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Home My WebLink About00-02729 ,_,. ,. ,,,.",,,,,.-'~r.' <_'''~_,_, 0'"",_ "r'",.;i> _""".' ", ,,,,,.,'~,,, $,;"';','0--",,, '~~'&~',:",< :", "~'''.<"l'''.'::' '. ,." , ~'! , ! ARNOLD TRANSPORTATION SERVICES, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff :NO 00 - ';;7~9 C?;u-:.L'T'UUv) v. BRYAN L. SWARTZ Defendant : CIVIL ACTION. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ~"' ,,~'__,"~_ _,,'r ..~".~'~',~~.~~,,, "_.'~_"'''' , , '",.~ 1 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abodago y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 ostros derechos importantes para usted. LLEVEESTADEMANDAA UN ABODAGO IMMEDIATAMENTE. SINO TIENT ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVIClO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013ÿ(717) 249-3166 , ....., c' '." '. ~. '._"'.~.'._ ~.. '...~.'. , "'" ~,' ~',',^,' ~ ' " " ARNOLD TRANSPORTATION SERVICES, INe., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. NO. iHJ,.2 7.29 ~ /J!~ BRYANL. SWARTZ, Defendant CIVIL ACTION COMPLAINT NOW COMES, Plaintiff, Arnold Transportation Services, Inc., by its attorneys, Keefer Wood Allen & Rahal, LLP, and makes the following Complaint against Defendant: 1. Plaintiff is ARNOLD TRANSPORTATION SERVICES, INC., a Pennsylvania corporation with offices located at 4410 Industrial Park Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant is BRYAN L. SWARTZ, an adult individual residing at 8 Betty Nelson Court, Lot 159, Carlisle, Cumberland County, Pennsylvania. 3. On November 17, 1997, Plaintiff and Defendant entered into an agreement for the sale by Plaintiff and the purchase by Defendant of one 1993 Mack Tractor, Model No. CH600, VIN No. IMlAA13Y3PW05412 (the "Used Tractor"). A true and correct copy ofthe agreement dated November 17, 1997, entitled Used Tractor Purchase Agreement (the "Agreement") is attached hereto as Exhibit "A" and incorporated hereby this reference. 4. The Agreement provides for a sale price of$30,500, payable over a period of three (3) years with interest at the rate of 11.75% per annum and with no advance down payment. 5. Defendant made principal and interest payments totaling $7,728.32 commencing December 5, 1997 and ending December 11, 1998. .-'. ~,ox" ., ~ '.' ,.' .-,-, '"""'.",,,," "~,,,,..,~~ . ",', "","'~ ""'~' '-"_"';7~" ". '.,.{;,"';C"-,, ,'~ .",;" , :, """"1~,1 , ' " " 6. Commencing in December of 1998, Defendant requested that the montWy principal and interest payments be deferred until adverse economic conditions affecting Defendant's owner- operator trucking business improved. Plaintiff thereupon deferred payments totaling $4,588.69 through April of 1999. 7. In or about April of 1999, Defendant voluntarily surrendered the Used Tractor to Plaintiff and defaulted under the Agreement. 8. The principal balance due and owing to Plaintiff, after application of the delayed or deferred payments referred to in Paragraph 6, is $25,759.78. 9. On December 28, 1999, the Used Tractor was sold by Plaintiff to Arrow Truck Sales for the purpose of mitigating Plaintiff's damage caused by Defendant's breach of the Agreement. The price paid by Arrow Truck Sales to Plaintifffor the Used Tractor was $15,000. 10. The principal balance due from Defendant to Plaintiff after the mitigation of damages is $10,759.78 11. Pursuant the Agreement, Plaintiff also paid insurance premiums on Defendant's behalf totaling $492. The Agreement obligates Defendant to reimburse Plaintiff for insurance premiums paid on his behalf 12. Defendant is indebted to Plaintiff in the total amount of$15,840.47, plus continuing interest at the rate of twelve percent (12%) per annum, as provided for in the Agreement, consisting of the following: $ 4,588.69 - Late installment payments 492.00 - Insurance premiums 10.759.78 - Loss on tractor resale $15,840.47 13. Despite repeated demands, Defendant has failed and refused to pay the sums due and owing to Plaintiff. 14. Pursuant to Paragraph IO.D. of the Agreement, Defendant is obligated to pay Plaintiff's attorney's fees or other costs or expenses incurred by Plaintiff as a result of Defendant's default. 15. Plaintiff has incurred and is incurring attorney's fees and other costs as a result of Defendant's default. -2- .,'..~,-,..^- '=n''''''"~'',',..~<, .",-'c'" ~.~",".. ",--"c",,,,',:,!J;';-" "-A,~;,..",.',_j>O',.."" ",~~,", ;";!c, . , WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of Fifteen Thousand Eight Hundred Forty and 47/100 Dollars ($15,840.47), together with interest at the rate of 12%, costs of suit and attorney's fees to be determined. Dated: April ,;J. ( ,2000 KEEFER WOOD ALLEN & RAHAL, LLP B Ga E. French, Esquire Attorney J.D. #25810 210 Walnut Street P.O. Box 11963 Harrisburg, P A 171 08-1963 Ph: (717) 255-8015 Fax: (717) 255-8050 Attorneys for Plaintiff -3- '" ,",{, ,',L ~.. 0', d~'" " d" ,'.' O",',~"O '0';;'-;' ,'~ ""').''-''''',,'0: '~~',:~: '''' ,~"..;;,: "~:;' ~~:~;':;:,;~,....,..,;.;",~~;,.~.,:;'. ,,' '-:"" c ' , , . . " ,. VERIFICATION The undersigned, Michael J. Gregerson, hereby verifies and states that: 1. He is the Vice President - Fleets of Arnold Transportation Services, Inc.; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to, the penalties of . 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. ~.~ Date: April..!.!....., 2000 "." u ',=,. "">".,'n .' " " ',0""",',,, ,-"..' .'.' "'. .',,-' :,,~.,"-" ",,"~,' n ..~,." "'e"'" ,- -.' , " , ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM NOW COMES, Plaintiff, Arnold Transportation Services, Inc., by its attomeys, Keefer Wood Allen & Rahal, LLP, and avers the following facts in response to Defendant's New Matter and Counterclaim: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy ofthe allegations contained in Paragraph 9 of Defendant's New Matter and Counterclaim and the same, therefore, are denied. Strict proof thereof is demanded at the time of trial, if relevant. 10. Denied as stated. To the best of Plaintiffs knowledge, payments were made on the 1993 Mack Tractor (hereinafter the "Truck") from December 5,1997 through December 11, 1998. The Defendant continued to operate the Truck and generate revenue on the Truck without making any payments through April 2, 1999. From the time the Defendant stopped making ,0",,] . payments on the Truck, approximately 25,700 revenue miles were put on the Truck and the mileage revenue paid to the Defendant during the time he did not make payments was $19,447. It is not known whether Defendant was unable to obtain a replacement driver or not. It is admitted that the Plaintiff agreed to a suspension of purchase payments for a period of time. 11. Admitted. 12. Denied. It is denied that Plaintiff refused to give Defendant and his drivers mileage. Defendant received the same amount of mileage as other owner-operators contracted with Plaintiff. Plaintiff is unaware of what level of mileage is required by Defendant to make his operations profitable. Defendant retained the right to refinance the equipment with another carrier or lender and pay his full obligation to Plaintiff, thereby relieving any requirement that he accept additional mileage from Plaintiff. 13. Admitted. 14. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 14 of Defend ant's New Matter and Counterclaim and the same, therefore, are denied. Strict proof thereof is demanded at the time of trial, ifrelevant. 15. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy ofthe allegations contained in Paragraph 15 of Defendant's New Matter and Counterclaim and the same, therefore, are denied. Strict proof thereof is demanded at the time of trial, if relevant. 16. Admitted. 17. Denied. It is specifically denied that Mr. Gregerson had any conversation with Mr. Bennett. Further, Plaintiff never told Mr. Bennett that the truck was being "repossessed" and the Truck did not remain in the possession of the Plaintiff. Plaintiff attempted to contact Mr. Bennett on April 7, AprilS and April 12, but was not successful in reaching him. When Plaintiff was finally able to contact Mr. Bennett, it was determined that Mr. Bennett was using the Truck to haul freight for another operation of the Defendant not related to the Plaintiff, which was in direct violation of the purchase agreement and operating agreement that the Defendant had with -2- '. - _ N'", ,." ..........,.',.' c ,..~ 'J";' ;,0 c.,,, , ",' _, '_'." ";.i.,",,,,"'~i- , , -~.. --'1 " .""^ " the Plaintiff. At that time, Mr. Bennett was instructed to bring the truck to the Camp Hill yard and the Defendant was advised of the violation. Subsequently, the Truck was released to the Defendant with assurances that he would operate the truck for the Plaintiff. 18. Denied as stated. It is specifically denied that Mr. Gregerson had any discussions with Mr. Beunett regarding Defendant. Mr. Bennett was advised by an employee of the Plaintiff that if things did not work out with Defendant, the Plaintiff could consider him as a company driver. No attempt was made to hire Mr. Bennett away from Defendant. 19. Denied. Plaintiff advised Defendant on numerous occasions that the installment sale contract between the parties was in default and that the vehicle would be repossessed if the default was not cured. 20. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 20 of Defendant's New Matter and Counterclaim and the same, therefore, are denied. Strict proof thereof is demanded at the time of trial, if relevant. 21. Denied as stated. It is admitted that Mr. Faringer "out of the blue" appeared at the Plaintiffs facility on Tuesday, October 5 to drive the Truck. However, Defendant had been advised during the week of July 5 that he must make a determination at that point to have a driver available for the Truck. Numerous phone calls to Defendant by Mr. Gregerson went unanswered in July and August and no word was heard from Mr. Swartz until Mr. Faringer appeared to use the Truck. During the week of August 23, 1999, Plaintiff prepared the Truck for sale because no response had been received from Defendant. Therefore, Plaintiff was not willing to allow Mr. Faringer use of the Truck. 22. Denied. Mr. Gregerson spoke with Defendant on October 5 and explained to Defendant that Mr. Gregerson had pursued the default clause of the purchase agreement because Defendant had failed to advise Mr. Gregerson of his decision after their July conversation and refused to return any of his subsequent phone calls. 23. Denied. It is specifically denied that Defendant was ever advised by any employee of Plaintiff that he would be given the truck back. -3- , ~, <I." "_""_'-'''" '",'~. v ' "'. """","'~',oo:.'..,, _,' ,', " ',',~," , , ~', ,'. .;',' ~.' ,:;., '''''OJ ,'".0"', -<1 24. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to truth or accuracy of the allegations contained in Paragraph 24 of Defendant's New Matter and Counterclaim. Accordingly, they are denied and strict proofthereof is demanded at the time of trial. 25. Denied. Defendant was sent a letter dated October 6, 1999, by certified mail, which was signed for by Evelyn Swartz on October 13, 1999. 26. Denied. No such call was received by Mr. Gregerson from Defendant in April 2000 or subsequent thereto. 27. Denied as stated. The purchase agreement was in default and Defendant had from July through December 1999 to sell the Truck or make other arrangements to cure the default. Defendant never made contact with Mr. Gregerson about trying to sell the Truck on his own or to payoff the Truck with other financing. COUNT I BREACH OF CONTRACT 28. The corresponding responding averments are incorporated herein by reference. 29. Denied. The averments set forth in Paragraph 29 of the Defendant's New Matter and Counterclaim constitute a conclusion of law to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 29 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 30. Denied. The averments set forth in Paragraph 30 ofthe Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 30 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 31. Denied. The averments set forth in Paragraph 31 of the Defendant's New Matter and Counterclaim constitute a conclusion of law to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 31 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. -4- '",-="kd'''''~ ,_,;~~" " 1+ ",,','c'.' -" ~ od ,-,", ,,'-' , ~ , ' ~-""~, '~"'o,.,:~" " "0':.",', 32. Denied. The averments set forth in Paragraph 32 ofthe Defendant's New Matter and Counterclaim constitute a conclusion of law to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 32 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 33. Denied. The averments set forth in Paragraph 33 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 33 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 34. Denied. The averments set forth in Paragraph 34 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 34 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 35. Denied. The averments set forth in Paragraph 35 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 35 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. WHEREFORE, Plaintiff requests that judgment be entered in its favor and against Defendant as requested in Plaintiff s Complaint, together with costs of suit and attomey's fees. COUNT II OUANTUM MERIT 36. The corresponding responding averments are incorporated herein as though fully set forth. 37. Denied. The averments set forth in Paragraph 37 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 37 ofthe Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. -5- "" - ! 38. Denied. The averments set forth in Paragraph 38 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 38 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 39. Denied. The averments set forth in Paragraph 39 ofthe Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 39 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 40. Denied. The statement contained in Paragraph 40 is a request for relief to which no response is required. WHEREFORE, Plaintiff requests that judgment be entered in its favor and against Defendant as requested in Plaintiff s Complaint, together with costs of suit and attomey's fees. COUNT III INTENTIONAL INTERFERENCE WITH CONTRACT 41. The corresponding responding averments are incorporated herein as though fully set forth. 42. Denied. Plaintiff properly and legally repossessed Defendant's Truck. The remaining averments of Paragraph 42 of Defendant's New Matter and Counterclaim constitute conclusions of law to which no answer is required. To the extent that a response is deemed required to the averments contained in Paragraph 42 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 43. Denied. The averments set forth in Paragraph 43 of the Defendant's New Matter and Counterclaim constitute a conclusion oflaw to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 43 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 44. Admitted in part; denied in part. It is admitted that Plaintiff intentionally and willfully repossessed Defendant's Truck. It is denied that such repossession was in any way -6- ~ , ~,.. ~"--- '.,:"" improper or illegal under the agreements between the parties. It is further denied that Plaintiff improperly attempted to hire Defendant's driver. 45. Denied. Repossession of Defendant's Truck was a proper remedy under the agreements between the parties. Defendant interfered with the relationship between him and his driver by failing to pay for a vehicle to be used by the driver. 46. Denied. Statements, if any, made by Plaintiff to the driver were true. 47. Denied. The averments set forth in Paragraph 47 of the Defendant's New Matter and Counterclaim constitute a conclusion of law to which no response is required. To the extent that a response is deemed required to the averments contained in Paragraph 47 of the Complaint, the same are denied and strict proof thereof is demanded at the time of trial, if relevant. 48. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth or accuracy of the averments contained in Paragraph 48 of Defendant's New Matter and Counterclaim and the same, therefore, are denied. Strict proof thereof is demanded at the time of trial, if relevant. WHEREFORE, Plaintiff requests that judgment be entered in its favor and against Defendant as requested in Plaintiff s Complaint, together with costs of suit and attomey's fees. Dated: September~, 2000 KEEFER WOOD ALLEN & RAHAL, LLP By St hen L. Grose, Esquire Attorney J.D. #31006 Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. -7- '"bo'...';."C' VERIFICATION The undersigned, Michael J. Gregerson, hereby verifies and states that: 1. He is the Vice President - Fleets of Arnold Transportation Services, Inc.; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Answer to Defendant's New Matter and Counterclaim are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904, relating to unswom falsification to authorities. 1(~ljJ!r:msoN Date: September JL, 2000 -8- '",',,'," '''1 I I I ! ! ~ ,~ I I I ~ i Ii ti u " ~ ~~ ~ , ~ ~ 11 ~ ~ ! , ,',,,",, '-' -, "'"', "", '" ~ '-""'-"'- ~', ,," ~" "", . q,., " , " ;': " ~' 0_;;;_"'';;'''' , 0 "~,,,", ~,' ,;'".{,>, ?-i CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, Arnold Transportation Services, Inc., hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: John DeLorenzo, Esquire Goldberg, Katzman & Shipman, PC 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, P A 17108-1268 KEEFER WOOD ALLEN & RAHAL, LLP By ~O<?~~ / St en L. Grose Dated: September I 'I ,2000 ~"c .,:......~"~" "" "iI" II < .' 'rb..d.'~&=o~" A <,',"-...,/'::r.~"""",,_ _... ... . "^CO"> ;,",,~,,- ........ '"'~ ,'J', '":~ ,.' ,eo. 'c'_ "" , U'1 0 C' ,. C C~} " ~;". r.n 7)0:1 ,''1 i'l -0 mn,;' 'u Z --'j f'\) 655; C) -(..;::.. ~ G -'u ::C__..{ K ~""1 ~'~,~ 8F~ Z".: -,',"" -0 ~ ).>c "" ~ N "'~ :J:J (::l -< - ~"' r: ' .-<. ... "'j ( r'-', IE" , Jolm DeLo<eozo, Esquire Attomey 1.0. No.72190 GOLDBERG, KATZMAN & SHIPMAN. P.C. 320 Markel Street P.O. Box 1268 Harrisburg, PA 17J08.1268 Telephone: (717)234-4161 ARNOLD TRANSPORTATION SERVICES INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-2729 Civil Term v. BRYANL. SWARTZ, Defendant. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO: Arnold Transportation Services, Inc. 4410 Industrial Park Road Camp Hill, Pennsylvania 17011. YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. " . " .. < YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IFYOUDO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LffiERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en 1a corte. Si usted qui ere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y lanotificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notificacion y por cualquier quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LffiERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 GOLDBERG, KATZMAN & SHIPMAN, P.C. Jo eLorenzo, Es lD. #72190 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 By: Date: 1lDl/~o Attorneys for Defendant ., , '." , ..;-. ~..~~ . ' ;1 ""''il!';! " t. John DeLorenzo, Esquire Attomey I.D. No.72190 OOLDBERG, KATZMAN & SIDPMAN, P.C. 320 Marlret Street P.O. Box 1268 Harrisburg. PA 17108,1268 Telephone: (717) 234-4161 Attorneys for the Defendant ARNOLD TRANSPORTATION SERVICES INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-2729 Civil Term v. : BRYAN L. SWARTZ, Defendant. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER AND NOW COMES, the Defendant, Bryan L. Swartz, by and through his attorneys, Goldberg Katzman & Shipman, P.C. and John DeLorenzo, Esquire, and avers the following: 1. Admitted. 2. Admitted in part. The address listed in this averment is incorrect. The correct address for the Defendant is listed in the following Counterclaim. 3. Admitted. 4. Admitted. 5. Denied. The allegations of this paragraph are denied since, after reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein. . Strict proof is demanded. I'liIl , ~ 6. Denied. 7. Denied. 8. Denied. The allegations of this paragraph are denied since, after reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein. Strict proof is demanded. 9. Denied. The allegations of this paragraph are denied since, after reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein. Strict proof is demanded. 10. The averments contained in this paragraph constitute conclusions oflaw to which no responsive pleading is required. To the extent a response is required, the averments are denied. 11. Denied. The allegations of this paragraph are denied since, after reasonable investigation, the plaintiff is without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein. Strict proof is demanded. 12. The averments contained in this paragraph constitute conclusions oflaw to which no responsive pleading is required. To the extent a response is required, the averments are denied. 13. Denied. 14. The averments contained in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are denied. ,-, '~: { .. , . 15. The averments contained in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is required, the averments are denied. WHEREFORE, the Defendant demands that the Plaintiff's Complaint be dismissed with prejudice and that the Defendant be awarded such costs and fees as the Court finds reasonable and appropriate. ~ ~.' "'- ... .. y NEW MATTER and COUNTERCLAIM 1. Defendant is Bryan L. Swartz, an adult individual residing at Box 77, Plainfield, Pennsylvania 17081. 2. Plaintiff is Arnold Transportation Services, Inc., a Pennsylvania Corporation with offices located at 4410 Industrial Park Road, Camp Hill, Pennsylvania. 3. On or about November 17, 1997, the Defendant purchased a 1993 Mack Tractor ("Truck") from the Plaintiff. A true and correct copy of the corresponding Purchase Agreement ("Agreement") is attached hereto as Exhibit" N' and incorporated by reference. 4. The transaction regarding the Truck was arranged as a situation whereby Mr. Swartz would purchase the Truck and inunediately contract with the Plaintiff for its use. The applicable contract and its addendums are hereby attached as Exhibit "B" and incorporated by reference. The Defendant is missing page 2 of the contract. However, it is believed that the contents of this page have no bearing on these matters. If it is deemed relevant, the Defendant will obtain through discovery this page 2 of the contract. 5. Under this arrangement, Mr. Swartz would hire a driver to operate the Truck. The Plaintiff would then provide routes and loads for the Truck. Mr. Swartz was paid for the mileage the Truck was used. Payments to Plaintiff for the purchase of the Truck were automatically deducted from the amounts due Mr. Swartz for the Truck's use. See addendums to the contract in Exhibit "B". 6. Mr. Swartz also contracted with the Plaintiff for the use of three other vehicles and drivers, including himself, which were being utilized by the Plaintiff. .-' -> -"il i . . 7. Initially, Mr. Swartz hired a driver named Kevin Knouse which drove the Truck on behalf of Mr. Swartz. 8. During the period oftime that Mr. Knouse drove for Mr. Swartz, the Plaintiff paid Mr. Swartz for the use of the Truck and automatically deducted the payments for the purchase of the Truck from the remittances to Mr. Swartz. 9. On or about March of 1998, Kevin Knouse terminated his employment with Mr. Swartz. 10. Mr. Swartz was unable to obtain a replacement driver quickly, therefore he contacted the Pll\intiff and requested a suspension of purchase payments until a driver could be obtained. The Plaintiff agreed to this request. 11. On or about August of 1998, Mr. Swartz obtained a new driver by the name of Kerry Mower. Mr. Mower worked for Mr. Swartz until approximately the first week of December 1998. 12. In or about August of 1998, Mr. Swartz and his other drivers discontinued driving for the Plaintiff because Plaintiff was refusing to give Mr. Swartz or his other drivers sufficient mileage to make employment with the Plaintiff profitable. However, because of the particular arrangement regarding the Truck it needed to remain in the Plaintiff's employ. 13. During the time that Mr. Mower worked for Mr. Swartz, the Plaintiff automatically withheld payments for the purchase of the Truck from the remittances to Mr. Swartz. 14. Approximately one month after Mr. Mower terminated his employment with Mr. Swartz, Mr. Swartz obtained the services of another driver, Mr. Rick Bennet. IS. In March of 1999, Mr. Swartz contacted Dennis Mockermer an employee of the Plaintiff. Mr. Swartz requested the pay-off amount of the Truck under the Agreement. During this .'- - ~. "- .. conversation it was determined that the Plaintiff had erroneously failed to automatically withhold the payments for the purchase of the Truck during the employment of Rick Bennet. Mr. Mockermer indicated that he would correct the error. 16. In or about the first week of April of 1999, the Plaintiff contacted the driver, Rick Bennet and directed him to bring the Truck to the Plaintiff's facility in Camp Hill, Pennsylvania for a Federal Inspection. 17. Upon bringing the Truck to the Plaintiff, Mr. Bennet was informed by the Plaintiff's employee, Michael Gregerson, that the Truck was being repossessed. 18. Additionally, Mr. Gregerson made disparaging comments about Mr. Swartz and his business practices. At this time, Mr. Gregerson unsuccessfully attempted to hire Mr. Bennet away from Mr. Swartz. 19. Mr. Swartz received no notice of the repossession prior to this incident. 20. After learning of the repossession from Rick Bennet, Mr. Swartz contacted the terminal manager, Kurt Morgan. Mr. Morgan apologized to Mr. Swartz for the misunderstanding and indicated that he could have the Truck back when he obtained a driver. 21. Mr. Swartz hired a driver named Mr. Tom Faringer to drive the Truck. The Plaintiff went as far as putting Mr. Faringer through driver orientation. However, when Mr. Faringer went to obtain the Truck, the Plaintiff would not permit him to use the Truck. 22. Upon learning of this occurrence, Mr. Swartz contacted Mr. Gregerson. Mr. Gregerson and Mr. Swartz had a discussion regarding the Truck. Mr. Gregerson indicated that if Mr. Swartz ended the conversation immediately that the Plaintiff would drop the matter. 23. During the next several months Mr. Swartz contacted various employees of the Plaintiff to ~. .~ ,-' -~'~'.~.;,; . I< . ascertain the status of the matter. Each employee informed Mr. Swartz that the matter was being resolved and he would be given the Truck back. 24. Mr. Swartz still has the title of the Truck in his possession. 25. Mr. Swartz received no further correspondence or information from the Plaintiff regarding this matter until he received letter from the Plaintiff's counsel in April of 2000. 26. Mr. Swartz immediately called Mr. Gregerson and was informed that Plaintiff rescinded all previous agreements and would initiate legal proceedings. 27. No notice was given to Mr. Swartz regarding the sale of the Truck. Consequently, the Truck sold at bargain price. COUNT I - BREACH OF CONTRACT 28. The averments of paragraphs 1 through 27 are hereby incorporated by reference as if set forth at full. 29. The Plaintiff's failure to automatically deduct the payments from remittances to Mr. Swartz constitutes a breach of contract. 30. The Plaintiff's failure to provide Mr. Swartz with notice ofthe amount due and the possible repossession constitutes a breach of contract. 31. The Plaintiff's failure to return the Truck after repeated assurances from the Plaintiff that Plaintiff would do so constitutes a breach of contract. 32. The Plaintiff's bargain sale of the Truck constitutes a breach of contract. . . ._--, , c . 33. Plaintiff's actions constitute unfair and deceptive business practices which have lead to pecuniary loss to Mr. Swartz. 34. Due to the Plaintiff's breach of contract, the Defendant has lost the use of the Truck and the income that it generated. 35. Due to the Plaintiff's actions, Mr. Swartz lost the services of his driver and the income that he generated. WHEREFORE, Defendant respectfully requests that the Court enter judgment in its favor and against the Plaintiff in the amount of the losses and costs that he has incurred, plus interest, costs of suit, including reasonable attorneys fees, and whatever other remedy this Court deems just. COUNT II Quantum Meruit 36. The averments contained in Paragraphs 1 through 35 are incorporated herein as if set forth in full. 37. The Plaintiff's actions have resulted in an improper benefit being conferred upon it to the detriment to Mr. Swartz. 38. Defendant has failed to appropriately compensate Mr. Swartz, despite the benefit conferred upon Plaintiff. 39. It would be patently unjust for the Plaintiff to obtain this improper benefit without Mr. Swartz receiving adequate compensation. 40. Mr. Swartz requests compensation on a quantum meruit basis for the benefit conferred - . . ~- ~ M=:V c " upon the Plaintiff. WHEREFORE, the Defendant respectfully requests that judgment be entered in its favor and against the Plaintiff plus interest and costs of suit, including reasonable attorneys fees, as well as whatever other remedy this Court deems proper. COUNT m - INTENTIONAL INTERFERENCE WITH A CONTRACT 41. The averments of paragraphs I through 40 are hereby incorporated by reference as if set forth at full. 42. The Plaintiff erroneously repossessed the Truck and attempted to hire Mr. Swartz's driver when the Plaintiff knew or should have known that it's actions were improper and unjustified. 43. The Plaintiff knowingly, willfully, and maliciously invaded and interfered with the contractual relationship of the Defendant and his driver for the purpose of promoting its own financial interest by inducing or hiring the driver away from Mr. Swartz and installing a new truck to take over loads and routes which should have been given to Mr. Swartz. 44. The Plaintiff's actions in repossessing the Truck and attempting to hire the driver were intentional and willful. 45. The Plaintiff did interfere with the employment relationship with the driver by taking the Truck so that driver had no vehicle to drive. 46. The Plaintiff made false statements to the driver about Mr. Swartz. 47. The Plaintiff has no privilege or justification for interfering with the contractual relationship between the driver and Mr. Swartz. ^, ~," , , 48. The loss of the driver and the Truck has resulted in an economic loss to Mr. Swartz. WHEREFORE, Mr. Swartz requests that judgment be entered in his favor and against the Plaintiff and the Plaintiff be Ordered to pay damages in the amount of the lost business resulting from the Plaintiff's capricious and intentional interference with its contract, the Defendant be awarded punitive damages for the Plaintiff's intentional conduct, and any other costs as deemed appropriate. DATE: 44832.1 7(~I!OO GOLDB R , TI:J & SHIPMAN, P.C. By J DeLorenzo, quire ttorney 10. #72190 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff ." - . . ~ . . VERIFICATION . '""", I, Bryan L. Swartz, hereby state that I am the Defendant in this action; that I have read the foregoing document; that the facts stated therein are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~~ DATE: 7 - 2 , - 0 " - il~' . , CERTIFICATE OF SERVICE On this 27th day ofJuly, 2000, I certify that a copy of the foregoing ANSWER WITH NEW MATTER AND COUNTERCLAIM was served upon the following counsel of record for Plaintiff by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Gary E. French, Esquire Keefer, Wood, Allen & Rahal 21 0 Walnut Street P. O. Box 11963 Harrisburg, P A 17l 08-1963 GOLDBERG, KATZMAN & SHIPMAN, P.C. BY~.~ OHN DeLO ZO, ESQUIRE 320 Market Street Post Office Box 1268 Harrisburg, PA 17108-1268 Supreme Court ill #72190 Attorneys for Defendant "~, EXHIBIT "A" _J, ~-, ~"-~ , ~ ~'-!I . 9;;43713483 ARNCUlTRANSf'l:RTRHON , 558 Pffi JR-l21 '00 14:50 . ARNOLD TRANSPORTATION SERVICES USED TRACTOR PURCHASE AGREEMENT rurchaser's Name: Brvan L. Swartz (Show name exactly as Owner's name is to appear on the title.) Purchaser's Address: Carlisle. (City) 8 Betty Nelson Court Lot 159 (Street Address) PA (State) 17013 (Zip) The undersigned Purchaser hereby offers to purchase from Arnold Transportation Services (Seller), for the price set forth below, the following d=i.betl truclc.-1r4ctor: Year 1993 Make Mack Model No. CH600 VINNo.IM1AAI3Y3PW02S412 Total Purchase Price $ Payable: $ $ $ 30.500.00 o o $ 5.726.25 $ 36.226.25 (payable at closing) down payment in cash from Purchaser cash or funds from Purchaser's lender Interest (11.75% for 3 year~ (36 mo~) $ TOTAL FINANCED AMOUNT Upon acceptance of this offer and acceptance of the terms of the Installment Contract - Security Agreement, Seller agrees to deliver the vehicle described above at Camp Hill. Pa . on or about November 17. 1997 . The closing subject to dela.y~ heyond ~eller's pra~ti~aJ controL Seller will transfer to Purchaser any assignable manufacturer's warranties with respect to the vehicle. If manufacturer's warranty has oxpired or will expire prior to one yoar Of 100,000 miles, (wbichev"f CUlllt::l (IDll) from the date of purchase, Arnold Transportation Services "Limited Warranty" will take effect until such time as the one year 100,000 miles warranty (whichever comes first) from date of purchase is satisfied. Datod this li"tl. day of tJllIJewl1'r"r.> , 19 q7 . ~~ day of t-1,\J~~ ,19Q7, by Accepted and agreed to this I '1--ti. Arnold t:tervices. By: . Q. EXHIBIT A R=95% 9043713488 01-21-00 02oS3PM PO~S #21 .- . ~ .."'~, - .i1b.!.'-~" . ~437134El3 ARNa.DTRANSPCf<TATlON , 558 F05 Jft.I 21 '00 '14:50 . 1. INS~CES; A. Physical Damage Coverage: During the term of this purchase agr=Qlt, Purobaser shall provide and maintain, at P\Jr(:haser's expcwe, physical damage insuranee coverage on the Tractor, naming Seller as loss payee, in an amount equal to the full insurable value of the Tractor, and imurinll the Tn1Clor agalllst all loss or damage from fire, theft, collision and all perils included in comprehensive coverage under a standard automobile policy. Said policy may be subject to a deductible. For the purpose of this Purchase Agreement, the "full insurable value" of the t tractor shal1 be the tractor's fair market value !IS for the date ofloss. B. Policy Provisiow: The insurance required by this purchase shall pIOWct Seller and Purchaser's interest that may appear. All such insurance shall designate Seller as a named insured and loss payee and shall, by the terms tl1creof or by appropriate endorsements thereto; (I) be primary to, and in no respect excess or contributory to or contingent upon, any liability insurance provided by Seller; (II) waive any right of subrogation against Seller; (III) provide that all insurance proceeds in respect of any loss or damage to the Tractor are to be paid directly to Seller (IV) provide that coverage thereunder may not be changed, altered or canceled on less than thirty (30) days prior written notice to Seller. C. Insurer; Evidence of Coverage: All insurance required herein to be provided by Purchaser :mall be placed with an insurance company acceptable to and approved by Seller. Purchaser shall provide SeHer with certificates of insurance ( or other evidence of coverage acceptable to Seller) evidencing the insurance coverage requiral herein and e$tablishiug that such insurance is in effect with respect to the tractor. D. Power of Attorney; With respect to ins\lrance policies required to be maintained by Purchaser hereunder, Purchaser hereby irrevocably appoints Seller, with full power if substitution, as Purchaser's attomey-in-fact, with full power to: (I) determine, at Seller's discretiOll, the ltll10Ul1l of llllY settlement or compromise of any claim or suit; (II) institute suit in the name of Purchaser and/or SeIler, and to add to the closing costs and expenses related thereto to the amO\\nt due f1"Oln Purchaser hereuuw:r; (lIl) to endorse and execute, Sellers behalf, any check, draft settlement or release. R=94% 9043713488 01-21-00 OZ'53PM P006 ~21 ~ ~ " ~- i I '''. ...."",;6' . 9043713488 ARNDLDTRANSPORTATION 558 PI37 JRN 21 '00 '14:51 2. A.. Seller's Right to Pay: If Purchaser fails to insure the vehicle as required . by ~ec1.iOll 6, hereof or ifPUJ:chaser fails to pay and dischal'ge auy f=, Ulx taxes, liens and other charges as required without prejudice to any other . rights hereunder, may (but shall not be obligated to) provide such inRlIrance, or may PRY and discharge sllch fee.q, t1Ixes. liens or other charges, and Purchaser agrees to reimburse Seller for said sums upon demand. lfPurchascr fails to :rehnburse Seller within tell (10) days of such demand, Seller may assess a late charge in accordance with section 4 hereof. If such amoun1s, including late charges, remain unpaid for ten (l0) additional days. Purchaser shall also be liable for inter- est thereon from the date of advance at the default interest rate set forth in scotion 15 hereof or, if less, m!l)(Unum ratc permittcd by law. 3. IDEMNlFlCATlON l A. Purchaser assumes liability for, and agrees to defend, indemnify and hold seller harmless from, any claim (including, without limitation, claims involving stricI liability). Liability, lost, cost, expense or damage of every nature (including, without limitation, fines, foreitures, penalties, settlements, and attorney's fees) by or to any person or entity and out of use or operation of the Tractor, by Purchaser or others, during the term of this sale. Purchaser obligation to indemnify, defend and hold Seller harm. less shall continue in full force and effect not withstanding the expiration or termination of the sales agreement for any reason. B. Upon request by Seller, Purchaser shall assume the defense if all demands, claims, actions, suits and all other proceedings against Seller for which iudvullliLy i~ provil..lc;u herein anu shall allow Seller [0 panicipate in the defense thereof. Seller shall be subrogated to all rights of Purchaser for any matter for which Purchaser has assumed obligation hereunder and Purchaser may not settle such rlemanrl, claim or action without Seller's prior consent 4. ASSIGNMENT A. Seller's Right to Sign: Titlc to the Tractor, and all right, title and interest In and to tbis Purchaser, may be assigned at any time by Seller without notice to or the consent of l'urchaser. Upon receipt of notice of any such assignment from Seller or its assignee, Purchaser shall make all payments coming due hereunder to the assignee without offset, counterclaim or R=g6% 9043713488 01-21-00 02,53PM POQ7 ~21 ~~ , _TO ~l1li$i!. ' . 3343713483 ARNCUl1RANSPffi1ATtON 558 P08 J~ 21 '00 14:51 . defeme of any kind. In the event of such assignment, references herein to "Seller" shall be deemed to mean Seller assignee. B. Prohibition of Assignment by Parchaser: Purchaser shall not assign, transfer 01" sublot this purchasc agrccment or any interest ill the vc:hicle without prior written consent of Seller, which consent may be granted or withheld in Seller's sole and absolute discretion. No interest of purchaser hcrcumlcr :<hall illliUI<;: 10 Uw bCl1"fil ofw1Y trusit:<:, ICIJ"ivt:r, IJICllilor or successor of purchaser or its property, whether by operation of law or otherwise. 5. SERVICE. REF AIRS AND PERIODIC MAINTENANCE A. Purchaser is required to pay any service, maintenance and/or repairs result resulting from n0!111al weat aud tear, w1athori~d 1I10dili1J1lUOIllS, rwglecl (including failure to make the tractor available for periodic inspections at required intervals), vandalism, theft, collision, upset or other casualty. 6. ALTERATIONS. USE AND INSPECTION: A. Purchaser shall not use or pennit the use of the tractor in any unlawful manner or in any manner not intended by the manufacture or which will subject the tractor or any component ther<Xlfto atl unreasol1llble 11:<1 of damage. Purchaser shall not subject the tractor to unusual. extreme or severe operating conditions not contemplated by the manufacture and shall not make any changes or altera.tions to the tractor or allY uf its components, without sellers prior written consent. Purchaser will not alter the appearance of the tractor in any manner without sellers prior written consent. To CllSUl"C cOlllpliatlCe with the I'wvlliiou:< of lhis section, seller shall have the right, at any time, to enter purchasers premises or elsewhere to inspect the tractor or observe the manner of its use. Any altelations 01' arlditioWlIo Ihe I.rnClor, other th!ln those which can be removed without damage to the tractor shall remain part of the tractor in the event of II repossession. R=95% 9043713488 01-21-00 OZ,53PM P008 ~21 ;WI j" ~" ~ ,~ . ~.fif--i , '3043713483 ARNCUlTRANSPORTATrON 558 P0'9 JRN 21 '00 '14:52 . 7, LOSS l\ND DAMAGE A. Purchaser's Assumption of Risk of Loss: Purchaser hereby assumes all risk of loss, including theft 01. destl.uction, and damage 10 U,~ \nIclor, regardless of cause and whether or not covered by insurance. Loss or damage to the tractor, or any component thereor;sha11 not relieve purchllSer of lIIlY obligation unuer the le= uf thi~ ~lIle~ agreement. B. Notice to SeHer: }fthe tractor is damaged or destroyed as the result of an llCl.;idtml ur other cltSually, i~ ~lultm, ur i~ con1i~cated or detained by govermental authority, purchaser will notify seller within twenty-four (24) hours of such occurrence. C. Repair, Total Loss: If the tractor is damaged and is in a condition which seller reasonably believes may be repaired, purchaser shall have the I.nIclor rc:pain:u anu rc:slureu to l:\OUU worldI1t! ortkr, If the tractor is . damaged to an extent that seller reasonably determines is not feasible to repair, or in the event the tractor is stolen, lost, confiscated or otherwise teildeied i1l0pelllbl~, purchl1llc:r Wall pay ~clleI llIllUrlount equal to the unpaid balance as of the date of loss plus any and all other payments due hereunder as of the date of loss, minus the amount of insurance proceeds, if any, paid to seller fru1I1 irnlurllIlCC: cuvc;mgc; provided by purchaser. Upon receipt of such payments. the loan will be paid. Purchaser expressly acknowledges and agrees that in the event of a total loss purchaser's insurancc may not be sufficieul to clllllplc:l~ly discharge purchaser's obli~ation to seller and, in such event. purchaser agrees that purchaser shall be liable for, and shall pay seller on demand for, the amount of such deficiency. 8. USE OF THE TRACTOR: (purchaser represents, warrants aDd covenants) A, Arnold Transportation Services Operating Agreements: The tractor will u", umx.l ~1<.ulusi vdy under an operating agreement between purchaser and: (1) Seller; (II) Silver Eagle! Arnold Transport. a Florida Corp., (III) Leb Arnold Trucking, a Pennsylvania Corp., (IV) DalwortbJ Amold, a Texas Corp., (slWh cumpanies being herein referred to individually as "ATS" and collectively as "Arnold Transportation Services"). Purchaser acknowledges and agrees that in the event the tractor is used for any other purpose 0'. in (ht: t:vt:nl pun;hllSer's operating agreement with Arnold Transportation Services is terminated for any reason. purchaser shall be in default under this sales agreement and seller shall be entitled to the rights and remedies specified in dIe contract R=94% 9043713488 01-21-00 02,53PM POOg #21 '--- " . "-'.:1 ,9043713488 ARNOLDTRANSPORTATION 558 P10 J~ 21 '00 1.4:52 B. Deduction of Sales Agreement and Maintenance Payments: Purchaser willlluthorizc Arnold TlllllSportatioll Setvices with which purcl= has entered into an operating agreement to deduct from purchasers trip settlements and any otb,er funds due to purchaser, the amount of purchaser's monthly installment payments hdl'eU.lldllr, lWUllIlY olhllf sums due to seller hereunder, and to remit such amounts directly to seller for credit to purchaser's account. C. Effect of Breech: Purchaser acknowledges and agrees that any breech of covellallts colltai1lt:u in llill; conlracL shall constitute a material default under the purchase agreement shall entitle seller to the rights and remedies specified in this contract. 9. DEFAULT A. Time is of the essence in this purchase and seller may declare the loan to be in default and terminated upon the occurrence of any of the following events; 1) Purchaser failure to pay when due, the full amount of any payment required hereWlder iUllluJillg, wilhoullimitations, monthly installments maintenance escrow payments. taxes, insurance, indemnification, cost of repair, or any other damage. 2) Purchaser's breech of any covenant or obliQ"ation hereunder or failure to Perform any obligation in the manner and at the time required. 3) Purchaser's death, permanent disability, insolvency, dissolution or termination of existence. . 4) Purchaser becominll the subject of a petition in bankruptcy, either voluntarily or unvo!untarily, or.making as assignment for the benefit of creditors, or being lllitl1t:tl ~ubj"cled to a suit for the appoinnnent of a receiver. 5) Seiz:ure of or Iev y upon lh" vehicle. 6) Seller reasollal.>ly Wid in good faith believes that purchaser's ability to perform their obligation hereunder has become substantially impaired. 7) Purchaser Operating Agreement with Arnold Transportation R-=95%" 9043713488 01-21-00 02,53PM POlO ~21 ~'M~'''e .9043713488 ARNDLDTRANSPORTATION 558Pl1 JAN 21 '00 14:53 . Services is canceled or tenninated for any rea.~on" 10. RF.M1i'.nIRS TN F.VRNT OF nF.FAUl.T A. Liquidated namages~ Upon pllrehllst'.r'S dt'.fault. pure.haser shall be liable For all, and shall pay Seller on demand, the sum of the following as liquidated damages: (I) any installment payments or other amounts due and owing a.~ of the time of default. B. Possession of Tractor: In the event of purchaser's detilult, purchaser aeree.~ to snrrender po"~ession offhe tractor to Sellers facility in Camp Hill, Pennsylvania, or at such other location as the parties may mutually agree. Purchaser further agrees that Seller may take possession of the tractor wherever found, whether on purchaser's prMlist's or elsewhere, in accordance with applicable law. Purchaser agrees that any and all rights, interests or claims of purchaser with respect to the tractor shall cease to exist as of the date of default. Co Default Interest: Seller may assess, and Purchaser will be liable tor, InkJ:est on the amounts due from the Purchaser's default, at the rate of twelve (%) per annum, unless a lower rate is required by applicable law, In which case the lower rate will apply, from and after the date of default. Purchaser shall also be liable for any collection or attorney's fees or other costs or expenses incurred by Seller as the result of Purchaser's default. n. Cllmlllati"Ve Remedies~ The remedies provided herein are cumulative and not exclusive, and shall in addition to any other legal, equitable or statutory remedies available to Seller. 11, E~TIRE AGREEMENT A. This Purchase Agreement constitutes the entire agreement of the parties. No waiver or modification of the terms of this Purchase shall be effective unless in writing and signed by both parties. No waiver offailure to enforce any provisions of this Sale by Seller shall be deemed a waiver of Seller rights with respect to a.ny SlI hseqnp.nt occ.urrence or to full and timely performance of any other provision hereof. 12. SUCCESSORS AND ASSIGNS R=94% 90437[3488 0[-2[-00 02,53PM POll ~21 - ~~ ~ ~," . Sla43713488 ARNCLDTRANSPffiTAT! ON 558 P12 J~ 21 '00 104:53 . A. This sale shall be binding upon, and shall accustom to the benefit of, any pennitted successors and a.~signs of the partie.q. 13. COSTS AND ATTORNEY'S FEES A. If Seller employs an agent or other party for purposes of collection of amounts due hereunder and/or repossession of the tractor, or refers this l'ur<;hasc Agreement to an attorney for purposes of collection, repossession or enforcement, Purchaser agrees to reimburse Seller upon demand fur Seller'g reasonable repossession, collection andlor enforcement costs. expenses and attorney's fees. 14. GOVERNING LAW. JURISDICTION A. This sale is being entered into in the state of Pennsylvania and shall be Interpreted in accordance with, and the rights and liabilities of the parties determined by, the laws of that state. It is agreed by Purchaser and Seller that all disputed and matter whatsoever arising under, in connection with, or incident to this sale, shall be litigated, if at all, in and before a state of federal court located in Pennsylvania, to the exclusion of the courts of any other country or state; provide, however, that Seller shall have the right, but not the obligation, to commence litigation with respect to this Sale or any rights of Seller hereunder in any state or country in which the Purdllllicr, !he lrdCtor, or any of Purchaser's assets may be found. 15. NOTICES A. All notices and payments hereunder shall be mailed ur uelivered to the respective parties at the addresses first stated above, or to such other addresses as a party may otherwise designate in writing from time to time. 16. SEVERABILITY A. If any provisions of this ::lale Agreement is prohibited by or held invalid under applicable laws or regulations of any jurisdiction in which this f;aleq Agreement is sought to be enforced, then that provisions shall be considered inapplicable and omitted but shnll not invalidate the remaining provisions heIe<lf. R=95% 9043713488 01-21-00 02:53PM P012 ~21 .,""~~ ~_ U" R=94% - -9043713488 ARNOLDTRANSPORTATION 558 P13 .II~ko_ JAN 21 '00 1>1:54 IN WITNESS WHEREOF, the parties have executed this Sales Agreement as of the date first written above. :OLDn=\:T:TI~ SnR~CES TITLE: h~~ero~. (-/Q.., p~2 12 d- 9043713488 01-21-00 02'53PM P013 ~21 , ,,,,,,. . -~ [, ~!l' EXHIBIT "B" ,- ,- ~'"~< ~~'~~*,.i ) CONTRACTOR OPERATING AGREEMENT -1- _o"~ .- '" ~ ~. WtM',E vehicle maintenance and inspection regulations administered or required by any federal, state or municipal agency with jurisdiction over the operations described in this Agreement. In the event the Equipment is found to be deficient under any law or regulation, Contractor agrees to remove the Equipment from service with Carrier until it is brought into compliance. During such interim period, Contractor shall, at Contractor's expense, provide alternative equipment suitable for use in carrying out Contractor's obligations under this Agreement. Carrier shall require Contractor's equipment to submit to semi-annual safety inspections. All safety inspections must be performed at a shop facility owned and operated by Carrier. 1.3 Operatinq Expenses. Contractor agrees to bear all costs and expenses incidental to operation of the Equipment, whether empty or loaded, including, without limitation, all risks of depreciation, all maintenance, fuel, oil, tires, repairs, business taxes, consumption and sales taxes, personal property taxes, ad valorem taxes, fuel and road-use taxes, ton- mile taxes (except taxes paid by Carrier), insurance coverage as provided herein, workers compensation assessments, licenses, vehicle registration renewal fees or aSsessments, base plates, and highways, bridge and ferry tolls (except those reimbursed and authorized by the Carrier). To facilitate payment of licenses, taxes and fees, where mutually convenient or otherwise required by statute or regulation, Contractor hereby authorizes Carrier to pay these charges on Contractor's behalf and to charge Contractor for any such payments, together with any direct expenses incurred by Carrier in connection with their payment. Contractor agrees that unless strictly prohibited by law, any licenses, permits, assessments and taxes paid by Carrier on behalf of Contractor pursuant to this paragraph may be charged back against and deducted from any compensation owed Contractor by Carrier. 1.4 Operation of the EQUipment. Contractor agrees to direct the operation of the Equipment and to determine the methods, manner and means of performing the obligations specified in this Agreement. Carrier shall be considered to have such exclusive possession, use and control of the Equipment required by I.C.C. regulation at CFR Part 1057.12(c) (1), or other applicable regulations, but shall have no right or authority, without the express permission of Contractor, to operate the Equipment for any purpose unless the Equipment is driven either by Contractor or by an operator engaged by Contractor. While the Equipment is in the service of Carrier, it shall be used by Contractor exclusively for the carriage of the goods of Carrier, and for no other purpose. However, Contractor may obtain broke red loads from third parties in the event no Carrier load is expected by Carrier to be available for return trips. If the Equipment is operated in the service of anyone other than Carrier, including any separate business activities of Contractor, Contractor agrees to hold Carrier harmless from any liability arising from operation of the Equipment that may be asserted against Carrier by any person. Carrier operates maintenance shops for purpose of maintaining it's equipment. Contractor agrees to abide by Carrier's maintenance requirements regarding Carrier's trailers. This includes entering carriers inspection lande as they are required by Carrier. 1.5 Trailers. Any trailers used in connection with the Equipment will be provided by Carrier at Carrier's expenses. Carrier agrees to inspect, maintain and replace such trailers in accordance with the safety and equipment standards specified in applicable federal, state and municipal -3- -"'~'~~ ~,~ "--- ~,-"",~ . 'r~ "~ -'~",__ laws and any rules, regulations and orders of any applicable jurisdiction. Upon termination of this Agreement for whatever reason, Contractor agrees to return to Carrier in a timely manner all such trailers and dollies used in connection with the Equipment in the same or substantially the same condition as such trailers were provided by Carrier, reasonable wear and tear excepted. 1.6 EQUipment Identification while in Carrier's Service. Contractor agrees to mark Equipment while in Carrier's service with such identifying colors, logos, numbers, marks and insignia as may be required either under applicable regulations, including 49 CFR Part 1058, or to identify the Equipment as a part of the Carrier's system. Contractor may use the Equipment for other commercial or personal purposes when it is not in the service of Carrier, with the understanding that all such identifying numbers, marks, logos and insignia will be removed or masked (by paper or plastic overlay) when the Equipment is so used. 1.7 Loqs and Reports. Contractor agrees to prepare daily driver logs, daily inspection reports, monthly inspection reports, fuel tax trip report, along with fuel receipts, shipping documents, and other documents as required by law or regulation, and to file the originals with Carrier daily or upon the conclusion of each trip. 1.8 Shippinq Documents and Collections. Contractor agrees to prepare and present for the signature of consignors and consignees such shipping documents as Carrier may from time to time designate, and to complete and return these documents to Carrier daily or at the end of each trip. Contractor further agrees to collect any charges owed by consignors and consignees and to return all collected charges to Carrier daily or at the end of each trip. 1.9 Contractor Performance Escrow Account. Contractor is required to maintain an escrow fund on deposit with the Carrier in an interest bearing account of $1000.00 per unit listed in Exhibit 1 attached to this Agreement to guarantee the performance by Contractor of all conditions and covenants in this Agreement. Any time the balance in the escrow fund is less than the $1000.00 minimum, the Carrier shall withhold $100.00 per unit per week from the Contractor's settlement until the minimum balance is obtained. If the Contractor so elects, he may choose to have on deposit in the escrow fund moneys in excess of the minimum through weekly settlement deductions in increments of $100.00. This money shall be in an interest bearing account. Carrier may deduct from the escrow fund any moneys due it, including moneys due from a negative weekly settlement. Escrow moneys may also be held pending the return of any company properties to an Arnold Transportation facility designated by management, including but not limited to the Qualcom System. 1.10 Agreed Standard of Service. Carrier has represented to shippers and consignees that, in arranging transportation of freight within the Carrier's system, it will provide a standard of service that is fully competitive with that offered by other national participants in the industry. Contractor acknowledges the benefits to his/her business of participation within the Carrier's system, and agrees to conduct activities under the terms of this Agreement to achieve the results represented to shippers and consignees. To achieve these business objectives, Contractor agrees to: -4- ,;.Ji: ~-, (a) Provide pick-up and delivery service to consignees and shippers on days and at times which are compatible with their schedules and requirements. (b) Meet scheduled arrival times at all destinations. (c) Handle, load, unload and transport freight using methods that are designed to avoid theft, loss and damage. (d) Cooperate with Carrier's employees, customers and other contractors to achieve the goal of timely and efficient pick-up, delivery, handling, loading and unloading of equipment, and provide manual data pertaining to freight handling as is reasonably necessary to achieve this goal. (e) Assist in the efficient and timely movement of freight and trailers between shippers and consignees, by performing such in route pick-ups, deliveries, trailer spots, and shuttles as necessary. (f) Provide Carrier with advance notice of routes to be taken for each linehaul movement and in the case of interstate P&D movement, provide a state by state mileage report. (g) Foster the professional image and good reputation of Carrier and Contractor with shippers and consignees, including adhering to the vehicle identification and operator appearance standards specified in Article 1.6 and 1.11 of this Agreement. (h) Conform to all applicable federal, state and local laws, regulations and ordinances. (i) Cause the Equipment to be operated safely and in compliance with all applicable laws and regulations; and (j) Conduct all business activities with integrity and honesty, in a professional manner, and with proper decorum at all times. 1.11 Operator and Eauipment Appearance Standard. Contractor acknowledges that the presentation of a consistent image and standard of service to customers throughout the system is essential in order to be competitive with other alternatives available to shippers and consignees and to permit recognition and prompt access to customers' place of business. Accordingly, each person having contact with the public under the provisions of this Agreement will keep his/her personal appearance consistent with reasonable standards of good order as maintained by competitors and promulgated from time to time by Carrier. In addition, the Equipment shall be maintained in a clean and presentable fashion free of body damage and extraneous markings, in accordance with the standards of the industry. 1.12 Contractor's Obliqation to Meet Standards of Safetv and Customer Service. Contractor shall have the obligation to assure that all persons who operate the Equipment are fully trained and capable of meeting the -5- - -~ . ~ customer service standards and safety obligations set forth in this Agreement. Carrier shall familiarize Contractor with various quality service and safety procedures developed by Carrier. In addition, qualified Carrier personnel may, at their option, take a pre-contract and/or post- accident safety ride with Contractor and his employees to verify that Contractor and his employees meet the safe driving standards provided in this Agreement. 1.13 Discretion of Contractor to Determine Method and Means of Meeting Business Obiectives. It is specifically understood and agreed by both parties that Contractor shall be responsible for exercising independent discretion and judgment to achieve the business objectives and results specified above, and no officer, agent or employee of Carrier shall have the authority to direct Contractor as to the manner or means employed to achieve such objectives and results. For example, no officer, agent or employee of Carrier shall have the authority to prescribe hours of work, whether or when the Contractor is to take breaks, what route the Contractor is to follow, or other details of performance. 1.14 Cooperation in Defense of Claims. If at any time during the term of this Agreement the Equipment is involved, in any way, in an accident, then Contractor will immediately report the accident to Carrier or to whomever Carrier shall designate. Contractor has full responsibility for all loss or damage to the Equipment while it is being operated under this Agreement Contractor shall cause Contractor's drivers, servants, employees, and agents to make a prompt report to Carrier of the occurrence of any and all accidents, spills, discharges, collisions, upsets or cargo exceptions which occur while said vehicle is in Contractor's Custody and control, and further provide the fullest information available to Contractor indicating the place, time, and nature of the incident, accident or damage together with a complete list of persons injured, owners of property damaged, and the names and addressed of witnesses, as it is possible to secure. Contractor, Contractor's drivers, servants, employees, and agents shall cooperate fully with Carrier and insures providing the insurance described herein in the employees, and agents shall cooperate fully with Carrier and the insurers providing the insurance described herein the employees, and agents shall cooperate fully with Carriers and the insurers providing the insurance described herein the employees, and agents shall cooperate fully with Carriers = and the insurers providing the insurance described herein in the investigation and the defense of any and all claims or suits. Contractor shall promptly deliver to Carrier any and all papers, notices and documents, whatsoever served upon or delivered to Contractor or his or her drivers, servants, employees, and agents in connection with any claim, suit, or action or proceeding at law or in equity commenced or threatened against Contractor and/or Contractor's drivers, servants, employees and agents in any way connected to the operation of any of the leased tractors. This obligation on the part of the Contractor and the Contractor's drivers, servant, employees, and agents shall survive the termination of this lease. 2. VEHICLE OPERATION 2.1 Additional Vehicles; Safe Operation Required. Contractor may, with the consent of Carrier and consistent with the capacity and business needs of the Carrier, own and operate more than one vehicle, with any such -6- . ,,~ ....- '~~'.I...f" - ~~ - .~ ,-. "2;", additional vehicles to be driven by qualified operators employed by Contractor, as desc~ibed in subparagraph 2.2 below. 2.2 Emolovment of Qualified Persons. Contractor may employ or provide person(s) to assist Contractor in performing the obligations specified by this Agreement. All persons so employed or provided by Contractor shall be qualified pursuant to applicable federal, state and municipal safety standards and the d~iver eligibility requirements as established by Carrier from time to time, and shall be fully trained, at Contractor's expense, to operate the Equipment. Contractor understands and agrees that such persons shall not be considered employees of Carrier and that it is Contractor's responsibility to assure that such persons conform fully to the applicable obligations undertaken by Contractor pursuant to this Agreement. Contractor further agrees to: (a) Bear all expenses associated with qualifying such persons to perform the services agreed to be provided herein, including, without limitation, the cost of physical examinations and drug and alcohol tests; (b) Bear all expenses associated with the employment of such persons, including, without limitation, wages, salaries, employment taxes, workers compensation coverage, health car, retirement benefits and insurance coverage's; (c) Assume sole responsibility for compliance with all applicable laws, rules, regulations and orders respecting payroll deductions and maintenance of payroll and employment records; and (d) Hold Carrier harmless from any liability and claims by others or by governments arising from Contractor's relationship with Contracto~'s employees or substitutes whether under industrial accident prevention laws or any other federal, state or municipal laws applicable to the relationship between employers and employees. (e) Any charges made on any cards assigned to Contractor by Carrier, whether or not used by Contractor or his employees. 3. Insurance and Indemnities 3.1 Non-Truckinq Liabilitv Coveraqe - Contractor Res~onsibilitv. Contractor agrees to obtain and keep in force at all times a policy('s) of public liability (automobile/truckers bodily injury and property damage insurance coverage), issued by an insurance company qualified to write such coverage in the state(s) where the Equipment is operated, and rate A, Class VII or better by A.M. Best Co., to cover all costs, losses and expenses arising from operation of the Equipment while it is in operation without freight (empty mile coverage) in amounts not less than Five Hundred Thousand Dollars ($500,000). Contractor shall provide Carrier Certificate(s) of Insurance evidencing such coverage naming Carrier an additional insured and providing Carrier at least twenty (20) days' prior written notice of cancellation or material change. 3.2 Public Liability. Carrier agrees to self-retain and maintain insurance coverage's for public liability (general and automobile/truckers personal injury and property damage insurance coverage), and cargo loss and -7- ili...J........~~~.......... .. ~'"" ~. . ~,' damage risks in amounts sufficient to meet its legal obligations under 49 ~.S.C..~ 10927 and, subject to the exception described in Article 3.5, will ~ndemn~fy Contractor and Contractor's drivers against liability for operat~on of Equipm7n~ while on Carrier's business subject to the following except~ons and cond~t~ons, the occurrence of anyone of which will void this indemnity: (a) As to the involved Equipment operator, if the operator has engaged in intentional misconduct or reckless or willfully negligent operation of the Equipment; (b) As to the Contractor, if the Contractor is not the involved Equipment operator, but has knowledge of or reason to anticipate such operator's intentional misconduct or reckless or willfully negligent operation of the Equipment; or (c) As to Contractor and operator(s), when Carrier has elected to discontinue its indemnity thereunder pursuant to the provisions of Article 3.3. 3.3 Carrier's Non-Liabilitv for Eauipment. Contractor agrees that Carrier shall not be liable to Contractor for any depreciation, loss or damage that may occur to the Equipment by collision, fire, theft or similar occurrence, excepting such loss or damages as my be caused by Carrier, its agents, servants and employees. Contractor shall be responsible for, and shall purchase and maintain at its sole expense appropriate insurance covering risk of loss or damage to motor vehicles supplied by Contractor, and described in Exhibit 1 of the Agreement, whether resulting from fire, theft, collision, or other cause. 3.4 Indemnification of Contractor for Certain Losses. The following indemnities constitute an exception to the provision for risk protection to Contractor provided in Article 3.2. During the term of this Agreement and thereafter, Contractor agrees to indemnify and save Carrier harmless against liabilities as follows: (a) The first One Thousand Dollars ($1,000,00) arising from each claim brought against Carrier and all liabilities incurred by Carrier for or on the account of bodily injury and/or property damage in any manner caused by, incidental to or growing out of any act or omission of Contractor or Contractor's agents, servants or employees arising out of the ownership, maintenance, use or operation of the Equipment and/or Carrier provided equipment, or out of the conduct of Contractor's business. (b) The first One Thousand Dollars ($1,000,00) of each claim for loss or damage to freight tendered for shipment or handling thereunder while such freight in the possession of Contractor or Contractor's agents, servants or employees; (c) Any or all claims brought against Carrier and liabilities incurred by Carrier arising from the Contractor's relationship with Contractor's employees, whether under industrial accident prevention laws, or any other federal, state or municipal laws, rules, regulations and orders applicable to the relationship between employers and employees; and -8- , ,=" . ~. L_ - "~ ,~. (d) Any and all claims brought against Carrier or liabilities incurred by Carrier for or on account of Contractor's failure or failure of Contractor's agents, servants or employees to comply with any laws, rules, regulations or orders applicable to Contractor's business. 3.5 Work Accident and Workers Compensation. Contractor agrees to obtain and keep in force at all times during the term of this Agreement work accident and/or workers compensation insurance insuring Contractor and all of Contractor's employees. At Contractor's option, such coverage may be obtained either under a policy negotiated by Carrier, through an applicable state sponsored program, or through a policy providing comparable benefits and issued by an insurance company qualified to write such coverage in the state(s) where the Equipment is operated, and rate A, Class VII or better by A.M. Best Co. Such insurance coverage shall be evidenced by a Certificate of Insurance provided to Carrier and providing Carrier at least twenty (20) days' prior written notice of cancellation or material change. 3.6 Collision, Fire and Theft Insurance. Coverage is not required by Carrier. However, if it is desired by Contractor or required by Contractor's creditor(s) in relation to the equipment listed in this agreement, such coverage may be obtained through Carrier and have premiums deducted from settlements by executing Addendum D of this Agreement. The proceeds of any fire, theft, and extended coverage insurance with respect to the Equipment shall be payable solely to the Contractor and shall be applied by Contractor toward the payment of Carrier's obligations under this Agreement with any balance of the proceeds to become property of Contractor; provided, however, that at Contractor's option the proceeds may be used for the repair of replacement of the affected Equipment. 3.7 Costs Associated with Overweiqht and/or Oversize Trailers. Except when the violation results from the acts or omissions of the Contractor, Carrier shall assume the risks and costs of fines for overweight and oversize trailers when the trailers are preloaded, sealed or the load is containerized, or when the trailer or lading is otherwise outside of the Contractor's Control, and for improperly permitted over dimension and overweight loads and shall reimburse the Contractor for any fines paid by Contractor. Carrier shall reimburse Contractor for one Certified scale ticket per load over 35,000 lb. that matches log. 4. Settlement with Contractor 4.1 Settlement for Services Performed. Carrier agrees to settle on a weekly basis with Contractor for services provided in accordance with the settlement schedule set forth in Addendum A, from which settlement shall be deducted charges for items which are authorized in writing or required by law. The settlement to Contractor is calculated from driver trip records and shall consist of the following parts: (a) Mileage Settlement, which amount shall be payable to a Contractor in accordance with the routes and mileage schedule predicated on miles set forth in the Household Goods Mileage Guide, current edition, as described in Addendum A. (b) Accessorial service compensation as described in Addendum A. -9- "~- . . - ~""A^,'_i , (c) Carrier may at its discretion, take runs operated in a dedicated fashion and set different compensation rates that those listed in the scale of Addendum A. 4.2 Settlement Statements. Carrier agrees to issue Settlement Statements and settlem~nt checks to Contractor on a weekly basis except when this Agreement is terminated as provided herein, in which case a final Settlement Statement and settlement check shall be issued within forty-five (45) days ofl termination. Settlement Statements shall contain a computation of the settlement Contractor is entitled to receive and an itemized listing of all deductions from Contractor's settlement. Carrier shall have no responsibility to make deductions for, or to pay wages, benefits, h~alth, welfare and pension costs, withholding for income taxes, unemployment insurance premiums, payroll taxes, disability insurance premiums, social security taxes, or any other similar charges with respect to Contractor or Contractor's employees. To facilitate prompt settlement, Contractor agrees to accurately prepare such settlement documents and records as Carrier may from time to time require in order to compute such settlement. . Upon written request, Contractor shall be provided copies of those documents which are necessary to determine the validity of all deductions from Contractor's settlement. Settlement Statements and the entries the~eon shall be deemed conclusive and binding on Contractor, unless writ~en objections to entries on a questioned Settlement Statement are receiveq by Carrier within thirty (30) days from the date of issuance of the Settlement Statement to which the objections apply. 5. Term of Aqreement 5.1 Initial Term. This Agreement shall continue in full force and effect for an initial term of thirty (30) days from the date this Agreement is signed. 5.2 Renewal Terms. This Agreement shall automatically renew for successive terms of thirty (30) days each after expiration of the initial term unless Contractor or Carrier provides the other party notice of termination in writing at least fifteen (15) days prior to the expiration of the initial term or any successive renewal term. 6. Termination Provisions 6.1 Termination. This Agreement may be terminated during the initial term or during any renewal term hereof, as follows: (a) At any time, by mutual agreement of Contractor and Carrier; (b) By Carrier in the event that Articles 3.2(a) or 3.2(b) apply; (c) By Contractor or Carrier if the other party breaches or fails to perform the contractual obligations imposed by this Agreement; (d) By either party in the event that Carrier: (1) ceases to do business; or, (2) as a result of a decline in business, reduces operations. (e) By Contractor, upon fifteen (15) days' prior written notice to Carrier. The parties hereto specifically recognize the damage to -10- ,"",'-- . k. = u ~, " " "'--;, . Carrier, which is difficult to quantify, but which includes the cost of engaging and qualifying temporary operators and replacement equipment to meet Contractor's linehaul service requirements, if Contractor should terminate hiS/her service obligations thereunder without first giving notice as provided in this paragraph. Therefore, in the event of such unauthorized termination by Contractor (except if such termination is caused by death or disability of Contractor) Contractor shall pay to Carrier, as liquidated damages, and not as a penalty, the sum of One Hundred Dollars ($100.00). Carrier may withhold such amount from Contractor's final settlement or from Contractor's Performance Escrow Account. 6.2 Obliqations Upon Termination. Upon termination of this Agreement for any reason, Contractor agrees promptly to: (a) Return to Carrier's facility or designated location any trailers furnished by Carrier for use in connection with the Equipment. If Contractor fails to return Carrier's trailers to Carrier's facilities or designated locations, Carrier shall be entitled to a rental charge of Fifty Dollars ($50.00) per day per trailer until said trailer is returned, each 24-hour period or fraction thereof being considered one day. Any such charges may be deducted from Contractor's final settlement, or from Contractor's Performance Escrow Account. (b) Return to Carrier any shipping papers, documents, collections, or other property of Carrier in Contractor's possession. (c) Remove and return all of Carrier's vehicle identification from the Equipment. Carrier may withhold the return of any moneys owed Contractor, including any balance remaining in Contractor's Escrow Account, until Contractor completes the return of the items listed above. 6.3 Arbitration of Asserted Wronqful Termination. In the event Carrier acts to terminate this Agreement (which acts shall include any claim by Contractor of constructive termination) and Contractor disagrees with such termination or asserts that the actions of Carrier are not authorized under the terms of this Agreement, then each such disagreement (but no others) shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award of the arbitrator may be rendered in any court having jurisdiction thereof, according to the following: (a) Written notice of a demand for arbitration must be mailed by Contractor to Carrier and to the American Arbitration Association within ninety (90) days of the occurrence of the claimed wrongful termination. Failure to mail written notice of a demand for arbitration within such ninety (90) day period shall constitute an absolute bar to the institution of any proceedings and a waiver of the claimed wrongful termination. The copy of the demand sent to the American Arbitration Association will be addressed to 140 West 51st Street, New York, New York 10020- 1203, with a request that the demand be forwarded to the appropriate AAA Regional Office. -11- ,,~r~'_ ]'" I I~. " , ~;(, (b) The dispute shall be heard and determined by a single arbitrator, chosen pursuant to the procedures of the American Arbitration Association. (c) The arbitrator shall set the date, time and place for each hearing, and shall schedule the hearing and make his or her determination in an expeditious manner. (d) As to any dispute or controversy which under the terms hereof is made subject to arbitration, no suit at law or in equity based on such dispute or controversy shall be instituted by either party hereto, other than a suite to confirm, enforce, vacate, modify or correct the award of the arbitrator as provided by law; provided, however, that this clause shall not limit Carrier's right to obtain any provisional remedy including, without limitation, injunctive relief, writ for recovery or possession or similar relief, from any court of competent jurisdiction, as may be necessary in Carrier's sole subjective judgment to protect its property rights. (e) The arbitrator shall have the authority only to conclude whether the termination of Contractor was within the terms of this Agreement, to determine damages if required to do so under this subparagraph, and to provide for the division of the expenses of the arbitration between the parties. If the arbitrator concludes the termination was within the terms of this Agreement, the termination shall be effective on the date specified in the notice of termination from Carrier to Contractor. If the arbitrator concludes the termination was not within the terms of this Agreement, then, at the option of Carrier: (1) the Contractor shall be reinstated, and in that event shall be entitled to damages equal to the arbitrator's determination of what Contractor's net earnings (after payment of al expenses which are borne by Contractor pursuant to this Agreement) would have been during the period between the date of termination and the date of reinstatement; or (2) Contractor shall nevertheless be terminated, and, in that event, shall be entitled to damages equal to the arbitrator's determination of what Contractor's net earnings (after payment of all expenses which are borne by Contractor pursuant to this Agreement) would have been during the period between the date of termination to the last day of the term of this Agreement, (without any renewals). Contractor shall have no claim for damages in any other amount, and the arbitrator shall have no power to award punitive or any other damages. (f) The arbitrator shall have no authority to alter, amend or modify any of the terms and conditions of this Agreement (including by application of estoppel, waiver, or ratification), and further, the arbitrator may not enter any award which alters, amends or modifies the terms or conditions of this Agreement in any form or manner (including by application of estoppel, waiver, or ratification) -12- . -~ , . -""--' 7. Merqer of Understandinq This Agreement, the Addenda hereto, and the Attachments to the Addenda, constitute the entire agreement and understanding between the parties and, when executed, shall constitute a revocation of any earlier Contractor Operating Agreement between the parties. This Agreement, the Addenda and Attachments thereto shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties. 8 . Captions Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify or otherwise affect the terms and provisions of this Agreement. 9. Savinqs Clause If any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect. 10. Failure to Enforce Failure of either party to enforce strictly any provision of this Agreement shall not be construed as a waiver thereof or as excusing the other party from future performance. 11. Force Maieure The performance of the obligations of this Agreement on the part of their Carrier or the Contractor shall be excused by reason of closing of public highways, changes in customer shipping and/or receiving requirements, strikes or work stoppages, weather conditions which make operations unsafe or impractical, Acts of God, or temporary or permanent cessation of business by Carrier. 12. Assiqnment This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective heirs, successors and assigns, but shall not be assigned by either party without the written consent of the other party hereto. 13 . This laws Governinq Law Agreement shall be governed by and construed of the Commonwealth of Pennsylvania. in accordance with the 14. Chanqe of Law. To the extent that this agreement makes reference to federal and state laws, rules, and regulations, and required compliance with them then this Agreement shall be deemed automatically amended to the extent necessary to comply with any and all such laws, rules and regulations, as amended, when and if enacted or coming into force hereafter. 15. Base plate. Carrier will provide a base plate to Contractor who has requested such by executing Addendum Bl of this Agreement. All base plates secured for -13 - ==.",,,......'~~~~-"- ~ . ~..... ~m -,,_, , Contractor by Carrier will be in Carrier's name and are considered property of Carrier. , , Should this agreement be terminated as stipulated, Contractor is required to return to Carrier, the base plate that was provided to Carrier releasing to Contractor funds held by Carrier on behalf of Contractor. Because base plates are a non-refundable regulatory expense, should this lease be terminated prior to Contractor completing the base plate year then Contractor is liable to Carrier for not less than 50% of the total value of the bases plate and the amount of the refund will not be more than (50%) of the remaining value of the base plate, at the time the base plate is transferred for additional use by Carrier and only if said base plate is transferred for additional use on behalf of Carrier and provided base plate is paid in full. Carrier will assess Contractor an administrative charge of five percent (5%) of the total cost of the base plate and a weekly settlement charge of one tenth (1/10) the total annualized cost of the base plate until the cost of the base plate satisfied to Carrier. CONTRACTOR ACKNOWLEDGES AND REPRESENTS THAT CONTRACTOR HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT, AND HAS HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH PERSONAL FINANCIAL, TAX AND LEGAL ADVISORS PRIOR TO EXECUTING THIS AGREEMENT. IN WITNESS WHEREOF, the parties hereto enter into and execute this Agreement this 17th. day of November, 1997, at 1300 HRS. ARNOLD TRANSPORTATION SERVICES 451 Freight Street Camp Hill, PA 17011 Bryan Swartz L /~9 8 Betty Nelson Ct. ~df. Carlisle, PA 17013 ...") \:<'G'l->< \-v\ Signature ~m.~ - -- S~u~ L-E6 ~,...~-.. 'S..Ar\'~ Tl le /SR-yAA L, S" W MtL Printed Name ~~ riIiL Wit ed J.ll~f 10 h5A fJ.( Witn ssed -14- - h~ bJ>i;",' . . , > EXHIBIT 1 TRACTOR #: 111 COLOR: White YEAR: 1993 LIC. PLATE #:lLF368 MAKE: Mack STATE REGISTERED:OK MODEL: Conventional TITLE STATE: #: VIN: 1M1AA13Y3PW025412 EMPTY WEIGHT: 13,500 TITLE HOLDER: Arnold Transportation GROSS WEIGHT: 80,000 PURCHASE PRICE:$30,500.00 -15- -" - ~ .... . - "'~ , ADDENDUM A COMPENSATION AND PROCEDURE The compensation to be paid by CARRIER to CONTRACTOR pursuant to Section 4 of this agreement of which this addendum is a part shall be as follows: 1. The charge per truck with driver will be based on $.80 per mile loaded and $.80 per mile empty for all dispatched miles. If this contract is in effect at the end of one (1) year continuous performance, the charge per truck with driver will be based on $.81 per mile loaded and $.81 per mile empty for all dispatched miles. For dispatches to the New York/New Jersey Metro area from Camp Hill, PA, an additional mileage compensation of $.04 per mile will be paid. All dispatched miles traveled in connection with a return trip will be paid at the regular mileage rate. All mileage will be predicated on miles set forth in the Household Goods Mileage Guide, current edition. 2. Accessorial service compensation will be as follows: $30.00 per stop-off excluding final stop $20.00 minimum per truckload for manual loading and unloading $.15 per hundred weight (cwt) for manual loading and unloading Other additional compensation-See Addendum E 3. Safety Performance Bonus $150.00 per calendar quarter will be paid providing that the CONTRACTOR AND/OR HIS EMPLOYEES have no preventable motor vehicle accidents and/or no preventable cargo claims. 4- Bryan Swartz to a. Trailer b. Cargo c. Liability cover the first $1.000.00 liability for each of the following: 5. Dispatch order will be determined by the contract effective date of 11/17/97 for the first dispatch of each week (assigned on Saturday AM). After first dispatch, CONTRACTOR AND/OR HIS EMPLOYEES will fall in position with CARRIER'S drivers based on first in. first out, with available hours of service to accept dispatch. 6. Contract effective date of 11/17/97 with ONE driver(s) and ONE tractor(s) Bryan Swartz ARNOLD TRANSPORTATION SERVICES ~~€? / /1-/7 97 Date ~I~ " I(V\ Signature \ \- \\- ell Date '\)\ ~'o..b:~ -16- ~ ".~~I "'!N1;ll< . > ADDENDUM B AUTHORIZATION TO MAKE WEEKLY ESCROW DEDUCTIONS IN EXCESS OF THE $1000.00 MINIMUM This is authorization for Arnold Transportation Services to deduct from each weekly settlement check $100.00 up to a total of $1000.00. It is understood that any money in the escrow fund in excess of the $1000.00 minimum may be withdrawn by the CONTRACTOR at any time to pay for such items as base plates, permits, equipment repairs, etc.... TRACTOR NUMBER:112 EFFECTIVE DATE: 11/17/97 ~. " .~ V'-"'- For Arnold , IV' ..<:J/1 Ct.~~--A Transportation Services -17- " " ~ '. . . , ADDENDUM Bl AUTHORIZATION TO MAKE WEEKLY ESCROW BASE PLATE DEDUCTIONS This is authorization for ARNOLD TRANSPORTATION SERVICES to settlement check $ ,,:.0, ~l\ up to a total of $ ';}t'N, ';'C., . money in the escrow fund may be withdrawn by the CONTRACTOR for the purpose of purchasing yearly base plates. TRACTOR NUMBER:112 EFFECTIVE DATE:ll/17/97 ~~~ CONT: CTOR' S SIctN TURE "--' '-.\ ? ~-'-"'- \'\/\ ~VL~""A-- FOR ARNOLD TRANSPORTATION SERVICES -18- deduct from each It is understood at any time, but -. ;k,;,," " weekly that any is intended ,-,- - - N, ~".iOllffi '" (, ... . 'k " , ADDENDUM B2 AUTHORIZATION TO MAKE WEEKLY MISCELLANEOUS ESCROW DEDUCTIONS This is authorization for ARNOLD TRANSPORTATION SERVICES to deduct from each weekly settlement check $ 'C{";. 00 up to a total of $ . It is understood that any money in the escrow fund may be withdrawn by the CONTRACTOR at any time, for any reason. but is intended for use as in the continual operation of the unit stated in this contract. TRACTOR NUMBER:112 EFFECTIVE DATE:ll/17/97 C~N~ATURE .) ~~ \" \~ ~CLX.. . \\A 'i'a11~ ()04 ^-- FOR ARNOLD TRANSPORT TION SERVICES -19- 0=,;" - ~, i.... . ".4' ADDENDUM C r BOBTAIL INSURANCE - ELECTION SHEET I iii :uk~,,--- " , 1. I elect to purchase my own Bobtail Insuranc..e -and will supply Arnold Transportation Services with a copy of my insurance cert~~ieate' as proof of coverage as required in Sect ion 3.1 of this Agreement . "-..- .'. ." "'-"'--- Tractor # ___.x_ Contractor1s Signature Date 2. I elect to purchase Bobtail Insurance through Arnold Transportation Services group insurance program offered with S.&QLU'~,\.\ s;.;c . I agree that the premium costs for this insurance coverage may be de ucted irectly from my weekly settlement. The current cost for this policy is $ ~<S.C\) per month. //2 Tractor # c&;;Z,~~t:e -20- II-n.Q7 Date " ~~ ~-'''''' ~~ ~ ~. -, l""""" ~ . '. . . ". . " r ADDENDUM D PHYSICAL DAMAGE INSURANCE - ELECTION SHEET 1. I elect to purchase my own Physical Damage Insurance and will supply Arnold Transportation Services with a copy~ of my insurance, certificate as proof of coverage as required in Section 3.3 of this Agr~ement. . \ \ Tractor # Contractor's ~ignature Date 2. I elect to purchase Physical Damage Insurance through Arnold Transportation Services group program offered by '7""{';.1,~ U\~~ . I agree that the premium costs for this insurance coverage ma be de cted directly from my weekly settlement. The costs for this insurance coverage are dependent upon the declared value of the tractor listed in Exhibit 1 of this Agreement and the number of group participants. A one month security deposit is required at the time the insurance is issued along with prorated portion of the first month's premium. . (-,(\ 20, SOC. ,- Declilred Value /" ."),cO> Cost % ...::J Lv~. <, Q Annual Cost y ~\\'2-. Tractor # ~L-~ Co tractor's i nature 1 '\.lev ~ Cost \,..J(.\"'r 1\,'1.91 Date -21- ~ "=~ -~ ~~- - _.c_ .. I. V . ", " '~.'*f / ADDENDUM E ADDITIONAL ACCESSORIAL COMPENSATION LAYOVER: 1. Paid at a rate of $6.50 per hour up to 8 hours ($52.00) 2. Contractor coming off required rest will give the first two hours on a pick-up or delivery. 3. Layover is not paid on loads that require two (2) days to deliver. 4. Layovers will not be paid when available loads are refused. WAITING: 1. Waiting time paid at a rate of $6.50 per hour after the first two hours. 2. Waiting time under four (4) hours is not paid if there is unloading pay. 3. Waiting time paid at a rate of $6.50 per hour in addition to loading pay when time exceeds four (4) hours. 4. Waiting time paid after two (2) hours on stop-off pick-up or delivery. LOADING AND UNLOADING: 1. Loading and unloading is paid at $.15 per hundred weight (cwt). 2. Minimum compensation for loading or unloading a trailer is $20.00. 3. Mechanically assisted loading and unloading of trailers is $10.00. STOP-OFF PICK-UP AND DELIVERIES: 1. Stop-off pick-ups are paid at $30.00 per stop, excluding first pick-up. 2. Stop-off deliveries are paid at $30.00 per stop, excluding final destination. 3. Automotive pick-ups are paid at $10.00 per stop, excluding first pick-up. ADDENDUM F Article #6 of this Lease Agreement calls for interest to be paid on all escrow accounts. The following guidelines will be adhered to: 1. The interest rate will be two (2) percent. 2. Interest will be compounded quarterly. 3. Interest will be earned after you have reached the $1000.00 escrow balance. 4. Interest will be paid on all escrow money. 5. The interest rate can be adjusted as rates change. -22- ~IiiWMi~D:'=""'="- -u ..' ' " . wm:."'....;,.;._"""'"'_~.l. 1" ~'~, -..iJ_ . '" ~u "'" ~" ,"" --" ~'.' . ' . ~~ " (~-, ., "T. 0 .', Q.... , , (."'. .0, f-" 0 , -r;r" ): );:. l~ ..- -< Cr-; =< ",,', '.~'_'_'" c~. .= .~__ ~-" "_",".';;[,'i-,__:'';'',__,.",_ _" _.~___ ~--,~.-"-,, -- , ';.- ',- < .~,_. ,', t'_, "".,;..,' il I I I I I I ARNOLD TRANSPORTATION SERVICES, INe. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff : NO 00-2729 CIVIL TERM v. BRYANL. SWARTZ Defendant : CIVIL ACTION. ACCEPTANCE OF SERVICE I, John DeLorenzo, Esquire, of Goldberg Katzman & Shipman, P.C., hereby accept service of the Complaint filed on May 3,2000, in the above captioned action on behalf of our firm's client, Bryan L Swartz. Dated: May J~ 2000 By: Jo eLorenzo, Es . e Goldberg Katzman & Shipman, P.C. 320-E Market Street HarrisburgPA 17101 717-234-6808 Attorney for Defendant 0 - CJ C c;.) -1'1 -., ,-, -0 lY r.... ., 11"1 --~.,. ;;:. ,--~- , r' " ;:~ ';'-- '-.' [fJ c.'.:, f'''';, -< / -:<CJ '< C:' -\:1 . -"y, :t:'" r"' -" . "";,:I! ;Z',j :~M ;>C) :.~ {= -{ ;Z "'-> -oj 3:.1 -< , " -< . ~~", " '". .. ,'~ '"~ ,en",".' _~___~'__, ~._ , _,~ ~'~'O._"" '-_"~.'_ "=_[jSb. _ - ~.-; MA~ ~ 020ff tI7 ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION RULE TO SHOW CAUSE AND NOW, this "1 t st day of March, 2001, a rule is hereby issued upon defendant to show why plaintiff s motion to compel defendant to respond to plaintiff s interrogatories and request for production of documents and tangible things should not be granted. This rule is returnable 2. 0 days from service. BY THE COURT: , ~ ." "." .,-- :~r}"I)::i:)CE Ui. '-. '_yo ,!:J 1i\RY o t 1-'1.p,:: 2 i'.ii II: ~18 '" 'r 'O'.."j "'.'UN"CV vt.J,1iidth(..tl!\J~j Cu i I I PENNSYLVANIA "-.' "-~ ."",-, ."'" ,-,' .. ~ " -~,~ -llIil;Ili.liii!lllii.J 1 ~,"",h,,'__ 'f~1;;.,1 ,~. ,--~~-, '" 0.- '-',,-,';'" "" , ,'-' - -,'~, ,- - -,,'- -' '-,-..~. ^. ",r--,-,-."';' :.,: J, , i ,. , .. ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYANL.SWARTZ, Defendant CIVIL ACTION PLAINTIFF'S MOTION TO COMPEL DISCOVERY DIRECTED TO DEFENDANT AND NOW, comes plaintiff, Arnold Transportation Services, Inc. ("ATS") by and through its attorneys, Keefer Wood Allen & Rahal, LLP, and requests this Honorable Court to compel defendant, Bryan L. Swartz ("Mr. Swartz") to answer the interrogatories and request for production of documents and tangible things propounded by A TS, averring as follows: 1. The subject litigation arises from a dispute concerning the sale of a 1993 Mack Tractor by ATS to Mr. Swartz under a purchase agreement dated November 17, 1997. 2. ATS commenced the subject action through the filing of a complaint on or about May 3,2000. Mr. Swartz filed his answer with new matter and counterclaim to ATS's complaint on or about July 27, 2000, and ATS subsequently filed its answer to Mr. Swartz's new matter and counterclaim on or about September 20, 2000. 3. With a cover letter dated December 20,2000, counsel for ATS served upon Mr. Swartz's attorney a set of interrogatories, a request for admissions, and a request for production of documents and tangible things. Answers were provided to the request for admissions on 2 ( r January 24, 2001, but Mr. Swartz's counsel requested an extension of time to respond to the interrogatories and request for production of documents. A true and correct copy of the letter dated January 22, 2001, is attached hereto as Exhibit "A" and incorporated herein by reference. True and correct copies of the interrogatories and request for production of documents are attached hereto as Exhibits "B" and "C," respectively and incorporated herein by reference. 4. On January 30, 2001, Mr. Swartz's counsel withdrew his appearance. A true and correct copy of the Praecipe to Withdrawal as Counsel dated January 30, 2001, is attached hereto as Exhibit "D" and incorporated herein by reference. Mr. Swartz's counsel advised that there was no replacement counsel and directed counsel for ATS to deal directly with Mr. Swartz. A true and correct copy of the letter dated January 30, 2001, is attached hereto as Exhibit "E" and incorporated herein by reference. 5. In a letter dated February 14, 2001, ATS directed Mr. Swartz to respond to ATS's discovery requests by February 23, 2001. A true and correct copy ofthe February 14, 2001 letter is attached hereto as Exhibit "F" and incorporated herein by reference. 6. After Mr. Swartz contacted counsel for ATS, a further extension was granted until March 7, 2001, to answer the outstanding discovery or a motion to compel would be filed. A true and correct copy ofthe letter dated February 28,2001, is attached hereto as Exhibit "G" and incorporated herein by reference. 7. Counsel for ATS has received no communication from Mr. Swartz or an attorney on his behalf, either written or verbal, in response to its February 28, 2001 letter. 8. In accordance with Pa. R.Civ.P. 4006(a)(2), Mr. Swartz's answers to ATS's interrogatories were to be served within thirty (30) days after service of said discovery. 3 .. >'.: , . 9. In accordance with Pa. R.Civ.P. 4009.12(a), Mr. Swartz's answers to ATS's request for production of documents and tangible things was to be served within thirty (30) days after service of said discovery request. 12. Mr. Swartz's failure to provide such discovery responses is in violation ofPa. , I I ! I I j I I I I I ! I , i I ! il ,j l i! ~ '1 I , j I I i 10. No formal or informal responses to ATS's outstanding discovery requests have been received from Mr. Swartz to date, nor has any correspondence been received from Mr. Swartz or his counsel explaining his failure to respond to said discovery requests. 11. ATS believes that Mr. Swartz should be required to respond fully and completely, and without objections, to ATS's interrogatories and request for production of documents and tangible things, as referenced above, pursuant to Pa. R.Civ.P. 4006 and 4009.12. R.Civ.P. 4006 and 4009.12 and is sanctionable under Pa. R.Civ.P. 4019. 13. Mr. Swartz did not object to ATS's discovery requests within the time period prescribed by the Pennsylvania Rules of Civil Procedure and, thus, has waived his right to state objections. See, Lane v. Hartford Accident and Indemnitv. 6 D.&C.4th 537 (C.P. Dauphin 1990). 14. Under Pa. R.Civ.P. 4019(a)(IO(I)(vii) and (viii), this Court may enter an appropriate order directing Mr. Swartz to respond to the outstanding interrogatories and request for production of documents and tangible things and produce the documents requested. 15. The information sought by ATS's discovery requests is and will continue to be necessary for A TS to prosecute this action. 4 .," r_ "__" "~_F", ".._",__0, - ,. -~',- ,. b-,<r..'_ ~ _r _, __ , _ ,~" _ _.' ."....1 , 16. Accordingly, AIS requests that this Court enter a rule to show cause why Mr. Swartz should not respond fully, completely and without objections, to ATS's interrogatories and request for production of documents and tangible things and, as for the latter, to produce any and all responsive documents. WHEREFORE, AIS respectfully requests that this Honorable Court enter a rule compelling plaintiff to serve full and complete responses to A IS's interrogatories and request for production of documents and tangible things, without objection. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: March~, 2001 By /~.~~ 1.0.#31006 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. 5 "' .~ ^" -,,_" __,",_,..:<i"'_ <."''';;j r VERIFICATION The undersigned, Stephen L. Grose, hereby verifies and states that: I. He is one of the attorneys for plaintiff herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing motion are known to him and not exclusively to his client; 4. The facts set forth in the foregoing motion are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. c.s. S 4904, relating to unsworn falsification to authorities. ~L / tephen L. Grose Dated: March.JL, 2001 ."~~ OF COUNSEL F. LEE SHIPMAN JOSHUA D. LOCK ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERG (1961-1998) RONALD M. KATZMAN PAtiL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CROCENZI THOMAS J. WEBER ARNOLD B. KOGAN ROYCE L. MORRIS EVAN J. KLINE. III JOHN DELORENZO STEVEN E. GRUBB JOHN R. NINOSKY DAVID M. STECKEL ".,~; ~';""";_;""'-1\,;."";' ___'_'. .'I'i"";'~'~':io'\>~'<:-""-O"~'.-':';'~"'''.'',t",J.~~'~''''--.,,..""... _,c'~, -"~;;,:::-~;,''''''''':~'i'~?-=;~';~~~~;~_~;~~~',!:~",,'_"'" , (" c 320 MARKET STREET. STRAWBERRY SQUARE ,P.O. BOtx 1268 . HARRISBURG, PENNSYLVANIA 717.234.4161.717.234.6808 (FAK) 17108-1268 GOLDBERG, KATZMAN & SHIPMAN, P.C. January 22, 2001 TI ~<C~D"1!li ~ JAM 2 4 mol :;:) Stephen L Grose, Esquire Keefer Wood Nlen [', Rahal, UP 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 Re: Arnold Transportation v. Bl)'an L Swartz Dear Steve: Enclosed please find Mr. Swartz's response to your Request for Admissions. Please note that we are having difficulties obtaining some of the information you requested in your other discovery. Accordingly, we are asking for an extension of tirne to respond to these. Your cooperation in this matter is greatly appreciated. JD/vyc Enclosure 57708.1 S~c~cv~ Ohn Delorenzo CARLISLE OFFICE: 717.245.0597 . YORK OFFICE: 717.843.7912 " ."", -"'-"-';"-'''-.''-' -"""""-;, CC~fY ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CNIL TERM . DRY AN L. SWARTZ, Defendant CNIL ACTION PLAINTIFFS' INTERROGATORIES DIRECTED TO DEFENDANT TO: Bryan 1. Swartz and John DeLorenzo, Esquire, his counsel PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R. Civ. P. 4005 and 4006, as amended, to serve upon the undersigned your answers and objections, if any, in writing and under oath to the following interrogatories within thirty (30) days after service upon your counsel. The answers and objections shall be inserted in the space provided following each interrogatory. If there is insufficient space to respond to an interrogatory, the remainder of the response shall follow on a supplemental sheet. These interrogatories shall be deemed continuing in nature, in accordance with the provisions ofPa. R. Civ. P. 4007.4, as amended. Ifbetween the time of filing your original answers to these interrogatories and the time you or anyone acting on your behalflearns the identity or location of additional persons having knowledge of discoverable facts or the identity of persons expected to be called as witnesses at trial and not already disclosed in your answers, or if you or an expert witness obtain information upon the basis of which you or he knows that an , .' < ,~'" ~ ~, ~ -_--_c. - ,-..,.::.,.~~:;.it~\""::; . ~ ., answer, though correct when made, is no longer true, then you shall promptly supplement your original answers, under oath, to include information thereafter acquired and promptly furnish the same as supplemental answers to the undersigned. DEFINITIONS: A. The term "person," as used herein, means any natural person, partnership, corporation, or other business entity and all present and former officers, directors, agents, employees, attorneys, and others acting or purporting to act on behalf of such natural person, partnership, corporation, or other business entity. B. The term "document," as used herein, means the original and all copies of any written, printed, typed, or other graphic matter of any kind or nature and any other tangible thing in your custody or control, including but not limited to: 1. All contracts, agreements, letter agreements, representations, warranties, certificates, opinions and invoices; 2. All letters or other forms of correspondence or communication, including envelopes and notes, telegrams, cables, telex messages, telexes and messages, including reports, notes, notations, and memoranda of or relating to telephone conversations or conferences; 3. All memoranda, reports, test results, financial statements or reports, notes, scripts, transcripts, tabulations, studies, analyses, evaluations, projections, workpapers, corporate records or copies thereof, expressions or statements of policy, lists, 2 ~. _:".:::::"f.;'~;~~;\' : -'-'^"-"'-,I I 'I i I , I i , I , I il , , 'I I I 'I II :1 I I I 'I 'I ';1 ','1,,1 !: ji :1 I', 'I !I I r~ II i,i I I I I :11 f I' '~ questionnaires, surveys, charts, graphs, summaries, extracts, statistical statements or records, compilations and opinions or reports of consultants; 4. All desk calendars, appointment books, and diaries; 5. All minutes, records, or transcripts of meetings and conferences and lists of persons attending meetings or conferences; 6. All reports and summaries of interviews or negotiations; 7. All books, articles, press releases, magazines, newspapers, booklets, brochures, pamphlets, circulars, bulletins, notices, instructions, and manuals; 8. All motion pictures and photographs (whether developed or undeveloped), tape recordings, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs, and other data compilations from which information can be obtained; and 9. Drafts of any documents, revisions of any draft documents, and original or preliminary notes. c. The term "communication," as used herein, means all statements, admissions, denials, inquiries, discussion, conversations, negotiations, agreements, contracts, understandings, meetings, telephone conversations, letters, correspondence, notes, telegrams, telexes, advertisements, or any other form of written or verbal intercourse. D. The term "identify," when used with respect to a document, means to state the date, author, addressee, type of document ~ "letter"); to identify its last known custodian and 3 ., '1 , _.'r.~ - .0,-, ::', ,", ~'"." , ~,'~',~ ., location; and to state the exhibit number of the document if it has been marked during the course of a court proceeding. E. The term "identify," when used with respect to an individual, means to give the person's full name, all known aliases, present or last known business and home addresses and telephone numbers, and present position or business affiliation. F. The term "identify," when used with respect to any other "person," means to give the person's official, legal, and formal name or the name under which the person acts or conducts business, the address and telephone number of the person's place of business, professional, commerce, or home, and the identity of the person's principal or chief executive officer or person who occupies the position most closely analogous to a chief executive. G. The term "relate(s) to," as used herein, means constitute(s), refer(s) to, reflect(s), concern(s), pertain(s) to, or in any way logically or factually connect(s) with the matter described in the interrogatory. H. "You" and "your" refer to defendant, and also to his attorneys, agents, representatives, and anyone else acting on defendant's behalf, unless otherwise indicated. 1 "Truck" means the 1993 Mack Tractor that plaintiff sold to defendant under agreement dated November 17, 1997. 4 ~:~:~,~~~~~~;~~ ~~"~~~'~i'.;"~ "",,-,;;~~tJ":_.~_':'::~:_I~~'~'.[~~'~ ~~'~:~~-'~:N;'~.~':' - ',,- '-00 ~. Interrol!atories 1. Provide each and every fact upon which you base your statement in paragraph 12 of the new matter and counterclaim that Arnold Transportation Services, Inc. ("ATS") refused to give you or your drivers sufficient mileage to make employment with ATS profitable. 5 J__ , _e; -- , '-h ,_,,,,,,,,,-,,,-__;:, - _w .....,__;..,,'~-~.... :. "':.-':;~:"(;::;~~t;jfJ'l;~'~tlr4ti~U-':;;.."'"'''-,'~:~'~'-:c..~,-;- - '. , 2. What amount of mileage was needed to make employment with ATS profitable and how and when was that information conveyed to ATS. 3. Please identify any person who has knowledge of the facts set forth in the new matter and counterclaim, providing their name, address and telephone number, as well as a brief summary of the testimony they would give ifcaUed as a witness. 6 . . ',"~._,,~-.-.~_. """""._~,-,.-,...." ~''''',- -'''''''> '''''-,;" -.. ~,'". ,,-...;,'.-~.,"> .."<..-,~,_.",, _" __"_.._~_...."_-_.._.._~.,,.,...._..~~..,....,.:-- < '''-''':,1,..., ~":'''''':'''-':-"".".,'' 4. Please identify any expert witness you intend to use at trial. S. Please identify any exhibits you iIlltend to use at trial. 6. When did Mr. Swartz have a discussion with Mr. Gregerson regarding the Truck, wherein Mr. Gregerson indicated that if Mr. Swartz ended the conversation immediately that ATS would drop the matter. 7 . ":,,..'"~ .""'"'~~~~""'.~~~;~~-.~ . '- -:-.., e"'" ~~{-ihi- -.; ~.~;" 1 ".'.' "TIC. .......HlfJ!~l.r., .........;";.",=.u.".,.,,::.,..,,,,;.,...". . .'"" '1 " -, 7. What disparaging comments were made by Mr. Gregerson about defendant and his business practices as referred to in paragraph 18 of the new matter and counterclaim. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: December ~ , 2000 By ~cK:~ gteph L. Grose !.D. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg, P A 171 08-1963 (717) 255-8052 Attorneys for Plaintiff 8 ~ ' -' ,- _~~.:'-~~_;~-~~_:~.'.'__~~_~;~:~;;-;~~'~~"~"::- - I' '\~;: ---- '."' I ! CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon cOWlSel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: John DeLorenzo, Esquire Goldberg, Katzman & Shipman, PC 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, P A 171 08-1268 KEEFER WOOD ALLEN & RAHAL, LLP By &C" df? A SteP en . Grose Dated: December ~, 2000 .~~ ~.~, i" '>' ' . .' '.-..:::':~","'; -. C(Q)~Y ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION PLAINTIFFS' REOUEST FOR PRODUCTION OF DOCUMEN1'S AND TANGIBLE TmNGS DIRECTED TO DEFENDANT TO: Bryan 1. Swartz and John DeLorenzo, Esquire, his cOlmsel THIS IS A REQUEST FOR PRODUCTION OF DOCUMENTS AND TANGffiLE ITEMS. You must respond in a timely and appropriate manner, pursuant to the Pennsylvania Rules ofCiviI Procedure, as follows: RULE 4009.12 ANSWER TO REQUEST UPON A PARTY FOR PRODUCTION OF DOCUMENTS AND THINGS (a) The party upon whom the request is served shall within thirtY (30) davs after the service of the request (I) serve an answer including objections to each numbered paragraph in the request, and (2) oroduce or make available to the party submitting the request those documents and thinl?S described in the request to which there is no objection. (i) Where the documents may be identified only after review of a larger group of documents, and the burden of identifying the documents would be substantially the same for the party serving the request as for the party served, the ~L --., ...... ..;..:- --~ .' '~: party served may afford the party serving the request reasonable opportunity to identify the documents, to examine or inspect them and to obtain copies. (b) The answer shall be in the form of a oaragraoh-bv-oaral!raph resoonse which shall . (I) identify all documents or things produced or made available; (2) identify all documents or thine:s to oroduced or made available because ofthe obiection that they are not within the scope of permissible discovery under Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c). Documents or thine:s not oroduced shall be identified with reasonable particularity together with the basis for non-production; (3) specify a larger group of documents or things from which the documents or things to be produced or made available may be identified as provided by subdivision (a)(2)(i); (4) object to the request on the grounds set forth in Rule 4022 (a), (b), and (e) or on the other ground that the request does not meet the requirements of Rule 4009.11; or (5) state that after reasonable investie:ation. it has been determined that there are no documents resoonsive to the request. (c) The answer shall be signed and verified by the party making it and signed also by the attorney making an objection if one is set forth. (d) If a request is reasonably susceptible to one construction under which documents sought to be produced are within the scope of the request and another construction under which the documents are outside the scope of the request, the answering party shall either produce the documents or identify with reasonable particularity the documents not produced together with the basis for non-production. (Emphasis supplied.) This request for production shall be deemed continuing in nature, in accordance with the provisions of Pa. R. Civ. P. 4007.4, as amended. 2 . ~ ~ '"~ , '~.c ,'",: ~ ! You are requested to produce copies of the documents described below to counsel for plaintiff. If the documents to be produced are voluminous, plaintiff requests that defendant produce the documents hereinafter described and permit plaintiff, through its attorneys, to inspect and copy such of them as they may desire, at the offices of plaintiff's attorneys located at 4th Floor, 210 Walnut Street, Harrisburg, Pennsylvania. Plaintiffs attorneys will be responsible for these documents as long as they are in their possession. Copying will be done at plaintiff's expense and the documents will be promptly returned after copying has been completed. This request is intended to cover all documents in the possession, custody and control of defendant, his agents, employees, and attorneys and is considered to be continuing, pursuant to Pa. R. Civ. P. 4007.4. Defendant's response to the requests should be modified or supplemented as defendant, and/or his attorneys, obtains further or additional documents up to the time of trial. Definitions and Instructions A. The term "document," as used herein, means the original and all copies of any written, printed, typed, or other graphic matter of any kind or nature and any other tangible thing in your custody or control, including but not limited to: I. All contracts, agreements, letter agreements, representations, warranties, certificates, and opinions; 2. All letters or other forms of correspondence or communication, including envelopes and notes, telegrams, cables, telex messages, telexes and messages, including. reports, notes, notations, and memoranda of or relating to telephone conversations or conferences; 3 3. All memoranda, reports, test results, financial statements or reports, notes, scripts, transcripts, tabulations, studies, analyses, evaluations, projections, workpapers, corporate records or copies thereof, expressions or statements of policy, lists, questionnaires, surveys, charts, graphs, summaries, extracts, statistical statements or records, compilations and opinions or reports of consultants; 4. All desk calendars, appointment books, and diaries; 5. All minute, records, or transcripts of meetings and conferences and lists of persons attending meetings or conferences; 6. All reports and summaries of interviews or negotiations; 7. All books, articles, press releases, magazines, newspapers, booklets, brochures, pamphlets, circulars, bulletins, notices, instructions, and manuals; 8. All motion pictures and photographs (whether developed or undeveloped), tape recordings, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs, and other data compilations from which information can be obtained; and 9. Drafts of any documents, revisions of any draft document, and original or preliminary notes. B. If you claim that the subject matter of a document is privileged, you need not set forth the brief statement of the subject matter of the document called for above. You shall, however, otherwise "identify" such document and shall state each ground on which you claim that such document is privileged. 4 fit ~~~ - --,.~ ,--'-, - i ,-, _~C__~~:~ I . .--.~. ...--.";,:;.::',':-'.':.. - ....."'. --,'.._, .,~.~'....'.-.... ..... -." .',_. "d "'_"...' . c. "You" and "your" refer to defendant, and also to his attorneys, agents, representatives, and anyone else acting on defendant's behalf, unless otherwise indicated. E. "Identify" means to provide the title, subject matter and date, if a document and name, address, title and phone number, if an individual or business entity. F. "Truck" means the 1993 Mack Tractor that plaintiff sold to defendant under agreement dated November 17, 1997. 5 .. l, ~ "' ,~ - ;",-,',-- Requested Documents 1. With regard to paragraph 12 of the new matter and counterclaim, please provide any documentation to support your position that you requested additional mileage and it was refused by Arnold Transportation Services, Inc. ("ATS"). 2. Any document that supports the position in paragraph IS of the new matter and counterclaim relative to any contact with Mr. Mockermer and any statements made by Mr. Mockermer regarding withholding of payments for the purchase of the Truck. 6 :....,~.~.,.--:~c,...,-~,.~~~'Q;#i;_.-:,>_';,;: - 3. Any documentation that supports the averments of paragraph 21 of the new matter and counterclaim that indicates that you notified ATS that Mr. Faringer would be coming to drive the Truck. 4. Any document that supports the averments in paragraph 22 of the new matter and counterclaim that Mr. Gregerson stated if Mr. Swartz ended the conversation immediately that ATS would drop the matter. 7 5. Any document that would support the allegations contained in paragraph 23 of the new matter and counterclaim that would confirm that any employee of ATS that was contacted by you regarding your obtaining the Truck. 6. Any and all documents that support your contentions in paragraph 31 of the new matter and counterclaim that A TS made repeated assurances to you that the Truck would be returned to you. 8 ,,-" , . - . -~ -'. ,- -< - --~. -""-.-" ..!::,;s.;;:;~~;;;;;;~.;;;:'~,.,:"". 'I 7. Any and all documents that support the contentions in paragraphs 34 and 35 of the new matter and counterclaim that reflect any alleged damages you suffered caused by the loss of the use of the Truck and/or the income it generated. 8. Any document that describes or explains the "improper benefit" that was purportedly conferred upon ATS to your detriment, as stated in paragraph 37 of the new matter and counterclaim. 9 "-,-...!.-,~ ;.....~;,.'""'.,~.?_n ,. ..' _0,.' ",,;...~<i- ..;,:...". " .,_;,;,,_, ,-. --=~':~- ~.:..-;:;;:,_'_~~'o::...;:, ';. ' , ;.1 I 9. Any document identified in the interrogatories served herewith. 10. Any statement concerning the action or its subject matter previously made by you or ATS or a witness, in accordance with Pa. R.Civ.P. 4003.4. 10 i~ .,", . -,',. ~." ...~, "-',..- . '"" .'-:. .."...~ ~.-,:.;:o;;,,~~~,~;.~-~~:,~~;~;~;~~;1.~~\4~-i:~'~;'~:~i;:';l:!.:;":,:;"f,"--" -,," II. Copies of any report of any expert witness retained by you for use at trial. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: December ~ ' 2000 By J-J-:/~ df J! ~ - ~ L. a;ose . 10. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg, P A 171 08-1963 (717) 255-8052 Attorneys for Plaintiff 11 ., 0__ , ',:,.'..,~,. '';;, ,~-',"; ~,.~ "~ - - , "'-', - - - - - - - " ....,""''''''~.'~i'':ti,.;,:;C~.. CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: john DeLorenzo, Esquire Goldberg, Katzman & Shipman, PC 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 KEEFER WOOD ALLEN & RAHAL, LLP By ~A.,~L S~h . Grose Dated: December do, 2000 ~ '0 "..'. , ...,.'..-,.,-,-.. -. --" f.......l!!! llir" "iI!I~'~ .u,. ". ""~''r"..L-;. ._U~ "" UJ(L~.:11, p'n,~\";,,'~"":iK'. JoIm DoLonmo, Eoquile AIIomoyLD.No.72190 GOLDBERG, KATZMAN "SHIPMAN, P.c. 320__ P.O. Box 1268 HanUburg, PA 17108-1268 Telephooo: (717) 234-4161 ~ foe the DefcllIdant ARNOLD TRANSPORTATION SERVICES INC., Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-2729 Civil Term v. : BRYAN L SWARTZ, Defendant. : CIVIL ACTION - LAW . . : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly withdraw the appearance of Goldberg, Katzman & Shipman, P.C. and John DeLorenzo, Esquire, as counsel for Bryan L. Swartz, Defendant in the above-captioned action. GOLDBERG, KATZMAN & SHIPMAN, P.C. - 2-- JOHN DeLORENZO, ESQUIRE 320 Market Street Post Office Box 1268 Harrisburg, PA 17108-1268 Supreme Court 10 #72190 DATE: 51828.1 ( ~Ol~( - OF COUNSEL F. LEE SHIPMAN JOSHUA D. LOCK ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERG (1961-1998) RONALD M. KATZMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CROCENZI THOMAS J. WEBER ARNOLD B. KOGAN ROYCE L. MORRIS EVAN J. KLINE. III JOHN DELoRENZO STEVEN E. GRUBB JOHN R. NINOSKY DAVID M. STECKEL - 320 MARKET CRBET . STRAWBERRY SgUARE C, ,P.O. B?x 1268 . HARRISBURG. PENNSYLVANIA 17108-1268 717.234.4161' 717.234.6808 (FAX) GOLDBERG, KATZMAN 60 SHIPMAN, P.C. January 30, 2001 Stephen L. Grose, Esquire Keefer, Wood, Allen & Rahal 210 Walnut Street P. O. Box 11963 Harrisburg, P A 171 08-1963 111 ".r Hl . ~1- J .ii- JJ ~' .;~l><L"~e-:_ =,. -,- o BCEDVE n JAN 3 1 ZOOt U Re: Arnold Transportation Services v. Swartz Dear Stephen: Enclosed please find our Praecipe to withdraw as counsel in the above matter. Mr. Swartz has not informed me as to a replacement counsel; therefore, I suggest that all future correspondence be sent to him directly. Since , d::hn DoLo,,"", Thank you for your attention to this matter. JD/vyc Enclosure 45347.4 cc: Bryan Swartz CARLISLE OFFICE: 717.245.0597 . YORK OFFICE: 717.843.7912 ~" _l. . l'j I I I r (,- 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 February 14,2001 Bryan L. Swartz Box 77 Plainfield, P A 17081 Re: Arnold Transportation Services, Inc. v. Bryan L. Swartz Cumberland County CCP No. 00-2729 Civil Term Dear Mr. Swartz: By letter dated January 30,2001, your former counsel, John DeLorenzo, provided me with a copy of his praecipe to withdrawal as your counsel in this matter. He also provided me with a letter advising that he was not informed as to a replacement counsel and therefore, all future correspondence should be sent directly to you. Please advise if you have retained replacement counsel. If so, I will deal directly with them. If not, I remind you that the answers to the interrogatories and request for production of documents are now substantially overdue. If you do not provide responses and produce these documents by February 23,2001, or make other arrangements, I will be forced to file a motion to compel with the court. Please act accordingly. Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen L. Grose SLG/kdr bee: Michael J. Gregerson . '"'" ~- , r- ! -' "-- ( , 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 February 28, 2001 Bryan L. Swartz Box 77 Plainfield, P A 17081 Re: Arnold Transportation Services, Inc. v. Bryan L. Swartz Cumberland County CCP No. 00-2729 Civil Term Dear Mr. Swartz: You advised me last week that you would have your new counsel contact me by week's end. That did not occur, nor did it occur this week. Please be advised that if! do not hear from your new counselor receive a response from you regarding the outstanding discovery by March 7, 2001, I will file a motion to compel and for sanctions with the court. Please act accordingly. Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen L. Grose SLG/kdr bee: Michael J. Gregerson - ,_ ''" .- "d.-L~ ._ < '--" . ~ "I I I I I I , CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certifY that I have served the foregoing paper upon defendant this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Bryan L. Swartz Box 77 Plainfield, P A 17081 KEEFER WOOD ALLEN & RAHAL, LLP By ~o<'L Stfphe L. Grose Dated: March --1/;., 2001 ;,,;:;; I. . -', ..;~.,. ";;'" . 1lU;l ",",,<':'1": ," - no"~ J~!J:ffill<iL, '_, _~, ,~, ,,', ,..~~..:~~iI' ">,, , ".;, ,. ~~'" ; ; . ;.,', ~ =< ,. \_~J ._.....l o -n :'~:n f1',_ '-1 .';)1 1 . ~:; , ., " ! .< . , , ~: ~ n t~~~!. H-'~ (''--'')1''- TO Oce LUCL.- -' . CC~ ,. (. ! j Ii , il 'i . ilPR 2 0 200tfJ ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM (Judge Oler) BRYAN L. SWARTZ, Defendant CIVIL ACTION ORDER AND NOW, this l~l.l. day of Ai": I ,2001, the Rule to Show Cause issued on March 21,2001, is made absolute. Defendant is hereby directed to fully and completely respond to plaintiff s request for production of documents and interrogatories in accordance with Pa. R.C.P. 4009.12 and 4006(a)(2), respectively, within twenty (20) days of the date of this order. Failure to provide responses, and not objections, within that time frame will subject the defendant to such sanctions as the Court may deem appropriate, including the payment of reasonable expenses and attorney's fees incurred in obtaining this order of compliance, or the entry of judgment against the defendant, if deemed appropriate. .- C? BY THE COURT: >- z 5:;;; Q~ ()::1 .,---:- :': /Q >'. ,..~ '~..~-: tl?g~ ~~ ~,"- J. , ,:: (:) ,j I u '. . .- ~" - , ~- , ,~ - --"""''''''<".''-,'.<rl' ,~ e _'_", '~'_' ~_.,,' ,_" .... , II Jl_)Jf M Ullillf U '"m:lf~ff:t.. I " ""I '" "i -;:.. let ]- . ,"~ ,~~.-~,'''I ."' '-"-.". ":"-1 Defendant CNIL ACTION I I ~ " ] I i ! I, IJ 1,1 '1 I I 1 j " j J 'I , " ~ :,1 \ Ii , 1 1 j ! 1 1 I ,~ ! " j j " ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CNIL TERM (Judge Oler) BRYANL. SWARTZ, MOTION TO MAKE RULE ABSOLUTE AND FOR SANCTIONS AND NOW, comes the plaintiff, Arnold Transportation Services, Inc. ("ATS") by and through its counsel, Keefer Wood Allen & Rahal, LLP, and files this motion to make the Rule to Show Cause issued by the Court on March 21,2001 absolute, averring as follows: 1. Interrogatories and requests for production of documents were served on counsel for Mr. Swartz on December 20, 2000, along with a request for admissions. 2. Responses were filed to the request for admissions on January 24, 2001, but Mr. Swartz's counsel requested an extension of time to respond to the interrogatories and request for production of documents. 3. On January 30, 2001, Mr. Swartz's counsel withdrew his appearance. 4. In a letter dated February 14, 2001, ATS directed Mr. Swartz to respond to its discovery requests by February 23, 2001, but granted a further extension until March 7, 2001, when Mr. Swartz advised counsel for ATS that he would have new counsel. - =m,-'=&_~" ___,"_ <_ 0,.,'-' <__'0 _,,".,~-_,,_.' 1-';'~"?,'- ., .,,~ -,,,~ie,,",.,",-.~,,,_ 'M"-;,_-;-'i",-,>;-'r:._.".~,V~.S'O: __,_j:,_'; ."'_1 " 5. Since that time ATS has had no communications with Mr. Swartz, nor has ATS been advised that he has obtained new counsel. 6. On March 19,2001, ATS filed a motion to compel discovery directed to defendant and requested that the Court issue a rule to show cause why A TS' s motion to compel should not be granted. 7. On March 21, 200 I, this Court, by order signed by the Honorable 1. Wesley Oler, Jr., issued a Rule to Show Cause upon Mr. Swartz to show cause why ATS's motion to compel should not be granted. 8. A true and correct copy of the order was sent by the Court to Mr. Swartz on March 22, 2001, and a courtesy copy was sent to Mr. Swartz by ATS's counsel under cover letter dated March 23,2001. A true and correct copy of the coverletter is attached hereto as Exhibit "A" and incorporated herein by reference. 9. Service is presumed to have been made on Mr. Swartz no later than March 24, 200 I, requiring a response by April 13, 2001. 2 ... "~-..~-_"'. _'~-~O .",-.~..;;"~ -.__. .. ^"_ ,'". . -',_.-.,.y._'- Dated: April-'L 2001 By ~d? /J- /STE HEN L. GROSE 10. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg,PA 17108-1963 (717) 255-8052 I ~ ii ij !I l II jil II " j ~ iJ :1 ~ II ~ I ~ ~ Ii 11 il II ~ !I " II :i ~ 10. No response has been filed by Mr. Swartz and ATS now requests that the Rule to Show Cause be made absolute and if Mr. Swartz fails to comply with this order, that severe sanctions be imposed in accordance with Pa. R.C.P. 4019, as more fully set forth in the attached order. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Attorneys for Plaintiff, Arnold Transportation Services, Inc. 3 ~~" -,- ,;.=" ,~~,_. p--,---- -" -,..:-_,.,,,-~'- . ",' ., - }'-',;:-;,f-.,_-~, _. ,,,':,,,,- ~ "' . .-'~!1 " .' VERIFICATION d I,! ," ,,' I il ~ , ~ )] I' l ~ , :1 \1 ~ ~ ! il i] I ~ II ~ ~ i i ,I l Ii I The undersigned, Stephen L. Grose, hereby verifies and states that: 1. He is one of the attorneys for plaintiff herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing motion are known to him and not exclusively to his client; 4. The facts set forth in the foregoing motion are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. c.s. ~ 4904, relating to unsworn falsification to authorities. ~c4J~ Stephen L. Grose Dated: April /(, , 2001 .' - ~'-" _"_, _. r~ '''''~~' '0 --;;,-.-- ""'"", v '. '""-'--'"~ CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon defendant this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Bryan L. Swartz Box 77 Plainfield, P A 17081 Dated: April -11-,2001 ~" ij ! KEEFER WOOD ALLEN & RAHAL, LLP \ r , , I ~ ,] 'I ~ By 1*..#._1 a5{. JJ... - ~ Grose ,\,,'~ ."'u" -",..~". -'f<"~ ,<. _"~""",F ,~ "_ ,'~" 1[- ..:-': ..~ ";, ~ "' ,~ " C~ ~; '. Cr .} -" '. 1_C:'J ~,.' ~, . , ., f-....:- .-'.1 -~ " ~ @ ~ Vi HEATH L. ALLEN N_ DAVID RAHAL CHARLES W_ RUBENDALL II ROBERT L WELDON EUGENE E. PEPIN SKY, JR. JOHN H_ ENOS III GARY E_ FRENCH DONNA S. WELDON BRADFORD DORRANCE JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS DONALD M. LEWIS III BRIDGET M. WHITLEY CRAIG A. L.DNGYEAA JOHN A. FEICHTEL ANN MCGEE CARBON ELIZABETH J. GOLDSTEIN BARBARA A. GALL .~ _,-c~-,---~. .~~ .~,- .-,' v,tv.."", c-." ",,-,. ." ,. .c_ ''-''. _oJ,",',""" __ ~''''~ _" . '. ~".I . KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108.1963 PHONE (717) 255.8000 FAX (717) 255-8050 ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C. HARRY WEST SHORE OFFICE: 415 FALLOWFIELD ROAD CAMP HILL, PA 17011 (717) 612-5800 EIN No, 23~0716135 WRITEA'S DIRECT DIAL: 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 October 17, 2001 Richard J. Pierce Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Arnold Transportation Services, Inc. v. Bryan L. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Pierce: Enclosed please find a copy of the bankruptcy petition of Bryan L. Swartz, which was filed on October 10, 2001. I was just provided with a copy of this notice today. Because of the filing of a petition in bankruptcy, all matters are automatically stayed. Accordingly, I request that you take no further action on ATS's motion to make the rule absolute, which I filed previously in the above matter. By copy of this letter, I am advising Judge Oler of the same. If either you or Judge Oler need additional information, please do not hesitate to contact Lite undersigned at the direct dial number listed above. Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: JJ.#..J ~ ~~~:e SLG/kdr Enclosure j cc: Hon. J. Wesley Oler, Jr. (wi encl.) Daniel J. Mazaheri, Esquire (w/o encl.) {JCI I (1 , 9' <1../(./7 , '..i!~~ -1,1 - .1' ~-~ ....'.--~ . United States Bankruptcy Court Middl~ District or Penns)'''.:.n;a IaJ002 \..'>'" '4.J) Voluntary Petition Name of Debror (if jndh.id~ enter Loas\. firn. Middle); SWARTZ. BRYAN L. hlJ Olbe, Nomes \lSCd ",. the Deblo, i. the I.st 6 ".a" (ineJude married. maid~ :and Inde numelli): . Soc:. See.. Tax lD. No. (if mOrt: lh.:tn UUI;, lilatc: all); 196<;2-2525 Street Address of Dc::btor (No. &:. Slrect. Cif"~ SUne & lip Code): 103 EAST MAIN STREET . PLAINFIELD. PA 170S1 Count)' of Rcsidcn" or of the I'rio.;pa! Pia.. of !lu.i..oo: CUM[)ERLAND Mailing Addre~s of Debtur (if differ.:nl frr.'m lftreet address); P.O. BOX 77 PLAINFIELD, PA 17081 Lucation ('If PnM'ipul Anc:ts o( Husincu OeMl1f (if di!TC'n:'1l1 from stre~l address aOOn'): Nom. <If Joi.r Deb"', (Spa...) (Lo... Fi,.,L Middl.): SWARTZ, EVELYN M. I Othe, Nom.. used by the Joi.. D.blo, in rhc los' 6 ,....... (include m:ur1cd. m:tiden. and Irade names): . s~. Sc:c./T.x J.D. No. (it more lhan onc. :o&atc all); 177-42.(1188 Strcc1 Address of Joint Dccp,.or (No. 4: Strc(:l, City. Stato &:. Zip Codc)~ 103 EAST MAIN STREET PLAINFIELD. PA 17081 CaunT}' nf Rel'ideTICe ()r nf the: Pri..i",,1 PIa"" Df Busincso: CUMBERLAND Mailin! Address or Joint Debtor (if dirrer~nl from street addrn:o): P:O. BOX 77 PLAINFIELD, PA 17081 ~nronn arion Rt'garding. th, DC't.'9T (Ch<<k Ebt AppUcabl" Bol~) \'~hUe' (Check an~ arplicable QQ~) . DeblOT has }xcn oomi,iled Of has had 8 re5idencC"_ principal placc .)f business. or principal Issets in this Dislrict for 180 da~.:'j immcdlal~Jy rrcccdins the date of thi~ J"Ctitinn \'\f (c'Ir 8 l(ln~c.r fl3" fir ~u,=h I RO .u:-.~ than in ony tither District, o There is a ban~rupt'~. G.J~ concerning d.:blClr's affiliate. general p:n1ncr. or pannenhip pendin.g in lhis Di5triet_~. T~.p. of O.b.or (Che,k aU 00'" tb3' appl~.) . Indi\"idu31(!'l) 0 Railroad o CU'l'Ur~lj,m 0 St,'c1;br~.k,..r o P.arlncf~hip 0 C('mm(~il:-' I:;rt'k\:r o Olher :'\afUrC' n( nrht.<t (Cr.cC'k ('ne box) . C(lnf'lln'lI:"1'..N~n..t;usinc."5 0 Bu!:ines.!i ChaprC'r ] 1 SmaU Bu~ihC'~S (Che..k 311 ~xes that .1pply) o Debtor is a small business:ls dctinc.i in J I U.$.C. S 101 o Dcbh.\r j~ imd ..:!t;l;b It' be cc.lnt'idcrcd Oil ~mall bu~incss under ) I U.S.C. 11121(0) (Oprianal) Chap1c.-r or Sn:tion of Bankrup1c:" Cod.. l'ndc.-.- WlIif:h Ihlt P"1itiun i~ FUt.d (Check nne hox) . ChaptC'r , D Cb3ptcr 11 0 Chapt~r 1.' o (';h:srter 9 0 (';h:sple:r 12 o Sec, 30..1 . C3~e 3nciIl.3I'). to i'r;ll'eign pn.Jccedjng Filing Flt'f {Check ('one: ro~) . hili FiliJ12 Fee :In.3chcd o Filin~ Fce- 1,(\ be roid in insuJ\mcn\s (AWliC>lblc: 10 ind;,-iO\I1.It (lnl~..) MU:-l "n1Jch si8ncd application for The CC'lUrf'~ c0r1li:idn3tinn CCl'ti~;nE- 1h31 the dcblor is unublc: 10 p:3;.' fee C'Xct:pt in ir:st.allments_ Rule 1006(0). See Offi,i.1 Form No.3. Stari~ticall.-\dmini:'itral'h'e Jnfo'rmarion (fstim~ICs (ml~.) o nCb~lIf c:o;tim:tlc:o; lhal funa" w1l1 be 3\.ail:a.b'e fnr di-l'tnbutinn In u"~c:;ured credilnrs. . Debtor estitn;11c::s 1h;11. :lftc:r :111)' e~empt Pl'opert>. is c:x~luded :lnd od.,)ini$lr~li\'e expenses paid. Ihere win be no funds ~\...ihlble for distributioo 10 ullseeured crl;"ilors. THI! S~Al::E I~ FQi.cDuR'I' 1,.'U ONLY :""_"1 ;~ '.. - c:: CO> :.'.J co ~ :;.:..J \~~ ':~:!. ., -. C. ..... c ., r _. .::, -, ~ ~, t-) :0 -: ~ --, .. 0' ;::.::; - Estim<l.l('d Number of Creditors t.!5 ~~v 5C-!?5' 1~i;-le9 :?OO.9!?9 1000-ov('f 0 . 0 0 0 0 I::~tim:Jled Assets . SOlO S~(I,:!O~ 10 '5'0(1.00, to $~O:; 0:1' :0 !t C!~O.OO110 1~~ D!JQ 0'110 ~50 000 oc, Tp MO"'1l'l11'l s~o,ooo i100.0:;O S600,OOO i1 ~.III'Otl StDn'lrl1l1:11'1 S:'O 11\11110,1 S,Or; mllIJl:1n 5100 mlrllQn . 0 0 0 0 0 0 0 Estil1Hlh:d Debts SOlo S5-C,OO"o S,00,01;l1 to SS:'O,OO110 $1.000.00110 S10.000,Ol1 to $!lO,DOO,C;1110 MQretl':an 'S~O,oOO $11;11;1 POD $SOO,OOO 5t 1"111110" StOmllhon I!lD "lIllIon $.'00 mtlllO" $100 mIllion 0 0 . 0 0 0 0 0 .'laft1~ n( l)ebror(jI;): SWARTZ. BRYAN L. SWARTZ. EVELYN M. rrior Bankrupt~' Ca~t' Filt'd "'iddn I..:u.t 6 Y':.ar$ (Jf more rhan One. l1n.1ch addj1ion~ .sheer) ';4$C' Number. D31e: riled: L.~I' _J__ '1- LO/~7/2001 13:44 FAX ,,..,.. 1) (';'''7) .tan Petition I1g.: nJ~SI he crmrplt'/l!d alldfil~'J", &"w"y "a.'~'J .- ~8tion I hen: filed: - None - Ptnding Bank",ptcy Cast Filnl Name of Debtor: None- - 141003 H)R 'f Rl .'3SC: b~' ah,' Spoun, Par1'nC'r. or Ar.iliatC' of rhis Debtor (If mClrc: than onc. utlDch additional sheel) Case Number: Date Filed; District: Si;narurr(s) of Dt'btor(s) (lndhiduaUJoint) I d~clilre IIndl;r pcn~t). of perjl.lr')' thai lhl: infl)rmati~'n ~rl\\'idcd in this. petitioD is tl'\1C and correct lIt petitioner is aD indh'idu.d whose debts ~rc prim~rily consumer debrs and has i;hoscn 10 Lile under chap1er 71 J ;l,m au'are that 1 may procetd under chapler 7.11_ 12_ \Ir 13 \Ifaille- 11. Ullil~d St...IC'~ Clldc, understand the relief :1\'3iI3blc undcr each sucb chapter. and ehoose to proceed under Clla.plcr 7. I request refiefin :1ccordancC' with the: ch3ptcr of title: II, L1nitcd Stales Code. specified in this 'lion. X "2 Telephune Num~r (If not rcprcsentcJ b} ::1l1~mlc~) rn,,"~. X Signature Anomc}' for Denlar(!.) OANIEL J. MAZAHERI #85561 Prilltcd }.'al1le (I( An(lm~y ii)r Dcbt,lr(~) BURKE & HESS Firm }1am~ 951 ROHF<ERSTOWN F<OAD SUITE # 102 LANCASTER. PA 17601.1974 AJJrC'!t!) 717-~91.291 1 TdepIH'n~ Number I / In '1. C. I 0.,. I! exhibir A (Tv bI: CtUllph:led if debtur is n:quired hJ lib periloKlic repurl~ (c.!.. ionns lOK and 100) wilh the Securities :1nd E~c:h.::mg.e Commi:'isi~m .:;lUrslJ3rtt to Section J 3 or I SCd) of Ihc Securities E~.:'hans.c= Act of ! 930l ilnd is r~qucsting relicf under ch:1plCr J I) o Exhibit A is :Jtt3.eh~d and m3de :J. r::J.rt at' this retition. f~).hibit B (To ~ completl:d jf debtor is :m indi,.idual who:"e dc=h1S >lrt l,ri,"4ril~: CO;'l~UOler deb1f.) :, Ih~ <lttQrn~V for Ih~ IXtiti<.,ncr nam~d in Iht; foregoins pc:1iti<.,"_ dc:cI~rc: :h3[ I hue i~fonncd the petitioner th3llh~ or she} m:iY pro\:ccd under =h3ptCt 7. 1 J, 11. or 13 of" q: ] 1. United 5t.'\tes Code_ Oll'ld h3\'t ~:,,;pl:J.ine e 'del' C'::ach suc:, chapter. --- Dal= J~dati()nship: )uo,<; Si;:natur-cs: Si:rurure uf Drbtot (CotporationIParDlcrship) I decl3te under pen_ally of pc~u~ that the information provided in this ~ clitiun i:. lruc and curreel. and lh::ll I hsyc= been aulhNlzed !l~ filc Ihis r.~titil.'n (In behullllf the dchh1r. "t he debmr requests relite in aecordance with the chaph:r of title I J. Ut'lltcd Sl~tn C(lde, spc:(;itied in this petition. X Sis.naturc of Author1l'cJ Indi\ iJ.u::l1 Priotcd ~4111C {If AU1hClrl7Cd tndit'idutll Tide of AUlhori7.cd IndidJuol U;1IC Si~a.t'ur.t _of ~un-An..,rn"~' PC'titihn PrC'flarn I cCl'1lfy 11\':11 I :1nl :1 ~l'Ikl"Uptey pctitiort prepJ.fcr as dc-fincd in II U,S.C, SilO. that I "rcp~rc.;i Ihis document for compenstl.tlon. and th.3t , h3n~ pnwided the debt", \\ ilh :.I copy of thi~ do.:'umCllt Printed N3mc of f3ankruph:::Y Petition PrepareI' S..\cial $e~urit~ Number Address Nl.lm~-s: and St1ciul SCt:uril'\ num~r.i C.le all t1the'f' inJi\ iduals whu prcrar.:d or assisteJ in rr~~rin!: Ihis d('1~llm<:nI: If mnrt: thafl one pcrll.on pre-rared rhj!l document. :IM3Ch ;tdditionlll ~h&:cl':lo eOnfl,Jnllin~ 1(' the llpprc.1priale ~,mlo:ial f<.\rm (",\r each pen,vn. X Siz,n::J.turc C'lt B:J.nkrul't~Y Pc:titiol1 Preparer Date A bankruptcy pcliUon pre-Pilfer's failure to comply wid'! the pr.o\.'isions "'If Li!Je II Ilnd the Federal Rulc~ or Bankruptcy Procedure: ma~' r~sult intincsQrirnprisonmentorboth,11 V.S.C. ~ 110; tau.s_c, ~ 156. ., " '" ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION RULE TO SHOW CAUSE AND NOW, this I b t~ day of .; <' f U<l t J ,2001, a rule is hereby issued upon defendant to show cause why plaintiff's motion to compel defendant to attend the deposition scheduled for September 21,2001, at 9:30 a.m. at plaintiff's counsel's office and the plaintiff's motion for sanctions should not be granted. This rule is returnable 6' days from service. BY THE COURT: J. , l--'O\'\~}~::~\\'J d" <vII". ",r\'/ ",\\,\'-l t,\".,\ \ (\ ~\\O') v ,\ 6~S \'0 . \ \ c. , .\ \7.,0 .",) 9,\) . \\' , ,~\~~)\~~(~~l.~S\\\ "",hI, ,.,V,v l'u~",. j.,")V~ ii1 ~ ,0'" >' ~r",?, ",,,,: ",.-, ","""""'"--""':"-~ ' - '~--, ",~ "',. v _ ,"''''''-~ ~~ . , 'II' 11 rnl~i\\[C - <:l ~cf r;;j.. '1 } , '" ~<"'_'\-" ':'-1 ,,' .. ",-~" ~ ,;"~-, I" ~< '"-. __~___.- c.-.,_,_ ~ .0- - _ ~. u ..' """" ~- - ,.- ---~- ,',- :--.- ,..-.';', 4' . ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS AND NOW, comes plaintiff, Arnold Transportation Services, Inc. ("ATS") by and through its attorneys, Keefer Wood Allen & Rahal,!LP, and files this motion to compel and for sanctions, averring as follows: 1. The complaint in this matter was filed on May 3, 2000, with the answer being filed on July 27,2000. 2. After initial settlement discussions proved futile, plaintiff served interrogatories, requests for production of documents and requests for admissions on the defendant on December 20, 2000. 3. On January 30,2001, defendant's counsel withdrew its entry of appearance and no replacement counsel was appointed. 4. Defendant refused to respond to the outstanding discovery and plaintiff filed a motion to compel, which resulted in a rule to show cause being issued by the Court. 2 -". ji " 5. On April 23, 2001, the rule was made absolute and the defendant was directed to fully and completely respond to all outstanding interrogatories and requests for production of documents within twenty (20) days. 6. On May 14, 2001, counsel for plaintiff was advised by new counsel for the defendant that the responses would be provided by May 21,2001. 7. By letter dated July 24,2001, counsel for plaintiff requested that counsel for defendant provide additional information relative to his counterclaim and provide dates to take defendant's deposition, indicating that if he did not receive a response by August 3, 2001, he would notice a deposition at a convenient time. A true and correct copy of the July 24, 2001 letter is attached hereto as Exhibit A. 8. When no response was received by August 3, 2001, counsel for the plaintiff noticed the deposition of defendant for August 20, 2001. A true and correct copy of the cover letter and the notice of deposition are attached hereto as Exhibit B. 9. By letter dated August 6, 2001, counsel for defendant advised counsel for plaintiff that the defendant was meeting with an attomey who specializes in bankruptcy and requested that the case be put on hold, pending the developments. A true and correct copy of the letter dated August 6, 2001 from defendant's counsel is attached hereto as Exhibit C. 10. By letter also dated August 6, 200 I, counsel for plaintiff advised counsel for defendant that he was unwilling to postpone the deposition until the petition in bankruptcy was 3 ""'-.",- ~-,',/, .;. ". actually filed. The reason being was that this case had dragged on for over a year and defendant continued his delay tactics. A true and correct copy of that letter is attached hereto as Exhibit D. II. On August 17, 2001, counsel for defendant called counsel for plaintiff and advised the defendant refused to attend the properly noticed deposition scheduled to commence at 9:30 a.m. on Monday, August 20, 2001, in the offices of plaintiff's counsel. He further represented that defendant was meeting with bankruptcy counsel that day or Monday morning to file a petition in bankruptcy. 12. Counsel for plaintiff advised that, provided defendant filed a petition in bankruptcy by Wednesday, August 22,2001, he would not file a motion to compel or for sanctions. However, failure to do so would result in the filing of such a motion, rather than allow the defendant to simply ignore his obligation to attend the deposition. A true and correct copy of the letter sent by plaintiff's counsel to defendant's counsel dated August 17, 2001, is attached hereto as Exhibit E. 13. To date, counsel for plaintiff has received no indication that defendant has filed a petition in bankruptcy. 14. Defendant has continually stalled the progress of this litigation by requiring plaintiff to file a motion to compel and for sanctions to respond to discovery and now by refusing to attend his deposition, under the apparently false pretense of seeking bankruptcy protection. 15. Under Rule 4019(a)(I)(iv), the Court may upon motion make an appropriate order if a party after notice in accordance with Rule 4007.1 fails to appear before the person who is to take the deposition. 4 " .. .. 16. Further, under Rule 4019(c), the Court when acting under subdivision (a) of the Rule, may make an order refusing to allow the disobedient party to support designated claims (4019(c)(2)) and may make any order with regard to the failure to make discovery as is just (4019(c)(5)). 17. The defendant refused to attend his properly noticed deposition on August 20, 2001, and did not seek a protective order or give any justifiable reason. 18. The plaintiff requests that the Court enter an order for the following: 1. Directing the defendant to appear for oral deposition on September 21, 2001, at 9:30 a.m. in the offices of plaintiff's counsel; 2. Directing that the defendant shall pay for the costs and expenses incurred by plaintiff in preparing and filing this motion to compel his attendance at a deposition and for sanctions; and 3. Directing that the defendant shall be precluded from presenting any evidence or pursuing the counterclaim set forth in his answer and new matter as a sanction under 4019(c)(2) for failure to appear at his deposition. 5 ., "'.~"--' .. . ">,, ",L ,~I ~. --- , . .'~ - ,', -', J.;':'--;"_ ,-' ,"-< ~,"-- ,- ~.-,- . ,. '''--':1 .. . WHEREFORE, the plaintiff requests that this Honorable Court issue a rule to show cause why the relief sought in plaintiff's motion to compel and for sanctions should not be granted. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, ILP Dated: August~, 2001 By ~~~ . STE N L. GROSE I.D. # 31006 210 Walnut Street P. o. Box 11963 Flarrisburg,PA 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. 6 '~ He .-c;~M ~-,_,_o -,--'-"', ~. I:-'~:.._'-"",.' ~~,- """"._ - ~-.- --'- -" _~"_~" , , .. ''''-''-' '"~-,,,~,,---~." '-'...' ,.- ,Cb -'~( . . VERIFICATION The undersigned, Stephen L. Grose, hereby verifies and states that: 1. He is one of the attorneys for plaintiff herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing motion are known to him and not exclusively to his client; 4. The facts set forth in the foregoing motion are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. c.s. ~ 4904, relating to unsworn falsification to authorities. 4rr..J 04?~ St hen L. Grose Dated: August....3,L, 2001 @ @ ~ w HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RU8ENDALL II ROBERT L. WELDON EUGENE E_ PEPINSKY, JR. JOHN H. ENOS III GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L_ GROSE R. SCOTT SHEARt:R WAYNE M. PECHT ELYSE E. ROGERS DONALD M. LEWIS III BRIDGET M. WHITLEY CRAIG A. lONGVe:AR JOHN A. FEICHTEL ANN MCGEE CARBON ELIZABETH J. GOl-OSTEIN BARBARA A. GALl- " . . "~ - -.'.' ( ~ -, -,.' ~-,.' -"~~-I . KEEFER WOOD ALLEN & RAHAL , 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 LLP ESTABLISHED IN 1678 OF COUNSEL: SAMUEL C. HARRY WEST SHORE OFFICE: 415 FALLOWFIELD ROAD CAMP HILL, 'PA 17011 (717) 612-5800 EIN No. 23.0716135 WRITER'S DIRECT DIAL: 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 July 24, 2001 RichardL. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Re: Arnold Transportation Services, Inc. v. Bryan L. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: I have received no response from you to my letter dated May 31, 2001, in the above matter. Specifically, please confirm whether or not there is any documentation in your client's possession dealing with the employment of Mr. Farringer by Mr. Swartz. If there is any documentation at all (i.e., application, payroll records, driver orientation and the like), please provide copies of the same. If there is no documentation, please confirm. If we do not receive a response to this request within ten (10) days, we will file a motion to compel. In addition, I would like to schedule the deposition of Mr. Swartz for sometime dUriFlg the week of August 20, 2001. If you wish to take the depositions of any parties, please advise and perhaps we can take the depositions on the same day. If I do not receive a response from you for the depositions by August 3, 2001, I will notice a date that is convenient to me and my client. Thank you for your anticipated cooperation. SLG/kdr Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen L. Grose EXHIffiT A @ @ ~ w HEATH L. ALLEN N. DAVID RAHAL CHARLES W_ RUBENDALL II ROBERT 1-. WELDON EUGENE 1:. PEPIN SKY, JR. JOHN H, ~NOS IIi GARY E. fRENCH DONNA g. WELDON BRADFORD DORRANCE JEFFREY S. STOKES ROBERT~. CHURCH STEPHEN l. GROSE _A, SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS DONALD !IA. LEWIS III BRIDGET M. WHITLEY CRAIG A. LONGYEAR JOHN A. fEICHTEL ANN MCGEE CARBON ELIZABETH J. GOLDSTEIN BARBARA A_ GALL ~ --, " -'" ~. ~-'1" , ~~-~, '. . KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG. PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ESTABLISHED IN 1&76 OF COUNSEL: SAMUEL C. HARRY WEST SHORE OFFICE: 415 FALLOWF!SLO ROAD CAMP HILL, PA 17011 (717) 612-5800 EIN No. 23.0716135 WRITER'S DIRECT DIAL 255-8052 sgrose@keeferwood.com 2"" floor fax: 255-8003 August 3,2001 Richard L. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Re: Arnold Transportation Services, Inc. v. Bryan L. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: Enclosed please find a notice of deposition for your client scheduled to take place in my office on Monday, August 20,2001, commencing at 9:30 a.m. Please note that he is to bring with him any documents covered by the requests for production of documents that have not yet been provided. I am referring specifically to any documentation dealing with your client's employment of Mr. Farringer. Rather than spend the time and money on a motion to compel, I would simply request that your client bring any such documents to his deposition. SLGlkdr Enclosure Sincerely, KEEFER WOOD ALLEN & RAHAL, UP By: Stephen L. Grose EXHIffiT B . ,-^. -"" -"-...,'., '~"-""" '", H Y";j (CO)[p1f . ARNOLD TRANSPORTATION SERVICES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 00-2729 CIVIL TERM (Judge 01er) BRYAN L. SWARTZ, . Defendant CIVIL ACTION NOTICE OF DEPOSITION TO: Brian L. Swartz c/o Richard L. Webber, Jr., Esquire Law Office of Michael 1. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 PLEASE TAKE NOTICE that the oral deposition of Brian L. Swartz, will be taken on Monday, August 20, 2001, commencing at 9:30 a.m., at the offices of Keefer Wood Allen & Rahal, LLP, located at 21 0 Walnut Street, Harrisburg, Pennsylvania 17101, before a court stenographer, and shall continue thereafter until completed. The deposition will be taken pursuant to Pa. R. Civ. P. 4007.1 for purposes of discovery andforusc at trialin the above-referenced case. The deponent is instructed to bring any documents responsive to the requests for production of documents that have not been previously provided. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: AlIgust~, 2001 By ~~~ / S EPHEN L. GROSE LD. # 31006 210 Walnut Street, P. O. Box 11963 Harrisburg, P A 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. ~__ . i "1 "~-,ok "","" ,^_I,; CERTIFICATE OF SERVICE I, Stephen L. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon counsel and parties of record this date by depositing true and correct copies of the same in the United States mail, first-class postage prepaid, addressed as follows: Richard L. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 KEEFER WOOD ALLEN & RAHAL, LLP By ~oR .it - ..... Step en L. Grose Dated: August~, 2001 - '- ~ '. . '-' !'-'- . ~' .~,,-,'.< ,~_-~:u'G-_" ;', 0>._ ;C:': . - '~,:",>,-,.~-, 0.' LAw OFFICE OF MICHAEL J. HANFT ATTORNEYS & COUNSELLORS AT LAW HJ;.';;-.....'-' MICHAEL J. HANFT GR.EGORY H. KNIGHT RICHAFtD L WEBBER. JR. August 6, 2001 OF COUNSEL WI lLlAM A. ADDAMS MICHAEL R.. RUNDLE VIA FACSIMILE TO 255-8050 AND U.S. MAIL OIECEDVE A.UG 7 2001 Stephen 1. Grose, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, P A 171 08-1963 RE: Arnold TransDortation Services. Inc. v. Brvan 1. Swartz Cumberland County CCP No.00-2729 Civil Term Our File No. 2051.2 Dear Mr. Grose: I received your letter dated July 24, 2001 and forwarded it to my client. He recently contacted me and indicated that he has met with an attorney who specializes in bankruptcy and that he intends to file for bankruptcy this week. He will be listing your client's potential claim in the bankruptcy petition. It is my understanding that an automatic stay would be issued by the Bankruptcy Court. I would therefore suggest that we put this case on hold pending these developments. Sincerely, LAW OFFICE OF MICHAEL 1. HANFT ~~A Richard 1. Webber, Jr. RL W,JRftew cc: Bryan 1. Swartz F:\User Folder\Firm Docs\Gcllltr200112051-2sg.1.wpd 19 BRL)()K\'\':L'lL-'D AVl:NUE SlIlTE 106 CARLI,'Ll'. rA 17013-91-.t2 717.249.5373 1',\,\ 717_24L).~)--!57 \V\VW.Hr\i\FTLAWFIR,\'I.CC)M EXHIBIT C ~ @ ~ w HEATH L. ALLEN N. DAVID RAHAL CHARLES W. RUB~NOALL II ROBERT L. WELDON EUGENE E. PEPIN:3KY, JR. JOHN H. ENOS tII GARY E. FRENCH DONNA S. WELDON BRADFORD DOARANCE JEFFREY $. STOKEOS ROBERT R. CHUROH STEPHEN L. GROSE A. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGERS DONALD M. LEWIS III BRIDGET M. WHITt-EV CRAIG A. lONGYEAA JOHN A. FEICHTEL- ANN MCGEE CARE30N ELIZABETH J. GOLDSTEIN BARBARA A. GALL.. .r ~ ,'~ _,co -1.- ~ -.,' - -~~ i o KEEFER WOOD ALLEN & RAHAL LLP , 210 WALNUT STREET P. O. BOX 11963 HARRISBURG. PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ESTABliSHED IN 1878 OF COUNSEL: SAMUEL C. HARRY WEST SHO'AE OFFICE: 415 FALLOWFIELD ROAD CAMP HILL, pA 17011 (717) 612~5BOO EIN No. 23-0716135 WRITER'S DIRECT DIAL 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 August 6,2001 Via Facsimile & First-Class Mail Richard L. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: I am in receipt of your letter dated August 6, 2001, regarding the above matter advising that Mr. Swartz is considering filing for bankruptcy. You are correct in your understanding that an automatic stay will issue upon the filing. However, my past experience leads me to conclude that we should keep the deposition scheduled until the petition in bankruptcy is actually filed. Therefore, I am not willing to put this case on hold, until I receive written notification that in fact the petition in bankruptcy has been filed and the automatic stay issued. Thank you for your kind attention to this matter. SLGfkdr Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen 1. Grose EXHIBIT D @ @ ~ w HEATH L. ALLEN N. DAVlO RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE E. PEPINSKY, JR. JOHN H. ENOS III GARY B. FRENCH DONNA S. WELDON BRADFORD DORRANCE JEFFREY S. STOKES ROBERI R. CHURCH STEPHEN L. GROSE R. SaO"fT SHEAREA WAYNE M. PECHT ELYSE E'. ROGERS DONALD M. LEWIS III BRIDGET M. WHITLEY CRAIG A. lONGYEAA JOHN A. FEICHTEL ANN MOGEE CARBON ELIZAB~TH J. GOLDSTEIN BAABA~A A. GALL ,-" '" .-"" ~. " "'-'~~' , ,. .., ~. j ~ . KEEFER WOOD ALLEN & RAHAL LLP , 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ESTABLlSHEO IN 1878 OF COUNSEL: SAMUEL C. HARRY weST SHORE OFFICE: 415 FAlLOWFJELO ROAD CAMP HilL, PA 17011 (717) 612.5800 EIN No. 23-0716135 WRITER'S DIRECT DIAL; 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 August 17, 2001 Via Facsimile & First-Class Mail Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: This will confirm our telephone conversation today, wherein you advised that Mr. Swartz indicated he was to meet with his bankruptcy attorney later today or first thing Monday morning and would be filing for bankruptcy. He also advised that he refused to attend the properly noticed deposition scheduled to commence at 9:30 a.m. in our offices on Monday, August 20, 2001. I advised that, provided I receive confirmation from a bankruptcy attorney by Wednesday, August 22, 2001, that Mr. Swartz is filing a petition in bankruptcy, I will not file a motion with the Court for sanctions and costs against Mr. Swartz for refusing to attend the properly noticed deposition. As I indicated to you in our telephone conversation, I do not wish to be unreasonable. However, I cannot allow Mr. Swartz to simply ignore his obligations to attend the deposition, if the reference to a filing of a bankruptcy is nothing more than a stalling tactic. I trust you understand my position. SLGfkdr Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen 1. Grose EXHIBIT E , . ,-,,,,,,"< - --,~- .~"l-'___"';"",>"" - __".,nO"", "',-"",~-__,' _Y_r' ,t._ . -: J ... , . . .. CERTIFICATE OF SERVICE I, Stephen 1. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 KEEFER WOOD ALLEN & RAHAL, ill' By St~ cir;:f: A~ Dated: August 3/ ,2001 " iid~~_l ... "-'",~ ~. ....""~.....""""'.iilh . , "''''~,'''~'_'"H," _ L<",'__'''I'''!!l'I "~-"-'..ilIiilli- <<:" ~ ~", ,'"", ",- ,'" ... ,~ (") 0 l"J C -~ 1 <C U') :.~j ""'0 f:i ~i f"1 Cf"n;i -0 ,;, ~;~ , cq.. cr, ?:L. .' _tJ " , 3> " , " ZL' ....' c:; 0 /~-c rt"l :S:C ~,,;' +C'~ ~ f'0 );! 'Xi (.0 --< ,~-~ I ~~-, ,__'C__"_,_ ~- ARNOLD TRANSPORTATION: SERVICES, INC., Plaintiff v. BRYAN L. SWARTZ, Defendant ,l..i.-,_-' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-2729 CIVIL TERM ORDER OF COURT AND NOW, this 23rd day of October, 2001, upon consideration of the attached letter from Plaintiff's counsel, Stephen L. Grose, Esq., indicating that Defendant has filed a petition for bankruptcy, no action will be taken on Plaintiffs Motion To Make Rule Absolute at this tirne. Stephen L. Grose, Esq. 21 0 Walnut Street P.O. Box 11963 Harrisburg, P A 17108-1963 Attorney for Plaintiff Richard L. Webber, Jr., Esq. Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Attorney for Defendant Bryan L. Swartz Box 77 Plainfield, PA 17081 :rc BY TIIE COURT, t.1f)~ ;1;01 L~ .. I I ,e , , ~ ~." - -,_.- -" , ."n. -'>'," . , '<" H\.El} {)\HCE ~_ ..r "...'" ,(,,\8\,O,Ri'< I).... \;..,\-, \._-",r 1\:-- ,'\\ I ~" VI ,i\."" t__ ,J'....,J ,U G \ Gel 2 4 ~J'\ \0: De GU\'ABEHUNJ COUNT< PENNSYlYANIA __~ l. , -'~"'-, ,,--~ ,,-. r~'-'-"" ~ - '. I -- ~,-^ '-. ,)"llWJIi'~~_" ,- ~', ,-,,---- ,~. ~ " . , ,- "'...., ~~->--- ."',.,"'e 1IlIIII~ , -1"-" " -,''':''ry HEATH L. ALLl::N N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. W~LDON EUGENE E. PEPINSKY, JR. ..JOHN H. ENOSm GARY E. FRENCH DONNA S. WEI-DON BRADFORD DORRANCE ..JEFFREY S. S1"OKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGEE:RS DONALD M. LEWIS lIT BRIDGET M. WHITLEY CRAIG A. LONGYEAR ..JOHN A. FEICHTEL ANN McGEE CARBON ELIZABETH ,J, GOLDSTEIN ~- - ~'.'" - -.'-~- -~' ,,""-~---" - e""_' .""._,,"-, 'lQltt' -'x' "' '~""""\L''-'''~ ",,/,-,~;. ~ ,^,--, ' , :~: '>"'1 ;~-'.JI':' Ii \~Ci 1 9 1.1)01 KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C, HARRY PHONE: 17171 255-6000 FAX 17171 255-6050 WEST SHORE OFFICE: 415 F ALLOWflELD ROAD CAMP HILL. PA 17011 17171 612~5800 EIN No. 23-0716135 WRITER'S DIRECT DIAL: 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 October 17, 2001 Richard J. Pierce Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Pierce: Enclosed please find a copy of the bankruptcy petition of Bryan 1. Swartz, which was filed on October 10, 2001. I was just provided with a copy of this notice today. Because of the filing of a petition in bankruptcy, all matters are automatically stayed. Accordingly, I request that you take no further action on ATS's motion to make the rule absolute, which I filed previously in the above matter. By copy of this letter, I am advising Judge Oler of the same. If either you or Judge Oler need additional information, please do not hesitate to contact the undersigned at the direct dial number listed above. Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: ~d{L Stephen 1. Grose SLG/kdr Enclosure cc: Hon. J. Wesley 01er, Jr. (wI encl.) Daniel J. Mazaheri, Esquire (w/o encl.) . c ,,-,- '" "". ,d~ "',,",'_ _ ~,~ _ cc . -"-0", ,,,-", '~--, ~--- ~.-.j',""-._,,... ~____"". ->~",;,_ _,,-<"~._~=-:-:. ,'C._, ;_'o,;._-,}'," ,,'C"- '" ->1:"-"'~'""-'-' - -"-,~ \ . . OCT 1 7 20~ ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM (J. Wesley 01er, Jr.) BRYAN L. SWARTZ, Defendant CIVIL ACTION ORDER AND NOW, this day of ,2001, the Rule to Show Cause issued on September 10, 2001, and served by plaintiff on September 13, 2001, directing the defendant to respond to the plaintiff's motion to compel and for sanctions is hereby made absolute. The following order is entered: 1. Defendant is hereby directed to appear for oral deposition on October 30,2001, at 9:30 a.m. in the office of plaintiff's counsel at 210 Walnut Street, Harrisburg, Pennsylvania. 2. Defendant is hereby directed to pay for costs and expenses incurred by the plaintiff in preparing and filing this motion to compel his attendance at deposition and for sanctions. Counsel for plaintiff will provide a bill of costs within ten (10) days of this order. Defendant shall have five (5) days to object and the Court will then award reasonable fees and costs. , .06,," ,. 3. Defendant is hereby precluded from presenting any evidence or pursuing the counterclaim set forth in his answer and new matter, as a sanction under Rule 4019(c)(2) for failure to appear at his deposition. BY THE COURT: J. -~ . -. ,.,." - ~-, -, -'", , '_C"-_,,. '--'"."-.- '--",;-'\.T '-,,,-'';-.-- ~-- - . , . , ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM (J. Wesley 01er, Jr.) BRYAN L. SWARTZ, Defendant CIVIL ACTION MOTION TO MAKE RULE ABSOLUTE AND NOW, comes the plaintiff, Arnold Transportation Services, Inc. ("ATS") by and through its counsel, Keefer Wood Allen & Rahal, LLP, and files this motion to make the Rule to Show Cause issued by the Court on September 10, 2001 absolute, averring as follows: 1. On September 6, 2001, ATS filed a motion to compel and for sanctions in the above matter, requesting the Court issue a rule to show cause why the motion should not be granted. 2. On September 10, 2001, this Court issued a rule to show cause why ATS's motion to compel and for sanctions should not be granted, indicating the rule was returnable five (5) days from service. A true and correct copy of that rule is attached hereto as Exhibit A. 3. Under cover letter dated August 31, 2001, to the Prothonotary, ATS provided the Prothonotary with copies of the proposed order and stamped envelopes addressed to all parties, which ATS believes were used by the Prothonotary's office in providing the defendant with a .., ~, <__ ~__o;'I'~' ,"'" .,;., ., -,..__.,C -""-'~'.'.F-' 0'-"'_' < , copy of the rule to show cause. To be certain that the defendant had received a copy of the rule, ATS served an additional copy by its letter dated September 13, 2001. A true and correct copy of the letter dated September 13, 2001, providing defendant with a copy of the rule to show cause is attached hereto as Exhibit B. 4. The defendant was no longer represented by counsel and correspondence was routinely sent to him at his address of Box 77, Plainfield, PA 17081. 5. Defendant has repeatedly indicated that he was filing for bankruptcy, but despite repeated requests from A TS' s counsel, no confirmation of the filing has been provided. 6. The time for defendant to respond to the rule has long since passed and A TS now requests this Court to make this rule absolute. Since the time for scheduling the deposition has passed, ATS requests that the defendant be required to appear for deposition at 9:30 a.m. on October 30, 2001, at ATS's counsel's office. 7. In addition, A TS requests that this Court award the sanctions requested in its motion, directing the defendant to pay for the costs and attorney's fees in preparing the motion and excluding the defendant from presenting any evidence or pursuing a counterclaim, as set forth in his answer and new matter. WHEREFORE, A TS requests that his Honorable Court enter an order, as requested in its motion to compel and for sanctions, as follows: 1) directing the defendant to appear for oral deposition on October 30, 2001, at 9:30 a.m. in the office of plaintiff's counsel; 2) directing the defendant to pay for costs and expenses, including attorney's fees, incurred by the plaintiff in 2 .. '__ _ ,'0"_,' _ "--,- -- -,-~ ,,- ~_" _c '"I -_," -1,'1i _",','- -, ,- ~ _~-~J '__~_'."_\"'_' .,c,.,;.'--:.-.,',;i:-.-, . .",,- " - ~';--;." , "[ , preparing and filing this motion to compel his attendance at deposition and for sanctions; and 3) directing that the defendant shall be precluded from presenting any evidence or pursuing the counterclaim set forth in his answer and new matter, as a sanction under Rule 4019(c)(2) for his intentional failure to appear at his deposition. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: October ~, 2001 By #/JI',;-J ex: it _ - /;~~ 1. GROSE LD. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. 3 VERIFICATION The undersigned, Stephen 1. Grose, hereby verifies and states that: 1. He is one of the attorneys for plaintiff herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing motion are known to him and not exclusively to his client; 4. The facts set forth in the foregoing motion are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ~o(i1--- " S ephen 1. Grose Dated: October --1s:1..., 2001 ., ~~.. , . " ""_''''''''''i-' . -~ :"~-,,~-.,:. ,- -~.;;.;>..;: ---~ . .:-'- -,~ j . AR.."fOLD TRANSPORTATION SERVICES,INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM BRYAN L. SWARTZ, Defendant CIVIL ACTION AND NOW, this RULE TO SHOW CAUSE day of 1 >>---r.:.J,~ ,... ~ , 2001, a rule is hereby issued a.- ID - upon defendant to show cause why plaintiff's motion to compel defendant to attend the deposition scheduled for September 21,2001, at 9:30 a.m. at plaintiff's counsel's office and the plaintiff's motion for sanctions shollld not be granted. This rule is returnable 5' days from service. BY THE COURT: /~J Q. tu"p,,/ (OtJh~ Q J. f. c._;..~._=: _~.'~. ,.:.t,-.' c._:'~'/ I.'~ ...~;..,..... .' ..-...",,-. 1"'10 - . . ',. : d ~..! :'. "'. '....~J In T(:;::.(}~'::",\;'.: ':"'~-:~:'::"j'~; ~;,..::.:.: ~:..:~. "4.. . ' ~~;'.';~~~~~.;L:j": 2~~~::t;.:' ;:;;&01 ~u 1/.. 'nltiP-O'-:::".,~ Prothonotarjl .'. '.-,,"., < ' .j :"";"--"'-'" ,,-'.-~~~, - , ~' -.'_\".it .,'-1 ARNOLD TRANSPORTATION SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 00-2729 CIVIL TERM Defendant CIVIL ACTION n 0 Q ~ -0 ,-;~ U"l --i :T1 rn "J c ~ - Z l":_' _c. ~ r==== I -:-, ,. ;:J ~: ?~ 0' r: ~ , -:-J v -::) : - . j;;; c-; :5 :z: t--" '.<:: c) ~ '.~ . , ,--:-y c ":~: ..... " .. --I "V ~, -< (...) =< BRYAN L. SWARTZ, PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS Ai"ID NOW, comes plaintiff, Arnold Transportation Services, lnc. ("ATS") by and through its attorneys, Keefer Wood Allen & Rahal, LLP, and files this motion to compel and for sanctions, averring as follows: 1. The complaint in this matter was filed on May 3, 2000, with the answer being filed on JlIly 27, 2000, 2. After initial settlement discussions proved futile, plaintiff served interrogatories, requests for production of documents and requests for admissions on the defendant on December 20, 2000. 3. On January 30, 2001, defendant's counsel withdrew its entry of appearance and no replacement counsel was appointed. 4. Defendant refused to respond to the outstanding discovery and plaintiff filed a motion to compel, which resulted in a rule to show cause being issued by the Court. 2 I --. 5. On Apri I 23, 2001, the rule was made absolute and the defendant was directed to fully and completely respond to all outstanding interrogatories and requests for production of documents within twenty (20) days. 6. On May 14,2001, counsel for plaintiff was advised by new counsel for the defendant that the responses would be provided by May 21, 2001. 7. By letter dated July 24,2001, counsel for plaintiff requested that counsel for defendant provide additional information relative to his counterclaim and provide dates to take defendant's deposition, indicating that if he did not receive a response by August 3,2001, he would notice a deposition at a convenient time. A true and correct copy of the July 24, 2001 letter is attached hereto as Exhibit A. 8. When no response was received by August 3, 2001, counsel for the plaintiff noticed the deposition of defendant for August 20, 2001. A true and correct copy of the cover letter and the notice of deposition are attached hereto as Exhibit B. 9. By letter dated August 6, 2001, counsel for defendant advised counsel for plaintiff that the defendant was meeting with an attorney who specializes in bankruptcy and requested that the case be put on hold, pending the developments. A true and correct copy of the letter dated August 6, 2001 from defendant's counsel is attached hereto as Exhibit C. 10. By letter also dated August 6, 2001, counsel for plaintiff advised counsel for defendant that he was unwilling to postpone the deposition until the petition in bankruptcy was 3 actually filed. The reason being was that this case had dragged on for over a year and defendant continued his delay tactics. A true and correct copy of that letter is attached hereto as Exhibit D. 11. On August 17, 2001, counsel for defendant called counsel for plaintiff and advised the defendant refused to attend the properly noticed deposition scheduled to commence at 9:30 a.m. on Monday, August 20, 2001, in the offices of plaintiffs counsel. He further represented that defendant was meeting with bankruptcy counsel that day or Monday morning to file a petition in bankruptcy. 12. COllnsel for plaintiff advised that, provided defendant filed a petition in bankruptcy by Wednesday, August 22, 2001, he would not file a motion to compel or for sanctions. However, failure to do so would result in the filing of such a motion, rather than allow the defendant to simply ignore his obligation to attend the deposition. A true and correct copy of the letter sent by plaintiff's counsel to defendant's counsel dated August 17,2001, is attached hereto as Exhibit E. 13. To date, counsel for plaintiff has received no indication that defendant has filed a petition in bankruptcy. 14. Defendant has continually stalled the progress of this litigation by requiring plaintiff to file a motion to compel and for sanctions to respond to discovery and now by refusing to attend his deposition. under the apparently false pretense of seeking bankruptcy protection. 15. Under Rule 4019(a)(l)(iv), the Court may upon motion make an appropriate order if a party after notice in accordance with Rule 4007.1 fails to appear before the person who is to take the deposition. 4 , ~ ~~ -;- . ,'--.'"". , ' ^ ,- ,,"' ",;,'>'-" 16. Further, under Rule 4019(c), the Court when acting under subdivision (a) of the Rule, may make an order refusing to allow the disobedient party to support designated claims (4019(c)(2)) and may make any order with regard to the failure to make discovery as is just (40 19(c)(5)). 17. The defendant refused to attend his properly noticed deposition on August 20, 2001, and did not seek a protective order or give any justifiable reason. 18. The plaintiff requests that the Court enter an order for the following: 1. Directing the defendant to appear for oral deposition on September 21, 2001, at 9:30 a.m. in the offices of plaintiff's counsel; 2. Directing that the defendant shall pay for the costs and expenses incurred by plaintiff in preparing and filing this motion to compel his attendance at a deposition and for sanctions; and 3. Directing that the defendant shall be precluded from presenting any evidence or pursuing the counterclaim set forth in his answer and new matter as a sanction under 4019(c)(2) for failure to appear at his deposition. 5 '-,-- ,~_.- WHEREFORE, the plaintiff requests that this Honorable Court issue a rule to show cause why the relief sought in plaintiff's motion to compel and for sanctions should not be granted. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: August 31 ,2001 By ~~~ . STE N 1. GROSE !.D. # 31006 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. 6 VERIFICATION The undersigned, Stephen 1. Grose, hereby verifies and states that: 1. He is one of the attorneys for plaintiff herein; 2. He is authorized to make this verification on its behalf; 3. The facts set forth in the foregoing motion are known to him and not exclusively to his client; 4. The facts set forth in the foregoing motion are true and correct to the best of his knowledge, information and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ./ _ ---j /1 /~ ,~kf--....- Stb\>hen 1. Grose Dated: August ~ ( ,2001 HEAT.... L. ALLEN N. CAVIC RAHAL CHARLES W RUSENDALL II ROBERT L WELDON eUGENE ~ ~E"tNSKY. JR JOHN H iNOS III QARY E FRENCH DONNA S WELDON BRAOFORO DOARANCE JEFFREY 5 STOKES ROBERT A CHURCH STEPHEN L GROSE R. Scan SHEAAER WAYNE M PECHT ELYSE E. ROGERS CONALD M. LEWIS III BRIDOET M WHITLEY CRAIG A. LONOYEAR JOHN A. FElCH TEl.. ANN MCGEE CAABON ELIZA!3ETH J. GOLDSTEIN BAAB",AA A. GALL 0<., , " .~ ~>., , ~~ , , , .;-, o~ , ~> ;'" v.';:,. '<"' --""-';?' , KEEFER WOOD ALLEN & RAHAL, 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ; LLP ESTABLISHeo IN 1878 OF COUNSEL: SAMueL C. HARRY weST SHORE OFFICE 41 S FALl.OWFIEl.O ROAO CAMP HILL. PA 17011 (717) 812.5800 EIN No. 23.0716135 WRITeR.S DIReCT DIAL. 255-8052 sgrose@keeferwood.com 2"" floor fax: 255-8003 July 24,2001 Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 ~ Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: ill I have received no response from you to my letter dated May 31, 2001, in the above matter. Specifically, please confirm whether or not there is any documentation in your client's possession dealing with the employment of Mr. Farringer by Mr. Swartz. If there is any documentation at all (i.e., application, payroll records, driver orientation and the like), please provide copies of the same. If there is no documentation, please confirm. If we do not receive a response to this request within ten (10) days, we will file a motion to compel. In addition, I would like to schedule the deposition of Mr. Swartz for sometime during the week of August 20, 2001. If you wish to take the depositions of any parties, please advise and perhaps we can take the depositions on the same day. If I do not receive a response from you for the depositions by August 3,2001, I will notice a date that is convenient to me and my client. Thank you for your anticipated cooperation. p ~ SLGfkdr Sincerely, KEEFER WOOD ALLEN & RAHAL, UP By: Stephen 1. Grose EXHIBIT A HEATH L. ALLEN N. QAvlQ ~ AHA~ CHARL-ES W ~uBeNQALL II ROBeFlT L. WELDON EUGeNe E PEPIN SKY. JR JOHN f-l ENOS III GARY !S.. FRENCH OONN~ S weLDON BRADFORD DORRANCE JEFFRE:Y S. STOKes ROBERT R. CHUJlICH STEPH!S.N L, GFlose R. SCOTT SHEARER WAYNE M. PECHT ELYSE ~. ROGERS CONALD M. LEWIS III SRIOGeT M WHITLEY CRAIG A. LONG YEAR JOHN A. FE1CHTEL ANN MCGEE CARSON ELIZASETH J GOLDSTEIN BARBARA A. GALL - " ,.- ",.-,~~'-"o^,,"-';"''',.~W-4~--'"" ';"- ,-1' ~~' ,,-.- -""'~' KEEFER WOOD ALLEN & RAHAL. LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG. PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ESTABLISHEO IN 1876 OF COUNSEl.: SAMUEL e. HARRY wesr SHORe OFFICE: 415 FA(LOW'FIELC ROAD CAMP HILL., PA 17011 (717) 612-5800 EIN No. 23-0716135 WRITER'S OIRECT DIAL: 255-8052 sgrose@keeferwood.com 2"" floor fax: 255-8003 August 3, 2001 Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 (U D Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: Enclosed please find a notice of deposition for your client schedllled to take place in my office on Monday, August 20, 2001, commencing at 9:30 a.m. Please note that he is to bring with him any documents covered by the requests for production of documents that have not yet been provided. I am referring specifically to any documentation dealing with your client's employrnent of Mr. Farringer. Rather than spend the time and money on a motion to compel, I would simply request that your client bring any such documents to his deposition. TI ~ 1 SLGlkdr Enclosure Sincerely, KEEFER WOOD ALLEN & RAHAL, LLP By: Stephen L. Grose EXHIBIT B ~,. - .. _~, , or. ,_.. -,.- - '"'-"~ ,-. - ~"," i" ,- -"',.-c,,'.- , . ,;~,;. ';-,' ^ (to)[p1f . ARNOLD TRA'iSPORTATION SERVICES,INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 00-2729 CIVIL TERM (Judge Oler) BRYA.c'f L. SWARTZ, Defendant CIVIL ACTION NOTICE OF DEPOSITION TO: Brian 1. Swartz c/o Richard L. Webber, Jr., Esquire Law Office of Michael 1. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 PLEASE TAKE NOTICE that the oral deposition of Brian 1. Swartz, will be taken on Monday, August 20, 2001, commencing at 9:30 a.m., at the offices of Keefer Wood Allen & Rahal, LLP, located at 210 Walnut Street, Harrisburg, Pennsylvania 17101, before a court stenographer, and shall continue thereafter until completed. The deposition will be taken pursuant to Pa. R. Civ. P. 4007.1 for purposes of discovery and/or use at trial in the above-referenced case. The deponent is instructed to bring any documents responsive to the requests for production of documents that have not been previously provided. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: August 3 .2001 By ~~~ / S EPHEN L. GROSE 1.D. # 31006 210 Walnut Street, P. O. Box 11963 Harrisburg, P A 17108-1963 (717) 255-8052 Attorneys for Plaintiff, Arnold Transportation Services, Inc. , ... " CERTIFICATE OF SERVICE I, Stephen 1. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon counsel and parties of record this date by depositing true and correct copies of the same in the United States mail, first-class postage prepaid, addressed as follows: Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 KEEFER WOOD ALLEN & RAHAL, LLP By ~oR ~ .. "'Step en 1. Grose Dated: August~, 2001 , < : LAw OFFICE OF MICHAEL]. HANFT ATTORNEYS & COUNSELLORS AT LAW "--',--- ~------_..._-~---- N\ICHAEL ,. H-\~FT GRECOR.Y H. KNI',.3H~ RICHARD L. \VEBBER.. JR. August 6, 2001 QF COU:--:..:g_l: VVILLlA.'....\ A. ADD............lS NtlCHAEL R. RU,.....DLE VIA FACSIMILE TO 255-8050 AND U.S. l\IAIL o IECEDVE AUG 7 2001 Stephen L. Grose, Esquire KEEFER WOOD ALLEN & RAHAL, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 RE: Arnold Transportation Services. Inc. v. Brvan 1. Swartz Cumberland County CCP No.00-2729 Civil Tenn Our File No. 2051.2 Dear Mr. Grose: r received your letter dated July 24, 2001 and forwarded it to my client. He recently contacted me and indicated that he has met with an attomey who specializes in bankruptcy and that he intends to file for bankruptcy this week. He will be listing your client's potential claim in the bankruptcy petition. It is my understanding that an automatic stay would be issued by the Bankruptcy Court. I would therefore suggest that we put this case on hold pending these developments. Sincerely, LAW OFFICE OF MICHAEL J. HANFT 1J~ /~A Richard L. Webber, Jr. RL W,JR/tew cc: Bryan L. Swartz F- t;~cr f.,)k:<:~ F;t0\ Ooc.;t Gcnltr:';'i~ :-j~ ":i~ . ,,~ ,,):.:. ,':-,':.,. \\ ".,1 ..... \t\l> ~ ',',:.', \ '. ': \' \ i -:-\\\ ~ 'I I--\-2 -.- ":....j.'j -"_;- ~ '.\ :-1:- ":--1-'\ \1"';,":- ".'.'. ~I I'"~ '.!".;". . EXHIBIT C HEATH I... ALLc;N N CAVID .=tAI"'tAL CHARLiES w RUBENDALL rl ROBEA" I... WELDON EuaENt! it ~EPINSKY, JR. JOHN H ENOS ru GARY e F"lENCH DONNA S wELDON BRAQFORD DORRANCE JEFFREV S STOKES ROBEA'f R CHl,JRCH STEPHEN I... GROSe A SCO'fT SHEARER WAYNE M PECHT ELYSE E. ROGEi=lS OONALCl 1Itl. LEWIS 1If BRloae1" lit! WHITLEY CRAIG lA. LONOVEAA JOHN A FEICHTEL ANN MCGEE CARSON ELIZABSTH J aOLDSTEIN BARBARA A GALL , KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17106-1963 PHONE (717) 255-6000 FAX (717) 255-6050 , , ESTABLISHEC IN 1878 OF COUNSEl..: SAMUEl.. C_ HARRY WS:ST SHORE OFFICE: 4 I 5 F'ALLOWFIE,LO ROAD CAMP lotl!.l... PA 17011 (717) 812.5800 EIN No. 23.07181:35 WArTEA.S DIRECT DIAL. 255-8052 sgrose@keeferwood.com 2"" floor fax: 255-8003 August 6, 2001 Via Facsimile & First-Class Mail ~ Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term ill Dear Mr. Webber: I am in receipt of your letter dated August 6,2001, regarding the above matter advising that Y1r. Swartz is considering filing for bankruptcy. You are correct in your understanding that an automatic stay will issue upon the filing. However, my past experience leads me to conclude that we should keep the deposition scheduled until the petition in bankruptcy is actually filed. Therefore, I am not willing to put this case on hold, until I receive written notification that in fact the petition in bankruptcy has been filed and the automatic stay issued. Thank you for your kind attention to this matter. B ~ SLGfkdr Sincerely, KEEFER WOOD ALLEN & RAHAL, liP By: Stephen 1. Grose EXIllBI1' D . l-t~A TH I.. ALI..EN N. CAVID RA,jolAL CI'IAALeS w .::IU8ENOA.LL. If AOBERT L. WEl..OON EUGENE e PEPINSKY, JR JOHN H ENOS III G,4.Ay e. FRENCH DONNA 5 WEt-OON BRAQFORQ DOARANce JEFFAEY S. STOKES ROBERT A. CHuFlCH STEPHEN L. GROSE R. SCOTT SHEA REA WAYNE M PECHT ELYSE e. ROCERS CONALD M. LEWIS III BRIDGET' M. WHITLEY CRAIG A. LONGY!:AR JOHN A. Fe\C~T=L ANN MCGEe CARBON EL1ZASEl'H J. GOLosrEIN 8ARBARA A. GALL ,<. . KEEFER WOOD ALLEN & RAHAL, LLP 210 WAl.NUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 ,<. ..... eSTABLISHeo IN 1878 OF COUNSEL: SAMUEl. C. HARRY WEsr SHORE OFFICE: 415 FALl.OWFIEl.O ROAD CAMP HIL.I.. PA 17011 (717) 812.5800 EIN No. 23-0718135 WRITER'S DIRECT CIAL: 255-8052 sgrose@keeferWood.com 20<1 floor fax: 255-8003 August 17, 2001 Via Facsimile & First-Class Mail Richard L. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood A venue Suite 106 Carlisle, PA 17013-9142 ~ Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Webber: ill This will confirm our telephone conversation today, wherein you advised that Mr. Swartz indicated he was to meet with his bankruptcy attorney later today or first thing Monday morning and would be filing for bankruptcy. He also advised that he refused to attend the properly noticed deposition scheduled to commence at 9:30 a.m. in our offices on Monday, AlIgust 20, 2001. I advised that, provided I receive confirmation from a bankruptcy attorney by Wednesday, August 22, 2001, that Mr. Swartz is filing a petition in bankruptcy, I will not file a motion with the COllrt for sanctions and costs against Mr. Swartz for refusing to attend the properly noticed deposition. As I indicated to you in our telephone conversation, I do not wish to be unreasonable. However, I cannot allow Mr. Swartz to simply ignore his obligations to attend the deposition, if the reference to a filing of a bankruptcy is nothing more than a stalling tactic. I trust you understand my position. B I I ~ SLG/kdr Sincerely, KEEFER WOOD ALLEN & RAHAL, liP By: Stephen L. Grose El<HIBIT E . , ." . - , , CERTIFICATE OF SERVICE I, Stephen 1. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 KEEFER WOOD ALLEN & RAHAL, LLP ~ .- /7 By (;b~.. .".~ .Jj 7" - Steph;4; 1. Grose Dated: August X, 2001 \). to HEATH L. ALLE'-N N. DAVID RAHAL CHARLES W. RUBENDALL II ROBERT L. WELDON EUGENE E. PEPINSKY, JR. JOHN H. ENOS III GARY E. FRENCH DONNA S. WEl.-DON BRADFORD DORRANCE JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. G~OSE R. SCOTT SHEARER WAYNE M. PECHT ELYSE E. ROGE'-RS .DONALD M. LEWIS III BRIDGET M. WHITLEY CRAIG A. LONOYEAR JOHN A. FEICHTEL ANN MCGEE CARBON ELIZABETH J. (30LDSTEIN BARBARA A. GALL Bryan 1. Swartz Box 77 Plainfield, PA 17081 ~ . ~"c _0"',.'-';1'.'0 "',,,,' KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 FAX (717) 255-8050 . 0)0 , ESTABLISHED IN 1878 OF COUNSEL: SAMUEL C. HARRY WEST SHORE OFFICE: 415 FALLOWFJELD ROAD CAMP HILL, PA 17011 (717) 612-5800 EIN No. 23-0716135 WRITER'S DIRECT DIAL: 255-8052 sgrose@keeferwood.com 2nd floor fax: 255-8003 September 13, 2001 Re: Arnold Transportation Services, Inc. v. Bryan 1. Swartz Cumberland Countv CCP No. 00-2729 Civil Term Dear Mr. Swartz: Enclosed please find a copy of the rule to show cause issued by the Court. I am providing you with a certified copy, indicating that the rule is returnable five (5) days from service. Please act accordingly. @ You called last week to advise that you were proceeding with the bankruptcy, but I have not received any notification of filing as of this date. I renew my request that you provide me with a copy of the same, if in fact it has been filed. ~ SLG/kdr Enclosure w Sincerely, KEEFER WOOD AllEN & RAHAL, liP By: (c~[P1f Stephen 1. Grose ,~:,'o ...-~ ' '"" l <.- . '" 'I . CERTIFICATE OF SERVICE I, Stephen 1. Grose, Esquire, one of the attorneys for plaintiff, hereby certify that I have served the foregoing paper upon defendant this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Bryan 1. Swartz Box 77 Plainfield, PA 17081 Richard 1. Webber, Jr., Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue Suite 106 Carlisle, PA 17013-9142 KEEFER WOOD ALLEN & RAHAL, LLP By ~~.~-_~- Step n 1. Grose Dated: October~, 2001 -,- J llIIiIiiDfijijiJhJlililll JJ,_ _[!j!!_,~" ~ l!lIiI"""'-' . . , 'P<:J 'r' f'" --r" -"1-' ,,- ,- '-'~ .., . () c:: s:: -or;:; gz~I; ..,. (i5)::o- .-< oI!:::'. r::c:; 3> ,. 2\"'''' --Ci >c~: ~ -,- .. o o '-fl :=.1 f;l f1J ~~Jt:g ';--:) 'j' ~J~? c'~5 _;:~ C5t~(1 )> '"." =< D n -,I <..n CJ f;-;' !'0 '0 -,,--