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HomeMy WebLinkAbout04-3709COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of C~berland NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMO. PLE^S No. 27 ? NOTICE OF APPEAL Civil Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. Blevens Zinn 109-3-01 201 Newville Road, Mewburg, PA 17240 July 27, 2G04I Varner, Rose ~ CV-0000154-04 ' This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. STATE zip COOE ~ Zinn, Blevens before a Distr~ct Justice, A COMPLAINT MUST BE FILED within twenty (20) days after fi#ng the NOTICE of APPEAL. PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J, No. I001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary (Common Pleas O4- Enter rule upon ROs e E. Varner appellee(s), to file a complaint in this appeal Name of appe~ee~$) Civil) wRhin twenty (20) days after service of rule or suffer entry of judgment of non p~'oe. Signature of appel/ant or attorney or egent RULE: To Rose ~, Va~"ner , appellee(s) Name of appelleet$) (1) Y~~ are n~fi~ed that a ruIe ~s hereby entered up~n y~u t~ ~le a c~mp~aint in this appea~ within twenty (2~) days after the date ~f service of this rule upon you by personal service or by certified or registered mail (2) If you do not file a comptaint within this time, a JUDGMENT OF NON PROS MAY SE ENTERED AGAINST YOU. Date: July 29 ,2004 YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL ANti RULE TO ~:!L[:~ COMPLAinT Notary Public COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND 09-3-01 P.O. BOX 361 SHIPPENSBURG, PA Tceo~on~:(717) 532 '7676 ATTORNEY DEF PRIVATE : WAYNE F. SHADE 53 W POMFRET ST CARLISLE, PA 17013 17257'0361 NOTICE OF JUDGMENT/TRANSCRIP' CIVIL CASE PLA)NTIFF: NAME and ADDRESS [-VARNER, ROSE E 262 HIGH MT RD SHIPPENSBURG, PA 17257 VS. DEFENDANT: NAME and ADDRESS FZINN, BLEVEN~ 201 NEWVILLE RD NEW'BURG, PA 172~0 Docket No.: CV-0000154-04 Date Filed: 6/11/04 THIS IS TO NOTIFY YOU THAT: Judgment: [] Judgment was entered for: (Name) ]Judgment was entered against: (Name)~ FOR PT,A?NTIFF VARNRR, wO,~R R in the amount of $ (Date of Judgment) ~] Defendants are jointly and severally liable. E~ Damages will be assessed on: ~] This case dismissed without prejudice. [~ Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical ~ damages arising out of residential lease $ (Date & Time) Amount of Judgment $ 2,440.00 Judgment Costs $ 8z~. 50 Interest on Judgment $ . O0 Attorney Fees $ . O0 Total $ 2,524.50 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT By FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THiS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE iNTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ¢'c;~2-~/O/ Date ./'~/~ ~ ~ , District Justice certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , District Justice My commission expires first Monday of January, 2006 . AOPC315-03 DATE PRINTED: 7/27/04 9:14:42 AM SEAL .37 2.30 Ill JlJJllJl .37j 2.30 1.75 July 29, 2004 July 29, 3.50 i 2004 '~ .... PROOF OF SERVICE OF NOTICE ,2: APPE .. ;J~ ) F JLE ~(} COMPLAINT proof of service MUST BE FILED WIYHiN ?'~N (10~ )A YS AF ~ fi~ g ~ 3l HpeaL Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF C~BERT,A~D AFFIDAVIT: I hereby (swear):~ that I served a copy of the Notice of Appeal, Common P* ~!s No. 04- ~'~0?L f;::~n ~ E)i.,;t' :t Justice designated therein on (date of seP¢ ce) July 29 ,2004 ~ L;,p:s }a ~!*k;4 ~ by (certified) (r~L~r'e~)mail, sender's receipt attached hereto and upor* tie appel e, r~;;;ye ~.ose E. Vat.er , on July 29 ,2004 ] by pe sc ]a; :~e , ca [;~ ty celtified)~lfe~l~maiL sender's receipt attached hereto (SWOR~ I/~FFIRMED) AND SUBSCRIBED BEFOF~,~ ME THI.;,',',',',',',',~/-~12~ DAY OF JUly Notary Public My commission expires on [-- Notarial Seal J Connie J. Tfitt, Notary Public J Carlisle, Cumberland County [My Commission Expires Oct. 5, 2004~ AOPC 312A - 02 COMMONV~ALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JudiCial D;'strict, County Of Cumberland NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 04- .2~/'),9 Civil NOTICE OF APPEAL Notice is given that the appellant has flied in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT Blevens Zirm 09-3-01 Harold E. Bender 201 Newville Road, Newburg, PA 17240 STA~E Z~COOE July 27, 2004 Varmer, Rose E. Z~n~, Blevens CV-0000154-04 ~'C/~ / ~_L /~.~,< ~ I This block will be signed ONLY when this notation is required under Pa. If appe/lanf was Claimant (see Pa. R.C.P.D.J. No. f001(6) in action R.C.P:D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of foEn to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon (Common Pleas No. Rose E. Va~ner Name of appellee(s) appellee(s), to file a complaint in this appeal Civil) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or at. may or agent RULE: To Rose E. ~.,l,."~t...er appe ee(s) ~1) You ar~ed that a rule rs~y entered upon you to file a complaint in this appeal with n twenty (20) days a~er the date of se~i~ of this rure upe~o~ by personal s~m~ b~, ce~ fled or registered mail (2) If yoa do not file a complaint w thin this ~ime. a JUDGMENT OF NON PROS MAY BE ENTERED AGAtNST YOU. (3) The.da~ of se~lc~ ~his ~ if ~e~ was by mai s the date of the mailing. YOU MUST INCL~~ OF THE NOTICE OF JUDGMENT~RANSCRIPT FORM WITH THIS NOTICE OF ~PEAL. AOPC 312-02 COUf, T FILE ROSE E. VARNER, Plaintiff/Appellee BLEVENS ZINN, Defendant/Appellant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; : NO. 04-3709-CIVIL : : CIVIL ACTION - LAW ; NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIM 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 AN 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 LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 717-249-3166 NOTICA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VEINTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA lvIEDIDAS Y PUEDA ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO O NOTIFICACION Y ]?OR CUALQUIER QUEJA O ALIVIO QUE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADES O OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TEI,EFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REEERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 717-249-3166 ROSE E. VARNER, Plaintiff/Appellee BLEVENS ZINN, Defendant/Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3709-CIVIL CIVIL ACTION - LAW COMPLAINT AND NOW comes the Plaintiff/Appellee, Rose E. Vamer, by and through her counsel, Mark A. Mateya, Esquire, and in support of her complaint avers the following: 1. Plaintiff/Appellee, is Rose E. Vamer, who is an adult individual currently residing at 262 High Mountain Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant/Appellant, Blevens Zinn, is an adult individual currently residing at 201 Newville Road, Newburg, Cumberland County, Pennsylvania. 3. Defendant/Appellant Blevins Zinn and his brother Merrill Zinn operated a business known as Zinn Brothers Logging (hereinafter "Partnership"). See exhibit A, attached hereto and incorporated by reference herein. 4. The Partnership is in the business of timber harvesting and work related thereto. 5. The Partnership incurred business debts as part of their normal course of business. 6. On or about September 7, 1995, the Partnership entered into a loan agreement with the Plaintiff/Appellee for eleven thousand dollars ($11,000); Menill Zinn and Blevins Zinn, the Defendant/Appellant herein, agreed that the Partnership would pay back the amount of the loan and/or each would pay back the amount of the loan to the Plaintiff/Appellee in equal shares. 7. The September 7, 1995 agreement was verbal and was wimessed by all of the parties to the loan. 8. On or about November 29, 1995, the Partnership entered into a loan agreement with the Plaintiff/Appellee for eight thousand, four hundred dollars ($8,400); Merrill Zinn and Blevins Zinn, the Defendant/Appellant herein, agreed that the Partnemhip would pay back the amount of the loan and/or each would pay back the amount of the loan to the Plaintiff/Appellee in equal shares. 9. The November 29, 1995 agreement was verbal and was witnessed by all of the parties to the loan. 10. On or about August 27, 1997, the Partnership entered into a loan agreement with the Plaintiff/Appellee for ten thousand hundred dollars ($10,000); Merrill Zinn and Blevins Zinn, the Defendant/Appellant herein, agreed that the Partnership would pay back the amount of the loan and/or each would pay back the amount of the loan to the Plaintiff/Appellee in equal shares. 11. The August 27, 1997 agreement was verbal and was witnessed by all of the parties to the loan. 12. The partnership has paid to Plaintiff/Appellee all but four thousand eight hundred and eighty dollars. See exhibit B, attached hereto and incorporated by reference herein. 13. Memll Ziun has paid his one-half of the amount due, according to the agreements regarding the loans. 14. The Defendant/Appellant has failed to repay his portion of the loan agreements. 15. As a result of the failure of Defendant/Appellant to repay the monies owed in accordance with the loan agreement, Plaintiff/Appellee filed a complaint with the Honorable 2 District Justice Harold E. Bender on June 11, 2004. A copy of the district justice complaint is attached hereto as Exhibit C and is incorporated herein by reference. 16. On or about July 27, 2004, the Honorable District Justice Harold E. Bender entered a Judgment in favor of Plaintiff/Appellee and against Defendant/Appellant in the amount of two thousand, five hundred twenty-four dollars and fifty cents ($2,5;34.50). A copy of the Judgment entered by the District Justice is attached hereto as Exhibit "D" and is incorporated herein by reference. 17. On or about July 29, 2004, Defendant/Appellant filed an Appeal from the Judgment entered by the Honorable District Justice Harold E. Bender. A copy of the Appeal filed by the Defendant/Appellant is attached hereto as Exhibit "E" and is incorporated herein by reference. 18. This complaint is filed in response to Defendant/Appellant's appeal from Judgment. BREACH OF CONTRACT 19. Paragraphs 1 through 18 above are incorporated herein by reference. 20. There are three (3) separate contracts between the partnership and Plaintiff/Appellee herein, as referenced more fully in paragraphs six (6) through eleven (11) above. 21. Defendant/Appellant Blevins Zinn and Merrill Zirm, parmers of the Partnership, in their own capacity as individuals are surety and/or guarantors of the three contracts referenced more fully in paragraphs six (6) through eleven (11) above. 22. Plaintiff/Appellant provided adequate consideration, as referenced more fully in paragraphs six (6) through eleven (11) above. 23. Partnership and Defendant/Appellant validated the existence of the contract by providing consideration to Plaintiff/Appellee, as referenced by exhibit B 3 24. Defendant/Appellant knew or should have know that payments were made from the Partnership to Plaintiff/Appellee. WHEREFORE, upon consideration of the foregoing, it is hereby respectfully requested that this Honorable Court issue an Order in favor of Plaintiff/Appellee in the amount of $2,440.00 along with reasonable attorney fees, costs and such other relief as this Court deems appropriate. Respectfully submitted, Date: Mark A. Mateya, Esqu' e Attorney I.D. No. 78931 P.O. Box ]127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 Fax Counsel for Plaintiff/Appellee 4 VERIFICATION I, Rose E. Vamer, hereby verify that the statements made in the foregoing Complaint are true and correct, and further, I understand that false statements therei[n are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. Rose E. Vamer THIS AGREEMENT, executed this day of , 1995, by and between MERLE C. ZINN and BLEVENS L. ZINN, (hereinaf2er collectively referred to as the "Partners"). WHEREAS, the parties hereto desire to form a partnership for the purpose of engaging in the business of timber harvesting, as well as investment into other business fields, as the Partners shall unanimously agree. WHEREAS, the parties hereto desire to define the terms and conditions of their partnership and to co,mit their agreement to writing. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows: I. FORK~TION OF ~BI~%L PARTN~_~Ip 1.1 ~_g_~. The parties do hereby form a partnership pursuant to the Uniform Partnership Act Commonwealth of Pennsylvania, 15 Pa.C.S.A. §8301 et. seq., "Act") for the purposes herein provided. 1.2 ~ame. The business of the conducted under the name ZINN BROS. "Partnership"), which name shall be registered with Department of State of the Commonwealth of Pennsylvania. 1.3 P~ose. The purpose of the Partnership shall be engage in the business of timber harvesting, and to do any general of the (the Partnership shall be I~GGING 'hereinafter, the to and EXHIBIT "A" all acts as shall be necessary and incidental thereto, as well as to engage in such other business as shall, be agreed upon by the Partners. 1.4 Princin&l Office and Pl&oe of Busin~-. office of the Partnership Mountain Road, Shippensburg, at the same location. 1.§ Term. The Partnership shall commence on the date of execution hereof and shall continue in existence until terminated The principal shall be maintained at 262 High PA 17257, and its principal place of busin in accordance with the provisions hereof; ]provided, however, t~at any acts, including but not limited to the entry i~to negotiations for and the execution of any agreements, commitments, contracts, writings, or other understandings by any Partner in furtherance of the business of the Partnership prior to such date are hereby ratified and confil~ed as authorized and valid actions of the Partnership. 1.6 ~. The fiscal year of the Partnership shall begin January I and end December 31 of each. year. 2.1 Partnership ZINN and BLEVENS L. ZINN, and shall Partners shall mutually agree upon. Such capital shall be used II. CAPITAL CONTRIBUTION~ Contributions of Partners. The capital of the shall initially be contributed 50% each by MERLE C. be in such amounts as ~he for organization, acquisition, financing, legal and such other expenses purposes as shall be jointly agreed upon by the Partners. asset and It business profits 50% to is the Partners' intention to operate the partnership in such a manner that any distribution of partnership shall be divided on a 50/50 basis between the partners, MERLE C. ZINN and 50% to BLEVENS L. ZINN for record- keeping purposes relative to their income accounts: 2.2 c o s. A separate capital account shall be maintained for each Partner. No Partner shall withdraw any part of his capital account without the unani~ous written consent of the Partners. If the capital account of a partner becomes impaired, his share of subsec~/ent partnership profits shall be first credited to his capital account until that account has been restored, before such profits are credited to his income account. As used herein, the term "capital account" of each Partner as of any date shall mean the amount of cash initially contributed by such Partner to the capital of the Partnership in accordance with the provisions hereof, properly adjusted to reflecu (i) the distributive shares of such Partner of income, gain, expense, loss, deduction or credit of the Partnership, including, if such date shall not be the close of the fiscal year of the Partnership, the distributive share of such items of the Partnership for the period from the close of the last fiscal year of the Partnership to such date, and (ii) distributions by the Partnership to such Partner, including, if such date shall not!be the close of the fiscal year of the Partnership, distributions by the Partnership to such Partner during the period from the close of the last such fiscal year of the Partnership to such date. 2.3 L~rest. No interest shall be paid on the initial capital contributions of the Partners, nor shall interest be paid on any subsequent contributions of capital. If, however, the Partners unanimously agree to borrow money from any Partner, and that borrowing is evidenced by a note executed by all Partners, then interest in accordance with the te~ms of the note may be paid. PROPZ?~ ~ T~_~.~ 3.1 losses, distributable or chargeable, as the case may be, to the in accordance with their respective percentage interests Partnership, as set forth in Section 2.1 hereof. 3.2 ~. A separate income account maintained for each partner. Profits and Losses credited or debited to the separate income accounts as practicable after the close of each fiscal year. If has no credit balance in his income account, losses charged to his capital account. 3.3 shall be percentage Allocation of Profits and Loesg~. Ail income, gains, expenses and liabilities of the Partnership shall be Parties in the shall be shall be soon as a Partner shall be ~. The net cash flow of the Partnership distributed to the Partners in accordance with the interests set forth in Section 2.1 hereof, at the end of each fiscal year of the Partnership and .at such other times as the Partners shall mutually agree. As used herein, the term "net cash flow" of the Partnership with respect to any period shall mean all cash receipts of the Partnership less all cash 4 disbursements of the Partnership, expenses, and for Partnership, which Partners necessary business thereof during such period, as shown on the books but reduced by such reserves for anticipated amortization of thE! indebtedness of the reserves shall equal $5,000.00 unless the shall deem a greater or lesser amount to be reasonably or appropriate for the efficient conduct of the of the Partnership; provided, however, that such receipts and disbursements shall not include the following: A) Contributions to the capital of the Partnership; B) Costs of organization of the Partnership; C) Loans of the Partnership; and D) Distributions to the Partners by the Partnership in accordance with this section; PROVIDED HOWEVER, that the net cash flow of the Partnership shall include any other funds, including, but not limited to any amount previously set aside as reserves by the Partners and no longer regarded as reasonably necessary in the efficient condmct of the Partnership business, deemed to be available for distribution and designated as part of the net cash flow of Zhe Partnership by the Partners. 3.4 ~. Each partner shall receive a salary from the operation of the partnership business. This salary, which shall be in the amount of $400.00 per week for each partner, regardless of the actual number of hours worked by each partner per week. No partner shall receive any additional salary, compensation or 5 guaranteed payments unless the same are approved by a majority vote of the Partners and reduced to writing within one week from such vote. 4.1 ~. All operating expenses, taxes (except income taxes payable by the Partners), legal, filing and accounting fees and other expenses incurred by the Partnership in connection with the organization of the Partnership and the conduct of its business shall be borne by the Partnershi~ and shall be charged to the capital accounts of the Partners according to the percentages set forth in Section 2.1 hereof. 5.1 Participation in Msn&~emenf. The Partnership shall have one managing partners. The first managing partners shall be MERLE C. ZINN, and may be succeeded by such other parhner(s) as shall achieve a majority vote of the parties. The managing partner shall be entitled and authorized, in the inter, als between partnership meetings to act on behalf of the Partnership, including the right to make application for permits and approvals, to engage contractors and supervise projects for =he Partnership, to hire and terminate employees, contractors and material suppliers, to award bids and contracts, to supervise and direct the investment of partnership funds, to make decisions and execute agreements, contracts, checks and other written instruments in the partnership name concerning or relating to ~he management, administration and affairs of the p~rtnership, 6 including, but not limited to execution of all documents for the acquisition and financing of partnership projects, or incidental to the projects. To the extent possible, prior to making decisions and/or executing agreements in the intervals between partnership meetings, any managing partner acting on behalf of the Partnership shall consult with the other partners personally or by telephone concerning the material factors affecting any such decision, but the decision of the managing partner shall be final and binding upon the Partnership. 5.2 &a~ions Re~uirinu M&4arit¥ Consent. Notwithstanding the provisions of Section 5.1, the consent: of a majority of the Partners shall be required with respect to the following matters of management, conduct and operation of the partnership business: A) the sale and conveyance of property owned by the Partnership, on such terms as the majority may determine; B) The mortgaging of property owned by the partnership, whether such mortgage be a first or second mortgage lien; C) The making of any agreements modifying any s~ch mortgage; D) would be to increase the debt to the partnership, trade or regular accounts payable; E) The lending of money on behalf of the except with unanimous consent of the Partners; F) The leasing of partnership property; G) The assignment, pledge, transfer, compromise or of any of the claims of or debts due the partnership except The borrowing of any sum of money the result of which exclusive of partnership, release upon 7 payment in full, or arbitration or consent to the arbitration of any of the disputes or controversies of the partnership; and H) The pledge, hypothecation or transfer by any partner of his interest in the partnership, except to the other parties to this agreement. 5.3 ~. If any disagreement shall arise between the Partners in respect to the conduct of the partnership business, its dissolution, or in respect to any matter, cause or thing whatsoever, not herein otherwise provided for, the dispUte shall be decided by a majority decision of three (3) arbitrators, by which the Partners agree to abide. Each partner, or his heirs, executors, or administrators, shall have the right ito appoint one arbitrator and the two arbitrators so appointed shall appoint the third arbitrator. The decision of the arbitrators shall be final, and the cost of the same shall be borne equally be the Partners. 5.4 Other Business Interests of Partnerq. Each Partner may have other business interests and may engage in any other business, trade, profession or employment whatsoever, on his own account, or in partnership with or as an employee or an officer, director or shareholder of any other person, firm or corporation. Partners shall not be required to devote their entire time to the business of the Partnership. However, each Partner shall devote at least 75% of his time to partnership business. 5.5 ~_A~_9_~[D_~. An account or accounts in the name of the Partnership shall be maintained in such bank or banks as shall be designated by the Partners from time to time. All 8 monies belonging to the Partnership and all instruments for the payment of money to the Partnership, when received, shall be deposited in said bank account or accounts. All accouzlts payable, debts, obligations and bills of said Partnership, and for Partnership purposes solely, shall be paid by check o~y, drawn in the name of the Partnership against said bank accountl or accounts and signed by either Partner. VI. RBCORD8 AND ACCOUNTING 6.1 Records and &ccountina. The Partners shall keep and retain the books and records relating to the business of the Partnership at the Partnership's principal place of business and each Partner and/or his authorized agent or attorney shall have access to them at all reasonable times. The books and records, which shall be kept in accordance with generally accepted accounting principles, shall be closed and balanced at the end of each fiscal year. If requested by any Partner, an audit which may or may not be certified, as the Partners shall agree, shall be made as of the end of each fiscal year, and the expense of such audit shall be a partnership expense. If any two partners request in writing, an audit for the fiscal year shall be performed prior to the end of the fiscal year. The expense of such audit shall be a partnership expense. 9 VII. ~Z~NDM~lqT OF PAI~q~RSHIP A~I~N~ 7.1 ~. If at any time d~zring the term of the Partnership the Partners deem it necessary and desirable to amend this Agreement, said amendment shall be effective if embodied in an instrument signed by all Partners. VIII. WITHDRAWAL FROM ~_.ND_ TB/tMINATION OF PARTIqEK~HI~ 8.1 ~J~. Upon the withdrawal of any Paz~cner, either voluntarily or involuntarily, the Partnership shall continue in effect upon the following terms and conditions: A. Death. In the event of the .~eath of any Partner, the remaining Partner(s) shall have the option to purchase the entire partnership interest of the deceased Partner for an amount equal to the value of the capital account= of such Partner as computed and payable in accordance with the terms and conditions of Paragraphs C, D and E of this Section ~].1. Said option must be exercised by written notice to the Estate of the deceased partner within ninety (90) days after the date of death. If the option is not exercised within the aforesaid ninety (90) day period, the Partnership shall terminate and the assets shall be distributed pursuant to Section 8.2 hereof. B. Voluntary Withdrawal. Any Partner shall have the right to withdraw from the Partnership at any time upon giving ninety (90) days prior written notice to the other Partners. In such event, the continuing Partner(s) shall have the option to purchase the entire Partnership interest of the withdrawing partner for an amount equal to the value of the capital account 10 of terms and 8.1. Said withdrawing Partner(s) not exercised within the aforesaid ninety (90) day Partnership shall terminate and the assets shall be pursuant to Section 8.2 hereof. such Partner as computed and payable in accordance with the conditions of Paragraphs C, D and E of this Section option must be exercised by written notice to the Partner within ninety (90) days after the remaining receive the notice of withdrawal. If the option is period, the distributed C. ~. In determining the value of the capital account of the deceased or withdrawing Partner, the capital account of such Partner shall be taken from the Partnership books of account as of the last day of the month in which the period of ninety (90) days expires after either the date of death or after the notice of withdrawal is given under Paragraph B of this Section 8.2 ("Valuation Date"). Said value shall include all credits and charges for net profit, net losses, withdrawals, distributions and contributions as of the Valuation Date but shall not include any allowance for goodwill, trade name or other intangible assets, except for costs incurred by the Partnership in the acquisition of such intangible assets as are reflected on the Partnership books of account. For the purpose of this Section 8.1, the books of account shall be conclusive on both Partners. The capital account of such Partner shall be adjusted by adding thereto or subtracting therefrom any increase or decrease in the fair market value of any real property then owned by the Partnership from the book value of such real property as shown on the books of account of the Partnership as of Valuation 11 Date. The fair market value of the real property shall he determined as of the above Valuation Date in the following manner: the withdrawing Partner or the personal representative of the deceased Partner shall select an appraiser and ~he remaining Partner shall select an appraiser. The two appraisers so selected shall confer and determine the value of the real property as of the Valuation Date. In the event that the ~wo appraisers so selected cannot agree as to the value of the property within thirty (30) days after the Valuation Date, then the two appraisers so selected shall promptly select a third appraiser and the appraisal of the majority of the three appraisers shall be binding upon the withdrawing Partner ~or estate of the deceased Partner and the remaining Partner. Such appraisal shall be in writing and shall be delivered to the Partners within fifteen (15) days after the two appraisers are selected or after the third appraiser i~ chosen. D. ~A~I~. The closing of the: purchase and sale of Partner's interest pursuant to this Section 8.1 shall be held within thirty (30) days after the appraisal has been received by the Partners. At such closing the withdrawing Partner or ~he personal representative of the deceased Partner shall deliver to the remaining Partner a general warranty or fiduciary deed respectively, conveying good and marketable title to ~he withdrawing or deceased Partner's interest in such real property as shall be insurable by a reputable title insurance company, subject only to such matters of record as existed at the time ~he Partnership initially acquired title to such property or such 12 pay deeO Partner as payable Partner matters of record as the Partners shall have mutually agreed in writing to place or impose upon the real estate after acquisition of the property. On closing, the withdrawing Partner or the Estate of the deceased Partner shall have no further right or interest in any of the Partnership property or to any compensation, payment or any other amount from the Partnership except as set forth above. The withdrawing Partner or estate of the deceased Partner and the remaining Partner shall split and equally the cost of any transfer taxes to be affixed to ~he from the withdrawing Partner or estate of the deceased aforesaid and any other expenses (other than taxes by the withdrawing Partner or estate of the deceased as the result of such sale) incurred in connection with said transfer. The amount to be paid to the withdrawing Partner or estate of the deceased Partner pursuant to the terms of this Section 8.1 shall be paid in cash or, at the option of ~he remaining Partner, by a promissory note of the remaining Partner, due up to five (5) years after the date thereof, payable in equal successive quarter-annual installments after the date thereof and bearing interest also payable quarter-annually on the principal balance at the then applicable Federal rate as in Section 1274 of the Internal Revenue Code of 1986 as or the corresponding provision of any future Internal unpaid defined amended Revenue ~ ' · Following' the transfer by the Partner or estate of the deceased partner of his said real property, the remaining partner shall withdrawing interest in 13 indemnify and hold harmless the deceased or withdrawing partner, his heirs, personal representatives and assigns, from and against any and all indebtedness of the partnership used in reduction of the capital account of the withdrawing or deceased Partner, including any mortgages which may be liens against said real property of the Partnership and all amounts used in the computation of the net profit or net loss as set forth above. Otherwise, the deceased or withdrawing Partner and the remaining Partner shall be equally liable and responsible for all other claims, liabilities and indebtedness arising from, out of or for the Partnership prior to the transfer. 8.2 Termination of Partnership. Subject to the terms and provisions of Section 8.1 hereof, the Partnership shall continue indefinitely from the date of this Agreement until the happening and occurrence of any of the following events, at which time 2he Partnership shall terminate: A) Upon the mutual agreement of the Partners; B) Upon the adjudication of bankruptcy or insolvency of any Partner; C) Upon the appointment of a receiver for or an assignment for the benefit of creditors of any Partner: D) Upon the breach or default of any of the terms of this Agreement by any Partner, at the election and option, !by majority vote, of the non-faulting partner(s); and E) Upon the sale of the Partnership interest of any Partner as provided in Section 8.1 hereof, at the option of a majority of the purchasing Partners. 14 8.3 pursuant conducted ~. Upon the termination of the Partnership to Section 8.2 hereof, no further business shall be in the Partnership name except for the completion of incomplete transactions and the taking of such action as shall be necessary for winding up of the affairs of the Partnership and the distribution of its assets. The Partners shall appoint, one of the Partners to act as liquidator for the Partnership and for such services, said Partner shall receive such compensation as shall mutually agree. In the winding up and of the Partnership business, which shall be as rapidly as business circumstances and orderly be To the repayment of capital[ contributed by the Partners liquidation accomplished business practices permit, the Partnership assets shall applied in the following order: A) To the payment of the debts and liabilities of the Partnership owing to creditors other than Partners, and to the expenses of liquidation; B) To the payment of debts and liabilities owing to Partners, other than for capital and profit; C) the Partners. such capital contributions in full, the assets distributed to the Partners pro rata, according to the the amount of the respective capital contribution of Partner bears to the amount of all capital contributicns of Partners; If the Partnership assets are not sufficient to repay shall be ratio that the each both 15 D) The surplus, if any, of the assets remaining shall be divided between the Partners in accordance with each Partner's respective interest in said Partnership as set forth in Section 2.1 hereof. IX, MIBCELL~kN~OUB 9.1 Voting. Except as otherwise ]provided herein, each partner shall be entitled to one vote in all Partnership decisions for each percentage interest which he holds in ~he partnership; provided, however, that the death, insolvency, bankruptcy or placing into receivership ,of any Partner shall terminate his voting rights, managerial rights and any and all other decision making rights hereunder. In such event, ~he remaining Partners shall have full power and authority to manage and decide as to all partnership matters. 9.2 Agreement, ( including accrue to the Partnership as a result of lease, vote, ~. Except as provided herein, neither this nor any interest of any of the parties herein, any interest in monies belonging to or which may may be assigned, pledged, without prior written consent The right of any person, firm through or under any party hereto to, judgment creditors, receivers, garnishees, executors and administrators) against the right, title or interest of of property) hypothecated partner(s). claiming by, not limited assignees, any claim rentals or saies transferred or of the other or corporation (including, but trustees, to assert any Partner 16 shall be limited to the right to claim or receive after the distribution of =ash receipts to the respective partie~ has been completed. 9.3 Meraer~ Inter~retation~ Bfnd~na Aareememt. This Agreement (a) contains the entire understanding and agreement between the parties and may not be modified, supplemented or amended except as set forth in Section 7.1 hereof; (b) has been executed in and shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania; and (c) shall bind the heirs, personal representatives, l~ucceeeors and assiqns of the parties hereto. IN WITNESS WHEREOF, the par~le$ hereto, intending to be legally bound, have executed this Agreement the day and year first above written. WITNESS: PARTNEi:~;: Merle C.. Zin~ Blevens L. Zinn 17 EXHIBIT "B" ,:-//,F ~-'-/ s 6/,?/ t/lO, 05' lCaOa, ao ~. ~ 2oo, ao ge~' oo ~o 3oo. oo 3 oo 30o 300, 3 -I COMMONWEALTH OF PENNSYLVANIA COUNTY OF: C'qH/BERI.J~/D 09-3-01 I~O~D E. Ao~es~ 81 WAL~u'I' BOTTOM RO~ P.O. BOX 361 SHIPP~SB~G, PA ~o~ ~717) 532'7676 17257-0361 ROSE E. VARNER 262 HIOH MT ~D SHIPPENSBURG, PA 17257 NOTICE OF INTENT TO DEFEND PLAINTIFF: NAME and ADDRESS [-VARNER, ROSE E 262 RTGH MT RD SHIPPE~SB~RG, PA 17257 VS. DEFENDANT: NAME and ADDRESS CZINN, BT.EV~NS 201 NEWVIhLE RD Ni~iBO~tG, PA 17240 DocketNo.: CV-0000154-04 I ~ lDate F ed: 6/11/04 HEARING: CIVIL ACTION HEAKING Place:DISTriCT COOKT 09-3-01 6~ 81 WALnuT BOTTOM ROAD P.O. BOX 361 SHIPPENSB~G, PA 17257-03 iDate: 07/14/04 Time: 9:30 AM PLAINTIFF: VARNER, ROSE E YOU are hereby notified that the defendant named below has given notice of his intent to present a defense at the hearing in the above case. DEFENDANT: ZIlOg, BT.EVENS 6/29/04 Date z~W-,'''-'~'~/~ ~ My commission expires first Monday of danuary, 2006, EXHIBIT "C" DATE PRINTED: 6/29/04 1:37:45 PM COMMONWEALTH OF PENNSYLVANIA ;OUNTY OF: 09-3-01 HAROLD E. BENDER A~ 81 WALNUT BOTTOM KOAD P.O. BOX 361 SHIPPENSBURG, PA ~¢.~,o~ (717) 532-7676 ROSE E. VAP, NER 262 HIGH MT RD SHIPPENSBURG, PA 17257 17257'0361 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 262 HIGH MT RD SHIPPE/~SBURG, PA 17257 VS. DEFENDANT NAME and ADDRESS CZINN, BLEVENS 201 I~TE~VILLE RD NEWBU~/G, PA 17240 Docket No.: CV-0000154-04 / ~ Date Fi ed: 6/11/04 THIS IS TO NOTIFY YOU THAT: Judgment: ~ Judgment was entered for: (Name) E~ dudgment was entered against: (Name) in the amount of $ 2,: A~& -~fl on: ~ Defendants are jointly and severally liable, ~'~ Damages will be assessed on: []This case dismissed without prejudice. Amount of Judgment Subject to ~ Attachment/42 Pa.C.S, § 8127 $ - Portion of Judgment for physical [] damages arising out of residential lease $ FOR pT.ATI~TIFF V~,'RI~'R: R~-~'~ 'l~ (Date of Judgment) (Date & Time) Amount of Judgment $ 2,440.0_0 Judgment Costs $ 84.50 Interest on Judgment $ . O0 Attorney Fees $. . O0 Total $ 2,524.50 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON Pt. EAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THF JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. , District Justice y that this is a true and correct copy of the record of the proceedings containing the judgment. , District Justice Date My commission expires first Monday ot January, 2006 EXHIBIT "D" AOPC 315-03 DATE PRINTED: 7/27/04 COMMONWEALTH oF PENNSYLVANIA  J udicial Di~triot, County ~ C~[~ ~ ~ ' NoTiCE'OF ARP~L ~ No,c= i5 gNen t~t the agpellant ~=s fil=d~'~e above Cou~ o~ Comm~ PI=as an =ppoaJ from the juOgmeh{ ~en~ere~y.t~e-Bist~ic[ Jus[tce on NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON.PLEAS No. O~- ? ~'/] / . Z:Laa, ~laveae pRAECIPI= TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (Th $ SeCliOrl of form lo be used ONLY when upp~/lanI was DEEENOANT (see Pa.R.C.P.D.J. No. 1001(T) in action baforo DiStrict JU$I~ce. IF Enter rule upon ]~3,=e .~.. Va.l"lle]; .... ___ Civi9 } witmn [wenty [.20) clays alLer service of rule or ;,u~far antry of ju clgmem of non clros RULE: To P~.OBe ~.. Vs~"'~.~' ,e, ppeilee(s) or [n~s cule upo~Y~emonal sc.~i~y.ceff~ed or rog~stered mall (~) If y~ ~t file a com~talnt wlt~ln'~lS',ltme, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. 3 ~e~f so~i~ o~t"s.r[mlb If ~e~l~ ~G by mall Is ~e daL~ O[ the mailing. ~ ,..'~ . ~ ~ ; ~. '*, ,,~ , ,.~ ~ ~.. , -- ,', .-z,.,... ,...' ? ~ ~ YOU MU~T IN~D~O~F THE NOTIC~ OF JUD~MENTff~NSCRIPT FOR~ WITH THIS NOTICE O~ APPEAL. AOPC 3!2-02 EXH~BTT "E" ~OPY TO BE SERVED ON APPEU-E£ ROSE E. VARNER, Plaintiff/Appellee BLEVENS ZINN, Defendant/Appellant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA _. : NO. 04-3709-C][VIL : : CIVIL ACTION - LAW AFFIDAVIT OF SERVICE AND NOW, this 18th day of August, 2004, comes Mark A. Mateya, Esquire, Attorney for Plaintiff/Appellee, who, being duly sworn according to law, deposes and says that: 1. A Civil Complaint for Breach of Contract was filed on August 10, 2004. 2. On August 12, 2004, a certified copy of the Complaint was sent to the Defendant via certified mail, restricted delivery, return receipt requested pursuant to Pa. R.C.P. 1920.4. 3. On August 12, 2004, a certified copy of the Complaint was set to the Defendant via first class mail, postage prepaid. A copy of the Certificate of Mailing is attached hereto as Exhibit 'A' and is incorporated herein by reference. 4. On or about August 17, 2004, undersigned counsel for Plaintiff received the return receipt card signed by the Defendant which was not dated. Said receipt is attached hereto as Exhibit "B" and is incorporated herein by reference. Mark A. Mateya, EsqUire Attorney I.D. No. 78931 Attorney for Plaintiff P.O. Box 127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 Fax POSTAL SERVICE CERfmlCATE OF MAILING MAy BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT P~ROVIDE FOR INSURANCE--POSTMASTER Received From: ~ ~' ~1~, ~s~. One ~iece of ordinary mail addressed to: ~Ol ~vlLLE ~ PS Form 3817, Mar. 1989 EXHIBIT "A" (Endorsement Required) · Complete items 1, 2, and 3. Alsp complete item 4 if Restricted Delivmy is desired. · Print your name and address on the reverse es that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. Signature B. Received by ( Pdnted/~we) I C. Date of ~ 3. ce Type [~Ce~ifled Mall [] Express Mall (Transfer from PS Form 3811, August 2001 Domestic Return Receipt EXHIBIT "B" WAYNE F. SHAD Altomey at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 ROSE E. VARNER, Plaintiff BLEVENS Z1NN, Defendant and Third-Party Plaintiff : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-37,09 CIVIL TERM MERLE C. ZINN, Third-Party Defendant : JURY TRIAL DEMANDED 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 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 gou. 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 of 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 ()UT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO tEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Wayne ~. Shade, Esquire Supreme Court No. 15712 53 West Pomf?et Street Carlisle, Penn,.sylvania 17013 Telephone: 717-243-0220 Attorney for Defendant and Third-Party Plaintiff WAYNE Ariomey at Law 53 West Pomfret Slreet Carlisle, Pennsylvania 17013 ROSE E. VARNER, Plaintiff WAYNE F. SHAD[ Atloraey at Law 53 West Pomfret Street Carlisle, Pennsylvania ZINN, Defendant and Third-Party Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBER]LAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 04-3709 CIVIL TERM V. : C. Z1NN, : Third-Party Defendant : JURY TRIAL DEMANDED THIRD-PARTY COMPLAINT 1. Plaintiff ROSE E. VARNER has filed against Defendant Blevens Zinn a Complaint, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference as though fully set forth. 2. Third-Party Plaintiff is the above-captioned BLEVENS Z1NN. 3. Third-Party Defendant is MERLE C. ZINN who resides at 262 High Mountain Road, Shippensburg, Cumberland County, Pennsylvania 17257. 4. Prior to her transferring any of the funds, Plaintiff knew that Blevens Zinn and Merle C. Zinn were in business in a partnership that was governed by written documents. Attorney at Law 53 West Pomfret Streel Carlisle, Pennsylvania 17013 Prior to transferring any of the funds, Plaintiff!knew that she was loaning the funds to the partnership. 6. Prior to transferring any of the funds, Plaintiff knew that Merle C. Zinn was the managing partner of the partnership. 7. Prior to transferring any of the funds, Plaintiff knew that if she ever needed any information about the partnership, she could have asked Merle C. Zinn for the information. 8. Prior to transferring any of the funds, Plaintiffnever asked about the details of the partnership agreement between Merle C. Zinn and Blevens Zinn. 9. When Plaintiff transferred the funds, she did. not require the partnership to sign ~ for the loans. 10. When Plaintiff transferred the funds, she transferred them to Merle C. Zinn. 11. Plaintiff never transferred any of the funds to Blevens Zinn. 12. Prior to transferring the funds to Merle C. Zinn, Plaintiff never discussed the alleged partnership loans with Blevens Zinn. 13. Prior to transferring the funds to Merle C. Zinn, Plaintiff had no idea what, if any, discussions had taken place between Merle C. Zinn and Blevens Zinn concerning any loans from Plaintiff to the partnership. 14. Plaintiff has stated under oath that any such conversations, between Merle C. Zinn and Blevens Zinn concerning any loans from Plaintiff to the partnership, were none of her business. 15. Merle C. Zinn has lived continuously with Plaintiff in a house owned by Plaintiff at least July 1, 1995, when the written partnership agreement between Merle C. Blevens Zinn for Zinn Bros. Logging was, signed by the partners. 16. Prior to transferring the funds to Merle C. Zinn, Plaintiff knew that the place that was designated by the partnership as the principal office of the partnership was actually her residence where Plaintiff lived with Merle C. Zinn. -3- WAYN 53 West Pomfret Street Carlisle, Pennsylvania 17013 17. Prior to transferring the funds to Merle C. Zinn, Plaintiff knew that Merle C. Zinn had possession of the partnership checkbook. 18. The written Partnership Agreement attached to the Complaint provides in ¶5.2(D) that the consent of a majority of the partners was required with respect to the borrowing of any sum of money the result of which would be to increase the debt of the partnership. 19. The written Partnership Agreement attached to the Complaint provides in ¶2.1 that both of the two partners, were equal partners. 20. Where both partners of the partnership were equal partners, the consent of both would have been required under ¶5.2 of the written Partnership Agreement I to the Complaint in order to achieve consent of a majority of the partners prior to ,, incurring of any obligations to Plaintiff on the part of the partnership. 21. Blevens Zinn was never consulted prior to any financial transactions between Plaintiff and Merle C. Zinn so that any obligation to Plaintiff is the personal obligation of Merle C. Zinn. -4- WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 22. The partnership assets were sold at public sale in September of 2001. 23. Merle C. Zinn purchased some of the partnership assets at the public sale for his own, personal use. 24. By reason of the aforesaid, Blevens Zinn avers that Merle C. Zinn is (a) solely liable on Plaintiffs cause of action, or (b) liable over to Blevens Zinn on Plaintiffs cause of action, or (c) jointly or severally liable with Blevens Zinn on Plaintiffs cause of action, or (d) liable to Blevens Zinn on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which Plaintiff s cause of action is based. WHEREFORE, l'hird-Party Plaintiff Blevens Zinn demands judgment against Third-Party Defendant Merle C. Zinn for any sums awarded to Plaintiff against Third- Party Plaintiff as Defendant. Wayne 1~. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Defendant and Third-Party Plaintiff -5- I verify that the ~,;tatements made in the foregoing Third-Party Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification 1:o authorities. Date: August 30, 2004 Blevens Zinn WAYNE F. SHADE Attorney al Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 ROSE E. VARNER, Plaintiff/Appellee BLEVENS ZINN, Defendaat/Appellant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 04-3709-C][VIL : : CML ACTION - LAW : NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIM SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTEP` THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITrF, N APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OK OBJECTIONS TO THE CLAIMS SET FOP-TH AGAINST YOU. YOU ARE WARNED THAT IY 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 LA~CFYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE Tile O~FFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN ~E'I' LEGAL HELP. CUMBERLAND COUNTY LAWn/ER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 717-249-3166 NOTICA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VEINTE (20) DIAS DE PI. AZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA O EN PERSONA O POP- ABOGADO Y ARCIIlVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSAS O SUS OBIECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDA ENTRAR UNA ORDEN CONTRA USTED SIN PP`EVIO AVISO O NOTIFICACION Y POR CUALQUIEP- QUEJA O ALIVIO QLIE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PEP, DER DINERO O SUS PROPIEDADES O OTROS DERECHOS IMPOP-TANTES PARA USTED. T.I,FNE ESTA DEMANDA A UN ABOGADO IM/VEEDIATAMENTE. SI NO TW. NE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TF.I,EFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REIFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 ~" ?., ~.~ 717-249-3166 Prothon~ EXHIBIT "A" ROSE E. VARNER, Plaintiff/Appellee BLEVENS ZINN, Defendant/Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-3709-C][VIL CIVIL ACTION - LAW .COMPLAINT AND NOW comes the Plaintiff/Appellee, Rose E. Vamer, by and through her counsel, Mark A. Mate)a, Esquire, and in support of her complaint avers the following: 1. Plaintiff/Appellee, is Rose E. Varner, who is an adult individual currently residing at 262 High Mountain Road, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendant/Appellant, Blevens Zinn, is an adult individual currently residing at 201 Newville Road, Newburg, Cumberland County, Pennsylvania. 3. Defendant/Appellant Blevins Zinn and his brother Merrill Zinn operated a business known as Zinn Brothers Logging (hereinafter "Partnership"). ,gee exhibit A, attached hereto and incorporated by reference herein. 4. The Partnership is in the business of timber harvesting and work related thereto. 5. The Partnership incurred business debts as part of their normal course of business. 6. On or about September 7, 1995, the Partnership ent~xed into a loan agreement with the Plaintiff/Appellee for eleven thousand dollars ($11,000); Merrill Zinn and Blevins Zinn, the Defendant/Appellant herein, agreed that the Parmership would pay back the amount of the loan and/or each would pay back the amount of the loan to the Plaintiff/Appellee in equal shares. 7. The September 7, 1995 agre, ement was verbal and was wimessed by all of the parties to the loan. 8. On or about November 29, 1995, the Partnership ent~,xed into a loan agreement with the plaintiff/Appellee for eight thousand, four hundred dollars ($8,400); Men'ill Ziun and Blevins Zirm, the Defendant/Appellant herein, agreed that the Partnerslhip would pay back the mount of the loan and/or each would pay back the amount of the loan to the Plalntiff/Appeilee in equal shares. 9. The November 29, 1995 agreement was verbal and was witnessed by all of the parties to the loan. 10. On or about August 27, 1997, the Parmership entered into a loan agreement with the Plaintiff/Appellee for ten thousand hundred dollars ($10,000); Merrill Zinn and Blevins Zinn, the Defendant/Appellant herein, agreed that the Partnership would pay back the amount of the loan and/or each would pay back the amount of the loan to the Plaintiff/Appellee in equal shares. 11. The August 27, 1997 agreement was verbal and was witnessed by all of the parties to the loan. 12. The partnership has paid to Plaintiff/Appellee all but four thousand eight hundred and eighty dollars. See exhibit B, attached hereto and incorporated by reference herein. 13. Merrill Zinn has paid his one-half of the amount due, according to the agreements regarding the loans. 14. The Defendant/Appellant has failed to repay his portion of the loan agreements. 15. As a result of the failure of Defendant/Appellant to repay the monies owed in accordance with the loan agreement, Plaintiff/Appellee filed a complaint with the Honorable 2 District Justice Harold E. Bender on June 11, 2004. A copy oft'he district justice complaint is attached hereto as Exhibit C and is incorporated herein by reference. 16. On or about July 27, 2004, the Honorable District Justice Harold E. Bender entered a Judgment in favor of Plaintiff/Appellee and against Defendant/Appellant in the amount of two thousand, five hundred twenty-four dollars and fifty cents ($2,5:34.50). A copy of the Judgment entered by the District Justice is attached hereto as Exhibit "D" and is incorporated herein by reference. 17. On or about July 29, 2004, Defendant/Appellant filed an Appeal from the Judgment entered by the Honorable District Justice Harold E. Bender. A copy of the Appeal filed by the Defendant/Appellant is attached hereto as Exhibit "E" and is incorporated herein by reference. 18. This complaint is filed in response to Defendant/Appellant's appeal from Judgment. BREACH OF CONTRACT 19. Paragraphs 1 through 18 above are incorporated herein by reference. 20. There are three (3) separate contracts between the parmership and Plaintiff/Appellee herein, as referenced more fully in paragraphs six (6) through eleven (11) above. 21. Defendant/Appellant Blevins Zinn and Merrill Zimt, partners of the Partnership, in their own capacity as individuals are surety and/or guarantors of the three contracts referenced more fully in paragraphs six (6) through eleven (11) above. 22. Plaintiff/Appellant provided adequate consideration, as referenced more fully in paragraphs six (6) through eleven (11) above. 23. Partnership and Defendant/Appellant validated the existence of the contract by providing consideration to Plaintiff/Appellee, as referenced by exhibit B 24. Defendant/Appellant knew, or should have know that payments were made from the Partnership to Plaintiff/Appellee. WltEREFORE, upon consideration of the foregoing, it is hereby respectfully requested that this Honorable Court issue an Order in favor of Plaintiff/Appellee in the mount of $2,440.00 along with reasonable attorney fees, costs and such other relief as this Court deems appropriate. Respectfully submitted, Date: Mark A. Matey~, Esquire Attorney I..D. No. 78931 P.O. Box ][27 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-.3099 Fax Counsel for Plaintiff/Appellee 4 ~VERIFICATION I, Rose E. Vamer, hereby verify that the statements made in the foregoing Complaint are true and correct, and further, I understand that false statements therei[n are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to auth~odties. Rose E. Varner THIS AGREEMENT, executed this day of , 1995, by and between MERLE C. ZINN and BLEVENS L. ZINN, (hereinafter collectively referred to as the "Partners"). WHEREAS, the parties hereto desire to form a partnership for the purpose of engaging in the business of timber harvesting, as well as investment into other business fields, as the Partners shall unanimously agree. WHEREAS, the parties hereto desire to define the terms and conditions of their partnership and to co~it their agreement to writing. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows: ~. rO~/(ATION OF GBNERAL P~TN~RSHIP 1.1 F_~. The parties do hereby form a general partnership pursuant to the Uniform Partnership Act of the Commonwealth of Pennsylvania, 15 Pa.C.S.A. §8301 et. seq., (the "Act") for the purposes herein provided. 1.2 ~lJ.O. The business of the conducted under the name ZINN BROS. "Partnership"), which name shall be registered with Department of State of the Commonwealth of Pennsylvania. 1.3 ~_~ose. The purpose of the Partnership shall be to engage in the business of timber harvesting, and to do any and Partnership shall be LOGGING (hereinafter, the EXHIBIT "A" all acts as shall he necessary and incidental thereto, as well,as =o engage in such other business as shall be agreed upon by the Partners. 1.4 ~vinciDal Office a~d Place of Business. office of the Partnership Mountain Road, Shippensburg, at the same location. The principal shall be maintained at 262 High PA 17257, and its principal place of busin 1.5 Term. The Partnership shall commence on the date ~of execution hereof and shall continue in existence until terminated in accordance with the provisions hereof; provided, however, that any acts, including but not limited to the entry i~to negotiations for and the execution of any agreements, commitments, contracts, writings, or other understandings by any Partner in furtherance of the business of the Partnership prior to such date are hereby ratified and confirmed as authorized and valid actions of the Partnership. 1.6 Fiscal Year. The fiscal year of the Partnership shall begin January I and end December 31 of each year. II, CAPITAL CONTRIBUTIONS 2.1 contributions of Partners. The capital of the Partnership shall initially be contributed 50% each by MERLE C. ZINN and BLEVENS L. ZINN, and shall be in such amounts as =he Partners shall mutually agree upon. Such capital shall be used for organization, asset acquisition, financing, legal and such other expenses and purposes as shall be jointly agreed upo~ by the Partners. 2 It business profits 50% to is the Partners' intention to operate the partnership in such a manner that any distribution of partnership shall be divided on a 50/50 basis between the partners, MERLE C. ZINN and 50% to BLEVENS L. ZINN for record- keeping purposes relative to their income accounts: 2.2 Ca ta ounts. A separate capital account shall be maintained for each Partner. No Partner shall withdraw any part of his capital account without the unanimous written consent of the Partners. If the capital account of a partner becoles impaired, his share of subsequent partnership profits shall be first credited to his capital account until that account has been restored, before such profits are credited to his income account. As used herein, the term #capital account" of each Partner as of any date shall mean the amount of cash initially contributed by such Partner to the capital of the Partnership in accordance with the provisions hereof, properly adjusted to reflecu (i) the distributive shares of such Partner of income, gain, expense, loss, deduction or credit of the Partnership, including, if such date shall not be the close of the fiscal year of the Partnership, the distributive share of such items of the Partnership for the period from the close of the last fiscal year of the Partnership to such date, and (ii) distributions by the Partnership to such Partner, including, if such date shall notibe the close of the fiscal year of the Partnership, distributions by the Partnership to such Partner during the period from the close of the last such fiscal year of the Partnership to such date. 3 2.3 Interest. No interest shall be paid on the initial capital contributions of the Partners, nor shall interest be paid on any subsequent contributions of capital. If, however, ~he Partners unanimously agree to borrow money from any Partner, and that then paid. borrowing is evidenced by a note executed by all Partners, interest in accordance with the tel.-ms of the note may be ZIZ, P~OpITB ~ND LOBd~EB 3.1 allocation of Profits and L~ss~. Ail income, gains, losses, expenses and liabilities of the Partnership shall be distributable or chargeable, as the case may be, to the Part~es in accordance with their respective percentage interests in =he Partnership, as set forth in Section 2.1 hereof.' 3.2 o ¢ u ts. A separate ii, come account shall be maintained for each partner. Profits and Losses shall be credited or debited to the separate incolae accounts as soon as practicable after the close of each fiscal year. If a Partner has no credit balance in his income account, losses shall ibe charged to his capital account. 3.~ D~strfhutions. The net cash flow of the Partnership shall be distributed to the Partners in accordance with ~he percentage interests set forth in Section 2.1 hereof, at the end of each fiscal year of the Partnership and at such other times as the Partners shall mutually agree. As used herein, the term "net cash flow" of the Partnership with respect to any period shall mean all cash receipts of the Partnership less all cash 4 disbursements thereof during such period,, as shown on the bOOks of the Partnership, but reduced by such reserves for anticipated expenses, and for amortization of the indebtedness of the Partnership, which reserves shall equal $5,000.00 unless the Partners shall deem a greater or lesser amount to be reasonably necessary or appropriate for the efficient conduct of the business of the Partnership: provided, however, that such not include the following: Contributions to the capital of 'the Partnership: Costs of organization of the Partnership; receipts and disbursements shall A) B) C) Loans of the Partnership; and D) Distributions to the Partners accordance with this section: the Partnership in PROVIDED HOWEVER, that the net cash flow of the Partners~ip shall include any other funds, including, but not limited to any amount previously set aside as reserves by the Partners and no longer regarded as reasonably necessary in the efficient conduct of the Partnership business, deemed to be available for distribution and designated as part of the net cash flow of the Partnership by the Partners. 3.4 ~. Each partner shall receive a salary from the operation of the partnership business. This salary, which sh~ll be in the amount of $400.00 per week for each partner, regardless of the actual number of hours worked by each partner per week. No partner shall receive any additional salary, compensation or guaranteed vote of the Partners and reduced to writing within one week such vote. payments unless the same are approved by a majority from 4.1 EXPenses. All operating expenses, taxes (except income taxes payable by the Partners), legal, filing and accounting fees and other expenses incurred by the Partnership in connection with the organization of the Partnership and the conduct of its business shall be borne by the Partnership and shall be char~ed to the capital accounts of the Partners according to =he percentages set forth in Section 2.1 hereof. V. MANAGBM~NT 5.1 ~art%¢~a%i~m in Management. The Partnership shall have one managing partners. The first managing partners shall be MERLE C. ZINN, and may be succeeded by s'uch other par%net(s) as shall achieve a majority vote of the parties. The managing partner shall be entitled and authorized, in the intervals between partnership meetings to act on behalf of the Partnership, including the right to make appllcation for permits and approvals, to engage contractors and supervise projects for =he Partnership, to hire and terminate employees, contractors and material suppliers, to award bids and contracts, to supervise and direct the investment of partnership funds, to make decisions and execute agreements, contracts, checks and other written instruments in the partnership name concerning or relating to ~he management, administration and affairs of the pertnership, including, but not limited to execution of all documents for the acquisition and financing of partnership projects, or incidental to the projects. To the extent possible, prior to making decisions and/or executing agreements in the intervals between partnership meetings, any managing partner acting on behalf of the Partnership shall consult with the other partners personally or by telephone concerning the material factors affecting any such decision, but the decision of the managing partner shall be final and binding upon the Partnership. 5.2 actions Rs~uirino Ma4orit¥ Consent. Notwithstanding the provisions of Section 5.1, the consent of a majority of the Partners shall be required with respect to the following matters of management, conduct and operation of tile partnership business: A) the sale and conveyance of property owned by the Partnership, on such terms as the majority may determine; B) The mortgaging of property owned by the partnership, whether such mortgage be a first or second mortgage lien; C) The making of any agreement~ modifying any such mortgage; D) The borrowing of any sum of money the result of which would be to increase the debt to the partnership, exclusive of trade or regular accounts payable; E) The lending of money on behalf of the partnership, except with unanimous consent of the Partners; F) The leasing of partnership property; G) release any of the claims of or debts due th~ partnership except upon The assignment, pledge, transfer, compromise or of payment in full, or arbitration or consent to the arbitration of any of the disputes or controversies of the partnership; and H) The pledge, hypothecation or transfer by any partner of his interest in the partnershiP, except to the other parties to this agreement. 5.3 ~. If any disagreement shall arise between the Partners in respect to the conduct of the partnership business, its dissolution, or in respect to any matter, cause or thing whatsoever, not herein otherwise provided for, the dispute shall be decided by a majority decision of three (3) arbitrato=s, by which the Partners agree to abide. Each partner, or ~is heirs, executors, or administrators, shall have the right ito appoint one arbitrator and the two arbitrators so appointed shall appoint the third arbitrator. The decision of the arbitrators shall be final, and the cost of the same shall be borne equally be the Partners. 5.4 other Business Interests of Partners. Each Partner may have other business interests and may engage in any other business, trade, profession or employment whatsoever, on his own account, or in partnership with or as an .employee or an officer, director or shareholder of any other person, firm or corporation. Partners shall not be required to devote their entire time to the business of the Partnership. However, each Partner shall devote at least 75% of his time to partnership business. 5.5 ~. An account or accounts in the name of the Partnership shall be maintained in such bank or banks as to time. All shall be designated by the Partners ~rom time 8 monies belonging to the Partnership and all instruments for the payment of money to the Partnership, when received, shall be deposited in said bank account or accounts. All accounts payable, debts, obligations and bills of said Partnership, and for Partnership purposes solely, shall be paid by check on/y, drawn in the name of the Partnership against said bank accounti or accounts and signed by either Partner. VI. P~ORDg AND ACCOUNTING 6.1 Records and Accountina. The Partners shall keep and retain the books and records relating to the business of the Partnership at the Partnership's principal place of business and each Partner and/or his authorized agent or attorney shall have access to them at all which shall be kept accounting principles, reasonable times. The books and records, in accordance with generallv accepted shall be closed and balanced at the end!of each may be fiscal year. If requested by any Partner, an audit which or may not be certified, as the Partners shall agree, shall made as of the end of each fiscal year, and the expense of such audit shall be a partnership expense. If any two partners request in writing, an audit for the fiscal year shall be performed prior to the end of the fiscal year. The expense of such audit shall be a partnership expense. VII. 7.1 A~- If at any time du. ring the ter~n of the Partnership the Partners deem it necessary' and desirable to amend this Agreement, said amendment shall be effective if embodied in an instrument signed by all Partners. VIII. WITHDRAWAL FROM~NDTERMINATION OF PARTNE£~HIP 8.1 ~. Upon the withdrawal of any Partner, either voluntarily or involuntarily, the Partnership shall continue in effect upon the following terms and conditions: A. Death. In the event of the death of any Partner, the remaining Partner(s) shall have the option to purchase the entire partnership interest of the deceased Partner for an amOUnt equal to the value of the capital account of such Partner as computed and payable in accordance with the terms and conditi~ns of Paragraphs C, D and E of this Section 8.1. Said option mUst be exercised by written notice to the E:~tate of the deceased partner within ninety (90) days after the date of death. If the option is not exercised within the aforesaid ninety (90) day period, the Partnership shall terminate and the assets shall be distributed pursuant to Section 8.2 hereof. B. Voluntary Withdrawal. Any Partner shall have the right to withdraw from the Partnership at any time upon giving ninety (90) days prior written notice to the other Partners. In such event, the continuing Partner(s) shall have the option to purchase the entire Partnership interest of the withdrawing partner for an amount equal to the val~e of the capital account 10 oX such Partner as computed and payable in accordance with the terms and conditions of Paragraphs C, D and E of this Section 8.1. Said option must be exercised by written notice to the withdrawing Partner within ninety (90) days after the remaining Partner(s) receive the notice of withdrawal. If the option is not exercised within the aforesaid ninety (90) day period, the Partnership shall terminate and the assets shall be distributed pursuant to Section 8.2 hereof. C. of account V_A~]A~. In determining the value of the capital the deceased or withdrawing Partner, the capital account of such Partner shall be taken from the Partnership books of account as of the last day of the month in which the period iof ninety (90) days expires after either the date of death or after the notice of withdrawal is given under Paragraph B of this Section 8.2 (,,Valuation Date"). Said w~lue shall include all credits and charges for net profit, ne~t losses, withdrawals, distributions and contributions as of the Valuation Date but shall not include any allowance for goodwill, trade name or other intangible assets, except for costs incurred by the Partnership in the acquisition of such intangible assets as are reflected on the Partnership books of account. For the purpose of this Section 8.1, the books of account shall be conclusive on both Partners. The capital account of such Partner shall be adjusted by adding thereto or subtracting therefrom any increase or decrease in the fair market value of any real property then owned by the Partnership from the book value of such real property as shown on the books of account of the Partnership as of Valuation 11 Date. The fair market value of the real property shall be determined as of the above Valuation Date in the following manner: the withdrawing Partner or the personal repz'esentative of the deceased Partner shall select .an appraiser and ~he remaining Partner shall select an appraiser. The two appraisers so selected shall confer and determine the value of the real property as of the Valuation Date. In the event that the ~wo appraisers so selected cannot agree as to the value of ~he property within thirty (30) days after the Valuation Date, then the two appraisers so selected shall promptly select a third appraiser and the appraisal of the m~ajority of the th=ee appraisers shall be binding upon the withdrawing Partner ior estate of the deceased Partner and the re~maining Partner. Such appraisal shall be in writing and shall, be delivezed to the Partners within fifteen (15) days after the two appraisers are selected or after the third appraiser is chosen. D. ~. The closing of the purchase and sale of Partner's interest pursuant to this Section 8.1 shall be held within thirty (30) days after the appraisal has been received by the Partners. At such closing the withdrawing Partner or ~he personal representative of the deceased Partner shall deliver to the remaining Partner a general warranty or fiduciary deed respectively, conveying good and marketable title to ~he withdrawing or deceased Partner's interest in such real property as shall be insurable by a reputable title insurance company, subject only to such matters of record as existed at the time ~he Partnership initially acquired title ~o such property or such 12 matters of record as the Partners shall have mutually agreed in writing to place or impose upon the real estate after acquisition of the property. On closing, the withdrawing Partner or ~he Estate of the deceased Partner shall have no further right or interest in any of the Partnership property or to any compensation, payment or any other amount from the Partnership except as set forth above. The withdrawin~ Partner or estate of the deceased Partner and the remaining Partner shall split and pay ec~/ally the cost of any transfer taxes to be affixed to ~he deed ~rom the withdrawing Partner or estate of the deceased Partner as aforesaid and any other expenses (other than tames payable by the withdrawing Partner or estate of the deceased Partner as the result of such sale) incurred in connection with said transfer. The amount to be paid to the withdrawing Partmer or estate of the deceased Partner pursuant to the terms of this Section 8.1 shall be paid in cash or, at the option of ~he remaining Partner, by a promissory note of the remaining Partner, due up to five (5) years after the date thereof, payable in equal successive quarter-annual installments after the date thereof and bearing interest also payable quarter-annually on the principal balance at the then applicable Federal rate as in Section 1274 of the Internal Revenue Code of 1986 as or the Law. E. withdrawing interest corresponding provision of any future Internal · ' ' . Following the transfer Partner or estate of the deceased partner unpaid defined amended Revemue in said real property, the ~remaining by the of His partner shall 13 indemnify and hold harmless the deceased or withdrawing partner, his heirs, personal representatives and assigns, from and against any and all indebtedness of the partnership used in reduction of the capital account of the withdrawing or deceased Partner, including any mortgages which may be liens against said real property of the Partnership and all amounts used in ~he computation of the net profit or net loss as set forth above. Otherwise, the deceased or withdrawing Partner and the remaining Partner shall be equally liable and responsible for all claims, liabilities and indebtedness arising from, out of or for the Partnership prior to the transfer. 8.2 Tprminatien of partnershiP. Subject to the terms and provisions of Section 8.1 hereof, the Par~nership shall continue indefinitely from the date of this Agreement ~til the happening and occurrence of any of the following events, at which time ~he Partnership shall terminate: A) Upon the mutual agreement of the Partners; B) Upon the adjudication of bankruptcy or insolvency of any Partner; C) Upon the appointment of a receiver for or an assignment for the benefit of creditors of any Partner: D) Upon the breach or default of any of the terms of this Agreement by any Partner, at the election and option, majority vote, of the non-faulting partner(s); and E) Upon the sale of the Partnership interest of any Partner as provided in Section 8.1 hereof, at the option of a majority of the purchasing Partners. 14 8.3 pursuant conducted ~. Upon the termination of the Partnership to Section 8.2 hereof, no further business shall ibe in the Partnership name except for the completion incomplete transactions and the taking of such action as shall ~be necessary for winding up of the affairs of the Partnership and the distribution of its assets. The Partners shall appoint, one of the Partners to act as liquidator for the Partnership and for such services, said Partner shall receive such compensation as the Partners shall mutually agree. In the winding up and liquidation of the Partnership business, which shall !be accomplished as rapidly as business circumstances and orderly business practices permit, the Partnership assets shall be applied in the following order: A) To the payment of the debts and liabilities of ~he Partnership owing to creditors other than Partners, and to the expenses of liquidation; B) To the payment of debts and liabilities owing to Partners, other than for capital and profit; C) To the repayment of capital contributed by the Partners. If the Partnership assets are not sufficient to repay such capital contributions in full, the assets shall be distributed to the Partners pro rata, according to the ratio that the amount of the respective capital contribution of the each Partner bears to the amount of all capital, contributic~s of both Partners; 15 D) The surplus, if any, of the assets remaining shall be divided between the Partners in accordance with each Partner's respective interest in said Partnership as set forth in Section 2.1 hereof. IX. MISCELLANEOUS 9.1 Voting. Except as otherwise provided herein, each partner shall be entitled to one vote in all Partnership decisions for each percentage interest wi~ich he holds in ~he 9artnership; provided, however, that ti~e death, insolvenCY, bankruptcy or placing into receivership ,of any Partner shall terminate his voting rights, managerial rights and any and 411 other decision making rights hereunder. In such event, ~he remaining Partners shall have full power .and authority to manage and decide as to all partnership matters. 9.2 Assignment. Agreement, nor (including any accrue to the Partnership as a result of lease, of property) hypothecated partner(s). claiming by, not limited assignees, any claim Vo~e~ Except as provided herein, neither this any interest of any of the parties herein, interest in monies belonging to or which may may be assigned, pledged, without prior written consent The right of any person, firm through or under any party hereto to, judgment creditors, receivers, garnishees, executors and administrators) against the right, title or in'~erest of rentals or sa~es transferred or of the other or corporation (including, but trustees, to assert any Partner shall be limited to the right to claim or receive after the distribution of cash receipts to the respective parties has been completed. 9.3 Agreement between amended executed Meraer~ Inter~rstation~ Bindina Aar=-----e~l. This (a) contains the entire understanding and agreement the parties and may not be modified, supplemented !or except as set forth in Section 7.1 hereof; (b) has been in and shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania; and (c) sh~ll bind the heirs, personal representatives, successors a,~d assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this Agreement the day and year first above written. WITNESS: PARTNERS :: Merle C. Zinr~f Blevens L. Zinn 17 1~0 EXHIBIT "B" 3 oe~, oo ~0 COMMONWEALTH OF PENNSYLVANIA COUNTY OF.: "--~'~g o,,l~ ~. 09-3-01 DJ Name Hon HAROLD E. BENDER ,'~,:,e~ 81 WALNUT BOTTOM ROAD P.O. BOX 361 SHI PPENSBURG, PA (717) 532-7676 17257-0361 ROSE R. VARNRR 262 HIGH MT RD SHIPPENSBURG, PA 17257 HEARING: CIVIL ACTION NOTICE OF INTENT TO DEFEND PLAINTIFF: ~A~R · ROSE E NAME and ADOR~SS 262 HIGH MT RD SHIPPENSBURG, PA 17257 L DEFENDANT: VS. ~ZINN, BnA"¢ENS 20~ N~L~ ~ ~URG, PA 17240 Date ~ed: 6/~/04 J Date:O'7/~/04 Place:DIS~C~ .COURT 09-3-01 ' IL --- II ~'.o. sox 36z II PLAINTIFF: VARNER, ROSE E You are hereby notified that the defendant named below has given notice, of his intent to present a defense at the hearing in the above case. DEFENDANT: ZINN, BLEvENS 6/29/04 My commission expires first Monday of January, 2006, EXHIBIT "C" DATE PRINTED: 6/29/04 1:37:45 PM COMMONWEALTH OF PENNSYLVANIA COUNTY OF; CUMBERLAND 09-3-01 HAROLD E. BIn~IDF~R 81 WALNUT BOTTOM ROAD P.O. BOX 361 SHIPPENSBURG, PA ,,~pho.. (717) 532-7676 ROSE E. YARNER 262 HIGH MT RD SHIPPENSBURG, PA 17257 17257-0361 NOTICE OF JUDGMI~NT/TRANSCRIPT PLA'NT~FF: CIVIL CASE ~ARN~:R, ROSE E S~IPP'~SB~G, PA 17257 k D~FENDANT: VS. 20I ~ILLE ~ ~(G, PA 1~2~0 THIS IS TO NOTIFY YOU THAT: Judgment: ~ Judgment was entered for: (Name) ~_ ~ Judgment was entered against: (Name) _ in the amount of $ __ _ ~-- c;~'4 - ~0_ on: (Date of Judgment) ~ Defendants are jointly and Severally liable. (Date & Time) ~ Damages will be assessed on: [~ This case dismissed without prejudice. ~ Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8~27 $ Portion of Judgment for physical damages arising out of residential lease $ ': 6/11/04 ~: c-'v-0000154-04] A~o-~nt of Judgment Judgment Costs Inlerest on Judgment Atl~.orney Fees Total $~. ~.00 Post Judgment Credits $ .... Post Judgment Costs $_ Ce,lifted Judgment Total $~ __ ANY PARTy HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPy OF THIS NOTICE OF JUDGMENT/TRANSCRiPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED tN THE RULES OF CIVIL PROCEDURE FOR DISTR,ICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT UP COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ~ _, District Justice I certify that this is a true and correct copy of the record of the proceedings containing the judgment. - ~ Date , District Justice J My Commission expires first Monday of January, 2006 AOPC 315-03 DATE PRINTED: 7/27/04 EXHIBIT "D" COMMoNWFALTH O~ ..... "} " ' FROM . : ~ " ' DI~ICTJUSTicE JUDGMENT ~ED. a.racl~ tr~. c o~CIPE TO ENTER RULE TO FILE COMP~INT AND RUL to be used ONL y ~=n epo~/~l ~ OEFENDANT (~ee pa,R.C.P,O.~ upon ~Se ~. ~~ ) Within .... ~ ~P~el/o~S), b ~e a ~D~ln{ In ~ a~ea~ ~en~y (2D) da~ a( er se~e of upo~v~,2',~2'?t e'ml~ Is'~e&bv enter-- ~ -~ -' . - ~ .. w~,cun~a or rogistereo ~.comolalnI in lhb Y~,~o ~ot ~e a co~p~alnl wl[~l~'~l~' ....... - mail ...... a uuu~MENT OF NON PROS A.a~ ~E NOTIc~ OF JUDGMENTff~Ns EX~B~ 'E' CRfPT FORM WITH THIS NOTICE OF APPEAL COPY TO BE SERVE~oN APPELLEE 8~:TT E. VARNER, Plaintiff ZINN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-3709 CIVIL TERM : : JURY TRIAL DEMANDED NOTICE OF PLEAD TO: Mark A. Mateya~ Esquire and Rose E. Varner ,) You are hereby notified that you have twenty (,,0) days in which to plead to the within New Matter or a Default Judgment may be entered against you. Date: September 1, 2004 Wayne F~'Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attomey for ]Defendant WAYNE F. SHADE Atlomey at Law 53 West Pomfret Street Carlisle, PennsyLvania ROSE E. VARNER, Plaintiff BLEVENS ZINN, Defendant WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 Admitted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-3709 CIVIL TERM JURY TRIAL DEMANDED ANSWER WITH NEW ].MATTER The averments of¶4 of the Complaint are denied. On the contrary, Defendant avers that the partnership has not been in business as a Partnership since September of 2001 when the assets of the business were liquidated at public sale. 5. The averments of¶5 of the Complaint are denied. On the contrary, Defendant avers that ¶5.2(D) of the Partnership Agreement expressly required the consent of a majority of the partners for the borrowing of any sum of money the result of which would be to increase the debt of the partnership, exclusive of trade or regular accounts payable. 6. The averments of¶6 of the Complaint are denied. On the contrary, Defendant avers that any loan transaction in September of 1995 was between Plaintiff and Merle C. Zinn and that Defendant was never consulted prior to any such transaction. WAYNE F. SHADE Altomey at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 The averments of¶7 of the Complaint are denie, d. On the contrary, Defendant avers that any loan transaction in September of 1995 was between Plaintiff and Merle C. Zinn and that Defendant was never consulted prior to any such transaction. 8. The averments of¶8 of the Complaint are denied. On the contrary, Defendant avers that any loan transaction in November of 1995 was between Plaintiff and Merle C. Zinn and that Defendant was never consulted prior to any such transaction. 9. The averments of¶9 of the Complaint are denied. On the contrary, Defendant avers that any loan transaction in November of 1995 was between Plaintiff and Merle C. Zinn and that Defendant was never consulted prior to any such transaction. 10. The averments of¶10 of the Complaint are denied. On the contrary, Defendant avers that any loan transaction in August of 1997 was between Plaintiff and Merle C. Zinn and that Defendant was never consulted prior to any such transaction. 11. The averments of¶l 1 of the Complaint are denied. On the contrary, Defendant avers that any loan transaction in August of 1997 was between Plaintiffand Merle C. Zinn and that Defendant was never consulted prior to any such transaction. -2- WAYNE F. SHADE A~orney at Law 53West Pomfret Street Carlisle, Pennsylvania 17013 12. The averments of¶12 of the Complaint are denied. On the contrary, Defendant avers that the Partnership Agreement attached to the Complaint provides in ¶5.1 that the managing partner of the partnership was Merle C. Zinn. Defendant further avers that the written Partnership Agreement attached to the Complaint provides in ¶5.5 that all debts of the partnership were to be paid by check only. Defendant avers that he has no knowledge of how the numbers in Exhibit "B" to the Complaint were calculated or as to whether or not the payments made in said Exhibit "B" were made', by check, and proof thereof is demanded. 13. The averments' of¶13 of the Complaint, being conclusions of law, no response is required. By way of fu~ther response, Defendant avers that the details of any checks from Merle C. Zinn to Plaintiff are within the knowledge of Plaintiff and Merle C. Zinn; and proof thereof is demanded. 14. The averments of¶14 of the Complaint are denied. On the contrary, Defendant avers that he was never consulted with regard to any loans from Plaintiff to the partnership and that an3' obligation to Plaintiff is the personal obligation of Merle C. Zinn. -3- WAYNE F. SHADE AUoxney at Law 53 West Pom£ret Street Carlisle, Pennsylvania 15. The averments of¶15 of the Complaint are admitted in part and denied in part. It is admitted that Plaintiff filed the Complaint averred, but it is denied that the Complaint was filed as a result oflhe failure of Defendant to pay monies owed to Plaintiff. On the contrary, Defendant avers that he was never consulted with regard to any loans from Plaintiff to the partnership and that any obligation to Plaintiff is the personal obligation of Merle C. Zinn. 16. Admitted. Admitted. Admitted. 17. 18. 19. The averments' of¶¶l through 18 of the Complaint, being at issue, no response is required. 20. The averments of¶20 of the Complaint are derded. On the contrary, Defendant avers that he was never consulted with regard to any loans from Plaintiff to the -4- WAYNE F. SHADE Atlomey at Law 53 West Pomfr¢! Street Carlisle, Pennsylvania partnership and that an3 obligation to Plaintiff is the personal obligation of Merle C. Zinn. 21. The averments' of~121 of the Complaint, being conclusions of law, no response is required. By way of further response, Defendant avers that he was never consulted with regard to any loans from Plaintiff to the partnership and that any obligation to Plaintiff is the personal obligation of Merle C. Zinn. 22. The averments of~22 of the Complaint are denied. On the contrary, Defendant avers that he was never consulted with regard to any loans from Plaintiff to the partnership and that an3' obligation to Plaintiff is the ]personal obligation of Merle C. Zinn. 23. The averments of~123 of the Complaint are denied. On the contrary, Defendant avers that he has no knowledge of how the numbers in Exhibit "B" to the Complaint were calculated or as to whether or not the payments made in said Exhibit "B" were made by check, and proof thereof is demanded. 24. The averments of¶24 of the Complaint are denied. On the contrary, Defendant avers that the written Parmership Agreement attached to the Complaint provides in ¶5.1 WAYNE F. SHADI Carlisle, Pennsylvania that the managing partner was Merle C. Zinn and that the said Merle C. Zinn never obtained the consent of a majority of the partners prior to borrowing funds from Plaintiff. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiff. NEW MATTER 25. Prior to her transferring any of the funds, Plaintiffknew that Defendant and Merle C. Zinn were in business in a partnership that was governed by written documents. 26. Prior to transferring any of the funds, Plaintifl'knew that she was loaning the funds to the partnership. 27. Prior to transferring any of the funds, Plaintiff knew that Merle C. Zinn was the managing partner of the partnership. 28. Prior to transferring any of the funds, Plaintiff knew that if she ever needed any information about the partnership, she could have asked Merle C. Zinn for the information. -6- WAYNE F. SHADE Atlomey at Law 53 West Pomfre1 Street Carlisle, Pennsylvania 29. Prior to transferring any of the funds, Plaintiff never asked about the details of the ~artnership agreement between Merle C. Zinn and Defendant. 30. When Plaintiff transferred the funds, she did not require the partnership to sign ~otes for the loans. 31. When Plaintifftransferred the funds, she transferred them to Merle C. Zinn. 32. Plaintiff never transferred any of the funds to Defendant. 33. Prior to transferring the funds to Merle C. Zinn, Plaintiff never discussed the alleged partnership loans with Defendant. 34. Prior to transferring the funds to Merle C. Zim~, Plaintiff had no idea what, if any, discussions had taken place between Merle C. Zinn and Defendant conceming any loans from Plaintiff to the partnership. -7- WAYNE F. SHAD[ Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 35. Plaintiff has stated under oath that any such conversations, between Merle C. Zinn and Defendant concerning any loans from Plaintiff to the partnership, were none of her business. 36. Merle C. Zinn has lived continuously with Plaintiff in a house owned by Plaintiff since at least July 1, 1995, when the written partnership agreement between Merle C. Zinn and Defendant for Zinn Bros. Logging was signed by the partners. 37. Prior to transferring the funds to Merle C. Zinn, Plaintiff knew that the place that was designated by the partnership as the principal office of the partnership was actually her residence where Plaintiff lived with Merle C. Zinn. 38. Prior to transferring the funds to Merle C. Zinn, Plaintiff knew that Merle C. Zinn had possession of the partnership checkbook. 39. The written Pam~ership Agreement attached to the Complaint provides in ¶5.2(D) that the consent of a majority of the partners was requ!ired with respect to the borrowing of any sum of money the result of which would be to increase the debt of the partnership. -8- WAYNE F. ~HAD~ Carlisle, Pennsylvania 40. The written Partnership Agreement attached to the Complaint provides in ¶2.1 that ~oth of the two partners were equal partners. 41. Where both partners of the parmership were equal partners, the consent of both mrtners would have been required under ¶5.2 of the 'written Partnership Agreement tttached to the Complaint in order to achieve consent of a majority of the partners prior to the incurring of any obligations to Plaintiff on the pa~t of the partnership. 42. Defendant was never consulted prior to any financial transactions between Plaintiff and Merle C. Zinn so that any obligation to Plaintiff is the personal obligation of Merle C. Zinn. WHEREFORE, Defendant demands that the Complaint be dismissed and that judgment be entered in favor of Defendant and against Plaintiff. Wayne 1~. Sh~ad~, Esquire Supreme Court No. 15712 53 West Pomfiret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Defendant -9- I verify that the statements made in the foregoing Answer with New Matter are and correct. I understand that false statements herein are made subject to the alties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: August 30, 2004 Blevens Zinn WAYNE F. SHAD[ Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 ROSE E. VARNER, Plaintiff! Appellee : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 04-370~I-CIVIL BLEVENS ZINN, Defendant/Appellant : CIVIL ACnON - LAW PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter as settled and discontinued. Respectfully submitted, Date: t/rs/oc;: I / ~U~~i~ Attorney m No. 78931 PO Box 127 Boiling Springs, P A 17007 (717) 241-6500 (717) 241-3099 Fax CERTIFICATE OF SERVICE I, Mark A. Mateya, Esquire, hereby certify that I have served a copy of the Praecipe to Settle and Discontinue on the following person( s) by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Boiling Springs, Cumberland County, Pennsylvania addressed to: Wayne F Shade Esquire 53 West Pomfret Street Carlisle PAl 70 I3 ~a, Mark A. Mateya, Es Ire PO Box 127 Boiling Springs, P A 17007 717241-6500 DATED: t It 3/6C;; I I (" (/ -- c;) .....' v