HomeMy WebLinkAbout05-0376
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
Plaintiff,
No. OS - 37f..
elt~\l~~
:
v.
PREMIER FUNDING, INC. and
DAVID SIMONIC,
.
.
Defendants.
CIVIL ACTION - LAW/EQUITY
A VISO
USTED HA smo DEMANDADO/ A EN CORTE, Si usted desea defenderse de
las demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veiente (20) dias despues de la notificacion de esta
Demanda y A viso radicando personalmente 0 por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objeccionee
a, las dernandas presentadas aqui en contra suya, Se Ie advierte de que si usted falla de
tomar accion corno se describe anteriormente, el caso puede proceder sin usted y un
fallo por cualquier surna de dinero reclamada en la dernanda 0 cualquier otra
reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya
por la Corte sin mas aviso adicional. Usted pued perder dinero 0 propiedad u otros
derechos importantes para usted,
USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE, SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE
A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE
PUEDE ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
Plaintiff,
No.
:
v.
PREMIER FUNDING, INC. and
DAVID SIMONIC,
Defendants.
CIVIL ACTION - LA W/EQUlTY
NOTICE
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims
set forth in the following pages, you rnust take action within twenty (20) days after this
complaint and notice are served, by entering a written appearance personally or by
attorney and filing in writing with the court your defenses or objections to the claims set
forth against you, You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the court without further notice for
any money clairned in the complaint or for any other claim or relief requested by the
plaintiff, You may lose rnoney or property or other rights irnportant to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
Plaintiff,
No. DS' - .371.,.
(1,)L ~aY>"\.
v.
:
PREMIER FUNDING, INC. and
DAVID SIMONIC,
Defendants.
CIVIL ACTION - LAW/EQUITY
COMPLAINT
AND NOW, comes Plaintiff, M.J. CECKA (hereinafter referred to as
"Cecka" and/or "Plaintiff') by and through her attorneys, SCHUTJER BOGAR
LLC, and files the following complaint against Defendants, PREMIER FUNDING,
INC, (hereinafter referred to as "Premier" and/or "Defendant") and DAVID
SIMONIC (hereinafter referred to as "Simonic" and/or "Defendant") (collectively
referred to as "Defendants") and avers the following:
Parties
1. Plaintiff, is an adult individual, with a residence at 511 Gale Road,
Camp Hill, Cumberland County, Pennsylvania 17011.
2, Defendant, Premier, is a Pennsylvania business corporation with a
principle place of business at Mumma Drive, Suite 200, Lemoyne, Cumberland
County, Pennsylvania,
3, Defendant, Simonic, is an adult individual, who resides in and
operates a place of business in Cumberland County, Pennsylvania.
Background
4, Cecka is a shareholder and former employee of the Defendant
Premier.
5, Simonic is a shareholder and current employee ofthe Defendant
Premier.
Facts
6, On or about July 200 l, Plaintiff and Defendant Simonic held
discussions about commencing a mortgage brokerage business together.
7. During these discussions, Plaintiff and Defendant agreed they would
be equal, 50%/50% shareholders of Premier.
8, Premier was incorporated in May, 2001 and obtained necessary
licensing with the Pennsylvania Department of Banking on or about July 200l.
9, In reliance on her agreement with Defendant Simonic that she would
be an equal, 50/50 shareholder in Premier, Plaintiff resigned her employment to
join Premier on October 5, 200l.
10. On or about October 10,2001 Plaintiff and Defendant each tendered
a $25,000 capital contribution in exchange for a 50% stake in the common shares
of Premier.
2
11. On October 25, 2001, after Defendant received Plaintiffs capital
contribution in an amount equal to his, Defendant Simonic represented to Plaintiff
that his accountant had advised him that Premier could not function unless
someone had a controlling interest.
12, On October 25, 200 I, Defendant Simonic crafted a Board Resolution
issuing Plaintiff 24 shares and issuing himself 26 shares without the knowledge or
consent of Plaintiff,
13. Based on the foregoing number of shares, Plaintiff received 49% of
Premier and paid $1,041,666 per share; whereas Defendant Simonic received 51 %
and paid $961,53846 per share, representing immediate substantial dilution of
Plaintiff s share value.
14, Prior to the share issuance, Plaintiff had resigned from her prior
employment and acted in reliance on Defendant's promise that she would receive
50% of the shares of Premier.
15, Defendant Simonic appointed himself sole Director prior to
Plaintiffs involvement with Premier.
16, Defendant Simonic, as self-proclaimed sole Director, proceeded to
appoint himself President of Premier.
17, Plaintiff was allegedly appointed Secretary and Treasurer, but
Pennsylvania Department of State, Corporation Bureau records do not reflect that
3
appointment and, in fact, show that Defendant Simonic is Treasurer and the only
officer of Premier,
18. As described in the Bylaws of Premier, the Secretary is to attend all
meetings of the shareholders and board of directors and to record all votes, keep
minutes, prepare notices, records and reports required by law and maintain the
corporate seal and affix it to all proper documents,
19, Plaintiff did not perform and/or was precluded from performing any
of the duties of Secretary described in the Bylaws.
20, As described in the Bylaws of Premier, the Treasurer is to provide
for the custody of corporate funds or other property, collect, receive and deposit all
moneys and funds and render accountings of the financial condition of the
corporation.
21. Plaintiff shared check signing capability with Defendant Simonic, as
did certain other Premier employees, but was otherwise did not perform and/or was
precluded from performing any of the duties of Secretary described in the Bylaws,
22. Plaintiff was Secretary and Treasurer in title only and did not
function as Secretary and Treasurer of Premier as those positions are described in
the Bylaws of Premier.
23. In July 2003, Plaintiff reviewed bank statements for Premier and
discovered that $100,000 was missing and unaccounted for,
4
24, Plaintifflater discovered that Defendant Simonic had caused Premier
to make a $100,000 mortgage loan to himself and his wife, Marybeth Simonic on
June 20, 2003 (the "Illegal Loan").
25. A true and correct copy of the Note and Mortgage for the Illegal
Loan are attached hereto as Exhibit A,
26, The Illegal Loan was made from Premier to the Simonies without
consultation, knowledge or consent of Plaintiff.
27, Pennsylvania Department of Banking regulations prohibit a
mortgage broker from closing a mortgage loan in their own name pursuant to
section 309(a)(5) of the Mortgage Bankers and Brokers and Consumer Equity
Protection Act (Act of 1989, P.L. 687, No, 90),
28, Upon learning of Defendant Simonic's Illegal Loan, and fearing that
Premier's operating license and her livelihood was thereby jeopardized, Plaintiff
applied for a mortgage brokers license for herself.
29, Plaintiff applied for a mortgage broker's license in her individual
capacity to continue making money for her family and herself, in case Premier's
operating license was revoked due to Defendant Simonic's Illegal Loan,
30, At no time prior to January 13,2004, while Plaintiff was an
employee of Premier, did Plaintiff originate, commit, or lock any loans under her
individual mortgage broker's license.
5
31, Not a single loan to date has been closed or generated pursuant to
Plaintiffs individual mortgage broker's license.
32. Plaintiff and Defendant, as shareholders of Premier, entered into an
oral Compensation Agreement and Dividend Policy on or about October 2001 (the
"Compensation Agreement and Dividend Policy") providing for payment of 60%
of the commissions on loans they each originated (the "Commission Payment"),
The 40% remaining after the Commission Payment was pooled together with 50%
of commissions generated by three (3) loan originators employed by Premier (the
"Pooled Funds") from which business operating expenses were paid,
33. Amounts remaining after payment of the business operating
expenses from the Pooled Funds were distributed as shareholder dividends
pursuant to the Compensation Agreement and Dividend Policy (the "Dividend
Payment"),
34, According to the Compensation Agreement and Dividend Policy
Plaintiff and Defendant Simonic had to generate loans and commissions to receive
the Commission Payment.
35, The Compensation Agreement and Dividend Policy did not require
the Plaintiff or Defendant Simonic to generate loans or commissions for Premier to
receive Dividend Payments.
6
36, Plaintiff regularly received Commission Payments and Dividend
Payments in accordance with the Compensation Agreement and Dividend Policy,
37. Plaintiff has not received Dividend Payments due pursuant to the
Compensation Agreement and Dividend Policy since October, 2003.
38, Plaintiff requested verbally that such Dividend Payments be made,
39. Plaintiff proposed a written agenda for a shareholders' meeting held
on September 14, 2004 that contained a request for Dividend Payments since
October 2003, as well as the memorialization ofthe Compensation Agreement and
Dividend Policy in writing providing for bi-annual Dividend Payments. A true and
correct copy of such request is attached hereto as Exhibit B.
40, Defendant Simonic, as self-appointed sole director and purported
majority shareholder, rejected the proposal to make Dividend Payments owed
Plaintiff pursuant to the Compensation Agreement and Dividend Policy.
41. Defendant Simonic, as self-appointed sole director and purported
majority shareholder rejected the memorialization of the dividend payment policy
in writing.
42. Pursuant to the Compensation Agreement and Dividend Policy,
continuing dividends are owed to Plaintiff from Defendant Premier for operations
from October 2003 through present.
7
43. The Compensation Agreement and Dividend Policy does not provide
for the payment of salary or bonus to Officers, but only provided for Commission
Payments and Dividend Payments,
44, Neither Plaintiff nor Defendant Simonic received a salary as an
officer of Premier and payment of such a salary is contrary to past practice and
contravenes the Compensation Agreement and Dividend Policy in effect.
45. It is believed and therefore averred that Defendant Simonic has paid
himself a salary or bonus to avoid making Dividend Payments owed to Plaintiff in
accordance with the Compensation Agreement and Dividend Policy.
46, On or about July 7, 2004, Plaintiff, by and through the undersigned
counsel, verbally requested from Defendants the production of certain financial
information of the Defendant Premier,
47, Defendants did not comply with the verbal request.
48. Plaintiff was forced to reiterate this request three weeks later by
letter dated July 23,2004, providing a 10 day time-frame for compliance with such
request. A true and correct copy of such request is attached hereto as Exhibit C.
49, Defendants did not comply with the July 23 request.
50, Defendants counsel acknowledged receipt of both the verbal and
written request for the Financials in a letter dated July 26, 2004, attached hereto as
Exhibit D,
8
51. On August 9, 2004, more than one month after the financials were
requested and more than 8 months after the close of Premier's fiscal year,
Defendants finally supplied financial statements of Premier.
52, The financial statements provided Plaintiff are not audited and are
not prepared in accordance with generally accepted accounting principles
("GAAP") and are "adjusted as of December 31,2003,"
53, The 2004 annual meeting of shareholders was held September 14,
2004, at which several of Plaintiffs agenda proposals for protecting Plaintiffs
shareholder rights were considered, The agenda containing such agenda proposals
is attached hereto as Exhibit E,
54, Each of Plaintiff s proposals for protecting Plaintiff s shareholder
rights were rejected summarily by Defendant Simonic without discussion or
explanation of the business reason behind the rejection, The minutes of such
meeting are attached hereto as Exhibit F.
55, Defendant Simonic stated at the shareholder meeting that he was
moving the operations of the shareholder meeting and was paying in excess of
$20,000 for such move,
56, On November 4,2004, Plaintiff by and through counsel made a
written request to obtain corporate information pursuant to Section 1508 of the
BCL. A true and Correct Copy of which is attached hereto as Exhibit G,
9
57, Defendant refused to respond to such request within five days as
required by Section 1508. A true and correct copy of a letter dated November 17,
2004 from Plaintiffs counsel confirming the refusal to respond is attached hereto
as Exhibit H.
COUNT I-VIOLATION OF DUTY TO PROVIDE FINANCIALS
CORPORATE LAW CLAIM
58. Plaintiff incorporates paragraphs 1 through 57 as if fully set forth
herein,
59. Section 1554 ofthe Pennsylvania Business Corporation Law of
1988, as amended (the "BCL") requires every Pennsylvania business corporation
to provide its shareholders with annual financial information prepared in
accordance with GAAP, ifGAAP financials are prepared for any purpose, within
120 days of the end of its fiscal year,
60, Defendant Premier produces audited financials prepared in
accordance with GAAP for the Pennsylvania Department of Banking.
61. Subsequent to the 120 day time-frame provided in Section 1554 of
the BCL, Plaintiff has made numerous requests to obtain the financial information,
62, Despite repeated requests, Defendants continue to refuse and/or fail
to produce financial information that is prepared in accordance with GAAP as
required by Section 1554 of the BCL.
10
63. Such repeated and continued refusal and/or failure to produce the
financial information constitutes a breach of its duty to provide the financial
information required by Section 1554 of the BCL and constitutes dilatory, obdurate
and vexatious conduct for purposes of 42 Pa,C,S, 92503,
64, Such repeated and continued refusal and/or failure to produce the
financial information constitutes willful misconduct and recklessness preventing
indemnification from Premier under the Premier Bylaws.
WHEREFORE, MJ Cecka, Plaintiff, respectfully requests that the Court
enter judgment against Defendants Premier Funding, Inc and David Simonic
requiring production of the requested financial information together with any costs,
applicable interest and attorneys fees, and to grant such other relief as the Court
deems proper.
COUNT II-VIOLATION OF DUTY TO PROVIDE FINANCIALS
BREACH OF CONTRACT CLAIM
65. Plaintiff incorporates paragraphs 1 through 64 as if fully set forth
herein,
66, The Bylaws of Defendant Premier require the production of financial
information to be provided to the shareholders of exactly the same type, in exactly
the same manner and time-frame as Section 1554 ofthe BCL.
67, The Bylaws ofa corporation constitute an agreement between the
corporation and its shareholders,
11
68, Defendants by their continuing refusal and/or failure to provide the
financial information required by the Bylaws, have breached the Bylaws/
agreement with Plaintiff to provide such information,
69. Such repeated and continued refusal and/or failure to produce the
financial information constitutes willful misconduct and recklessness preventing
indemnification from Premier under the Premier Bylaws.
WHEREFORE, MJ Cecka, Plaintiff, respectfully requests that the Court
enter judgment against Defendants Premier Funding, rnc and David Simonic
requiring production of the requested financial information together with any costs,
applicable interest and attorneys fees, and to grant such other relief as the Court
deems proper,
COUNT III - BREACH OF COMPENSATION AGREEMENT
AND DIVIDEND POLICY
70, Plaintiff incorporates paragraphs 1 through 69 as if fully set forth
herein.
71. Defendant Simonic and Plaintiff entered into a Compensation
Agreement and Dividend Policy providing for the payment of commissions based
on loan origination and the payment of dividends based on profits after expenses
and maintenance of the required statutory reserve for mortgage brokers,
12
72, Defendant Simonic breached this Compensation Agreement and
Dividend Policy by his refusal to pay dividends due to Plaintiff since October,
2003,
73, Defendant Simonic continues to breach the Compensation
Agreement and Dividend Policy by refusing to pay continuing dividends for profits
from ongoing Premier operations,
74, The amount of dividends Plaintiff is owed pursuant to the
Compensation Agreement and Dividend Policy for profits from continuing
operations is not presently ascertainable due to Defendant's failure to produce
adequate Premier financials as described in the foregoing Counts I and II,
WHEREFORE, MJ Cecka, Plaintiff, respectfully requests that the Court
enter judgment against Defendants Premier Funding, Inc, and David Simonic
requiring payment of dividends since October 2003 and on a going forward basis
together with any costs, interest on the dividends, attorneys fees and to grant such
other relief as the Court deems proper.
COUNT IV-DEFECTIVE SHARE ISSUANCE
FRAUD. BREACH OF CONTRACT. REMOVAL
75, Plaintiff incorporates paragraphs 1 through 75 as if fully set forth
herein,
13
76. Defendant agreed to issue 50% of the Premier shares to Plaintiff in
exchange for her resigning other employment, making a capital contribution equal
to Defendant's, as well as for other good and valuable consideration,
77. Defendant's refusal to issue 50% of the shares constitutes a breach of
such agreement.
78, Defendant's refusal to issue 50% of the shares after Plaintiff resigned
her prior employment and after she took other actions in reliance on his
representations constitutes fraud on the Plaintiff,
79, Plaintiff is a de facto 50% shareholder in pari passu with Defendant.
80. The defective share issuance constitutes fraudulent, dishonest and
gross abuse of discretion in violation of Section 1726 of the BCL.
WHEREFORE, MJ Cecka, Plaintiff, respectfully requests that the Court
enter judgment against Defendants Premier Funding, Ine, and David Simonie
declaring her a de facto 50% shareholder and removing Defendant Simonic from
all offiees held and as a member of the Board of Direetors of Premier together with
such other relief as the Court deems proper,
COUNT V - FREEZE-OUT. ABUSE OF MAJORITY
SHAREHOLDER STATUS CORPORATE WASTE
8 I. Plaintiff incorporates paragraphs 1 through 82 as if fully set forth
herein,
14
82. David Simonic appointed himself as sole Director of Premier
premised on his alleged majority shareholder status gained by the defective share
issuance described in Count IV,
83, Defendant Simonic has exploited his defective share issuance as a
pretense to control Premier policies and decisions, and to freeze-out Plaintiff,
excluding her from all decision making with respect to Premier,
84. Defendant's refusal to provide the financial statements required by
Section 1554 of the BCL constitutes a freeze-out and abuse of majority shareholder
status by Defendant Simonic.
85, Defendant's refusal to permit Plaintiff to inspect its books and
records pursuant to Section 1508 of the BCL constitutes a freeze-out and abuse of
majority shareholder status by Defendant Simonic.
86, Defendant's refusal at the 2004 shareholder meeting to adopt the
agenda items proposed by Plaintiff without consideration, discussion or stated
business reasons is a result of the freeze-out of Plaintiff and constitutes abuse of
majority shareholder status by Defendant Simonic,
87, Defendant's authorization of the Illegal Loan without permission
from Plaintiff is a result of the freeze-out of Plaintiff and constitutes abuse of
majority shareholder status by Defendant Simonic,
15
88. Defendant's breach ofthe Compensation Agreement and Dividend
Policy is a result of the freeze-out of Plaintiff and constitutes abuse of majority
shareholder status by Defendant Simonic.
89. The moving expense of $20,000 alleged to be incurred by Defendant
Simonic, and therefore believed to have been made by Premier, is excessive and
constitutes corporate waste.
90. Numerous other expenditures made by Defendant Simonic and
Defendant Premier will it is believed, after the filing of an accounting with the
Honorable Court, prove to be excessive and to constitute corporate waste,
91, The excessive expenditures constituting corporate waste are the
result of the freeze-out and constitute abuse of majority shareholder status by
Defendant Simonic,
92, The freeze-out of Plaintiff, the breach ofthe Compensation
Agreement and Dividend Policy, the Illegal Loan and corporate waste committed
by Defendant Simonic constitute fraudulent, dishonest and gross abuse of
discretion in violation of Section 1726 of the BCL
WHEREFORE, MJ Cecka, Plaintiff, respectfully requests that the Court
enter judgment against Defendants Premier Funding, Inc, and David Simonic
requiring the following:
16
a) The adoption of each of the agenda items rejected at the 2004
shareholders meeting that the court finds to have a valid business
purpose;
b) The adoption and reduction to writing of the Compensation
Agreement and Dividend Policy;
c) The indemnification of Premier by David Simonic for the
Illegal Loan and the proper reporting to the Pennsylvania Department of
Banking of such loan;
d) The compelled accounting by an unrelated party of each
expenditure made by Premier since October 2003; and
e) The reimbursement to Premier by Defendant Simonic of an
amount equal to all expenditures this Honorable Court deems to be
corporate waste or otherwise unnecessary, improper, excessive, self-
dealing or inadequately substantiated;
f) Removal of Defendant Simonic from all officer and Director
positions with Premier; and
17
g) Such other relief as this Honorable Court finds appropriate.
Respectfully Submitted:
Dated: / / /1 of
By:
/'v: JtA-
Kurt W, McCabe
Pa. ID No, 81938
Bradley A. Schutjer
Pa, ID No, 75954
441 Friendship Drive
Harrisburg, P A 17111
717,909,5922
Attorneys for Plaintiff
18
VERIFICATION
I verify that the statements made in this Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18
Pa,C,S, ~4904 relating to unsworn falsification to authorities.
Date: ~ I vlaj
19
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dlb\re\.>imonic.note
ORIGINAL
~
JUNE ;20 . 1003
CAMP BlLL, PENNSYLVANIA
6UO 'EVEISN S'r'A.F.;RT. HARRISBURG DAUPHIN COUNTY PENN'~VL VANIA 17111
(Property Add,.,,)
1. BOR!l.OWER'S PROMISE TO PAY
In ~etum fOf a 10m that I have received, I plomise to pay U.S. 5100,000.00 (this amount is called "principal"), plus
interest, tQ the order ofthc Lender. The Lender is PREMIER FUNDING.
2. INTEREST
futerest will be charged on UDpaid principal until the full.lUPOunt of principal has been paid. I will pay interest at a
Yearly rate of 3%.
The interest rate ~td by 'this SectioD 2 is the rate I will pay 'both before and after any default described in Section
6(B) oftbi,Nole,
3. PAYMENTS
I will pay principal UPON DEMAl'ID ON OR BEFORE SEPTEMBER 30, 2003,
If, on September 30, 2(l()3, I still owe amounts'underthis Note,l will pay those amounts in full Qn thal date, which is
caUed the "maturil)' date." . .
I will make Irri :paymexU: at 2008 Market Street, Camp Hill, P A 17011, or at a different place if required by the Note
Holder.
4. BOR!l.OWER'S RIGHT TO PREPAY
I have the right to ma.kt: payments of principal at lUly time before they are due. A pllymetlt of principal only is known
as a "prepayment" When I make a prepayment, I will tell the Note Holder in writing that I am doing so.
r may make a :tb.ll prepayment or partial prepaymeDu without any prepayment charge. The Note Holder will U$e all
ofmtprepaymentJ to reduce the amount ofprineipal that I owe lltlder this Note. If I make a partial prepayment, there will be
no changes in the due dare or in the amount OflDY DlDnthly payment unless the Note Holder agrees in writina; to those charges.
5. LOAN CHARGES
If a la.w, whicb applies to this loan and which sets maxin'nm11oac. charges, is fmall)' iD.te:rpreted so that the in~rest or
other loan charges collected or to be collected in connection with thii loan exceed the pennitted. limits, tben: (i) any such lOaD
charge shall be reduced by the ll.!DOunt necessary to reduce the cbaxgc to the permitted limit; acd (ii) any sums already collected
from me which exceeded pe:rmittM IiInits will be refw:1ded to D. The Nom: Holder may chOD.\C to znake this refund by reducing
the principal I OWe: under this Note or by ma.kiDg a direct p.!)'lDl:'nt 10 me, ]f a refund reducei principal. the reduction will be
treated as a partial prepayment.
6. BOR!l.OWER'S-FAlLURE 'to PAY AS REQUIRED
(A) Late Charge for Ovenlne Payments.
If the Note Holder has not received the full amount of any monthly payment by the end of I 5 calendar days
r aftcrtbe da.te it is due, I will pay a la1e charge to the Note Holder, The amount of the charge will be S% of my oVln'duepayment
of principal and interest. I will pay this late charge promptly but only once an each latf; payn'lenr.
(11) Default
If I do not pay the fl.l.ll amount of each motIlhly payment: 0%1 the: date it is duc, I will be in dcfa~lt.
(C) Notice o( Default
If I am in default. the Note Holder may send me a written nQtice telling me that if I do not pay the overdue
amount by a certain date, the! No\C Holder may require me to pay immediately the full amount of principal wbich has Dot been
paid lUIod all the interest that 1 owe OD that amount That date must be at least 30 days after the c1a.te on which the notice is
delivered or mailed to IIlC.
(0) No Waiver By Note Holder
.tven if, at a time wbtn I am in default, the Note Holder dOe6 Got require me to pay immediately in full .as
dC6cribed above, the Note Holder will still have the right to do so ifl am in default at a later time.
(E) J-ayment Q(N~e lI'oIde":~s Costs aDd .JJ;~peDses
lithe Note Hol~er bas required me to pay immediat~y in full u described. above, the Note Holder will have
the rightto'be paid back by me for all of its costs md expenses in enforcing this Note to the extent not prolubired by applicable
~w. Those expenses inch.lOe. for example, reasonable attorneys' fees.
7. GIVING OF NOTICJ::S
, l.!nk,ss appliC<l~~e b,w requires a cliffe,rent method, any notice that mnst be Irtven to me und.e:r this Note will be given
by deJivenng It or by mailing .It by first ews IDa.Il to me at the Property Address above or at a differe:r:lt addtes6 if I g.ive the Note
Holder a. notice of my different address.
Rx Oaten ime
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Any notice that must be given to the Note Holder under tb,is Noto will be given by mallin.&: it by first ~lass mail to the
Note Holder at the addxess stated in S~tiOD 3(A) above or at a different address if! am given a nobce of that different address.
8. OBLIGATIONS OF PERSONS UNDER TBlS NOl"E
Ifmore than one perSOD signs this Note, each penon is fully aJ1d personally obligated to keep aU of the promises made
in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, S\lIety or endorser of this Note
is also obligated to do these things. Pu1ypCr$on who tllkes over these obligations, incluc:;mg the: obliptions ofag\l.l:llantc.r, s~ety
or endorser of tbis Note, is aho obligated to keep all of'thc promises made in this Note. the Note Holder may enforce 1ts n~ts
under this Note against eacb pQ:SOD individually or agai,n$t aU ofus togcth01'. This means that anyone of us may he reqUIred
to pay all of the amounts owed under this Note. .
9. WAIVERS
I and any other person wllo has obligations under this Note waive tho rights of presentment and notice of dishonor.
"Presentment" mcan.s 'the right to require the Note Holder 'to demand payment of IlII10UDts due. "Notice of wshooor" :means the
right to require the Note Holder to give JJ.otice to other pcrsom that amDl,IJlt! due have not been paid
10. UNIFORM SECURED NOTE
This Note is a unifonn wtnlment with limited. variations in some jurisdictions. In ~ddition to the protections given
to the Note Holder under this Now:, a .Mortgage, Deed of Trust or Security Deed (the "Security InstrutnCDt"), dateO the same date
as tbis Note, protects the Note Holder from posSlble lones which might result ifl do Dot keep tbe promises which I make in thilS
Note. That Seauity Instnl.meDt describes how and under what conditions I may be required to make immediate payment in full
of all amOUIlt& [ owe under this Note. Some of those conditions &:te described u follows:
Transfer of tbe I'roperty or a Beoefidal Iote.rest in Borrower. If all or any part
of the Property or any interest in it is sold Dr transferred (or if a beneficial interest in
Borrower is sold or transferred and BOlTOwel is not a natunl person) without Leadets prior
written consent, 1.ender may. at its option, require immc:d.iate payment in full of all sums
secured by tbiR Seewity InstnuDcnt. However, this option shall not be cx.excised by Lender
if exercise is prohibited by federa11&w as of the date ofmis Security Instrument.
If Lender exercises this optiOXl., l.e:nder shall give Borrower notice of accel.etation.
The notice shall provide a period of-not less than 30 days from -the date the notice is
delivered or mailed within which Borrower II1U5t pay all sums secured by this Security
Instrutwmt. If Bo~wcr fails to pay these sums prior to the expiration of this period,
Lender may iovoke any remedies permitted by this Security Instrument without further
notice 01" c.iemmd an Borrower.
WI1'NESS TIlE HAND AND SEAL OF mE UNDERSIGNED,
~~
I~
[Sign Original Only)
2
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41blrt.\l:imonie..Il'IT.g
MORTGAGE
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THIS INDENTURE, made the :20 :'y ofJune, 2003
BETWEEN DAVID E. SIMONIC and MARYBETH SIMONIC, husband and wife,
Mortgagors
and
PREMIER FUNDING,
Mortgagee:
WHEREAS. the said Mortgagors in and by eertain Obligation or Writing Obligatory, under their
hands and seals, duly executed, dated June~. 2003, stands bound unto the said Mortgagee in
the sum of One Hundred Thousand Dollar, ($ 100,000.00) lawful money of the United Slates of
America; conditioned that the said Mortgagors, their heUs~ executors or administrators, shall and do
well and truly pay, or cause to be paid, unto ille said Mortgagee, its certain attorneys, successors or
assigns, the sum of One Hundred Thousand Dollars ($100.000.00), if not sooner paid, due and
payable on September 30, 2003.
AND ALSO, from time to time, and at all times, until payment of said principal sum be made as
aforesaid keep the building, erected and to be erected upon the land herein described, insured for the
benefit of the Mortgagee, in some good and reliable Stock Insurance Company or Companies to the
amount of at least One Hundred Thousand Dollars ($100,000,00), and to take no insurance out on
said buildings, not markad for the benefit of the Mortgagee; the further condition of the said
Obligation is such, that ifat any time default shall be made in the payment of interest or insurance
premium as aforesaid, for the space of fifteen (IS) cLays after any payment thereof shall fall due, or
if a breach of any other of the foregoing conditions be made by the said Mortgagors, their heirs,
executors, administrators or assigns, then and in such case, the said principal sum shall at the option
of the said Mortgagee, its successors or assigns, become due; and payment of the same. with the
interest and costs of insurance due thereon, as aforesaid. together with an attorneys commission of
ten percent (10%) On the said principal sum, besides costs of suit, may be enforced and recovered
at once, anything therein contained to the contrary thereof in anywise notwithstanding, as in and by
the said recited Obligation and the condition thereof(relation being thereunto had) may more fully
and at large appear,
WITNESSETH that the said Mortgagors, as well for and in consideration of the said debt or ,um
of dollars, and for the better securing the payment of the same with interest, as aforesaid, unto the
said Mortgagee. its successors or assigns in the discharge of the said recited Obligation, as for and
in consideration of the further sum of One Dollar, lawtill money, aforesaid, unto the said Mortgagors
in hand well and truly paid by said Mortgagee, at or before sealing and delivery hereof, the receipt
whereof is hereby acknowledged, granted, bargained and ,old, released, and confirmed. and by these
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d1b'fe~ouic..llItg
presents, does grant, bargain and sell, release and confirm unto the said Mortgagee, her heirs and
assigns
ALL (SEE LEGAL DESCRlPTION ATTACHED HERETO,)
TOGETHER with aU and singular the improvemcntsl ways) waters, watercourses, rights, liberties,
privilege" hereditament, and appurteruulces whatsoever unto the hereby granted premises belonging.
or in anywise appertaining, and the reversions and reinainders) rents issues and profits thereof;
TO HAvE AND TO HOLD the said hereditaments and premises granted, or mentioned and
intended so to be \Vith the appurtenances, unto the said Mortgagee. its successors and assigns, to and
for the only proper use and behoof of the said Mortgagee, its successors and' assigns, forever:
AND the said Mortgagors, for their heirs and assigns do hereby covenant, promise and agree to and
with the said Mortgagee, its successors and assigns, that if the said Mortgagors, lIleir heirs or assigns,
shall neglect or refuse to keep up the aforesaid insurance, it shall be lawful for the said Mortgagee,
its successors or assign$.I to insure the said building in a S\U11 sufficient to secure payment of the said
principal debt, in case of tire, and shall recover the costs and expenses of such insurance in a suit upon
this Mortgage,
PROVIDED always. nevertheless, that if the said Mortgagors, their heirs, executors, administrators,
or assigns, do and shall well and tIUlypay, or cause to be paid unto the said Mortgagee, its successors
or assigns, the said principal S\UIl of One Huridred Thousand Dollars ($100,000,00), lawful woney,
aforesaid, on the day and time hereinbefore mentioned and appointed for payment of the same,
together with interest and costs and cbarges ofin.surance, as aforesaid. and without any deduction,
defalcation or abatement to be made of anything for or.in respect of any taxes, charges or assessments
whatsoever, then and from thenceforth, as well this present Indenture and the estate hereby granted,
a, the said recited Obligation. shall cease, determine and beCome void, anything hereinbefore
contained to tho conlnuy thereof in anywise notwithstanding. AND PROVIDED, also, thai it shall
and may be lawfi.l1 for the said Mortgagee, its successors or assigns, when and as SOon as the said
principal sum shall, in any event, become due and payable, as aforesaid. an Action of Mortgage
Foreclosure may be properly commenced upOn this Indenture of Mortgage, and proceed thereon to
judgment and execution for the recovery of said principai swn and all interest due thereon, and the
costs and expenses of insUl'ance, as aforesaid> together with an attorney's fee of ten percent (10%)
on said principal sum, besides cost of suit, without .stay of or exemption from execution or other
process, with a full release of errors; any lawl rule of court, or usage to the contrary notwithstanding.
2
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dlb\rc~iAlollic..mI~
IN WITNESS WHEREOF, the said party of the first part has to these present' set their hands and
seals, the day and year first above written.
SIGNED, SE~gi# ~ELIVERED
INTHEPRES~
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CERTIFICATE OF RESIDENCE
I hereby certify that the precise address of the Mortgagee herein is as follows:
Premier Funding
2008 Market Street
Camp Hill. P A 17011
ktL- -
~
Attorney or Agent for Mortgagee
~
3
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61bVMroon\c..mtg
COMMONWEALTHOFPENN5YLVANIA .)
55.
COUNTY OF)
On this, the day ofJune, 2003, befo.," me, a Notary Public, the undersigned officer,
personally appeared DAVID E. SIMONlC and MARYBETH SIMONlC, known to me (or
sati,factorily proven) to be the persons whose name, are subscribed to the within instrument and
acknowledged that they executed the same for the p\,lIpose therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
COMMONWEALTH OFPENNSYLVANlA )
: SS.
COUNTY OF DAUPHIN .)
RECORDED in the Recorder of Deeds Office in and for said County, in Record Book
Page
WITNESS my hand and Official Seal this
day of
,2003.
Recorder of Deeds
4
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'EXiIIBIT "A"
ALL THAT; CERTAlN tract of land situate in the Township of Swatara, County of
Dauphin and State of Pennsylvania, hounded and described as follows, to wit:
BEGINNlNG at a point three hundred and eighty (380) feet east of a point in the center
of lbe public road le.l.ding from Derry Street to the Union Depo.it Road along the northern line
of a fifty (50) foot wide street known as Evelyn Street On the hereinafter mentioned Plan of Lots;
thence northwardly alOllg the eastern line of the property now or late of Walter Lentz, one hundred
and fifty (150) feet to.a point along lbe southern line of property now or late of Lester Wirt; thence
eastwardly along the southern line of last mentioned property one hundred (100) feet to a point;
thence southwardly along lands now or late of RayniondLopko, one hundred and fifty (150) feet
to a point along the northern line of aforementioned Evelyn Street; and thence westwardly along
the northern line of said Evelyn Street. one hundred (100) feet to a point, the Place of
BEGINNING.
BEING part of Lot No.2 all the Plan. of Lots laid out by Howard A. Levan, Jr.,
Ragistered Engineer of Harrisburg, Pennsylvania, a, revised August 1, 1947.
UNDER ANi) SUBJECT to certair1 conditiOIlS and restrictions as appear male fully in the
above mentioned deed..
, HAVING THEREON ERECTED a ranch type brick dwelling known and numbered as
6120 Evelyn Street, ilarrisburg, PeIlnsylvania.
'"
AGENDA
2004 ANNUAL SHAREHOLDERS' MEETING
PREMIER FUNDING, INC.
The following items are submitted for discussion and vote at the annual meeting
of shareholders to be held in early September, 2004.
. Adoption of dividend policy requiring bi-annual dividend declaration.
. Declaration of dividend for year end 2003 and partial year 2004.
. Call for resignation of David Simonic as Director.
. Nominations for independent members of Board of Directors, fixing number
of directors on Board at 3.
. Establishment of independent compensation committee, nomination and
voting for members.
. Establishment of independent finance and audit committee, nomination and
voting for members.
. Establishment of policy requiring independence of Directors and committee
members and clarifying self-dealing prohibitions in Bylaws.
This notice constitutes the notice required by Section 2.03(b) of the Bylaws of
Premier Funding, Inc.
kennedylbogarLLC
Attorneys At Law
Email: kmccabe@kermedybogar.com
Direct Dial: (717) 909-5922
July 23, 2004
VIA FACSIMILE AND FIRST CLASS MAIL
Theresa L. Wasser
Burns, White & Hickton
120 Fifth Avenue, Suite 2400
Pittsburgh, P A 15222
RE: Request for Information - Premier Funding. Inc.
Dear Ms. Wasser:
Several weeks ago when we spoke I requested 2003 financials of Premier
Funding, Inc, as well as a date certain for the annual meeting of shareholders of
that was supposed to be rescheduled. As of the date of this letter, no financial
information has been received and the meeting has not been rescheduled. This
letter serves to reiterate those requests. Please forward the information
requested within 10 days. In addition. please send a form of proxy acceptable to
Premier Funding, Inc. so that I can attend the annual meeting of shareholders in
person as attorney-in-fact for Ms. Cecka.
Thank you for your cooperation.
KurtW. McCabe
P.O, Box 959, Camp Hill, PA 17001-0959 . Fax: (717) 909.5925
.
BURNS, WHITE & HICKTON
A lIMITED UABIlJIT COMPANY
AlTORNEYS AT LAW
Theresa L. Wasser
Attorney at Law
(412) 394-2500
tlwasse'-!@bwhllc.com
120 FIFTH AVENUE
SUITE 2400
PITTSBURGH, PA 15222-3001
THE MAXWELL CENTRE
SUITE 200
32-2QTH STREET
WHEEliNG, WEST VIRGINIA 26003
(304) 233-9500 . FAX (304) 233-1.363
(412) 394-2500 . FAX (412) 281-1352
www.bwhllc.com
July 26, 2004
VIA FACSIMILE (717) 909-5925
& U.S. MAIL
Kurt W, McCabe, Esquire
Kennedy Bogar, LLC
P.O. Box 959
Camp Hill, PA 17001-0959
RE: Premier Funding, Inc./MJ Cecka
Our File No,: 03064/139223
Dear Mr. McCabe:
I was quite surprised and disappointed by your letter to me dated July 23, 2004. As you
know, when we spoke several weeks ago, you were to speak to your client concerning a global
settlement of this matter to resolve the outstanding issues of breach of fiduciary duty, return of
computer equipment, duty to supply information obtained in the course of her tenure as a corporate
officer, as well as a possible buyout of your client's interest in Premier Funding, Inc, In that lengthy
conversation, you threatened that your client could be a "ttoublemaker," because of her position as
a minority shareholder. I explained to you that your client would be no trouble, as Premier Funding,
Ine. is happy to provide her with all documentation required by the Pennsylvania Business
Corporation Law, You seem to feel that she had higher rights than she does under that law, and
could affect the business operations adversely,
I asked you, and you agreed, if the corporate minutes could be done without benefit of a
meeting, as the sole director to be elected will be David Simonic by a majority shareholder vote. If
you are now insisting on a face to face meeting, my client will accommodate you when his schedule
permits. The financial statements will be provided to you forthwith,
Once again, I am very surprised by the tone of your letter, You will recall that you did not
respond to an e-mail I sent to you, as well as a telephone call I made to your office, In our last
telephone call you explained to me that you did not return my communications because there were
issues about your client's willingness to pay your legal bills.
Kurt W, McCabe, Esquire
July 26, 2004
Page Two
As for a formal proxy, a simple letter from your client indicating that she appoints you as her
proxy for purposes of the shareholder meeting, and that you have the full power to vote her shares
and to perform any other acts related to the corporation as she would have, will be sufficient,
Very truly yours,
{i .'"J
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Theresa L. Wasser
TLW /hlt
cc: David Simonic
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. ,shareh6lderstobeheldSeptember 14,.2004 '. '.' ,
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.'Call for.resignatioIi of DavidS in ionic as :bi.iector,. ',' '\,:,'
. 'N()rriimitions for independerifmemQ~~s of Bllard ofDirectd~,fixi~g'ouinber of
directors On Board at:3. ' I . .
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'.. 'Establishment ofii1dep~dentCo,!l1~sation cqmmittee,oorniIiation.andvotinK .
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. . Establishment of indepen<le';lt finance and audit committee, Iiomimltion~n~ .' .... .
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. Establishn1ent hfpollcy !~tiiring ind~~d~ce ofP~tlftors and comTI\ittee
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. . EJectiono'fDavid E.Simonicas th~ sofeDiIector ofP~ejnier Funding Inc. ..
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'This notice.coiistitutes t,he'no~ice required by Sect1on2.0il(b)~ftheByl~ws ofPreinier' ,
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MINUTES OF
MEETING HELD SEPTEMBER 14, 2004
Present at the meeting: Theresa Wasser, Esquire, Counsel to Premier Funding, Inc.
David Simonic, Shareholder
Via Telephone: Kurt McCabe, Esquire, appearing via proxy on behalf of M.J.
Cecka, Shareholder
The meeting was called to order by Theresa Wasser at approximately 9:05 a.m. at the
offices of Burns, White & Hickton, LLC. Although Mr. McCabe had previously indicated
that he would attend the meeting in person, he instead called Mrs. Wasser at the time
scheduled for the meeting and indicated that he would attend telephonically. As the By-laws
allow for attendance via telephone, the Shareholders' meeting proceeded with Mr. Simonic
and Mrs. Wasser at the offices of Burns, White & Hickton, LLC, and with Mr. McCabe
attending telephonically. Mr. McCabe indicated that he was not on a speaker phone, and that
no one else was present in the room with him during the Shareholders' meeting. There was an
Agenda for the meeting previously provided to all shareholders.
The first item on the Agenda was as follows:
Adoption of dividend policy requiring biannual dividend declaration.
Whereupon the matter was opened for discussion. Mr. Simonic stated that he had no
discussion on the matter. Mr. McCabe stated that he thought there should be an adoption of
the dividend policy requiring biannual dividend declaration. The matter was called for a vote.
The majority of the shares voted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no adoption of dividend policy requiring
biannual dividend policy.
The next item on the Agenda was as follows:
Declaration of dividend for year end 2003 and partial year 2004.
Whefeupon Mrs. Wasser asked Mr. McCabe for clarification of what the dividend
amounts sought would be. Mr. McCabe stated that the dividend amount for year end 2003
should be an amount previously agreed to, and that it was a complicated calculation based on
revenues and earnings. Mr. McCabe stated he did not have the formula. Mrs. Wasser asked
if there were a written document regarding this amount represented to have been previously
agreed to. Mr. McCabe stated that there had been a verbal agreement. When asked, he did
not know the date of such alleged verbal agreement, nor did he have any details of the alleged
verbal agreement. There is no corporate record of any agreement, verbal or otherwise
regarding declalations of dividends for year end 2003. It was agreed by Messrs Simonic and
McCabe that a decision regarding dividends for year 2004 was premature at this time and the
matter would not be voted upon. The matter of a declaration of a dividend for year end 2003
was called for a vote. The majority of the shares voted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no declaration of dividend for year end 2003.
The next item on the Agenda was as follows:
Call for resignation of David Simonic as Director.
Whereupon Mrs. Wasser asked if shareholder Simonic had any discussion on the
matter; he indicated that he did not. Mrs. Wasser asked if Mr. McCabe had any discussion
regarding the matter; he indicated that he did not. The matter was called for a vote. The
majority of the shares voted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no call for resignation of David Simonic as
Director.
The next item on the Agenda was as follows:
Nominations for independent matters of Board of Directors, fixing number of Directors
on Board at three.
Whereupon Mrs. Wasser asked if shareholder Simonic had any discussion on the
matter; he indicated that he did not. Mrs. Wasser asked if Mr. McCabe had any discussion
regarding the matter; he indicated that he did not. The matter was called for a vote. The
majority of the shares voted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no nominations for independent matters of
Board of Directors, fixing number of Directors on Board at three.
The next item on the Agenda was as follows:
Establishment of independent compensation committee, nomination and voting for
members.
Whereupon Mrs. Wasser asked if shareholder Simonic had any discussion on the
matter; he indicated that he did not. Mrs. Wasser asked if Mr. McCabe had any discussion
regarding the matter; he indicated that he did not. The matter was called for a vote. The
majority of the shares voted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no establishment of independent
compensation committee, nomination and voting for members.
The next item on the Agenda was as follows:
Establishment of independent finance and audit committee, nomination and voting for
members.
Whereupon Mrs. Wasser asked if shareholder Simonic had any discussion on the
matter; he indicated that he did not. Mrs, Wasser asked if Mr. McCabe had any discussion
regarding the matter; he indicated that he did not. The matter was called for a Yote. The
majority of the shares yoted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no establishment of independent finance and
audit committee, nomination and voting for members.
The next item on the Agenda was as follows:
Establishment of policy requiring independence of Directors and committee members and
clarifying self dealing prohibitions in By-laws.
Whereupon Mrs. Wasser asked if shareholder Simonic had any discussion on the
matter; he indicated that he did not. Mrs, Wasser asked if Mr. McCabe had any discussion
regarding the matter; he indicated that he did not. The matter was called for a Yote. The
majority of the shares yoted against the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that there will be no establishment of policy reqUlnng
independence of Directors and committee members and clarifying self dealing
prohibitions in By-laws.
The next item on the Agenda was as follows:
Election of David E. Simonic as the Sole Director of Premier Funding, Inc.
Whereupon Ms. Wasser asked if shareholder Simonic had any discussion on the matter;
he indicated that he did not. Ms. Wasser asked if Mr. McCabe had any discussion regarding
the matter; he indicated that he did not. The matter was called for a Yote. The majority of the
shares were voted in favor of the proposal.
WHEREFORE, the matter having been considered and voted upon,
IT IS RESOLVED, that David E. Simonic is elected as the Sole Director of
Premier Funding, Inc.
Whereupon the meeting was declared completed at 9:36 a,m. on September 14, 2004.
kennedylbogarLLC
Attorneys At Law
EmaiI: kmccabe@kennedybogar.com
Direct Dial: (717) 909-5922
November 4, 2004
Via Facsimile (610) 941-1060
Richard O'Halloran, Esquire
Burns, White & Hickton, LLC
531 Plymouth Road #500
Plymouth Meeting, PA 19462
RE: Inspection of Corporate Records
Dear Mr. O'Halloran:
You have verbally advised me that you are authorized to receive this
inspection request, thereby waiving on behalf of your client the delivery
requirements of Section 1508(b) 1, 2 and 3 of the Pennsylvania Business
Corporation Law of 1988, as amended. As a member of the Principal designated
in the attached Power of Attorney, I hereby appoint Ms, Christy Long to act as
the agent for the firm of Kennedy Bogar, LLC to inspect and make copies of the
following corporate records of Premier Funding, Inc. (the "Company"):
. Articles of Incorporation, share register and Bylaws
. All minutes of shareholder, Director and committee meetings
. 2003 and 2004 K-1 statements issued to or filed by David Simonic
. All payroll records from December 2003 to present
. All account statements at each bank at which the Company has or had
accounts from December 2003 to present
. All 2003 and 2004 quaTterly tax returns of the Company
. General ledger (AIR and AlP) since December 2003
. Audited financials of the Company for fiscal year 2003
. Contracts and invoices of or to the Company in excess of $5,000
The purpose of this request is to determine whether the business has been
properly and legally conducted and to ascertain conformance to agreements in
place between the shareholders. This letter and the accompanying POA
constitute the verified demand required by Section 1508(b) to allow Kennedy
Bogar, LLC by and through its attorneys and their duly designated agents to
perform an on-site inspection and obtain copies of the foregoing corporate
records of Premier Funding, Inc.
P.O. Box 959, Camp Hill, PA 17001-0959 . Fax: (717) 909.5925
Finally, there is an additional open matter that we discussed, namely: who
or what does Burns, White represent?
Kurt W. McCabe, Esq.
kennedyl bogar LLC
Attorneys At Law
Email: kmccabe@kennedybogar.com
Direct Dial: (717) 909-5922
November 17, 2004
VIA FACSIMILE TO 610-941-1060
Richard O'Halloran, Esquire
Burns, White & Hickton, LLC
531 Plymouth Road #500
Plymouth Meeting, PA 19462
RE: Premier Funding;, Inc.
Dear Mr. O'Halloran:
This letter is to notify you of your client's failure to respond to my
November 4, 2004 request for corporate information on Premier Funding, Ine.
within the statutory time period.
Kurt W. McCabe
P.O. Box 959, Camp Hilt PA 17001-0959 . Fax: (717) 909.5925
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JAN-2S-2005(FRI) 15: 13
Schutjer 1 Sogar LLC
(FAX)i1i 909 5925
P 002/050
IN THE COURT OF COMMON I?LEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
.
.
:
Plaintiff,
.
.
No. 05-371; Civil Term
:
v.
:
:
PREMIER FUNJ:)ING, INC. and :
DAVID SIMONIC, :
:
Defendants.
.
.
CIVIL AcnON - LAWfEQUITY
ACCEPTANCE OF SERVICl~
I accept service of the
Complaint on behalf ()f Defendants. Premier
Fundinl!. Inc. and David Simonic.
and cert:i!:y" that I am authorized to do
SQ.
Dated: J /9.10('"
By: ~~
~~~""'u.,
BURNS, WHITE & l-IICI<TON
531 Plymouth Road, Suite 500
Plymouth Meeting, PA 19462
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MAR 14 20051'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
MJ CECKA,
Plaintiff,
v.
PREMIER FUNDING, INC. and
DAVID SIMONIC
Defendants.
CIVIL TERM
No. 05-376
NOTICE TO PLEAD
NOTICE
You have been sued in court. If you wish to
defend against the claims set forth in the fonowing pages
you must take action within twenty (20) days after this
complaint and notice are served, by entering a written
appearance personally or by attorney and filing in writing
with the court your defenses or objections to the claims set
forth against you. You 8re 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
LA WYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
AVISO
Le han demandado a usted en la corte. Si usted
quiere defenderse de estas demandas expuestas en las
paginas siguientes, usted tiene veinte (20) dias de plaza al
partir de la fecha de la demanda y 13 notificacion. Hace
falta asentar una comparencia escrita 0 en persona 0 con
un abogado y entregar a la corte en forma escrita 5US
defensas 0 5US objeciones alas demandas en contra de su
persona. Sea avisado que si usted no se defiende, la corte
tomanl medidas y puede continuar la demands en contra
suya sin previo aviso 0 notificacion. A demas, la corte
puede decidir a favor del demandante y requiere que usted
cumpla con todas las provisiones de esta demanda. Usted
puede perder dinero 0 sus propiedades u otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO
INMEDIATA-MENTE. SI NO TIENE ABOGADO 0 SI
NO T1ENE EL DINERO SUFICIENTE DE PAGAR TAL
SERYICIO, V A Y A EN PERSONA 0 LLAME POR
TELEFONO A LA OFICINA CUY A DlRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR
DON DE SE PUEDE CONSEGUlR ASISTENCIA LEGAL.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
(800) 990-9108
BURNS, WHITE & HICKTON
BY: RICHARD A. O'HALLORAN, ESQUIRE
PA ID No. 41460
ANGELA Y. ALLEN, ESQUIRE
PA ID No, 83981
531 Plymouth Rd., Suite 500
Plymouth Meeting, P A 19462
(610) 832-1111
Attorneys for Premier Funding, Inc. and
David Simonic
MJ CECKA,
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
Plaintiff,
v.
CIVIL TERM
No. 05-376
PREMIER FUNDING, INC. and
DAVID SIMONIC
Defendants.
ANSWER, NEW MATTER and COUNTERCLAIM
Premier Funding, Inc. ("Premier") and David Simonic ("Simonic") (collectively
"Defendants"), by and through their attorneys, Bums, White & Hickton, LLC, respond as
follows to the Complaint filed by MJ. Cecka:
I. Admitted upon information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6, Denied as stated. Defendants deny that in July 2001 Defendant Simonic held
discussions with Plaintiff about commencing a mortgage brokerage business together and avers
to the contrary that Defendant commenced the business in May 200 I without discussions with
Cecka. Defendants further aver that Defendant Simonic made application for a mortgage
broker's license in May of2001.
7. Denied. Defendants deny that Plaintiff and Defendant Simonic agreed they would
be equal, 50%/50% shareholders of Premier and Defendants aver to the contrary that Defendant
and Plaintiff did not agree to be equal, 50%/50% shareholders. Defendants further aver that
Cecka agreed to a 5 I %/49% split of shares as evidenced by her signature on the Record of
Certificates Issued and Transferred. By way of further, and before instituting this litigation,
Plaintiffs counsel admitted that Plaintiff was a 49% of Premier.
8. Admitted,
9. Denied, After reasonable investigation, Defendants are without knowledge or
information sufficient to form a belief as to the truth or falsity of the allegations therein and,
accordingly, those allegations are denied. To the extent a response is required, Defendants deny
that Defendant Simonic agreed to be equal, 50%/50% shareholders with Plaintiff and avers to the
contrary that he did not so agree.
10. Denied, Defendants deny that Plaintiff and Defendant Simonic each tendered a
$25,000 capital contribution on October 10, 2001 in exchange for a 50% stake in the common
shares of Premier and aver to the contrary that Plaintiff and Defendant Simonic did not each
tender a capital contribution on October 10, 2001 in exchange for a 50% stake in the common
shares of Premier. By way of further response, Defendant Simonic's 26 shares were issued in
May of2001 with his capital contribution to be made by October of2001, with Defendant
Simonic providing operating capital to Premier of May of2001 until October of2001. Plaintiffs
shares were issued in October of 2001 when she made her capital contribution, however at no
time before that did she provide any operating capital.
11. Denied. Defendants deny that Defendant Simonic represented to Plaintiff that his
accountant had advised him that Premier could not function unless someone had a controlling
interest and avers to the contrary that he made no representations to that effect to Plaintiff.
12. Denied, Defendants deny that Defendant Simonic "crafted" a Board Resolution
issuing Plaintiff24 shares and issuing himself26 shares without the knowledge or consent of
Plaintiff and avers to the contrary that he did not "craft" a Board Resolution without the
knowledge or consent of Plaintiff. By way of further answer, after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the meaning
Plaintiff subscribes to the term "crafted" and, accordingly, all allegations relating to that term are
denied. Defendants further aver that Defendant Simonic's 26 shares were issued in May 2001
and that Plaintiff signed the Record of Certificates Issued and Transferred acknowledging receipt
of her 24 shares on October 25, 2001.
13. Denied, Defendants deny that Plaintiffs shares were substantially diluted and
aver to the contrary that Plaintiffs shares were not diluted. Defendants further aver that
Defendant Simonic's and share purchase occurred six (6) months before Plaintiffs contribution
and share purchase. Defendants incorporate herein by reference their response to paragraph 10,
above. Defendants also aver that the price paid for the shares does not affect ownership
percentages.
14. Denied. Defendants deny that Defendant Simonic promised Plaintiff she would
receive a 50% ownership in Premier and avers to the contrary that he never made such promises
to Plaintiff. After reasonable investigation, Defendants are without knowledge or information,
sufficient to form a belief as to the truth or falsity of the remaining allegations in paragraph 14,
therefore, said allegations are denied.
15. Admitted.
16. Denied as stated. After reasonable investigation, Defendants are without
knowledge or information sufficient to fonn a belief as to the meaning which Plaintiff subscribes
to the phrase "self-proclaimed" in this context and accordingly the allegations relating thereto are
denied.
17. Denied as stated. Plaintiff was appointed Secretary and Treasurer during a
Special Director's Meeting on October 25, 2001, The Corporation Bureau records speak for
themselves,
18. Admitted.
19. Admitted in part; denied in part. Defendants admit that Plaintiff did not perform
her duties as Secretary as described in the Bylaws. Defendants deny that Plaintiff was precluded
from performing her duties as described in the Bylaws and Defendant Simonic avers to the
contrary that Plaintiff was not precluded from performing her duties, but instead Plaintiff chose
not to perform her duties,
20. Admitted,
21. Admitted in part; denied in part, Defendants admit that Plaintiff shared check
signing capability and did not perform her job as Secretary. Defendants deny that other Premier
employees shared check signing ability and aver to the contrary that no other employees had
check signing ability. Defendants deny that Plaintiff was precluded from performing her job as
Secretary and avers to the contrary that Plaintiff was not precluded from performing her job as
Secretary, but instead Plaintiff chose not to perform her duties.
22, Admitted. By way of further answer, Plaintiff was Secretary and Treasurer in
name only because she chose not to perform the functions of those offices,
,..
23. Denied. Defendants deny that $100,000 was missing and unaccounted for by
Premier and aver to the contrary that $100,000 was not missing and unaccounted for by Premier.
Defendant Simonic further avers the $100,000 was a legal loan (the "Loan") made with full
disclosure to Plaintiff and by the Board of Directors. By way of further response, Defendant
Simonic signed a Note and Mortgage to Premier Funding, Inc. Furthennore, the Loan was
acknowledged by the Department of Banking and no violations ofthe Mortgage Bankers and
Brokers, Consumer Equity Protection Act and Secondary Mortgage Loan Act were found with
regard to the Loan or any other transactions of Premier Funding, Inc. or David Simonic. By way
of further answer, Premier's financial records accurately reflected the Loan and it was properly
accounted for in Premier's books as of the time the Loan was made.
24, Denied. Defendants deny that Plaintiff "later discovered" the Loan from Premier
to Defendant Simonic and his wife, Marybeth Simonic and avers to the contrary that Plaintiff
was infonned of the Loan prior to the date of the loan closing and with her consent. Defendants
further deny that the loan was an "illegal loan" and aver to the contrary that said Loan was legal
and that no violations of the Mortgage Bankers and Brokers, Consumer Equity Protection Act
and Secondary Mortgage Loan Act were found by the Pennsylvania Department of Banking with
regard to the Loan or any other transactions of Premier Funding, Inc. or David Simonic.
25. Denied as stated. A true and correct copy of the Note and Mortgage are attached
to Plaintiffs Complaint as Exhibit "A"; however, Defendants deny that those documents
evidence an illegal loan and aver to the contrary that the Loan was legal.
26. Denied. Defendants deny that the Loan was made from Premier to the Simonies
without consultation, knowledge or consent of Plaintiff and aver to the contrary that Plaintiff was
infonned of the Loan prior to the date of the Loan closing and said Loan was made with her
knowledge and without any objection from Plaintiff. Defendants further deny that the Loan was
"illegal" and aver to the contrary that it was legal.
27, Denied. The allegations of this paragraph are conclusions oflaw to which no
answer is required and which, as a result, are deemed denied pursuant to Pennsylvania Rules of
Civil Procedure.
28. Denied. Defendants deny that the Loan referenced in Plaintiffs Complaint was
an "illegal loan" and aver to the contrary that the Loan was legal. Defendants further deny that
Premier's operating license and Plaintiff s livelihood were jeopardized and aver to the contrary
that Premier's operating license and Plaintiffs livelihood were not jeopardized. It is further
denied that Plaintiff was so motivated in applying for an operating license and it is averred to the
contrary that Plaintiff was motivated by a desire to take business from Premier and otherwise
compete with Premier.
29. Denied. Defendants deny that the Loan was an "illegal loan" and avers to the
contrary that the Loan was not illegal. As to the remaining allegations, Defendants are without
knowledge or information, sufficient to form a belief as to the truth or falsity of the allegations,
therefore, said allegations are denied.
30. Denied. After reasonable investigation, Defendants are without knowledge or
information, sufficient to form a belief as to the truth or falsity of the allegations in paragraph 30,
therefore, said allegations are denied.
31. Denied. After reasonable investigation, Defendants are without knowledge or
information, sufficient to form a belief as to the truth or falsity of the allegations in paragraph 30,
therefore, said allegations are denied.
32, Admitted in part; denied in part. Defendants admit that an oral compensation
agreement was in place on or about October 200 I providing for the payment of 60% of the
commissions on loans they each originated and the remaining 40% would be pooled together
with 50% of commissions generated by three (3) loan originators employed by Premier from
which business operating expenses were paid. Defendants deny that a Dividend Policy was in
place and avers to the contrary that Dividends were declared by the Board of Directors as the
business performance and outlook of Premier permitted,
33. Denied. Defendants deny that a "Compensation Agreement and Dividend Policy"
existed as defined by Plaintiff was in place in October 2001 and aver to the contrary that no
"Dividend Policy" was in effect. Defendants further deny that the amounts remaining after
payment of the business operating expenses from the pooled funds were distributed as
shareholder dividends and aver to the contrary that dividends were declared by the Board of
Directors as the business performance and outlook of Premier permitted,
34. Admitted in part; denied in part. Defendants admit that Plaintiff and Defendant
Simonic had to generate loans and commissions to receive Commission Payment. Defendants
deny that a "Compensation Agreement and Dividend Policy" as defined by Plaintiff were in
place in October 2001 and aver to the contrary that no "Dividend Policy" was in effect.
35. Denied. Defendants deny that a "Compensation Agreement and Dividend Policy"
as defined by Plaintiff were in place in October 2001 and aver to the contrary that no "Dividend
Policy" was in effect. As no "Dividend Policy" was in effect, Defendants further deny that any
agreements between Plaintiff and Defendants did not require the Plaintiff to generate loans or
commissions for Premier to receive dividend payments.
36. Admitted in part; denied in part. Defendants admit that Plaintiff received
commission payments under a compensation agreement. Defendants deny the existence a
"Compensation Agreement and Dividend Policy" as defined by Plaintiff and aver to the contrary
that no such "Dividend Policy" was in effect. It is further denied that Plaintiffreceived
dividends in accordance with such Policy and it is averred to the contrary that Plaintiff did not
receive such dividends,
37, Denied as stated. Defendants deny that Plaintiff was entitled to receive dividends
since October of 2003 and aver to the contrary that she was not so entitled. By way of further
answer, Premier has neither declared nor paid dividends to any shareholder at any time since
October 01'2003.
38. Denied. To the extent paragraph 38 alleges that at certain unidentified times
Plaintiff made verbal requests to certain unidentified people, said allegations are denied as after
reasonable investigation Defendant is without knowledge or information sufficient to form a
belief as to said allegations.
39. To the extent that this paragraph sets forth allegations concerning the contents of
Exhibit "B," said document speaks for itself. By way of further response, Exhibit "B" does not
contain a request for the "memorialization" (sic) of the Compensation Agreement and Dividend
Policy in writing, but only the "adoption" of a dividend policy.
40. Denied as stated, After reasonable investigation, Defendants are without
sufficient knowledge as to the meaning which Plaintiff subscribes to the phrase "self-appointed"
in this context and, accordingly, the allegations relating thereto are denied. By way of further
response, Defendants deny Defendant Simonic is the "purported" majority shareholder and aver
to the contrary that Defendant Simonic is the majority shareholder.
41, Denied as stated. After reasonable investigation, Defendants are without sufficient
knowledge as to the meaning which Plaintiff subscribes to the phrase "self-appointed" in this
context and, accordingly, the allegations relating thereto are denied. By way of further response,
Defendants deny Defendant Simonic is the "purported" majority shareholder and aver to the
contrary that Defendant Simonic is the majority shareholder.
42. Denied. Defendants deny that a "Compensation Agreement and Dividend Policy"
as defined by Plaintiff were in place in October 2003 and aver to the contrary that no "Dividend
Policy" was in effect. Defendants further deny that dividends were or are owing to Plaintiff from
Defendant Premier for operations from October 2003 through present and aver to the contrary
that no such dividends were or are owing. Defendant incorporate herein by reference their
answer so paragraph 37, above.
43. Admitted in part; denied in part. Defendants admit that the compensation
agreement with Plaintiff did not provide for the payment of salary and bonus to Officers, but
only provided for commission. Defendants deny that a "Compensation Agreement and Dividend
Policy" as defined by Plaintiff were in place in October 2001 and aver to the contrary that no
"Dividend Policy" was in effect.
44. Admitted in part; denied in part, It is admitted that Plaintiff and Defendant
Simonic did not receive a salary as officers of Premier prior to Plaintiff's departure. It is denied
that the payment of a salary is contrary to past practice and contravenes any compensation
agreement that might previously have been in effect.
45. Denied. Defendants deny that Defendant Simonic has paid himself a salary or
bonus to avoid making dividend payments allegedly owed to Plaintiff and aver to the contrary
that Defendant Simonic has not paid himself a salary or bonus for the purpose of avoiding
making dividend payments, Defendants further aver that Defendant Simonic has not been paid a
bonus since October 2003.
46. Admitted,
47, Denied. Defendants deny that it did not comply with the verbal request of
Plaintiffs counsel and aver to the contrary that Premier forwarded information to Plaintiff in
March or April 2004 via United States mail. Defendants further aver that Defendants' counsel
agreed to provide financial information on May 3, 2004 and requested Plaintiffs counsel to
contact her to discuss the issue. Plaintiffs counsel failed to respond to the request and
accordingly no information was provided,
48, Denied, Defendants deny that Plaintiff was "forced" to reiterate the request to
review the financial information by letter dated July 23,2004 and aver to the contrary that
Plaintiff was not forced to reiterate the request. By way of further response, Defendant provided
the financial information to Plaintiff via mail in March or April 2004. Additionally, Defendants'
counsel agreed to provide the financial information via a letter dated May 3, 2004 and asked
Plaintiffs counsel to contact her. As of May 27,2004, Plaintiffs counsel had still failed to
contact Plaintiffs counsel. The information was forwarded after Plaintiffs counsel finally
consented to receive it by mail on August 9, 2004.
49. Denied. Defendants deny that it did not comply with the July 23 letter and aver to
the contrary that the financial information was provided to Plaintiff via mail in March or April
2004 before the request was even made and again on August 9, 2004 through Defendants'
counsel.
50. To the extent that this paragraph sets forth allegations concerning the contents of
Exhibit "D," said letter speaks for itself.
5 \. Denied as stated. Defendants had previously forwarded the financial information
to Plaintiff and Plaintiff was again supplied with the intormation through Defendants' counsel.
By way of further answer, Detimdants incorporate herein their answers to paragraphs 47, 48 and
49.
52. Denied as stated. The financial statements provided to Plaintiff are not audited by
GAAP standards, but are audited by GAAS standards as required by FHA and HUD. By way of
further response, Defendants 2003 financial statements were not available until 2003 ended.
53. To the extent that this paragraph sets forth allegations concerning the contents of
Exhibit "E," said agenda speaks for itself.
54. To the extent that this paragraph sets forth allegations concerning the contents of
Exhibit "F," said minutes speak for themselves. By way of further answer, it is denied that
Plaintiff's agenda items were designed to protect minority rights and it is averred to the contrary
that the proposal were not so designed.
55. Denied. Defendants deny that Defendant Simonic stated at the shareholder
meeting that he was moving the operations of the shareholder meeting and was paying in excess
of $20,000.00 for such move and avers to the contrary that Defendant Simonic did not state at
the shareholder meeting that he was moving the operations of the shareholder meeting and was
paying in excess of $20,000.00 for such move. By way of further response, Defendant Simonic
informed Plaintiffs counsel that its current space was being sold and therefore, Premier had 60
days to relocate its base of operations. Defendant Simonic indicated that it could cost up to
$20,000.00 for this unexpected move.
56. To the extent that this paragraph sets forth allegations concerning the contents of
Exhibit "G," said letter speaks for itself.
57. Denied. To the extent that this paragraph sets forth allegations concerning the
contents of Exhibit "H," said letter speaks for itself To the extent a response is required,
Defendants deny that it refused to respond to the request of Plaintiff as required by Section 1508
and avers to the contrary that it offered Plaintiff dates on which she could view the documents.
By way of further response, Plaintiffs counsel failed to respond to Defendants' counsel's offer
of dates to view the documents and/or asked Plaintiff, through her counsel for convenient dates
for an inspection. Plaintiff s counsel never provided Defendants' counsel with such dates. Any
inability ofPlaintiffto inspect documents at that time was solely the fault of Plaintiff and/or her
counsel.
COUNT I-VIOLATION OF DUTY TO PROVIDE FINANCIALS
CORPORATE LAW CLAIM
58, Defendants incorporate by reference paragraphs I through 57 as set forth above.
59. Denied. The allegations of this paragraph are conclusions oflaw to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure, To the extent a response is required, Defendants financial information is prepared in
accordance GAAS as required by HUD and which meets Pennsylvania requirements.
60, Denied. Defendants deny that Premier is required to produce audited financials in
accordance with GAAP for the Pennsylvania Department of Banking. By way of further
response, Defendant Premier is only required to produce audited financials for HUD for its' FHA
license which financials are done in accordance with GAAS.
61. Denied. The allegations of this paragraph are conclusions of law to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure, To the extent a response is required, Defendants deny the allegations of Paragraph 61
as Defendants are without information as to what meaning Plaintiff attaches to the word
"'numerous.~~
62. Denied. Defendants deny that it continues to refuse and/or fail to produce
financial information that is prepared in accordance with GAAP as required by Section 1554 of
the BCL and avers to the contrary that Defendants have provided financial information prepared
by GAAS and that said information was provided to Plaintiff and Plaintiffs counsel nearly six
(6) months before this lawsuit was instituted. By way of further answer, Defendants aver that
their financials are prepared in a manner consistent with Pennsylvania law.
63, Denied, The allegations of this paragraph are conclusions oflaw to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure. To the extent a response is required, Defendants deny its conduct constituted a
breach of any duty and that its conduct was dilatory, obdurate and vexatious and avers to the
contrary that at all times relevant hereto, Defendants acted in a careful and proper manner.
Defendants further aver that said information was provided to Plaintiff and Plaintiffs counsel
nearly six (6) months before this lawsuit was instituted, By way of further answer, Plaintiff and
her counsel have completely failed to follow up on offers made by Defendants to allow for
review of documents,
64. Denied, Defendants deny that any of their conduct was willful or reckless and
aver to the contrary that at all times relevant hereto Defendants acted properly. By way of further
response, Defendants aver that said information was provided to Plaintiff and Plaintiff s counsel
nearly six (6) months before this lawsuit was instituted,
WHEREFORE, Defendants, Plemier Funding, Inc. and David Simonic, hereby demand
judgment in their favor and against Plaintiffwith costs of this litigation, including attorneys' fees
and interest.
COUNT II-VIOLATION OF DUTY TO PROVIDE FINANCIALS
BREACH OF CONTRACT CLAIM
65. Defendants incorporate by reference paragraphs 1 through 65 as set forth above.
66. Denied. The allegations of this paragraph are conclusions of law to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure. To the extent a response is required, Defendants have provided the relevant financial
information to Plaintiff.
67. Denied. The allegations of this paragraph are conclusions oflaw to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure.
68. Denied. The allegations ofthis paragraph are conclusions of law to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure, To the extent a response is required, Defendants deny that they have breached the
By- Laws and aver to the contrary that Defendants have not breached the By-Laws and have
provided the relevant financial information.
69. Denied. The allegations of this paragraph are conclusions oflaw to which no
answer is required and which are deemed denied pursuant to Pennsylvania Rules of Civil
Procedure. To the extent a response is required, Defendants deny its conduct constituted a
breach of any duty and that its conduct was dilatory, obdurate and vexatious and avers to the
contrary that at all times relevant hereto, Defendants acted in a careful and proper manner.
Defendants further aver that said information was provided to PlaintitI and Plaintiffs counsel
nearly six (6) months before this lawsuit was instituted. By way of further answer, Plaintiff and
her counsel have completely failed to follow up on offers made by Defendants to allow for
review of documents.
WHEREFORE, Defendants, Premier Funding, Inc. and David Simonic, hereby demand
judgment in their favor and against Plaintiff with costs of this litigation, including attorneys' fees
and interest.
COUNT III-BREACH OF COMPENSATION AGREEMENT
AND DIVIDEND POLICY
70. Defendants incorporate by reference paragraphs I through 69 as set forth above,
71. Admitted in part; denied in part. Defendants admit that commissions based on
loan origination were paid. Defendants deny that a "Compensation Agreement and Dividend
Policy" as defined by Plaintiff was in effect and aver to the contrary that no "Dividend Policy"
was in effect. Defendants further aver that dividends were only to be declared by the Board of
Directors as the business performance and outlook of Premier permitted.
72. Denied, Defendant Simonic denies he breached any agreement with Plaintiff and
avers to the contrary that he did not breach any agreement with Plaintiff. Defendant further
denies that Plaintiff is owed any dividends since October 2003 in light of profits, the HUD/F A
required statutory reserves and general business outlook and ongoing cash flow considerations.
73, Denied. Defendant Simonic denies that he breached any agreements with Plaintiff
and avers to the contrary that he did not breach any agreement with Plaintiff. Defendants further
deny that Plaintiff is owed any dividends since October 2003 in light of profits, the HUD/FHA
required statutory reserves and general business outlook and ongoing cash flow considerations.
Defendant denies that a "Compensation Agreement and Dividend Policy" as defined by Plaintiff
was in effect and aver to the contrary that no "Dividend Policy" was in effect.
74. Denied. Defendants deny that they have failed to produce adequate Premier
financials and aver to the contrary that Defendant did produce adequate Premier finaicial records,
WHEREFORE, Defendants, Premier Funding, Inc. and David Simonic, hereby demand
judgment in their favor and against Plaintiff with costs of this litigation, including attorneys' fees
and interest.
COUNT IV-DEFECTIVE SHARE ISSUANCE. FRAUD.
BREACH OF CONTRACT. REMOVAL
75. Defendants incorporate by reference paragraphs I through 74 as set forth above,
76. Denied. Defendants deny that Defendant Simonic agreed to issue 50% of the
Premier shares to Plaintiff in exchange for her resigning other employment, making capital
contribution equal to Defendant's, as well as for other good and valuable consideration and aver
to the contrary that Defendant Simonic did not so agree,
77, Denied, Defendants deny that any such agreement existed or that they breached
any agreement with Plaintiff and aver to the contrary that no such agreement existed and
Defendants did not breach any agreement with Plaintiff.
78. Denied. Defendants specifically deny that Defendant Simonic agreed to issue
50% of the Premier shares to Plaintiff and avers to the contrary that Defendant Simonic did not
agree to issue 50% of the shares to Plaintiff. Defendants further deny that Plaintiff relied on any
representations of Defendant Simonic that Plaintiff would issue 50% of the Premier shares to
Plainitff. By way of further response, Defendants specifically deny that Defendants actions or
representations constituted a fraud and aver to the contrary that Defendants actions or
representations did not constitute fraud.
79, Denied. Defendant deny Plaintiff is a de facto shareholder in pari passu with
Defendant and aver to the contrary that Plaintiff is not a de fClctor shareholder in pari passu with
Defendant.
80. Denied. Defendant denies that any "defective share issuance" occurred or that
they engaged in fraudulent, dishonest and gross abuse of discretion and aver to the contrary that
Defendant did not engage in any fraudulent, dishonest or gross abuse of discretion and that at all
times relevant hereto Defendants acted properly. By way of further answer at all times relevant
Plaintiff has engaged in dishonest and obdurate conduct, which has and continues to cause
Defendants injury.
WHEREFORE, Defendants, Premier Funding, Inc. and David Simonic, hereby demand
judgment in their favor and against Plaintiff with costs of this litigation, including attorneys' fees
and interest.
COUNT V-FREEZE-OUT. ABUSE OF MAJORITY
SHAREHOLDER STATUS. CORPORATE WASTE
81. Defendants incorporate by reference paragraphs 1 through 80 as set forth above.
82. Admitted in part; denied in part, Defendants admit that Dave Simonic properly
appointed himself as sole Director of his Premier. Defendants deny that any defective share
issuance occurred as alleged by Plaintiff and aver to the contrary that no defective share issuance
occurred.
83. Denied. Defendants deny that a defective share issuance occurred or that he
froze out Plaintiff and avers to the contrary that a defective share issuance did not occur and he
did not freeze out Plaintiff.
84. Denied. Defendants deny that they have refused to produce financial statements
and aver to the contrary that financial statements were produced to Plaintiff. Defendants further
deny that Defendant Simonic abused his status as majority shareholder and aver to the contrary
that Defendant Simonic did not abuse his status as majority shareholder.
85. Denied. Defendants deny that it refused to permit Plaintiff to inspect the books
and records pursuant to Section 1508 of the BeL constitutes a freeze-out and abuse of majority
shareholder status and avers to the contrary that Defendants have at all times acted properly.
86. Denied. Defendants deny that its refusal at the 2004 shareholder meeting to adopt
the agenda proposed Plaintiff is a result of a freeze-out of Plaintiff or constitutes an abuse of
majority shareholder status of Defendant Simonic and avers to the contrary that it did not deny
Plaintiff's agenda as a result of a freeze-out and that did Defendant Simonic did not abuse his
majority shareholder status.
87. Denied. Defendant denies that Defendant Simonic authorization ofthe Loan was
without permission of Plaintiff or resulted in the freeze-out of Plaintiff and avers to the contrary
that the Loan was not illegal and did not result in the freeze-out of Plaintiff. Defendant further
denies that any loan constitutes an abuse of discretion of his majority shareholder status and
avers to the contrary that Defendant did not abuse his discretion as a majority shareholder.
Defendant further denies that it made any "illegal loan" as termed by Plaintiff and avers to the
contrary that no illegal loan was made, By way of further answer, Defendants aver that the Loan
was beneficial to Premier in that the interest paid on the Loan was at a higher rate than PremieI
was earning on its investments.
88, Denied. Defendants deny a breach of any compensation agreement occurred
and/or is the result of a freeze-out of Plaintiff and aver to the contrary that no breach of a
compensation agreement occurred and/or is the result of a freeze-out of Plaintiff. Defendants
further deny that a "Compensation Agreement and Dividend Policy" as detlned by Plaintiff was
in etfect and aver to the contrary that no "Dividend Policy" was in effect.
89. Denied. Defendants deny that the alleged moving expenses were $20,000,00 and
aver to the contrary that the alleged moving expenses were not $20,000. Defendants further
deny that any corporate waste has occurred and aver to the contrary that no corporate waste has
occurred. By way of further answer, at times relevant with respect to the move, Defendants
acted properl y and used good business judgment.
90. Denied. Defendants deny that any expenditures made by Defendant Simonic
were excessive and constituted corporate waste and aver to the contrary that no expenditures
made by Defendants were excessive or constituted corporate waste.
91. Denied. Defendants deny that any excessive expenditures or corporate waste
occurred and aver to the contrary that no excessive expenditures or corporate waste occurred,
Defendants further deny that they engaged in a freeze-out of Plaintiff or an abuse of majority
shareholder status and aver to the contrary that they did not engaged in a freeze-out of Plaintiff
and did not abuse the majority shareholder status.
92. Denied, Defendants deny that any freeze-out of Plaintiff, breach of any
Compensation and Dividend Policy, illegal loan or corporate waste occurred by Defendants and
aver to the contrary that no freeze-out of Plaintiff, breach of any agreement or corporate waste
occurred. Defendants further deny that their conduct constituted fraudulent, dishonest or a gross
abuse of discretion in violation of Section 1726 of the BCL. Defendants further deny that a
"Compensation Agreement and Dividend Policy" as defined by Plaintiff was in effect and aver to
the contrary that no "Dividend Policy" was in effect.
WHEREFORE, Defendants, Premier Funding, lnc, and David Simonic, hereby demand
judgment in their favor and against Plaintiff with costs ofthis litigation, including attorneys' fees
and interest.
NEW MATTER PURSUANT TO RULE 1030
1. Plaintiffs cause of action is barred by the applicable statute of limitations.
2, Plaintiff fails to state a cause of action for which relief can be granted.
3. Plaintifffailed to mitigate her damages,
4, Defendants forwarded Plaintiff the financial information on two occasions,
identified herein, prior to the institution of this suit.
5. Defendants' counsel sent the requested financial information on August 9, 2004.
See letter from Defendants' counsel dated August 9, 2004, attached hereto as Exhibit "A."
6. Defendants' counsel has provided Plaintiffs counsel with several dates and times
for Plaintiff which to view the requested corporate information. Defendants' counsel has also
requested dates from Plaintiff s counsel which were good for him and his client and he has failed
to respond.
7. On May 3, 2001, Defendant Simonic was issued 26 shares of Premier. See
Shareholder's Agreement dated May 3, 2001, attached hereto as Exhibit "B."
8. Defendant Simonic applied for and was granted a broker's license in May of
2001, which license was granted shortly thereafter.
9, Plaintiff acknowledged receipt of her 24 shares on October 25,2001, See Record
of Certificates 1ssued and Transferred, attached hereto as Exhibit "c."
10, The Board of Directors of Premier consented to and accepted Plaintiffs offer of
$25,000 for 24 shares of the corporation on October 25,2001. See Director's Consent to
Corporate Action, attached hereto as Exhibit "D."
11. A review and examination of Premier Funding was performed by the Department of
Banking on August 16, 2004. See letter dated September 8, 2004 from Department of Banking,
attached hereto as Exhibit "E."
12. The Department of Banking found no violations regarding the loan made by Premier
Funding, Inc. to David and Marybeth Simonic, See letter dated September 8, 2004 from
Department of Banking, attached hereto as Exhibit "E,"
13, At all times relevant hereto Defendants acted upon and demonstrated good business
judgment.
WHEREFORE, Defendants, Premier Funding, Inc. and David Simonic, hereby demand
judgment in their favor and against Plaintiff with costs ofthis litigation, including attorneys' fees
and interest.
COUNTERCLAIM
COUNT I-CONVERSION
I. Plaintiff took two (2) laptops from Premier upon her departure from Premier
without permission of Defendants and without payment for same.
2. Plaintiff filed expense reports immediately prior to her departure from Premier
and with knowledge of her impending departure for her country club dues and gift certificates for
her realtors and then wrote checks for those unauthorized expenses without knowledge or
permission of Defendants.
3. Upon information and belief, when Plaintiffleft Defendant's employ she also
took files, lender information and approval letters from HUD and FHA.
4, Plaintiff deprived Premier of its property and interfered with Plaintiffs property
by:
a. The use of the atorementioned property was without Defendants authorization or
knowledge.
b. In addition, upon information and belief, Plaintiff continues to possess and use
and exercise dominion and control over the proprietary information in the laptops.
c. As a direct and proximate result of Plaintiffs actions as aforesaid, Defendants
have suffered and continues to suffer harm,
WHEREFORE, Defendants respectfully requests that this Honorable Court enter
judgment in its favor against Defendants in an amount in excess of $50,000 together with
punitive damages, costs and attorneys' fees.
COUNT II-BREACH OF FIDUCIARY DUTY OF MINORITY SHAREHOLDER
5. Defendants incorporate by reference the allegations set forth in paragraphs 1
through 16, above, as fully as though the same were set forth herein at length.
6. Plaintiff owed a fiduciary duty as a minority shareholder to Defendant, Premier
Funding and as an officer of Premier.
7, Plaintiff obtained her own broker's license while still employed by Defendant
Premier and while acting as a minority shareholder.
8. Regardless ofthat duty, Plaintiff opened a competing mortgage brokerage
company while still an officer and shareholder of Premier Funding.
9. Plaintiff hired away a key employee of Defendant Premier Funding, lnc, to work
at a competing company,
10. Plaintiff used proprietary information from Defendant Premier Funding, Inc. to start
her own competing brokerage company while an oftlcer and shareholder of Defendant Premier.
In addition, and upon information and belief, Plaintiff has and continues to use Premier's
proprietary information to her own benefit and to the detriment of Premier and Simonic.
II. In addition to the above, Plaintiff has and continues to refuse to cooperate in the
running of the affairs of Premier by, among other things, refusing to sign papers necessary for
Premier to do business with other lenders. Upon information and belief, Plaintiffs refusals in
this regard are spiteful and without any reasonable basis and are made and intended solely for the
purpose of causing harm to Defendants.
12. As a direct and proximate result of Plaintiff s actions as aforesaid, Defendants
have suffered and continues to suffer harm.
13. Furthermore, as a result of Plaintiff s actions, she has breached her fiduciary duty
as a minority shareholder.
WHEREFORE, Defendants respectfully requests that this Honorable Court enter
judgment in its favor against Defendants in an amount in excess of $50,000 together with
punitive damages, costs and attorneys' fees.
COUNT III - INTERFERENCE WITH A CONTRACTUAL
OR PROSPECTIVE CONTRACTUAL RELATIONSHIP
14. Defendants incorporate by reference the allegations set forth in paragraphs 1
through 13, above, as fully as though the same were set forth herein at length.
15, Plaintiff obtained her brokerage license while still employed by Defendant
Premier Funding.
16, Plaintiff may have used that license to close loans on behalf of companies other
than Defendant Premier Funding and/or is closing loans through another company to
Defendants'detriment.
17, Plaintiff may currently be operating a brokerage operation (the "competing
business") that directly competes with Defendant Premier Funding.
18. Plaintiff intentionally operates the competing business with the express purpose
and intent of diverting customers from Premier Funding and for the purpose of preventing
Defendant from obtaining those clients,
19. Plaintiffs actions were done without Defendants authorization or knowledge.
20. As a result of Plaintiffs actions, Defendants have been injured.
WHEREFORE, Defendants respectfully requests that this Honorable Court enter
judgment in its favor against Defendants in an amount in excess of$50,000 together with
punitive damages, costs and attorneys' fees.
COUNT IV -CORPORATE DEFAMATION
21. Defendants incorporate by reference the allegations set forth in paragraphs I
through 20, above, as fully as though the same were set forth herein at length.
22. Upon information and belief, Plaintiff has spread false statements concerning
Defendants' financial condition and viability.
23, The statements that Plaintiff has made to Defendants' customers are false,
injurious to Defendants reputation and were made with the express purpose of causing
Defendants harm.
24. As a direct and proximate result of Plaintiffs actions as aforesaid, Defendants
have suffered and continues to suffer hann.
WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment
in their favor and against Plaintiff in an amount in excess of $50,000.00, together with punitive
damages, costs and attorneys' fees.
COUNT V GRAMM LEACH - BULEY ACT
25. Defendants incorporate herein by reference their allegations set forth in paragraphs
1 through 24, above, as fully as though the same were set forth herein at length.
26, Upon information and belief, Plaintiff maintains copies in her home of non-
public, personal files on Defendants' customers.
27, Plaintiffs actions in this regard violate the Gramm-Leach-Bliley Act.
28, Plaintiffs actions in this regard expose Defendants to potential damages from
their clients.
29. Plaintiffs actions in this regard are a violation of the fiduciary duty which
Plaintiff owes to Defendants in her capacity as a shareholder of Premier.
WHEREFORE, Defendants respectfully requests that this Honorable Court enter
judgment in their favor against Plaintiff in an amount in excess of$50,000 together with punitive
damages, costs and attorneys' fees, together with an order requiring Plaintiffto return to
Defendants' offices any and all records in her possession or under her control as such records
relate to Defendants' customers.
Respectfully submitted,
BURNS, WHITE & HICKTON, LLC
By: f/2 ~
Richard A 'Halloran, Esquire
Attorney l.D. No. 41460
Angela Y. Allen, Esquire
Attorney l..D. No. 83981
CERTIFICATE OF SERVICE
I, Richard A. O'Halloran, certify that I mailed via first class mail, on this JL
day of March, 2005, a true and correct copy of the foregoing Answer, New Matter and
Counterclaim to:
Kurt W. McCabe, Esquire
Bradley A. Schutjer, Esquire
Schutjer Bogar, LLC
441 Friendship Drive
Harrisburg, P A 17111
VERIFICATION
I, David Simonic, am President of Premier Funding, Inc., and am duly authorized to
make this Verification on behalf of myself and Premier Funding, Inc. I have read the foregoing
Answer, New Matter and Counterclaim of Premier Funding and David Simonic, and state the
averments offact contained therein are true and correct to the best of my knowledge, information
and belief. This verification is made subject to 18 Pa. Cons. State ~ 4904 relating to unsworn
falsification to authorities.
tkJid4~'
D vid Simonic
Exhibit" A"
.
BURNS, WHITE & HrCKTON
A lJMlTIDllABllITY CDMl'ANY
AITORNEYS AT LAW
Theresa L. Wasser
Attorney at Law
(412) 394-2500
tlwasser@bwhllc.com
120 FIFTH AVENUE
SUITE 2400
PITTSBURGH, PA 15222-3001
THE MAXWELL CENTRE
SUITE ZOO
32-Z0TH STREET
WHEEUNG, WEST VIRGiNIA 26003
(304) 233-9500 . FAX (304) 233-1363
(412) 394-2500 . FAX (412) 281-1352
www.bwhUc.com
August 9, 2004
VIA FACSIMILE (717) 909-5925
& U.S. MAIL
Kurt W, McCabe, Esquire
Kennedy Bogar, LLC
P,O, Box 959
Camp Hill, PA 17001-0959
RE: Premier Funding, Inc.
Our File No.: 03064/139223
Dear Mr. McCabe:
Enclosed are the year end financials for Premier Funding as of December 31, 2003, I still
have not received a form proxy from you. We would be looking to have a shareholder meeting
sometime during the weeks of September 6 or September 13, 2004, As Mr, Stinoruc is currently on
vacation, I cannot give you a firm date and time yet.
Very truly yours,
~J~1ffiA /J~
Theresa L. Wasser .
11.. W /hlt
Enclosure
cc: David Stinoruc
Exhibit "B"
F~B-17-2005 09:57
PREMIER FUNDING
717 920 1373
P.24
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT is entered into this 3rd day of May
, XOO 2001
among
David E. Simonic
and Premier Funding Ine
a corporation (~the Corporation").
WHEREAS, the shareholders are the sole shareholders of this
corporation, each owning shares in the numbers listed below:
Name No. Shares
David E. Simonie
zt.:,
AND WHEREAS, the Shareholders desire to enter into an agreement
among themselves and the Corporation giving the Board of Directors the
authority to decide whether or not to furnish financial statements
pursuant to Section 1554 of the Pennsylvania Business Corporation Law
of 1988.
NOW THEREFORE, in consideration thereof and the mutual promises
contained herein, the Shareholders agree among themselves and with the
Corporation that:
It shall not be necessary for the corporation to furnish to the
Shareholders who are parties to this agreement, during any fiscal
year, any ~financial statements" for the corporation's business
activities, including balance sheets, and/or statements of income
FEB-17-2005 09:57
PREMIER FUNDING
717 920 1373
P.25
and/or expenses for that, or any fiscal year.
However,
any
from
Shareholder shall have the right to request a finanoial statement
the corporation. Any such financial statement so requested, and so
prepared, shall be prepared by the corporation, or its accountant, on
the basis of generally accepted accounting principles.
IN WITNESS WHEREOF, the parties have set their respective hands
and seals the day and year first above written.
Secretary
By:
David E. 5i
,
.....
s
signatures:
~
.......
Exhibit "C"
- '71'7 "''''~ --
:_1'7-2005 09,56 PREMIER fUNDI\'\G ~ ().) ~ \\ 0~
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Exhibit "D"
FEB-17-2005 09:58
PREMIER FUNDING
717 920 1373
P.27
Premier Funding, Inc.
DIRECTOR'S CONSENT TO CORPORATE ACTION
We, the undersigned, being all of the directors of Premier Funding, Inc., a
pennsyI-yania business corporation, entitled to vote at a meeting thereof, do hereby
consent to the adoption of the following resolutions and to the taking of the corporate
action hereinafter specified as though the same had been approved and adopted at a
meeting of said Board of Directors duly called and convened, this Consent being given
pursuant to the applicable prOvisions of the Pennsylvania Business Corporation Law:
that
.
7~
.~
'{7 A' ~/~t"..e
and that the corporation's officers ar hereby authorized to execu e each ~ ?h ~.
such agreements on behalf ofthe corporation.
t?~;/~ ~~d;'
David E. Simonic, Director
DATE:
/tJ/z.r~1
I' I
""..-
PAG& 'i? . MI/JUT[g or: ORGAfJ/ZATIO/JAl MEHlNG
Exhibit "E"
FEB-17-2005 09'58
.
PREMIER FUNDING
717 920 1373
P.29
COMMONWEALTII OF PENNSYLVANIA
DEPARTMENT OF BANKING
333 MARKET ST. 16TH FLOOR
HARRISBURG, PENNSYLVANIA 17101-1290
Phone (717) 787-2864
Fax (717) 787-8773
www.banklog.stat..pa.us
September 8, 2004
Mr. David E. Simonic, President
Premier Funding, Inc.
2008 Market Street
Camp Hill, PA 17011
Dear Mr. Simonic:
On' August 16, 2004, John Talalai and William Denney of the Department of Banking conducted
an examination of the office ofPrenrier Funding, Inc. located at 2008 Market Street. Camp Hill,
P A 17011 to determine compliance with the Mortgage Bankers and Brokers and Consumer
Equity Protection Act and Secondary Mortgage Loan Act.
Any violations or exceptions noted during this examination were corrected during the
examination.
rfyou have any questions, please feel free to contact me at the telephone number shown above.
Sincerely,
~~ ~tlM.~
Don DeBastiani
Manager,
Non-Depository Compliance Division
Bure:lu of Exarilinations
DMD:lm
cc: John Talalai
William Denney
TOTAL P. 29
"
-
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
Plaintiff,
No. 05-376
v.
PREMIER FUNDING, INC. and
DAVID SIMONIC,
Defendants.
: CIVIL ACTION - LA W/EQ ITY
ANSWER TO NEW MATTER
AND NOW, comes Plaintiff, by and through its attorn~ys Sch tjer
Bogar, LLC and files this answer to new matter and, in support there f,
states:
1. Denied.
2. Denied.
3. Denied.
4. Denied. The financial information requested by Plaintiff a
furnished by Defendant was a "compilation" which ,does no
comply with the financial information required to b~ provid d to
shareholders pursuant to the Pennsylvania Business Corpor tion
Law of 1988 (the "BCL").
5. Denied. The financial information requested by Pl~ ntiff an to
which Defendant's letter refers does not comply wi~h the fi
information required to be supplied to shareholders pursuan to the
BCL.
6. Denied. Defendant did not comply with the statutory time- ame
set forth in the BCL in responding to Plaintiffs demand to i spect
corporate records. In addition, Plaintiff inspected tl~e corpo ate
records and was not supplied with substantial portiQns of
information to which she is entitled and that were r~quested
7. Denied. A shareholders agreement does not cause ~hares to issue
nor does it evidence share issuance. Moreover, Plailntiff is ot a
party to the shareholder agreement. Upon belief, D~fendan 's
Exhibit B was crafted for the purposes ofthis litigatjion.
8. Admitted.
9. Denied. Plaintiff did not acknowledge receipt of 241 shares y
signing the share ledger. Plaintiffs signature on th4 share I dger
was obtained two weeks after she had made her capital
contribution with the expectation of receiving 25 sh~res.
Plaintiffs signature was obtained only after Defend~nt Sim mc
coerced her to sign by misrepresenting that the corppration ould
not function if the share allotment was equal.
-
Defendant Simonic thought Plaintiff paid too much. Thus, Plai tiff
retained an ownership interest in more than half of the $econd I ptop.
Plaintiff took the second laptop when she left Premier 6n two
conditions imposed by Defendant Simonic: (i) that Plaintiffpa back
Premier for Premier's interest the laptop-A true and cprrect c pyof
I
correspondence and the check tendered for such purch~se are a tached
hereto as Exhibit "A;" and (ii) that Plaintiff have the laptop
"scrubbed" of any data and software from Premier and confirm d by
Archer's PC Solutions-A true and correct copy of Ar<l;her's Ie ter
confirming that no Premier data and software remaineq on the econd
laptop is attached hereto as Exhibit "B."
2. Admitted in part and Denied in part. Plaintiff filed sucb expen e
reports, as was typical and permitted in previous years.! A cop of
year 2002 expense reimbursement for these expenses i$ attach
hereto as Exhibit "C." Plaintiff denies this averment irlsofar as it
suggests approval or permission is required as a condition of fi ing
such expense reports.
I
I
3. Denied. Plaintiff is without sufficient information to f~rm a b ief as
I
to the truth of the matter asserted. By way of further a~swer, P aintiff
i
did not take any proprietary files or lender informationf
I
,.
4. a. Denied. Defendant Simonic negotiated a price for the retu
"scrubbing" of the second laptop as evidenced by the cQITespo ence
attached as Exhibit "B" thereby evidencing knowledge and
,
authorization.
b. Denied. The first laptop has not been used since M1rch, 20
to a malfunction; the second laptop has not been used a all sin
January 2004 and was "scrubbed" of all proprietary inti rmatio
was inspected by Defendant Simonic's appointed agent who att sted
that the second laptop contained no data and software f{om Pre ler as
I
evidenced by Exhibit "B." I
c. Denied. Strict proof demanded at trial. I
WHEREFORE, Plaintiff respectfully requests that Def+dant's
,
,
Counterclaim be dismissed. i
5. No answer required.
6. Denied. Plaintiff does not owe a fiduciary duty to Pre ler as a
shareholder. Plaintiff did not accept an appointment as fficer 0
Premier; Plaintiff de facto was not an officer as describtd in the
I
Bylaws; only Defendant Simonic is/has been listed as a~ office with
I
the Pennsylvania Department of State-A true and COIT~ct copy ofthe
I
i
.
entity records maintained by the Pennsylvania Department of S ate is
attached hereto as Exhibit "D."
7. Admitted.
8. Denied. Plaintiff does not owe a fiduciary duty to Preni1ier as a
shareholder. Plaintiff did not accept an appointment as rfficer f
Premier; Plaintiff de facto was not an officer as describfd in th
i
Bylaws; only Defendant Simonic is/has been listed as an office with
I
the Pennsylvania Department of State-A true and coict cop of the
entity records maintained by the Pennsylvania Departm~nt of S ate is
i
I
attached hereto as Exhibit "D." By way of further ansier, Plai tiff
I
resigned January 13,2004. At no time prior to this dat1 did PIa ntiff
originate, lock, or commit to any loans under her indivi~ual bro er's
i
license and, moreover, not a single loan has ever been c[osed or
generated under her individual broker's license.
i
9. Denied. Plaintiff did not hire any of Defendant's emplqyees.
10.Denied. Plaintiff does not possess or use any informatitn prop etary
to Premier. I
I
I
II.Denied. Plaintiff has offered to execute papers referredlto in thi
i
averment, but Defendant has not sent them to Plaintifr~ counse. A
.
true and correct copy of a letter requesting such papers is attac ed
hereto as Exhibit "E."
12.Denied. Strict proof demanded at trial.
I3.Denied. Plaintiff does not owe a fiduciary duty to Pren(1ier as a
shareholder. I
WHEREFORE, Plaintiff respectfully requests that Def~ndant's
Counterclaim be dismissed.
14.No answer required.
15.Admitted.
16.Denied. Not a single loan has ever been closed or generated un er her
I
individual broker's license. I
17.Denied. Plaintiff is not the broker of record of any suc, busine s.
I
,
I
I8.Denied. Strict proof demanded at trial.
19.Denied. Plaintiff is without knowledge or information ~ufficie t to
form a belief as to the truth of the matter asserted.
20.Denied. Strict proof demanded at trial.
WHEREFORE, Plaintiff respectfully requests that Def1ndant's
I
Counterclaim be dismissed.
21.No answer required.
22.Denied. Strict proof demanded at trial.
23.Denied. Strict proof demanded at trial.
24.Denied. Strict proof demanded at trial.
WHEREFORE, Plaintiff respectfully requests that Defend~nt's
Counterclaim be dismissed.
25.No answer required.
26.Denied.
i
I
I
Plaintiff does not maintain Premier files. I
Plaintiff is without knowledge or information ~ufficie
27.Denied.
t to
form a belief as to the truth of the matter asserted. By ay of rther
answer, Plaintiff does not maintain copies of non-publi person 1 files
I
I
I
I
I
29.Denied. Plaintiff does not owe a fiduciary duty to pre1ier as a
shareholder.
,
on Defendant's customers.
28.Denied. Strict proof demanded at trial.
WHEREFORE, Plaintiffrespectfully requests that Defendant's
Dated:
Counterclaim be dismissed.
51;D/O~
I '
By: ..
Respectfully Submitted,
?t/~.
I
Kurt W. McCab
Pa. ID No. 8193
Bradley A. Schujer
Pa. ID No. 7595
441 Friendship rive
Harrisburg, P A 7111
717.909.5922 !
Attorneys for p+ntiff
Rx Date/Time MRR-30-2005(WEO) 15:32
B3/30/2005 15:35 7179752525
1119152525
HOMETOWN MTG RES
VERIFICA nON
I verify that the statements made in this Answer to Ne{v Matte and
Counterclaim to my knowledge are true and correct. I under$tand th t false
,
statements herein are made subject to the penalties of 18 Pa.1.S. ~49 4
relating to unsworn falsification to authorities.
Date: () I ",>-0 /Q,j--
.J. Cecka, laintiff
POOl
PAGE 01/01
. .
EXHIBIT" A"
kennedylbogar LLC
Attorneys At Law
January 22,2004
VIA HAND DELIVERY
David E. Simonic
Premier Funding, Inc.
RE: M. J. Cecka
Dear Mr. Simonic:
Please be advised that the undersigned represents Ms. Cecka i relation 0 her
employment with, interest in and departure from Premier Funding. A 1 future c ntacts
with Ms. Cecka should be made through our offices.
I have been advised that Ms. Cecka has terminated her emplo ent wit Premier
Funding and has resigned any corporate positions she held with Premi Fundin. The
only remaining issue is, consequently, the 49% of the corporation that Ms. Cec a owns.
Ms. Cecka would like to reach an agreement to resell that interest to P emier F ding.
Clearly, the purchase of Ms. Cecka's interest is in both parties' intere 1. Therefi re,
please review this matter and contact me - either directly or through c unsel- t discuss
possible resolutions. I
I
In a related matter, I understand that Ms. Cecka has possessio of a lap t p
computer which is jointly owned by Ms. Cecka and Premier Funding. She advi es that
you have agreed to allow her to purchase the computer outright for a ayment 0 $1500.
That payment is available; however, Ms. Cecka requests prior written confirma 'on that
this payment will purchase any and all interest in the computer held b Premier unding.
If you have any questions, please do not hesitate to contact me
/"7 l
J'K' you,
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, utjer '
P.O, Box 959, Camp Hill, PA 17001-0959 ' Fax: (717) 909.5925
III
VLADIMIR CECKA
MJ CECKA
511 GALE ROAD
CAMP HilL, PA 17011
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EXHIBIT "B"
Archer's PC S lutions
February 21, 2004
Mrs, MJ Cecka
3400 Trindle Road
Camp Hill, Pa. 17011
Dear MJ,
Per your request this letter is to confirm that on January 22 I 100 ed at th Dell
Laptop and Confirmed that all software & data belonging to Premier Fu ding, Inc had
been removed. This meeting and verification came at Dave Simonic's req est. Aft r our
meeting I called Dave and left him a voice mail telling him that all Soflwa belongi g to
Premier Funding, Inc, had been properly removed,
Sincerely,
:J
/~~
Todd Archer
Owner - Archer's PC Solutions
130 Shell Street. Harrisburg, Pa, 17109. (717)648-3256
www.apcsoultion.net
EXHIBIT "C"
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EXHIBIT "n"
Corporate Records Application
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IA
epartment of State
ODS _H.om~age
Entity Details
Request
. New ~equ~~t
Free Search
Basic Entity Information
Entity Type PENNSYLVANIA BUSINESS CORPORATfoN
Entity Name PREMIER FUNOING INC. I
Entity No. 3003IB9
Filing Date OS/03/2001 Letter of Consent
Address 909 CHARLES ST
MECHANICS BURG Pennsylvania US 17055
Cumberland Jurisdiction
. General t'Jame3~~J::~h
. QJd,NCl~---.S~arch
. OrDhar:J__Se;~ls_~h
No
County
Purpose
PA
BROAD
Umited
Authority
No
eorporat:eOfficers--. ~_,
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:::~a:~__~~~~200.~
Treasurer
SIMONIC,DAVID E
Vice-President
Instrument History
Doc Type
M- '-I # Micr # Micro
Icro I m Sta End
ARTICLES OF INCORPORATION-
BUSINESS
2001034
1469
1469
Back
Home: I SkMap I View.?'s Text OnlY
V;j;Uhf'
PA Power Port
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Copyright@2002 Pennsylvania Department of State. All Rights Reserved!.
Commonwealth of PA Privacy. Statement I
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Filing
Date
05/03/2001
https:llwww.dos.beta.state.pa.us/CorpsApp/Corpsweb/Search/wfEntityDetails.aspx?Entity .. 7/22/2004
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EXHIBIT "E"
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SCHUT JER I BOGAR LLC
Attorneys at Law
Email:
Direct Dial:
kmccabe@schuljerbogar.com
(717) 909-5922
March 4, 2005
VIA FACSIMILE TO: 610-941-1060
Richard 0' Halloran
Burns, White & Hickton
531 Plymouth Meeting Road, Suite 500
Plymouth Meeting, PA 19462
RE: Cecka v. Premier Fundinj:(, Inc. et ai,
Docket No. 05-376
Richard:
When my legal assistant, Christy Long, went to the Premier ffices fo the
inspection of corporate records she was told by David Simonic that he woul readily
receive the documents by mail. She had the right to copy the docu ents the e and
leave with them and I don't know why this right wasn't honored. I is four ays after
the visit and we do not have the documents. Your client has no rig t to wit old them,
or to have you pass on whether they can be sent to us (as he appare tlyallu ed to), If
they are not received by Monday, we will file a Petition to Compel n Tuesd y.
I
Also, I have not yet received the documents your client want~d to ha executed
by my client so that Premier may associate with another lender. As reviou y
requested in correspondence and verbally, please send such docum nts to m for
attorney revIew. I
SinCer5t~, \
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Krt W. McCabe II
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441 Friendship Road, Suite 102, Harrisburg, PA 17111 . Fax (717) 909-5925 ' www,schutjerbog r,com
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
MJ CECKA,
Plaintiff,
v.
NO. 05-376
PREMIER FUNDING, INC. and
DA VlD SIMONIC,
Defendants.
CIVIL ACTION - A W/EQUITY
RETURN OF SERVICE
I HEREBY CERTIFY THAT:
I, Laura E. Griffin, served the Answer to New Matter upo the following:
Richard A O'Halloran
Burns, White & Hickton, LLC
531 Plymouth Road, Suite 500
Plymouth Meeting, P A 19462
(Attorney for Defendants)
Service was made via regular United States mail, postage re-paid on
April 4, 2005.
I declare under penalty of perjury under the laws of the
America that the foregoing information contained in the Return
and correct.
ited States of
f Service is true
Dated: 1} 1a5"
/
By:
_ r
Laura E. Grif n, egal Assistant
ScHUTJER BOGAR LLC
441 Friendship ad, Suite 102
Harrisburg, PA 7111
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
M.J CECKA
v.
PREMIER FUNDING, INC. and
DAVID SIMONIC
TOTHE PROTHONOTARY:
NO. 05-376
PRAECIPE
Kindly mark the Counterclaim of Premier Funding, lne, and David Simonie as
Settled, Discontinued and Ended.
(~
. O'Halloran, Esquire
Burns, ite & Hiekton, LLC
Attorney I.D. No. 41460
531 Plymouth Road, Suite 500
Plymouth Meeting, P A 19462
(610) 832-1111
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
:
Plaintiff,
No. 05-376 Civil Term
v.
PREMIER FUNDING, INe. and
DAVID SIMONIC,
Defendants.
CIVIL ACTION - LAW/EQUITY
PRAECIPE TO WITHDRAW
TO THE PROTHONOTARY:
Kindly withdraw the above-captioned action with prejudice.
Respectfully submitted,
SCHUTJER BOGAR LLC
Dated: !;; I ~lo~
By:
~
urt W. McCabe
Attorney ID No. 81938
Bradley A. Schutjer
Attorney ID No. 75954
441 Friendship Road, Suite 102
Harrisburg, P A 17111
717.909.5922
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Praecipe to
Withdraw was served via facsimile and first-class, United States mail, postage pTepaid,
upon the following:
Richard O'Halloran, Esquire
BURNS, WHITE & HICKTON
531 Plymouth Road, Suite 500
Plymouth Meeting, PA 19462
Fax (610) 941-1060
(Attorney fOT Defendants)
Dated: ()")-/,}7/tJ5
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By:
Jd(~
n Paralegal
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
MJ CECKA,
Plaintiff,
No. 05-376 Civil Term
v.
:
PREMIER FUNDING, INC. and
DAVID SIMONIC,
:
Defendants.
CIVIL AcrION - LAWJEQUITY
PRAECIPE TO SETnE, DISCONTINUE AND END
TO THE PROTHONOTARY:
Kindly mark the above-captioned action as Settled, Discontinued and Ended.
Respectfully submitted,
SCHUTJER BOGAR LLC
Dated: ~
By:
K t W. McCabe
Attorney ID No. 81938
Bradley A. Schutjer
Attorney ID No. 75954
441 Friendship Road, Suite 102
HarTisburg, P A 17111
717.909.5922
Attorneys for Plaintiff
-
.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Praecipe to Settle,
Discontinue and End was served via facsimile and first-class, United States mail,
postage prepaid, upon the following:
Richard O'Halloran, Esquire
BURNS, WHITE & HICKTON
531 Plymouth Road, Suite 500
Plymouth Meeting, PA 19462
Fax (610) 941-1060
(Attorney for Defendants)
Dated: lo f Lo 105
By:
Ca-i}1I OA~ J(_lDt~jAlJV.J
Catherine Klobucar,
Administrative Assistant
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