HomeMy WebLinkAbout97-04837
"
.
;
"
,
,I
"
~
~
~
(
--..
,:>. ,~) ::>" " ~ i-
n. "~ [C-
,:';': ...~
.... '~::5
f\U~ ;E ~
'-. ':'' ,1.: ) ~-!~ 3
:'\, .....t: ')~'J
, ')1
. ."~ 8 ,~ "'"
'(') 11'
In", ......
--
:' ..... 1_[:;;:::: ~ ~
1:1 :JLU \,j
, ',JJtJ.
0 ...~ ~
I~, l',j 8
(~) 0
or. OCT I b
r: A~~Y ,
Pil, II n3
CUI.:i.;;.1 i., , ii, I~()UNTY'
P!:rM3YLVi<.N!A
"
, '
"
,
,
I',
~\-
~
I,
'*
mLA~MEDl
P 367 519 664
MAIL
r .....," .J " , .. '," "r
\':j'J.~.:~ klt.~L:t.~-'
" '.., '''('.,,',:
lh,lJ':'"...u I L~
Inc, t/a
flllllIotic. ~~.~.t-97
Sand Notict 0 ,,1 r!-7
IleIurned 0 -:I. - f
[IPT REQUEST{'
'. "c,-.i,<;I:;'i",~.hM:hl
.,
" .
"
, "~
1
.'
"
.
i
, 4
,.'
.,). ,"
,
I
!\
"
I
'I'
.
~
\
,
.
'-
. .......
__a ..... "
\
i
.-
*'
CERTIFIED
... .
P 367 519 bb5
. .
.
.
.
.
:3.23: :
.
'.
.
U.I, ,olun :
COUNTY OF CUMBERLAND
OHlce 0' The Sheriff
1 Courthouse Square
Carlisle. Pennsylvania 17013
MAIL
0000 !:Ij
lill. .1
!I II i11i
I 11811 i
I .
UHu:m j'iiCE1PT
nt~UESTED
-_.~,~.,
~NCLAlM~
Hill HOldings,Inc, t/a
ack Materials
Box 62 ......Notice 0;,/ ~ ~ 7
Ie, VA~NIIIlat '1_~ .(j
IlelurIIICI 0 - , - 7
tmJIM lEti\Pl linutSlU
..
, ,",.j .-'.......~/,.\
,
'"
~, ~.... -I',:"'
.
,
i'r. ...:l' r.
I~ c'-
~9 N I';
t5::;;
f < .lC \ ::'.
~~ u.. .,.
" ',) :j "
I'; cr. -- , ,
f,.. ... ;.J~
CI:LL' -'
~~ C:"
...,,,
- :'3
t3 ,... ..
C'J\ 0
,
,
.;j.'.;
~. c.) ,
(. ~-;. (.: ,
j'-' ..
....
"" .
, ..
\\:'. ' '.1.
--,'
l. \' ~ '.~' ',",
\"
l, \,,' I
~ ,'j
i.L'" l.j
> (/,
C:i) ,. r- "
L' I)' ~)
'""'\
1
~
.
.
~"
~\' I
;;) ~
";J-
~
<r-
010
Jl. -
.3 ...)
- I.-.
-
~~
I
a ~
~
0
idj
. >Tit
< ,~
k iJ
.
.
.. ..
.. ..
contained in the first pag~ of ~laintiff's letter of September 9,
1996.
11. In that same telephone discussion, however, Amos offered, to
employ ~laintiff for certain work upon the ~roject on a time,
mat~ria1s, and expense basis at the rates set forth on the second page
of the ~roposal, and Amos agreed that payment to ~laintiff would be
due at the offices of Plaintiff upon presentation of an invoice from
Plaintiff to Defendant for ~laintiff's work.
12. Plaintiff agreed to perform the 'requested work upon the
project for the Defendant on a time, materials, and expense basis in
accordance with the second page of the Proposal such work to be
performed over a one week period beginning on September 30, 1996, and
ending on October 6, 1996.
13. Plaintiff proceeded to supply the services requested by
Defendant for the agreed upon work upon the project beginning on
September 3D, 1996.
14. At the request of Defendant to meet Defendant's needs,
Plaintiff agreed to make its services available to Defendant fot an
additional period of one week.
15. Plaintiff's work upon the Project ceased on Octover 12,
1996.
16. Plaintiff kept accurate records of the time, mat.edal, and
expenses incurred vy it in performance of lts work on behalf of
(:\1. WORK,\MIIK.""OOlW1111 ^. WPD
- J -
.i,
,..
.
"
"
'.
"
,
,
,l"
,
,"
, "
",
,
i'
'I
. .
.
~ .:1' '>--
~..
C "
<... 'j
>- ~~i !
-,
I~~(. ,
~'l ....
J~ , lJ.."
i!-jr \t:)
&1 ~-'.
'I' C"..i
CO: I: I :it' ,:;(._cj,
J,. I. "~" ._,d....
.. ..--; "..
l-: C'I ..J
U ll' '.,)
between Luther N, Amos, }r" Jnel },!scph V, Capuann, or what, if
,my thing, was gtmeri.lted as i.l result of any specific telephone
conversiltions,
9, Denied, Luther N, Amos, }r" reviewed a proposal from MATX,
Inc" with representatives of NelV York Sand. LLC.
10. Denied, After reasonable investigation, the defendant, Trappe Hill
Holdings, Inc" is unablc to determine the veracity of the averment,
and proof thereof is demanded,
11. Denied, After reasonable investigation, the defendant, Trappe Hill
Holdings, Inc., is unable to determine the veracity of the averment,
and proot thereof is demanded,
12. Denied. The plaintiff did not enter into any agreement with the
defendant, Trappe Hill Holdings, Inc.
13. Denied, The answer to paragraph 12 is incorporated herein and
reference is made thereto,
14. Denied. The answer to paragraph 12 is incorporated herein and
reference is made thereto,
15. Denied. The answer to paragraph 12 is incol'porated herein and
reference is made thereto,
16. Denied. The answer to paragraph 12 is incorporated herein and
reference is made thereto,
17, Denied, The answer to paragraph 12 is incorporated herein and
reference is made thereto,
18. Denied. The answer to paragraph 12 is incorporated herein and
reference is made thereto,
19. Denied. The answer to paragraph 12 is incorporated herein and
reference is made thereto,
20. Denied. The answer to paragraph 12 is incorporated herein and
reference is made thereto,
21. Denied, The answer to paragraph 12 is incorporated herein and
reference is made thereto,
22. Denied, After reasonable investigation, the defendant, Trappe Hill
Holdings, Inc., is unable to determine the veracity of the averment,
and proof thereof is demanded.
1
_.. 1
2
3
4
5
6
7
,
PlaintUf
CUMBERLAND COUNTY, PENNSYLVANIA
v,
97-4838 CIVIL
TRAPPE HILL HOLDINGS,
INC., trading as
McCORMACK MATERIALS,
Defendant
CIVIL ACTION - LAW
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-4837 CIVIL /
MATX, INC.
8
9
TRAPPE HILL HOLDINGS,
10 INC., trading as
McCORMACK MATERIALS,
11 Defendant
CIVIL ACTION - LAW
12
DIilPOSITION OF:
Luther N, Amos, Jr.
13
'. 14
15
16
17
18
19 APPIilARANCES:
TAKIilN BY:
Plaintiff
BIilFORIil:
Amy S. Intrieri,
Notary Public
Dauphin County, pennsylvania
~
'I,
,
'~
BEGINNING:
Thursday, July 9, 1998
3:09 p.m.
3904 Trindle Road
Camp Hill, pennsylvania
20
21
22
23
24
t".,J 25
GEORGE A. VAUGHN, III, ESQUIRE
3904 Trindle Road
Camp Hill, Pennsylvania 17011
Appearing on behalf of the ~laintiff
WILLIAM P. DOUGLAS, ESQUIRE
DOUGLAS, DOUGLAS & DOUGLAS
27 West High Street
P.O. Box 261
Carlisle, pennsylvania 17013-0261
Appearing on behalf of the Defendant
~
ee,~~ !nltf con
>"-',
\.....)
2
1
2 PLAUITI...
3 Luther N. Amos, Jr.
4
5
6
7 PLAIIITI...
8 Exhibit A
9
10
11
12
DIRRCT CROSS
3 15
RRDIRRCT RRCROSS
20
IIIDRX TO RX.I.ITS
IDRIITI.IRD
11
ADIIITTRD
13
14
15
16
17
18
19
20
21
22
23
24
25
".,.
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
It ie hereby stipulated by and between counsel for
the respective parties that reading, signing, sealing and
filing are waived and that all objections, except as to
the form of the question, are reserved until the time of
trial,
LUTH.R N. AMOS, JRLL called as a witness, having
been duly sworn, was examined and testified as follows:
DIR.CT .XAKINATION
BY MR. VAUGHN:
Q Now is the time and place fixed for the
deposition of Luther N. Amos, Jr., in the matter of Luther
N. Amos, Jr, versus Trappe Hill Holdings, Inc. Present
today are Mr. Amos and Mr, Douglas, Attorney for the
Defendant. And I'm George vaughn, Attorney for the
Plaintiff, Mr, Amos hae been sworn. Would you state your
full name for us please?
A Luther Newell Amos, Jr.
Q And how old are you, sir?
A 69,
Q Do people normally call you Luke?
A Yes.
Q All right. Where do you reside?
A One Royal Oak Circle, Camp Hill, pennsylvania
17011,
c-~"
.,,,'"
1
2 A
3 Q
4 A
5 Q
6 A
7 Q
8 company?
9 A
10 Q
11 A
12 Q
4
Corl'ect.
How long have you resided at that address?
Since 1971.
Are you currently employed by someone else?
No.
Are you retired from employment by some other
'fee.
Is that other company L.B. Smith?
Correct.
How long -- when did you retire from L.B. Smith?
13 A January 1, 1994.
14 Q And when you retired, what was your position
15 immediately before retiring at L.B. Smith?
16 A Chief engineer,
17 Q How long had you been chief engineer?
18 A I believe it was 25 years.
19 Q And as chief engineer, where -- where at L.B.
20 Smith's facilities did you work?
21 A Along the -. at 2001 State Road, Camp Hill.
22 Q pennsylvania?
23 A pennsylvania.
24 Q Also in Cumberland County?
25 A Correct.
13
14
15
16
17
18
19
20
21
22
23
24
25
'.-
5
1
2 A Yes.
3 Q The matter that has given rise to this
4 litigation involves what I refer to as a project for
5 simplicity located in New Brunswick, Canada, is that
6 correct?
7 A That is correct,
8 Q What was the nature of that project?
9 A The nature of that project was to obtain course
10 sand to ship to Brooklyn, New York to mix with fine sand
11 coming off a dredge that was working off of Marcus Hook,
12 New Jersey,
Q When was it that you first became involved in
this project? And by involved, I mean asked to do work
for compensation with respect to this project?
A In April of 1996.
Q Where were you when you firet became involved in
this project?
A At my residence in Camp Hill.
Q And what happened to get you involved in this
project?
A A Randy Waterman of McCormack Materials called
me and iaid he needed help in solving a problem whereby a
friend of his --
Q Let'e stop there. It's not -- I'll let Mr.
1
2
3
4
5
6
1
8
9
10
11
12
13
14
15
16
11
18
19
20
21
22
23
24
25
..........
6
er ques e
don't need to get into that much detail.
A He asked me to solve problems for him and
recommend equipment for this project,
Q And how did you respond to that?
A And I said I'd be glad to, Randy. I get $50 an
hour plus expenses.
Q And did Mr. Waterman explain to you where the
project was located?
A Yes, he did explain that it would eventually be
in New Brunswick, Canada but he wanted me to go to
Monrocville, Kentucky to straighten out a bunch of used
equipment people there and look at other used equipment.
Q And was that work for related to equipment
for the project
A Yee.
Q - - in New Brunswick?
A Yes.
Q Did you continue to perform work pursuant to
this request from Mr. Waterman?
A Yes.
Q And was all of that work related to this project
in New Brunswick?
A Yes.
Q Was any of that work done here in Camp Hill?
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7
1
2 Q
3 Hill?
, yes.
And what kind of work was done here in camp
A Making contacts with used equipment dealers so I
could go look at the equipment for one thing. Checking
designs of equipment that these people in Monroeville,
Kentucky were building from used equipment and designing a
eand and gravel plant for New Brunswick.
Q Did -- in the course of doing that work in Camp
Hill, did you have additional conversations with Mr.
Waterman?
A Continually.
Q And those were telephone conversations I assume
or personal conversations?
A Telephone conversations and faxes back and
forth. When I couldn't get him on the phone, I'd send him
a fax.
Q When you went to work on thie project for Mr.
Waterman, did you -- how was it that you were going to be
paid? And by that I mean what was the mechanism by which
you were going to be paid?
A I would just send him an invoice and he would
send me a check.
o Okay. And did you send him invoices --
A Yes,
22
22
23
24
25
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
e course 0
A Yes, throughout '96.
o When did you stop working on this project? Was
it still 1996?
A The end of 1996, yes.
o So from the period from April to the end of
1996/ approximately how many invoices did you Bend to Mr.
Waterman?
A probably twelve.
o And did you receive payments on those invoices?
A I received payments on eleven of them.
o And the payments -- where did you receive thoee
payments?
A At my residence in Camp Hill, pennsylvania,
o And they were in the form of a check from --
A Correct.
o Is it correct to say that you spent a
significant amount of time in the summer of 1996 in New
Brunswick?
A Yes, I had six trips over to New Brunswick.
o And that was all related to this project we've
been talking about; is that correct?
A That's correct.
Q Now, the invoices that were sent during that
period -- strike that, While you were working on the
9
1 , were you v ng
2 in that area or were you living at your residence in camp
3 Hill?
4 A NO, I wae staying at my eummer place at the lake
5 in Maine.
6 Q Okay. And with respect to the invoices that you
7 sent for your work during that period of time, did you
8 send those invoices from Maine or New Brunswick or some
9 other location?
10 A NO, they all originated from Camp Hill,
11 Pennsylvania. I would fax my wife who was at my residence
12 a handwritten copy of the invoice, She'd type it and mail
13 it from Camp Hill to Virginia.
14 Q Did you know Mr, Waterman before he contacted
15 you in April of 1996?
16 A Very definitely.
17 Q Did you know of the name McCormack Materials
18 before April of 1996?
19 A YE'lS,
20 Q How is it that you knew of those; Mr. Waterman
21 and the name McCormack Materials?
22 A We did business with McCormack Materials I would
23 say for 20 years prior to my retirement.
24 Q And when you say we did business, you're
25 raferring to [., B, Smith?
,
10
1
2
3
4
5
6
7
8
9
10
ee.
a And was that business done at the location in
Camp Hill where you worked?
A Yes,
a Now, what kind of business is L.B. Smith in,
just briefly?
A They are designers and suppliers of quarry
equipment, sand and gravel plants, material handling
systems.
a And your involvement with Mr, Waterman and
11 McCormack Materials during your time at L.B, Smith had to
12 do with the purchase of that kind of equipment?
13 A That is correc t .
14 a Was your involvement while at L.B. Smith related
15 to just a single project?
16
17
18
19
20
21
22
23
24
25
A No, they were ongoing projects, Randy Waterman
always had something cooking some place.
a In the time from 1990 until you retired in 1994,
can you recall how many different projects?
A Well, there was at least one or two.
a And in the time of the 1980'6 were you working
on any projects at L.B, Smith which involved Mr. Waterman
and McCormack Materials?
A There might have been four or five in that
period,
12
lose some 0 ose your no es
2 A Some are my notes and some are by Ned Woolford
3 notes to me about the letter.
4
5
6
7
8
9
10
11
12
0 And the date of this letter is?
A January 31, 1996.
0 Did you receive the letter ehortly after that?
A The fax date is February 2nd, '96.
0 Do you continue to be in contact with the people
at L.B. Smith that you worked with before?
A Yes, I just had lunch with Ned Woolford this
noon.
13
14
15
16
o And you did do -- strike that. Is it correct
that you did supply to L.B. Smith information about this
letter and the plant that Mr. Waterman was trying to have
constructed?
A
Yes.
17 0 Do you know whether or not that plant was
18 constructed?
19
A
No.
20 0 No, you don't know?
21 A I know it was not constructed because it turned
22 out he had to build a railroad to get it from the deposit
23 to the ocean for ocean freight, And it turned out to be
24 too expensive,
25 0 In our - - strike that. tn the complaint which
13
1 was e company
2 Trappe Hill Holdings, Incorporated having an office or
3 business location in upperville, Virginia on Willieville
4 Road. Do you know what is located at Willieville Road?
5 In other words, is there a sand and gravel plant there?
6 Is there a factory?
7 A I've never been there but I've been told from
8 Randy Waterman's direct associates that is hie home. And
9 there are not are or is there are not any sand and
10 gravel plants in that area or on his property there, I've
11 also been told that he has a 40 barn horse farm there or
12 40 stall horse barn,
13 Q Off the record.
14 (Discussion off the record.)
15 BY MR. VAUGHN:
16 Q In your dealings with McCormack Materials and
17 Mr. Waterman while at L.B. Smith, was -- were all of those
18 dealings related to the same kind of business; that is
19 sand and gravel extraction or screening or shipping?
20 A Yes,
21 Q And do you know whether or not McCormack
22 M&terials is involved in any other business other than
23 business of that nature?
24 A I really don't know everything he's involved in,
25 Q With reepect -- now wait -- Btrike that. This
,'-', 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14
memory or you. ze you
have the records of L.B. Smith available to you today, do
you?
A That's correct.
Q Can you recall fairly clearly the last projects
or the last several projects that you worked on at L.B.
Smith involving Mr. Waterman and McCormack Materials?
A Yes.
Q Were you, in the course of your work, privied to
the cost or expense of those projecte?
A Yes, I was.
Q Do you
A Now, they changed the name of the company at
South Amboy where the last projects were. And I'm trying
to think of what we did when it was McCormack aggregates.
At that time that was a complete sand classification plant
which probably wae in the neighborhood of a half a million
dollars.
Q Was the half a million dollar figure that you
just mentioned the contract price between L.B. Smith and
McCormack Materials?
A Yes.
Q And that's the last project that you worked for?
A That I worked on for McCormack Materials.
Q At L,B. Smith?
15
1
2 Q Did you have the same recollection about the
3 project before that?
4 A The project before that was in Plainsboro, New
5 Jersey. And that came to us in bite and pieces totaling
6 maybe another half million because that had an expensive
7 crusher in it to crush the oversize gravel.
e Q Did you ever -- well, I think you already
9 testified to this, Did you ever go down to the
10 Upperville, Virginia location and have discussions about
11 this project with Mr, Waterman in Virginia?
12 A No,
13 MR. VAUGHN: I think that's all I have.
14 CROSS .XAKINATION
15 BY MR. DOUGLAS:
16 Q When you're talking about this project with that
17 laet question, I assume that you're talking about the one
18 that's the subject matter of this lawsuit?
19 A Yes.
20 Q Okay. What I'm going to do is walk back
21 through, You had stated that Randy McCormack had
22 contacted you
23 A Randy Waterman,
24 Q Excuse me, Randy Waterman. I'll turn this over,
25 Randy Waterman had contacted you at your home in Camp
16
1
2
3
4
5
6
7
8 0 Then you stated that you had some faxes and
9 phone calls back and forth.
10 A Continually,
11 0 Continually. And I assume at some point, you
12 all met together up in Canada with respect to this job?
13 A Yes.
14 0 And that was where the jOb was -- that's where
15 the project was being built?
16 A That's correct.
17 0 When you say that McCormack Materials did
18 business with L.B, Smith in the earlier nineties and in
19 the late eighties --
20 A Correct.
21 0 -. with respect to those transactions. was L.B.
22 Smith selling equipment to McCormack Materials?
23 A Yes.
24 0 And were any of those projectB specifically,
25 whiCh you recall, in pennsylvania where this equipment was
A Correct.
0 How did he make that contact?
A By calling 'me on the telephone.
0 And did he tell you where he was?
A Yes, becauee I believe at that time I received
his home address from him.
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A No.
Q when you say no, you don't recall or, no, none
were in Pennsylvania?
A No, none were in pennsylvania. They were all in
New Jersey,
Q Would L.B. Smith deliver the materials to New
Jeroey?
A We would either contract for a hauler to deliver
it or the customers would get their own trucks to come in
and pick up the equipment.
Q Other than the projects in New Jersey and the
one project in Canada which is the subject matter of thie
lawsuit, were there any other projects which you recall in
any other states?
A I don't remember anything outside New Jersey for
McCormack Materials when I was working for L.B. Smith.
Q Okay. With respect to working
A I'm sorry, I'll have to change that because
there was a project that we worked on in New York for
McCormack Materials.
Q When you say we, you're talking about you and
your employment with L,B. Smith?
A That's right and the salesman that I worked
with,
16
, -~...
l.
once aga n, you so
2 Materials?
3 A Sold equipment.
4 Q Equipment. Do you ever recall specifically with
5 reepect to any of those jobs if Randy McCormack came here
6 or Randy Waterman, excuse me, came here to Camp Hill to
7 the L.B, Smith location?
6 A I don't ever remember him coming to Camp Hill
9 because we would always go to the site.
10 Q And when you say site, you're talking about
11 A I'm talking about the deposit or the plant.
12 Q The deposit, I assume meaning sand deposit?
13 A Yes, sand and gravel deposit,
14 Q And that would have either been in New Jersey or
15 New York or one in Canada which involved you personally?
16 A Yes,
17 Q You said that a salesman was involved with
16 McCormack Materials, Would that have been a salesman for
19 L.B. Smith?
20 A Correct,
21 Q And would that salesman go to the -- would it be
22 his practice to go to the site, wherever this ie going to
23 be built, and eye it up to see what needed to be done?
24 A That is correct. We worked as a salp.smen
25 engineer team at L.B. Smith on projects, And he would
19
1 me.
2 Q So I assume that someone from McCormack
3 Materials well, was Randy Waterman the person you
4 always dealt with from McCormack Materials?
5 A Yes.
6 Q I assume Randy Waterman would give a call to
7 L.B. Smith and talk to you or the salesman about where
8 some jOb was in New York/New Jersey?
9 A Correct.
10 Q So the best you can recollect, it was about a --
11 correct me if I'm wrong -- about a half a dozen times
12 between 1986 up until the time that you retired that Randy
13 Waterman bought equipment from L.B. Smith?
14 A It would be a lot more than that. Because Randy
15 always tried to put something in that was less than our
16 recommendation, So after it didn't work, we'd always have
17 to go back and straighten it out. So we were continually
18 working with him. And it turned out to be a lot of small
19 orders.
20 Q And these small orders would be for the jobs in
21 New Jersey or the job in New York?
22 A Correct,
23 Q And the folks at L.B. Smith would sell the
24 equipment and provide the advice on what he should buy?
25 A That is correct, make the recommendation.
-'."
13
,
,
14
15
16
17
18
19
20
21
22
23
24
25
..'
20
1
ave.
2 R8DIR8CT 8XAMINATION
3 BY MR. VAUGHN:
4
Referring to this project and your contact
Q
5 beginning in April of 1996, you talked about continuous
6 faxes and phone calls between you and Mr. Waterman. Are
7 you talking about a few over a period of time? Can you
8 give us any kind af number of how many phone calls or
9 faxes you received in camp Hill?
10
A
In the hundreds. I have 12 inches of files.
11
Q
Thank you. With respect to your time at L.B.
12 Smith Ford --
A No,
Q No, this is a new question.
A I wasn't at L.B, Smith Ford,
Q I'm sorry, I said L,B, Smith Ford. Let's chop
some of that off, Let's start allover here again.
With
respect to your time at L.B. Smith and your involvement
w!th Mr. Waterman and his company then, did anyone from
his company come to Camp Hill to inspect equipment or
review the work or get advice from L.B. Smith?
A His right-hand man Mike Glinch probably was -- I
believe that Mike was at L.B, Smith to look at the
equipment,
Q Is that probably and believe or is that, yes, he
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
.-
22
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
I, AMY S. INTRIERI, a Notary Public duly
commissioned and qualified in and for the County of
Dauphin, Commonwealth of pennsylvania, with authority
throughout the Commonwealth of penneylvania, do hereby
certify that LUTB.R H. AMOS. JR,. who was by me duly
sworn to testify to the truth and nothing but the truth of
his knowledge touching and concerning the matters in
controversy in this cause; that he was thereupon carefully
examined upon his oath and the examination reduced to
writing under my supervision; that the deposition is a
true record of the testimony given by the witness.
I further certify that I am neither attorney nor
counsel for, nor related to or employed by any of the
parties to the action in which this deposition is taken,
and further that I am not a relative or employee of any
attorney or counsel, employed by the partiee hereto or
financially interested in the action.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
. __.J'
23
affixed my notarial seal this __:'.l.-:!:.!l. day of
1998. My commission expires:
NOTARIAL SEAL
AMY 5 INTf1IEnI, Nol.,.,. Publlo
Cav of Harm,~\J."J. Dauphin County
... CQmml5:llon 1.)"P:Il.1 Au . 9, 1m
. /
L b)J,./f'/ lX!...l.!<<,,:(
AMY S. INTRIERI
NOTARY PUBLIC
I hereby certify that the evidence and proceedings
are contained fully and accurately in the notes taken by
me during the deposition ot the within cause, and that
this is a true and correct transcript of the same.
. ' ),
/) ,/ j'-r .
( / J li.L..:::JL,-_~.!k:.!:.i.!.i..~.L_
(/ AMY S. INTRIBRI
Court Reporter
THB FORBGOING CSRTIPICATION OF THIS TRANSCRIPT DOBS NOT
APPLY TO ANY REPRODUCTION OF THS SAME BY ANY MSANS UNLESS
UNDBR THE DIRECT CONTROL AND/OR SUPiRVISION OF THB
CSRTIFYING REPORTER.
_0-". 2
1 WITNESSES
2 NAME EXAMINATION
3 JOSEPH V. CAPUANO
4 BYI MR. VAUGHN 3
5 BYl MR. DOUGLAS 15
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
V 24
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
~ 24
25
3
STIPULATION
It is hereby stipulated by and between counsel for
the respective parties that reading, signing, sealing,
certification and filing are hereby waived; and that all
objections except as to the form of the question are reserved
to the time of trial.
JOSEPH V. CAPUANO, called as a witness, being duly
sworn, testified as follows:
EXAMINATION
BY MR. VAUGHN:
Q Now is the time and place fixed for a deposition
of Joseph V. Capuano in the matter of MATX, Inc. versus
Trappe Hill Holdings, Inc., and present is Mr. Capuano. And
I am attorney for the Plaintiff, George A. Vaughn III, and
Mr. William Douglas is here as attorney for the Defendant,
We have spoken briefly before the beginning of
this deposition and have agreed that the purpose of this
deposition is to address the jurisdictional issue which has
been raised by preliminary objections filed on behalf of the
Defendant. And we are in agreement also that if there is to
be a substantive deposition regarding this matter in the
future, deposition of Mr. Capuano, that that certainly can be
conducted at a later date, Mr, Capuano, would you state
your full name for us, please?
,"'~,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
V 24
25
5
o Okay. Do you have any background as an engineer
yourself?
A I'm a registered engineer -- civil engineer in
I?ennsylvania.
Q The time focus of this matter is 1996. You were
MATX was in operation in 1996; is that correct?
A Yes.
o And did you have occasion to become involved in a
project with Trappe Hill Holdings, Inc. in 1996?
A Well, I was involved with McCormack Materials
which I now realize is Trapp~ Hill Holdings, yes.
o And what was Y01~r first involvement in 1996 with
McCormack Materials?
A Early in 1996 in April we were contacted by
Luke Amos -- Luther Amos who is a consultant for McCormack
Materials about putting two conveyors j,n to load ships in
New Brunswick, New Jersey.
o New Brunswick, New Jersey or New Brunswick --
A I mean New Brunswick, Canada. I wish it had been
in Jersey.
o All right. And how were you contacted by
Mr. Amos?
A He called me up and said that he was working on
these conveyors for Randy Waterman, and Randy wanted me to go
up and install them for him,
,'.....,
6
1 0 Were you familiar with the name Randy Waterman?
2 A Yes. We had worked for Randy previous to that in
3 South Amboy, New Jersey.
4 0 And was it your understanding that Randy was --
5 without getting into the exact relationship, but Randy and
6 McCormack Materials were the same thing in your view?
"'"
7
e
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Yes, they were.
o The telephone discussions that you had with
Mr. Amos regarding ~his conveyor work in New Brunswick, where
were you when those conversations took place?
A I was in my office. He faxed me sketches and an
outline of what was to be done.
o All right. Did you go up to New Brunswick
yourself to supervise or be involved in the conveyor work?
A After we got -- I told him that if we did the job
I'd have to go up and take two guys, whether it was a short
job and we wanted to turn around and get out of there. So I
took two guys and went up there and put the two conveyors on.
o All right. Did you have
A Actually, three guys -- I took three guys up.
o With respect to this conveyor work, did you have
any conversations with Mr. Waterman directly?
A I didn't have any direct conversations, I called
him three or four times. and he called me two or three
times, And I left meflsages on his and faxed him, hnd he
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
'-' 24
25
.,
left messages, but we never talked directly.
Q All right. And the calls that you made to him
where did they originate from?
A I called from my office to his office in Virginia.
Q And the calls that you got back were the messages
that were left by him for you? Where were those messages
left?
A In my office in Carlisle.
Q The work. on the conveyors was done?
A Yes.
Q And you've been paid for that? That's not part of
the actual complaints that we have filed; is that correct?
A
Q
that job?
A
Q
Yes. I was paid for it.
When you were paid how did you receive payment for
We got a check from McCormack Materials.
And did you receive that at your office in
Carlisle?
A Yes.
Q Did you have any further dealings then with
McCormack Materials with respect to this New Brunswick
location or project?
A Not until the project that we're in question over
here right now came up.
Q Okay. Just so everybody can get some
L
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
...-1 24
25
8
understanding of what we're talking about, is this all one
project? What was the nature or relationship between the
conveyor aspect of things and the
A The two conveyors were to load ships.
Q What were they loading ships with?
A Sand and gravel. The sand and gravel was mine at
a local pit near the dock. Later there was another pit
opened farther from the dock. The material needed processed
to a greater degree than the original pit. So this equipment
then was purchased and sent up there to that second pit, and
that's when we were asked to go up and install that.
So it was part of thin whole operation to get sand
and gravel on the ship and send it to Brooklyn.
Q Okay. So the second aspect of the project how is
it that you came to be involved in that?
A Luke Amos called me and said they had this plant,
and Randy wanted me to give him a price to put the plant in.
And I worked up a price and called him up and told him what
the number was.
Q When waR it as best as you can r.ecall when you
were first contacted by Luke Amos about putting up the plant?
A Early in August -- sometime in August of '96.
Q And how was that contact made? telephone? fax?
A He called me. He called me first and told me
about it, and then he faxed me some sketches he made. I
'-,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
~
24
25
9
think he might have made about the layout of the plant,
telling me how many conveyors there were, where the screens
were, the piping was to go. Typically, we've done this a lot
because we know that what it takes to put a conveyor up or a
screen or whatever because we do a lot of this. So just
getting a sketch with the stuff on it's easy for us to quote
the job.
Q And the phone conversation that you had with
Mr. Amos where were you located when that took place?
A I was in my office.
Q And I believe you said you thought he was in
Maine; is that correct?
A I'm pretty sure he was in Maine because he w~s up
there a lot a~ that time trying to coordinate this deal and
you know get it put together.
Q I assume this Maine location -- strike that. As a
result of the phone conversation and the material that was
faxed to you did you prepare any kind of proposal to submit
to McCormack Materials?
A We sent a formal. proposal. Right.
Q And is that the proposal that's attached as
Exhibit A
A Yes, it is.
Q - - to the contract, a letter of youx's, dated
September 9th, 1996?
~
1
2
3
4
5
6
7
8
9
10
11
) 12
13
14
15
16
1"1
18
19
20
21
22
23
24
25
'-I
10
A Right.
Q That shows an address on it to McCormack Materials
in care of Randy Waterman at an address in Upperville,
Virginia?
A Right.
Q And it also shows a fax number. Would this have
been faxed to Mr. Waterman?
A Yes. It was faxed. We put the fax number on the
letter when we faxed it.
Q And would this have been sent to anybody else?
A Well, it went to Luke Amos too.
Q It was sent from your office in Carlisle?
A Yes.
Q Did you get a response from Mr. Waterman or
Mr. Amos to this proposal?
A I didn't talk to Randy. Luke said that -- called
me up and said Randy wants you to send two guys up there
because they have -- the guy that he was dealing with on this
in Canada was getting paid part of the royalty or the cost of
the material, had people and all he needed was two people.
And he was trying to keep the cost down just long enough to
get the main part of the plant erected.
Q And that phone call again, where were you when you
received that phone call?
A I was in my office.
".......,
1
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
"wi 24
25
11
Q Is it correct to say that the work that you were
doing under your proposal was essentially a time and
materials kind of work?
A Yes. It was time and material.
Q And how were you going to be paid, or how did you
expect to be paid for that work?
A I expected him to pay me for the labor, the
materials and whatever I expended.
Q And -- strike that. You aubmitted this proposal
to Mr. Waterman and to Mr. Amos. Mr. Amos contacted you and
asked you to proceed; is that correct?
A Yes.
Q Now were you able to tell him in that telephone
conversation, yes, I will proceed, or did you have to do
something else before you could agree to send anybody up
there?
A Well, what happened is I worked up the price and
called him up and said the lump sum number because that's
what he wanted was a hundred-and-some thousand dollars. He
said I guess you don't want to do the job, and I said, well,
you know, that's what it's going to take. I've done too many
of these. Tnat's what it's going to take.
He said, well, Randy has these people up here.
Why don't you give me a time-and-material price, or really
what he wanted me to do is he wanted me to give him a
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
........., 24
25
12
lump-sum price and deduct the labor that they were going to
furnish. And I said, no, because I don't know what the
quality of the labor is, and I'm not going to be responsible
__ I'm not going to give you a lump-sum price, and I'm going
to take the beating because these people don't know what
they're doing because he told me they didn't know what they
were doing.
And he said, well, just give us two guys and we'll
will do the bulk of the work and you just get the major part
of the plan out. So I said fine, and that's why I gave him
the rates.
Q Okay. I didn't really want to do the job on a
time-and-material basis because we had a lot of other work
going on, and if I pulled these guys off the job I had to
give something up. So when he called me I said, well, I'll
just have to look because you know I don't know whether these
guys are available or not.
Q All right. You received a response from Mr. Amos
saying that they wanted your men up there?
A Right.
Q Based on the proposal you had sent?
A He wanted two men with a Bervice truck there.
Q Now did you have to do anything to be in a
position to provide those two men?
A Just schedule them, find out if I ~et them free.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
...,.) 24
25
13
Q And if you could not get those men free would you
have performed the work?
A No.
Q Were you able to get those men free?
A With a lot of difficulty because he told me he
only needed them for a short time.
Q
A
Q
been paid
correct?
A
Q
area?
A
Q
All right. And they were eventually sent up?
Right.
And this is the work,and expenses that haven't
for that form the basis of this claim; is that
That's correct.
And those men were they sent up from the Carlisle
Right. From our shop in Mt. Holly.
Okay. In your discussions in August and September
of 1996, leading to the sending of these two men, were all of
your phone calls with Mr. Amos taken by you in Carlisle?
A Yes.
Q And did you place phone calls to him also, or was
this always j,ust Mr. Amos contacting you?
A I called him. I think I called him in Maine mQybe
once, but most of the time he called me.
Q And again was there any calls that you made to him
were they from your Carlisle location?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
'-' 24
25
14
A Yeah. They were from Carlisle.
Q Again, before leading up to this proposal and the
sending of the two men, how many phone calls do you think
that you and Mr. Amos exchanged over that period of time?
A Well, I'd have to say we had more than normal, so
we probably might have had six or seven because there was a
lot of discussion about who we were going to send and were
they available.
Q And were there discussions also between you and
Mr. Amos about how you would be paid once the work was
completed?
A
Q
No. We didn't talk about that.
In connection with this work that was done under
this proposal of September 9th, did you go up to
New !Brunswick?
A No.
Q At any time did Mr. Waterman contact you or
anybody else contact you to tell you that Mr. Amos was not
acting on behalf of McCormack Materials?
A No.
Q And have you been paid any part of the amount that
you invo~ced for this work done under the September 9th
proposals?
A
Zilch. Nada.
MR. VAUGHN:
I think that's all t have at this
.-,.....,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
.01
~
22
23
24
2'5
15
, time.
BY MR. DOUGLAS:
Q Sir, with respect to Luther Amos, did you know
Luther Amos prior to 1996?
A Oh, yes.
Q And how did you know Luther Amos?
A He worked for L.B. Smith, and we did a substantial
amount of work for L.B. Smith.
Q In 1996 was he working for L.B. Smith?
A No.
Q What did he do for L.B. Smith when you dealt with
him there?
A He was their chief engineer.
Q It's my understanding then after leaving
L.B. Smith he became a consulting engineer?
A He was and is doing consulting. That's right.
Q And is it your understanding that he was doing
consulting work for McCor.mack Materials in 1996?
A Yes.
Q And his capacity as a consultant that's how he got
in touch with you?
A Yes.
Q You said that when you were talking with him he
was up in Maine. Was he residing in Maine at the time?
A Yeah. He has his place that he goes in the
'.',
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
""-"" 24
25
16
summertime. But he was also there I think because he was
running over to New Brunswick to put together what was needed
to screen the material.
Q At any time did you talk with Luther Amos here in
Central Pennsylvania concerning the job up in
New Brunswick --
A No.
Q -- prior to the dispute arising between yourself
and Trappe Hill Holdings, Inc.?
A I'm sorry. I really don't know what -- would you
ask the question again.
Q You had talked about faxes and phone conversations
with different
A Right.
Q -- with different people. It I S my understanding
well, let me back up. It's my understanding as far as
Randy Waterman is concerned your communications with him were
a series of messages being left by each other via telephone?
Or faxes.
Or faxes.
My faxes to him. I don't think I ever got one
A
Q
A
from him.
Q
A
Q
Okay. So you faxed him down in Virginia?
Yes.
And theil the other communications that you had
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
'..........-'
25
17
with respect to this project were with Luther Amos while
Luther Amos was in Maine?
A In Maine or here. He could have been -- he was
either here or in Maine.
Q Were they all by telephone?
A No. They were faxes.
Q Does he maintain a residence here in Pennsylvania?
A Yeah. In New Hampton Township.
Q It's my understanding from what you've told us
that you were involved with McCormack Materials one other
time, and that was for a project that was done in New Jersey;
is that correct?
A Yeah. Several projects in Jersey.
Q Several projects in Jersey? And what kind of
projects were they?
A Well, the first project was a new sand plant that
we were subcontractor at L.B. Smith in South Amboy,
New Jeraey. We did work directly for McCormack. We did a
couple of projects. We put cylinders on, slide gates in the
tunnel. I can't remember all of these miscellaneous little
jobs we did for them. And we went back and did several more
projects for L.B. Smith who was furnishing equipment to
expand that operation.
Q Okay. So --
A That's where I got to know R~ndy by the way.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
:10
21
22
23
24
-'
25
18
Q Was working through L.B. Smith in New Jersey?
A In South Amboy. Right.
Q When you would do work for L.B. Smith in the past
was that work involving Luther Amos?
A In as f.ar as McCormack was concerned Luther was
always involved. Right.
Q Do you xemember when it was in South Amboy,
New Jersey what year it was that you did that job?
A It was a while ago. Maybe -- well, it's over five
years. Was it '93 -- it might have been '90. The first
you're talking about?
Q Yes.
A It might have been '90. We did a serieo of jobs
after that.
Q And all of those jobs in New Jersey was L.B. Smith
, involved?
A No. Some of them we did directly for McCormack.
They'd come to me and say do you have a way to solve this
problem, and I said this is what I'd do. The one I remember
is these valves, but there were some small jobs too. They
were more like maintenance type of things.
Q And with those types of j.obs woul.d McCormack be on
the job site when he contacts you and asks you to come to
New Jersey?
A Yeah. They had -- their superintendent would call
.,-.."
-'
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
me.
o Okay. Who was that?
A First name is Bi 11. I can I t: think of his last
name.
Q And then once Bill would contact you you'd go over
to New Jersey?
A I'd go over and find out what he wanted and work
up a price.
Q And then the work would be performed in
New Jersey?
A Right.
Q With respect to this Canada job, the New Brunswick
job, were all of your contacts, preliminary contacts, were
they first with Luther Amos or were they with Luthl'ilr Amos and
Randy Waterman? What I am trying to do now is get a time
frame from when you were communicating with these two.
A Luke wou ld ca 11 me f I.ret because Luke was working
for Randy.
Q And is it your understanding that Luke Amos was
providing -- t guess Luther Amos goes by Luke?
A Yeah.
o Okay. Is it your understanding that Luke Amos was
providing hie consulting services to McCormack?
A Yell.
MR. (JOllOLMJ: That's all the questions that I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
I
'-"
25
20
have.
BY MR. VAUGHN.
Q Just a f~w. Mr. Capuano, with respect to the
payments that you received for the work that you did for
McCormack Materials in New Jersey that you were asked about,
how was that ~ayment made to your company?
A By check.
Q And where were those checks received?
A In Carlisle.
Q with respect to Mr. Amos and his involvement in
this Canada project, would you describe the term consulting?
And consulting services has been used here in the course of
this deposition. Would you say that's a correct description
of the nature of his llOrk and the scope of his work as you
understood it in Canada?
A He was a consultant. He was asked to secure the
materials and secure the contractor and get him on the job.
Q Was he involved in supervising the work up there?
A To a certain extent, yes.
Q You mentioned that Mr. Amos has a residence in
Hampden Township. By that I take it you mean Hampden
Township, Cumberland County, Pennsylvania?
A Oh, yes. Right up the street here.
MR. VAUGHN: That's all I have.
(Deposition concluded at 3:35 p.m.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
.....,)
2~
21
COUNTY OF CUMBERLAND
I IilS
COMMONWEALTH OF PENNSvt,vANIA ;
I, Christine F. Haag, a Notary Public, authorized to
administer oaths .tJithin and for the Commonwealth of
Pennsylvania, do hereby certify that the foregoing is the
t~stimony of Jooeph V. Capuano.
[ further' Clll't Lfy that before the taking of said
deposit Lon, the wLtMO/3 was duly sworn; that the questions
and answers were taken down stenographically by the said
Reporter -Notar'y Pub lie, and afterwards reduced to typewriting
under the dLrection of the said Reporter.
I further certify that the said deposition was taken at
the time and place specified in the caption sheet hereof.
I further certify that I am not a relative or employee
or attorney or counsel to any of the parties, or a relative
. or employee of ouch attorney or counsel, or financially
interested directly or indirectly in this action.
I further certify that the said deposition
constitutes a true record of the testimony given by the said
witness.
[N WITNESS WHEREOF, I have hereunto set my hand
thLs 6th day of July, 1998.
limriSuJ
I" .~
ch;i~l~t~~nF. - ;~g ,~~ht. .). /
Notary Public \. ...
n
w
R
D
I
N
D
I
X
,"
o
,
"
"
'.
,
.
",c'
.'
, '
'I.,
"
0.
,l,'
.
Multi-I'age'"
'90 - duly
JOSFPII V CAPUANO
.....
.
... _.._.._---~_._-_...--~---_.. lOA 171 112 4" 4 [Ij 7 K 410
-'- IKA 1l)'14 III 14 7 IK 10: 12 1.\.13 correct 1111 40
..__.__._~~_.__.___...___n__'_ I~,I~ 1920 19.2.2 13 " I.\l~ 14 I
'90PI IX.III IX 13 21J 10 .211.20 .2lJlJ 413 5:c) 7.11
'93111 IX: 10 9: 12 II:I 1111
amountl'I14l1 I~ 1\ CenlralllllOl 13 11 13: 11 17:11
'96111 X:ll answers III 11 III eertainlll llll~ 111:13
_._~._-- APPEARANCES III certainly III ]23 eostlll 10: 19 11111
----. + 1:16 certification III 34 counsel 1'1 3.1
11591'1 4:3 4'1~ April III ~ 14 certify 1'1 11:6 llK 11: 16 11 17
15111 u area II I 1314 11 13 11: 1\ 11: I~ County 16111 46
19751'1 4 17 422 arising III I bX check 1'1 7:16 10:7 4:7 41~ 111.11
19961101 asks III IXl.1 checks III 11l:K 111
~:~ ~:h couple III
-~:I.) \: 11 \:14 aspect 111 K3 8 14 ehieflll 1\: 13 17:1~
~l\ 13: 17 15:4 assume [II~: I b Christine 111 I: 10 course III 111: 11
I\:~ 15: 18 attached III 9:11 11:4 lU4 COURT[II 1:1
1998[11 I: 11 21 :23 attorney [41 3:1\ civil[ll 1:1 ,5:3 Cumberland [61 1:1
3:16 11'16 11: 17 c1aimlll 1310 4:6 4:7 4:19
-2- 10:11 21:1
August 111 8:11 8:21 COMMON III 1:1 cylinders III 17:19
23111 I: 11 13: 16 Commonwealth 11111:3
authorized III 114 11:\ -D-
-]- available 1'1 11:17 communicating III 19:16
- 14:M communications 111 date 111 I: 11 3:14
3111 1:4 datedlll
3904111 1617 16:1\ ~:14
1:13 -8- deal III 9:14
3:05111 III ----.-..-- company 1'1 4:15
background [II 1116 dealing III H):IM
3:35111 20,25 \:1
Based [II 11:11 complaints 111 7: 11 dealings [II 7:111
-6- basisI'I 11:13 13: 10 complcted !II 14:11 dealt III 1\: II
beatingjllll:5 conccrned PI 16: 17 deduct 1'1 11: 1
6thll' 2123 became III 1\:1\ 18:5 Defendant 14' 1:\
becomclll\:M conccrninglll Ib:5 1:21 3:16 3:21
-9- beginning [II 3:17 concluded III 20:25 degroc 111 M:9
97-4837111 1:3 behalf 111 310 14:19 conducted 111 3:14 deposition 1111 I:M
4:23 3:12 3:IX 3:19
9thl11 9:25 14:14 best III 820 conncction III 3:12 3:23 10:13
14:22 14:13
between [4' 3:1 constitutes III 21:20 211:25 11 :~ 11:13
------- M2 14:9 16:8 con~truction 111 11: 19
-A- Billlll 19:3 Il):~ 42\ describe III 111:11
able III 11'13 13:4 briefly III 317 consultant III \:15 dcscription IIi 10 13
1~:211 20:lfl
acting III 14: 19 Brooklyn III 8: I 3 consultinll161 1\: 15 different III 1613
action 111 1:2 4:13 Brunswick 1111 5:17 1\:16 1\: 1M 19:13 16: 1\
1118 5: 1M 5: 1M 5: 19 111:11 21):12 difficulty 1'1 135
actual III 7: 12 6:9 6: 13 7:11 contact[4,M23 14:17 direct [II 6:23
address 14,3:19 4:21 14:15 16:2 166 14:IM 195 direction III 21:1.1
1~:12
111:2 10:3 bulk III 129 contacted [4' 5:14 directly ['I 6:21
administer III 21:5 \:21 M:11 11'10 7: I 17: 1M 1~:17
afterwards [II 21: II business III 4.13 contacting III Illl 1l'IM
again 14' 11113 13:24 contacts 1'1 IXB discussion III 14:7
14'1 1611 -,--=~- 19: IJ 19: 13 discussions PI 68
ago III IX,9 calls 161 72 7l contract III 9:24 1316 149
agrcclll IIll 131M 1.\ 111 1324 contractof( II 211: 17 disputeIII16:~
agreed III 3 18 14 3 conversation 111 9:M dock PI 87 ~M
agreement II I 321 CAMP III I 14 9'17 11.14 dollars III 11:1"
always \11 13:11 IX:6 CanadalSl51~ 1019 conversations 141 ~ 10 done PI 612 79
Amboy 1416:3 17: 17 19'12 20'11 10 15 ~22 bll Iii 12 9:3 1111 14 \3
182 18:7 capacity II I IJ10 conveyor 1,11 fl:9 1422 1711
Amos 1111 51\ 5: 1.5 caption 1111114 614 ~.ll 83 Douglas (II uo
l12 6:1) ~,16 Capuano 1'01 I 8 94 110 110 UO
821 'i. I) 10'11 1.3 J 8 3 13 conveyors 1'1 \,I~ 25 3: 16 ID
HII\ II 10 1110 3 14 _\23 124 5.24 618 79 1915
121M 13 18 1111 41 llll 21.7 84 9:1 down 111 10:21. 1~.23
144 I'" lO 1,\ I K carelli III l coordinate III 9'14 11: 10
1< ) 1.1,\ I ,~ fl ~lisICjl'l ,II corporation III 411 duly PI 1 M 11.9
,
IIlIGUES, AI.HRIGlIT, !'OI.TI. & NATAI.I!
717-540-0220\717- )1)1-5101
I ndcx Pagc I
.
".,..,..
Early - nature
JOSFPII V CAI'UANO
Multi-I'age '"
fOnnl11 J." 1)111 interested III 21 IX x.:! I 11111 III I"
- .._--._-----. .-..- ------- 19:17 19: 17 I~ I~
-[- formall'l ~: 2<1 invoiced III J 4.22
---~---~_.-.-,. -.---. - -.--- . --- involved 1'1 ~:~ 111:20 19,22
EarlYl'1 5 14 1'1:22 fourlll fl:14 lumplIl II.IH
frame III I~ I" 5 10 ~ 14 HI5
easy III \J:h 17: III IH~ IH: Iii lump-sum 111 12:1
eitherlll 174 fn:ePI 12:25 13: I 2<1.IM 124
employed 111 4K IJA involvement 111 5: 12 l.utherl"1515 15:3
4:10 full III 3:2:; 20 III 154 15:~ 16:4
employccl1l 21.1 ~ furnish III 122 involving III IM4 17:1 17:2 IM:4
2117 furnishing III 17:22 issue III 3: I~ IH:5 1~:14 I~: 14
englnccrl'l 5:1 future III 323 1~:20
53 .:L' 15.1.1 --_._---~ -J-
1515 -G- - -M-
engineering III 4:25 Jcrsey 11'1 5: 17 5: IH mainlll 10:22
equipment III M9 gates III 171~ :'1:20 ~:3 17: II Mainel'l
George 141 1'13 I: 17 1713 17: 14 17:18 ~: 12 ~IJ
1722 ~'I~ 13.22 1524
I'IM 3'15 1M: I IMM 1M: 15
erected III 1022 given III IH:24 196 1910 15:24 172 17.1
ESQIJIREIlI I:IR 21 :20 20:5 174
120 goes "I 15:25 19:20 job 1111 6:15 6:17 maintain III 17:7
esnentially III 112 gravel PI H:6 8:6 7: 15 ~:7 IUO maintenance III 18:21
eventually [II 137 M:13 12:12 12: 14 16:5 majorlll 12:9
everybody III 725 greater [II 8:9 IM:8 IM:23 19: 12 material 1'1 8:H
exaetlJl "5 guess 121 IUO 1~:20 19: 13 20:17 9: 17 10:20 114
EXAMINATION"I gUYll1 10:18 jobs 1'1 17:21 18:13 16:3
~: 16 6:IM 18: 15 18:20 18:22 material3ll6l 14
22 3 III guys 181
except III 3:5 ~:20 6:20 10: 17 Joseph 16' I:M 2:3 5:10 5:13 5:16
12:M 12: 14 12: 17 3:8 3:13 4:1 66 7: 16 721
exchanged [II 144 21 :7 9:19 I():~ 11.1
Exhibitl'l~22 --- JUIYIII IIH 141~ 15:IH
-H- 21 :23
expand III 1723 .--- JUNEIII I: 12 17: 10 205 2.) 17
expect III 116 Haag III 110 21 :4 jurisdictional III 3: 19 matter III 3:13 3:22
21:24 5:5
expected III 117 Hampden '" 20:21 - MATXI6,1:1
expended III IIR -K- 3:13
20:21 4:12 4: 15 4:23
expenses III 139 Hampton [II 17:8 koePlI1 10:21 5:6
extent III 20: 19 hand II' 21:22 kindl41 4:23 9:18 McCormack 118' 1:4
Harrisburg I" 4:3 11:3 17:14 5:10 5:13 5:15
-f- 4: I~ 6:6 7:16 7:21
1'111 hereby III 3:2 3:4 -L- 9:19 10:2 14:19
110 21:4 15: 18 17: 10 17:18
21:6 ..
2124 1..81101 15,7 15:8 IM:5 18: 17 18,22
familiar II I 6:1 hereof II I 21: 14 15:9 15:11 15: 15 19:~3 20:S
farm 16: I~ IR:5 hereunto III 21'22 17: 17 17:22 IM:I mean[,! 5: I~ 20:21
farther III RM H ill 161 13 1.14 IM:3 IR: 15 men 181 12,!~ 12~2
fax [II R23 10'6 314 5:9 511 labor III II :7 12: I 12:24 III 114
10M 169 12:3 13:13 13: 17 14:3
faxed 181 611 625 "oldings III 1:3 last III 19:3 mentioned [II 20:20
825 9: IH 107 3:14 ~:9 5: II I.A Vol III 1:2 1:13 messagcs 1'1 6:2,\
lOR 10:9 1623 16:9 1:17 7: I 7:5 76
faxes 1'1 16: 12 1619 "oily III 13:15 layout III ~:I I~: 18
16:20 16.21 17~ hundred-and-some [II leading ",13: 17 14:2 middle III 41
few III 20:3 11'19 leaving [1115: 14 might 141 9:1 146
filed 121 .uo 712 . Icftl'l 6:2~ 7: I 18:10 18: 13
filing[ll 14 ~---- -I- 7:6 77 16: 18 minCIII 8:6
financially [II 21 17 III 141 113 1:17 Icttcr r AI ~:24 10:9 miscellaneous II' 17:20
finerlJ 1210 1.18 3: 1 ~ load 121 51~ 84 mostlll 1.123
first 1'1 ,\ 12 8.21 Incl61 II 13 loadingrlJ8~ Mtfll 131\
313 .114 412
R.24 171~ IX 10 5~ local III 87 ---.--....--..--.,--.-------
19.1 II): (4 1917 located 111418 4.20 -N-
fi~e III Inc. PI 42.1 16:9 __. "_0___'___0___0-
tH.\) incorporated III 9:9 Nadalll 14,14
fixedfll 3 12 41 ~ location 111 722
indirectly fll 21 1 H name 1'1 22 J-2~
fOCUSfll ~ ,~ 9, 16 I.l 25 " I 19 ) 1~4
follows III 19 initial III 41 lookflI 12 I"
nature 121 S.2 2014
forel!:oing fll 21' illstall 121 U' X II [I.ukeflol \ 1\ X I~
_. -
indn Pag~ 2
IItJOl11iS. AI.IIRI<JIIT. flOI.TI. & NATALB
7! 7-540-0220\717-393-5 101
".-"
Multi-I'age'M
..'....
neaq II x:7 l'ennsylvuDlu I111 1.1 pureh
needed [41 x:x 1020 1'14 44 4\ purpo
IH 102 4,10 \4 10:\ putPI
17:7 20:22 21.3
neveq II 71 210 '14
new (2)) \17 ~: 17 102
people 1'1 1020 10:20
5 Ix \Ix 51x 11 :23 12:\ Itd5 pUlli
\1'1 0:3 0:'1 performed 1'1 13:2 -.-- -.-_.
0,13 7:21 141\
102 100 17:x 1'1:'1
1711 17:16 17:lx period III 144 qual it
Ix:1 Ix:x Ix:l\ phone 1'1 '1:X 'I: 17 quest
Ix:24 1'1:6 1'1:10 10:23 10:24 13:lx 21'1
1'1: 12 20:\ 13:20 14:3 16: 12 quote
nOnnal[1114:\ PikC1l1 4:3 4:1'1
Notary PI 1:11 21:4 pipinglll '1:3
21:2\ pit 101 x:7 x:7 raise
now 1'1 J: 12 4:x x:9 x:1O
411 \: II 7:24 plaCCl11 1: 13 3: 12 Rand
II 13 1223 1'1:1\ 6:10 '1:'1 13:20 6:1
numbeq4Ix:I'I 10:6 15:25 21: 14 6:5
lO:x I 1.1 x Plaintiffl'l 10: 16
1:1 16: 17
1:9 1:1'1 3:15 19:1x
-0- 4:13 rates I
oaths III 21:5 plan III 12:10 readi
objections III 3:5 plant 161 x:16 x:17 reali'
3:20 x:21 9:1 10:22 really
ocellllion II I 5:8 17: 16
PLEASI'II:I 16:[(
off(ll 12:14 recei
office 1.01 4:18 4:20 position (II 12:24 reeei
6:11 7:4 7:4 preliminary 1'1 3:20 12: Ix
7:x 7:17 9:10 19: 13
10: 12 102\ prepare III 'I Ix reeor
OFFICES 121 I: 13 prescnt 11 I 3:14 reduc
1'17 president III 412 regar
0:9
once III 13:23 14:10 pretty 111 '1:13 rcgis
1'1:5 previous (II 02
one 141 x:l 10:21 relati
17: 10 18:19 priccl11 X: 17 x: 18 x:2
opened III x:x 11:\'1 11:24 12: I rclati
12:4 19x 21.16
operation III 5:6 primarily (11 424
x:12 17:23 reme
principal (II 41x
original III x:9 Ix:7
problem(ll Ix: 1'1 Repo
originate III 73 proceed 1'1 11.11 Repo
outline III 6:12 11:14 21.11
---- processed III x:x rese
-p- project 1'1 \:'1 7:22 reside
.
1'111 120 723 x,2 x.14 reside
p,ml'l I 12 20:25 17.1 17: II 1716 20:20
20: 11
paid 1'1 7:11 7:13 projects ('1 17: 13 residi
7: 14 10: 19 1U re~~
11:6 13:10 14: 10 17: 14 1715 17: 19
14:21 17'22 20:3
pall 161 7:11 8:12 pl'OEosall'l 9: Ix
9: 0 9:21 10 15 respe
10:19 10:22 12:9 11 :2 119 12:21 respo
14:21 14:2 11'14 121x
Part-time (11 4:'1 proposals (II 14:23 respo
parties 1'1 33 21.16 provide III 1274 result
past III 410 Ix3 providing 121 1'110 right I
paYlI1 II 7 1'123 "J olJ
payment 121 7 I~ PubliCI" III 724
2l)1') 21 II 21 2\ 10:5
payments 1'1 21).' pulled 111 12 14 1J.7
15 10
>--.
5:21
7:2
10:1
1220
13: 15
IK:.1
ascdlll
SCIII
(l: 1M
'115
17: 19
ngl2l\lI1
klO
,\Ill
x.17
IO.X
x21
_._._-~Q:-
Y 111 12:3
ions 121 19:25
III 9:6
-R-
d(ll 3:20
y 1"15:24 5:24
6:2 0:4
x:17 10:3
10:17 11:23
17:25 19:15
11 12:11
ng1113:3
ZCIII 5:11
III 11:24 12: 12
I
vel'17:14 7:17
ved 141 10:24
20:4 20:x
dill 21:20
edlll 21:11
ding 121 3:22
tercdlll 5:3
on ship III 6:5
VCI2I 21: 15
mber III 17:20
Ixl9
rtcflll 21:12
rtcr-Notary (II
rved III 3:5
III 4:2
nce 1'1 17:7
ng III 15:24
ct1116:21 7:21
17:1 19: 12
20:10
clive III 3:3
nSel21 10:14
".."._.J
nsible(ll
III 917
'01 4: 10
6:19
'1:20
12: Ix
l3:x
10 14
12:J
!lUOIIIIS. AI.DRIWrr. FOI.TZ & NATAI.E
717-540-0220\717- 393-510 I
near - SS
JOSEI'H V, CAI'UANO
IXO 19.11 20.23
ROADIII1.I3
royalty III I<J I 'I
RI'RI2I l'lt) 2124
running ill II> 2
----.- -.---
-S-
-----,-
sand 141 X'O xl>
x:12 17: If)
schedule ill 12:25
scope (11 20: 14
scrocn 121 9:5 163
serccnsll19:2
scaling III 33
secondl'18:10 x:14
secure PI 20:11> 20:17
send 141 x:13 10:17
11:15 14:7
sending 1'1 13: 17
14:3
sent PI 8:1U 9:20
10: 10 10: 12 12:21
13'7 13:13
September 141 9:25
13:16 14: 14 14:22
series 1'1 16: 1 X 18:13
service III 12:22
services 1'1 19:23
20:12
set (II 21 :22
seven I" 14:6
several (II 17: 13 17:14
17:21
sheet III 2::14
ship III x:13
ships III 5: 16 8:4
8:5
shop III 13: II
short (21 6: 16 13:6
shows (21 10:2 10:6
signing (II 3:3
sitc[11 Ix:23
silt III 14:6
sketch (II '1:6
sketches I" 611
8:25
slide 1'1 17:19
small [II 18:20
SmithllOI 15:7 15:8
15:9 15: 11 15: II
17: 17 17:22 18: I
Ix:3 18: 15
solvel'l Ix: 18
sometime (II 3:22
sorry [II 16:10
South 141 6:J 1717
lx:2 1x:7
specified III 21 \4
spoken III 3'17
SS(l1 212
Ind~" Page 3
state (II ):~4 twol"l 5: 16 n: In .-----..- ---.~-_.__._--
stenographically III n 18 fl: 18 n:24 -y-
21: 10 84 10:17 1020 ____n..
12:8 12:22 12:24 yearlll 18:8
stipulated II I ):2 13:17 14:3 19:1fl years)11 18:10
STIPULATION 11131 type II) 18:21 yourself III 5:2
stroetl'l 2023 types III 1822 n: 14 16:8
strike (21 9: In 119 typewriting (II 211 I -,-
stuff(ll IJr' Typically (II 9:3 -z-
subcontractof( 'I 1717 Zilch (II 14:24
submitll) 918 -
-u-
submitted (II 119 -
substantial (II 15:7 underl'l 11:2 14:13
14:22 21: 12
substantive (I I 3:22 understood III 20: 15
such (II 21: 17 UP"'I 5:23 5:25
sum(1) " :18 6:13 6:16 6:18
summertime fI I 16:1 6:20 7:24 8:10
superintendent II I 1825 8:1 I 8: 18 8:18
supervise (II 6:14 8:21 9:4 9:1.1
10:17 10:17 H:15
supervising (II 20:18 11:17 II :18 11:23
sworn (21 39 219 12:15 12:19 13:7
--~-.-- 1313 14:2 14:14
-T- 15:24 16:5 16:16
19:8 20:18 20:7.3
takesl'l 94 UpperviIle II) 10:3
taking(ll 218 used (I) 20:12
telephone 1'1 6:8
823 1113 16,18 -v-
175
telling III 9:2 V)71 1:2 1:8
tcnn(ll 20:11 2:3 3:8 3:13
4:1 21:7
testified III 3:9 valves (I) 18:20
testimony III 21:7 Vaughn 191 1:13
21.2\l
thought 11)9 II 1:17 I: 18 2:4
3:11 3: IS 14:25
thousand fll 1119 20:2 20:24
throe 1'1 n20 n:20 versus II) 3: 13
fl24 n2,) via (I) 16:18
through (II 18 I vieWll1 6:6 ,
time-and-material III Virginial]l 7:4
1I24 1213 10:4 16:23
times (21 n24 n:25
togethcrlll 9: IS -W-
16:2
too 111 10 II 1I:21 waived (II 3:4
18.20 wants II) 10: 17
took ['1 n 10 0: 18 Waterman 1101 D4
0.20 9:9 6:1 6:22 10:3
touch III 1521 10:7 10: 14 1t:10
14:17 16: 17 19: 15
Township 111 178 WHBRE!OFIII 21:2,'
2021 20-22
tradinglll 14 whole (II H: 12
Trappe III I ) 3:14 William III 1:20
59 \11 10:9 316
trial (II ),0 wish(ll 5: 19
TRINDLE! (I) II} within III 2U
truekll) 1222 without I" 6:5
truclll 112() witness '41 3.8
21:9 21:21 21 :22
trying 111 <) 14 10.21 WITNESSES(II 21
191\
tunnell'l 1721) worked 141 n2 8.18
II 17 1\7
turn (II o I:
.-
state - Zilch
JOSEPH V. CAPUANO
Mu1ti-Pagc'~
JnJ~x Pag~ <I
IIU(JtIIlS, ALBRIOIIT, FOL.1. &:. NATALE
717-540-0220\717- J9J-5 101
r-
,
l
f; W
,.;
~
,{- ~
..t ~~
!OJ
{ t
.)
~
.~ 1 ~ q;:
1 \J
~
,:,.-
,,: ..:;; '\~
,-
'):.
-~
I .~j ,
" ')';ij
I ,It:';
':,. ,'11-:'0'
J ,:l (L..
.... ~i
'~'-' <:':;>.,
:~, Co>
f"I"
"
~?,~r.f'J ~' "1'>;(
,.-"(/ .,) -JT:"'>'o/f
II.; I' 0--~.'t.l'fr
Ii
MATX, INC., Plaintiff
Vo
TRAPPE HILL HOLDINGS, INC.,
trading as MCCORMACK MATERIALS,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
~7 - i.+~3~ CIVIL
CIVIL ACTION - LAW
YOU have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in
writing with the court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by
the court without further notice for any money claimed in the
complaint or for any other claim or relief requested by the plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGkL HELP.
Court AdmXnistrator
4th Floor, Cumberland County Courthouse
Carlisle, PA
(717} 240-6200
MATX, INC., Plaintiff
V.
TPJ~PPE HILL HOLDINGS, INC.,
trading as McMCORMACK MATERIALS,
Defendant, Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97 - ~gSq CIVIL
CIVIL ACTION - LAW
COMPLAINT
AND NOW comes the Plaintiff, MATX, Inc., by its attorney, George
A. Vaughn, III, and files the following complaint in support of which
it is averred that:
1. The Plaintiff is MATX, Inc., a Pennsylvania business
corporation, with its office and principal place of business located
at 1159 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania.
2. The Defendant is Trappe Hill Holdings, Inc., a corporation,
with an office or business location of 22299 Willisville Road,
Upperville, Virginia.
3. At all times relevant hereto, Randy Waterman (hereinafter
referred to as "Waterman") was either an officer, employee, or duly
authorized agent of Defendant acting within the scope of his authority
as such on behalf of the Defendant.
4. At all times relevant hereto, Luther N. Amos, Jr.
(hereinafter referred to as "Amos") was a duly authorized agent of
C:~LWORK\MISO, D080797A.WPD - 1 -
Defendant acting within the scope of his authority as such on behalf
of the Defendant.
5. In April 1996 Defendant retained the services of Amos as an
engineering consultant with respect to a sand and gravel extraction
and screening plant project to be built by the Defendant in New
Brunswick, Canada, (hereinafter referred to as the "Project").
6. In August 1996 Amos contacted Joseph V. Capuano, President of
the Plaintiff, by telephone at Plaintiff's office in Carlisle,
Pennsylvania.
7. During the course of this conversation, Amos requested that
Plaintiff provide to Defendant a proposal for the performance of
certain work upon the Project.
8. As a result of the telephone conversation between Amos and
Capuano, Plaintiff submitted a written proposal to Defendant for the
performance of certain work upon the Project by letter dated September
9, 1996, a true and correct copy of which is attached hereto as
Exhibit A (hereinafter referred to as the "Proposal").
9. Amos received Plaintiff's Proposal and reviewed it with other
officers, employees, or agents of Defendant.
10. Amos, in a telephone discussion with Capuano in shortly
after September 9, 1996, rejected that portion of Plaintiff's Proposal
C:~WORK\~SC~D080797A.WPD - 2 -
contained in the first page of Plaintiff's letter of September 9,
1996.
11. In that same telephone discussion, however, Amos offered to
employ Plaintiff for certain work upon the Project on a time,
materials, and expense basis at the rates set forth on the second page
of the Proposal, and Amos agreed that payment to Plaintiff would be
due at the offices of Plaintiff upon presentation of an invoice from
Plaintiff to Defendant for Plaintiff's work.
12. Plaintiff agreed to perform the requested work upon the
Project for the Defendant on a time, materials, and expense basis in
accordance with the second page of the Proposal such work to be
performed over a one week period beginning on September 30, 1996, and
ending on October 6, 1996.
13. Plaintiff proceeded to supply the services requested by
Defendant for the agreed upon work upon the Project beginning on
September 30, 1996.
14. At the request of Defendant to meet Defendant's needs,
Plaintiff agreed to make its services available to Defendant for an
additional period of one week.
15. Plaintiff's work upon the Project ceased on October 12,
1996.
16. Plaintiff kept accurate records of the time, material, and
expenses incurred by it in performance of its work on behalf of
C:~WORK~ISC~080797A.WPD ~ 3 -
Defendant.
17. Plaintiff submitted to Defendant an invoice for the work
performed by Plaintiff upon the Project. A true and correct copy of
the invoice is attached hereto as Exhibit B.
18. The items set forth in Plaintiff's invoice represent the
time, material, and expense invested by Plaintiff in work upon the
Project at the request of Defendant.
19. The amount due and owing to Plaintiff from Defendant for
Plaintiff's work upon the project is $16,933.00.
20. Despite repeated demands by Plaintiff for payment of the
amount due and owing to it, Defendant has refused to make payment to
Plaintiff.
21. Defendant has no reasonable basis upon which to refuse
payment to Plaintiff, and Defendant's conduct in failing to make
payment and requiring Plaintiff to commence suit to recover payment is
arbitrary, vexatious and in bad faith.
22. Plaintiff will incur reasonable attorney's fees and other
costs and expenses in the prosecution of this claim in an amount
estimated to be $3,000.00.
23. Defendant is therefore indebted to Plaintiff in the total
amount of $19,933.00.
C:~WORK\~SC~D080797A.WPD
WHEREFORE Plaintiff demands judgment against Defendant in the
amount of $19,933.00, an amount which is within the limit for
compulsory arbitration, together with interest from November 5, 1996,
and costs of suit.
Dated:
Respectfully Submitted,
GeOrge A.-Vaughn, III
Attorney for Plaintiff
Supreme Court I.D. %25650
3904 Trindle Road
Camp Hill, PA 17011
(717) 975-9102
C:~L WORK\MISC~D0 g0797A.WPD
I, Joseph V. Capuano, President of MATX, Inc., verify that
the statements made in this Complaint are true and correct. I
understand that any false statements in this Complaint are
subject to the penalties of 18 Pa.C.S. Section 4901 (unsworn
falsification to authorities).
Dated:
C:XL WORK\MI SC~)080797A.WPD
EXHIBIT A
C :~LWOR~vIISC~D080797A.WPD
September 9, 1996
McCormack Materials
C/O Randy Waterman
Rural Rt. 1, Box 62
Upperville, VA 22176
Fax: (540) 554-2646
Reference: Screening Plant
New Brunswick, Canada
Dear Randy,
In accordance with L. B. Smith's Drawing #E-2324, 1 and 2, I
have prepared a proposal to furnish labor and a crane to erect the
plant complete less electrical and pipe beyond plant proper.
Our Price for ~his would be . · $ XXS,9~O.O0
(One hundred f~fteen thousand n~ne hundred e~ghty dollars and
no cents)
Work b Others
· Furnish all wood cribbing.
· Furnish and put in place steel to support screen
structure.
· Furnish all permanent materials including pipe, valves,
etc.
· Provide access to the site for men and equipment.
This project with four (4) men is expected to take four (4)
weeks working seven (7) - ten hour days.
Luke ask that we use the local group you have at the site.
The only way I see us accomplishing that would be to perform work
on a cost plus basis.
Page -2-
Screening Plant
September 9, 1995
We would provide labor at the following rates:
Mechanic - $42.00/Hour Straight
63.00/Hour Overtime
Supervisor - $45.00/Hour Straight
66.00/Hour Overtime
Service Trucks - Two (2) each $200.00/Day each (includes fuel)
Crane Rentals & Materials - Cost plus 15%
Expenses / Hotel - Cost
Food - $35.00/Day/Man
It would be difficult to utilize strange help since they are
not experienced. While erection is taking place, the use of the
crane dictates progress, not the number of men.
We will make the most of the situation
would like us to proceed.
if that is how you
As always, thank you for the opportunity.
have a better chance of working.
Very truly yours,
I believe this will
MATX, INC.
Joseph. V. Capuano, P.E.
President
JVC:sp
EXHIBIT B
C:~LWOKK~VHSC~)080797A.%VPD - 8 -
CONTRACTORS. ENGINEERS
November 5, 1996
McCormack Materials
C/O Randy Waterman
Rural Rt 1, Box 62
Upperville, VA 22176
Fax: (540) 554-2646
Reference: Screening Plant
New Brunswick, Canada
INVOICE d-~C-2
Travel Hours - 32 Hours @ $42.00/Hour ................. $
Labor Hours - 160 Manhours @ $42.00/Hour ..............
Labor Hours - (Over 40/Week) 50 @ $63.00/Hour .........
Service Truck - 1 @ 11 Days - 11 Days @ $200.00/Day ---
Customs/Work Permits - Lump Sum .......................
Hotel - 11 Days @ $52.00/Day ..........................
Per Diem - 11 Days @ $35.00/Men x 2 Men ...............
1,344.00
6,720.00
3,150.00
2,200.00
2,177.00
572.00
770.00
TOTAL THIB INVOICE DUE AND PAYABLE .................... $ 16,933.00
STEPHEN O. SIMPSON
SHERIFF
OFFICE OF THE SHERIFF
COUNTY OF LOUDOUN
P.O. BOX 229
LEESBURG, VIRGINIA 20178
AFFIDAVIT OF SERVICr'
(703) 777-0407
Metro (703) 478-1810
STATE OF VIRGINIA
COUNTY OF LOUDOUN, to wit:
Re: MATX, INC. VS TRAPPE HILL HOLDINGS, INC.
Before me, the undersigned authority, personally appeared R. W. BROWN, a person
competent to make oath, and who by me being duly SWorn, deposes and says:
That this NOTICE AND COMPLAINT came to hand on the 10th day of November, 1997 at
7:59, A.M. and executed by delivering to RANDY WATERMAN, STOCKHOLDER of Trappe Hill
Holdings, Inc., (Mr. Waterman stated he did not know if he was a corporate officer.), in PERSON,
at 22299 Willisville Road, Upperville, County of Loudoun, State of Virginia, on the 10th day of
November, 1997, at 10:49, A.M., a true copy of the abovementioned process.
The manner of service described in this affidavit is the manner of service provided by the
statutes and rules of the Commonwealth of Virginia for service of original process upon a corporate
defendant in a civil action before a Virginia Court of general jurisdiction.
STEPHEN O. SIMPSON, SHERIFF
Loudou~ty,
By:
Sworn to before me this ~ day of November, 1997.
~otary Public
My Commission Expires:
LCSO
4.9
3/96
DOUGLAS, DOUGLAS & DOUGLAS
27 W. HIGH ST.
POB 261
CARLISLE PA 17013
TELEPHONE 717-243-1790
WILLIAM p. DOUGLAS, ESQ.
Supreme Court LD.# 37926
i
Cumberland County Pennsylvania
Plaintiff i
V$
Trappe Hill Holdings, Inc. t/a
McCormack Materials
97 - 4837 Civil Term
Civil Action Law
Defendant
Preliminary Objections of Defendant
1. The plaintiff is Matx, Inc., a Pennsylvania Corporation with principal
offices located at 1159 Harrisburg Pike, Carlisle, Cumberland County,
Pennsylvania.
2. The defendant, Trappe Hill Holdings, Inc. is a Virginia Corporation
with principal office located at 22299 Willisville Road, Upperville, Virginia.
3. All matters which form the subject matter of this suit occurred in
Canada.
4. At no time, relevant hereto, did the defendant corporation transact
business in the Commonwealth of Pennsylvania nor did they maintain a
place of business in Pennsylvania.
5. At no time Trappe Hill Holdings, Inc. agree to submit to the
jurisdiction of the Commonwealth of Pennsylvania.
6. The courts of the Commonwealth of Pennsylvania do not have subject
matter jurisdiction or in personam iurisdiction in this matter.
Wherefore, it is prayed that the complaint of the plaintiff be dismissed due to
lack of in personam and/or subject matter jurisdiction.
December 5, 1997
Respectfully submitted,
William P. Dou~las,~sq.
Attorney for the defer~nt
Affidavit
This verification is made pursuant to Pa.R.C.P 1024(c) by counsel for the
defendant. To the best of the s' '
foregoing is true and correct. ~gner s knowledge, information and belief, the
Attorney for Defendant ~"
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be t~tten m~d submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Plane llnt the within matter f~r tb~ next Ar~j~mt Court.
CAPTION OF CASE
(emtire capti~ ~ust be stated in
Marx, Inc.,
Trappe Holdings, Inc., t/a
McCormack Materials,
(plaintiff)
( Deferment )
NO. 97-4837 Civil Term
1. State matter to be arc3ued (i.e., plaintiff'sw~ti~ for newtri~l, defem~mnt's
cl~m~&~rto c~,~laint, etc.):
Defendant's Preliminary Objections
2. Identify counsel who~ll argue case:
(a) f~r pla~qtiff:
(b) for
Address:
George A. Vaughn, III, Esquire
3904 Trindle Road
Camp Hill, PA 17011
William P. Douglas, Esquire
27 West High Street
Carlisle, PA 17013
3. I w~ 11 notify ~ll parties in writing within tm~ days that this
been 1 ~ted for arc3~e~t.
4. Argument Court Date: August 12, 1998
3une 8, 1998
DOUGLAS, DOUGLAS & ~Dc0j~.LAS
B
Attoxney for Defendant
ORIGINAL
MATX, INC.,
PLAINTIFF
V
TRAPPE HILL HOLDINGS,
trading as McCORMACK
MATERIALS,
DEFENDANT
INC.
~DEPOSITION OF:
TAKEN BY:
BEFORE:
DATE:
PLACE:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-4837
JOSEPH V. CAPUANO
PLAINTIFF
CHRISTINE F. HAAG, RPR
NOTARY PUBLIC
JUNE 23, 1998, 3:05 P.M.
LAW OFFICES OF GEORGE A. VAUGHN III
3904 TRINDLE ROAD
CAMP HILL, PENNSYLVANIA
APPEAP~ANCES:
LAW OFFICES OF GEORGE A. VAUGHN III
BY: GEORGE A. VAUGHN III, ESQUIRE
FOR - PLAINTIFF
DOUGLAS, DOUGLAS & DOUGLAS
BY: WILLIAM P. DOUGLAS, ESQUIRE
FOR - DEFENDANT
2000 Linglestown Road · Suite 302 · Harrisburg, PA 17110
717.540.0220 · Fax 717.540.0221 * Lancaster 717.393.5101
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NAME
JOSEPH V. CAPUANO
BY: MR. VAUGHN
BY: MR. DOUGLAS
WITNESSES
EXAMINATION
3
15
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
STIPULATION
It is hereby stipulated by and between counsel for
the respective parties that reading, signing, sealing,
certification and filing are hereby waived; and that all
objections except as to the form of the question are reserved
to the time of trial.
JOSEPH V. CAPUANO, called as a witness, being duly
sworn, testified as follows:
EXAMINATION
BY MR. VAUGHN:
Q Now is the time and place fixed for a deposition
of Joseph V. Capuano in the matter of MATX, Inc. versus
Trappe Hill Holdings, Inc., and present is Mr. Capuano. And
I am attorney for the Plaintiff, George A. Vaughn III, and
Mr. william Douglas is here as attorney for the Defendant.
We have spoken briefly before the beginning of
this deposition and have agreed that the purpose of this
deposition is to address the jurisdictional issue which has
been raised by preliminary objections filed on behalf of the
Defendant. And we are in agreement also that if there is to
be a substantive deposition regarding this matter in the
future, deposition of Mr. Capuano, that that certainly can be
conducted at a later date. Mr. Capuano, would you state
your full name for us, please?
4
1
2
3
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Q
now?
A
Q
A
Q
A
1975.
Q
A
Q
address?
A
Q
A
construction company,
Joseph, middle initial V.,
And where do you reside?
1159 Harrisburg Pike,
And that's Carlisle,
Pennsylvania.
In Cumberland County,
Cumberland County.
And are you employed now?
Part-time.
All right. In the past --
Capuano.
Carlisle.
Pennsylvania?
correct?
who are you employed by
I'm the president of MATX, Inc.
And that's the Plaintiff in this action, correct?
Yes.
What is MATX? Is it a corporation?
It's a corporation incorporated in Pennsylvania in
And where is its principal office located?
1159 Harrisburg Pike, Cumberland County, Carlisle.
How long has the office been located at that
Since 1975.
What kind of business is conducted by MATX, Inc.?
We're a -- we had been or have been primarily a
but we also so some engineering.
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
yourself?
A
Okay. Do you have any background as an engineer
I'm a registered engineer -- civil engineer in
Pennsylvania.
Q The time focus of this matter is
-- MATX was in operation in 1996;
A Yes.
1996. You were
is that correct?
Q And did you have occasion to become involved in a
project with Trappe Hill Holdings, Inc. in 19967
A Well, I was involved with McCormack Materials
~hich I now realize is Trappe Hill Holdings, yes.
Q And what was your first involvement in 1996 with
McCormack Materials?
A Early in 1996 in April we were contacted by
Luke Amos -- Luther Amos -- who is a consultant for McCormack
Materials about putting two conveyors in to load ships in
New Brunswick, New Jersey.
Q
A
in Jersey.
Q
Mr. Amos?
A
New Brunswick, New Jersey or New Brunswick --
I mean New Brunswick, Canada. I wish it had been
Ail right. And how were you contacted by
these conveyors for Randy Waterman,
up and install them for him.
He called me up and said that he was working on
and Randy wanted me to go
6
1
2
3
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Were you familiar with the name Randy Waterman?
A Yes. We had worked for Randy previous to that in
South Amboy, New Jersey.
Q And was it your understanding that Randy was --
without getting into the exact relationship, but Randy and
McCormack Materials were the same thing in your view?
A Yes, they were.
Q The telephone discussions that you had with
Mr. Amos regarding this conveyor work in New Brunswick, where
were you when those conversations took place?
A I was in my office. He faxed me sketches and an
outline of what was to be done.
Q All right. Did you go up to New Brunswick
yourself to supervise or be involved in the conveyor work?
A After we got -- I told him that if we did the job
I'd have to go up and take two guys, whether it was a short
job and we wanted to turn around and get out of there. So I
took two guys and went up there and put the two conveyors on.
Q All right. Did you have --
A Actually, three guys -- I took three guys up.
Q with respect to this conveyor work, did you have
any conversations with Mr. Waterman directly?
A I didn't have any direct conversations. I called
him three or four times, and he called me two or three
times. And I left messages on his and faxed him. And he
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
left messages, but we never talked directly.
Q Ail right. And the calls that you made to him
~here did they originate from?
A I called from my office to his office in Virginia.
Q And the calls that you got back were the messages
that were left by him for you?
left?
A
Q
A
Q
the actual
A
Q
that job?
A
Q
Carlisle?
A
Q
Where were those messages
In my office in Carlisle.
The work on the conveyors was done?
Yes.
And you've been paid for that? That's not part of
complaints that we have filed; is that correct?
Yes. I was paid for it.
When you were paid how did you receive payment for
We got a check from McCormack Materials.
And did you receive that at your office in
Yes.
Did you have any further dealings then with
McCormack Materials with respect to this New Brunswick
location or project?
A Not until the project that we're
here right now came up.
Q Okay. Just so everybody can get some
in question over
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
understanding of what we're talking about, is this all one
project? What was the nature or relationship between the
conveyor aspect of things and the --
A The two conveyors were to load ships.
Q What were they loading ships with?
A Sand and gravel. The sand and gravel was mine at
a local pit near the dock. Later there was another pit
opened farther from the dock. The material needed processed
to a greater degree than the original pit. So this equipment
then was purchased and sent up there to that second pit, and
that's when we were asked to go up and install that.
So it was part of this whole operation to get sand
and gravel on the ship and send it to Brooklyn.
Q Okay. So the second aspect of the project how is
it that you came to be involved in that?
A Luke Amos called me and said they had this plant,
and Randy wanted me to give him a price to put the plant in.
And I worked up a price and called him up and told him what
the number was.
Q When was it as best as you can recall when you
were first contacted by Luke Amos about putting up the plant?
A
A
about it,
Early in August -- sometime in August of '96.
And how was that contact made? telephone? fax?
He called me. He called me first and told me
and then he faxed me some sketches he made. I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
think he might have made about the layout of the plant,
telling me how many conveyors there were, where the screens
were, the piping was to go. Typically, we've done this a lot
because we know that what it takes to put a conveyor up or a
screen or whatever because we do a lot of this. So just
getting a sketch with the stuff on it's easy for us to quote
the job.
Q And the phone conversation that you had with
Mr. Amos where were you located when that took place?
A I was in my office.
Q And I believe you said you thought he was in
Maine; is that correct?
A I'm pretty sure he was in Maine because he was up
there a lot at that time trying to coordinate this deal and
you know get it put together.
Q I assume this Maine location -- strike that. As a
result of the phone conversation and the material that was
faxed to you did you prepare any kind of proposal to submit
to McCormack Materials?
A We sent a formal proposal. Right.
Q And is that the proposal that's attached as
Exhibit A --
A Yes, it is.
Q -- to the contract,
September 9th, 19967
a letter of yours, dated
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Right.
Q That shows
in care of Randy Waterman at an address
Virginia?
A
Q
an address on it to McCormack Materials
in Upperville,
Right.
And it also shows a fax number. Would this have
been faxed to Mr. Waterman?
A Yes. It was faxed. We put the fax number on the
letter when we faxed it.
Q And would this have been sent to anybody else?
A Well, it went to Luke Amos too.
Q It was sent from your office in Carlisle?
A Yes.
Q Did you get a response from Mr. Waterman or
Hr. Amos to this proposal?
A I didn't talk to Randy. Luke said that -- called
me up and said Randy wants you to send two guys up there
because they have -- the guy that he was dealing with on this
in Canada was getting paid part of the royalty or the cost of
the material, had people and all he needed was two people.
And he was trying to keep the cost down just long enough to
get the main part of the plant erected.
Q And that phone call again, where were you when you
received that phone call?
A I was in my office.
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q Is it correct to say that the work that you were
doing under your proposal was essentially a time and
materials kind of work?
A Yes. It was time and material.
Q And how were you going to be paid, or how did you
expect to be paid for that work?
A I expected him to pay me for the labor, the
materials and whatever I expended.
Q And -- strike that. You submitted this proposal
to Mr. Waterman and to Mr. Amos. Mr. Amos contacted you and
asked you to proceed; is that correct?
A Yes.
Q Now were you able to tell him in that telephone
conversation, yes, I will proceed, or did you have to do
something else before you could agree to send anybody up
there?
A Well, what happened is I worked up the price and
called him up and said the lump sum number because that's
what he wanted was a hundred-and-some thousand dollars. He
said I guess you don't want to do the job, and I said, well,
you know, that's what it's going to take. I've done too many
of these. That's what it's going to take.
He said, well, Randy has these people up here.
Why don't you give me a time-and-material price, or really
what he wanted me to do is he wanted me to give him a
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
lump-sum price
furnish. And I said, no,
quality of the labor is,
and deduct the labor that they were going to
because I don't know what the
and I'm not going to be responsible
-- I'm not going to give you a lump-sum price, and I'm going
to take the beating because these people don't know what
they're doing because he told me they didn't know what they
were doing.
And he said, well, just give us two guys and we'll
will do the bulk of the work and you just get the major part
of the plan out. So I said fine, and that's why I gave him
the rates.
Q Okay. I didn't really want to do the job on a
time-and-material basis because we had a lot of other work
going on, and if I pulled these guys off the job I had to
give something up. So when he called me I said, well, I'll
just have to look because you know I don't know whether these
guys are available or not.
Q All right. You received a response from Mr. Amos
saying that they wanted your men up there?
A
Right.
Based on the proposal you had sent?
He wanted two men with a service truck there.
Now did you have to do anything to be in a
position to provide those two men?
A Just schedule them, find out if I
get them free.
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
And if you could not get those men free would you
A
area?
A
Q
of 1996,
your phone
A
Q
Right. From our shop in Mt. Holly.
Okay. In your discussions in August and September
leading to the sending of these two men, were all of
calls with Mr. Amos taken by you in Carlisle?
Yes.
And did you place phone calls to him also, or was
this always just Mr. Amos contacting you?
A I called him. I think I called him in Maine maybe
once, but most of the time he called me.
Q And again was there any calls that you made to him
were they from your Carlisle location?
Q
have performed the work?
A No.
Q Were you able to get those men free?
A with a lot of difficulty because he told me he
only needed them for a short time.
Q All right. And they were eventually sent up?
A Right.
Q And this is the work and expenses that haven't
been paid for that form the basis of this claim; is that
correct?
That's correct.
And those men were they sent up from the Carlisle
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A Yeah. They were from Carlisle.
Q Again, before leading up to this proposal and the
sending of the two men, how many phone calls do you think
that you and Mr. Amos exchanged over that period of time?
A Well, I'd have to say we had more than normal, so
we probably might have had six or seven because there was a
lot of discussion about who we were going to send and were
they available.
Q And were there discussions also between you and
Mr. Amos about how you would be paid once the work was
completed?
A No. We didn't talk about that.
Q In connection with this work that was done under
this proposal of September 9th, did you go up to
New Brunswick?
A No.
Q At any time did Mr. Waterman contact you or
anybody else contact you to tell you that Mr. Amos was not
acting on behalf of McCormack Materials?
A No.
Q And have you been paid any part of the amount that
you invoiced for this work done under the September 9th
proposals?
A
Zilch. Nada.
MR. VAUGHN: I think that's all I have at this
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
time.
BY MR.
Q
DOUGLAS:
Sir, with respect to Luther Amos, did you know
Luther Amos prior to
A
Q
A
19967
Oh, yes.
And how did you know Luther Amos?
He worked for L.B. Smith, and we did a substantial
amount of work for L.B. Smith.
Q In 1996 was he working for L.B. Smith?
A No.
Q What did he do for L.B. smith when you dealt with
him there?
A He was their chief engineer.
Q It's my understanding then after leaving
L.B. Smith he became a consulting engineer?
A He was and is doing consulting. That's right.
Q And is it your understanding that he was doing
consulting work for McCormack Materials in 19967
A Yes.
Q And his capacity as a consultant that's how he got
in touch with you?
A
was up in Maine.
A Yeah.
Yes.
You said that when you were talking with him he
Was he residing in Maine at the time?
He has his place that he goes in the
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
summertime. But he was also there I think because he was
running over to New Brunswick to put together what was needed
to screen the material.
Q At any time did you talk with Luther Amos here in
Central Pennsylvania concerning the job up in
New Brunswick --
A No.
Q -- prior to the dispute arising between yourself
and Trappe Hill Holdings, Inc.?
A I'm sorry. I really don't know what -- would you
ask the question again.
Q You had talked about faxes and phone conversations
with different --
A Right.
Q -- with different people. It's my understanding
-- well, let me back up. It's my understanding as far as
Randy Waterman is concerned your communications with him were
a series of messages being
left by each other via telephone?
A
A
from him.
Q
A
Q
Or faxes.
Or faxes.
My faxes to him.
I don't think I ever got one
Okay. So you faxed him down in Virginia?
Yes.
And then the other communications that you had
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
with respect to this project were with Luther Amos while
huther Amos was in Maine?
A In Maine or here. He could have been -- he was
either here or in Maine.
Q Were they all by telephone?
A No. They were faxes.
Q Does he maintain a residence here in Pennsylvania?
A Yeah. In New Hampton Township.
Q It's my understanding from what you've told us
that you were involved with McCormack Materials one other
time, and that was for a project that was done in New Jersey;
is that correct?
A Yeah.
Several projects in Jersey.
in Jersey? And what kind of
Q Several projects
projects were they?
A Well, the first project was a new sand plant that
we were subcontractor at L.B. Smith in South Amboy,
New Jersey. We did work directly for McCormack. We did a
couple of projects. We put cylinders on, slide gates in the
tunnel. I can't remember all of these miscellaneous little
jobs we did for them. And we went back and did several more
projects for L.B. Smith who was furnishing equipment to
expand that operation.
Q Okay. So --
A
That's where I got to know Randy by the way.
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
Was working through L.B. Smith in New Jersey?
In South Amboy. Right.
When you would do work for L.B.
was that work involving Luther Amos?
A
always
Q
Smith in the past
In as far as McCormack was concerned Luther was
involved. Right.
Do you remember when it was in South Amboy,
New Jersey -- what year
A It was a while ago. Maybe --
years. Was it '93 -- it might have been
you're talking about?
Q Yes.
A It might have been '90.
after that.
Q
involved?
it was that you did that job?
well, it's over five
'90. The first
We did a series of jobs
And all of those jobs in New Jersey was L.B. Smith
A No. Some of them we did directly for McCormack.
They'd come to me and say do you have a way to solve this
problem, and I said this is what I'd do. The one I remember
is these valves, but there were some small jobs too. They
were more like maintenance type of things.
Q And with those types of jobs would McCormack be on
the job site when he contacts you and asks you to come to
New Jersey?
A Yeah. They had -- their superintendent would call
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
me.
Q Okay. Who was that?
A First name is Bill.
I can't think of his last
name.
Q And then once Bill would contact you you'd go over
to New Jersey?
A I'd go over and find out what he wanted and work
up a price.
Q And then the work would be performed in
New Jersey?
A Right.
Q with respect to this Canada job, the New Brunswick
job, were all of your contacts, preliminary contacts, were
they first with Luther Amos or were they with Luther Amos and
Randy Waterman? What I am trying to do now is get a time
frame from when you were communicating with these two.
A Luke would call me first because Luke was working
for Randy.
Q And is it your understanding that Luke Amos was
providing -- I guess Luther Amos goes by Luke?
A Yeah.
Q Okay. Is it your understanding that Luke Amos was
providing his consulting services to McCormack?
A Yes.
MR. DOUGLAS: That's all the questions that I
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
have.
BY MR. VAUGHN.
Q Just a few. Mr. Capuano, with respect to the
payments that you received for the work that you did for
McCormack Materials in New Jersey that you were asked about,
how was that payment made to your company?
A By check.
Q And where were those checks received?
A In Carlisle.
Q with respect to Mr. Amos and his involvement in
this Canada project, would you describe the term consulting?
And consulting services has been used here in the course of
this deposition. Would you say that's a correct description
of the nature of his work and the scope of his work as you
understood it in Canada?
A He was a consultant. He was asked to secure the
materials and secure the contractor and get him on the job.
Q Was he involved in supervising the work up there?
A To a certain extent, yes.
Q You mentioned that Mr. Amos has a residence in
Hampden Township. By that I take it you mean Hampden
Township, Cumberland County, Pennsylvania?
A Oh, yes. Right up the street here
MR. VAUGHN: That's all I have.
(Deposition concluded at 3:35 p.m.
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COUNTY OF CUMBERLAND :
:
coMMONWEALTH OF PENNSYLVANIA :
SS
I, Christine F. Haag, a Notary Public, authorized to
administer oaths within and for the Commonwealth of
Pennsylvania, do hereby certify that the foregoing is the
testimony of Joseph V. Capuano.
I further certify that before the taking of said
deposition, the witness was duly sworn; that the questions
and answers were taken down stenographically by the said
Reporter-Notary Public, and afterwards reduced to typewriting
under the direction of the said Reporter.
I further certify that the said deposition was taken at
the time and place specified in the caption sheet hereof.
I further certify that I am not a relative or employee
or attorney or counsel to any of the parties, or a relative
or employee of such attorney or counsel, or financially
interested directly or indirectly in this action.
I further certify that the said deposition
constitutes a true record of the testimony given by the said
witness.
this 6th day of July,
IN WITNESS WHEREOF,
1998.
I have hereunto set my hand
-~ris~ine F. ~aag, R~R~
Not ar!~ Public q~
Multi_PagcTM '90 - duly
OSEPH V. CAPUANO
16:4 17:1 17:2 4:4 4:19 7:8 4:16
_~_ 18:4 19:14 19:14 7:18 10:12 13:13 COI~Ct [ll] 4:6
19:19 19:20 19:22 13:18 13:25 14:1 4:13 5:6 7:12
190 icl 18:10 18:13 20:10 20:20 20:9 9:12 11:1 11:11
'93D1 18:10 anlount [2114:21 15:8 Central pi 16:5 13:11 13:12 17:12
'96D1 8:22 answers pi 21:10 certain DI 20:19 20:13
APPEARANCES DI certainly Dl 3:23 cost [2] 10:19 10:21
-1- 1:16 certification m 3:4 counsel [31 3:2
21:16 21:17
1159 tel 4:3 4:19 April pi 5:14 certify[si 21:6 21:8
15 ill 2:5 al~a ill 13:14 .>1:13 21:15 21:19 County [611:1 4:6
4:7 4:19 20:22
1975121 4:17 4:22 arising[il 16:8 check[2] 7:16 20:7 21:1
1996 Del 5:5 5:6 asks DI 18:23 checks Ill 20:8 couple [ll 17:19
5:9 5:12 5:14 aspect[e] 8:3 8:14 chiefDl 15:13 COUI'ae[H 20:12
9:25 13:17 15:4 assume D] 9:16 Christine[al 1:10 COURT IH 1:1
15:9 15:18 attacbed D] 9:21 21:4 21:24 Cumberland [61 1:1
1998 ICl 1:12 21:23 attorney [4] 3:15 civil [21 1:2 5:3 4:6 4:7 4:19
3:16 21:16 21:17 claim pi 13:10 20:22 21:1
-2- August [al 8:22 8:22 COMMON PI 1:1 cylinders HI 17:19
23 £u 1:12 13:16 Commonwealth [21 21:3
authorized Hl 21:4 21:5 -D-
-3- available [2] 12:17 communicating 111 19:16 date t21 1:12 3:24
14:8 communications I21 dated IH 9:24
3 Itl 2:4 16:17 16:25
3904 [il 1:13 -B- company[el 4:25 deal D] 9:14
20:6 dealing Ill 10:18
3:05 Ill 1:12 background[il 5:1 complaints Dl 7:12 dealings pi 7:20
3:35 Dl 20:25 Based Dl 12:21 completed pi 14:11 dealt Hi 15:11
basis [21 12:13 13:10 concerned Ia 16:17 deduct[l] 12:1
-6- beating Dl 12:5 18:5 Defendant [4] 1:5
'fi[hill 21:23 becalno [1115:15 concerning[l] 16:5 1:21 3:16 3:21
become pi 5:8 :oncluded [11 20:25 degree [il 8:9
-9- beginning pi 3:17 conducted ICl 3:24 deposition Du 1:8
97-4837 Dl 1:3 behalf[el 3:20 14:19 4:23 3:12 3:18 3:19
9thDl 9:25 14:14 best IH 8:20 connection[i] 14:13 3:22 3:23 20:13
20:25 21:9 21:13
14:22 bo[ween [41 3:2 constitutes el 21:20 21:19
8:2 14:9 16:8 cons[ri[ct]on Itl 4:25 describe Di 20:11
-A- Bill I21 19:3 19:5 consultant [31 5:15 description Ill 20:13
able[el 11:13 13:4 briefly [il 3:17 15:20 20:16 different [21 16:13
acting Dl 14:19 Brooklyn Hl 8:13 consulting [61 15:15 -16:15
action[al 1:2 4:13 Brunswick tm 5:17 15:16 15:18 19:23
21:18 5:18 5:18 5:19 20:11 20:12 difficulty m 13:5
actual[il 7:12 6:9 6:13 7:21 contact[418:23 14:17 dircctDl 6:23
14:15 16:2 16:6 14:18 19:5 direction 1u 21:12
address [413:19 4:21 19:12 contacted m 5:14 directly tSl 6:22
10:2 10:3 bulk[l] 12:9 5:21 8:21 11:10 7:1 17:18 18:17
administer ill 21:5 business[ti 4:23 contacting DI 13:21 21:18
afterwards pi 21:11 contacts[a] 18:23 discussion pi 14:7
again 141 10:23 13:24 -C- 19:13 19:13 discussions[al 6:8
14:2 16:11 13:16 14:9
ago m 18:9 calls [61 7:2 7:5 contract D] 9:24
agl'~ HI 11:15 13:18 13:20 13:24 contractor [il 20:17 dispute[ti 16:8
14:3 conversation 1al 9:8 dock [21 8:7 8:8
agreedHl 3:18 CAMP[ti 1:14 9:17 11:14 dollarsDl 11:19
agreement itl 3:21 Canada[sl5:19 10:19 conversations [nl 6:10 done [?l 6:12 7:9
always [2] 13:21 18:6 19:12 20:11 20:15 6:22 6:23 16:12 9:3 11:21 14:13
Amboy [4] 6:3 17:17 ~capacity ill 15:20 conveyor[si 6:9 14:22 17:11
18:2 18:7 6:14 6:21 8:3 Douglas[al 1:20
caption ill 21:14
Amos [311 5:15 5:15 9:4 1:20 1:20 1:20
5:22 6:9 8:16 Capuano [1o] 1:8 2:5 3:16 15:2
8:21 9:9 10:11 2:3 3:8 3:13 conveyors [61 5:16
10:15 11:10 11:10 3:14 3:23 3:24 5:24 6:18 7:9 19:25
12:18 13:18 13:21 4:1 20:3 21:7 8:4 9:2 down pi 10:21 16:23
14:4 14:10 14:18 car0 [il 10:3 coordinate DI 9:14 21;10
15:3 15:4 15:6 Carlisle jul 4:3 corporation[el 4:15 duly[el 3:8 21:9
HIJGHES, ALBRIGHT, FOLTZ & NATALE Index Page
717 -540-0220\717 -3 93-5101
Early = nature Multi-PageTM
JOSEPH V. CAPUANO
form [21 3:5 13:10 interested m 21:18 8:2I 10:11 10:16
-E- fornlal [11 9:20 invoiced iq 14:22 19:17 19:17 19:19
Early [21 5:14 8:22 fORT[l] 6:24 involved[al 5:8 19:20 19:22
easy £q 9:6 frame el 19:16 5:10 6:14 8:15 lump iq 11:18
either ill 17:4 frea~ [al 12:25 13:1 17:10 18:6 18:16 lump-sum[al 12:1
employed [21 4:8 13:4 20:18 12:4
4:10 full iq 3:25 involvement[al 5:12 Luther [tal 5:15 15:3
20:10 15:4 15:6 16:4
omploy~ [al 21:15 furnish [q 12:2 involving m 18:4 17:1 17:2 18:4
21:17 furnishing iq 17:22 issue[l] 3:19 18:5 19:14 19:14
engineert~l 5:1 fRtllIo IH 3:23 19:20
5:3 5:3 15:13
15:15 -G- -J- -M-
~ngineering O] 4:25 Jersey 0~1 5:17 5:18 main Ol 10:22
equipment[al 8:9 gates lq 17:19 5:20 6:3 17:11
17:22 Goorgc[41 1:13 1:17 17:13 17:14 17:18 Maine[gl 9:12 9:13
erected m 10:22 1:18 3:15 18:1 18:8 18:15 9:16 13:22 15:24
ESQUIRE[al 1:18 given iq 21:20 18:24 19:6 19:10 15:24 17:2 17:3
1:20 go~s Ill 15:25 19:20 20:5 17:4
essentially iq 11:2 gravel [al 8:6 8:6 iob [tal 6:15 6:17 maintain tq 17:7
~ventually [q 13:7 8:13 7:15 9:7 11:20 maintenance iq 18:21
12:12 12:14 16:5 major rq 12:9
everybody [11 7:25 greater iq 8:9 18:8 18:23 19:12 material tSl 8:8
~xact[tl 6:5 guess[al I1:20 19:20 19:13 20:17 9:17 10:20 11:4
EXAMINATION[al guy[q 10:18 :cbs lSl 17:21 18:13 16:3
2:2 3:10 guyS[al 6:16 6:18 18:15 18:20 18:22 ,materials i~q 1:4
except[ti 3:5 6:20 6:20 10:17 Josephtq 1:8 2:3 5:10 5:13 5:16
exchanged Ol 14:4 12:8 12:14 12:17 3:8 3:13 4:1 6:6 7:16 7:21
21:7 9:19 10:2 11:3
Exhibit O] 9:22 -H- July itl 21:23 11:8 14:19 15:18
expandol 17:23 JU]qE[ll 1:12 17:10 20:5 20:17
expect £q 11:6 Haas [al i:10 21:4
21:24 urisdictiona111] 3:19 matter[a] 3:13 3:22
expected tq I 1:7 Hampden [21 20:21 5:5
expended m 11:8 20:21 -K- MATX iq 1:1 3:13
4:12 4:15 4:23
expenses iq 13:9 Hampton [q 17:8 kcep lq 10:21 5:6
extent iq 20:19 hand IH 21:22 kind [41 4:23 9:18 McCormack [18] 1:4
Harrisburg[il 4:3 11:3 17:14 5:10 5:13 5:15
-F- 4:19 6:6 7:16 7:21
F[a] 1:10 21:4 hereby tal 3:2 3:4 -L- 9:19 10:2 14:19
21:24 21:6 15:18 17:10 17:18
familiar m 6:1 hereof m 21:14 L.B itel 15:7 15:8 18:5 18:17 18:22
15:9 15:11 15:15 19:23 20:5
far[a] 16:16 18:5 hereunto [u 21:22 17:17 17:22 18:1 mean 11] 5:i9 20:21
farther[il 8:8 Hill [q 1:3 i:14 18:3 18:15
men [81 12:19 12:22
fax[a] 8:23 10:6 3:14 5:9 5:11 labor [al 11:7 12:1 12:24 13:1 13:4
10:8 16:9 12:3 13:13 13:17 14:3
fated I81 6:11 6:25 Holdings [~1 1:3 last Itl 19:3 mentioned Itl 20:20
8:25 9:18 10:7 3:14 5:9 5:11 LAW[al 1:2 1:13 messages 1sl 6:25
10:8 10:9 16:23 16:9 1:17 7:1 7:5 7:6
faxes[s] 16:12 16:I9 Holly[q 13:15 layout[q 9:1 16:18
i6:20 16:21 17:6 hundred-and-some ill leading [2] 13:17 14:2 middle iq 4:1
few[H 20:3 11:19
loaving iq 15:14 might [4] 9:1 14:6
filod [2] 3:20 7:12 left 1si 6:25 7:1 18:10 18:13
filing [q 3:4 -I- 7:6 7:7 16:18 mine IH 8:6
financially iq 21:17 III £nl 1:13 1:17 letter ill 9:24 10:9 miscellaneous [q 17:20
fine iq 12:10 1:18 3:15 load[al 5:16 8:4 most iq 13:23
[list [8] 5:12 8:21 Inctq 1:1 1:3 loading m 8:5 Mt[H 13:I5
8:24 17:16 18:10 3:13 3:14 4:12
5:9 localtq 8:7
19:3 19:14 19:17
Ifive [ti 18:9 Inc. [21 4:23 16:9 located [al 4:18 4:20 -lq'-
9:9
fixed iq 3:12 incorporated 111 4:16 Nada£q 14:24
focus t11 5:5 indirectly [11 21:18 location [al 7:22 name[si 2:2 3:25
9:16 13:25 6:1 19:3 19:4
followstq 3:9 initialtll 4:1 look111 I2:16 nature[al 8:2 20:14
foregoing[ti 21:6 install[al 5:25 8:11 Luke[mi 5:15 8:I6
Index Page 2
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717 =393 -5101
Multi_PageTM neax- SS
IOSEPH V. CAPUANO
near [~1 8:7 Pennsylvania £n1 1:1 purehased itl 8:10 18:6 19:11 20:23
needed[4] 8:8 10:20 1:14 4:4 4:5 purpose[l] 3:18 ROADiq 1:13
13:6 16:2 4:16 5:4 16:5
17:7 20:22 21:3 put [71 6:18 8:17 royalty[l] 10:19
9:4 9:15 10:8 RPR [2] 1:10 21:24
never iq 7:1 21:6 16:2 17:19 running [1] 16:2
ncw[2sl 5:17 5:17 people[s1 10:20 10:20 putting[~l 5:16 8:21
5:18 5:18 5:18 11:23 12:5 16:15
5:19 6:3 6:9 -S-
6:13 7:21 14:15 }erformcd [2] 13:2
16:2 16:6 17:8 19:9 -Q- sand [41 8:6 8:6
17:11 17:16 17:18 ~riod[ll 14:4 quality£tl 12:3 8:12 17:16
18:1 18:8 18:15 )hone[si 9:8 9:17 questions 12] 19:25 schedule DI 12:25
18:24 19:6 19:10 10:23 10:24 13:18 21:9 scope [1] 20:14
19:12 20:5 13:20 14:3 16:12 quotcm 9:6 scl'~n[2] 9:5 16:3
normal ill 14:5 Pike I2] 4:3 4:19 screens E}] 9:2
]qotary[a] 1:11 21:4 piping[l] 9:3 -R- sealing[}1 3:3
21:25 piti41 8:7 8:7 raised[}i 3:20 second[21 8:10 8:14
now[s] 3:12 4:8 8:9 8:10
Randy Iisi 5:24 5:24 seeurg [21 20:16 20:17
4:11 5:11 7:24 place [?l 1:13 3:12 6:1 6:2 6:4 s~nd iq 8:13 10:17
11:13 12:23 19:15 6:10 9:9 13:20 6:5 8:17 10:3 11:15 14:7
nulnber [418:19 10:6 15:25 21:14 10:16 10:17 11:23
10:8 11:18 Plaintiff[si 1:1 16:17 17:25 19:15 sending [21 13:17
1:9 1:19 3:15 19:18 14:3
-O- 4:13 rates [11 12:11 sent[vi 8:10 9:20
10:10 10:12 12:21
oaths[i] 21:5 plan [q 12:10 reading ill 3:3 13:7 13:13
objections [21 3:5 plant [61 8:16 8:17 realize iq 5:11
3:20 8:21 9:1 10:22 , September [41 9:25
17:16 really [3] 11:24 12:12 13:16 14:14 14:22
occasion[il 5:8 PLEAS iq 1:1 16:10 series [2] 16:18 18:13
off[ti 12:14 position[Ii 12:24 receive [21 7:14 7:17 service iq 12:22
office [iol 4:18 4:20 received [41 10:24 services [21 19:23
6:11 7:4 7:4 preliminary [2] 3:20 12:18 20:4 20:8 20:12
7:8 7:17 9:10 19:13 record [11 21:20 setDl 21:22
10:12 10:25 ~repar~ ill 9:18 reduced itl 21:11 seven [11 14:6
OFFICES [2] 1:13 }resent iq 3:14 regarding [2] 3:22 several[a] 17:13 17:14
1:17 president IH 4:12 6:9 17:21
once [3] 13:23 14:10 }rctty 111 9:13 registered itl 5:3 sheet iq 21:14
19:5 )revious Itl 6:2 relationship [21 6:5 ship Dl 8:13
one [4] 8:1 16:21 )l'iee [7] 8:17 8:18 8:2
ships [31 5:16 8:4
17:10 18:19 11:17 11:24 12:1 relative [21 21:15 8:5
opened m 8:8 12:4 19:8 21:16
operation[al 5:6 ~rimarily iq 4:24 remember[al 17:20 shop[il 13:15
8:12 17:23 ~rincipal itl 4:18 18:7 18:19 short [21 6:16 13:6
original [11 8:9 problem[ii 18:19 ~Rcporter itl 21:12 shows [2] 10:2 10:6
originate Ill 7:3 proceed [21 11:11 Reporter-Notary Ill signing Ill 3:3
outline rq 6:12 11:14 21:11 si[em 18:23
processed tq 8:8 reserved HI 3:5 six IH 14:6
-P- ~rojcct[91 5:9 7:22 residcm 4:2 sketch[ti 9:6
P[q 1:20 7:23 8:2 8:14 residenee 121 17:7 sketches [21 6:11
17:1 17:11 17:16 20:20 8:25
Lm[2] 1:12 20:25 20:11
~aid [91 7:11 7:13 projects [sl 17:I3 residing itl 15:24 slide[il 17:19
7:14 10:19 11:5 17:14 17:15 17:19 respoct[*l 6:21 7:21 small[H 18:20
11:6 13:10 14:10 17:22 15:3 17:1 19:12 Smith[lei 15:7 15:8
14:21 proposal £91 9:18 20:3 20:10 15:9 15:11 15:15
}art [6] 7:11 8:12 9:20 9:21 10:15 respective itl 3:3 17:17 17:22 18:1
10:19 10:22 12:9 11:2 11:9 12:21 response [21 10:14 18:3 18:15
14:21 14:2 14:14 12:18 solveD] 18:18
Part-time itl 4:9 proposals [il 14:23 responsible [ti 12:3 ~ sometime [H 8:22
)attics[21 3:3 21:16 providetll 12:24 result[H 9:17 sorryDl 16:10
)ast[2] 4:10 18:3 providing[21 19:20 right[2o] 4:10 5:21 Sou[hi41 6:3 17:17
pay[q 11:7 19:23 6:13 6:19 7:2 18:2 18:7
payment [21 7:14 Public [4] 1:1! 21:4 7:24 9:20 10:I specified iq 21:14
20:6 21:11 21:25 10:5 12:18 12:20 spoken IH 3:17
13:7 13:8 13:15
payments[ti 20:4 pulled 111 12:14 15:16 16:14 18:2 SSD] 21:2
HUGHES, ALBRIGHT, FOLTZ & NATALE Index Page 3
717-540-0220\717-393 -5101
state- Zilch Multi-PageTM
JOSEPH V. CAPUANO
state Iq 3:24
stenographically 01
21:10
stipulated £q 3:2
STIPULATION £q 3:1
~tr~t [1] 20:23
strike [2] 9:16 11:9
staff vi 9:6
subcontractor £11 17:17
submit iq 9:18
submitted tq 11:9
substantial [U 15:7
substantive iq 3:22
such [H 21:17
sumu] 11:18
summertime tq 16:1
superintendent m 18:25
supervise Dl 6:14
supervising iq 2o:18
swom [2] 3:9 21:9
-T-
takes BI 9:4
taking[l] 21:8
telcphone fsi 6:8
8:23 11:13 16:18
17:5
telling ill 9:2
le~m Bi 20:11
testified Ill 3:9
tgstinlony [2] 21:7
21:20
thought IH 9:11
thousand Iq 11:19
~ [41 6:20 6:20
6:24 6:24
through ul 18:1
tim~-and-material [21
11:24 12:13
ti~l~$ [2] 6:24 6:25
together 121 9:15
10:11 11:21
16:2
too [31
18:20
took [4] 6:10 6:18
6:20 9:9
touch [q 15:21
Township [31 17:8
20:21 20:22
trading U] 1:4
Trappe [5] 1:3 3:14
5:9 5:11 16:9
trial Ill 3:6
TRINDLE iq 1:13
truck [H 12:22
true IH 21:20
trying 131 9:14 10:21
19:15
tunnel iq 17:20
turn iii 6:17
two B41 5:16 6:16
6:18 6:18 6:24
8:4 10:17 10:20
12:8 12:22 12:24
13:17 14:3 19:16
type iq 18:21
types ill 18:22
typewriting [q 21:11
Typically Ill 9:3
-U-
under m 11:2 14:13
14:22 21:12
understood[ti 20:15
up [32] 5:23 5:25
6:13 6:16 6:18
6:20 7:24 8:10
8:11 8:18 8:18
8:21 9:4 9:13
10:17 10:17 11:15
11:17 11:18 11:23
12:15 12:19 13:7
13:13 14:2 14:14
15:24 16:5 16:16
I9:8 20:18 20:23
Uppcrvillc iq 10:3
I15¢d [1] 20:12
-V-
V [?] 1:2 1:8
2:3 3:8 3:13
4:1 21:7
valves Iq 18:20
Vaughn [9] 1:13
1:17 1:18 2:4
3:11 3:15 14:25
20:2 20:24
versus D] 3:13
via[H 16:18
view tq 6:6
Virginia I31 7:4
10:4 16:23
-W-
waived [11 3:4
wants iH 10:17
Waterman Bo] 5:24
6:1 6:22 10:3
10:7 10:14 11:10
14:17 16:17 19:15
WHEREOF O] 21:22
whole iq 8:12
William i21 1:20
3:16
wish Iq 5:19
within Dl 21:5
without iq 6:5
wiiness [41 3:8
21:9 21:21 21:22
V~FITN'-E S SE S [11 2: I
worked Inl 6:2 8:18
ll:17 15:7
year [H 18:8
yeats[il 18:10
yourself [31 5:2
6:I4 16:8
Zilch Iq 14:24
Index Page 4 HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717-393-5101
1
2
3
4
5
6
7
8
9
l0
11
12
14
15
16
17
18
19
20
21
22
23
'R.
Plaintiff
Vo
TRAPPE HILL HOLDINGS,
INC., trading as
~cCORMACK MATERIALS,
Defendant
CUMBERLAND COUNTY,
97-4838 CIVIL
: CIVIL ACTION LAW
PENNSYLVANIA
MATX, INC. :
V.
TRAPPE HILL HOLDINGS, :
INC., trading as :
McCORMACK MATERIALS, :
Defendant :
DEPOSITION
TAKEN BY:
BEFORE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-4837 CIVIL /
CIVIL ACTION LAW
OF: Luther N. Amos, Jr
Plaintiff
Amy S. Intrieri,
Notary Public
Dauphin County,
Pennsylvania
BEGINNING:
Thursday, July 9, 1998
3:09 p.m.
3904 Trindle Road
Camp Hill, Pennsylvania
24
25
APPEARANCES:
GEORGE A. VAUGHN, III, ESQUIRE
3904 Trindle Road
Camp Hill, Pennsylvania 17011
Appearing on behalf of the
Plaintiff
WILLIAM P. DOUGLAS, ESQUIRE
DOUGLAS, DOUGLAS & DOUGLAS
27 West High Street
P.O. Box 261
Carlisle, Pennsylvania 17013-0261
Appearing on behalf of the Defendant
George A. Vaughn, III
Attorney at Law
3904 Trindle Road
Camp Hill, Pennsylvania 17011
(717) 975,-9102
FAX (717) 975-9105
August 20, 1998
Curtis R. Long, Prothonotary
Cumberland County Court House
Carlisle, PA 17013
RE: MATX v. Trappe Hill Holdings, Inc.; 97-4837
Luther N. Amos, Jr., v. Trappe Hill Holdings, Inc.; 9%4838
Dem Mr, Long:
Although the above-referenced cases are not formally consolidated, they are related cases.
An issue which affects the disposition of both of the cases was argued before the Court at
Argurnent Court on August 12, 1998. At that time one of the judges suggested that copies of two
separate Depositions which appear in each case be filed in the other case so that the Court will
have a complete factual record before it regardless of which file is being examined. To that end
have obtained an additional copy of each Deposition, and you will find them enclosed for filing.
The DeFosition of Mr. Capuano in the case docketed at number 97-4837 should be filed in the
case docketed at 97-4838. The copy of the Deposition of Mr. Amos in case number 97-4838
should be flied in the case docketed at number 97-4837.
If you have any questions at all in this regard, do not hesitate to contact me.
Ve _~ruly yo~,s~ ~
L/~orge A. V4~g~, III
Attorney at Law
GAV/dj
Enclosures (2)
cc: William P. Douglas, Esquire
2
.6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2 PLAINTIFF:
3 Luther N. Amos,
4
5
PLAINTIFF:
Exhibit A
Jr.
INDEX TO WITNESS
DIRECT CROSS REDIRECT
3 15 20
RECROSS
INDEX TO
EXHIBITS
IDENTIFIED
11
ADMITTED
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
STIPULATION
It is hereby stipulated by and between counsel for
the respective parties that reading, signing, sealing and
filing are waived and that all objections, except as to
the form of the question, are reserved until the time of
trial.
LUTHER N.
been duly sworn,
AMOS, JR., called
was examined and
DIRECT EXAMINATION
as a witness, having
testified as follows:
N. Amos, Jr. versus Trappe Hill Holdings,
today are Mr. Amos and Mr. Douglas,
Defendant. And I'm George Vaughn,
Inc. Present
Plaintiff. Mr. Amos has been sworn.
full name for us please?
A Luther Newell Amos, Jr.
Q And how old are you, sir?
A 69.
Q Do people normally call you Luke?
A Yes.
Q All right. Where do you reside?
A One Royal Oak Circle, Camp Hill, Pennsylvania
17011.
Attorney for the
Attorney for the
Would you state
your
BY MR. VAUGHN:
Q Now is the time and place fixed for the
deposition of Luther N. Amos, Jr., in the matter of Luther
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
company?
A
Q
A
Q
A
Q
And that's
Correct.
How long have you
Since 1971.
Are you currently
NO.
Are you retired from
in Cumberland County, correct?
resided at that address?
employed by someone else?
employment by some other
Yes.
Is that other company L.B. Smith?
Correct.
How long -- when did you retire from L.B.
January 1, 1994.
And when you retired, what was your position
immediately before retiring at L.B. Smith?
A Chief engineer.
Q How long had you been chief engineer?
A I believe it was 25 years.
Q And as chief engineer, where -- where at L.B.
Smith's facilities did you work?
A Along the -- at 2001 State Road, Camp Hill.
Q Pennsylvania?
A Pennsylvania.
Q Also in Cumberland County?
A Correct.
4
Smith?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
Q Within a few miles of where you live?
A Yes.
Q The matter that has given rise to this
litigation involves what I refer to as a project for
simplicity located in New Brunswick, Canada; is that
correct?
A That is correct.
Q What was the nature of that project?
A The nature of that project was to obtain course
sand to ship to Brooklyn, New York to mix with fine sand
coming off a dredge that was working off of Marcus Hook,
New Jersey.
Q When was it that you first became involved in
this project? And by involved, I mean asked to do work
for compensation with respect to this project?
A In April of 1996.
Q Where were you when you first became involved in
this project?
A At my residence in Camp Hill.
Q
project?
A
And what happened to get you involved in this
A Randy Waterman of McCormack Materials called
me and said he needed help in solving a problem whereby a
friend of his --
Q Let's stop there. It's not -- I'll let Mr.
1
2
3
4
5
6
7
8
9
10
11
i2
13
14
15
16
17
18
19
20
21
22
23
24
25
Douglas ask you further questions if he wants
don't need to get into that much detail.
tO. We
A He asked me to solve problems for him and
recommend equipment for this project.
Q And how did you respond to that?
A And I said I'd be glad to, Randy.
hour plus expenses.
Q And did Mr.
project was located?
A Yes, he
in New Brunswick,
Monroeville, Kentucky to
6
Waterman explain to you where the
did explain that it would eventually be
Canada but he wanted me to go to
straighten out a bunch of used
equipment people
Q And was
for the project --
A Yes.
this
Q And was
in New Brunswick?
A Yes.
Q was any of
there and look at other used equipment.
that work for -- related to equipment
Q -- in New Brunswick?
A Yes.
Q Did you continue to perform work pursuant to
request from Mr. Waterman?
A Yes.
all of that work related to this
project
that work done here in Camp Hill?
I get $50 an
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
i6
17
18
19
20
21
22
23
24
25
A
Oh, yes .
And what kind of work was done here in Camp
Hill?
A
could go
designs of equipment
Making contacts with used equipment dealers so
look at the equipment for one thing. Checking
that these people in Monroeville,
Kentucky
sand and
Q
Hill,
were building from used equipment and designing a
gravel plant for New Brunswick.
Did -- in the course of doing that work in Camp
did you have additional conversations with Mr.
Waterman?
A
Q
Continually.
And those were telephone conversations
or personal
A
forth.
a fax.
Q
waterman,
conversations?
Telephone conversations and faxes
When I couldn't get him
When you went to work
did you -- how was it
I assume
paid? And by that I mean what was
you were going to be paid?
back and
on the phone, I'd send him
on this project for Mr.
that you were going to be
the mechanism by which
A I would just send him an invoice and he would
send me a check.
Q Okay. And did you send him invoices --
A Yes.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q
-- during the course of
Yes, throughout '96.
this project?
Q
it still
A
1996,
Waterman?
A
Q
A
Q
payments?
A
Q
A
Q
significant
Brunswick?
been
Q
period
When did you stop working on this project? Was
19967
The end of 1996, yes.
Q So from the period from April to the end of
approximately how many invoices did you send to Mr.
Probably twelve.
And did you receive
I received payments
And the payments --
payments on those invoices?
on eleven of them.
where did you receive those
At my residence in Camp Hill, Pennsylvania.
And they were in the form of a check from --
Correct.
Is it correct to say that you spent a
amount of time in the summer of 1996 in New
A
talking about; is that
A That's correct.
Now, the invoices
-- strike that.
Yes, I had six trips over to New Brunswick.
this project we've
that were sent during that
While you were working on the
And that was all related to
correct?
2
'3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
project and at the site in New Brunswick,
or were you
9
were you living
living at your residence in Camp
in that area
Hill?
A
in Maine.
Q Okay. And with
sent for your work during
No, I was staying at my summer place at the lake
respect to the invoices that you
that period of time, did you
send those invoices from Maine or New Brunswick or some
other location?
A NO, they all originated from Camp Hill,
Pennsylvania. I would fax my wife who was at my residence
a handwritten copy of the invoice. She'd type it and mail
it from Camp Hill to virginia.
Q Did you know Mr. Waterman before he contacted
you in April of 19967
A Very definitely.
Q Did you know of
the name McCormack
knew of
McCormack Materials?
We did business with McCormack
years prior to my retirement.
before April of 19967
A Yes.
Q How is it that you
and the name
A
say for 20
those; Mr.
Q And when you say we did business,
referring to L.B. Smith?
Materials
Waterman
Materials
you're
I would
10
1
2
3
4
5
6
'7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A
Camp Hill
A
Q Now,
just briefly?
A They
Yes.
And was that business done
where you worked?
Yes.
what kind of business
at the location in
is L.B. Smith in,
are designers and suppliers of
quarry
handling
equipment, sand and gravel plants, material
systems.
Q And your involvement with Mr.
McCormack Materials during your time
do with the purchase of that kind of
A That is correct.
Q Was your involvement while
to just a single project?
A No, they were ongoing projects. Randy
always had something cooking some place.
Q In the time from 1990 until you retired in
can you recall how many different projects?
A Well, there was at least one or two.
Q And in the time
on any projects at L.B. Smith which
and McCormack Materials?
A There might have been four or five in that
period.
Waterman and
at L.B. Smith had to
equipment?
at L.B. Smith related
Waterman
1994,
of the 1980's were you working
involved Mr. Waterman
'1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Q After you left L.B.
any reason to believe that Mr.
Materials continued to have
L.B. Smith?
A Very definitely
a letter to Ned Woolford,
11
Smith in 1994, do you have
Waterman and McCormack
a business relationship with
because McCormack Materials sent
W-o-o-l-f-o-r-d, at L.B. Smith
about a complicated plant that he was thinking about
putting in Quebec. And because I had done so much work at
L.B. Smith, they sent me the letter and asked me to figure
out the plant to do it.
MR. VAUGHN: DO you want to mark that as Exhibit A?
(Plaintiff's Exhibit A was produced and marked
for identification.)
BY MR. VAUGHN:
Q I'm showing you what's
Can you identify this for us?
been marked as Exhibit A.
A Yes, that is a letter that I
Q This is a copy of the letter?
A Yes, that's a copy of the letter I just spoke
about.
Q
letter?
A
just spoke about.
Is this a true and correct copy of a three-page
Yes. And the last statement on the letter
the salesman at L.B. Smith is say hello to Luke.
Q There are handwritten notes on this letter.
to
Are
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
those some of those your notes?
A Some are my notes and some are by
notes to me about the letter.
And the date of this letter is?
January 31, 1996.
Did you receive the letter shortly after
The fax date is February 2nd, '96.
Do you continue to be in contact with
Smith that you worked with before?
Yes,
12
Ned Woolford
that?
the people
I just had lunch with Ned Woolford this
Q
at L.B.
A
noon.
Q And you did do --
that you did supply to L.B.
letter and the plant that
constructed?
A
Q
constructed?
A NO.
Q
A
strike that. Is it correct
Smith information about this
Mr. Waterman was trying to have
Yes.
DO you know whether or not that plant was
NO, you don't know?
I know it was not constructed because it turned
out he had to build a railroad to get it from the deposit
to the ocean for ocean freight. And it turned out to be
too expensive.
Q In our -- strike that.
In the complaint which
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13
sand and gravel
A Yes.
Q And do
Q In your dealings with McCormack Materials and
Mr. Waterman while at L.B. Smith, was -- were all of those
dealings related to the same kind of business; that is
extraction or screening or shipping?
you know whether or not McCormack
Materials is involved in any other business other than
business of that nature?
A I really don't know everything he's involved
Q
With respect -- now wait -- strike that.
in.
This
Road. DO you know what is located at Willisville Road?
In other words, is there a sand and gravel plant there?
Is there a factory?
A I've never been there but I've been told from
Randy Waterman's direct associates that is his home. And
there are not -- are or is -- there are not any sand and
gravel plants in that area or on his property there. I've
also been told that he has a 40 barn horse farm there or
40 stall horse barn.
Q Off the record.
(Discussion off the record.)
BY MR. VAUGHN:
was filed in this matter, we referred to the company
Trappe Hill Holdings, Incorporated having an office or
business location in Upperville, Virginia on Willisville
2
~3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
have the records
you?
is going to be a memory test
of L.B.
14
for you. I realize you don't
Smith available to you today, do
A That's correct.
Q Can you recall fairly clearly the last projects
or the last several projects that you worked on at L.Bo
Smith involving Mr. Waterman and McCormack Materials?
A Yes.
Q Were you, in the course of your work, privied to
the cost or expense of those projects?
A Yes, I was.
Q Do you --
A Now, they changed the name of the company at
South Amboy where the last projects were. And I'm trying
to think of what we did when it was McCormack aggregates.
At that time that was a complete sand classification plant
which probably was in the neighborhood of a half a million
dollars.
Q
just mentioned the contract
McCormack Materials?
Was the half a million dollar figure that you
price between L.B. Smith and
A Yes.
Q And that's the last project that you worked for?
A That I worked on for McCormack Materials.
Q At L.B. Smith?
1
2
3
4
5
6
~7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A At LoB. Smith.
Q Did you have the
project before that?
A The project before
Jersey. And that came to us
same recollection about the
15
maybe
crusher in it
Q Did you
testified to this.
Upperville, Virginia
this project with Mr.
A NO.
MR. VAUGHN: I
that was in Plainsboro, New
in bits and pieces totaling
an expensive
another half million because that had
to crush the oversize gravel.
BY
ever -- well, I think you already
Did you ever go down to the
location and have discussions about
Waterman in Virginia?
think that's all I have.
CROSS IXA~INA?ION
MR. DOUGLAS:
Q When you're talking about this project with
you're talking about
this lawsuit?
last question, I assume that
that's the subject matter of
A Yes.
Q Okay.
through. You
contacted you --
A Randy Waterman.
Q Excuse me, Randy Waterman.
Randy Waterman had contacted you at
What I'm going to do is walk back
had stated that Randy McCormack had
thati
the one
I'll turn this over.
your home in Camp
16
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
Hill?
A Correct.
Q How did he make that contact?
A By calling me on the telephone.
Q And did he tell you where he was?
A Yes, because I believe at that time I received
A
all met
A
Q
his home address from him.
Q Then you stated that
phone calls back and forth.
Continually.
Continually.
together up in
Yes.
you had some faxes and
And I assume at some point, you
Canada with respect to this job?
And that was where the job was
the project was being built?
A That's correct.
Q When you
business with L.B.
the late eighties --
A Correct.
Q -- with respect to those transactions,
Smith selling equipment to McCormack Materials?
A Yes.
Q And were any of those projects
which you recall,
-- that's where
Materials did
and
in
was L.B.
say that McCormack
Smith in the earlier nineties
specifically,
in Pennsylvania where this equipment was
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
delivered?
A No.
Q When you say no, you don't recall or, no, none
were in Pennsylvania?
A NO, none were in Pennsylvania. They were all in
New Jersey.
Q Would L.B. Smith deliver the materials to New
Jersey?
A We would either contract for a hauler to deliver
it or the customers would get their own trucks to come in
and pick up the equipment.
Q Other than the projects in New Jersey and the
one project in Canada which is the subject matter of this
lawsuit, were there
any other states?
A I don't
any other projects which you recall in
McCormack Materials when I was
Q Okay. With respect
remember anything outside
working for L.B.
to working
A I'm sorry,
there was a project
McCormack Materials.
your
I'll have to change
that we worked on in New York for
New Jersey for
Smith.
that because
with.
and
A That's right and the salesman that I worked
Q When you say we, you're talking about you
employment with L.B. Smith?
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
18
Q And once aga±n, you sold materials to McCormack
Materials?
A Sold equipment.
Q Equipment. Do you ever recall specifically with
to any of those jobs if Randy McCormack came here
came here to Camp Hill to
respect
or Randy Waterman, excuse me,
the L.B. Smith location?
A I don't ever remember him coming to Camp Hill
because we would always go to the site.
Q And when you say site, you're talking about --
A I'm talking about the deposit or the plant.
Q The deposit, I assume meaning sand deposit?
A Yes, sand and gravel deposit.
Q And that would have either been in New Jersey or
you personally?
New York or one in Canada which involved
A Yes.
Q You said that a
McCormack Materials.
L.B. Smith?
A
Q
his practice to go to the site, wherever this is going
be built, and eye it up to see what needed to be done?
A That is correct. We worked as a salesmen
engineer team at L.B. Smith on projects. And he would
salesman was involved with
Would that have been a salesman for
to
Correct.
And would that salesman go to the -- would it be
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I would go with
Q So I assume
Materials -- well, was
him or he would go with me.
that someone from McCormack
Randy Waterman the person you
always
n.B.
some
dealt with from McCormack Materials?
A Yes.
Q I assume Randy Waterman would give a
Smith and talk
job was in New
A Correct.
Q So the best you can recollect,
correct me if I'm wrong -- about a half a
between 1986 up
Waterman bought
to you or the salesman
York/New Jersey?
call to
about where
19
A It
always tried to put
recommendation. So
would be a lot more than that. Because Randy
something in that was less than our
after it didn't work, we'd always have
to go back and straighten it out. So we were continually
working with him. And it turned out to be a lot of small
orders.
New
Q
equipment
A
Q And these small orders would be for the jobs in
Jersey or the job in New York?
A Correct.
And the folks at L.B. Smith would
sell the
advice on what he should buy?
make the recommendation.
and provide the
That is correct,
it was about a --
dozen times
until the time that you retired that Randy
equipment from L.B. Smith?
2
3
.4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. DOUGLAS:
That's all the questions I have.
REDIRECT EXAMINATION
BY MR. VAUGHN:
Q Referring to this project and your contact
beginning in April of 1996, you talked about continuous
20
faxes and phone calls between you and Mr.
you talking about a few over a period of
give us any kind of number of how many phone
faxes you received in Camp Hill?
A In the hundreds. I have
Smith
Q Thank you.
Ford --
A NO.
Q No, this is
a I wasn't at
With respect
a new question.
L.B. Smith Ford.
12 inches of files.
to your time at L.B.
Let's chop
again. With
respect to your time at L.B. Smith and your involvement
with Mr. Waterman and his company then, did anyone from
his company come to Camp Hill to inspect equipment or
review the work or get advice from LoB. Smith?
A His right-hand man Mike Glinch probably was -- I
believe that Mike was at L.B. Smith to look at the
equipment.
Q Is that probably and believe or is that, yes, he
Waterman. Are
time? Can you
calls or
Q I'm sorry, I said L.B. Smith Ford.
some of that off. Let's start all over here
21
6
7
'8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
was there?
A Yes,
L.B. Smith. I
he was there when I was
don't believe that Mike
still employed by
was there on the
in Canada.
He wasn't
He wasn't
project
Q
A
MR. VAUGHN:
MR. DOUGLAS:
MR. VAUGHN:
this deposition.
(Whereupon,
at L.B. Smith?
at L.B. Smith.
Those are all the questions I have.
I have no further questions.
We want Exhibit A attached as part
of
at 3:37 p.m., the deposition adjourned.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CERTIFICATE
22
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
I, AMY S. INTRIERI, a Notary
commissioned and qualified in and for
Dauphin, Commonwealth of Pennsylvania,
Public duly
the County of
with authority
throughout the Commonwealth of Pennsylvania, do hereby
certify that LUTHER N. AMOS. JR., who was by me duly
sworn to testify to the truth and nothing but the truth of
his knowledge touching and concerning the matters in
controversy in this cause; that he was thereupon carefully
examined upon his oath and the examination reduced to
writing under my supervision; that
true record of the testimony given
I further certify that I
counsel for, nor related to or
parties to the action in which
the deposition is a
by the witness.
am neither attorney nor
employed by any of the
this deposition is taken,
and further that I am not a relative or employee of any
attorney or counsel employed by the parties hereto or
financially interested in the action.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
23
In witness whereof, I have hereunto set my hand and
notarial seal this _~7/~] day of ~)/___,
affixed
my
1998. My commission expires: August 9, 1999.
AMY S. INTR~ER!, Notary Publto
City of Har~sburg, Dauphin County
My (~otnrnis~ion E×pires Aug. 9, 19~
A~Y S. INTRIERI
NOTARY PUBLIC
I hereby certify that the evidence and proceedings
are contained fully and accurately in the notes taken by
me during the deposition of the within cause, and that
this is a true and correct transcript of the same.
Court Reporter
THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT
APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS
UNDER THE DIRECT CONTROL AND/OR SUPERVISION OF THE
CERTIFYING REPORTER.
MATX, INC.,
Plaintiff
TRAPPE HILL HOLDINGS, INC.,
trading as McCORMACK
MATERIALS,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 97-4837 CIVIL
LUTHER N. AMOS, JR.,
Plaintiff
Vo
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 97-4838 CIVIL
TRAPPE HILL HOLDINGS, INC.,
trading as McCORMACK :
MATERIALS, :
Defendant :
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
Before HOFFER, P.J., OLER, J. and GUIDO, J
ORDER OF COURT
AND NOW, December 31, 1998, pursuant to the opinion filed this date,
Defendant's Preliminary Objections are dismissed and Defendant is hereby
ordered to respond to Plaintiffs' Complaints·
By the Court,
97-4837 CIVIL
97-4838 CIVIL
George A. Vaughn, III, Esquire
3904 Trindle Road
Camp Hill, PA 17011
For the Plaintiffs
William P. Douglas, Esquire
Douglas, Douglas & Douglas
27 W. High Street
Carlisle, PA 17013
For the Defendant
MATX, INC.,
Plaintiff
TRAPPE HILL HOLDINGS, INC.,
trading as McCORMACK
MATERIALS,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 97-4837 CIVIL
LUTHER N. AMOS, JR.,
Plaintiff
TRAPPE HILL HOLDINGS, INC.,
trading as McCORMACK
MATERIALS,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 97-4838 CIVIL
IN RE: DEFENDANT'S PRELIMINARY OBJECTION~
Before HOFFER, P.J., OLER, J. and GUIDO, J
OPINION
In this opinion, we address Defendant's Preliminary Objections to Plaintiffs'
Complaints· The facts are as follows: Defendant, Trappe Hill Holdings, Inc.,
trading as McCormack Materials, is a Virginia corporation which builds sand and
gravel extraction facilities. Plaintiff, Luther N. Amos Jr. (hereinafter Amos), is an
engineer with expertise in design and construction of sand and gravel extraction
facilities and a Cumberland County, Pennsylvania resident· Plaintiff, Matx, Inc.
(hereinafter Marx), is a Pennsylvania corporation with a place of business in
Cumberland County, Pennsylvania. Matx is involved in construction and civil
97-4837 CIVIL
97-4838 CIVIL
engineering and has developed an expertise in sand and gravel extraction
facilities.
Amos was the long time chief engineer for L.B. Smith, Inc., another
Pennsylvania corporation involved in the business of designing and equipping
sand and gravel operations. (Notes to Testimony of Deposition of Luther N.
Amos, hereinafter N.T. Amos, p.4). For a number of years, while employed at L.B.
Smith, Inc., Amos worked with the Defendant and consulted on several of the
Defendant's other projects. (N.T. Amos, p. 9-10). The record reflects that Matx
also had dealings with the Defendant in the past. Matx did a series of small jobs
working directly for the Defendant and as a subcontractor to L.B. Smith, Inc. on
Defendant's projects in New Jersey. (Notes to Testimony of Deposition of Joseph
V. Capuano, President, Matx, Inc., hereinafter N.T. Capuano, p. 17).
The project which gave rise to the present controversy was a sand and
gravel extraction facility, built in New Brunswick, Canada, designed to obtain
course sand to be shipped to Brooklyn, New York. (N.T. Amos, p. 5). In April of
1996, Randy Waterman, a representative of Defendant, contacted Amos, at his
home, to request Amos' expertise for the project. (N.T. Amos, p. 5). Amos
agreed to work, as a consultant on the project, for $50 per hour. (N.T. Amos, p.
6). Throughout the course of dealing between Defendant and Amos, Amos never
2
97-4837 CIVIL
97-4838 CIVIL
visited Defendant's Virginia offices; all communications between the two took
place by phone or fax or on the project site. (N.T. Amos, p. 15). Amos regularly
billed Defendant for his work and was sent payment at his Cumberland County
home. (N.T. Amos, p. 8). Amos has sued the Defendant because he claims he
is still owed approximately $9000 for the work he did for Defendant on the New
Brunswick, Canada project. (Amos Complaint, p. 2).
Matx became involved in the project in April of 1996 when Amos, acting on
behalf of the Defendant, contacted Matx about putting in two conveyors, used to
load ships, at the New Brunswick, Canada project site. (N.T. Capuano, p. 7).
Matx did the conveyor work and was paid by check sent to its Carlisle office.
(N.T. Capuano, p. 7).
Matx was called again in August of 1996 to work on the construction of a
second plant at the New Brunswick project. (N.T. Capuano, p. 8). Matx sent the
Defendant a proposal on the pricing to do the work on the second phase of the
project. (N.T. Capuano, p. 9). Further negotiations were completed and Matx
sent two men to Canada to work on the construction of the second plant in the
fall of 1996. (N.T. Capuano, p. 10-13). Matx claims that it has not been paid for
the second stage of work done. (Matx Complaint, p. 4). The balance due of
nearly $17,000 is the subject Matx's complaint against the Defendant. (Matx
3
97-4837 CIVIL
97-4838 CIVIL
Complaint, p. 4).
Both Amos and Matx filed complaints against the Defendant on September
8, 1997. On November 10, 1997, the Loudon County Sheriff served the Defendant
with both complaints at Defendant's Upperville, Virginia office. Identical
preliminary objections, asserting lack of jurisdiction on the part of this Court to
hear the Plaintiffs' cases, were filed in each case on December 5, 1997, but
argued much later. The Court will address Defendant's objections to jurisdiction
in both the Amos and Matx cases together because the factual background which
gives rise to jurisdiction in both cases is so closely linked.
Discussion
The issue presented in the case at bar is whether the Court of Common
Pleas of Cumberland County, Pennsylvania may exercise in personam jurisdiction
over the Defendant, a Virginia corporation. For the reasons that follow, we find
that the exercise of in personam jurisdiction over the Defendant is neither a
violation of Pennsylvania law, nor a violation of the United States Constitution.
In considering a defendant's preliminary objections, all well pleaded facts
and any reasonable inferences therefrom asserted by the plaintiff must be
accepted as true. Colt Plumbing Co., Inc. v. Boisse~., 435 Pa. Super. 380, 382,
645 A.2d 1350, 1351 (1994). In order to exercise personal jurisdiction over an out
4
97-4837 CIVIL
97-4838 CIVIL
of state defendant, a court must test the facts of the case against the state's long
arm statute and against the Due Process Clause of the Fourteenth Amendment
to the United States Constitution. See Kubik v. Lettereri, 532 Pa. 10, 12, 614 A.2d
1110, 1111 (1992).
Plaintiffs, in the cases at bar, have asserted breach of contract claims
against the Defendant. Plaintiffs claim to have been harmed by Defendant's failure
to pay for work done under their respective contracts. Plaintiffs are both
Pennsylvania residents. Both were contacted in Pennsylvania to request their
assistance on Defendant's sand and gravel extraction project in New Brunswick,
Canada.
The Pennsylvania long arm statute provides the basis upon which a court
may exercise in personam jurisdiction over an out of state defendant. It states:
(a) General Rule. - A tribunal of this Commonwealth may
exercise personal jurisdiction over a person (or the
personal representative of a deceased individual who
would be subject to jurisdiction under this subsection if
not deceased) who acts directly or by an agent, as to a
cause of action or other matter arising from such person:
(1) Transacting any business in this
Commonwealth. Without excluding other acts which
may constitute transacting business in this
Commonwealth, any of the following shall constitute
transacting business for the purpose of this paragraph:
5
97-4837 CIVIL
97-4838 CIVIL
(I) The doing by any person in this
Commonwealth of a series of similar acts for the
purpose of thereby realizing pecuniary benefit or
otherwise accomplishing an object.
(ii) The doing of a single act in this
Commonwealth for the purpose of thereby realizing
pecuniary benefit or otherwise accomplishing an object
with the intention of initiating a series of such acts.
42 Pa. C.S.A. Section 5322. A clear reading of the statute leads us to conclude
that the exercise of jurisdiction is proper under the statute. Defendant reached
into Pennsylvania to transact business. Defendant hired Pennsylvania residents
so as to reap a pecuniary gain. Defendant had previous dealings with both
plaintiffs, knowing that they were Pennsylvania residents. Defendant transacted
business in this Commonwealth by hiring the Plaintiffs to manage and participate
in the construction of its New Brunswick, Canada sand and gravel extraction
project.
Even if a state long arm statute confers jurisdiction, a court may not
exercise in personam jurisdiction over an out of state defendant unless it is
determined that a grant of jurisdiction would not violate the Due Process Clause
of the Fourteenth Amendment to the United States Constitution. Kubik v.
Lettereri, 532 Pa. 10, 12, 614 A.2d 1110, 1111 (1992).
The Pennsylvania Supreme Court has expressly adopted the constitutional
6
97-4837 CIVIL
97-4838 CIVIL
test set out in BurRer Kinq v. Rudzewi~.7 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed.
2d 528 (1985).
The standard which must be met by a state in asserting
specific personal jurisdiction over a non-resident
defendant as articulated in Burqer King is clear: (1) the
non-resident defendant must have sufficient minimum
contacts with the forum state and (2) the assertion of in
personam jurisdiction must comport with fair play and
substantial justice. The determination of whether this
standard has been met is not susceptible of any
talismanic jurisdictional formula: the facts of each case
must always be weighed in determining whether
jurisdiction is proper.
Kubik at 17, 614 A.2d at 1114 (citations omitted).
Weighing the facts in the case at bar, Defendant has established minimum
contacts with Pennsylvania. Defendant's reliance on Derman v. Wilair Services,
Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991), alloc, denied, 529 Pa. 621,600
A.2d 537 (1991), is misplaced. In Derman, plaintiffs, representatives of New York
residents killed in a plane crash in Pennsylvania, attempted to sue a New York
corporation, in Pennsylvania, for failure to properly maintain the plane. Id._~. The
court found jurisdiction to be improper because the non-resident defendant had
not reached into Pennsylvania to establish minimum contacts, id. The case at
bar is easily distinguishable because Defendant purposefully availed itself of the
benefits of Pennsylvania when it deliberately chose to hire Pennsylvania residents
7
97-4837 CIVIL
97-4838 CIVIL
to work on the New Brunswick, Canada project.
Further support for asserting jurisdiction over the Defendant sub judice can
be found by comparing the facts at hand with the facts in Richard T. Byrnes, Co.,
Inc. v. Buss Automation, Inc., 415 Pa. Super. 549, 609 A.2d 1360 (1992). In
Byrnes, jurisdiction over a non-resident defendant was proper where the
defendant allegedly failed to pay a commission to the plaintiff, a Pennsylvania
citizen, owed under a contract. Id_~. Reaching out to a Pennsylvania resident and
knowingly forming a contract with that citizen was enough to establish minimum
contacts and make the assertion of jurisdiction fair.
In the case at bar, Defendant reached into Pennsylvania to conduct
business.~ Defendant purposefully availed itself of the expertise of Pennsylvania
citizens in sand and gravel operations. The Defendant solicited work from the
Plaintiffs, knowing that they were Pennsylvania citizens; they did not come to the
Defendant looking for employment. Defendant deliberately engaged in significant
activities in Pennsylvania. It is reasonable to believe that Defendant should have
anticipated being haled into a Pennsylvania court. Defendant chose to contract
~ It is clear that the fact that Defendant was never physically present in
Pennsylvania during the course of dealing between the parties is not a bar to the
assertion of jurisdiction over the Defendant. See Colt Plumbin.q Co.1 Inc. v. Boiss~,J
435 Pa. Super. 380, 391,645 A.2d 1350, 1356 (1994). '
8
97-4837 CIVIL
97-4838 CIVIL
with parties from Pennsylvania. Defendant purposefully availed itself of the
privilege of conducting business in Pennsylvania and minimum contacts were
established.
It is reasonable and fair to assert jurisdiction over the Defendant in the case
at bar. Pennsylvania has an interest in providing a means of redress for its own
citizens. If the Plaintiffs' allegations are proved at trial, it would be clear that
Defendant intentionally harmed the Plaintiffs by failing to pay for work done while
reaping an economic gain for itself. Under the circumstances, it is reasonable and
fair to assert jurisdiction over the Defendant. Defendant's preliminary objections
are therefore dismissed.
DOUGLAS, DOUGLAS & DOUGLAS
27 W. HIGH ST.
POB 261
CARLISLE PA 17013
TELEPHONE 717-243-1790
X
WILLIAM p. DOUGLAS, ESQ.
Supreme Court I.D.# 37926
GEORGE F. DOUGLAS, m', ESQ.
Supreme Court I.D.# 61886
IN THE COURT OF COMMON PLEAS OF
MATX, INC.,
CUMBERLAND COUNTY PENNSYLVANIA
PLAINTIFF
TRAPPE HILL HOLDINGS, INC.,
Trading as McCORMACK MATERIALS,
1 997 - /4837 CIVIL TERM
CIVIL ACTION LAW
DEFENDANT i
To: Curtis R. Long, Prothonotary
PRAECIPE
Please substitute the attached Verification in place of the
attorney verification to the Answer filed January 19, 1999, to the
above-captioned action.
Date:
January 26, 1999
DOUGLAS, D)O~GLAS & DOUGLAS
]44'FX, INC. V. TAPPE ~]'].1. HOLDINGS, INC. - 1997 - 4837 CIVIL ~P,M
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.
VERIFICATION
I, Randy M. Waterman, ~2¢* ~2dct~ ~' of Trappe Holdings, Inc., verify
that the statements made in the foregoing document are true and correct, to the
best of my knowledge, information, and belief. ! understand that false
statements herein made are subject to the provisions of 18 Pa. C.S.A. § 4904
relating to unsworn falsification to authorities.
Date
Randy M. ~7atei:man
MAT]f, INC., Plaintiff
TRAPPE HILL HOLDINGS, INC.
trading as McCORMACK MATERIALS,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 4837 CIVIL 1997
RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Georc~e A. Vaucl'hn. III. , counsel for the plaintiff/dlsl2~la~in the above action ~
respectfully represents that:
1. The above-captioned act!on Rg~:gll~g) isXl~l~ at issue.
2. The claim of the plaintiff in the action is $ 19.939.00
The counterclaim of the'defendant in the action is 0
Thc following attorneys axe interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators:
George A. Vau~hn, III, Office of Douqlas & Douqlast Samuel L. Andesr Esquire, and Michael
L. Bangs, Esquire
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be
submitted.
Respect fully .~ubmitted,
Ge'lSrge A.'~Vaughn, III
ORDER OF COURT
(~ 200~
AND NOW, ~ ~J~t9/~ , ~ , in consideration of the
Esq., and (0~,~ ~ d'.~} , Esq., are appointed arbitrators in the above captioned action (or
actions) as pr~yed for./ ,~
P,J.