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Home My WebLink About11-5990SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson LED-(-, Sheriff k r'RO, , ifs r cf ctliatir,yr ? ? . "???? Jody S Smith Chief Deputy P14, Richard W Stewart ""18ERLAI ? Solicitor s1r F . F , EP?i S Y 11-1 4l sal ; . *y Millennium Real Estate Partners, LLC vs. Case Number Timothy A. Clark, MD 2011-5990 SHERIFF'S RETURN OF SERVICE 08/03/2011 04:00 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 3, 2011 at 1600 hours, he served a true copy of the within Complaint in Confession of Judgment and Notice, upon the within named defendant, to wit: fimothy A. Clark MD, by making known unto Donna Patsiopoulos, Office Manager for Timothy A. Clark, MD at 2250 Millennium Way, Suite 400, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY SHERIFF COST: $43.44 August 04, 2011 SO ANSWERS, RONIV R ANDERSON, SHERIFF i.Cj C:oic,`,YSuitn ^e?d7.. ieleC::r,•i. I;`.C. 06 rnr?.? ,'1 y ?. QJ ?. Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mp kosh rcdplalaw com Attorney for Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, r? c-? /o l J W 1`?J a ? ?1 11-5Q40 V. No: 44-5991-Civil Term CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, LLC, -.C/o -RMV1kq R C-6t ., 4. W00 .24.245,0 Mitleno;ulK w" Defendant • - cola, PA 1 `10AS PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the above matter. Certification * !5ee Ek4ibii -?? rt<?cses I certify that (1) This praecipe is based upon a judgment entered by confession, and O (2) Notice pursuant to Rule 2973.2 has been served at least thirty days prior to the -4M CSF filing of this praecipe as evidenced by a return of service filed of record. a17.5o to qy Qy , pts " Respectfully Submitted, Dated: 10- \ - By: 4a•0o Coe C' Michael J. Pykosh, Esquire 40115606 P--# a(059 /7 wri+4F icn sued Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosh(a]dplglaw com Attorney for Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. II-5890 No: 4-5994-Civil Term CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC, Defendant CONFESSED JUDGMENT CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Central Pennsylvania Pulmonary Associates, LLC c/o Timothy A. Clark 2250 Millennium Way, Suite 400 Enola, PA 17025 Respectfully Submitted, Dated: O In By:_ Michael J. Pykosh, Esquire SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ?Q??ixta of ??ut+?rrfi???14 4F, ICE THE S-FRIFF Millennium Real Estate Partners, LLC vs. Case Number Timothy A. Clark, MD a! 1.5991 11-5940 SHERIFF'S RETURN OF SERVICE 08/03/2011 04:00 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 3, 2011 at 1600 hours, he served a true copy of the within Complaint in Confession of Judgment and Notice, upon the within named defendant, to wit: Timothy A. Clark MD, by making known unto Donna Patsiopoulos, Office Manager for Timothy A. Clark, MD at 2250 Millennium Way, Suite 400, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY SHERIFF COST: $43.44 August 04, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF ,C) GountySuite Shenft, Teieosoft. Ina SPACE PL_d\ ?;? ?RFR.QSFS o b : Cry ar ea ??' ?1 5 l6.•II' i i f i y j I i I 1 i I I I I 1 4 I i j i 31 1:--l w. .r. v ro- W1 r F. C i \ I ? I I Cy i V 4 z {v lu I _ < i 4 ?i f Ill ?J cti _ _ f l ! , 1V ?? = t c^ ?` 'ate. _ ?? G+1 JAL j Cf I?1 I ! 67 r > ? .1 -'til- ?•'k''-?-,?. 1 ? ? ? ? i j _. Ic; i-: i .m I" f ts? L? ---• - - '`r Ln s fem. •_, ?, n Iti i;l.` J i r l I j ??f S r ?? ?-? 1 t r?7 I= j irn ? ;I' I ? i Tf l l 4U? J Pb Em. r?.u'.vir+vti It .. ? •w /.ii?'? I ?yj +"-???"Ise ?? o- Li. W2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERSLLC VS. No. 11-5990 Civil Term CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC c/o TIMOTHY A. CLARK, ESQUIRE 2250 MILLENNIUM WAY, SUITE 400 ENOLA, PA 17025 Costs Attorney's $ 94.94 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) MILLENNIUM REAL ESTATE PARTNERS, LLC being: (Premises as follows): SEE ENCLOSED EXHIBIT (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. avid D. Buell, P othonotary, Common Pleas ourt of Cumberland County, PA Date 10/13/11 (Seal) 2 of 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERSLLC VS. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 94.94 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: MICHAEL J. PYKOSH, ESQUIRE - ID# 58851 DETHLEFS-PYKOSH LAW GROUP, LLC 2132 MARKET STREET CAMP HILL, PA 17011 717-975-9446 No H -5990 Civil Term Attorney for Plaintiff (s) named By virtue of this writ, on the Where papers may be served appurtenances, and day of I caused the within _, to have possession of the premises described with the Sworn and subscribed to before me this Day of Prothonotary So Answers, Sheriff By Deputy C) C 3 ^? r r=' { Mp Michael J. Pykosh. Esquire ID # 58851 > Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone -- (717) 975-9446 Fax - (717) 975-2309 mp koshwi dplo;law.com Attorney for Plaintiff MILLENNIUM REAL ESTATE IN THE COURT OF COMMON PLEAS PARTNERS, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, J11 V. .?\e???J? CENTRAL PENNSYLVANIA -A PULMONARY ASSOCIATES, a ? ADO -, ? LLC, P Defendant No: 11-5990-Civil Term CONFESSED JUDGMENT PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the n above matter. Fxhibr't A I certify that Certification (1) This praecipe is based upon a judgment entered by confession, and (2) Notice pursuant to Rule 2973.2 has been served at least thirty days prior to the filing of this praecipe as evidenced by a return of service filed of record. Respectfully Submitted, Dated: By: Michael J. Pykosh, Esquire ---t rn ..O'n ; C) --iC ? C7 r? O d8.5o PQA7Y '!3. W eBF y5.00 oZ7.'SO rr aa.oo J 8 -PO avey dd.Is ow I C# iag99 ?# a?1 ?F37 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY ?llttptr of LtuuGrrfJr id OP ICE OF THE StERIFF Millennium Real Estate Partners, LLC vs. Case Number Timothy A. Clark, MD 281 i-5 - SHERIFF'S RETURN OF SERVICE 08/03/2011 04:00 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on August 3, 2011 at 1600 hours, he served a true copy of the within Complaint in Confession of Judgment and Notice, upon the within named defendant, to wit: Timothy A. Clark MD„ by making known unto Donna Patsiopoulos, Office Manager for Timothy A. Clark, MD at 2250 Millennium Way, Suite 400, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. NOAH CLINE, DEPUTY SHERIFF COST: $43.44 August 04, 2011 SO ANSWERS, C? RON J R ANDERSON, SHERIFF %cj Coun y5uile Shenff Teiacro`t jr- Lof 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC VS. No. 11-5990 Civil Term CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC 2250 Millennium Way, Suite 400 Enola, PA 17025 Costs Attorney's $ 168.44 Plaintiff's $ Prothonotary $ 2.25 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County., Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) MILLENNIUM REAL ESTATE PARTNERS. LLC being: (Premises as follows): **see Exhibit A** (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. I-VAnJUM4.0" DAd D. Buell, Prothonotary, Common Pleas Court of Cumberland County. PA Date 7/2/12 (Seal) 2of2 No 11-5990 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL :ESTATE PARTNERS, LLC vs. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att' y $ 168.44 Plff (s) $ Prothy $ 2.25 Sheriff $ Plaintiff (s) attorney name and address: MICHAEL J. PYKOSH, ESQUIRE - ID #58851 DETHLEFS-PYKOSH LAW GROUP, LLC 2132 MARKET STREET CAMP HILL. PA 17011 717-975-9446 By virtue of this writ, on the named appurtenances, and Attorney for Plaintiff (s) Where papers may be served day of I caused the within to have possession of the premises described with the Sworn and subscribed to before me this Day of - - -- Prothonotary So Answers, Sheriff By Deputy E=, BIT "A" SP_LCE P! kNI OF PRA ,'USFS Les, c • i i Jx - ? ' I _: Intl I FLI rm"T JITI I k ? T J ? r r lie__...__..?rri ``.-` i?; --- _ __??-11.^;-?\- c.?->"?..r?.;.m..?,?;:a•-af_.?? _.=.- *-L? ?•-?a!"n:.T f iT -1, [rf7 L ??_ I I, I f j(??-T^T 3?` ??? f t ``` Ikl??fr?`'•----_?.?11 ' ? :p ??•y 3 ? I ( I Tom' i ? it '11 ??c:? ? L' 11\ "•I? fI I i.- _ ly 1 ham. I` ? j? h G} i `! r i-T cJ I ? r f I iE.r r? -1 v 1 !G G C i-I 1: Fil FliT. ` L-% r_? r c•, T-1 JJ- - T f t \ 1? III( C ?? k t !t is ? -_ + ) o? ,tip .., ,..>„?.y,..?.?:>•?.?,__-I .?...?;?,,,.o, . - _ 4- ? i T IU.C" I I ,? I S I ` cl Te? l S` `H 1 •? LLLTT I?? ? { ., a -_ s t I 71 W:n i low 6 ?, rr Michael .I. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 "Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykoshredp10aw.com Attorney for Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No: 11-5990-Civil Term CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, LLC, Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Central Pennsylvania Pulmonary Associates, LLC c/o Timothy A. Clark 2250 Millennium Way, Suite 400 Enola, PA 17025 Respectfully Submitted, Dated: VC?Q v?U Z. By:? /// Michael J. Pykosh, Esquire 212 JUL 26 AEA 9: 25 CUMBERLAND u6Ja i ENNSYLVANIA Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 .com Attorney for IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC Plaintiffs DOCKET NO. 11-5990 V. CIVIL ACTION -EQUITY CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC Defendants MOTION FOR IMMEDIATE PRELIMINARY INJUNCTION WITHOUT NOTICE AND HEARING PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1531 COMES NOW, Defendant, Central Pennsylvania Pulmonary Associates, LLC by and through their Attorney, Steven R. Snyder, Esquire, with the Law Firm of Rominger & Associates, and respectfully petitions the Court for an Order granting Defendant"s Motion for O Preliminary Injunction, and in support thereof, avers the following: Plaintiff Millennium Real Estate Partners, LLC, is a Pennsylvania registered Limited Liability Company, with office located at 3 Lemoyne Drive, Cumberland County, Lemoyne, Pennsylvania 17043. 2. Plaintiff is the current owner of a commercial office building located at 2250 Millennium Way, Hampden Township, Cumberland County, Enola, Pennsylvania 17025. 3. Defendant is Central Pennsylvania Pulmonary Associates, LLC, a Pennsy registered Limited Liability Company, located at 2250 Millennium Way, Suite 400, Enola, Cumberland County, Pennsylvania 17025. 4. Two medical practices, Central Pennsylvania Pulmonary Associates, LLC. and Sleep Disorder Centers of Central Pennsylvania, Inc. are located at the leased premises located the 2250 Millennium Way building, both of which are headed by Dr. Timothy Clark, MD. 5. The 2250 Millennium Way building was originally purchased by Dr. Clark and his wife who formed a real estate company called Cade Real Estate Ventures, LLC, and two partners, Greg Rothman and Andrew Giorgione who formed a real estate investment company named Millennium Real Estate Partners, LLC that owned the building. 6. Near the end of 2011 Dr. Clark's medical practices were downsizing and having difficulty meeting rent obligations. 7. On or about July, 28, 2011, Plaintiffs filed a Complaint in Confession of Judgment. 8. On or about October 13, 2011 Plaintiffs filed a Praecipe for Writ of Possession Upon Confession of Judgment 9. On or about December 6, 2011, Dr. Clark agreed to transfer Cade Real Estate Ventures' equity interest in the building to Rothman and Andrew Giorgione in exchange for rent as well as future rent. The future rent agreement provided that Dr. Clark could remain in t e building rent free from January 2012 to June 2012, and starting on July 1, 2012, would begin t pay rent in accordance with the agreement. See Exhibit A which is a true and correct copy oft e said agreement. 10. Notwithstanding the December 6, 2011 agreement, on or about May 2012 Andrew Giorgione sent a letter to Dr. Clark's two medical practices, Central Pennsylvania Pulmonary Associates, and Sleep Disorder Centers of Central Pennsylvania, stating that in orde to remain in this space they would have to pay Rothman and Giorgione, now sole owners of Millennium Real Estate Partners, approximately $33,000.00 by the end of May. 11. Dr. Clark responded that the demand was not consistent with the December 6, 2011 agreement and that Dr. Clark intended to continue to occupy the building under that agreement and begin paying rent as provided in the said agreement on July 1, 2012. 12. On or about June 1, 2012, Giorgione sent a letter to Dr. Clark informing him tha Millennium Real Estate Partners had terminated the lease and obtained a judgment against him. 13. On July 1, 2012, Dr. Clark paid the first month's rent to Millennium Real Estate Partners, which rental payment Plaintiffs refused to accept. 14. On or about July 2, 2012, Plaintiff filed a Praecipe for Writ of Possession Upon Confession of Judgment. See Exhibit B, which is a true and correct copy of Plaintiffs' July 2 Praecipe for Writ of Possession Upon Confession of Judgment 15. In filing the July 2, 2012, Praecipe for Writ of Possession Upon Confession of Judgment, Plaintiff has breached the December 6, 2011 agreement transferring Defendant's ownership share of the 2250 Millennium Way building to the Plaintiffs. See Exhibit A. 16. As a result of Plaintiff's breach of the December 6, 2011 agreement, Defendant now owns the fifty percent (50%) share of the 2250 Millennium Way building, valued at over $400,000.00, which was transferred to Plaintiffs under the terms of the agreement and as such Defendant cannot be evicted. 17. On July 20, the Cumberland County Sheriffs office showed up at 2250 Millennium Way building to evict Central Pennsylvania Pulmonary Associates, and Sleep Disorder Centers of Central Pennsylvania. 18. Given the fact that there were patients being treated at both medical facilities, prescription drugs stored on the premises and all of the two medical company's patient records stored on large computer servers on the premises, the Sherriff's office declined to the two medical companies at that time. 19. Pennsylvania Rule of Civil Procedure Rule 1531 provides as follows: Special Relief. Injunctions. (a) A court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice. In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may consider affidavits of parties or third persons or any other proof which the court may require. 20. Defendant Central Pennsylvania Pulmonary Associates, LLC and Sleep Centers of Central PA, Inc., currently treat in excess of 11,000 patients in the practices, many whom are very sick and require weekly appoints, some of whom are quite tenuous. 21. Defendant is unable to simply pick up both medical practices, and move the infrastructure on short notice. 22. All of Defendant's past and current patients medical records are maintained on large computer server which is housed in the facility and cannot be disconnected and moved. Defendant has not had access to his patient's medical records for four (4) days. In the event tI the computer records are not accessible, many of Defendant's patients will suffer serious harry 23. Defendant's patients' medical records are protected by strict Federal HIPAA la and regulations (Health Insurance Portability and Accountability Act of 1996, Public Law 104 191), which required that they be properly maintained, stored and protected. 24. Central Pennsylvania Pulmonary Associates and Sleep Disorder Centers o' Central Pennsylvania currently have over 100 patients scheduled for appointments this week alone. Not only does Defendant not have access to the medical facility to treat his patients, they also do not have access to their computer system and medical records to cancel or reschedule appointments. Moreover, if many of the patients scheduled for appointments are not treated, they will have to go to local hospital emergency rooms to 1 treated, where the treating emergency physicians will not have access to patient medical records. 25. When the Cumberland County Sherriff s Department was at the premises to evi( Defendant on July 20, 2011, the Sherriff's deputies declined to do so and informed Defendant'! office manager that she should hold onto the key to the offices until the matter could be resolve so as to protect the prescription drugs on the facility and determine how to best protect the patient medical information on site. Corporal William Cline also called Defendants Attorney, Steven R. Snyder, and informed him that they would not be evicting Defendant until this matte] could be resolved. Later that same night, Andrew Giorgione, one of the two current owners of the building called Defendant's office manager and demanded that she give him the key to the building which she eventually did without consulting with Dr. Clark until after the keys were confiscated. As a result of Giorgione illegal conduct, Defendants are unable to gain access tot c building. Plaintiffs are currently holding all of Defendants medical equipment, medical record;, prescription drugs and all other medical supplies and possessions illegally without having filed a distrain action or obtaining any order of the court, which constitutes Plaintiffs illegal trespass b a landlord as a result of Plaintiffs uses self-help instead of the legal process to evict a tenants. 26. If this Court does not order a preliminary or special injunction to stay the immediate and irreparable injury will be sustained by Defendants, their employees and most importantly Defendant's patients. WHEREFORE, Defendant respectfully request this Court i or special injunction, pursuant to Pennsylvania Rule of Civil Procedure Rule 153, staving any and all eviction proceedings; and WHEREFORE, Plaintiff further request that the injunction be issued immediately, without the requirement of notice and hearing so as to avoid the immediate and irreparable inj which will be sustained by the Defendant, their employees and most importantly Defendant's patients; and WHEREFORE, Plaintiff further request this Court ORDER that Plaintiff immediately and itional harassment of interference in until can be scheduled for a full hearing on the merits of Defendants Motion to Vacate the July 2, 2011 Writ of Possession Upon Confession of Judgment. Respectfully submitted, Date: '1 ) ??-) -2,01 Z By: Steven R. Snyder, squire Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerlaw.com VERIFICATION I, Timothy A. Clark, M.D., President and CEO of Central PA Pulmonary Associates, LLC and Sleep Disorder Centers of Central PA, Inc., verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: Timothy . Clark, M.D. Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 snyder@romingerlaw.com Attorney for Plain IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC V. Plaintiffs CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC Defendants DOCKET NO. 11-5990 CIVIL ACTION -EQUITY CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following required by the first class mail, postage paid, from Carlisle, PA and via facsimile: Michael J Pykosh Esquire Dethlefs-Pykosh Law Group, LLC Law Group LLC 2132 Market Street Camp Hill Pennsylvania 17011 Attorney for Plaintiff Fax: 717-975-2309 Date: -7 24 Steven R. Snyder, Esquire Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerlaw.com EXHIBIT A ASSIGNMENTOF MEMBERSHIP INTEREST THIS ASSIGNMENT OF MEMBERSHIP INTEREST (the '*Assignment") is effective for all purposes as of December 6, 2011 (the "Effective Date"), by and between CADE REAL ESTATE VENTURES, LLC ("Cade"), a Pennsylvania limited liability corporation, and W. GREGORY ROTHMAN and ANDREW 3. GIORGIONE, adult individuals (collectively, the "Transferee Members"')_ BACKGROUND WHEREAS, Cade and the Transferee Members are members of Millennium Real Vstatc Partners, L.LC, a Pennsylvania limited liability company (the "Company"); WHEREAS. Cade currently holds forty-nine percent (49%) of the Company's issued and outstanding membership interests (the "Interest"), and the Transferee Members hold fifty-one (5l %); and WHEREAS, (lie Company owns the real estate and improvements at 2250 Millennium Way, Friola, PA, arid WHEREAS, the major tenant of the Building is Central Pennsylvania Pulmonaa;v Associates ("CPPA") and CPPA is owned by Timothy Clark, M.D. ('Dr. Clark"). Dr. Clark and his wife Carla hold all of the membership interests in Cade. and WHEREAS. CPPA has failed to consistently pay rent on the Building since 2009 and currently owes the Company 5401,923.00 in back rent, not including interest, fees and costs (as set firth in 1 xhibit "A"); and WHEREAS, because of CPPA's failure to pay rent, there have been ongoing capital calls for the Company and Cade has failed to make any capital calls when due; as such, the Transleree Members have been forced to make all capital calls to pay the mortgage and other expenses on the Building, and WHEREAS, in 2011, the Company took action for default, eviction and possession, obtained a judgment against CPPA and eviction is set to occur December 7, 2011; and WHEREAS, as an accommodation to CPPA and Cade, the Transferee Members have agreed to stop the sheriff eviction and allow CPPA to remain in the Building as a tenant until June 30, 2012 and in exchange Cade has agreed to transfer all of its ownership interest in the Company to the Transferee Members. NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt mid sufficiency of which is hereby acknowledged, tl:e parties, intending to be legally bound hereby, agree to the following: I . Recitals. 'I he foregoing Recitals are hereby incorporated into this Assignment as if restated in full herein. 2. Assignment. Effective for all purposes and in all respects as of the Effective Date, in consideration of the Consideration (as defined below). Cade hereby assigns the Interest to the Transferee Members. 3. Acceptance, The Transferee Members accept the Interest assigned and transferred to them pursuant to Section 2 above. 4. Consideration. In consideration for the transfer of the Interest from Cause to the Transferee Members, who will then own 100% of the Company, the Transferee Members shall permit CPPA to occupy and use its current space in the Building rent free until Jane 30, 201-1. CPPA must pay all operating expenses for the space, including utility and.jallitorial expenses. After June 30, 2012, CPPA shall resume the payment of rent or its lease shall terminate and CPPA will vacate the Building without the nee or any further action on the pail of the Company. - -- ---____ t 5. Representations and Warranties. (a) Cade represents and warrants to the Transferee Members as follows. (i) Cade is the record and beneficial owner of the Interest, free and clear of any and all claims, liens and encumbrances and Cade has full voting power over the Interest and the right to sell, assign and transfer the Interest to the Transferee ?Members without restriction. In addition, Cade has not pledged the Interest to any third party. (ii) Cade has hill power to execute and perform his obligations under this Agreement, to deliver the Interest and to perform the covenants and transactions contemplated by this Agreement. (b} The Transferee Members represent and warrant to Cade, that the Transferee Members have full power to execute and perform thier obligations under this Agreement and to perform the covenants and transactions contemplated by this Agreement. 6. Further Assurances. The parties agree to execute and deliver any and all other assignments, documents, certificates and other instruments as may, at any time, be reasonably necessary or appropriate to evidence or consummate this Assignment. 7. Release of Claims, (a) Cade, Timothy J. Clark, on behalf of himself and CPPA, and Carla Dente Clark hereby release, acquit, rernise, quit-claim, and forever discharge the Transferee Members, their subsidiaries, affiliates, predecessors; successors, assigns, and each of their current and fonrter officers, directors, shareholders, members, agents, representatives, insurers, attorneys, an d employees, jointly and severely, of and from anv and all actions, causes of action, suits, claims. demands, losses, or damages of whatsoever kind, in law or in equity, vested or contingent. known or unknown., from the beginning of time to the date of these presents including, without limiting the generality of the foregoing, all of those claims which were or could have been asserted in under the Company's Operating Agreement and the Lease between the Company and, CPPA. (b) The Company hereby indemnifies Cade, Timothy J. Clark and Carla Dente Clark against any and all actions, causes of action, suits, claims, demands,. losses„ or damages of whatsoever kind, in law or in equity, vested or contingent, known or unknown, made against the Company after the Effective Date and assignment of the Interest, which relate to the financing and operation of the Building from and after the Effective Date. 8. Governing Law. Mis Assignment shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws principles. 9. Entire Agreement. This Assignment, along with its exhibits and schedules, is the entire agreement between the parties hereto with respect to the subject matter hereof. This Assignment sets forth all of the promises, covenants:, agreements, conditions and understandings between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, expressed or implied, oral or written, except such agreements or other instruments as have been delivered pursuant to the terms hereof. 10. Severability. It is the agreement of the parties that in case any one or more of the provisions contained in this Assignment shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Assignment, and this Assignment shall be construed as of such invalid. illegal or unenforceable provisions had never been contained herein. 11. Counterparts. This Assignment may be executed in several counterparts, each of which ;hall be deemed an original but all of which shall constitute one and the same instrument. {signature page to immediately follow) N TESTIMONY WHERI OF, the parties hereto have executed this Assigrunent as of the Effective Date. TRANSFEREE MEMBERS: , CADE REAL FSTA`rE VENTURFS, Lt.C Andrei J. g ne timottry dti Clark W. Gregory Rgthtnan Carta Dente Clark MILLENNIUM REAL ESTATE PARTNERS, LLC Andrew J. ne EXHIBIT B C'7 tN? C rnlm rn Michael J. Pykosh. Esquire zc = ?F I D # 58851 C? t r? Dethlefs-Pvkosh Law Group, LLC A 2132 Market Street ? Camp Hill. Pennsylvania 17011 ` "Telephone - (717) 975-9446 Fax - (717) 975-2309 mpykosivadpiglaw.coni Attorney I'or Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, 00 011 v. No: I1-5990-Civil Term 0 \??\ CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, 2 ' gyp LLC, , Defendant PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the K ,. above matter. it pxhibi+ A Q Certification d8'? PAS I certify that 45.00 r• a*?.5o " a y. oo (1) This praecipe is based upon a judgment entered by confession, and &8.1W -PoAtry (2) Notice pursuant to Rule 2973.2 has been served at least thirty days prior to the filing of this praecipe as evidenced by a return of service filed of record. Respectfully Submitted, Dated: 44 B -025 bue rA y. = Miehae J. Pykosh, Esquire C'0/279 efJ11 .S7 oi,4 WZ WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-316- etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC VS. No. 11-5990 Civil Term CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC 2250 Millennium Way, Suite 400 Enola, PA 17025 Costs Attorney's $ 168.44 Plaintiff's $ Prothonotary $ 2.25 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: fo the Sheriff of Cumberland County. Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) MILLENNIUM REAL ESTATE PARTNERS. LLC being: (Premises as follows): **see Exhibit A** (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. JoAn's'd. J. Da Id D. Buell, Prothonotary, Common Pleas Court of Cumberland County. PA Date 7/2/12 ----------- (Seal) 2of2 No 11-5990 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC VS. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 168.44 Plff (s) $ Prothy $ 2.25 Sheriff $ Plaintiff (s) attorney name and address: MICHAEL J. PYKOSH, ESQUIRE - ID #58851 DETHLEFS-PYKOSH LAW GROUP, LLC 2132 MARKET STREET CAMP HILL, PA 17011 717-975-9446 By virtue of this writ, on the named appurtenances, and Sworn and subscribed to before me this Day of So Answers, Attorney for Plaintiff (s) Where papers may be served day of _ I caused the within _, to have possession of the premises described with the Prothonotary Sheriff By --- Deputy EX:flBYT "A" SPACE RL VN OF PRF -TTSFS "Fu be pro-vided by Lessee Air' it r-I ' i i IP i t; f? f i ?. i I i i I2 i ' J_._ _t i b: .I t9] is Michael .I. Pykosh, Esquire ID 458851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 Fat -(717) 975-2309 mpykosh;y;dplglaw.com Attorney for Plaintiff' MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No: 11-5990-Civil Term CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, LLC, Defendant CERTIFICATE OF SERVICE 1 hereby certify that a copy of the foregoing PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Central Pennsylvania Pulmonary Associates, LLC c/o Timothy A. Clark 2250 Millennium Way, Suite 400 Enola, PA 17025 Respectfully Submitted, Dated: el v?U Z . By: Michael J. Pykosh, Esquire _t_!-t _. I i.. I i i4. i U M81EP LAN NSYLVAN11 Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 snyder@romingerlaw.com Attorney for Plain IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC Plaintiffs DOCKET NO. 11-5990 V. CIVIL ACTION -EQUITY CENTRAL PENNSYLVANIA : PULMONARY ASSOCIATES, LLC Defendants MOTION TO VACATE WRIT OF POSSESSION UPON CONFESSION OF JUDG COMES NOW, Defendant, Central Pennsylvania Pulmonary Associates, LLC by and through their Attorney, Steven R. Snyder, Esquire, with the Law Firm of Rominger & Associates, and filed the within Motion to Vacate Writ of Possession Upon Confession of Judgment and in support thereof, avers the following: Plaintiff Millennium Real Estate Partners, LLC, is a Pennsylvania registered Limited Liability Company, with office located at 3 Lemoyne Drive, Cumberland County, Lemoyne, Pennsylvania 17043. 2. Plaintiff is the current owner of a commercial office building located at 2250 Millennium Way, Hampden Township, Cumberland County, Enola, Pennsylvania 17025. 3. Defendant is Central Pennsylvania Pulmonary Associates, LLC, a Pennsylvania registered Limited Liability Company, located at 2250 Millennium Way, Suite 400, Enola, Cumberland County, Pennsylvania 17025 (hereinafter referred to as the "2250 Millennium W Building") 4. Two medical practices, Central Pennsylvania Pulmonary Associates, LLC. and Sleep Disorder Centers of Central Pennsylvania, Inc. are located at the leased premises located the 2250 Millennium Way building, both of which are headed by Dr. Timothy Clark, MD, as President/CEO. 5. The 2250 Millennium Way Building was originally purchased by Dr. Clark and his wife who formed a real estate company called Cade Real Estate Ventures, LLC, and two partners, Greg Rothman and Andrew Giorgione who formed a real estate investment company named Millennium Real Estate Partners, LLC that owned the building. 6. Near the end of 2011 Dr. Clark's medical practices were downsizing and having difficulty meeting rent obligations. 7. On or about July, 28, 2011, Plaintiffs filed a Complaint in Confession of Judgment. 8. On or about October 13, 2011 Plaintiffs filed a Praecipe for Writ of Possession Upon Confession of Judgment 9. On or about December 6, 2011, Dr. Clark entered into an agreement with Defendants (hereinafter referred to as the "December 6, 2011 Agreement") transfer Cade Real Estate Ventures' equity interest in the building to Rothman and Giorgione in exchange for bacl rent as well as future rent. The future rent agreement provided that Dr. Clark could remain in tl building rent free from January 2012 to June 2012, and starting on July 1, 2012, would begin t< pay rent in accordance with the agreement. See Exhibit A which is a true and correct copy of tl said agreement. 10. Notwithstanding the December 6, 2011 Agreement, on or about May 2012 Andrew Giorgione sent a letter to Dr. Clark's two medical practices, Central Pennsylvania Pulmonary Associates, and Sleep Disorder Centers of Central Pennsylvania, stating that in orde to remain in this space they would have to pay Rothman and Giorgione, now sole owners of Millennium Real Estate Partners, approximately $33,000.00 by the end of May. 11. Dr. Clark responded that the demand was not consistent with the December 6, 2011 Agreement and that Dr. Clark intended to continue to occupy the building under the terms of the Agreement which required rent payments to commence on July 1, 2012. 12. On or about June 1, 2012, Giorgione sent a letter to Dr. Clark informing him thal Millennium Real Estate Partners had terminated the Lease and obtained a judgment against him 13. On July 1, 2012, Dr. Clark paid the first month's rent to Millennium Real Estate Partners, which rental payment Plaintiffs refused to accept. 14. On or about July 2, 2012, Plaintiff filed a Praecipe for Writ of Possession Upon Confession of Judgment. See Exhibit B, which is a true and correct copy of Plaintiffs' July 2, 2012 Praecipe for Writ of Possession Upon Confession of Judgment. BREACH OF CONTRACT 15. Paragraphs 1 through 34 are incorporated herein as if set forth at length. 16. On December 6, 2011, Plaintiffs and Defendant entered into a contract, w Defendant agreed to transfer the ownership share of the 2250 Millennium Way Building owns by Defendant's real estate company, Cade Real Estate Ventures to Plaintiffs, Greg Rothman a Andrew Giorgione, in return for Plaintiffs agreeing to forgive past unpaid rent and allow Defendant to continue to occupy office space in the building without paying rent, until July 1, 2012, at which time he would begin to pay rent in an amount agreed to by the parties. 17. The agreement was supported by mutual assent of the parties, and adequate valuable consideration in that Plaintiffs received Defendant's entire ownership interest in the Millennium Way Building in return for the forgiveness of back rent owned by Defendant and Defendant continuing to occupy the building rent free until July 1, 2012. 18. Defendant has occupied the building throughout the term set forth in the December 6, 2011 Agreement, and on July 1, 2012, Defendants rent payment was rejected by Plaintiffs. 19. Plaintiffs then filed a Praecipe for Writ of Possession Upon Confession of Judgment on July, 2, 2012. See Exhibit A. 20. In filing the July 2, 2012, Praecipe for Writ of Possession Upon Confession of Judgment, Plaintiff has breached the December 6, 2011 Agreement which transferred Defendant's ownership share of the 2250 Millennium Way Building to the Plaintiffs. 21. As a result of Plaintiff, s breach of the December 6, 2011 Agreement, now owns the fifty percent (50%) share of the 2250 Millennium Way Building, valued at over $400,000.00, which was transferred to Plaintiffs under the terms of the Agreement and as such Defendant cannot be evicted. 22. Plaintiff s refusal to accept the July rent from Defendant does not constitute a breach of the December 6, 2011 Agreement and as such Defendant is not in breach of the Agreement and Plaintiffs are not entitled to take possession of the leased building through a Wt of Possession Upon Confession of Judgment. WHEREFORE, Defendant respectfully request this Court issue an ORDER Vacating July 2, 2012 Writ of Possession. Respectfully submitted, Date: -71 -2-'11 1 ZO/ 2 By: L" v ?`?L? Steven R. Snyder, Esq re Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerlaw.com VERIFICATION I, Timothy A. Clark, M.D., President and CEO of Central PA Pulmonary Associates, LLC and Sleep Disorder Centers of Central PA, Inc., verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4944, relating to unsworn falsification to authorities. Date: J ?Zb l 7 ,,• <` ?? ?. Timothy . Clark, M.D. Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 sn com for Plainti IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC Plaintiffs DOCKET NO. 11-5990 CIVIL ACTION -EQUITY V. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following as required by the first class mail, postage paid, from Carlisle, PA and via facsimile: Michael J Pykosh Esquire Dethlefs-Pykosh Law Group, LLC Law Group LLC 2132 Market Street Camp Hill Pennsylvania 17011 Attorney for Plaintiff Fax: 717-975-2309 Date: '?-' Za1 c I? 1/ '- Steven R. Snyder, Esquir Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax(717)241-6878 snyder@romingerlaw.com EXHIBIT A ASSIGNMENT OF MEMBERSHIP INTEREST THIS ASSIGNMENT OF MEMBERSHIP INTEREST (the "Assignment) is eltective for all purposes as of December 6, 2011 (the "Effective Date'), by and between CADE REAL ESTATE VENTURES, LLC ("Cade"), a Pennsylvania limited liability corporation, and W. GREGORY ROTHI AN and ANDREW .I. GIORGIONE, adult individuals (collectively, the "'t'ransferee Members"). BACKGROUND WHEREAS. Cade and the Transferee Members are members of Millermiurn Real Estate Partners, LLC, a Pennsylvania limited liability company (the "Company"), WHEREAS. Cade currently holds forty-nine percent (49%) of the Company's issued and outstanding membership interests (the "Interest"'). and the Transferee Members hold fifty-one (5l °./oj, and WHEREAS, the Company owns the real estate and improvements at 2250 Miltermiunt Way, Enola. PA, and WHEREAS, the major tenant of the Building is Central Pennsylvania Pulmonary Associates ("CPPA") and CPPA is owned by 'timothy Clark, M_D. ("Dr. Clark`). Dr. Clark and his wife Carla hold all of the membership interests in Cade; and WHEREAS. CPPA has failed to consistently pay rent on the Building since 2009 and currently owes the Company $401,923.00 in back rent, not including interest, fees and costs (asset forth in 1,,xhibit "A"), and WHEREAS, because o1*CPPA's failure to pay rent, there have been ongoing capital calls for the Company and Cade has failed to make any capital calls when due; as such, the'Transferce ylembers have been forced to make all capital calls to pay the mortgage and other expenses on thz Building, and WHEREAS, in 2011, the Company took action for default, eviction and possession. obtained a judgment against CPPA and eviction is set to occur December 7, 2011; and WHEREAS, as an accommodation to CPPA and Cade, the Transferee Members have agreed to stop the sheriff eviction and allow CPPA to remain in the Building as a tenant until Jun(: 30, 2012 amid in exchange Cade has agreed to transfer all of its ownership interest in the Company to the 'transferee Members. NOW, THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound hereby, agree to the following: I . Recitals. 'Ilse foregoing Recitals are hereby incorporated into this Assignment as if restated in full herein. 2. Assignment. Effective for all purposes and in all respects as of the F. f ective Date, in consideration of the Consideration (as defined below). Cade hereby assigns the Interest to the Transferee Members. 3. Acceptance. The Transferee Members accept the Interest assigned and transferred to them pursuant to Section 2 above. / 4. Consideration. In consideration for the transfer of the interest from Cade to the Transferee Members, who will then own 100% of the Company, the Transferee iPAembers shall permit CPPA to occupy and use its current space in the Building rent free until June 30, 2012. CPPA must pay all operating expenses for the space, including utility and janitorial f expenses. After June 30, 2012, CPPA shall resume the payment of rent or its lease shall terminate and CPPA will vacate the Buil mg without the nee ar anv furtfter actor on the part of the Company. 5. Representations and Warranties. (a) Cade represents and warrants to the Transferee Members as follows: 0) Cade is the record and beneficial owner of the Interest, free and clear of any and all claims, liens and encumbrances and Cade has full voting power over the interest and the right to sell, assign and transfer the Interest to the Transferee Members without restriction. In addition, Cade has not pledged the Interest to anv third party. (ii) Cade has fall power to execute and perform his obligations under this Agreement, to deliver the Interest and to perform the covenants and transactions contemplated by this Agreement. (b) The Transferee Members represent and warrant to Cade, that the "Transferee Members have full power to execute and perform thier obligations under this Agreement and to perform the covenants and transactions contemplated by this Agreement. 6. Further Assurances. The parties agree to execute and deliver any and all other assignments. documents, certificates and other instruments as may, at any time, be reasonably necessary or appropriate to evidence or consummate this Assignment. ?. Release of Claims. (a) Cade, "Timothy J. Clark, on behalf of himself and CPPA, and Carla Dente Clark hereby release, acquit, remise, quit-claim, and forever discharge the Transferee Members. their subsidiaries, affiliates, predecessors. successors, assigns, and each of their current and former officers, directors, shareholders, members, agents, representatives, insurers, attorneys, and employees, jointly and severely, of and from any and all actions, causes of action. suits, claims, demands. losses, or damages of whatsoever kind. in law or in equity, vested or contingent- known or unknown, from the beginning of time to the date of these presents including, without limiting the generality of the foregoing, all of those claims which were or could have been asserted in under the Company's Operating Agreement and the Lease between the Company and CPPA. (b) The Company hereby indemnifies Cade, Timothy J. Clark and C'ar's Dente Clark against any and all actions, causes of action, suits, claims, demands, losses, or damages of whatsoever kind, in law or in equity, vested or contingent, known or unknown, made against the Company after the Effective Date and assignment of the Interest, which relate to the financing and operation of the Building from and after the Effective Date. 8. Governine Law. Hiis Assignment shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws principles. 9. Entire Agreement. This Assignment, along with its exhibits and schedules, k the entire agreement between the parties hereto with respect to the subject matter hereof: This Assignment sets forth all of the promises, covenants, agreements, conditions and understandings between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, expressed or implied, oral or written, except such agreements or outer instruments as have been delivered pursuant to the terms hereof. 10. Severability. It is the agreement of the parties that in case any one or more of the provisions contained in this Assignment shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforeeability shall not affect the other pro, isions of this Assignment, and this Assignment shall be construed as of such invalid. illegal or unenforceable provisions had never been contained herein. H. Counterparts. This Assignment may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. [signature page to immediately follow) IN TESTIMONY WHERLOE the parties hereto have executed this Assignment as of the E?tleective Date. TRANSFEREE MEMBERS. , Andw J. rn,-- re i.tW. Gregory Rothman CADE REAL ESTATE VENTURES, LLC Timothy j? Clark Carta EA me Clark MILLENNIU 14 REAL. ESTATE PARTNERS, LLC Andrew J. ne. _ EXHIBIT B -CAD N Michael J. Pykosh. Esquire MC Cam' O ID # 58851 lkthlefs-Pykosh Law Group, LLC D 2132 Market Street Camp Hill. Pennsylvania 17011 ' Telephone - (717) 975-9446 Pax - (717) 975-2309 mrykoslradpl law corn Attorney 1'or Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSY LVANIA Plaintiff, Vy-r V. No: 11-5990-Civil Term Jm 0t NxJ \V' CENTRAL PENNSYLVANIA. CONFESSED JUDGMENT PULMONARY ASSOCIATES, A 3? LLC, , Defendant PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDG MENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the n above matter. Sft Exhibi-P A O Certification d8.50P0i! " q3. W C SF I certify that y5.oo a? ?o a q. Do (1) This praecipe is based upon a judgment entered by confession, and lo8.W/ -Poarry (2) Notice pursuant to Rule 2973.2 has been served at least thirty days prior to the filing of this praecipe as evidenced by a return of service filed of record. Respectfully Submitted, Dated: .025 Aue ?o y By: Michae J. Pykosh. Esquire Gt)rffo? Io 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC VS. No. 11-5990 Civil Term CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC 2250 Millennium Way, Suite 400 Enola, PA 17025 Costs Attorney's $ 168.44 Plaintiff's $ Prothonotary $ 2.25 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: 1'o the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) MILLENNIUM REAL ESTATE PARTNERS, LLC being: (Premises as follows): **see Exhibit A** (2) To satisfy the costs against the defendant (s) you are directed to levy upon any propem! of the defendant (s) and sell his/her (or their) interest therein. Da d D. Buell, Prothonotary, Common Pleas Court of Cumberland County. PA Date 7/2/12_ (Seal) 2of2 No 11-5990 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC VS. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att' y $ 168.44 Plff (s) $ Prothy $ 2.25 Sheriff $ Plaintiff (s) attorney name and address: MICHAEL J. PYKOSH, ESQUIRE - ID #58851 DETHLEFS-PYKOSH LAW GROUP, LLC 2132 MARKET STREET CAMP HILL, PA 17011 717-975-9446 By virtue of this writ, on the named appurtenances, and Sworn and subscribed to before me this Day of -- ^. Attorney for Plaintiff (s) Where papers may be served day of _ . i caused the within to have possession of the premises described with the Prothonotary So Answers, Sheriff By Deputy E ?IIB1T "A" SPACE P-L MN OF rRF&RSFS 'A"o be nn-o-vided by Lessee - 4i, 1 yj ?+?'w ?jC' ? PCa ?:1?. ,I r-I w •n• i I 15 I I 1 ' i i f I i i w N. v• h? PD V Michael.l. Pykosh. Esquire ID 1# 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 F&\ - (717) 975-2309 in vp kosh;wdplnlaw.cum Attorney for Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No: 11-5990-Civil Term CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, LLC, Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT, was hereby served by depositing the same within the custody of the United States Postal Service. First Class, postage prepaid, addressed as follows: Central Pennsylvania Pulmonary Associates, LLC c/o Timothy A. Clark 2250 Millennium Way, Suite 400 Enola, PA 17025 Respectfully Submitted, Dated: "t t'j o? v?U By:? Michael J. Pykosh, Esquire 4 .. t f1 ?lUL 27 r: 2 CUMSERLANo Cot IDFNNSYLVIAHli David J. Lanza ID # 55782 Law Offices of David J. Lanza 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 730-3775 Fax - (717) 730-3778 Attorney for Plaintiff MILLENNIUM REAL ESTATE : IN THE COURT OF COMMON PLEAS PARTNERS, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No: 11-5990-Civil Term CENTRAL PENNSYLVANIA CONFESSED JUDGMENT PULMONARY ASSOCIATES, LLC, Defendant V. TIMOTHY CLARK, M.D., Respondent PLAINTIFF'S EMERGENCY MOTION 1. Plaintiff is the owner of the real estate situate at 2250 Millenium Way, Enola, PA 17025. 2. Plaintiff is the holder of a judgment for possession of the real estate situate at 2250 Millenium Way, Suite 400, Enola, PA 17025 ("the premises"). 3. Defendant has paid no rent at all since December 2010. 4. On July 19, 2012, the Cumberland County Sheriff, on behalf of Plaintiff, purported to execute upon Plaintiff's Writ of Possession against Defendant for the real estate situate at 2250 Millenium Way, Suite 400, Enola, PA. 5. On that date, Plaintiff incurred substantial charges for changing the locks on various doors throughout the premises. 6. Defendant's owner, Dr. Tim Clark, fled the premises immediately upon the arrival of the Sheriff, leaving his staff to deal with the eviction without instructions from Dr. Clark. 7. Dr. Clark left various items of prescription medication and medical records on computers at the premises without instructions to his staff and without making arrangements to dispose of or protect the aforesaid items. 8. Upon completion of the eviction on July 19th, Dr. Clark's staff, with the supervision of the sheriff, locked the prescription medication in the same room as the computer server for the purpose of protecting the medication and medical records. 9. Upon completion of the eviction, Plaintiff delivered all keys to the premises to the Sheriff except for the key to the room with the medication and computer server. 10. Only Dr. Clark has the key to the room with the patient records and medications. 11. Upon completion of the eviction and upon Plaintiff leaving the premises, the Sheriff delivered all keys to Defendant's staff solely out of apprehension for the medication and medical records that Dr. Clark had intentionally abandoned as leverage to frighten the sheriff and remain in possession of the premises. 12. Plaintiff has demanded that Dr. Clark take possession and control of the patient records and medication. A true and correct copy of this demand is attached hereto as Exhibit "A." 13. Dr. Clark has refused to come to the premises personally to take control or otherwise dispose of the medication or medical records, despite these demands. 14. Plaintiff has no access to these records or medications. 15. Dr. Clark is attempting to use the existence of these medications and medical records as a weapon with which to threaten the Plaintiff, Plaintiff's counsel and the Sheriff with liability under federal law for the purpose of preventing Sheriff from carrying out a lawful possession writ. 16. Dr. Clark has, de facto, abandoned prescription medication and medical records in order to intimidate Plaintiff and the Sheriff from exercising lawful civil remedies and to increase Plaintiff's costs in this matter. 17. Dr. Clark alone has the ability to dispose of, take control of and/or properly handle all of the aforesaid materials for the benefit of Dr. Clark's patients and in fulfillment of all legal requirements. 18. It is imperative that this Court enter an Order requiring Dr. Clark to fulfill his legal requirements with regard to these materials in order to prevent harm to patients and to prevent Dr. Clark from using these materials, and the legal requirements related thereto, as weapons for the purpose of intimidating Plaintiff and the Sheriff. 19. Judge Ebert currently is considering other matters related to this case. 20. Pursuant to Rule 208, Plaintiffs have delivered a copy of this Petition to Steven Snyder, Esquire, counsel for Defendant and Timothy Clark, for the purpose of seeking Respondent's and Defendant's concurrence. Respondent and Defendant have not concurred in this Petition. Wherefore, Plaintiff demands that this Honorable Court enter an Order: 1. Requiring Dr. Timothy Clark to take immediate possession of all medications and medical records ("the materials") located at 2250 Millenium Way, Enola, Suite 400. 2. Requiring Dr. Timothy Clark to remove these materials from the premises within five days. 3. Awarding attorney fees to Plaintiff and against Defendant and Respondent as a result of the Respondent's conduct in this matter. 4. Issuing a bench warrant against Dr. Timothy Clark in the event that he fails to comply with this Order and/or fails to remove the materials at issue from the premises. Respectfully Submitted, Dated: z- By David Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff Lail; i);=.rt-Fs David J. Lanza \Lukct ?u..i k)V m liltmuldttlll Juk `. 'Ill' l (r ?,tcycn ';tty d C r _ I _uIUirc Runtin??cr A??c?ciatc; iu /1'wslml to 1-(IN Dc;tr'MI. Stw(Lr. I represent MIIIel UUm Real I-,statc P:Inners- LLC in the abmc molter. We undersmild lklt NOU rcprcticnt Dr. Clark and Dr. Clarks ck.mlmmcs. Dr. Clark has ahandwwd c01a1 appear to be prc-;cription nlcdications and patient re-cvnSs on the prcmisc at "50 Miilcniuln W'm. On _luly 14,'O1?. Dr. C'lark's staff locked these iicnts Ill a >cparate room urnclcr the supen?isio+I Of the. CIImbCrland Crnuit\? Sheriff`s department- Only r. Clark has a kc\ to this; room. Millcnium Peal Estate and the Con111CIk+nd CMIJJvy Sheril(' D s Ofhicc Im%:c attempted to l-lct Di ( lark to take pliy:ieal posscssion of the. items that are locked n ihat loom Dr. CkId, ha, apparently i?1n??rct{ lhc;c rcquesL;_ A t) he dear. Millcmullt Rcal (sia?e II;IS rn.ri taken possession c11-111c hrc;criptfoil medications and patient records. 1,Vc iced Di, (_lark III make arrangcn cots with Millcnium. l umm-.h mc, i'or thc: lCillo :11'd ;Ill mcdictttions. patient recordti ;Intl ether ?rnsilivc materi;ik, Dr. Clark nml t contact my tt, make , hc5c anan?clnent? [it rcillov c ;III cal (hc items h% the end nl hu;ine?; Thal',dAN 1111 _?(;. ')OF Shr,uld f)r_ Clad: fail III rerI???r Ihc.cc ilClll', by i?(Ii) P'ti'l 1?1S'J' lul> Zt;, Svc sh 111 he forced to tak-, IM anci :ill ttCti' n [u prOeci dire irucru,t III hlillcnlunt Real t-;4alc_ hul 11i11 1IlWled t,, c•r,ntactinn thc• i'cnns??l?ani:+ ;Attorne?, Gcncr;ll?s O(iicc. the f'cnns?l?nni;s S(;)Ic R?,slyd of Medicine ;Ind the icderal Drug I nlorccincnt -?rtcnc? rc? ardin? IhcSC abandoned item>. V tc look IuMMd to Itca1in2 hom 1)1. ( lark inuncdiatcly. Plc,r;c du n,;f hesitate iu uafl um if ?uu ??i??li tI? <li:,cu?? thiti nrlltcr Vcn (lul: ?f Dal, id 1. 1 ? 7?1 VERIFICATION (AaAn - I, G??llh verify that the statements made in the foregoing der are true and corre to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: By: ??z6?aat? CERTIFICATE OF SERVICE AND NOW, the undersigned does hereby certify that he did serve a copy of the foregoing Answer upon the parties listed below by causing same to be deposited in the United States Mail on July 27th, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Steven Snyder 155 South Hanover Street Carlisle, PA 17013 David J. Lanza G.34 3T.?.. ?l m.fl,i.y ?.1 sF.l.i t F= YL','Aldl David J. Lanza 1D # 55782 Law Offices of David J. Lanza 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 730-3775 Fax - (717) 730-3778 MILLENNIUM REAL ESTATE PARTNERS,LLC, Plaintiff, V. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC, Defendant Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 11-5990-Civil Term PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO VACATE Introduction Defendant has filed this Motion only as a reaction to correspondence from Plainitff s Counsel attached hereto as Exhibit F. Plaintiff has demanded that Dr. Clark remove his prescription medication and patient records from the premises - a demand that Defendant has ignored. Only after receiving this demand did Defendant attempt to cloud the issue by filing its Motions in this case. Dr. Clark is attempting to use prescription medication and patient records for the purpose of remaining in the leased premises free of charge. Defendant has repeatedly avoided the proper disposition of his records and medicine for this purpose. This conduct includes fleeing the scene during the sheriff's eviction on July 19th and refusing to come to the premises to claim his materials in the week that has followed. Instead of responding to Plaintiffs correspondence (Exhibit F), Defendant filed this Motion without notice to Plaintiff, knowingly placing the Motions only in the U.S. Mail in the hope that Defendant could obtain its improper relief without bond and without Plaintiff having an opportunity to inform the Court of the truth. 1. Admitted. 2. Admitted. Admitted in Part. Denied in Part. Defendant's current corporate status is beyond Plaintiff's knowledge. 4. Denied. The only tenant on the Commercial Lease is Central Pennsylvania Pulmonary Associates, LLC. To the extent that Dr. Clark placed another entity in the leased premises, such conduct constitutes a lease violation under § 14 E of the Commercial Lease. 5. Admitted. 6. Admitted in Part. Denied in Part. To the extent that Defendant suffered financial hardship, such hardship resulted solely from Defendant's own conduct. Defendant's financial difficulties began at least as early as June 2010 when Dr. Clark embezzled funds from Defendant's Employee Benefit Plan, as set forth in the Indictment attached hereto as Exhibit "A." By way of further denial, Defendant had failed to pay the proper rental amount since May 2009. Defendant has failed to pay any rent since December 2010. Over the years, Defendant has provided twelve (12) bad checks to Plaintiff. 7. Admitted. 8. Admitted. 9. Admitted in Part. Denied in Part. Plaintiff agreed only to waive the rent from January 2012 through June 2012. The Agreement does not waive back rent which equaled $401,923.00 at that time, exclusive of interest and attorney fees. The terms of any rental waiver are governed by ¶ 4 of the Agreement. By way of further denial, Defendant has violated the terms of this Agreement. Defendant remains in default in excess of $400,000.00 plus interest and attorney fees at this time. 10. Denied. Plaintiff offered to reduce the rent starting July 1, 2012 to $11,000.00 a month (a reduction of more than $8,000 a month) and was demanding three month's rent (with two of those months serving as a security deposit). Plaintiff did not demand any rent from the period set forth in ¶4 of the Assignment of Membership Interest (Exhibit "A" of Defendant's Motion). True and correct copies of e-mails from Andrew Giorgione and Greg Rothman to Defendant dated May 2"d, May 15th and June 1St are attached hereto as Exhibit "B" These e-mails are consistent with prior proposals, including an e-mail from Giorgione to Clark dated December 1" 2011, a copy of which is attached hereto as Exhibit "C." Dr. Clark acknowledged these terms in his e-mail of June 16, 2012, a copy of which is attached hereto as Exhibit "D." 11. Denied. Plaintiff demanded no rent for the period set forth in ¶4 of the Assignment of Membership Interest. Plaintiff's demand constituted a reduction in rent from the Lease terms for the period commencing July 1, 2012. 12. Denied. Giorgione sent e-mails on June 1, 2012 and June 3, 2012, copies of which are attached hereto as Exhibit "E." As set forth on the e-mails, these e- mails resulted only from Defendant's failure to respond to prior e-mails and failure to confirm that he would pay rent. By way of further denial, Plaintiff took no action until after July 1St, when Defendant failed to pay any rent. 13. Denied. Defendant made no rental payments. Defendant has made no rental payment at all since April 2011 in the form of four checks in the total amount of $4,000.00 (all of which checks bounced). Defendant has paid no full rental payment since April 2009. 14. Admitted. 15. Denied. Plaintiff incorporates the denials of IT 1-14. 16. Denied. Plaintiff forgave no past due rent. This issue is controlled by ¶ 4 of the Agreement attached as Exhibit "A" to the Motion, which contains no such provision. Plaintiff forgave six months rent for the period from January through June, 2012, which rent would exceed $114,000.00. This amount exceeds, when combined with Dr. Clark's missed capital calls, the value provided by Dr. Clark in the Agreement, as his portion of the building was not worth those amounts. By way of further denial, Dr. Clark has not begun paying rent as of July 1 St 17. Denied. Plaintiff did not forgive back rent, as such rent would exceed $400,000.00. The six month forgiveness plus Dr. Clark's missed capital calls exceeded the value provided by Dr. Clark. 18. Denied. While Defendant occupied the real estate until July 19, 2012, Defendant has tendered no rent since April 2011 (which checks all bounced at that time) and has not tendered the full monthly rent since May 2009. 19. Admitted. 20. Denied. The Agreement did not promise free rent after June 2012. 21. Denied. The Agreement has not been breached. Defendant was 49 % owner at the time of the Agreement. Even if the facts were as stated by Defendant, this argument would be absurd, as Defendant cannot obtain free rent by virtue of 50 % ownership in a building to the detriment of the minority owners. To the extent that Defendant attempted to use his stake in the building to prevent legitimate legal action for rent, such attempt violates Defendant's fiduciary duties to the minority owners. Such an argument should have been raised following the Confession of Judgment in July 2011 - nearly one year ago. 22. Denied. Plaintiff did not refuse to accept the rent. Plaintiff did not tender the rent and has tendered no rent in more than one year. Wherefore, Plaintiff requests that this Court enter an Order:. 1. Denying Defendant's Motion. 2. Requiring Dr. Timothy Clark to take immediate possession of all medications and medical records ("the materials") located at 2250 Millenium Way, Enola, Suite 400. 3. Requiring Dr. Timothy Clark to remove these materials from the premises within five days. 4. Awarding attorney fees to Plaintiff and against Defendant and Respondent as a result of the Respondent's conduct in this matter. 5. Issuing a bench warrant against Dr. Timothy Clark in the event that he fails to comply with this Order and/or fails to remove the materials at issue from the premises. Respectfully Submitted, Dated: It C It 2 By: - David Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff VERIFICATION I,C-ft k, verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: -7_;t4,;L61)? By: W WqT7?? CERTIFICATE OF SERVICE AND NOW, the undersigned does hereby certify that he did serve a copy of the foregoing Answer upon the parties listed below by causing same to be deposited in the United States Mail on July 27th, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Steven Snyder 155 South Hanover Street Carlisle, PA 17013 avid J. Lanza Case 1:12-cr-00149-CCC Document 1 Filed 06/13/12 Page 1 of 4 PJS:JJT:nl UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES, OF AMERICA V. TIMOTHY ALLEN CLARK, CRIMINAL NO. f - Defendant. ) c".cD HA TRR1U-S&AG I ND I C T M E N T JUN 1-3 Z012 MARY H, WAND[! EX OLEAK COUNT ONE (Embezzlement from Employee Benefit Plan, 18 U.S.C. § 664) THE GRAND JURY CHARGES THAT: At all times material to this Indictment: 1. Central Pennsylvania Pulmonary Associates, LLC ("CPPA") is a medical practice specializing in the diagnosis and treatment of diseases and conditions of the cardio-pulmonary system. The practice is located at 2250 Millennium Way, Suite 400, Enola, Pennsylvania 17025. CPPA employs approximately ten persons. 2. Sleep Disorder Centers of Central Pennsylvania ("SDCCP") is a medical practice specializing in sleep-related diseases and conditions. The practice is located at 2250 Millennium Way, Suite 400, Enola, Pennsylvania 17025. SDCCP employs approximately six persons. Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 2 of 4 3. Defendant Timothy Allen Clark ("Clark") is a medical doctor and pulmonologist and the sole owner of both CPPA and SDCCP. 4. In 2005, Clark established the Central Pennsylvania Pulmonary Associates 401(k) Plan ("Plan") for the benefit of CPPA employees. In 2008, the Plan was amended to include employees of SDCCP. 5. The Plan is an employee pension benefit plan within the meaning of § 3(2) [29 U.S.C. § 1002(2)] of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1001 et seq. 6. As such, the Plan is subject to Title I of ERISA per 4(a) of the statute, 29 U.S.C. § 1003(a). 7. ERISA requires that the assets of the Plan be held in trust. Clark served as the sole trustee of the Plan. As such, Clark was responsible for the acquisition, management, and disposition of the assets of the Plan. 8. The Plan was funded with contributions from both CPPA and the Participants. Participants contributed to the Plan by having funds for this purpose withheld from their regular paychecks. -2- Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 3 of 4 9. The Plan also permitted participants, subject to certain conditions, to take loans from the Plan. Participants who took loans from the Plan repaid the Plan by having funds for this purpose withheld from their regular paychecks. 10. By Department of Labor regulation, 29 C.F.R. § 2510.3-102, the funds thus withheld from the employees' paychecks as contributions and loan repayments were assets of the Plan. 11. Clark, as the owner of CPPA and the trustee of the Plan, was responsible for the remittance of the withheld employee contributions to the Plan's custodian of assets. Clark was not authorized to handle or to use the withheld employee contributions in any manner, or for any purpose, other than to remit them to the Plan's custodian of assets. 12. From on or about June 2010, through on or about January 1, 2011, in Cumberland County, Pennsylvania, in the Middle District of Pennsylvania, and elsewhere, TIMOTHY ALLEN CLARK did embezzle, steal, and unlawfully and willfully abstract and convert to his own personal use in the approximate amount of $25,016.59, the moneys, funds, securities, premiums, credits, property, and other assets of the Central Pennsylvania Pulmonary Associates' 401(k) Plan, an employee pension benefit plan, -3- Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 4 of 4 subject to Title I of the Employee Retirement Income Security Act of 1974. In violation of Title 18, United States Code, Section 664. A TRUE BILL PF SMITH United States Attorney Date -4- Giorgione, Andrew I From: Giorgione, Andrew J. Sent: Tuesday, May 15, 2012 4:01 PM To: Giorgione, Andrew J.; 'taclark@cppalungs.com' Cc: 'Carla Clark'; 'wgreg1966@aol.com'; 'Greg Rothman' Subject: RE: 2250 Millennium Way Rental Space Categories: Purple Category Tim - You did not reply to this email. Is this acceptable and if so, the three months security deposit is due end of this month? Otherwise, we need to work together so that you can transition into new space and so we can get new tenants in the space that can pay rent. Please advise. Andrew J. Giorgione, Esq. Buchanan Ingersoll & Rooney, PC 17 North Second Street, 15th F1 Harrisburg, PA 17101 717-237-4863 717-233-0852 From: Giorgione, Andrew J. Sent: Wednesday, May 02, 2012 10:02 AM To. 'tactark@cppalungs.com' Cc: Carla Clark; wgrea1966@aol.com;'Greg Rothman' Subject: RE: 2250 Millennium Way Rental Space Tim - in order for you to continue your tenancy after June 30, we agreed that we would need appropriate security to insure rent payments, Greg and I spoke and we believe that you need to post three months rent as security plus agree to enter into a new lease and confession of judgment for money and possession if you default on any rent payment obligation. We will agree to give you a 10-day grace period on any monthly payment, however, if you miss any payment, we will immediately file the confessions and evict you from the premises. To be clear, you cannot miss any payments and Greg and I will not agree to any further "deals" or to hold off eviction if you miss a payment. Andrew J. Giorgione, Esq. Buchanan Ingersoll & Rooney, PC 17 North Second Street, 15th F1 Harrisburg, PA 17101 717-237-4863 717-233-0852 Greg Rothman From: Timothy A Clark <taclark@cppalungs.com> Sent: Friday, June 01, 2012 12:47 PM To: Greg Rothman Cc: andrew.giorgione@bipc.com Subject: Re: Tim Clark Letter Ok. What do you guys know about treating and diagnosing Pulmonary Hypertension. That's not complicated either. If you want me out just say. We want you out. Period. Sent from my iPhone On Jun 1, 2012, at 12:19 PM, Greg Rothman <grothman(cDrsrrealtors.com> wrote: It is not complicated. Rent is $11,050 per month. We need a deposit and payment in advance of July 1, 2012. Asking for the rent 30 days in advance for a commercial is neither unusual or unreasonable. Due to the history of non-payment a several month deposit is also reasonable. Sent using BlackBerry From: taclark(&cDDalungs.com Finailto:taciarkCabcDDalun4s.coml Sent: Friday, June 01, 2012 09:43 AM To: Giorgione, Andrew J. <andrew.giorgione(&bipc.com> Cc: Greg Rothman Subject: RE: FW: Tim Clark Letter I think because this sounds like it's going to be complicated I will have to retain an attorney to help me with this. I will let you know who we are going to use. I appreciate everything you guys have done for me and value you guys as friends.....but this legal stuff is above my head..... please don't take offense to this. With Respect... Tim Clark Timothy A. Clark, M.D. President/CEO Central PA Pulmonary Associates, L.L.C. Sleep Disorder Centers of Central PA, Inc. Telephone: 717-724-2791 i Greg Rothman From: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Sent: Thursday, December 01, 20118:04 PM To: tclark@centralpapulmonary.com Cc: Greg Rothman Subject: Re: Rent I would propose a date of June 30, 2012. Per the prior email, you pay all your expenses but no rent and transfer your remaining interests to Greg and me and stay rent free. By July 1 rent is due at the reduced rate of 11,000. If you can't or don't pay rent, you vacate. If everyone agrees, we will draw up papers. From: Timothy A. Clark, M.D. <tclark@centralpapulmonary.com> To: Giorgione, Andrew J. Cc: Greg Rothman <grothman(abrsrrealtors.com> Sent: Thu Dec 01 15:17:20 2011 Subject: RE: Rent You both are good friends and very fair. I will agree to whatever you two propose. You know this is all because of the investigation etc.... that has decimated our referral basis. I am by myself now. Thank you for all of your help. TC From: Giorgione, Andrew J. [maiIto: andrew.giorgione(&bipc.com] Sent: Wednesday, November 30, 20114:13 PM To: Timothy A. Clark, M.D. Cc: Greg Rothman Subject: Rent Tim - We have set up a third date for the Sheriff Eviction and were basically told that this is our last chance. Meaning, we cannot cancel again. I think we have been very fair to you and I trust you know this gives Greg and I tremendous heartburn. That all said, I talked to Greg today and suggested another way to give you more time. Would you agree to transfer to us you remaining ownership interest in the building in return for free rent for an additional period of time? With that, we can select a date we would all agree to and when that date arrives you would then have to pay rent again at the amount you and Greg agreed to or $11,000 per month or if you failed to then pay rent, you would agree to quietly vacate within 30 days, no sheriff needs to be involved. Economically, this makes no sense for Greg and me because whatever equity you have in the building you owe the partnership anyway coupled with the fact that while you operate rent free Greg and I will have to continue to pay the mortgage. However, we would agree to this to give you more time in the hopes you can pay rent in the future or, as indicated above, you will agree to quietly go. Does this sound reasonable and, if so, how much time would you propose under this agreement? Greg Rothman From: Timothy Clark <taclark@cppalungs.com> Sent: Saturday, June 16, 2012 3:04 PM To: Greg Rothman Cc: andrew.giorgione@bipc.com Subject: Re: Moving Transition I honestly misunderstood the amount needed. I can do that. I already requested a disbursement from my retirement account which will cover that amount. I'm sorry for the misunderstanding. TC Timothy A. Clark, M.D. 2250 Millennium Way Enola, PA 17025 Tel Fax: 717-455-9390 On Jun 15, 2012, at 11:41 AM, Greg Rothman <grothmanArsrrealtors.com> wrote: We asked for $33,000 - which represented $11,000 in rent and $22,000 in deposit. I don't know anyone who will rent to you. Sent using BlackBerry From: taclarKbcppalungs. com [mailto:taclark@cppalungs.com] Sent: Friday, June 15, 2012 09:53 AM To: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Cc: Greg Rothman Subject: RE: Moving Transition And what if I get you guys the $30,000 by the end of the month? TC Timothy A. Clark, M.D. President/CEO Central PA Pulmonary Associates, L.L.C. Sleep Disorder Centers of Central PA, Inc. Greg Rothman From: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Sent: Sunday, June 03, 2012 9:51 AM To: Timothy A Clark Cc: Greg Rothman Subject: Re: Tim Clark Letter What we wanted Tim was for you to respond to our emails of May 2 and 15 and provide the security requested to remain in the Building. You did not do that. So we expect that you will be leaving the Building as of June 30 and we are looking for another tenant to enter as of July 1. Sent from my iPad On Jun 1, 2012, at 12:46 PM, "Timothy A Clark" <taclark cr,cppalungs.com> wrote: Ok. What do you guys know about treating and diagnosing Pulmonary Hypertension. That's not complicated either. If you want me out just say. We want you out. Period. T. C. Sent from my iPhone On Jun 1, 2012, at 12:19 PM, Greg Rothman <Wothman -c,rsrrealtors.com> wrote: It is not complicated. Rent is $11,050 per month. We need a deposit and payment in advance of July 1, 2012. Asking for the rent 30 days in advance for a commercial is neither unusual or unreasonable. Due to the history of non-payment a several month deposit is also reasonable. Sent using BlackBerry From: taclark(Ebamalungs.com Finailto:taclarkCa)cooalunas.coml Sent: Friday, June 01, 2012 09:43 AM To: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Cc: Greg Rothman Subject: RE: FW: Tim Clark Letter I think because this sounds like it's going to be complicated I will have to retain an attorney to help me with this. I will let you know who we are going to use. David J. Lanza ,I ,. %I'll kcl 111, r)111 P\I'111 1'"1\ Illclllorillidulll I ll1\ Zit 1 , It) Steven tin?dcI , I sgLi i I c Ronlim.)cr A;sociatcs Rk Dr. l imoth\ Clark `:',_?0 Millcnium \l av, I:nolil I 'ia lac simile to -'-/I -ON N Dear Mr. Sm'der. I I?I IPI'IilNl? ?I,-,;U-t-,i I represent MIIlenium RcaI I?1sulIc Partner,. 1.IC in the ahorr matter. We understand Ihat \ou represent Dr. Clark and Dr. Clarks companie . Dr. Clark has ahandnncd vOwt appear it) he prc crlplion nlcdic?lholls and patient records on the premises at 2250 :Millcniunr A?aav. On July 19, )01 Ur. ( larlc , )Laff locked these items in a separate loom under the supeI-v.ision nt the (Cumberland Coil uy Shcriffis department. Only Dr. Clark has it kcy to this room. MillcillUm Real Estate and the Clllllhcrland Count. Sh, 1 11 s Cfl1cc havc allelnpted to !4ct Di. Clark to lake physical possession of the items that arcs locked in Iiat room. Dr- Clark ha; apparently i«norcd Ihosc requcsl. 'lo hk: clear. Millcnimil Rcal Rate Jul,; nix taken possession of the prescription medications and palienl records. \,y'c need Ur. Clark to make iirr mLcmcnl. with 1Millc•nium. (hrr,n-li 111c, lo,-'l the IcIIIo)%A (II, all medications. patient recorrl> Anil either scn.,iti.c nultcrial,. Di Clark aids[ contact me to make these arianeemc:nts to icnlo>,c illl of the i(em., by the end of hu,inc,? T hursday II A: Z(;_ Sllolild I)r_ C'I>I1-11 Dail to remora Ill"c it??nls by ti (1I) P'V1 I?.S 1 July ?G, vv?c shall he lorccd to take 1ny and all actin to I)Ik,tcc( tl7C ilaercht OI illeIII unl tyc;II I.:;f;lIe_ ins Indinp„ hill n(?I Iilnitc(1 to contilclinp the PC IIn"A'IVit nlit AltornCA Cicncr,Il', t_)fhcc. litc PenntiVIVania Statc Roilyd of Medicine and file federal Drn12 I nforci lIiu111 ?i?.uncv rc;_ardin?? thcx: al?and?>ncd itcm>. Al c IOok ard to hcarim-, Irow I)I ( lark inllncdi?ltcly. PIC&,c dl1 I( )I hcsitiltc to call Inc it .'oil yyisll to di.cu,s tlti, mutter V I lrul\'\uur;. I Da?id (. Lanr,1 % { .._ T t1 : .. adv .t ?ej? a David J. Lanza ID # 55782 Law Offices of David J. Lanza 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 730-3775 Fax - (717) 730-3778 MILLENNIUM REAL ESTATE PARTNERS,LLC, Plaintiff, V. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC, Defendant Attorney for Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA No: 11-5990-Civil Term PLAINTIFF'S ANSWER TO DEFENDANT'S "MOTION FOR IMMEDIATE PRELIMINARY INJUNCTION." Introduction Defendant has filed this Motion only as a reaction to correspondence from Plainitff's Counsel attached hereto as Exhibit F. Plaintiff has demanded that Dr. Clark remove his prescription medication and patient records from the premises - a demand that Defendant has ignored. Only after receiving this demand did Defendant attempt to cloud the issue by filing its Motions in this case. Dr. Clark is attempting to use prescription medication and patient records for the purpose of remaining in the leased premises free of charge. Defendant has repeatedly avoided the proper disposition of his records and medicine for this purpose. This conduct includes fleeing the scene during the sheriffs eviction on July 19th and refusing to come to the premises to claim his materials in the week that has followed. Instead of responding to Plaintiffs correspondence (Exhibit F), Defendant filed this Motion without notice to Plaintiff, knowingly placing the Motions only in the U.S. Mail in the hope that Defendant could obtain its improper relief without bond and without Plaintiff having an opportunity to inform the Court of the truth. 1. Admitted. 2. Admitted. 3. Admitted in Part. Denied in Part. Defendant's current corporate status is beyond Plaintiff's knowledge. 4. Denied. The only tenant on the Commercial Lease is Central Pennsylvania Pulmonary Associates, LLC. To the extent that Dr. Clark placed another entity in the leased premises, such conduct constitutes a lease violation under § 14 E of the Commercial Lease. 5. Admitted. 6. Admitted in Part. Denied in Part. Defendant's financial difficulties began at least as early as June 2010 when Dr. Clark embezzled funds from Defendant's Employee Benefit Plan, as set forth in the Indictment attached hereto as Exhibit "A." By way of further denial, Defendant has failed to pay the proper rental amount since May 2009. Defendant has failed to pay any rent (which payment has cleared the bank) since December 2010. Over the years, Defendant has provided twelve (12) bad checks to Plaintiff. 7. Admitted. 8. Admitted. 9. Admitted in Part. Denied in Part. Plaintiff agreed only to waive the rent from January 2012 through June 2012. The Agreement does not waive back rent which equaled $401,923.00 at that time, exclusive of interest and attorney fees. The terms of the rent waiver are governed by ¶ 4 of the Agreement. By way of further denial, Defendant has violated the terms of this Agreement. Defendant remains in default in excess of $400,000.00 plus interest and attorney fees at this time. 10. Denied. Plaintiff offered to reduce the rent starting July 1, 2012 to $11,000.00 a month (a reduction of more than $8,000 a month) and was demanding three month's rent (with two of those months serving as a security deposit). Plaintiff did not demand any rent from the period set forth in 14 of the Assignment of Membership Interest (Exhibit "A" of Defendant's Motion). True and correct copies of a-mails from Andrew Giorgione and Greg Rothman to Defendant dated May 2nd, May 15th and June 1st are attached hereto as Exhibit "B" These e- mails are consistent with prior proposals, including an e-mail from Giorgione to Clark dated December 1st 2011, a copy of which is attached hereto as Exhibit "C." Dr. Clark acknowledged these terms in his e-mail of June 16, 2012, a copy of which is attached hereto as Exhibit "D." 11. Denied. Plaintiff demanded no rent for the period set forth in ¶4 of the Assignment of Membership Interest. Plaintiffs demand constituted a reduction in rent from the Lease terms for the period commencing July 1, 2012. 12. Denied. Giorgione sent a-mails on June 1, 2012 and June 3, 2012, copies of which are attached hereto as Exhibit "E." As set forth on the e-mails, these e- mails resulted only from Defendant's failure to respond to prior e-mails and failure to confirm that he would pay rent. By way of further denial, Plaintiff took no action until after July I st, when Defendant failed to pay any rent. 13. Denied. Defendant made no rental payments. Defendant has made no attempt at a rental payment at all since April 2011 in the form of four checks in the total amount of $4,000.00 (all of which checks bounced). Defendant has paid no full rental payment since April 2009. 14. Admitted. 15. Denied. The Agreement did not promise free rent after June 2012. 16. Denied. The Agreement has not been breached. Defendant was 49 % owner at the time of the Agreement. Even if the facts were as stated by Defendant, this argument would be absurd, as Defendant cannot obtain free rent by virtue of 50 % ownership in a building to the detriment of the minority owners. To the extent that Defendant attempted to use his stake in the building to prevent legitimate legal action for rent, such attempt violates Defendant's fiduciary duties to the minority owners. Such an argument should have been raised following the Confession of Judgment in July 2011 - nearly one year ago. 17. Admitted in Part. Denied in Part. The Sheriff showed up to evict Defendant. The other company is not a tenant at the premises. Immediately upon the arrival of the Sheriff, Dr. Clark fled the premises, leaving his surprised staff to deal with the Sheriff and the proceedings, abandoning all of his personal property, including patients, patient records, prescription medication and related material. The sheriff also showed up for the purpose of executing upon personal property of the Defendant on behalf of a former employee whose retirement account had been converted by Dr. Clark. 18. Denied. The Sheriff supervised the changing of all locks at great expense to the Plaintiff, only to turn over the keys to the Defendant's staff after it became clear that Dr. Clark had abandoned patients, medical records and prescription drugs in his haste to flee the premises. Plaintiff left the premises only after delivering all keys to the Sheriff and after the Sheriff supervised the staff in locking the computer servers and prescription medication in one room. The Sheriffs stated intention was to turn over the key to that locked room to Dr. Clark exclusively. Dr. Clark has taken no steps to protect or recover any of the materials locked in that room, despite demands from Plaintiff, a copy of which is attached hereto as Exhibit "F." 19. Denied. This averment constitutes a conclusion of law. It is further denied that irreparable injury will occur. It is further denied that an injunction is proper where the party seeking the relief has no clear right to such relief, especially where, as in this case, Defendant has paid no rent since December 2010. Plaintiff will continue to suffer irreparable harm if Defendant continues to occupy the premises. 20. Denied. It is denied that Defendant treats the patients as set forth in this Motion. Dr. Clark has refused to take control of patient records despite Plaintiffs demands. Defendant has acknowledged, in Exhibit C that his business has been "decimated" as a result of the criminal investigation. Defendant has been absent from the premises for long periods of time prior to the arrival of the Sheriff on July 19th. The existence of numerous patients, even if true, would not justify a tenant continuing to occupy premises without paying rent. 21. Denied. There is only one practice that constituted a legitimate tenant of the premises. Judgment was confessed against Defendant one year ago. Defendant has paid no rent since 2010. The crimes for which Defendant has been indicted began two years ago. Defendant has had more than adequate time to make arrangements for moving his practice. 22. Denied. Exhibit F constitutes Plaintiffs notice to Defendant to remove the records and related materials. Defendant could (and still can) access and remove those records. Defendant is not entitled to occupy the premises merely because he has abandoned and mishandled patient records. All such records can be used by Dr. Clark at another location or transferred by Dr. Clark to another Doctor who is capable of meeting his financial obligations and properly securing records. 23. Denied. This averment constitutes a conclusion of law. By way of further denial, it is Dr. Clark that has violated HIPAA by abandoning those records and attempting to use them as leverage for the purpose of obtaining free rent. 24. Denied. All medical records are accessible pursuant to Exhibit "F." 25. Denied. The eviction took place on July 19th, not July 20th. Defendant's office manager appeared on the premises the next day and delivered some patient records to patients at that time. Plaintiff maintains its demand that all patient records be removed from the premises - a demand that Defendant has ignored. Defendant voluntarily surrendered the keys to Plaintiff on July 20th - the dy after the eviction. Plaintiff had delivered all keys to the Sheriff on July 19t after changing the locks pursuant to the Sheriffs supervision. Dr. Clark maintains the only key to the room containing the patient records and the prescription medication. Plaintiff never had the key to the room containing the records and the medication. 26. Denied. Defendant is not entitled to an injunction. Defendant has not proposed the payment of any bond. Defendant is unable to pay rent. Defendant has attempted to use patient records and prescription medication as leverage to remain in the premises without payment of rent. Dr. Clark thus has endangered his patients through his conduct in this action. Wherefore, Plaintiff demands that this Honorable Court enter an Order: I . Denying Defendant's Motion. 2. Requiring Dr. Timothy Clark to take immediate possession of all medications and medical records ("the materials") located at 2250 Millenium Way, Enola, Suite 400. 3. Requiring Dr. Timothy Clark to remove these materials from the premises within five days. 4. Awarding attorney fees to Plaintiff and against Defendant and Respondent as a result of the Respondent's conduct in this matter. 5. Issuing a bench warrant against Dr. Timothy Clark in the event that he fails to comply with this Order and/or fails to remove the materials at issue from the premises. Respectfully Submitted, Dated: ', I 'L G ) I By: David Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiff VERIFICATION I, 6 TA"verify that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Date: 7??6/?D 12 By' CERTIFICATE OF SERVICE AND NOW, the undersigned does hereby certify that he did serve a copy of the foregoing Answer upon the parties listed below by causing same to be deposited in the United States Mail on July 27th, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Steven Snyder 155 South Hanover Street Carlisle, PA 17013 David J. Lanza Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 1 of 4 PJS:JJT:nl UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA V. TIMOTHY ALLEN CLARK, CRIMINAL NO. j - ) Defendant. ) FUXE) MARMSOURQ I ND I C T M E N T JUN1 2012 MARY L umonu, OLOK COUNT ONE (Embezzlement from Employee Benefit Plan, 18 U.S.C. 5 664) THE GRAND JURY CHARGES THAT: At all times material to this Indictment: 1. Central Pennsylvania Pulmonary Associates, LLC ("CPPA") is a medical practice specializing in the diagnosis and treatment of diseases and conditions of the cardio-pulmonary system. The practice is located at 2250 Millennium Way, Suite 400, Enola, Pennsylvania 17025. CPPA employs approximately ten persons. 2. Sleep Disorder Centers of Central Pennsylvania ("SDCCP") is a medical practice specializing in sleep-related diseases and conditions. The practice is located at 2250 Millennium Way, Suite 400, Enola, Pennsylvania 17025. SDCCP employs approximately six persons. 1 Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 2 of 4 3. Defendant Timothy Allen Clark ("Clark") is a medical doctor and pulmonologist and the sole owner of both CPPA and SDCCP. 4. In 2005, Clark established the Central Pennsylvania Pulmonary Associates 401(k) Plan ("Plan") for the benefit of CPPA employees. In 2008, the Plan was amended to include employees of SDCCP. 5. The Plan is an employee pension benefit plan within the meaning of § 3(2) [29 U.S.C. § 1002(2)] of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1001 et seq. 6. As such, the Plan is subject to Title I of ERISA per § 4(a) of the statute, 29 U.S.C. § 1003(a). 7. ERISA requires that the assets of the Plan be held in trust. Clark served as the sole trustee of the Plan. As such, Clark was responsible for the acquisition, management, and disposition of the assets of the Plan. 8. The Plan was funded with contributions from both CPPA and the Participants. Participants contributed to the Plan by having funds for this purpose withheld from their regular paychecks. -2- Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 3 of 4 9. The Plan also permitted participants, subject to certain conditions, to take loans from the Plan. Participants who took loans from the Plan repaid the Plan by having funds for this purpose withheld from their regular paychecks. 10. By Department of Labor regulation, 29 C.F.R. § 2510.3-102, the funds thus withheld from the employees' paychecks as contributions and loan repayments were assets of the Plan. 11. Clark, as the owner of CPPA and the trustee of the Plan, was responsible for the remittance of the withheld employee contributions to the Plan's custodian of assets. Clark was not authorized to handle or to use the withheld employee contributions in any manner, or for any purpose, other than to remit them to the Plan's custodian of assets. 12. From on or about June 2010, through on or about January 1, 2011, in Cumberland County, Pennsylvania, in the Middle District of Pennsylvania, and elsewhere, TIMOTHY ALLEN CLARK did embezzle, steal, and unlawfully and willfully abstract and convert to his own personal use in the approximate amount of $25,016.59, the moneys, funds, securities, premiums, credits, property, and other assets of the Central Pennsylvania Pulmonary Associates' 401(k) Plan, an employee pension benefit plan, -3- Case 1:12-cr-00149-CCC Document l Filed 06/13/12 Page 4 of 4 subject to Title I of the Employee Retirement Income Security Act of 1974. In violation of Title 18, United States Code, Section 664. A TRUE BILL l 4h P`* R SMITH Date United States Attorney -4- Giorgione, Andrew J. From: Giorgione, Andrew J. Sent: Tuesday, May 15, 2012 4:01 PM To: Giorgione, Andrew J.; 'taclark@cppalungs.com' Cc: 'Carla Clark'; 'wgreg1966@aol.com'; 'Greg Rothman' Subject: RE: 2250 Millennium Way Rental Space categories: Purple Category Tim - You did not reply to this email. Is this acceptable and if so, the three months security deposit is due end of this month? Otherwise, we need to work together so that you can transition into new space and so we can get new tenants in the space that can pay rent. Please advise. Andrew J. Giorgione, Esq. Buchanan Ingersoll & Rooney, PC 17 North Second Street, 15th Fl Harrisburg, PA 17101 717-237-4863 717-233-0852 From: Giorgione, Andrew 3. Sent: Wednesday, May 02, 2012 10:02 AM To: 'taclark@cppalungs.com' Cc: Carla Clark; wa,?1966@aol.com; 'Greg Rothman' Subject: RE: 2250 Millennium Way Rental Space Tim - In order for you to continue your tenancy after June 30, we agreed that we would need appropriate security to insure rent payments. Greg and I spoke and we believe that you need to post three months rent as security plus agree to enter into a new lease and confession of judgment for money and possession if you default on any rent payment obligation. We will agree to give you a 10-day grace period on any monthly payment, however, if you miss any payment, we will immediately file the confessions and evict you from the premises. To be clear, you cannot miss any payments and Greg and I will not agree to any further "deals" or to hold off eviction if you miss a payment. Andrew J. Giorgione, Esq. Buchanan Ingersoll & Rooney, PC 17 North Second Street, 15th Fl Harrisburg, PA 17101 717-237-4863 717-233-0852 Greg Rothman From: Timothy A Clark <taclark@cppalungs.com> Sent: Friday, June 01, 2012 12:47 PM To: Greg Rothman Cc: andrew.giorgione@bipc.com Subject: Re: Tim Clark Letter Ok. What do you guys know about treating and diagnosing Pulmonary Hypertension. That's not complicated either. If you want me out just say. We want you out. Period. T. C. Sent from my iPhone On Jun 1, 2012, at 12:19 PM, Greg Rothman < oth ana rsrrealtors.com> wrote: It is not complicated. Rent is $11,050 per month. We need a deposit and payment in advance of July 1, 2012. Asking for the rent 30 days in advance for a commercial is neither unusual or unreasonable. Due to the history of non-payment a several month deposit is also reasonable. Sent using BlackBerry From: taciark@?cr)palungs.com mailto.taclark@cppaluncs.coml Sent: Friday, June 01, 2012 09:43 AM To: Giorgione, Andrew J. <andrew.giorgioneCalbipc.com> Cc: Greg Rothman Subject: RE: FW: Tim Clark Letter I think because this sounds like it's going to be complicated I will have to retain an attorney to help me with this. I will let you know who we are going to use. I appreciate everything you guys have done for me and value you guys as friends..... but this legal stuff is above my head..... please don't take offense to this. With Respect... Tim Clark Timothy A. Clark, M.D. President/CEO Central PA Pulmonary Associates, L.L.C. Sleep Disorder Centers of Central PA, Inc. Telephone: 717-724-2791 Greg Rothman From: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Sent: Thursday, December 01, 20118:04 PM To: tclark@centralpapulmonary.com Cc: Greg Rothman Subject: Re: Rent I would propose a date of June 30, 2012. Per the prior email, you pay all your expenses but no rent and transfer your remaining interests to Greg and me and stay rent free. By July 1 rent is due at the reduced rate of 11,000. If you can't or don't pay rent, you vacate. If everyone agrees, we will draw up papers. From: Timothy A. Clark, M.D. <tclark(a)centraipaoulmonary.com> a-- To: Giorgione, Andrew J. Cc: Greg Rothman <grothman(&rsrrealtors.com> Sent: Thu Dec 01 16:17:20 2011 Subject: RE: Rent You both are good friends and very fair. I will agree to whatever you two propose. You know this is all because of the investigation etc.... that has decimated our referral basis. I am by myself now. Thank you for all of your help. TC From: Giorgione, Andrew J. fmailto:andrew.giorgione(a-bipc.com] Sent: Wednesday, November 30, 20114:13 PM To: Timothy A. Clark, M.D. Cc: Greg Rothman Subject: Rent Tim - We have set up a third date for the Sheriff Eviction and were basically told that this is our last chance. Meaning, we cannot cancel again. I think we have been very fair to you and I trust you know this gives Greg and I tremendous heartburn. That all said, I talked to Greg today and suggested another way to give you more time. Would you agree to transfer to us you remaining ownership interest in the building in return for free rent for an additional period of time? With that, we can select a date we would all agree to and when that date arrives you would then have to pay rent again at the amount you and Greg agreed to or $11,000 per month or if you failed to then pay rent, you would agree to quietly vacate within 30 days, no sheriff needs to be involved. Economically, this makes no sense for Greg and me because whatever equity you have in the building you owe the partnership anyway coupled with the fact that while you operate rent free Greg and I will have to continue to pay the mortgage. However, we would agree to this to give you more time in the hopes you can pay rent in the future or, as indicated above, you will agree to quietly go. Does this sound reasonable and, if so, how much time would you propose under this agreement? 1 Greg Rothman From: Timothy Clark <taclark@cppalungs.com> Sent: Saturday, June 16, 2012 3:04 PM To: Greg Rothman Cc: andrew.giorgione@bipc.com Subject: Re: Moving Transition I honestly misunderstood the amount needed. I can do that. I already requested a disbursement from my retirement account which will cover that amount. I'm sorry for the misunderstanding. TC Timothy A. Clark, M.D. 2250 Millennium Way Enola, PA 17025 Tel: Fax: 717-455-9390 On Jun 15, 2012, at 11:41 AM, Greg Rothman <arothman(a,rsrrealtors.com> wrote: We asked for $33,000 - which represented $11,000 in rent and $22,000 in deposit. I don't know anyone who will rent to you. Sent using BlackBerry From: taciark@)cppalungs.com [mailto:taclark@cppalungs.com] Sent: Friday, June 15, 2012 09:53 AM To: Giorgione, Andrew J. <andrew.giorgione@)bipc.com> Cc: Greg Rothman Subject: RE: Moving Transition And what if I get you guys the $30,000 by the end of the month? TC Timothy A. Clark, M.D. President/CEO Central PA Pulmonary Associates, L.L.C. Sleep Disorder Centers of Central PA, Inc. Greg Rothman From: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Sent: Sunday, June 03, 2012 9:51 AM To: Timothy A Clark Cc: Greg Rothman Subject: Re: Tim Clark Letter What we wanted Tim was for you to respond to our emails of May 2 and 15 and provide the security requested to remain in the Building. You did not do that. So we expect that you will be leaving the Building as of June 30 and we are looking for another tenant to enter as of July 1. Sent from my iPad On Jun 1, 2012, at 12:46 PM, "Timothy A Clark" <taclark(a),cppalun s com> wrote: Ok. What do you guys know about treating and diagnosing Pulmonary Hypertension. That's not complicated either. If you want me out just say. We want you out. Period. T. C. Sent from my iPhone On Jun 1, 2012, at 12:19 PM, Greg Rothman <grothmanarsrrealtors.com> wrote: It is not complicated. Rent is $11,050 per month. We need a deposit and payment in advance of July 1, 2012. Asking for the rent 30 days in advance for a commercial is neither unusual or unreasonable. Due to the history of non-payment a several month deposit is also reasonable. Sent using BlackBerry From: taclark@cooalunas.com fmailto:taclark a@cpaalun s.com Sent: Friday, June 01, 2012 09:43 AM To: Giorgione, Andrew J. <andrew.giorgioneftipc.com> Cc: Greg Rothman Subject: RE: FW: Tim Clark Letter I think because this sounds like it's going to be complicated I will have to retain an attorney to help me with this. I will let you know who we are going to use. i Greg Rothman From: Giorgione, Andrew J. <andrew.giorgione@bipc.com> Sent: Sunday, June 03, 2012 9:46 AM To: taclark@cppalungs.com Cc: Greg Rothman Subject: Re: Tim Clark Letter No offense taken. However, we need a rent paying tenant by July 1. I think in the past year I alone have spent $100,000 on that building. Our heating and cooling needs to be replaced. That is another $16,000 that Greg and I will have to pay. I am running out of liquid cash to sustain this. That was the point of starting the ball rolling May 1. So we would all be on the same page for July 1. Your May 30 letter does not address the issues with the building although understandably it would be in your best interest to stay in the building. Sent from my Wad On Jun 1, 2012, at 10:43 AM, "taclark ,cppalungs.com" <taclarkapalun s.com> wrote: I think because this sounds like it's going to be complicated I will have to retain an attorney to help me with this. I will let you know who we are going to use. I appreciate everything you guys have done for me and value you guys as friends..... but this legal stuff is above my head..... please don't take offense to this. With Respect... Tim Clark Timothy A. Clark, M.D. President/CEO Central PA Pulmonary Associates, L.L.C. Sleep Disorder Centers of Central PA, Inc. Telephone: 717-724-2791 Fax: 480-393-4374 Clinical Address: 2250 Millennium Way Enola, PA 17025 Mailing Address for Invoices/Accounts Payable: BOX 145809850 Sioux Falls, SD 57186 Alternately Invoices/Accounts Payable can be e-mailed or faxed to cppabillsdue(cbbill.com or 717-754-0385 LAW OFFICES David J. Lanza 2132 Market Strew I'E,LI:.PIAONE 717 "730-3775 Ctvi?p 1-fill, PA 17,011 FACSIMILE 717-730-3778 EMAIL dj1awa pa.net Fax memorandum July 25, 2012 TO: Steven Snyder, Esquire Rominger Associates RE: Dr. 'rinlothy Clark 2250 Milleniunr Way, Enota L'in fcresinzle to 21-687 8 Dear Mr. Snyder: I represent Millenium Real Estate Partners. LLC in the above matter. We understand that you represent Dr. Clark and Dr. Clark's companies. Dr. Clark has abandoned what appear to be prescription medications and patient records on the premises at 2250 Millenium Way, On July 19, 2012, Dr. Clark's staff locked these items in a separate room under the supervision of the Cumberland County Sheriff's department. Only Dr. Clark has a key to this room. Millenium Real Estate and the Cumberland County ;Sheriff's Office have attempted to get Dr. Clark to take physical possession of the items that are locked in that room. Dr. C:--lark has apparently ignored these requests. To be clear, Millenium Real Estate has not taken possession of the prescription medications and patient records. We need Dr. Clark to make arrangements with Millenium. through me, for the removal of all medications, patient records and other sensitive materials. Dr. Clark must contact me to make these arrangements to remove all of the items by the end of business Thursday July 26, 2012. Should Dr. Clark fail to remove these items by 5:00 PM EST July 26, we shall be forced to take any and all action to protect the interest of Mitlenium Real Fstate, including, but nor limited to contacting the Pennsylvania Attorney General's Office, the Pennsylvania State Board of 'Medicine and the federal Di-u-., Enforcement Agency regarding these abandoned items. We look fot-Nvard to hearing from Dr. Clark immediately. Please do not hesitate to call me if you ,Nrlsh to discuss this matter. Very truly yours, r.? Dravid J. Lanza Steven R. Snyder, Esquire PA Attorney License No. 90994 Rominger & Associates 155 South Hanover Street 21;2 JUL 26 AM 9. 24 PFNqSyLVAwP' Carlisle, PA 17013 (717) 241-6070 FAX (717) 241-6878 Attorney for Plaintiff snyder@romingerlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA MILLENNIUM REAL ESTATE PARTNERS, LLC Plaintiffs V. CENTRAL PENNSYLVANIA PULMONARY ASSOCIATES, LLC Defendants TO THE PROTHONOTARY: DOCKET NO. 11-5990 : CIVIL ACTION -EQUITY ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant, Central Pennsylvania Pulmonary Associates, LLC. Date: By: Steven R. Snyder, Esquire Rominger & Associates PA Attorney License No. 90994 155 South Hannover Street Carlisle, PA 17013 (717) 241-6070 Fax (717) 241-6878 snyder@romingerl aw. com MILLENIUM REAL ESTATE IN THE COURT OF COMMON PLEAS OF PARTNERS, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V CENTRAL PENNSYLVANIA 11-5990 CIVIL TERM PULMONARY ASSOCIATES, LLC, ` -,- Defendantsm t M_1 -<2_? p IN RE: REQUEST FOR PRELIMINARY INJUNCTION ,71 Nc ORDER OF COURT' AND NOW, this 27th day of July, 2012, after hearing in the above-captioned matter, the court finds that (1) an injunction is not necessary to prevent immediate and irreparable harm; (2) the defendant has not shown that he is likely to prevail on the merits of this case, and (3) the defendant has a legal remedy available to him which does not require equitable powers of this court. Accordingly, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion to Vacate Writ of Possession Upon Confession of Judgment is denied. The defendant's motion for injunction without notice is denied. IT IS FURTHER ORDERED AND DIRECTED that the plaintiff's emergency motion is granted. Doctor Clark is directed to remove his files, computers and medications from the location in question on or before the close of business on July 31, 2012. The Sheriff is directed to enforce the Plaintiff's Writ of Possession. By the Court, - ?t I ?_ ? A't' M. L. Ebe t, r., David J. Lanza, Esquire For the Plaintiff Steven R. Snyder, Esquire For the Defendant :mtf SHERIFF'S OFFICE OF CUMBERLAND COUNTY ,y R Anderson :riff Jody S Smith Chief Deputy Richard W Stewart Solicitor 0111',tr ct climbr"14114 OF' F -E =-ERIFF Millennium Real Estate Partners, LLC vs. Central Pennsylvania Pulmonary Associates, LLC c/o Timothy Clark Case Number 2011-5990 SHERIFF'S RETURN OF SERVICE 07/19/2012 03:00 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 19, 2012 at 1500 hours, he served a true copy of the within writ of possession, in the above entitled action, upon the within named defendant, to wit: Central Pennsylvania Pulmonary Associates, LLC, by making known unto Donna Patsiopoulos, Office Manager and Adult in Charge, at 2250 Millennium Way, Ste 400, Enola, Cumberland County, Pennsylvania 17025, its contents and at the same time handing to her personally the said true and correct copy of the same. POSSESSION WAS NOT GRANTED TO PLAINTIFF AT THIS TIME. 07/26/2012 Defendant Central Pennsylvania Pulmonary Associates, LLC filed: - Motion to Vacate Writ of Possession Upon Confession of Judgment - Motion for Immediate Preliminary Injunction Without Notice and Hearing Pursuant to Pennsylvania Rule of Civil Procedure 1531. 07/27/2012 Plaintiff Millennium Real Estate Partners, LLC filed: - Emergency Motion 07/27/2012 In Re: Request for Preliminary Injunction ORDER OF COURT And now, this 27th day of July 2012, after hearing in the above-captioned matter, the court finds that (1) an injunction is not necessary to prevent immediate and irreparable harm; (2) the defendant has not shown that he is likely to prevail on the merits of this case, and (3) the defendant has a legal remedy available to him which does not require equitable powers of this court. Accordingly, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion to Vacate Writ of Possession Uon Confession of Judgment is denied. The defendant's motion for injunction without notice is denied. IT IS FURTHER ORDERED AND DIRECTED tha the plaintiffs emergency motion is granted. Doctor Clark is directed to remove his files, computers and medications from the location in question on or before the close of business on July 31, 2012. The Sheriff is directed to enforce the Plaintiffs Writ of Possession. By the Court, M. L. Ebert, Jr, Judge 07/31/2012 By virtue of this writ, Sheriff Ronny R. Anderson caused the within named Plaintiff to have possession of the premises described as 2250 Millennium Way, 2nd Floor, Enola, PA 17025. SHERIFF COST: $82.31 August 01, 2012 2012 AUG -2 AM 8: 3 7 " "MBE LAWl' ( oUk t `t Pal-NNSYLVANI SO ANSWERS, RONINW F ANDERSON, SHERIFF .,oi. e-;K Te,ecsaft. Inc.