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HomeMy WebLinkAbout02-5982 WILLIAM WOOMER, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, tld/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, and ENCOMPASS INSURANCE, formerly CNA INSURANCE, Defendants NO. 0,)..5'9 P). Cl.-..;J I..v-~ PRAECIPE TO ENTER APPEARANCE AND ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for the Plaintiff in the above-captioned case and have the Sheriff issue a Writ of Summons against Tracy Blumstein and Richard Blumenstein, father and son. tldlb/a Precision Marine Service, Rt. 26 at 994, James Creek, Pennsylvania, Dunn Insurance Agency, 200 W. Main Street, Mechanicsburg, Pennsylvania 17055, Encompass Insurance, formerly CNA Insurance, 401 Penn Street, Reading, Pennsylvania 19612. \ 2_\(, -6<- Date Respectfully Submitted, (l~Q. c'~L Arthur S. Cohen. Esquire, ID. No. 18548 Attorneys for Plaintiffs COHEN & AXINN 1904 N. Juniata St P.O. Box 597 Hollidaysburg, P A 16648 (814) 695-5518 r '4... \ t, ~R <: j-.J , ~ "" " >-.J C' "-' ,.., ~, " ' fr ;L~ : t. v-, v --...I c' . \ t' C) c, '-,.,- ."- --, i 9~: ~- ") -. ~~ - ~ d' (J,) Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS WILLIAM WOOMER Plaintiff Court of Common Pleas Vs. No. 02-5982 In CivilAction-Law TRACY BLUMENSTEIN AND RICHARD BLUMENSTEIN, father and son, t/dlb/a PRECIION MARINE SERVICE RT 26 AT 994, JAMES CREEK, PA. DUNN INSURANCE AGENCY 200 W MAIN STREEET, MECHANICSBURG, P A 17055, ENCOMPASS INSURANCE FORMERLY CNA INSURANCE 401 PENN STREET, READING, PA 19612 Defendant ; To TRACY BLUMSTEIN AND RICHARD BLUMENSTEIN t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE. You are hereby notified that WILLIAM WOOMER the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date DECEMBER 17, 2002 CURTIS R. LONG Prothonotary By (I'Y~ (,) )l~ Deputy Attorney: Name: ARTHUR S COHEN, ESQ Address: 1904 N JUNIATA STREET, POBOX 597 HOLLIDAYSBURG, PA 16648 Attorney for: Plaintiff Telephone: (814) 695-55518 Supreme Court ID No. 18548 WILLIAM WOOMER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION - LAW v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, tld/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Defendant, R.T. Dunn Insurance, Inc. (incorrectly designated as Dunn Insurance Agency) in the above-captioned matter. Respectfully submitted, MILLER and MILLER By: Thomas Miller, Esquire, ID:49801 G. Thomas Miller, Esquire, ID:7219 Attorneys for R. T. Dunn Insurance, Inc. Date: January 22, 2003 WILLIAM WOOMER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, tJd/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Entry of Appearance was this day served upon other cmmsel of record and unrepresented defendants by United States First class mail, postage prepaid, addressed as follows: Arthur S. Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, PA 16648 Precision Marine Service Attention: Tracy and Richard Blumenstein Rout 26 at 994 James Creek, PA 16657 Encompass Insurance 401 Penn Street Reading, P A 19612 BY: p~ THOMA R. MILLER, ESQUIRE Date: January 22,2003 o ~ ..c:,. -oiX rn r,' :;~ :x ~S~. -<L~ ~C,J :E:; ,~-". ~CI :;t~C; Z ~ C:) W (~) .'''''1 .~.~ r"V (~l -'0 =<': '-,.::;--." .<,~h"\ -=:\ ~~ :0 -< ~ C- --l WILLIAM WOOMER Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE : DOCKET NO. 02-5982 Defendants PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue Rule upon the Plaintiff to file a Complaint within twenty (20) days from service thereof, or judgment of non pros. MILLER and MILLER By: ~ Thoma . Miller, Esquire J.D. #49801 401 South 320d Street Camp Hill, P A 17011 (717) 920-5500 January 22,2003 RULE TO FILE COMPLAINT TO: Plaintiff, William Woomer and his counsel, Arthur S. Cohen, Esquire You are hereby directed to file and serve a Complaint within twenty (20) days from service hereof or judgment of non pros. (J~ -j~ k> _~ Prothonotary ~ Date: January .:2.3 ,2003 WILLIAM WOOMER Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE : DOCKET NO. 02-5982 Defendants CERTIFICATE OF SERVICE I hereby certify that a copy ofthe foregoing Praecipe for Rule to File Complaint was this day served upon other counsel of record and unrepresented defendants by United States First class mail, postage prepaid, addressed as follows: Arthur S. Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Precision Marine Service Attention: Tracy and Richard Blumenstein Rout 26 at 994 James Creek, PA 16657 Encompass Insurance 401 Penn Street Reading, P A 19612 Date: January 22,2003 0 0 " ) '- c: (.,) -;"1 S- , '"t) GO' -:> I In f"j {:- Z :T. I Z " N , I ;-~ (f) J>- W I .' -< c:' ~ -v - j> C : ; ~-~ Z )> 0 N ) , c ~; Z r::- =< :D . .J -< SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-05982 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOOMER WILLIAM VS BLUMENSTEIN TRACY 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: BLUMENSTEIN TRACY TDBA PRECISION MARINE SERVICE but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of HUNTINGDON County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 14th , 2003 , this office was in receipt of the attached return from HUNTINGDON Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Huntingdon Co 64.56 .00 101.56 01/14/2003 WILLIAM T. SMITH So // R. Thomas Kline Sheriff of cumberland County Sworn and subscribed to before me thi s :H1."'- day of (,<<<' 6'7 dav-!J A.D. ~C.~~. Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-05982 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOOMER WILLIAM VS BLUMENSTEIN TRACY 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: BLUMENSTEIN RICHARD TDBA PRECISION MARINE SERVICE but was unable to locate Him In his bailiwick. He therefore deputized the sheriff of HUNTINGDON County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 14th , 2003 , this office was in receipt of the attached return from HUNTINGDON Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 01/14/2003 WILLIAM T SMITH Sworn and subscribed to before me ..., this ..E.i,v( day of y~ .J.t> 03 A.D. ~ O. /ju1.~, q,.rzp Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-05982 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOOMER WILLIAM VS BLUMENSTEIN TRACY 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: ENCOMPASS INSURANCE FORMERLY CNA INSURANCE but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of BERKS County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 14th , 2003 , this office was in receipt of the attached return from BERKS ~ v So answe ~.J ~. .--;;~ .~~ ./~ ~ R. omas Kline / / Sheriff of Cumberland County Sheriff's Costs: Docketing Out of County Surcharge Dep Berks County 6.00 9.00 10.00 24.65 .00 49.65 01/14/2003 WILLIAM T SMITH Sworn and subscribed to before me this ;(.jd 7 day of <jom'~'J A.D. ;!ov3 qr" I). - W fvulP I u fii Prothonb ary SHERIFF'S RETURN - REGULAR CASE NO: 2002-05982 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOOMER WILLIAM VS BLUMENSTEIN TRACY ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon DUNN INSURANCE AGENCY the DEFENDANT , at 1253:00 HOURS, on the 20th day of December, 2002 at 200 W MAIN STREET MECHANICSBURG, PA 17055 by handing to WILLIAM R CARLISLE, AGENT ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 6.90 .00 10.00 .00 22.90 ~'~/?Y'. ~// -.0;> ~- '-- _ ;'1."~ ,,- #'" ./" . ;.:: ~~~I_'~... ~/,:_e~ R. Thomas Kline 01/14/2003 WILLIAM T SMITH I Sworn and Subscribed to before By: me thi s .2 8,,~ day of Li:w, , . "'}' Jua3 A . D . / /.- ~'~t'~o~::~" ~ SHERIFF OF BERKS COUNTY 633 Court Street, Reading, PA 19601 Phone: 610-478-6240 Main Fax: 610-478-6222 Sheriff Fax: 610-478-6072 Barry Jozwiak, Sheriff Eric J Weaknecht, Chief Deputy AFFIDAVIT OF SERVICE DOCKET NO. 02-5892 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF BERKS Personally appeared before me, ELVIN ORTIZ, Deputy for Bany J. Jozwiak, Sheriff of Berks County, Pennsylvania, who being duly sworn according to law, deposes and says that on DECEMBER 30, 2002 at 10:27 AM, he served the annexed WRIT OF SUMMONS upon ENCOMPASS INSURANCE, FORMERLY CN.A INSURNACE , within named defendant, by handing a copy thereof to JEANNA LORENZ, SECRETARY, at 401 PENN STREET, READING, Berks County, Pa., and made known to defendant the contents thereof. r #cr-r S CO., PA d subscribed before me day of JANUARY, 2003 OTAAIAL SEAL TAMMY RODRIGUEZ, Notary Public Reading, Berks County, PA M~ Co('\m,ssion Expires 10.Q6-2003 Service made as set forth above. {!:;:;swero .(4..J SHERIFF OF BERKS COUNTY, PA Sheriff's Costs in Above Proceedings $ 75.00 DEPOSIT $ 24.65 ACTUAL COST OF CASE $ 50.35 AMOUNT OF REFUND 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 part 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.L1I072 SHERIFF'S OFFICE HUNTINGDON COUNTY, PENNSYLVANIA 241 Mifflin Street Huntingdon, PA 16652 Telephone: 814-643-0880 William G. Walters, Sheriff WILLIAM WOOMER NO. 5982 TERM2002 VS: TRACY BLUMENSTEIN NOW, JANUARY8 ,2003 , AT 1234 A.M./P.M. I SERVED THE WITHIN WRIT OF SUMMONS UPON TRACY BLUMENSTEIN AT HUNTINGDON COUNTY SHERIFF'S OFFICE, 241 MIFFLIN STREET, HUNTINGDON, PA 16652 BY HANDING TO TRACY BLUMENSTEIN, PERSONALLY ONE TRUE AND CORRECT COPY/COPIES OF THE WITHIN WRIT OF SUMMONS AND MADE KNOWN TO TRACY THE CONTENTS THEREOF. SWORN AND SUBSCRIBED TO BEFORE ME THIS DAY OF 20_ , A.D. SO ANSWERS, jt/~ s: /d~ WILLIAM G. WALTERS, SHERIFF PKOTHONOTAKY/NOTARY PUBL1C DEPUTY AMY SNEATH CHIEF DEPUTY/DEPUTY COSTS: REC & DOC . . . SERVICE . . . . MILEAGE/POSTAGE SURCHARGE . . AFFIDAVIT . . MISCELLANEOUS 9.00 15.00 34.56 6.00 (407) TOTAL COSTS 64.56 PAID SHERIFF'S OFFICE HUNTINGDON COUNTY, PENNSYLVANIA 241 Mifflin Street Huntingdon, PA 16652 Telephone: 814-643-0880 William G. Walters, Sheriff WILLIAM WOOMER NO. 5982 TERM2002 VS: RICHARD BLUMENSTEIN NOW, JANUARY 8 , 2003 , AT 1422 A.M.jP.M. I SERVED THE WITHIN WRIT OF SUMMONS UPON RICHARD BLUMENSTEIN AT RT. 26 @ SHY BEAVER ROAD, JAMES CREEK, PA 16657 BY HANDING TO TRACY BLUMENSTEIN, SON ONE TRUE AND CORRECT COPY/COPIES OF THE WITHIN WRIT OF SUMMONS AND MADE KNOWN TO TRACY THE CONTENTS THEREOF. SWORN AND SUBSCRIBED TO BEFORE ME THIS DAY OF 20_ , A.D. SO ANSWERS, jI/~ c;:/U~ WILLIAM G. WALTERS, SHERIFF PROtHONOtARY/NOtARY PUBL1C DEPUTY AMY SNEATH CHIEF DEPUTY/DEPUTY COSTS: REC & DOC . . . SERVICE . . . . MILEAGE/POSTAGE SURCHARGE . . AFFIDAVIT . . MISCELLANEOUS SEE FIRST ENTRY TOTAL COSTS SEE FIRST ENTRY In The Court of Common Pleas of Cumberland County, Pennsylvania William Woaner VS. Tracy Blumenstein et al Encanpass Insurance formerly No. CNA Insurance SERVE: 02 5982 civil Now, December 19, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~. ,././..'-;" /j-,,-/. ,.",. . .~,. ,1'/ ..,~..,. ~ ~<""'"."''''<!'. ~." "';.;"._- ,.., r "P; .t:"''f...,,''''''''--'''"'''''''" , Sheriff of Cumberland County, P A Affidavit of Service Now, ,20~,at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, PA Sworn and subscribed before me this _ day of ,20_ COSTS SERV1CE MILEAGE AFFIDA VIT $ $ In The Court of Common Pleas of Cumberland County, Pennsylvania William Woomer VS. Tracy Blumenstein et al SERVE: Richard Blumenstein tdba -Precision Marine-Service No. 02 5982 civil Now, December 19, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Huntingdon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~~'.. '/." -;,' .. . '-""./:.,;~. ~ ~1"r:;,,,~ A~"~~..-f' "[ .-- Sheriff of Cumberland County, PA Affidavit of Service Now, ,20~,at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County, P A Sworn and subscribed before methis_dayof ,20_ COSTS SERVICE MILEAGE AFFIDA VIT $ $ In The Court of Common Pleas of Cumberland County, Pennsylvania William Woaner VS. Tracy Blumenstein et al SERVE: Tracy BlumenRtein tdba -Precision Marine Service .. No. 02 5982 civil Now, December 19, 2002. , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Huntingdon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~'/? A # -' .~.,:/. -;.' ~ ...r,/~."".... ;;;;.<'~""":d< A/ L::"':;;:~~ -.{ '.' - Sheriff of Cumberland County, PA Affidavit of Service Now, ,20~,at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff 0 f County, PA Sworn and subscribed berore me this_day of ,20_ COSTS SERV1CE MILEAGE AFFIDA VIT $ $ WILLIAM WOOMER, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE: AGENCY, ENCOMPASS INSURANCE, Defendants CIVIL ACTION - LAW NO. 02-5982 NOTICE TO DEFEND 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 by the Complaint or for any other claims or relief requested by the Petitioner. 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 17018 (800)990-9108 WILLIAM WOOMER, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE: AGENCY, ENCOMPASS INSURANCE, : Defendants CIVIL ACTION - LAW . . NO. 02-5982 COMPLAINT NOW COME, the Plaintiff, William Woomer, by and through his attorney, Arthur Cohen, Esquire, Cohen, Axinn, & Cohen, and sets forth the following facts in support of his Complaint as follows: 1. The Plaintiff, William Woomer, is an adult individual who resides at P.O. Box 500, James Creek, Pennsylvania. 2. The Defendant, Tracy Blumenstein, is an adult individual whose address is Rt. 26 at 994, James Creek, Pennsylvania. 3. The Defendant, RiChard Blumenstein, is an adult individual whose address is Rt. 26 at 994, James Creek, Pennsylvania. 4. The Defendant, Dunn Insurance Agency, is an insurance agency located at 200 W. Main street, Mechanicsburg, Pennsylvania 17055. 5. The Defendant, Encompass Insurance, is an insurance company having offices located at 401 Penn street, Reading, Pennsylvania 19612. On information and belief, Encompass Insurance was formerly CNA Insurance. 6. The Plaintiff, William Woomer, at all times hereinafter mentioned, was t/d/b/a Raystown Boat Exchange. 7. The Defendant, Dunn Insurance Agency, at all times hereinafter mentioned, was an insurance agent for Tracy Blumenstein and Richard Blumenstein, t/d/b/a Precision Marine Service. 8. On December 18, 2000, a fire destroyed the leased premises together with customers' boats, service equipment, tractor equipment and tools of Plaintiff, as well as, his boat show related equipment. 9. Subsequent to the fire, the Plaintiff secured the services of a investigation firm to determine the origin and cause of the fire loss. 10. After the investigation was completed, the conclusion by the private investigator was that the fire was caused by misuse of a Fisher Wood Stove, which use had been altered by the Defendants Blumensteins. 11. The Plaintiff was not listed as a loss-payee on the insurance policy of Defendants Blumenstein and precision Marine Service nor did he receive any proceeds as loss-payee. COUNT I. WILLIAN WOOMER VS. TRACY BLUMENSTEIN AND RICHARD BLUMENSTEIN 12. The allegations contained in Paragraphs 1 through 11 are herein incorporated by reference and made a part hereof. 13. The Defendants maintained a Fisher Wood burner located approximately 15 feet from the work shop of the Defendants Blumensteins North wall along the East wall facing West. 14. The Defendants had used the wood burning stove to burn wood and waste oil. 15. The stove had been modified to burn waste oil which was a function not intended for by the stove. 16. The burning of oil in the stove added to the amount of soot and smoke cresote in the stack. Further, an increase of clear soot had built up in the pipe serving as the stove's flue. 17. An employee of the Defendants Blumensteins built a fire in the stove on December 18, 2000 which ignited combustible materials near the flue and consequently engulfed the building. 18. The Defendants acts of negligence are set forth as follows: (a) Defendants knew or should have known that altering a wood burning stove would create an increased risk of a fire hazard; (b) Defendants failed to properly use the wood burning stove; (c) Defendants failed to insure that their agents, servants, or employees were properly trained to use the wood burning stove; (d) Defendants failed to employ reasonable and necessary procedures for the safety of persons and property in using the wood burning stove; (e) Defendants failed to keep the waste oil from being used in the wood burning stove and did cause the wood burning stove to burn waste oil which it was not built to do; 19. As a direct result of the failure to properly use the wood burning stove, Plaintiff William Woomer was caused to suffer and continues to suffer the following damages: (a) Loss of a brand new International Tractor _ $25,000; (b) Boat show equipment: docks, steps, railings, platforms, lighting, desks, cabinets, chairs, carpet, portable trailer, signage - $50,000; (c) Tools and Equipment - $20,000 Special Tools Equipment _ $15,000, Compressor - $2,500; Dyno Parts and Equipment _ $6,500, Grass cutting equipment - $3,100, Dozer - $8,200, Yard arms _ $5,000, Yard trailer - $1,600, 2 Gulf carts - $4,000, Motor toter frames - $6,500; (d) Parts Inventory - $64,000; (e) Environmental issues, clean up removal of debris estimated cost $100,000; (f) Loss of profits on 20 boats - $120,000; (g) Loss of boats for boat shows - (2 boat shows, 60 boat sales per boat show or 120 boats @ $6,000 per boat) _ $720,000; (h) Lawsuits against the Plaintiff from insurance companies who sued the Plaintiff along with the Defendants Blumensteins for loss of boats; The insurance companies are, as follows: Allstate, state Farm, and Mutual Insurance Company, damages in excess of $30,000; (i) other financial losses causing the demise of Plaintiff's business - $2,000,000; WHEREFORE, the Plaintiff demands jUdgment against the Defendants for a sum in excess of $30,000 plus interest and costs and demands a trial by jury. COUNT II. WILLIAM WOOMER VS. THE DUNN INSURANCE AGENCY NEGLIGENCE 20. The allegations contained in Paragraphs 1 through 19 are herein incorporated by reference and made a part hereof. 21. Pursuant to the Lease Agreement between the Plaintiffs and Defendants, Tracy Blumenstein and Richard Blumenstein, t/d/b/a precision Marine Service, a requirement of the Lease was that the Plaintiff be made a loss-payee on insurance provided for by the Tenant Defendants. 22. A binder was issued which showed the Plaintiff as loss- payee, a copy of which is herein attached, incorporated by reference, and made a part hereof. 23. Defendant, Dunn Insurance Agency, was negligent in the filing particulars: (a) failing to provide for Plaintiff being covered on the actual policy; (b) failing to provide notice to the Plaintiff that there was no coverage; (c) failing to monitor the status of the Defendants Blumensteins' policy which would inform the Defendants that there was need to include the Plaintiff as loss-payee on the policy; (d) failing to include on the issued policy a loss payable clause in favor of the Plaintiff. 24. Had Plaintiff been aware that there was a lapse in the coverage by the insured Blumensteins, Plaintiff would then have required that the policy been altered to include his name as loss payee. 25. As a direct consequence of the lapse and failure to be covered, the Plaintiff has been damaged in that he has received no payment for his losses and has suffered in addition to the loss of the benefits of insurance with other losses which resulted from the failure to make payment on a claim that should have been presented: (a) As a direct consequence of the lapse and failure to be covered, the Plaintiff was caused to suffer the following damages: (1) Loss of a brand new International Tractor _ $25,000; (2) Boat show equipment: docks, steps, railings, platforms, lighting, desks, cabinets, chairs, carpet, portable trailer, signage - $50,000; (3) Tools and Equipment $20,000 Special Tools Equipment - $15,000, Compressor - $2,500; Dyno Parts and Equipment - $6,500, Grass cutting equipment - $3,100, Dozer - $8,200, Yard arms - $5,000, Yard trailer - $1,600, 2 Gulf carts - $4,000, Motor toter frames - $6,500; (4) Parts Inventory - $64,000; (5) Environmental issues, clean up removal of debris _ estimated cost $100,000; (6) Loss of profits on 20 boats - $120,000; (7) Loss of boats for boat shows - (2 boat shows, 60 boat sales per boat show or 120 boats @ $6,000 per boat) $720,000; (8) Lawsui ts against the Plaintiff from insurance companies who sued the Plaintiff along with the Defendants Blumensteins for loss of boats; The insurance companies are, as follows: Allstate, State Farm, and Mutual Insurance Company, damages in excess of $30,000; (9) Other financial losses causing the demise of Plaintiff's business - $2,000,000; (c) Following the fire, as a result of the failure of the Defendant, Dunn Insurance Agency, to provide for coverage as promised for the Plaintiff, the Plaintiff was forced to incur substantial expense and obtain short-term funding in order to sustain himself. follows: As a result the Plaintiff incurred fees as $15,000; (1) interest and penalties in an amount in excess of (2) legal fees in an amount in excess of $5,000; (3) travel and telephone costs in an amount not less than $1,000 and has found it necessary to either obtain alternative financing or to file bankruptcy. WHEREFORE, the Plaintiff demands jUdgments against the Defendant in an amount in excess of $25,000 plus costs of suit and demand a jury trial. COONT III. WILLIAN WOOMER VS. ENCOMPASS INSORANCE 26. The allegations contained in Paragraphs 1 through 26 are incorporated by reference and made a part hereof. 27. At all times hereinafter mentioned, it is believed that Mike Reif was an agent, servant, or employee of the Defendant, Encompass Insurance, acting in his official capacity as a claim adjustor. 28. During the investigation conducted by Mike Reif, Mike Reif made contact with pOlice, with William Woomer himself, and with the carrier of William Woomer. 29. The above-named Mike Reif verbally told others including the above that the fire was caused by William Woomer. 30. Said communications were false and defamatory. 31. As a direct result of such false and defamatory communication, the Plaintiff was unable to secure a release from the fire marshall to this date or fully recover damages 32. The statements were made intentionally, willfully, maliciously, and in reckless disregard of the truth. WHEREFORE, Plaintiff seeks damages in excess of $25,000 and requests a jury trial. Respectfully submitted, ~~-d &-(5 Date (L;t-)vLu~) C~.~ Arthur s. Cohen, Esqu1re, 1.0. No. 18548 , / Attorneys for Plaintiff COHEN & AXINN 1904 N. Juniata st. P.O. Box 597 HOllidaysburg, Pa. 16648 (814) 695-5518 VERIFICATION I verify that the statements of fact contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. .3 -d-~--Q:) Date .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ENNSYL V ANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. CIVIL DIVISION NO.: 02-5982 PRAECIPE FOR ENTRY OF APPEARANCE Filed on behalf of: Defendants, Tracy J. Blu nstein and Richard A. Blumenstein t/aand /aPrecisionMarine Service Counsel of Record for thi Party: CATHIEJ.FAGAN, ATT RNEY-AT-LAW Pa. ill No. 33334 JA.\1ES W. CREENAN, ~SQUIRE Pa. ill No. 79213 WAYMAN, IRVIN & Me ULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ENNSYLV ANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMP ASS INSURANCE, Defendants. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Cathie J. Fagan, James W. Creenan, an Wayman, Irvin & McAuley, LLC on behalf of TRACY J. BLUMENSTEIN and RICHARD A. B UMENSTEIN, t/a and d/b/a PRECISION MARINE SERVICE. Papers should be served at the the cover sheet. A JURY TRIAL IS DEMANDED. Respectfully submitted, WAYMAN, IRVIN & McAULE ,LLC Cathie J. Fag Attorneya law Pa. ill No. 33334 James W. Creenan, Esquire Pa. ill No. 79213 Attorneys for Defendant Precision Marine CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing PRAECI FOR ENTRY OF APPEARANCE has been served on the following counsel of record by first c1 ss U.S. mail, postage pre-paid, or by hand delivery, this 1 fr>.. day of April, 2003: Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N, Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Thomas R. Miller, Esquire MILLER AND MILLER 401 South 32nd Street Camp Hill, PA 17011 Encompass Insurance 401 Penn Street Reading, P A 19612 \VATh'fAN, IRVIN & McAULE~, LLC ! CATHIE J. FA, AT JAMES W. CREENAN, Attorneys for Defendants o ~.; <~ ""CJ {;:-Y rn~-'. ;::: ~-~ tJ~, :; -< r- <' j.> r- Z'~ ~C.' Pc -7 ~ . ... :-::::;11' ~ "' J '_0' f',') ::1 .-1 .1 '". :IJ -< WILLIAM WOOMER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CNIL ACTION - LAW v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, tld/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants DEFENDANT R. T. DUNN INSURANCE AGENCY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 1. Motion to Strike Pursuant to Pa.R.C.P.I028(a)(2) Failure to Attach Writings 1. Plaintiff s complaint against R. T. Dunn Insurance Agency sounds in negligence regarding the Agency's alleged failure to include Plaintiff as a "loss-payee" on the commercial insurance policy it procured for co-defendants Tracy and Richard Blumenstein, t/d/b/a Precision Marine Service. In support of such allegation Plaintiff states in paragraph 21 and 22 of his complaint: (21) Pursuant to the Lease Agreement between the Plaintiffs and Defendants, Tracy Blumenstein and Richard Blumenstein, t/d/b/a Precision Marine Service, a requirement of the Lease was that the Plaintiff be made a loss-payee on insurance provided for by the Tenant Defendants. (22) A binder was issued which showed the Plaintiff as loss-payee, a copy of which is herein attached, incorporated by reference, and made a part hereof. 2. Neither the Lease Agreement nor the binder were attached to Plaintiffs complaint. 3. Pa.R.C.P. 1019(i) states when "any claim... is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof. . ." 4. Because the Plaintiffs negligence action against the Dunn Agency is based upon a duty the Agency owed the Plaintiffby virtue of these referenced writings, they are clearly indispensable to the claim and must be attached. 5. Plaintiff faults the Dunn Agency for "failing to provide for Plaintiff being covered on [the Blumenstein] policy; failing to provide notice to the Plaintiffthat there was no coverage on said policy" and "failing to monitor the status of Defendant Blumensteins' policy which would inform the Defendants that there was need to include the Plaintiff as loss-payee on the policy". Complaint, Paragraph 23(a),(b),(c). 6. The duty of the Agency to insure Plaintiff, which it allegedly negligently breached, apparently flows from the contractual obligation contained in the Lease and binder Agreements. 7. Plaintiffs failure to attach such writings, upon which its negligence claim against the Agency is based, is violative of Rule of Law 1019(i) and subject to objection pursuant to Pa.RC.P. 1028(a)(2). WHEREFORE, Defendant RT. Dunn Insurance Agency respectfully requests its Preliminary Objection pursuant to Pa.RC.P. 1028(a)(2) be granted and Plaintiffs complaint against it be dismissed, with prejudice. II. Motion to Strike Pursuant to Pa.RC.P 1028(a)(2) Averments of Special Damage Shall be Specifically Stated 8. Plaintiffs damage claims against Defendant RT. Dunn Insurance Agency are set forth in paragraph 25 ofthe complaint. 9. In such paragraph Plaintiff makes general claim for such items as "(4) Parts Inventory - $64,000; (5) Environmental issues, clean up removal of debris - estimated cost - $100,000; (6) Loss of profits on 20 boats - $120,000; (7) Loss of boats for boat shows - (2 boat shows, 60 boat sales per boat show or 120 boats @ $6,000 per boat) - $720,000; (9) Other financial losses causing the demise of Plaintiffs business - $2,000,000;" (c) Following the fire, as a result of the failure of the Defendant, Dunn Insurance Agency, to provide for coverage as promised for the Plaintiff, the Plaintiff was forced to incur substantial expense and obtain short-term funding in order to sustain himself. As a result the Plaintiff incurred fees as follows: (1) interest and penalties in an amount in excess of$15,000; (2) legal fees in an amount in excess of $5,000; (3) travel and telephone costs in an amount not less than $1,000 and has found it necessary to either obtain alternative financing or to file bankruptcy." 10. The general lumped sum damages lack sufficient detail to form the basis for computation or to allow an informal investigation. Their non-specific form is in violation of Pa.RC.P. 1019(f). 11. Further, the pleading of such general property damage and as a consequence thereof impairment of earning capacity and incurrence "of substantial expense" are consequential damages, rather than general, requiring sufficient particularity as to not only how such damages are specifically determined but why they follow as a necessary consequence ofthe injury complained of. 12. Plaintiffs failure to plead these damages with the requisite specificity is violative of Pa.RC.P. 1019(f) and therefore subject to preliminary objection pursuant to Pa.RC.P. 1028(a)(2). WHEREFORE, Defendant RT. Dunn Insurance Agency respectfully requests its Preliminary Objection pursuant to Pa.RC.P. 1028(a)(2) regarding Plaintiff's damage claims be granted and Plaintiff's complaint against it be dismissed, with prejudice. MILLER and MILLER By: flt!.- Thomas . Miller, Esquire MILU R and MILLER 401 South 32nd Street Camp Hill, PA 17011 717-920-5500 Attorney for Dunn Insurance Agency Date: April 21, 2003 WILLIAM WOOMER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant R. T. Dunn Insurance Agency's Preliminary Objections to Plaintiffs Complaint was this day served upon the following by United States First class mail, postage prepaid, addressed as follows: Arthur S. Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Kate J. Fagan, Esquire Wayman, Irvin & Mcauley, LLC Suite 1624, Frick Building 437 Grant Street Pittsburgh, PA 152219 Encompass Insurance 401 Penn Street Reading, P A 19612 BY: THOMA~ESQUrnE Date: April 21, 2003 (') c ~. "'Pl: rrti- , :z. ..\.. ~: ~~) t;:: '-. "C' . ~_? l.. "",-::C t' :p,~ :2 C, .\, ~.....) (-.- (;0 -'-'. -::... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. NOTICE TO PLEAD To Plaintiff: You are hereby notified to file a written response to the enclosed PRELIMINARY OBJECTIONS within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, : I 93228.1 CIVIL DIVISION NO.: 02-5982 PRELIMINARY OBJECTIONS TO COMPLAINT Filed on behalf of: Tracy J. Blumenstein and Richard A. Blumenstein t/a and d/b/a Precision Marine Service Counsel of Record for this Party: CATHIEJ, FAGAN, ATTORNEY-AT-LAW Pa. ill No. 33334 JAMES W. CREENAN, ESQUIRE Pa. ill No. 79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, P A 15219 (412) 566-2970 (412) 391-1464 (Facsimile) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, come the Defendants, RICHARD A. BLUMENSTEIN, JR., TRACY J. BLUMENSTEIN t/d/b/a PRECISION MARINE SERVICE, by and through their counsel, WAYMAN, IRVIN & McAULEY, LLC, and file the following Preliminary Objections to Plaintiff s Complaint: 1..- Introduction 1. Plaintiff commenced this Civil Action on December 17, 2002, raising varied causes of action against Richard A. Blumenstein, Jr., Tracy J. Blumenstein t/d/b/a Precision Marine Service ("Precision"), Dunn Insurance Agency ("Dunn"), and Encompass Insurance ("Encompass"). 2. These Preliminary Objections primarily assert that venue is improper against Precision in the Court of Common Pleas of Cumberland County. Alternatively, Precision requests that this Civil Action be transferred to Huntingdon County under the doctrine forum non conveniens. : I 93228. I Finally, these Preliminary Objections raise the Plaintiffs failure to attach certain documents to the Complaint in violation of the Pennsylvania Rules of Civil Procedure. II. Factual Back~round 3. Plaintiff pleads the following as the residence(s) of the parties: (a) Plaintiff resides in James Creek, Pennsylvania. (Complaint, ~ 1). This Honorable Court can take notice that James Creek is a municipality located in Huntingdon County, Pennsylvania. (b) Tracy Blumenstein, one of Precision's principals, resides in James Creek, Pennsylvania. (Complaint, ~ 2). This Honorable Court can take notice that James Creek is a municipality located in Huntingdon County, Pennsylvania. (c) Richard Blumenstein, Precision's other principal, resides in James Creek, Pennsylvania. (Complaint, ~ 3). This Honorable Court can take notice that James Creek is a municipality located in Huntingdon County, Pennsylvania. (d) Dunn maintains a place of business in Mechanicsburg (Complaint, ~ 4), which is in Cumberland County, Pennsylvania. ( e) Encompass maintains offices in Reading, Pennsylvania (Complaint, ~ 5), which is in Berks County, Pennsylvania. :193228.1 -2- 4. The Complaint sets forth separate claims against Precision in Count I, against Dunn in Count II, and against Encompass in Count III. 5. In sum, Count I alleges negligence against Precision relating to the cause of a fire at Plaintiffs and Precision's business location in Huntingdon County. 6. In sum, Count II alleges negligence against Dunn relating to the procurement of an insurance policy covering the business premises in Huntingdon County. 7. In sum, Count III alleges defamation against Encompass relating to the investigation o fthe cause ofthe fire at the business premises in Huntingdon County. III. Preliminary Objections A. Improper Venue 8. Improper venue shall be raised by preliminary objection in accordance with Rule 1006 and 1028(a)(2). 9. Pennsylvania Rule of Civil Procedure 1006 proscribes the judicial district( s) in which a Civil Action may be commenced against an individual defendant as follows: (a) Except as otherwise provided by Subdivisions (b) and (c) of this Rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law. :193228.1 -3- Pa. R. Civ. P. 1006(a) (West 2002) (emphasis added). I 10. Venue against Tracy Blumenstein and Richard Blumenstein does not exist in Cumberland County pursuant to Subdivision (a), because: (1) they were not and could not be served in Cumberland County; (2) the cause of action against did not arise in Cumberland County; and, (3) none of the transactions or occurrences "out of which the cause of action arose" took place in Cumberland County. 11. Precision was served in Huntingdon County. 12. The cause of action asserted against Precision arose in Huntingdon County. 13. All transactions or occurrences "out of which the cause of action arose" took place in Huntingdon County. (Complaint, ~~ 8 & 13-18). 14. Venue against Tracy Blumenstein and Richard Blumenstein does not exist in Cumberland County pursuant to Subdivision (b), to the extent Plaintiffs have relied on Rules 2130 or 2156, the same principles above apply equally as Precision only conducted business in Huntingdon County. 15. Venue against Tracy Blumenstein and Richard Blumenstein does not exist in Cumberland County pursuant to Subdivision (c), because 'joint or joint and several liability" does not arise from the pleaded claims among Precision and Dunn - the only party with any connection to Cumberland County - or among Precision and Encompass. The alleged negligence concerning I The 2003 Amendments to Rule 1 006 concerning medical malpractice actions have no bearing on the arguments raised herein. :193228.1 -4- the cause and origin of the Fire are completely unrelated to any alleged negligence in Dunn's procurement of insurance coverage or Encompass's alleged defamation. Precision relies on the accompanying Brief to support fully this position. 16. Therefore, venue in Cumberland County does not exist against Precision, and this Honorable Court must sustain this Preliminary Objection and dismiss the Complaint against Precision. 17. Accordingly, this Civil Action must be dismissed on grounds of improper venue pursuant to Rule 1 006( a). 18. Defendants request that this Honorable County transfer this Civil Action to Huntingdon County, Pennsylvania. B. Forum Non Conveniens 19. In the alternative, Defendants request that this Honorable Court sustain its second Preliminary Objection, namely, that this Civil Action is barred by the notion of forum non conveniens pursuant to Rule 1 006( d) (1 ). 20. Additionally, Precision sets forth this basis for relief in the accompanying Petition to Transfer Venue to the extent required under prevailing case law. , 21. This Honorable Court may transfer this Civil Action, or at least the claims against Precision, to the Court of Common Pleas of Huntingdon County pursuant to Pennsylvania Rule of Civil Procedure 1006(d)(1). 22. As set forth above, the claims against Precision arise from a fire to commercial property in Huntingdon County. :193228.1 -5- 23. Both Plaintiff and Precision reside in Huntingdon County. 24. The fire has subjected both Precision and Plaintiff (and/or his corporation) to numerous separately filed Civil Actions in Huntingdon County. In particular, at least six (6) other lawsuits are now pending against Precision in Huntingdon County. Those cases likely will be consolidated into a single action upon this Honorable Court's resolution of these Preliminary Objections. 25. Defending this action in a county wi th no connection to the claims against Precision will be, to say the least, inconvenient, burdensome, not warranted by the facts of this case or the controlling law, and vexatious. Upon information and belief, most of the parties, all material witnesses, and all documents necessary to adjudicate the multiple claims arising from this fire loss are centered or located in Huntingdon County, Pennsylvania. Moreover, maintenance ofthis Civil Action in Cumberland County will cause duplicitous litigation, prejudice to the parties in all actions, a hindrance of the full and efficient pleading and discovery of the matters at issue, significantly increased costs and expenses, and, perhaps, inconsistent results from having identical issues pending in separate judicial districts. 26. In the Huntingdon County cases, Precision will be filing a Motion to Consolidate all those pending lawsuits arising from the same fire referenced in the Complaint in this Civil Action. 27, Plaintiff has waived or is estopped from asserting any objections to this Preliminary Objection, as Precision previously provided notice and moved for the transfer to Huntingdon County of one ofthe related Civil Actions filed in Allegheny County on the same factual and legal grounds set forth herein. :193228.1 -6- 28. The claims against Dunn (Count II) arise from the alleged negligence placement of insurance coverage and cannot form a basis for proper venue for Count 1. 29. The claims against Encompass (Count III) sound in defamation and cannot form a basis for proper venue for Count 1. C. Failure to Attach Writin~s to Complaint 30. The Complaint references the conclusions of an investigator hired to determine the origin and cause ofthe hire, but Plaintiff has not attached any such report to the Complaint. 31. The Complaint makes an allegation concerning Precision's insurance policy and asserts that Plaintiff should have been made a "loss payee" on the policy (Complaint, -,r 11), but Plaintiff has not attached: (1) any writing obligating Precision to have named Plaintiff as a "loss payee"; (2) the "binder"; and, (3) the subject insurance policy. 32. Plaintiff's failure to attach these writings to the Complaint violates Pa. R. Civ. P. 1019(h)&(i). D. Insufficient Specificity 33. In Paragraphs 10 and 11 of the Complaint, Plaintiff alleges an obligation to name Plaintiff as a "loss payee" on Precision's insurance policy. 34. In Paragraph 9, Plaintiff references a fire investigation and conclusions from that investigation. : I 93228.1 -7- 35. In Paragraph 8, Plaintiff references the "leased premises" and Plaintiff references a "Lease Agreement" in Paragraph 21. The Complaint fails to identify the terms of or attach any lease to the Complaint. 36. In Paragraph 22, Plaintiff references a "binder" relating the subject insurance policy, but none is attached to the Complaint. 37. In each of the forgoing respect, the Complaint fails for lack of sufficient specificity regarding the claims raised against or involving Precision. 38. In Paragraph 19(h), Plaintiff alleges damages resulting from unspecified lawsuits against the Plaintiff, but the Complaint fails to identify each lawsuit by caption, case number, and court. 39. In Paragraph 19(i), Plaintiff merely alleges entitlement to recover "other financial losses causing the demise of Plaintiffs business - $2,000,000.00." This allegation fails to provide sufficient specificity as to the factual basis, legal theory, or damages computation that would support this claim. 40. The legal grounds in support of these Preliminary Objections are set forth in the accompanying Brief in Support of Preliminary Objections. WHEREFORE, Defendants respectfully request that this Honorable Court sustain these Preliminary Objections, and dismiss this Civil Action or, alternatively, issue an appropriate Order transferring this case to Huntingdon County, Pennsylvania, and grant such other relief as is just, fair, and appropriate. : 193228.1 -8- Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC thie J. Fagan, Attorney-at-law a. ill No. 33334 ames W. Creenan, Esquire Pa. ill No. 79213 Attorneys for Defendant Precision Marine : 193228.1 -9- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS has been served on the following counsel of record by first class u.s. mail, postage pre-paid, or by hand delivery, this 2~ day of April, 2003: Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Thomas R. Miller, Esquire MILLER AND MILLER 401 South 32nd Street Camp Hill, PA 17011 Encompass Insurance 401 Penn Street Reading, P A 19612 WAYMAN, IRVIN & McAULEY, LLC CA HIEJ.FAGAN,ATTORNEY-AT-LAW J ES W. CREENAN, ESQUIRE omeys for Defendant Precision Marine : 193228.1 (') c <~ .,., ."j"\ mr-r; Z:r.1 6; ;~~~ -<-- ~C) ~o :1>2 z ~ '::1 L".J (.') ...::-.r', :r". ...t~ ~::v f'..) U. '~ '1 ---"f '-~' ':; (".::, ;T~ ~~ S:~ in ~ -< -"D Cf? (.., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/dIb/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. : 193227.J CIVIL DIVISION NO.: 02-5982 PETITION TO CHANGE VENUE PURSUANT TO Pa. R. Civ. P.I006(d) Filed on behalf of: Defendants,. Tracy J. Blumenstein and Richard A. Blumenstein tla and dIb/aPrecision Marine Service Counsel of Record for this Party: CATHIEJ.FAGAN, ATTORNEY-AT-LAW Pa. ill No. 33334 JAMES W. CREENAN, ESQUIRE Pa. ill No. 79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. PETITION TO CHANGE VENUE AND NOW, come the Defendants, RICHARD A. BLUMENSTEIN, JR., TRACY J. BLUMENSTEIN t/d/b/a PRECISION MARINE SERVICE, by and through their counsel, WAYMAN, IRVIN & McAULEY, LLC, and file the following Petition to Transfer Venue Pursuant to Pa. R. Civ. P. 1006(d): 1. This Civil Action alleges negligence against Precision Marine Service concerning the cause and origin of a Fire to Plaintiff's commercial property in Huntingdon County, Pennsylvania. 2. All of the facts alleged in the Complaint appear to have occurred in Huntingdon County. 3. All of the claims asserted in the Complaint relate to the Fire that took place in Huntingdon County. 4. The Complaint does not state any basis that would establish Cumberland County as the proper forum for this Civil Action. : 193227.1 5. Plaintiff's chosen forum is an inconvenient, vexatious and burdensome forum for the maintenance of this Civil Action, 6. In particular, Plaintiff's chosen forum, solely from the facts pleaded in the Complaint, is burdensome, oppressive, vexatious and inconvenient in the fi)llowing manner: (a) Both Plaintiff and Precision reside in Huntingdon County; (b) The fire has subjected both Precision and Plaintiff (and/or his corporation) to numerous separately filed Civil Actions in Huntingdon County. (c) In particular, at least six (6) other lawsuits are now pending against Precision in Huntingdon County. (d) Those cases likely will be consolidated into a single action upon this Honorable Court's resolution ofthese Preliminary Objections. ( e) Defending this action in a county with no connection to the claims against Precision will be, to say the least, inconvenient, burdensome, not warranted by the facts of this case or the controlling law, and vexatious. (f) Upon information and belief, most of the parties, all material witnesses, and all documents necessary to adjudicate the multiple claims arising from this fire loss are centered or located in Huntingdon County, Pennsylvania. (g) Moreover, maintenance of this Civil Action in Cumberland County will cause duplicitous litigation, prejudice to the parties in aU actions, a hindrance of the full and efficient pleading and discovery of the matters at issue, significantly increased costs and expenses, and, perhaps, inconsistent results from having identical issues pending in separate judicial districts; : 193227.1 (h) In the Huntingdon County cases, Precision will be filing a Motion to Consolidate all those pending lawsuits arising from the same fire referenced in the Complaint in this Civil Action. (i) Plaintiffhas waived or is estopped from asserting any objections to this Preliminary Objection, as Precision previously provided notice and moved for the transfer to Huntingdon County of one ofthe related Civil Actions filed in Allegheny County on the same factual and legal grounds set forth herein. G) The claims against Dunn (Count II) arise from the alleged negligence placement of insurance coverage and cannot form a basis for proper venue for Count 1. (k) The claims against Encompass (Count III) sound in defamation and cannot form a basis for proper venue for Count 1. 7. Therefore, Precision Marine requests that this Honorable Court find that Cumberland County is an inconvenient and/or vexatious forum under the principles of forum non conveniens and Pa. R. Civ, P. 1006(d). 8. Alternatively, Precision Marine requests that the Court set forth a discovery schedule followed by an evidentiary hearing upon which the parties can elicit facts and develop a record for this Court to make a determination pursuant to Pa. R. Civ. P. I006(d). 9. Precision Marine relies on the brief attached to the accompanying Preliminary Objections as legal support for the requirement that this Honorabt.e Court permit the parties to take discovery in furtherance of this Petition. : 193227.1 WHEREFORE, Precision Marine Service respectfully requests that this Honorable Court transfer this Civil Action to Huntingdon County, Pennsylvania pursuant to Pa. R. Civ. P. l006(d) based on the facts pleaded in the Complaint, or, alternatively, set forth a discovery schedule followed by an evidentiary hearing limited to the purpose of determining whether this Civil Action should be transferred from Cumberland County to Huntingdon County for the convenience of the parties and witnesses pursuant to Rule 1006(d)(1). Respectfully submitted, WAYMAN, lRVIN' & McAULEY, LLC B. w~ C thie J. Fagan, Attorney-at-law P . ID No. 33334 es W. Creenan, Esquire Pa. ID No. 79213 Attorneys for Defendant Precision Marine :] 93227.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing PETITION TO TRANSFER has been served on the following counsel of record by first class u.s. mail, postage pre-paid, or by RO hand delivery, this 2:; day of April, 2003: :193227.1 Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N, Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Thomas R. Miller, Esquire MILLER AND MILLER 401 South 32nd Street Camp Hill, PA 17011 Encompass Insurance 401 Penn Street Reading, P A 19612 WAYMAN, IRVIN & McAULEY, LLC (') c: ;t,:v -uijj rnnt -"""1-. "'-, _~_r 2C.< (.Q" ... '~" ,. ~~~'~; j;~ 21.-,- j>e, c z: _4 -< (:) c.,.., n -i'~ ~ :::." ';.:J ",) 0) "iJ \...;::.:.. :11 '."1 . /.-( . .J(-::l ,-'II '~~ ?'~ brn c';~ :0 ~ -"0 :-z ~ ::::> .-1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next term of Argument Court. CAPTION OF CASE (entire caption must be stated in full) WILLIAM WOOMER (Plaintiff) vs. TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, Father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCaMP ASS INSURANCE (Defendants) No. 02-5982 Civil Action - Law 2002 1. State matter to be argued (i.e., plaintiff's motion for new trial. Defendant's demurrer to complaint, etc): Defendant RT. Dunn Insurance Agency, Inc.'s Preliminary Objections to Plaintiffs Complaint 2. Identify counsel who will argue case: (a) for plaintiff: address: Arthur Cohen, Esquire Cohen, Axinn & Cohen 1904 N. Juniata Street P.O. Box 597 Holidaysburg, P A 16648 (b) for defendant: Thomas R Miller, Esquire address: 401 South 32nd Street Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. _ 4. Argument Court Date: May 21, 2003 AttomeYf~ RT. Dunn Insurance Agency, Inc. Dated: April 29, 2003 WILLIAM WOOMER Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION - LAW TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, Vd/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE : DOCKET NO. 02-5982 Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Listing Case for Argument was this day served upon the following by United States First class mail, postage prepaid, addressed as follows: Arthur S. Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Kate J. Fagan, Esquire Wayman, Irvin & Mcauley, LLC Suite 1624, Frick Building 437 Grant Street Pittsburgh, P A 15219 Encompass Insurance 401 Penn Street Reading, PA 19612 BY: ~ THOMA~' R. MILLER, ESQUIRE Date: April 29, 2003 o C ;?- -cC f\lr ~~- /:. C/J it :::4 -< ": ~~.,\!\ ~----) <.::;.. : ,,"": r"..J \0 WILLIAM WOOMER Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CNIL ACTION - LAW v. TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE : DOCKET NO, 02-5982 Defendants DEFENDANT R.T. DUNN INSURANCE AGENCY, INC.'S ANSWER TO DEFENDANT PRECISION MARINE'S PETITION TO CHANGE VENUE WITH NEW MATTER AND NOW comes Defendant RT. Dunn Insurance Agency, Inc., incorrectly designated as Dunn Insurance Agency in Plaintiffs Complaint, by its counsel, Miller and Miller, and submits the following answer in opposition to Defendant Precision Marine's Petition to Change Venue: 1. Denied as stated. Plaintiff does not allege the name of the County in which the subject fire occurred. 2. Denied. The allegations against Defendant RT. Dunn Insurance Agency, Inc. are contained in Count II of the Complaint and allege, inter alia, negligence by the Agency regarding the issuance of a binder and a failure to monitor Co-defendant Blumensteins' insurance policy. The Agency's actions in issuing a policy of insurance, via an insurance binder, which it allegedly performed in a negligent manner, would necessarily have occurred from its Mechanicsburg, Cumberland County, Pa., offices. 3. Denied for the reasons set forth in response to paragraphs I and 2, above. 4. Denied. Defendant, RT. Dunn Insurance Agency, Inc. is a Pennsylvania corporation. As such venue is governed by Pa.RC.P. 2179 and is proper against such a defendant in Cumberland County where its business is located and conducted. Further, the Complaint alleges the Defendant Agency was negligent in failing to, inter alia, provide for Plaintiff "being covered on the actual policy" and "failing to provide notice to the Plaintiff that there was no coverage". (~~23 (a), (b)). Such alleged negligence flows from a duty apparently created by virtue of the issuance of a binder, presumably by the Defendant Agency from its Cumberland County office. Therefore, the negligence cause of action alleged against this insurance agency "arose" in Cumberland County, entitling Plaintiffto bring his lawsuit against, inter alia, the Dunn Agency in this County. 5. It is specifically denied Plaintiffs chosen forum is inconvenient, vexatious or burdensome, in that the transaction out of which the cause of action arose against the Defendant Agency took place in Cumberland County, where the Defendant Agency's business is located. To the contrary, any forum other than Cumberland County would be inconvenient and burdensome for this Defendant. 6 (a) - (d) After reasonable investigation, Answering Defendant is without information sufficient to admit or deny the allegations of these paragraphs which are therefore denied and their relevancy placed at issue. ( e) Denied. Venue in Cumberland County is warranted by the facts and controlling law for the reasons set forth above. (f) It is denied all material witnesses and documents are located in Huntingdon County in regard to the defense of Defendant R.T. Dunn Agency, Inc. for the reasons set forth above. g) It is denied R.T. Dunn Insurance will be prejudiced by the maintenance of this action in Cumberland County. To the contrary, the Dunn Agency will face significant increased costs and expenses ifthis matter were transferred to Huntingdon County. Regarding the remaining allegation of "duplicitous" (sic) litigation, Answering Defendant is without information sufficient as to the "pending companion action(s) in Huntingdon County involving allegations similar to those pending against the Dunn Agency in the present action." Therefore, Answering Defendant demands specific proof and places the relevance of this allegation at issue. (h)- (i) After reasonable investigation, Answering Defendant is without information sufficient to provide an informed response to these allegations. They are therefore denied and their relevance is placed at issue. (j) Denied. It is admitted Count I of the Complaint is not directed against RT. Dunn. However, Count II of the lawsuit sounds in negligence against this Cumberland County Defendant Agency regarding conduct which occurred in Cumberland County. Therefore, pursuant to Pa.RC.P. 2179 an adequate factual and legal basis exists to proceed with this action in Cumberland County. (k) It is admitted that Count III of the Complaint sounds in defamation against Co-defendant Encompass Insurance and is separate and distinct from Count I. 7. - 8. It is admitted Precision Marine is requesting change of venue. It is denied the basis for such request is sufficient to overcome the great weight which must be afforded Plaintiff s choice of forum or to warrant the creation of a record to further pursue this issue. 9. It is admitted Precision Marine relies on its brief for its request that this Court permit the parties to develop a record, via discovery on this issue. It is denied a legal basis exists under the facts as alleged in Plaintiffs Complaint to justify such relief. WHEREFORE, Defendant RT. Dunn Insurance Agency, Inc. request Defendants Tracy J. Blumenstein and Richard A. Blumenstein, t/d/b/a Precision Marine Service's Petition for Change of Venue be denied. NEW MATTER 10. Pursuant to Pa.RC.P. 1006 (c), "An action to enforce a joint. . .liability against two or more defendants.. .may be brought against all defendants in any County in which venue may be laid against any one of the defendants. . . (emphasis added)" Because venue against the RT. Dunn Agency is proper in Cumberland County, this action against allegedly jointly liable Co-defendants Precision Marine Service and Encompass Insurance is permissible in Cumberland County as well. 11. Indeed, on the facts as alleged by Plaintiff, claims for contribution against Co- defendants Precision Marine and its apparent liability carrier, Encompass Insurance would be warranted by the RT. Dunn Agency, further connecting these Defendants to Cumberland County. WHEREFORE, Defendant RT. Dunn Insurance Agency, Inc. request Defendants Tracy J. Blumenstein and Richard A. Blumenstein, t/d/b/a Precision Marine Service's Petition for Change of Venue be denied. Respectfully submitted, MILLER and MILLER /;JII/IL- By: . ' ThomrulR Miller, Esquire Attorney ID# 49801 401 South 32nd Street Camp Hill, PA 17011 717-920-5500 Attorney for Dunn Insurance Agency Date: April 29, 2003 -_.__.__._..~..".....- '"._....-._._--~-~.~--~-~<_.""._- WILLIAM WOOMER Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE : DOCKET NO. 02-5982 Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing R. T. Dunn Insurance Agency, Inc. 's Answer to Defendant Precision Marine's Petition to Change Venue with New Matter was this day served upon the following by United States First class mail, postage prepaid, addressed as follows: Arthur S. Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Kate J. Fagan, Esquire Wayman, Irvin & Mcauley, LLC Suite 1624, Frick Building 437 Grant Street Pittsburgh, P A 15219 Encompass Insurance 401 Penn Street Reading, P A 19612 BY: ~ THOMAS . MILLER, ESQUIRE Date: April 29, 2003 0 ' , C t....._l ::::':<"" ~"-'- LJ t n"', >: ~-.;.,) z ,- U' ( - -<". t r:' *'D -- .~ -.'" , ......,.. r:/ ....- (- ;;; C r'-:J - ~ i- ~;J -< \ 0 -~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subni.tted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next ArglDent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) WILLIAM WOOMER, vs. ( Plaintiff) TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, EMCOMPASS INSURANCE, ( Defemant) No. 5982 Civil xmc 2002 1. State matter to be argued (i.e., plaintiff's IlDtion for Dai trial. defemantts demurrer to complaint, etc.): Defendants' Preliminary Objections 2. Identify COlmSel who will argue case: (a) for plaintiff: Arthur Cohen, Esq. Address: 1904 N. Juniata Street P.O. Box 597 (b) for defendant: James W. Creenan, Esq. Address: 1624 Frick BUilding Pittsburgh, PA 15219 3. I will notify all parties in writing within u-u days that this case has been listed for argLJnent. 4. Argunent Court Date: 5/21/03 Dated: 4/28/03 ~far Blumensteins _._~--~--,.._-,.._.._,_._._------,,_.----,..,--,-'"-~.,.. and Precision Marine c: c , -- '. "'.....4>- ~ > ....' '.. m -, ...... . , z (j) , C' .;:.,(. ~'- -0 ..;:;; ~(~ --..- >c i" , ~~ "'t r.:- :..(1 =2 (Xl .~ol-... APR 29 2D031)/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. ORDER OF COURT AND NOW, this l s:+- day of ~~-> 2003, upon consideration of Defendants , Petition to Transfer Venue, as ..ell aa lill8}lf8Biti~ lfl~_mSftt, IT IS HEREBY ORDERED AND DECREED that: (a) The Parties are permitted to undertake such discovery as may be necessary for the Court to make a determination pursuant to Rule 1006(d)(I). Discovery pursuant to this Order shall close on ~ ~O ~f (b) An evidentiary hearing is scheduled for ~~, ~l1~ ~ 7..00> at '1"--0 .( m. before the undersigned; )I> Th~'S i~V'1 ~ti shalybe ~nsferrejfto th~ourtjtSf Co on R eas Hunti;igdor-:ounty,~nnsYlvffia pu~ant to ule 1 06 (1). I J( ~~~ f"'\ .. Q? S'()C1' J. V1N\i/\lASNN3d AlNn08 Oi,!\nH38Vm8 BIt! I - : W.l "0 . ,\ Ii, I \" j ,,8V1C;\;, , j~lLj3C;r"Cl~,: .: i _1;-1 l ~l.-. ..... ,'.... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. CIVIL DIVISION NO.: 02-5982 UNCONTESTED MOTION TO CONTINUE RULE 1006 DISCOVERY SCHEDULE Filed on behalf of: Defendants, Tracy J. Blumenstein and Richard A. Blumenstein t/a and d/b/a Precision Marine Service Counsel of Record for this Party: CATHIE J, FAGAN, ATTORNEY-AT -LAW Pa. ill No. 33334 JAMES W. CREENAN, ESQUIRE Pa. ill No. 79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. UNCONTESTED MOTION TO CONTINUE RULE 1006 DISCOVERY SCHEDULE AND NOW, come the Defendants, RICHARD A. BLUMENSTEIN, JR., TRACY J. BLUMENSTEIN t/d/b/a PRECISION MARINE SERVICE, by and through their counsel, WAYMAN, IRVIN & McAULEY, LLC, and move this Honorable Court to extend the discovery schedule and postpone the evidentiary hearing scheduled by this Court's Order dated May 1, 2003, as follows: 1. This matter arises out of Plaintiffs varied claims for negligence, insurance broker negligence and defamation. 2. Movants have filed a Petition to Transfer Venue under Rule 1006(d) onforum non conveniens grounds, as Cumberland County is an inconvenient forum for the parties and witnesses relating to the cause and origin of a December 2000 fire in Huntingdon County, Pennsylvania. 3. Pursuant to Movant's Petition, this Honorable Court issued an Order dated May 1, 2003, allowing the parties discovery until May 30,2003", and setting an evidentiary hearing for June 8,2003. 4. On May 21, 2003, this Honorable Court heard oral argument on Movant's Preliminary Objections to the Complaint, which raised improper venue as a defense. 5. The parties agree that a Court Order sustaining the Preliminary Obj ections will render moot the Petition to Transfer and attendant discovery schedule. 6. Additionally, the parties require more time to undertake discovery necessary to prepare for an evidentiary hearing. 7. Movants request that the discovery schedule and evidentiary hearing be continued for 90 days, in order for the Court to render a decision on the Preliminary Obj ections and to allow the parties to efficiently conduct discovery and prepare for the evidentiary hearing if necessary. 8. Counsel for William Woomer has consented to this Motion. Counsel for Dunn Insurance has consented to this Motion. Encompass Insurance Company has not entered an appearance. 9. The relief requested by this Motion will not prejudice any party or the Court. WHEREFORE, Precision Marine Service respectfully requests that this Honorable Court continue the discovery schedule and evidentiary hearing for 90 days, and grant such other relief as is just and proper. Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC By: C ie J. Fagan, Attorney-at-law Pa ill No. 33334 ames W. Creenan, Esquire Pa. ill No. 79213 Attorneys for Defendant Precision Marine CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing UNCONTESTED MOTION TO CONTINUE has been served on the following counsel of record by first class u.s. mail, mAy' postage pre-paid, or by hand delivery, this 27+'-' day of April:2n03: Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 Thomas R. Miller, Esquire MILLER AND MILLER 401 South 32nd Street Camp Hill, PA 17011 Encompass Insurance 401 Penn Street Reading, P A 19612 WAYMAN, IRVIN & McAULEY, LLC uJc~ THIE J. FAGAN, ATTORNEY-AT-LAW J ES W. CREENAN, ESQUIRE ttomeys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, tJd/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. ORDER OF COURT AND NOW, this day of , 2003, upon consideration ofthe Uncontested Motion to Continue, IT IS HEREBY ORDERED AND DECREED that the dates set forth in the May 5,2003, Order are continued as follows: (a) The Parties are permitted to undertake such discovery as may be necessary for the Court to make a determination pursuant to Rule 1006( d) (1 ). Discovery pursuant to this Order shall close on August 29,2003; (b) An evidentiary hearing IS at undersigned. scheduled for m. before the BY THE COURT: J. In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., Plaintiff Docket No. 02-4177 Civil Term v. Rock-Airport of Pittsburgh, L.L.C., Defendant Delta's Motion to Compel Discovery From Rock-Airport of Pittsburgh, L.L.C. Delta Development Group, Inc. ("Delta" or "Plaintiff'), by its undersigned counsel, hereby moves this Honorable Court to enter an order pursuant to Pa. R.C.P. No. 4006 and 4019(a)(1) directing the Defendant, Rock-Airport of Pittsburgh, L.L.C. ("Rock" or "Defendant"), to serve full and complete answers to Delta's Interrogatories and Request for Production of Documents (collectively, "Discovery Requests") propounded to Rock or suffer sanctions. In support thereof, Delta avers as follows: Introduction: 1. This Court has authority to entertain this Motion pursuant to C.C.RP. 206-2 and 4001-1 and Pa.RC.P. Nos. 4006, 4009.12 and 4019. 2. No Judge of this Court has previously ruled upon any issue in this action. Commencement of Action: 3. Delta commenced this breach of contract action by filing a Complaint on September 3, 2002. Specifically, Delta avers that materially Rock breached their Agreement, which was entered into on (or about) April 18, 2001 ("Agreement"), by failing to pay for services rendered by Delta to Rock. 4. Rock filed its Answer with New Matter and Counterclaim on (or about) February 7, 2003. In its Counterclaim, Rock avers that Delta materially breached their Agreement by failing to timely complete work required under the Agreement. 5. Delta filed its Reply to New Matter and Answer to Counterclaim on February 27,2003. Discovery Requests from Delta to Rock: 6. On March 12,2003, Delta served a set of interrogatories upon Counsel for Rock ("First Set of Interrogatories"). A true and correct copy of Delta's First Set of Interrogatories to Rock (together with the transmittal letter) is attached hereto as Exhibit A. 7. On March 12,2003, under the same transmittal letter, Delta also served a request for the production of documents upon Counsel for Rock ("First Request for Production of Documents"). A true and correct copy of Delta's First Request for Production of Documents is attached hereto as Exhibit B. Rock's Failure to Respond to Delta's Discovery Requests: 8. Rock's answers and objections, if any, to Delta's First Set ofInterrogatories and Delta's First Request for Production of Documents were due on (or before) April 11, 2003. See Pa. RC.P. 4006(a)(2) (Answer to Written Interrogatories by a Party) and 4009. 12(a) (Answer to Request for Production of Documents) 9. Delta granted Rock until May 28,2003 to serve Rock's answers and objections, if any, to Delta's First Set ofInterrogatories and Delta's First Request for Production of Documents. 10. No response of any kind has been provided by Rock to Delta's First Set of Interrogatories. (a) Rock has not filed any answers to Delta's First Set ofInterrogatories. (b) Rock has not filed any objections to First Set of Interrogatories. (c) Rock has not applied for a protective order from First Set of Interrogatories. 11. No response of any kind has been provided by Rock to Delta's First Request for Production of Documents. (a) Rock has not filed any answers to Delta's First Request for Production of Documents. (b) Rock has not filed any objections to Request for Production of Documents. (c) Rock has not applied for a protective order from Fi.rst Request for Production of Documents. 12. By letter dated May 22,2003, Delta's Counsel notified Rock's Counsel that Rock's responses to Delta's First Set of Interrogatories and Delta's First Request for Production of Documents were overdue, and that a motion would be filed if answers were not received by May 28, 2003. A true and correct copy of said warning letter is attached hereto as Exhibit C. Delta's Requests for Relief: 13. This Court may, on motion, is authorized to make an appropriate order for the imposition of sanctions where there is a failure to comply with discovery requests. See Pa.RC.P. 4019(a)(1)(i) and (vii). (a) The imposition of sanctions falls within the discretion ofthis Court. See Marshall v. Southeastern Pennsylvania Transportation Authority, 76 Pa. Commw. 205, 463 A.2d 1215 (1983), disapproved on other grounds, Philadelphia v. Agresta, 139 Pa. Commw. 7, 590 A.2d 1314 (1991). (b) This Court may enter an order requiring Rock to fully and completely respond to Delta's Discovery Requests. Id. (c) Pa.RC.P. 4019(g) provides that this Court may, under certain circumstances, require a non-moving party to pay reasonable expenses, including attorneys' fees, incurred by the moving party in the non-moving party's compliance. The Plaintiff has incurred attorneys' fees and costs of $1 0 12.50 in connection with this matter. 14. A period of more than thirty (30) days have elapsed since Delta's First Set of Interrogatories and Delta's First Request for Production of Documents were served upon Counsel for Rock. 15. Rock's complete failure to respond to Delta's Discovery Requests constitutes a proper basis for the imposition of sanctions. See Marshall. supra. 16. By virtue of Rock's failure to provide any response to Delta's Discovery Requests, Delta has been unable to secure important information, evidence and documents essential to the proof of Delta's case-in-chief and to the proof of Delta's defenses against Rock's Counterclaim. 17. Moreover, for the foregoing reasons, Delta believes and avers that Rock will not answer Delta's First Set ofInterrogatories or Delta's First Request for Production of Documents absent a court order pursuant to Pa. RC.P. 4019(a)(1). 18. Delta believes and avers that Rock does not agree to the relief requested by this Motion. [Signature Appears on Next Page] WHEREFORE, Delta requests that this Honorable Court enter and order (1) imposing sanctions against Rock for failure to file any response to Delta's Discovery Requests and (2) directing Rock to file full and complete answers to Delta's Discovery Requests within twenty (20) days or suffer further appropriate sanctions to be imposed upon further application to the Court WHEREFORE, Delta also requests that this Honorable Court order any other relief as may be appropriate under these circumstances. Respectfully submitted, ~G,~~ MIchael D. Klein, Esquire P A Supreme Court No. 23854 Carl R Shultz, Esquire P A Supreme Court No. 70328 LeBoeuf, Lamb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 Harrisburg, PA 17108-2105 (717) 232-8199 Fax: (717) 232-8720 Attorneys for Plaintiff, Delta Development Group, Inc. In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., Plaintiff Docket No. 02-4177 Civil Term v. Rock-Airport of Pittsburgh, L.L.C., Defendant Certificate of Service I hereby certify that I have this m.~ay of ~ 2003, served a true and correct copy of the foregoing document upon the following persons in the manner shown below: Via Re2'ular Mail (Posta2'e Preoaid): David E. McMaster, Esquire Law Office of David E. McMaster 2100 Corporate Drive Suite 350 Wexford, PA 15090 (Counsel for Defendant) David E. McMaster, Esquire General Counsel Rock-Airport of Pittsburgh, L.L.C. 1000 Rockpointe Boulvevard, Rockpointe Business Airport, Pittsburgh, P A 15084 (Counsel for Defendant) (Courtesy Copy) Respectfully submitted, ~t\>14~ ichael D. Klein, Esquire P A Supreme Court No. 23854 Carl R Shultz, Esquire P A Supreme Court No. 70328 LeBoeuf, Lamb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 Harrisburg, PA 17108-2105 (717) 232-8199 Fax: (717) 232-8720 Attorneys for Plaintiff, Delta Development Group, Inc. } I ":j ~. LEBoEUF, LAMB, GREENE & MACRAE L.L.p. A UMfTEO LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS NEWYORK WASHINGTON, D.C. ALBANY BOSTON DENVER HARRISBURG HARTFO RD HOUSTO N JACKSONVILLE LOS ANGELES NEWARK PITTSBURGH SA LT LAKE CITY SAN FRANCISCO 200 NORTH THIRD STREET SUITE 300 P.O. BOx 12 105 HARRISBURG, PA 17 I 08-2 105 LO N DON IA LO NOON'BASE D MULTINATIONAL PARTNERSHIP I PARIS BRUSSELS JOHANNESBURG CPTYI LTD. (7 I 71 232-8 I 99 FACSIMILE: (7171 232-8720 E-MAIL ADDRESS:MICHAEL.KLEIN@LLGM.COM WRITER'S DIRECT DIAL: (7 I 7)232-8 I 99 MOSCOW RIYADH (AFFILIATED OFFICE). March 12, 2003 TASHKENT BISHKEK ALMATY BEIJI NG VIA REGULAR MAIL David E. McMaster, Esq. General Counsel Rock-Airport of Pittsburgh, LLC 1000 Rockpointe Blyd ! Rockpointe Business Airpark Pittsburgh, P A 15084 Re: Delta Development Group, Inc. ("Delta") v. Rock-Airport of Pittsburgh, L.L.C. ("Roc1<') Cumberland County Civil Docket No. 02-4177 Discovery Directed to Rock from Delta Dear Mr. McMaster: Enclosed are the First Set of Interrogatories and the First Request for Production of Documents directed to the Defendant Rock-Airport of Pittsburgh, L.L.C. ("Rock"), from the Plaintiff, Delta Development Group, Inc. ("Delta"). Thank you. If you have any questions or concerns, please contact either Carl Shultz or me. Sincerely, . ~~(J,~ . Michael D. Klein MDK:lls Enclosures cc: All persons on Certificate of Service Eric Clancy In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., Docket No. 02-4177 Civil Term Plaintiff v. Rock-Airport of Pittsburgh, L.L.C., Defendant ! First Set of.Interrogatories to Rock-Airport of Pittsburgh, L.L.C. The Plaintiff, Delta Deyelopment Group, Inc. ("Delta" or "Plaintiff'), by its undersigned attorney, requests that the Defendant, Rock-Airport of Pittsburgh, L.L.C. ("Rock" or Defendant"), answer under oath the following Interrogatories within thirty (30) days from service thereof in accordance with Pa. RC.P. 4005 and 4006. These Interrogatories are deemed to be contiriuing to the extent provided in Pa. RC.P. 4007.4. ~ [Intentionally Left Blailk] Instructions And Definitions The following instructions and definitions apply to each Interrogatory and are incorporated by reference into each Interrogatory. Your answers must be responsive to these Interrogatories in light of these instructions and definitions. Instructions: 1. These Interrogatories are directed to you and your officers, employees, agents, servants, assigns, representatives, past and present, and unless privilege is claimed, each and eyery attorney, past and present, of each and every such individu31 or entity. 2. These Interrogatories encompass all information, documents and records ~at are in your possession, control, or custody or that are in the possession, control, or custody of any of your officers, employees, agents, servants, attorneys, and assigns. 3. You must answer these Interrogatories within thirty (30) days after service ofthese Interrogatories. 4. Each Interrogatory is to be answered separately and as completely as possible. The fact that investigation is continuing or that discovery is not complete should not be used as an . excuse for failure to answer each Interrogatory as fully as possible. 5. For each Interrogatory, identify (a) each person who participated in preparing your answer to each Interrogatory, (b) each document used to prepare your answer to each Interrogatory, and (c) each person who provided information necessary to formulate your answer to each Interrogatory. 6. Ifany Interrogatory cannot be answered after you have conducted a reasonable . investigation, you shall identi4' (a) any responsive answer or information to the extent possible; (b) the identity of any answer or information that cannot be provided; and (c) a description of your efforts to answer the Interrogatory or obtain the unknown answer or information. 7. If any objections are made to any Interrogatory, the reasons therefor shall be stated in sufficient detail to permit the Court to rule on the propriety of the objection. 8. . If there is any claim of privilege relating to any Interrogatory, you shall set forth fully (a) the information's or document's identity; (b) the baSis for the claim of privilege, including the facts upon which you rely to support the claim of privilege in sufficient detail to permit the Court to rule on the propriety of the privilege; and, (c) the name of each perSon having knowledge of the information. 9. These Interrogatories are continuous in nature and must be supplemented promptly if you obtain further information or learn between the date of the response and the time of hearing that a previous response was incorrect when made, or though correct when made, is then no longer true. 2 Definitions: 1. All verbs are intended to include all tenses, to make the Interrogatory inclusiye rather than exclusive. 2. References to the singular are intended to include the plural and vice versa, to make the Interrogatory inclusive rather than exclusive. 3. Each masculine, feminine or neuter pronoun is intended to include all of the gender or neuter pronouns, to make the Interrogatory inclusive rather than exclusive. 4. The words "and" and "or" shall be construed conjunctively or disjunctively as is necessary to make the Interrogatory inclusive rather than exclusive. 5. The words "any", "as well as" and/or "all" shall be construed to mean "each and every" to make the Interrogatory inclusive rather than exclusive. 6. The words "refer to", "relate to" and/or "relating to" mean constituting, defining, describing, discussing, involving, concerning, containing, embodying, reflecting, identifying, stating, analyzing, mentioning, responding to, referring to, dealing with, commenting upon, or in any way pertaining to. 7. The terms "document" and/or "documents" shall mean all written or printed matter of any kind in your possession, custody or control, which is either known to you or can be located or discovered by diligent effort, including the originals and all non~identical copies, whether different from the original by reason of any notation made on such copies or otherwise, including without limitation, correspondence, memoranda, notes, speeches, press releases, diaries, calendars, agenda, statistics, letters, telegrams, minutes, contracts, purchase orders, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books, inter-office and intra-office communications, offers, bulletins, printed matters, computer printouts, teletypes, telefax, invoices, worksheets, work papers, records of telephone calls or other communications or conversations, and all drafts. alterations. modifications. changes or amendments of any ofthe foregoing. graphic or aural records or representations of any kind (including without limitations, photographs, charts, graphs, microfiche, microfilm, videotapes, digital or analog recordings and motion pictures) e- mails, and electronic or mechanical records or representations of any kind (including without limitation, tapes, cassettes, computer disks, and digital recordings). 8. The terms "person" and/or "persons" shall mean any individual, natural person, corporation, government or government subdivision or agency or instrumentality, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest or any other legal or commercial entity and all present and former officers, directors, agents, employees, partners, venturers, owners, representatives, attorneys and others acting or purporting to act on behalf of such person. 9. The terms "statement" and/or "statements" shall have the meaning consistent with Rule 4003.4 of the Pennsylvania Rules of Civil Procedure. 10. The terms "identify", "identity" and/or "identification" shall have the following meanmgs: 3 (a) With respect to a natural person, said words mean to identify the person's: (1) full name; (2) business address and phone number; (3) relationship to the subject matter of the Interrogatory; and (4) duties or responsibilities. (b) In the case of entities other than a natural person, said terms shall mean to identify: (1) the nature of the entity; (2) the names and titles of its directors and principal officers; and (3) the identity of all persons who acted or who authorized another to act on its behalf with respect to the subject matter of the futerrogatory. ( c) When used in reference to a document, said terms mean to identify: (1) (2) (3) (4) the document's name, date, type and any other information which would facilitate its identification; the identity of the document's custodian. (If the present custodian is not known, describe the document's last known disposition); the name of the person(s) who authorized the document, and the names of all persons to whom the document was distributed; and if the above requested information is app"arent from.the face of the document, a copy of the document may be attached in lieu of providing the information in the space provided in the Interrogatories. (d) When used in reference to an oral communication, said terms mean to identify: (1) the nature ofthe oral communication; (2) the time and place of the oral communication; (3) the'name of the person(s) who initiated the oral communication and the names of all person(s) to whom the information was communicated; and (4) the subject matter and substance of the oral communication. 11. The terms "state the basis," "state the factual basis", "state each fact" or "state the facts" mean to (a) describe each and every fact or item ofinformation on which you rely to support a particular claim, contention, or allegation; and, (b) identify each and every communication, document or item of information which you contend supports, refers to, or evidences such claim, contention, or allegation. 12. The terms "basis", "factual basis" or "fact" means each item of information, including but not limited to, actions, inactions, communications, documents and polices upon which a allegation, contention, claim or demand is based or which you contend supports, refers to, or evidences such allegation, contention, claim, or demand. 4 13. The terms "communication" and/or "communications" shall mean any oral conversation or any writing or other document of any kind or charac~er including, by way of example and without limitation, personal conversations, telephone conyersations, e-mails, letters, meetings, memoranda, telegraphic and telex communications or transmittals of documents, and all notes or other documents concerp.ing such writing or such oral conversation. 14. The terms "representative" and/or "representatives" shall mean when used with reference to a person (a) any past or present officer, director, partner, associate, employee, servant, agent, subsidiary, affiliate, legal counsel, or any agent of such persons; and (b) any other person acting on behalf of, or in concert with, such persons, including, without limitation, insurance brokers or agents, auditors, actuaries, and consultants of any type. 15. "Action" shall mean the action, proceeding or lawsuit mentioned in the above-mentioned caption. 16. "Rock" or "Defendant" shall mean Rock-Airport of Pittsburgh, L.L.C., which is the Defendant in the above-captioned Action. 17. The terms "you" and/or "your" shall mean the Defendant or Rock (as defined herein) as well as any of its corporate affiliates, divisions, subgroups, subsidiaries, parent corporations, predecessors-in-interest, successors, assignees, agents, legal representatiyes, trustees, accountants, consultants, independent contractors, and all individuals, representatives and other persons acting on its behalf, and its present and former officers, directors, servants and employees. It is the intent of this definition to include all possible sources of information within your possession, custody..or control, including information in files at central, regional or local offices and personal files. 18. "Delta" or "Plaintiff' shall mean Delta Development Group, Inc., which is the Plaintiff in the above-captioned Action. 19. "Complaint" shall mean the Complaint filed by Delta in the above-captioned Action. 20. "Answer" shall ~ean the Answer filed by Rock in the above-captioned Action. 21. . ''New Matter" shall mean the New Matter filed by Rock in the above-captioned Action. 22. "Counter-Claim" shall mean the Counter-Claim filed by Rock in the above-captioned Action. 23. "First Request for Production" shall mean the First Request for Production of Documents that (a) is being served contemporaneous herewith; and, (b) whereby Delta requests that yoli produce certain documents and/or tangible things. 24. "First Set of Interrogatories" shall mean this first set of interrogatories that whereby the Appellants request that you answer certain written interrogatories (each an "Interrogatory", and collectively, the "Interrogatories"" 5 25. "Project" shall mean the construction and development of the Rock Airport of Pittsburgh and/or the Rock Pointe Business Airpark at and around the site known as the "Rock Pointe Business Airpark" and/or the "Rock Pointe Business Park". 26. "Previous Agreement" shall written agreement between Delta and Rock which is dated December 9, 1999 27. "Agreement" shall mean the written agreement between Delta and Rock which is dated April 18, 2001. 28. "Supplemental Agreement" shall mean the written agreement between Delta and Rock which is dated October 25,2001. 29. "RACP" shall mean a Redevelopment Assistance Capital Project, which is further defined in the Capital Facilities Debt Enabling Act, Act of February 9, 1999, P.L. 1, No. 1, as amended, 72 P.S. ~~ 3919.101, et seq. ' 30. "RACP Budget" shall mean the budget of funds (which is also known as the Capital Debt Fund) that have been appropriated from the General Fund upon authorization by the Governor in accordance with the Capital Facilities Debt Enabling Act, Act of February 9, 1999, P.L. 1, No.1, as amended, 72 P.S. ~~ 3919.101, et seq. [Intentionally Left Blank] 6 Interrogatories 1. Identify each person you expect or intend to (or may) use (or call) as an expert witness during the hearing of this action. For each such expert, identify: (a) their name and home and business address; (b) their occupation, and if they specialize in any particular field set forth their areas of specialization; (c) the qualifications of those persons listed in subpart (a) of this Interrogatory No.1. In doing so, list: the schools each has attended, including years in attendance and degrees received, experience in particular fields, including names and addresses of employers with inclusive years of employment; and a list of all publications authored by said persons, including the title of the work, the name of the periodical or book in which it was printed and the date of its printing; (d) the facts to which each such expert is expected to testify; 7 (e) the opinion to which each such expert is expected to testify; (f) all the factual information supplied to each expert which was (or will be) used as a basis for his opinion, including all objects examined, the type, place, and date of examination, as well as a description of all photographs or plans reviewed; (g) a summary of the grounds (other than the facts requested in subpart (d) of this Interrogatory No.1) for each such opinion, including any text or material upon which the expert witness will rely. Identify all such texts, including name, author, edition and page; and (h) the full captions of all cases in which that person has testified in the past five (5) years. If the full captions are unavailable, give the names of the cases and identify the names of each tribunal ih which they were tried as well as the approximate date of trial. Briefly describe the subject matter of that person's testimony in each case. 8 2. Identify each person (other than those lJersons identified in your answer to Interrogatory No.1) who you expect or intend to (or may) use (or call) as a witness during the hearing of this action. For each such person, identify: (a) their home and business address; (b) the facts to which each such person will testify; (c) the basis of each such person's knowledge of such facts; (d) the opinion to which each such person is expected to testify; and (e) _' all documents relating to each such person's testimony, whether or not you expect or intend to introduce such documents at such hearing. 9 3. Identify all documents that you are withholding from production in response to the First Request for Production on ground of privilege or immunity. For each such document, (a) identify the reason(s) for withholding; (b) identify the date of the document; (c) identify by name, job title, and the last known business and home addresses of each person who wrote, drafted, or assisted in the preparation of the document; (d) identify by name, job title, and the last known business and home addresses of each person who is known to have received or has custody of the document or copies thereof; 10 ( e) identify by name, job title, and the last known business and home addresses of each person who is known to have viewed or had access to the document or copies thereof or to whom any portion of the contents has been communicated; (t) identify the nature and subject matter of the document; (g) identify the facts that constitute the basis for any claim of privilege, work product, or other grounds of nondisclosure; and (h) identify each interrogatory and each document request to which the document is responsive. 11 4. To the extent known to you, your attorney or other representative, identify each person who has any knowledge of (or information as to) any facts pertaining to the Agreement and/or the subject matter of this Action. 5. Identify the date, amount and source of each grant which you have received for the Project. 6. For each grant identified in Interrogatory No.5, identify each person who participated in your decision to seek each grant and when (month, day, year) their participation began and ended. 7. ,For each grant identified in Interrogatory No.5, identify each person who participated in the application process for each grant and when (month, day, year) their participation began and ended. 8. Identify the date, amount and source of each loan which you have received for Project. 12 9. For each grant identified in Interrogatory No.8, identify each person who participated in your decision to seek each loan and when (month, day, year) their participation began and ended. . 10. For each grant identified in Interrogatory No.8, identify each person who participated in the application process for each loan and when (month, day, year) their participation beg3;ll and ended. 11. Identify each person who participated in your decision to enter into the Agreement. For each person, identify when (month, day, year) their participation began and ended. 12. Identify each person who participated in the negotiations related to the Agreement. For each pers<:m, identify when (month, day, year) their participation began and ended. 13. State each fact (and identify each communication or document) related to your contention that Rock made payments to Delta in Allegheny County, Pennsylvania. 13 14. State each fact (and identify each communication or document) related to your contention that Delta failed render services that were at all times proper, satisfactory, consistent with the Agreement and in performance of the Agreement. 15. State each fact (and identify each communication or document) related to your contention that Delta rendered services to Rock at places or locations (other than Delta's place of business in Cumberland County). 16. State each fact (and identify each communication or document) related to your contention that Delta has materially breached the Agreement. ' 17. State each fact (and identify each communication or document) related to your contention that Delta failed to complete its work under the Agreement. 18. State each fact (and identify each communication or document) related to your contention that Delta caused substantial time delays on the Project. 14 19. State each fact (and identify each communication or document) related to your contention that Delta overcharged Rock for the work performed by Delta. 20. State each fact (and identify each communication or document) related to your contention that Delta did not provide the requisite hourly services to Rock. 21. State each fact (and identify each communication or document) related to your contention that Delta failed to obtain funding for the Project. 22. State each fact (and identify each communication or document) related to your contention that Delta represented to Rock that Delta could obtain the release (or appropriation) of monies from the RACP Budget. 23. State each fact (and identify each communication or document) related to your contention that yon relied on representations by Delta on the release (or appropriation) of monies from the RACP Budget. 15 24. State each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with the Paragraph 2(A) of the Agreement. 25. State each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with the Paragraph 2(C) ofthe Agreement. 26. State each fact (and identify each communication or document) related to your contention that Delta did not rendered services to Rock consistent with the Paragraph 2(D) of the Agreement. ' . 27. State each fact (and identify each communication or document) related to your contention that Delta did not rendered services to Rock consistent with the Paragraph 2(G) of the A~~~. ' 16 28. If you contend that Delta did not render services to Rock consistent with Paragraph 2(B) of the Agreement, please state each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with Paragraph 2(B) of the Agreement. 29. If you contend that Delta did not render services to Rock consistent with Paragraph 2(E) .Qfthe Agreement, please state each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with Paragraph 2(E) of the Agreement. 30. If you contend that Delta did not render services to Rock consistent with Paragraph 2(F) of the Agreement, please state each fact (and identify each communication or document) related to your contention that Delta did not render servtces to Rock consistent with Paragraph 2(F) of the Agreement. 31. If you contend that Delta did not render services to Rock consistent with Paragraph 2(H) of the Agreement, please state each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with Paragraph 2(H) of the Agreement. 17 32. If you contend that Delta did not render services to Rock consistent with Paragraph 4 of the Agreement, please state each fact (and identify each communication or document) related to your contention that Delta did not render services to Rock consistent with Paragraph 4 of the Agreement. 33. Identify each document related to the processing by Rock of the $2,000,000 in RACP funds received by Rock. 34. State each fact (and identify each communication or document) related to your contention that Rock objected or otherwise notified Delta that the services performed by Delta under the Agreement were unsatisfactory. 35. State each fact (and identify each communication or docUment) related to your contention that Rock suffered damages by the actions (or inactions) of Delta. 18 36. For each of the preceding Interrogatories, identify: (a) each person who participated in preparing your answer to each such Interrogatory; (b) each person who provided information necessary to formulate your answer to each such Interrogatory; and ' (c) each document used to prepare your answer to each such futerrogatory. 19 Respectfully submitted, -~~Q ~~-^ Michael D. Klein, Esquire PA Supreme Court No. 23854 Carl R. Shultz, Esquire . P A Supreme Court No. 70328 LeBoeuf, Lamb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 - Harrisburg, P A 171 08-2105 (717) 232-8199 Fax: (717) 232-8720 Attorneys for Plaintiff, Delta Development Group, Inc 20 In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., Docket No. 02-4177 Civil Term Plaintiff Y. Rock-Airport of Pittsburgh, L.L.C., , Defendant Certificate of Service I hereby certify that I have this 12th day of March, 2003, served a true and correct copy of the foregoing document upon the following persons in the manner shown below: Via RC2'Ular Mail (Posta2'e Prepaid): David E. McMaster, Esquire Law Office of David E. McMaster 10431 Perry Highway Suite 310 Wexford, P A 15090 (Counsel for Defendant) David E. McMaster, Esquire General Counsel Rock-Airport olPittsburgh, L.L.C. 1000 Rockpointe..Boulvevard, Rockpointe Business Airport, Pittsburgh, PA 15084 (Counsel for Defendant) (Courtesy Copy) Respectfully submitted, r . Jw-~{\OJ4~r-- MIchael D. Klem, EsqU1re . P A Supreme Court No. 23854 Carl R. Shultz, Esquire 'p A Supreme Court No. 70328 Lel3oeuf, Lamb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 Harrisburg, P A 171 08-2105 (717) 232-8199 Fax: (717) 232-8720 Attor.neys for Plaintiff, Delta Development Group, Inc. In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., Docket No. 02-4177 Civil Term Plaintiff Y. Rock-Airport of Pittsburgh, L.L.C., i , Defendant ! First Request for Production of Documents to Rock-Airport of Pittsburgh, L.L.C. Pursuant to Pa. R.C.P. 4009, the Plaintiff, Delta Deyelopment Group, Inc. ("Delta" or "Plaintiff'), by its undersigned attorney, requests that the Defendant, Rock-Airport of Pittsburgh, L.L.C. ("Rock" or Defendant") produce the following documents and tangible things for inspection and copying, on April 11, at 9:00 a.m. at the offices of the undersigned, or forward true and correct copies thereofto the undersigned at his offices within thirty (30) days after service of this request. [Intentionally Left Blank] 1 Instructions And Definitions The following instructions and definitions apply to each request for production and are incorporated by reference into each request. Your response must be responsive to these requests in light of these instructions and definitions. Instructions: 1. Whenever in the following paragraphs there is a request to produce documents, you are requested to produce all documents that are in your possession, custody or control or that , of any <?f your representatives, or that are reasonably obtainable from other sources. 2. Each request herein for a document or documents to be produced, whether memoranda, reports, letters, minutes, or other documents of any description requires the production of the document in its entirety, without redaction or expurgation. 3. You must answer these requests within thirty (30) days after service of these requests. You must (a) produce the requested documents and tangible things for inspection and copying, on the above-mentioned date at the above-mentioned time at the offices of the undersigned; or, (b) forward true and correct copies thereofto the undersigned at his offices. 4. Each request for documents, and the portions thereof, are to be responded to separately, but responses to one request for documents, or portions Thereof, may be incorporated by reference in responses to other requests for documents, or portions thereof. 5. Each document produced for inspection or copying shall be identified by the specific request for documents, or any portion thereof, to which it relates. 6. If any documents responsive to all or any part of any request for documents are not currently in your possession, custody or control or otherwise not currently ayailable, include a statement to that effect and furnish whatever documents are ayailable. Include in your statement when such documents were most recently in your possession or subject to your control and what disposition was made of them, and identify each person currently in possession or control of such documents by name, job title, and last known business and home address. If any of such documents have been destroyed, state when and where such documents were destroyed, identify each person who directed that the documents be destroyed or who actually destroyed the documents by name, job title, and last known business and home address and state the reasons the documents were destroyed. 7. If any document covered by these requests is withheld from production, please furnish a list identifying each such document and providing the following information with respect to each such document: All documents relating to: 2 (a) the reason(s) for withholding; (b) the date of the document; ( c) identification by name, job title, and the last known business and home addresses of each person who wrote, drafted, or assisted in the preparation of the document; (d) identification by name, job title, and the last known business and home addresses of each person who is known to have received or has custody of the document or copies thereof; ( e) identification by name; job title, and the last known business and home addresses of each person who is known to have viewed or had access to the document or copies thereof or to whom any portion of the contents has been communicated; (f) a brief description of the nature and subject matter of the document; (g) a statement of the facts that constitute the basis for any claim of privilege, work product, or other grounds of nondisclosure; and (h) the paragraph(s) of these requests to which the document is .' - responsIve. 8. Ifany objections are made to any request, please provide a statement of the reasons for all such objections in sufficient detail to permit the Board to rule on the propriety of the objection. ' 9. ' These requests are continuous in nature and must be supplemented promptly if you obtain or learn further or different information between the date of the response and the time of trial by which you know that a previous response was incorrect when made, or though correct when made, is then no longer true. 10. The period covered by each request for documents is January 1999 through the present, unless otherwise noted. Definitions: 1. All verbs are intended to include all tenses, to make the Request inclusive rather than exclusive. 2. References to the singular are mtended to include the plural and vice versa, to make the Request inclusive rather than exclusive. 3. Each masculine, feminine or neuter pronoun is intended to include all of the gender or neuter pronouns, to make the Request inclusive rather than exclusive. 3 4. The words "and" and "or" shall be construed conjunctiyely or disjunctively as is necessary to make the Request inclusive rather than exclusiye. 5. The words "any", "as well as" and/or "all" shall be construed to mean "each and every" to make the Request inclusiye rather than exclusive. 6. The words "refer to", "relate to~~ and/or "relating to" mean constituting, defming~ describing~ discussing~ involving~ concerning, containing~ embodying~ reflecting~ identifying~ stating, analyzing~ mentioning~ responding to~ referring to~ dealing with, commenting upon, or in any way pertaining to. 7. The terms "document" and/or "documents" shall mean all written or printed matter of any kind in your possession, custody or control~ which is either known to you or can be located or discovered by diligent effort, including the originals and all non-identical copies~ whether different from the original by reason of any notation made on such copies or otherwise, including without limitation, correspondence, memoranda, notes, speeches, press releases, diaries~ calendars, agenda, statistics, letters~ telegrams~ minutes, contracts, purchase orders, reports, studies~ checks~ statements, receipts, returns~ summaries, , pamphlets, books~ inter-office and intra-office communications, offers, bulletins, printed matters~ computer printouts~ teletypes, telefax, invoices~ worksheets, work papers, records of telephone calls or other communications or conversations~ and all drafts~ alterations, modifications~ changes or amendments of any of the foregoing, graphic or aural records or representations of any kind (including without limitations~ photographs, charts, graphs~ microfiche, microfilm, videotapes~ digital or analog recordings and motion pictures) e- mails~ and electronic or mechanical records or representations of any kind (including without limitation, tapes~ cassettes, computer disks~ and-digital recordings). 8. The terms "person" and/or "persons" shall mean any individual, natural person, corporation, government or government subdivision or agency or instrumentality, business trust~ estate, trust, partnership, association~ two or more persons having a joint or common interest or any other legal or commercial entity and all present and former officers, directors~ agents, employees, partners, venturers, owners, representatives~ attorneys and others acting or purporting to act on behalf of such person. 9. The terms "statement" and/or "statements" shall have the meaning consistent with Rule 4003.4 of the Pennsylvania Rules of Civil Procedure. 10. The terms "identify", "identity" and/or "identification," shall have the following meanings: (a) With respect to a natural person, said words mean to state the person's: (1) full name; (2) business address and phone number; (3) relationship to the subject matter of the Request; and (4) duties or responsibilities. 4 (b) , In the case of entities other than a natural person, said terms shall mean to state: (1). the nature of the entity; (2) the names and titles of its directors and principal officers; and (3) the identity of all persons who acted or who authorized another to act on its behalf with respect to the subject matter of the Request. ( c) When used in reference to a document, said terms mean to state: (1) the document's name, date, type and any other information which would facilitate its identification; (2) the identity of the document's custodian. (If the present custodian is not known, describe the document's last known disposition); (3) the name ofthe person(s) who authorized the document, and the names of all persons to whom the document was distributed; and (4) if the above requested information is apparent from the face of the document, a copy of the document may be attached in lieu of providing the information in the space provided in the Interrogatories. (d) When used in reference to an oral communication, said terms mean to state: (1) the nature of the oral communication; (2) the time and place of the oral communication; (3) the name of the person(s) who initiated the oral communication and the names of all person(s) to whom the information was communicated; and (4) the subject matter and substance of the oral communication. 11. The terms "state the basis," "state the factual basis", "state each fact" or "state the facts" mean to (a) describe each and every fact or item of information on which you rely to support a particular claim, contention, or allegation; and, (b) identify each and every communication, document or item of information which you contend supports, refers to, or evidences such claim, contention, or allegation. 12. The terms "basis", "factual basis" or "fact" means each item of information, including but not limited to actions, inactions, communications, documents and polices upon which -a allegation, contention, claim or demand is based or which you contend supports, refers to, or evidences such allegation, contention, claim, or demand. 13. The terms "communication" and/or "communications" shall mean any oral conversation or any writing or other document of any kind or character including, by way of example and without limitation, personal conversations, telephone conversations, e-mails, letters, meetings, memoranda, telegraphic and telex communications or transmittals of 5 documents, and all notes or other documents concerning such writing or such oral conversation. 14. The terms "representative" and/or "representatives" shall mean when used with reference to a person, (a) any past or present officer, director, partner, associate, employee, servant, agent, subsidiary, affiliate, legal counsel, or any agent of such perso~s and (b) any other person acting on behalf of, or in concert with, such persons, including, without limitation, insurance brokers or agents, auditors, actuaries, and consultants of any type. 15. "Action" shall mean the action, proceeding or lawsuit mentioned in the above-mentioned caption. 16. "Rock" or "Defendant" shall mean Rock-Airport of Pittsburgh, L.L.C., which is the Defendant in the above-captioned Action. 17. The terms "you" and/or "your" shall mean the Defendant or Rock (as defined herein) as well as any of its corporate affiliates, divisions, subgroups, subsidiaries, parent corporations, predecessors-in-interest, successors, assignees, agents, legal representatives, trustees, accountants, consultants, independent contractors, and all individuals, representatives and other persons acting on its behalf, and its present and former officers, directors, servants and employees. It is the intent of this definition to include all possible sources of information within your possession, custody or control, including information in files at central, regional or local offices and personal files. 18. "Delta" or "Plaintiff' shall mean Delta Development Group, Inc., which is the Plaintiff in the above-captioned Action. 19. "Complaint" shall mean the Complaint filed by Delta in the above-captioned Action. 20. "Answer" shall mean the Answer filed by Rock in the above-captioned Action. 21. ''New Matter" shall mean the New Matter filed by Rock in the aboye-captioned Action. 22. "Counter-Claim" shall mean the Counter-Claim filed by Rock in the above-captioned Action. 23. "First Request for Production" shall mean this First Request for Production of Documents that whereby Delta requests that you produce certain documents and/or tangible things. 24. "First Set of Interrogatories" shall mean the first set of interrogatories that (8.) is being served contemporaneous herewith; and, (b) whereby th.e Appellants request that you answer certain written interrogatories. 25. "Project" shall mean the construction and development of the Rock Airport of Pittsburgh and/or the Rock Pointe Business Airpark at and around the site known as the "Rock Pointe Business Airpark" and/or the "Rock Pointe Business Park". 26. "Previous Agreement" shall written agreement between Delta and Rock which is dated 6 December 9, 1999 27. "Agreement" shall mean the written agreement between Delta and Rock which is dated April 18, 2001. ' 28. "Supplemental Agreement" shall mean the written agreement between Delta and Rock which is dated October 25,2001. 29. "RACP" shall mean a Redevelopment Assistance Capital Project, which is further defined in the Capital Facilities Debt Enabling Act, Act of February 9, 1999, P.L. 1, No. 1, as amended, 72 P.S. ~~ 3919.101, et seq. " 30. "RACP Budget" shall mean the budget of funds (which is also known as the Capital Debt Fund) that have been appropriated from the General Fund upon authorization by the Goyernor in accordance with the Capital Facilities Debt Enabling Act, Act of February 9, 1999, P.L. 1, No.1, as amended, 72 P.S. ~~ 3919.101, et seq. Documents Requested You are requested to produce the following documents and tangible things pursuant to Pa.R.C.P. No. 4009: 1. All documents that you identified in your responses (or ClIlswers) to the First Set of Interrogatories. 2. All documents that you relied on in responding to or answering the First Set of Interrogatories. 3. All documents which you intend to (or may) upon in the litigation of this Action. 4. All documents which you intend to (or may) introduce into evidence, or use, or refer to during any trial (or hearing) in this Action. 5. All documents on which you intend to (or may) rely to support your contentions in the litigation of this Action. 6. All documents thai support any affirmative defenses you intend or plan to raise in opposition (or objection) to this Action. 7. All documents that support your Answer. 8. All documents that support your New Matter. 9. All documents that support your Counter-Claim. 7 10. All documents relating to the Previous Agreement. 11. All documents relating to the Supplemental Agreement. 12.' All documents relating to the Agreement. 13. All documents related to each grant you have received for the Project. 14. All documents related to each grant application for the Project. 15. All documents related to each loan you have received for the Project. 16. All documents related to each loan application for the Project. 17. All documents related to any RACP designation for the Project. 18. All documents related to any RACP authorizations for the Project. 19. All documents rel~ted to any RACP Budget appropriations for the Project. 20. All documents related to pro forma balance sheets for the Project. 21. All documents related to any Bureau of Aviation funding submission (or application) for the Proj ect. 22. All documents related to a master project funding schedule for the Project. 23. All documents related to any contract for the Proj ~ct. 24. All documents related to any obligation of Rock for the Project. 25. All documents related to any commitment by Rock for the Project. 26. All documents related to meetings with any federal officials, state officials (including, but not limited to, the Governor's Office of the Budget), county officials, local officials related to the Project and/or funding for the Project. 27. All documents related to any licenses for the Project. 28. All documents related to any permits .for the Project. 29. All documents related to any governmental approvals for the Project. 30. All documents related to any governmental authorizations for the Project. 31. All documents related to any buildings for the Proj ect. 32. All documents related to any buildings for Rock 8 33. All documents related to any buildings for 2mbrano Corp. 34. All documents related to any buildings for Joseph B. Fay Co. 35. All documents related to any buildings for Management Science Associates, Inc. 36. All documents related to any flex-space buildings. 37. All documents related to the sale of any parcels (or tracts of land) in Project. 38. All documents related to the lease of any parcels (or tracts ofland) in Project. 39. All documents related to any other transactions concerning any parcels (or tracts of land) in Project. 40. All documents related to any pending sale of any parcels (or tracts ofland) in Project. 41. All documents related to any pending lease of any parcels (or tracts of land) in Project. 42. All documents related to any other pending transactions concerning any parcels (or tracts oIIand) in Project. 43. All documents relating to any agreements or contracts with any contractor. 44. All documents related to any construction activities for the Project. 45. All documents related to any development activities for.the Project. 46. All documents related to any improvements for the Project. 47. All documents related to any extension of any runways for the Proj ect. 48. All documents related to any excavation for the Project. 49. All documents related to any earth movement activities for the Project. 50. All documents related to anytime delays for the Project. 51. All documents reflecting or constituting communication between Rock and First Merit Bank, N.A. relating to the Project and/or funding for the Project. 52. All documents reflecting or constituting communication between Rock and Sky Bank relating to the Project and/or funding for the Project. 53. All documents reflecting or constituting communication between Rock and SE Techo10gies, Inc. relating to the Project and/or funding for the Project. 54. All documents reflecting or constituting communication between Rock and the Zambrano Corporation relating to the Project and/or funding for the Project. 9 55. All documents reflecting or constituting communication between ~ock and the Joseph B. Fay Co. relating to the Project and/or funding for the Project. 56. All documents reflecting or constituting communication between Rock and Management Science Associates relating to the Project and/or funding for the Project. 57. All documents reflecting or constituting communication between Rock and Atlas Services Corporation relating to the Project and/or funding for the Project. 58. All documents reflecting or constituting comm~cation betw.een Rock and Canova Electrical Contracting relating to the Project and/or funding for the Project. 59. All documents reflecting or constituting communication between Rock and Contech Construction Products relating to the Project and/or funding for the Project. 60. All documents reflecting or constituting communication between Rock and K-Cor, Inc. relating to the Project and/or funding for the Project. 61. All documents reflecting or constituting communication between Rock and Rock-Built, Inc. relating to the Project and/or funding for the Project. 62. All documents relating to any balance sheets for Rock. 63. All documents relating to any income statements for Rock. 64. All documents relating to any annual financial reports for Rock. 65. All documents relating to any income tax returns for Rock. 66. All documents relating to any unsatisfied judgments against Rock. 67. All documents relating to any unsatisfied mortgages on the Project. 68. All documents relating to any unsatisfied security interests in the Project. 69. All documents relating to any unsatisfied liens on the Project. 70. All documents related to any sources of cash flow for the Project. 71. All documents relating to any creditor of Rock. 72. All documents relating to any creditor of the Project. 73. All documents relating to any pending, suits, actions, legal proceedings or claims against Rock (other than this Action). 74. All documents reflecting or constituting communication between you and any contractor relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 10 75. All documents relating to or memorializing any telephone or in-person conversations between you and any contractor relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 76. All correspondence and other documents you sent to any contractor relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 77. All correspondence and other documents you received from any contractor relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 78. Meeting notes, memoranda, and all other documents pertaining to meetings or phone calls between you and any contractor relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 79. All documents reflecting or constituting communication between you and any federal officials (including, but not limited to the Federal Aviation Administration) relating to the Project and/or funding for the Project. 80. All documents relating to or memorializing any telephone or in-person conversations , between you and any federal officials (including, but not limited to the Federal Aviation Administration) relating to the Project and/or funding for the Project. 81. All correspondence and other documents you sent to any federal officials (including, but not limited to the Federal Aviation Administration) relating to the Project and/or funding for the Project. 82. All correspondence and other documents you received from any federal officials (including, but not limited to the Federal Aviation Administration) relating to the Project and/or funding for the Project. 83. Meeting notes, memoranda, and all other documents pertaining to meetings or phone calls between you and any federal officials (including, but not limited to the Federal Aviation Administration) relating to the Project and/or funding for the Project. 84. All documents reflecting or constituting communication between you and any state officials (including, but not limited to, the Governor's Office of the Budget), county officials, local officials, relating to the Project and/or funding for the Project. 85. All documents relating to or memorializing any telephone or in-person conversations between you and any state officials (including, but not limited to, the Governor's Office of the Budget), county officials, local officials, relating to the Project and/or funding for the Proj ect. 11 86. All correspondence and other documents you sent to any state officials (including, but not limited to, the Governor's Office of the Budget), coun.ty officials, local officials, relating to the Project and/or funding for the Project. 87. All correspondence and other documents you received from any state officials (including, but not limited to, the Governor's Office of the Budget), county officials, local officials, relating to the Project and/or funding for the Project. 88. Meeting notes, memoranda, and all other documents pertaining to meetings or phone calls between you and any state officials (including, but not limited to, the Governor's Office of the Budget), county officials, local officials, relating to the Project and/or funding for the Proj ect. 89. All documents reflecting or constituting communication between you and your engineer relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 90. All documents relating to or memorializing any telephone or in-person conversatio~s between you and your engineer relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 91. All correspondence and other documents you sent to your engineer relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). ~ 92. All correspondence and other documents you received from your engineer relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 93. Meeting notes, memoranda, and all other documents pertaining to meetings or phone , calls between you and your engineer relating to the Project and/or funding for the Project (including, but not limited to, any Bureau of Aviation funding submission (or application)). 94. All documents reflecting or constituting communication between you and Delta relating to the Project and/or funding for the Project. ' 95. All documents relating to or memorializing any telephone or in-person conversations between you and Delta relating to the Project and/or funding for the Project. 96. All correspondence and other documents you sent to Delta relating to the Project and/or funding for the Proj ect 97. All correspondence and other documents you received from Delta relating to the Project and/or ~ding for the P!oject. 12 98. Meeting notes, memoranda, and all other documents pertaining to meetings or phone calls between you and Delta relating to the Project and/or funding for the Project. 99. All documents reflecting or constituting communication between you and other person not otherwise identified in these requests relating to the Project and/or funding for the Project. 100. All documents relating to or memorializing any telephone orin-person conversations between you and any other person not otherwise identified in these requests relating to the Project and/or funding for the Project. 101. All correspondence and other documents you sent to any other person not otherwise identified in these requests relating to the Project and/or funding for the Project 102. ' All correspondence and other documents you received from other person not otherwise identified in these requests relating to the Project and/or funding for the Project. 103. Meeting notes, memoranda, and all other documents pertaining to meetings or phone calls between you and other person not otherwise identified in these requests relating to the Project and/or funding for the Project. 104. All other documents in your files or the files of your attorneys concerning the liabilities or financial obligations of Rock which have not been requested by any of the preceding requests (or paragraphs) hereof, and which are not expressly exempted from discovery by Pa.R.C.P. 4003.3 or 4011 (c). 105. All other documents in your files or the files of your attorneys concerning the Agreement which haye not been requested by any of the preceding requests (or paragraphs) hereof, and which are not expressly exempted from discoyeryby Pa.R.C.P. 4003.3 or 4011(c). 106. All other documents in your files or the files of your attorneys concerning this Action which haye not been requested by any of the preceding requests (or paragraphs) hereof, and which are not expressly exempted from discovery by Pa.R.C.P. 4003.3 or 4011(c). [Intentionally Left Blank] 13 Respectfully submitted, .~~,~ Michael D. Klein, Esquire P A Supreme Court No. 23854 Carl R. Shultz, Esquire P A Supreme Court No. 70328 LeBoeuf, Lamb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 Harrisburg, P A 17108-2105 (717) 232-8199 Fax: (717) 232-8720 Attorneys for Plaintiff, Delta Development Group, Inc. 14 In the Court of Common Pleas of Cumberland County, Pennsylvania ,Civil Division Delta Development Group, Inc., Docket No. 02..4177 Civil Term Plaintiff v. Rock-Airport of Pittsburgh, L.L.C., Defendant Certificate of Service I hereby certify that I have this 12th day of March, 2003, served a true and correct copy of the foregoing document upon the following persons in the manner shown below: Via Re2'ular Mail (Posta2'e Preoaid): David E. McMaster, Esquire Law Office of David E. McMaster 10431 Perry Highway Suite 310 Wexford, PA 15090 (Counsel for Defendant) David E. McMaster, Esquire General Counsel Rock-Airport of Pittsburgh, L.L.C. 1000 Rockpointe Boulvevard, Rockpointe BusiRess Airport, Pittsburgh, PA 15084 . (Counsel for Defendant) (Courtesy Copy) 'Respectfully submitted, . M-() jj.~":,, Ichael D. Klein, Esquire .PA Supreme CourtNo. 23854 Carl R. Shultz, Esquire P A Supreme Court No. 70328 . LeBoeuf, La:mb, Greene & MacRae, L.L.P. 200 North Third Street, Suite 300 P.O. Box 12105 Harrisburg, P A 171 08-21 05 (717) 232-8199 Fax: (717) 232-8720 Attorneys for Plaintiff, Delta Development Group, Inc. LEBoEUF, LAMS, GREENE & MACRAE L. L. P. A UMITEO LIABILITY PARTNERSHIP INCLUOING PROFESSIONAl. CORPORATIONS NEWYORK WASHINGTON, D.C. ALBANY BOSTON DENVER HARRISBURG HARTFO RD HOUSTO N .JACKSONVILLE LOS ANGELES NEWARK PITTSBURGH SALT LAKE CITY SAN FRANCISCO 200 NORTH THIRD STREET SUITE 300 P.O. Box 12 I 05 HARRISBURG, PA 17 I 08-2 I 05 LO N DON (A LONDON-BASE 0 MULTINATIONAL PARTNERSHIP) PARIS BRUSSELS .JO HANN ES BU RG IP1'Y'L.TD. (7 I 7) 232-8199 FACSIMILE: (7 I 7) 232-8720 E-MAIL ADDRESS:MICHAEL.KLEIN@LLGM.COM MOSCOW RIYADH CAfflLlATED OFfiCE' May 22, 2003 TASHKE NT BISHKEK ALMATY BEI.JI NG BY FACSIMILE AND FIRST CLASS MAIL David E. McMaster, Esquire Law Office of Dayid E. McMaster, Esquire 2100 Corporate Drive Suite 350 Wexford, PA 15090 Re: Delta/Rock Litigation Dear Dave: I have spoken with my client, Delta, regarding the possibility of giving Rock more time to provide us with a payment date for the lump sum of $50,000 in full settlement of all claims either party may have against each other. Delta is willing to give Rock until noon on Wednesday, May 28, 2003 to submit such date for Delta's review and approval. If said payment date is acceptable to Delta, we will be able to finalize a settlement agreement. Ifwe do not receive a date on (or before) noon May 28,2003, then we will be constrained to seek sanctions regarding the failure of Rock to respond to Delta's discovery requests. Sincerely, , r~~y~\~ Michael D. Klein MDK:klf cc: Eric Clancy (') c: <'" -Ow rnfr, Z:::o Zr;,' C/) .'" -< ., r:C, <:::: ?fO <;::"() .Pc: -;;;- ~ o w ::x :::- -< w o o ..,., ...~ ~=i F1 :.:;(:9 "~:; (~) :,.c'=8 ',;;:6 om ..--\ ?O -< :r:> :Jl:: S> .s;::- (T\ JUN 0 2 2003 \Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CNIL DNISION Plaintiff, NO,: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/dIb/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants, ORDER OF COURT AND NOW, this ;.fA day of (~ , 2003, upon consideration ofthe Uncontested Motion to Continue, IT IS HE~~BY ORDERED AND DECREED that the dates set forth in the May 5, 2003, Order are continued as follows: (a) The Parties are permitted to undertake such discovery as may be necessary for the Court to make a determination pursuant to Rule 1006( d)(l), Discovery pursuant to this Order shall close on August 29, 2003; (b) An evident~a~y hearing is scheduled for (7~ ,;IS! ;J003 at I: 301m. before the und igned. ~ ~_.J~. OJ. ~ J, BY T~X)l.m.T: , ~ r-f r t o~ . r ~r J. . ~ '1\1c.rvJ!\lrSNN3cl ,.,,,nr',-, ,,::."''' ,;:;;::;\1'\\18 ^i.\~' ,_.oJ, ,," __,I 9 l :2 \\d '1- Hn\' t,G ,10'1'(\ ".,' ",_ji .10 J'.C,<~,..n .".......1 ..,,,..,!-.'''' .J .~.... 3':)\j:~O--(E\"\\--\ vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 02-5982 CIVIL WILLIAM WOOMER, Plaintiff TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants IN RE: PRELIMINARY OBJECTION OF DEFENDANT, PRECISION MARINE BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this I fi . day of June, 2003, the court being satisfied that Dunn Insurance Agency does not share joint or joint and several liability with Tracy Blumenstein and Richard A. Blumenstein, father and son, t/d/b/a Precision Marine Service with respect to the cause of the fire which is at issue in this case, and that venue camnot be laid against Blumenstein and Precision Marine in Cumberland County in accordance with PaRC.P. 1006(c), the preliminary objection of Tracy J. Blumenstein and Richard A. Blumenstein, father and son, t/d/b/a Precision Marine Service, on the grounds of improper venue is SUSTAINED. The claim against said defendants is herewith severed from the claims against Dunn Insurance Agency and Encompass Insurance and the matter directed to be transferred to Huntingdon County. The Prothonotary is directed to transfer certified copies of the docket entries, process, pleadings, depositions and other papers filed thus far in the action. The costs and fees for removal and .- VJN\~'\l),-S'\!I",Jjd AJi\}(;c::- l' ,-" .:ivno if :5 -... ~ ., C' i1 f) J r:ili (.u lU\7'lCi transfer of the record shall be paid by the plaintiff in accordance with Pa.R.C,P, l006(e). BY THE COURT, K7f~~~;/.. Arthur Cohen, Esquire For the Plaintiff Cathie Fagan, Esquire For Defendants Blumenstein t/dIb/a Precision Marine Thomas R. Miller, Esquire For Defendant Dunn Insurance Agency ~.t4~ ~_jl.j_()3 9- Encompass Insurance :rlm WILLIAM WOOMER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TRACY J, BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t1d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, : DEFENDANTS : 02-5982 CIVIL TERM ORDER OF COURT AND NOW, this 19 day of June, 2003, the cause of action against Tracy J. Blumenstein and Richard A. Blumenstein, father and son, t1d/b/a Precision Marine Service, having been transferred to Huntingdon County by an order of June 18, 2003, thus rendering the petition for a change of venue forum non conveniens moot, the hearing on that petition scheduled for August 25, 2003, IS CANCELLED. BytheC~- <:f Edgar B, Bayley, J / ~ ~ 0..(9 0" - \-\ . . .-.., 'i!~:\!'^lASNN3d , -"~~"'''''' .,' "':.'.i"~i IV 8 I : I i'j 6 I imf' co ',.1. :10 Arthur Cohen, Esquire 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, PA 16648 James W. Creenan, Esquire 1624 Frick Building 437 Grant Street pittsburgh, PA 15219 Thomas R. Miller, Esquire 402 South 32nd Street Camp Hill, PA 17011 Encompass Insurance 401 Penn Street Reading, PA 19612 :sal {J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, CIVIL DIVISION NO. 02-5982 v. TRACY J, BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, tldIb/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants, ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of Defendant Encompass Insurance in the above-captioned matter, BY: Matt w J.D. No, 76080 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3501 DATE: ~/~l ( ~? Attorneys for Defendant Encompass Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, CNIL DNISION NO. 02-5982 v, TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d!b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. CERTIFICATE OF SERVICE I, Angela Sanger, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this J.-r:; f1.,day of June, 2003, I served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Arthur S. Cohen, Esquire COHEN & AXINN 1904 N, Juniata Street P,O, Box 597 Hollidaysburg, P A 16648 Thomas R.Miller, Esquire MILLER AND MILLER 401 South 32nd Street Camp Hill, PA 17011 Cathie J, Fagan, Esquire James W. Creenan, Esquire WAYMAN, IRVIN & MCAULEY, LLC Suite 1624, Frick Building 437 Grant Street Pittsburgh, PA 15219 '4;--L- S <'-~~ 1/ .,-'. . ... ~ 0 ~ W L- x: ~~ c:: Z n.,,~ tjs;, N ~-;jl;-n tn <)6 ~~: kC' _.~ :> "1:=11 ~o ::1: '40 :>Q - om C .. .c-t ~ ,:::> ~ .r:- WILLIAM WOOMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-5982 CIVIL TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants IN RE: PRELIMINARY OBJECTION OF DEFENDANT, PRECISION MARINE BEFORE BAYLEY AND HESS, 11. ORDER AND NOW, this I ~ . day of June, 2003, the court being satisfied that Dunn Insurance Agency does not share joint or joint and several liability with Tracy Blumenstein and Richard A. Blumenstein, father and son, t/d/b/a Precision Marine Service with respect to the cause ofthe fire which is at issue in this case, and that venue cannot be laid against Blumenstein and Precision Marine in Cumberland County in accordance with Pa.R.C.P. 1006(c), the preliminary objection of Tracy J. Blumenstein and Richard A. Blumenstein, father and son, t/d/b/a Precision Marine Service, on the grounds of improper venue is SUSTAINED. The claim against said defendants is herewith severed from the claims against Dunn Insurance Agency and Encompass Insurance and the matter directed to be transferred to Huntingdon County. The Prothonotary is directed to transfer certified copies of the docket entries, process, pleadings, depositions and other papers filed thus far in the action. The costs and fees for removal and .~'-'. . V!N\;I~''\l)\S,:\.!iV:!d IJ"n~'- " '-"",""'" 1\ .i\r ::,; """ir IV . I (" ,.. -I' '," ('n L :0 ,;'! IJ, i:,U u, J..8\f.l<,'i'j, transfer of the record shall be paid by the plaintiff in accordance with PaRC.P. lO06(e). BY THE COURT, K::j:.;,tl- Arthur Cohen, Esquire For the Plaintiff Cathie Fagan, Esquire For Defendants Blumenstein t/d/b/a Precision Marine . ~ (p_jtj.()3 ~ 9v- Thomas R. Miller, Esquire For Defendant Dunn Insurance Agency Encompass Insurance :rJm WILLIAM WOOMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COIDITY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-5982 CIVIL TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, R. T. DUNN INSURANCE AGENCY TO THE PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this I '1- day of July, 2003, the matter having been called for argument, the preliminary objections of defendant, R. T. Dunn Insurance Agency, are SUSTAINED. The plaintiff is granted leave to file an amended complaint so as to comply with the requirements ofPa.R.C.P. 1019(i) and 1019(1). BY THE COURT, kur Cohen, Esquire For the Plaintiff ../1i fithie Fagan, Esquire For Defendants Blumenstein t/d/b/a Precision Marine > 0~ Y' \OfJ-/ L/ .03 l!..KS vfhomas R. Miller, Esquire For Defendant Dunn Insurance Agency ~ncompassInsurance tlINV/11At);\JN3d A-LNnC{) (I'.,,,,,rll-q~,Vvn:J ~U. I I" c:; : ";d 'f I 'Jnf' CD A1J'7;C,.,.. .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, plaintiff NO. 02-5982 VS. CIVIL DIVISION TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father: and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, and ENCOMPASS INSURANCE, Defendants PRAECIPE TO WITHDRAW TO THE PROTHONOTARY: Kindly withdraw Tracy J. Blumenstein and Richard A. Blumenstein, t/d/b/a Precision Marine service, as Defendants in the above-captioned case. Respectfully submitted, 1]-l).q-0.3 Date QAf. J\M"\-{}J~ Arthur S. Cohen, Esqu~re, 1.D. No. 18548 Attorneys for Plaintiff COHEN & AXINN 1904 N. Juniata st. F.O. Box 597 Hollidaysburg, Pa. 16648 (814) 695-5518 CERTIFICATE OF SERVICE I, Arthur Cohen, Esquire, hereby certify that a true and correct copy of the within Praecipe was served via first-class, united states mail, addressed as follows: Cathie Fagan, Esquire Wayman, Irvin & McAuley, LLC 1624 Frick Bldg. 437 Grant street pittsburgh, PA 15219 Thomas Miller, Esquire Miller and Miller 401 South 32nd street Camp Hill, PA 17011 Matthew Owens, Esquire Marshall, Dennehey, Warner, Coleman 4200 Crums Mill Road, Ste. B Harrisburg, PA 17112 & Goggin Date: 'l-d..q-o~ Uv-bLA .~~ Arthur Cohen, Esqu~re Cohen, Axinn, & Cohen (") c: s: -ocr::' n1rl Z-' ~f.- =S<;-". L.C < -' ~(! ""U ...-c: ~ ~ ;. C') (.,:' "" ~ '0 o -on .....,... ,J'. ~ ~'" .'.- :.:\S:;} ,r: _,oj -,~) -;-:-:, 7~.J (511' --I ........ ~ ~ - ::> WILLIAM WOOMER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/dlb/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants PRAECIPE OF DEFENDANT R. T. DUNN INSURANCE AGENCY, INC. FOR ENTRY OF JUDGMENT OF NON PROS To the Prothonotary: Please enter Judgment of Non Pros against Plaintiff William Woomer and in favor of Defendant R.T. Dunn Insurance Agency, Inc" incorrectly designated as "Dunn Insurance Agency," for failure to file an amended Complaint per July 14, 2003 Order of Court and Pa. RCP 1028(e), The notice required by Pa, RCP 237. 1 (a)(2) is attached as Exhibit A and was served on Plaintiff s counsel on August 11, 2003. ~"'..'1 YL By: III Thorn R. Miller, Esquire MILLER and MILLER 401 South 32nd Street Camp Hill, PA 17011 717-920-5500 Attorney for Dunn Insurance Agency Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA : CIVIL ACTION - LAW WILLIAM WOOMER v. : DOCKET NO. 02-5982 TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a : PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE Defendants TO: Plaintiff, William Woomer c/o Arthur S. Cohen, Esquire 1904 N. Jwriata Street p, O. Box 597 Hollidaysburg, PA 16648 DATE OF NOTICE: August 11,2003 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HA VB FAILED TO FILE AN AMENDED COMPLAINT IN THIS CASE PURSUANT TO PaRCP 1028(e). UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THEREBY LOSE PROPERTY OR OTHER IMPORT ANT RIGHTS, YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service Cumberland county Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 or 800-990-9108 By: .~ Thomat R.' Miller, Esquire MILLER and MILLER 401 South 32nd Street Camp Hill, PA 17011 717-920-5500 'Attorney for Dunn Insurance Agency - CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe of Defendant R.T, Dunn Insurance Agency, Inc, for Entry of Judgment of Non Pros was this day served upon counsel for Plaintiff by United States First class mail, postage prepaid, addressed as follows: Arthur S, Cohen, Esquire 1904 North Juniata Street P,O. Box 597 Holidaysburg, PA 16648 MILLER AND MILLER Dated: August 26, 2003 BY: ~ THOMAS IMIL~ER 401 South 32nd Street Camp Hill, PA 17011-5105 Telephone: (717) 920-5500 Fax: (717) 920-5503 Attorney for Defendant R,T, Dunn Insurance Agency, Inc, ~ ~ p C' =0:;' G.] (J ~ ~ ;pc en or, ;z-!r ,,, 6~f,: ',:) \ -,.."' ~. r-"=', c) ~.~" ~ _I'. ~/ '-r, ~ ~ , .<:- " :.? " ~ :J '- ;.(J -< V t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t1d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. :210354,1 CIVIL DIVISION NO.: 02-5982 MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE Filed on behalf of: Defendants, Tracy J. Blumenstein and Richard A. Blumenstein t1a and d/b/a Precision Marine Service Counsel of Record for this Party: CATHIEJ.FAGAN, ATTORNEY-AT-LAW Pa. ID No. 33334 JAMES W. CREENAN, ESQUIRE Pa. ID No. 79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE AND NOW, come the Defendants, RICHARD A, BLUMENSTEIN, JR. and TRACY J. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, by and through their counsel, WAYMAN, IRVIN & McAULEY, LLC, and file the within Motion to Dismiss/Compel the transfer of case as follows: 1. The Plaintiff, William Woomer, instituted this action by filing a Writ of Summons in the Court of Common Pleas of Cumberland County on December 17,2002. 2. Thereafter, a Complaint was filed and Preliminary Objections were filed by these Defendants to the Complaint. 3. After argument, the Honorable Kevin A. Hess, Judge ofthe Court of Common Pleas of Cumberland County, entered an Order dated June 18,2003, sustaining the Preliminary Objections of the Blumensteins t/d/b/a Precision Marine Service. The Prothonotary was directed to transfer certified copies of docket entries, process, pleadings, depositions and other papers filed to :210354,1 Huntingdon County with the costs and fees of removal and transfer to be paid by the Plaintiff in accordance with Pa.R.C.P. 1006(e). A copy of the Order is attaehed as Exhibit "A". 4. Since that time, the Plaintiff has failed to comport with the Court's Order and have the case transferred to Huntingdon County. 5. Subsequently, Preliminary Objections as filed by the co-Defendants, Dunn Insurance Agency and Encompass Insurance, have been sustained by the Court and those Defendants have been dismissed from the litigation. 6. Despite correspondence and telephone calls from counsel for the Defendants to counsel for the Plaintiff, the case has not been transferred to Huntingdon County pursuant to the Court's Order and directive. 7. There exists six cases filed of record arising out of the same incident as complained of in Plaintiff's Complaint filed in Huntingdon County which have now been consolidated for purposes of discovery and trial. 8. This case should be dismissed of record inasmuch as Plaintiffhas continually failed to honor the Court's Order. 9. In the alternative, this case should be transferred to Huntingdon County so it can be consolidated with the other cases, with discovery then proceeding in an appropriate fashion. WHEREFORE, the Defendants, RICHARD A. BLUMENSTEIN, JR. and TRACY J. BLUMENSTEIN, father and son, tJd/b/a PRECISION MARINE SERVICE, request this Honorable Court enter an Order dismissing the action or, in the alternative, compelling the Plaintiff to transfer the matter to the appropriate Court of jurisdiction, the Court of Common Pleas of Huntingdon County, pursuant to the Court's Order of June 18,2003. :210354,[ Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC By: Cathie J. II an, Att y-at-law Pa. ID No. 33334 James W. Creenan, Esquire Pa. ID No. 79213 Attorneys for Defendant Precision Marine :210354,1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE has been served on the following counsel of record by first class U.S. mail, postage pre-paid, or by hand delivery, this 12th day of May, 2004: Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, PAl 6648 WAYMAN, IRVIN & McAULEY, LLC By: k~~ Cathie J. ~,an, A y-at-Iaw Pa. ID No. 33334 James W. Creenan, Esquire Pa. ID No. 79213 Attorneys for Defendant Precision Marine :210354,1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. ORDER OF COURT AND NOW, to wit, this day of , 2004, upon consideration of the Motion to Dismiss/Compel Plaintiff to Transfer Case of Defendants, Tracy 1. Blumenstein and Richard A. Blumenstein, Father and Son, t/d/b/a Precision Marine Service, IT IS HEREBY ORDERED, JUDGED AND DECREED that this action is DISMISSED, or, in the alternative, Plaintiff, William Woomer, is compelled to transfer the matter to the appropriate Court of jurisdiction, the Court of Common Pleas of Huntingdon County, pursuant to the Court's Order of June 18,2003. BY THE COURT: J. :210354,1 WILLIAM WOOMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. CIVIL ACTION - LAW 02-5982 CIVIL TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, Vd/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants IN RE: PRELIMINARY OBJECTION OF DEFENDANT, PRECISION MARINE BEFORE BAYLEY AND HESS, J], ORDER AND NOW, this I f1 ' day of June, 2003, the court being satisfied that Dunn Insurance Agency does not share joint or joint and several liability with Tracy Blumenstein and Richard A. Blumenstein, father and son, Vd/b/a Precision Marine Service with respect to the cause of the fire which is at issue in this case, and that venue cannot be laid against Blumenstein and Precision Marine in Cumberland County in accordance with Pa.R.C,P, 1006(c), the preliminary objection of Tracy J, Blumenstein and Richard A. Blumenstein, father and son, Vd/b/a Precision Marine Service, on the grounds of improper venue is SUSTAINED. The claim against said defendants is herewith severed from the claims against Dunn Insurance Agency and Encompass Insurance and the matter directed to be transferred to Huntingdon County, The Prothonotary is directed to transfer certified copies of the docket entries, process, pleadings, depositions and other papers filed thus far in the action, The costs and fees for removal and f' 'X\-\ I \6 ), 'A- transfer of the record shall be paid by the plaintiff in accordance with Pa,R,C,P. I006(e), BY THE COURT, Arthur Cohen, Esquire For the Plaintiff K:ft~e~J. Cathie Fagan, Esquire For Defendants Blumenstein t/dIb/a Precision Marine Thomas R, Miller, Esquire For Defendant Dunn Insurance Agency Encompass Insurance :rlm TRIUE COP\' F'=JOM RECORD In Te~:tim()ny wheroof, I here un!" s..'ll my Mnd inti th. Stllll 01 sakl C at C-,CSIe. Pl.. rlliL g.. d2y of .2tt>-3 '- Prottlonotart/ ~-<- ",.,. f-? ! - ~- , ..., C;::-3 CJ ~- :3!: :T..'. -< o -n ---I :J:--n rnr~: .......f" -~-; C) C:5(~} :~,;J _or, t5 ;~~ ;?l., t.,);'n - ~"\ ~.> " ~, :.:< -t,- -':-.' r- C.1 co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, Plaintiff, vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/dIb/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. :210354.1 CIVIL DIVISION NO.: 02-5982 MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE Filed on behalf of: Defendants, Tracy J. Blumenstein and Richard A. Blumenstein tJa and d/b/a Precision Marine Service Counsel of Record for this Party: CATHIEJ. FAGAN, ATTORNEY-AT-LAW Pa. ID No. 33334 JAMES W. CREENAN, ESQUIRE Pa. ID No. 79213 WAYMAN, IRVIN & McAULEY, LLC FIRM NO. 583 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219 (412) 566-2970 (412) 391-1464 (Facsimile) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE AND NOW, come the Defendants, RICHARD A. BLUMENSTEIN, JR. and TRACY J. BLUMENSTEIN, father and son, tJd/b/a PRECISION MARINE SERVICE, by and through their counsel, WAYMAN, IRVIN & McAULEY, LLC, and file the within Motion to Dismiss/Compel the transfer of case as follows: 1. The Plaintiff, William Woomer, instituted this action by filing a Writ of Summons in the Court of Common Pleas of Cumberland County on December 17, 2002. 2. Thereafter, a Complaint was filed and Preliminary Objections were filed by these Defendants to the Complaint. 3. After argument, the Honorable Kevin A. Hess, Judge ofthe Court of Common Pleas of Cumberland County, entered an Order dated June 18,2003, sustaining the Preliminary Objections of the Blumensteins tJd/b/a Precision Marine Service. The Prothonotary was directed to transfer certified copies of docket entries, process, pleadings, depositions and other papers filed to :210354.1 Huntingdon County with the costs and fees of removal and transfer to be paid by the Plaintiff in accordance with Pa.R.C.P. 1006(e). A copy of the Order is attached as Exhibit "A". 4. Since that time, the Plaintiff has failed to comport with the Court's Order and have the case transferred to Huntingdon County. 5. Subsequently, Preliminary Obj ections as filed by the co-Defendants, Dunn Insurance Agency and Encompass Insurance, have been sustained by the Court and those Defendants have been dismissed from the litigation. 6. Despite correspondence and telephone calls from counsel for the Defendants to counsel for the Plaintiff, the case has not been transferred to Huntingdon County pursuant to the Court's Order and directive. 7. There exists six cases filed of record arising out ofthe same incident as complained of in Plaintiffs Complaint filed in Huntingdon County which have now been consolidated for purposes of discovery and trial. 8. This case should be dismissed of record inasmuch as Plaintiff has continually failed to honor the Court's Order. 9. In the alternative, this case should be transferred to Huntingdon County so it can be consolidated with the other cases, with discovery then proceeding in an appropriate fashion. WHEREFORE, the Defendants, RICHARD A. BLUMENSTEIN, JR. and TRACY J. BLUMENSTEIN, father and son, tld/b/a PRECISION MARINE SERVICE, request this Honorable Court enter an Order dismissing the action or, in the alternative, compelling the Plaintiff to transfer the matter to the appropriate Court of jurisdiction, the Court of Common Pleas of Huntingdon County, pursuant to the Court's Order of June 18,2003. :210354.1 Respectfully submitted, WAYMAN, IRVIN & McAULEY, LLC By: ~ ~.L~ Cathie J. Faganattorn~y~w Pa. ID No. 33334 James W. Creenan, Esquire Pa. ID No. 79213 Attorneys for Defendant Precision Marine :210354.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing MOTION TO DISMISS/COMPEL PLAINTIFF TO TRANSFER CASE has been served on the following counsel of record by first class U.S. mail, postage pre-paid, or by hand delivery, this 27th day of December, 2004: Arthur Cohen, Esquire COHEN, AXINN & COHEN 1904 N. Juniata Street P.O. Box 597 Hollidaysburg, P A 16648 WAYMAN, IRVIN & McAULEY, LLC 1 ~ II A'~ By: ~ Cathie J. Fagan, At 0 ey-at- w Pa, ID No. 33334 James W. Creenan, Esquire Pa. ID No. 79213 Attorneys for Defendant Precision Marine :210354.1 "\:) \ f",\ ~ :,-/ ~~ : t:~: l,~, ;:"""C, <:: ~;E, );'"c: ~, (") S ,..., = c::> en (,;... ;po. ;;e: , w ;p. ::s::. o -n ........ :r.:.-n rl'l.f": -orr1 -oX ~~ 1': -.d (")0 ~rn ~ ~ ,-" :< U:J ,. (J1 WILLIAM WOOMER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-5982 CIVIL TRACY BLUMENSTEIN and RICHARD BLUMENSTEIN, father and son, t/d/b/a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants IN RE: MOTION TO pISMISS/COMPEL PLAINTIF]~ TO TRANSFER CASE ORDER AND NOW, this / ,..- day of January, 2005, a rule is issued on the plaintiff to show cause why the relief requested in the within motion to dismiss/compel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, . A/I ~? ,0 \ \,\ o \J~'l:<\f/\-L\S>J r. \r~};,~ ! I ~I('\,"t', '.", "'''',''''V"'I l\J...l\;t ,~,). - ,~ "'//''il h..J r. S : II H~ I I N\if ~UDZ )\L\iJJ,JI\;~J;-il()(~d 3;-[ .::!() 3:J\~~,IJ-{]:11\j . "\ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEB 1 7 2005 or' 11' WILLIAM WOOMER, CIVIL DIVISION Plaintiff, NO.: 02-5982 vs. TRACY J. BLUMENSTEIN and RICHARD A. BLUMENSTEIN, father and son, t/ d/b/ a PRECISION MARINE SERVICE, DUNN INSURANCE AGENCY, ENCOMPASS INSURANCE, Defendants. ORDER OF COURT AND NOW, to wit, this :2 ..r day of I'd.,..'j , 2005, upon consideration of the Petition to Make The Rule to Show Cause Absolute is GRANTED and the action as filed by William Woomer at Civil Action No. 02-5982 is DISMISSED WITH PREJUDICE. BY THE COURT: / /l1L J. (leer (} :220075.1