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HomeMy WebLinkAbout13-6404 Supreme Cow r o Pennsylvania Con o>fCommo _ a leas For Prothonotary Use Only: T Cn it ' ;oer,��s eet 'r • ���r� � ) � Docket No: Si• t County 13 - The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: r ; Complaint © Writ of Summons ® Petition Transfer from Another Jurisdiction ® Declaration of Taking Lead Plaintiff's Name: Lead Defendant's Name: C=; Richard S. Wilder Darwin Kell and Doris Kell Dollar Amount Requested: J within arbitration limits I> Are money damages requested? 0 Yes © No check one ) 13outside arbitration limits N "is this a Class Action Suit? ® Yes I@ No Is this an MDJAppeal? 13 Yes E No­­- A:': Name of Plaintiff /Appellant's Attorney: Michael A. Scherer, Esquire ® Check here if you have no attorney (are a Self- Represented lPro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Q Intentional ® Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution ® Debt Collection: Credit Card ❑J Board of Assessment 'Motor Vehicle Debt Collection: Other n Board of Elections © Nuisance breach of contract 0 Dept. of Transportation Premises Liability © Statutory Appeal: Other S ® Product Liability (does not include ®Employment Dispute: E mass tort) ® Slander/Libel/ Defamation Discrimination ® C ; © Other: Employment Dispute: Other © Zoning Board 13 Other: T F p Other: O MASS TORT ® Asbestos rj , ❑� Tobacco © Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS © Toxic Waste ' ®Ejectment [3 Common Law /Statutory Arbitration B, ® Other: ` 12 Eminent Domain /Condemnation O Declaratory Judgment 0 Ground Rent ® Mandamus 13 Landlord/Tenant Dispute © Non- Domestic Relations 13 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 1] Mortgage Foreclosure: Commercial 1J Quo Warranto © Dental ® Partition © Replevin 0 Legal ® Quiet Title 0 Other: I 0 Medical ® Other: .� Other Professional: V Updated 1/1/2011 RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2013- (J U c 411 e� DARWIN KELL and IN EQUITY DORIS KELL, Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 ,__ (717) 249 -3166 ca RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2013 - DARWIN KELL and IN EQUITY DORIS KELL, Defendants COMPLAINT NOW, comes Plaintiff, Richard S. Wilder, ( "Wilder ") by and through his attorneys, BARIC SCHERER LLC, and files the within complaint and, in support thereof, sets forth the following: 1. Richard Wilder (hereinafter "Wilder ") is an adult individual who resides at ?409 Arcona Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Darwin Kell (hereinafter "Kell') is an adult individual who resides at 65 Old Stonehouse Road South, Carlisle, Cumberland County, Pennsylvania. 3. Doris Kell is an adult individual who resides at 65 Old Stonehouse Road South, Carlisle, Cumberland County, Pennsylvania, and is married to Darwin Kell. 4. Kell and Doris Kell operate "Bent Pine Alpaca Farm" from their residence. 5. This action involves the acquisition of alpacas and the business and partnership matters between Wilder and the Kells. 6. Both parties reside in Cumberland County and venue is appropriate in Cumberland County. BACKGROUND 7. In January, 2012, Wilder and his son Thomas Wilder, met Kell at the Pennsylvania Alpaca and Breeders Association Booth (PAOBA) at the PA Farm Show in Harrisburg, Pennsylvania. 8. At that meeting, Kell expressed to Wilder Kell's knowledge of alpacas. 9. Wilder expressed his interest and curiosity regarding alpacas but most of the discussion centered on another, unrelated matter. 10. When the parties had contact again later to discuss the unrelated matter in February, 2012, Kell offered to sell Wilder two bred female alpacas for approximately $4,000.00 to $5,000.00, including two free breedings. 11. That sale never occurred but at a subsequent meeting in approximately March 2012, where they continued to discuss the purchase of 2, or possibly 4 alpacas, Kell explained to Wilder that Kell was aware of a superior herd of alpacas that was for sale but Kell was not able to purchase the herd himself and Kell wanted a partner to acquire the herd with. 12. The herd referred to in the previous paragraph consisted of fourteen alpacas. 13. Kell created a purchase plan for the herd whereby certain alpacas would be owned individually by Kell and his wife, certain alpacas would be owned individually by Wilder and certain alpacas would be owned in a Kell - Wilder partnership. 14. Kell represented to Wilder that the herd of fourteen alpacas cost approximately $50,000.00 and that the price was approximately half of the fair market value for the herd. 15. Wilder relied upon Kell's knowledge, experience and expertise in alpacas in believing this representation. 16. Kell indicated that Wilder's portion of the cost for the alpacas would be $28,000.00. 17. Kell told Wilder that Kell would pay the remaining sum of approximately $22,000.00 to acquire the herd. 18. Thereafter, Wilder gave Kell a check for $12,863.00 as an initial payment to purchase the herd after Wilder sold financial investments on March 21, 2012. 19. Wilder's check from the sale of the stock was endorsed over to Kell immediately upon receipt by Wilder sometime during the last week of March, 2012. 20. The seller of the herd was Gary and Beth Slater from Ravenna, Ohio. 21.. Kell told the Slaters that he had a family interested in purchasing the herd but did not disclose their name. 22. The Slaters disclosed health information about the herd to Kell, including that Martha, a very valuable animal, had had a stillborn cria and was experiencing difficulty conceiving and that Zipporah, a 5 year old female, had never conceived. 23. The Slaters desired to keep the herd together, and had rejected prior offers to purchase the herd from buyers who were not necessarily interested in keeping the herd together. 24. Wilder didn't learn until well after the sale that the Slaters desired to keep the herd together and that dividing the herd was contrary to the Slater's wishes. 25. Kell indicated to the Slaters that the herd would be kept together by his clients, the purchasers. 26. In discussing the selling price, the Slaters told Kell that the lowest price that they could accept would be $20,000.00. In that conversation Kell told the Slaters he felt that their herd was worth more and he would try to get $26,000.00. 27. Kell eventually told the Slaters that the buyers would pay no more than. $20,000.00 for the herd. 28. Kell along with his wife, Doris Kell, purchased the herd for $20,000.00 with Kell and Doris Kell's personal check, indicating to the Slaters it would be easier for Wilder to write a check to him (Kell). The Contract for Purchase of A Proven Female Alpaca along with Darwin and Doris Kells' check for $10,000.00, representing one -half of the purchase price, are attached hereto as "Exhibit A." 29. The Slaters assumed that Kell was acting as a broker, as he had done this previously. Kelp appeared to the Slaters to be functioning as a broker, never suggesting he was purchasing the animals for himself or in partnership with Wilder. 30. Wilder paid Kell an additional sum of $15,137.00 with a check written May 17, 2012. 31. Wilder paid Kell at total of $28,000.00 toward the transaction. 32. Darwin and Doris Kell paid Slater the remaining $10,000.00 on or about May 21, 2012. 33. The Kells paid the Slaters a total of $20,000.00 for the entire herd. 34. Kell pocketed the $8,000.00 representing the difference between what Wilder paid Kell and what Kell paid the Slaters. 35. Wilder did not know Kell pocketed $8,000.00 on the transaction as this was not part of the partnership agreement or purchase terms Kell described to Wilder prior to the transaction. 36. Slater transferred the herd to Kell in two deliveries, the first occurring on April 11, 2012 and the second occurring on May 20, 2012. 37. At the time of delivery of the herd, Kell kept three alpacas from the herd as his own, and kept three males at his farm which were represented to Wilder as being co -owned with Wilder in the Kell - Wilder partnership. 38. Wilder received eight alpacas from the Slaters which were kept at Kell's farm until August 3, 2012, as physical preparation for the animals was being completed at Wilder's farm`. 39. Kell did not disclose health issues of the herd to Wilder. 40. Kell took the healthiest animals from the herd and gave the remainder, including the two with questionable fertility, to Wilder. 41. One of the females that Kell kept, "Grace ", became sick and later died at Kell's farm. 42. Upon information and belief, Grace was insured and Kell obtained insurance proceeds from Grace's insurer at Grace's death. 43. Approximately one year after the sale, Wilder and his children, who became involved in caring for the alpacas and ultimately formed the Arcona Alpacas, LLC, saw the Slaters at an alpaca event. Slaters told the Wilder family that the animals that they saw there that were in Kell's care appeared sick. Kell subsequently told Thomas Wilder not to disclose the weights of the alpacas to the Slaters, as he felt this was none of their business. Kell again told Gary Slater not to reveal the selling price of the herd to the Wilders. COUNT I - FRAUDULENT MISREPRESENTATION 44. At all times material hereto, Kell represented himself to Wilder as being experienced and knowledgeable in raising, breeding, showing and caring for alpacas. 45. Wilder relied upon Kell's representations regarding his experience and knowledge of alpacas. 46. Kell falsely represented to Wilder that the cost of the herd was approximately $50,000.00 and that Kell was investing an amount of money into the transaction that was nearly equal to the $28,000.00 Wilder invested into the purchase of the herd. 47. Wilder trusted and relied upon Kell's representations regarding the cost of the herd. 48. Kell's false statement regarding Kell's alleged investment in the herd was intended to induce Wilder to participate in the transaction. 49. Wilder relied upon Kell's representations regarding the transaction and trusted that Kell was dividing the herd fairly between Kell, Wilder and the Kell - Wilder partnership because of Kell's knowledge and experience with alpacas. 50. Kell frequently used the term "partnership" when referring to the business dealings of Kell and Wilder, despite the absence of a written partnership agreement. 51. Wilder has been harmed by Kell's misrepresentations in that Wilder has not received the value of the alpacas relative to what Wilder paid in the transaction. WHEREFORE, Wilder respectfully requests that this Honorable Court order: A. Darwin Kell and Doris Kell to deliver the alpacas in their possession purchased from Slaters to Wilder, together with all of the alpacas' health information, records, awards and similar documents. B. The re- registration of the alpacas in the name of Wilder alone. C. Darwin Kell and Doris Kell to pay Wilder compensatory damages in the amount of $8,000.00, representing the amount Kell profited from the transaction. D. Darwin Kell and Doris Kell to pay Wilder any sums he received from the insurance policy insuring Grace's life. E. Darwin Kell to pay Wilder's attorney's fees relative to Wilder's pursuit of this litigation. F. Darwin Kell to pay Wilder punitive damages. COUNT II - BREACH OF FIDUCIARY DUTY 52. Paragraphs one through fifty -one above are incorporated. 53. Kell and Wilder owe one another a fiduciary duty in the context of the partnership. 54. Kell breached his fiduciary duty to Wilder by virtue of his fraudulent misrepresentations to Wilder regarding the terms of the purchase of the alpacas from the Slaters. 55. Kell breached his fiduciary duty to Wilder by virtue of keeping for his own use the sum of $8,000.00 representing the difference between what he collected from Wilder and what he paid Slater. WHEREFORE, Wilder demands dissolution of the partnership, that all of the alpacas be delivered to Wilder with health and related records, the return of the sum of $8,000.00 plus insurance proceeds, punitive damages and costs and attorneys fees from Kell. COUNT III — CONVERSION 56. Paragraphs one through fifty -five above are incorporated herein. 57. Kell, without Wilder's consent and without lawful justification, intentionally transferred to his own use and benefit the monies of Wilder and /or the Kell - Wilder partnership, in particular the sum of $8,000.00 and the alpacas which were essentially purchased entirely by Wilder. 58. By such transfer, Kell misappropriated funds and property of Wilder and /or the Kell - Wilder partnership. 59. Kell's actions as described herein were intentional and constitute conversion. 60. As a result of Kell's conversion, Wilder has suffered financial harm. WHEREFORE, Wilder demands dissolution of the partnership, that all of the alpacas be delivered to Wilder with health and related records, the return of the sum of $8,000.00 plus insurance proceeds. COUNT IV - BREACH OF CONTRACT 61. Paragraphs one through sixty above are incorporated herein by reference. 62. In the alternative to Count I, Wilder asserts that Kell promised to acquire the herd of alpacas, in part for Wilder. 63. Kell represented to Wilder that Wilder would obtain the alpacas at a bargain price and below fair market value cost. 64. The alpacas Wilder received were not worth the sum of $28,000.00 as paid by Wilder. 65. Wilder is entitled to the complete benefit of his bargain and the delivery of the remaining alpacas in the possession of Kell. 66. Wilder is also entitled to a return of the profit Kell made on the transaction, including the insurance proceeds as referred to above. WHEREFORE, Wilder demands judgment against Kell in the sum of $8,000.00, plus insurance proceeds and the return of the remaining alpacas. Respectfully submitted, BARIC SCHERER LLC Mi hael A. Scherer, Esquire I.D. 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 Attorney for Plaintiff VERIFICATION The statements in the foregoing Complaint are based upon information that has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information that I have given to my counsel, they 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.A. § 4904 relating to unworn falsifications to authorities.. DATE: /� �� 0 JT L Ae�� JJ � I 1 'chard S. Wilder 3/ 2 i 20 1212 0 'C w.. Contract for Purchase of A Proven Female Alpaca Date: "a rc �1 Z 1 012— Parties: "Sellers" uyers" tF\1 -E"�-t j� �SIC,-el' _--�► i� ;.� t` �-- '� k�� i I ;nom "Vrl / /c v_r r :r, ,f' -r�rr m Pil'�" ,'nc� Ja (�rL ; - ,i m Name �� Name --- �(' C n1 I' �,(� Old ��-} �'•�C� (l �l i'�' l L C1 Address Address City, State, Zip City, State, Zip Telephone Telephone Identity of Alpaca: A Alpaca's International Lama Registry (ILR) Reg. Number i Agreements: i t 1. Property. Buyers agree to purchase the proven female alpaca identified in this contract. i 2. Price. The purchase price is $ Co . A nonrefundable deposit of $ U (Q Cs paid this date and the balance will be paid on or before • ' The purchase price shall be paid in full in U.S. currency before Bu ers are entitled to possession of the animal. 3. Passage of Title and Possession. Upon payment in full, delivery to Buyers by Sellers of the ILR Registration Certificate, properly executed to effectuate a transfer of ownership to j buyers in accordance with rules and regulations of the ILR, and the delivery of possession of the animal to Buyers, then title shall pass to Buyers. Delivery will take place at - (location). 4. Risk of Loss. Ri sk of loss shall pass to Buyer upon entering into this contract for purchase. It is the buyer's responsibility to obtain insurance, if desired, to protect against possible loss. 5. Warranty of Title. Sellers warrant that their title to the animal is free and clear of any liens, encumbrances, security interests, or other impediments to clear title of any kind. Sellers transfer to Buyers free and clear title and agree to indemnify and hold Buyers harmless from AOBA Form Contract For Sale of Proven Female Alpaca 0 1995, Alpaca Owners and Breeders Association, Inc. Printed: 0212519S "EXHIBIT All any claim of third parties to right of possession, encumbrance, lien, security interest or title to the animal. 6. Waiver of Implied Warranties. The implied warranties of merchantability and suitability for a particular purpose are waived. There are no warranties which extend beyond the description on the face of this contract. The animal is sold "as is " In lieu of any implied warranties, the animal sells with the written, express warranty, and specific rights and remedies in this contract, and no others 7. Seller's Express Warranties. Sellers warrant that the female is a proven breeder, who has borne and suckled offspring. Sellers warrant that the animal's complete medical and reproductive history is set forth in the attached copy of her medical and reproductive records, as maintained by Sellers in the ordinary course of its business. Sellers are not aware of any current adverse medical or reproductive condition in the 4 animal. Sellers warrant that the female's genealogy is as set forth on her ILR Registration Certificate, a copy of which is attached. The animal's medical and reproductive records and its ILR Registration Certificate are merged into, and made a part of, this contract. 8. No Other Warranties. No other warranties are made. All descriptions and representations about the animal are merged into this document. The Buyer has no right to rely upon any statement, description, or representation concerning the animal except as set forth in this document. 9. Buyers' Option For Independent Prepurchase Examination. Prior to purchase, the Buyers have been offered the option by Sellers to undertake a full veterinary. examination of the animal, using a veterinarian of Buyers' choosing, at Buyers' expense. If this option is desired, it shall be undertaken before Buyers obtain possession and within seven days of the purchase date. If the examination detects any adverse medical condition, the Buyers shall so notify Sellers before delivery of possession and within three days of the examination. Within that time only, Buyers shall have the option to rescind this contract and obtain a full refund. By virtue of the benefit of this provision for an independent medical examination, Buyers forego any claim that the animal is defective, or fails to conform to the contractual terms, because of adverse health conditions of any kind. 10. Nonassignment. The warranties and remedies under this contract are nonassignable and inure only for the personal benefit of the Buyers. The warranties and the remedies shall be void and lapse in the event of any sale or transfer of any interest (including transfer of part- ownership) in the animal. 11. Entire Agreement. This is the entire agreement between the parties. All previous discussions and negotiations have been merged into this written contract. 12. Jurisdiction and Venue. If any dispute arises between the parties, venue and jurisdiction shall lie with the state and judicial district where Sellers reside. In addition to legal relief, a court is hereby authorized to grant injunctive, declaratory or other appropriate equitable relief to enforce both the grant and the limitation of warranties and remedies as set forth by this contract. AOBA Form Contract For Sale of Proven Female Alpaca 0 1995, Alpaca Owners and Breeders Association, Inc. Printed: 02125195 13. Attorney's Fees. In any legal proceeding arising out of this contract, the prevailing party shall be entitled to their reasonable attorney's fees and costs of suit, in addition to any other relief granted by the Court. 14. Limitation of Damages. In no event shall damages be awarded for the buyers' incidental or consequential damages of any kind, including, but not limited to, lost profits or lost production. 15. Requirement of Timely, Written Notice of Claim. No legal proceedings shall be instituted arising out of this contract unless written notice is delivered by buyers to sellers within 12 months of the date of this agreement, which notice shall specify the grounds upon which buyers assert their claim, and giv sellers reasonable opportunity �.. to respond and offer to cure the alleged breach, if ap rc priate. Seller Buyer Seller Buyer AOBA Form Contract For Sale of Proven Female Alpaca 0 1995, Alpaca Owners and Breeders Association, Inc. Printed.• 02125195 l r� Pi ne , Vatte y � Gary &Beth Slater 5247 New Milford Road T arm Ravenna, OH 44266 Raising only friendly, happy Peruvian Alpacas (330) 296 -1078 C► 4��(I IV I.UCGe���c c c_. ei'i;vl �yc7 vl'ci X9 315.5 Z; h C)+ 01615e,5 -P, 3C 1 "7 c Sv(icann�'j u4� �Ict l i� :9 .31W34 3 , IT; y #1 X31 G3�Iz`7 Soo'S °(iCC .3ttrC1 "1 ij(f F j'i v O L \1 0 i i` - �1 C h� ► J� r(i ��n 1 j L 'Vo n4 5 Ir1 -�` 32- 932�14Z esc lth)COCx Y i ui�rcz)I 4cccyc CIn 2C -( ZO i 1�1a Ins PIU14L VC lie W � Pi UP.L. N' nc o4- r✓'r�c( PI UAL.- e In - C) - ) 4 i,31 0 3 1 r 12 , ea��'ua errs COD ND ANp AcpF p uS � ONO 1 Ovo * L p1s FAY t0 tNE pRDBg O� l gat CERTIFICATE OF SERVICE I hereby certify that on October 29, 2013, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of the Complaint, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert P. Kline, Esquire 11 714 Bridge Street P.O. Box 461 New Cumberland, Pennsylvania 17070 Jen W r i dsay RICHARD S. WILDER, • IN THE COURT OF COMMON PLEAS OF Plaintiff • CUMBERLAND COUNTY, PENNSYLVANIA v. • NO. 2013-6404 • DARWIN KELL AND • IN EQUITY DORIS KELL, • Defendants • ACCEPTANCE OF SERVICE AND NOW, this) YS day of ec , 2013, I, Robert P. Kline, Esquire, hereby accept service of the Complaint filed in the above-captioned matter on behalf of the Defendants, Darwin Kell and Doris Kell pursuant to Pa. R.C.P. 402(b) and certify that I am authorized to do so. Robert P. Kline, Esquire `L E, rs 3 vl � i t- 1 } RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 2013-6404 DARWIN KELL AND DORIS KELL, : IN EQUITY DEFENDANTS : - `'' rri rrj iii NOTICE TO PLEAD ` -" ` TO: Richard S. Wilder, Plaintiff You are hereby notified to file a written response to the enclosed New Matter within twenty (20)days from service hereof or a judgment may be entered against you. Respectfully submitted, 3 7'EC 2n'1-2)_ Date ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants , RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 2013-6404 DARWIN KELL AND DORIS KELL, : IN EQUITY DEFENDANTS : ANSWER WITH NEW MATTER AND NOW, come the Defendants, Darwin Kell and Doris Kell, by and through their attorney, Robert P. Kline, Esquire, and files the following Answer and New Matter to the Complaint, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied as stated. For clarification, this action involves the sale of seven female alpacas from Defendants to Plaintiff and a one-half interest in three male alpacas from Defendants to Plaintiff. 6. Admitted. BACKGROUND 7. Admitted. 8. Denied as stated. However, as a volunteer manning the booth of the Pennsylvania Alpaca Owners and Breeders Association, Kell was present for the purpose of educating the public about alpacas. 9. Admitted. 10. Admitted. 11. Denied as stated. In the discussion in March 2012, Kell explained to Wilder that Kell was aware of a herd of alpacas available for sale, that Kell did not have pasture space to add thirteen alpacas to his existing herd on a permanent basis, and inquired whether Wilder would be interested in purchasing from Kell a portion of that herd in the event Kell was able to complete the purchase. 12. Denied. As stated above, the herd acquired by Kell consisted of thirteen alpacas. 13. Denied as stated. Kell acquired the herd, retained a certain three females that were different genetically from his existing herd, sold the remaining seven females to Wilder, and sold a one-half interest in the three males to Wilder, retaining a one-half interest in the males for himself. 14. Denied. 15. The Defendants are without specific knowledge as to the information upon which Mr. Wilder may or may not have relied and, therefore, the allegation is denied. 16. Denied. To the contrary, Kell offered to sell seven female alpacas and a one-half interest in three male alpacas to Wilder for the sum of$28,000.00. 17. Denied. 18-19. Admitted that Wilder gave Kell an initial payment against the $28,000.00 in the amount of$12,863.00 in March 2012. The remaining allegations of Paragraph 18, as well as the allegation of Paragraph 19, are irrelevant to the claim of Plaintiff or the defense of the Defendants and no answer is required. 20. Admitted. Admitted that the seller of the herd purchased by Kell was Gary and Beth Slater. 21. Denied as stated. By way of further answer, it is admitted that Kell told the Slaters that he was planning to sell a part of the herd to a new farm that he was assisting in becoming established. 22. Admitted. By way of further answer, the Kells forwarded all health information received from the Slaters to the Wilders in relation to the seven alpacas that they purchased outright and the three alpacas in which they obtained a one-half interest. 23. Denied. The allegation of this paragraph is beyond the scope of knowledge of the Defendants and, therefore, is specifically denied and proof is demanded. To the contrary, Kell advised the Slaters of his intentions to sell a substantial portion of the herd to a startup farm that he was assisting. 24. Denied. The allegation of this paragraph is beyond the scope of the knowledge of the Defendants and is, therefore, denied. By way of further answer, the response to Paragraph 23 is incorporated herein. 25. Denied. The response to Paragraph 23 is incorporated herein. 26. Denied as stated. It is admitted that the Slaters told Kell that the lowest price that they would accept would be $20,000.00. The remaining allegation of this paragraph is specifically denied. 27. Denied as stated. To the contrary, Kell agreed to purchase the herd for the sum of $20,000.00 and the Slaters agreed to sell the herd to Kell for $20,000.00. 28. Admitted in part; denied in part. It is admitted that Darwin and Doris Kell purchased the herd from the Slaters for$20,000.00. It is admitted that the contract attached as Exhibit"A" accurately represents the contract between the Slaters and the Kells. The remaining allegation of this paragraph relating to any representations made to the Slaters regarding the writing of any checks is specifically denied. 29. Denied. The allegation of this paragraph is specifically contradicted by the contract which the Plaintiff has attached to his Complaint as Exhibit"A", of which the Slaters were a party. 30. Admitted. 31. Admitted. By way of clarification, the sum of$28,000.00 was paid for seven female alpacas and for a one-half interest in three male alpacas. 32. Admitted. 33. Admitted. 34-35. Denied as stated. The allegation of these paragraphs are not supported by any material fact previously alleged in this Complaint and,therefore, Defendants are unable to answer and the allegation is specifically denied. For clarification purposes, no allegation of a partnership agreement has been made in this Complaint. To the contrary, Plaintiff has incorporated the actual contract between the Slaters and the Kells which directly contradicts any allegation of a partnership agreement. 36. Admitted. 37. Denied as stated. At the time of the delivery of the herd, all animals were kept at Kells' farm and were boarded entirely free of charge to Wilder until August 3, 2012, as Wilder was not prepared to accept the animals at his farm until that date. 38. Denied as stated. On the contrary, Wilder received the seven female alpacas he purchased from Kell on or about August 3, 2012. The three males in which Wilder purchased a one-half interest were, at that time, kept at Kells' farm. 39. Denied. On the contrary, Kell passed on all medical records and history files that he received from the Slaters to Wilder for the alpacas that Wilder purchased from the Kells. 40. Denied. The three female alpacas kept by Kell were selected by Kell based upon the fact that they provided a genetic makeup that Kell did not have at his farm at the time. As stated previously, the remaining females were sold to Wilder. Any allegation regarding "questionable fertility" as a factor in the decision as to which alpacas Kell chose not to sell to Wilder is specifically denied. 41. Admitted. 42. Denied. 43. The portion of this paragraph relating to interactions between the Wilders and the Slaters are beyond the scope of knowledge of the Defendants and are, therefore, specifically denied. The remaining allegation of this paragraph is denied as stated. To the contrary, Thomas Wilder inquired as to whether he was required to disclose information about the alpacas or the acquisition of those alpacas from Kell to the Slaters and Kell opined that the Slaters' interest in the alpacas ceased when they sold them to the Kells and Thomas Wilder was within his rights to choose not to provide any information to the Slaters. The allegation alleging a conversation with Gary Slater is denied as stated inasmuch as Kell and Slater did discuss that the purchase price of the alpacas should not be disclosed to anyone in the alpaca community, not necessarily Wilder specifically. COUNT I—FRAUDULENT MISREPRESENTATION 44. Admitted. 45. Admitted. 46. Denied. 47. The allegation of this paragraph is beyond the scope of Defendants' actual knowledge and, therefore, is denied. 48. The allegation of this paragraph constitutes a conclusion to which no response is required and,to the extent a response is required,the allegation is denied. Furthermore, in light of the fact that the conclusion reached in this allegation is based solely upon a fact that has been denied, no response is required. 49. The allegation of this paragraph constitutes a conclusion to which no response is required and, to the extent a response is required, the allegation is denied. Furthermore, in light of the fact that the conclusion reached in this allegation is based solely upon a fact that has been denied, no response is required. 50. Denied as stated. Kell only used the term"partnership" in referring to the three male alpacas in which he sold a one-half interest to Wilder. 51. The allegation of this paragraph is a legal conclusion to which no responsive pleading is required. By way of further answer, Wilder is more than satisfied with the value received for the alpacas he purchased inasmuch as he has refused an offer from Kell to re-acquire the alpacas for the same price for which they were purchased. WHEREFORE, the Defendants, Darwin and Doris Kell, respectfully request that this Honorable Court dismiss Wilder's Complaint and order Wilder to pay to the Kells their attorneys fees and costs. COUNT II—BREACH OF FIDUCIARY DUTY 52. No response required. 53. Admitted. However, by way of clarification, Kell and Wilder owe one another a fiduciary duty in the context of the partnership in which they are involved in regard to the three male alpacas that they co-own. No other partnership has in the past or does now exist between Kell and Wilder. 54. Denied. 55. Denied. WHEREFORE, as Wilder has failed to allege any factual basis for the conclusions he attempts to draw and, therefore, the purported conclusions have no basis in actual face, Defendants respectfully request this Honorable Court dismiss Wilder's Complaint and order Wilder to pay to the Kells their attorneys fees and costs. COUNT III—CONVERSION 56. No response required. 57. Denied. 58. Denied. 59. Denied. 60. Denied. By way of further answer, Wilder, by the rejection of the offer of redemption of the purchase of the alpacas for the same price at which they were acquired, Wilder, from his own actions, has indicated that he has not suffered any financial harm. WHEREFORE, as Wilder has failed to allege any factual basis for the conclusions he attempts to draw and, therefore, the purported conclusions have no basis in actual face, Defendants respectfully request this Honorable Court dismiss Wilder's Complaint and order Wilder to pay to the Kells their attorneys fees and costs. COUNT IV—BREACH OF CONTRACT 61. No response required. 62. Denied as stated. Plaintiff has already incorporated the contract between Kell and the Slaters in his Complaint. Kell agreed to sell a certain seven female alpacas to Wilder and a one-half interest in three male alpacas to Wilder if he was successfully able to obtain the herd from the Slaters. 63. Admitted. By way of further answer, based upon the value of the alpacas as conveyed by the Slaters to Kell, Wilder did, in fact, obtain the alpacas at a bargain price and below fair market value. 64. Denied. By way of further answer, Wilder, by the rejection of the offer of redemption of the purchase of the alpacas for the same price at which they were acquired, Wilder, from his own actions, has indicated that Wilder believes they are worth in excess of $28,000.00. 65. Denied as stated. Wilder has, in fact, received the complete benefit of his bargain inasmuch as he has acquired seven female alpacas and a one-half interest in three male alpacas from Kell. Nothing whatsoever, including any facts alleged in Plaintiff's Complaint, provides any justification, at law or in fact, for Wilder to receive anything more. 66. Denied. WHEREFORE, the Defendants, Darwin and Doris Kell, respectfully request that this Honorable Court dismiss Wilder's Complaint and order Wilder to pay to the Kells their attorneys fees and costs. NEW MATTER 67. Plaintiff has failed to state a cause of action upon which relief can be granted. 68. Plaintiff has not alleged a single fact that would justify a cause of action against Doris Kell upon which relief can be granted. 69. Kell acquired a herd of ten female alpacas and three male alpacas from the Slaters for the sum of$20,000.00 as evidenced by the Agreement attached to Plaintiff's Complaint as Exhibit"A". 70. Wilder purchased from Kell seven female alpacas and a one-half interest in three male alpacas for the sum of$28,000.00. 71. The appropriate remedy in equity available to Wilder if he is unsatisfied with the bargain he received is redemption. 72. Wilder has rejected Kell's offer of redemption involving payment from Kell to Wilder of the entire purchase price of$28,000.00 in exchange for the return of the alpacas acquired by Wilder from Kell. WHEREFORE, Defendants, Darwin and Doris Kell, respectfully request that this Honorable Court dismiss Wilder's Complaint and order Wilder to pay to the Kells their attorneys fees and costs. Respectfully submitted, l 3 PEc 2 0 )3 DATE ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants • Y 1 VERIFICATION We verify that the statements made in the foregoing Answer and New Matter are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. IC 41, Date DA'WIN 1L /) -/3 —/ !• ` Date DORIS KELL r H CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer With New Matter upon Plalintiff by depositing same in the United States Mail, first class, postage pre-paid on the 13th day of December, 2013, from New Cumberland, Pennsylvania, addressed as follows: Michael A. Scherer,Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants RICHARD S. WILDER, • IN THE COURT OF COMMON PLEAS OF Plaintiff • CUMBERLAND COUNTY, PENNSYLVANIA v. • NO. 2013-6404 = === DARWIN KELL AND • IN EQUITY DORIS KELL, �� Defendants : Y • PLAINTIFF'S REPLY TO NEW MATTER -` 67. Denied. This paragraph states a legal conclusion and no response is required. 68. Denied. Doris Kell is a purchaser of the alpacas pursuant to the written contract with the Slaters and as such is an indispensible party to this action. 69. Admitted. 70. Denied. The allegations in plaintiff's complaint are incorporated into this denial. 71. Denied. This paragraph states a legal conclusion and no response is required. 72. Admitted. Wilder has concerns for the well-being of the alpacas in Kell's care and Wilder refuses to entrust the care of the alpacas in his possession to Kell. Respectfully submitted, BARIC SCHERER LLC 4&:titiztj Mich I A. 'Scherer, Esquire I.D. No.: 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff VERIFICATION The statements in the foregoing Plaintiff's Rely To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 falsifications to authorities. DATE: ,J lv \ C> 1-T Richard S. Wilder CERTIFICATE OF SERVICE I hereby certify that on January `1 , 2014, I, Andrea M. Ramos, secretary at Baric Scherer LLC, did serve a copy of Plaintiff's Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert P. Kline, Esquire 714 Bridge Street P.O. Box 461 New Cumberland, Pennsylvania 17070 Andrea M. R os CIF IH -;,„;i'i tWTl ONOTA 2OR SEP 23 PPS I: 55 CUMBERLAND COUNTY PENNSYLVANIA RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 2013-6404 DARWIN KELL AND DORIS KELL, : IN EQUITY DEFENDANTS : DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Darwin Kell and Doris Kell, Defendants, by and through their undersigned counsel, moves for summary judgment pursuant to Pa.R.Civ.P.1035.2 against Richard Wilder ("Wilder"). Defendant Darwin Kell ("Kell") and Wilder entered into an oral contract for the sale of seven female alpacas and a one-half interest in three male alpacas for the sum of $28,000.00. The remaining one-half interest in the three male alpacas remained with the Defendants. By Wilder's own admission, the only partnership that existed between Wilder and Kell was an oral partnership concerning the three co -owned male alpacas. At some point subsequent to the consummation of this transaction, Wilder learned of the profit realized by Kell in their previous transaction and instituted this equity action in an attempt to secure the return of Kell's profit from the transaction. The Defendants now request summary judgment because the oral agreement, upon the terms acknowledged by both Kell and Wilder in their sworn deposition testimony, is valid and that the allegations contained in the Plaintiff's complaint are without factual basis. I. FACTUAL HISTORY AND BACKGROUND 1. The Defendants, Darwin Kell and Doris Kell, are adult individuals who operate an alpaca farm in Cumberland County. Darwin Kell is active in the alpaca community, participating in shows and educational programs and assisting other alpaca farmers and prospective farmers. 2. Wilder is the owner of an alpaca farm also located in Cumberland County. Wilder was assisted by Kell in the setup of his alpaca farm. 3. Kell learned of an alpaca herd in Ohio that was for sale substantially below market value. Kell negotiated for the purchase of this herd in Ohio, which consisted of ten female alpacas and three male alpacas. 4. Prior to consummating the transaction, Kell entered into an oral agreement to sell seven female alpacas and a one-half interest in the three male alpacas to Wilder for the sum of $28,000.00, at a profit for Kell but still substantially below market value. 5. The entire herd of ten female alpacas and three male alpacas was delivered from Ohio to the Defendants' farm in the Spring of 2012, with the exception of one female alpaca to be delivered at a later date by the farm in Ohio. The alpacas purchased by Wilder from Kell were delivered to Wilder's farm in approximately August of 2012, with the exception of the same female alpaca referred to above to be delivered at a later date. 6. At some time subsequent to the delivery of the alpacas and the completion of the oral agreement between Kell and Wilder, Wilder became aware of the terms of Kell's separate transaction with the farm in Ohio and expressed his dissatisfaction. 7. Kell offered to Wilder a redemption of the original oral agreement whereby Kell would accept the animals from Wilder in exchange for a refund.of the purchase price. 8. Wilder refused the offer of redemption. 9. Defendants now seek summary judgment on the basis that the parties completed and consummated a valid and binding oral agreement and Plaintiff cannot now seek to change the terms of that agreement. II. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT IN THIS CASE AS A MATTER OF LAW 10. Kell and Wilder entered into a valid oral agreement for the sale and purchase of seven female alpacas and a one-half interest in three male alpacas. Wilder acknowledged that he agreed to pay the sum of $28,000.00 for the seven female alpacas and the one-half interest in the three male alpacas. 11. Wilder has acknowledged that the only partnership that has ever existed between himself and Kell involves the co-ownership of the three male alpacas. 12. Wilder acknowledges that, throughout his discussions with Kell, he had no knowledge as to what Kell intended to pay for the alpacas that Kell was purchasing from the farm in Ohio. 13. Despite these admissions by Wilder, the Plaintiff's complaint seeks to allege other facts relative to the agreement between Kell and Wilder which are not substantiated or supported by Wilder's testimony. 14. Wilder may not merely rely on his pleadings or answers to survive summary judgment, Manzetti v. Mercy Hospital of Pittsburgh, 565 Pa.471, 482, 776A.2d 938, 945 (2001), and unsupported assertions or conclusive accusations cannot create genuine issues of material fact, Blumenstock v. Gibson, 811A.2d 1029 (Pa.Super.2002). 15. Therefore, there being no genuine issues of material fact, Defendants are entitled to summary judgment. 16. Defendants' counsel sought concurrence from counsel for Plaintiff. Plaintiff does not concur in this motion. 17. This matter has not previously been assigned to a judge of the Court of Common Pleas of Cumberland County. WHEREFORE, Defendants Darwin Kell and Doris Kell respectfully request this Honorable Court to grant summary judgment in their favor and against Plaintiff, Richard S. Wilder, and to dismiss the Complaint of Plaintiff, Richard S. Wilder, with prejudice. 23 3 1 ) 9. DATE Respectfully submitted, ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants Darwin Kell and Doris Kell VERIFICATION We verify that the statements made in the foregoing Defendants' Motion For Summary Judgment are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Date t 1 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Defendants' Motion For Summary Judgment upon Plaintiff by depositing same in the United States Mail, first class, postage pre -paid on the.3a4 day of September, 2014, from New Cumberland, Pennsylvania, addressed as follows: Michael A. Scherer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 2013-6404 DARWIN KELL AND DORIS KELL, : IN EQUITY DEFENDANTS : PRAECIPE TO THE PROTHONOTARY: Please file the following transcript: 1. Deposition of Richard S. Wilder, dated May 21, 2014; 2. Deposition of Darwin Dean Kell, dated May 21, 2014. Respectfully submitted, Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070 (717) 770-2540 • Attorney for Defendants C) c rn 133 rri f < >'(-) cp CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Praecipe upon Plaintiff by depositing same in the United States Mail, first class, postage pre -paid on the 23rd day of September, 2014, from New Cumberland, Pennsylvania, addressed as follows: Michael A. Scherer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff ROBERT P. KLINE, ESQU 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Defendants RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA VS. NO. 2013-6404 DARWIN KELL AND DORIS : KELL, : IN EQUITY Defendants ORIGINAL DEPOSITION OF: RICHARD S. WILDER TAKEN BY: Defendants BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: May 21, 2014, 1:00 p.m. PLACE: APPEARANCES: Kline Law Office 714 Bridge Street New Cumberland, Pennsylvania BARIC SCHERER, LLC BY: MICHAEL A. SCHERER, ESQUIRE FOR - PLAINTIFF KLINE LAW OFFICE BY: ROBERT P. KLINE, ESQUIRE FOR - DEFENDANTS ALSO PRESENT: Darwin Dean Kell urt Reporting Services 800-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u@aoLcom 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 INDEX TO TESTIMONY DEPONENT EXAMINATION PAGE Richard S. Wilder By Mr. Kline 3 INDEX TO EXHIBITS NO. DESCRIPTION PAGE D-1 Handwritten document of Arcane alpacas 13 D-2 Spreadsheet of alpacas 13 D-3 Excerpt from Response to Interrogatories 22 CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. RICHARD S. WILDER, called as a witness, being duly sworn, was examined and testified as follows: BY MR. KLINE: Q. EXAMINATION Good afternoon, Mr. Wilder. My name is Rob Kline, and I'm Mr. Kell's attorney. And the purpose of today's deposition is to gather information to help, because there's two depositions, both parties prepare for either a possible trial or possibly resolving this case. So this is my opportunity to ask questions of you under oath. And what I'm going to tell you is if you don't understand my question, you can ask me to repeat it. You have your attorney present, so feel free to use him as a resource as well. Everything that you say is going to be transcribed by the Court Reporter, so make sure that CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 your responses are clear. A. Right. Q. Do you have any questions before we get started? A. No. Q. So it's formally on the record, can you state your full name and your address? A. Richard S. Wilder; 2409 Arcona Road, A -r -c -o -n -a, Mechanicsburg, PA. Q. And that's in Cumberland County? A. Yes; 17055. Q. Is that Upper Allen or Lower Allen Township? A. Upper. Q. How long have you owned that property? A. Since 1956. Q. Has it been -- was it a farm prior to you getting in the alpaca business? A. Well, we leased, let a farmer use it. We didn't farm it personally. Q. Okay. Explain to me, if you can, how you became interested in alpaca farming. A. Well, my son and I went to the Farm Show, and we wondered around and saw these animals, went over and started talking to Darwin and thought, well, they were nice animals. And then we got on to another subject of CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 setting up a trust fund to pass the property on to my children, and he said he knew an attorney that did that sort of work. And so we left it at that; and a month or so later we came back and we thought, well, we wanted to find out that attorney's name. And we came back and we got in touch with him and found out that attorney's name.. Q. The Farm Show is the State Farm Show that occurs every January? A. Right. Q. Do you recall what year that Farm Show was? A. It was the 2011, I guess. Must have been. 2011 or 2012; I forget which. Q. So you say about a month later you came back? A. Yeah, to find out the attorney's name. Q. When you say you came back, you got in touch with Mr. Kell? A. Yes. Q. By phone, visit his home, visit his farm? A. I'm not sure. I think -- well, I'm not sure. I don't remember whether it was by phone or in person. I'm not sure. Q. Okay. So you contacted him about the attorney. At what point did you begin talking about CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 raising alpacas? A. It was after that. We talked to the attorney, and then he -- then we -- I forget how. not sure. Let's see. I guess we went over to look at the animals, or something, and then Darwin suggested we could buy a couple of bred females. And, well, we'll think about that. And when we went back later we thought, well, maybe we'll buy four. And then we just -- then that didn't -- we didn't do that either for a while. We were just thinking about it; talk it over with the family. Q. Let me back up a little bit. Did you know Darwin Kell before you went to the Farm Show in 2011? A. Well, I didn't remember him, but we may have. He worked at the Department of Agriculture when at the same time I did, and I'm not sure whether we met or not. It's possible. I'm not exactly sure. It would have been back in the '60s or '70s. Q. At what point did you decide that you were interested in raising alpacas? A. Well, just talking with the family. There was no special point. We went over to see these animals again. And in the course of -- well, we were there for quite a while, I think, looking at them and playing with them. And then Darwin said he heard of a herd that was CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 for sale and he would be interested in sharing the cost of buying this herd, it was a good herd. Q. So up to that point where he mentioned a herd, you had not made a decision to get into the alpaca business? A. No. Q. Up to that point you weren't looking to get in the alpaca business? A. No. We were just talking about it. Q. So at that point your property wasn't ready or prepared to be an alpaca farm? A. Oh, no. No. Q. What steps did you need to take to get your property A. Pardon? Q. What steps did you need to take to get your property ready to be an alpaca farm? A. Well, we'd have to build a facility for them and put up fencing. Q. Did Darwin help you with any of that? A. Oh, yeah. Q. Can you tell me what he helped you with? A. He came over and suggested different fencing patterns and that sort of thing. Q. How often did he come over to your place? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 A. Several times; three or four or five. Q. How much time did he spend at your place? A. Couple hours. Q. Couple hours each time? A. Well, not always, not that well, not every time, but once in a while, yeah. Q. When you say he helped you with fencing, did he help you identify where your pastures should be? A. Pretty much, yeah. Q. Did he make any suggestions as to who should, who you should acquire the fencing from or who should install the fence? A. Well, yeah. Diller, Butch Diller at Diller's Feed & Tack, he did the fencing for his place, and he came along. They were both there at least once and suggested, made suggestions how to arrange the fencing. Q. Okay. And the housing for the alpacas? A. Same thing, yeah, what kind of a shed to put up and so forth. Q. Darwin helped you with that? A. Yeah. We talked about the size, yeah, and that's about it, yeah. Q. Was Darwin involved in teaching you or your family how to care for the alpacas? A. Oh, yeah. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Q. And did he spend time with you doing that? A. Well, we went back and forth. I went over to his place and we talked about different things. Q. You talked about different things. Did he give you any hands-on instruction as to what to do with the animals? A. No, not hands-on. We didn't physically handle any animals or show us how to do it other than -- well, we went to a 4-H meeting at his place and watched the kids handle them and helped them a little bit with that. Q. So there was some hands-on work? A. Well, yeah. I guess you'd call that hands-on. Q. So Darwin spent a lot of his time helping you get your farm set up? A. Not a lot. It depends what you call a lot. A few hours. Q. Just a few hours? A. Yeah. Three or four hours, maybe five. Q. Three or four or five hours over the entire time that you were setting up your farm? A. Somewhere in there. Q. Okay. Now, there are some animals that are the subject of this lawsuit, and my understanding is CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 those animals originally were delivered from Ohio to Pennsylvania in the spring of 2012. A. Yeah. Q. Okay. And in the spring of 2012, was your farm ready to take those animals? A. No. Q. And where were those animals kept until they were ready to go to your farm? A. At Darwin's farm. Q. So Darwin boarded those animals for you? A. No. We had no boarding arrangement. Q. But they stayed at Darwin's farm? A. They stayed there, yeah. Q. Who provided the daily care for those animals while they were at Darwin's farm? A. I don't know. Q. So you weren't out there taking care of your animals at Darwin's farm? A. No. Q. Were you charged anything for the animals staying at Darwin's farm? A. Was I what? Q. Were you charged any money for the animals staying at Darwin's farm? A. No. How many animals did you purchase from CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Darwin? MR. SCHERER: Object to the form of the question. You can answer. THE DEPONENT: We purchased half the herd of -- I think there was 13. Yeah. BY MR. KLINE: Q. How many female animals were purchased? A. 7. Q. What were the other 6 animals that you purchased? A. Let's see; half interest in 3 males. Q. And that's 10 animals. What are the other 3 animals that you purchased? MR. SCHERER: I object to the form of the question. Go ahead; you can answer. THE DEPONENT: I don't know what you mean, the other 3. BY MR. KLINE: Q. I thought that you answered that you purchased 13 animals. A. No. I said half of the herd was 13 animals, and we got 7 plus the 3, and Darwin took the other 3. herd? Q. Can you explain how that equates to half the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 A. Well, okay. The price was quoted to me, and then my share was half of that. Q. Who did you purchase the animals from? A. I didn't know at the time. A farm in Ohio. Q. So you, yourself, were part of the transaction of buying animals from a farm that you didn't know? A. Right. Q. Did you sign a contract for purchasing the animals? A. No. Q. Who did you pay for the purchase of the animals? A. Pardon? Q. Who did you pay for the purchase of the animals? A. Who? Q. Yes. A. I paid Darwin. MR. KLINE: I'm going to ask that these be marked as Defendant's Exhibits 1 and 2, please. (Defendant's Exhibits Nos. 1 and 2 were marked.) BY MR. KLINE: Q• We'll start with Defendant's Exhibit 2. This CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 was a document that was provided by your attorney to me in our discovery request. Do you recognize this document? A. Yes. Q. This document lists the names of a number of alpacas. Is that correct? A. What was that? Q. Column B of this document lists the names of a number of different alpacas? A. Yeah. Q. Okay. Column number F lists the price figure? A. Right. Q. What is your understanding of what the figures in column number F represent? A. My understanding, that was what we were getting for half price. Q. For example, what does the $7,000 represent, and for the Valient's Christiana listed in column number F? A. Well, I didn't get her. Q. I'm just asking what you understand the number to represent. A. Well, that was their asking price. Q. That was whose asking price? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 A. From the other farm. Q. These handwritten notes in the margins, are they your handwriting or someone else's? A. They're someone else's. Q. Okay. Do you know whose handwriting these stars are? A. I don't know. Q. Okay. So the $102,000 figure that's listed at the bottom of column F, do you know what that figure represents? A. The total of that column. Q. And that represents the total of the numbers on this column and it -- A. I guess it is. I didn't add them up. Q. Okay. I'm going to suggest to you that if you do add these numbers up, it does equal the 102. A. Okay. I'll take your word for that. Q. There are no figures for Neptune of Grace or Poseidon of Grace. Is that correct? A. Now, what was that? Q. There are no figures listed for either -- A. No. Q. -- Neptune of Grace or Poseidon of Grace. Is that correct? A. That's right. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 Q. So whatever value those animals may have are not included in that figure. Is that correct? A. I guess, yeah. Q. I'm going to ask you to take a minute and look at the names next to the stars, okay? Then I'm going to ask you a question or two. A. (Perusing document.) Okay. Q. Now, do those stars represent the animals that you purchased? A. Yes. Q. And the stars that are blocked off, do they represent the males that you purchased a half interest of? A. Right. Q. Let me show you what's been marked as Exhibit D-1. Do you recognize this document? A. Yes. Oh, yeah. Q. Can you explain to me what this document represents? A. This was the proposal of my share of buying this herd from Darwin. He wrote this out, figured out a lot. Q. And this column lists the 7 females that you purchased? A. 7 females, right. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Q. Okay. And the list price in this column, does that match the list price in column F of D-2? A. (Perusing document.) Yep, that's right, yeah. (Perusing document.) Yeah, looks like the same. Okay. Q. And the total of this column is $56,500? A. Right. Q. So based on your response to my question about column F in D-2 that this was the asking price, the asking price of the 7 females that you purchased was $56, 500? A. Right. Q. Now, the first three names on the right-hand side, right-hand column -- A. The males, yeah. Q. -- are the three males. A. Um -hum. Q. And these are the males you stated you bought a half interest in? A. That was the proposal, yeah. Q. And the three males are listed at10,000 for Dynamite, 10,000 for Revelation, 8,000 for Neptune for a total of $38,000? A. Right. Q. And divided by two, a half interest would be CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 worth $19,000? A. Yeah. Q. And this line adds the 56,500 and the 19,000 for a total of 75,500? A. Yeah. Q. So is it correct that Darwin asked you to pay $28,000 for more than $75,000 worth of animals? A. That's what it says. Q. And on this it doesn't note that Darwin was telling you that you were getting them for about $47,000 under the asking price? A. Right. Q. Does anything on this document indicate how much Darwin intended to pay for the animals? A. I don't -- it doesn't. Q. And you did agree to pay $28,000 for those 7 animals and half interest in the males? A. Yeah. My share, right. And a share is half, in my mind anyway. Q. Let me ask you this: It would appear that the figures in D-2, column F that are indicated, call, for Poseidon and Neptune totaled -- wait; I'm sorry. The male is listed -- I'm sorry; let me ask this I'm trying to think how to ask this question. The only male listed with a value here is CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 Dynamite which is listed at 10,000 here on D-1. Is that correct? A. Yeah. Q. And the value that Darwin placed on this document for Revelation and Neptune are 10,000 for Revelation and 18 for Neptune. Is that correct? A. Um -hum. Q. So it's fair to say there's $18,000 on D-1 that's not factored into column F of D-2. Is that correct? A. What was that again? Q. $18,000; the 10,000 for Revelation and 8,000 for Neptune. A. 18-- Q. 10,000 for Revelation, 8,000 for Neptune. A. You're not counting the Dynamite there. Q. Dynamite is already included right here. A. Okay. Q. So the total value of the herd to be purchased, it's fair to say, would then be 120,000? A. Yeah, I guess. Q. And you said you were buying half? A. I didn't -- I went by this. Q. Okay. But by this, being D-1? A. Yeah. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 Q. But according to D-1, you were buying $75,500 worth of the herd. Is that more than half? A. I don't know. Q. You don't know. So if a share is half, in your mind, $75,000 is half of the $120,000. Is that what you're telling me? A. All I'm saying is I paid 28,000 and that was my share; and whatever the totals were, that's... Q. But the $28,000 is what you agreed to pay for the animals that you obtained? A. How much? Q. The $28,000 is the amount that you agreed to pay for the animals you obtained? A. Right. Q. And that agreement was between you and Darwin. Is that correct? A. Right. Q. You didn't have any agreement with any farm in Ohio? A. Nope. I didn't know who they were. I had no clue. Q. I'm going to explain some history in this. If it's not correct, you correct me and then I'm going to ask you a question or two. When this issue was first raised by Mr. Scherer in his -- CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 A. By who? Q. Your attorney, Mr. Scherer, in his first letter to Mr. Kell, one of our responses was to offer to buy back the animals for the price that you paid for them. Were you aware that that offer was made? A. Yeah. Q. And Mr. Scherer reported to us that you rejected that offer. A. Correct. Q. And I want to clarify for the record that you did reject the offer to sell back the herd for the price you paid? A. Right. Q. You repeatedly say that the $28,000 was for your share, and you also stated that the $28,000 was what you agreed to pay Mr. Kell for the animals. Your Complaint alleges that some type of partnership existed in the purchase of the animals. A. That was my impression. Q. Please describe what that partnership was. A. Just that Darwin says he needed someone to go in with him to buy this herd, that he couldn't handle it by himself and his wife didn't want him to handle it and he needed someone to go in with him. I don't remember if he said partnership, partner or not, but to share CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 21 with. Q. Did Darwin tell you what he paid for the animals? A. No. MR. KLINE: Mark that as Defendant's 3, please. (Defendant's Exhibit No. 3 was marked.) BY MR. KLINE: Q. Mr. Wilder, I'm going to show you what's been marked as Defendant's Exhibit 3. That is one page from your response to the interrogatories. Do you recognize that document? A. Yeah. Q. I want to ask you to read question 3 and its response, please. A. State with specificity the terms of the partnership agreement which you allege exists between yourself and the Defendants. The partnership agreement was not written and, hence, not specific; the understanding was that the males would stay initially or indefinitely at Kell's farm since the Wilder farm could not accommodate the males initially; cost for veterinary, show fees, insurance and shearing were shared equally between Kell and Wilder; boarding fees were not charged; it was anticipated that any fees CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 generated from breeding would be shared equally. Q. That response describes your relationship with Darwin that you understood in terms of the three males. Is that correct? A. Yeah, I think so. Q. In your Complaint you allege that a partnership existed in regard to the purchase of the animals, but I see nothing in your response that refers to the purchase of the animals. A. Right. Q. So it's fair to say that the only partnership that exists is the partnership involving the three males? A. Right, yeah. Q. Earlier I asked you about Darwin's offer to redeem or purchase back the animals. A. Um -hum. Q. Can you tell me, in your own words, why you rejected that offer? MR. SCHERER: Objection. Don't answer that. It goes to settlement discussions. MR. KLINE: Off the record. (Discussion held off the record.) MR. SCHERER: Go ahead. You can answer the question. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 THE DEPONENT: Can I see that? MR. KLINE: Sure. (Deponent perusing document.) MR. SCHERER: Basically he was saying that they made the offer to give you your money back in exchange for the herd. THE DEPONENT: Well, we had already invested a lot of money in buildings, equipment, fencing, and what would we do with that if we didn't have the animals? Can I talk to you a minute? MR. SCHERER: Sure. (Deponent meeting with Attorney Scherer outside deposition room.) THE DEPONENT: The answer, we did not want to give up the animals. BY MR. KLINE: Q. I'm going to show you the Plaintiff's Reply to New Matter filed in this case, and it's in response to an allegation that you rejected the offer redemption made by my client, and your response is what's stated in paragraph 72. A. Right. Q. Please read what that states. A. Yes. Partially, that was partially. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 4 5 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 Q. Please read what it states. A. Oh. Wilder has concerns for the well-being of the alpacas in Kell's care and Wilder refuses to entrust the care of the alpacas in his possession to Kell. Q. Please explain to me what concerns you had about the animals in Mr. Kell's care. A. Paracytic problems mainly, poor condition, malnutrition. Q. What do you mean by paracytic problems? A. The animals were infested with parasites. Q. What type of parasites? A. You've got coccidiosis and a couple others. I'm not sure. I can't remember all the names. Several different types. Q. And how did you determine that they were infected with parasites? A. We had our alpacas checked after they came from the farm by the vet. Q. And what caused you to have them checked? A. Well, they were thin. We went over and got the animals from Darwin, a couple of males, because there were concerns that they were looking bad at his place. And we brought them back and sent samples of their stool out to -- I forget, I'm trying to think, a CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (.717)258-0383 *** courtreporters4u@aol.com 2 4 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 laboratory out on the West Coast. Oregon State, I think it was. Q. How many animals did you have tested? A. The three males. Q. You had all three males tested? A. Our females were tested, yeah. Q. No. Did you have all three of the males tested? A. There might have been just two. I'm not sure. I'm not exactly sure on that. Q. And you're aware that some level of a positive test is going to come up in every animal? A. Correct, yeah. Q. Are there any animals that had an unusually high level? A. I'd have to see the report. They did have much higher than the ones we had at our farm. Q. The ones you had at your farm were female? A. Right. Q. The ones that you had at your farm were kept at Darwin's farm for a period of time before they came to your farm? A. Correct. Q. And according to what I believe you just said, the females at your farm that spent a considerable CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol,com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 amount of time at Darwin's farm did not have a problem? A. No. They had some problems, yeah, but not to the extent because the males stayed longer at Darwin's farm. Q. Do you recall any treatment that you provided to these animals? A. Treatment? Yeah, the vet. Q. What was the type of treatment that was received? A. They gave them medication for the parasites. Q. When did you receive delivery of the females at your farm? A. August the 3rd, 2012, I guess. Yeah. Q. When were the males delivered to your farm? A. I'm not sure. Q. Sometime after August 3rd? A. Maybe a year later, roughly. Q. In that period of time, how often did you see the males? A. Rarely. Q. You had no interest in going out to the farm to check on your animals? A. Looked at them oncein a while, yes. My family did more than I did. Q. In that intervening time from August until CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 when you received the males, from August of 2012 when you received the males, did you talk to Darwin about the males? A. No. Q. When you went out to look at the animals, did you express any of these concerns about the condition of the animals to Darwin? A. I did not. Q. You eventually did learn that Darwin purchased the animals from Gary Slater in Ohio. Is that correct? A. Yeah. Q. And you have since been in touch with the Slaters on a number of occasions? A. Yes. Q. And, in fact, I'm not sure, but you may have purchased other animals from the Slaters? A. Pardon? Q. Have you purchased other animals from the Slaters? A. No. Q. One of the animals -- A. Oh, I'm sorry. We did just recently. We purchased Poseidon and Blazen Son. Q. One of the females that you purchased from CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 Darwin was Clara. Is that correct? A. From Darwin? No, not Clara. You say from Darwin, purchased Clara? Q. Correct. A. No. She was part of the original package. Q. Correct. A. Yeah. Q. Which you paid money to Darwin for the -- A. Well, for the whole bunch, yeah, the whole herd. Q. Okay. And Clara either does or did take an iron supplement. Is that correct? A. Yes. Well, she was -- when she was delivered, the Slaters gave Darwin a bottle and told him that that was her iron supplement. Q. In your discussions with the Slaters, have they ever told you why Clara needs to take iron? A. They thought she was anemic. Q. Have you had Clara checked out by your vet? A. Yeah. Q. And what does your vet have to say about -- A. I've been giving her iron supplement. Q. Has your vet given any indication why Clara is anemic? A. No. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 Q. In your interrogatories you identify Teri Kinka from Golden Glen Alpacas as a possible witness. A. I didn't hear that. Q. In your interrogatories you identify Teri Kinka from Golden Glen Alpacas as a possible witness. A. Golden Glen Alpacas, did you say? Q. Yes, I did. A. I don't know Golden Glen. Q. Do you know Teri Kinka? A. Oh, yeah. I didn't recognize the name. Q. In your interrogatories you indicate that she will testify as to the presence of parasites in some of the alpacas. A. Yes. Q. Do you know which alpacas she's going to identify? A. No. Oh, yes, I do; the ones from Darwin at Darwin's place, not at our place. Q. Please explain that to me. I didn't understand that response. A. If I remember correctly, that Teri said she was at Darwin's farm checking his animals and they had a lot of parasites. Q. Has she ever checked the animals at your farm? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 A. No. Q. How did you come to know Teri Kinka? A. I just met her a couple months ago at a show. Q. Are you familiar with a parasite known as the barber pole worm? A. I've heard of it. Q. Have you had any experience with it? A. No. MR. KLINE: May I be excused to touch base on something with my client? (A brief recess was taken.) MR. KLINE: Mr. Wilder, I'm done asking you questions for now. I reserve the right to ask additional questions after any questions Mr. Scherer might have for you. MR. SCHERER: I'm not going to ask him any questions. (The deposition concluded at 2:00 p.m.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of RICHARD S. WILDER. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 3rd day of June, 2014. NOTORIAL SEAL AMY R. FRITZ, NOTARY PUBLIC BOROUGH OF CARLISLE, CUMBERLAND COUNTY MY COMMISSION EXPIRES SEPTEMPER 22„2014 Notary lic CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com / L K 0) faet gio? Aged h o itilioili ni) ie 76.5g- 14k7e0,014 4 5 4,IR-r 11 Al .1))0,1frlIrE b 00 --- -5D c AMA . lel4noiv ib boo .4.4-X .57,146 ---- 1 -(e 0Aiir: g 0,14 4 000 - 14 ' " tc ON) A k i _-----i 4. 060 -ff.----_. - -...-..... - fr.', - - .... N riff WE 5,04LeRILL3. Af / / te ,i, 1 .. FSK z EXHIBIT 5- ) K A B C 0 E F , G 1 ARI # ALPACA NAME SIRE DAM M/F PRICE Srv. Sire 2 31681520 Valient's Christiana Valient #30436862 Clara#806496 Female 7,000 open 3 806496 CI ruvian Accoyo Clara IIVIPF98 I Import Import Femal‘- 20,000 Valient 4 828287 SFA Peruvian Desdemona Camion #185434 Honorata#122672 Fe al 5,000 Blazen Son 5 30697119 Son's Grace* • Blazen Son#829461 Martha #848375 Female 15,000 open 6 848375 Young Accoyo Martha ''' . Baron #123075 Maria #811952 Female 15,000 Blazen Son 7 30697140 PIVAL Zipporah of Moses Moses #829805 Clara#806496 Female ".--' 1,000 unproven 8 31803427 PIVAL Sonny's Trinity Blazen Son#829461 Martha #848375 Female ---- 5,000 Valient 9 32432442 PIVAL Valient's Trixie Valient #30436862 Valient #30436862 Desdemona#828287 Female --- 3,000 Clara#806496 Female --- 8,000 unproven unproven 10 31803403 PIVAL Surianna of Valient 11 843155 Woodsedge Peruvian Royal Victory * Damasco#166611 Image#117976 Female 3,000 Valiant 12 32432411 'PIVALValient's Dynamite Valient #30436862 Clara#806496 Male 10,000 Unproven 3 31803465I-RAIAt-lx-cpSeittonl-'—ofigrace* —Dianionte#810' 6 ':''' ' StirAGI1C-ez1.. • i----Allat Cafi,'- -. - unproven 14 324332459 PIVAL Neptune of Grace D a onte#810665 Son's Grace Male Call Unproven 15 r 318033434 PIVAL Son's Revelation * Blazen Son#829461 Martha #848375 Male 10,000 unproven 16 17 * Champion in AOBA shows 102,000 K • 3. State, with specificity, the terms of the partnership agreement which you allege exists between yourself and the Defendants. ANSWER: The partnership agreement was not written and hence not specific. The understanding was that the males would stay initially or indefinitely at Kell's farm since the Wilder farm could not accommodate the males initially. Costs for veterinary, show fees, insurance and, shearing were shared equally between Kell and Wilder. Boarding fees were not charged. It was anticipated that any fees generated from breeding would be shared equally. 4. In regard to any of the female alpacas that are part of the partnership which you allege in your Complaint, please specify any and all offspring that have been bred from these alpacas and, if any such offspring has been sold, please specify the amount received for the sale of said offspring. ANSWER: No female alpacas which are referred to in the Complaint have been successfully bred. RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA VS. : NO. 2013-6404 DARWIN KELL AND DORIS : KELL, : IN EQUITY Defendants DEPOSITION OF: DARWIN DEAN KELL TAKEN BY: Plaintiff BEFORE: Amy R. Fritz, Court Reporter Notary Public DATE: May 21, 2014, 2:00 p.m. PLACE: APPEARANCES: Kline Law Office 714 Bridge Street New Cumberland, Pennsylvania BARIC SCHERER, LLC BY: MICHAEL A. SCHERER, ESQUIRE FOR - PLAINTIFF KLINE LAW OFFICE BY: ROBERT P. KLINE, ESQUIRE FOR - DEFENDANTS ALSO PRESENT: Richard S. Wilder ntral a urt Reporting Services 800-863-3657 • 717-258-3657 • 717-258-0383 fax courtreporters4u@aotcom 2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 DEPONENT Darwin Dean Kell INDEX TO TESTIMONY EXAMINATION PAGE By Mr. Scherer 3,37 By Mr. Kline 35 INDEX TO EXHIBITS NO. DESCRIPTION PAGE P-1 Handwritten document of alpaca names 20 P-2 Spreadsheet of alpacas 21 P-3 Spreadsheet of alpacas 22 P-4 Handwritten document of alpaca names 24 P-5 Handwritten document Arcona alpacas 25 P-6 3/27/13 letter to Teri and Andy Kinka 27 from Darwin Kell P-7 Marketing sheet for Revelation 29 CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. DARWIN DEAN KELL, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. SCHERER: Q. Can you tell us your full name for the record, sir? A. Yes. Darwin Dean Kell. Q. And what is your date of birth? A. August 26th, 1941. 17015. Q. And where do you reside? A. 65 Old Stonehouse Road South in Carlisle, Q. And who resides there with you? A. My wife, Doris J. Kell. Q. And do you own 65 Old Stonehouse Road, or do you rent that? A. I own it. The bank and I own it. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Q. Okay. I know the feeling. We're here this afternoon to take your deposition. And, of course, you just watched your attorney depose Mr. Wilder, so I'm going to ask you to follow the same rules that Mr. Wilder followed, which are to answer verbally, if you would, so that Amy can take down your answers. If you don't understand any of my questions, let me know and I'll try to rephrase them. And if you want to talk to Mr. Kline at any point, just indicate that and we'll stop and you can talk to him. A. Okay. Thank you. Q. Is there any reason you can't give a deposition this afternoon? Are you feeling -- A. I have no reason not to. Q. You feeling well? A. Yep. Q. Not on any medication that would prevent you from understanding? A. No. Q. What is 65 Old Stonehouse Road South? I know there's a business name called Bent Pine Alpaca Farm. Is there a farm there that you live on? A. I live on a farm, and it is called -- we go by the name of Bent Pine Alpaca Farm. Q. And about how many acres is that? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 A. 16 acres. Q. And what's the nature of that farm? What type of farming activities are done there? A. Alpaca breeding. Q. Is the farming operation related strictly to the alpacas? A. Yes. Q. You don't have beef cattle? You don't milk a herd? A. No. Q. What's your educational background? A. My educational background is I have an Associate Degree in Medical Technology. I was a state licensed laboratory director for Department of Agriculture for bacteriological testing for ten years. Q. from? Okay. Where was your associate's degree A. Carnegie Medical College in Cleveland, Ohio. Q. And what year did you receive that degree? A. '62. Q. And then you mentioned employment with the Department of Agriculture. A. Right. Q. Tell me again what you did there. A. I was the laboratory director doing CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 '0** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 bacteriological testing primarily on dairy products and miscellaneous food products, but primarily dairy products. Q. And from when to when did you work for the Department of Agriculture? A. I was there for four and a half years, and then I left and became the laboratory director for Zausner Foods in New Holland, Pennsylvania. And I was the laboratory director there for six years until 1972. Q. And how were you gainfully employed after Zausner Farms? A. I was with Motorola Corporate for 24 years. Q. And that takes us up to about 1996? A. Yes. Q. And did you retire from Motorola? A. Yes, I did. Q. And what did you do for Motorola? A. I was in sales and marketing primarily in the public safety, and police, fire, EMS and 911. Q. When did you become involved with raising and care of alpacas? A. After my wife and I sold our business, which was Metropolitan Medical which I started in 1985 as Sakar Patient Transport, S -a -k -a -r, and a couple years later I bought out the doctors who were my partners and CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *4* (717) 258-3657 *** f (717)258-0383 *** eourtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 my wife and I changed the name to Metropolitan Medical. She operated the ambulance service for the most part. Q. So there's an outfit called Sakar Patient Transport? A. Right. Q. And that was owned by some doctors? A. Four doctors and myself. Q. And that operated from when to when? A. I think up until around 1991, '92, something like that. Q. And when was the company started? When did you become involved in the company? A. I was president of the company from the time it started in 1985. Q. Okay. So Metropolitan Medical was sold and closed in '85? A. No. Sakar started in '85. Around 1992 the doctors, because of changes in government regulations, had to get out of it. So my wife and I purchased the remaining stock and changed the name as part of the agreement to Metropolitan Medical so that the doctors -- the Sakar was the first initial of each one of our names. Q. And that operated from, roughly, 1992 A. To 1997 -- or, I'm sorry, until about 2000, CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 1999 or 2000. Q. And then you sold that business? A. I sold that business. Q. And is that when you became involved in the alpaca business? A. Yes, because then I had retired for the second time. Q. So around the year 2000 you became involved with the raising of alpacas? A. That is correct. Q. And can you just describe for me from the year 2000 forward what your involvement with alpacas has been? A. Well, we started with three alpacas, and I have started over a dozen alpaca farms that I've helped mentor and get started. I raise, breed and sell alpacas. I've done consulting, just about every aspect; I've done lectures and seminars, and I'm very active in the State Alpaca Association. Q. Okay. Tell me when you first met Richard Wilder. A. I first met him at the Farm Show at the -- he came over to the alpaca booth where I had alpacas on display and was talking and educating people about alpacas for the State Association. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Q. And when did that occur? A. I want to say January of 2012, I believe. Q. So you hadn't known Richard Wilder prior to that time? A. Not personally. As Richard Wilder had mentioned earlier, he was a food agent and brought samples in, and he looked familiar to me and I looked familiar to him, so I think that he did bring samples into my laboratory for testing. But that, you know, he was in and out, so we weren't personal friends or, anything. Q. Would you have known one another's name back then? A. No. Well, 1 would have known his name because his name would have been on the lab slip; but other than Food Agent Richard Wilder, number so and so, that would be it. Q. Okay. And at that meeting in January of 2012, did you express to Mr. Wilder your familiarity and experience with alpacas? A. Yes, 1 did. Q. Tell us in your words what happened after that initial meeting as far as your discussions or relationship with Mr. Wilder. A. He told me he was fascinated by the alpacas CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 and wished that he wasn't so old and he said this might be something I would be interested in. And his son, Tom, was there and said, yeah, it would be neat. And I said, well, I said right over here is the Joneses. And I said, they have set up to pass their inheritance on to their children in the form of helping them get started in the alpaca business. And I said that that is a thing that happens many times with all agriculture venues, that the parents pass it on to their children. And I said, in this particular situation, their parents helped them get it started and are working, their children and them are working together. And they said, yeah, very interesting. And I said I have a friend that -- they said, well, how would you go about doing this. And I said, well, it's all part of estate planning; and I said, I have a friend who is an attorney that would help with that type of thing. And I said, we try to help people in all aspects of the alpaca business, and, you know, that would be one of them. And that was the end of the conversation until, as Mr. Wilder said, a month or two later he called and asked who that attorney was. Q. And what was the discussion at that point? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 Do you remember? A. Basically he called and wanted to know what the name of the attorney was and if I had his phone number. He said, I've been talking about this with my family and we want to sit down and talk further about it with the attorney. He says, I have a farm and it's not being used. And he said, you've brought up many possibilities that we want to explore. Q. Okay. So then what was the next contact after that between you and Dick? A. The next contact after that was a phone call saying that they were leaving Mark Mateya's, their attorney's office in Carlisle and could they stop by and see the alpacas. And since we're always open to farm visitors, I said yes. Q. And when would that call have been made, to the best of your knowledge? A. That call was made to me as they were leaving the attorney's office because there was a whole caravan of Wilders that came in the driveway. There was four or five or six cars, and they had a lot of people in them. And I was kind of taken back when I saw how many people were there, but it was Dick and his children and grandchildren and great grandchildren, I think, that all piled out to see the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 alpacas. Q. And do you remember a month and a year when that would have happened? A. I do not. Q. And aside from seeing the alpacas, was there any other stated purpose for that meeting? A. Not at that time, no, at least not to my knowledge. Q. All right. Well, then, tell me what happened at that meeting. A. It was more a visit than a meeting. It was like many other farm visits, that people come and see the alpacas and I show them the alpacas and they get to feed them and I tell them about the alpacas because many of the people that were there from his family had never seen an alpaca and had no knowledge of them. Q. And about how long did the visit last? A. Typical farm visit; about a half hour, 45 minutes usually. Q. So then tell me about your next contact with Dick or his family. A. The next contact was from Dick, and I believe he said that he wanted to come out and sit and talk more. And I believe Tom was along; I think it was Dick and Tom came out. And like most of my meetings, we sit CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 at the kitchen table and drank a lot of coffee, and I tried to answer their questions that they had about alpacas. Q. So that, in summary, was -- they were seeking information from you and you provided information. Is that right? A. That is correct. Q. And do you remember when that meeting would have occurred? A. I do not. Q. Can you tell me about your next encounter with Dick or his family? A. From that point on I had several meetings with Dick, and I also had meetings with several of his other children that came over and asked questions and brought lists of questions along that I tried to answer for them that they had about alpacas and the alpaca business. Q. So tell me about the transaction that's described in the Complaint that Dick filed. When did those discussions begin? A. Well, when we talked, they were talking about, as Dick mentioned, getting a couple alpacas to start. And initially it was two, and two boys initially. And then I said, well, that really doesn't CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 '0** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 make a lot of sense, so they switched to two girls. And they says, well, you know, we may even be looking at more, maybe even four. About that time -- I also board alpacas on my farm for other farms; and New Vision Alpacas, who boarded their alpacas at my farm, purchased a female from the Slaters in Ohio. Q. Okay. A. When they delivered that female to my farm, they told me -- and they knew that I had known the Slaters for ten years and that we were business friends and I had purchased an alpaca from them about ten years earlier -- that they were getting out of the alpaca business and wanted to sell their entire herd but they only wanted to sell it to someone they knew and they wanted to sell it as an entire package. Q. And these statements are coming from Gary or Beth Slater to you? A. No. They came from Greg Pushkar, who is with New Vision Alpacas. Q. So you learned of the availability of the Slater herd through Greg Pushkar from New Vision? A. Right. Q. Do you remember when that might have been? A. Again, I do not. He did tell me, though, CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 that one of the alpacas in this package was an alpaca called Revelation, and he said, this is one of the most beautiful alpacas I've ever seen. And he said, that alpaca is probably worth what they're asking for the whole herd. And I said, what's that, and he said, I think around $30,000. Q. So what did you do with that information that you learned from Greg Pushkar? A. I contacted Gary Slater and talked to him on the phone to confirm that he was looking to get out of the alpaca business and that he wanted to sell his entire herd. And he said, yes. He said, but, you know, I want all 13 animals to go at one time. And he said, I'm going to try to get the ones that are co -owned, either to get the owners to sign off, or whatever, that they will be available as well. I had a very long discussion with him, and I told him at the time, I said, I am working with a gentleman that lives just a few miles away from me. And I said, I would love to have some of your blood lines; but I said, I can't take 13 more alpacas onto the farm. I said, I am already mentoring them, I'm working with them and helping them get into the business. I said, would you consider if I bought the herd and then sold CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 them some since I will be mentoring them and still would be able to, you know, work with the animals. And he said he didn't have a problem with that. Q. So what happened next? A. What happened next is I got a hold of Dick, and we sat down at the kitchen table again over a cup of coffee. And I said, instead of starting out on the bottom of the alpaca industry, I think I have an opportunity for you to start out on the top. I said, there's a farm in Ohio that has some of the best Suri alpacas in the nation; and I said, they want to get out of the business so they can spend more time with their daughter. And I said, I think that if I bought the whole herd that I could help you get started on the top rather than starting on the bottom. Q. And when would that meeting have occurred with Dick? Do you recall? A. We had so many meetings over coffee that I have no idea. Yeah, it was in the spring. Q. Of 2012? A. Yes. Q. And was anyone else present at that meeting? A. No. Most of the time -- my wife may have been in and out, but most of the time it was just Dick and I sitting at the kitchen table. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 Q. So how did that meeting conclude? A. That meeting concluded with Dick saying he was going to go back and discuss it with his family. Q. What happened next? A. Well, I had several meetings at his home with all the family. The best of my recollection is I went over and did a presentation to the whole family at Dick's house about the alpaca business and the opportunity that they would have of buying these national champions and a lot of blue ribbon alpacas rather than starting the way most people do with a couple alpacas and trying to breed up and, you know, work their way up in the industry. Q. So what happened as a result of the presentation? A. As a result of the presentation, Dick came back over and told me he had an investment that he had decided that would be a good down payment on this and that it would be available in a couple of weeks and if I wanted to go along with, go with the alpacas, that he was interested in participating. And that's when I put together these documents, Exhibit D-1 and D-2. Q. All right. What happened then after Dick said he would participate? Was there another meeting? A. Multiple meetings with both Dick and Dick and CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 his children. Q. What ultimately was the arrangement between you and Dick relative to the Slater's herd? A. I purchased the herd using these four, this breakdown here. I picked out the couple animals I needed for the genetic blood lines that I did not have and then offered the rest of them to Dick in the package for $28,000. Q. Is that the way you described it to Dick, what you just told me? A. Yes. Q. The way you described the arrangement to Dick? A. To the best of my knowledge, yes. Q. And is it fair to say that there's no written agreement with Dick regarding the transaction with the Slaters? A. That is correct. To the best of my knowledge, there was never any written agreement at all between Dick and I. Q. And you agree that on March 21st of 2012 Dick gave you a check for $12,863 which was his investment that he liquidated? A. That is correct. Q. And then in May of 2012 he gave you an CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 additional $15,137? A. That is correct. Q. So that totaled the $28,000? A. That is correct. Q. And is it fair to say that you bought the herd from the Slaters for the sum of $20,000? A. That is correct. When I contacted them, I thought it was going to be 30; and when I asked them how much they wanted, they said 20,000. And I said, wow, if that herd's worth a lot more, why are you selling it for that. And they said, we want to get out of the business and spend more time with our daughter. Q. And the arrangement with the Slaters was reduced to a written contract. Is that right? A. That is correct. Q. And that contract is dated March 12th, 2012. Is that right? A. It's part of the.documentation here. Without looking, I would say yes. Q. Okay. Did you tell Dick that you were going to well, let me ask you this: What did you do with the difference between the 28,000 Dick paid you and the 20,000 that you gave to the Slaters? A. I took that and put it into my business account. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 Q. You kept it. Is that what you're saying? A. Yes. Q. Did you tell Dick that you were going to keep $8,000 relative to those two transactions? A. I sold Dick the alpaca herd for $28,000 which was a frac ion of what those animals were worth. I had no reason to discuss with him what I paid for them or what I was selling them for. Q. So that's a no, you didn't tell him -- A. No, I did not. (Plaintiff's Exhibit No. 1 was marked.) BY MR. SCHERER: Q. I want to show you what's in front of you that's been marked Plaintiff's Exhibit 1. It's letterhead from Pine Valley Suri Farm, and over on the right it says Gary and Beth Slater, and it gives their address. Do you recognize this document? A. I do. Q. And what is it? A. It was the attachment to the Purchase Agreement with the Slaters for the purchase of the alpacas. Q. And that's the agreement I had asked you about earlier that's in writing between you and the Slaters? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 A. That is correct. Q. So do you know whose writing is on this P-1? A. I'm assuming that it's Beth's because all the documents I ever got from them were written in pencil on the same stationary. But I don't know whether it was Gary or Beth's handwriting, but it's one or the other. Q. Okay. (Plaintiff's Exhibit No. 2 was marked.) BY MR. SCHERER: Q. I want to show you what's been marked as P-2, and it's a spreadsheet, and I want to ask you if you recognize it. A. I do. Q. And can you identify it? A. This is a Excel spreadsheet that I put together when we were still looking at the alpacas and how we would handle the breakdown of them. Q. So these are the alpacas that the Slaters were offering for sale? A. That is correct. Q. And under column F entitled price, who supplied those numbers for the price? A. Those were the prices they had listed on Open Herd or Alpaca Nation that the animals were for sale and the prices they had listed for them. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 Q. So that's how they had marketed the animals? A. That is correct. That's what they had up on the national marketing site. (Plaintiff's Exhibit No. 3 was marked.) BY MR. SCHERER: Q. I want to you're looking now at P-3 which is another spreadsheet, and it's got some writing on it -- A. Yes. Q. -- and some numbers written on it. Do you recognize that? A. I do. Q. And can you identify what it is? A. Again, I think this was a spreadsheet and some numbers that I had taken off of the other sheet and put on here to show Dick what the value, listed value was of the animals that we were talking about selling to him. Dick? Q. So you created the spreadsheet? A. I did. Q. And do you remember when you gave this to A. I do not. Q. And is that your handwriting, the numbers that are written on there? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 23 A. It is. Q. And just below where the spreadsheet ends it says 14K. What does 14K signify? A. 14K is the three co -owned males, which is a total of 28,000, and he would get half value at 14K and I would own half of the value of those three animals at 14K. Q. So 28,000 was the total value of the animals. Is that according to your opinion? A. No. That was off of, again, off of what was on the site. And the one that was not on there, that was a price that I put in saying that it was at least worth at least that much, and that was Revelation. And Revelation's price was -- oh, I'm sorry; Revelation was 10. Which one was -- no. Actually those are all prices that came off of the website for those three animals, and they're listed on P-2. Q. Even Grace, the 8,000 listed for Grace, did that come off of P-2? MR. KLINE: Can we go off record? (Discussion held off the record.) MR. SCHERER: I'll strike that question. BY MR. SCHERER: Q. Now, there's additional writing that says, total 71K. What does that represent? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 A. The total of the females and the half interest in the three males. Q. All right. Then it says down below, BP equals 33, 14, 47. What does that mean? A. Bent Pine, the animals that I was, off of the website listed price was the females, 33; and the 14 was my half of the three males above, so that I was basically going to be retaining animals that were listed on the website at a value of 47,000. Q. And this P-3 doesn't reflect the fact that you were keeping some of Dick's money for the purchase of these animals? A. This had nothing to do with money. This was a spreadsheet that I put together to show the two of us the value of what we were getting for the animals. Q. So it had everything to do with money? A. It had everything to do with money, but not our transaction. (Plaintiff's Exhibit No. 4 was marked.) BY MR. SCHERER: Q. Do you recognize what's been handed to you and marked as Plaintiff Exhibit 4? A. I recognize that it's in my handwriting. But other than that, I'm not sure I recognize it. Q. Do you want to take a minute to familiarize CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 yourself with it? A. (Perusing document.) Q. Okay. Having looked at it further, are you able to identify what this document is? A. This was a worksheet from probably one of our very first meetings because on this, Poseidon is listed; and once I contacted the Slaters about the package, they informed me Poseidon was not part of the package. This was just -- when I heard that they were going to sell their entire herd, I went to the Internet and I took down all, the names of all their animals and what price they had listed on them. So this was just a, really a piece of scratch paper of mine, if you would, and I don't know how Dick got it. I mean, it doesn't matter, but this was early, early before any negotiations with even the Slaters took place. Q. So this would have predated Plaintiff Exhibit 3 that we just talked about? A. Oh, yes. Because you notice Poseidon's on here; and if you look at that Exhibit 3, it will say that Poseidon is not in the package, that it's being retained by the daughter. Q. I see. All right. Let's mark 5. (Plaintiff's Exhibit No. 5 was marked.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 26 BY MR. SCHERER: Q. Do you recognize what's been marked as Plaintiff Exhibit 5? A. Again, it's my writing. Give me a second to look at it. (Perusing document.) Yes, I do. Q. And what is it? A. This, again, was a sheet that I put together to show the Wilders the value of what they were getting for $28,000. Q. Would this have predated Plaintiff Exhibit 3 which is the spreadsheet with writing on it? A. I would guess that it was probably generated about the same time, but I don't know exactly. There's no dates on it, so I don't know exactly. It was just, again, over -a -cup -of -coffee -at -the -kitchen -table worksheet. Q. And the prices under Arcona alpacas for the females, again, do they come off the marketing that the Slaters were doing for the alpacas? A. Yes. They should be the same as they are on the other exhibits. Q. And then there's a statement about midway down on the page. It says, You part of package, 28,000. A. Right. Q. What does that mean? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 A. Exactly what it says, that I was offering to him to sell him for $28,000 $75,500 worth of alpacas, listed alpacas, or $47,500 under the listed price by the Slaters. Q. Okay. So if one part or Dick's part of the package was 28,000, what was the other part of the package? MR. KLINE: Objection to the form of the question. You can answer. BY MR. SCHERER: Q. You can answer. A. I don't know that there was another part of the package. Q. Why didn't it just say then that the package was 28,000? question. MR. KLINE: Objection to the form of the THE DEPONENT: Again, this was a worksheet. I was just telling him how much, what I was willing to sell that amount of alpacas to him for. It was a package and, you know, that we were buying them all, three of them we were going to co-own, the rest of them he would own. (Plaintiff Exhibit No. 6 was marked.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 BY MR. SCHERER: Q. Do you recognize this document? A. I do. Q. It looks like a letter to the Kinkas dated March 27, 2013? A. Yes. Q. And who prepared it? A. I prepared it, but it was never sent. Q. And what was the intended purpose of it when it was prepared? A. The intended purpose of it was to market PIVAL Son's Revelation and to try to get breedings to that animal. Q. Okay. It says in the second paragraph, second sentence, last year we got together and made the decision to do something together that would be remembered long after we were gone. What does that statement mean that we got together? A. That Dick and I got together and we decided that we would co-own three alpacas, three herdsires, and the three that we co -owned that we would market aggressively to try to bring some income in off of the animals. Q. So you did purchase together with Dick the three males. Is that right? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 A. Yes. And we co -owned them and they are registered in both of our names. Q. But the purchase of them was together with Dick from the Slaters. Is that your testimony? A. No. I purchased them. Then what I sold to Dick was ten females and half interest in three males. Q. Okay. But that's not what this document says. Is that right? This document says we purchased all of the wholly-owned alpacas. A. For marketing it wouldn't make sense for me to say I purchased it and then sold to Dick. I mean, it's -- first of all, this letter was never sent. And second of all, this was a draft letter and that for marketing purposes it would be a matter -- that would be a matter of semantics, I would think. We co -owned those alpacas and we market them together, those three alpacas. (Plaintiff Exhibit No. 7 was marked.) BY MR. SCHERER: Q. Can you identify this document? A. I can. Q. What is it? A. This is another marketing sheet that we put together to market Revelation, who is a national champion. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 Q. It mentions, again, that you met in the early 1960s. Is that when Dick was dropping off samples? A. Correct. Q. Then it says, both Dick and Darwin have had successful business careers. What was Dick's successful business career? MR. KLINE: I'm going to object to this line of questioning. If we're going into proposed marketing pieces, I don't know how that has any relevance whatsoever to the agreement between the parties. MR. SCHERER: Okay. BY MR. SCHERER: Q. You can answer the question. A. Dick told me that he had a successful career in selling, I think, storm windows or aluminum siding or something. And actually that's, you know, again, a marketing sheet. We met; and, again, trying to emphasize the fact that we -- the main reason that I put in there that we worked together was to get in the point of the Pennsylvania Department of Agriculture. Q. Is there a significance to what's stated in here with respect to it being for marketing? I mean, you mentioned it's for marketing -- A. It is for marketing, yes. The significance was that we both worked for the Department of CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 Agriculture, which if you're selling livestock, that has significance that back in the 1960s you both worked for the Department of Agriculture. We went our separate ways and we both had successful careers, indicating to me, as a background in marketing, you want to deal with people who have been successful. Q. I see. A. And that third one, the third paragraph there is that Revelation, as a Herdsire -- we both talked about this many times that because of our age, we wanted to leave something behind; and in breeding a national champion, if down the road Revelation produced outstanding award-winning alpacas, that people would look back and say, oh, yes, those two old guys were the brains behind marketing Revelation. And, again, this was a marketing sheet that was put together on the co -owned Revelation to try to bring some money in for both of us on breeding fees. Q. Is there any reason you didn't put in writing your agreement with Dick? A. Most of my agreements were a handshake. I mean, I've never sold an alpaca that I wasn't willing to take back if the people weren't happy with it. Q. Would you agree that you were going to share CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 at least some expenses with Dick for the co -owned males? A. Yes. Q. And was it your intention to make a profit from the co -owned males with Dick? A. Yes, a profit which we would share equally since we owned equal halves of the alpacas. Q. You agree that's a partnership? I mean, in your mind, is that a partnership? A. On these three animals, yes. And I think that may be where some of the confusion comes in. These three animals are co -owned and they are registered as co -owned animals. The other ones are individuals. Q. Did you ever tell Gary Slater not to disclose the sale price of the alpacas to A. I did. Q. You did? A. I did. Q. Why did you do that? A. It was none of his -- no reason to disclose that. Q. Is there a reason not to disclose it? A. Yes. Q. And what is that reason? A. What has resulted as a result of the disclosure. CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. And what do you mean by what has resulted? MR. KLINE: Objection to the line of questioning. BY MR. SCHERER: Q. What's the reason? A. If you buy something and you're going to sell it to make a profit, when you sell it to someone for a profit, you don't normally, in business, go back and say, well, I bought this for this and I sold it to you for this; you know, a used car, I just wanted to let you know I made $8,000 profit on this. I mean, that's the American business principal; you buy things, then you sell things. Q. But what's wrong with telling somebody what the facts are as far as what your transaction was? I mean, why would that be a problem? MR. KLINE: Objection to the form of the question, number one. Number two, he just answered that question. THE DEPONENT: Yeah. BY MR. SCHERER: Q. So is it fair to say that your business approach is to not disclose all of the information to a person that you're simultaneously entering a partnership with? CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 "* f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 MR. KLINE: Objection to the form of the question. Actually I don't know that you can actually answer that question. THE DEPONENT: The only way I can answer it is to say that I have purchased alpacas from other farms and I have sold them and I've sold them to make a profit and made a profit but I didn't tell the person I was selling to that, you know, I bought this alpaca, it's -- again, I come back to the American business principal that you buy and sell. BY MR. SCHERER: Q. But in those cases, those people weren't relying on you for your professional guidance to start an alpaca farm, correct? A. Not necessarily. Q. Was it your intention to charge Dick or his family for any time that you spent going to his property to set up his alpaca farm? A. No. Q. Your wife, Doris, we haven't talked about her. She was on the contract with the Slaters, right? A. Um -hum. Q. Yes? A. Yes. Q. Has she had any involvement in the CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 negotiation with Dick or his family? A. None whatsoever. Q. Does she continue to, in your view, co-own the males with you that were bought from the Slaters? A. Yes. Q. And does she continue to have an ownership interest in the three females that you acquired from the Slaters? A. Yes. MR. SCHERER: Thank you, sir. I don't have any other questions for you. EXAMINATION BY MR. KLINE: Q. Just a little bit of clarification, Darwin, and we'll be done. You mentioned in your testimony that you weren't sure but you believe that you first met Mr. Wilder at the Farm Show in 2012. However, the agreement was entered -- you bought the animals from the Slaters in March of 2012. A. Right. Q. So, therefore, in regard to the date of the Farm Show, would you like to correct your testimony at all in light of the fact that there was just a one-month difference between the Farm Show and the contract with the Slaters, or is that an accurate representation that CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 36 it happened that quickly? A. Yes, it did happen that quickly. Well, I'm not sure. Then the contract -- Q. Just for clarification, the contract with the Slaters that was attached to Mr. Wilder's Complaint was dated March 21, 2012. A. Right, which is two and a half months later, yeah. Yes, that's correct. Q. In the questioning by Mr. Scherer and in some of your responses, the word package was used a number of different times. For clarification, is it accurate to state that the term, package, in dealing with the Slaters is the package of animals that you bought from the Slaters? A. That is correct. Q. And in dealing with the Wilders, the package that you were talking about in dealing with the Wilders is the collected group of animals that you sold to Mr. Wilder? A. Yes. Q. But there were still two separate distinct transactions. Is that correct? A. That is correct. Q. And just for, so it's on the record, do you still -- to this day, are you still to this day willing CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com 37 •to purchase the animals back from Mr. Wilder for the amount that he paid for them? A. Yes. MR. KLINE: That's all I have. EXAMINATION BY MR. SCHERER: Q. Did you ever tell Dick or any of his family that you were investing some of your own money in the purchase of the alpaca herd from the Slaters? A. No. Q. In your opinion, did you ever lead Dick or his family to believe that you were investing some of your own money in the purchase of the herd from the Slaters? A. I don't know how to answer that. I don't know. Q • Did you ever intend to lead the Wilders to believe that you were investing your own money in the purchase of the herd from the Slaters? A. No. MR. SCHERER: That's all I have. (The deposition concluded at 2:55 p.m.) CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f(717)258-0383 *** courtreporters4u@aol,com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF CUMBERLAND I, AMY R. FRITZ, a Court Reporter Notary Public authorized to administer oaths and take depositions in the trial of causes, and having an office in Carlisle, Pennsylvania, do hereby certify that the foregoing is the testimony of DARWIN DEAN KELL. I further certify that before the taking of said deposition the witness was duly sworn; that the questions and answers were taken down stenotype by the said Reporter -Notary, approved and agreed to, and afterwards reduced to computer printout under the direction of said Reporter. I further certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto inscribed my hand this 3rd day of June, 2014. NC. L AMY R. Fr:i r‘.)14,.: : PUBLIC BOROUGH OF CARLISLE, C. 'ilBEPLAND COUNTY MY COMMISSION EXPIRES -4PER 22, 2014 CENTRAL PENNSYLVANIA COURT REPORTING SERVICES P.O. Box 508 Carlisle, PA 17013 *** (717) 258-3657 *** f (717)258-0383 *** courtreporters4u@aol.com �2 Pine:. Valley• =�- _= Suri Farm Raising only friendly, happy Peruvian Alpacas 0 ren -)(1 (�-s LUCcd5eC1(.i I ruion-76v° I Vic/ �y R4/3 r55. -'DIV AL Z pporo h o- rno5e3 4130(LCi 714 c -� t U19Z.. ..5ur, Crrvnl) o- \Iu (034G3 ' i t,'t L.. :Jc,i S 1 if -)14 -y -113/ . 34z 7 '5 erccc 4=1 3G -L Q !i =`moi V AL_ \l cr lie +S CI-in/346m - 3/tt/s-* .71 t1AL \icy 5 11-; i 32 -432442 Yawl Acco'1: !>>ni l 37S uvk-n /-1-eccy t✓ Icrl-tl '2CPt.o ,.JI-hp,Tc1 Fa 4 (i) Gary &. Beth Slater 5247 New Milford Road Ravenna, OH 44266 (330) 2964078 3 Amo lea ti; 141_ \/o l; 5 '7ynorn r -)-e 329 3241/ -Pi UAL N pn: o4 Grace -324 324 9=1 !UAL &,>> `5 eve 3170343-4 • • A B C D E F G H 1 J K L 1 ARI # ALPACA NAME SIRE DAM M/F PRICE Srv. Sire AA BP 2 31681520 Valient's Christiana Valient #30436862 Clara#806496 Female 7,000 open BP 7 3 806496 Cperuvian Accoyo Clara IMPF98 * Import Import Female 20,000 Valient AA 20 4 828287 SFA Peruvian Desdemona Camion #185434 Honorata#122672 Female 5,000 Blazen Son AA 5 5 30697119 Son's Grace * Blazen Son#829461 Martha #848375 Female 15,000 open BP 15 6 848375 Young Accoyo Martha * Baron #123075 Maria #811952 Female 15,000 Blazen Son AA 15 7 30697140 PIVAL Zipporah of Moses Moses #829805 Clara#806496 Female 1,000 unproven AA 1 8 31803427 PIVAL Sonny's Trinity Blazen Son#829461 Martha #848375 Female 5,000 Valient AA 5 9 32432442 PIVAL Valient's Trixie Valient #30436862 Desdemona#828287 Female 3,000 unproven AA 3 10 31803403 PIVAL Surianna of Valient Valient #30436862 Clara#806496 Female 8,000 unproven AA 8 11 843155 Woodsedge Peruvian Royal Victory * Damasco#166611 Image#117976 Female 3,000 Valient BP 3 12 32432411 PIVALValient's Dynamite Valient #30436862 Clara#806496 Male 10,000 Unproven AA/BP 5 5 13 31803465 PIVAL Poseidon of Grace * Diamonte#810665 Son's Grace Male unproven Co -owned Jessica's not for sale 14 324332459 PIVAL Neptune of Grace Diamonte#810665 Son's Grace Male 8,000 Unproven AA/BP 4 4 15 318033434 PIVAL Son's Revelation * Blazen Son#829461 Martha #848375 Male 10,000 unproven AA/BP 5 5 16 17 * Champion in AOBA shows 18 $110,000 Total of asking prices 71 39 • • • / ARI ID# ALPACA NAME GENDER D.O.B. SIRE DAM 806496 CPERUVIAN ACCOYO CLARA 2006 IMPF98 ;-G F 1 -Jan -97 UNKNOWN UNKNOWN / ✓ 31803427 PIVAL SONNY'S TRINITY ,:2 F 8 -Oct -09 PIVAL BLAZEN SON YOUNG ACCOYO MARTHA 31803403 PIVAL SURIANNA OF VALIENT fy F 29 -May -10 YOUNG VALIENT CPERUVIAN ACCOYO CLARA 2006 IMPF98 11 30697140 PIVAL ZIPPORAH OF MOSES ( F 7 -Mar -07 CV PERUVIAN MOSES CPERUVIAN ACCOYO CLARA 2006 IMPF98 t/ 828287 SFA PERUVIAN DESDEMONA 5 F 13 -Jun -01 USA CAMION PPERUVIAN HONORATA B4037 848375 YOUNG ACCOYO MARTHA L `J F 10 -Jun -03 PPERUVIAN BARON G4580 MARIA 1 32432442 PIVAL VALIENT'S TRIXIE 3 F 16 -Jul -11 YOUNG VALIENT SFA PREUVIAN DESDEMONA 571<' CO -OWNED ALPACAS 31803434 PIVAL SON'S REVELATION %0 5 j M 18 -Oct -10 PIVAL BLAZEN SON YOUNG ACCOYO MARTHA 32432411 PIVAL VALIENT'S DYNAMITE (0 5 M 27 -Sep -11 YOUNG VALIENT CPERUVIAN ACCOYO CLARA 2006 IMPF98 32432459 PIVAL NEPTUNE OF GRACE 66 — d M 3 -Oct -11 DIAMONTE OF PVA SON'S GRACE 4 I\ j co 6;IP ,(f&17 IorAL 7l /< EIP 4 7 • jk-pi;,e TYJ,4 girc 6 To E ,k) 0 0 04 .JLeiRV 6RA-5e- 00006- A64143 A litganr 80 (6- 0.6keP,..,:1•1 vs?4AM7 500 occ! r —Ft512 o giritruk5 -10 000 5qU,AJ&? 060 -11.5c0 cii< OM 717 EXHIBIT Arran Alpacas The Wilder family 2409 Arcane Road Mechanicsburg, PA 17055 Phone: 717-802-2477 www oreonaa/pacascorn 27 March 2013 Teri and Andy Kinka Golden Glen Alpacas 451 Oak Grove Road Pine Grove, PA 17963 Deal Teri and Andy: PIVAL SONS REVELATION Nafiano/ Champion Suri Alpaca Bent Pine Alpaca Pann Darwin d Doris Kell 65 Old 5onehouseftd South Carlisle, PA 17015 Phone d fax: 800-863-3211 "BREEDIN6 FOR THE NEXT 6ENERATION" www.lznipinea/pacascom Thank you for your .interest in breeding to our PIVAL SON'S REVELATION . Dick Wilder and Darwin Kell met when we both worked for the Pennsylvania Department of Agriculture more than 50 years ago. Last year we got together and made the decision to do something together that would be remembered long after we were gone. That opportunity came about when we were told Gary and Beth Slater wanted to sell their herd of award winning suri's. • As we discussed we purchased all of the wholly owned suri alpacas from Pine Valley Suri Farm last year. One of the main easons we made this purchase was to acquire Revelation. Just after signing the contract and before delivery he won three major shows. (Reserve Champion at MaPaca, Champion and Judges Choice in Ohio and then Championship at the AOBA Nationals). The Slater's feel he maybe the very best alpaca they have seen or breed. That is saying something since his sire PIVAL Blazen Son has 15 Championships and more than 40 Blue Ribbons. Revelation is now ready to start "breeding for the next generation." It is our intent to limit breeding to champion and multiple blue ribbon suri's only. We have reviewed the ARI's on both AGG Peruvian Sweetest Flower and AGG Peruvian Pumpkin. At a recent joint meeting we agreed these two dams possess the genetics and show results we are looking for to help us achieve our breeding goal Therefore, we would like to offer the following breeding contract for your consideration. This offer and the contents of this contract are confidential and should not be disclosed to anyone except those who have the authority to execute this contract Attached you will find an envelope to return the two copies of the contract signed or unsigned within 14 days. If you agree to this contract we will sign both copies and return one for your confidential records. We fmd these steps nec ssary to protect the integrity of our breeding goals. We are sure you understand that after Revelation has aria on the ground any qualified and selected outside breedings will be at a substantially higher price. Sincerely, Richard Wilder Arcona Alpacas Enc.: Contract (2 copies) & Alt! copies • Darwin Kell Bent Pine Alpaca Farm • PIVAL SON'S REVELATION Co -Owned b y: Arcona Alpacas and Bent Pine Alpaca Farm Dick Wilder -age 87 and Darwin Kell -age 71 met in the early 1960's when they both worked for the Pennsylvania Department of Agriculture. Both Dick and Darwin have had successful business careers; now in their senior years they would like to leave a legacy for the next generation. They have purchased Revelation as a Herdsire to help them achieve their legacy goal "Breeding For The Next Generation" Arcona Alpacas and Bent Pine Alpaca Farm went together and purchased PIVAL SON' •VELATION LAST YEAR. Many leaders in the field have called him "The Best of the Best" 2012 AOBA National Suri Color Championship, 2012 Buckeye Show Suri Fawn Male Championship and Suri Judges Choice Male. 2012 MaPaca Reserve Champion Suri Male Light Color and 2011 OABA Suri Fawn Male Championship REVELATION IS NOW READY TO BREED TO CAREFULLY SELECTED CHAMPION AND BLUE RIBBON FEMALES. Therefore. this is a unique very limited opportunity for some lucky winner to breed to this superior full Peruvian Champion Suri. D,�zc odd Arcona Alpacas The Wilder Family 2409 Arcona Road echanicsburg, PA 17055 Phone: 717-802-2477 www. arronaalpacas, com PIVAL SON'S REVELATION National Chanpion Suri Alpaca "BREEDING FOR THE NEXT GENERATION" Bent Pine Alpaca farm Darwin d Doris Kell 65 OldSlanehouse Rd South Carlisle, PA 17015 Phone d fax: 800-863-3211 www, bentpinealpacascom able [2] 16:2; 25:4 above [1] 24:7 according [1] 23:9 account [1] 19:25 accurate [2] 35:25; 36:11 accurately [1] 38:16 acquired [1] 35:7 acres [2] 4:25; 5:1 active [1] 8:18 activities [1] 5:3 Actually [2] 23:15; 34:2 actually [2] 30:16; 34:2 additional [2] 19:1; 23:24 address [1] 20:17 administer [1] 38:5 After [1] 6:22 after [6] 6:10; 9:22; 11:10, 11; 17:23; 28:17 afternoon [2] 4:2, 13 afterwards [1] 38:13 Again [4] 14:25; 22:14; 26:4; 27:19 again [11] 5:24; 16:6; 23:10; 26:7, 15, 18; 30:1, 16, 17; 31:17; 34:9 Agent [1] 9:16 agent [1] 9:6 aggressively [1] 28:22 agree [3] 18:21; 31:25; 32:7 agreed [1] 38:12 Agreement [1] 20:21 agreement [7] 7:21; 18:16, 19; 20:23; 30:10; 31:21; 35:17 agreements [1] 31:22 Agriculture [6] 5:15, 22; 6:5; 30:20; 31:1, 3 agriculture [1) 10:9 along [3] 12:24; 13:16; 17:20 Alpaca [5] 4:21, 24; 5:4; 8:19; 21:24 alpaca [22] 2:12, 15; 8:5, 15, 23; 10:7, 20; 12:16; 13:17; 14:12, 13; 15:1, 4, 11; 16:8; 17:8; 20:5; 31:23; 34:8, 14, 18; 37:9 Alpacas [2] 14:5, 20 alpacas [47] 2:13, 14, 16; 5:6; 6:21; 8:9, 12, 14, 17, 23, 25; 9:20, 25; 11:14; 12:1, 5, 13, 14; 13:3, 17, 23; 14:4, 6; 15:1, 3, 22; 16:11; 17:10, 12, 20; 20:22; 21:16, 18; 26:17, 19; 27:2, 3, 21; 28:20; 29:9, 16, 17; 31:14; 32:6, 14; 34:5 already [1] 15:23 ALSO [1] 1:22 also [2] 13:14; 14:4 aluminum [1] 30:15 always [1] 11:14 ambulance [1] 7:2 American [2] 33:12; 34:9 amount [2] 27:21; 37:2 Andy [1] 2:17 animal [1] 28:13 animals [23) 15:14; 16:2; 18:5; 20:6; 21:24; 22:1, 17; 23:6, 8, 17; 24:5, 8, 12, 15; 25:11; 28:23; 32:9, 11, 12; 35:18; 36:13, 18; 37:1 another [4] 17:24; 22:7; 27:13; 29:23 another's [1] 9:12 answer [9] 4:5; 13:2, 16; 27:10, 12; 30:13; 34:3, 4; 37:15 answered [1] 33:18 answers [2] 4:6; 38:11 anyone [1] 16:22 anything [1] 9:11 APPEARANCES [1] 1:17 approach [1] 33:23 approved [1] 38:12 Arcona [2] 2:16; 26:17 Around [1] 7:17 around [3] 7:9; 8:8; 15:6 arrangement [3] 18:2, 12; 19:13 aside [1] 12:5 asked [4] 10:24; 13:15; 19:8; 20:23 asking [1] 15:5 aspect [1] 8:17 aspects [1] 10:19 Associate [1] 5:13 associate's [1] 5:16 Association [2] 8:19, 25 assuming [1] 21:3 attached [1] 36:5 attachment [1] 20:20 attorney [5] 4:3; 10:18, 24; 11:3, 6 attorneys [2] 11:13, 19 August [1] 3:17 authorized [1] 38:5 availability [1] 14:21 available [2] 15:17; 17:19 award-winning [1] 31:14 away [1] 15:20 - B - back [10] 9:12; 11:23; 17:3, 17; 31:2, 15, 24; 33:8; 34:9; 37:1 background [3] 5:11, 12; 31:5 bacteriological [2] 5:15; 6:1 bank [1] 3:25 BARIC [1] 1:18 Basically [1] 11:2 basically [1] 24:8 beautiful [1] 15:3 became [3] 6:7; 8:4, 8 become [2] 6:20; 7:12 beef [1] 5:8 begin [1] 13:21 behind [2] 31:12, 16 being [4] 3:8; 11:7; 25:22; 30:22 believe [6] 9:2; 12:22, 24; 35:16; 37:12, 18 below [2] 23:2; 24:3 Bent [3] 4:21, 24; 24:5 best [5] 11:17; 16:11; 17:6; 18:14, 18 Beth [2] 14:18; 20:16 Beth's [2] 21:3, 6 between [8] 3:2; 11:10; 18:2, 20; 19:22; 20:24; 30:10; 35:24 birth [1] 3:16 blood [2] 15:21; 18:6 blue [1] 17:10 board [1] 14:4 boarded [1] 14:6 booth [1] 8:23 both [8] 17:25; 29:2; 30:4, 25; 31:2, 4, 10, 19 bottom [2] 16:8, 15 bought [9] 6:25; 15:25; 16:14; 19:5; 33:9; 34:8; 35:4, 18; 36:13 boys [1] 13:24 brains [1] 31:16 breakdown [2] 18:5; 21:17 breed [2] 8:16; 17:12 breeding [3] 5:4; 31:12, 19 breedings [1] 28:12 Bridge [1] 1:13 bring [3] 9:8; 28:22; 31:19 brought [3] 9:6; 11:7; 13:16 business [22] 4:21; 6:22; 8:2, 3, 5; 10:7, 20; 13:18; 14:11, 14; 15:11, 24; 16:12; 17:8; 19:11, 24; 30:5, 6; 33:8, 12, 22; 34:9 buying [2] 17:9; 27:22 C - call [3] 11:11, 16, 18 called [7] 3:8; 4:21, 23; 7:3; 10:24; 11:2; 15:2 can't [2] 4:12; 15:22 caravan [1] 11:19 care [1] 6:21 career [2) 30:6, 14 careers [2] 30:5; 31:5 Carlisle [3] 3:19; 11:13; 38:7 Carnegie [1] 5:18 cars [1] 11:21 cases [1] 34:12 cattle [1] 5:8 causes [1] 38:6 certification [1] 3:3 certify [3] 38:7, 9, 15 champion [2] 29:25; 31:13 champions [1] 17:10 changed [2] 7:1, 20 changes [1] 7:18 charge [1] 34:16 check [1] 18:22 children [6] 10:6, 10, 12; 11:24; 13:15; 18:1 clarification [3] 35:14; 36:4, 11 Cleveland [1] 5:18 closed [1] 7:16 co-own [3] 27:23; 28:20; 35:3 co -owned [10] 15:15; 23:4; 28:21; 29:1, 15; 31:18; 32:1, 4, 11, 12 coffee [3] 13:1; 16:7, 18 collected [1] 36:18 College [1] 5:18 column [1] 21:21 comes [1] 32:10 COMMON [1] 1:1 COMMONWEALTH 38:1 company [3] 7:11, 12, 13 Complaint [2] 13:20; 36:5 computer [1] 38:13 conclude [1] 17:1 concluded [2] 17:2; 37:22 confirm [1] 15:10 confusion [1] 32:10 consider [1] 15:25 consulting [1] 8:17 contact [4] 11:9, 11; 12:20, 22 contacted [3] 15:9; 19:7; 25:7 contained [1] 38:16 continue [2] 35:3, 6 contract [6] 19:14, 16; 34:21; 35:24; 36:3, 4 conversation [1] 10:22 copy [1] 38:18 Corporate [1] 6:12 COUNTY [2] 1:1; 38:2 couple [5] 6:24; 13:23; 17:12, 19; 18:5 course [1] 4:2 COURT [1] 1:1 Court [2] 1:10; 38:4 [1] created [1] 22:19 CUMBERLAND [2] 1:1; 38:2 Cumberland [1] 1:13 -D- dairy [2] 6:1, 2 DARWIN [4] 1:3, 8; 3:8; 38:8 Darwin [5] 2:3, 18; 3:15; 30:4; 35:14 DATE [1] 1:11 date [2] 3:16; 35:21 dated [3] 19:16; 28:4; 36:6 dates [1) 26:14 daughter [3] 16:13; 19:12; 25:23 deal [1] 31:6 dealing [3] 36:12, 16, 17 DEAN [3] 1:8; 3:8; 38:8 Dean [2] 2:3; 3:15 decided [2] 17:18; 28:19 decision [1] 28:16 DEFENDANTS [1] 1:21 Defendants [1] 1:4 Degree [1] 5:13 degree [2] 5:16, 19 delivered [1] 14:9 Department [6] 5:14, 22; 6:5; 30:20, 25; 31:3 DEPONENT [4] 2:2; 27:19; 33:20; 34:4 depose [1] 4:3 DEPOSITION [1] 1:8 deposition [5] 4:2, 13; 37:22; 38:10, 17 depositions [1] 38:6 describe [1] 8:11 described [3] 13:20; 18:9, 12 DESCRIPTION [1] 2:11 Dick [46] 11:10, 24; 12:21, 22, 24; 13:12, 14, 20, 23; 16:5, 17, 24; 17:2, 16, 23, 25; 18:3, 7, 9, 13, 16, 20, 21; 19:20, 22; 20:3, 5; 22:16, 22; 25:14; 28:19, 24; 29:4, 6, 11; 30:2, 4, 14; 31:21; 321, 4; 34:16; 35:1; 37:7, 11 Dick's [4] 17:8; 27:5; 30:5 didn't [5] 16:3; 20:9; 27:15; 31:20; 34:7 difference [2] 19:22; 35:24 different [1] 36:11 direction [1] 38:14 director [4] 5:14, 25; 6:7, 9 disclose [4] 32:13, 19, 21; 33:23 disclosure [1] 32:25 discuss [2] 17:3; 20:7 Discussion [1] 23:21 discussion [2] 10:25; 15:18 discussions [2] 9:23; 13:21 display [1] 8:24 distinct [1] 36:21 doctors [5] 6:25; 18, 22 document [11] 2:12, 15, 16; 20:17; 25:2, 4; 26:5; 28:2; 29:7, 8, 20 documentation [1] 19:18 documents [2] 17:22; 21:4 doesn't [3] 13:25; 25:15 DORIS [1] 1:3 Doris [2] 3:22; 34:20 down [9] 4:6; 11:5; 16:6; 17:18; 24:3; 25:11; 26:23; 31:13; 38:11 dozen [1] 8:15 draft [1] 29:13 drank [1] 13:1 driveway [1] 11:20 dropping [1] 30:2 duly [2] 3:9; 38:10 24:11; 7:6, 7, 24:10; -E- each [1] 7:22 earlier [3] 9:6; 14:13; 20:24 early [3] 25:15, 16; 30:1 educating [1] 8:24 educational [2] 5:11, 12 either [1] 15:15 emphasize [1] 30:18 employed [1] 6;10 employment [1] 5:21 encounter [1] 13:11 ends [1] 23:2 entered [1] 35:18 entering [1] 33:24 entire [4] 14:14, 16; 15:12; 25:10 entitled [1] 21:21 equal [1] 32:6 equally [1] 32:5 equals [1] 24:4 EQUITY [1] 1:4 ESQUIRE [2] 1:18, 20 estate [1] 10:17 Even [1] 23:18 even [3] 14:2, 3; 25:16 evidence [1] 38:16 Exactly (1] 27:1 exactly [2] 26:13, 14 EXAMINATION [4] 2:2; 3:11; 35:12; 37:5 examined [1] 3:9 Excel [1] 21:15 except [1] 3:4 Exhibit [14] 17:22; 20:11, 14; 21:8; 22:4; 24:19, 22; 25:18, 21, 25; 26:3, 10; 27:25; 29:18 EXHIBITS [1] 2:10 exhibits [1] 26:21 expenses [1] 32:1 experience [1] 9:20 explore [1] 11:8 express [1] 9:19 F - fact [3] 24:10; 30:18; 35:23 facts [1] 33:15 fair [3] 18:15; 19:5; 33:22 familiar [2] 9:7, 8 familiarity [1] 9:19 familiarize [1] 24:25 family [11] 11:5; 12:15, 21; 13:12; 17:3, 6, 7; 34:17; 35:1; 37:7, 12 Farm [7] 4:21, 24; 8:22; 20:15; 35:17, 22, 24 farm [14] 4:22, 23; 5:2; 11:6, 14; 12:12, 18; 14:5, 6, 9; 15:22; 16:10; 34:14, 18 farming [2] 5:3, 5 Farms [1] 6:11 farms [3] 8:15; 14:5; 34:5 fascinated [1] 9:25 feed [1] 12:14 feeling [3] 4:1, 13, 15 fees [1] 31:19 female [2] 14:6, 9 females [5] 24:1, 6; 26:18; 29:6; 35:7 filed [1] 13:20 filing [1] 3:4 fire [1] 6:19 first [6] 7:22; 8:20, 22; 25:6; 29:12; 35:16 five [1] 11:21 follow [1] 4:4 followed [1] 4:5 follows [1] 3:9 Food [1] 9:16 food [2] 6:2; 9:6 Foods [1] 6:8 foregoing [1] 38:8 form [6] 3:5; 10:6; 27:8, 17; 33:17; 34:1 forward [1] 8:12 Four [1] 7:7 four [4] 6:6; 11:21; 14:3; 18:4 fraction [1] 20:6 friend [2] 10:15, 17 friends [2] 9:10; 14:11 FRITZ [1] 38:4 Fritz [1] 1:10 front [1] 20:13 full [1] 3:13 fully [1] 38:16 further [4J 11:5; 25:3; 38:9, 15 -G gainfully [1] 6:10 Gary [5] 14:17; 15:9; 20:16; 21:6; 32:13 gave [4] 18:22, 25; 19:23; 22:21 generated [1] 26:12 genetic [1] 18:6 gentleman [1] 15:20 girls [1] 14:1 Give [1] 26:4 give [1] 4:12 gives [1] 20:16 one [1] 28:17 ood [1] 17:18 overnment [1] 7:18 race [2] 23:18 randchildren [2] 11:24, 5 9 9 9 G 9 2 9 G 9 9 9 9 reat [ 1 ] 11:24 reg [3] 14:19, 22; 15:8 roup [1] 36:18 uess [1] 26:12 uidance [1] 34:13 uys [1] 31:15 -H- hadn't [1] 9:3 half [8] 6:6; 12:18; 23:5, 6; 24:1, 7; 29:6; 36:7 halves [1] 32:6 hand [1] 38:20 handed [1] 24:21 handle [1] 21:17 handshake [1] 31:22 handwriting [3] 21:6; 22:24; 24:23 Handwritten [3] 2:12, 15, 16 happen [1] 36:2 happened [9] 9:22; 12:3, 9; 16:4, 5; 17:4, 14, 23; 36:1 happens [1] 10:8 happy [1] 31:24 heard [1] 25:9 held [1] 23:21 help [3] 10:18, 19; 16:14 helped [2] 8:15; 10:11 helping [2] 10:6; 15:24 Herd [1] 21:24 herd [15] 5:9; 14:14, 22; 15:5, 12, 25; 16:14; 18:3, 4; 19:6; 20:5; 25:10; 37:9, 13, 19 herd's [1] 19:10 Herdsire [1] 31:10 herdsires [1] 28:20 hereby [2] 3:2; 38:7 hereunto [1] 38:19 hold [1] 16:5 Holland [1] 6:8 home [1] 17:5 hour [1] 12:18 house [1] 17:8 However [1] 35:17 -I- idea [1] 16:19 identify [4] 21:14; 22:13; 25:4; 29:20 income [1] 28:22 INDEX [2] 2:1, 10 indicate [1] 4:9 indicating [1] 31:5 individuals [1] 32:12 industry [2] 16:8; 17:13 information [4] 13:5; 15:7; 33:23 informed [1] 25:8 inheritance [1] 10:6 initial [2] 7:22; 9:23 initially [2] 13:24, 25 inscribed [1] 38:20 instead [1] 16:7 intend [1] 37:17 intended [2] 28:9, 11 Intention [2] 32:3; 34:16 interest [3] 24:2; 29:6; 35:7 Interested [2] 10:2; 17:21 interesting [1] 10:14 Internet [1] 25:10 Into [4] 9:9; 15:24; 19:24; 30:8 Investing [3] 37:8, 12, 18 Investment [2] 17:17; 18:22 involved [4] 6:20; 7:12; 8:4, 8 involvement [2] 8:12; 34:25 -J- January [2] 9:2, 18 Joneses [1] 10:5 June [1] 38:20 -K- keep [1] 20:3 keeping [1] 24:11 KELL [5] 1:3, 4, 8; 3:8; 38:8 Kell [4] 2:3, 18; 3:15, 22 kept [1] 20:1 kind [1] 11:22 Kinka [1] 2:17 Kinkas [1] 28:4 kitchen [3] 13:1; 16:6, 25 KLINE [11] 1:20; 23:20; 27:8, 17; 30:7; 33:2, 17; 34:1; 35:13; 37:4 Kline [3] 1:12; 2:4; 4:9 knew [2] 14:10, 15 knowledge [5] 11:17; 12:8, 16; 18:14, 19 known [4] 9:3, 12, 14; 14:10 -L- laboratory [5] 5:14, 25; 6:7, 9; 9:9 last [2] 12:17; 28:15 later [3] 6:25; 10:23; 36:7 lead [2] 37:11, 17 learned [2] 14:21; 15:8 least [4] 12:7; 23:12, 13; 32:1 leave [1] 31:12 leaving [2] 11:12, 18 lectures [1] 8:18 left [1] 6:7 • letter [4] 2:17; 28:4; 29:12, 13 letterhead [1] 20:15 licensed [1] 5:14 light [1] 35:23 line [2] 30:7; 33:2 lines [2] 15:21; 18:6 liquidated [1] 18:23 listed [11] 21:23, 25; 22:16; 23:17, 18; 24:6, 8; 25:6, 12; 27:3 lists [1] 13:16 little [1] 35:14 live [2] 4:22, 23 lives [1] 15:20 livestock [1] 31:1 long [3] 12:17; 15:18; 28:17 look [3] 25:21; 26:5; 31:15 looked [3] 9:7; 25:3 looking [5] 14:2; 15:10; 19:19; 21:16; 22:6 looks [1] 28:4 love [1] 15:21 - M - made [5] 11:16, 18; 28:15; 33:11; 34:7 main [1] 30:18 males [8] 23:4; 24:2, 7; 28:25; 29:6; 32:1, 4; 35:4 many [8] 4:25; 10:9; 11:7, 23; 12:12, 14; 16:18; 31:11 March [5] 18:21; 19:16; 28:5; 35:19; 36:6 Mark [1] 11:12 mark [1] 25:24 marked [11) 20:11, 14; 21:8, 10; 22:4; 24:19, 22; 25:25; 26:2; 27:25; 29:18 market [4] 28:11, 21; 29:16, 24 marketed [1] 22:1 Marketing [1] 2:19 marketing [14] 6:18; 22:3; 26:18; 29:10, 14, 23; 30:8, 17, 22, 23, 24; 31:6, 16, 17 Mateya's [1] 11:12 matter [3] 25:15; 29:14, 15 mean [11] 24:4; 25:15; 26:25; 28:18; 29:11; 30:22; 31:23; 32:7; 33:1, 12, 16 Medical [6] 5:13, 18; 6:23; 7:1, 15, 21 medication [1] 4:17 meeting [11] 9:18, 23; 12:6, 10, 11; 13:8; 16:16, 22; 17:1, 24 meetings [7] 12:25; 13:13, 14; 16:18; 17:5, 25; 25:6 mentioned [5] 5:21; 9:6; 13:23; 30:23; 35:15 mentions [1] 30:1 mentor [1] 8:16 mentoring [2] 15:23; 16:1 Metropolitan [4] 6:23; 7:1, 15, 21 MICHAEL (1) 1:18 midway [1] 26:22 might [2] 10:1; 14:24 miles [1] 15:20 milk [1] 5:8 mind [1] 32:8 mine [1] 25:14 minute [1] 24:25 minutes [1] 12:19 miscellaneous [1] 6:2 money [8] 24:11, 13, 16, 17; 31:19; 37:8, 13, 18 month [2] 10:23; 12:2 months [1] 36:7 more [7] 12:11, 24; 14:3; 15:22; 16:12; 19:10, 12 Most [2] 16:23; 31:22 most [5] 7:2; 12:25; 15:2; 16:24; 17:11 Motorola [3] 6:12, 15, 17 much [3] 19:9; 23:13; 27:20 Multiple [1] 17:25 myself [1] 7:7 - N - name [9] 3:13; 4:21, 24; 7:1, 20; 9:12, 14, 15; 11:3 names [5] 2:12, 15; 7:23; 25:11; 29:2 Nation [1] 21:24 nation [1] 16:11 national [4] 17:10; 22:3; 29:24; 31:12 nature [1] 5:2 neat [1] 10:3 necessarily [1] 34:15 needed [1] 18:6 negotiation [1] 35:1 negotiations [1] 25:16 never [5] 12:15; 18:19; 28:8; 29:12; 31:23 next [8] 11:9, 11; 12:20, 22; 13:11; 16:4, 5; 17:4 None [1] 35:2 none [1] 32:19 normally [1] 33:8 Notary [3] 1:10; 38:4, 22 notes [1] 38:17 nothing [1] 24:13 notice [1] 25:20 Number [1] 33:18 number [4] 9:16; 11:4; 33:18; 36:10 numbers [4] 21:22; 22:10, 15, 24 - 0 - oaths [1] 38:5 object [1] 30:7 Objection [5] 27:8, 17; 33:2, 17; 34:1 objections [1] 3:4 occur [1] 9:1 occurred [2] 13:9; 16:16 offered [1] 18:7 offering [2] 21:19; 27:1 OFFICE [1] 1:20 Office [1] 1:12 office [3] 11:13, 19; 38:6 Ohio [3] 5:18; 14:7; 16:10 once [1] 25:7 one-month [1] 35:23 ones [2] 15:15; 32:12 only [2] 14:15; 34:4 onto [1] 15:22 Open [1] 21:23 open [1] 11:14 operated [3] 7:2, 8, 24 operation [1] 5:5 opinion [2] 23:9; 37:11 opportunity [2] 16:9; 17:9 outfit[1] 7:3 outstanding [1] 31:14 over-a-cup-of-coffee-at-th e-kitchen-ta [2] 26:15; I :15 owned [2] 7:6; 32:6 owners [1] 15:16 ownership [1] 35:6 P - p.m. [2] 1:11; 37:22 package [16] 14:16; 15:1; 18:7; 25:7, 8, 22; 26;23; 27:6, 7, 14, 15, 22; 36:10, 12, 13, 16 PAGE [2] 2:2, 11 page [1] 26:23 paid [3] 19:22; 20:7; 37:2 paper [1] 25:14 paragraph [2] 28:14; 31:9 parents [2] 10:9, 11 part [10] 7:2, 20; 10:17; 19:18; 25:8; 26:23; 27:5, 6, 13 participate [1] 17:24 participating [1] 17:21 particular [1] 10:11 parties [2] 3:3; 30:10 partners [1] 6:25 partnership [3] 32:7, 8; 33:24 pass [2] 10:5, 10 Patient [2] 6:24; 7:3 payment [1] 17:18 pencil [1] 21:4 PENNSYLVANIA [2] 1:2; 38:1 Pennsylvania [4] 1:13; 6:8; 30:20; 38:7 people [11] 8:24; 10:19; 11:22, 23; 12:12, 15; 17:11; 31:6, 14, 24; 34:12 person [2] 33:24; 34:7 personal [1] 9:10 • • personally [1] 9:5 Perusing [2) 25:2; 26:5 phone [3] 11:3, 11; 15:10 picked [1] 18:5 piece [1] 25:13 pieces [1] 30:9 piled [1] 11:25 Pine [4] 4:21, 24; 20:15; 24:5 PIVAL [1] 28:12 PLACE [1] 1:12 place [1] 25:17 PLAINTIFF [1] 1:19 Plaintiff [8] 1:1, 9; 24:22; 25:18; 26:3, 10; 27:25; 29:18 Plaintiffs [6] 20:11, 14; 21:8; 22:4; 24:19; 25:25 planning [1J 10:17 PLEAS [1] 1:1 point [4] 4:9; 10:25; 13:13; 30:19 police [1] 6:19 Poseidon [3] 25:6, 8, 22 Poseidon's [1] 25:20 possibilities [1] 11:8 predated [2] 25:18; 26:10 prepared [3] 28:7, 8, 10 PRESENT [1] 1:22 present [1] 16:22 presentation [3] 17:7, 15, 16 president [1] 7:13 prevent [1] 4:17 price [8] 21:21, 22; 23:12, 14; 24:6; 25:12; 27:3; 32:14 prices [4] 21:23, 25; 23:16; 26:17 primarily [3] 6:1, 2, 18 principal [2] 33:13; 34:10 printout [1] 38:13 prior [1] 9:3 probably [3] 15:4; 25:5; 26:12 problem [2] 16:3; 33:16 proceedings [1] 38:15 produced [1] 31;13 products [3] 6:1, 2, 3 professional [1] 34:13 profit [7] 32:3, 5; 33:7, 8, 11; 34:6, 7 property [1) 34:17 proposed [1] 30:8 provided [1] 13:5 Public [3] 1:10; 38:5, 22 public [1] 6:19 Purchase [1] 20:20 purchase [8] 20:21; 24:11; 28:24; 29:3; 37:1, 9, 13, 19 purchased [8] 7:19; 14:6, 12; 18:4; 29:5, 8, 11; 34:5 purpose [3] 12:6; 28:9, 11 purposes [1] 29:14 Pushkar [3] 14:19, 22; 15:8 -Q- question [9] 3:5; 23:22; 27:9, 18; 30:13; 33:18, 19; 34:2, 3 questioning [3] 30:8; 33:3; 36:9 questions [6) 4:7; 13:2, 15, 16; 35:11; 38:11 quickly [2] 36:1, 2 -R- raise [1] 8:16 raising [2] 6:20; 8:9 rather [2] 16:15; 17:11 reason [9] 4:12, 14; 20:7; 30:18; 31:20; 32:19, 21, 23; 33:5 recall [1] 16:17 receive [1] 5:19 recognize [8] 20:17; 21;12; 22:11; 24:21, 23, 24; 26:2; 28:2 recollection [1] 17:6 record [4] 3:14; 23:20, 21; 36:24 reduced [2] 19:14; 38:13 reflect [1] 24:10 regard [1] 35:21 regarding [1] 18:16 registered [2] 29:2; 32;11 regulations [1] 7:18 related [1] 5:5 relationship [1] 9:24 relative [2) 18:3; 20:4 relevance [1] 30:9 relying [1] 34:13 remaining [1] 7:20 remember [5] 11:1; 12:2; 13:8; 14:24; 22:21 remembered [1] 28:17 rent [1] 3:24 rephrase [1] 4:8 Reporter [3] 1:10; 38:4, 14 Reporter -Notary [1] 38:12 represent [1] 23:25 representation [1] 35:25 reserved [1] 3:5 reside [1] 3:18 resides [1) 3:21 respect [1] 30:22 respective [1] 3:3 responses [1] 36:10 rest [2] 18:7; 27:23 result [3] 17:14, 16; 32:24 resulted [2] 32:24; 33:1 retained [1] 25:23 retaining [1] 24:8 retire [1] 6:15 retired [1] 8:6 Revelation [10] 2:19; 15:2; 23:13, 15; 28:12; 29:24; 31:10, 13, 16, 18 Revelation's [1] 23:14 ribbon [1] 17:10 RICHARD [1] 1:1 Richard [5] 1:23; 8:20; 9:3, 5, 16 Road [3] 3:19, 23; 4:20 road [1] 31:13 ROBERT [1] 1:20 roughly [1] 7:24 rules [1] 4:4 -S- S-a-k-a-r [1] 6:24 safety [1] 6:19 said [43] 10:1, 3, 4, 5, 8, 10, 14, 15, 16, 17, 19, 23; 11:4, 7, 15; 12:23; 13:25; 15:2, 4, 5, 6, 13, 14, 19, 21, 22, 23, 24; 16:3, 7, 10, 11, 13; 17:24; 19:9, 11; 38:10, 12, 14 Sakar [4] 6:24; 7:3, 17, 22 sale [3] 21:19, 24; 32:14 sales [1] 6:18 same [5] 4:4; 21:5; 26:13, 20; 38:18 samples [3] 9:7, 8; 30:2 saying [4] 11:12; 17:2; 20:1; 23:12 says [12] 11:6; 14:2; 20:16; 23:3, 24; 24:3; 26:23; 27:1; 28:14; 29:8; 30:4 SCHERER [21] 1:18; 3:12; 20:12; 21:9; 22:5; 23;22, 23; 24:20; 26:1; 27:11; 28:1; 29:19; 30:11, 12; 33:4, 21; 34:11; 35:10; 37:6, 21 Scherer [2] 2:3; 36:9 scratch [1] 25:13 sealing [1] 3:3 second [5] 8:7; 26:4; 28:14, 15; 29:13 seeing [1] 12:5 seeking [1] 13:4 sell [12] 8:16; 14:14, 15, 16; 15:11; 25:10; 27:2, 21; 33:6, 7, 13; 34:10 selling [6] 19:10; 20:8; 22:17; 30:15; 31:1; 34:8 semantics [1] 29:15 seminars [1] 8:18 sense [2] 14:1; 29:10 sent [2] 28:8; 29:12 sentence [1] 28:15 separate [2] 31:4; 36:21 service [1] 7;2 several [3] 13:13, 14; 17:5 share [2] 31:25; 32:5 sheet [6] 2:19; 22:15; 26:7; 29:23; 30:17; 31:17 should [1] 26:20 Show [4] 8:22; 35:17, 22, 24 show [6] 12:13; 20:13; 21:10; 22:16; 24:14; 26:8 t • siding [1] 30:15 sign [1] 15:16 significance [3] 30:21, 24; 31:2 signify [1] 23:3 signing [1] 3:3 simultaneously [1] 33:24 site [2] 22:3; 23:11 sitting [1] 16:25 situation [1] 10:11 Slater [5] 14:18, 22; 15:9; 20:16; 32:13 Slater's [1] 18:3 Slaters [25] 14:7, 11; 18:17; 19:6, 13, 23; 20:21, 25; 21:18; 25:7, 16; 26:19; 27:4; 29:4; 34:21; 35:4, 8, 18, 25; 36:5, 13, 14; 37:9, 14, 19 slip [1] 9:15 sold [13] 6:22; 7:15; 8:2, 3; 15:25; 20:5; 29:5, 11; 31:23; 33:9; 34:6; 36:18 somebody [1] 33:14 someone [2] 14:15; 33:7 something [6] 7:9; 10:2; 28:16; 30:16; 31:12; 33:6 Son's [1] 28:12 sorry [2] 7:25; 23:14 South [2] 3:19; 4:20 spend [2] 16:12; 19:12 spent [1] 34:17 Spreadsheet [2] 2:13, 14 spreadsheet [8] 21:11, 15; 22:7, 14, 19; 23:2; 24:14; 26:11 spring [1] 16:19 start [3] 13:24; 16:9; 34:13 started [10] 6:23; 7:11, 14, 17; 8:14, 15, 16; 10:7, 12; 16:14 starting [3] 16:7, 15; 17:11 State [2] 8:19, 25 state [2] 5:13; 36:12 stated [2] 12:6; 30:21 statement [2] 26:22; 28:18 statements [1] 14:17 stationary [1) 21:5 stenotype [1] 38:11 still [5] 16:1; 21:16; 36:21, 25 stipulated [1] 3:2 STIPULATION [1] 3:1 stock [1] 7:20 Stonehouse [3] 3:19, 23; 4:20 stop [2] 4:10; 11:13 storm [1] 30:15 Street [1] 1:13 strictly [1] 5:5 strike [1] 23:22 successful [5] 30:5, 14; 31:5, 7 summary [1] 13:4 supplied [1] 21:22 sure [3] 24:24; 35:16; 36:3 Suri [2) 16:11; 20:15 switched [1] 14:1 sworn [2] 3:9; 38:10 -T- table [3] 13:1; 16:6, 25 take [6] 4:2, 6; 15:22; 24:25; 31:24; 38:5 TAKEN [1] 1:9 taken [4] 11:22; 22:15; 38:11, 17 takes [1] 6:13 taking [1] 38:9 talk [4] 4:9, 10; 11:5; 12:23 talked [5] 13:22; 15:9; 25:19; 31:10; 34:20 talking [5] 8:24; 11:4; 13:22; 22:17; 36:17 Technology [1] 5:13 Tell [3] 5:24; 8:20; 9:22 tell [13) 3:13; 12:9, 14, 20; 13:11, 19; 14:25; 19:20; 20:3, 9; 32:13; 34:7; 37:7 telling [2] 27:20; 33:14 Teri [1] 2:17 term [1] 36:12 testified [1] 3:9 TESTIMONY [1] 2:1 testimony [5] 29:4; 35:15, 22; 38:8, 19 testing [3] 5:15; 6:1; 9:9 Thank [2] 4:11; 35:10 therefore [1] 35:21 thing [2] 10:8, 18 things [2] 33:13 think [11] 7:9; 9:8; 11:25; 12:24; 15:6; 16:8, 13; 22:14; 29:15; 30:15; 32:9 third [2] 31:9 though [1] 14:25 thought [1] 19:8 three [16] 8:14; 23:4, 6, 17; 24:2, 7; 27:23; 28:20, 21, 25; 29:6, 16; 32:9, 11; 35:7 through [1] 14:22 time [14] 3:5; 7:13; 8:7; 9:4; 12:7; 14:4; 15:14, 19; 16:13, 23, 24; 19:12; 26:13; 34:17 times [3] 10:9; 31:11; 36:11 together [15] 10:13; 17:22; 21:16; 24:14; 26:7; 28:15, 16, 18, 19, 24; 29:3, 16, 24; 30:19; 31:18 told [6] 9:25; 14:10; 15;19; 17:17; 18:10; 30:14 took [3] 19:24; 25:11, 16 total [4] 23:5, 8, 25; 24:1 totaled [1] 19:3 transaction [4] 13:19; 18:16; 24:18; 33:15 transactions [2] 20:4; 36:22 transcript [1] 38:18 Transport [2] 6:24; 7:4 trial [2] 3:6; 38:6 tried [2] 13:2, 16 trying [2] 17:12; 30:17 type [2] 5:3; 10:18 Typical [1] 12:18 -U- ultimately [1] 18:2 under [4] 21:21; 26:17; 27:3; 38:13 understand [1] 4:7 understanding [1] 4:18 until [5] 3:5; 6:9; 7:9, 25; 10:23 used [3] 11:7; 33:10; 36:10 usually [1] 12:19 -V- Valley [1] 20:15 value [8] 22:16; 23:5, 6, 8; 24:9, 15; 26:8 venues [1] 10:9 verbally [1) 4:5 view [1] 35:3 Vision [3] 14:5, 20, 22 visit [3] 12:11, 17, 18 visitors [1] 11:15 visits [1] 12:12 -W- waived [1] 3:4 wanted [10] 11:2; 12:23; 14:14, 15, 16; 15:11; 17:20; 19:9; 31:11; 33:10 watched [1] 4:3 website [3] 23:16; 24:6, 9 weeks [1] 17:19 whatsoever [2] 30:10; 35:2 whole [4] 11:19; 15:5; 16:14; 17:7 wholly-owned [1] 29:9 whose [1] 21:2 wife [6] 3:22; 6:22; 7:1, 19; 16:23; 34:20 WILDER [1] 1:1 Wilder [13] 1:23; 4:3, 5; 8:21; 9:3, 5, 16, 19, 24; 10:23; 35:17; 36:19; 37:1 Wilder's [1] 36:5 Wilders [5] 11:20; 26:8; 36:16, 17; 37:17 willing [3] 27:20; 31:23; 36:25 windows [1] 30:15 wished [1] 10:1 • • • witness [2] 3:8; 38:10 word [1] 36:10 words [1] 9:22 work [3] 6:4; 16:2; 17:13 worked [3] 30:19, 25; 31:2 working [4] 10:12, 13; 15:19, 23 worksheet [3] 25:5; 26:16; 27:19 worth [5] 15:4; 19:10; 20:6; 23:13; 27:2 wouldn't [1] 29:10 writing [7] 20:24; 21:2; 22:7; 23:24; 26:4, 11; 31:20 written [6] 18:15, 19; 19:14; 21:4; 22:10, 25 wrong [1] 33:14 - Y - year [5] 5:19; 8:8, 12; 12:2; 28:15 years [7] 5:15; 6:6, 9, 12, 24; 14:11, 12 Zausner [2] 6:8, 11 RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013-6404 DARWIN KELL AND IN EQUITY DORIS KELL, Defendants : PRAECIPE TO FILE AFFIDAVIT TO THE PROTHONOTARY: Please file the attached Affidavit of Carol Weezorak of record in the above - captioned matter. Respectfully submitted, BARIC SCHERER LLC ichael A. Scherer, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff -0 C) RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013-6404 DARWIN KELL AND IN EQUITY DORIS KELL, Defendants : AFFIDAVIT OF CAROL WEEZORAK I, Carol Weezorak, do depose and swear as follows: 1. My name is Carol Weezorak, I am 61 years old and I reside at 264 Winding Way, Camp Hill, Pennsylvania. 2. Along with my father, Richard Wilder, I became acquainted with Darwin Kell in connection with my father's interest in owning and raising alpacas. 3. My father was born on December 26, 1925 and is 88 years old. 4. I attended a few meetings in 2012 which included Mr. Kell and my father, and during these meetings the ownership and care of alpacas was discussed. 5. Mr. Kell mentored and advised my father and family with respect to the ownership and care of alpacas. 6. My father and my siblings expressed to Mr. Kell an interest in owning and raising alpacas; initially two alpacas, then four alpacas. 7. Mr. Kell indicated to my father, in my presence, that he was aware of a valuable herd of alpacas for sale from a farm in Ohio owned by the Slaters. 8. Mr. Kell indicated he needed a partner because the transaction was too Targe for him to undertake on his own; my father expressed an interest in participating in the purchase with Mr. Kell. 9. Mr. Kell indicated that the alpacas offered for sale by the Slaters were offered at a substantial reduction in price over their actual value. 10. Mr. Kell created a purchase plan whereby three alpacas would be owned by Kell and his wife, seven alpacas would be owned by my father, and three alpacas would beowned by a partnership between Kell and my father. 11. Mr. Kell stated that the cost of the entire alpaca herd was $50,000.00. 12. Mr. Kell indicated that my father's cost for my father's share of the transaction was $28,000.00, and Mr. Kell indicated that Mr. Kell's share of the cost of the transaction was $22,000.00. 13. My father paid Kell $28,000.00 to complete the transaction according to the agreement with Mr. Kell. 14. Mr. Kell paid the Slater's $20,000.00 for the herd, retained $8,000.00 as Mr. Kell's profit, received three alpacas as Mr. Kell's separate property and presently co-owns three alpacas with my father. 15. Mr. Kell paid nothing for the alpacas he received and made a profit of $8,000.00 in connection with the transaction. 16. The acquisition of the Slater's alpaca herd was not completed upon the terms Mr. Kell represented to my father. WITNESS: Carol ezorak COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND AND NOW, this l8 day of , 2014, before me, the undersigned officer, personally appeared Carol Weezorak, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purrses therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer S. Lindsay, Notary Public Carlisle Boro, Cumberland County My Commission Expires Nov. 29, 2015 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES CERTIFICATE OF SERVICE hereby certify that on October 21, 2014, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of a Praecipe To File Affidavit, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert P. Kline, Esquire 714 Bridge Street P.O. Box 461 New Cumberland, Pennsylvania 17070 RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013-6404 DARWIN KELL AND IN EQUITY DORIS KELL, Defendants : PRAECIPE TO FILE AFFIDAVIT TO THE PROTHONOTARY: Please file the attached Affidavit of Thomas Wilder of record in the above - captioned matter. Respectfully submitted, BARIC SCHERER LLC Michael A. Scherer, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff -4 RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013-6404 DARWIN KELL AND IN EQUITY DORIS KELL, Defendants : AFFIDAVIT OF THOMAS WILDER I, Thomas Wilder, do depose and swear as follows: 1. My name is Thomas Wilder, I am 52 years old and I reside at 957 South Mountain Road, Dillsburg, Pennsylvania. 2. Along with my father, Richard Wilder, I became acquainted with Darwin Kell in connection with my father's interest in owning and raising alpacas. 3. My father was born on December 26, 1925 and is 88 years old. 4. I attended a few meetings in 2012 which included Mr. Kell and my father, and during these meetings the ownership and care of alpacas was discussed. 5. Mr. Kell mentored and advised my father and family with respect to the ownership and care of alpacas. 6. My father and my siblings expressed to Mr. Kell an interest in owning and raising alpacas. At first two alpacas, then four alpacas. 7. Mr. Kell indicated to my family, in my presence, that he was aware of a valuable herd of alpacas for sale from a farm in Ohio owned by the Slaters, and my father expressed an interest in participating in the transaction with Mr. Kell. 8. Mr. Kell indicated he needed a partner because the transaction was too large for him to undertake on his own. 9. Mr. Kell indicated that the alpacas offered for sale by the Slaters were offered at a substantial reduction in price over their actual value. 10. Mr. Kell created a purchase plan whereby three alpacas would be owned by Kell and his wife, seven alpacas would be owned by my father, and three alpacas would be owned by a partnership between Kell and my father. 11. Mr. Kell stated that the cost of the entire alpaca herd was $50,000.00. 12. Mr. Kell indicated that my father's cost for my father's share of the transaction was $28,000.00, and Mr. Kell indicated that Mr. Kell's share of the cost of the transaction was $22,000.00. 13. My father paid Kell $28,000.00 to complete the transaction according to the agreement with Mr. Kell. 14. Mr. Kell paid the Slater's $20,000.00 for the herd, retained $8,000.00 as Mr. Kell's profit, received three alpacas as Mr. Kell's separate property and presently co-owns three alpacas with my father. 15. Mr. Kell paid nothing for the alpacas he received and made a profit of $8,000.00 in connection with the transaction. 16. The acquisition of the Slater's alpaca herd was not completed upon the terms Mr. Kell represented to my father. WITNESS: Thomas Wilder COMMONWEALTH OF PENNSYLVANIA : SS. COUNTY OF CUMBERLAND AND NOW, this di = day of 4t0.10A , 2014, before me, the undersigned officer, personally appeared Thomas Wilder, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer S. Lindsay, Notary Public Carlisle Boro, Cumberland County My Commission Expires Nov. 29, 2015 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES CERTIFICATE OF SERVICE hereby certify that on October 21, 2014, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of a Praecipe To File Affidavit, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert P. Kline, Esquire 714 Bridge Street P.O. Box 461 New Cumberland, Pennsylvania 17070 RICHARD S. WILDER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2013-6404 DARWIN KELL AND IN EQUITY im cn `1-1 , DORIS KELL, �� 1,,, Defendants : �= c_) 72::: = CD 7.0 PLAINTIFF'S ANSWER TO DEFENDANT'S e.,,,'''"". ' �;• . 'X MOTION FOR SUMMARY JUDGMENT -< r AND NOW, comes Richard S. Wilder, by and through his attorney, Michael A. Scherer, Esquire, and responds to the Defendant's motion for summary judgment as follows: This case involves the purchase and ownership of alpacas. The central issue in the case is involves the terms of a verbal agreement between the Defendant, Darwin Kell and the Plaintiff, Richard Wilder, in connection with the purchase of thirteen alpacas from a farm in Ohio owned by the Slater family. The entry of summary judgment is inappropriate in this case because there is a major factual dispute over the terms of the verbal agreement between the parties in connection with the purchase of the alpacas from the Slaters. FACTS OF RECORD 1. Darwin Kell and his wife Doris Kell have operated the Bent Pine Alpaca Farm in Cumberland County Pennsylvania since 2000. 2. Richard Wilder, then age 86, met Darwin Kell at the Pennsylvania Farm show in 2012 and after a conversation with Darwin Kell, developed an interest in alpacas. 3. Thereafter, Kell, by his own admission, mentored Wilder in the ownership and care of alpacas during a series of meetings between Kell, Wilder and Wilder's family. 4. Kell told Wilder and his family that Kell was aware of a herd of alpacas for sale in Ohio and Kell and Wilder eventually decided to acquire the herd. 5. The parties characterize the terms of their agreement to acquire the herd in very different terms in their depositions. 6. Wilder's complaint alleges that Kell Tied to Wilder about the nature of the transaction. Specifically, Wilder's complaint alleges that Kell told Wilder that Kell needed a partner to purchase the alpacas and that Wilder's share of the cost of the alpacas from Ohio would be $28,000.00. Kell's share of the cost of the alpacas would be $22,000.00. 7. Kell asserts that the terms of the oral agreement he had with Wilder were that Wilder would pay Kell $28,000.00, and for that sum Wilder would receive 7 alpacas which Wilder would own alone, and 3 additional alpacas that Kell and Wilder would co- own in a partnership. 8. In fact, what occurred, which is undisputed by the parties, was that Wilder paid Kell the sum of $28,000.00, and Kell used this money to pay the Slaters $20,000.00 for thirteen alpacas. Kell then pocketed $8,000.00, kept 3 alpacas for himself, delivered 7 alpacas to Wilder individually and Kell and Wilder now co-own three alpacas. 9. Kell put none of his money into the transaction. 10. Wilder's deposition testimony, and the affidavits of record from Wilder's children, Thomas Wilder and Carol Weezorak, who were present for the negotiations, support the allegations in Wilder's complaint that Kell lied to their father about the acquisition of the Slater's alpaca herd. 11. Kell's deposition transcript contains Kell's handwritten notes (Exhibit 5) regarding the transaction wherein Kell writes that Wilder's "part" of the transaction is $28,000.00. This implies that someone (Kell) was paying the other "part" of transaction, and that Kell and Wilder were purchasing the alpacas together. 12. Kell attempts to characterize Wilder as having purchased the alpacas from Kell; however, Kell did not even own the alpacas which were sought to be acquired- the Slaters owned the alpacas. 13. A genuine issue of material fact exists as to the terms of the oral agreement between Wilder and Kell regarding the acquisition of the alpacas from the Slaters. WHEREFORE, Wilder requests that this Honorable Court deny Kell's motion for summary judgment. Respectfully submitted, BARIC SCHERER LLC Mi ael A. Scherer, Esquire 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on October 21, 2014, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of Plaintiffs Answer To Defendant's Motion For Summary Judgment, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Robert P. Kline, Esquire 714 Bridge Street P.O. Box 461 New Cumberland, Pennsylvania 17070 PRAECIPE FOR LISTING CASE FOR ARGUMENT (41Z - (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for ode nsRt --n Argument Court.) s- nz-r, co G3 i q ---'� CAPTION OF CASE z� "'1 `0ri1 (entire caption must be stated in full) P I> W CD i <o -a Y; RICHARD S. WILDER, p� � �,� Plaintiff Z W -,,-,-. vs. T> DARWIN KELL AND —4 %� DORIS KELL, Defendants No. 2013-6404 CivilTerm 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion For Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael A. Scherer, Esq., 19 West South St., Carlisle, PA 17013 (Name and Address) (b) for defendants: Robert P. Kline, Esq., 714 Bridge St., New Cumberland, PA 17070 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 14, 2014 Date: October 23, 2014 Signaire Michael A. Scherer, Esq. Print your name Plaintiff Attorney for 1917 /DC INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. (•26(7 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) RICHARD S. WILDER, PLAINTIFF vs. DARWIN KELL & DORIS KELL, DEFENDANTS �G No 2013-6404,- cs' 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Motion For Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael A. Scherer, Esquire (Name and Address) 19 W. South Street, Carlisle, PA 17013 (b) for defendants: Robert P. Kline, Esquire (Name and Address) P.O. Box 461, New Cumberland, PA 17070 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 19, 2014 Date: October 31, 2014 Sipa-7 Print your name Defendants Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. /9" 25-fd a4 3/a im RICHARD S. WILDER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DARWIN KELL AND DORIS KELL, DEFENDANTS : NO. 13-6404 CIVIL IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS, J., EBERT, J. AND PLACEY J. ORDER OF COURT AND NOW, this 14th day of January, 2015, upon consideration of Defendants' Motion for Summary Judgment, the Plaintiff's Answer thereto, the briefs filed by the parties and after oral argument, the Court does find that genuine issues of material fact exist in the case; Accordingly, IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Motion for Summary Judgment is DENIED. By the Court, Michael Scherer, Esquire Attorney for Plaintiff Robert P. Kline, Esquire Attorney for Defendants bas CO?i'ES ila-t LEL AVIS `_^ C.741 .LWT �.t C~