HomeMy WebLinkAbout05-1539
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
No. Of; - /r:Jr (!;u~( ~l
v.
CIVIL ACTION
GARY S. YANNONE
ACTION IN PARTITION
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the foregoing 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 are warned
that if you fail to do so, the case may proceed without you and a
judgment may be entered against you by the Court without further
notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY
OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
LAWYER REFERRAL SERVICE OF THE
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
TELEPHONE: (717) 249-3166
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE
ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE.
MIDPENN LEGAL SERVICES
8 IRVINE ROW
CARLISLE, PA 17013
TELEPHONE: (800) 822 - 5288
NOTICIA
Le han demandado a usted a la corte. si usted quiere
defenderse en contra estas demandas expuestas en las paginas
siguientes, usted tiene veinte (20) dias de plazo al partir de la
fecha de la demanda y la notificacion. Usted debe presentar una
apariencia escrita 0 en persona 0 por abogado y archivar en la
corte en forma escrita sus defensas 0 sus objeciones alas
demandas en contra suya.
Se ha avisado que si usted no se defienda, la corte tomara
medidas y puede entrar una orden contra usted sin previa aviso 0
notificacion y par cualquier queja 0 alivio que es pedido en la
peticion de demanda. US TED PUEDE PERDER DINERO 0 PROPIEDADES 0
OTROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO
TIENE 0 CONOCES UN ABOGADO, VAYA EN PERSONA 0 LLAME POR TELEFONO
A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA
AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
LAWYER REFERRAL SERVICE OF THE
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
TELEPHONE: (717) 249-3166
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
No. ()~ - IS19
Co~L~~
v.
CIVIL ACTION
GARY S. YANNONE
ACTION IN PARTITION
COMPLAINT
1. The Plaintiff, JEFFREY T. KOTTMYER, is an adult
individual who resides at 8654 Tower Drive, Laurel, Maryland
20723. The Plaintiff, NOLEN R. CHEW, JR., is an adult individual
who resides at 61 197th Street, Star Prairie, Wisconsin 54026.
2. The Defendant, GARY S. YANNONE, is an adult individual
who resides at P. O. Box 116, South Bend, Nebraska 68058.
3. The Plaintiffs and Defendant are the owners of certain
real estate located in Cumberland County, Pennsylvania, commonly
known as 1555 McClure's Gap Road, Carlisle, Pennsylvania. The
said real estate is known by reference to two Tax Parcel numbers,
14-06-0023-019 and 14-06-0023-004, and is owned by a deed dated
March 1, 2004, and recorded March 4, 2004, at Book 261, page
4457, Cumberland County land records, which deed is incorporated
by reference herein as though more fully set forth.
4. The interests of the parties in the said property are
held as tenants in common and are undivided.
5. The property owned by the parties is subject to a
mortgage.
6. No person other than the parties to this suit has any
interest in the said property.
7. No partition or division of the above described property
has ever been made, although Plaintiffs have requested the
Defendant to join in making one.
8. The property is incapable of an in kind division and
distribution.
9. The Defendant refuses to participate in the management
of the property either financially or by communicating with
respect to important decision-making, and is delinquent in his
obligation to contribute to mortgage payments, insurance, taxes,
rents from his former occupancy. and upkeep of the property. He
has abandoned both the premises and the other parties, refusing
to inform them of his whereabouts or otherwise communicate with
them.
WHEREFORE, Plaintiffs request:
a) that the Court decree partition of the said real
estate;
b) that the shares to which the respective parties are
entitled be set out to them in severalty, and in that the said
real estate cannot be divided without prejudice to or spoiling
the whole, such proper and necessary sale of the same may be made
by such persons and in such manner as your Honorable Court may
direct; and
c) that such other and further relief be granted as the
Court deems just and proper.
2
Respectfully submitted,
/~
Marc Roberts, Esquire
Attorney for Plaintiffs
I.D. No. 34355
149 East Market Street
York, PA 17401
(717) 843-1639
3
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTy, PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
No.
v.
CIVIL ACTION
GARY S. YANNONE
ACTION IN PARTITION
VERIFICATION
I, JEFFREY T. KOTTMYER, one of the within Plaintiffs, verify
that the statements made in the foregoing are true and correct to
the best of my knowledge, information, and belief.
The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa. C.B.A. Section 4904
relating to unsworn falsification to authorities.
'3/2..1/ oS-
DATE
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.,
No. 05-1539 Civil Term
v.
CIVIL ACTION
GARY S. YANNONE
ACTION IN PARTITION
ACCEPTANCE OF SERVICE
I, Gary S. Yannone, hereby accept service of a certified
copy of the Complaint filed in the above capt' ed matter.
Dated: April 5, 2005
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JEFFREY T. KOTTMYER and
NOLEN R, CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 05-1539
v,
GARY S, YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS
FOR ORDER DIRECTING PARTITION
AND NOW, comes the Plaintiffs by and tbrough their attorneys, MARTSON DEARDORFF
WILLIAMS & OTTO, and move as follows:
I, On March 22, 2005, Plaintiffs filed a Complaint seeking Paliition of Real Property
against Defendant.
2, As alleged in the Complaint, Plaintiffs and Defendant are co-owners of a parcel of
land (1555 McClure's Gap Road) in Cumberland County as tenants in common, See Complaint ~~
3-4,
3. On April 8, 2005, Defendant filed a handwritten, pro se Answer to the Complaint
admitting, inter alia, that all parties are co-owners of 1555 McClure's Gap Road as tenants in
common, Defendant also requested in ~(f) of his "request for relief' that the property be partitioned,
4. Under Pennsylvania law, co-tenants have a right to judicial partition.
5, The pleadings are now dosed and Defendant has admitted those dements essential
to this Court issuing an Order Directing Partition under Pa,R,C.P, 1557. In fact, the Defendant has
specifically requested partition,
6. While Defendant has set forth a multitude of allegations and defenses rdated to his
interest in the property, all of these matters are to be considered by the court, or an appointed master,
after the entry of an Order Directing Partition, Pa.R.C.P. 1558-1559,
7. Defendant has set forth no facts in his Answer that would deny Plaintiffs their right
to receive an Order Directing Partition.
WHEREFORE, Plaintiff requests this Honorable Court enter an Order Directing Partition
and schedule a Preliminary Conference under Pa.R,C.P. 1558,
MARTSON DEARDORFF WILLIAMS & OTTO
BL[@1}0__________~
Carl C. Risch, Esquire
I.D, No. 7590]
Christopher E. Rice, Esquire
1.0. No, 90916
Ten East High Street
Carlisle, P A 17013
(717) 243-334\
AllorneysfiJr Plaintiffs
Datc: April 26, 2005
JEFFREY T, KOTTMYER and
NOLEN R, CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 05-1539
v.
GARY S. YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
CERTIFICATE OF SERVICE
I hereby certify that a copy ofthe foregoing was scrved this date by depositing same in the
Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as tollows:
Gary S, Yannone
1555 McClure's Gap Road
Carlisle, P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
ELlarD __________
Dated: April 26, 2005
JEFFREY T. KOTTMYER and
NOLEN R, CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
No, 05-1539
v,
.I,
GARY S. YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
ORDER
AND NOW, this ~ day of _~_~_____, 2005, in consideration of Plaintiffs Motion
ti)f Judgment on the Pleadings for an Order Directing Partition, the Motion is hereby GRANTED
and it is hereby ordered, adjudged, and decreed that partition be made of the real property described
in Plaintiffs' Complaint, ~3, among the parties therein named, It is further ORDERED that a
Preliminary Conference pursuant to Pennsylvania Rule of Civil Procedure 1558 is hereby scheduled
for the day of~____, 200_, at_~_~_ o'clock in Courtroom ~_'
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
No. 05-1539 Civil Term
v.
CIVIL ACTION
GARY S. YANNONE
ACTION IN PARTITION
PRAECIPE TO WITHDRAW APPEARANCE
Please withdraw my appearance as attorney for the Plaintiffs
in the above captioned matter.
Dated: April 18, 2005
Marc4U~-~
149 East Market Street
York, PA 17401
(717) 843-1639
I.D. No. 34355
PRAECIPE TO ENTER APPEARANCE
Please enter my appearance as attorney for the Plaintiffs
in the above captioned matter.
Dated: April -~l
, 2005
QDxJJ
Carl C. Risch, Esquire
10 East High Street
Carlisle, PA 17013
(717)
I.D. No. /5"\0\
.
.
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 05- 1539
v,
GARY S. YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
CERTIFICATE OF SERVICE
1 hereby certify that a copy of the foregoing was served this date by depositing same in the
Post OtIice at Carlisle, P A, first class mail, postage prepaid, addressed as follows:
Gary S. Yannone
1555 McClure's Gap Road
Carlisle. P A 17013
MARTSON DEARDORFF WILLIAMS & OTTO
BL~[DQO
Dated: April 26,2005
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Gary S. Yannone, MS
Equal Partner, The Lost Valley LLC.
President/Curator # I The Frankford Museum Society
1555 McClures Gap Road Carlisle, P A 170 I3 402-321-6306 (717) 319-5085
garvvannone@vahoo.com 717-503-5747
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JEFFREY T. KOTIMYER and
NOLEN R. CHEW, JR
v.
GARYS. YANNONE
No. 05-1539 Civil Term
CIVIL ACTION AMMENDED RESPONSE
FIRST FILED APRIL 8, 2005
ACTION IN PARTITION
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the foregoing pages, you must take action 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 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 TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00
NOT HA VB A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH
BELOW TO FIND OUT WHERE YOU CAN GET LEGA HELP, THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
LAWYER REFERRAL SERVICE OF THE
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDGFORD STREET
CARLISLE, PA ]7013
TELEPHONE; (7]7)249-3166
IF YOU CANNOT AFFORD TO lllRE A LAWYER, THIS OFFICE MAYBE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO
FEE,
MIDPENN LEGAL SERVICES
8 IRVINE ROW
CARLISLE, P A 17013
TELEPHONE; (800) 822-5288
1
NOTICIA
Le ban demandado a usted a la corte. Si usted quiere defenderse en contra estas
demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al
partir de la fecha de la demanda y la notification,. Usted debe presenter una apariencia
escrita 0 en persona 0 per abogado y archivar en la corte en forma escrita sus defenses
o sus objeciones a las demandas en contra suya.
Se ha avisado que si usted no se defienda, la corte tomara medidas y puede entrar una
orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es
pedido en la peticion de demanda. USTED PUEDE PERDER DINERO 0
PROPIEDADES 0 OTROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOOADO IMMEDIATAMENTE. SI USTED
NOTIENE 0 CONOCES UN ABOGADO, VA Y A EN PERSONA 0 LLAME POR
TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA
ABAJO PARA A VERIGUAR roNDE SE PUEDE CONSEGUIR ASISTENCIA
LEGTAL.
LAWYER REFERRAL SERVICE OF TIm
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE,PA 17013
TELEPHONE; (717) 249-3166
2
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Jeffrey T. Kottrnyer and
NOLEN R. CHEW, JR.
v.
GARYS. YANNONE
No. 05-1539 Civil Term
CML ACTION AMMENDED RESPONSE
FIRST RESPONSE FILED APRIL 8, 2005
AMMENDED RESPONSE TO COMPLAINT
I. Agreed that Plaintiffs Jeffrey Kottrnyer and Nolen R. Chew, Jr, reside outside of the
Commonwealth ofPA and has never resided at 1555 McClures Gap Road, Carlisle, PA
17013
3. The Defendant, GARY S. YANNONE, is an adult male who physical and mailing
address has and continues to be 1555 McClures Gap Road Carlisle, PA 17013. That
plaintiff has made mortgage payments, property taxes, school taxes, personal taxes, and
electric and garbage payments to such property as a property owner since 1999. That
plaintiff has claimed this as his principle residence since the original subdivision of
property from Merle Tate in 1999. The claim to this being his legal and abiding residence
is substantiated by typical legal documentation such as but not limited to his drivers
license, automobile registration, voters registration card, personal banking accounts, tax
reports, etc.
4. Agreed that the parties interests are equal, in common, and undivided
5. That any question on property mortgage cannot be reasonably addressed by the
defendant, because of the seemingly malicious, inappropriate and improper disposition of
records by the plaintiffs. Critical financial information needed to make decisions on the
business of the LLC has been maliciously withheld from the defendant. This has been
done improperly, violating the LLC Operating Agreement 10.01. That accounts,
payments, and finances appeared to have been mismanaged and definitively misstated
causing company disarray, confusion and possible bankruptcy. That this is directly
attributable to the apparent mi~mat1llgement of the treasurer and that of the plaintiffs.
And that after repeated attempts by the defendant to obtain written verification of all
company records, none has been forthcoming. That this apparent financial
mismanagement has been acknowledged by others.
6. Disagree, that the Frankford Museum Society has specific and distinct interest in the
property at 1555 McClures Gap Road, Carlisle, PA 17013. That the formation of the
FMS was by the original three members of the LLC for the purpose to gain monetary
access to non profit funds to support the same property and goals of the LLC. That tasks
and finances have been continuously juggled to support this original purpose while
maintaining separate tax identification numbers. The strategic plans, charter and
3
and finances have been continuously juggled to support this original purpose while
maintaining separate tax identification numbers. The strategic plans, charter and
missions of the LLC and FMS continue to be intermixed as almost identical twins trying
to support each other and always attached to the same property mentioned above. That
the treasurer of the LLC and Museum society has been the same and/or a member of the
LLC and FMS which has created a conflict of interest and the possible wrongful
intermixing of for profit and non profit financial and other affairs that appear to be
mismanaged, unethical and possibly illegal. That although strictly as a paper tiger, the
FMS has a separate Board of Directors, there is controlling authority by the LLC. That
includes the positions of President, Treasurer, financial donations, real property control,
etc, That this was an original intent of the three equal partners of the LLC and continues
today. Therefore, the LLC and FMS have essentially in all intents and purposes become
one and with direct interest in the same property and should be judged by the court as
such.
7. Although no division or partition of the property has been made, the property has been
accrued through a series of additions. The first sect being of approximately 3 acres
acquired by Gary S, Yannone from Merle Tate in 1999. This a subdivision fiom
approximately 54 acres fiom Tate and directly related to making the old fiumhouse a
separate living quarters. The next addition in 2002 adding approximately 4 acres. And
an addition in 2004 adding an approximate 29 acres. That the land is easily partitioned
and legally useable for residentia1 and/or commercial uses. That the defendant has for the
best interest of the LLC and FMS considered and agreed to subdivisions, while the
plaintiffs has not even though it was agreed upon to discuss such thus depriving
defendant of his Constitutional property rights and financial profit from such.
8. As stated above the property is very capable of subdivision and distribution. That the
LLC and FMS have become one. That the historical landmark status orarcheological
status of the site is directly related to the house, and not the entire property.
9. That he has been a critical participant in the decision-making and management of the
property since 1999. That be was the original property owner, at the time of suit and
equal property owner, an equal partner in the LLC partnership, and President/Curator of
the Frankford Museum Society. That at no time did he abandoned the premises or parties
and will present definitive evidence as such. That the defendants whereabouts were
known through reasonable and legal means. That the plaintiffs knew that the defendant
was on a temporary employment sabbatical to support the LLC/FMS and did so
communicate over a viable business line of communication such information. That
defendant did communicate with plaintiffs as much as could be reasonably expected
considering the following;
a It is hereby claimed that the plaintiffs with unfairness and unjust cause appear to
have denied the defendant due process violated the defendant's constitutional rights to
property, inherently his right both in the US Constitution and in that of the
Commonwealth of Pennsylvania
4
b. That in addition, without just cause the plaintiff's seem to have violated the
defendants Constitutional rights to privacy,
c. That the plaintiffs only attempted periphery attempts at communication in order to
gain their own ends with the LLC and FMS. That logical attempts at communicating
with the defendant were not made. That meetings were juggled and rearranged for the
plaintiffs own self interest. That improper legal arrangements were made for this own
self interest
d. That the defendant has maintained a strong leadership and management role
throughout the process since 1999. Several exhibits will be presented to the court in this
support.
. e. That with unjust and malicious mismanagement the plaintiffs have barred the
defendant from his equal and rightful access to all records and property of the LLC and
FMS which has rendered the plaintiff incapable of any rational decision making
regarding matters such as 2005 contributions
f. That the plaintiffs actions have been carried out in an unfair and malicious nature,
including mismanagement and falsehoods about the treasuries, that this was done without
due process for the defendant, that this robbed the defendant of his Constitutional
property rights, his Constitutional rights to privacy, his rights to LLC property as an equal
property owner, and harassed the defendant into a state of homelessness and bankruptcy
without due process through the Commonwealth or US Courts.
g. That the mortgage payments, taxes, etc., for 2005 were suppose to be part of the
LLC business agreement in contributions, but none was reached because of the plaintiffs
actions as outlined above and therefore no LLC agreement to participate was reached and
delinquency of payments was the result
h. That rather than proceeding with the proper and legal procedures as outlined in
paragraph 4.03 of the LLC Operating Agreement the plaintiffs took malicious action
against the plaintiff with suit number 05-1640, using an improper legal arrangement to
without cause remove defendant from the LLC Agreement. That these improper actions
have caused grave defamation of character to defendant.
i. That with what appears to be unfair and malicious intent and without due process
the plaintiffs barred the defendant from his place residence since 1999 as outlined in
paragraph one.
j. That with what seems to be wrongful intent the plaintiffs entered the defendants
restricted private property area and transformed it into a nonprofit public entity against
his advice and without his legal consent.
k. That against the defendant's advice as an equal voting partner in the LLC and
President of the FMS that the FMS and LLC have entered into a possible unethical if not
illegal relationship. That confidential business information has been shared between the
LLC and FMS against the defendant's advice and legal consent.
I. That it seems the for profit and not for profit nature of the LLC and FMS have been
violated and that the nature of these activities have been portrayed wrongfully and hidden
from the plaintiff to adversely affect his Colllltitutional property rights, his Constitutional
rights to privacy, his right and an equal LLC partner, and as a Board Member of the FMS.
m. That such seemingly malicious and unconstitutional actions without due process
includes, but is not inclusive of changing all the locks on the property immediately after
the plaintiff left on a temporary employment sabbatical with the sole purpose to bring
5
financial support to the LLC and FMS. And upon returning plaintiff discovered that his
Constitutional rights to privacy had been also had been violated.
It That such possible unfair and unjust actions Plaintiffs did cruelly and
unconstitutionally bar defendant from his equal access to LLC property and records and
that of the FMS which are intertwined as one.
o. That the defendant repeatedly pleaded for equal access to all treasury details, but
has been denied these rights, and that the treasury appears not only been mismanaged but
stated treasury amounts have been misstated which has cost the plaintiff incredible
financial amounts, forced him on a temporary employment sabbatical, violated the
operating agreement of the LLC, and intertwined the finances and dealings of the FMS
and LLC with the specific disapproval of the defendant. That critical aspect of treasury
reports and audits appear to have either not taken place or mismanaged in an untimely
manner.
p. That it seems an improper legal arrangement was made by the plaintiffs with the
LLC attorney Marc Roberts and this arrangement was used to file suit against the
defendant, which is a legal conflict of interest and put the defendant at a distinct
disadvantage again being unfair and unjust
q. That subsequent to acknowledging that improper relationship another questionable
relationship was entered into with an FMS member, Carl C. Risch.
r. That what appears to be an improper rental agreement was reached without the
knowledge or consent of the defendant, an equal property owner, an equal business
partner, and President/Curator of the Frankford Museum Society, and that once again
merged the LLC and non profit affairs into one entity.
s. That society meetings and elections were held at the earliest time which in essence
and with what seems wrongful intent barred the defendant from his rightful status on the
FMS board as agreed by the original LLC partners. That the preceding FMS retreat and
terms of the board members were also manipulated for the same apparent wrongful
reasons. That such actions have been accomplished in a possible manipulative and
clandestine way and that historic records of such as in the case of the treasury may have
been doctored, That the defendant has been barred from these and all pertinent records.
1. In addition, in an unfair and with grave injustice defendant has been barred from his
personal property and constitutional rights thereto. The same personal property left as
evidence of his temponuy employment sabbatical and proof of intents to pennanently
return.
u. That the plaintiffs have violated the nature of the defendant's constitutional rights to
privacy by turning public previously agreed personal restricted areas.
v. That the plaintiffs appeared to have tampered with and barred the defendant from
his US mail rights.
w. That the plaintitr s actions seem to have interfered with the plaintitr s rights as a
US veteran.
x. That attempts to resolve these issues have been only made at the periphery by the
plaintiffs and then these attempts have been misstated to deprive the plaintiff of his
constitutional rights to property and privacy as set out in the above statements.
y. That the actions of the plaintiffs have caused a grave defamation of character to the
defendant by misstatements, seeming manipulation, and that this has done great damage
to the plaintiff as the President of the FMS and Equal partner in the LLC with which he
6
bas demonstrated great leadership and peer support, and further gravely hanned his
ability to continue and gain successful employment. That outside agencies, neighbors,
and others appears to have been made aware of these facts. which has further defamed the
defendant
z. That in many issues the defendant has bent over backwards, spent thousands of
dollars, traveled thousands of miles, lived away from his home residence. and filed a
conciliatory initial settlement with no reciprocal response, action or commitment from the
defendants.
aa. That the apparent malicious actious of the plaintiffs have cause the defendant
severe cruel financial losses, loss of home, loss of employment. delinquent child support.
and legal bills.
WHEREFORE, THE DEFENDANT IN RESPONSE TO THE PLAINTIFF
REQUESTS s, b, and c OF ABOVE COMPLAINT REQUESTS THE
HONORABLE AND JUST COURT:
a. That the honorable and just court freeze all assets of the LLC and the FMS
b. That all LLC partnership matters, FMS elections. etc. also be frozen or considered null
and void until all these matters are decided by the fair and honorable cowt.
c. That the just and honorable court rule against case number 05-1539 and case number
05-1640 and rule for the Plaintiff in case number 05-1894.
d. The fair and honorable court give the plaintiff immediate access to his property. his
residence, his business property, all records of the LLC and FMS. his personal properly,
his mail rights, Veterans rights. etc, and thereby restore Plaintiff's Constitutional rights to
property and privacy. And that the longer the defendant is barred from all property and
records the graver damage is done to him.
e. That the just and honorable court rule that the dual relationship with the LLC attorney
Marc Roberts as improper and that the one with FMS member Carl C. Risch as
questionable
f That the fair and honorable court rules the rental agreement with the FMS as improper.
g. That the court in all its wisdom dissolves the LLC.
h. That the court orders that the property at 1555 McClures Gap Road be put up for
immediate sale as individual building lots, That this is the most fair and just method and
will gain the most profits to the dissolved members of the LLC. That there have already
been more than one specific offer and this being the best and most profitable solution.
That this is not unusual considering that a Commercial Wedding Reception Business was
just built one eighth of a mile South by Schulusser's Paving. Inc. 1749 McClures Gap
Road, Carlisle. PA 17013. 717-243-0767. Or existing as part of the immediate adjacent
property is a deer fann to be expanded that is regulated by the Pennsylvania Fish and
Game Commission and owned by Merl Tate. 1560 McClures Gap Road. Carlisle, PA
17013. 717-249-5177. And that USDAA also have said agricultural business at both
1555 and 1560 McClures Gap Road. That subdivision and partition will not interfere
with the historic farmhouse.
7
j. That the wise court understands that in all practical and esoteric senses the LLC and
FMS have become one. That this is an improper relationship. And if one were to continue
while the other being dissolved it would only be \Ulder the guise of a separate entity,
when in fact it wasn't and cause undo and grave harm to all LLC partners. Therefore, if
the court correctly acts to dissolve the LLC that it also dissolve the FMS. If the court
does not wish to do this in entirety, then at least in fairness order that all previous LLC
partners are barred from participation with the FMS.
k. That all property of the FMS be distributed.
I. That the honorable court order that the defendants be barred from further interfering
with the Plaintiffs constitutional rights to freedom of speech.
m. That the court appoints an attorney for the plaintiff since the plaintiff's having caused
him to be penniless and homeless.
n. That the just, fair and honorable court when considering the apparent malicious actions
of the defendants, the seemingly unconstitutional and \Uljust due process accorded the
plaintiff, and the huge financial loss by the plaintiff still being accrued, including but not
limited to his initial investment and all other investments, his loss of home and expenses
incurred, his legal expenses, his forced employment sabbatical, his loss of employment,
the defamation of character, his loss of privacy, and that in all reasonableness and
hwnaneness the honorable court award the plaintiff an additional monetary swn not less
that $500,000.00 and not more than $5,000,000.00
m. That such other and further action and relief be granted as the court deems just and
proper.
R~~~~itted,
.~---~
('/ --------~
~
-........
Gary S. one, Plaintiff
EquaJ Partner, The Lost Valley LLC
President/Curator # 1- The Frankford Musewn Society ./
1555 McClures Gap Road
Carlisle, PA 17013
402-321-6306 (717-319-5085)
l!lU'VVIlIUIone@Yahoo.com 717-503-5747
8
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
JEFFREY TO KOTTMYER and
NOLEN R. CHEW, JR.
v.
No. 05-1539 Civil Term
Gary S. Yannone
CIVIL ACTION AMMENDED
FIRST SUBMITTED APRIL 8, 2005
ACTION IN PARTITION
VERIFICATION
1, GARY. S. YANNONE, one of the within Plaintiffs, verify that the statements made
in the foregoing are true and correct to the best of my knowledge, information, and belief.
The undersigned understands that the statements therein are made subject to the
penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities.
~//Z1~-)-
DATE
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full>'
JEFFREY T. KOTI'MYER and
mLEN CHEW, JR.
( Plaintiff)
vs.
GARY S. YANJ\XJNE
( Deferoant)
No. 05-1539
Civil
19
1. State matter to be argued (i.e.. plaintiff's rrction for new t:dal. defendant's
daruD:'er to catt>laint. etc.):
Plaintiffs' Motion for Judgment on the Pleadings for Order
Directing Partition
2. Identify counsel. who will argue case:
(a) for plaintiff: Carl C. Risch, Esquire
Address: 10 East High Street
Carlisle, PA 17013
(b) for defendant: Pro Se
Address: 1555 McClure's Gap Road
Carlisle, PA 17013
3. I will notify all. parties in writing within tl<<I days that this case has
been listed for argunent.
4. I\rgUnent Court: Date:
July 6, 2005
CDYJ]
Attorney- fur- Plawtiffs
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MOTION TO CONTINUE
IN THE COUllT OF COMMON PLEAS OF CUMBERLAND COUNTY.
PENNSYLVANIA
JEFFREY T. KOTfMYER and
NOLEN R CHEW, JR.
v.
GARYS. YANNONE
No. 0S-1539 Civil Term
CIVIL ACI10N
ACfION IN PARTITION
AMMENDED RESPONSE FILED 29
APlUL 2005
MOTION TO CONTINUE
.RJSTWICATION FOR CO~ANg:
1. I the Defendant, Gary S. Yannone, not an attorney has no legal representation nor
am I familiar with the rules of argument that are to be considered July 6, 2005. I will
need time to obtain legal repl~ntation so that I am afforded due process. I was only
made aware of this court date by chance on June 3, 2005.
.. It appears to me not an attorney, that this is a complex case with multiple issues
involving a business psrtnership, a historic landmArk. an archeological site, a non profit
agency, and three separate law suits involving intertwining issues. I will be at an unfair
disadvantage unless I am given time to pursue legal representation. There is no possible
way I can get legal representation by July 6, 2005.
2. I, the Derendaat, Gary S. Yannone, as outlined in case number 0S-1894 have been
afforded no access to the thousands of records that will be needed to be reviewed before I
or anyone representing me can argue any points on this case.
.. I have been virtually barred from all access to critical records involving this case.
b. Even when the honorable court assists me and my future legal repre..cntldion in
gt'Iri'1g the proper access to all records, it will take a great deal of time to sift through and
analyze all the material. Without a detailed eY"mination of all records before anY hearina
would be unfair and unjust, and most certainly can't be met by the July 6, 2005 deadline.
J. I the DeleDdant, Gary S. Yannone, a lifelong resident, citizen and voter from
Cumberland County have been left virtually homeless and I am at a critical juncture in
finding shelter.
.. The actions of the plaintiffs have left me virtually homeless and the July 6, 2005
court date comes at a critical juncture for me finding shelter. I am currently at a
temporary room at the mercy of a non profit member.
2
4. I, dae Defeadaat, Gary S. Y"DOIIe, is at a critical stage in trying to find employment
and supporting my family members.
L The Ktions of the Plain1iffs in relation to the buaineu and the IIOD profit baw
essentially cost me three jobs and many e>~ for me and my family. CUmntly, I am
virtually penniless and the July 6,2005 date for arguments puts me in an unteD8bIe
economic position in trying to find fulltime employment, while trying to meet that date
with any type of reasonable Pfep.,ation.
5. I, tile Defe&daat, Gary S. YlUoae, returned from my temporary employment
sabbatical in Manili not lmowing that this lawsuit bad been filed with malicious intent
from the plaintiffs and while I was in the middle of addressing severalllC\lCle physical
medical conditions.
L The Ktions of the PIain1iffs baw furtber exacerbated my need for physical
medical assistance and the July 6, 2005 court date would greatly hamper those eft'oJts.
Since I only found out by chance on June 3, that there was a court date, this puts my
medical needs injeopBrdy.
WHEREFORE, I tile Defeadaat, Gary S. YaaDoBe, .ot a. attoney. IMat a ......
reaideat aDd voter from Cumberlud Coa.ty, hereby submit that the &cts set forth
abowarc true and accurate, and ask the honorable and just court and judac for a
COJltin.qancc to the nextschedu1ed court date for aqpunents, that being on the day ef
.J...l.f moath of f'+r/6-vI:J~ year 1005, and please sign the ..uacIWOrderofthe
Court.
lWoeetfuJIv SIIbmitfe4,
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GARY~
S. Yannone, MS, AudIor
Partner, The Lost Valley lLC.
PrcsidcntlCurator #1 The Frankford Museum Society
)555 McClures Gap Reed Carlisle, PA 17013
(402)-321-6306 (717) 319-S085
~com
co: Prothontary Office hand carried
Martsen, Deardorft: Williams and Otto (Hillary Dean, Carl Risch, esq.) III class mail
The Lost Valley, LLC III class mail
The Frankford Museum Society III class mei1
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iN j'iii( C01Jx.l OF COitoiMON PLEAS OF CuwiBERLA1'1) COunTi,
PENNSYLVANIA
JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
v.
GARYS. YANNONE
No. 05-1539 Civil Term
CML ACTION
ACTION IN PARTITION
DEFENDANTS' RESPONSE TO JUDGEMENT ON THE PLEADINGS FOR
ORDER DIRECTING PARTITION
1. On April 26, 2005 the Plaintiffs entered a judgment on the pleadings for the judge to
sign an order directing partition.
Z. I the defendant, Gary S. Yannone, not an attorney was not aware of this motion until
June 7, 2005 due to the malicious conduct of the Plaintiffs.
3. The Plea by the Plaintiffs references a preliminary hand written answer to their
original complaint, but does not take into consideration a much more extensive written
response filed on April 26, 2005.
4. I, the Defendant, Gary S. Yannone, disagree with paragraph 7 of the Plaintiffs Plea
that I have "set forth no facts in his Answer that would deny Plaintiffs their right to
receive an Order Directing Partition and plea that this be argued at a hearing.
4. I the Defendant, Gary S. Yannone, not an attorney has no legal representation nor
am I familiar with the rules of pleadings. I will need time and assistance to obtain legal
representation so that I am afforded due process.
S. 1 the Defendant, Gary S. Yannone, not an attorney have been afforded no access to
the thousands of records that will be needed to be reviewed and discussed before this
court, Even when the honorable court assists me and my future legal representation in
getting the proper access to all records, it will take a great deal of time to sift through and
analyze all the material. Without a detailed examination of all records before any hearing
would be unfair and wYust.
6. It appears to me not an attorney, that this is It complex case with multiple issues
involving a business partnership, a historic landmark, an archeological site, a non profit
I
.- -
agency, and three separate law suits involving intertwining issues. I will be at an unfair
disadvantage unless I am given time to pursue legal representation and given a hearing in
court before any order is signed
7. The Plaintiffs admit in paragraph six of their motion that I have a "multitude of
allegations." Is the just and honorable court to sign the order to partition not allowing me
my "day in court" simply due to economic circumstances?
8. That the signing of the Order of Court without a hearing and time for myself to get
proper representation would deny me, Gary S. Yannone, a lifelong Cumberland County
resident. and voter my rights.
WHEREFORE, I the Defendant, Gary S. Yannone, not an attorney, but a lifelong
resident and voter from Cumberland County, humbly requests my day in court with
proper representation. That the honorable courts not sign a court order until a hearing is
scheduled and I am afforded reasonable representation. That the honorable court and
judge sign the attached rule.
Resoeetf,lIly Submitted.
0-~-oD'
DATE J}
Gary S. Yannone, MS, Author
Equal Partner, The Lost Valley LLC.
President/Curator # I The Frankford Museum Society
1555 McClures Gap Road Carlisle, PA 17013
(402)-321-6306 (717) 319-5085
l!llrVVannone@vahoo.com
cc; Prothontary Office hand carried
Martsen, Deardorff, Williams and Otto (Hillary Dean, Carl Risch, esq.) 1'" class mail
The Lost Valley, LLC 1st class mail
The Frankford Museum Society I at class mail
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JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR.
Plaintiffs,
iN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 05-\539
v.
GARY S. YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
ORDER
AND NOW, this ~ay Of~' 2005, in consideration of Plaintiffs Motion
for Judgment on the Pleadings for an Order Directing Partition, the Motion is hereby GRANTED
and it is hereby ordered, adjudged, and decreed that partition be made of the real property described
in Plaintiffs' Complaint, ~3, among the parties therein named. It is further ORDERED that a
Preliminary Conference pursuant to Pennsylvania Rule of Civil Procedure [558 is hereby scheduled
for the "'"kAwy of ~oq{, at ~OCk in Courtroom ~
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Gates. Halbruner & Hatch, P.C.
By: Albert Nicholas Peterlin, Esquire
PA ID No. 84180
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
a.oeterlin@aateslawfirm.com
www.Qateslawfirm.com
Attorneys for Defendant, Gary S. Yannone
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T. KOTTMYER, and
NOLEN R. CHEW, JR.,
CIVIL NO. 05-1539
PARTITION ACTION
Plaintiffs,
v.
GARY S. YANNONE.
Defendant.
PRAECIPE FOR ENTRY OF APPEAIFlANCE
TO THE PROTHONOTARY:
Please enter the appearance of Gates, Halbruner & Hatch, P.C. as the attorneys
of record for Defendant, Gary S. Yannone.
Respectfully submitted,
Date: 1 August 2005
By:
;~T~, HALB U~7R~
v ~ /. ~7//r
7>1. rt Icn s Pelerh ,
Attorneys for Defendant, Gary S. Yan
CERTIFICATE OF SERVICE
I, Jeffrey L. Shaffer, Legal Assistant, hereby certify that a true and correct copy of
the foregoing Praecipe for Entry of Appearance has been served this day upon the
following counsel of record by United States first class mail, postage prepaid, addressed
as follows:
Christopher E. Rice, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Plaintiffs, Jeffrey T. Kottmyer
& Nolen R. Chew
GATES, HALBRUNER & HATCH, P.C.
Date: 1 August 2005
~ L~t~jf
By: J~NWly L~ Shaffer, Le~1 Assistant
Attorneys for Defendant, Gary S. Yannone
1"'-,:)
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JEFFREY T. KOTTMYER AND
NOLEN R. CHEW, JR.,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
GARY S. YANNONE,
DEFENDANT
05-1539 CIVIL TERM .,/
IN RE: THE LOST VALLEY, LLC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-1640 CIVil TERM
AND NOW, this
ORDER OF COURT
tJ ''\~ day of August, 2005, the motion of Gary S.
Yannone for a continuance of the hearing currently scheduled for August 3, 2005, IS
GRANTED. The hearing is rescheduled to Monday, August 22,2005, at 10:30 a.m., in
Courtroom Number 2, Cumberland County Courthouse, C .
//
7he cou~,
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Carl C, Risch, Esquire
For Jeffrey T, Kottmyer and Nolen R, Chew, Jr.
Albert Nicholas Peterlin, Esquire
For Gary S. Yannone
I
:sal
JEFFREY T. KOTTMYER AND
NOLEN R. CHEW, JR.,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V,
GARY S, YANNONE,
DEFENDANT
05-1539 CIVIL TERM
ORDER OF COURT
AND NOW, this
2-V\.
day of August, 2005, following a preliminary
conference pursuant to Pa. Rule of Civil Procedure 1558, IT IS ORDERED that a
hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse,
Carlisle, Pennsylvania at 8:45 a.m., Wednesday, November 2, 2005, for the purpose of
taking evidence to determine the manner of division of the subjec
Edgar B. Bayley, J.
~ C, Risch, Esquire
For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
:sal
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L FILES DATAFJLfGclle'-;lI,CWTenl' J 11IO_2,Aclkm 10 prevent Waiite
JEFFREY T. KOTTMYER and
NOLEN R, CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 05-1539
v.
GARY S. YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITION
MOTION TO APPOINT A RECEIIVER
PURSUANT TO PA.R.C.P. 1533
AND NOW, comes the Plaintiffs by and through their attomeys, MARTSON DEARDORFF
WILLIAMS & OTTO, and move as follows:
1. On March 22, 2005, Plaintiffs filed a Complaint seeking Partition of Real Property
against Defendant.
2. As alleged in the Complaint, Plaintiffs and Defendant are co-owners of a parcel of
land (1555 McClure's Gap Road) in Cumberland County as tenants in common,
3. Plaintiffs were in exclusive possession of the parcel ofland and improvements when
the Complaint was originally filed.
4. On or about September 16,2005, Defendant, who was out of possession, broke into
the house located at 1555 McClure's Gap Road, changed the locks, and is now manifesting an intent
to share possession with Plaintiffs.
5. While Defendant, as a co-tenant, is entitled to possession of the whole, he is not
pennitted to commit waste upon the real estate.
6, Defendant has, in the past, committed waste upon the real estate,
7, Since retaking possession on or about September 16,2005, Defendant has already
committed waste upon the real property by intentionally damaging a display case in the home.
8. Defendant has threatened to commit waste upon the property in the past. He has
specifically threatened to bum down the property.
9. Plaintiffs' interest in the real property as co-tenants is jeopardized by Defendant's
wrongful conduct and, consequently, a receiver should be appointed pursuant to Pa.R.C.P. 1533 until
the property is partitioned or sold pursuant to an order of court.
10. Plaintiffs aver that they should be appointed co-receIvers, with all of the
responsibilities imposed upon them in Pa.R.C,P. 1533, until final resolution ofthe Partition action.
WHEREFORE, Plaintiff requests this Honorable Court enter an Order under Pa.R.C,P, 1533
scheduling a hearing on the appointment of a receiver.
MARTSON DEARDORFF WILLIAMS & OTTO
@to
By
Carl C, Risch, Esquire
J.D. No, 75901
Ten East High Street
Carlisle, PAl 7013
(717) 243-3341
Attorneysfor Plaintiffs
Date: September 19,2005
VERIFICATION
I, Nolen R, Chew, Jr., acknowledge I have the authority to execute this Verification and
certify the foregoing is based upon infonnation which has been gathered by my counsel in the
preparation of the lawsuit. The language ofthis document is that of counsel and not my own. I have
read the document and to the extent the document is based upon infonnation which I have given to
my counsel, it is true and correct to the best of my knowledge, infonnation and belief. To the extent
the content afthe document is that of counsel, I have relied upon counsel in making this Verification.
This statement and Verification are made subject to the penalties ofl8 Pa.C.S, *4904 relating
to unsworn talsification to authorities, which provides that if I knowingly make false avennents, I
may be subject to criminal penalties.
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JEFFREY T. KOTTMYER and
NOLEN R. CHEW, JR,
Plaintiffs,
v,
GARY S, YANNONE,
Defendant,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 05-1539
CIVIL ACTION
ACTION IN PARTITION
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served this date by depositing same in the
Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows:
Dated: September 19, 2005
Albert N. Peterlin, Esquire
Gates, Halbruner & Hatch, P.C.
1013 Mumma Road, Suite 100
Lemoyne, P A 17043
MAR~30RFF WILLIAMS & OTTO
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JEEFREY T, KOTTMYER and
NOLEN R. CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No, 05-1539
v.
GARY S, YANNONE,
Defendant,
CIVIL ACTION
ACTION IN PARTITlON
ORDER
AND NOW, thiS(~{Pt!ray of ~ 2005, a hearing on the appointment of a
Receiver pursuant to Pa.R.C,P, 1533 shall be scheduled for the~ day Of~ 2005, at
0: ~S o'clock in Courtroom~, " /:7'
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Gates. Halbruner & Hatch, P.C.
By: Albert Nicholas Peterlin, Esquire
PA ID No. 84180
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
a,peterlin@qateslawfirm.com
www.qateslawfirm.com
Attorneys for Defendant, Gary S. Yannone
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T. KOTTMYER, and
NOLEN R. CHEW, JR.,
CIVIL NO. 0:5-1539
PARTITION ACTION
Plaintiffs,
v.
GARY S. YANNONE,
Defendant.
DEFENDANT, GARY S. YANNONE'S ANSWER TO PLAINTIFFS' MOTION TO
APPOINT THEMSELVES AS RECEIVERS PURSUANT TO PA.R.C.P. 1533
Defendant, Gary S. Yannone ("Mr. Yannone"), by and through his attorneys,
Gates Halbruner & Hatch PC, hereby answers the Plaintiffs' Motion to Appoint
themselves as Receivers Pursuant to Pa.R.C.P. 1533.
1. Admitted. By of further response, the property referred to includes the
personal residence of Mr. Yannone, Mr. Yannone is a one-third owner of the property
pursuant to the relevant deed, and Plaintiffs locked him out of the property without
justification.
2. Admitted. By way of further response, the property referred to is the
personal residence of Mr. Yannone which he deeded partial interests in the relevant
property to the Plaintiffs because, at the time, Plaintiffs and Mr. Yannone were close
friends and Mr. Yannone wished to share the business purpose of the property with his
best friends. Further, despite Mr. Yannone being a one-third owner of the property at
issue, Plaintiffs locked Mr. Yannone out of the property without justification.
3. Denied. Mr. Yannone was and is a one-third owner of the property.
Despite Mr. Yannone being a one-third owner of the property at issue, Plaintiffs
surreptitiously locked him out of the property by changing the locks within days of Mr.
Yannone's travel out-of-state. At the time, Mr. Yannone was and is a one-third owner of
the property, his personal belongings were maintained at the property, he received his
mail to that address, and his address on his Pennsylvania driver's license identifies the
property as his residence.
4. Admitted in part, denied in part. It is admitted that Mr. Yannone is not
attempting to prevent Plaintiffs from entering or utilizing thE~ property. All other
averments contained in this paragraph are specifically denied and proof demanded. By
way of further response, Mr. Yannone was and is a one-third owner of the property.
Plaintiffs have improperly prevented him from gaining aCCEiSS to the property. As an
owner, Mr. Yannone retained the services of a locksmith who made keys to each door
and lock on the property for Mr. Yannone after confirming Mr. Yannone's ownership
interest. In fact, only one of the locks on the entire property was changed due to the
fact the locksmith could not make a key for that particular lock. For the convenience of
the Plaintiffs, keys for this particular lock were provided to them.
5. Admitted in part, denied in part. It is admittEld that Mr. Yannone, as an
equal co-owner of the property, is entitled to possession of the whole property and that
none of the owners of the property may commit waste upon it. All other averments
contained in this paragraph are specifically denied. By way of further response, it is
denied that Mr. Yannone is committing waste on the prop1erty. In fact, Plaintiffs have left
the property in a state of serious disrepair and neglect since locking Mr. Yannone out of
it.
6. Denied. The property was Mr. Yannone's home. It was not ever nor is the
home of either of the Plaintiffs. As such, Mr. Yannone maintained the property.
7. Admitted in part, denied in part. It is admitted that Mr. Yannone has
obtained keys to the locks and doors at the property so that he may have equal access
and use of the property as is his right. All other averments contained in this paragraph
are specifically denied and strict proof demanded. By wa~' of further response, Mr.
Yannone is not preventing Plaintiffs from accessing or utilizing the property; Plaintiffs
left the property in a serious state of neglect and disrepair since locking Mr. Yannone
out without justification; and Mr. Yannone has not taken any action that would result in
waste being committed upon the property. By way of explanation, Mr. Yannone took
down a shelf the Plaintiffs had erected in Mr. Yannone's personal area of the property.
The shelf was being utilized by Plaintiffs to display artifacts. He did not damage any
display case. Removing an item that is not a fixture does not constitute waste any more
than moving a chair from one room to another does. Finally, Plaintiffs have turned Mr.
Yannone's bedroom into a conference room.
8. Denied. The averments contained in this paragraph are specifically
denied and strict proof demanded. By way of further response, it is the Plaintiffs who
make wild statements and potentially terroristic threats towards Mr. Yannone. For
example, Nolan R. Chew, Jr. threatened to murder Mr. Yannone. In addition, Plaintiffs,
directly or through an agent, contacted the Pennsylvania State Police and reported that
Mr. Yannone was illegally on the property and either trespassing or burglarizing the
property. When the State Police appeared, Mr. Yannone produced his driver's license,
mail, and copy of the deed. The State Police realized they were duped by the Plaintiffs
and left Mr. Yannone and the property.
9. Denied. To the extent the averments contained in this paragraph
constitute conclusions of law, no response is required. To the extent a response is
required, Mr. Yannone has not taken any action that is noli within his rights as an equal
co-owner of the property, property that happened to be his home before he generously
and naively included Plaintiffs, who he believed to be his closest friends, into a new and
exciting business venture. The only relevant conduct Mr. Yannone has taken is limited
to having keys constructed to the all of the locks and doom on the property and having a
single lock changed for which a key could not be made. This action was taken for the
sole purpose of obtaining the same access to the property as Plaintiffs had. Contrary to
the averments contained in this paragraph, it is Plaintiffs who have engaged in wrongful
conduct, including locking Mr. Yannone out of the property without justification, leaving
the property in a serious state of neglect and disrepair; making terroristic threats; falsely
reporting to the State Police that Mr. Yannone was trespassing on and/or burglarizing
the property; and, "remodeling" certain portions of the prc>perty despite knowing it was
Mr. Yannone's personal area.
10. Denied. To the extent this paragraph constiltutes a prayer for relief, no
response is required. To the extent a response is required, Plaintiffs are asking the
Court to freeze Mr. Yannone out of the property despite the fact he is an equal co-owner
with the Plaintiffs and contrary to his constitutional property rights. Further, the
disingenuousness of Plaintiffs' position is made patently obvious by their request that
they be appointed the receivers. This is ironic, given the fact it was they who improperly
removed Mr. Yannone from the Property, have failed to maintain it, and continue to
engage in ethically questionable and potentially criminal behavior.
WHEREFORE, Defendant, Gary S. Yannone, requests this Honorable Court
enter an Order denying Plaintiffs' Motion to Appoint them as Receivers pursuant to
Pa.R.C,P. 1533, awarding Defendant reasonable attorneys' fees pursuant to 42
Pa.C.S.A. S 2503 in defending this motion, and for such other relief as is just and
proper.
Respectfully submitted,
Date: 28 September 2005
By:
G~AS' HALBRLJNER
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Alb Ni asl erli , Ire
Attorneys for DefEmdant, Gary S. Yan
VERIFICATION
I, Gary S. Yannone, verify that I have reviewed the foregoing Defendant, Gal}' S.
Yannone's Answer to Plaintiffs' Motion to Appoint Themselves as Receivers Pursuant to
PaR. CP. 1533 and verify the facts contained therein are true and correct to the best of
my knowledge, information and belief.
I further verify that these statements made by me are subject to the penalties of
18 Pa.C.S.A. S 4904 relating to unsworn falsification to authorities,
Date; 26 September 2005
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CERTIFICATE OF SERVIC:E
I, Albert Nicholas Peterlin, Esquire hereby certify tl1at a copy of the foregoing
Defendant, Gary S. Yannone's Answer to Plaintiffs' Motion to Appoint Themselves as
Receivers Pursuant to Pa.R.C.P. 1533 has been served this day upon the following
counsel of record by United States first class mail, posta~le prepaid, addressed as
follows:
Christopher E. Rice, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Plaintiffs, Jeffrey T. Kottmyer
& Nolen R. Chew
Date: 28 September 2005 By:
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JEFFREY T. KOTTMYER AND
NOLEN R. CHEW, JR.,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
GARY S, YANNONE,
DEFENDANT
05-1539 CIVIL TERM
ORDER OF COURT
AND NOW, this
ZI
day of October, 2005, IT IS ORDERED:
(1) The motion of Jeffrey T, Kottmyer and Nolen R. Chew, Jr. for the
appointment of a receiver, IS DENIED.
(2) Gary S, Yannone may reside at 1555 McClure's Gap Road for $300 a month
rent payable on the first of each month and prorated for the month he moved back into
the property, this money to be applied toward the mortgage,
(3) No co-owner shall commit waste or remove any items from the Rroperty.
By the Gourt, ~Y'
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JEFFREY T. KOTTMYER and
NOLEN R, CHEW, JR.
Plaintiffs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: No, 05-1539
v.
GARY S, YANNONE,
Defendant,
CIVIL ACTION
: ACTION IN PARTITION
ORDER OF COURT
AND NOW, this ~ day of November, 2005, the hearing to take additional testimony
scheduled for Thursday, November 17,2005, at 1 :30 p,m. is continued to Monday, December 19,
2005, at 8:45 a.m,
By the ~tirt,
Edgar B. Bayley, J.
~ribution:
~arl C. Risch, Esquire
for Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
Albert N. Peterlin, Esquire
vf6r Gary S. Yannone
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Gates, Halbruner & Hatch, P,C.
By: Albert Nicholas Peterlin, Esquire
PA 84180
Byron L. McMasters, Esquire
PA 92410
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
b, mcmasters@Qateslawfirm,com
www.Qateslawfirm.com
Attorneys for Defendant, Gary S. Yannone
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T, KOTTMYER, and
NOLEN R. CHEW, JR.,
CIVIL NO. 05-1539
PARTITION ACTION
Plaintiffs,
v.
GARY S. YANNONE,
Defendant.
SUBSTITUTION OF COUNSEL WITHOUT LEAVE
OF COURT (RULE 1012(b)(2)(iill
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter the appearance of Byron L. McMasters, Esquire on behalf of Defendant,
Gary S. Yannone,
I hereby certify that this change is not intended to, nor will it, delay this
proceeding to the best of my knowledge, information and belief,
Papers may be served at the address set forth below,
Byron L. McMasters, Esquire
PA 92410
Gates, Halbruner & Hatch, P.C.
1013 Mumma Road, Suite 100
Lemoyne, PA 17043-1144
(717) 731-9600
(717) 731-9627 telecopier
Date: 23 November 2005
By: Byr. ;Masters, Esquire
Attorneys for Plaintiff
PRAECIPE FOR WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Withdraw the appearance of Albe~N. j~in, Es . (
Date: 23 November 2005 By: zJ~ 01 pet~,. s
2
.
CERTIFICATE OF SERVICE
I, Jeffrey L. Shaffer, Legal Assistant, hereby certify that a true and correct copy of
the foregoing Substitution of Counsel Without Leave of Court (Rule 1012(b)(2)(ii)) has
been served this day upon the fOllowing counsel of record by United States first class
mail, postage prepaid, addressed as follows:
Christopher E. Rice, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Plaintiffs, Jeffrey T. Kottmyer
& Nolen R. Chew
GATES, HALBRUNER & HATCH, P.C.
Date: 23 November 2005
By:
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Jeff My L1, Shaffer, ifegal Assistant
Attorneys for Defendant, Gary S. Yannone
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JEFFREY T. KOTTMYER AND
NOLEN R. CHEW, JR.,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V,
GARY S, YANNONE,
DEFENDANT
05-1539 CIVIL TERM
ORDER OF COURT
AND NOW, this
~
day of December, 2005, finding that:
(1) the property at 1555 McClures Gap Road, Cumberland County,
Pennsylvania, cannot be divided without prejudice to or spoiling the whole;
(2) no party is entitled to object to a private sale bElcause the majority owners
are plaintiffs and not defendant;
(3) a mortgage secured by the property, under whllch only Kottmyer and Chew
are obligors, has a payoff as of December 18, 2005, of $2:31 ,409.16;
(4) the value of the property is $231,500; and
(5) information regarding the property including deed description, mortgage,
liens, encumbrances, and charges which affect the property can be examined at the
Cumberland County Courthouse:
IT IS ORDERED that the property shall be offered for private sale by bids
confined to the parties and opened on Monday, February 6, 2006, at 11 :30 a.m., in
Courtroom II, Cumberland County Courthouse, Carlisle, Pennsylvania. No sale shall be
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For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
Byron McMasters, Esquire
For Gary S. Yannone
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Gates, Halbruner & Hatch, P.C.
By: Byron L. McMasters, Esquire
PA 92410
Byron L. McMasters, Esquire
PA 72655
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
m.eshelman@gateslawfirm.com
www.Qateslawfirm.com
Attorneys for Defendant, Gary S. Yannone
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
JEFFREY T. KOTTMYER, and
NOLEN R. CHEW, JR.,
CIVIL NO. 05-1539
PARTITION ACTION
Plaintiffs,
v.
GARY S. YANNONE,
Defendant.
SUBSTITUTION OF COUNSEL WITHOUT LEAVE
OF COURT (RULE 1012(b)(2)(ii))
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter the appearance of Matthew J. Eshelman, Esquire on behalf of Defendant,
Gary S. Yannone,
1 hereby certify that this change is not intended to, nor will it, delay this
proceeding to the best of my knowledge, information and belief.
Papers may be served at the address set forth below.
Matthew J. Eshelman, Esquire
PA 72655
Gates, Halbruner & Hatch, P.C,
1013 Mumma Road, Suite 100
Lemoyne, PA 17043-1144
(717) 731-9600
(717) 731-9627 telecopier
Date: JAN 1 6 2006 By:
GAT Ee:CH, P.C.
MATTHEW J. ELMAN, Esquire
Attorneys for Plaintiffs
PRAECIPE FOR WITHDRAWAL OF APPEARANCE
TO THE PROTHONOTARY:
Date: j}/ tJ6
By:
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JEFFREY T, KOTTMYER AND
NOLEN R. CHEW, JR.,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
GARY S, YANNONE,
DEFENDANT
05-1539 CIVIL TERM
AND NOW, this
ORDER OF COURT
}O ~ day of February, 2006,
a) Having determined that the property at 1555 McClures Gap Road,
Cumberland County, is not capable of division without prejudice, this court issued the
notice required by Pa,R.C,P. No. 1566,
b) All parties were given at least twenty days' notice of a private sale in the
manner prescribed by local rule (See C.C,R.P. No, 208.3(a)(6)),
c) On the 6th day of February 2006 the property was offered at a private sale
confined to the parties pursuant to Pa.R.C.P. No. 1567,
d) The amount bid exceeds the valuation of the whole of the property fixed by
this court at $231,500,
e) The high bidder was Jeffrey T, Kottmyer at $231,501.00, IT IS ORDERED:
1) 1555 McClures Gap Road, Cumberland County, is awarded to Jeffrey T.
Kottmyer.
2) Since the mortgage secured by the property, under which only plaintiffs
Jeffrey T. Kottmyer and Nolen R. Chew, Jr. are obligors, has a payoff of at least
$231,409.16, Jeffrey T. Kottmyer's assumption of the mortgage obligation shall
constitute $231,409.16 in consideration toward the purchase of the property leaving
$91.84 available as owelty, or $30.61 each.
I ~
3) Gary S. Yannone shall vacate 1555 McClures Gap Road, no later than
February 28, 2006, for which he will owe $269.39 rent for the month ($300,00 rent less
$30.61). Possession shall be delivered to Jeffrey T. Kottmyer not later than February
B(;e Court,
~/
Edgar B. Bayley, J.
28, 2006.
Carl C. Risch, Esquire
For Jeffrey T. Kottmyer and Nolen ,Chew, Jr.
Matthew Eshelman, Esquire
For Gary S, Yannone
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