Georgia, and to order the issuance of subpoenas duces tecum upon the deponent found within this county, and state as follows: 1. The above captioned action is currently pending in the Superior Court for Fulton County, State of Georgia, Civil Action number 2005-CV-99496. This Georgia action arises out of Mariner Health Care, Inc. and Mariner Health Care Management Company (collectively "Mariner" or "third party defendants") operating five Georgia nursing homes for more than three years as an unlawful holdover tenant. During those three years, Mariner appears to have made substantial profit on these five nursing homes. The present suit represents Triad's claim for damages for the three years it was kept from operating the five nursing homes. 2. Moreover, Mariner tried to ruin Triad's business so that Triad would be unable to occupy and operate the Facilities. The Counterclaim Defendants with the aid of several nonparties made an effort to place Triad in an involuntary bankruptcy proceeding and interfere with Triad's business and contractual relationships with vendors and lenders. These actions by the Counterclaim Defendants were improper and without privilege, done intentionally and maliciously. 3. As a result of the Counterclaim Defendants' intentional, unlawful conduct, Triad suffered lost profits and other consequential damages. Undersigned counsel has reason to believe that Anthony F. Misitano, whose business address is 3500 Market Street, Suite 202, Camp Hill, PA 17011, may possess information relevant to the matters at issue in the present case, including potential tortuous conduct of the defendants. 4. For the reasons set forth above, Triad seeks to take the videotaped, evidence deposition of Anthony F. Misitano with knowledge of the matters set forth in Exhibit A to the Subpoena For Deposition Duces Tecum, which is attached hereto as Exhibit 1 in accordance with Pa.R.C.P. No. 234.1. Triad also requests those documents identified in Exhibit A to the Subpoena. 5. For the reasons set forth above, Triad also seeks to take the videotaped, evidence deposition of Anthony F. Misitano in his role as the managing member of Pinehurst Medical, LLC with knowledge of the matters set forth in Exhibit A to the Subpoena For Deposition Duces Tecum, which is attached hereto as Exhibit 2 in accordance with Pa.R.C.P. No. 234.1. Triad also requests those documents identified in Exhibit A to the Subpoena. 6. A Commission has been issued by the Superior Court for Fulton County, State of Georgia, and is attached hereto as Exhibit 3. # 366248 7. Triad, on behalf of Jack C. Tranter, Thomas C. Dame, and the firm of Gallagher Evelius & Jones LLP, requests this Court, in this county where the deponent resides and/or has a place of employment, to issue letters rogatory in accordance with Pennsylvania law for the taking of depositions of Anthony F. Misitano, personally, and in his role as the managing member of Pinehurst Medical, LLC, in Pennsylvania for use in the civil action pending in the Superior Court for Fulton County, State of Georgia, and to order the issuance of two subpoena duces tecum requiring the appearance of said deponent to appear for the depositions duces tecum. 8. Pursuant to Local Rule 208.3(a), counsel for Counterclaim Plaintiff contacted counsel for Counterclaim Defendants by email on October 30, 2008 in an effort to seek concurrence to the relief requested in this Petition. Counsel for Counterclaim Defendants does not oppose this Petition. WHEREFORE, Defendant/Counterclaim Plaintiff, Triad Health Management of Georgia, LLC requests this Court to issue letters rogatory in accordance with Pennsylvania law for the taking of depositions of a witness in Pennsylvania for use in the civil action currently pending in the Superior Court for Fulton County, State of Georgia, and to order the issuance of two subpoenas duces tecum upon the deponent requiring his appearance for depositions duces tecum, and to include a request for those documents identified in Exhibit A to the Subpoenas, which are attached hereto as Exhibits 1 and 2, and incorporated herein, and for such other relief as this Court deems just. # 366248 Respectfully submitted, Jack C. Tranter Thomas C. Dame Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, MD 21201 (410) 727-7702 (admitted pro hac vice Fulton County, Georgia) Attorneys for Defendants/Counterclaim Plaintiff Triad Health Management of Georgia, LLC Dated: October 31, 2008 # 366248 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/AUSTELL, INC. Plaintiff/Counterclaim Defendants . File No. v. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs SUBPOENA TO ATTEND AND TESTIFY TO: Anthony F. Misitano 3500 Market Street, Suite 202 Camp Hill. PA 17011 1. You are ordered by the court to come to Geiger & Loria Reporting Service, 2408 Park Drive, Suite B, Harrisburg, PA 17110 (Specify Courtroom or other place) at Harrisb.urg? Cumberland County, Pennsylvania, on November 14, 2008 at 9: 00 o'clock, A. M,. to testify on behalf of your knowledge of the matters set forth in the attached Exhibit A in the above case, and to remain until excused. 2. And bring with you the following: See attached documents identified in Exhibit A. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Notice: Your testimony shall be taken before a certified stenographic reporter and recorded by a videotape ?o?pperator. REQUESTED BY A PARTWATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Thomas C. Dame, Esq. Address: Gallagher Evelius & Jones LLP 218 N. Charles St, Ste 400, Baltimore, Telephone: (410) 727-7702 Supreme Court ID # Helena Bowes-Stenographer Ton• Pizzillo-Videographer Geiger & Loria Reporting Service MD 21201 2408 Park Dr. Suite B Harrisburg PA 17110 BY THE COURT: Date: Prothonotary/Clerk, Civil Division Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7197) EXHIBIT EXHIBIT A DEPOSITION DUCES TECUM OF ANTHONY F. MISITANO DEFINITIONS 1. The terms "Brian Center Nursing Care/Austell, Inc." or "Brian Center" means and includes Counterclaim Defendant Brian Center Nursing Care/Austell, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Brian Center's behalf. 2. The term "Mariner Health Care, Inc." or "Mariner" means and includes Counterclaim Defendant Mariner Health Care, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner's behalf. 3. The term "Mariner Health Care Management Company" means and includes Counterclaim Defendant Mariner Health Care Management Company, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner Health Care Management's behalf. 4. The term "Sava Senior Care" or "Sava" means and includes Sava Senior Care, SavaSeniorCare, LLC, and/or SavaSeniorCare Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Sava who may be acting or purporting to act on Sava's behalf. # 366248 5. The term "Millennium" or "Millennium Administrative" means and includes Millennium Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millennium's behalf. 6. The term "Millennium Management" or "Millenium Healthcare" means and includes Millenium Healthcare Management, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millenium Healthcare's behalf 7. The term "Family Senior Care LLC", "Family Senior Care Holdings LLC" or "Family Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Family Senior Care who may be acting or purporting to act on Family Senior Care's behalf. 8. The term "Dynamic Senior Care Holdings LLC" or "Dynamic Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Dynamic Senior Care who may be acting or purporting to act on Dynamic Senior Care's behalf. 9. The term "ABCO Holdings, Inc", "ABCO Holding, Inc" or "ABCO" means and includes its employees, representatives, investigators, agents, attorneys or any other person in # 366248 possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO who may be acting or purporting to act on ABCO's behalf. 10. The term "ABCO Jeffersonville Operating Company LLC" or "ABCO Jeffersonville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Jeffersonville who may be acting or purporting to act on ABCO Jeffersonville's behalf. 11. The term "ABCO Lagrange Operating Company LLC" or "ABCO Lagrange" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lagrange who may be acting or purporting to act on ABCO Lagrange's behalf. 12. The term "ABCO Lumber City Operating LLC" or "ABCO Lumber City" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lumber City who may be acting or purporting to act on ABCO Lumber City's behalf. 13. The term "ABCO Thomasville Operating LLC" or "ABCO Thomasville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to A13CO Thomasville who may be acting or purporting to act on ABCO Thomasville's behalf. # 366248 14. The term "ABCO Powder Springs Operating LLC" or "ABCO Powder Springs" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Powder Springs who may be acting or purporting to act on ABCO Powder Springs' behalf. 15. The term "National Senior Care, Inc." or "National Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to National Senior Care who may be acting or purporting to act on National Senior Care's behalf. 16. The term "Triad Health Management of Georgia, LLC" or "Triad" means and includes Counterclaim Plaintiffs, their affiliates, employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Triad who may be acting or purporting to act on Triad's behalf. 17. The term "Counterclaim Defendants" means and includes Brian Center Nursing Care/Austell, Inc., Mariner Health Care, Inc., and Mariner Health Care Management Company, Boyd Gentry, Harry Grunstein, and Clarence "Butch" Shelton, jointly or severally. 18. The term "Counterclaim Plaintiffs" means and includes Triad Health Management of Georgia, LLC, Triad at LaGrange, LLC, Triad at Lumber City, LLC, Triad of Thomasville, LLC, and Triad of Jeffersonville, LLC. # 366248 19. The term "Facilities" means and includes five nursing facilities previously leased by William M. Foster to Brian Center and located in Jeffersonville, LaGrange, Lumbar City, Powder Springs and Thomasville, Georgia. 20. The term "document" shall mean any original and all copies of any written, printed, typed, photocopied, photographic or reproduced, including without being limited to, all reports, contracts, diaries, calendars, statements, affidavits, desk pads, correspondence, communications, e-mail, telegrams, teletypes, memoranda, notes, bills, work papers, journals, studies, drawings, graphs, charts, photographs, films, slides, magnetic and electronic recordings, sound recordings, lists, minutes and entries in books of account relating or inferring in any way to the subject matter of this request, and other data compilation from which information can be obtained and translated, if necessary, through detective devices into reasonably usable form. The term "Document" shall also mean any and all computer records, data and information of whatever kind whether printed out or stored on or retrievable from any floppy diskette, compact diskette, magnetic tape, optical or magnetic-optical disk, hard drive or rapid access memory, including without limitation, all back-up copies, undeleted data, and dormant or remnant files. 21. The term "communication" means any written, oral or electronic conversation, interactions, meetings, telephone conversations, emails, letters, contact, promise, threat, representation, exchange, or inducement of which Sava has any knowledge or information, whether internal or external. 22. The term "Fiscal Year" or "Fiscal Years" means the twelve-month period or periods ending June 30th. 23. The singular and plural shall be construed interchangeably herein. 24. As used herein, the words "or" and "and" shall mean "and/or." # 366248 DOCUMENTS REQUESTED You are directed to make available the following requested documents at the time of your deposition. To expedite your deposition, you may want to forward the following documents to Thomas C. Dame on or before November 12, 2008. Please call Mr. Dame at 410-727-7702 to arrange for delivery of the documents. A reasonable copying and shipping charge will be paid on request. 1. Any and all documents related to your involvement in any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. 2. Any and all documents related to your involvement with any of the following entities with regard to efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Millennium, Millennium Management, Sava Senior Care, National Senior Care, Family Senior Care, Dynamic Senior Care, or any of the ABCO entities. 3. Any and all documents related to your involvement with any of the following persons with regard efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. 4. Any and all documents related to any communication with creditors or vendors of Triad concerning any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. # 366248 5. Any and all documents related to the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 6. Any and all documents related to your involvement in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 7. Any and all documents related to the involvement of the following persons in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Harry Grunstein, William Foster, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. # 366248 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/AUSTELL, INC. Plaintiff/Counterclaim Defendants V. File No. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs SUBPOENA TO ATTEND AND TESTIFY TO: Anthony F. Misitano, as managing member of_Pinehurst_Medical. LLC 12 Maybelle Court Mechanicsburg, PA 17050 1. You are ordered by the court to come to Geiger & Loria Reporting Service, 2408 Park Drive, Suite B, Harrisburg, PA 17110 (Specify Courtroom or other place) atHarrisburg, Cumberland County, Pennsylvania, on November 14. 2008 at 1:00 o'clock, P .M,. to testify on behalf of your knowledge of the matters set forth in the attached Exhibit A in the above case, and to remain until excused. 2. And bring with you the following: See attached documents identified in Exhibit A. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania. Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. Notice: Your testimony shall dbbe taken before a certified stenographic REQUESTED B' A PAR-fWf W% RNTC 'LIANG ? a.RC.P.No.234.2(a): Helena Bowes-Stenographer Name: Thomas C. Dame, Esq. TorrPizzillo-Videographer Address: Gallagher Evelius & Jones LLP Geiger & Loria Reporting Service 218 N. Charles St, Ste 400, Baltimore, MD 21201 2408 Park Dr. Suite B Telephone: _(410)727-7702 Harrisburg PA 17110 Supreme Court ID # --- - - ---- BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) EXHIBIT EXHIBIT A DEPOSITION DUCES TECUM OF ANTHONY F. MISITANO AS THE MANAGING MEMBER OF PINEHURST MEDICAL, LLC DEFINITIONS 1. The terms "Brian Center Nursing Care/Austell, Inc." or "Brian Center" means and includes Counterclaim Defendant Brian Center Nursing Care/Austell, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Brian Center's behalf. 2. The term "Mariner Health Care, Inc." or "Mariner" means and includes Counterclaim Defendant Mariner Health Care, Inc., its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner's behalf. 3. The term "Mariner Health Care Management Company" means and includes Counterclaim Defendant Mariner Health Care Management Company, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Brian Center who may be acting or purporting to act on Mariner Health Care Management's behalf. 4. The term "Sava Senior Care" or "Sava" means and includes Sava Senior Care, SavaSeniorCare, LLC, and/or SavaSeniorCare Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Sava who may be acting or purporting to act on Sava's behalf. # 366248 5. The term "Millennium" or "Millennium Administrative" means and includes Millennium Administrative Services, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millennium's behalf. 6. The term "Millennium Management" or "Millenium Healthcare" means and includes Millenium Healthcare Management, LLC, its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Millennium who may be acting or purporting to act on Millenium Healthcare's behalf. 7. The term "Family Senior Care LLC", "Family Senior Care Holdings LLC" or "Family Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Family Senior Care who may be acting or purporting to act on Family Senior Care's behalf. 8. The term "Dynamic Senior Care Holdings LLC" or "Dynamic Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Dynamic Senior Care who may be acting or purporting to act on Dynamic Senior Care's behalf. 9. The term "ABCO Holdings, Inc", "ABCO Holding, Inc" or "ABCO" means and includes its employees, representatives, investigators, agents, attorneys or any other person in # 366248 possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO who may be acting or purporting to act on ABCO's behalf. 10. The term "ABCO Jeffersonville Operating Company LLC" or "ABCO Jeffersonville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Jeffersonville who may be acting or purporting to act on ABCO Jeffersonville's behalf. 11. The term "ABCO Lagrange Operating Company LLC" or "ABCO Lagrange" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lagrange who may be acting or purporting to act on ABCO Lagrange's behalf. 12. The term "ABCO Lumber City Operating LLC" or "ABCO Lumber City" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Lumber City who may be acting or purporting to act on ABCO Lumber City's behalf. 13. The term "ABCO Thomasville Operating LLC" or "ABCO Thomasville" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Thomasville who may be acting or purporting to act on ABCO Thomasville's behalf. # 366248 14. The term "ABCO Powder Springs Operating LLC" or "ABCO Powder Springs" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to ABCO Powder Springs who may be acting or purporting to act on ABCO Powder Springs' behalf. 15. The term "National Senior Care, Inc." or "National Senior Care" means and includes its employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to National Senior Care who may be acting or purporting to act on National Senior Care's behalf. 16. The term "Triad Health Management of Georgia, LLC" or "Triad" means and includes Counterclaim Plaintiffs, their affiliates, employees, representatives, investigators, agents, attorneys or any other person in possession of or who may have obtained information from them or on their behalf, or any other person known to Triad who may be acting or purporting to act on Triad's behalf. 17. The term "Counterclaim Defendants" means and includes Brian Center Nursing Care/Austell, Inc., Mariner Health Care, Inc., and Mariner Health Care Management Company, Boyd Gentry, Harry Grunstein, and Clarence "Butch" Shelton, jointly or severally. 18. The term "Counterclaim Plaintiffs" means and includes Triad Health Management of Georgia, LLC, Triad at LaGrange, LLC, Triad at Lumber City, LLC, Triad of Thomasville, LLC, and Triad of Jeffersonville, LLC. # 366248 19. The term "Facilities" means and includes five nursing facilities previously leased by William M. Foster to Brian Center and located in Jeffersonville, LaGrange, Lumbar City, Powder Springs and Thomasville, Georgia. 20. The term "document" shall mean any original and all copies of any written, printed, typed, photocopied, photographic or reproduced, including without being limited to, all reports, contracts, diaries, calendars, statements, affidavits, desk pads, correspondence, communications, e-mail, telegrams, teletypes, memoranda, notes, bills, work papers, journals, studies, drawings, graphs, charts, photographs, films, slides, magnetic and electronic recordings, sound recordings, lists, minutes and entries in books of account relating or inferring in any way to the subject matter of this request, and other data compilation from which information can be obtained and translated, if necessary, through detective devices into reasonably usable form. The term "Document" shall also mean any and all computer records, data and information of whatever kind whether printed out or stored on or retrievable from any floppy diskette, compact diskette, magnetic tape, optical or magnetic-optical disk, hard drive or rapid access memory, including without limitation, all back-up copies, undeleted data, and dormant or remnant files. 21. The term "communication" means any written, oral or electronic conversation, interactions, meetings, telephone conversations, emails, letters, contact, promise, threat, representation, exchange, or inducement of which Sava has any knowledge or information, whether internal or external. 22. The term "Fiscal Year" or "Fiscal Years" means the twelve-month period or periods ending June 30"'- 23. The singular and plural shall be construed interchangeably herein. 24. As used herein, the words "or" and "and" shall mean "and/or." # 366248 DOCUMENTS REQUESTED You are directed to make available the following requested documents at the time of your deposition. To expedite your deposition, you may want to forward the following documents to Thomas C. Dame on or before November 12, 2008. Please call Mr. Dame at 410-727-7702 to arrange for delivery of the documents. A reasonable copying and shipping charge will be paid on request. 1. Any and all documents related to your involvement in any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. 2. Any and all documents related to your involvement with any of the following entities with regard to efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Millennium, Millennium Management, Sava Senior Care, National Senior Care, Family Senior Care, Dynamic Senior Care, or any of the ABCO entities. 3. Any and all documents related to your involvement with any of the following persons with regard efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. 4. Any and all documents related to any communication with creditors or vendors of Triad concerning any efforts to initiate, or to solicit Triad's creditors to file, an involuntary bankruptcy proceeding against Triad or any of its affiliates. # 366248 5. Any and all documents related to the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 6. Any and all documents related to your involvement in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC. 7. Any and all documents related to the involvement of the following persons in the proposed acquisition of certain assets of Triad and/or Triad Senior Living, LLC, including the proposal described in a March 6, 2006 Letter of Intent executed by Anthony Misitano on behalf of Pinehurst Medical, LLC: Brian Davidson, Abraham Shaulson, Murray Forman, Avi Klein, Leonard Grunstein, Harry Grunstein, William Foster, Chris Brogdan, Clarence "Butch" Shelton, Boyd Gentry, or Darren Caruso. # 366248 IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA BRIAN CENTER NURSING CARE/ AUSTELL, Inc., et al. * Plaintiff/Counterclaim Defendants * V. * TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. * Defendants/Counterclaim Plaintiffs * CT-2 4aA?@ cum Civil Action No.: 2005-CV-99496 * * * * * ORDER HAVING READ AND CONSIDERED Defendants/Counterclaim Plaintiffs Petition for Issuance Of Commission For Out Of State Deposition Upon Oral Examination of Anthony F. Misitano, the Court ORDERS that a Commission is hereby issued to Geiger & Loria Reporting Service, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, which shall then appoint a certified stenographic reporter to take, and a videotape operator to record by videotape, the deposition upon oral examination of Anthony F. Misitano, whose business address is 3500 Market Street, Suite 202, Camp Hill, PA 17011, in accordance with the Georgia Rules of Civil Procedure. Anthony F. Misitano shall also produce documents in accordance with the Subpoena duces tecum to be issued by the Prothonotary for the Commonwealth of Pennsylvania, County of Cumberland. Said deposition shall occur at the offices of Geiger & Loria Reporting Service located at 2408 Park Drive, Suite B, Harrisburg, PA 17110, or other such location to be noticed on the Subpoena duces tecum. SO ORDERED THIS ???? DAY OF 0q,FD r,4./ 08. Judge, Superior Court Fulton County, Georgia * 366211 EXHIBIT a 3. Upon information and belief, Anthony F. Misitano possesses documentation and information necessary for Triad's defense and counterclaim in this action, including potential tortious conduct of the counterclaim defendants. WHEREFORE, Defendant requests that this Court issue a Commission to Geiger & Loria Reporting Service, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, to subpoena documents, and to take, and a videotape operator to record by videotape, the deposition of Anthony F. Misitano in accordance with the Georgia Rules of Civil Procedure. Respectfully submitted, CM? , 6 r RicTard C. McWilliams, r. Littler Mendelson, P.C. 3348 Peachtree Road, N.E., Suite 1100 Atlanta, Georgia 303.26 (404) 760-3960 (phone) (404) 759-2377 (fax) Jack C. Tranter (admitted pro hac vice) Thomas C. Dame (admitted pro hac vice) Brian T. Tucker (admitted pro hac vice) G?. Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, Maryland 21201 (410) 347-1370 (phone) (410) 837-0454 (fax) Dated: October 22, 2008 Attorneys for Defendants/Counterclaim Plaintiff Triad Health Management of Georgia, LLC 0366211 4 DO CEM THAT THE 4VMM AND FORE6QM 18 A WJF, COMM AND CORRECT MIRY OF THE MW IN $AID CAW, AS W WS ON FIE AND RECORDED IN THE OFFCE OF THE MRX OF St r? MJRT FULTON CWM, CR;WAL EfAAWN, AlIfATA, GA. Y. S ?lE D AND SEAL OF SAID ft!-qk-_ l: _......._ , 2a I?lm- I I F CLERK IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. * Plaintiff/Counterclaim Defendants * V. * TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. * Defendants/Counterclaim Plaintiffs * * * * * * * * Superior Court of Fulton County, Georgia Civil Action No.: 2005-CV-99496 * * * * * * ORDER FOR LETTERS ROGATORY AND ISSUANCE OF SUBPOENA DUCES TECUM HAVING READ AND CONSIDERED Defendants/Counterclaim Plaintiffs Petition for Letters Rogatory, and having received no objections in response thereto, this Court hereby ORDERS that; Letters Rogatory shall be issued by this Court in accordance with Pennsylvania law for the taking of depositions of said witness in Pennsylvania for use in the civil action pending in the State of Georgia; and it is further ORDERED that, A Subpoena Duces Tecum shall be issued by this Court upon Anthony F. Misitano located at 3500 Market Street, Suite 202, Camp Hill, PA 17011, in accordance with the Pennsylvania Rules of Civil Procedure, requiring the appearance of Anthony F. Misitano for a deposition duces tecum, which shall include a request for those documents identified in Exhibit A to the Subpoena. The testimony shall be taken before a certified stenographic reporter authorized to administer oaths under the laws of the State of Pennsylvania and recorded by a videotape operator. Said deposition shall occur at the offices of Geiger & Loria Reporting # 366248 Service located at 2408 Park Drive, Suite B, Harrisburg, PA 17110, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, on November 14, 2008 at 9:00 a.m. A Subpoena Duces Tecum shall be issued by this Court upon Anthony F. Misitano, as the managing member of Pinehurst Medical, LLC, located at 12 Maybelle Court, Mechanicsburg, PA 17050, in accordance with the Pennsylvania Rules of Civil Procedure, requiring the appearance of Anthony F. Misitano as the managing member of Pinehurst Medical, LLC for a deposition duces tecum, which shall include a request for those documents identified in Exhibit A to the Subpoena. The testimony shall be taken before a certified stenographic reporter authorized to administer oaths under the laws of the State of Pennsylvania and recorded by a videotape operator. Said deposition shall occur at the offices of Geiger & Loria Reporting Service located at 2408 Park Drive, Suite B, Harrisburg, PA 17110, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, on November 14, 2008 at 1:00 p.m. SO ORDERED THIS DAY OF cc: Jack C. Tranter Thomas C. Dame Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, MD 21201 2008. Judge, Commonwealth of Pennsylvania for Cumberland County # 366248 Christopher P. Galanek, Esq. Jennifer B. Dempsey, Esq. Ashley Palermo, Esq. Powell, Goldstein, Frazer & Murphy, LLP One Atlantic Center - Fourteenth Floor 1201 West Peachtree St., NW Atlanta, GA 30309-3488 Thomas E. Reilly, Esq. Troutman Sanders LLP 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308-2216 # 366248 IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. Plaintiff/Counterclaim Defendants V. TRIAD HEALTH MANAGEMENT OF GEORGIA, LLC, et al. Defendants/Counterclaim Plaintiffs * * * * * * Superior Court of Fulton County, Georgia * Civil Action No.: 2005-CV-99496 * * * * * * * * * * * * * * * * * * CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 31S` day of October, 2008 a copy of the foregoing Amended Petition for Letters Rogatory was mailed first class, postage pre-paid, to: Christopher P. Galanek, Esq. Jennifer B. Dempsey, Esq. Ashley Palermo, Esq. Powell, Goldstein, Frazer & Murphy, LLP One Atlantic Center - Fourteenth Floor 1201 West Peachtree St., NW Atlanta, GA 30309-3488 Thomas E. Reilly, Esq. Troutman Sanders LLP 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308-2216 Ja k C. Tranter Thomas C. Dame Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, MD 21201 (410) 727-7702 (admitted pro hac vice Fulton County, Georgia) Attorneys for Defendants/Counterclaim Plaintiff Triad Health Management of Georgia, LLC # 366248 ?. , i ?? ?.._, -_ t : . ' ? c, ; :. + 1''J OCT 2 9 2008 G IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. * 08 - &30 &v i * Plaintiff/Counterclaim Defendants * V. * Superior Court of Fulton County, Georgia TRIAD HEALTH MANAGEMENT * Civil Action No.: 2005-CV-99496 OF GEORGIA, LLC, et al. * Defendants/Counterclaim Plaintiffs * * * * * * * * * ORDER FOR LETTERS ROGATORY AND ISSUANCE OF SUBPOENA DUCES TECUM HAVING READ AND CONSIDERED Defendants/Counterclaim Plaintiffs Petition for Letters Rogatory, and having received no objections in response thereto, this Court hereby ORDERS that; Letters Rogatory shall be issued by this Court in accordance with Pennsylvania law for the taking of depositions of said witness in Pennsylvania for use in the civil action pending in the State of Georgia; and it is further ORDERED that, A Subpoena Duces Tecum shall be issued by this Court upon Anthony F. Misitano located at 3500 Market Street, Suite 202, Camp Hill, PA 17011, in accordance with the Pennsylvania Rules of Civil Procedure, requiring the appearance of Anthony F. Misitano for a deposition duces tecum, which shall include a request for those documents identified in Exhibit A to the Subpoena. The testimony shall be taken before a certified stenographic reporter authorized to administer oaths under the laws of the State of Pennsylvania and recorded by a videotape operator. Said deposition shall occur at the offices of Geiger & Loria Reporting #366248 ,,?. ?. r __ Service located at 2408 Park Drive, Suite B, Harrisburg, PA 17110, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, on November 14, 2008 at 9:00 a.m. A Subpoena Duces Tecum shall be issued by this Court upon Anthony F. Misitano, as the managing member of Pinehurst Medical, LLC, located at 12 Maybelle Court, Mechanicsburg, PA 17050, in accordance with the Pennsylvania Rules of Civil Procedure, requiring the appearance of Anthony F. Misitano as the managing member of Pinehurst Medical, LLC for a deposition duces tecum, which shall include a request for those documents identified in Exhibit A to the Subpoena. The testimony shall be taken before a certified stenographic reporter authorized to administer oaths under the laws of the State of Pennsylvania and recorded by a videotape operator. Said deposition shall occur at the offices of Geiger & Loria Reporting Service located at 2408 Park Drive, Suite B, Harrisburg, PA 17110, or other such registered court reporter authorized to administer oaths under the laws of the State of Pennsylvania, on November 14, 2008 at 1:00 p.m. SO ORDERED THIS 5 N DAY OF N oyt%? &r 2008. Judge, Commonwealth of pe s lvania for Cumberland county vkc #366248 SON IN THE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BRIAN CENTER NURSING CARE/ AUSTELL, Inc. Plaintiff/Counterclaim Defendants V. TRAID HEALTH MANAGEMENT OF GEORGIA, LC, et al. Defendants/Counterclaim Plaintiffs * * * * * * * 08-6340 Civil Term * * * * * Superior Court of Fulton County, Georgia * Civil Action No.: 2005-CV-99496 * * * * * * * * * * * * PROOF OF SERVICE Please find attached affidavits of service of subpoenas to Attend and Testify with Exhibit A directed to: Anthony F. Misitano. AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of Cumberland Common Pleas Court Case Number. 08-6340 Court Date: 11/14/2008 Plaintiff: Brian Center Nursing Care/Austell, Inc. vs. Defendant: Triad Health Managemnt of Georgia, LLC, et al. For. Gallagher Evelius & Jones LLP 218 North Cahrles St., Suite 400 Baltimore, MD 21201 Received by Pennsylvania Professional Process Svc. to be served on Anthony F. Misitano, 3500 Market St. Suite 202, Camp Hill, PA 17011. I, Justin Hovetter, being duly sworn, depose and say that on the 5th day of November, 2008 at 4:25 pm, I: Individually Served the within named person with a true copy of this Summons To Attend and Testify, Exhibit A with the date and hour endorsed thereon by me, pursuant to State Statutes. Description of Person Served: Age: 55, Sex: M, Race/Skin Color: Caucasion, Height: 611 ", Weight: 225, Hair: Gray, Glasses: N I certify that I am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served. ustin Hovetter and m o before me on the 6th day Process Server 2 by th affient who is PersoDallyZJ VTAR4PUB'LlC me Pennsylvania Professional Process Svc. 48 W. High St. P.O. Box 1148 Carlisle, PA 17013 (800) 863-2341 OMM NWEALTH OF PENNSYLVANIA Our Job Serial Number: 2008000583 Ref: Misitano Naft Mal M. MW*19 Guyton. NOMY Pubko (.eats am, cumw%nd County W Ca ffm is" EWfft 1, 2012 Cop Wht O 1882-2006 DdWme Swvk es, inc. - P?wm S~s Toolbox V5.sl Member. Pennsylvania Aasodafon of Notaries AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number. 08-6340 Court Date: 11/1412008 Plaintiff: Brian Center Nursing Care/Austell, inc. vs. Defendant: Triad Health Managemnt of Georgia, LLC, at al. For Gallagher Evelius & Jones LLP 218 North Cahries St., Suite 400 Baltimore, MD 21201 County of Cumberland Common Pleas Court Received by Pennsylvania Professional Process Svc. to be served on Anthony F. Misitano, as managing member of Pinehurst Medical, LLC, 12 Maybelle Court, Mechanicsburg, PA 17050. I, Justin Hovetter, being duly sworn, depose and say that on the 5th day of November, 2008 at 4:25 pm, 1: Individually Served the within named person with a true copy of this Summons To Attend and Testify, Exhibit A with the date and hour endorsed thereon by me, pursuant to State Statutes. Additional Information pertaining to this Service: 11/6/2008 9:55 am Personally served upon Mr. Misitano at his place of employment 3500 Market St. Suite 202 - Post Acute Medical LLC, Camp Hil, PA 17011 Description of Person Served: Age: 55, Sex: M, Race/Skin Color. Caucasion, Height: 5'11", Weight: 225, Hair: Gray, Glasses: N I certify that I am over the age of 18, have no interest in the above action, and am a Certified Process Server, in good standing, in the judicial circuit in which the process was served. :d an om t before me on the 6th Aber, 2 by the ant who is P? to _ /I // // C MY JK=-W 04.-Mm 1. Pennsylvania Professional Process Svc. COMMONWEALTH OF PENNSYLVANIA NotrW a.M M. MWW% Guyton, Notary PWft CNN* am, cW"ftrd county 2012, 48 W. High St. P.O. Box 1148 Carlisle, PA 17013 (800) 863-2341 Our Job Serial Number: 2008000582 Ref: Misitano CopydgM 0 1992-2005 Deus Services, Inc. - Proosss Servers Toolim V5.5 ,it m. CYO .,,,1 ? Cam} Ul tL}