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HomeMy WebLinkAbout05-6265IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH 960 Baltimore Pike NO.2005- (o i ' Gardners, PA 17324 Plaintiff V. ACTION IN EQUITY LARRY ADAM BREAM 877 Baltimore Pike Gardners, PA 17324 And GARY PROSSER 14 Derbyshire Drive Carlisle, PA 17013 Defendants NOTICE TO DEFEND Pursuant to PA R.C.P. 237.5 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 i + IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH 960 Baltimore Pike NO. 2005- Gardners, PA 17324 Plaintiff V. ACTION IN EQUITY LARRY ADAM BREAM 877 Baltimore Pike Gardners, PA 17324 And GARY PROSSER 14 Derbyshire Drive Carlisle, PA 17013 Defendants COMPLAINT NOW COMES, this L, ?? day of ?) C 01-M ?) C - 2005, the Plaintiff, Mt. Victory United Methodist Church, by its attorneys, Douglas H. Gent, Esquire, and Eric R. Dutcher, Esquire, and files the within Complaint, to wit: 1. The Plaintiff is a Pennsylvania non-profit corporation having its registered office located at 960 Baltimore Pike, Gardners, Cumberland County, Pennsylvania. 2. The Plaintiff is a member church of the United Methodist Church denomination. 3. The Defendant, Larry Adam Bream is an adult individual, residing at 877 Baltimore Pike, Gardners, Pennsylvania, 17324. 4. The Defendant, Gary Prosser is an adult individual residing at 14 Derbyshire Drive, Carlisle, Pennsylvania, 17013. 5. The Plaintiff is the owner of certain real property located in South Middletown Township, Cumberland County, Pennsylvania as more particularly described in a certain deed dated July 11, 2001, and recorded in the Office of the Recorder of Deeds for Cumberland County in Record Book 247, page 2306, as more specifically set forth in Exhibit A attached hereto and incorporated herein by reference as though set forth in full. 6. The Plaintiff acquired the above identified land in five separate adjacent tracts beginning in 1889 with subsequent acquisitions in 1942, 1956, 1959 and 1979, 7. The Plaintiff is the successor church by merger of the Church of the United Brethren in Christ, Mt. Victory United Brethren Church and the Mt. Victory Evangelical United Brethren Church. 8. All of the above described land has always been, and is used by the Plaintiff primarily for the Plaintiff s purposes as a church including the location where it holds its worship services, Sunday school classes and many other ministry activities. In addition, a portion of the land is used as a cemetery known as Mt. Victory Cemetery. 9. The records of the Plaintiff show that the cemetery began sometime prior to March 16, 1958. On that date a congregational meeting was held of the Plaintiff at which time there was extensive discussion about the cemetery. A copy of the minutes from that meeting is attached hereto as Exhibit B and is incorporated herein by reference as though set forth in full. Those minutes specifically establish the following: A. The cemetery was owned by and operated by Mt. Victory Evangelical United Brethren Church as an asset and activity of the Church. Said Church is one of the predecessor churches to the Plaintiff. B. Donations made for the purpose of upkeep of the cemetery were maintained in "a trust fund" with the interest being paid to the Plaintiff to be used for the care of the cemetery. C. The trust fund and the checking account were titled as "Mt. Victory cemetery"; however, upon a motion made, seconded and approved the accounts were changed to Mt. Victory EUB Church Cemetery. D. At this meeting the Plaintiff decided to establish a cemetery board for the purpose of overseeing the cemetery. E. The cemetery board, while separate from the Church board, is to be accountable or responsible to the Board of Trustees of the Church. The Plaintiff was to commence actively seeking and obtaining additional land for the cemetery. 10. From March of 1958 to the present, a cemetery has been located upon land owned by the Plaintiff and its predecessor churches. 11. From before March 1958 to the present the Church maintained separate bank accounts for funds either donated to the Plaintiff for upkeep and care of the cemetery or funds received by individuals purchasing cemetery lots. 12. From March of 1958 to the present, the Plaintiff has maintained a separate board or committee for oversight of the cemetery (minutes of church meetings reflect the use of both the term board and the committee). 13. From March of 1958 to the present, the cemetery board/committee has been responsible and accountable to the board of trustees of the Church and/or the administrative board of the Church. 14. Members of the cemetery board/committee are elected by the Church at its annual congregational meeting or, under current United Methodist Church polity, by the annual charge conference of the Church. At various times in the history of the Church members of the cemetery board/committee were either elected for a set term of office or were elected for an indefinite term of office. 15. Sometime subsequent to March 12, 1963, the Plaintiff received a testamentary gift from the Estate of Benjamin Griffie in the amount of $3,000. The Last Will and Testament of Benjamin Griffie, a copy of which is attached hereto as Exhibit C and is incorporated herein by reference as though set forth in full provides for the gift to be invested and the net income to be used for the perpetual care and upkeep of the Griffie family plot. 16. The Plaintiff believes, and therefore avers, that the Church has received other donations from time to time for similar use for the cemetery. The Plaintiff does not have in its possession any records for the cemetery to establish the number and the amount of such gifts or the donors of such gifts. 17. At all times relevant hereto, there did not exist a separate entity from the Church, either an unincorporated association or a corporate entity specifically established for the management, care, upkeep and oversight of the cemetery. There do not exist any governing documents including, but not limited to, a charter, constitution, articles of incorporation or bylaws that establish or give evidence of the existence of a separate entity. 18. Prior to September 2003, the Defendants were officers of the cemetery board/committee. In their capacities as officers of the cemetery board/committee the Defendants had, and continue to have in their possession all of the books, records, financial statements, bank accounts, checkbooks, monies and all other items pertaining to the operation, management and oversight of the cemetery. 19. The Defendants were members of the Church at the time they were serving on the cemetery board/committee and appointed as officers of the cemetery board/committee. At this time, it is believed, and therefore averred, one of the Defendants has terminated his membership with the Plaintiff and has become a member of another church. The other Defendant continues to be a member of the Plaintiff although neither of the Defendants have attended church services, activities or otherwise had any involvement with the Church for a period of two or more years prior to the filing of this Complaint. 20. Within the past 2 years the finance committee of the Church contacted Defendant Bream requesting that he turn over all of the books, records and monies for the cemetery to the Church so that the Church can have an audit performed of the financial records of the cemetery. See Exhibit D attached hereto and incorporated herein by reference as though set forth in full. The Defendant's have refused to turn over all books, records, funds and other items in their possession despite repeated requests from the Church. 21. On July 27, 2004, the administrative board of the Church which has oversight over all other committees and boards of the Church passed a motion to abolish the cemetery board. See Exhibit E attached hereto and incorporated herein by reference as though set forth in full. Subsequent to said action the Plaintiff contacted the Defendants again requesting all records, monies and other items in the possession of the Defendants relating to the cemetery and the Defendants have refused to turn over the same to the Plaintiff. COUNT I. 22. Paragraphs 1 through 21 are incorporated herein by reference as though set forth in full. 23. All of the records, monies, documents, financial statements and other items relating to the cemetery of the Plaintiff are tangible personal property belonging to the Plaintiff. 24. The Defendants' possession of said items is unlawful and interferes with the rights and interests of the Plaintiff with respect to possession of the same. 25, The Plaintiff on or about April 7, 2005, through legal counsel was provided with copies of three months worth of bank statements for the checking account for the cemetery funds for the months of April through July of 1999. Copies of those statements are attached hereto as Exhibit F and incorporated herein by reference as though set forth in full. Said statements reflect balances in the checking account substantially lower than what the Plaintiff believes should be in said account and said statements do not reflect any other accounts. The statements fail to set forth the whereabouts of the $3,000.00 testamentary gift received from the Estate of Benjamin Griffie or any other similar donations from other individuals or families that are to be held and invested for the purpose of generating income for the care of the cemetery. 26. The Plaintiff believes, and therefore avers, that the Defendants have unlawfully converted monies belonging to the Church to be used for the care and maintenance of the cemetery to the Defendants personal use or other uses inconsistent with the purposes of the funds including restrictions imposed upon monies given by specific donors. 27. The Plaintiff believes, and therefore avers, that because the Defendants have unlawfully converted some of the Church funds to their own use, the Defendants have refused and are unwilling to provide all of the records to the Plaintiff since the same would disclose the unlawful conversion of funds by the Defendants. 28. The actions of the Defendants are intentional, willful, malicious and in bad faith. 29. As a result of the Defendants' unlawful conversion of funds to other uses, the Plaintiff has been damaged in the loss of revenues to be used for the care and upkeep of the cemetery, in an unknown amount, and has been placed at substantial risk to donors and/or their families for breach of the Plaintiffs fiduciary duty. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants directing the following: A. That the Defendants immediately deliver to the Plaintiff the originals of all bank and financial statements, books, records, documents, electronic data in any form including computer disks, software programs used for bookkeeping, and any other item relating to the cemetery; B. That the Defendants immediately turn over to the Plaintiff all funds currently in their possession relating to the cemetery including checkbooks, certificates of deposits, savings passbooks, cash, or in whatever other form said funds exist including any other investments; C. That the Defendants provide an accounting for all of the activities and funds under the control and possession of the cemetery board/committee for the past 40 years; D. That the Defendants be directed to pay to the Plaintiff such sums as may be determined to be lost as a result of the unlawful conversion of funds by the Defendants including, but not limited to, reasonable interest income that would have been earned on said funds; E. That the Defendants reimburse the Plaintiff for reasonable attorney's fees, costs and expenses; F. That the Defendants reimburse the Plaintiff for such additional funds that may be determined to be due and owing after a proper audit of the financial records for the cemetery; and G. To impose a constructive trust upon the Defendants with respect to all of the monies and records relating to the cemetery until such time as the same have been turned over to the Plaintiff; and H. Such other relief as the Court deems just and proper. COUNT It VIOLATION OF ACT OF APffiL 26 1855 AS AMENDED (10 P.S. § 811 30. Paragraphs 1 through 29 are incorporated herein by reference as though set forth in full. 31. The Act of April 26, 1855, P.L. 328 § 7 (10 P.S. § 81) regulates the control and disposition of Church property. A copy of said Act is attached hereto as Exhibit G and incorporated herein by reference as though set forth in full. 32. Said Act provides that any property, real or personal, bequeathed, devised, or conveyed to any ecclesiastical corporation, bishop, ecclesiastic, or other person, for the use of any Church, congregation, or religious society for or in trust for religious worship or sepulture shall be taken and held subiect to the control and dis osition of such officers or authorities of such church, congregation or religious society, having a controlling power according to the rules regulations usages or comorate requirements of such church congregation or religious society, which control and disposition shall be exercised in accordance with and subject to the rules and regulations, usages, cannons, discipline and requirements of the religious body, denomination or organization to which such church, congregation, or religious society shall belong, but nothing herein contained shall authorize the diversion of any property from the purposes, uses, and trusts to which it may have been heretofore lawfully dedicated, or to which it may hereafter, consistent) herewith, be lawfully dedicated. 33. The cemetery physically exists on land that has always been owned by the Plaintiff. 34. At no time has there existed a separate entity, including, but not limited to, an unincorporated association or a non-profit corporation for the purpose of establishing, maintaining and caring for the cemetery located on the Plaintiff s land. 35. At all times relevant hereto, as set forth in Exhibit B attached hereto and incorporated herein by reference as though set forth in full, the cemetery has been recognized by the denomination of which the Plaintiff and its predecessors have always belonged as assets of and under the control of the Plaintiff and its predecessor churches. 36. The Defendants currently and for the past two years have not held any position in the Church as an officer or authority with respect to the cemetery or any matters pertaining thereto. 37. The possession of the books, records, financial statements, documents, monies and other items relating to the cemetery by the Defendants' and their refusal to deliver the same to the Plaintiff is a violation of the aforesaid Act and places the Plaintiff in the position of having breached its fiduciary duty to hold said assets for the purposes, uses, and trusts which said property is dedicated. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants directing the following: A. The Defendants immediately deliver to the Plaintiff the originals of all bank and financial statements, books, records, documents, electronic data and any form including computer disks, software programs used for bookkeeping, and any other item relating to the cemetery; B. The Defendants immediately turn over to the Plaintiff all funds currently in their possession relating to the cemetery including checkbooks, certificates of deposits, savings passbooks, cash, or in whatever other form said funds exist including any other investments; C. That the Defendants provide an accounting for all of the activities and funds under the control and possession of the cemetery board/committee for the past 40 years; D. That the Defendants be directed to pay to the Plaintiff such sums as may be determined to be lost as a result of the unlawful conversion of funds by the Defendants including, but not limited to, reasonable interest income that would have been earned on said funds; E. That the Defendants reimburse the Plaintiff for reasonable attorney's fees, costs and expenses; F. Such additional funds that may be determined to be due and owing after a proper audit of the financial records for the cemetery; and G. To impose a constructive trust upon the Defendants with respect to all of the monies and records relating to the cemetery until such time as the same have been turned over to the Plaintiff; and H. Such other relief as the Court deems just and proper. COUNT III NON PROFIT CORPORATION LAW 38. Paragraphs 1 through 37 are incorporated herein by reference as though set forth in full. 39. The Plaintiff is a non profit corporation organized under the laws of the Commonwealth of Pennsylvania. 40. 15 Pa.C.S.A. § 5508 (a) specifically states that all records, books, and similar items of the corporation shall be kept at the registered office of the corporation in Pennsylvania or the principal place of business wherever situated, or any actual business office of the corporation. 41. Pursuant to 15 Pa.C.S.A. § 5508 (b) all members of the church upon written demand, have the right to examine, in person or by agent or attorney, all of the books and records of accounts, membership register and similar documents of the non- profit corporation. 42. The Plaintiff believes, and therefore avers, that the Defendants are maintaining the possession of all of the records, books, financial statements, monies, documents, and other items relating to the cemetery at one or both of the Defendants personal residences, or at a location other than the Church's office and principal place of activity. 43. Various individuals who are members of the Church and who also hold various positions of authority such as the administrative board chairman and the finance committee chairman have made written demand upon the Defendants to see all of the above identified records. 44. The Defendants refusal to honor the written requests of said members, assuming that the Defendants have lawful possession of the records, which is not admitted to by the Plaintiff, is a violation of § 5508. 45. The Defendants are in violation of § 5508 by refusing to allow members of the Church to inspect all of the records and by the Defendants having possession of all of said records at a location other than the principal location of the Church. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants directing the following: A. The Defendants immediately deliver to the Plaintiff the originals of all bank and financial statements, books, records, documents, electronic data and any form including computer disks, software programs used for bookkeeping, and any other item relating to the cemetery; B. The Defendants immediately turn over to the Plaintiff all funds currently in their possession relating to the cemetery including checkbooks, certificates of deposits, savings passbooks, cash, or in whatever other form said funds exist including any other investments; C. That the Defendants provide an accounting for all of the activities and funds under the control and possession of the cemetery board/committee for the past 40 years; D. That the Defendants be directed to pay to the Plaintiff such sums as may be determined to be lost as a result of the unlawful conversion of funds by the Defendants including, but not limited to, reasonable interest income that would have been earned on said funds; E. That the Defendants reimburse the Plaintiff for reasonable attorney's fees, costs and expenses; F. Such additional funds that may be determined to be due and owing after a proper audit of the financial records for the cemetery; G. To impose a constructive trust upon the Defendants with respect to all of the monies and records relating to the cemetery until such time as the same have been turned over to the Plaintiff; and H. Such other relief as the Court deems just and proper. COUNT IV ACCOUNTING 46. Paragraphs 1 through 45 are incorporated herein by reference as though set forth in full. 47. In the event the Court finds that the Defendants have a lawful basis for having possession of all of the bank and financial statements, book, records, documents and monies relating to the cemetery, the Defendants hold the same as Trustees for the benefit of the Church, its members, and other individuals who have purchased cemetery lots or have donated funds for the purpose of maintenance and upkeep of the cemetery. 48. The Church, in its capacity as owner of the cemetery, is entitled to have an accounting of all the monies held by the Defendants and the use thereof during such time as all of said documents and monies have been in the possession of the Defendants. 49. Despite repeated requests from the Plaintiff, the Defendants have failed and refused to account for the same to the Plaintiff. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter an Order directing the Defendants to provide a full and complete accounting for all of the monies and records of the cemetery for such time as has lapsed since any prior accounting and/or audit of the records for the cemetery. COUNT V PUNITIVE DAMAGES 50. Paragraphs I through 49 are incorporated herein by reference as though set forth in full. 51. The Defendants left the Plaintiff several years ago as a result of various disagreements and disputes with the leadership of the Church over numerous matters. 52. The Defendants have failed to maintain their membership and/or attend services or other activities of the Church. 53, The Defendants' conduct in unlawfully retaining the records, financial statements, monies, documents, and other items of the Plaintiff relating to the cemetery is intentional, malicious, in bad faith, and motivated by ill will toward the Church. 54. The Defendants are fully aware that they have no basis, in law or in fact, to retain said items belonging to the Plaintiff. 55. The actions of the Defendants have caused considerable embarrassment, aggravation, and difficulty for the Plaintiff. 56. The actions of the Defendants have placed the Plaintiff in the position of being unable to carry out its fiduciary duties with respect to the cemetery. 57. As a result of the intentional and malicious acts of the Defendants, the Plaintiff has been forced to incur various costs, expenses and attorney's fees. WHEREFORE, in addition to the relief requested above, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants awarding the Plaintiff punitive damages in an amount determined by the Court to be appropriate under the circumstances, plus reasonable attorney's fees and costs. Respectfully submitted, Douglas . Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff VERIFICATION We, Bryan Mann and Rick McCauslin, representatives of Mt. Victory United Methodist Church verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. Date: o? Date: 0 Mt. Victory United Methodist Church By: n ?7 Bryan ann By. 1 Ri Mc,auslin Exhibit A a?w THISDEED w MADE THE day of July, in the year two thousand one (2001) . n O G L U* C-, O_ BETWEEN MOUNT VICTORY UNITED METHODIST CHURCH, of QFLneE& Adams County, Pennsylvania, hereinafter called Grantor. r-+ r r n o a -U -V ? n?N AND rv G ? RI z m D MOUNT VICTORY UNITED METHODIST CHURCH, a religious corporation of Cumberland County. Pennsylvania, hereinafter called Grantee. WITNESSETH, that the said Grantor for and in consideration of the sum of One and no/100 ($1.00) Dollar lawful money United States of America, unto it well and truly paid by Grantee at and before the sealing and delivery of these presents, leased and confirmed and by these presents does grant, bargain, sell, alien, enfeoff, release and confirm unto the said Grantee. TRACT NO. 1: ALL that hereinafter described lot of ground with improvements thereon erected situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows, to wit: BEGINNING at a stone in the Hanover and Carlisle Turnpike Road; thence along said Turnpike, South 13 degrees East 8/10 perches to a stone in said road; thence by land of said Albert Smith, 73 '/4 degrees West 13 perches to a stone; thence by the same, North 16 degrees West 5 6/10 perches to a stone; thence by Forge lands, North 61 degrees East 13 8/10 perches to the Place of BEGINNING. CONTAINING 94 perches net measure and known as Mount Victor Church Lot. nuk 247 Pn 23G6 A- BEING the same property which Alfred Albert, granted and conveyed to William Coulson, Alfred Albert and Alpheues Marsh, Trustees for the Church of the United Brethren In Christ, by Deed dated January 19, 1889 and recorded in the Office of the Recorder of Deeds for Cumberland County in Deed Book "I", Volume 4, Page 406, TRACT NO. 2: ALL that certain lot of ground situate in the Township of South Middleton, County of Cumberland and State of Pennsylvania, bounded and described as follows: BEGINNING at a point in the center line of Penna. Highway, Route #342, formerly Hanover and Carlisle Turnpike, where said center line intersects the southern line of the property of the Grantee herein; thence by said center line of said Turnpike, South 15 degrees East 56 feet to a point in said center line; thence by other land of the Grantor, South 73 3/ degrees West 208 feet to a point; thence by land of said Grantor, North 15 degrees West 56 feet to land of said Grantee; thence by same, North 73 % degrees East 208 feet to the Place of BEGINNING. BEING the same property which Adam F. Bream, widower, granted and conveyed to Mount Victory United Brethren Church by Deed dated May 23, 1942 and recorded in the Office aforesaid in Deed Book "M", Volume 12, Page 597. TRACT NO. 3: ALL that certain lot of ground situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point in the center of the public road leading from Carlisle, Pennsylvania to Hanover, Pennsylvania, at the intersection of said public road with a public road known locally as the "Church Road"; thence along the center of said "Church Road", South 62 degrees West, a distance of 595 feet to a point, a corner of land now or formerly of Frances Wilkinson; thence along land of said Wilkinson, North 12 3/. degrees West, a distance of 280 feet to a point; thence along land of R. S. Shopp, North 67 degrees 35 minutes East, a distance of 602 feet to a point in the center of said Carlisle-Hanover Public Road; thence along the center of said Carlisle-Hanover Public Road, South 9 degrees 50 minutes East, a distance of 235.5 feet to a point, the Place of BEGINNING. BEING the same properties which Adam F. Bream, widower, granted and conveyed to Trustees of Mount Victory United Brethren Church by Deed dated June 27, 1956 and recorded in the Office aforesaid in Deed Book "G", Volume 17, Page 70. 800K 247 FACE2307 TRACT NO. 4: ALL that certain tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point in the center of a public road leading from State Highway Route No. 94 to the Oxford Road, which point is a corner of other land belonging to the Grantee herein; thence in a southwardly direction along said other land of the Grantee, a distance of 170 feet, more or less, to a point (iron pipe); thence in a westwardly direction along other land of the Grantor herein, a distance of 340 feet, more or less, to a point (iron pipe); thence in a northwardly direction along other land of the Grantor herein, a distance of 788 feet, more or less, to a point in the center of the said public road leading from State Highway Route No. 94 to the Oxford Road; thence in an eastwardly direction along the center of said public road leading from State Highway Route No. 94 to the Oxford Road, a distance of 340 feet, more or less, to a point, the Place of BEGINNING. BEING the same property which Adam F. Bream, widower, granted and conveyed to Trustees of the Mount Victory Evangelical United Brethren Church by his Deed dated June 12, 1959 and recorded in the Office aforesaid in Deed Book "G", Volume 19, Page 167. TRACT NO. 5: ALL that certain piece or parcel of land situate in South Middleton Township, Cumberland County, Pennsylvania, as shown on the Final Plan of Minor Subdivision for The Peters Orchard Company, which Plan is recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 36, at Page 26, more particularly bounded and described in accordance with that survey made by Eugene Albert Hockensmith, Registered Surveyor, as follows: BEGINNING at an iron pin on the western side of Pennsylvania Route 94, 15 feet from the center line of said Route 94 in line of lands of Mt. Victory United Methodist Church; thence along said Highway, South 09 degrees 11 minutes 30 seconds East, a distance of 130 feet to an iron pin in line of other lands of the Grantor; thence along said other land of the Grantor, South 78 degrees 24 minutes West, a distance of 539.72 feet to a point in line of other land of the Grantor; thence along said other land of the Grantor, North 12 degrees 50 minutes 34 seconds West, a distance of 129.92 feet to an existing railroad iron in line of land of Mt. Victory United Methodist Church; thence along said land of Mt. Victory United Methodist Church, North 78 degrees 24 minutes East, a distance of 548 feet to a point on the western side of Pennsylvania Route 94, the Place of BEGINNING. BEING the same property which the Peters Orchards Company, granted and conveyed to Mt. Victory United Methodist Church, by Deed dated August 9, 1979 and recorded in the Office of the Recorder of Deeds in Deed Book "P", Volume 28, Page 220. NluX 247 PAGE23c8 Mount Victory United Methodist Church is one in the same as Trustees for the Church of the United Brethren in Christ, Mount Victory United Brethren Church, Trustees of Mount Victory Evangelical United Brethren Church, Trustees of the Mount Victory Evangelical United Brethren Church. TOGETHER with all and singular tract of land ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of the Grantor in law, equity, or otherwise howsoever, of, in and to the same and every part thereof., TO HAVE AND TO HOLD the said tract of land hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only proper use and behoof of the said Grantees, their heirs and assigns forever. AND the said Grantor hereby covenants and agrees that it will warrant specially the property hereby conveyed. THE Grantor doth hereby constitute and appoint Kirby L. Bream, to be its attorney for it, and in its name and as and for its corporate act and deed to acknowledge this Deed before any person having authority by the laws of the Commonwealth of Pennsylvania to take such acknowledgment, to the intent that the same may be duly recorded. IN WITNESS WHEREOF, the said Grantor has caused this Deed to be signed in its corporate name by its Chairperson and has caused to be affixed hereunto the common and corporate seal of the said corporation, attested by its Secretary, the day and year first above written. WITRESSs MOUNT VICTORY UNITED METHODISTCHURCH BY: "IL94 (SEAL) CAIRPERSOP BOARD OF TRUSTEES MOP 247 PAGE23()9 STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND :SS: On this, the "'7 day of July, 2001, before me, the undersigned officer, personally appeared Kirby L. Bream, Chairperson, Board of Trustees , known to me (or satisfactorily proven) to be the person who is named in the foregoing Deed and acknowledged that he executed the same as the act of his principal for the purposes therein contained. .. ` IN WITNESS WHEREOF, I y-.',ZS wOnW*",iw1?tlYUl.4rwr yv.?'? " .. ! `.s. popg?BNr?rieNSe Boro, CWnbw COmmiasion Explim . 9fvlsyNWell9soc hereunto set my hand and official seal. Public i counttyy 3. a,;%4 3.6k, I do hereby certify that the precise residence and complete post office address of the within named Grantee is: / ?.C.? aku.'e Aor"I 4A¢,,.a"e X6 i7 34V July 2001 3.-? Attorney f' r rantee W x STATE OF PENNSYLVANIA : SS: COUNTY OF CUMBERLAND RECORDED on this day of ; A.D. 2001, in the Recorder's Office of said County, in Deed Book , Page Given under my hand and the seal of the said Office, the date above written. zm. 247 ZEWJ0 IRWIN, McKNIGHT & HUGHES ATTORNEYS I Certify this to be recorded In Cumberland County PA Recorder of Deeds Rrv.les rx lbvet v aft ou Poi REALTY TRANSFER TAX <?? fik Number COMMONWEALTH OF PENNSVLVANIA STATEMENT OF VALUE DEPARTMENT OF REVENUE age umbs, WRRAU OF INDIVIDUAL TAXIIS DEPT. 200603 HARRISBURG, PA 17138-0603 See Reverse for Instructions an Reror 1 e each section and file in duplicate with Recorder of Deeds when (1) the full voluskonsidsration is not set forth in the < o consideration, or by gift, or (3) a tax exemption is claimed. A Statement of Value is not required if the transfer is USE ONLY 2) when the deed exempt from tax A CORRESPONDENT - All inquiries may be directed to the following person: Name Telephone Number: Area Code I I Street Address City Slate Zip Code B TRANSFER DATA Date of Acceptance ° Document ranters aNOrlr) V 51reet Address J ?.?- a7wfL Gramee(s) Lessesl,) M U9tiL1 u- /)GL/??L1T G Street Address U Roca- 11) ' 20 City Sims Zip Code City p State Zip Code h! c? 17,3a K! c ?7 1:99 C PROPERTY LOCATION cj q0' yD • Dbile •Oa,v 2. Check Appropriate Box Below for Exemption Claimed ? Will or imestate succession (Name ec.dpul (Ease Fib Nu I -- ? Transfer to Industrial Development Agency. ? Transfer to a trust. (Attach complete copy of trust agreement identifying all beneficiaries.) ? Transfer between principal and agent. (Attach complete copy of agencylstrow party agreement.) ? Transfen to the Commonwealth, the United States and Instrumentalities by gift, dedication, condemnation or in lieu of condemnation. (If condemnation or in lieu of condemnation, attach copy of resolution.) ? Transfer from mortgagor to a holder of a mortgage in default, Mortgage Book Number , Page Number ? Corrective or confirmatory deed. (Attach complete copy of the prior deed being corrected or confirmed.) ? Statutory corporate consolidation, merger or division. (Attach copy of articles.) Other (Pleose explain exemption claimed, if other than listed above.) 80V 247 tAy2aii Was of law, I declare Flies I have examined this Statement, Including accemponying Mfermat ea, and to the best of my knowledge H Is true, coned and complete. Correspondent or Resooneib • Party y n_.? 2 Wr? > )V-0) LA FAILURE TO COMPLETE THIS FORM PROPERLY OR ATTACH APPLICABLE DOCUMENTATION MAY RESULT IN THE RECORDER'S REFUSAL TO RECORD THE DEED. D VALUATION DATA Exhibit $ Alt n ti? ??? ?ji' ? ?e?d ,,rr?r-d??,?r?--? ?•. ?,?????a-??.dt???r.?r?.? '?f ?21h.?/? 77f A?, `G %t .? ,2l,Zdcri!eel'f rr1 c 3, W, 23.alil Ira j ?r' ' .,? ell- N x Rap'm ;i A, r? ?4 x$440 ?lja ??` 141 / ??t12 X0 4410 AxAof?, ?4d z 0' hi"q 0 r(nn r /f-/y/fJ?/j dl) U A . /A_ cem 10 r f ? ?Z"A rpu, " ;Vpv 14 RAZO-WIJ d ??A%?ivd7?li?? } i I fa .' /b e- p Q s Exhibit C COPY FOR MT. VICTORY CEMETERY ASSN. LAST WILL AAD ' TAMEENT or SEN.7AMIN GR.IFPTE Cl 1, Benjamin Griffie, a resident of South Middleton Town- ship, Cumberland County, Pennsylvania, being of sound and disposing KU, memory and understanding, do hereby make, publish and declare this :qty last will and testament, hereby revoking and making void any and all wills by me at any time heretofore made. ITEM ONE: I, direct that all my just debts and funeral. eKp=ascs shall be paid by my executrix hereinafter na;nnd as soon my docc:ase as nay be found convenient. ITEM TWO: ; direct that my remains be iaterred on the burial plot in Mt. Victory Cemetery, South Middleton Township, Cumberland County, Pennsylvania. I further give and bequeath t:n Mt, Victory Cemetery Assoclatton the sun! of Three Thousand Dollars (13,000.00), said Cemetery Association to use the net annual inw m, therefrom for the perpetual care and up%eep of my `amtly burial plot in said cemetery, and any amount not needed for such: purpose shalt be used for the general care and maintenance of said cometory. ITEM THREE: I give and b'tqueath the sum nt Tea Thousand Poll.a!:s Q10,600.00) to my friend, Esther 0. Howe, absolutely. I't'ch. FOUR: I give, devise and bequeath all tho rest, reoi.due and remainder of my estate, real, personal and mtred, of wo Laver uaturo and wi p6 nsweever situate, which I may own ov have witaesses: ,J the right to dispose of at the tim of my death, to such person or persons who may have been taking care of see during the period trmdiately prior to my death. In the event that I should die without the need of any such care, then I give, devise and bequeath all the rest, residue and remainder of my estate to Esther D. Howe, to be hers absolutely. ITEM FIVE: I direct m9 executrix hereinafter named to pay all inheritance, estate, succession or transfer taxes charge- able against my estate or the transfer of any property hereunder, and to charge such taxes as a part of the cost of administration so that the specific bequests contained above will be paid in the amounts designated. IMm SIX: I anticipate no obstruction to the arzicabie administration of my estate; nevertheless, I thin'c it may be prudent to stipulate, and I do hereby stipulate this condition: That any person, whether beneficiary herein or not, who directly or indirectly resists the probate or contests the validity of my will, shall. by such opposition or contest be barred and divested of any benefit or env share in my estate. AND LASTLY, I do hereby nominate, constitute and appoint Velma Coulson, of Dillsburg, Pennsylvania, to be the executrix of this my last will and testament. My said executrix shall have full power to do any and x.11 things necessary for the complete: administration of ^.p• estate, including, the power to sell at public or private sale, without order of Court and without the necessity of filing a bond, any real or personal property belonging to me, Witnesses* 17 A. (SLAL) I and to compound, compromise nr othcz' .se settle and adjust any and all claims against or in favor of sW estate as fully as I could do if living. IN WITNESS WHEREOF, I hereunto set my hand and seal to this my last will and testament, this day of A. D., 1963. Witnesses: r G`7,z r7 _ i !? r1A?9'i?(J Sier?+«+ ?` ?f`':_, (BE AL) I Q ? (111 1 . r Signed, seated, published and declared by Benjamin Griffie, the testatos above darned, as and for bit lest will and testament, in the pro** =* of us, who, in his presence and in the ij presence of each other, have at his request subscribed our names as witnesses hereto. 4 Exhibit D Mt. Victory U.M. Church 1 Victory Church Road Gardners, PA 17324 May 26, 2004 Mt Victory U.M. Cemetery Committee Larry Bream, Chair 877 Baltimore Pike Gardners, PA 17324 cc. Gary Prosser, Treasurer Encl: (1) June 1999 Ad Board Minutes (2) July 1999 Ad Board Minutes (3) Nov. 2003 Ad Board Minutes (4) Oct. 2003 Letter to Board of Trustees Chair Dear Larry: The church requires of Cemetery Committee, (per the United Methodist Book of Discipline), that the following original records be provided to the church, for audit purposes: All Cemetery Committee bank statements for 2003 & 2004, the blueprint of plots, all ownership records & new development plans. The Committee may retain copies of all documents provided for its own record keeping purposes. Enclosure (3) applies. Please contact Linda Phillips, Finance Committee Chair at 528.7162 before June 4th, to arrange drop off or pick up of all the documents. Per Enclosure (1) & (2) above, the Cemetery Committee is currently accountable to the Board of Trustees, therefore, it is requested that all purchase records, bank statements and current status be provided to the Trustee Chair, Dennis Taylor, 486.7191, quarterly to enable the Board of Trustees to report status at Ad Board meetings. Enclosure (4) serves as a reminder that all church spending currently requires. Ad Board approval in advance. As long as the Cemetery Committee is within the responsibility of the Board of Trustees, it too must gain this approval for any spending beyond the regular maintenance costs. Thank you for you cooperation with the above requests. Linda Phillips Rick McCauslin Finance Committee Chair Administrative Board, Chair Mt. Victory U.M. Church Finance Correnilttee S awe Board 1 Victo Quash Road Gardners, PA 17324 August 27, 2003 Mt. Victory U.M. Cemetery Committee Larry Bream, Chair 877 Baltimore Pike Gardners, PA 17324 cc: Gary Prosser, Co-Chair Dear Larry: The Finance Committee is making some changes to the way it manages the church funds. It was determined at the last Finance Committee meeting that the Finance Committee must have visibility of all church-related funds. This will enable more efficient management of church expenses, as well as provide a more credible record for audit purposes. Currently, financial records of the Finance Committee reflect no visibility of funds held by the Cemetery Committee. The Finance Committee should have'oversight of the management of these funds, for audit purposes. Please report the current balance, bank account information, and parcel ownership records to Linda Phillips, Finance Committee chair, by September 12, 2003. Thanks for your cooperation and understanding in this matter. Sincerely, Linda Phillips, Finance Committee Chair; Rick McCauslin, Administrative Board Chair ML Votory U.M. Chumh Finance Comri ttee I Viichrry Church Road Gardners, PA 17324 May 12, 2003 Mt. Victory U.M. Cemetery Committee Larry Bream, Chair 877 Baltimore Pike Gardners, PA 17324 cc: Gary Prosser, Treasurer Encl: (1) June 1999 Ad Board Minutes (2) July 1999 Ad Board Minutes (3) Nov 2003 Ad Board Minutes (4) Oct 2003 Letter to Board of Trustees Chair Dear Larry: Recent actions have led the Finance Committee to believe that the Cemetery Committee would like to operate as a separate entity from the church. Per Enclosures (1) & (2) above, the Cemetery Committee is currently accountable to the Board of Trustees. If the Cemetery Committee desires to take full responsibility of all cemetery obligations (including property insurance and taxes) and is willing to finance the division of the cemetery from the church/parsonage property, Mt. Victory Church would be happy to comply. Please contact Trustee Chair, Dennis Taylor at 486-7191 to arrange a meeting to discuss this opportunity before May 27, 2004. If this is not the desire of the Cemetery Committee, the church requires (per the United Methodist Book of Discipline) that the following original records be provided to the church, for audit purposes: All Cemetery Committee bank statements for 2003 & 2004, the blueprint of plots, all ownership records, & any new development plans. The Committee may retain copies of all documents provided for its own record keeping purposes. Enclosure (3) applies. Please contact Linda Phillips, Finance Committee chair, at 528-7162 before May 27, 2004, to arrange drop off or pick up of the documents. Thereafter, it is requested that all purchase records, bank statements, and current status be provided to the Trustee Chair quarterly to enable the Board of Trustees to report status at Ad Board meetings. Enclosure (4) serves as a reminder that all church spending currently requires Ad Board approval in advance. As long as the Cemetery Committee is within the responsibility of the Board of Trustees, it too must gain this approval for any spending beyond the regular maintenance costs. Thanks for your cooperation with the above requests. Sincerely, Linda Phillips, Finance Committee Chair Exhibit E Mt Victory U.M. Church Administrative Board Meeting, Tuesday, July 27, 2004 @ 7:00 PM IN ATTENDANCE Sylvia & George Books, Tom & Linda Phillips, Barb Brandt, Rick McCauslin, Robin Murphy, Keith Griffie, Ted & June Showers and Diane & Denny Taylor. CALL TO ORDER Rick called the meeting to order at 7:00 PM. Rick opened with scripture from Matthew & an article about Planned Parenthood & how they are exploiting abortion, plus an article which relates to our meeting & church. We, as board members/leaders, are servants of Christ & the church. June lead us with a prayer. MINISTRY AT MT. VICTORY Sylvia said that Jim was glad to have put his name in the fishbowl. It was a chance for him to meet people since he is new to our church. Sylvia really had a good time, also. It is amazing to hear what all he had done. The fishbowl is a great way to get to know more members of the church. Ashley Green had a really good idea. Tom said Diane Gonzales is in the Carlisle Hospital. She got an infection in her port & her blood count is really low. She might have to stay in the hospital for couple of days. We should keep Jean Feldman in our prayers. She had something done with her kidneys then she had a blood clot. She was to be in the hospital overnight but has to stay longer. Robin was asked how Glenda was doing. She is run down but is doing better. Tom went to see his friend which he talked about on Sunday. He got some response from him. He had a stroke, another stroke & now an infection. The doctors do not have much hope for him. Tom is still looking for a miracle. Rick said that Tom saw a miracle from him when he was in to see him the other day. Stella Prosser had knee surgery & now her husband, Stanley was taken to Holy Spirit. He had a cauterization done because of shortness of breath. Rick said it is great opportunity for growth in Ministry with the offering of the Disciple Class. There was a new couple at church on Sunday. They said they liked our church. They have been searching for a church for over a year. They said they will be back. June wanted to thank everyone for all the help during her time of recouping from her foot surgery. Tom said Stephen Ministry will beginning soon and will be held Sunday afternoons. June said we will be having another Disciple Class after the one that is just getting started. She wasn't sure if it would be Disciple 2 or 3. APPROVAL OF MINUTES Rick asked if everyone had a chance to look over the minutes & if there was any questions or changes. There were none. George made a motion to approve the minutes, Linda second the motion & passed by unanimous vote. TREASURER'S REPORT - Sylvia Rick asked if everyone had a chance to look over treasurer's report & if there was any questions or changes. There were none. June made a motion to approved the report, Ted second the motion & passed by unanimous vote. TRUSTEES - Denny There has not been a meeting of the board of trustees. There was however a meeting requested between himself (the chair of trustees) and the cemetery committee, by certified mail. A meeting was set but the head of the cemetery committee (Larry Bream) would not have a meeting because he said there were not enough of the Board of Trustees there to have an official meeting. Larry was asked several times about plot plans, the finances, CDs & balance, any bookkeeping record, etc. and every time he has given a different answer to these questions. His recommendation to Pastor Bryan was that since most of the members of the cemetery committee does not come to church here anymore & has been showing hostility towards the church, then we should eliminate the cemetery committee. They are a subcommittee of the Ad Board so the Ad Board can decide whether or not to keep this committee as it is or to eliminate it. They are also suppose to answer to the Board of Trustees as per the minutes from one of the previous Ad Board meetings. We do however need all the information the cemetery committee has on the cemetery because it is part of the church's property. Church property is considered federal property. If reported that we can not get the information we need, we can call & have the federal government get involved & they will do a thorough checking of the books. We would like not to have to do this but we do need all records turned over to the church. Denny said the church is responsible for the cemetery since we own it. If anyone gets hurt we could be sued, etc. so we need to know what is going on at the cemetery Ted wanted to know how much George was involved with the cemetery committee since he was on the committee. He said that they have not had a meeting for a long time & have not been involved with the cemetery because no one has contacted him from the committee. Rick asked if there were any questions. Keith was wondering if we should make a list of questions to prepare for the board of trustees & the cemetery committee tomorrow. It was decided not to make up questions for tomorrow's meeting. Denny made the motion to dissolve the cemetery committee, Tom second the motion & passed by unanimous vote with no one objecting. Barb was wondering how Denny would handle the meeting tomorrow. L Denny said he will tell them that the cemetery committee no longer exists & all records must be turned over immediately. What about a key to the shed? We do not have one. If we don't get one from the cemetery committee, Denny as chair of the Board of Trustees, will cut the lock off. BRIDGE BUILDERS - Tom August 15th Classic Car Show & Worship Service September 25th Chanty Auction October 9th Fall Harvest October 16th Blood Drive Ted & George have contacted previous people who have brought their cars to the show. They told them about the worship service. Most of the people said that sounded good & also will come for the service. What about flyers about the car show? Some flyers will be made. What about mowing the bottom field for the car show? Robin said one of her relatives might be able to cut it for us. Ted would give him a call to see if he would. WORSHIP - Tom Tom reported about the following upcoming dates: August 8 New Members - Breakfast? September 12 Outdoor Worship & Roast October 10 Fall Rally Day 9 AM Sunday School, Worship 10 AM October 17 Layman Sunday Oct. 24 - 27 Rev. Darby Nace Evangelistic Services June said the DS called and said that he had September 19 scheduled for Rally Day. We might not be able to change it to October 10. We will have to find out for sure what the date will be. They will decide at the next Worship meeting on Tuesday. Are we having breakfast for the new people like we did before? If we are we need to put it in the bulletin this week for people to sign up. We will talk to Bryan to see what we should do about breakfast. A question was brought up about the gas stove, how it is working & who will light the stove. Sylvia was wondering about the bill from Little's Gas Service & if we should be concerned about the about of gas we are using. The bill was for $17.24. It was determined that we are not using much since the last time it was filled but she should call them & see if we can be taken off of automatic delivery & just call when needed. VISITATION -Ted Ted said he had 3 crews which are visiting 9 people. Some of them are: Virginia Day, Betty Spertzel, Kate Coulson, Kathleen Brandt, Meg Brandt, Arlene Smith & Ida Starner What about putting Glenda Marsh on the list? Robin thought that would be a nice idea. Linda mentioned that if anyone would like to make a visit to see Clair & Ann that would be nice. Clair messed up both shoulders moving & Ann has a cracked rib. PPRC -Cork Cork was not here so we did not have a report. OLD OR NEW BUSINESS Linda mentioned that she was glad to see Rodney Brandt at church on Sunday. He mentioned that he came to church instead of working. She thought we should do something for him. She feels he needs us right now. We should be keeping in contact with him by phone & even maybe taking him out to eat. He wants to move back around the church. He lives in Carlisle Springs. Robin asked if there has been a sign-up sheet to put people who could use visitation. We will send one around for people to sign. We might want to make a visit to Zolla and Freda Sheetz. We should keep Tim & Wendy in our prayers. They are on vacation & Tim's lower back is really giving him trouble. Tom closed with a prayer ADJOURNMENT Rick called the meeting to an end at 8:15 PM. Respectfully Submitted, Diane Taylor N(: Nauk PNCBANK, Exhibit F 25 For the period 04/22/1999 to 05/20/1999 MT VICTORY CEMETERY C/O BERNICE EMLET 814 BALTIMORE PIKE GARDNERS PA 17324-9005 Primary account number: 51-4018-2128 Page 1 of 1 Number of enclosures: 1 IT For 24-hour customer service or current rates: Call 1-877-BUS-BNKG ® Write to: Customer Service PO Box 609 Pittsburgh, PA 15230-9738 C1 Watch for our new E-mail address Visit us at www.pncbank.com TDD terminal: 1-800-531-1648 For hearing unpaved clients only :hocking 25 Summary Nit VirtrnY cetnelelT .ccount number: 51-4018-2128 Tax ID number: 23-2049412 lalance Summary Beginning Deposits and Checks and other Ending balance other additions deductions balance 959.52 0.00 80.00 879.52 Average ledger Average collected balance balance 948.48 948.48 leposits and Other Additions Checks and Other Deductions ascription Items Amount Description Items Amount Checks 1 80.00 'otal 0 0.001 Total 1 80.00 gaily Balance ate Ledger balance 4/22 959.52 Date Ledger balance 05/17 879.52 i,ctivity Detail .hecks and Other Deductions .hecks ete Check Amount )sted number * cap in check sequence Reference Date Check Amount Reference Date Check Amount Reference number) posted number number) posted number number 05/17 542 80.00 027s0-t07s E03;3T1 1 5 4 2 MT. VICTORY CEMETARY 39 99 PAY TO T7{H i F...?,..?. DADE2 DF R $o .% .. ?. ?. a*/ PNCBANK PNC Bank. N.A Soulhcemral_PA 040 M6MD if A3 994-7 1:0 3 i 3 i 2 7 38l: 0 54 2u• 5 i 40 i8 2 L 2$il' 1,400000080001' Checking 25 PNCBAANK. PNU B,ntn Primary account number: 51-4018-2128 For the period 05121/1999 to 06/22/1999 MT VICTORY CEMETERY C/O GARY PROSSER 812 BALTIMORE PIKE GARDNERS PA 17324-9096 Page 1 of 1 Number of enclosures: 1 Q For 24-hour customer service or current rates: Call 1-877-BUS-BNKG ® Write to: Customer Service PO Box 609 Pittsburgh , PA 15230-9738 Watch for our new E-mail address ? Visit us at www.pncbank.com TDD terminal: 1-800-531-1648 For hearing unpaired dicnts only T CASHFLOW IS THE LIFELINE OF YOUR BUSINESS. WITH BUSINESS MONEY MANAGER SILVER(SM) AND ?' / GOLD(SM). YOU'LL HAVE THE TOOLS TO MANAGE YOUR CASH FLOW WHILE MAXIMIZING YOUR RETURNS. PHONE YOUR PNC BUSINESS BANKER OR CALL THE NEW BUSINESS TOLL-FREE NUMBER AT 1-877-BUS-BNKG (1-877-287-2654). Checking 25 Summary Mt Victory Cemetery Account number: 51-4018-2128 Tax ID number: 23-2049412 Balance Surnrrtary Beginning Deposits and Checks and other Ending balance other additions deductions balance 879.52 0.00 120.00 759.52 Average ledger Average collected balance balance 777.70 777.70 Deposits and Other Additions Checks and Other Deductions )ascription Items Amount Description Items Amount Checks 1 120.00 Fotal 0 0.00 Total 1 120.00 Daily Balance )ate Ledger balance Date Ledger balance )5/21 879.52 05/26 739.52 tictitvity Detail Checks and Other Deductions Checks * Gap in check sequence We Check Amount Reference Date Check Amount Reference Date Check Amount Reference vested number number) posted number number) posted number number 05/26 541 120.00 o2939ss% 60313731 71 5 4 1 MT. VICTORY CEMETARY AF M Gm j?'? J'x 19 99 PAY iO THE. ORDER OF. DOLLARS PNCBANK PNC Bank, N.A. Sort ena PA 040 MEMO L L ?,+ C++-rT•.• =1:0333;27381: 0S4 n'Si40i82121Pw 100000012000x" Checking 25 PNC Pank PNC IRAN K Primary account number: 51-4018-2128 For the period 064`2311999 to 07/22/1999 Page 1 of 1 Number of enclosures: 1 MT VICTORY CEMETERY C/O GARY PROSSER 13 For 24-hour customer service or current rates: Call 1-877-BUS-BNKG 612 BALTIMORE PIKE GARDNERS PA 17324-9096 29 Write to: Customer Service PO Box 609 Pittsburgh , PA 15230-9738 Watch for our new E-mail address Visit us at www.pncbank.coni TDD terminal: 1-800-531-1648 For hearing impaued diems orily AN NEXT TIME YOU'RE IN A BRANCH, ASK ABOUT THE PNC BANK BUSINESS CHECK CARD... IT'S A Checking 25 Summary Nit Victory ceinetety Account number: 51-4018-2128 Tax ID number: 23-2049412 Balance Summary Beginning Deposits and Checks and other Ending balance other additions deductions balance 759.52 736.37 1811.011 1,315.89 Average ledger Average collected balance balance 1,056.79 1,028.92 Deposits and Other Additions Checks and Other Deductions Description Items Amount Description Items Amount Deposits 2 736.37 Checks I 180.00 Total 2 736.371 Total 1 1811.00 Daily Balance Date Ledger balance Date Ledger balance 06/23 759.52 07!12 1,495.89 07/06 1,095.89 07/13 1,315.89 Activity Detail Deposits and Other Additions Deposits Date Transaction Reference posted Amount description number 07/06 336.37 Deposit 07837694 07/12 400.00 Deposit 021617 179 Checks and Other Deductions Cheeks * G:ap in check sequence Date Check Amount Reference; Date Check Amount Reference Date Check Amount Reference posted number number) posted number number posted number number 07 :'13 543 130.00 1127032ID9 PAY TO THE ORDEROP O.V V. ??ti odmac?:q?Ty 1..d :DOLLARS PNCBANK NC Bank, N.A. Souihcentral PA 040 (?) MEMO C03i31273Bi: 054311.514018212811' 11'00000LB000"' Exhibit G CHARITIES AND WELFARE statute amendatory of such statute is repealed by Acts 1972, Nov. 15, P.L. 1063, No. 271, § 5, insofar as it relates to corporations not-for pro{3t and foreign corporations not-for-proftt. Act 1929, April 18, P.L. 539, was repealed, insofar as it relates to foreign nonprofit corpora- tions, by Act 1966, Jan. 18, P.L. (1965) 1406, § 26(g) (15 P.S. § 8103(g), repealed), insofar as it relates to nonprofit corporations, by 15 P.S. § 8102 (repealed). §§ 37, 38. Repealed. 1933, May 5, P.L. 289, art. X1, § 1102 GROUND RENTS § 51. Repealed. 1933, May 5, P.L. 289, art. XI, § 1102 EXEMPTION FROM RESTRICTION OF PROPERTY ACQUIRED AT JUDICIAL SALE § 61. Repealed. 1933, May 5, P.L. 289, art. X1, § 1102 AMENDMENT OF CHARTER TO INCREASE AMOUNT OF HOLDINGS § 71. Religious corporations may hold and convey real estate purchased before amendment of charters When, under existing laws, any religious corporation shall apply to the court of common pleas of the proper county for an amendment or alteration of their charter, so as to acquire and hold real estate, and after decree and amendments are recorded and shall become a part of the '"charter of the said corporation, then such real estate r*hich was purchased by and conveyed unto said corpora- , before amendment of their charter shall enure and ' tin said corporation, with the same force and effect as originally empowered to hold and acquire real estate: itdvided, That no inquisition shall have been taken :;g'inst the real estate so held to escheat previous to the Whendment of such charter: And provided further, That rh real estate shall not exceed the amount in value hich religious corporations are allowed to hold by char- April 11, P.L. 22, § L 73. Repealed. 1966, Jan. 18, P.L. (1965) 1406, § 26 CONTROL AND DISPOSITION OF CHURCH PROPERTY I, Church property to be subject to control of ofH- cers or authorities thereof; validation of certain charters hensoever any property, real or personal, has hereto- been or shall hereafter be bequeathed, devised, or ;eyed to any ecclesiastical corporation, bishop, eccle- tic, or other person, for the use of any church, congre- an, or religious society, for or in trust for religious ship or sepulture, or for use by said church, congre- on, or religious society, for a school, educational Itution, convent, rectory, parsonage, hall, auditorium, 10 P.S. § 103 or the maintenance of any of these, the same shall be taken and held subject to the control and disposition of such officers or authorities of such church, congregation, or religious society, having a controlling power according to the rules, regulations, usages, or corporate require- ments of such church, congregation, or religious society, which control and disposition shall be exercised in accor- dance with and subject to the rules and regulations, usages, cations, discipline and requirements of the reli- gious body, denomination or organization to which such church, congregation, or religious society shall belong, but nothing herein contained shall authorize the diversion of any property from the purposes, uses, and trusts to which it may have been heretofore lawfully dedicated, or to which it may hereafter, consistently herewith, be law- fully dedicated: And provided, All charters heretofore granted for any church, congregation, or religious soci- ety, without incorporating therein the requirement that the property, real and personal, of such corporation, shall be taken, held, and enure subject to the control and disposition as herein provided, but which are in other respects good and valid, and shall be in all respects as good and valid, for. all purposes, as if the said require- ment had been inserted therein when the said charters were originally granted; and the title to all property, real and personal, heretofore bequeathed, devised, or con- veyed to such church, congregation, or religious society, or which may have heretofore been granted or conveyed by such corporation, shall be firm and stable forever, with like effect as though the said requirements had been contained in the charter of such corporation when the same was originally granted: Provided, That all property, real and personal, held by such existing corporation, shall enure, and be taken and held, subject to the control and disposition as herein provided, with like effect as though such provision had been inserted in the charter of, such corporation when originally granted, any other or differ- ent provision therein notwithstanding. 1855, April 26, P.L. 328, § 7. Amended 1887, June 2, P.L. 298, § 1; 3907, May 1, P.L. 132, § 1; 1913, May 20, P.L. 242, § 1; 1935, June 20, P.L. 353, § 1. § 81a. Equity jurisdiction Jurisdiction is hereby conferred upon courts of equity to enforce the provisions of this act. 1935, June 20, P.L. 353, § 2. FOREIGN CORPORATIONS §§ 91, 92. Repealed. 1966, Jan. 18, P.L. (1965) 1406, § 26 VESTING OF PROPERTY IN TRUSTEES TO ESCAPE LIABILITY FOR DEBTS §§ lot, 102. Repealed. 1933, May 5 P.L. 289, art. XI, § 1102 § 103. Trustees for property of inactive or extinct local church When any individual church, board, or agency of any religious organization shall become inactive or extinct, by 593 "1,. J b$l _ i b y ? c n N N ? ? O A P??., 0 o w ? 0 ti cz. R° N C9 Al? 9zy r c? z O ro r z > H 0 z H m ?o 3 3 O H h7 x tr O n M C H 3 O N c z o z M x ?C c z d y z ? x H n C d moo; CI 1 z zc H3 H .< x ry o t r d ? ? H Ir MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. LARRY ADAM BREAM and GARY PROSSER, Defendants. NO. 2005 - 6265 CIVIL TERM CIVIL ACTION - EQUITY JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW this 13`h day of January, 2005, come Defendants ADAM LARRY BREAM and GARY PROSSER, by and through their attorneys, Irwin & McKnight, and make the following Preliminary Objections to Plaintiff's Complaint, and in support thereof avers the following: 1. Preliminary Objection for Improper Form of a Complaint pursuant to Pa. R.Civ. P. 1028(a)(1), and for Failure of Pleading to Conform to Law or Rule of Court pursuant to Pa. R.Civ. P. 1028 (a)(2) 1. Plaintiff, Mt. Victory United Methodist Church, filed a civil complaint on or about December 6, 2005, against individual Defendants "Larry Adam Bream" and Gary Prosser. 2. Plaintiff's Notice to Defend on the front of its Complaint states that it is "Pursuant to PA R.C.P. 237.5," and proceeds to advise that the Defendants are in default and must act within ten days of the date of the notice. 2 3. Rule 237.5 provides for the form of notice of Praecipe to Enter Judgment by Default, not the form of the required Notice to Defend which permits twenty days to provide a response. 4. The language provided on Plaintiffs notice is in fact the required information for notice under Rule 237.5, but is not the information and statement required in all Notice to Defend forms. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Complaint. H. Preliminary Objection in the Nature of a Demurrer pursuant to Pa. R.Civ. P. 1028(a)(4). 5. Among the Counts of the Complaint against Defendants are allegations of Conversion, request for an Accounting, and Punitive Damages. 6. The undersigned legal counsel has previously asserted to Plaintiff that Mt. Victory Cemetery is a separate legal entity, with a distinct tax identification number, and assets held in the name of Mt. Victory Cemetery, not the name of Plaintiff. 7. In the interests of attempting to satisfy the stated concerns of Plaintiff, however, the undersigned legal counsel previously provided complete copies of the financial ledgers, bank statements, cancelled checks, and certificates of deposit all in the name of Mt. Victory Cemetery. 8. Plaintiffs Complaint fails to acknowledge receipt of these numerous documents voluntarily from the undersigned legal counsel on behalf of the Mt. Victory Cemetery. 3 9. Plaintiff's Complaint also fails to allege or aver any facts or cite to any legal authority to support an award of punitive damages against the individual Defendants. 10. Plaintiff's Complaint therefore fails to state any cause of action against the individual Defendants upon which relief may be granted. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Complaint. III. Preliminary Objection for Nonjoinder of a Necessary Party pursuant to Pa. R.Civ. P.1028 (a)(5) 11. Plaintiff's Complaint was filed only individually against Defendants "Larry Adam Bream" and Gary Prosser. 12. The undersigned legal counsel has previously asserted to Plaintiff that Mt. Victory Cemetery is a separate legal entity, with a distinct tax identification number, and assets held in the name of Mt. Victory Cemetery, not the name of Plaintiff. 13. The limited checks and financial statements attached by Plaintiff to its Complaint specifically identify Mt. Victory Cemetery and its distinct tax identification number. 14. The named individual Defendants in Plaintiff's Complaint are also not the only members of the Mt. Victory Cemetery. 15. Furthermore, Plaintiff improperly names Defendant "Larry Adam Bream" in its caption which is not the proper name of Mr. Bream. 4 16. Mt. Victory Cemetery and its additional members, namely Craig Bream and George Books, are necessary parties to any action initiated by Plaintiff containing allegations such as those asserted in the instant Complaint. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiff's Complaint. Respectfully Submitted, IRWIN & McKNIGHT By: 7A4d4t,-,g- 'AX Douglas G. iller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: January 13, 2006 Attorney for Defendants 5 CERTIFICATE OF SERVICE 1, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DOUGLAS H. GENT, ESQUIRE 1157 EICHELBERGER STREET SUITE 4 HANOVER, PA 17331 Date: January 13, 2006 IRWIN & McKNIGHT Douglas G iller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 ? Y? l f ( l 'TZ {•, '.{ !l t ?- L} _., f?i .. rri ?.} SHERIFF'S RETURN - REGULAR CASE NO: 2005-06265 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MT VICTORY UNITED METHODIST CH VS BREAM LARRY ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon BREAM the DEFENDANT at 1426:00 HOURS, on the 12th day of December , 2005 at 877 BALTIMORE PIKE GARDNERS, PA 17324 by handing to CYNTHIA BREAM, WIFE a true and attested copy of COMPLAINT - EQUITY _ together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 9.60 Postage .37 Surcharge 10.00 .00 37.97 Sworn and Subscribed to before me this --(,+, day of ?e?z?b?r a00? A.D. .r P nota y So Answers: R. Thomas Kline 12/13/2005 DOUGLAS GENT By: Deputy Sheriff CASE NO: 2005-06265 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MT VICTORY UNITED METHODIST CH VS BREAM LARRY ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon PROSSER GARY the DEFENDANT , at 1526:00 HOURS, on the 12th day of December , 2005 at 14 DERBYSHIRE DRIVE CARLISLE, PA 17013 GARY PROSSE by handing to a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 6.00 Service 4.50 Affidavit .00 Surcharge 10.00 nn L V . V V Sworn and Subscribed to before me this ( day of A. D. onot ry So Answers: ? , .rte R. Thomas Kline 12/13/2005 DOUGLAS GENT By: Deputy Sheriff PRARCEE FOR LWMG CASE FOR ARGUMENT (Mast be typewritten a" submitted in dapHeate) NOTARY OF CUbIDSRLAND COUNTY: Place list the within matter for the neat Argument Corot CAFIWN OF ( (endre aspdon m Mt. Victo Methodist Larry Adam and Gary Pross 'he dinfuM United hurch Va. Bream r (Defendant) No. 2005-06265 P Term i. sins 2. In be argued (La., PIWWWs madea flu new tdai, dehudsnt's do carer to nks' Preliminary Objections am wao wen ague comes for pukdw.. Esq. (Nam m -0 -A Y 1157 Eichelbergerr Strredet,) Ste 41 Hanover, PA 17331 (b) for ddeadsat Douglas G. Miller, Esquire Name SStareeet&,mCarlisle, PA 17013 60 West Pomfret 3. I will no* mII p rfla in writing wild n two drys drt this come ba bee timed Sor argument 4. Ieb: Douglars H. Gent yownum - -- Mt. Victory United Methodist Churct AUWAYax - a? c m? v a+ o s W MT. VICTORY UNITED IN THE COURT OF COMMON PLEAS OF METHODIST CHURCH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. LARRY ADAM BREAM and NO. 2005 - 6265 CIVIL TERM GARY PROSSER, Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, JJ. ORDER OF COURT AND NOW, this 11TH day of SEPTEMBER, 2006, upon consideration of Defendants' Preliminary Objections to the Plaintiff's Complaint, and having received the briefs filed by the parties in support of their positions as well as having heard argument thereon, Defendants' demurrer to the claim for punitive damages is SUSTAINED. In all other respects, the preliminary objections are OVERRULED. Defendants are directed to file an answer within twenty (20 ff 'By the Court, E. Guido, J. /ouglas H. Gent, Esquire 1157 Eichelberger Street Hanover, Pa. 17331 vDouglas G. Miller, Esquire 60 West Pomfret Street Carlisle, Pa. 17013 :sld a ? ,0 O? MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY PROSSER Defendants. JURY TRIAL DEMANDED NOTICE YOU ARE HEREBY NOTIFIED that you must responsively plead to the within Defendant's New Matter and Counterclaim, pursuant to Pa. R.C.P. 1026 within twenty (20) days after service, or a default judgment may be entered against you. IRWIN & McKNIGHT By: Dou as G iller, Esquire Supreme Court I.D. No: 83776 60 West Pomfret Street Carlisle, PA 17013 717-249-2353 Date: October 2, 2006 Attorney for Adam Larry Bream and Gary Prosser MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY PROSSER Defendants. JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S COMPLAINT AND NOW this 2nd day of October, 2006, come the Defendants by and through their attorneys, Irwin & McKnight, and pursuant to respectfully file this Answer with New Matter and Counterclaim to the Plaintiff's Complaint, and in support thereof aver as follows: 1. The averments of fact contained in paragraph one (1) of the Plaintiff's Complaint are admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments contained in paragraph three (3) are specifically denied and strict proof thereof is demanded at trial. 4. The averments of fact contained in paragraph four (4) are admitted. 5. The Deed attached as Exhibit "A" to Plaintiff's Complaint and referenced in paragraph five (5) speaks for itself and therefore no response is required. To the extent a response is required, any inference that Plaintiff has operated the cemetery located on a portion of the referenced real property is specifically denied and strict proof thereof is demanded at trial. 6. The Deed attached as Exhibit "A" to Plaintiff's Complaint and implicitly referenced in paragraph six (6) speaks for itself and therefore no response is required. To the extent a response is required, the averments are conclusions of law. 7. The averments contained in paragraph seven (7) are conclusions of law to which no response is required. 8. The averments contained in paragraph eight (8) are admitted in part and denied in part. It is admitted that the identified real estate is currently primarily used as a church for worship services, Sunday school classes and other ministry activities, and that a portion of the land also contains the cemetery known as Mt. Victory Cemetery. The remaining averments in paragraph eight (8) are specifically denied and strict proof thereof is demanded at trial. 9. The averments contained in paragraph nine (9), and all of its subparts (A - F), are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery was not operated by Plaintiff or any predecessor churches, and interest from the funds in the name of Mount Victory Cemetery have never been paid to Plaintiff or any of predecessor churches. 10. The averments contained in paragraph ten (10) are denied as stated. It is admitted that Mount Victory Cemetery has been located upon land owned by Plaintiff and predecessor churches. The remaining averments in paragraph ten (10), including any inference that Mount Victory Cemetery started in March 1958, are specifically denied and strict proof thereof is demanded at trial. 11. The averments contained in paragraph eleven (11) are denied as stated. It is admitted that separate accounts in the name of Mount Victory Cemetery have been established and maintained for the care and upkeep of the cemetery since prior to 1958. The remaining averments in paragraph eleven (11) are specifically denied and strict proof thereof is demanded at trial. 12. The averments contained in paragraph twelve (12) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 2 13. The averments contained in paragraph thirteen (13) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 14. The averments contained in paragraph fourteen (14) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 15. The averments contained in paragraph fifteen (15) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the testamentary gift of Benjamin Griffie was paid to the Mount Victory Cemetery pursuant to the terms of his Last Will and Testament and used to purchase a certificate of deposit in the name of Mount Victory Cemetery in order to satisfy the conditions placed upon the bequest. The Last Will and Testament of Benjamin Griffie makes no reference to Plaintiff or any of the predecessor churches, and Plaintiff in fact did not receive the testamentary gift. 16. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph sixteen (16) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, donations or bequests for the use, care or upkeep of the cemetery are made to the Mount Victory Cemetery and not to Plaintiff. 17. The averments contained in paragraph seventeen (17) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 18. The averments contained in paragraph eighteen (18) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 19. The averments contained in paragraph nineteen (19) are conclusions of law to which no response is required. To the extent that a response is required, the averments are 3 specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff has included multiple vague assertions in its paragraph nineteen (19) that Defendants are unable to more fully answer because of the lack of specificity of Plaintiff. Defendants do assert that Mount Victory Cemetery is a separate and distinct entity from Plaintiff and that their church attendance or membership is irrelevant to the legal issues to be determined at trial. 20. The averments contained in paragraph twenty (20) are admitted in part and denied in part. It is admitted that Plaintiff has requested that all of the records for the stated purpose of performing an audit, and that copies of the records of Mount Victory Cemetery have been provided to Plaintiff for that purpose although there was no legal obligation to do so. It is also admitted that Plaintiff has subsequently requested that all of the monies of Mount Victory Cemetery be turned over to Plaintiff. The remaining averments in paragraph twenty (20), including any inference that the letters attached as Exhibit D are copies of the same letters sent to Defendants, are specifically denied and strict proof thereof is demanded at trial. 21. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-one (21) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff and therefore cannot be abolished by Plaintiff. COUNTI CONVERSION 22. The averments contained in the Defendants' Answers in paragraphs one (1) through twenty-one (21) above are hereby incorporated by reference as if fully set forth below. 23. The averments contained in paragraph twenty-three (23) are conclusions of law to which no response is required. To the extent that a response is required, the averments are 4 specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts. 24. The averments contained in paragraph twenty-four (24) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 25. The averments contained in paragraph twenty-five (25) are admitted in part and denied in part. It is admitted that on or about April 7, 2005, legal counsel for Defendants provided copies of several bank statements, cleared checks, the Last Will and Testament of Benjamin Griffie, and various other documents to legal counsel for Plaintiff. The remaining averments of paragraph twenty-five (25), including any inference that Defendants have converted any funds of the Mount Victory Cemetery or that Plaintiff is entitled to said funds, are specifically denied and strict proof thereof is demanded at trial. 26. The averments contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendants have provided copies of numerous additional financial records, statements, checks, logs and similar documents to Plaintiff to conclusively show that all funds of Mount Victory Cemetery have been used for its maintenance, care and upkeep. 27. The averments contained in paragraph twenty-seven (27) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendants have provided copies of numerous additional financial records, statements, checks, logs and similar documents to Plaintiff to conclusively show that all funds of Mount Victory Cemetery have been used for its maintenance, care and upkeep. Plaintiff's assertions are in fact defamatory, slanderous and libelous against Defendants. 5 28. The averments contained in paragraph twenty-eight (28) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 29. The averments contained in paragraph twenty-nine (29) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendants respectfully request that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. COUNT II ACT OF APRIL 26,1855, AS AMENDED (10 P.S. § 81) 30. The averments contained in the Defendants' Answers in paragraphs one (1) through twenty-nine (29) above are hereby incorporated by reference as if fully set forth below. 31. The statute attached as Exhibit "G" to Plaintiff's Complaint and referenced in paragraph thirty-one (31) speaks for itself and therefore no response is required. To the extent a response is required, the averments are conclusions of law. 32. The statute attached as Exhibit "G" to Plaintiff's Complaint and referenced in paragraph thirty-two (32) speaks for itself and therefore no response is required. To the extent a response is required, the averments are conclusions of law. 33. The averments contained in paragraph thirty-three (33) are specifically denied and strict proof thereof is demanded at trial. 34. The averments contained in paragraph thirty-four (34) are conclusions of law to which no response is required. To the extent that a response is required, the averments are 6 specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate entity whose existence precedes that of Plaintiff. 35. The averments contained in paragraph thirty-five (35) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts, which have been under the care and control of the Mount Victory Cemetery prior to the existence of Plaintiff. 36. The averments contained in paragraph thirty-six (36) are denied as stated. It is admitted that Defendants have not recently been an officer or other representative of Plaintiff. The remaining averments of paragraph thirty-six (36) are specifically denied and strict proof thereof is demanded at trial. 37. The averments contained in paragraph thirty-seven (37) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendants respectfully requests that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. COUNT III NON PROFIT CORPORATION LAW 38. The averments contained in the Defendant's Answers in paragraphs one (1) through thirty-seven (37) above are hereby incorporated by reference as if fully set forth below. 39. The averments of fact contained in paragraph thirty-nine (39) are admitted. 40. The statute referenced in paragraph forty (40) speaks for itself and therefore no response is required. To the extent a response is required, any inference that the minutes, 7 records, logs, and financial accounts of Mount Victory Cemetery belong to Plaintiff are specifically denied and strict proof thereof is demanded at trial. 41. The statute referenced in paragraph forty-one (41) speaks for itself and therefore no response is required. To the extent a response is required, any inference that the minutes, records, logs, and financial accounts of Mount Victory Cemetery belong to Plaintiff are specifically denied and strict proof thereof is demanded at trial. 42. The averments contained in paragraph forty-two (42) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts, which have been under the care and control of the Mount Victory Cemetery prior to the existence of Plaintiff. 43. The averments contained in paragraph forty-three (43) are denied as stated. It is admitted that various individuals have sent letter requesting records and that Defendants have provided copies of numerous financial records, statements, checks, logs and similar documents to Plaintiff to conclusively show that all funds of Mount Victory Cemetery have been used for its maintenance, care and upkeep. The remaining averments of paragraph forty-three (43) are specifically denied and strict proof thereof is demanded at trial. 44. The averments contained in paragraph forty-four (44) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts, which have been under the care and control of the Mount Victory Cemetery prior to the existence of Plaintiff. 45. The averments contained in paragraph forty-five (45) are conclusions of law to which no response is required. To the extent that a response is required, the averments are 8 specifically denied and strict proof thereof is demanded at trial. By way of further answer, Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts, which have been under the care and control of the Mount Victory Cemetery prior to the existence of Plaintiff. WHEREFORE, Defendants respectfully requests that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. COUNT IV ACCOUNTING 46. The averments contained in the Defendants' Answers in paragraphs one (1) through forty-five (45) above are hereby incorporated by reference as if fully set forth below. 47. The averments contained in paragraph forty-seven (47) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 48. The averments contained in paragraph forty-eight (48) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 49. The averments contained in paragraph forty-nine (49) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendants have provided copies of numerous financial records, statements, checks, logs and similar documents to Plaintiff to conclusively show that all funds of Mount Victory Cemetery have been used for its maintenance, care and upkeep. 9 WHEREFORE, Defendants respectfully requests that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. COUNT V PUNITIVE DAMAGES 50. The averments contained in the Defendants' Answers in paragraphs one (1) through forty-seven (47) above are hereby incorporated by reference as if fully set forth below. 51.-57. Count V and the averments contained in paragraphs fifty-one through fifty-seven (51 - 57) were dismissed pursuant to Order of Court dated September 11, 2006, and therefore no response is required. WHEREFORE, Defendants respectfully requests that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. NEW MATTER 58. The averments of fact contained in Defendants' Answers above are hereby incorporated by reference as if fully set forth below. 59. Plaintiff was incorporated as a Pennsylvania non-profit corporation on or about April 29, 1991. 60. The stated purpose of the Plaintiff in its incorporation documents does not include the operation of a cemetery. 61. Mount Victory Cemetery is a separate and distinct entity from Plaintiff with its own separate minutes, records, and financial accounts. 10 62. Mount Victory Cemetery has been in existence prior to the incorporation of and existence of Plaintiff. 63. The minutes, records, and financial accounts have been under the care and control of Mount Victory Cemetery prior to the existence of Plaintiff. 64. The records and minutes of Mount Victory Cemetery include payment and donation records as early as 1949. 65. The earliest headstones in the cemetery date from before the turn of the century. 66. Mount Victory Cemetery has been operating under that name since the 1930's. 67. For years prior to the organization of Plaintiff, Mount Victory Cemetery held its own fundraising events, sent its own donation and fundraising letters, and determined its own membership. 68. Board members of Mount Victory Cemetery have frequently been members of or attended churches other than Plaintiff. 69. Plaintiff and predecessor churches have never controlled the administration, operation, or work of Mount Victory Cemetery. 70. Plaintiff's Nomination Committee has not proposed members or officers of the cemetery as it has for all of its officers and committees. A true and correct copy of Plaintiff's Nomination Committee Report of 1990 which makes no reference to the cemetery or its organizational structure is attached hereto and incorporated herein as Exhibit "A." 71. Mount Victory Cemetery has also maintained separate bank accounts, checks, and ledger sheets from Plaintiff. 72. All of the bank accounts, certificates of deposits and other finances of Mount Victory Cemetery are in its own name and not that of Plaintiff. 11 73. Plaintiff's federal tax identification number is 23 - 2329176. 74. The accounts of Mount Victory Cemetery are referenced under its separate federal tax identification number, 23 - 2049412. 75. Donations or bequests for the use, care or upkeep of the cemetery are made to the Mount Victory Cemetery and not to Plaintiff. 76. In the past, the various churches operating at Plaintiff's location have paid Mount Victory Cemetery for activities undertaken on behalf of such churches, such as mowing the lawn around the church building. 77. Mount Victory Cemetery is not and has never been part of the Plaintiff's budget. 78. Mount Victory Cemetery has consistently paid and currently pays for its own expenses incurred in the maintenance, care and upkeep of the cemetery. 79. Defendants have provided copies of numerous financial records, statements, checks, logs and similar documents to Plaintiff to conclusively show that all funds of Mount Victory Cemetery have been used for its maintenance, care and upkeep. 80. As a courtesy, Mount Victory Cemetery provided to Plaintiff its 2003 financial ledger which was initialed by Linda Phillips, Plaintiff's Finance Committee Chair, on or about March 8, 2004. A true and correct copy of Mount Victory Cemetery's 2003 financial ledger is attached hereto and incorporated herein as Exhibit "B." 81. In addition, Mount Victory Cemetery supplied to Plaintiff copies of its 2004 and 2005 financial ledgers, monthly bank account statements for 2004 and 2005, checks issued in 2004, and Certificates of Deposit in the name of Mount Victory Cemetery. A true and correct copy of correspondence from legal counsel for Defendants dated June 17, 1995, enclosing said documents is attached hereto and incorporated herein as Exhibit "C." 12 82. Plaintiff's Complaint therefore fails to state claims or causes of action upon which relief can be granted. 83. All or a portion of Plaintiff's claims may be barred by the defense of the applicable statute of limitations. 84. All or a portion of Plaintiff's claims may therefore be barred by the defense of laches. 85. All or a portion of Plaintiff's claimed damages are attributable to persons and/or causes other than the named Defendants. WHEREFORE, Defendants respectfully request that this Honorable Court enter a judgment in their favor and against Plaintiff in this matter. COUNTERCLAIM 86. In Plaintiff's Complaint, it asserts in paragraph twenty-six (26) that Defendants among other things used Mount Victory Cemetery donations and funds for their personal use. 87. Plaintiff asserts in paragraph twenty-seven (27) that Defendants among other things have unlawfully converted Plaintiff's money for Defendants' own personal use. 88. Defendants previously provided Plaintiff with copies of the annual financial ledgers, monthly bank statements, cancelled checks, and certificates of deposits of Mount Victory Cemetery as identified and referenced in Exhibits "B" and "C" attached hereto. 13 89. Defendants have not turned the original documents over to Plaintiff as they have a good faith belief that the assets are owned and managed by Mount Victory Cemetery which entity predates the formation and operation of Plaintiff. 90. Upon information and belief, representatives and agents of Plaintiff have also verbally conveyed to its members, parishioners, and acquaintances the assertion that Defendants have converted cemetery money for the personal use and benefit of Defendants. 91. The written and oral statements of Plaintiff referenced above accuse Defendants of criminal acts and tend to injure the character and reputation of Defendants in their personal, professional and business affairs. 92. Plaintiff made the written and oral statements referenced above with malice and without any reason to believe that the information conveyed had any basis in truth. 93. Plaintiff's written and oral statements were completely false, and were made by Plaintiff for the sole purpose of depriving the Defendants of their good names and reputations. 94. Plaintiff's written and oral statements were made with knowledge of their falsity or with reckless disregard for their possible falsity. 95. Plaintiff's written and oral statements were defamatory per se, libelous per se, and/or slanderous per se. 96. Plaintiff has caused the false, slanderous, libelous and defamatory statements to be published and distributed to individuals mentioned above. 97. Plaintiff's written and oral statements are not privileged and tend to harm the reputation of Defendants so as to lower the opinion of Defendants in the estimation of the community and/or deter third parties from associating with them. 14 98. As a direct and proximate result of the false, slanderous, libelous and defamatory written and oral statements of Plaintiff, both Defendants have been greatly hurt and injured in their good names and reputations. 99. Defendants are entitled to recover from Plaintiff compensatory damages sustained in an amount yet to be determined. WHEREFORE, Defendants demand judgment against Plaintiff, Mt. Victory United Methodist Church, for the aforesaid damages in an amount less than the arbitration limit of Thirty-Five Thousand ($35,000.00) Dollars, plus costs, interest, and all other relief this Honorable Court deems fair and just. Respectfully Submitted, IRWIN & McKNIGHT By: Douglas . Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: October 2, 2006 Attorney for Adam Larry Bream and Gary Prosser 15 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. GA ROSSER Date: October 2, 2006 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ADA ARRY AM Date: October 2, 2006 NOMINATIONS COMMITTEE 9EPORT 1990 MT. VICT09Y UMC OFFICERS 1991 'Adis. Council Chr.-KEN BREAM( Asst. -EUGENE KLINE -Adm. Council Sec.- JAMMY EROS Lay Member Annual Conf.- KATE COULSON Alt.- JSEN BREAM Lay Leader- 4QAH VANCE Trans. IF inen. Sec. -'.GAFiY PROSSER Bldg. Fnd.Trose. - XEG BRANOT_ Asst, to Trees. 4UOREY FICKEL 8. S . Adu: t Supt. - -PRY GONZALEZ S.S.Children Supt.- JUDY PROSSER B.S.Secretery- BETH BREAM Youth Coord,.-Jr.- Sr.- Church:Historian- Rple S Status Wom Members e':. Large- CRAIG PAX T ON 49HERHI PROSSER HAR_QN BREAM en- ALTA SMITH, JIM SMITH- 606 SMITH JANET SMITH- TRISHA PS09SER Pastor/Pa-•ish Relations Com. Chr. CHARLES FICKEL 91 - S.Ogbur•n,M.Staver,R..Shover- 92 - G.9ooks,Ley Leader,Lay Member ConF. 93 - FRAN LEBO, CHART ES FICKEL ETA BREAM Board of Trustees Chr. 91 - W.Ogburn,E.Hockley,S.Prosser 92 - 8.Grbve,T.Showers,W.Shugart 93 - r1.-AIR PHILLIPS 2IP.BY BREAM 96aBARA BRANDT Finance and Stewardship Chr. JSHIP.LEY SPERTZEL -_91 - B. Strock,G.Prpsser,0.Gonzalez 92 - S.Spertzel,L.Bream,W.Fickel 93 - JUDY RAVER -Nominstlons and personnel Chr. Pastor 91 - H-S.mith,C.Fickel,G.Prosser 92 - P.Brandt ,R.Harman, W.Fickel 93 •• f-r , r ).Yc`t' ' Yi/If_'A'.. , a y?t^^ (to be nominated from floor Christian Education Can. .Chr. JUNE SHOWERS • 9.1 FRED- OUNDOhE 92- JUNE SHOWERS 93- GRETCHEN KLINE Adult S.S.Supt. Childrnri S.S.•Supt. Worship Corti: jhr. AUDREY FICKEL Si- 9.Bream,A.Fickel 92- G.Prosser, J.Prossbr• P3- BRENDA BCOSE • (one rep. From' music dept.) Membership and Evangelism Chr. DORIS BREAM 91-D. Cohi l i , L. Wagner 92- h.George,K.George, N..Harman 93-DORTS BREAM. Communications Com. L-hr. PAULA TUC KEY 91- C.Boose,B.Boose,jD.,Boose 92- G.Arehart,S.Books,M.Reud 53- PAULA TUCKEY Missions-Com. Chr. MARY ANN BREAM 91- MARY ANN BREAM 92-:DEB WESTBROOK COMMITTEE RECOMMENDATIONS: 1 Establish-thres year rule.for ell offices and committies. 2. A person will be elected to only one ofFice or Ly mittee. 3. Prog-am committee membership will be decreased to five members. 4. Assistants elected For Church T and Adm. Council Chr. only. S. Establish a Mission Committee. (Posrted and Read 11/ 11 /9D ) (To Be elected 11/18/90) EXHIBIT "B" LEDGER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 27 28 29 3C 31 31 3: FUND: Type Acct: Account Category: aoo3 Account Title: JAcct #: Date Amount Dr. Amount Cr. Balance Budget BROUGHT FORWARD 29.;9 9$ f 7n? !C 1,j-r- -..r _ G.Jb 9q 5G 1 ?-A) 5-4 ' -71 ? e s+ PA. C; PI, / o i G e ? B a 7 y 4 , ?d ?..,? .x sr_?. 9n,?_a.rG. sfic ?, d ? A.C.7 9d 97 71 cos 68 X73 sS $ e1.,, ?? 7l ,es• PA. G.?('. ssy rte, ?.. ao...r :,K S..PT S 5'7?.i1, 971?,?-.al :"c 1? S9? ?3 0 0 v ?/ r77y u ? V OC7 a.. ee 1524 -2 -* 59 2SS o 713 co '- - 4 V ?C. s 1 resl C.l,q..b.ru ? Ss-1 s( G7 -?i -01 EXHIBIT "C" LAW OFFICES IR WIN & McKNI GHT WEST POMFRET PROFESSIONAL BUILDING 60 WEST POMFRET STREET ROGER B. IRWIN CARLISLE, PENNSYLVANIA 17013-3222 MARCUS A. McKNIGHT. III DOUGLAS G. MILLER (717) 249-2353 MATTHEW A. McKNIGHT FAX (717) 249-6354 WWW.IMHLAW.COM June 17, 2005 VIA FACSIMILE (717) 632-8020 AND U.S. MAIL DOUGLAS H. GENT, ESQUIRE 1157 EICHELBERGER STREET SUITE 4 HANOVER, PA 17331 RE: MOUNT VICTORY CEMETERY Dear Mr. Gent: HAROLD S. IRWIN (1925-1977) HAROLD S. IRWIN. JR. (19541986) IRWIN, IRWIN & IRWIN (1955-1986) IRWIN, IRWIN & McKNIGHT (19864994) IRWIN, McKNIGHT & HUGHES (1994-2003) IRWIN & McKNIGHT (2003- foci cagy Our clients were quite upset by the allegations of financial mismanagement and conversion of funds. They have consistently expressed their willingness to provide proof of the proper use of the cemetery monies. Frankly, they have their own concerns regarding the church's intentions on the use of the funds because of statements apparently made by Pastor Bryan. In an effortto remove conversion as a concern for your client, however, I have enclosed copies of the following financial documents: 1. Bank account ledger for 2003, initialed by Linda Phillips and confirming the audit of records for that year; 2. Bank account ledger for 2004; 3. Bank account ledger to date for 2005; 4. Monthly checking account statements for 2004; 5. Monthly checking account statements to date for 2005; 6. Copies of checks issued in 2004 (Starting in 2005 the bank began charging to return the original checks with the monthly statements. Our clients are trying to obtain copies of the same from the bank); and 7. Copies of existing CDs in the name of Mt. Victory Cemetery. With regard to remaining issues, I would suggest that our respective clients, including members of the Administrative Board and Trustees, meet to discuss a mutually agreeable resolution. I would note that while the information you provided is certainly important, it does not appear to definitively resolve the issue. There also appear to be mistakes in the minutes you cite, particularly those from 2004. Mr. Bream denies recommending that there should be a dissolution or that it is a subcommittee of the Administrative Board, which is also not supported by any other minutes to my knowledge. Furthermore, it is my understanding that Pastor Bryan was not in attendance at the 2004 meeting, so our clients do not know why such information DOUGLAS H. GENT, ESQUIRE RE: MOUNT VICTORY CEMETERY June 17, 2005 Page 2 of 2 would have been included as part of the minutes. I would also note that those same minutes incorrectly state that "church property is considered federal property." I trust that you will recommend to your client that a meeting be held as outlined above, and I shall await your review of the enclosed materials and response in this matter. Very truly yours, IRWIN & McKNIGHT q -4 Aj'jL Douglas G. Miller DGM:tds Enclosures cc: Mr. Larry Bream Mr. Gary Prosser CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Douglas H. Gent, Esquire 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (Attorney for Plaintiff) Date: October 2, 2006 IRWIN & McKNIGHT e ")?- A D glas Miller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Adam Larry Bream and Gary Prosser V'i 1 V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER OF THE PLAINTIFF TO THE DEFENDANTS' COUNTERCLAIM NOW COMES, this / 9 -64 day of O?Am l cr , 2006 the Plaintiff, Mt. Victory United Methodist Church, by its attorney, Douglas H. Gent, and files the within Preliminary Objections to the Defendants' Counterclaim, to wit: 1. The Plaintiff has filed a Complaint against the Defendants seeking to recover possession of various records, documents, bank accounts, and money that are for the use and benefit of a cemetery owned and operated by the Plaintiff. The Complaint sets forth causes of action based in conversion, a violation of the Act of April 26, 1855, as amended (10 P.S. § 81), violation of Pennsylvania's Non-Profit Corporation Law, 15 Pa. C. S. A. § 5508, and requests an Accounting. 2. The Defendants have filed an Answer and New Matter in which the Defendants essentially claim that there exists a separate and distinct legal entity known as Mt. Victory Cemetery. 3. The Plaintiff has filed a Reply to the Defendants' New Matter. 4. The Defendants included a Counterclaim against the Plaintiff alleging defamation of character. 5. The elements to establish defamation of character are set forth in 42 Pa. C. S. § 8343(a) and § 8344. 6. As a matter of law, a party bringing an action for defamation of character must set forth in his pleading information that specifically identifies the individuals, by name, who made the alleged defamatory statements, specifically (by name) to whom the statements were made, specifically when the statements were made, and the specific contents of the statements. 7. The Defendants allege in Paragraph 90 that statements were made by representatives and agents of the Plaintiff. Accordingly, the Defendants are required to allege the specific facts establishing the agency relationship and to identify the representatives and/or agents by name. 8. The Defendants have alleged that the Plaintiff has made both written and oral statements that are allegedly defamatory. However, the Defendants fail to attach copies of the documents setting forth the written statements to their Counterclaim which is a violation of Pennsylvania Rule of Civil Procedure 1019 in addition to the pleading requirements for defamation. 9. The Defendants allege that the Plaintiff made written and oral statements accusing the Defendants of criminal acts. However, the Defendants fail to identify what criminal acts the Plaintiff has accused the Defendants of as part of any defamatory statement. Further, if the Defendants are simply alleging that the allegation set forth in the Plaintiff's Complaint for a cause of action based upon conversion, accuses the Defendant of criminal acts this is a civil action and not a criminal action. 10. The Plaintiffs allege in a conclusory fashion that they have been "greatly hurt and injured" and that they are entitled to recover compensatory damages. The Defendants are required to plead compensatory damages with specificity in a defamation of character claim. The specific harm that must be set forth in the Complaint must be in the nature of actual damages which are economic or pecuniary losses. The Defendants have failed to allege that they have suffered any economic or pecuniary losses. 11. The Defendants allegations set forth in their Counterclaim for defamation of character are essentially conclusory in nature and fail to meet the specific requirements for pleading a claim of defamation of character. 12. The Defendants have failed to state a cause of action for defamation. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to grant its preliminary objection in the nature of a demurrer dismissing the counterclaim, with prejudice. Respectfully submitt d, Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY . UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. . LARRY ADAM BREAM GARY PROSSER ACTION IN EQUITY Defendants CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Preliminary Objections of the Plaintiff to the Defendants' Counterclaim, has been served by first class mail on cxo \,)P , 2006, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 B. ouglas H. Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff r-.7) C- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants REPLY TO DEFENDANTS' NEW MATTER NOW COMES, this 1!9;`& day of e??+0 1a e_c" , the Plaintiff, Mt. Victory United Methodist Church, by its attorney, Douglas H. Gent, and files the within Reply to Defendants' New Matter, to wit: 58. No response required. 59. Admitted. 60. Admitted in part and denied in part. It is admitted that the purpose clause in the articles of incorporation does not expressly set forth as a purpose the operation of a cemetery; however, it is denied that the same is not within the purposes of the Plaintiff as a church. Further, it is believed, and therefore averred, that this allegation is factually and legally irrelevant. 61. Denied. It is denied that Mt. Victory Cemetery is a separate and distinct entity from the Plaintiff, and, therefore, it is denied that Mt. Victory Cemetery, as a separate and distinct entity, without admitting the same, maintained separate minutes and records. After reasonable investigation the Plaintiff is without sufficient knowledge to form a belief as to the truth of the averment with respect to financial accounts; therefore, the same is denied. 62. Denied. It is denied that Mt. Victory Cemetery is a separate and distinct entity that existed prior to the incorporation of the Plaintiff or the existence of the Plaintiff. 63. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct entity and, therefore, as a non-existent entity could not have minutes, records, or financial accounts under its care and control. 64. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity that has records or minutes, or that any records or minutes reflect payments or donations as early as 1949 to Mt. Victory Cemetery as a separate and distinct entity. 65. Admitted in part and denied in part. It is admitted that the earliest headstones in the cemetery date from before the turn of the century. It is denied that the same is either factually or legally relevant or that the existence of such headstones establishes that there is a separate and distinct entity for the cemetery. 66. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity that has been operating independently of the church under that name since the 1930's. 67. Denied. It is denied that Mt. Victory Cemetery as a separate and distinct entity held its own fundraising events, sent its own donation and fundraising letters, or determined its own membership. Further, it is denied that any membership of a cemetery exists. 68. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct entity that has a separate board. Any board (sometimes referred to in the minutes of the church as a committee) was always appointed by the church and subject to the authority of the church. It is denied that there have been members of the said board/committee of the church that have been members of or attended churches other than Plaintiff. 69. Denied. It is denied that the Plaintiff and predecessor churches have never controlled the administration, operation, or work of the cemetery. It is denied that there have existed predecessor churches except in name only. The Plaintiff is essentially the same church that has simply changed its name from time to time and/or its denomination affiliation from time to time. 70. Denied. It is denied that the Plaintiff's nomination committee has not proposed members or officers of the cemetery as it has for all of its officers and committees. At all times relevant hereto the Plaintiff's nomination committee, or the official board or administrative committees of the Plaintiff have appointed the members and officers of the cemetery board/committee. By way of further answer, the minutes for the Plaintiff attached to its complaint reflect that the Plaintiff established a policy many years ago that individuals appointed to the board/committee for the cemetery did not have a time limit on their terms such that nominations would only occur as vacancies would occur on the board/committee. 71. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity with separate bank accounts, checks, and ledger sheets. By way of further answer, the Plaintiff is without sufficient knowledge and information to form a belief as to the truth of the averment set forth in Paragraph 71; therefore, the same are expressly denied. 72. Denied. Defendants' allegation "begs the question". It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity. Therefore, it is denied that bank accounts, certificates of deposit, and other finances are in the name of a separate and distinct legal entity. Rather, Mt. Victory Cemetery is simply a name used to identify the board/committee of the church that oversees the operations of the cemetery. 73. Admitted. 74. Admitted in part and denied in part. It is admitted that the bank records provided by the Defendants to the Plaintiff indicate a separate federal tax identification number. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity from the Plaintiff. By way of further answer, it is denied that the federal tax identification number actually is assigned to a separate and distinct legal entity. 75. Denied. It is denied that Mt. Victory Cemetery exists as a separate and legal entity; therefore, it is denied that donations or bequests for the use, care or upkeep of the cemetery were made to any separate and distinct legal entity known as Mt. Victory Cemetery; rather, all such donations or bequests were made to the church. 76. Denied. It is denied that there have been various churches operating at Plaintiff's location. It has always been the same church which has changed its name and denomination affiliation from time to time. It is denied that the Plaintiff has paid funds to a separate and distinct legal entity known as Mt. Victory Cemetery. 77. Denied. It is denied that Mt. Victory Cemetery is a separate and distinct legal entity that has never been a part of the Plaintiff s budget. By way of further answer, as set forth in the minutes of the Plaintiff (and attached to the Plaintiff s Complaint) the Plaintiff established a long time ago that funds relating to the cemetery would be kept in separate bank accounts, not commingled with the general accounts of the church, and that expenses relating directly to the cemetery would be paid out of the separate accounts maintained for the cemetery. 78. Plaintiff's answer set forth in Paragraph 77 above is incorporated herein by reference as though set forth in full. 79. Denied. It is denied the Defendants have provided copies of numerous financial records, statements, checks, logs, and similar documents to Plaintiff to conclusively show that all funds of Mt. Victory Cemetery have been used for its maintenance, care, and upkeep. By way of further answer, it is denied that Mt. Victory Cemetery is a separate and distinct legal entity. 80. Denied. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity that provided anything to the Plaintiff as a "courtesy". By way of further answer, it is believed and therefore averred that Exhibit "B" is simply a copy of a standard ledger document used by all committees of the church. 81. Admitted in part and denied in part. It is denied that Mt. Victory Cemetery exists as a separate and distinct legal entity that supplied anything to the Plaintiff. It is admitted that legal counsel for the Defendants issued a letter to legal counsel for the Plaintiff dated June 17, 1995, which enclosed handwritten financial ledgers, monthly bank accounts, certain checks issued and copies of three certificates of deposit, one of which was issued in 1984 and expired in 1994. Any implication that these records are in the lawful possession of the Defendants or that Mt. Victory Cemetery exists as a separate and distinct legal entity are expressly denied. 82. Paragraph 82 sets forth a legal conclusion to which no response is required. By way of further answer, the Plaintiff s Complaint does state claims or causes of action upon which relief can be granted. 83. Paragraph 83 sets forth a legal conclusion to which no response is required. By way of further answer, the Plaintiff s claims are not barred by the defense of any applicable statute of limitations. 84. Paragraph 84 sets forth a legal conclusion to which no response is required. By way of further answer, Plaintiff s claims are not barred by the defense of laches. 85. Paragraph 83 sets forth a legal conclusion to which no response is required. By way of further answer, Plaintiffs claimed damages are not attributable to persons and/or causes other than the named Defendants. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants as requested in the Plaintiffs Complaint. COUNTERCLAIM 86.-99. Plaintiff has filed preliminary objections to Defendants' Counterclaim. Respectfully submitted, Dent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff VERIFICATION We, Bryan Mann and Rick McCauslin, representatives of Mt. Victory United Methodist Church verify that the statements made in this Complaint are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. _ Date: A)// 1? /zIX Date: /6//7/0S. Mt. Victory United Methodist Church By: ry Mann By: M Ri cCauslin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Reply to Defendants' New Matter, has been served by first class mail on 0 A-obey 16 , 2006, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 y: 'D -t - Douglas H. ent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff r-=? n ?? c:" ^i1 ?: .-,i ?, 'r"q E7 ?. ? -,} ??? ?? { - tom'' ?-M? A .'. + ?? ? MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY PROSSER Defendants. JURY TRIAL DEMANDED NOTICE YOU ARE HEREBY NOTIFIED that you must responsively plead to the within Defendants' Amended Counterclaim, filed pursuant to Pa. R.C.P. No. 1028(c), within twenty (20) days after service, or a default judgment may be entered against you. IRWIN & McKNIGHT By: ? 6? 0 AiL Douglas G. 'ller, Esquire Supreme Court I.D. No: 83776 60 West Pomfret Street Carlisle, PA 17013 717-249-2353 Date: November 14, 2006 Attorney for Adam Larry Bream and Gary Prosser MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY PROSSER Defendants. JURY TRIAL DEMANDED DEFENDANTS' AMENDED COUNTERCLAIM AND NOW this 14th day of November, 2006, come the Defendants by and through their attorneys, Irwin & McKnight, and pursuant to respectfully file this Amended Counterclaim, and in support thereof aver as follows: COUNTERCLAIM 86. In Plaintiff's Complaint, it asserts in paragraph twenty-six (26) that Defendants among other things used Mount Victory Cemetery donations and funds for their personal use. 87. Plaintiff asserts in paragraph twenty-seven (27) that Defendants among other things have unlawfully converted Plaintiff's money for Defendants' own personal use. 88. Defendants previously provided Plaintiff with copies of the annual financial ledgers, monthly bank statements, cancelled checks, and certificates of deposits of Mount Victory Cemetery as identified and referenced in Exhibits "B" and "C" attached hereto. 89. Defendants have not turned the original documents over to Plaintiff as they have a good faith belief that the assets are owned and managed by Mount Victory Cemetery which entity predates the formation and operation of Plaintiff. 90. Plaintiff's Complaint was verified by Bryan Mann, the current pastor of Plaintiff, and Rick McCauslin, the chairman of Plaintiff's Administrative Board. 91. Plaintiff published the defamatory and libelous statements against Defendants when the Complaint was filed of public record in this matter on or about December 6, 2005. 92. Upon information and belief, copies of the recorded Complaint were also provided to individual members of Plaintiff, including members of Plaintiff's Administrative Board. 93. On or about December 29, 2004, a letter was sent by Plaintiff's legal counsel to Defendants asserting among other things that Plaintiff could file criminal charges against Defendants for "any of a variety of theft crimes." A true and correct copy of Attorney Gent's letter of December 29, 2004, is attached hereto and incorporated herein as Exhibit "A." 94. The letter attached as Exhibit "A" states that it was being sent on behalf of Plaintiff, and that copies were also mailed to Pastor Bryan Mann, Mr. Rick McCauslin, and Mr. Timothy Bear. 95. Upon information and belief, the representatives and agents of Plaintiff named above have also verbally conveyed to Plaintiff's members, parishioners, and acquaintances the assertion that Defendants have converted cemetery money for the personal use and benefit of Defendants. 96. Upon information and belief, verbal communications accusing Defendant's of conversion have also occurred at meetings of Plaintiff's Administrative Board and Trustees, including but not limited to Plaintiff s Administrative Board Meeting held on July 27, 2004. 97. Upon information and belief, verbal communications accusing Defendants of conversion have been made by Pastor Bryan Mann and/or Mr. Rick McCauslin on behalf of 2 Plaintiff to the employees of the Mt. Holly Springs branch of PNC Bank where the accounts of Mt. Victory Cemetery are located. 98. As a direct and proximate result of the false, slanderous, libelous and defamatory statements of Plaintiff's agents referenced above, PNC Bank has frozen the accounts in the name of Mount Victory Cemetery. 99. The written and oral statements of Plaintiff referenced above accuse Defendants of conversion and criminal acts and tend to injure the character and reputation of Defendants in their personal, professional and business affairs. 100. Plaintiff made the written and oral statements referenced above with malice and without any reason to believe that the information conveyed had any basis in truth. 101. Plaintiff's written and oral statements were completely false, and were made by Plaintiff for the sole purpose of depriving the Defendants of their good names and reputations. 102. Plaintiff's written and oral statements were made with knowledge of their falsity or with reckless disregard for their possible falsity. 103. Plaintiff's written and oral statements were defamatory per se, libelous per se, and/or slanderous per se. 104. Plaintiff has caused the false, slanderous, libelous and defamatory statements to be published and distributed to individuals mentioned above and to the public in general through the filing of its Complaint. 105. Plaintiff's written and oral statements are not privileged and tend to harm the reputation of Defendants so as to lower the opinion of Defendants in the estimation of the community and/or deter third parties from associating with them. 3 106. As a direct and proximate result of the false, slanderous, libelous and defamatory written and oral statements of Plaintiff referenced above, both Defendants have been greatly hurt and injured in their good names and reputations. 107. As a direct and proximate result of the false, slanderous, libelous and defamatory written and oral statements of Plaintiff referenced above, members and parishioners of Plaintiff have subsequently refused to associate themselves with Defendants. 108. Defendants are entitled to recover from Plaintiff compensatory damages sustained in an amount yet to be determined. WHEREFORE, Defendants demand judgment against Plaintiff, Mt. Victory United Methodist Church, for the aforesaid damages in an amount less than the arbitration limit of Thirty-Five Thousand ($35,000.00) Dollars, plus costs, interest, and all other relief this Honorable Court deems fair and just. Respectfully Submitted, IRWIN & McKNIGHT L. By: Dou( Du? 0, glas/. Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: November 14, 2006 Attorney for Adam Larry Bream and Gary Prosser 4 VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. GARY PROSSER Date: November 14, 2006 VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ADAM LARRY AM Date: November 14, 2006 EXHIBIT "A" LA W OFFICES OF DOUGLAS H. GENT ATTORNEYS & COUNSELORSATLAW Wills & Trusts • Estate Administration • Business/Corporate • Real Estate • Litigation • Elder Law • Title Insurance Douglas H. Gent, Esq. dgent@gentlaw.com Eric R. Dutcher, Esc edutcher@gentlaw. con December 29, 2004 Mr. Larry Adams Bream 877 Baltimore Pike Gardners, PA 17324 Mr. Gary Prosser 14 Derbyshire Dr. Carlisle, PA 17013 Re: Mount Victory United Methodist Church Gentlemen: Please be advised this office has been retained by Mount Victory United Methodist Church to recover legal and other documents either or both of you have in your possession that are the property of the church. The church has advised me that you have in your possession a variety of documents and record9 for the cemetery including bank statements, a survey or blueprint of cemetery plots, ownership records and new development plans. As you know, the board of the church has terminated the cemetery committee. Further, since 1999, the cemetery committee has been subject to the Board of Trustees. It is also my understanding that you have been contacted on numerous occasions including letters of August 27, 2003, and May 26, 2004, in which the church requested that you return all of these documents and records of the church. Although both of you are still members of the church, it is my understanding that you are both attending other churches and have been doing so for approximately the past three years. The purpose of this letter is to make a formal demand upon you to return all documents, records and monies that either or both of you have in your possession relating to the cemetery and the cemetery committee of the church. You are directed to deliver all of these records to my office no later than 5:00 p.m. on Thursday, January 7, 2005. If you fail to deliver all of the documents, records and monies as requested by the above date, the church will have no alternative but to file legal action against you to recover the same. Please note that the church has several options including filing a civil proceeding with the Adams County Court in which not only would you be ordered to turn over these items to the church but you will also be required to reimburse the church for its legal costs and you may be subjected to punitive damages. Please note that because this is a church matter, it is not outside of the jurisdiction of the civil courts. In fact, this is the very kind of church dispute, since it does not involve any doctrinal or other theological issues, in which the courts have historically intervened in church disputes. 1157 Eichelberger Street, Suite 4 • Hanover, PA 17331 Phone: (717) 632-4040 • Fax: (717) 632-8020 Toll Free: (866) 632-4040 1911 East Market Street, York, PA 17402 Mr. Larry Adams Bream Mr. Gary Prosser December 29, 2004 Page 2 Another option the church has is to file criminal charges against both of you through the Adams County District Attorney's office for any of a variety of theft crimes. On behalf of the church, I would appeal to your common beliefs as born again Christians and urge you, as a matter of honoring Christ to return the requested items without further ado. To the extent the church has to resort to legal action against either or both of you, it would be very damaging to the cause of Christ in the community. When you deliver the requested items to my office, please call in advance. We will then inventory all of the items delivered in your presence, and provide you with a written receipt as evidence that the items on the inventory were delivered to this office. Thank you for your prompt attention to this request. S' rely, Dougl . Gent DHG/rec Cc: Pastor Bryan Mann Mr. Rick McCauslin Mr. Timothy Bear CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Douglas H. Gent, Esquire 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (Attorney for Plaintiff) Date: November 14, 2006 IRWIN & McKNIGHT r Do gas G 'ller, Esquire Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Adam Larry Bream and Gary Prosser N (^) ._ I - `-[ 1 ?. .-i __ 4. `_.- ? .-._?s ?,? r,t ;l .Y 1 r-'r ` --G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH 960 Baltimore Pike Gardners, PA 17324 . Plaintiff V. LARRY ADAM BREAM 877 Baltimore Pike Gardners, PA 17324 And GARY PROSSER . 14 Derbyshire Drive . Carlisle, PA 17013 . Defendants NOTICE TO PLEAD NO. 2005-6265 CIVIL TERM ACTION IN EQUITY YOU ARE HEREBY NOTIFIED that you must responsively plead to the within Plaintiff's New Matter, within twenty (20) days after service, or a default judgment may be entered against you. bugalas H. Gent, Es uire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH 960 Baltimore Pike Gardners, PA 17324 Plaintiff V. LARRY ADAM BREAM 877 Baltimore Pike Gardners, PA 17324 And GARY PROSSER 14 Derbyshire Drive Carlisle, PA 17013 Defendants NO. 2005-6265 CIVIL TERM ACTION IN EQUITY PLAINTIFF'S ANSWER AND NEW MATTER TO DEFENDANTS' AMENDED COUNTERCLAIM NOW COMES, this day of De cur lrre'v- , 2006, the Plaintiff, by its attorney, Douglas H. Gent, and files the within Answer and New Matter to Defendants' Amended Counterclaim, to wit: 86. Denied. It is denied that paragraph 26 of the Complaint "asserts ...the Defendants among other things used Mount Victory Cemetery donations and funds for their personal use". Paragraph 26 of the Complaint speaks for itself. By way of further answer, the Plaintiff alleges in paragraph 26 that the Defendants have unlawfully converted monies belonging to the Plaintiff for either the Defendants' personal use "...or other uses inconsistent with the purposes of the funds...". 87. Denied. Paragraph 27 of the Plaintiff's Complaint speaks for itself. 88. Denied. Defendants' Amended Complaint fails to attach any Exhibits "B" or "C". Strict proof thereof, if relevant, is demanded at trial. 89. Paragraph 89 of the Counterclaim sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Defendants have asserted a "good faith belief that the assets are owned and managed by Mount Victory Cemetery". It is further denied that any entity known as Mount Victory Cemetery has ever existed or pre-dates the formation and operation of the Plaintiff. 90. Admitted. 91. Denied. Paragraph 91 of the Defendants' Counterclaim sets forth a legal conclusion to which no response is required. By way of further answer, the filing of a Complaint asserting alleged causes of action against the Defendants does not constitute the publishing of defamatory or libelous statements. 92. Admitted in part and denied in part. It is admitted that copies of the Complaint were provided to members of the Plaintiff s administrative board in their capacity as members of said board who are vested with the legal authority to oversee all of the activities of the Plaintiff. It is denied that copies of the Complaint were provided to individual members of the Plaintiff. By way of further answer, the Complaint was a matter of public record on and after December 6, 2005, and available to anyone. It is denied that the filing of the Complaint or providing a copy to members of the Plaintiffs administrative board constitutes a publication of any defamatory or libelous statements. 93. Admitted in part and denied in part. It is admitted that Plaintiff s legal counsel sent the letter attached as Exhibit A to the Counterclaim to the Defendants. Any implication that doing the same constitutes any kind of defamatory or libelous statements or the publishing of the same, is expressly denied on the basis that the letter was sent to the Defendants. 94. Admitted in part and denied in part. It is admitted that a copy of the letter was sent to Pastor Bryan Mann, Mr. Rick McCauslin, and Mr. Timothy Bear, all of whom were the legal representatives of the Plaintiff. It is denied that providing a copy of said letter to the same constitutes publication of a defamatory or libelous statement, or that the statements were defamatory or libelous. 95. Denied. It is denied that the Plaintiff's have verbally conveyed to Plaintiff's members, parishioners, and acquaintances the assertion that the Defendants' converted cemetery money for the personal use and benefit of Defendants. 96. Admitted in part and denied in part. It is admitted that the Plaintiff's administrative board and trustees in official meetings have, at various times, discussed the entire facts and circumstances that led to the filing of the Complaint against the Defendants. Any implication that such communications and discussions constitute the publication of defamatory or libelous statements, or that any statements made are defamatory or libelous is expressly denied. 97. It is denied that Pastor Bryan Mann and/or Mr. Rick McCauslin, on behalf of the Plaintiff, made any verbal communications to employees of the Mt. Holly Springs branch of PNC Bank accusing the Defendants of converting any assets. Strict proof thereof, if relevant, is demanded at trial. 98. Paragraph 98 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has made any false, slanderous, libelous or defamatory statements about the Defendants. It is admitted that PNC Bank has frozen the accounts. The decision to freeze the accounts was made by PNC Bank and its legal counsel after learning of the dispute between the Defendants and the Plaintiff over ownership of said accounts. 99. Paragraph 99 of the counterclaim sets forth a legal conclusion to which no response is required. By way of further answer it is denied that the Plaintiff has accused the Defendants of criminal acts. It is further denied that the Plaintiff has made any accusations that have injured the character or reputation of the Defendants in their personal, professional, or business affairs. Strict proof thereof, if relevant is demanded at trial. 100. Denied. It is denied that the Plaintiff has made any written or oral statements about the Defendants with malice or without any reason to believe that the information conveyed had any basis in truth. 101. Denied. It is denied that the Plaintiff has made any written or oral statements that are "completely false and were made by Plaintiff for the sole purpose of depriving the Defendants of their good names and reputations". 102. Denied. It is denied that the Plaintiffs have made any written or oral statements that "were made with knowledge of their falsity or with reckless disregard for their possible falsity". 103. Paragraph 103 sets forth a legal conclusion to which no response is required. By way of further answer, the Plaintiff denies that it has made any written or oral statements that are defamatory, libelous or slanderous, per se or otherwise. 104. Paragraph 104 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has caused any false, slanderous, libelous or defamatory statements to be published and distributed to any individuals or to the public in general through the filing of its Complaint. 105. Paragraph 105 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has made any written or oral statements that are not privileged and tend to harm the reputation of the Defendants, to lower the opinion of the Defendants in the estimation of the community, or to deter third parties from associating with them. Strict proof thereof, if relevant, is demanded at trial. 106. Paragraph 106 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has made any false, slanderous, libelous or defamatory written or oral statements about the Defendants. It is further denied that the Defendants have "been greatly hurt and injured in their good names and reputations". Strict proof thereof, if relevant is demanded at trial. 107. Paragraph 107 of the Counterclaim is a legal conclusion to which no response is required. By way of further answer, it is denied that the Plaintiff has made any false, slanderous, libelous or defamatory written or oral statements about the Defendants to members and parishioners of the Plaintiff. After reasonable investigation, the Plaintiff is without knowledge or information to know whether members and parishioners of the Plaintiff have refused to associate themselves with Defendants. Strict proof thereof, if relevant is demanded at trial. 108. Paragraph 108 sets forth a legal conclusion to which no response is required. By way of further answer, it is denied that the Defendants have suffered any compensatory damages or that the Defendants are entitled to the same. Strict proof thereof, if relevant is demanded at trial. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants dismissing the Defendants Amended Counterclaim, awarding the Plaintiff reasonable attorney's fees and costs, and such other relief as the Court deems fair and just. NEW MATTER 109. Plaintiff's answers set forth in paragraphs 86 through 108 are incorporated herein by reference as though set forth in full. 110. The Defendants' Amended Counterclaims fails to state a cause of action because, as a matter of law, the filing of a Complaint alleging certain causes of action against the Defendants, and the facts alleged in support of said causes of action does not constitute defamation, libel, or slander. 111. The Defendants have failed to state a cause of action in their Amended Counterclaim because, as a matter of law, communications concerning the facts and circumstances giving rise to the Complaint, and the contents of the Complaint, among the various members of the Plaintiff s administrative board, trustees, and such other leaders of the Church is privileged and, therefore, does not constitute the making of false, slanderous, libelous, or defamatory statements. 112. The Defendants have failed to state a cause of action in their Amended Counterclaim because, as a matter of law, information provided by the official leadership of the Plaintiff to its members and parishioners is privileged and does not constitute the publication of false, slanderous, libelous or defamatory statements. 113. The Defendants have failed to state a cause of action in their Amended Counterclaim because the letter of December 29, 2004, from Plaintiff's legal counsel to the Defendants, issued directly to the Defendants, and communicated to the Plaintiff, constitutes an act of the Plaintiff through an agent communicated directly to the Defendants and does not constitute the publication of any false, slanderous, libelous, or defamatory statements to any third parties. 114. The Defendants have failed to state a cause of action in their Amended Complaint because the Defendants have failed to set forth any facts that establish or tend to establish the required elements for a claim for defamation of character. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter judgment in its favor and against the Defendants, and directing the Defendants to pay the Plaintiff reasonable attorneys fees, costs, and such other relief as the Court deems just and proper. Respectfully submitted, as . Gent, Esquire Sup. Ct. I.D. it 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff VERIFICATION 41:J G,n ?' I P 1 I We, Bryan ktann and Rick McCauslin, representatives of Mt. Victory United Methodist Church verify that the statements made in this Answer and New Matter are true and correct. We understand that f4lse statements herein are made subject to the penalties of 19 Pa.C.S. § 4904, relating; to unswom tulsitic;,ation to authorities. Mt. Victory United. Methodist Church Date: / r0By ..... ?_ -;f Mann Bate: Ki k McCauslin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY . UNITED METHODIST CHURCH 960 Baltimore Pike . Gardners, PA 17324 Plaintiff V. LARRY ADAM BREAM 877 Baltimore Pike Gardners, PA 17324 And GARY PROSSER 14 Derbyshire Drive Carlisle, PA 17013 Defendants NO. 2005-6265 CIVIL TERM ACTION IN EQUITY CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Plaintiff's Answer and New Matter to the Defendants' Amended Counterclaim, has been served by first class mail on ?7 , 2006, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 DKu as H. Gent, Esquire Su V. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff ?z ? C> __ ?? ? ?y+{ 1 ? 7 ?? -?: ?? ..' ?? ___ +~ J ?N? -: ? ;s ? CJ.J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants MOTION TO COMPEL DISCOVERY AND IMPOSE SANCTIONS NOW COMES, this r day of 00(k Ik , 20_Qb, the Plaintiff, Mt. Victory United Methodist Church, by its attorney, Douglas H. Gent, and files the within Motion to Compel Discovery and Impose Sanctions, to wit: 1. On or about October 20, 2006, the Plaintiff served the Defendants, through legal counsel, with the Plaintiff s First Set of Written Interrogatories and the Plaintiff's First Request for Production of Documents. 2. On or about December 4, 2006, the Defendants, through legal counsel, served their responses to Plaintiff s Request for Production of Documents and Answers to Plaintiff s Interrogatories. The Defendants have objected to Interrogatories numbers 3, 9, 12, 13, 18, 19, 20, and numbers 21-29 relating to the Defendants Counterclaim for defamation of character. A copy of said Interrogatories and Defendant's answers thereto are attached hereto as Exhibit A and incorporated herein by reference as though set forth in full. 3. The Defendants objected to Plaintiffs Request for Production of Documents number 10. A copy of said request and the Defendant's answer thereto are attached hereto as Exhibit B and incorporated herein by reference as though set forth in full. 4. Defendant's objections to the aforesaid Interrogatories and Request for Production of Document are without basis under the Pennsylvania Rules of Civil Procedure and should be dismissed for the following reasons: A. Some of the objections are based solely on the Defendants' claim that the information is "irrelevant"; B. Some of the answers are non-responsive to the Interrogatory (see numbers 18, 19 and 20); C. The Defendants have refused to answer Interrogatories 21-29 and Request for Production of Document number 10 relating to the Defendants' Counterclaim for defamation of character. Pennsylvania Rule of Civil Procedure 4005(a) provides that written interrogatories may be served by any party upon any other party at the time of service of the original process or at any time thereafter. Therefore, the Defendants' objection is without merit. 5. Plaintiff's Interrogatories and Request for Production of Documents are proper and the Defendants should be directed to answer. 6. Through legal counsel, the Plaintiff has corresponded with the Defendant requesting that the Defendants answer the above-identified Interrogatories and Request for Production of Document and that if the same were not provided, the Plaintiff would file a Motion to Compel and a Motion for Sanctions. A copy of said letter is attached hereto as Exhibit C and incorporated herein by reference as though set forth in full. At no time have the Defendants responded to the letter of December 11, 2006. The Defendants have been given more than sufficient time to provide the necessary information. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to direct the following: That the objections of the Defendant to Plaintiff's Interrogatories and Request for Production of Document number 10 are dismissed and the Defendants are directed to answer the same and provide documents; or, alternatively, 2. That the Defendants' Counterclaim for defamation of character be dismissed and the Defendants prohibited from introducing evidence or testimony of the same at trial; 3. That the Defendants reimburse the Plaintiff legal fees in the amount of $1,000.00 for pursuing this Motion to Compel and Sanctions; and 4. For such other relief as the Court deems just and proper. e fully submitted oug as if. ent, Esquire Supreme Court I.D. No: 29964 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (717) 632-4040 - Office (717) 632-8020 - Fax Attorney for the Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY . UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM GARY PROSSER ACTION IN EQUITY Defendants CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Motion to Compel Discovery and Impose Sanctions, has been served by facsimile transmission to (717) 249-6354 and first class mail on ?Q hUl ??i? 2 , 20 0 ?, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 B A 'Wflzrola_ ougla . Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff Exhibit A 3. Identify all individuals that have paid for plots in the cemetery. With respect to each individual provide the name, the amount paid, the date paid, the plot number purchased, whether the plot has been used, whether the funds received have been spent or are held in a bank or investment account, and the address of each such individual. Objection. The request is not relevant to the subject matter involved in the pending action, is privileged and proprietary information, and the request is not reasonably calculated to lead to the discovery of admissable evidence and therefore outside the scope of discovery. 9. Identify and provide the name, address, and telephone number for all alleged members, partners, officers, board members, shareholders, or other individuals who have any interest in Mount Victory Cemetery. For each such individual provide the date on which he or she became a member, partner, officer, shareholder, board member, etc. Objection. No time limitation is indicated and therefore the Interrogatory 'is overly broad and burdensome to Defendants. Without waiving the stated objection, the following are the current members and officers of Mount Victory Cemetery: a. Larry Bream, Gary Prosser, George Books, Craig Bream 12. State whether Mount Victory Cemetery ever submitted an application for federal tax exempt status with the I.R.S. under Section 501(c)(3) of the Internal Revenue Code or any other section thereof. If so, provide the name, address, and telephone number of the person or persons who have a copy of said application in their possession. answering Defendants are not sure whether Mount Victory Cemetery ever submitted an application for tax exempt status, but do not have a copy in their possession. 13. If Mount Victory Cemetery submitted an application to the federal government or the Commonwealth of Pennsylvania for tax exempt status, state whether said application was granted and provide a copy of the notice granting said tax exempt status. See answer to #12. Statement was based upon records of the Mount Victory Cemetery. 18. With respect to your Paragraph 83, state specifically what statute of limitations applies to any part of the Plaintiff's claim. State with particularity when you allege such statute of limitations began to run and when you allege it expired. Defendants assert that Mount Victory Cemetery is a separate entity that has been in operation for more than 60 years, maintaining its own finances and accounts and overseeing the operation and maintenance of the cemetery for longer than Plaintiff in its current form has been in existence. 19. With respect to your Paragraph 84 of your new matter, state with particularity the facts upon which you rely to support your claim that the Plaintiff's claims are barred by the defense of laches. Defendants assert that Mount Victory Cemetery is a separate entity that has been in operation for more than 60 years, maintaining its own finances and accounts and overseeing the operation and maintenance of the cemetery for longer than Plaintiff in its current form has been in existence. 20. With respect to your Paragraph 85 of your New Matter, state with particularity the names, addresses, and telephone numbers of all persons that you claim the Plaintiff's damages are attributable to, in whole or in part, and state with particularity all facts that support your claim that the Plaintiffs damages are attributable to persons and/or causes other than the named Defendants. Defendants assert that Mount Victory Cemetery is a separate entity that has been in operation for more than 60 years and that it is a necessary party to this action. INTERROGATORIES RELATING TO DEFENDANTS' COUNTERCLAIM FOR DEFAMATION 21. With particularity state the name of each individual that you allege, as a representative and agent of the Plaintiff "verbally conveyed to its members, parishioners, and acquaintances" any defamatory statements. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 22. State with particularity the date upon which each alleged written or oral defamatory statement was issued by the Plaintiff. With respect to each such date identify the name, address, and telephone number of the person or persons who made such statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 23. With respect to each alleged oral or written defamatory statement made by the Plaintiff, and for each date or occasion identified above, state the name, address, and telephone number of the individual or individuals to whom such statement was made. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 24. With respect to each and every written and oral statement you allege to be defamatory, set forth the specific contents of the statement. For each such statement identify it by reference to the date set forth above that the alleged statement was made and by the name of the individual making the alleged defamatory statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 25. For each written and oral statement you allege to be defamatory state with particularity the circumstances in which the statement was made (i.e. whether the statement was made in a board meeting, committee meeting, or other meeting of any official body of the Plaintiff, in a worship service, or in any other context whatsoever). Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 26. With respect to your Paragraph 91 of your Counterclaim, state with specificity all statements made by the Plaintiff in which you allege the Plaintiff accused the Defendants of criminal acts. With respect to each such statement identify the name, address, and telephone number of the person making said statement, to whom it was made, the context or circumstances to which it was made, and the specific criminal act or acts that you were .accused of. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 27. Set forth with particularity all of the specific facts that you believe support your claim that your character and reputation has been injured in your personal, professional, and business affairs. State the specific nature of the injury and how you have been injured by said statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 28. With respect to your Paragraph 97 of your Counterclaim, state with specificity how third parties have been deterred from associating with you. State the name, address, and telephone number of each individual that has been deterred from associating with you. Specify the specific circumstances and how you know that such person has been .deterred from associating with you. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 29. With respect to Paragraph 99 of your Counterclaim, state with specificity each and every type of compensatory damages you believe you have sustained. For each such damage state with particularity when the damage was sustained, an estimate of the amount of the damage sustained, and how the damage occurred. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. Exhibit B REQUEST FOR PRODUCTION 1. Copies of all governing documents for Mount Victory Cemetery, including, but not limited to, a constitution, charter, by-laws, articles of incorporation, operating agreement, or any other similar document. 2. Copies of minutes of all meetings of members, board of directors, or any other ! 9%1. , vZceib type of meeting with respect to Mount Victory Cemetery 3. Copies of checks, bank statements, ledgers, or any other documents relating to any bank accounts held in the name of Mount Victory Cemetery from 1996 through 2006. 4. Copies of any invoices for any payments made by or on behalf of Mount Victory Cemetery from 1996 through 2006. 5. Copies of any or all plot plans for the cemetery. 6. Copies of any register, letters, or other document indicating who has purchased plots in the cemetery. 7. Copies of all tax returns for Mount Victory Cemetery. 8. Copies of all checks, memos, ledgers, and other documents relating to payments made by those who performed services for the cemetery, including but not limited to, any employees, members, shareholders, and independent contractors. 9. Copies of any applications for tax exempt status or registration for tax purposes including applications filed with the I.R.S. and the Commonwealth of Pennsylvania, Department of Revenue, and including all documents granting or denying tax exempt status for an entity known as Mount Victory Cemetery. 10. Copies of all written statements that you allege to be defamatory in nature including, but not limited to, letters, e-mail transmissions, facsimile transmissions, press releases, advertising materials, or minutes of any meetings of any organization reflecting any alleged defamatory statements. R fitfully su itted, D glas . Gen Y, squire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 1. See attached, as well as Defendants' response to Plaintiff's Interrogatory #2. 2. See attached. 3. Defendants object generally to the failure to limit the request to a reasonable period of time. Such an open-ended time period makes the request overbroad. Notwithstanding the objections, Defendants have attached those banks statements and checks for Mount Victory Cemetery known to be in their possession. 4. Defendants object generally to the failure to limit the request to a reasonable period of time. Such an open-ended time period makes the request overbroad, and therefore will impose an undue burden upon Defendants. Notwithstanding the objections, Defendants have attached those checks and ledgers in their possession that reflect payments services performed for the Mount Victory Cemetery and known to be in their possession. 5. Defendants object generally to the request not being relevant to the subject matter involved in the pending action, the documents being privileged and proprietary information, and that the request is not reasonably calculated to lead to the discovery of admissible evidence and therefore outside the scope of discovery. 6. Defendants object generally to the request not being relevant to the subject matter involved in the pending action, the documents being privileged and proprietary information, and that the request is not reasonably calculated to lead to the discovery of admissible evidence and therefore outside the scope of discovery. 7. See Defendants' response to Plaintiff's Interrogatory #11. 8. Defendants object generally to the failure to limit the request to a reasonable period of time. Such an open-ended time period makes the request overbroad, and therefore will impose an undue burden upon Defendants. Notwithstanding the objections, Defendants have attached those checks and ledgers in their possession that reflect payments services performed for the Mount Victory Cemetery and known to be in their possession. 9. See Defendants' response to Plaintiff's Interrogatory #12. 10. Defendants object to the timeliness of this request as Defendants have filed an amended counterclaim (including exhibits) to which Plaintiff has not yet filed a response. VERIFICATION The foregoing Responses to Request for Production of Documents on behalf of the Defendants are based upon information which has been gathered by counsel for the Defendants in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Y log Douglas G. ler, Esquire Date: December 4, 2006 ,EjL,Wib!t C THE LAW OFFICES OF DOUGLAS H. GENT ATTORNEY & COUNSELOR AT LAW Wills & Trusts • Estate Administration • Business/Corporate • Real Estate • Elder Law • Title Insurance December 11, 2006 Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 RE: Mt. Victory United Methodist Church v. Bream & Prosser Case No: 2006-06265P Dear Attorney Miller: Sorry to hear that you suffered a bad illness recently. I trust you are doing well. Under separate cover, you will be receiving our Answer and New Matter to your Amended Counterclaim. This letter will acknowledge the receipt of your discovery responses on December 7, 2006. At this time I have not completed a review of your response to our Request for Production of Documents; however, I have reviewed your answers to our interrogatories. In reviewing your interrogatories, a substantial number of your objections and/or answers are unacceptable. Therefore, please provide proper answers to the interrogatories identified below within ten (10) days from the date of this letter. If the same have not been received, I will file a Motion to Compel and a Motion for Sanctions. With respect to specific answers and/or objections to interrogatories, please be advised of the following: 3. Your objection is without merit. The Complaint contains a claim for an accounting In addition, during the pendency of this litigation there are likely to be individuals who will die who need to be buried in the cemetery. The information requested is not privileged and proprietary information and is very relevant to the subject matter of the action and is reasonably calculated to lead to the discovery of admissible evidence with respect to the claim for both an accounting and a claim of conversion. 9. Your objection on the basis of no time limitation is without merit. Your clients have asserted that Mount Victory Cemetery is a separate legal entity that has existed since at least 1930 (see your pleadings). Please direct all correspondence to the Hanover office 1157 Eichelberger Street, Suite 4 • Hanover, PA 17331 Phone: (717) 632-4040 • Fax: (717) 632-8020 Toll Free: (866) 632-4040 1911 East Market Street, York, PA 17402 dgentQgentlaw.com ` Douglas G. Miller, Esquire December 11, 2006 Page 2 Therefore, if your clients' assertion is true, your client should have records of membership from 1930 to the present as well as a record of officers and/or directors/trustees which should be easy to provide. 12. & 13. Your client should certainly know whether it has been granted tax exempt status by the I.R.S. Your answers to number 12 and 13 are unacceptable. Your clients have a duty to make reasonable investigation to ascertain whether Mount Victory Cemetery has tax exempt status as a separate entity from the church. A standard inquiry of the I.R.S. would provide a copy of the application and notice granting said tax exempt status. 18. Your answer fails to specifically state what statute of limitation applies to the Plaintiffs claim. The statutes of limitation are set forth in Title 42 of Purdon's Statutes. You made this allegation as a defense and you should know what part of the statute of limitations you are relying upon and the facts to support your contention. 19. The defense of laches has very specific legal and factual requirements. Your answer is unresponsive. 20. Your answer is totally unresponsive to interrogatory number 20. Please re-read number 20 and provide the information. 21.-29. Your answers are totally unacceptable and do not constitute a legitimate objection. Please provide specific answers to the individual questions. In addition, your objection to Request for Production of Documents #10 relating to the Counterclaim has no legal basis and is unacceptable. Please provide the documents requested. I look forward to receiving your appropriate responses within ten (10) days from the date of this letter. Sincerely, 0"Ulo- 4 Douglas H. Gent DHG:abk Cc: Reverend Bryan Mann r, "' ? --y '? .,_, r,_.? .. "°! ?- `r1 .: r:._ ? ; _. _r...... _ ?"`? _ ._., ', ?._. < 7 ? ??: "? w - ~? `; ? r?i .-I . f 7 it r -4 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. for trial without a jury. - -- ----------- - ---- - -- - ------------------- - -------------- - ------ CAPTION OF CASE (entire caption must be stated in f4h) (check one) ? Civil Action - Law MT. VICTORY UNITED ? Appeal from arbitration METHODIST CHURCH ® .Action In EquitX (other) (Plaintiff) VS. The trial list will be called on LARRY ADAM BREAM & and GARY PROSSER Trials commence on vs. (Defendant) Pretrials will be held on (Briefs are due S days before pretrials No. 2005-06265 P Indicate the attorney who will try case for the party who files this praecipe: Douglas H. Gent, Esquire Term Indicate trial counsel for other parties if known: Douglas G. Miller, Esquire This case is ready for trial. Douglas H. Gent Date: Ukwkky -b, -Loo Attorney for: P l a i n t i f f 4 r- s- „ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER NO. 2005-06265 P ACTION IN EQUITY Defendants CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Praecipe to List Case for Trial, has been served by facsimile transmission to (717) 249-6354 and first class mail on UO M As-? 3 , 20A, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 y: ou as H. Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff .gyp C5 g, c?. ? (o3 ((++yy!!?` ( MT. VICTORY UNITED METHODIST CHURCH V. LARRY ADAM BREAM AND GARY PROSSER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - 6265 CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 10TH day of JANUARY, 2008, a pretrial conference in the above-captioned matter is SCHEDULED for F 0 -30 4-Ain Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pretrial conference. TRIAL in the matter will be scheduled at the pretrial conference. Counsel are directed to have their calendars available. Douglas H. Gent, Esquire Douglas G. Miller, Esquire COURT ADMINISTRATOR By the C rt, Edward E. Guido, J. C t ? r»d?l? 1F i J" ? 1 fi'r' Y ? { J a H.i. 30 r- A r - A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. . LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants AMENDMENT TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY AND IMPOSE SANCTIONS NOW COMES, this 11"h day of , 2008, the Plaintiff, by its attorney, Douglas H. Gent, and files the within Amendment to the Plaintiff's Motion to Compel Discovery and Impose Sanctions, to wit: 1. Pursuant to C.C.R.P. 208.3(a)(2) in this case Preliminary Objections filed by the Defendants were previously ruled upon by the Honorable Edward E. Guido, Judge. Further, on January 10, 2008, this matter has been assigned to Judge Guido for a Pre- Trial Conference. Respectfully Submitted, ouglas H. Gent, Esquire Supreme Court I.D. No: 29964 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (717) 632-4040 - Office (717) 632-8020 - Fax Attorney for the Plaintiff f e, y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Amendment to Plaintiff s Motion to Compel Discovery and Impose Sanctions, has been served by facsimile transmission to (717) 249-6354 and first class mail on 7 GXvU X i A \ U , 2008, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 By ouglas H. Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff 75 ._a MT. VICTORY UNITED METHODIST IN THE COURT OF COMMON PLEAS OF CHURCH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS NO. 2005-6265 CIVIL TERM -ARRY ADAM BREAM and GARY PROSSER, CIVIL ACTION - EQUITY Defendants ORDER OF COURT AND NOW, this 1st day of February, 2008, the objection ro interrogatory No. 3 is sustained. All other objections are ove--rruled. The Defendants are directed to file answers to Plaintiff's interrogatories and Motion For Production of Documents within 30 days by providing whatever information or documents are available to them. No furth swer need be provided. By t Court, Edward E. Guido, J. /jouglas H. Gent, Esquire 117 Eichelberger Street, Suite 4 Ha_-over, PA 17331 7or the Plaintiff ,Ir,tiin & McKnight ,Douglas G. Miller, Esquire 60 west Pomfret Street Carlisle, PA 17013 .uric C-) r1o O C om °[ fn MT. VICTORY UNITED METHODIST CHURCH, Plaintiff VS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-6265 CIVIL TERM LARRY ADAM BREAM and GARY PROSSER, : CIVIL ACTION - EQUITY Defendants IN RE: PRETRIAL CONFERENCE A pretrial conference was held Friday, February lst, 2008, before the Honorable Edward E. Guido, Judge. Present for the Plaintiff was Douglas H. Gent, Esquire, and present for the Defendants was Douglas G. Miller, Esquire. The Plaintiff has brought this action in equity for wh-ch a bench trial is appropriate. The Defendants brought a counter claim in defamation and have demanded a jury trial. The .unties are directed to research authority on the appropriate ma,.ner of proceeding. In any event, it is clear that this matter is not at issue since discovery is still being done. Therefore, this matter shall be relisted either for a bench or jury trial, as is appropriate, when it is?,a°iss the CourX, Edward F7. Guido, J. Douglas H. Gent, Esquire 1-57 Eichelberger Street, Suite 4 an?ver, PA 17331 For the Plaintiff yrwin & McKnight Dc,^qlas G. Miller, Esquire ?0 West Pomfret Street Carlisle, PA 17013 Court Administrator Prothonotary mlc ICJ C'a +v 5 i 7 cr; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants MOTION FOR ORDER OF COMPLIANCE AND MOTION FOR SANCTIONS NOW COMES, this day of , 2009, the Plaintiff, Mt. Victory United Methodist Church, by its attorney, Douglas H. Gent, and files the within Motion for Order of Compliance and Motion for Sanctions, to wit: 1. On or about October 20, 2006, the Plaintiff served the Defendants, through legal counsel, with the Plaintiff's First Set of Written Interrogatories (hereinafter "Interrogatories") and the Plaintiff's First Request for Production of Documents (hereinafter "Request for Production of Documents") 2. On or about December 4, 2006, the Defendants, through legal counsel, served their responses to Plaintiff s Request for Production of Documents and Answers to Plaintiff's Interrogatories. The Defendants objected to Interrogatory numbers 3, 9, 12, 13, 18, 19, 20, and numbers 21-29 relating to the Defendants' Counterclaim for defamation of character. Further, the Defendants objected to Plaintiff's Request for Production of Documents number 10. 3. On or about January 3, 2008, the Plaintiff filed a Motion to Compel Discovery and Impose Sanctions with the Honorable Court requesting the following: 1) that the Defendants' objections to the aforesaid Interrogatories and Request for Production of Documents number 10 be dismissed and directing the Defendants to answer the same and provide documents; or, alternately 2) that the Defendants' Counterclaim for defamation of character be dismissed and the Defendants prohibited from introducing evidence or testimony of the same at trial; 3) that the Defendants reimburse the Plaintiff legal fees in the amount of $1,000.00 for pursuing the Motion to Compel and Sanctions; and 4) for such other relief as the Court deems just and proper. 4. On February 1, 2008, the Honorable Judge Edward E. Guido issued an Order of Court sustaining the Defendants' objection to Interrogatory No. 3 and overruling all other objections. The Order further compelled the Defendants to comply with the Order and file answers to Plaintiff's Interrogatories and Request for Production of Documents within 30 days by providing whatever information or documents were available to them. A copy of said Order is attached hereto as Exhibit A and incorporated herein by reference as though set forth in full. 5. Plaintiff agreed to give Defendants a reasonable amount of time past the thirty (30) days requirement of the February 1, 2008 Order of Court due to the fact that the source of some of the discovery was the Internal Revenue Service. 6. On July 23, 2008, the Plaintiff, through legal counsel, notified the Defendants that the discovery responses as ordered by the Court's February 1, 2008 Order of Court were seriously delinquent and requesting that the responses be produced within ten (10) days of date of correspondence. A copy of said correspondence is attached hereto as Exhibit B and incorporated herein by reference as though set forth in full. -2- 7. To date, the Defendants have failed to comply with the February 1, 2008 Order of the Court and the Defendants have failed to respond to the Plaintiff's correspondence dated July 23, 2008. WHEREFORE, the Plaintiff respectfully requests the Honorable Court to direct the following: 1. That the Defendants comply with the Honorable Court's Order of Court dated February 1, 2008; and 2. That the Honorable Court, pursuant to Pa. R.C.P. 4019 (a)(viii), impose Sanctions upon the Defendants and/or the Defendants' attorney for failing to obey the February 1, 2008 Order of the Court respecting discovery; and 3. That the Defendants and/or the Defendants' attorney, pursuant to Pa. R.C.P. 4019 (g)(1), pay to the Plaintiff attorney's fees in the amount of $1,000.00, for pursuing this Motion for Order of Compliance and Motion for Sanctions; and 4. That the Honorable Court, pursuant to Pa. R.C.P. 4019 (a)(viii), dismiss the Defendants' Counterclaim for defamation of character and the Defendants be prohibited from introducing evidence or testimony of the same at trial; and -3- 5. For such other relief as the Court deems just and proper. Respectfully submitted, uglas . Gent, squire Supreme Court I.D. No: 29964 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (717) 632-4040 - Office (717) 632-8020 - Fax Attorney for the Plaintiff -4- EXHIBIT A MT. VICTORY UNITED METHODIST CHURCH, Plaintiff VS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-6265 CIVIL TERM LARRY ADAM BREAM and GARY PROSSER, CIVIL ACTION - EQUITY Defendants ORDER OF COURT AND NOW, this lst day of February, 2008, the objection to interrogatory No. 3 is sustained. All other objections are :)v=rruled. The Defendants are directed to file answers to Plaintiff's interrogatories and Motion For Production of Documents within 30 days by providing whatever information or documents are available to them. No furth swer need be provided. By t Court, Edward E. Guido, J. Douglas H. Gent, Esquire 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 For the Plaintiff Irwin & McKnight Douglas G. Miller, Esquire 60 West Pomfret Street Carlisle, PA 17013 mlc EXHIBIT A EXHIBIT B THE LAW OFFICES Of DOUGLAS H., GENT AT ro NEY & COUNSuoit AT LAW Wills & Trusts • Estate Administration • Business/ Corporate • Real Estate • Elder Law • Title Insurance July 23, 2008 Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 RE: Mt. Victory United Methodist Church v. Bream & Prosser No: 2005-06265 P Dear Attorney Miller: We have independently contacted the I.R.S. in the appropriate fashion to verify whether or not any organization under the name Mt. Victory Cemetery or Mt. Victory Cemetery Association ever filed an application for or received tax exempt status from the I.R.S. We have received conclusive information from the I.R.S. that neither Mt. Victory Cemetery nor Mt. Victory Cemetery Association ever filed an application for tax exempt status and, obviously, never was granted or denied tax exempt status. We have also verified with the Department of Revenue that no such entity ever filed for tax exempt status at the state level. Your discovery responses are seriously delinquent. Please forward them to this office within 10 days from the date of this letter or I will file a subsequent Motion to Compel. Sincerely, Douglas H. Gent DHG:abw Please direct all correspondence to the Hanover office 1157 Eichelberger Street, Suite 4 • Hanover, PA 17331 Phone: (717) 632-4040 • Fax: (717) 632-8020 Toll Free: (866) 632-4040 1911 East Market Street, York, PA 17402 dgent@gentlaw.com EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Motion for Order of Compliance and Motion to Impose Sanctions, has been served by facsimile transmission to (717) 249-6354 and first class mail on , 2009, to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 By: )3o6g-las . Genf, Esquire Sup. C( I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff -5- .u OF THE' ?J G-n"'?CRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants RULE TO SHOW CAUSE L4#*1 AND NOW, to wit, this b of , 2009, a Rule is hereby issued upon the Defendants to show cause, if any, why the Motion for Order of Compliance and Motion for Sanctions should not be granted. Rule returnable within ?0 days from date of service. Judge ,V-flll W, Q- ?" -F-3"D . Q-- )-" - b'j'?15 ? -n-"ew S3.1i T ? `•-4?i??i1J xv MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY PROSSER Defendants. JURY TRIAL DEMANDED f AND NOW this 4 h day of June, 2009, come the Defendants, Adam Larry Bream and Gary Prosser, by and through their attorneys, Irwin & McKnight, P.C. and respectfully file this Answer to the Motion for Order of Compliance and Motion for Sanctions, pursuant to the Order of Court served upon the Defendants on May 20, 2009, and in support thereof aver as follows: 1. The averments contained in paragraph one (1) of the Motion are admitted. 2. The averments contained in paragraph two (2) of the Motion are admitted. 3. The averments contained in paragraph three (3) are denied as stated. It is admitted that Plaintiff filed a Motion in January of 2008, objecting to various discovery responses of the Defendants. The remaining averments of paragraph three (3), including any inference that Defendants did not provide legitimate answers, objections, and documentation to Plaintiff, are specifically denied. 4. The averments contained in paragraph four (4) are admitted in part and denied in part. It is admitted that the Honorable Edward E. Guido signed an Order of Court on February 1, 2008, sustaining the Defendants' objections with regard to the discovery requests for the maps and plans of the cemetery. It is also admitted, that as part of the discussions between legal counsel for the parties, Plaintiffs legal counsel was t4 provide the telephone number and/or address of the department of the IRS involving non-profit entities. By way of further answer, legal counsel for Defendants was never provided with the agreed upon information. 5. The averments contained in paragraph five (5) are specifically denied. By way of further answer, the undersigned attorney contacted Plaintiff's legal counsel on more than one occasion to request the necessary IRS information that was to be provided. This included an email to Plaintiff's legal counsel on February 29, 2008, a true and correct copy of which is attached hereto as Exhibit "A." To date, Plaintiff's legal counsel has still not formally responded to the attached email in order to allow independent verification and response by the Defendants. 6. The averments contained in paragraph six (6) are admitted in part and denied in part. It is admitted that some four (4) months after the email attached as Exhibit "A," Plaintiff's legal counsel sent the letter dated July 23, 2008. No other contact or correspondence from Plaintiff's counsel was forthcoming prior to July 23, 2008, and the promised contact information has never been provided as was agreed and requested. The remaining averments in paragraph six (6) are specifically denied. 7. The averments contained in paragraph seven (7) are conclusions of law to which no response is required. To the extent a response is required the averments are specifically denied and strict proof thereof is demanded. By way of further answer, it is Plaintiff that failed to provide the promised contact information to permit independent verification by the Defendants. Furthermore, for the remaining discovery issues, Defendants have provided supplemental responses to the remaining Interrogatories and provided copies of the same to Plaintiff concurrent with this filing. A true and correct copy of the supplemental discovery responses are attached hereto and incorporated herein as Exhibit "B." 2 WHEREFORE, Defendants respectfully request this Honorable Court to enter an Order denying the Plaintiffs Motion for Order of Compliance and Motion for Sanctions. Respectfully Submitted, IRWIN & McKNIGHT, P.C. Dated: June 4, 2009 By: Douglas G er, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Adam Larry Bream and Gary Prosser VERIFICATION The foregoing document is based upon information which has been gathered by counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unworn falsification to authorities. 'SkEAV ADAM'LARRV7 Date: 6/4/09 EXHIBIT "A Page 1 of 1 Douglas Miller From: Douglas Miller Sent: Friday, February 29, 2008 5:16 PM To: 'Douglas Gent' Subject: Mount Victory Attorney Gent, I have met with my clients in order to prepare supplemental responses to the discovery requests. However, I recall that you were going to provide me an address or other contact information for the IRS. This was in order to formally request a search as to whether the Cemetery had previously filed any incorporation or other organizational paperwork. To date I have not received that information from you. I am going to hold our revised responses until such time as I have received a response from you. If you can provide me with the appropriate contact information, I would also like to include any response from the IRS as part of the updated answers. Thank you for your prompt attention to this matter. Doug Miller Douglas G. Miller, Esquire Irwin & McKnight Law Offices 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 (717) 249-6354 (Fax) www, irwinmcknight.com 2/29/2008 EXHIBIT "B" MT. VICTORY UNITED METHODIST CHURCH, Plaintiff, V. LARRY ADAM BREAM and GARY PROSSER Defendants. SUPPLEMENTAL ANSWERS OF DEFENDANTS TO PLAINTIFF'S INTERROGATORIES TO: Mt. Victory United Methodist Church c/o Douglas H. Gent, Esquire 1157 Eichelberger Street Suite 4 Hanover, PA 17331 PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. 4006, the Defendants, Larry Adam Bream and Gary Prosser respond to the Interrogatories of Plaintiff, Mt. Victory United Methodist Church, by serving the attached Supplemental Answers. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 6265 CIVIL TERM CIVIL ACTION - EQUITY JURY TRIAL DEMANDED Respectfully submitted, IRWIN & MCKNIGHT, P.C. c Date: June 4, 2009 Dou s G. ' er, Esquire Supreme Court ID No. 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Defendants 9. Identify and provide the name, address, and telephone number for all alleged members, partners, officers, board members, shareholders, or other individuals who have any interest in Mount Victory Cemetery. For each such individual provide the date on which he or she became a member, partner, officer, shareholder, board member, etc. Objection. No time limitation is indicated and therefore the Interrogatory is overly broad and burdensome to Defendants. Without waiving the stated objection, the following are the current members and officers of Mount Victory Cemetery: a. Larry Bream, Gary Prosser, George Books, Craig Bream 9. Supplemental Answer: Larry Bream, 877 Baltimore Pike, Gardners, PA 17324 Approximately 1979 to the present. Gary Prosser, 14 Derbyshire Drive, Carlisle PA 17013 1998 to the present. George Books, 135 Westgate Drive, Mount Holly Springs, PA 17065 Approximately 1979 to 2005. Craig Bream, 83 Smith Road, Gardners, PA 17324 Approximately 1991 to the present. In addition, the past treasurer of the Mount Victory Cemetery from approximately 1960 until 1998 was Bernice Sowers, 814 Baltimore Pike, Gardners, PA 17324. 12. State whether Mount Victory Cemetery ever submitted an application for federal tax exempt status with the I.R.S. under Section 501(c)(3) of the Internal Revenue Code or any other section thereof. If so, provide the name, address, and telephone number of the person or persons who have a copy of said application in their possession. Answering Defendants are not sure whether Mount Victory Cemetery ever submitted an application for tax exempt status, but do not have a copy in their possession. 12. Supplemental Answer: Answering Defendants are not aware of any application for federal tax exempt status being filed on behalf of Mount Victory Cemetery. Furthermore, in reviewing the records of Mt. Victory Cemetery, answering Defendants did not locate a copy of any such application. By way of further Answer, and upon information and belief, Defendants believe that under the rules and regulations in existence at the time of the organization of the Cemetery, it was not required to formally apply for tax exempt status from the IRS. 13. If Mount Victory Cemetery submitted an application to the federal government or the Commonwealth of Pennsylvania for tax exempt status, state whether said application was granted and provide a copy of the notice granting said tax exempt status. See answer to #12. Statement was based upon records of the Mount Victory Cemetery. 13. Supplemental Answer: Answering Defendants are not aware of any application being submitted to the federal government or the Commonwealth of Pennsylvania for tax exempt status of Mount Victory Cemetery. By way of further Answer, and upon information and belief, Defendants believe that under the rules and regulations in existence at the time of the organization of the Cemetery, it was not required to formally apply for tax exempt status from the IRS or the Commonwealth of Pennsylvania. INTERROGATORIES RELATING TO DEFENDANTS' COUNTERCLAIM FOR DEFAMATION 21. With particularity state the name of each individual that you allege, as a representative and agent of the Plaintiff "verbally conveyed to its members, parishioners, and acquaintances" any defamatory statements. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 21. Supplemental Answer: Pastor Bryan Mann Douglas H. Gent, Esquire 22. State with particularity the date upon which each alleged written or oral defamatory statement was issued by the Plaintiff. With respect to each such date identify the name, address, and telephone number of the person or persons who made such statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 22. Supplemental Answer: In November or December of 2004, upon information and belief, Pastor Mann made several statements at an administrative Board or Council meeting that were defamatory. These statements included allegations that the Defendants had "swindled" funds and as a result, the Plaintiff would be taking over the operations of Mount Victory Cemetery. On or about December 29, 2004, Plaintiff, through its legal counsel, sent correspondence to the Defendants asserting that "theft crimes" had occurred and that criminal charges could be filed against the Defendants. 23. With respect to each alleged oral or written defamatory statement made by the Plaintiff and for each date or occasion identified above, state the name, address, and telephone number of the individual or individuals to whom such statement was made. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 23. Supplemental Answer: Upon information and belief, copies of the letter from Attorney Gent were sent to Pastor Bryan Mann, Mr. Rick McCauslin, and Mr. Timothy Bear. The statements made by Pastor Mann at the Administrative Board Meeting were made to the members that attended. Upon information and belief, these members included but are not limited to, Mr. Tom Phillips, Mrs. Linda Phillips, Mr. Rick McCauslin, Mr. Ted Showers, Mrs. June Showers, Mr. Tom Myers, Mr. George Books, Mr. Charles Fickel, and Mrs. Deb Fickel. Upon further information and belief, all of these individuals, as well as their addresses and telephone numbers are available to the Plaintiff as they were members of the Plaintiff. 24. With respect to each and every written and oral statement you allege to be defamatory, set forth the specific contents of the statement. For each such statement identify it by reference to the date set forth above that the alleged statement was made and by the name of the individual making the alleged defamatory statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 24. Supplemental Answer: See generally the Supplemental Answers to Interrogatories numbered 22 and 23. In addition, upon information and belief, the oral statements made by Pastor Mann included that the Defendants had "swindled money from the Cemetery". The correspondence from Attorney Gent includes a bolded sentence at the top of page 2 which reads as follows, "another option the Church has is to file criminal charges against both of you through the Adams County District Attorney's Office for any of a variety of theft crimes". In addition, the pleadings filed by Attorney Gent on behalf of the Plaintiff include written statements that Defendants "unlawfully converted money" for their own "personal use." 25. For each written and oral statement you allege to be defamatory state with particularity the circumstances in which the statement was made (i.e. whether the statement was made in a board meeting, committee meeting, or other meeting of any official body of the Plaintiff, in a worship service, or in any other context whatsoever). Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 25. Supplemental Answer: See Supplemental Answers to Interrogatories numbered 22, 23 and 24. 26. With respect to your Paragraph 91 of your Counterclaim, state with specificity all statements made by the Plaintiff in which you allege the Plaintiff accused the Defendants of criminal acts. With respect to each such statement identify the name, address, and telephone number of the person making said statement, to whom it was made, the context or circumstances to which it was made, and the specific criminal act or acts that you were accused of. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 26. Supplemental Answer: See Supplemental Answers to Interrogatories numbered 22, 23 and 24. 27. Set forth with particularity all of the specific facts that you believe support your claim that your character and reputation has been injured in your personal, professional, and business affairs. State the specific nature of the injury and how you have been injured by said statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 27. Supplemental Answer: Many individuals have commented to the Defendants that it is common knowledge that the Defendants did not get along with certain members of the Church and that Defendants were accused of stealing funds. These individuals have included both past and current members of the Plaintiff Church, as well as other members of the community. In addition, some individuals who were friends of the Defendants no longer associate with them as a result of the statements made and identified herein. This would include Mr. George Books. 28. With respect to your Paragraph 97 of your Counterclaim, state with specificity how third parties have been deterred from associating with you. State the name, address, and telephone number of each individual that has been deterred from associating with you. Specify the specific circumstances and how you know that such person has been deterred from associating with you. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 28. Supplemental Answer: George Books, 135 Westgate Drive, Mount Holly Springs, PA 17065 Phone number: (717) 486-5445 Charles and Deb Fickel, 18 Smith Road, Gardners, PA 17324 Phone number: (717) 486-7473 Tom and Linda Philips, 650 Fickel Hill Road, Gardners, PA 17324 Phone number: (717) 528-7162 Judy Yaw, Branch Manager, PNC Bank, Two West High Street, Mount Holly Springs, PA 17324 Phone number: (717) 486-3416 Defendants have had long term relationships with all of the above individuals, and grew up with many of them. Defendants were friends with the above-referenced individuals and had numerous contacts and interactions with them. Following the false accusations made by representatives of the Plaintiff, all of these long-term relationships essentially ended. Upon information and belief, the reason for the changes were the accusations of theft and other wrong doing against Defendants and the commencement of the instant litigation. 29. With respect to Paragraph 99 of your Counterclaim„ state with specificity each and every type of compensatory damages you believe you have sustained. For each such damage state with particularity when the damage was sustained, an estimate of the amount of the damage sustained, and how the damage occurred. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 29. Supplemental Answer: To date, Defendants have incurred attorney fees, costs, and lost interest in excess of $5,500.00 in order to defend their reputation. CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DOUGLAS H. GENT, ESQUIRE 1157 EICHELBERGER STREET SUITE 4 HANOVER, PA 17331 Date: June 4, 2009 IRWIN & McKNIGHT, P.C. 4 A AC4. Douglas . Miller, Esquire Supreme urt I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendants RM-aa OF THE PROTH TARP 7009 JUN -5 Ph Z: 45 jUNTy PENNSYLVANIA, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P c a C rn . z r = r -0 m ::0 t.n D ..,? C7 q ACTION IN EQUIt A o-n o o C3M PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANTS' COUNTERCLAIM NOW COMES, this ?Lz tt day of 12011, the Plaintiff, Mt. Victory United Methodist Church, by its attorney, Douglas H. Gent, and files the within Motion for Partial Summary Judgment on the Defendants' Counterclaim, to wit: 1. The Plaintiff instituted this action by filing a Complaint against the Defendants seeking injunctive relief directing the Defendants to return to the Plaintiff documents, records and monies held by the Defendants relating to a cemetery maintained by the Plaintiff. 2. On October 2, 2006, the Defendants filed an Answer, New Matter and Counterclaim. Thereafter, the Plaintiff filed Preliminary Objections to the Counterclaim. On November 14, 2006, the Defendants filed an Amended Counterclaim, alleging defamation of character. 3. On or about December 12, 2006, the Plaintiff filed an Answer and New Matter to the Defendants' Amended Counterclaim. 4. The Defendants' Counterclaim for defamation of character is filed against the Plaintiff only and does not include as Counterclaim Defendants the individual persons, Reverend Bryan Mann and Douglas H. Gent, who allegedly made defamatory statements about the Defendants as parties to the Counterclaim. Earlier motions to compel discovery and Praecipe for a Pretrial Conference were assigned to and ruled upon by Judge Edward E. Guido. 6. The Defendants allege that by filing its Complaint against the Defendants, the Plaintiff has "published the defamatory and libelous statements". Defendants' Amended Counterclaim identifies Paragraphs 26 and 27 of the Complaint as the alleged defamatory and libelous statements. (See Paragraphs 86, 87, 90 and 91 of Defendants' Counterclaim.) 7. The Defendants also allege that copies of the recorded Complaint were provided to individual members of Plaintiff, including members of Plaintiffs administrative board, presumably constituting further publication of the alleged defamatory and libelous statements. (See Amended Counterclaim Paragraph 92.) 8. In Paragraph 93 of the Defendants' Amended Counterclaim, the Defendants assert that a portion of a letter sent from legal counsel for the Plaintiff to the Defendants included defamatory and libelous statements (see Amended Complaint Paragraph 93). 9. The Defendants appear to allege in Paragraph 94 of the Amended Complaint that because a copy of the letter was sent to Bryan Mann, Rick McCauslin and Timothy Bear, all official representatives of the Plaintiff, this constituted a publication of alleged defamatory and libelous statements about the Defendants. -2- 10. Paragraphs 95 and 96 of the Defendants' Amended Counterclaim appear to claim that unnamed representatives and agents of the Plaintiff made defamatory and libelous statements to members of the Plaintiff, parishioners, "and acquaintances", and the Plaintiff's administrative board and trustees. 11. Paragraph 96 of the Amended Complaint alleges that defamatory and libelous statements were made by Bryan Mann and Rick McCauslin, representatives of the Plaintiff, to employees of the Mt. Holly Springs Branch of PNC Bank where the accounts of Mt. Victory Cemetery are located. 12. The Defendants have not included or joined any other individuals or entities as defendants in their Amended Counterclaim. The Amended Counterclaim lies solely against the Plaintiff. 13. In the Defendants' Supplemental Answers to Plaintiff's Interrogatories, the Defendants state that the allegedly defamatory statements made to employees of PNC Bank were made only to Judy Yaw. 14. In the Defendants' Answers to Plaintiff's Interrogatories relating to the Amended Counterclaim, the Plaintiff asked the Defendants to identify by name each individual the Defendants allege made defamatory statements. The Defendants' answer is "Pastor Bryan Mann, Douglas H. Gent, Esquire". 15. The Plaintiff requested the Defendants to identify in Interrogatory Number 22 the date and other circumstances of each alleged written or oral defamatory statement issued by the Plaintiff. The response identifies the letter of December 29, 2004, issued by Plaintiff's legal counsel to the Defendants, copies of which were provided to the -3- Plaintiff's representatives, and statements allegedly made by Pastor Mann "at an administrative board or council meeting" in November or December of 2004. 16. In Interrogatory Number 23, the Plaintiff asks the Defendants to identify each individual to whom the alleged defamatory statements were made. The Defendants' answer is that copies of the letter of Plaintiff s legal counsel were sent to Pastor Bryan Mann, Rick McCauslin and Timothy Bear, all legal representatives of the Plaintiff. The statements allegedly made by Pastor Bryan Mann at an administrative board meeting "were made to the members that attended". The Plaintiff then identifies several individuals that constituted members of the administrative board. 17. Attached hereto as Exhibit A are Affidavits of all of the individuals named in the Defendants' Answer to Interrogatory Number 23 in which these individuals state that no defamatory statements were made by Pastor Bryan Mann about the Defendants in the administrative board meeting that occurred in November or December of 2004 or in any other administrative board meeting or any other official church meeting. 18. In Interrogatory Number 24, the Plaintiff requests the Defendants to provide the specific contents of each alleged defamatory statement. The Defendants' answer identifies the pleadings (apparently the count for conversion), oral statements made by Pastor Bryan Mann that the Defendants "swindled money from the cemetery", and a portion of a sentence in the letter dated December 29, 2004, issued by Plaintiffs legal counsel to the Defendants. 19. As set forth in the Affidavits referred to above, at no time did Pastor Bryan Mann make any statements to the identified individuals in any administrative or -4- other meetings of the church claiming that the Defendants "swindled money from the cemetery". 20. In response to Plaintiff's Interrogatory Number 27 asking for specific facts supporting the claim that the Defendants' character and reputation has been injured, the Defendants' answer is "some individuals who are friends of the Defendants no longer associate with them as a result of the statements made and identified herein". The Defendants failed to identify these alleged individuals/friends to the extent that there are any such individuals in addition to the above-identified individuals who have executed Affidavits hereto. 21. The Defendants have failed to identify any harm to their personal, professional or business affairs except for the generalized answer that "some individuals who are friends of the Defendants no longer associate with them ...". 22. In Interrogatory Number 29, the Plaintiff asks the Defendants to state with specificity each and every type of compensatory damage and the amount or estimated amount of damage and how the damage occurred. The Defendants' answer is that they have incurred attorneys fees, costs, and "lost interests" in excess of $5,500 in order to defend their reputation. 23. The Defendants have not requested attorneys fees, costs or "lost interests" as a part of their request for relief on their Amended Counterclaim. 24. As a matter of law, the Defendants' Amended Counterclaim fails to state a cause of action because the filing of a complaint alleging certain causes of action against the Defendants, and alleging facts in support thereof, does not constitute defamation, libel, or slander. -5- 25. As a matter of law, the Defendants' Amended Counterclaim fails to state a cause of action in that communications among various members of the Plaintiff who fill various administrative and other official positions of the Plaintiff are privileged and do not constitute the making of false, slanderous, libelous, or defamatory statements. 26. As a matter of law, the Defendants' Amended Counterclaim fails to state a cause of action in that communications by the official leadership of the Plaintiff to its members and/or parishioners is privileged and does not constitute the publication of false, slanderous, libelous or defamatory statements. 27. As a matter of law, the letter of December 29, 2004, from Plaintiff's legal counsel to the Defendants, copied to official representatives of the Plaintiff, does not constitute the publication of any false, slanderous, libelous or defamatory statements. 28. The Defendants' Amended Counterclaim fails to state a cause of action in that the Amended Complaint does not set forth any other facts that would establish or tend to establish the making and publication of any false, slanderous, libelous or defamatory statements by the Plaintiff. -6- WHEREFORE, the Plaintiff respectfully requests the Honorable Court to enter partial summary judgment in its favor and against the Defendants with regard to the Defendants' Amended Counterclaim. Respectfully submitted, -Douglas ,K. Gent, Esquire Supreme Court I.D. No: 29964 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (717) 632-4040 - Office (717) 632-8020 - Fax Attorney for the Plaintiff -7- EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants AFFIDAVIT I, ?ub rGL 5 F( C residing at s- o drr Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; r 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of 1 J Uo-. Ur , 2009. "b(i.,b r-o, S, F-?-K1 Print Name -2- COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF t..?t M Je `? (?GI On this, the f] +h day of OV M ? , 2009, before me, the undersigned officer, personally appeared 2 ('? r1, C K-G l , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. - a. I (SEAL) Notary Public My Commission Expires: -Sa^. 1q, a o) d COMMO?1!,"-AI TH OF PENN VANiA . _ al Carlisle Etc; :, tary Public ,erland County My Commiss Jan. 19, 2010 Member, Pe sylvu .,. .,,..., G;; of Notaries COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Pennsylvania Association of Notaries -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants I, NO. 2005-06265 P ACTION IN EQUITY AFFIDAVIT residing at 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; Pennsylvania, being duly sworn, do swear and affirm that: 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this .5' day of _ ?(A/? 2009. Cdr -Nu Ai r-r Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF C 4rnbQ r' +?? : SS: On this, the day of N?oU m?OQ r , 2009, bef re me, the undersigned officer, personally appeared lJP lnCtV r , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ? - I hkS'A=A- (SEAL) Notary Public My Commission Expires: _TQ r\ . 19 , @ 0 1 L COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Pennsylvania Association of Nota.;fas -3- r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY AFFIDAVIT I, , residing at ?r??1lJ`- Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; (. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this ?T 4J) day of _-?' ? Wv? , 2009. n 4 W'L?1 ?i? r? ? e?10 SUP 1"s Print Name -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF (;,timblr-?clnc -?V\ On this, the ?_ day of N cw rvM&T , 2009, before me, the undersigned officer, personally appeared Mkol_ dhow rS known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) Notary Public My Commission Expires: _SGr\. Ict , 3010 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Nrleiissa A. Scholly, Notary Public E Carlisle %ro, Cumberland County y_Commission F-?pires Jan. 19, 2010 Association of Notaries -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM , & ACTION IN EQUITY GARY PROSSER Defendants AFFIDAVIT 1, fi? rrv?.?s?a,..? residing at 2. +-to e x G ?c? 6??- xje y S J-( 7 32-,W Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); , 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of '2009. V VJ--'1 -icy? pq?? ? kZFr.cf- s E Myers Print Name T T VAO/`1c-5 D j d /uc7T" CA HCW-d CX ivY L boat /Lt. L_,t 1 At' ' 'L--' '-7 YC' cq' 44-?- G r? Nor '1?' c dd -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF Cumbf r'tamed On this, the 5AAN day of MoVtmn Xr , 2009, before me, the undersigned officer, personally appeared T h 01Y\4-f E, (1t1y IC known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ?^- (SEAL) Notary Public My Commission Expires: Iq, 1101 0 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Born, Cumberland County MY Commission Expires Jan. 1,q, 2010 Member, Pennsylvania Association of Notaries -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH , Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY AFFIDAVIT Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, 1 was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. 1 personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. 1 have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this l fl:V day of _ , 2009. Print Name -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF C?,ANA)er?A'\A On this, the day of N m nbtr , 2009, before me, the undersigned officer, personally appeared ?IrIOIJQT!?-) known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public (SEAL) My Commission Expires: SQn- ?a, c?0 I o COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A Scholly, Notary Publ c Carlisle Boro, Cumberland County My Commission Expires Jan.19, 2010 Member, Pennsylvania Association c!'J?+a°ias -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants AFFIDAVIT NO. 2005-06265 P ACTION IN EQUITY I . I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; Pennsylvania, being duly sworn, do swear and affirm that: 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of 2009. 'a /, 9Xq'1')k-5 Prin ame -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF Ck•n,bec- I0,r N8 On this, the 5j +V% day of M O V t ev\b-e r , 2009, before me, the undersigned officer, personally appeared \y 0. kS known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. A?) (SEAL) Notary Public My Commission Expires: 3"C-r\, % , o10 t 0 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County Ey Commission Expires Jan. 19, 2010 Member, Pennsylvania Ase; -3- W, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY AFFIDAVIT I, 13,W 12s A. Ph 111, p5 , residing at 460 T?ckel Pill Road Gardn e, 1.5 Pennsylvania, being duly sworn, do swear and affirm that: I . I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITN SS WHEREOF, I have hereunto set my hand and seal this S /7 day of -- ?A D? ve,??-' , 2009. 7-14?,wa A. Print Name -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF C,uf-'-\)DerAarna On this, the 5 4-1" day of N OU rvr\bk , 2009, before me, the undersigned officer, personally appeared -' 1r`p tyNo, R Ire 1 l; 0S known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. 1: ? I LA , f --D06 - (SEAL) Notary Public My Commission Expires: Sd r,. 1 c( 201 O COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Perrtsylv2r is Ass,°;ci -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants , AFFIDAVIT 1, G e-(D nj c residing at ' ???Q? Dr ?}?? ?L ?,y ?Drl?IS s_. ?d 17a4? Pennsylvania, being duly sworn, do swear and affirm that: I . I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of , 2009. oi&R i3 (f,o r a R, `BOC4?S Print Name -2- f COMMONWEALTH OF PENNSYLVANIA COUNTY OF C I,kr_ber?gAA SS: On this, the 5 AA\ day of N h\ Q r-v-\I pQ r , 2009, before me, the undersigned officer, personally appeared (104-S known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. - 0. ' (SEAL) Notary Public My Commission Expires: 7:?Cj A. lct , @ O l 0 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants AFFIDAVIT I, L?' n?o `` • ??` ??Q S , residing at (0 S © \,K w1 14 i 11 ZA G ar? n f- V5 i 7 wjy Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and a. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 'S 0N day of _ P 0 V We m " , 2009. ?,. rct A Q ? - yl ll,s ? Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF G?mber C.r1C? ; SS: On this, the 5+h day of KI 6Q e- Of b?(? , 2009, before me, the undersigned officer, personally appeared Lk r? G L , -? h'.1k tscribed known to me (or satisfactorily proven) to be the person whose name is to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. vl (SEAL) Notary Public My Commission Expires: SCun. a6 k 6 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Pennsylvania Associa'Lon of N,- w° as -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants I, AFFIDAVIT NO. 2005-06265 P ACTION IN EQUITY Pennsylvania, being duly sworn, do swear and affirm that: residing at 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this c S" `"-h day of _K Ut1 P.,Y1. A AJ , 2009. Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS: AA, On this, the 5 _ day of M r , 2009, before me, the undersigned officer, personally appeared pt k C . (:?'' C-k known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) Notary Public My Commission Expires: SQ n . t"'(' ab t O COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan.19, 2010 Member, Penrsylvania -3- a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH , Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants AFFIDAVIT I, K NO. 2005-06265 P ACTION IN EQUITY Pennsylvania, being duly sworn, do swear and affirm that: residing at L I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of _ I)Vg Lf ?F " (3 t± 1q, 2009. Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS: On this, the 5kh day of hove mb-er , 2009, before me, the undersigned officer, personally appeared C ,hCi(- key L'6 , F"- ke ? known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) Notary Public My Commission Expires: -,JC, r\ o COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 member, ?-ennsyivania -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants 1, 53 V, NO. 2005-06265 P ACTION IN EQUITY rS residing at Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; AFFIDAVIT 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 54 '. day of Na) Inber , 2009. -- P (0 /?? R. ?)6WC a Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUr"bt6Gr-NA SS: On this, the 5-ON day of M U nn VX1 , 2009, before me, the undersigned officer, personally appeared r., t known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) Notary Public My Commission Expires: 3Cn. kq , ?d lp COMMONWEALTH OF PENNSYLVAWA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County I My Commission Expires Jan. 1 201-: 0 -3- ? v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants AFFIDAVIT residing at 53 V, ?A 1,73zq Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 1 In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5-4K day of _ IJn 0 g 0A) z G , 2009. 4 r?a.s L.. v ??,lnr Print Name -2- COMMONWEALTH OF PENNSYLVANIA COUNTY OF ?.lcv?,J of ?C.nC? SS: On this, the r day of _ mp v P M r., tr , 20095 b fore me, the undersigned officer, personally appeared bp-nn y -r ?4 t known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. qx-&, V"?T)L j 0 (SEAL) Notary Public My Commission Expires: San. 161, ao ? O COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa A. Scholly, Notary Public Carlisle Boro, Cumberland County My C mmission Expires Jan. 19, 2010 -3- t ? . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants I, AFFIDAVIT residing at Pennsylvania, being duly sworn, do swear and affirm that: 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, I was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this j day of k c y ern 6 el'?- , 2009. Print Name -2- . ,i . ,t , COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF WMhe TA Ca r \6 On this, the 5 j1h day of 0\1 r , 2009p before me, the undersigned officer, personally appeared "\ - (A 5l n , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. q-?-M LA? (SEAL) Notar Public My Commission Expires: ?Q n . 1Cl , 96 k 0 COMMONWEALTH OF PENNSYLVANIA Notarial Seal - # Melissa A Scholly, Notary Public Carlisle Boro, Cumberland County My Commission Expires Jan. 19, 2010 Member, Pennsylvania Association of Noiades -3- I, MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AFFIDAVIT go- An L r?ur h OLD v G ar Ck "A Pennsylvania, being duly sworn, do swear and affirm that: residing at --) 3 3- 1. I have been a member in good standing with Mt. Victory United Methodist Church from at least October, 2004 through the present; 2. In November and December, 2004, 1 was a member of the administrative board and/or board of trustees of Mt. Victory United Methodist Church ("Church"); 3. I personally know and am familiar with the Defendants, Larry Adam Bream and Gary Prosser; 4. I am familiar with the claims of Larry Adam Bream and Gary Prosser filed against the Church for defamation of character; 5. I have never heard Pastor Bryan Mann, or any other official of the Church, make any defamatory statement about the Defendants, Larry Adam Bream and Gary Prosser, such as that they have swindled the Church out of money, that the Defendants are criminals, or any statements of a similar nature; 6. All statements about the Defendants and this matter concerning the Church's cemetery made by Pastor Bryan Mann have been made in an administrative board meeting or other official meeting of the Church; and 7. No statements of any nature whatsoever made by Pastor Bryan Mann in any administrative board meeting, other official meeting of the Church, or in any other context, have negatively affected my relationship, if any, with either of the Defendants, Larry Adam Bream and Gary Prosser, nor caused me to have a different opinion of the Defendants, Larry Adam Bream and Gary Prosser, than I may have had about them prior to the subject matter of this lawsuit being brought to my attention. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5 4-+' day of u o ve-r (Z- , 2009. Pb? o N>? Print Name -2- COMMONWEALTH OF PENNSYLVANIA : SS: COUNTY OF On this, the 5 day of k 0UQ mbf j , 2009 before me, the undersigned officer, personally appeared Vj L k known to me (or satisfactorily proven) to be the person whose name is su scribed to the within instrument, and acknowledged that he/she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. L-t) W L &- a - ? 0 7 (SEAL) Notary Public My Commission Expires: - , a r\, `q , a o 1 o COMMONWEALTH OF PENNSYLVA.;,€It' Notarial Seal ! ECaeisle ssa A Scholly, Notary Public Boro, Cumberland County mmission Expires Jan. 19, 2010 Member, Pennsylvania Association of Notarias -3- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH NO. 2005-06265 P Plaintiff V. LARRY ADAM BREAM & ACTION IN EQUITY GARY PROSSER , Defendants , CERTIFICATE OF SERVICE The undersigned, counsel for the Plaintiff, does hereby certify that a true and correct copy of the Motion for Partial Summary Judgment on Defendants' Counterclaim, has been served by facsimile transmission to (717) 249-6354 and first class mail on 201 1 , to the following: Gary Prosser & Larry Adam Bream c/o Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 oyl: 11??IZAZL Dou&Ks H. Gent, lsquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff -8- MT. VICTORY UNITED METHODIST : IN THE COURT OF COMMON PLEAS OF CHURCH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 2005 - 6265 CIVIL TERM LARRY ADAM BREAM and GARY CIVIL ACTION - EQUITY c•, PROSSER C-- - -Defend-ants. JURY TRIAL DEMANDED c_.. -n r-- '° n DEFENDANTS' RESPONSE TO PLAINTIFF'S r :::? MOTION FOR PARTIAL SUMMARY JUDGMENT rrj AND NOW, this 18TH day of July, 2011, come the Defendants, by and through their attorneys, Irwin & McKnight, P.C. and pursuant to Rule 1035.3 respectfully files the following response to Plaintiff's Motion for Partial Summary Judgment and in support thereof avers as follows: 1. There exist genuine issues of material fact arising from evidence in the record that controvert the assertions pled by the Plaintiff in its Motion for Partial Summary Judgment. 2. Plaintiff's Motion for Partial Summary Judgment seeks to dismiss the Defendants' Amended Counterclaim for false, slanderous, libelous and defamatory statements by Plaintiffs agents, members, and officers. 3. In addition to its Amended Counterclaim, Defendants prepared and served answers to various discovery documents prepared by Plaintiffs legal counsel. 4. As part of the answers to discovery, Defendants prepared and served Supplemental Answers to Plaintiffs Interrogatories on or about June 4, 2009. A true and correct copy of said Supplemental Answers to Plaintiffs Interrogatories are attached hereto and incorporated herein as Exhibit "A." 5. Upon information and belief, since the Supplemental Answers to Plaintiff's Interrogatories in 2009, no further docket activity occurred in this matter until the instant Motion for Partial Summary Judgment. 4 6. As outlined in the Supplemental Answers attached as Exhibit "A," Defendant were told that at one or more Administrative Board Meetings, oral statements were made by Pastor Mann that Defendants had "swindled money from the Cemetery." 7. The truth of that information is bolstered by the information contained in the letter sent to Defendant by Plaintiff's legal counsel threatening that criminal charges could be filed against Defendants "for any of a variety of theft crimes." Defs. Amended Counterclaim ¶¶ 93- 94, Ex. "A." 8. The letter from Plaintiff's legal counsel also included written statements that Defendants "unlawfully converted money" for their own "personal use." Defs. Amended Counterclaim ¶¶ 93-94, Ex. "A." 9. As pointed out by Plaintiff, Defendants have not sought to add additional parties to the instant litigation. 10. However, the allegations by Defendants, as set forth in both their pleadings and answers to discovery, support their claim that libelous, slanderous, and defamatory statements were made about them by the members, officers, and/or agents of the Plaintiff. 11. As alleged in its Amended Counterclaim, PNC Bank had frozen the accounts in the name of Mount Victory Cemetery and managed by Defendants, in part because of the accusations of criminal wrongdoing conveyed by Plaintiff's members. 12. The Plaintiff asserts that each of individuals identified in Defendants' Answer to Interrogatory Number 23 signed an affidavit that no defamatory statements were made about Defendants in any official church meeting. 13. Peculiarly, all of these affidavits were signed in November 2009, but not previously filed or provided to Defendants' legal counsel. 14. Defendants' discovery Answers, however, identified those members including "but not limited to" the persons named. Defs. Supplemental Answers to Interrog. attached as Exhibit "A." 2 15. Furthermore, the Defendants identified at least one other third party at PNC Bank who heard the same defamatory statements and did not sign any such affidavit. 16. Plaintiff's legal counsel also attempts to explain the defamatory statements restated in his letter to Defendants as privileged and therefore not libelous, slanderous, or defamatory. 17. Defendants deny that the demand letter sent to multiple individuals is privileged, but even so, the fact that the same accusations appear in the demand letter as are alleged to have been repeated to third parties both within and outside the church, clearly support the Defendants' counterclaim. 18. The Defendant's Motion further relies upon the oral testimony only of witnesses and there is therefore a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. WHEREFORE, Defendants respectfully request that this Court deny the Plaintiff's Motion for Partial Summary Judgment. Respectfully Submitted, IRWIN & McKNIGHT, P.C Dou Griller, Esquire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Defendants Date; July 18, 2011 3 MT. VICTORY UNITED METHODIST CHURCH, Plaintiff, V. LARRY ADAM BREAM and GARY PROSSER Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 - 6265 CIVIL TERM CIVIL ACTION - EQUITY JURY TRIAL DEMANDED SUPPLEMENTAL ANSWERS OF DEFENDANTS TO PLAINTIFF'S INTERROGATORIES TO: Mt. Victory United Methodist Church c/o Douglas H. Gent, Esquire 1157 Eichelberger Street Suite 4 Hanover, PA 17331 PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. 4006, the Defendants, Larry Adam Bream and Gary Prosser respond to the Interrogatories of Plaintiff, Mt. Victory United Methodist Church, by serving the attached Supplemental Answers. Respectfully submitted, IRWIN & MCEMGHT, P.C. A4 'e??)g' Date: June 4, 2009 Don G. er, Esquire Supreme Court ID No. 83776 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Attorney for Defendants 9. Identify and provide the name, address, and telephone number for all alleged members, partners, officers, board members, shareholders, or other individuals who have any interest in Mount Victory Cemetery. For each such individual provide the date on which he or she became a member, partner, officer, shareholder, board member, etc. Objection. No time limitation is indicated and therefore the Interrogatory is overly broad and burdensome to Defendants. Without waiving the stated objection, the following are the current members and officers of Mount Victory Cemetery: a. Larry Bream, Gary Prosser, George Books, Craig Bream 9. Supplemental Answer: Larry Bream, 877 Baltimore Pike, Gardners, PA 17324 Approximately 1979 to the present. Gary Prosser, 14 Derbyshire Drive, Carlisle PA 17013 1998 to the present. George Books, 135 Westgate Drive, Mount Holly Springs, PA 17065 Approximately 1979 to 2005. Craig Bream, 83 Smith Road, Gardners, PA 17324 Approximately 1991 to the present. In addition, the past treasurer of the Mount Victory Cemetery from approximately 1960 until 1998 was Bernice Sowers, 814 Baltimore Pike, Gardners, PA 17324. 12. State whether Mount Victory Cemetery ever submitted an application for federal tax exempt status with the I.R.S. under Section 501(c)(3) of the Internal Revenue Code or any other section thereof. If so, provide the name, address, and telephone number of the person or persons who have a copy of said application in their possession. Answering Defendants are not sure whether Mount Victory Cemetery ever submitted an application for tax exempt status, but do not have a copy in their possession. 12. Supplemental Answer: Answering Defendants are not aware of any application for federal tax exempt status being filed on behalf of Mount Victory Cemetery. Furthermore, in reviewing the records of Mt. Victory Cemetery, answering Defendants did not locate a copy of any such application. By way of further Answer, and upon information and belief, Defendants believe that under the rules and regulations in existence at the time of the organization of the Cemetery, it was not required to formally apply for tax exempt status from the IRS. 13. If Mount Victory Cemetery submitted an application to the federal government or the Commonwealth of Pennsylvania for tax exempt status, state whether said application was granted and provide a copy of the notice granting said tax exempt status. See answer to 412. Statement was based upon records of the mount Victory Cemetery. 13. Supplemental Answer; Answering Defendants are not aware of any application being submitted to the federal government or the Commonwealth of Pennsylvania for tax exempt status of Mount Victory Cemetery. By way of further Answer, and upon information and belief, Defendants believe that under the rules and regulations in existence at the time of the organization of the Cemetery, it was not required to formally apply for tax exempt status from the IRS or the Commonwealth of Pennsylvania. INTERROGATORIES RELATING TO DEFENDANTS' COUNIERCLAIM FOR DEFAMATION 21. With particularity state the name of each individual that you allege, as a representative and agent of the Plaintiff "verbally conveyed to its members, parishioners, and acquaintances" any defamatory statements. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 21. Supplemental Answer: Pastor Bryan Mann Douglas H. Gent, Esquire 22. State with particularity the date upon which each alleged written or oral defamatory statement was issued by the Plaintiff. With respect to each such date identify the name, address, and telephone number of the person or persons who made such statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 22. Supplemental Answer: In November or December of 2004, upon information and belief, Pastor Mann made several statements at an administrative Board or Council meeting that were defamatory. These statements included allegations that the Defendants had "swindled" funds and as a result, the Plaintiff would be taking over the operations of Mount Victory Cemetery. On or about December 29, 2004, Plaintiff, through its legal counsel, sent correspondence to the Defendants asserting that "theft crimes" had occurred and that criminal charges could be filed against the Defendants. 23. With respect to each alleged oral or written defamatory statement made by the Plaintiff, and for each date or occasion identified above, state the name, address, and telephone number of the individual or individuals to whom such statement was made. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 23. Supplemental Answer: Upon information and belief, copies of the letter from Attorney Gent were sent to Pastor Bryan Mann, Mr. Rick McCauslin, and Mr. Timothy Bear. The statements made by Pastor Mann at the Administrative Board Meeting were made to the members that attended. Upon information and belief, these members included but are not limited to, Mr. Tom Phillips, Mrs. Linda Phillips, Mr. Rick McCauslin, Mr. Ted Showers, Mrs. June Showers, Mr. Tom Myers, Mr. George Books, Mr. Charles Fickel, and Mrs. Deb Fickel. Upon further information and belief, all of these individuals, as well as their addresses and telephone numbers are available to the Plaintiff as they were members of the Plaintiff. 24. With respect to each and every written and oral statement you allege to be defamatory, set forth the specific contents of the statement. For each such statement identify it by reference to the date set forth above that the alleged statement was made and by the name of the individual making the alleged defamatory statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 24. Supplemental Answer: See generally the Supplemental Answers to Interrogatories numbered 22 and 23. In addition, upon information and belief, the oral statements made by Pastor Mann included that the Defendants had "swindled money from the Cemetery". The correspondence from Attorney Gent includes a bolded sentence at the top of page 2 which reads as follows, "another option the Church has is to file criminal charges against both of you through the Adams County District Attorney's Office for any of a variety of theft crimes". In addition, the pleadings filed by Attorney Gent on behalf of the Plaintiff include written statements that Defendants "unlawfully converted money" for their own "personal use." 25. For each written and oral statement you allege to be defamatory state with particularity the circumstances in which the statement was made (i.e. whether the statement was made in a board meeting, committee meeting, or other meeting of any official body of the Plaintiff, in a worship service, or in any other context whatsoever). Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 25. Supplemental Answer: See Supplemental Answers to Interrogatories numbered 22, 23 and 24. 26. With respect to your Paragraph 91 of your Counterclaim, state with specificity all statements made by the Plaintiff in which you allege the Plaintiff accused the Defendants of criminal acts. With respect to each such statement identify the name, address, and telephone number of the person making said statement, to whom it was made, the context or circumstances to which it was made, and the specific criminal act or acts that you were accused of. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 26. Supplemental Answer: See Supplemental Answers to Interrogatories numbered 22, 23 and 24. 27. Set forth with particularity all of the specific facts that you believe support your claim that your character and reputation has been injured in your personal, professional, and business affairs. State the specific nature of the injury and how you have been injured by said statement. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 27. Supplemental Answer: Many individuals have commented to the Defendants that it is common knowledge that the Defendants did not get along with certain members of the Church and that Defendants were accused of stealing funds. These individuals have included both past and current members of the Plaintiff Church, as well as other members of the community. In addition, some individuals who were friends of the Defendants no longer associate with them as a result of the statements made and identified herein. This would include Mr. George Books. 28. With respect to your Paragraph 97 of your Counterclaim, state with specificity how third parties have been deterred from associating with you. State the name, address, and telephone number of each individual that has been deterred from associating with you. Specify the specific circumstances and how you know that such person has been deterred from associating with you. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 28. Supplemental Answer: George Books, 135 Westgate Drive, Mount Holly Springs, PA 17065 Phone number: (717) 486-5445 Charles and Deb Fickel, 18 Smith Road, Gardners, PA 17324 Phone number: (717) 486-7473 Tom and Linda Philips, 650 Fickel Hill Road, Gardners, PA 17324 Phone number: (717) 528-7162 Judy Yaw, Branch Manager, PNC Bank, Two West High Street, Mount Holly Springs, PA 17324 Phone number: (717) 486-3416 Defendants have had long term relationships with all of the above individuals, and grew up with many of them. Defendants were friends with the above-referenced individuals and had numerous contacts and interactions with them. Following the false accusations made by representatives of the Plaintiff, all of these long-term relationships essentially ended. Upon information and belief, the reason for the changes were the accusations of theft and other wrong doing against Defendants and the commencement of the instant litigation. 29. With respect to Paragraph 99 of your Counterclaim, state with specificity each and every type of compensatory damages you believe you have sustained. For each such damage state with particularity when the damage was sustained, an estimate of the amount of the damage sustained, and how the damage occurred. Defendants object to the timeliness of this interrogatory as Defendants have filed an amended counterclaim to which Plaintiff has not yet filed a response. 29. Supplemental Answer: To date, Defendants have incurred attorney fees, costs, and lost interest in excess of $5,500.00 in order to defend their reputation. CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DOUGLAS H. GENT, ESQUIRE 1157 EICHELBERGER STREET SUITE 4 HANOVER, PA 17331 Date: June 4, 2009 IRWIN & McEMGHT, P.C. .41 Douglas . Miller, Esquire Supreme Vourt I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendants CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DOUGLAS H. GENT, ESQUIRE 1157 EICHELBERGER STREET SUITE 4 HANOVER, PA 17331 Date: July 18, 2011 IRWIN & McKNIGHT, P.C. '?? &- , 16 Doug as G iller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: List the within matter for the next Argument Court. --------------------------------------------------------------------------••--------------------------------- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY PRAECIPE FOR LISTING CASE FOR ARGUMENT 4 3 rn? ?' ^r Y' =o AG p. 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Partial Summary Judgment on Defendants' Counter Claim. 2. Identify all counsel who will argue cases: T-1 C=j 1 c. cs co .r3 a) for Plaintiffs: Douglas H. Gent, Esquire, 1157 Eichelberger Street, Suite 4, Hanover, PA 17331. (b) for Defendants: Douglas G. Miller, Esquire, 60 West Pomfret Street, Carlisle, PA 17013-3222. 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 26, 2011. Date: Douglas H. Gent, Attorney for Plaintiff V a CD--n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MT. VICTORY UNITED METHODIST CHURCH Plaintiff V. LARRY ADAM BREAM GARY PROSSER Defendants NO. 2005-06265 P ACTION IN EQUITY CERTIFICATE OF SERVICE The undersigned, counsel for Plaintiff in the above-captioned matter, does hereby certify that a true and correct copy of the Praecipe for Listing Casp for Argument dated August ?_, 2011, has been served by first class mail on August _, 2011, to the following: Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 By: ouglas 14: Gent, Esquire Sup. Ct. I.D. # 29964 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 (717) 632-4040 Attorney for Plaintiff MT. VICTORY UNITED METHODIST CHURCH, Plaintiff V. LARRY ADAM BREAM and GARY PROSSER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLyANkA -<> NO. 2005-6265 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT'S COUNTERCLAIM BEFORE GUIDO, J., EBERT, J. and MASLAND, J. ORDER OF THE COURT AND NOW, this /34ay of October, 2011, upon consideration of Plaintiff s Motion for Partial Summary Judgment on Defendant's Counterclaim and for the reasons set forth in the accompanying opinion, the motion is granted. Defendants' counterclaim for defamation is dismissed. By the C Edward E. Guido, J. Douglas H. Gent, Esquire 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 MQ,; red O .ie,s 'I( 1o'1 pa MT. VICTORY UNITED METHODIST CHURCH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LARRY ADAM BREAM and GARY PROSSER, Defendants NO. 2005-6265 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT'S COUNTERCLAIM BEFORE GUIDO, J., EBERT, J. and MASLAND, J. OPINION and ORDER OF THE COURT On December 6, 2005 Plaintiff filed a complaint against Defendants alleging various causes of action and requesting an accounting as well as punitive damages. Defendants have filed a counterclaim alleging a cause of action for defamation. Currently before us is Plaintiff's Motion for Partial Summary Judgment asking that we dismiss Defendant's counterclaim. Plaintiff argues that summary judgment is appropriate because the alleged defamatory statements are absolutely privileged and/or Defendants are unable to establish a necessary element of the cause of action. The standard for summary judgment is set forth in Pennsylvania Rule of Civil Procedure 1035.2. The Rule provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. When, as in this case, the motion is made pursuant to Pa. R.C.P. 1035.2(2), the petitioner may make a showing necessary to support the grant of summary judgment by pointing to materials indicating respondent cannot satisfy an element in his cause of action. Godlewski v. Pars Mfg. Co., 597 A.2d 106, 109 (Pa. Super 1991). To defeat the motion, the party opposing the motion must produce evidence showing the facts essential to establishing the cause of action exist. Pa. R.C.P. 1035, Note. In reviewing a motion for summary judgment, "the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Pennsylvania State Univ. v. County of Centre, 615 A.2d 303, 304 (Pa. 1992), quoting Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). "An entry for summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact." Buchleitner v. Perer, 794 A.2d 366, 370 (Pa. Super 2002). Applying the above standards to the case at bar we are satisfied that Plaintiff's motion must be granted. FACTUAL BACKGROUND Plaintiff is a member church of the United Methodist church denomination and a registered Pennsylvania non-profit corporation.' Plaintiff owns real property in South Middleton Township, Cumberland County, Pennsylvania, a portion of which contains the Mt. Victory Cemetery.2 A dispute regarding ownership of the Mt. Victory Cemetery arose between Plaintiff and Defendants. Plaintiff alleges the Mt. Victory Cemetery has operated under the authority of ' Plaintiff's Complaint, 111-2, filed December 6, 2005. 2 Plaintiff's Complaint, IT 5, 8, filed December 6, 2005. 2 Plaintiff or its predecessors.3 Defendants contend the Mt. Victory Cemetery is a separate and distinct entity from Plaintiff.4 Plaintiff, through its finance committee, requested Defendant Bream to deliver to it all books, records, and monies for the cemetery in order for the Plaintiff to perform a financial audit.5 Defendant's failure to deliver the requested information resulted in the instant action. Defendants have asserted a counterclaim for defamation. Specifically they allege that (1) Plaintiff made and published defamatory statements about Defendants in the complaint;' (2) Plaintiff's legal counsel defamed Defendants in a December 29, 2004 letter;' (3) Plaintiff's representatives made defamatory statements to its members, parishioners and acquaintances;' (4) verbal communications accusing Defendants of conversion were made at Plaintiff's Administrative Board and Trustees meetings;9 and (5) Pastor Bryan Mann and/or Mr. Rick McCauslin, on behalf of Plaintiff, made defamatory statements to an employee of the Mt. Holly Springs branch of PNC Bank.lo Elements of Defamation The party alleging a cause of action for defamation has the burden of proving the following: 3 Plaintiff's Complaint, ¶ 9, filed December 6, 2005. 4 Defendant's Answer, ¶ 1 9,19, filed October 2, 2006. S Plaintiff's Complaint, 120, filed December 6, 2005. 6 Defendant's Amended Counterclaim, ¶¶ 86, 87, 91 filed November 14, 2006. Defendant's Amended Counterclaim, ¶¶ 93, 94, filed November 14, 2006. 8 Defendant's Amended Counterclaim, ¶ 95, filed November 14, 2006. 9 Defendant's Amended Counterclaim, ¶ 96, filed November 14, 2006. 10 Defendant's Amended Counterclaim, ¶ 97, filed November 14, 2006. The Defendants subsequently identified a "Judy Yaw" as the employee to whom the statements were made. 3 (1) The defamatory character of the communication. (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its defamatory meaning. (5) The understanding by the recipient of it as intended to be applied to the plaintiff. (6) Special harm resulting to the plaintiff from its publication. (7) Abuse of a conditionally privileged occasion. 42 Pa. C.S.A. § 8343. We are satisfied that Defendants have failed to produce evidence to establish that the alleged defamatory statements were published other than in a privileged situation. Therefore summary judgment is appropriate pursuant to Pa. R.C.P. 1035.2(2). Plaintiff's Complaint Defendants allege that paragraphs twenty-six and twenty-seven of Plaintiff s Complaint contain defamatory statements, including statements asserting Defendants "unlawfully converted money" for their own "personal use."I i However, none of those statements are actionable. "All communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege which cannot be destroyed by abuse." Binder v. Triangle Publ'ns, Inc., 275 A.2d 53, 56 (Pa. 1971). Statements by a party, counsel, or a judge cannot be the basis of a defamation action whether they occur in the pleadings or in open court. Id. When alleged defamatory statements in pleadings are relevant and material to any issue in a civil suit, there is no civil liability for making them. Greenberg v. Aetna Ins. Co., 235 A.2d 576, 577 (Pa. 1967). Paragraphs twenty-six and twenty-seven of Plaintiffs complaint are relevant and material to Plaintiff's cause of action against Defendants for conversion. Because the statements occurred in the Plaintiff's pleadings, they are protected by absolute privilege. " See Exhibit "A" attached to Defendants' Response to Plaintiff s Motion for Partial Summary Judgment, filed July 18, 2011. 4 December 29, 2004 Letter Defendants allege that a letter drafted by Plaintiff's counsel on December 29, 2004 contained a defamatory statement. The letter was sent to Defendants and copied to Plaintiff through its representatives. 12 The alleged defamatory statement was counsel's assertion that "Plaintiff could file criminal charges against Defendants for `any of a variety of theft crimes."' 13 Absolute privilege extends not only to communications made in open court but also encompasses correspondence between counsel in furtherance of the client's interest. Pawlowski v. Smorto, 588 A.2d 36,41 (Pa. Super 1991). An allegedly defamatory communication is absolutely privileged when it is published prior to a "judicial proceeding" as long as it has a bearing on the subject matter of the litigation. Milliner v. Enck, 709 A.2d 417, 420 (Pa. Super 1998). The letter at issue is absolutely privileged. Although it was sent prior to the filing of the complaint, it was sent to demand documents and records relating to the cemetery as well as to announce the options Plaintiff might pursue if its demands were not met. 14 The contents of the letter unquestionably have a bearing on the subject matter of the litigation. Furthermore, for defamation to occur, the defamatory statement must be published or communicated to a third person. Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa. Super 1993). "Publication of defamatory matter is the intentional or negligent communication of such matter to one other than the person defamed." Chicarella v. Passant, 494 A.2d 1109, 1112 (Pa. Super 1985). The December 29, 2004 letter was sent to Defendants, the persons who claim they are defamed. It was also sent to Pastor Bryan Mann, Mr. Rick McCauslin and Mr. Timothy Bear, 12 Those representatives included Pastor Bryan Mann, as well as board members Rick McCauslin and Timothy Bear. 13 Defendant's Amended Counterclaim, 193, filed November 14, 2006. 14 See Exhibit "A" attached to Defendant's Amended Counterclaim, filed November 14, 2006. who are all legal representatives of the Plaintiff. As the statement was not communicated to anyone other than the representatives of the entity who allegedly made the defamatory statement and the persons who claim they were defamed, no publication occurred. Alleged Statements at Board Meetings Defendants allege, "upon information and belief," that Pastor Bryan Mann made several defamatory statements at administrative board meetings occurring in November or December of 2004. Defendants claim that Pastor Mann asserted that the Defendants "swindled" funds. 15 However, Defendants have produced no witnesses or other evidence to support their claim. 16 As a result they cannot establish the necessary facts to support a cause of action for defamation in connection with this alleged statement. Alleged Statements to PNC Bank Employee Defendants also allege "upon information and belief' that Pastor Bryan Mann and/or Mr. Rick McCauslin, on behalf of Plaintiff, made defamatory statements about the Defendants to Judy Yaw, an employee of the Mt. Holly Springs branch of PNC Bank. 17 Defendants claim that these alleged statements accused Defendants of conversion. Again, Defendants have failed to produce any evidence that such statements were actually made to Judy Yaw or any other PNC Bank employee. As a result they cannot establish the necessary facts to support a cause of action for defamation in connection with those alleged statements. " See Exhibit "A" attached to Defendants' Response to Plaintiff s Motion for Partial Summary Judgment, filed July 18, 2011. 16 The Defendants were given an additional thirty days after argument to supplement the record in connection with the allegations based "upon information and belief." No additional evidence was submitted. 17 Defendant's Amended Counterclaim, 197, filed November 14, 2006. 6 Alleged Statements to Plaintiff's Members, Parishioners and Acquaintances Finally, Defendants allege "upon information and belief"that Plaintiff s representatives have made defamatory statements to Plaintiff s members, parishioners, and acquaintances.'8 Specifically, Defendants claim that Plaintiff s representatives have communicated to Plaintiff s members, parishioners, and acquaintances that Defendants converted cemetery money for personal use. Again, Defendants have produced neither evidence nor witnesses to corroborate the claim that such statements were made. Consequently, they cannot establish the necessary facts to support a cause of action for defamation in connection therewith. Based upon the foregoing, Plaintiff is entitled to summary judgment on Defendant's counterclaim for defamation. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Douglas H. Gent, Esquire 1157 Eichelberger Street, Suite 4 Hanover, PA 17331 Douglas G. Miller, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 18 Defendant's Amended Counterclaim, 195, filed November 14, 2006. 7