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HomeMy WebLinkAbout97-06418 LMV OFJ'ICI~1l SNI-:Lt"'KER, Br~ENNEMI\N l'l SPAnr:: 6. Admitted. 7. Admitted in part; denied in part. It is admitted that Defendant did request a billing and payment history from Plaintiff's counsel on November 24, 1997 and followed tnat request with a letter dated December 5, 1991. It is denied, however, that Defendant at any time requested a billing and payment history and "accounting" from January I, 1991 to date until such time as Defendant served Plaintiff with a Request for Production of Documents on December 11, 1997 and Interrogatories on December 12, 1997. 8. Admitted in part; denied in part. It is admitted that as of the filing of Defendant's Motion to Compel and Motion for Protective Order that Plaintiff had not produced the requested information. On February 4, 1998 Plaintiff served a response to Defendant's Request for Prodllction of Documents and Answers to Interrogatories upon Defendant,'s counsel, which Response and Answers are attached hereto and incorporated by reference herein as "Exhibit A" and "Exhibit B", respectively. By way of further response, it is admitted that on January 12, 1998 Plaintiff's counsel wrote to Defendant's counsel advising that the Plaintiff was unable to timely respond the Request for Production of DOCllments and Interrogatories due to the reasons set forth in the Janllary 12, 199B letter, a true and correct copy of which is attached hereto and incorporated by reference herein as "Exhibit C". It is admitted that at no time -2- LAW O''''IClrs 5F'l(LI1AKL::n, EJRI~NNEM^N Lie SPAnE prior to January 12, 1998 did the Plaintiff inform the Defendant that they were unable to timely answer the disoovery requests. 9. Denied. It Is dnnied that the resignation of Plaintiff's utility Aocounts Billing Clerk is no basis for Plaintiff's failure to respond timely to Defendant's discovery requests. Although it is admitted that Plaintiff did not object to the discovery within thirty days of service of same, it is denied that Plaintiff has waived the opportunity to file objections to the discovery requests. It is denied that Plaintiff knew about Defendant's requests for information more than thirty days before its cler.k's resignation. It is further denied that there was ample time to respond to the discovery requests under the circumstances. 10. Admitted. By way of further rosponse, there is no basis whatsoever for Defendant to have any documents from Plaintiff as a condition to Plaintiff conducting discovery. 11. Denied. It is denied that the Plaintiff has refused to postpone the deposition of the Defendant's designee. To the contrary, Plaintiff had agreed to postpone that deposition based upon Defendant's counsel's assertion that it intended to file a Motion with the Court contesting the ability of Plaintj.ff to ~ake the deposition of Defendant's designee on the basis of a criminal investigation which Defendant believed was pending -:)- I.AW''''"rCEIS StlELOAKEA, BR'!NNF.MMI & SPARE at 200 Hurman streut, Mount Holly springs, Pennsylvania at a time mutually agreeable to the parties' attorneys.' No documents shall be removed from Plaintiff's office for photocopying by Defendant unless agreed to by Plaintiff. Response to Request For Produotion ot Doouments. 1. All such documents shall be produced. Such documents consist of the following: a. Quarterly payment cards noting due date, accollnt nllmber, address and amount duefqr the years 1991 through 1997. All quarterly payment cards applicable to Barb Co., to the extent they exist, are among payments cards for all other accounts which have been retained in'multiple boxes. b. Payment registers for the following periods: 1997, 1996, 1995, 1994, January 1 - April 30, ~993, May - october, 1993, November - December, 1993, November 1990 - July 1991, July - December 1991 and January, 1992. c. End of Billing Quarters Report for 1992. d. Adjustment Register for 1997, 1996, 1995, 1994, 1993 and 1992. e. Meter Reading Calculation Reports for 1997, 1996, 1995 and 1993. f. Daily Computer Reports for February - June, July - October and November - December, 1992. g. Various letters and photocopies of checks received from Barb Co.'S counsel directing and noting payment/partial payment of water, sewer and trash charges. h. computer printed accollnt screens noting charges for services generated on various dates. -2- - '. I~STRUCTlQNS AND DEF~ Definitions __ The following definitions are applicable to these standard Interrogatories: "Document" means any wrlllen, printed, typed, or other graphic mailer of any kind or nature, however produced or reproduced, Including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which Information can be obtained. "Identify" or "Identity" means when used In reference to .-' (1) A natural person, his or her: (a) full name; and (b) present or last known residence and employment address (Including street name and number, city or town, and, state or county); (2) A document: (a) Its description (e.g., leller. memorandum, report, etc.), tltie, and date; (b) Its subject mailer; (c) Its author's Identity; (d) Its addressee's Identity; (e) Its present location; and (f) Its custodian's Identity; (3) An oral communication: (a) Its date; (b) the place where It occurred; , " 'I, , , " '.\ , ' 1 i , I "t~ ~,~ '- ~ 'Il ~ vJ ~ , I. ! ! , .' " I' I '" Ii 2 n I,Q II) C" r. ,.,1 '~l . -rv'~' .":1!': ~ nJd_' ,l::;? -) f':' ' " I, " 'i,;p '-' 'le, en ",tg ,I" ~ ::~! .) ,J ~ ".""'1 i' .,,1 : i~; I' '-, ._t. .:fj j J.. 4*' :< -. (51t;~~ ....11 .. ...~ .:,,) t~.t (n :~ 'u) ~ U) ,,' " , ,. Plulntifl' clulms thut tfw Ilunlt (hilml to I'omit to tho PlnlnWl' ehlll'l-{os collectod uul! I'eceived by the Ilunlt from Bul'l> Coo's tenunts 1'01' Wlltel', sewm' und tl'ush sel'vlcos provided to Bnl'b Co. nnd its tenunts by Plulntifl'nt u tmilm' pnrk locuted in the BOl'oul{h 01' Mount Holly Spl'inl{s. UOWOVOI', no (~omplulnt hus been mod, und the Bunlt does not Imow the specific nllol{utions nguinst it. 'rho Bunk ulso does not know how much Pluintifl' claims it is owed fill' utility sm'vices. The Bank is u seclll'ed creditol' 01' BUl'b Co. Burb Co. owns the tl'uilor pur'k. 'rhe Bank's security includos un assignment of tho landlord's I'onts und louses from the truilCl' park und mOl'tguges uguinst the tmilel' purk. Pursuant to tho ussignment of I'onts und lensos givon by BUl'b Co. to tho Bunk, tho tenunts of the trailer park puid ull amollnts due undol' thoir leases to tho Bank as part of its seclll'ity. 'rho payments wel'o made only for poriods after July I, 1996. 'l'he Bank deducted from theso payments umounts which Barb Co. owed tho Bank and tho second mortgage holder. It I'omit.t~d tho balance of tho rents to Barb Coo's attol'lleys. It is tho Bank's position that Barb Coo's attol'lleys have paid PluintilT all monies owed it for all periods sinco July I, 1996, The Bank believes that Plainti!l's billing and payment history and accounting will establish Plaintiffs receipt of such funds. Prior to July I, 1996, Barb Co. had been in bankruptcy and in arrears on utility monies owed to the Plain tilT. It is suspected that Plain tilT applied puymontH mudo by 1I111'b CO.'Huttlll'!WYH to UI'l'Olll'UHOH Illl' pododH hoflll'o ,July I, \!lOH. 'rho Bunlt did not l'ocoivo uny l'ont bol'ot'o .July I, WOO. The Bunlt hUH boon uttomptinH to obtuin tho billinH und puymont hiHtory und tho uccounting Hinco Novombor' 24, 1mJ7. Tho Pluintifl' hUH mudo ono excuse ufter unother us to why thiH uccounting iH not Ihrthcoming, DeHpito phone culls, letters und Intel'roglltories und HeqllestH fill' Production of Documents, the Pluintifl' hus not produced the uccounting which will cluri(y this dispute and demonstl'Ute Plaintifl' hus no cluim lIgainstthe Bunlt. '1'he Bunlt initially requested the billing und payment history and uccounting by telephone on November 24, 1097. 'l'he request was repeated by correspondence dated December 5, 1997. See Exhibit "C". Plaintiff responded by letter dated December 8, 1997 agreeing to provide billing and payment history and accounting, See Exhibit "0". The Bunk roqllested this information again by its Request for Production of Documents and Interrogatorios on Decembel' 12, 1997, See Exhibit "E". On the 30th day when PluintilT was reqllired to answer the Bank's Discovery Requests, the PlaintilT said that it was unable to timely respond. See Exhibit "F". Plaintiff never objected to the Banlt's discovery. After the telephone conference with the Court on January 16, 1998, the Bank attempted to amicably resolve the discovery displltes by suggesting each party provide full and complete answers to each other's written discovery requests. See Exhibit "0" and Exhibit "H". , . '.' " J , i, @ I , ! I ~ I' I " ~ ! i requel.ltinK this information. (DefenCliint's RequestfoI"Pi';;-duction of DocUments and Interrogatories attached as Exhibit "C"). 8. Plaintiff has not produced this requested information. On the m dID! when answers to the Request for Production of Documents and Interrogatories were due and 48 days after the information was initially requested, the plaintiff sent the defendant a letter stating the plaintiff is unable to timely respond to the Request for the Production of Documents and Int~rrogatories due to the resignation of the Utility Accounts Billing Clerk effective JanullI"'j 1, 1998. At no time prior to January l.2, 1998, the last day to respond to these discovery requests, did the plaintiff inform the defendant they were unable to timely answer these discovery requests. 9. The resignation of plaintiffs Utility Accounts Billing Clerk effective January I, 1998 is no basis for plaintiffs failure to respond timely to defendant's discovery requests. Plaintiff did not object to the discovery. The period for filing objections to the discovery has expired. It knew about the request for the,' information more than thirty (30) days before its clerk's resignation. There was ample time to respond. 10. The plaintiff inquired of the defendant if this delay would pose a problem. The defendant responded by stating that it would not pose a problem as long as the deposition of the defendant's designee was rescheduled until after the plaintiff produced these billing and payment history and accounting records. 11. The plaintiff has refused to postpone and reschedule the deposition of the defendant's designee. l Dl . . " . " I o " II , , ' . , , @ 'I ~ ~ ! I, f, f; I ,j ~ , .' , , , " ~! . " " \1 ';j, " , , , . , " " " (, , ' , , " "I 1,1 I " I: , ' " " , , , , , " , :, , , , , , , " @ '~ f 'I ! I' , Q , I l' , ~ " " . " i I, " 1'1 ' ' , , , , Ii , , . I, ,! " @ I' ! ! " ~ i , ~ , " " " ';1 I' " I,' :Ii 'U " " , , , . , , . " ' , , .' , ", . , ' ,I ' , . , ' , BOROUGH OF MOUNT HOLLY SPRINGS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA plaintiff v. NO. 97-6418 CIVIL TERM COMMERCE BANK/HARRISBURG, N. A., doing business as Commerce Bank, N. A., Defendant CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S REOUEST ~PRODUCTION OF DOCUMENTS Plaintiff Borough of Mount Holly springs, by its solicitor Snelbaker, Brenneman & spare, P. c., responds to Defendants Request For Production of Documents as follows: General Response to Request For production of Documents. Plaintiff objects to the production of the categories of documents requested on the basis that the time period relative to such request is overly broad and the production of such documents would be unduly burdensome. Accordingly, Defendant's request is wholly irrelevant to the subject matter of this proceeding and not reasonably calculated to lead to the discovery of admissible evidence. without waiver of these objections, the documents identified below will be produced subject to and in accordance with the conditions set forth below. Due to the volume of discoverable documents, documents I.AW O"ICIII SNltLD!\KI!:R. 6Rl';,'meMAN 3: SPARE: identified below will be produced for inspection and/or photocopying, at Defendant's expense, at the Plaintiff'S office " , , --~.-- L,l,'tV 0"11::'" Stltl.S/"K!A. 8nlt':-4NEMllN & SPARE --...........--..----..-.-..- at 200 Harman street, Mount Holly springs, Pennsylvania at a time mutually agreeable to the partiss' attorneys. No documents shall be removed from Plaintiff'S office for photocopying by Defendant unless agreed to by plaintiff. Response to Request ~or production of Documents. 1. All such documents shall be produced. Such documents consist of the following: a. Quarterly payment cards noting due date, account number, address and amount due for the years 1991 through 1997. All quarterly payment cards applicable to Barb Co., to the extent they exist, are among payments cards for all other accounts which have been retained in multiple boxes. b. Payment registers f.or the following periods: 1997, 1996, 1995, 1994, January 1 - April 30, 1993, May - October, 1993, November - December, 1993, November 1990 - July 1991, July - December 1991 and January, 1992. c. End of Billing Quarters Report for 1992. d' Adjustment Register for 1997, 1996, 1995, 1994, 1993 and 1992. e. Meter Reading calCUlation Reports for 1997, 1996, 1995 and 1993. f. Daily computer Reports for February - June, July - October and November - December, 1992. g. Various letters and photocopies of checks received from Barb Co.'s counsel directing and noting payment/partial payment of water, sewer and trash charges. h. Computer printed account screens noting charges for services generated on various dates. -2- L./lW 01"1"1C:1I ,5NEI.BAKER. BRENNEMAN 81 SPARE i. Documents produoed by Barb Co.'s counsel purporting to represent money received from Defendant and subsequent payments made to Plaintiff; and j. Handmade ledger sheet noting and summarizing payments and charges on account. The documents identified in subparagraphs (a) through (f) above contain, or are believed to contain, entries having information of the type requested in Par.agraph 1 of Defendant's Request. certain documents containing the information pertaining to Barb Co. may be identified only by reviewing the larger group of documents containing other accounts. The burden of specifically identifying such documents"would be substantially the same for both parties. See Pa.R.C.P. 4009.12(a) (2) (i). 2. Objection. This category requests no documents. Further the ~ategory requests no tangible thing in existence as qualified by what such a "bilUng and payment history and account nmst show". The information requested can be obtained from the documents, produced in response to paragraph 1 of Defendant's request. Date: '1'11;/9 f SNELBAKER, BRENNEMAN & SPARE, P. C. . /f) ~_Ct.. By: ~4.~ - Keith O. Brenneman, Esquire 44 West Main street Mechanicsburg, PA 17055 (717) 697-8528 solicitors for Plaintiff, Borough of Mount Holly springs -)- " " @ I ~ I ; I " I' " , , r c.. "', , , ",...~._.- , " l1'lST~U9TIONS AND DEFINI1:'ONS Definitions - The following definitions are applicable to these standard Interrogatories: "Document" means any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, Including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tllpes, discs, dete cells, drums, and other data .::ompllatlons from which Information can be obtained, "Identify" or "Identity" means when used In reference to .. (1) A natural person, his or her: (a) full name; and (b) present or last known residence and employment address (Including streat name and number, city or town, and state or county); (2) A document: (a) (b) (c) (d) (e) (f) Its description (e.g., letter, memorandum, report, etc.), title, and date; Its subject matter; It~ author's Identity; its addressee's Identity; Its present location; and Its custodian's identity; (3) An oral communication: (a) its date; (b) the place where it occurred; 1'1 ,.. , , ...... 0\ .j ~..- 'I tr,~ c::: (,.; , ~'-~ i ILlr-' ().;. ,J f'" '_,"I J , I.. ~. ...:: , Sil." . I r<':l " ~' L , C'': ~ . I It;' d, I-~ ,,' , !u": ,,- r.'::' ~: j " 0 0'1 U " 'Ii .,-, OJ , .-'~~~ , , , ':~T!-~,~,\; I~; , , !I I 'I , , , LAW t1l"J'le.u SNILI!IAJ(!M. !"IINNEMAN & S~...,,!' producl d or roaproduced, and any othur IDlltter concerning the record: ng of data or infortnlltiotl upon any tnngible thing by any means, including, but not limitud to, tho original, non-identical copy, lough or final draft of tho following (regl.\rdleIJG of howeV.l or by whomoaver prepnred' produced or reproduced): books, record, , reports, D1amoranda, notas, letters, telegrams, diaries, calendar or diary entrie~, schedules, mnps, graphs, contracts, studie, , analyses, instructions, photographs, tape-recordings, comput. r tapes, computer .disKS or diskettes, telex or fax transm:ssions, correspondence, measages, CD-ROM, drawings, forms and WOl: k paper or any other thing in which any mattar is memori, lized. "Iefendantll as used herein means Commerce Bank/Harrisburg, N. A., doing business as Commerce Bank, N. A., its agents, employees, Officers, directors, attorneys, insurers and/or any erson, firm or entity ncting on behalf or at the request of said " arty. "I arb Co." ns used herein means the oorporation Barb Co. , ts aglnts, directors, shareholders, representatives, attorneys, mploYI es and/or any person, firm or entity acting at its or heir c iraction or on its or their behalf. "'! tie Meadows" shall mean and refer to the mobile home or railel park owned by Barb Co. located adjacent to Mountain treet in the Borough of Mount Holly Springs in Cumberland ounty, Fennsylvania. -2- Vow 0'''0.. SNlL.'~KI", 1,.INNDfAN $I $M.. . Bewer, wnter and trash ch~rg(lG, fees or Qxpanses. 7 Any und all documents given or transnl.i tttad to Defendant by any tenant or occupant in The Meadows which relate, refer or in any wny concern the payment and/or collQction of any r.cnt or lSewer, water und trash chargee, fees or expenses. 8 Any and 1111 documentu received by Defendant from the law tirm 0: Cunningham & charnicoff, P. C. or any attorney, elllployee or rep: esentativa thereof relating or referring or 1n any way concerling the payment, COllection, transfer or receipt ot' any rents ~nd/or water or sewer or trash charges of any occupant or tenant of The Meadows. 9 Any and all documents transmitted by Defendant to the law film of cunningham & chernicoff, P. C. or any attorney, employee or representative thereof relating or referring or in any wa: concerning the payment, collection, transfer or receipt of any rents and/or water or sewer or trash charges of any 1 occupart or tenant of The Meadows. Date: ~ovember lB, 1997 SNELBARER, BRENNEMAN & SPARE, P. C. By' 1/...L7_f.frt,q4l ~. ~~renneman, Esquire 44 West Main street Mechanicsburg, PA 17055 (717) 69'1-8528 Attorneys for Plaintiff Borough of Mount Holly Springs -4- ',1 'I 'I I II" PI ";,,, f+11 "! "1 1111 " . I. 1 !. '" " " " " " , ' i' , , " , , , I ~ " , "~I ~~c t... . INSTRUPTI~S AND DEFINitiONS Definitions .. The following definitions are applicable to these standard Interrogatories: "Document" means any wrlllan, prlntad, typed, or other graphic mailer of any kind or nature, however produced or reproduced, Including photographs, microfilms, phonographs, video and eudlo tapes, punch cards, magnetic t.apes, discs, data cells, drums, and other data compilations from which information can be obtained. "Identify" or "Identity" means when used In reference to - (1 ) , A natural person, his or her' (a) (b) (2) A document: (a) (b) (c) (d) (e) (f) full name; and present or las~ known residence and employment address (Including street name and number, city or town, and state or county); Its description (e.g., letter, memorandum, report, etc.), title, and date; Its subject matter; Its author's identity; Its addressee's Identity; Its present location; and Its custodian's identity; (3) An oral communication: (a) Its date; (b) !he place where it occurred; " " . " " .;) , l '" " ,'1 I ) , I :;'l{ ,.. .! " ._I..J III .-<; Ii " " If " , , , , , !I " I; ,- ! "I " ,! , 'J" ,,~ " ,. " .ql I, d , , IY" J i.>rl , , , , .'1 , '.J , " ""! , I : , , I \ .n , r .:/. " ,it I ~,j) .il "". I" .... " , , I I , , '" " " II Ii . .,