HomeMy WebLinkAbout05-1640
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: THE LOST VALLEY, LLC
No" OS" - /&.Ltb
Ct/uL ~fJLl
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 Petition 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 Petition or for any other claim or
relief requested by the Petitioners" 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 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 ABOGADO INMEDIATAMENTE. SI US TED 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
In re: THE LOST VALLEY, LLC
No. O~ -JI..<tb (l~~,L ~~
PET I T ION
The petition of Jeffrey T. Kottmyer and Nolen R. Chew, Jr.,
respectfully represents as follows:
1. Petitioner, Jeffrey T. Kottmyer, is an adult individual
residing at 8654 Tower Drive, Laurel, Maryland 20723.
2. Petitioner, Nolen R. Chew, Jr., is an adult individual
residing at 61 197th Street, Star Prairie, Wisconsin 54026.
3. The Respondent, Gary S. Yannone, is an adult individual
whose last known address is P. O. Box 116, South Bend, Nebraska
68058.
4. The Lost Valley, LLC (hereinafter referred to as the LLC)
is a Pennsylvania limited liability company, having its principal
place of business at 1555 McClure's Gap Road, Carlisle,
Pennsylvania 17013. The LLC is a for-profit entity, the purpose of
which is to manage certain real property in Cumberland County,
pennsyl vania which, at present, has principally been used as a
rental, but which has also been used as a museum location and
archaeological dig site, and which is believed to have further
development potential in those regards.
5. The LLC is organized under the Pennsylvania Limited
Liability law of 1994.
6. The LLC has been organized with and presently has three
members, being the two Petitioners and the Respondent herein.
There are no certificates of membership interest, and the
management is not vested in a manager or managers, but requires
unanimous action on the part of the members. Each member has an
equal interest and, therefore, an equal vote. The Operating
Agreement of the LLC requires unanimity for the conduct of all
business affairs.
7. An Operating Agreement was executed by the members on
November 1, 2003, a copy of which is attached hereto as Exhibit A
and incorporated herein by reference.
8. The members are deadlocked in the management of the LLC' s
affairs and they, being the two Petitioners on the one side, and
the Respondent on the other, are unable to break the deadlock by
agreeing unanimously. The deadlock exists as to the following
matters:
a. Respondent has failed to make required contributions
of time and capital as required in the LLC Agreement.
b. Respondent has failed to attend meetings of the LLC
that are necessary for its conduct of business.
c. Respondent has failed to apprise the LLC or its
other members of his address and refuses to respond to their
attempts to communicate with him.
9. The aforementioned actions by Respondent are tantamount
to a refusal to agree to the conduct of the LLC' s business,
requiring that the LLC be dissolved under Section 7.07 of the
Operating Agreement.
10. The deadlock referenced in paragraph 8 above has also
2
created a deadlock in the ability of the members to agree upon a
voluntary dissolution of the LLC.
11. The existing state of the LLC's affairs and the financial
damage and loss caused to the LLC as a result may result in a loss
of the LLC's valuable contracts and rights in its business
location, and will cause the LLC irreparable injury and loss.
12. If the aforesaid state of affairs is permitted to
continue to exist, the LLC will continue to suffer irreparable loss
and injury for an indefinite time into the future.
WHEREFORE, Petitioners request your Honorable Court to enter
a decree of judicial dissolution of the LLC pursuant to 15
Pa.C.S.A. Section 8972 and, in the interim:
a. To order the removal of Respondent as a voting
member of the LLC and to appoint, as justice may require, a
custodian to cast any necessary vote on his behalf so that the
business of the LLC can continue without risk of harm or lossi
b. To order Respondent to account to the LLC for any
sums properly due and owing the LLC as a result of his failure to
meet obligations to the LLCi and
c. To grant such other and further relief as shall be
appropriate and necessary under the circumstances.
Respectfully submitted,
it~~
Marc Roberts, Esquire
Attorney for Petitioners
149 East Market Street
York, PA 17401
(717) 843-1639
LD. No. 34355
3
'.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
In re: THE LOST VALLEY, LLC
No.
VERIFICATION
I, JEFFREY T. KOTTMYER, do hereby verify that the facts set
forth in the above foregoing pleading are true and correct to the
best of my personal knowledge or information and belief, and that
any false statements herein are made subject to the penalties of
Section 4904 of the Crimes Code (18 Pa.C.S. Sec. 4904) relating to
unsworn falsification to authorities.
Date:
.JJ 2-11 {)S
~
~ E T. TMYER
OPERATING AGREEMENT OF
THE LOST VALLEY, LLC
A Pennsylvania Lirni too Liability Company
THIS OPERATING AGREEMENT OF THE
"Agreement"), dated as of November 1st,
effective November 1st, 2003, is executed
valuable consideration, by the members (as
LOST VALLEY, LLC (this
2003, and intended to be
and agreed to, for good and
defined below) .
ARTICLE I - DEFINITIONS
1.01 Definitions. As used in this Agreement, the following terms
have the following means:
"Act" means the Pennsylvania Limited Liability Company Law of
1994, 15 Pa.C.S. Section 8901 et seq., and any successor statute, as
amended from time to time.
"Agreement" has the meaning given that term in the introductory
paragraph.
"Bankrupt" means with respect to any person, a person (a) who (i)
makes a general assignment for the benefit of creditors; (ii) files a
voluntary bankruptcy petition; (iii) becomes the subject of an order
for relief or is declared insolvent in any federal or state bankruptcy
or insolvency proceedings; (iv) files a petition or answer seeking for
the person a reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any law; (v) files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the person in a proceeding of
the type described in sub clauses (i) through (iv) of this clause (a);
or (vi) seeks, consents to, or acquiesces in the appointment of a
trustee, . receiver, or liquidator of the person's or of al~ or any
substantial part of the person's properties; or (b) against which, a
proceeding seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any law
has been commenced and 120 days have expired without dismissal thereof
or with respect to which, without the person's consent or acquiescence,
a trustee, receiver, or liquidator of the person or of all or any
substantial part of the person's properties has been appointed and 90
days have expired without the appointment's having been vacated or
stayed, or 90 have expired after the date of expiration of a stay, if
the appointment has not previously been vacated.
"Business Day" means any day other than a Saturday, a Sunday, or a
holiday on which national banking associations in the Commonwealth of
Pennsylvania are closed.
"Capi tal Contribution" means any contribution by a member to the
capital of the Company.
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EXHIBIT A
"Certificate" has the meaning given that term in Section 2.01.
"Code" means the Internal Revenue Code of 1986 and any successor
statute, as amended from time to time.
"Commitment" means, subject in each case to adjustments on account
of dispositions of membership interests permitted by this Agreement,
(a) in the case of a member executing this Agreement as of the date
hereof or a person acquiring that membership interest, the amount
specified for that member as his commitment on Exhibit A, and (b) in
the case of a membership interest issued pursuant to Section 3.03, the
commitment established pursuant thereto.
"Company" means THE LOST VALLEY, LLC, a Pennsylvania limited
liability company.
"Delinquent Member" has the meaning given that term in Section
4.03(a).
"Dispose," "Disposing," or "Disposition" means a sale, assignment,
transfer, exchange, mortgage, pledge, grant of a security interest, or
other disposition or encumbrance (including, without limitation, by
operation of law), or the acts thereof.
"General Interest Rate" means a rate per annum equal to the prime
rate plus 8%, with adjustments in that varying rate to be made on the
same date as any change in that rate.
"Lending Member" is one or more members who advance the portion of
the delinquent member's contract commitment that is in default.
"Member" means any person executing this Agreement as of the date
of this Agreement as a member or hereafter admitted to the Company as a
member as provided in this Agreement, but does not include any person
who has ceased to be a member in the Company.
"Membership Interest" means the interest of a member in the
Company, including, without limitation, rights to distribution
(liquidating or otherwise), allocations, information, and to consent to
approve.
"PaBCL" means the Pennsylvania Business Corporation Law of 1988,
15 Pa.C.S. Section 1101 et seq., and any successor statute, as amended
from time to time.
"Permitted Transferee" None.
membership interest in the Company.
No member may transfer his
"Required Interest" means one or more members having among them
more than fifty (50%) percent of the sharing ratios of all members.
"Sharing Ratio" with respect to any member means a fraction
(expressed as a percentage), the numerator of which is that member's
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commi tm'ent and the denominator of which is thes"um of the commitments
of all members.
other terms defined herein have the meanings so given them.
1.02 Construction. Whenever the context requires, the gender of
all words used in this Agreement includes the masculine, feminine, and
neuter. All references to Articles and Sections refer to articles and
sections of this Agreement, and all references to Exhibits are to
Exhibits attached hereto, each of which is made a part hereof for all
purposes.
ARTICLE I I - ORGANIZATION
2.01 Formation. The Company has been organized as a Pennsylvania
limi ted liability company by the filing of a Certificate of
Organization (the "Certificate") with the Department of State of the
Commonwealth of Pennsylvania under and pursuant to the Act.
2.02 Name. The name of the Company is "THE LOST VALLEY, LLC," and
all Company business must be conducted in that name or such other names
that comply with applicable law as the members may select from time to
time.
2.03 Registered Office; Registered Agent; Principal Office in the
United states; Other Offices. The registered office of the Company
required by the Act to be maintained in the Commonwealth of
Pennsylvania shall be 1555 MCClure's Gap Road, Carlisle, PA 17013, or
such other office as the members may designate from time to time in the
manner provided by law.
2.04 Purposes.
following business:
The Company is organized to undertake the
Property management of two adjoining parcels of real estate at 1555
McClure's Gap Road, one improved, one unimproved;
Rental of said property, or portions thereof, from time to time,
for residential or commercial purposes, as the opportunities and
interests of the LLC dictate;
Investigation and development of the potential of the site to be
used for scientific, educational or cultural purposes as an
archeological or paleontological site and/or museum.
2.05 Foreign Qualification. Prior to the Company's conducting
business in any juriSdiction other than the Commonwealth of
Pennsylvania, the members shall cause the Company to comply, to the
extent procedures are available and those matters are reasonably within
the control of the members, with all requirements necessary to qualify
the Company as a foreign limited liabili ty company in that
jurisdiction.
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2.06 Term. The Company commenced on the date the Certificate was filed
with the Department of State of the Commonwealth of Pennsylvania
pursuant to Section 8314 of the Act and shall continue until dissolved
in accordance with Section 12.01 of this Operating Agreement.
ARTICLE III - MEMBERSHIP, DISPOSITIONS OF INTERESTS
3.01 Initial Members. The initial members of the Company are the
persons executing this Agreement as of the date hereof as members, each
of whom is admi tted to the Company as a member effecti ve
contemporaneously with the execution by such person of this Agreement.
3. 02 No Certification; Restrictions on the Disposition of an
Interest.
(a) No membership interest in the Company shall be represented by
a separate certificate.
(b) Except as specifically provided in this Section 3.02, a
disposition of an interest in the Company may not be effected without
the consent of all of the other members (which consent may be granted
or withheld in each member's sole discretion). Any attempted
disposition by a person of an interest or right, or any part thereof,
in or in respect of the Company other than in accordance with this
Section 3.02 shall be, and is hereby declared, null and void ab initio.
3.03 Addi tional Members. Addi tional persons may be admitted to
the Company as members and membership interests may be created and
issued to those persons to existing members as the members may
determine at the time of admission.
3.04 Information. In addition to the other rights specifically
set forth in this Agreement, each member is entitled to all information
to which that member is entitled to have access pursuant to Sections
1508 and 1764 of the PaBCL under the circumstances and subject to the
conditions therein stated.
3.05 Liabili ty to Third Parties. No member shall be liable for
the debts, obligations or liabilities of the Company, including under a
judgment, decree or order of a court.
3.06 Lack of Authority. No member, on his own, has the authority
or power to act for or on behalf of the Company, to do any act that
would be binding on the Company, or to incur any expenditure on behalf
of the Company.
3.07 Powers of the Members. The members shall have all powers to
do all things necessary or useful in order to accomplish the purposes
of the Company and to conduct its business, all in accordance with the
provisions hereof, and in accordance with past motions and budgets duly
approved. In particular, and without limitation of the foregoing, the
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members shall have the full right, power and' authority from time to
time and at any time on behalf of the Company:
a. To open, maintain and close bank accounts and draw
checks or otherwise for the payment of monies;
b. To do any act or execute any document or enter into any
contract or agreement of any nature necessary or desirable, in pursuit
of the purposes of the Company;
c. To borrow or raise monies for any of the purposes of
the Company, including, without limitation, to refinance existing
loans, and from time to time without limitation as to the manner or
time or repayment, to draw, make, issue, accept, endorse, execute, sell
or otherwise dispose of promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to mortgage,
hypothecate, pledge or credit any security interest in all or part of
the Company's assets;
d. To invest temporarily assets of the Company in
securities and deposits;
e. To exercise any and all rights and privileges and
powers available to the Company, or any nominee of the Company, in
connection with any Company property and rights therein;
f. To adjust, compromise, settle or refer to arbitration
any claim against or in favor of the Company or any nominee, and to
insti tute, prosecute or defend any legal proceedings relating to the
business and property of the Company;
g. To purchase contracts of liability, casualty and other
insurance which the Members deem advisable, appropriate or convenient
for the protection of the assets or affairs of the Company or for any
purpose convenient or beneficial to the Company;
h. To engage independent attorneys,
consultants, professionals, contractors and such other
or corporations, to. provide services to the Company,
deem necessary or advisable and for such compensation
may determine;
accountants,
persons, firms
as the Members
as the Members
i. To set up and from time to time increase the reserves
of the Company as the Members deem reasonable and necessary;
j. To do any and all of the foregoing upon such terms and
conditions as the Members may deem properly, and to execute,
acknowledge and deliver any and all instruments in connection with any
or all of the foregoing and to take such further action as the Members
may deem necessary or advisable in connection with the management and
business of the Company.
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ARTICLE IV - CAPITAL CONTRIBUTIONS .
4.01 Initial Contributions. Contemporaneously with the execution
by such member of this Agreement, each member shall make the capital
contributions, in cash, property or instrument assigning property
interests, described for that member in Exhibit A.
4.02 Subsequent Contributions. Each member shall contribute to
the Company, in cash, on or before the date specified as hereinafter
described, that member's sharing ratio of all monies that are necessary
to enable the Company to cause the assets of the Company to be properly
operated and maintained and to discharge its costs,expenses,
obligations, and liabilities; provided, however, that a member is not
obligated to contribute a total amount, when, added to all capital
contributions that a member previously has made pursuant to Section
4.01 or this Section 4.02, exceeds that member's commitment.
4.03 Failure to Contribute. If a member does not contribute by
the time required all or any portion of a capital contribution which
that member is required to make as provided in this Agreement, the
other members may exercise, on notice to that member (the "Delinquent
Member"), one or more of the following remedies:
(a) Advancing a portion of the delinquent member's capital
contribution that is in default with the following results:
(i) the sum advanced constitutes a loan from the lending
members to the delinquent member. and a capital contribution of that sum
to the Company by the delinquent member pursuant to the applicable
provisions of this Agreement,
(ii) the principal' balance of the loan
unpaid interest thereon is due and payable in whole
after written demand therefore by the lending members
member,
and all accrued
on the tenth day
to the delinquent
(iii) the amount lent bears interest at the default interest
rate from the day that the advance is deemed made until the date that
the loan, together with all the interest accrued on it, is repaid to
the lending members,
(iv) all distributions from the Company that otherwise would
be made to the delinquent member (whether before or after dissolution
of the Company) instead shall be paid to the lending members until the
loan and all interest accrued on it have been paid in full to the
lending members (with payments being applied first to accrued and
unpaid interest and then to principal),
(v) the payment of the loan and interest accrued on it is
secured by a security interest in the delinquent member's membership
interest,
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(vi) the lending members shall have the right, in addition to
the other rights and remedies granted pursuant to this Agreement or
available at law or in equity, to take any action (including, without
limitation, court proceedings) that the lending members may deem
appropriate to obtain payment by the delinquent member of the loan and
all accrued and unpaid interest on it, at the cost and expense of the
delinquent member; or
(b) exercising the rights of a secured party under the Uniform
Commercial Code of the Commonwealth of Pennsylvania; or
(c) exercising any other rights and remedies available at law or
in equity.
4.04 Return of Contributions. A member is not entitled to the
return of any part of his capital contributions or to be paid interest
in respect of either his capital account or his capital contributions.
An unrepaid capital contribution is not a liability of the company or
of any member. A member is not required to contribute or to lend any
cash or property to the Company to enable the Company to return any
member's capital contributions.
4.05 Advances by Members. If the Company does not have sufficient
cash to pay its obligations, any member may agree to advance all or
part of the needed funds to or on behalf of the Company. An advance
described in this Section 4.05 constitutes a loan from the member to
the Company, bears interest at the general interest rate from the date
of the advance until the date of payment, and is not a capital
contribution.
4.06 Capital Account. A capital account shall be established and
maintained for each member. Each member's capital account (a) shall be
increased by (i) the amount of money contributed by that member to the
Company, (ii) the fair market value of property contributed by that
member to the Company (net of liabilities secured by the contributed
property that the Company is considered to assume or take subj ect to
under Section 752 of the Code), and (iii) allocations to that member of
Company income and gain (or items thereof), including income and gain
exempt from tax as recommended by the Company's accountant.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.01 Allocations.
(a) Except as may be required by Section 704(c) of the Code and
Treas. Reg. Section 1. 704-1 (b) (2) (iv) (f) (4), all items of income, gain,
loss, deduction, and credit of the company shall be allocated among the
members in accordance with their sharing ratios.
(b)
All
items
of
income, gain,
gzisy
loss, deduction,
and
credit
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. .
allocable to any membership interest that may have been transferred
shall be allocated between the transferor and the transferee based on
the portion of the calendar year during which each was recognized as
owning that membership interest, without regard to the results of
Company operations during any particular portion of that calendar year
and without regard to whether cash. distributions. were made to the
transferor. or the transferee during that calendar year; provided,
however, that this allocation must be made in accordance with a method
permissible under Section 706 of the Code and the regulations
thereunder.
5.02 Distributions.
(a) From time to time, but at least once each year, the members
shall determine in their reasonable judgment to what extent (if any)
the Company's cash on hand exceeds its current and anticipated needs,
including, without limitation, for operating expenses, debt service,
acquisitions, and a reasonable contingency reserve. If such an excess
exists, the members shall cause the Company to distribute to them, in
accordance with their sharing ratios, an amount in cash equal to that
excess. No member shall have a contractual right to any distribution
other than distributions pursuant to Section 12.02.
(b) From time to time, the. members also may cause property of the
Company other than cash to be distributed to the members, which
distribution must be made in accordance with their sharing ratios and
maybe made subject to existing liabilities and obligations.
ARTICLE VI
MANAGERS
6.01 Management by Managers. There will be no manager of this
Company designated as such by virtue of his status as a member, and
powers of the Company shall be exercised by or under the authority of
the members. The ordinary and routine powers of management may be
delegated, in whole or in part, and from time to time, to one or more
persons acting in the capacity of an employee answering to the members
as a whole.
ARTICLE VII
MEETINGS OF MEMBERS
7.01 Meetings; Place of Meetings. Regular meetings of the members
shall be held annually or more frequently, as the majority in the
interest of the members shall determine. Meetings shall be held at the
principal office or as otherwise designated in the notice or waiver of
notice. Meetings may by agreement be by teleconference or other
electronic means.
7.02
person or
Quorum; Voting Requirement. All
by proxy to constitute a quorum.
GffGSY
members must be present in
An affirmative vote of all
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members in the quorum shall be required to constitute a valid decision
of the members.
7.03 Proxies. Members may vote by proxy appointed by an instrument in
writing or email bearing a date not more than three (3) weeks before
the meeting. If a member becomes lost, incapacitated, or is otherwise
unable to attend to the business of the Company without having
previously given a formal proxy, his agent under a power of attorney,
personal representative, or next of kin may be deemed to hold a valid
proxy for the purposes of allowing Company business to continue.
7 . 04 Action Without Meeting. Members may take action without a
meeting if consented to in writing or by email by all the members.
7.05 Notice. Wri tten or email notice of each meeting of the
members shall be delivered to each member stating the place, day, and
hour of the meeting and, in the case of a special meeting, the purposes
of the meeting.
7.06 Waiver of Notice.
signed writing or email.
'Any member may waive the notice by a
7.07 Dissolution. 'Any action of the members must be by a
unanimous vote and if the members do not agree on the conduct of the
business, the Company will be dissolved.
ARTICLE VIII
LIABILITY AND INDEMNIFICATION
8.01 Liability of Members.
extent of the member's capital
cash flow shall be determined a
so designated by the members.
A member shall only be liable to the
contribution. No distribution of net
return of capital contribution unless
8.02 Indemnification. The LLC shall indemnify any current or
former member of the LLC to the full extent permitted by law against
expenses, judgments, and other losses arising out of their status as
member, provided that the member has met the appropriate standard of
conduct as set forth by law as interpreted by the members..
8.03 Expenses. The LLC may reimburse members for all expenses,
including legal fees and losses in connection with any suit or action.
8.04
expenses
member.
Non-Exclusivity. The indemnification and advancement of
shall not be exclusive of any other right available to a
8.05 Insurance. The LLC may purchase and maintain insurance on
behalf of the members.
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TAXES
9.01 Tax Returns. For all intents and purposes, specifically but
not limited to, income depreciation, . expenses, exemptions, deductions,
etc., of the Company, shall be passed onto the members in a ratio equal
to membership ratios as shown on Exhibit A.
9.02 Tax Elections. To the extent permitted by applicable tax
law, the Company shall make the following elections on the appropriate
tax returns:
(a) to adopt the calendar year as the Company's fiscal year;
. (b) to adopt a modified cash method of accounting;
(c) to elect to amortize the organizational expenses
Company and the start-up expenditures of the Company ratably
period of 60 months as permitted by Sections 195 and 709 (b)
Code;
of the
over a
of the
(d) any other election the members may deem appropriate and in
their best ipterests.
ARTICLE X
BOOKS, RECORDS, REPORTS .AND BANK ACCOUNTS
10.01 Books and Records. All books and accounts and all other
records of the Company (including an executed counterpart of this
Agreement and all amendments hereto) shall at all times be kept at the
location that the members from time to time designate and confirm in
the Company's minutes and may be inspected and copied at any reasonable
time by any of the members, or their duly authorized representatives.
10.02 Statements and Reports. Within 60 days after the close of
each calendar year, the Company shall cause to be prepared and shall
have furnished to each of the members (i) a profit and loss statement;
(ii) a balance sheet as of the close of such period, and (iii) such
other statements showing in reasonable detail each member's change in
whose membership's interest, capital gain account, as of the end of the
calendar year. The foregoing statements shall be reviewed (and shall
be certified, if any member shall so request) by such certified public
accountants as are unanimously selected by the members, and the cost of
preparing the statements and of each such review (or certification)
shall be paid for by the Company. Within 75 days after the close of
each calendar year, the Company shall cause the income tax returns of
the Company to be prepared by the Company's accountant.
10.03.1 Accounts. The members shall establish and maintain one or
more separate bank and investments accounts and arrangements for
Company funds in the Company name with financial institutions as the
members determine. The members hereby agree that either one of them
may deposit, withdraw or endorse any checks for payment or sign any
checks from the account as that member deems appropriate and in the
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10
Company's best interest. The member may not commingle the Company's
funds with personal funds of any member.
ARTICLE XI
BANKRUPTCY OF A MEMBER
11.01 Bankrupt members. Subject to Section 12.01(c), if any
member becomes a bankrupt member, the Company shall have the option,
exercisable by notice from the members to the bankrupt member (or his
representative) at any time prior to the 180th day after receipt of
notice of the occurrence of the event causing him to become a bankrupt
member, to buy, and on the exercise of this option the bankrupt member
or his representative shall sell, his membership interest. The
purchase price shall be an amount equal to the fair market value
thereof determined by agreement by the bankrupt member (or his
representative) and the members; however, if those persons do not agree
on the fair market value on or before the 30th day following the
exercise of the option, either such person, by notice to the other, may
require the determination of fair market value to be made by an
independent appraiser specified in that notice. If the person
recei ving that notice obj ects on or before the tenth day following
receipt to the independent appraiser designated in that notice, and
those persons' otherwise fail to agree on an independent appraiser,
either such person may petition the a United States District Judge to
designate an independent appraiser. The determination of the
independent appraiser, however designated, is final and binding on all
parties. The bankrupt member and the Company each shall pay one-half
of the costs of the appraisal. The Company shall pay the fair market
value as so determined in four equal cash installments, the first due
on closing and the remainder (together with accumulated interest on the
amount unpaid at the general interest rate) due on each of the first
three anniversaries thereof. The payment to be. made to the bankrupt
member of his representative pursuant to this Section is in complete
liquidation and satisfaction of all the rights and interest of the
bankrupt member and his representative (and of all persons claiming by,
through, or under the bankrupt member and his representative) in and in
respect of the Company, including, without limitation, any membership
interest, any rights in specific Company property, and any rights
against the Company and (insofar as the affairs of the Company are
concerned) against the members.
ARTICLE XII
DISSOLUTION, LIQUIDATION AND TERMINATION
12.01 Dissolution. The Company shall dissolve and its affairs
shall be bound up on the first to occur of the following:
(a) the written consent of all members;
(b) any member shall
member's entire interest in
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die. Upon the death of a member the
the Company and its assets will revert to
r; c;!SY
N~ NRC
11
the Company, provided that the deceased member's heirs will receive,
based on any from sums distributed by the Company over the next year
(365 days), a distributive share proportionate to percentage of the
deceased member's interest in the Company;
(c) any member shall become insane, retire, resign, be expelled,
become a bankrupt member (with or without the consent of a required
interest) pursuant to Section 11.01 herein, or dissolve, or there shall
occur any other event that terminates the continued membership in the
Company of any member, unless, in any such case, by consent of all
remaining members given within 90 days of such event, the members elect
to continue the business of the Company; and
(d) entry of a decree of judicial dissolution of the Company
under Section 8972 of the Act.
12.02
Liquidation and Ter.mination.
(a) Upon the dissolution of the Company, the members shall
liquidate the assets of the Company and apply and distribute the
proceeds thereof as contemplated by this Agreement. As soon as
possible after the dissolution of the Company, a full account of the
assets and liabilities of the Company shall be taken, and a statement
shall be prepared by the accountant then acting for the Company. A
copy of such statement shall be furnished to each of the members within
ninety (90) days after such dissolution. Thereafter, the assets shall
be liquidated as promptly as possible and the proceeds thereof shall be
distributed to the members as follows:
(i) The expenses of liquidation and the debts of the
Company, other than the debts owing to the members, shall be paid. Any
reserves shall be established or shall be continued which the members
deem reasonably necessary for any contingent or unforeseen liabilities
or obligations of the Company or its liquidation. Such reserves shall
be held by the Company for the payment of any of the aforementioned
contingencies, and at the expiration of such period as the members deem
advisable, the Company shall distribute the balance thereafter
remaining in the manner and the priority provided in the following
subsections.
(ii) Any member's loans (including unpaid interest and
principal) as are owed shall be repaid according to their terms (pro
rata according to the amount owed) .
(iii) The balance, if any, shall be distributed to the
members in accordance with the positive balances in their book capital
accounts after their capital accounts have been adjusted to reflect the
allocation of any profit or loss.
solely
and if
debts
b. Upon dissolution of the Company, each member shall look
to the assets of the Company for the return of his investment,
the Company's assets remaining after payment and discharge of
and liabilities of the Company, including any debts and
,:rr? JTK
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rtlV NRC
12
liabilities 'awed to. any ane ar mare af the membe'rs, is nat sufficient
to. satisfy the rights of a member, he shall have no. recaurse ar further
right ar claim against any ather member.
c. If any assets af the Campany are to. be distributed in
kind, such assets shall be distributed an the basis af the fair market
value thereaf and any member entitled to. any interest in such assets
shall receive such interest therein as a tenant in carnntan with all
ather members sa entitled. If the members cannat atherwise agree
between themselves, the fair market value af such assets shall be
determined by an independent appraiser to. be selected by the Campany's
accauntant.
12.03 Deficit Capital Accounts. Notwithstanding anything to. the
cantrary cantained in this Agreement, and natwithstanding any custam ar
rule af law to. the cantrary, to. the extent that the deficit, if any, in
the capital accaunt af any member results fram ar is attributable to.
deductians and lassesaf the Campany (including nan-cash items such as
depreciatian), ar distributians af maney pursuant to. this Agreement to.
all members in prapartian to. their respective sharing ratias, upan
dissalutian af the Camp any such deficit shall nat be an asset af the
Campany and such members shall nat be abligated to. co.ntribute such
amaunt to. the Campany to. bring the balance af such member's capital
accaunt to. zero..
12.04 Certificate of Dissolution. On campletian af the
distributian af Campany assets as pravided herein, the Campany is
terminated; the members shall file a Certificate af Dissalutian with
the Department af state, Cammanwealth af Pennsylvania, cancel any ather
filings made pursuant to. Section 2.05, and take such ather actians as
may be necessary to. terminate the Campany.
ARTICLE XI I I
GENERAL PROVISIONS
13.01 Offset. Whenever the Co.mpany is to. pay any sum to. any
member, any amaunts that member awes the Campany may be deducted fram
that sum befare payment.
13.02 Notices. All natices and ather cammunicatians required ar
permitted under this Agreement shall be in writing and shall be
directed to. the members at their address as shall be maintained in the
baaks and recards af the Campany fram time to. time.
13.03 Entire Agreement. This Agreement canstitutes the entire
agreement af the members and their affiliates relating to. the Camp any
and supersedes all priar cantracts ar agreements with respect to. the
Campany, whether aral ar written.
13.04 Effect of Waiver or Consent. A waiver ar cansent, expressed
ar implied, to. ar af any breach ar default by any' persan in the
perfarmance by that persan af his abligatians with respect to. the
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13
Company is not a consent or waiver to or of any other breach of default
in the performance by that person of the same or any other obligations
of that person with respect to the Company. Failure on the part of a
person to complain of any act of any person or to declare any person in
default with respect to the Company, irrespective of how long that
failure continues, does not constitute a waiver by that person of his
rights with respect to that default until the applicable statute of
limitations period has run.
13.05 Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument signed by all
members.
13.06 Binding Act. . Subject to the restrictions on dispositions
set forth in this Agreement, this Agreement is binding on and inures to
the benefit of the members, and their respective heirs, legal
representatives, successors and assigns.
13.07 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY
AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH
OF PENNSYLVANIA, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT
MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE
LAW OF ANOTHER JURISDICTION. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other persons or circumstances are not
affected thereby and that provision shall be enforced to the greatest
extent permitted by law.
13.08 Further Assurances. In connection with this Agreement and
the transactions contemplated hereby, each member shall execute and
deliver any additional documents and instruments and perform any
additional acts that may be necessary or appropriate to effectuate and
perform the provisions of this Agreement and those transactions.
13.09 No Third Party Benefit. The provisions hereof are solely
for the benefit of the Company and its members and are not intended to,
and shall not be construed to, confer a right or benefit on any
creditor of the Company or any other person.
13.10 Counterparts. This Agreement may be executed in any number
of counterparts with the same effect as if all signing parties had
signed the same document. All counterparts shall be construed together
and constitute the same instrument.
13.11 Assets. Title of all assets shall be in the name of the
Company and not in the names of the members.
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NOV NRC
14
13.12 Titles and Captions. All articles~ sections or paragraph
titles or captions contained in this Agreement are for convenience only
and are not deemed part of the context hereof.
IN WITNESS WHEREOF, intending to be legally bound,
have executed this Agreement as of the day and year
written.
the members
first above
Witnesses:
(SEAL)
, member
(SEAL)
member
.
NOTARIAL SEAL
APRIL ~, SHEAFFER. Notary f'lublie
Carlisle, Cumberland County
My Commission Expire. April 231 2006
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15
Operating Agreement of
The Lost Valley, LLC
A Pennsylvania Limited Liability Company
Exhibit A Schedule
Jeffrey T. Kottmyer Transfers time and effort and expenses for 33.33%
improvements, refinancing, and maintenance of
1555 McClure's Gap property to the business.
Forfeits the right to recover expenses associated
with The Lost Valley, LLC business activity or
promotion of the site prior to its formation, Pledges
the property to The Lost Valley, LLC and will sell
ttie property to the business when it is financial
able to purchase the property. Transfers the
ownership of the artifacts found on the property to
The Lost Vallev, LLC.
Gary S. Yannone Transfers time and effort and expenses for 33.33%
improvements and maintenance of 1555 McClure's
Gap property to the business. Forfeits the right to
recover expenses associated with The Lost Valley,
LLC business activity or promotion of the site prior
to its formation, When ownership of the property is
obtained, pledges the property to The Lost Valley,
LLC and will sell the property to the business when
it is financial able to purchase the property.
Transfers the ownership of the artifacts found on
the property, antique tools, books, and calendars
to The Lost Vallev, LLC.
Nolen R. Chew $25,000 total deposited to The Lost Valley bank 33.33%
account prior.to 11/10/2003. $10,000 earnest
money given to Merl Tate for an additional 25
acres. Pledges the property to The Lost Valley,
LLC and will sell the property to the business when
it is financially able to purchase the property.
Transfers the ownership of the artifacts found on
the property to The Lost Vallev, LLC,
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EXHIBIT A
Name, Address and Initial
Contribution of Each Member
Commitment
Jeffrey T.Kottmyer
8654 Tower Drive
Laurel, MD 20723
Initial Capital Contribution: See attached
schedule
Gary S. Yannone
1555 McClure's Gap Road
Carlisle, PA 17013
Initial Capital Contribution: See attached
schedule
Nolen R. Chew, Jr.
61 197th Street
Star prairie, WI 54026
Initial Capital Contribution: See attached
schedule
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Initial
Sharing Ratio
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33.33%
33.33%
33.33%
EXHIBIT B
Required Information
(1) The following is a list setting forth the full name and last
known mailing address of each Member;
Jeffrey T. Kottmyer
8654 Tower Drive
Laurel, MD 20723
Gary S. Yannone
1555 McClure's Gap Road
Carlisle, PA 17013
Nolen R. Chew, Jr.
61 197th street
star Prairie, WI 54026
(2) A copy of the Certification o.f Organization shall be attached
to this Exhibit Bi
(3) Copies of all amendments to the Operating Agreement and
copies of any agreements rendered null and void or no longer in effect
shall be provided to each member to be permanently affixed to this
instrument as a part of this Exhibit B from time to time, if and as
changes occur.
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: RECEIVED MAR 301005 tI''\
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, 'PENNSYLVANIA
In reo THE LOST VALLEY, LLC
No. OS' _I. If-/O' C /c...-~
"1U LQ;l. Iv l
R U L E
AND NOW, TO WIT, this
'r
day of
J
2005, upon consideration of the within Petition, a r le is granted
upon the Respondent, Gary S. Yannone, and The Lost V lley, LLC, to
show cause why Gary S. Yannone should not be remov d as a voting
member of the LLC and a custodian should not be app inted to cast
his vote to allow the operations of the LLC to co tinue pending
further action upon the prayer for relief of dissol tion.
RULE RETURNABLE
..200'1
2.0 tta.,~ at IV ~,'u....
BY THE COURT,
J.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
In reo THE LOST VALLEY, LLC
No. 05-1640 Civil Term
ACCEPTANCE OF SERVICE
I, Gary S. Yannone, hereby accept service of a certified
copy of the Petition filed in the above tion
Dated: April 5, 2005
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Gary s. Yannone, MS
Equal Partner, The Lost Valley LLC,
President/Curator # I The Frankford Musewn Society
1555 McClures Gap Road Carlisle, PA 17013 402-321-6306 (717) 319-5085
garvvannone@yahoo.com 717-503-5747
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
In re: THE WST VALLEY, LLC
No. ~l640Civt1Term
AMMENDED RESPONSE
FIRST FILED APRIL 8, 2005
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 RlGmS 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 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 17013
TELEPHONE: (717) 249-3166
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY
OFFER LEGAL SERVICES TO ELlGffiLE PERSONS AT A REDUCED FEE OR NO
FEE.
MIDPENN LEGAL SERVICES
8 IRVINE ROW
CARLISLE, PA 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 at
partir de la fecba 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 ba 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,
LLEVEESTADEMANDAAUN ABOGADOlMMEDlATAMENTE, SIUSTED
NOTIENE 0 CONOCES UN ABOGADO, VA Y A EN PERSONA 0 LLAME POR
TELEFONO A LA OFlCINA CUY A DlRECCION SE ENCUENTRA ESCRITA
ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA
LEGTAL,
LAWYER REFERRAL SERVICE OF THE
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
Jnre: TBEWSTVALLEY,LLC
No. 05-1640 Civil Term
AMMENDED RESPONSE
FiRST FILED APRIL 8, 2005
AMMENDED RESPONSE TO PETITION
L Agreed that Petitioner Jeffrey Kottmyer resides outside of the Commonwealth ofPA
and has never resided at 1555 McClures Gap Road, Carlisle, PA 17013
2, Agreed that Petitioner Nolen R. Chew, Jr. resides outside of the Commonwealth of
PA and has never resided at 1555 McClures Gap Road, Carlisle, PA 170\3
3. Disagree, Respondent, 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 driver's
license, automobile registration, voter's registration card, personal banking accounts, tax
reports, social memberships such as the American Legion, etc.
4, Disagree. The property controlled by the LLC has never been used as a rental with
unanimous approval by all LLC members, which is fundamental basis for the LLC
Operating Agreement, the property ownership and the formation and operation of the
Frankford Musewn Society (FMS). That in the original negotiations and agreement
barred any mention of rent. That the agreement is silent in that regard purposely and
apparent malicious intent has been submitted here. That such submission and other legal
docwnentation presented to the respondent seems to be perjwy. And that any rental
agreement, changing the operating agreement while all partners are equal is improper and
wrongful. Furthermore, 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 fmances 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 Musewn society has been the same and/or a
member of the LLC and FMS which has created a conflict of interest and the possible
3
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.
5. Agreed.
6. Agreed that the parties' interests are equal, in common, and undivided. That each
member has an equal interest and therefore, an equal vote. That the LLC Operating
Agreement, reviewed by Douglas Sell, CPA, and Marc Roberts, esq. requires unanimity
for the conduct of all business affiIirs.
7, The Respondent because of the cruel and improper actions of the Petitioners can not
verifY if Exhibit A is the legal and correct copy. In an apparent malicious, inappropriate
and improper disposition of records by the Petitioners. Critical financial information and
other records needed to make decisions on the business of the LLC have been withheld
from the respondent, lbis has been done without just cause, violating the LLC Operating
Agreement 10.01., and Respondents Constitutional Right to property equally owned.
That accounts, payments, records and finances appeared to have been mismanaged and
definitively misstated causing company disarray, confusion and possible bankmptcy,
Tbat this is directly attributable to the apparent mismanagement of the treasurer, who
improperly managed the funds of the for profit LLC and the not for profit FMS. And that
after repeated attempts by the Respondent to obtain written verification of all company
records, none has.been forthcoming. Therefore, since the Petitioners have barred the
Respondent from his Constitutional Rights as a property owner, an Equal LLC partner,
and the President of the FMS, the Respondent cannot verity whether Exhibit A is the
correct legal document or not.
8. Respondent is unaware of any LLC deadlock that in total has the two Petitioners on
one side and the Respondent on the other. Because of issues outlined in paragraph 7, it
appears that each partner has his own individual views and unanimous agreement has not
been forthcoming. The very act of filing this Petition in this manner appears to be an
attempt of Petitioners to rob the Respondent of his Constitutional Rights to property and
privacy. That in so doing, the Petitioners appear to be perjuring the facts.
a. As far as Respondent is aware, he is up to date on all time and capital for 2004 LLC
and FMS contributions. On the contrary, Respondent will provide the just and honorable
court with exhibits that win state he has contributed more time and capital than other
Petitioners. That Respondent bas clearly taken a stand for ethics in demanding a full
accounting and of all financial matters before any decision making process. The
Respondent has been barred from all records and those records misstated causing the
Respondent grave financial damage. That these apparent malicious and incompetent acts
have placed great financial hardship on the Respondent. Because of the cruel and
4
-,
improper actions of the Petitioners, the Plaintiff can not equally and without prejudice
verify the financial status of the LLC or FMS. Again, in an apparent malicious,
inappropriate and improper disposition ofrecords by the plaintiffs, Critical financial
infonnation and other records needed to make decisions on the business of the LLC have
been withheld from the respondent. This has been done without just cause, violating the
LLC Operating Agreement 10.01., and Respondents Constitutional Right to property
equally owned That accounts, payments, records 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 mismanagement of the
treasurer, who improperly managed the funds of the for profit LLC and the not for profit
FMS. And that after repeated attempts by the Respondent to obtain written verification
of all company records, none has been forthcoming. Therefore, since the Petitioners have
barred the Respondent from his Constitutional Rights as a property owner, an Equal LLC
partner, and the President of the FMS, the Respondent cannot properly respond to the just
and honorable court Additionally, rather than proceeding with the proper and legal
delinquency procedures involving "capital contributions," is 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 in order to remove
Respondent from his equal LLC rights and that of the President of the FMS.
b, Disagree, The Respondent has attended meetings that he has been legally made
aware of by the Petitioners. That a different times Petitioners manipulated meeting
attendance by not contacting Respondent on alternate communication sources, knowing
that some sources were unavailable, thus excluding Respondent from LLC and FMS
meetings, That communication from Petitioners were on the periphery at best and
meetings were attempted with unfair manipulation as outlined in a above with the
Respondent absent necessary and vital infonnation to make decisions on the affairs of tile
business. That the Respondent has maintained a strong leadership role at all times as the
original property owner, equal LLC partner, and President/Curator of the FMS, Multiple
exhibits will be presented to the court to substantiate that fact.
c. Disagree. That the Petitioners did not avail themselves of every reasonable and
legal method to contact Respondent on his temporary, short employment sabbatical to
solicit funds and support for the LLC/FMS. That sabbaticals and sparse communication
was the nonn at times with the LLC. That the whereabouts of the Respondent was left at
the official location of the LLC and FMS, That any attempts by the Petitioners at
communication were only periphery and done so in an apparent attempt to gain control of
the LLC/FMS and equally owned property, That these actions have deprived Respondent
of his Constitutional Rights to property and privacy, That he has been a critical
participant in the decision-making and management of the property since 1999. That he
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 Respondents whereabouts were known through reasonable
and legal means, That the Petitioners knew that the defendant was on a temporary
employment sabhatical to support the LLClFMS and did so communicate over a viable
business line of communication such infonnation. That Respondent did communicate
5
with plaintiffs as much as could be reasonably expected considering the egregious
circumstances outlined above.
9. Disagree. The Respondent refuses to agree to mismanagement, manipulation,
wrongful acts, and questionable, improper, and/or illegal actions by other members of the
LLC/FMS. That under Section 7.07 dissolution must be by an unanimous vote. By
attempting to dissolve in an apparent improper action, and continuing to take many
seemingly wrongful acts prior to dissolution, the Petitioners have gravely affected the
Respondents Constitutional Rights to property, privacy, financial and family well-being.
Therefore, the Respondents ask the fair, just, wise and honorable Court to consider the
fullowing:
a. It is hereby claimed that the Petitioners with unfairness and unjust cause appear to
have denied the Respondent due process violated the Respondents constitutional rights to
property, inherently his right both in the US Constitution and in that of the
Commonwealth ofPennsyivania.
b. That in addition, without just cause the Petitioners seem to have violated the
Respondents Constitutional rights to privacy,
c, That the Petitioners in their expeditious attempt to take control of the LLC,
Property, and FMS appear to have perjured themselves before this honorable and just
court
c, That the Petitioners 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 Respondent were not made. That meetings were juggled and rearranged for the
Petitioners own self interest That improper legal arrangements were made for this own
self interest.
d. That the Respondent bas 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 Petitioners have barred the
Respondent from his equal and rightful access to all records and property of the LLC and
FMS which bas rendered the Respondent incapable of any rational decision making
regarding matters such as 2005 contributions
( That the Petitioners 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 Respondent, that this robbed the Respondent of his Constitutional
property rights, his Constitutional rights to privacy, his rights to LLC property as an equal
property owner, and harassed the Respondent into a state ofhomelessness and
bankruptcy without due process through the Commonwealth or US Courts.
g. That the mortgage payments, taxes, etc., for 2005 were suppose to be psrt of the
LLC business agreement in capital 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 Petitioners took malicious action
against the Respondent with suit nwnber 05-1640, using an improper legal arrangement
to without cause remove Respondent from the LLC Agreement That these improper
actions have caused grave defamation of character and tinancialloss to the Respondent ,
6
i. That with what appears to be unfair and malicious intent and without due process
the Petitioners barred the Respondent 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.
1. 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 Constitutional 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
financial and other support to the LLC and FMS. And upon returning plaintiff
discovered that his Constitutional rights to privacy had been also had been violated.
n. That such possible unfair and unjust actions by the Petitioners has cruelly and
unconstitutionally bar the Respondent from his equal access to LLC property and records
and that of the FMS which are intertwined as one.
0, That the Respondent repeatedly pleaded for equal access to all treasury details of
the LLC and FMS, 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 Respondent 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 Respondent. That
critical aspect of treasury reports and audits appear to have either not taken place or
mismanaged in an untimely manner which conld affect auditing by the Commonwealth
Treasury, the Internal Revenue Service, and all parties concerned.
p. That it seems an improper legal arrangement was made by the Petitioners with the
LLC attorney Marc Roberts and this arrangement was used to file suit against the
Respondent, which is a legal conflict of interest and put the Respondent 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 Respondent, 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. Once again, denied Respondent of
Constitutional due process in his rights to property and privacy,
s, That society meetings and elections were held at the earliest time which in essence
and with what seems wrongful intent barred the Respondent 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
7
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
~ doctorc:d, That the Respondent has been barred from these and all pertinent records,
t In addition, in an unfair and with grave injustice Respondent has been barred from
his personal property and constitutional rights thereto. The same personal property left as
evidence of his temporary employment sabbatical and proof of intents to permanently
return.
u. That the Petitioners have violated the nature of the Respondents constitutional
rights to privacy by turning public previously agreed personal restricted areas.
v, That the Petitioners appeared to have tampered with and barred the Respondent
from his US mail rights.
w, That the Petitioners actions seem to have interfered with the Respondents rights as
a US veteran.
x. That attempts to resolve these issues have been only made at the periphery by the
Petitioners and then these attempts have been misstated to deprive the Respondent of his
constitutional rights to property and privacy as set out in the above statements.
y. That the actions of the Petitioners have caused a grave defamation of charac1er to
the Respondent by misstatements, seeming manipulation, and that this has done great
damage to the Respondent as the President of the FMS and Equal partner in the LLC with
which he has demonstrated great leadership and peer support, and further gravely harmed
his ability to continue and gain successful employment That outside agencies including
public safety, County and State, historical and archeological, collegian, neighbors, debt
collectors (FDCPA) and others appears to have been made aware of these facts, which
has further defamed the Respondent beyond fmancial compensation.
z. That in many issues the Respondent 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. That as the original property owner, founder, equal partner in the LLC and
President/Curator of the FMS, Respondent has always had best and most moral interests
as his direction for both organizations,
aa, That the apparent malicious actions of the Petitioners have cause the Respondent
severe cruel fUlllllciallosses, loss of home, loss of employment, delinquent child support,
and legal bills,
]0, Any deadlock is directly attributable to the Petitioners actions and dissolution must
be unanimously agreed on as every business matter of the LLC.
11, The apparent malicious, unconstitutional, wrongful and improper, if not illegal
actions of the Petitioners have already caused irreparable injury and loss to the LLC and
FMS and Respondent Leaving no fair and justifiable recourse, but to dissolve both the
LLC and FMS in the most profitable manner, distributable all equally owned goods and
award just damages as the fair court should just rule,
12, Referto 11 above,
8
WHEREFORE, THE RESPONDANT IN RESPONSE TO THE PETIONERS
REQUESTS a, b, and c OF ABOVE COMPLAlNT REQUESTS THE
HONORABLE AND JUST COURT:
a. Deny the Petitioners request to remove Respondent as a voting member of the LLC
and appoint a custodian as such would propagate the apparent vicious, manipulative,
unconstitutional, improper and possibly illegal actions by the Petitioners to gain control
of the LLC, FMS, and rob the Respondent of his Constitutional rights to property and
privacy. As far as Respondent is aware, he is up to date on all time and capital for 2004
LLC and FMS contributions. On the contrary, Respondent will provide the just and
honorable court with exhibits that will state he has contributed more time and capital than
other Petitioners. That Respondent has clearly taken a stand for ethics in demanding a
full accounting and of all financial matters before any decision making process. The
Respondent has been barred from all records and those records misstated causing the
Respondent grave financial damage. That these apparent malicious and incompetent acts
have placed great financial hardship on the Respondent Because of the cruel and
improper actions of the Petitioners, the Plaintiff can not equally and without prejudice
verify the financial status of the LLC or FMS. Again, in an apparent malicious,
inappropriate and improper disposition of records by the plaintiffs. Critical financial
information and other records needed to make decisions on the business of the LLC have
been withheld from the respondent. This has been done without just cause, violating the
LLC Operating Agreement 10.01., and Respondents Constitutional Right to property
equally owned. That accounts, payments, records 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 mismanagement of the
treasurer, who improperly managed the funds of the for profit LLC and the not for profit
FMS, And that after repeated attempts by the Respondent to obtain written verification
of all company records, none has been forthcoming. Therefore, since the Petitioners have
barred the Respondent from his Constitutional Rights as a property owner, an Equal LLC
partner, and the President of the FMS, the Respondent cannot properly respond to the just
and honorable court. Additionally, rather than proceeding with the proper and legal
delinquency procedures involving "capital contributions," is outlined in paragraph 4,03 of
the LLC Operating Agreement the plaintiffs took malicious action against the plaintiff
with suit nwnber 05-1640, using an improper legal anangement in order to remove
Respondent from his equal LLC rights and that of the President of the FMS.
b. Disagree. The Respondent has attended meetings that he has been legally made
aware of by the Petitioners. That a different times Petitioners manipulated meeting
attendance by not contacting Respondent on alternate communication sources, knowing
that some sources were unavailable, thus excluding Respondent from LLC and FMS
meetings. That communication from Petitioners were on the periphery at best and
meetings were attempted with unfair manipulation as outlined in a above with the
Respondent absent necessary and vital information to make decisions on the affairs of the
business, That the Respondent has maintained a strong leadership role at all times as the
original property owner, equal LLC partner, and President/Curator of the FMS. Multiple
exhibits will be presented to the court to substantiate that fact
9
-[
c, That the honorable and just court freezes all assets of the LLC and the FMS
d. 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 court. That any
property, land modifications, etc., be immediately halted.
e. That the just and honorable court rule against case nwnber 05-1539 and case
number 05-1640 and rule for the Plaintiff in case number 05-1894.
f 1be fair and honorable court give the Respondent immediate access to his property,
his residence, his business property, all records of the LLC and FMS, his personal
property, his mail rights, Veterans rights, etc, and thereby restore Respondents
Constitutional rights to property and privacy. And that the longer the Respondent is
barred from all property and records the graver damage is done to him.
g. The fair and wise court rule that the Respondent has been denied due process in the
Commonwealth and Federal Court System.
h. 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
i. That the fair and honorable court rules the rental agreement with the FMS as
improper,
j. That the court in all its wisdom dissolves the LLC and FMS,
k. 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
170l3. 717-249-5177. And that USDAA also have said agricultural business at both
1555 and ]560 McClures Gap Road, That subdivision and partition will not interfere
with the historic farmhouse. 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 or archeological status of the site is directly related to the house, and not the entire
property, That the property can be partitioned and divided, sold with equal allotments to
each partner, Although no division or partition of the property has been made, the
property bas been accrued through a series of additions. 1be first sect being of
approximately 3 acres acquired by Gary S, Yannone from Merle Tate in 1999. This a
subdivision from approximately 54 acres from Tate and directly related to making the old
farmhouse 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 residential 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.
10
I. That the just and honorable court order that all other equally owned LLC property
be distributed equally to equal partners with attention to seniority,
m. That the wise court understands that in all practical and esoteric seuses 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 under 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.
n. That all property of the FMS be distributed.
o. That the honorable court order that the defendants be barred from further interfering
with the Plaintiffs constitutional rights to freedom of speech.
p. That the court appoints an attorney for the Respondent since the Petitioners have
caused him to be penniless and homeless.
q. That the fair and just court award the abused family members all delinquent court
ordered payments such as child support.
r. The wise court admonish the Petitioners and for profit and not for profit entities for
their apparent prejudice actions.
s. That the just, fair and honorable court when considering the apparent malicious
actions of the Petitioners, the seemingly unconstitutional and unjust due process accorded
the Respondent, and the huge financial loss by the Respondent 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 humaneness the honorable court award the Respondent an additional
monetary swn not less that $500,000,00 and not more than $5,000,000.00
t That such other and further action and relief be granted as the court deems just and
ploper.
Respectfully SubmiUed, L
~
Gary S, annone, Plainti';--. -~
Equal Partner, The Lost Valley ~
President/Curator # 1- The Frankford Musewn Society
1555 McClures Gap Road
Carlisle, PA 17013
402-321-6306 (717-319-5085)
IWYVlUIIIOne@Yahoo.com 717-503-5747
11
. .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
In re: THE LOST VALLEY, LLC
No. 05-1640 Civil Term
AMMENDED RESPONSE
FIRST FILED APRIL 8, 2005
VERIFICATION
I, 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,
L-j- 2; c3 r--
DATE
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GARY S. ANNONE .
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Hillary A. Dean, Esquire
MARTSON DEARDORFF WILLIAMS & OTTO
Attorney LD. No. 92878
Carl C. Risch, Esquire
Attorney LD. No. 75901
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Petitioners
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
In Re: THE LOST V ALLEY, LLC
CIVIL ACTION - LAW
NO. 05-1640 CIVIL
PETITIONERS' MOTION FOR JUDGMENT ON THE PLEADINGS
FOR ORDER DIRECTING DISSOLUTION OF THE LOST V ALLEY. LLC
AND NOW, comes the Petitioners by and through their attorneys, MARTSON
DEARDORFF WILLIAMS & OTTO, and move as follows:
1. On March 29, 2005, Petitioners filed a Petition seeking a Decree ofJudicial
Dissolution of The Lost Valley, LLC.
2. As alleged in the Petition, Petitioners and Respondent are the organizers and three
members of The Lost Valley, LLC. See Petition ~ 6.
3. As alleged in the Petition, Petitioners and Respondent have been deadlocked in the
management of the LLC's affairs. See Petition ~ 8.
4. On April 29, 2005, Respondent filed an amended, pro se Response to the Petition
admitting, inter alia, that, "unanimous agreement has not been forthcoming." Further,
Respondent also requested in ~(j) of his "request for relief' that the LLC be
dissolved.
5. Under Pennsylvania law, on application by or for a member, the Court may order
dissolution of an LLC whenever it is not reasonably practicable to carry on the
business in conformity with the operating agreement. See 15 Pa.e.S.A. S 8972.
6. The Respondent has admitted those elements essential to this Court issuing an Order
Directing the Dissolution of the LLC under 15 Pa.C.S.A. 9 8972. In fact, Respondent
has specifically requested dissolution,
7. While Respondent has set forth a plethora of allegations and defenses related to the
LLC, Respondent has set forth no facts in his Answer that would deny Petitioners
their right to receive an Order Directing Dissolution of the LLC.
WHEREFORE, Petitioners request this Honorable Court enter an Order Directing
Dissolution of The Lost Valley, LLC.
Respectfully submitted,
MARTS ON DEARDORFF WILLIAMS & OTTO
By :dj(J} (! Ii ;; () [hilA _J
c2hrl C. Risch, Eire ~
lD. No. 75901
Hillary A. Dean, Esquire
LD. No, 92878
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Date: May 31, 2005
Attorneys for Petitioners
CERTIFICATE OF SERVICE
I, Jacqueline A. Decker, an authorized agent of Marts on Deardorff Williams & Otto, hereby
certify that a copy of the foregoing Petitioners' Motion for Judgment on the Pleadings for Order
Directing Dissolution of the Lost Valley, LLC, was served this date by depositing same in the Post
Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows:
Mr. Gary S. Yannone
1555 McClures Gap Road
Carlisle, P A 17013
(Pro Se)
MARTS ON DEARDORFF WILLIAMS & OTTO
Byrd<'wv
cq ne A. Decker
en ast High Street
Carlisle, P A 17013
(717) 243-3341
Dated: May 31, 2005
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten aOO subni.tted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
P1ease list the within matter for the next Argurlent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE .
(entire caption RalSt be stated in full)
In Re: The Lost Valley, LLC
(Plaintiff )
VB.
( Defendant)
Civil
NO_ 05-1640
JW{
1. State matter to be argued (i.e.. plaintiff's !lOtion for new trial. defendant's
datuaer to ~t, etc.):
Petitioners' Motion for Judgment on the Pleadings for Order Directing
Dissolution of The Lost Valley, LLC
2. Identify counsel who will. argue case:
(a) for plaintiff: Carl C. Risch, Esquire
A.lch........: Hillary A. Dean, Esquire
10 East High Street
Carlisle, PA 17013
(b) for defendant: Gary S. Yannone (Pro Se)
A.lch......s: 1555 McClures Gap Road
Carlisle, PA 17013
3. I will notify all parties in writing within two days that this case has
been listed for argunent.
4. Argl..ment Court Date: July 6, 2005
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
In Re: THE LOST VALLEY, LLC
No. 05-1640 Civil Term
CML ACTION-LAW
ACTION IN P ARTlTION
RESPONDENTS' RESPONSE TO JVDGE~ ON THE P-t.EADIN~S FQR
ORDER DIRECTING DISSOLUTION OF THE LOST VALLEY. LLC
1. On May 31, 2005 the Petitioners entered a judgment on the pleadings for the judge to
sign an Order Directing Dissolution of the Lost Valley LLC.
2. I, the Respondent, Gary S. Yannone, not an attorney, but a citizen, disagree with
paragraph 7 of the Petitioners Plea that I have "set forth no facts in his Answer that
would deny Petitioners their right to receive an Order Directing Dissolution of the LLC,"
I request a hearing to hear those facts and time to get proper legal advice on the technical
aspects of the applicable points oflaw,
4. I the Respondent, Gary S. Yannone, not an attorney bas 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,
5. I the Respondent Gary S. Yannone, not an attorney have been afforded no access
to the thoUSlll1(!~ of records that will be needed to be reviewed and discussed before this
court How can I respond without this basic act of discovery. 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
unjust.
6. It appears to me not an attorney, that this is a complex case with multiple issues
involving a business partnership, 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 and given a hearing in
court before any order is signed,
I
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.
.
7. The Petitioners admit in paragraph seven of their motion that I have a "plethora of
allegations." Is the just and honorable court to sign the order to dissolve my equal
partnership in the Lost Valley LLC not allowing me my "day in court" simply due to
economic circumstances and legal technicalities?
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 Cwnberland COIDlty
resident, and voter my rights as an equal partner in the Lost Valley LLC,
WHEREFORE, I the Respondent, Gary S. YanDone, 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,
Res~QlIv Submitted.
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GARY S. ONE
/.,' GaryS. Yannone, MS, Autbor
~ Equal Partner, The Lost Valley LLC.
~ President/Curator #1 The Frankford Museum Society
1555 McClures Gap Road Carlisle, PA 17013
(402)-321-6306 (717) 319-5085
garyyannone@vahoo.com
cc: Prothontary Office hand carried
Martsen, Deardorff, Williams and Otto (Hillary Dean, Carl Risch, esq.) I at class mail
The Lost Valley, LLC 1 at class mail
The Frankford Museum Society 1st class mail
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
In Re: THE LOST VALLEY, LLC
CIVIL ACTION - LAW
NO. 05-1640 CIVIL
ORDER
AND NOW, this J.'2::Eiay o~, 2005, in consideration of Petitioners' Motion
for Judgment on the Pleadings for Order Direc 'ng Dissol ion of The Lost Valley, LLC, a hearing
shall be set for the ~ day of , 2005 at'~, located at
Q~ ~ IT . This hearing shall be set to detennine the winding up process under
15 Pa. CS.A. SS973, and to supervise the liquidation and the distribution of the asset
Valley, LLC, under 15 Pa. CS.A. SS974.
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Gates. Halbruner & Hatch, P.C.
By: Albert Nicholas Peterlin, Esquire
PA 10 No, 84180
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
a.oeterlin@aateslawfirm.com
www.aateslawfirm.com
Attorneys for Respondent, Gary S. Yannone
THE LOST VALLEY, LLC
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
I CIVIL ACTION No. 05-1640
In re:
MOTION OF RESPONDENT, GARY S. YANNONE FOR A CONTINUANCE
OF THE 3 AUGUST 2005 DISSOLUTION HEARING
Respondent, Gary S. Yannone ("Mr. Yannone"), by and through his attorneys,
Gates Halbruner & Hatch PC, move for a continuance of the dissolution hearing
scheduled for 3 August 2005:
1. On Thursday, 28 July 2005, Yannone retained the services of the
undersigned.
2. Prior thereto, on 27 July 2005, the undersignl3d contacted Petitioners'
attorney, Carl Risch, Esquire who promptly returned my telephone call. Respondent's
counsel discussed with Petitioners' counsel the anticipatedl retention of the undersigned
by Mr. Yannone and requesting Petitioners' concurrence to a continuance of the
dissolution hearing.
3. Counsel for Petitioner did not explicitly agree to concur with my request for
a continuance,
4. On Friday, 29 July 2005, Counsel for Mr. Yannone left a telephonic voice
message for Petitioners' attorney, Carl Risch, Esquire regarding the instant motion for a
continuance, It is my understanding he was unavailable.
5. On Monday, 1 August 2005, Counsel for Mr. Yannone left a telephonic
voice message for Petitioners' attorney Carl Risch, Esquirel regarding the instant
motion. It is my understanding he was unavailable.
6. Pursuant to Local Rule 208.2(0), due to time constraints, Respondent is
not able to wait a reasonable amount of time for Petitioners' concurrence.
7. Pursuant to Local Rule 208.3(81), the Honorable Edgar B. Bayley has ruled
on the past Orders entered in this matter.
WHEREFORE, Respondent, Gary S. Yannone, respectfully requests the Court
enter an Order continuing the dissolution hearing scheduled for 3 August 2005 in this
matter no less than ten days from this date or for such othm relief as is just and proper,
Respectfully submitted,
Date: 1 August 2005
By:
2
CERTIFICATE OF SERVICE
I, Jeffrey L. Shaffer, Legal Assistant, hereby certify that a true and correct copy of
the foregoing Motion of Respondent, Gary S. Yannone For a Continuance of the 3
August 2005 Dissolution Hearing has been served this day upon the following counsel
of record by United States first class mail, postage prepaid, addressed as follows:
Hillary A. Dean, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Petitioners, Jeffrey T.
Kottmyer & Nolen R. Chew
GATES, HALBRUNER & HATCH, P.C.
Date: 1 August 2005
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By: J~ffa~ ~. Shaffer, Legal ssistant
Attorneys for Respondent, Gary S. Yannone
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Gates. Halbruner & Hatch, P.C.
By: Albert Nicholas Peterlin, Esquire
PA 10 No, 84180
1013 Mumma Road
Suite 100
Lemoyne, Pennsylvania 17043-1144
(717) 731-9600 telephone
(717) 731-9627 telecopier
a. peterlin@aateslawfirm,com
www.aateslawfirm.com
Attorneys for Respondent, Gary S. Yannone
THE LOST VALLEY, LLC
IN THE COURT OF COMMON PILEAS
CUMBERLAND COUNTY, PENNSYLVANIA
I CIVIL ACTION No. 05-1640
In re:
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of Gates, Halbruner 8, Hatch, P.C. as the attorneys
of record for respondent, Gary S. Yannone.
Respectfully submitted,
Date: 1 August 2005
By:
ne
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:
Hillary A. Dean, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Petitioners, Jeffrey T.
Kottmyer & Nolen R. Chew
Date: 1 August 2005
By:
GATES, HALBRUNER & HATCH, P.C.
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Je y L Shaffer, Le Assistant
Attorneys for Respondent, 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
IN RE: THE LOST VALLEY, LLC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUN/NSYL VANIA
05-1640 CIVIL TERM'
AND NOW, this
ORDER OF COURT
r:2 ...,,~ 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
7the Court,
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Courtroom Number 2, Cumberland County Courthouse, C .
Carl C. Risch, Esquire
For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
Albert Nicholas Peterfin, Esquire
For Gary S. Yannone
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IN RE: THE LOST VALLEY, LLC
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-1640 CIVIL TERM
IN RE: PETITION FOR DISSOLUTION OF THE LOST VALLEY, LLC
ORDER OF COURT
AND NOW, this 28\-- day of September, 2005, IT IS ORDERED:
(1) The Lost Valley, LLC, IS DISSOLVED.
(2) Nolen R. Chew, Jr. shall forthwith provide Gary S. Yannone an opportunity to
review and copy all books, records and accounts of the company.
(3) The tangible assets of the company shall be forthwith divided between the
parties as agreed, or sold as agreed with the proceeds divided equally.
(4) The artifacts shall be distributed equally between Jeffrey T Kottmyer, Gary
S, Yannone and Nolen R. Chew, Jr.
(5) The artifacts shall forthwith be assembled in one location and accounted for
by the three parties, They shall meet and alternatively select artifacts until they are all
distributed. The order of selection shall be determined by using a deck of cards. Each
party shall draw a card from the deck. Aces are high and deuces are low, If two or
more persons draw the same value card, the deck shall be reshuffled with another draw
or draws until each person has a different value card. The person with the highest card
shall choose an artifact first, the person with the middle card shall choose second, and
the person with the lowest card shall choose last Each person shall then continue to
select artifacts in sequence until they are all distributed.
05-1640 CIVIL TERM
~rl C, Risch, Esquire
For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
01bert N. Peterlin, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PA 17043-1144
For Gary S. Yannone
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IN RE: THE LOST VALLEY, LLC
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
05-1640 CIVIL TERM
IN RE: PETITION FOR DISSOLUTION OF THE LOST VALLEY, LLC
OPINION AND ORDER OF COURT
Bayley, J., September 28, 2005:--
Pursuant to the Limited Liability Company Law of 1994, 15 Pa.C.S. Section 8901
et seq., Jeffrey T. Kottmyer, Gary S. Yannone, and Nolen R. Chew, Jr., formed The
Lost Valley, LLC. They entered into an operating agreement effective November 1,
2003. The "Purposes" set forth in the Agreement are:
Property management of two adjoining parcels of real estate at 1555
McClure's Gap Road, one improved, one unimproved;
Rental of said property, or portions thereof, from time to time, for
residential or commercial purposes, as the opportunities and
interests of the LLC dictate;
Investigation and development of the potential of the site to be used for
scientific, educational or cultural purposes as an archeological or
paleontological site and/or museum.
The assets of The Lost Valley, LLC, include artifacts discovered on a property in
Lower Frankford Township, Cumberland County, that is now owned by Kottmyer,
Yannone and Chew.' The artifacts are carvings and etchings thought by them to be
approximately 10,000 years old. Despite their efforts, the artifacts have not been
authenticated. Therefore, they have no current value. If authenticated, they could have
significant value. The few other tangible assets of the company are of nominal value.'
, An order directing partition of that property has been granted in a companion case.
, A laptop computer, some space heaters, a refrigerator, a roaster oven and about $50.
05-1640 CIVIL TERM
The company has no liabilities or debt.
Kottmyer and Chew have come to an impasse with Yannone as to the operation
of The Lost Valley, LLC, and seek an order of dissolution, The impasse warrants the
entry of an order of judicial dissolution under 15 Pa.C,S. Sections 8971 (a)5 and 8972,
as provided for in Article XII, Paragraph 12.01 (d) of the Operating Agreement.
Paragraph 12.02 of the Agreement entitled Liquidation and Termination provides:
(a) Upon the dissolution of the Company, the members shall
liquidate the assets of the Company and apply and distribute the proceeds
thereof as contemplated by this Agreement. As soon as possible after
the dissolution of the Company, a full account of the assets and
liabilities of the Company shall be taken, and a statement shall be
prepared by the accountant then acting for the Company. A copy of
such statement shall be furnished to each of the members within
ninety (90) days after such dissolution.
Thereafter, the assets shall be liquidated as promptly as
possible and the proceeds thereof shall be distributed to the
members as follows:
(i) The expenses of liquidation and the debts of the
Company, other than the debts owing to the members, shall be
paid. Any reserves shall be established or shall be continued
which the members deem reasonably necessary for any contingent
or unforeseen liabilities or obligations of the Company or its
liquidation. Such reserves shall be held by the Company for the
payment of any of the aforementioned contingencies, and at the
expiration of such period as the members deem advisable, the
Company shall distribute the balance thereafter remaining in the
manner and the priority provided in the following subsection.
(ii) Any member's loans (including unpaid interest and
principal) as are owed shall be repaid according to their terms (pro
rated according to the amount owed).
(iii) The balance, if any, shall be distributed to the members
in accordance with the positive balances in their book capital
accounts after their capital accounts have been adjusted to reflect
the allocation of any profit or loss.
b. Upon dissolution of the Company, each member shall look
solely to the assets of the Company for the return of his investment,
and if the Company's assets remaining after payment and discharge of
-2-
05-1640 CIVIL TERM
debts and liabilities of the Company, including any debts and liabilities
owed to anyone or more of the members, is not sufficient to satisfy the
rights of a member, he shall have no recourse or further right to claim
against any other member.
c, If any assets of the Company are to be distributed in kind,
such assets shall be distributed on the basis of the fair market value
thereof and any member entitled to any interest in such assets shall
receive such interest therein as a tenant in common with all other
members so entitled. If the members cannot otherwise agree between
themselves, the fair market value of such assets shall be determined by
an independent appraiser to be selected by the Company's accountant.
(Emphasis added.)
There is no company accountant. Chew, the treasurer, shall provide Yannone
the opportunity to review and copy all books, records and accounts of the company.
The tangible assets shall be divided between the parties as agreed, or sold as agreed
with the proceeds divided equally.
Kottmyer and Chew, after stating in their brief that "The Operating Agreement
signed by the parties provides for the distribution of assets in equal thirds to each
member, in accordance with Pennsylvania law," maintain that the court must "[u]se it's
[sic] discretion in its determination and definition of how to divide these assets into
'thirds.''' They purpose that the artifacts be conveyed to the Frankford Museum Society,
or in the alternative, to themselves in equal shares to be disposed of as they see fit.
Yannone proposes that certain artifacts that he designates be distributed to him, with all
others being distributed to Kottmyer and Chew, In the alternative he purposes that the
artifacts be divided into two classes that he designates, with each party receiving a third
of each class,
Whatever the three parties initially intended for the artifacts has been rendered
-3-
05-1640 CIVIL TERM
moot by their impasse in operating The Lost Valley, LLC. Dissolution means that the
artifacts must be distributed between them equally. Because the artifacts have no
value, they can be distributed immediately. The artifacts shall be assembled in one
location and accounted for by the three parties. They shall meet and alternatively
select artifacts until they are all distributed.
ORDER OF COURT
AND NOW, this ~4- day of September, 2005, IT IS ORDERED:
(1) The Lost Valley, LLC, IS DISSOLVED.
(2) Nolen R. Chew, Jr. shall forthwith provide Gary S. Yannone an opportunity to
review and copy all books, records and accounts of the company.
(3) The tangible assets of the company shall be forthwith divided between the
parties as agreed, or sold as agreed with the proceeds divided equally.
(4) The artifacts shall be distributed equally between Jeffrey T. Kottmyer, Gary
S, Yannone and Nolen R. Chew, Jr.
(5) The artifacts shall forthwith be assembled in one location and accounted for
by the three parties. They shall meet and alternatively select artifacts until they are all
distributed. The order of selection shall be determined by using a deck of cards. Each
party shall draw a card from the deck. Aces are high and deuces are low. If two or
more persons draw the same value card, the deck shall be reshuffled with another draw
or draws until each person has a different value card, The person with the highest card
shall choose an artifact first, the person with the middle card shall choose second, and
the person with the lowest card shall choose last. Each person shall then continue to
-4-
05-1640 CIVIL TERM
select artifacts in sequence until they are all distributed, . ...:~:1\,o/
By the co~f ,
\.;W
Edgar B. ayley, J,
Carl C. Risch, Esquire
For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
/
Albert N, Peterlin, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PA 17043-1144
For Gary S. Yannone
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY PENNSYL VANIA
IN RE: THE LOST VALLEY, LLC
No. 2005 - 1640 CIVIL TERM
PETmON FOR RECONSIDERATION OF ORDER OF SEPTEMBER 28,2005
AND NOW COMES, Jeffrey T. Kottmyer, a member of the above-referenced
Limited Liability Company, by his counsel, ROMINGER, BAYLEY & WHARE, and
respectfully petitions this Honorable Court for reconsideration of its Order entered in the
above-captioned matter on September 28, 2005, and avers the following in support:
1. Jeffrey Kottmyer, Nolen R. Cnew, Jr., and Gary S. Yannone (hereinafter
referred to, respectively, as "Kottmyer," "Chew," and "Yannone"), formed The Lost
Valley, LLC (hereinafterreferred to as "LLC"), on or about November 1, 2003.
2. The LLC's purpose, as relevant, was to investigate and develop a particular
site, owned by the members of the LLC, for scientific, educational, or cultural purposes as
an archeological or paleontological site and/or museum.
3. In due course, the assets of the LLC came to include certain artifacts,
numbering some 20.000 items, believed by each of the LLC's members to have significant
archeological, anthropological, and historical significance.
4. The instant Petition pertains only to the artifacts referenced in Paragraph 3,
above, and not to the disposition of the LLC or any other matters of dispute between Mssrs.
Kottmyer, Chew, and Yannone,
5. Via Petition, Kottmyer and Chew asked the Court to ultimately decree a
dissolution of the LLC and, in the interim, 1) "order the removal of [Yannone] as a voting
member of the LLC and to appoint, as justice may require, a custodian to cast any necessary
vote on his behalf so that the business of the LLC can continue without risk of harm or
loss," and 2) "order [Yannone] to account to the LLC for any sums properly due and owing
the LLC as a result of his failure to meet obligations to the LLC."
6. Yannone's rambling, pro se response to said Petition was confined to the
matters raised by Kottmyer and Chew and, as such, did not broaden the scope of the relief
requested.
7. This Honorable Court's Order of September 28th ordered, inter alia, the
dissolution of the LLC, the provision of unfettered access to LLC records for Yannone, the
division of the LLC's assets generally amongst the three members and, with particular
relevance to the instant Petition, that" [t]he artifacts shall forthwith be assembled in one
location and accounted for by the three parties, . . [that the drree members] shall meet and
alternatively select artifacts until they are all distributed. . . [and that the] order of selection
shall be determined by using a deck of cards."
8. This Honorable Court's Opinion accompanying said Order described the
artifacts at issue as not "authenticated" and as having "no value," and could therefore "be
distributed immediately." [Opinion of9/28/05, at 1, 4].
9. Said Opinion also stated that the dissolution of the LLC meant that the
artifacts must be distributed equally between Kottmyer, Chew, and Yannone.
10. The Court's division of the LLC's assets generally, and of the artifacts
specifically, was beyond the interim relief requested by Petitioners.
11. At the hearing on the original Petition, before this Court, Kottmyer and
Yannone were prepared to present evidence and testimony pertaining the propriety of the
interim relief sought, to wit, having Yannone removed as a voting member of the LLC; they
did not anticipate the need to present evidence pertaining to the value and significance of
the artifacts at issue, reasonably so.
12. Had they been cognizant of the need to do so ,at said hearing, Kottmyer and
Chew would have been prepared to present detailed evidence and testimony pertaining to
the artifacts.
13. Contrary to the Court's characterization of the artifacts as unauthenticated
and without value, numerous individuals with expertise in relevant fields of study have
provided Insight on the importance of the artifacts themselves and on the critical factor of
the integrity of the collection (e.g., not breaking up the collection into disparate
components).
14. Asen Faradzhev, Ph.D., a cultural anthropologist and art historian at the
University of Moscow studied the artifacts for a two week period, in November 2004, and
concluded that several of the artifacts are portable rock art with man-made enhancements
dating back several thousand years; subsequently, said findings were presented by Dr.
Faradzhev at a number of institutions and conferences, to include Pennsylvania State
University, Dickinson College, and at the International Federation of Rock Art
Organizations (IFRAO) in Agrea, India. A copy of an abstract authored by Dr. Faradzhev
is attached as Exhibit A and incorporated by reference as if fully set forth herein.
15. C. Edward Owens, M.S., Science Education Specialist at the Capital Area
Institute for Mathematics and Science at Pennsylvania State University, has offered his
conclusions and insights regarding the artifacts, particularly with respect to the importance
of maintaining the integrity of the collection, in the form ofa letter to the Honorable Court.
A copy of said letter is attached hereto as Exhibit B and incorporated by reference as if fully
set forth herein.
16. James Harrod, Ph.D., a scholar specializing in prehistoric art, religion, and
semiotics, acknowledged that the artifacts "show human workmanship" and that they are
"prehistoric art." A copy of Dr. Harrod's correspondence to the Frankford Museum Society
is attached hereto as Exhibit C and incorporated herein by reference as if fully set forth
herein.
17. Barbara Bartos, M.S., M.S.A., a museum and historical society specialist with
over twenty-five years experience in the field, submits that the collection of artifacts has
significant potential value, that the value is contingent upon the interactive relationship
between the artifacts, and that breaking up the collection destroys these factors. A copy of
Ms. Bartos's statement is attached hereto as Exhibit D and incorporated by reference as if
fully set forth herein.
18. It is axiomatic that artifacts and any associated records should be deposited in
the same repository to maintain the integrity and research value of the given collection;
certain federal statutes, for example, 16 U.S.c. 470 et seq., ~ 79.1 ("Curation of Federally-
Owned and Administered Archeological Collections"), codi~f this perspective and mandate
it for the federal entities charged with the care of artifacts.
19. The size and complexity of the collection of artifacts at issue, coupled with
the contentious relationship between Yannone on the one hand, and Kottmyer and Chew
on the other, makes the Court's Order exceedingly difficult to execute: the appointment by
the Court of an impartial third party expert to mediate the division of the artifacts - should
the requirement for such division remain in place - would enable the interested parties to
proceed with what amounts to a several-day process in an efficient and fair manner.
20. Petitioner's thirty-day appeal period will expire unless this Court enters an
appropriate stay or an order expressly granting reconsideration before October 27,2005.
WHEREFORE, Petitioner, Jeffrey T. Kottmyer, resp{~ctfully requests that this Court
immediately enter an order expressly granting reconsideration of its order dated September
28,2005, and scheduling a hearing for the purposes of the introduction of additional
testimony and evidence, and for reargument. In the alternative, Petitioner requests that the
Court set forth a more structured procedure by which to conduct the division of artifacts and
to appoint a neutral party expert to serve as a facilitator thereof.
10110/ 'J..{X;C:;-
Respectfully submitted,
, BAYLEY & WHARE
~
. Nelson, Esquire
y I.D. No. 91144
155 South Hanover Street
Carlisle, P A 17013
Tel: (717) 241-6070
Fax: (717) 241-6878
Counsel for Petitioner
CERTIFICATE OF SERVICE
AND NOW, this 10th day of October, 2005, I, James 1. Nelson, Esquire, hereby
certify that I have this day served the following persons with copies of the foregoing
Petition, via prepaid USPS First Class Mail:
Albert N. Peterlin, Esquire
1013 Mumma Road
Suite 100
Lemoyne, PAl 7043
Carl C. Risch, Esquire
Martson Deardorff Williams & OtltO, PC
Ten East High Street
Carlisle, Pennsylvania 17013
ROMING R, BAYLEY & WHARE
---------
ames elson, Esquire
orney ID No. 91144
155 South Hanover Street
Carlisle, PA 17013
(717) 241-6070
Attorneys for Petlitioner
VERIFICATION
I verify that I am the Petitioner and that the statements made in the foregoing Petition
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:
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Institutional and Private Partnerships
A rsen F aradzhev, Ph D
THE LOST VALLEY
New Palaeoart site discovery and consciousness
The main subject of Psychology - human consciousness - is still an open issue after 150
years of research, This might be due to the fact tha.t individuals are using different
consciousnesses at the same time, which might be overlapping. Nevertheless, humans are all
"islanders" in the psychological sense. According to William James, human consciousness is
just a "Small Island" among the great "ocean" of the human mind's possibilities, and we know
nothing about its true borders. This is also reminiscent of the words of Martin Heidegger:
"people are throwing in their openness - not the last attempt among all others is to loose
themyelves." The consciousness operates with meanings and particularly with indeterminate
situations. Palaeoart research provides an excellent exampl!e of this. However, the fascinating
fact is that we each perceive and interact differently with information presented in the words,
figures, and images.
Institutional representatives are processing Palaeoart information from images into
words and pictures after long private, and then group testing, and selection. lFRAO Rock Art
Glossary is one of the possibilities to get better understanding among researchers. The most
important part of Institutional research is to prove knowledge according to scientific rules.
The difference between Institutional representatives processing Palaeoart information,
and obtaining similar information from private partners, is that letters, photos, or tiles on CDs
represent the first impressions of very admirable people. They are strong personalities, as a
rule, and therefore their first impressions become their tavorite - and soon become the lasting
impression. Quite often, private researchers are looking not for a scientific assessment of the
artifacts or even new theories from scientific analysis, but tor approval of their favorite
impressions. Therefore, the best course of action for them to take is to contact a Palaeoart
specialist.
On the other hand, Institutional representatives have no cognitive ability to deal with
images directly. Therefore, researchers operate with just word description and two-
dimensional pictures. Hence, it is obvious that without car,eful, detailed research, nothing can
be proved or disproved. Particularly, it is in this case of the first impressions of enthusiastic
2
discoverers of who contact Institutional representatives, and then experience the answer from
the Institutional representatives as either no response, or a negative answer.
The paradox is that negative answer is the most convenient variant for Institutional
Representatives, because there is no risk of responsibility. The positive answer is an opposite
story. It is a very easy possibility to get into a quite complicated situation...
Given this unfortunate situation, it is obvious that to solve misunderstanding between
Institutional and Private Researchers is a hard task. Who knows how many new Palaeoart sites
in the world are awaiting rediscovery many years after their initial discovery?
The collection of the Lost Valley artifacts appear"d because Gary Yannone had to
remove stones to clean the slope near his house. Thes,e artifacts waited for a Palaeoart
specialist for five years. Some Institutional specialists promised to come and examine the
artifacts, but that did not happen. Gary, Jeff and Nolen joined together and formed the Lost
Valley Company. Then, with other local community members, formed the Frankford Museum
Society, Inc. to encourage research into the nature of the artifacts. Gary found and selected my
address thanks to IFRAO Internet site, after which The Lost Valley requested my assistance.
During the first two-week visit in November 2004, only the artifacts of the museum's
exposition on the first floor were available for inspection and analysis, For some particular
reason, unwritten but obvious rule, I was not permitted to visit other parts of the two floors of
the house. Within the basement area.. there were located other parts of the museum's collection
of artifacts, During this first visit, it was observed that most of the large-scale stones had a
vague zoomorphic or anthropomorphic shape. Among the portable ones, there were two
quartzite tools with evidence of man-made alterations, as well as a stone canoe 17 cm long,
and miniature fishes and birds that looked like tigurines. One of them was a remarkable fish-
with-eye artifact (Fig. I l.
It was very important to see the artifacts both in the daylight and in artificial light, to
determine if there were any man-made alterations to the artifact The analysis included taking
special photographs and checking details of the artifact's surface under a microscope, The first
presentation was in IFRAO Agra Congress in December 2004. It stated that possible final
Pleistocene age artifacts found in North America, taking into account the Meadowcroft
shelter, dating 19.5 thousand years B,C.
The Frankford Museum Society requested a second visit in April 2005. During this stay
at the site, I gained access to all of the Lost Valley artifacts. This second analysis focused on
fish-shaped stones first The examination of 1200 artifacts found another 38 fish-like items,
3
identified with strong evidence of man-made alterations. One of them was a stone fish-like
artifact with marvelous three-dimensional representation of the "soft caviar" (Fig. 2), The
other one is miniature fish figurine (Fig, 3).
At this new site in North America The Lost Valley's portable art provides different lithic
materials, sizes, and modeling techniques, which demonstrate the resourcefulness of the
people of the Stone Age. These artifacts are a great resource to research and discuss,
especially the spatial art as a kind of single selection of Stone Age consciousness.
The discovery of The Lost Valley's Frankford Museum collection of artifacts is a good
example of obvious and very simple artifacts overlook,:d for centuries, Institutional and
private partnerships need to work together, need to trust to '~ach other, and need to be mutually
patient and flexible, in order for a proper and comprehensive analysis to be completed.
'",
Honorable Judge Edgar B. Bayley
Cumberland County Courthouse
Carlisle, P A 17013
September 29, 2005
Your Honor,
I am hopeful that you will read this letter in response to your decision concerning the artifacts of The
Lost Valley. I think I understand your position, and know that a considerable amount of your time
has been involved in this litigation between the owners: Gary Yanone, Nolen Chew, and Jeff
Kottmyer. It is a creative decision and probably based on similar circumstances as King Solomon.
Although this case does not directly deal with a human life, it does reflect on human culture. As has
been stated, the value of these artifacts could range from zero to thousands of dollars, and it is that
point that I feel a need to clarify. The Lost Valley site is controversial and needs further study to
confirm or negate its authenticity. The types of artifacts, as stated, range from known tool examples
to controversial rock art, It has been stated by Dr, Paul Raber that these rocks are nothing more than
pieces of eroded rocks. This may be true, but Dr. Arsen Farajev believes them to be authentic paleo
rock art and has presented this information several times over the past two years at several scientific
meetings.
An analogy for this situation could be the following. If someone had found items used for artistic
paintings in a house plus several pieces of art that appeared to be nothing more than futuristic,
geometric shapes, and distorted human forms, that individual might have disposed of the property
thinking it was not of any value. However, before it was disposed, some other professionals looked at
the material, and saw a relationship between these artistic forms and tools and did more research, it
just might be related to the artist Salvador Dali. But to study these items to verify their authenticity,
the items would need to be in the same place so that their relationships could be manifested. Several
newspaper articles have stated that the dispute is "a dozen" or "over dozens of stones", but the
number of artifacts probably numbers closer to 20,000. Think of the loss of scientific information to
loose such a vast amount artifacts.
As a member of the Frankford Museum Society, I am endeavoring to get a grant so that these items
can be studied in situ. Hopefully, this will take place during the 2006 year with scholars such as Dr.
Farajev, Jane Holocott, and others. However, if there were pieces of the puzzle missing, it would
endanger gaining a more verifiable result.
No one wants to see any single person's rights denied; however, as a scientist, I must also see beyond
individuals and to the greater good of mankind, and this situation is one of those. These items may
provide evidence to the existence of human inhabitation of North America 19000 BC, thus need to be
researched. I do not know if rulings can be reversed, but at least ,can a time line be established that
provides for a more in-depth analysis of the artifacts before they are divided among the owners. If
these artifacts are nothing more than eroded rock forms, so be it, but if not, think of the loss to
understanding ancestral development in North America. Enclosed is a recent report by Dr. Farajev
that was sent to France for publication. I believe you will find it interesting as well.
Sincerely,
C. Edward Owens, MS
Science Education Specialist
Capital Area Institute for Mathematics and Science
Penn State - Harrisburg
Olmsted Bldg., W351 C
777 West Harrisburg Pike,
The Frankford Museum Newsletter
Page 4 of6
ILetter from James Harrod
To: Jeff Kottmyer, Director, Frankford Museum Society
f want to express my deepest appreciation to you and the Board for inviting me to visit your site.
My first impression is that it definitely is a prehistoric site, that you have artifacts that show human workmanship
and that are works of prehistoric art. Some of them are remarkable mastEtrpieces. At least one or more of the
makers were brilliant artists. I was especially impressed by the canoe, fish-with-eye, the many birds and fish, bird-
fish combinations, and the
beautiful horse head.
From my perspective on European stone sculptures in prehistory, I would! say that on the one hand your artifacts
bear similarities in style to palaeoart found Europe. Asia and Africa, while, on the other hand being
quite unique and thus of great interest in expanding our knowledge of stone sculpture traditions. They especially
share in common with palaeoart of other continents, as well as Native American art such as the Zuni fetish
tradition, the way in which a 'nature-facf, a naturally
occuring piece of stone that has a vague zoomorphic or anthropomorphic; shape, is given just one or a few chips
or abrasions to SUddenly reveal the living form within the stone.
You are most fortunate to have Dr. Arsen Faradjev examining your objects. I have great respect for his scientific
abilities and artist's eye, He will also be able to share knowledge of your artifacts with other rock art researchers
around the world.
Research on portable art. usually stone sculptures and figurines, lags behind that on rock painting and
petroglyphs. Dr, Faradjev's work at your site will help strengthen the scientific basis for the study of portable art.
I hope at some point new discoveries and research will enable answerinl~ the question of cultural layers and
dating. This will be critical in the long-term for us to be able to place the lIrtworks in their prehistoric context
I am curious about the fish-bird theme and maybe can help you by looking through anthropological literature to
see if I can find any ethnographic parallels, knowing, of course, that this cannot settle the dating question, which
will require scientific methodology.
Again thanks for inviting me, Let's stay in close touch as the work progrEtsses. I am eager for every bit of news.
James Harrod
James Harrod, PhD is a scholar specializing in
http://thelostvalley.org/Membership/Newsletter/FMSNWS%20vol%204.htm
10/6/2005
The Frankford Museum Newsletter
PageS of 6
prehistoris art, religion and semiotics. Much of his writing and field work can be accessed on his website
www.originsnel.org.
A Summer Solstice Celebration:
We would like to take this opportunity to gather those who have an iinterest in what is going on at The
Lost Valley to come and see what we have accomplished at the site. The summer solstice coincides
this year with a full moon on Tue.day, June 21. We will gather at the house at 6pm where the
museum will be open for viewing and continue the evening around Ilhe campfire after dark. Please
bring
. a friend
. a covered dish to share
. a blanket or chair to sit around a campfire
. drums, flutes, or other percussion instruments
. all your best energy to discover the significance of this place
President
Vice.President
Secretary
Treasurer
Director
Director
Director
No need to call ahead, if everyone brings food, it always works out to be enough...
Rain date June 22
cancelled only in the event of a monsoon
2005 Board of Directors - Frankford Museum Society
Nolen Chew
Dennis Hurley
Mary Kay Doyle
Jeff Kottmyer
Edward Owens (6 years)
Roger Swartz (4 years)
Barb Bartos (2 years)
Next meeting:
Saturday, July 16, 2005-1:30pm
Program: Roger Swartz on Susquehanna
native Americans in north Chesapeake and
south central Pennsylvania
Membership Dues:
Please consider joining or renewing membership in FMS to show \four interest in the possibilities of the
site and to supp6rl the communication of activities and events at The Lost Valley.
Please visit the website for more information www.thelostvalley.org
or email us at
Frankford Museum@thelostvalle'f.org
The FrankfOrd Museum Society, Inc
PO Box 157
Plainfield, PA 17081
717-241-4377
Frankford Museum Society, Inc.
http://thelostvalley.org/MembershiplNewsletter/FMSNWS%20voll%204.htm
10/6/2005
, .. l ) . ~
Statement regarding dismantling the Lost Vallev artifact colh:ction 8 October 2005
The potential documentary importance of any collection is in its collective whole,
Although an individual item in a collection can have documentary importance, it is the
analysis of all the pieces collectively that enables detection of any existing relationships,
patterns, or exceptions within the collection and then with other independent collections
to determine potentially wider patterns or exceptions. Although an individual item in a
collection can have quality documentary importance, a collection can provide both
quality and quantity documentation.
Several questions should be asked before disassembling any collection, including "The
Lost Valley" collection.
1. What is the importance of the topic the collection is attempting to
document? Is its primary significance local, statewide, regional, national, or
international. ?
"Who were the first Americans?" has become an on-going debate as recent
archeological finds by professionals and amateurs ar,e providing new information
to seriously consider various hypothesizes. For example, Michael Collins, an
archeologist at the University of Texas at Austin and chief excavator of the Gault
site was quoted in "America's First Immigrants" (Smithsonian Magazine
November 2004): "you couldn't have a more exciting time to be involved in the
whole issue of the peopling of the Americas. You c,m't write a paper on it and
get it published before it's out of date. Surprising nt:w finds keep rocking the boat
and launching fresh waves of debate."
To determine whether The Lost Valley Collection is possibly one of these new
finds, maintaining the collective integrity of the collection is required for
scientific examination by experts to make this detennination.
2. How does the collection relate to other holdings at other repositories to
further study of the topic?
To determine whether there are similarities or differences to other collections
resulting at sites of differing geographical areas, availability of the entire
collection for examination is needed.
3. Is information contained in this collection unique? Or is it duplicated
elsewhere?
If the artifacts in The Lost Valley collection are portable art as Dr. Faradzhev
strongly suggested from his analysis, than the artifacts are unique and would
provide documentary clues as to the early peopling of the Mid-Atlantic United
States and their development (cultural, technological, etc,)
. '., "'...
4. What impact would the destruction or dismantling of the colleetion have on
the documentation and understanding of the topic?
Dismantling The Lost Valley Collection would be a loss of the potential "to
know." Once dismantled, the integrity of the collection would be lost as the
continuity of custodianship is comprised, Keeping the collection intact for
scientific research enables answers to be learned - ev,en the possible answer that
the collection does not docwnent a new find regarding the early peopling of the
Americas. Dismantling the collection destroys the ability for comprehensive
examination and loss of a possible extraordinary discovery. It is better to be safe
now by maintaining the collection as a whole rather than sorry later as the
opportunity this collection offers would be lost.
5. Is there commitment to continue preserving and! documenting the collection
for research?
The commitment by those who advocate for The Lost Valley Collection to remain
together has always been founded on the desired goal to further research for
answers - no matter what the final answer might be- and to do so by seeking
professional analysis.
The Lost Valley Collection is like pieces to a puzzle. When some of the pieces are
removed, especially key pieces analyzed by an expert, efforts to assemble and see the
whole picture are lost.
Barbara F. Bartos
317 Craig Lane
Carlisle, P A 17013
(717) 249-2926
BA in History (Elmira College)
MA in Musewn Administration (Cooperstown Graduate Program)
MSA in Business (Georgia College)
Over 25 years in the musewn and historical society field including
Director of Education and Interim Director (Geneva Historical Society, Geneva, NY)
Collection Consultant: Costume Collection, Georgia College
Shippensburg Historical Society
Advisory Committee: Shippensburg University Arehives
Currently board member Fashion Archives Shippensburg University
Frankford Musewn Society
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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.peterlinC1Uaateslawfirm .com
www.aateslawfirm.com
Attorneys for Respondent, Gary S. Yannone
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
THE LOST VALLEY, LLC
I CIVIL ACTION No. 05-1640
In re:
RESPONDENT GARY S. YANNONE'S ANSWER TO
PETITIONER JEFFREY T. KOTTMYER'S PETITION FOR
RECONSIDERATION OF 28 SEPTEMBER 2005 ORDER
Respondent, Gary S. Yannone ("Mr. Yannone"), by and through his attorneys,
Gates Halbruner & Hatch PC, hereby answers the Petitioner, Jeffrey T. Kottmyer's
Petition for Reconsideration of Order of September 28, 2005.
1. Denied. The parties retained Marc Roberts, Esquire, who filed the
relevant organizational documents with the Department of State. The Certificate of
Organization was filed at 9:13 A.M. on 4 December 2003,
2. Admitted.
3. Admitted.
4. Denied. The petition directly relates to the disposition of the LLC and the
distribution of its assets.
5. Denied. The Petition is a writing that speaks for itself and any
characterizations thereof are denied. By way of further response, the petition was filed
by Marc Roberts, Esquire on behalf of Mr. Kottmyer and Mr. Chew and against Mr.
Yannone, despite the clear conflict of interest in having represented the Lost Valley,
LLC. The petition requested relief without support in the law or the organizational
documents or the operating agreement of the entity.
6. Denied. Mr. Yannone's pro se response is a writing that speaks for itself
and any characterizations thereof are denied. By way of further response, Mr. Yannone
astutely recognized the clear conflict of interest of Marc Roberts, Esquire representation
of Mr. Kottmyer and Mr. Chew and the inherently inequitable, untenable, and
extraordinary relief requested by Mr. Kottmyer and Mr. Chew.
7. Denied. The Order is a writing that speaks for itself and any
characterizations thereof are denied. By way of further response, Mr. Yannone was not
granted "unfettered" access to the entity's records. He was simply granted access to
the records of an entity in which he was an equal member and to which he was illegally
frozen out of by Mr. Kottmyer and Mr. Chew after identifying their incompetence and
waste in managing the Lost Valley, LLC and their negligent dissipation of the finances of
the entity.
8. Denied. The Order is a writing that speaks for itself and any
characterizations thereof are denied.
9. Admitted.
2
10. Denied. The Court is not required to grant the relief requested by the
petitioners simply because they requested it. By way of further response, the relief
requested by the petitioners was without basis in the law, the organizational documents,
or the Operating Agreement.
11. Denied. The parties were on notice of the hearing and its purpose, it was
scheduled directly as a result of the Petition filed by Mr. Kottmyer and Mr. Chew, the
parties were all represented by counsel and fully prepared to address all the relief the
Petitioners sought and not just one particular portion of it. Evidence pertaining to the
artifacts was presented by both sides. Finally, the claim by Mr. Kottmyer that he did not
anticipate the need to present evidence pertaining to the value and significance of the
artifacts at issue can only be characterized as absurd. This is particularly so given the
fact he was represented by competent counsel.
12, Denied. Petitioners were represented by competent counsel, had notice
of the hearing and its purpose, and had the same opportunity to present evidence as
Mr. Yannone.
13. Denied. In fact, "numerous" individuals have not authenticated the
artifacts. Testimony was presented at the hearing that the critical opinions of respected
experts in relevant fields wholly discount that the artifacts are anything other than
weathered stones.
14. Admitted.
15. Denied. The averments contained in this paragraph refer to a writing
which speaks for itself.
3
16. Denied. The averments contained in this paragraph refer to a writing
which speaks for itself.
17. Denied. The averments contained in this paragraph refer to a writing
which speaks for itself.
18. Denied. To the extent the averments contained in this paragraph
constitute conclusions of law, no response is required. By way of further response, the
artifacts are not in the care of federal entities and therefore not subject to 16 U.S.C. ~
470, et seq..
19. Denied. The parties are represented by Counsel who, at a minimum,
would be wise to appear with their clients for the distribution of the artifacts. The Order
was exceedingly simple and designed to avoid any conflict despite the unreasonable
and increasingly wild positions of Mr. Kottmyer. At no time did Mr. Kottmyer request an
independent third-party govern the distribution of the artifacts despite having been
provided the opportunity to do so. He does not get another bite at the apple simply
because his own absurd requests that were actually presented to the Court were
properly denied.
20. Admitted,
4
WHEREFORE, Respondent, Gary S. Yannone, respectfully request this
Honorable Court enter an Order denying Petitioner, Jeffrey T. Kottmyer's Petition for
Reconsideration of Order of September 28, 2005, awarding Respondent, Gary S.
Yannone reasonable attorneys' fees pursuant to 42 Pa.C.S.A. 9 2503 in defending this
petition, and for such other relief as is just and proper.
Respectfully submitted,
Date: 19 October 2005
By:
GATES, HALBR~"& , P.C.
~sl~~, s V
Attorneys for Respondent, Gary S. Yannone
5
CERTIFICATE OF SERVICE
I, Albert N. Peterlin, Esquire, hereby certify that a copy of the foregoing
Defendant, Gary S. Yannone's Answer to Petitioner Jeffrey T. Kottmyer's Petition for
Reconsideration of 28 September 2005 Order has been served this day upon the
fOllowing counsel of record by United States first class mail, postage prepaid, addressed
as follows:
Hillary A. Dean, Esquire
Carl C. Risch, Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, Pennsylvania 17013
Attorneys for Petitioners, Jeffrey T.
Kottmyer & Nolen R. Chew
James I. Nelson, Esquire
Rominger, Bayley & Whare
155 South Hanover Street
Carlisle, PA 17013
Attorneys for Petitioner, Jeffrey T.
Kottmyer
Date: 19 October 2005
B~ al~i.l:l"
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Attorneys for Respondent, Gary S. Yannone
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IN RE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 05-1640 CIVIL TERM
THE LOST VALLEY, LLC
ORDER OF COURT
AND NOW, this 2nd day of November, 2005, this hearing
is continued to take additional testimony on Thursday, November
17, 2005, at 1:30 p.m. At that time counsel should submit
briefs on the legal issues raised at the beginning of the trial
as to, no matter what the valuation of the property is, what is
the proper procedure to be utilized on partition.
"
By the Court, '
\..~
Edgar B. Bayley, J.
~rl C. Risch, Esquire
For Jeffrey T. Kottmyer and Nolen R. Chew, Jr.
Esquire
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