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HomeMy WebLinkAbout07-0854VERIZON PENNSYLVANIA, INC., Plaintiff, V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. PITY Cw C.M. HIGH, INC. and : CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. : JURY TRIAL DEMANDED N O T I C E 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 VERIZON PENNSYLVANIA, INC., Plaintiff, V. C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07- PS(f C.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW COMES the Plaintiff, Verizon Pennsylvania, Inc., by and through its attorneys, Smigel, Anderson, & Sacks and James E. Himes, Esquire, and files the following Complaint: 1. Plaintiff Verizon Pennsylvania, Inc. (hereinafter "Verizon") is a Pennsylvania corporation with its registered place of business at 1717 Arch Street, 32nd Floor, Philadelphia, Pennsylvania. 2. Defendant C.M. High, Inc. (hereinafter "C.M. High") is a Pennsylvania corporation with a registered place of business at 320 King Street, Lebanon, PA 17042. 3. Defendant L & N Zimmerman Excavating, Inc. (hereinafter "L & N Zimmerman") is a Pennsylvania corporation with its registered place of business at 2 Moonstown Lane, Newmanstown, PA 17073. 4. The occurrences that are the subject of this lawsuit took place on September 19, 2005 in the area of Trindle Road and 34th Street in Camp Hill, Cumberland County, PA, such that venue is proper with this Court pursuant to Pa. R.C.P. 1006. 5. At the aforementioned date and place, L & N Zimmerman was a sub-contractor, which, through its agents, employees or servants, was performing excavation work on behalf of its general contractor, C.M. High, Inc. R 6. On August 30, 2005, C.M. High, Inc. contacted Pennsylvania One Call System, Inc. regarding a proposed excavation on Trindle Road. 7. C.M. High's locate ticket specified that it would working at the traffic signal North of the Camp Hill Mall on Trindle Road and would be working from the intersection of 34th Street and Trindle Road and would be excavating on the South side of Trindle Road for 300 feet going East and West. 8. Verizon inspected the specified area on the South side of Trindle Road on September 2, 2005 and responded that the area was clear. 9. On September 19, 2005, L & N Zimmerman, while working for C.M. High, struck and damaged Verizon's underground cable on the North side of Trindle Road. 10. L & N Zimmerman was excavating on the North side of Trindle Road and boring North to South instead of excavating on the South side of Trindle Road and boring East and West as specified by its locate ticket. 11. Defendant L & N Zimmerman was negligent in that it: a. Excavated in an area where they knew or should have known that Verizon maintained telephone cables; b. Failed to use due care in excavating around Verizon's communication cables to avoid damaging said cables; C. Failed to call the Pennsylvania One Call System, Inc. for information concerning underground utilities before commencing excavation; d. Relied on a locate ticket from the One Call System that had the improper location on it when it was excavating around Verizon's cables; and i e. Failed to contact Verizon to determine where its cables were located before performing its excavation work. 12. Defendant C.M. High was negligent in that it: a. Provided an improper location to the One Call System when it obtained its locate ticket; b. Excavated in an area where it knew or should have known that Verizon maintained communication cables; C. Failed to contact Verizon to determine where its cables were located; d. Failed to use due care in excavating around Verizon's communication cables to avoid damaging the cables; and e. Failed to supervise, direct and control its subcontractor, L & N Zimmerman, to ensure that it complied with all of the requirements of the Pennsylvania One Call System. 13. At all times relevant to the matters set forth in this Complaint, L & N Zimmerman was the agent, employee, or servant of C.M. High. As such, C.M. High is vicariously liable for the negligence of L & N Zimmerman. 14. As a result of the aforementioned negligence on the part of C.M. High and L & N Zimmerman, Verizon has sustained monetary loss in the amount of $154,119.49, as itemized in Exhibit "A" attached hereto. 15. In spite of several demands for payment, C.M. High and L & N Zimmerman have failed and refused to compensate Verizon for the damages caused by their negligence. WHEREFORE, Plaintiff Verizon Pennsylvania, Inc. demands judgment against Defendants C.M. High, Inc. and L & N Zimmerman Excavating, Inc. in the amount of $154,119.49 plus interest and costs, an amount in excess of this county's mandatory arbitration limits. Date: Ff 9 K ?.o0 7 Respectfully submitted, By: C. Lee Anderson, Esquire I.D. No. 21315 Darryl J. Liguori I.D. No. 91715 Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff VERIFICATION I, Darryl Helsley, am an employee of Verizon Pennsylvania, Inc. and am authorized to verify the facts contained in this Complaint and hereby verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Verizon Pennsylvania, Inc. J? Date: By: '?2? Darryl H sley veri on BILLING STATEMENT Billing.Date: 12/01/2005 Bill Number: 215TPODC31105 Bill Type: DCO Work Order: 004PODC3 DESCRIPTION OF DAMAGE: TYPE OF FACILITY: UNDERGROUND CABLE LOCATION: TRINDLE ROAD, CAMP HILL, PA. Mail Correspondence to: CMR Claims Department PO Box 60770 Oklahoma City, OK 73146 Damage Claim Number: PAPR052951 Date of Damage/Discovery: 09/19/2005 Charge Description LABOR ADMINISTRATIVE COST ENGINEERING MATERIAL MOTOR VEHICLE COSTS CONTRACTOR COSTS LOSS OF USE LCEL Questions? Call:(800)321-4158 Hours 1,558.00 3.75 Amount $ 123,742.31 $ 3,058.81 $ 500.58 $ 14,415.39 $ 6,362.69 $ 5,419.71 $ 620.00 Total Amount Due Upon Receipt $ 154,119.49 Please write the bill number on our ch / Y Mail bottom stub with your payment to address below. In the evert Your check for payment of your Ver' on Communications bill is returned b uncollected funds, Verizon may resubmit your ch ck electronically to y Your bank for insufficient or y your bank for payment from your checking account. Claim Number PAPR052951 veri • Bill Number 215TPODC31105 g Total Amount Due $ 154,119.49 Please Pay Upon Receipt REIM ELECTRIC Olinj][m. 1918 GREENWOOD STREET oo HARRISBURG, PA 17104 Verizon P.O.Hox 1096 Cockeysville, MD 21030-6096 513215TPODC31105DC08120120050000000001541194996 A Lh lJ _ ^ O V ri'1 < ,~ ? t ? om' _ i `.1 0 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbankoO-margolisedelstein.com Attorney for Defendant L&N Zimmerman Excavating, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff V. C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC Defendants JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance on behalf of Defendant, L&N Zimmerman Excavating, Inc., in the above-captioned matter. MARGOLIS EDELSTEIN Date: / NO. 07-854 CIVIL ACTION - LAW By: EN L. BANKO, JR. Attorney for Defendant, L&N Zimmerman Excavating, Inc. J CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the 1, Q*_)day of March, 2007, and addressed as follows: C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Attorneys for Plaintifo Anthony T. Lucido, Esquire Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Attorney for C. M. High, Inc.) MARGOLIS EDELSTEIN By: ft%? ?t - 6k] Angela W. Gayman, Secretary Ln i 40 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC. Plaintiff V. C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. Defendants NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant, C.M. High, Inc. with regard to the above-captioned matter. THOMAS, THOMAS & HAFER, LLP BY: C _ Anthony T. Lucido, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7057 Attorneys for Defendant C.M. High, Inc. Date: April 2, 2007 492230.1 A CERTIFICATE OF SERVICE AND NOW, this 2nd day of April 2007, I, Tammie L. Berkheimer, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: C. Lee Anderson, Es SMIGEL, ANDERSON & SACKS, LLP quire 4431 N Front Street Harrisburg, PA 17110 James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 ; .-" " r Tammie L. 492425.1 a ? ? G STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbanko -marciolisedelstein.com Attorney for Defendant L&N Zimmerman Excavating, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff v. NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. Defendants --------------------------------------------------------------------------------------------------------------------- NOTICE TO PLEAD TO: Verizon Pennsylvania, Inc. c/o C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 Attorney for Plaintiff You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. MARGOLIS EDELSTEIN Date: q q10 By: _- n S E , L. BANKO, JR. Attorney for Defendant, L&N Zimmerman Excavating, Inc. ANSWER AND NEW MATTER OF L&N ZIMMERMAN EXCAVATING. INC. TO PLAINTIFF'S COMPLAINT 1. Denied. After reasonable investigation, Defendant, L&N Zimmerman Excavating, Inc. ("Zimmerman"), is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. 2. Upon information and belief, the averments contained in this paragraph appear to be true. 3. Admitted. 4. Admitted. 5. Denied as stated. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, to the extent that an answer is deemed to be required, employees of Zimmerman conducted excavation work at and about the intersection of Trindle Road and 34th Street in Camp Hill, Pennsylvania in and around September 2005. 6. Admitted. 7. Denied. The "locate ticket" being a writing speaks for itself and is the best evidence of what it says. It is believed and therefore averred that Plaintiff was well aware that construction involved the installation of traffic signals at the aforesaid intersection and that construction and excavation work would be done on all four corners and throughout the roadway of that intersection. 8. Denied. After reasonable investigation, Zimmerman is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. By way of further answer, it is specifically denied that Verizon provided all information necessary and consistent with the work to be performed at the intersection of Trindle Road and 34th Street. Furthermore, it is believed and therefore averred that Verizon was the only utility provider not to identify and mark all of its utilities in and around the intersection of Trindle Road and 34th Street. 9. Admitted. 10. Denied. The answers contained in paragraph 6-8 hereof are incorporated herein by reference as if set forth in their entirety. 11 a-e). Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, the answers contained in paragraph 6-8 hereof are incorporated herein by reference as if set forth in their entirety. 12a-e). The averments contained in this paragraph are directed to parties other than Zimmerman and accordingly, and upon the advise of counsel, no answer on the part of Zimmerman is required. 13. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. 14. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, with regard to any allegation that Plaintiff sustained any injury or damage as a result of any conduct on the part of Zimmerman, after reasonable investigation, Zimmerman is without knowledge or information sufficient to form a belief as to the truth of said averments and, therefore, they are denied. Further, with regard to Plaintiffs' "itemized" list of damages, as set forth in "Exhibit A" to Plaintiffs' Complaint, after reasonable investigation, Zimmerman is without knowledge or information sufficient to form a belief as to the truth of said averment and demands strict proof thereof. 15. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, it is specifically denied that any conduct on the part of Zimmerman caused, contributed or contributed to any damage or injury to Plaintiff. WHEREFORE, Defendant, L&N Zimmerman Excavating, Inc., demands judgment in his favor and against Plaintiff. NEW MATTER 16. The answers contained in paragraphs 1-15 hereof are incorporated herein by reference as if set forth in their entirety. 17. Plaintiff's claim, if any, is or may be barred by the applicable statute of limitations. 18. Plaintiff's claim, if any, is or may be barred by the doctrine of collateral estoppel and/or res judicata. 19. Plaintiffs claim, if any, is or may be barred by Pennsylvania statutory or regulatory law regarding excavation of utilities. 20. Plaintiff's claim is barred and/or reduced by the Pennsylvania Comparitive Negligence Act. 21. Plaintiffs claim, if any, may have been caused by conduct of parties or individuals or entities not a party to this action. WHEREFORE, Defendant, L&N Zimmerman Excavating, Inc., demands judgment in his favor and against Plaintiff. Date: ? By: MARGOLIS EDELSTEIN STEPHEN L. BANKO, JR. Attorney for Defendant, L&N Zimmerman Excavating, Inc. VERIFICATION I, Lester Zimmerman, am President of L&N Zimmerman Excavating, and I am authorized to make this verification on its behalf. I have read the foregoing Answer and New Matter to Plaintiff's Complaint which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: _ "? 7 E; ?=--mss Lester Zimmerman, President L&N Zimmerman Excavating CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the T day of April, 2007, and addressed as follows: C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) James E. Hines, Esquire 222 Penn Street Huntingdon, PA 16652 (Co-Counsel for Plaintifo Anthony T. Lucido, Esquire Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Counsel for C. M. High, Inc.) MARGOLIS EDELSTEIN By: (W?1- buw__ Angela W. Gayman, Se etary ? ?? t_? Q --.J _ ?iw ?b '= r s ? ? 1 i ... _ ' .? [\; "?. f -? VERIZON PENNSYLVANIA, INC., Plaintiff, V. C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 854 NO. 07-34 CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY OF VERIZON PENNSYLVANIA, INC. TO NEW MATTER OF L&N ZIMMERMAN EXCAVATING, INC. AND NOW COMES the Plaintiff, Verizon Pennsylvania, Inc., by and through its attorneys, Smigel, Anderson, & Sacks and James E. Himes, Esquire, and files the following Reply to the New Matter of L&N Zimmerman Excavating, Inc.: 16. No response required. 17. It is denied that Plaintiff's claim is barred by any applicable statue of limitations, and strict proof thereof is demanded. 18. It is denied that Plaintiff's claim is barred by the doctrine of collateral estoppel and/or res judicata, and strict proof thereof is demanded. 19. It is denied that Plaintiff's claim is barred by any Pennsylvania statutory or regulatory law regarding the excavation of utilities, and strict proof thereof is demanded. 20. It is denied that Plaintiff's claim is barred and/or reduced by the Pennsylvania Comparative Negligence Act, and strict proof thereof is demanded. 21. Plaintiff believes that its damages were caused solely by the named defendants, and Plaintiff is unaware of any other parties who might be responsible. If other parties are responsible, Plaintiff demands strict proof of same. I WHEREFORE, Plaintiff Verizon Pennsylvania, Inc. demands judgment against Defendants C.M. High, Inc. and L & N Zimmerman Excavating, Inc. as set forth in its Complaint. Resp Date: 7iU Z By: C. e derson, Esquire I. . N . 21315 Smig 1, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff f VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-584 C.M. HIGH, INC. and : CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, C. Lee Anderson, Esquire, hereby certify that I have served a true and correct copy of Plaintiffs Reply to New Matter of Defendant L & N Zimmerman Excavating, Inc. as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 201h day of April, 2007: Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Anthony T. Lucido, Esquire Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 SMIGEL, ANDEgSO")SACKS, LLP Date: April 20, 2007 By: C e Anderson, Esquire I. o.: 21315 443 N. Front Street Harrisburg, PA 17110 / (717) 234-2401 and James E. Himes, Esquire I.D. No.: 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys.for Plaintiff O C7 iTi 2r IN THE COURT OF CUMBERLAND 1 VERIZON PENNSYLVANIA, INC. V. Plaintiff C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. Defendants NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Verizon, Plaintiff L&N Zimmerman Excavating, Inc. c/o C. Lee Anderson, Esquire c/o Stephen L. Banko, Jr., Esquire SMIGEL, ANDERSON & SACKS, LL MARGOLIS EDELSTEIN 4431 N Front Street 3510 Trindle Road Harrisburg, PA 17110 Camp Hill, PA 17011 James E. Himes, Esquire (Co- 222 Penn Street Huntingdon, PA 16652 YOU ARE HEREBY NOTIFIED TO ENCLOSED ANSWER WITH NEW MATT WITHIN TWENTY (20) DAYS OF SERVICE MAY BE ENTERED AGAINST YOU. FILE A WRITTEN RESPONSE TO THE ER and NEW MATTER CROSS-CLAIM EREOF OR A JUDGMENT OF NON PROS Rsubmitted, , THOMAS 8s HAFER, LLP By: An ony T. Lucido, Esquire Att rney I.D. No. 76583 30 North Front Street, 6th Floor P.O Box 999 H 'sburg, PA 17108-0999 (71 ) 441-7057 COMMON PLEAS JNTY, PENNSYLVANIA Date: 2? b? IN THE COURT O COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC. NO. 07-854 Plaintiff V. CIVIL ACTION - LAW C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. JURY TRIAL DEMANDED Defendants I DEFENDANT C.M. HIGH, INC.'S ANSWER' WITH NEW MATTER AND NEW MATTER CROSS-CLAIM TO PLAINTIFF'S COMPLAINT TO THE PROTHONOTARY: AND NOW, comes Defendant, C.M. High, Inc. by its attorneys, Thomas, Thomas & Hafer, LLP, and files the following Answer, with New Matter to Plaintiff's Complaint: 1. Admitted. 2. Denied. Answering Defendant's business address is 341 King Street, Myerstown, PA 17067. 3. The allegations in this Para aphs are directed to a party other than Answering Defendant. 4. Admitted. 5. Admitted. By way of further response, Answering Defendant hired L&N Zimmerman to do the excavation work, but there was no written agreement between the parties. III 6. Admitted. By way of further' response, the information provided in the locate ticket stated that the excavator would be installing traffic signal foundations and trenching between the foundations at the intersection of Trindle Road and 34th Street. 7. Denied. The "locate ticket" is a writing that speaks for itself. By way of further response, the locate ticket clearly stated in the remarks section that the excavation would require trenching between the traffic signal foundations. Defendant therefore believes and avers that Plaintiff knew or should have known that the project, would require excavation on all four (4) corners and throughout the entire roadway of that intersection. 8. Denied. Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied and strict proof thereof is demanded at time of trial. By way of further response, it is specifically denied that Verizon properly marked the intersection so as to allow the work to be completed without causing damage to Verizon's underground lines. Further, Answering Defendant believes that Verizon was the only responding utility provider that failed to completely and accurately mark and identify the location of all its underground lines at the intersection of Trindle Road and 34th Street where the excavation was being performed. 9. Admitted in part, denied in part. It is admitted that L&N Zimmerman struck Verizon's underground lines. It is denied that L&N Zimmerman was "working" for Answering Defendant; L&.N Zimmerman was a subcontractor and not an employee of Answering Defendant. 10. Denied. It is specifically denied that the excavation performed at the Trindle Road and 34th Street intersection was inconsistent with the description of the work provided on the locate ticket. Answering Defendant incorporates its answers to Paragraphs 6-8 above as though fully set forth herein. 11. The allegations in this Paragraph are directed to a party other than Answering Defendant. 12. Denied as conclusions of law to which no responsive pleading is required. 13. Denied as a conclusion of law to which no responsive pleading is required. 14. Denied pursuant to Pa. R.C.P. 1029(e). 15. Denied as a conclusion of law to which no responsive pleading is required. By way of further response, it is specifically denied that Answering Defendant is responsible for any of the alleged damages suffered by the Plaintiff. WHEREFORE, Answering Defendant C.M. High, Inc. demands judgment in its favor and respectfully requests that Plaintiff's Complaint be dismissed, with prejudice. NEW MATTER 16. The answers set forth in Paragraph 1 through 15 above are incorporated by reference as though fully set forth herein. 17. Plaintiff's claim is barred by applicable Pennsylvania statutes and/or regulations pertaining to the excavation of underground utilities. 18. If Plaintiff has suffered any damages, said allegation being specifically denied, those damages were caused by parties other than Answering Defendant and over which Answering Defendant exercised no control. NEW MATTER CROSS CLAIM PURSUANT TO PA. 1;LC.P.2252(d) 19. Answering Defendant incorporates by reference the allegations contained in Plaintiff's Complaint as though fully set forth herein. 20. Defendant L&N Zimmerman Excavating, Inc. performed all the excavation work at the intersection of Trindle Road and 34th Street. 21. Answering Defendant denies any liability to the Plaintiff. 22. If Plaintiff has sustained any damages, which are specifically denied, co- defendant L&N Zimmerman Excavating, Inc., is solely liable to Plaintiff on all claims, is jointly or severely liable with Answering Defendant, or is liable over to the Answering Defendant for contribution and indemnification. WHEREFORE, Defendant, C.M. High, Inc. demands judgment in its favor and against co-defendant L&N Zimmerman Excavating, Inc. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP BY: Anthony T. Lucido, Esquire Attorney I.D. No. 76583 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7057 Date: Z D 503690.1 VEFAFWATION I, Gerald High, have read the foregoing Defendant C.M. High, Inc.'s Answer with New Matter and New Matter Cross-Claim to Plaintiffs Complaint which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Gerald High Vice President, Traffic Department DATE: -l ?//p 7 503701.1 CERTIFICATE OF 'SERVICE Yom". AND NOW, this day of May 2007, I, Tammie L. Berkheimer, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: C. Lee Anderson, Esquire SMIGEL, ANDERSON & SACKS, LLP 4431 N Front Street Harrisburg, PA 17110 James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 503704.1 am C=p a C "' rn fT: r`.. ' N -J . VJ C) rrn VERIZON PENNSYLVANIA, INC., Plaintiff, V. C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 07- 85v NO. - CIVIL ACTION - LAW : JURY TRIAL DEMANDED REPLY OF VERIZON PENNSYLVANIA, INC. TO NEW MATTER OF C.M. HIGH, INC. AND NOW COMES the Plaintiff, Verizon Pennsylvania, Inc., by and through its attorneys, Smigel, Anderson, & Sacks and James E. Himes, Esquire, and files the following Reply to the New Matter of C.M. High, Inc.: 16. No response required. 17. It is denied that Plaintiffs claim is barred by any applicable statue of limitations and/or regulations pertaining to the excavation of underground utilities, and strict proof thereof is demanded. 18. It is admitted that Plaintiff's damages might have been caused or contributed to by the negligence of other parties. It is denied that Answering Defendant did not also cause or contribute to Plaintiffs damages. 19. -22. The allegations of these paragraphs are directed to another party and therefore, no response is required. WHEREFORE, Plaintiff Verizon Pennsylvania, Inc. demands judgment against Defendants C.M. High, Inc. and L & N Zimmerman Excavating, Inc. as set forth in its Complaint. Date: By: Respectfully submi y ? C. Anderson, Esquire I.D. Jo. 21315 Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff V. NO. 07-584 C.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA I, C. Lee Anderson, Esquire, hereby certify that I have served a true and correct copy of Plaintiff's Reply to New Matter of Defendant C.M. High, Inc. as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 5t' day of June, 2007: Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Anthony T. Lucido, Esquire Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 SMIGEL, ANDERSON Date: June 5, 2007 By: C. Jhe derson, Esgt I.D. No : 21315 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No.: 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff' LLP Cy ? -- l co ?- ' r f C_ CD = R ll C) l Cps ?: Li .a STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbanko@margolisedelstein.com Attorney for Defendant L&N Zimmerman Excavating, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff V. C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants REPLY OF DEFENDANT. L&N ZIMMERMAN EXCAVATING. INC., TO NEW MATTER CROSS CLAIM OF DEFENDANT. C.M. HIGH. INC. - PA.R.C.P. NO. 2252(d) 19. The Answer and New Matter of Defendant, L&N Zimmerman Excavating, Inc. ("Zimmerman"), is incorporated herein by reference as if set forth in its entirety. 20. Admitted in part and denied in part. While it is admitted that Zimmerman performed part of the excavation work at the intersection of Trindle Road and 34th Street, it is specifically denied that Zimmerman performed all of the excavation work or that it placed the Pennsylvania 1-call in advance of the excavation. This call was placed, as it was the responsibility of it to do so, by Defendant, C.M. High, Inc. 21. Admitted. By way of further answer, Zimmerman too denies any liability to Plaintiff or to C.M. High, Inc. ? y 22. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. WHEREFORE, Defendant, L&N Zimmerman Excavating, Inc., demands judgment in its favor and against Plaintiff and Co-Defendant, C.M. High, Inc. IS EDELSTEIN Date: b By: VA Q Sq" EN L. BANKO, JR. Attorney for Defendant, L&N Zimmerman Excavating, Inc. VERIFICATION I, Lester Zimmerman, am President of L&N Zimmerman Excavating, and I am authorized to make this verification on its behalf. I have read the foregoing Reply to New Matter Cross Claim of Defendant, C.M. High, Inc. which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: hl -2 0 0 'J W _ aw 2 d Lester Zimmerman, President L&N Zimmerman Excavating , 1-1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the ? day of June, 2007, and addressed as follows: C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Attorneys for Plaintiff) James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 (Co-Counsel for Plaintiff) Anthony T. Lucido, Esquire Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Attorney for C.M. High, Inc.) MARGOLIS EDELSTEIN By: L't . a Ange M. Gayman, cretary . ?' ? ?. ?? `?? " .r ? a ;?' ? -? ? . ? ?:'?. v?['T i : . Ct?' =r l : ? ? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-00854 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VERIZON PENNSYLVANIA INC VS C M HIGH INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: C M HIGH INC but was unable to locate Them deputized the sheriff of LEBANON in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 1st , 2007 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: So answers- Docketing 18.00 oill Out of County 9.00 Surcharge 10.00 R: Thomas Kline Dep Lebanon Co 84.50 Sheriff of Cumberland County Postage .63 122.13 03/01/2007 116 1 SMIGEL ANDERSON SACKS Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-00854 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND VERIZON PENNSYLVANIA INC VS C M HIGH INC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: L & N ZIMMERMAN EXCAVATING INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LEBANON County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 1st , 2007 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: So answe Docketing 6.00 Out of County .00 Surcharge 10.00 R. Thomas ine .00 Sheriff of umberland County .00 16.00 r 3forh 03/01/2007 SMIGEL ANDERSON SACKS Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Verizon Pennsylvania Inc VS. C.M. High Inc et al SERVE: C.M. High Inc No. 07-854 civil Now, February 21, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a and made known to So answers, Sheriff of Sworn and subscribed before me this day of , 20 copy of the original COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA the contents thereof. CIVIL COMPLAINT No. 07-854 Verizon Pennsylvania, Inc. VS. C.M. High, Inc. and L & N Zimmerman Excavating, Inc. STATE OF PENNSYLVANIA } COUNTY OF LEBANON } SS: Smigel, Anderson & Sacks, LLP C. Lee Anderson, Esquire 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 (Return to Cumberland County) Docket Page 24886 David A. Heath, Deputy Sheriff, being duly sworn according to law, deposes and says that he served the within CIVIL COMPLAINT upon C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC., the within named DEFENDANTS, as follows: Upon C.M. HIGH, INC., the within named DEFENDANT, by handing a true and attested copy thereof, personally to Tabitha Good, she being their Bookkeeper and Person in Charge at the time of service on February 26, 2007 at 3:15 P.M., at 320 King Street, Lebanon (Jackson Township), Lebanon County, Pennsylvania, and by making known to her the contents of the same. And upon L & N ZIMMERMAN EXCAVATING, INC., the within named DEFENDANT, by handing a true and attested copy thereof, personally to Michael Sensenig, he being the Person in Charge at the time of service on February 26, 2007 at 2:30 P.M., at 2 Moonstone Lane, Newmanstown (Heidelberg Township), Lebanon County, Pennsylvania, and by making known to him the contents of the same. Sworn to and subscribed before me this 27th day of February, 2007 Notary Public NVTARIAL SEAL KIM3ERLY A. DRC'%IER. Notary Public City of Lebanon. Lebanon County. Pa My Corrirission Expires December 17.2010 SO ANSWERS, 'E?-&, a,, )/ V-ea& DEPUTY SHERIFF K SHERIFF SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced Costs paid on 02/23/2007 Check No. 17310 Amount $ 135.00 Costs Incurred: Amount $ 84.50 Refund: Check No. 20014 Amount $ 50.50 All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P. L. 1072 In The Court of Common Pleas of Cumberland County, Pennsylvania Verizon Pennsylvania Inc VS. C.M. High Inc et al SERVE• L&N Zimmerman Excavating Inc N 07-854 civil • No. Now, February 21, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff. of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, within upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of 320 20 , at o'clock M. served the COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA CIVIL COMPLAINT No. 07-854 Verizon Pennsylvania, Inc. VS. C.M. High, Inc. and L & N Zimmerman Excavating, Inc. STATE OF PENNSYLVANIA } COUNTY OF LEBANON ) SS: Smigel, Anderson & Sacks, LLP C. Lee Anderson, Esquire 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 (Return to Cumberland County) Docket Page 24886 David A. Heath, Deputy Sheriff, being duly swom according to law, deposes and says that he served the within CIVIL COMPLAINT upon C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC., the within named DEFENDANTS, as follows: Upon C.M. HIGH, INC., the within named DEFENDANT, by handing a true and attested copy thereof, personally to Tabitha Good, she being their Bookkeeper and Person in Charge at the time of service on February 26, 2007 at 3:15 P.M., at 320 King Street, Lebanon (Jackson Township), Lebanon County, Pennsylvania, and by making known to her the contents of the same. And upon L & N ZIMMERMAN EXCAVATING, INC., the within named DEFENDANT, by handing a true and attested copy thereof, personally to Michael Sensenig, he being the Person in Charge at the time of service on February 26, 2007 at 2:30 P.M., at 2 Moonstone Lane, Newmanstown (Heidelberg Township), Lebanon County, Pennsylvania, and by making known to him the contents of the same. Swom to and subscribed before me this 27th day of February, 2007 Notary Public N6TARIAL `a? a, DEPUTY SHERIFF KIMBERLY A. B?s0?'=rEP, Notary Public SO ANSWERS, I e SHERIFF SEAL City of Leaanon. Lebanon County, Pa My Com?rission Exlres pecerr?er 17.2010 SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced Costs paid on 02/23/2007 Check No. 17310 Amount $ 135.00 Costs Incurred: Amount $ 84.50 Refund: Check No. 20014 Amount $ 50.50 All Sheriffs Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriffs fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07 594 07.85y C.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, C. Lee Anderson, Esquire, hereby certify that I have served a true and correct copy of Plaintiff Verizon Pennsylvania, Inc.'s Answers to Interrogatories of Defendant C.M. High, Inc. as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 9th day of August, 2007: Anthony T. Lucido, Esquire Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Date: August 9, 2007 By: I.D. N q. 21315 Smige , Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff c o -Ti ? - ? N --i GJl Q VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO.-984 - 07- $bq C.M. HIGH, INC. and : CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, C. Lee Anderson, Esquire, hereby certify that I have served a true and correct copy of Plaintiff Verizon Pennsylvania, Inc.'s Reply to Defendant C. M. High, Inc.'s Request for Production of Documents Directed to Plaintiff. as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 9"' day of August, 2007: Anthony T. Lucido, Esquire Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Date: August 9, 2007 By: C. A erson, Esquire I.D. o. 1315 Smigel, derson & Sacks, LLP 4431 N Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff °'Cr i'? i 2 -rt ` ' N t..fti STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court 1. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbanko(&-margolisedelstein.com Attorney for Defendant L&N Zimmerman Excavating, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff V. NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC Defendants MOTION OF DEFENDANT L&N ZIMMERMAN EXCAVATING, INC., TO COMPEL DISCOVERY - PA.R.C.P. NO. 4019 Plaintiff commenced this action by Complaint filed on or about February 14, 2007. 2. Plaintiff alleges that Defendant, L&N Zimmerman Excavating, Inc. ("Zimmerman") was negligent with respect to construction services being provided at the intersection of Trindle Road and 34`h Street in Hampton Township, Cumberland County on September 19, 2005. 3. Plaintiff further alleges that as a result of such negligence, Zimmerman struck underground telephone lines owned and maintained by Plaintiff resulting in special damages totaling $154,119.49. 4. On January 24, 2008, Zimmerman served upon Plaintiff a Request for Production of Documents in which specific items were requested to be produced to determine the validity of any or all of Plaintiff's claimed damages. A copy of said Request for Production of Documents is attached hereto, incorporated herein by reference and marked as Exhibit A. 5. With respect to Requests for Production of Documents, Pa. R.C.P. No. 4009.12 provides that: The party upon whom the request [for production] is served shall within thirty days after the service of the request (1) serve the answer including objections to each numbered paragraph in the request; and (2) produce or make available to the parties submitting the request those documents and things described in the request to which there is no objection. 6. Four (4) months have elapsed since Zimmerman served the Request for Production of Documents upon Plaintiff and, to date, Plaintiff has not served a written response to the Request for Production of Documents or provided documents in response thereto. 7. Zimmerman is unable to prepare a defense to this action without Plaintiff providing a full and complete Response to the Request for Production of Documents and the documents responsive thereto. 8. Pa. R.C.P. No. 4019 provides that: (a)(1) The court may, on motion, make an appropriate order if: 2 (vii) a party, in response to a request for production or inspection made under Rule 4009, fails to response to that inspection will be permitted as requested or fails to permit inspection as requested. 9. Plaintiff is represented by C. Lee Anderson, Esquire, Smigel, Anderson & Sacks, LLP, 4431 N. Front Street, Harrisburg, PA 17110, telephone number (717) 234- 2401, fax number (717) 234-3611. Additionally, Plaintiff is also represented by James E. Himes, Esquire, 222 Penn Street, Huntingdon, PA 16652, telephone number (814)643- 1740, fax number (814)643-1741. 10. Defendant Zimmerman is represented by Stephen L. Banko, Jr., Esquire, Margolis Edelstein, 3510 Trindle Road, Camp Hill, PA 17011, telephone number (717)760- 7501, fax number (717)975-8124. 11. Co-Defendant, C.M. High, Inc., is represented by Anthony T. Lucido, Esquire, Thomas, Thomas & Hafer, P. O. Box 999, Harrisburg, PA 17108, telephone number (717)441-7057, fax number (717)237-7105. 12. By letter dated March 19, 2008, counsel for Zimmerman informed Plaintiff's counsel that if a full and complete verified written Response to the Request for Production of Documents was not served within thirty (30) days, a Motion to Compel Discovery would be filed. A copy of said letter is attached hereto, incorporated herein by reference and marked as Exhibit B. 13. By letter dated April 30, 2008, counsel for Zimmerman confirmed a telephone discussion with Plaintiff's counsel regarding the filing of a Motion to Compel Discovery. Counsel for Plaintiff indicated at that time that he believed that he would be 3 able to serve a verified Response to the Request for Production of Documents within two weeks of April 30, 2008, and that he concurred in a Motion to Compel Discovery requesting a thirty (30) day Order in the event that a verified response was not served within that two week time period. A copy of said letter is attached hereto, incorporated herein by reference and marked as Exhibit C. 14. Four (4) weeks have now elapsed since counsel's discussion and Plaintiff has not served a full and complete verified Response nor has there been any additional contact from Plaintiff's counsel to discuss the overdue discovery. 15. Accordingly, Zimmerman has no other alternative but to enlist this Honorable Court's assistance in obtaining answers to discovery. 16. No judge has been assigned to this matter and there have been no prior rulings on any issue in this case. 17. On Tuesday, April 30, 2008, counsel for Zimmerman spoke to Plaintiff's counsel, C. Lee Anderson, who concurs in the entry of an Order requiring the production of documents and a written Response to the Request for Production of Documents within thirty (30) days of the requested Order. WHEREFORE, Defendant, L&N Zimmerman Excavating, Inc., prays this Honorable Court enter an Order pursuant to Pa. R.C.P. No. 4019 compelling Plaintiff to serve a full and completed verified Response, including any documents responsive to Defendant's Request for Production of Documents, within thirty (30) days of the date of said Order or face appropriate sanctions upon Motion of Defendant. 4 Date: MARGOLIS EDELSTEIN By: , X\ EN L BANKO, JR. Attorn y for ?efendant, L&N Zimmerman Excavating, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the day of aim 2008, and addressed as follows: C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Attorneys for Plaintiff) James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 (Co-Counsel for Plaintiff) Anthony T. Lucido, Esquire Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Attorney for C. M. High, Inc.) MARGOLIS EDELSTEIN By: ?Wl -M - Angel M. Gayman, S retary 6 ??,?;f STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbankoCa_lmamolisedelstein.com Attorney for Defendant LSN Zimmerman Excavating, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff V. NO. 07-854 CIVIL ACTION -LAW JURY TRIAL DEMANDED C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. Defendants REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT, L&N ZIMMERMAN EXCAVATING, INC. DIRECTED TO PLAINTIFF, VERIZON PENNSYLVANIA - REQUEST 1. TO: Verizon Pennsylvania, Inc. c/o C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Counsel for Plaintiff) and Verizon Pennsylvania, Inc. c/o James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 (Co-Counsel for Plaintiff) Pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, Defendant, L&N Zimmerman Excavating, Inc. requests that Plaintiff, Verizon of Pennsylvania, Inc., produce the documents hereinafter described and permit Defendant, through their attorneys, to inspect them and copy such of them as they may desire. Defendant requests that the documents be made available for this inspection at the offices of Defendant's attorney located at 3510 Trindle Road, Camp Hill, Pennsylvania, within thirty (30) days of the date of service hereof. Defendant's attorneys will be responsible for these documents as long as they are in their possession. Copying will be done at Defendant's expense and the documents will be properly returned after copying has been completed. This request is intended to cover all documents in the possession, custody and control of Plaintiff, their agents, employees, insurance carriers and attorneys and is considered to be continuing. Plaintiff's response to the Request should be modified or supplemented as Plaintiff, and/or their attorneys obtain further additional documents up to the time of trial. Requested documents are more particularly itemized and described as follows: 1. Attached hereto as Exhibit A is the document provided by Plaintiff in Response to its Reply to the Request for Production of Documents propounded by Defendant, C.M. High, Inc. under "Tab 2." With respect to the claim for labor charges totaling 1,557.5 hours in the total amount of $123,742.31, please provide the following information or documentation to support such claim: 2 a. All time sheets or time cards or other time record submitted by such employees who provided such labor and such document should include: 1. Employee name(s); 2. Date(s) worked; 3. Craft or other occupational specialty or skill of such employee(s); 4. The code/FRC (which identifies the type of work performed by such employee); 5. The location of such work; 6. The work order number; and 7. The number of hours devoted by each such employee to the repair at Trindle Road as set forth in Plaintiffs Complaint. b. Detailed listing of hourly pay rate charges included in the claim which shall include, but not be limited to: 1. Labor category (billing area), i.e. repairs and maintenance, removal, capital placement and any other category; 2. Average hourly pay rate of employee; 3. Direct loading factor; 4. Fringe benefits factor; 5. Exempt materials load factor; 6. Motor vehicle load factor; 7. Tools and other equipment factor; 8. Corporate overhead factor; 9. Additional investment factor; and 10. Any other factors including in the loaded labor rate. C. Detailed support for charges included in items b -j above. d. Payroll records for employees identified in the claim to include the week before and subsequent to the labor claimed in Plaintiffs Complaint. e. Cancelled checks for employees identified in Plaintiffs claim for damages. f. Any document which provides support for the claimed administrative costs which details and itemizes each cost. The total of which is $3,058.81. 3 g. Detailed support for Plaintiffs claim that 3.175 engineering hours and costs totaling $558. Which such detailed support should include the names, dates, hours, rates, work performed and time sheets of any person who . was involved in any portion of the time devoted to engineering. h. A complete copy of any document which provides support for Plaintiffs claim of material costs in the amount of $14,415.39. These documents or other information should include the description, quantity, unit costs and should include any invoice for the purchase of such materials. Detailed support for the claimed motor vehicle cost of $6,362.69 with any document which supports, in any fashion, such claim. j. A copy of any document which provides support for Plaintiffs claim for contractor costs of $5,419.71 to include invoices from each such contractor, purchase orders, receipts, cancelled checks or any other document which would support such claim. k. All documents which support, in any fashion, Plaintiff's claim for loss of use of $620 including any document which itemizes such cost. A complete copy of Plaintiffs most recent "Cost Allocation Manual" filed with the Federal Communication Commission. MARGOLIS EDELSTEIN Date: By: STEP V-. BANKO, JR. Attorne or Defendant, L&N Zimmerman Excavating, Inc. 4 EXHIBIT A CLAIMS MANAGEMENT RESOURCES DEBTOR ACCOUNT HISTORY OCT 10, 2006 MASTER RECORD: NAME: C M HIGH CONTRACTORS 1ADD: 341 KING ST BAD ADD: 2ADD: BUSINESS: CITY: MYERSTOWN ST ZIP: PHONE: 7178210332 S.S.N.: LIC NO: 4PODC3 EMPLOY: REM: LOCATION: TRINDLE ROAD, CAMP HILL, REM: PA. SPOUSE: 1074 N Y PA 19067 TYPE OF FACILITY: UNDERGROUND ----------------------------------------ACTIONS ------------------------------ 22120505CBHN 22121305COHN 22011206COHN 96011606ROON 2201250600 22012506COHN 2202060600 22020606COHN 22021606COHN 2202200600 2203010600 22030606COHN 2203210600 2203220600 2204040600 2204050600 2204260600 2205010600 2205030600 2205110600 2205160600 2205260600 2206050600 2206150600 2207050600 220705061 2207190600 2207210600 0801PPI->HOT530505 0801HOT->LRR530505 0814107->10 530505 0814LRF->PN1530505 10081606CBON 10081706000N 10081806ORSN 10081806CBHN. 10082306000N 100831060BON 0911`10->12 530505 0911PN1->PN1S30505 22122605COHN 22012406COHN 22012706COHN 22021606COHN 2202220600 . 2203170600 2203290600 2204240600 22050206COEIN. 2205160600 2205260600 22061906COHN 2207100600 2207270600 0810LRR->LRF530505 10081606CBON 10081706NRON 10082106CBKN 10090106000N 12091506000N ---------=-=-----=---------------- HISTORY ------------------------------ 96112805:15:52 FILE TO SCAN-EK A4113005:16:36 SCANNED COLOR PHOTOS TO THE FILE//AW 22120505:09:01 CLD TT JIM SAILOR/SD TO FAX INFO.& INVOICE TO HIM/INVOICE NOT YET SCANNED/JC 22120505:09:01 JIM SAILOR FAX # 717 232 1340/JC 22121305:09:35 rick burkheimer cld 717 233 8711 X141 CLD.CONCERNING THIS CLM/FAXD INFO TO HIM TDY/JC 22121305:15:55 RICK BERKHEIMER CLD SD NOT THEM/CLD CONTR ON LOC TICKET C M HIGH/SD THIS WAS NOT MARKED/SD HE WOULD HAVE TO GET LOC TICKET AND SEE/TLD HIM I COULD FAX TO HIM SD HE WILL HAVE TO GET THEIR OWN/SD HE WILL INVESTIGATE CL ME BK/SENT JON E-MAIL TO REBILL C M HIGH/341 MYERSTOWN PA 17067/JC 22122605:08:22 VM MESS F/RICK BURKHEIMER/717 233 8711 x141/WANTED TO KNOW HOW TO GET THIS OUT OF THEIR NAME/HAVE ASK FOR RE-BILL BUT MAYBE C M HIGH WORKING FOR THEM/CLD BK GOT VM LFT MESS TO CL ME BK/JC 22011206:14:20 RE-SENT REQ.TO RE-BILL C M HIGH 341 KING ST , MYERSTOWN PA 17067 (ON LOC TICKT)/JC )6011606:10:19 REB TO C M HIGH CONTRACTORS-.SENT INV--BJ 22012406:10:53 SCOTT CLD SD THEY HAD TICKET/AGREED YES THEY DID BUT DID NOT ASK FOR NORTH SIDE/FAXD TO HIM TDY/;JC.. 22012506:08.15 SCOTT CLD SD CL HIM WE NEED TO TALK ABOUT THIS/CLD GOT HIS • d VM/JC -------------- ------------------- --------- - - - -- - - -- - - ---- - HISTORY.----------- DAMAGE/TLD HIM VZ DISAGREE/W/HIM/TLD HIM I WOULD TT VZ BUT HIS RESP TO CL IN CORR TICKET/CLD VZ GOT VM/ASK SOMEONE TO CL ME/JC 2201'2706:13:53 JOSH HELLER CLD SD.JUST GOT CLM TDY GAVE ME HIS PHONE # AND CLM # KEYED ABOVE/JC 22020606:11:42 CLD LFT MESS ON VM FOR JOSH HELLER/JC .22020606:14:53 JOSH CLD SD HE ONLY REC PAGE 1 OF PDR/WANT OTHER TWO DONE/JC 22021606:14:34 JOSH CLD ASK ABOUT LOC TICKET/CLD HIM BK GOT HIS FM/LFT MESS THT THEY ASK FOR S/SIDE OF TRINDEL AND THEY DUG ON NORTH SIDE/THERE WAS NOTHING ON THE SOUTH SIDE/JC 22021606:14:44 JOSH CLD (ADJ) SD THAT THE DMGR HAD MARKED IN WHITE WHERE THEY WANTED MARKED..."BETWEEN FOUNDATIONS" TLD HIM I WIL CK WVZ/CLD VZ GOT VM/ASK THEMTO CL ME ABOUT LOC TICKET/NEED TO KNOW IF AREA OF DMG MARKED IN WHITE/JC 22022006:11:58 DARRELL VZ CLD SD MARKS NOT CLOST TO WHERE CABLE HIT ABOUT 200 FT AWAY/CLD LFT MESS ON VM FOR JOSH HELLER/JC 22022206:08:22 JOSH CLD GOT HIS VM/HE OUT OF OFFICE TDY/ASK HIM TO CL TOMM/JC 22030106:16:40 CLD FOR JOSH ADJ/GUT HIS VM/OFFICE NOW CLOSED/JC 22030606:15:23 JOSH CLD SD HE HAS PICTURES THAT SHOW THE WHITE MARKS/TLD HIM TO SEND TO ME /HE VERY CAREFUL SD DIDNT WANT ANYTHING USED AGAINST THEM/ASK IF ALWAYS SEND TO ATTY /TLD HIM UNLESS HE CONVINCE ME THEY ARE NOT RESP/SD HE WILL SEE WHAT HE CAN SEND/JC 22031706:16:00 TRIED TO CL JOSH HIS OFFICE CLOSED/JC 22032106:08:28 CLD F/JOSH HE IS OUT OF THE OFFICE MOST OF TDY/LFT MESS FOR HIM TO CL ME/JC 22032206:13:06 JOSH SENDING PICTURE/HE BELIEVE BECAUSE TICKET SAYS DIGGING BETWEEN FOUNDATIONS THEY COVERED IT/WILL SEE WHAT VZ SAYS WHEN GET PIC/JC A4032706:14:36 SCANNED COLOR PHOTOS TO THE FILE FROM DMGR//AW 22032906:14:28 GOT PICS FROM JOSH/CLD VZ TO SEND TO THEM NEED THEIR E-MAIL ADDR/JC. 22040406:16:25 LOOKED AT PICS/WHITE MARKS ON OPPOSITE SIDE OF RD/NOT WHERE DAMAGE OCCURRED/CLD FOR JOSH/EXPI, ONE SIDE OF ROAD. WHITE MARKS & ORANGE PAINT/OTHER SIDE NO MARKS NO PAINT/ASK JOSH TO CL ME LFT MESS ON HIS VM/JC 22040506:11:55 SENT EXPL TO CINDY ENGLE/JC 22042406:16:19 NEED TO CL VZ TOMM AM/SEND PICS F/DMGR TO THEM/JC 22042606:14:58 CLD VZ GOT VM ASK HIM TO CL ME AND NEED HIS E-MAIL ADDR TO SEND PICS/JC 22050106:16:35 CLD F/VZ AGAIN/ASK HIM TO CL IF NO RETN CL TOMM CL HIS SUPERVISOR/JC 22050206:09:25 Darryl HELSLEY CLD/HE NOT HAPPY BUT AGREED TO LOOK AT PICTURES FROM INS CO/SD TO E-MAIL TO HIM/DONE/JC 22050306:08:24 e-mail FROM VERIZON ATTACHED TO FILE/SD THAT WHITE MARKS NOT THERE WHEN HE WAS THERE/JC 22051106:08:36 sent ltr to INS TRY TO RESOLVE/JC 22051606:16:05 WILL GIVE A FEW DAYS FOR PENN NATL TO RESP/JC 22051606:16:28 SENT FINAL LTR TO DMGR/JC 22052606:08:43 JOSH HELLER CLD SD THAT DMG IS STATING THAT ANTHER CONTR INVOLVED/SD HE SENT LTR TO ME EXPL DID NOT REC/JC 22052606:09:01 sent E-MAIL BK TO JOSH HELLER STATING IF SOMEONE ELSE INVOLVED TO SEND COI/JC 22060506:13:59 CLD JOSH HELLER ASK IF ANOTHER CONTR INVOLVED/DOUBT IT/BUT CLD JOSH ASK IF HE HAD NAME OF OTHER CONTR/LFT MESS ON HS VM/ASK HIM TO CL ME/JC 4 22061506:15:42 SEE LTR FROM JOSH HELLER ADJ FOR CM HIGH/SD THAT L&N'ZIMM]0ZMAN IS RESP PH# 717 94.9 2192/CLD SD LESTER IS PERSON I NEED TO TT AND ME OUT/ASK HER TO HAVE HIM CL ME TOMM/SD OK/JC 22061906:10:58 JAY W/L&N ZIMMERMAN CLD SD THEY ARE DIRECTED BY C M HIGH/SD TNRV 0M,Y DO WHAT C M HIGH-TELL THEM TO DO/'TLD HIM TO SEND FAX - ------------- ------------------------- HISTORY ------------------ 22070506:11:12 SENT LAW AND LTR WITH FAX FROM SUB TO JOSH HELLER/EXPL THEY WERE NEGLIGENT/JC :2071006:14:36 WAITING FOR RES.P FROM INS/JC 22071906:14:00 WILL GIVE A FEW MORE DAYS B-4 SENDING FOR SUIT/JC .22072706:08:31 SEE STATEMENT FROM SUB/CM HIGH WAS ON SITE AND THEIR FOREMANINSTRUCTED THEM WHERE TO BORE THE HOLE/ DMGR DID EVEN MENTION A SUB CONTR UNTIL RECENTLY/THIS NEED TO GO TO LEGAL/JC 3.0081606:16:02 CALLED HEADER NUMBER AND GOT A RECORDING FROM A MAN NAMED LUKE SAYING HE IS NO LONGER WITH CM HIGH AND NOT TO LEAVE A MESSAGE..... CALLED 717 866 7544 AND SPOKE TO SCOTT AT CM HIGH. REQUESTED COI FOR-L&N ZI.MMERMAN AND WANTED TO FIND OUT IF L&N ZIMMERMAN SUPPLIED THEIR OWN EQUIPMENT WHEN THEY DID THIS JOB.... A LETTER FROM ZIMMERMAN SD THEY WERE WORKING EXCLUSIVELY UNDER CM HIGH.... IF THEY SUPPLIED THEIR OWN MEN AND EQUIP., THIS WOULD PROVE THAT THEY WERENT UNDER CMHIGHS CONTROL ...............SCOTT SD HE WOULD . 10081606:16:02 LOCATE COI AND FAX TO ME............ CALLED FOR JAY ZIMMERMAN AT, 717 949 2192 AND SPOKETO HIS WIFE ..... SHE SD SHE WOULD HAVE MR ZIMMERMAN CALL ME 8-17........ DID ZIMMERMAN HAVE LOCATE TICKET IN HIS-NAME:... FOLLOW.....LJ 10081706:09:55 RCVD V. V. FROM SCOTT OF CM HIGH CONTRACTORS AND HE SD TO CONTACT THEIR INS AGENT JOSH HELLER OF PENN NATL INS AT 800 942 9715 X 3544.... CALLED FOR JOSH AND GOT V.M. SAYING HE WAS OUT OF THE OFFICE UNTIL 8-23..... LMTC-NEED COI...... LJ 10081706:15:46 RCVD V.M. TO CALL JAY ZIMMERMAN AT 717 949 2192..... CALLED TWICE AND LINE WAS BUSY....... FOLLOW .... LJ 10081806:09:39 CALLED FOR JAY ZIMMERMAN AT 717 949 2192 AND SPOKE TO HIS .WIFE-SHE WILL TRY TO HAVE HIM CALL ME TODAY BEFORE 5 P.M. C.S.T.... LJ 10081806:15:42 SPOKE TO MR ZIMMERMAN AND HE SD HE SD HE WORKED FOR CM HIGH.. CALLED CM HIFH AND SPOKE TO GERALD HIGH„ HE VERIFIED ME ZIMMERMANS STORY AND ADMITTED HE CUT THE LINE-SD IT WASMT MARKED .... NEED TO REQUEST FILE. 10082106:13:22 RCVD CALL FROM GERALD HIGH SAYING HE WOULD LIKE TO MEET WITH VZ AT THE DAMAGE SITE SO HE CAN UNDERSTAND WHAT HAPPENED ...... I SD I WOULD CONTACT TECH TO SEE IF THAT IS POSSIBLE..... SPOKE TO DARRYL HELSLEY AND HE SD HE WORKED ABT 2 MILES FROM THE DAMAGE SITE AND WOULD BE GLAD TO MEET WITH MR HIGH....DARRYL REQUESTED MR HIGH CONTACT HIM ON HIS CELL AT 717 514 7918 AND THEY COULD SET UP A MEETING. I CALLED MR HIGH AT 717 866 7544 AND GAVE HIM DARRYL'S NUMBER AND REQUESTED HE SET A MEETING ASAP.... 10082306:13:09 RCVD V.M. TO CALL ADJ JOSH HELLER AT 1 800 942 9715 X 3544 . C/N 02749102..... CALLED AND GOT HIS V.M.GERALD HIGH OF CM. HIGH IS ARRANGING A MEETING WITH VX TECH DARRYL HELSLEY...THEY ARE TO MEET AT THE DAMAGE SITE . 10083106:10:22 SPOKE TO VZ REP DARRYL HELSLEY AT 717 514 7918 AND HE SD GERALD HIGH HAS NOT CALLED HIM TO SET UP AN APPOINTMENT AT THE DAMAGE SITE..... CALLED 717 866 7544 FOR GERALD AND WAS TOLD HE WAS OUT OF THE OFFICE .... LM ON HIS V. M. TO CALL DARRYL HELSLEY AND SET UP A MEETING..... 10090106:08:52 RCVD V.M TO CALL ADJ JOSH AT 800 942 9715 X 3544 C/N 02749102 LOCATE TICKET SAYS DA14AGER WAS TO DIG 300 FT EAST AND WEST ON SOUTH SIDE OF TRINDLE RD..... THEY BORED ON THE SOUTH SIDE OF TRINDLE RD NORTH AND SOUTH ...OUT OF THE DIG ZONE....... GERALD HIGH ADMITTED MR ZIMMERMAN WAS WORKING AS AN EMPLOYEE OF HIS, NOT AS A SUB...AND ADMITTED HITTING THE LINE..-..HE SD THE LINE WAS NOT MARKED .... THE LINE WAS MARKED WHERE THE LOCATE TICKET SD TO MARK-NOT WHERE HE DUG..... HE SHOULDN'T HAVE BEEN DIGGING IF THE LINE nnomnG.na=?? oracurr Htaax?n . . .NFr.T.TrF.N(.R. ------------------------------ --------------------------------------- HISTORY V.M.... LMTC. 12091506:16:00 TEL JOSH, LFT VCML...MW 12091806:13:22 RECVD VCML FROM JOSH, I RET CLL LFT VCML...MW 12091806:14:37 RECVD VCML FROM JOSH, I RET CALL HE ADVSD THAT THEIR INSURED SUB THIS WORK TO ANOTHER COMPANY, HE SD HE PUT THE SUB'S INSURANCE (SELECTIVE), ON NOTICE IN JANUARY OF 2006. HE GAVE LEA FRANK AS THE ADJUSTOR, LEA.FRANK@SELECTIVE.COM CLM # 20562908, I SENT EMAIL TO LEA TO RESPOND ...MW 12100506:14:02 RECVD ANOTHER DENIAL FROM INSURANCE, WILL ND TO.BE LITIGATED ...MW i r'-tiTOR ACCOUNT HISTORY CONTINUED . SINGLE ACCOUNT: C M . JH CONTRACTORS OCT 10, 2006 ----------------------------------------------------------------------------------------------- ACCOUNT #: 530505 CLIENT DEBTOR #: PAPR052951 TYPE OF ACCOUNT: 3 CLIENT NAME: VERIZON (PAE-PLANT) FORWARDED (BY/TO): FOR: 215TPODC31105 FORWARDED FOR: REM: KE COLLECTOR CODE:12 CLIENT NO. : 1074 LAST LETTER: 000 DOCUMENT CODE (1-9): 0 INTEREST FM(R/S/J): S INTEREST %: 0 LABEL/CARD: N NEW BUSINESS: Y DATE OF REFERRAL: 120105 CREDIT FLAG: R BULLETIN CODE: 00 DATE OF SERVICE: 091905 CLERK CODE: 090 STATUS CODE: PR1 DATE OF LAST PAYMENT: 112805 RATE: 0.000 S/L NUMBER: 00 JACK DATE: 101906 AMOUNT REFERRED: $ 154119.49 PRINCIPAL BALANCE: $ 150440.68 DETAIL OF OTHER CHARGES ACCUMULATED INTEREST: $ 620.00 ---------- ------------- OTHER CHARGES: $ 3058.81 CMR FIXED FEE $ 50.00 COURT COSTS: $ 0.00 CMR CONT. FEE $ 3008.81 ATTORNEY FEES: $ 0.00 OTHER: $ 0.00 INTEREST: $ 0.00 ACCT BAL: $ 154119.49 PAYMENT TRANSACTION HISTORY TYPE DATE PAYMENT PAID ON PAID ON PAID ON PAID ON PAID ON PAID ON AMOUNT PRINCIPAL INTEREST OTHER CHGS COURT COST ATTY FEES OTHER ------------------------------------------------------------------------------------------------ NO PAYMENTS THIS ACCOUNT GRAND TOTALS 0.00 0.00 0.00 0.00 0.00 0.00 0.00 FACILITY TYPE # 1 REGION # 7 LOSS OF USE CALCULATION Local Copper Exhange Loop- Regular Telephone Dial Tone Service I FR: Recur-ring Monthly Charge: $ 7.45/ Month FCC recurring charge: $ 0 / Month Non- Recurring Monthly Charge: 40.00 Total: $47.45 /pair/month. Daily Rate = $47.45 divided by 30(days) _ $1.58/pair/day. Resale discount= 21.6% x $1.58 =34 $1.58-.34= $ 1.24 Loss of Use = $1.24/pair/day Action: Multiply $1.24 by the number of damaged pairs to calculate loss of use. Ci cl Y a W N i 1 V V D ...J OX as a . r % 0 Q f "°Q° ?ti ?OOp??yO?N ?N N ????O?po??O?ONhh0O t.1 ????r?l[?1t?ObNNlN1tN F- n' ?lftllNi[?{n?f11A1f/11Y11? •t/f?f1 W 04 x. 1f] lV AM ? 10 Orl W s a? _ N NC N NO ?? Nr i y. ?1ONN ? NN 0144§04""m L0i£0'd IL£ZZZS&Si 01 26bt£?OTS fZ V ? .j V -j Q I- cr 0w Z < W b s? t ? • w ? w • R ? ? Z M R GG ? ? • 1 y Y `s b the r h ? ? Ste' u S ? i? a a a A T ? v t? w JNI2iMNI%a NM" ad S£:St S@. W d35 PDR Packing Slip and Confirmation ,,, , ro,,on 20- eroz Today's Date L 5 VZ- (state) 1 h y PA ? TO: FROM: CMR Claims Department Name: KELLY EVANISH PO Box 60553, 73146 Phone M 570 826 4356 Oklahoma City. OK 73106 Fax M 570 822 2371 C MA e-mail: kel r.ann. evanish!Qvedzon.oom W Authorization n M ? ? L Date of Damage: Q I ? ? (0C J Inside this package are the following items (X): Police Report O Yes LOIN'o ? NIA Locator Ticket es El No ? NIA Photos / t.t!J,res ? No ? NIA Engineering. Work Order Prints 45"Yes ? No ? NIA ECRIS Report (VZ-North) or ? Yes No ? N/A CMA Report (VZ-South) Other Supporting Info: ?(1? M i . Y &l i TIMESHEETS (required) (X) Yes ? No umber of Technician Timesheets: l.Jur?,Sj,i` Hours: 55'x. 5 Number of Engineering Timesheets: Hours: 3, 5 ? CMAIECRIS Report Hours: ? Other: Hours: CONTRACTOR COSTS (Mqukvd) (X) Yes ? No Contractor Name I?Ci ltd P? 2 ???,1 S 3 CAtf a 5 (CMR) Total Costs: $ 5 q I I' Total # BiNs Total Amt. Paid Now 9 p 2os 533.pp??Q3 "U1 &0 eta 930. po taws g 146 O X21-0 Total Total S l Confirmation Receipt Telephone No.: Date Received: ff CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the ? 5 day of January, 2008, and addressed as follows: C. Lee Anderson, Esquire Darryl J. Liguori, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (Attomeys for Plaintifo James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 (Co-Counsel for Plaintiff) Anthony T. Lucido, Esquire Thomas, Thomas & Hafer P. O. Box 999 Harrisburg, PA 17108 (Attorney for C. M. High, Inc.) MARGOLIS EDELSTEIN By: a Angela M. Gayman, Se retary 5 0 0 cxk,?J B Writer. Stephen L. Banko, Jr., Esquire" ATTORNEYS AT LAW Direct Dial: (717)760-7501 www.margohsedel§teitl.com E-Mail: sbankoMmaroolisedelstein.com HARRISBURG OFFICE:* 2008 March 19 3610 TRINOLE ROAD , CAMP HILL, PA 17011 717-975-8114 Esquire C. Lee Anderson FAx 717-975-8124 , Smigel, Anderson & Sacks, LLP 4431 N. Front Street PHILADELPHIA OFFICE:' THE CURTIS CENTER, 4TH FLOOR Harrisburg, PA 17110 601 WALNUT STREET INDEPENDENCE SOUARE WEST et al L&N Zimmerman Excavating Inc v n PA iz R V PHILADELPHIA, PA 19106-3304 . , . . . er o e: 215-922-1100 Our File No. 38500.4-00091 FAX 215-922-1772 PITTSBURGH OFFICE: Dear Lee: 525 WILLIAM PENN PLACE SUITE 3300 PITTSBURGH, PA 15219 On January 23, 2008, 1 served upon you, as counsel for Plaintiff, a 412-281-4256 FAX 412.642-2360 Request for Production of Documents. To date, I have not received your SCRANTON OFFICE: client's response and the documents requested. I would like to avoid the 220 PENN AVENUE unpleasantries and costs associated with motions practice. Accordingly, SUITE 305 PA 18503 S please provide a full and complete verified written Response to the Request CRANTON, 570-342-4231 for Production and the documents requested within thirty days of the date FAX 570-342-4841 of this letter. CENTRAL PENNSYLVANIA OFFICE: P.O. Box 628 HOLLIDAYSBURG, PA 16648 Should you have any questions regarding this matter, please feel 814-695-5064 free to contact me. FAX 814-695-5066 SOUTH NEW JERSEY OFFICE:" SENTRY OFFICE PLAZA 216 HADDON AVENUE, 2ND FLOOR P.O. Box 92222 WESTMONT, NJ 08108 856-858-7200 FAX 856-858-1017 NORTH NEW JERSEY OFFICE: CONNELL CORPORATE CENTER THREE HUNDRED CONNELL DRIVE SUITE 6200 BERKELEY HEIGHTS, NJ 07922 908-790-1401 FAX 908-790-1486 DELAWARE OFFICE: 760 SOUTH MADISON STREET SUITE 102 WILMINGTON, DE 19801 302-888-1112 FAX 302-888-1119 - MEMBER OF THE HARmow GROUP SLBJr./amg cc: James E. Himes, Esquire Anthony T. Lucido, Esquire Jr. "Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency ?b?? C, C? ? Writer: Stephen L. Banko, Jr., Esquire" Direct Dial: (717)780-7501 E-Mail: sbankoArnaroolisedelstein.com ATTORNEYS AT LAW www.margolisedsistein.com HARRISBURG OFFICE:. 3510 TRINDLE ROAD CAMP HILL, PA 17011 717-975-8114 FAX 717-975-8124 PHILADELPHIA OFFICE:. THE CURTIS CENTER, 4TH FLOOR 601 WALNUT STREET INDEPENDENCE SQUARE WEST PHILADELPHIA, PA 1 91 06-33 04 215-922-1100 FAX 215-922-1772 PITTSBURGH OFFICE: 525 WILLIAM PENN PLACE SUITE 3300 PITTSBURGH, PA 15219 412-281-4266 FAX 412-642-2380 SCRANTON OFFICE: 220 PENN AVENUE SUITE 306 SCRANTON, PA 18503 570-342-4231 FAX 570-342-4841 CENTRAL PENNSYLVANIA OFFICE P.O. BOX 628 HOLLIDAYSBURG, PA 16648 814-695-5064 FAX 814-695-5066 SOUTH NEW JERSEY OFFICE:" SENTRY OFFICE PLAZA 216 HADDON AVENUE, 2ND FLOOR P.O. BOX 92222 WESTMONT, NJ 08108 856-858-7200 FAX 856-858-1017 NORTH NEW JERSEY OFFICE: CONNELL CORPORATE CENTER THREE HUNDRED CONNELL DRIVE SUITE 6200 BERKELEY HEIGHTS, NJ 07922 908-790-1401 FAX 908-790.1486 DELAWARE OFFICE: 760 SOUTH MADISON STREET SUITE 102 WILMINGTON, DE 19801 302-888-1112 FAX 302-888-1119 * MEMBER OF THE HARMONm GROUT April 30, 2008 C. Lee Anderson, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 via facsimile (717) 234-3611 Re: Verizon PA., Inc. v. L&N Zimmerman Excavating et al. Our File No. 38500.4-00091 Dear Lee: This is in furtherance of our telephone discussion of Wednesday, April 30, 2008, regarding my intention to file a Motion to Compel Discovery. You indicated that you would be finalizing your Answers to the discovery requests and forwarding them to your client for consideration and verification. You indicated that you thought you would be able to get the Answers to me within two weeks. Accordingly, I am not going to file the Motion to Compel Discovery until after that time. You further agreed that in the event you are unable to provide the verified Answers to discovery requests within that time period, you would concur in the Motion to Compel Discovery which simply requests a thirty (30) day Order, a copy of which is attached for your consideration. Should you have any questions, please feel free to contact me. SLBJr./amg Enclosure cc: James Himes, Esquire (w/ enclosure) via facsimile (814)643-1741 Anthony T. Lucido, Esquire (w/ enclosure) via facsimile (717) 237-7105 Co, Jr. -Certified as a Civil Trial Advocate by dw National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., Plaintiff V. C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. NO. 07-854 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants --------------------------------------------------------------------------------------------------------------------- ORDER AND NOW, this day of 2008, upon consideration of the Motion of Defendant, L&N Zimmerman Excavating, Inc., IT IS HEREBY ORDERED AND DECREED that Plaintiff shall provide a full and complete verified Response to the Request for Production of Documents served upon it on January 24, 2008, including all documents or other items responsive thereto within thirty (30) days of the date hereof, or face appropriate sanctions upon motion of Defendant. BY THE COURT: J. 05/01/2008 13:49 FAX 7179758124 MARGOLIS EDELSTEIN [A001 ** MULTI TX/RX REPORT *** TX/RX NO 0420 PGS. 2 TX/RX INCOMPLETE TRANSACTION OK (1) 17172343811p11111 (2) 18146431741p11111 (3) 17172377105p11111 ERROR INFORMATION Writer: Staphsn L Banko, Jr., Esquir9" Direct Dial: (717)760.7501 Email: sbankoftnargoH9gdeh tein.C001 ATTORNEYS AT LAw www. rnargalisedelsteln.com April 30, 2008 HARRISBURG OFFICE:; 3510 TRINDLE ROAD CAMP HILL. PA 17011 717.975-9114 FAX 717-975.9124 PHILADELPHIA OFFICE:' THE CURTIS CENTEA, 47H FLOOR 601 WALNUT STREET INDEPBNORNGE SQUARE WEST PHILADELPHIA, PA 19108-3304 215.922-1100 FAX 215-922-1772 PITTSBURGH OFFICE: 82$ WILLIAM PENN PLACE SUITE 3300 PmrivuArw. PA 15219 412.281-4256 FAX 412-642-2380 SCRANTON OFFICE: 220 PENN AVENUE SUITE 309 SCRANTON, PA 18503 570.342-4231 FAX 570-342-4841 CENTRAL PENNSYLVANIA OFFICE: P.O. BOX 628 HOLLIDAYSEuRG, PA 168+18 814-895-6064 FAX 814.086-8088 SOUTH NEW JERSEY OFFICE:' SENTRY OFFICE PLAZA 218 HADDON AVENUE, 2ND FL00M1 P.O. Box 92222 WESTMONT, NJ 08108 856-858-7200 FAX 859-868-1017 NORTH NEW JERSEY OFFICE: CONNELL CORPORATE CENTER THR66 HUNDRED CONNELL DRIVE SURE 6200 BERKELEY HEIGHTS, NJ 07922 C. Lee Anderson, Esquire Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 via facsimile (717) 234-3611 Re: Verizon PA Inc v L&N Zimmerman Excavating, et al. Our File No. 38500.4-00091 Dear Lee: This is in furtherance of our telephone discussion of Wednesday, April 30, 2008, regarding my intention to file a Motion to Compel Discovery. You indicated that you would be finalizing your Answers to the discovery requests and forwarding them to your client for consideration and verification. You indicated that you thought you would be able to get the Answers to me within two weeks. Accordingly, I am not going to file the Motion to Compel Discovery until after that time. You further agreed that in the event you are unable to provide the verified Answers to discovery requests within that time period, you would concur in the Motion to Compel Discovery which simply requests a thirty (30) day Order, a copy of which is attached for your consideration. Should you have any questions, please feel free to contact me. CI R.Ir /amn , Jr. r?.a ('"ter ? } '; .::,1 c. _q _. 4,. -'!^t ? ,-, , r,. i (,?a 7 r ? 1 r -a? 'E t t ? l .v„ ?" ?..-.? r _ 0 4 JUN 042wi? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VERIZON PENNSYLVANIA, INC., NO. 07-854 Plaintiff CIVIL ACTION - LAW V. JURY TRIAL DEMANDED C.M. HIGH, INC. and L&N ZIMMERMAN EXCAVATING, INC. Defendants --------------------------------------------------------------------------------------------------------------------- [9?9T AND NOW, this (elf day of , 2008, upon consideration of the Motion of Defendant, L&N Zimmerman Excavating, Inc., IT IS HEREBY ORDERED AND DECREED that Plaintiff shall provide a full and complete verified Response to the Request for Production of Documents served upon it on January 24, 2008, including all documents or other items responsive thereto within thirty (30) days of the date hereof, or face appropriate sanctions upon motion of Defendant. J. RV TuG r'nl IRT- rMy*" .,9 /N" -vw. L40::? CI .C Wd 9- t t b .40 VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO.07 C.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, C. Lee Anderson, Esquire, hereby certify that I have served a true and correct copy of Plaintiff Verizon Pennsylvania, Inc.'s Reply to Defendant L&N Zimmerman Excavating, Inc.'s Request for Production of Documents Directed to Plaintiff: as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid, on this 3 day of July, 2008: Anthony T. Lucido, Esquire Thomas Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Date: Ju 3 , 2008 By: C. Ue A derson, Esquire I.D. No. 1315 Smigel, Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff t rn Gordon A. Einhom, Esquire I.D. 59006 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7054 geinhom@tthlaw. com VERIZON PENNSYLVANIA, INC., Plaintiff V. C.M. HIGH, INC. AND L&N ZIMMERMAN EXCAVATING, INC., Defendants Attorneys for C. M. High, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-854 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of the undersigned, Anthony T. Lucido, Esquire, formerly with the law firm of Thomas, Thomas & Hafer, LLP, as attorney for Defendant C.M. High, Inc. in the above matter. SCHUTJER BOGAR LLC Anthony L. Lucido, Esquire I.D. No. 76583 417 Walnut Street, 4T" Floor Date: -1 f a IO g Harrisburg, PA 17101 (717) 909-0353 alucido@schutjerbogar.com Please enter the appearance of the undersigned, Gordon A. Einhorn, Esquire, as attorney for Defendant C.M. High, Inc. in the above matter. THOMAS, THOMAS & HAFER, LLP don A. Einhorn, Esquire D. No. 59006 305 North Front Street P.O. Box 999 Date: q/ v/o Ir Harrisburg, PA 17108-0999 (717) 441-7054 geinhorn@tthlaw.com CERTIFICATE OF SERVICE I, Gordon A. Einhorn, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant C.M. High, Inc. hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: C. Lee Anderson, Esquire SMIGEL, ANDERSON & SACKS, LLP 4431 N Front Street Harrisburg, PA 17110 James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 Stephen L. Banko, Jr., Esquire MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Date: 9/?//o y 620285.1 THOMAS, THOMAS & HAFER, LLP rdon A. Einhorn, Esquire 'I. D. No. 59006 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7054 geinhorn@tthlaw.com cxi -r7 CIO V yr ' 4r. t' A 4i #14 VERIZON PENNSYLVANIA, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-854 CIVIL TERM C.M. HIGH, INC. and L & N ZIMMERMAN EXCAVATING, INC.,: CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Wednesday, April 20, 2011, before the Honorable Edward E. Guido, Judge. Present as co-counsel for the Plaintiff was C. Lee Anderson, Esquire, and James E. Himes, Esquire. Present for the Defendant C.M. High, Inc., was Gordon A. Einhorn, Esquire. Present for the Defendant L & N Zimmerman Excavating, Inc., was Stephen L. Banko, Jr., Esquire. The parties were recently informed that a former employee of Defendant C.M. High, Inc., is medically unavailable for the next several months. Since all parties agree that he is a key witness, this matter will have to be continued to the September 2011 trial term. The Court Administrator is directed to list it for trial during that term. N By the Court, s?•..n MM -0 M- :;, r ? wW.n © ocID r--r -n C C3'r t XCD Edward E. Guido, J.' C. Lee Anderson, Esquire Xrothonotary James E. Himes, Esquire Court Administrator Co-counsel for the Plaintiff Gordon A. Einhorn, Esquire Counsel for Defendant C.M. High, Inc. Stephen L. Banko, Jr., Esquire Counsel for Defendant L & N Zimmerman Excavating, Inc. srs T I4r ta?F-rt?t-, Gordon A. Einhorn, Esquire , D. 59006 & HAFER, LLFI ` THOMAS, 11 QICT 21 PM 12: 0 7 305 North Front Street P.O. Box 999 ,UBEFL4C, PEP?S'r"?.???"? ? Harrisburg, PA 17108 j F ; (717) 441-7054 geinhorn@tthlaw. corn VERIZON PENNSYLVANIA, INC., Plaintiff V. C.M. HIGH, INC. AND L&N ZIMMERMAN EXCAVATING, INC., Defendants Attorneys for Defendant C. M. High, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-854 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT C. M. HIGH, INC.'S ANSWER TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF 1. Admitted. 2. Admitted. 3. Admitted. 4. After reasonable investigation and without the benefit of the trial transcript, C. M. High is without sufficient information to admit or deny the truth of the averments in this paragraph and they are therefore denied. 5. Denied as a conclusion of law to which no response is required. 6. Denied as a conclusion of law to which no response is required. 7. Denied as a conclusion of law to which no response is required. 8. Denied as a conclusion of law to which no response is required. 9. Denied as stated. The listed stated in the Restatement (Second) of Torts, § 288A (1965) is not an exhaustive list of all such circumstances. 10. Denied as a conclusion of law to which no response is required. 14 11. Admitted. 12. Denied. Zimmerman's failure to call the One-Call System resulted in no harm to the Plaintiff because of the call made by C. M. High, which the jury concluded gave sufficient notice to Verizon of the location of the excavation. 13. Denied as a conclusion of law to which no response is required. 14. Admitted. 15. Denied that Plaintiff is entitled to a new trial on any issues and particularly with regard to those claims against C. M. High. 16. Admitted. WHEREFORE, Defendant C. M. High, Inc., respectfully requests that Plaintiff's Motion for Post-Trial Relief be denied. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Pi6or'don A. Einhorn, Esquire I.D. No. 59006 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7054 Date: I •/ Z ?'/?/ geinhorn@tthlaw.com 2 CERTIFICATE OF SERVICE I, Gordon A. Einhorn, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, attorney for Defendant C.M. High, Inc. hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: C. Lee Anderson, Esquire Smigel, Anderson & Sacks, LLP 4431 N Front Street Harrisburg, PA 17110 James E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP Date: 1003992.1 oez- G on A. Einhorn, Esquire I.D. No. 59006 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 441-7054 geinhorn@tthlaw.com 6? 16 ?A VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PE*S, 7.VANIA v. N0.07-854 rC.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF MOTION FOR POST-TRIAL RELIEF° TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please withdraw the Motion for Post-Trial Relief filed by Verizon Pennsylvania, Inc. Smigel, Anderson & Sacks Date: November 16, 2011 By: C. e derson, Esq I.D. No 21315 Smigeq Anderson & Sacks, LLP 4431 N. Front Street Harrisburg, PA 17110 (717) 234-2401 and James E. Himes, Esquire I.D. No. 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-584 C.M. HIGH, INC. and CIVIL ACTION - LAW L & N ZIMMERMAN EXCAVATING, INC., Defendants. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, C. Lee Anderson, Esquire, attorney for the Plaintiff, hereby certify that I served a true and correct copy of the foregoing Praecipe for Withdrawal of Motion for Post-Trial Relief upon the persons indicated below by depositing a copy of the same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, and addressed as follows by first-class mail, on the date below: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Gordon A. Einhorn, Esquire Thomas Thomas & Hafer 305 North Front Street, 6t' Floor Harrisburg, PA 17101 SMIGEL, ANDERSON Date: November 16, 2011 By: I.If No . 21315 4431 N Front Street Harris PA 17110 (717) 4-2401 and James E. Himes, Esquire I.D. No.: 06706 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorneys for Plaintiff LLP