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Home My WebLink About98-00403 0J JAN 2 2 1998 LAWRENCE M. RIVrl'Z, Plaintiff v, : IN THE COUnT OF COMMON PLEAS : CUMBEnLAND COUNTY, PA : . t(OJ : No, 'If;. Civil ~tI1 MILLER/ZELL, INC. Defendant ORDER AND NOW, this z7.""day of January, 1998, upon review of the Petition for Order to Appeal' for Deposition in the captioned matter, this Court orders Martin L, Grass and Michael F. Morris, individuals as named in the Petition to submit to a deposition pursuant to subpoenas issued by the - J" L _if d.y:,t.lel~rL:nL . '., "-<f1(.....IJL?l.C;C vVL(-" . . Prothonotary of thIS COl,lrt. o.J!t:..LJ f~'l;r~ {~ Z['r..z-l~.t'1-'l/d .'r:. ~. '. lfttl-(Urln? -if "))ud.li.tU.J!..,. :7'"'/11tf..t.t'~ -- ~ ~-/tcJ:tt'-(.t./IPJt'6"";V:}~/w(dl' -?:}~(e J-'. ?JlaJ&.'n .~La.;2.:J -1,,_- ./li"u UA.. r{r.-,tu--f-' ~et.-1...?L-ZA-/, _ .c1-, r?71 c-.-Cl.' . t'-v _ c..a- A'_ . . The sllld sul:ipoe11!i~ail/~nclude ~uces tecum clause reqUll'lng the said Martin L. Grass and Michael F, Morris to bring with them any and all documents, correspondence, memoranda, notes and other writings relating to the performance of Plaintiff Lawrence M, Rivitz, in connection with the business relationship established between Rite Aid Corporation and defendant Miller/Zell, Inc. through the assistance of Plaintiff, By the Court, ,Ad J. .. . .. >- ('\J ?.:: tr, ('~ .~ -,,' ,.-= co,.) ~}J ,u~2 (..JC".i If-" d... ."F- ~-~ ~!~ a.- I C1 N filL. " "" ....J1", ; l' ">' L.1- -~- .,,,- ~;-i [;J F .::..c :'.)t.!- . ..r.': II. a:: ::.J 0 0' U ,. . '. LAWRENCE M. R1VITZ, Plaintiff : IN 'rHE COUHT OF COMMON PLEAS : CUMBERLAND COUNTY, PA , //.) . " '(,.) : No. {/~" Civil v, MILLER/ZELL, INC, Dcfcndant Petition for Ordcr to Anneal' for Dcnosition AND NOW COMES the Plaintiff, LAWRENCE M, R1VITZ, by his attorneys, BALL, SKELLY, MURREN & CONNELL, pursuant to 42 Pa, C,S,A, 5326 and files this Petition the statement of which is as follows: 1. Lawrence M. Rivitz is an adult individual with residence in Baltimore, Maryland. 2. Defendant, MILLER/ZELL, Inc., is a corporation incorporated pursuant to the laws of the state of Georgia with its principal place of business located at 4715 Frederick Drive, S,W., Atlanta, Georgia 30336. 3. An action by Plaintiff against Defendant was instituted in the State Court of Fulton, Georgia, docketed at No. 97VS0125748. 4, In connection with the Georgia litigation, Plaintiff must immediately depose two individuals who are officials of Rite Aid Corporation, 5, Due to recent developments in the Georgia litigation as recited in letter by counsel for the Plaintiff Rivitz to Franklin Brown, Esq., Vice- Chairman of Rite Aid Corporation attached hereto as Exhibit "Au, Plaintiff makes application to this Honorable Court for an order to compel Martin L, Grass and Michael F. Morris to appeal' for depositions, JAN-II-9B 11:14 Fro.:~RRIS MANNING 4041641199 T-lIT P 10/19 Job-IIG T^'I'I'^ ^. MIKfl. Sc.orr MORRIS, MANNING & MARTIN ^ L!Mlrto lJ,\BIUTY rMrnCft!IIII' ^TTOl\NeUML^~ hOOATIANTA RNANr.I^I.Cr.NTPI\ 1l1l1'C^CII11\[[ ftOMl, N r AnANTA, GEORGIA 30326,1044 uunu..... 404 uuooa r.u:.so.tlu41J4J""1Z l )lAIl. TM'IO/oU.UU"w COM M&l.(I&~. C".-l'4MtIlCLALLA W M'IUA T'LS nm C"IUtfU\lt't..-, MlV41 IN rJlll~ell'AL c nlU wOl1Dfr'UJ1 ...Ulil'lUlfrlhlnIIU'.:1 'Ill..", MAlrIflr4lHtJ, ...un",," ,unll,ll , WUTlUP.N'~(' tCll'I7TIlHnt ITUU, 1\1. WAIJUNCin"".l>C .. nU'HONI 101 tOt "" rAc.mlILllG,q.tlu I .,' bUa1h'llJ' U"..:I. sum nc Hn I 'I"CHlUl DUNYOOOf ao.w "nANTI.. Cloa.cU. NI.. TlllffiONl_ ,\l4oQ 'A(~tLt4Ol'4\.m' , " January 21,1998 VIA FEDERAl. F.XPRF.SS Franklin Drown, Esq, Vice-Chainnan Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Re: Rivitz v. Miller/ZelJ. [nc, Fulton County State Court Civil Action File No, 97VS0125148 Dear Mr. Brown: As 111m sure you may recall, this law firm and the undersigned represents Mr, Lawrence M. Rivitz in the above-referenced mailer against Miller/ZelJ, Inc. ("Miller/ZeU"). You may further recall that this is a breach of contract action indirectly related to Mr, Rivitz's removal from the Rita Aid account by MilIer/Zell. Notwithstanding our efforts to avoid involvinll Rite Aid in this matter, certain circumstances have arisen which make Rite Aid's involvement necessary, Accordingly, I write to request your assistance In securing the execution of the enclosed Affidavits by Mr. Martin L, Grass and Mr, Michael F, MOlTis. Again, I regret that this action has become a necessity, but Miller/ZeWs recent accusations leaves us with no alternative, With your indulgence, I will explain. In October 1997, Mr. Rivitz med a Motion for Summary Judgment on his Breach of Contract claim. In response, MilIer/Zell filed II Brief in Opposition and a Cross-Motion for Summary Judgment. Oral arguments on the pending motions were heard last week. In Miller/Zell's legal brief, and again during oral argument, its counsel mnde several harmful allegations concerning Mr, Rivitz's removal Ii-om the Rite Aid account, Specifically, Miller/Zell made the following representations to the Court: 0)1661901 JAN-II-Ie 11:14 F'o.:~RRI$ MANNING 4041041111 T-IIT P 1I1II Job-IIO MORRIS, MANNING & MAI\TlN A LIMITED L1^'lLm PA.k~.1D' Franklin Rmwn, Esq, January 21, 1'l'lH Page 2 "Mr. Rivit2, despite all efforts by r,liller/Zell to prevent it, performed so.l1Qll.[.b! that Rite Aid in.isted that Miller/Zell remove him from the Dccount." (empha9is added) "Mr. Rivitl.'s substandard perfonnoncc resulted In Rite Aid removing him." (emphasis added) "By performing poorly (, Mr, Rivilz had) , , . the customer [Rite Aid) oust him." "(Mr, Rivitz: fililed) , . , to perform [hi.] duties in a manner acceptable to Rite Aid," While we initially regarded these allegations as harmless since this Is a breach of contract action between Mr, Rivitz WId MiIler/Zell, WId not Rite Aid, the Judge hinted at the conclusion of oral argwnents that the reason for Mr, Rivitz's removal from the Rite Aid account may have a bearing on this case, As you may recall, I spoke with Mr, Michael Morris by telephone on October 8, 1997, The specific purpose of our conversation was to discuss the reason why Mr, Rivitz was removed from the Rite Aid account. The reasons articulated by Mr. Morris were completely different from the allegations currently espoused by MilIer/Zcl!. Particularly, Mr, Morris represented that Mr. Rivitz was not removed from the Rite Aid account for any performance reason, but due to the growth of the Rite Aid account. Apparently, Rile Aid's relationship with MiIler/Zell had grown to such :1/1 extent that a salesman wa< no longer needed on the account. The enclosed Affidavits contain the details of Rite Aid's position as relayed by Mr. Mon'is. We have not embellished the AffidaviIs In the least and are merely requesting that Rite Aid, tIuough M~sr.. Martin and Grass, legally support its prior representations. Please understand that it is certainly not our intent to interfere with Rite Aid and MiIler/Zell's relationship in any manner, nor is it our intent to make Rite Aid 0 part of this lawsuit, but due to the allegations made by Mlller/Zell, and Ihe Impact said allegations may have on Mr. Rivitz's Motion for Summary Judgment, we have been left with no olher recourse. We believe that the enclosed Affidavits evidence our intent to minimize Rite Aid's involvement as much as possible. Unfortunately, if the Affidavits are not voluntarily executed, we will have no alternative except to notice ond lake the depositions of Messrs. Grass WId Morris, and possibly other Rite Aid employees. Inasmuch as discovery in this case is scheduled to expire on January 30, 1998, we would have 10 conduct thege deposilions on or before January 27lh. While we realize that Messrs. Grass and Morris must be terribly busy, and do not wish to trouble them, failure to execute the enclosed Aflidavits leaves us with no olher oplions. OJIf.61902 '.... JAH-ZI-18 11:11 F'o.:~RRIS ~NNING 4041641119 1-Z11 P IZ/19 Job-116 Moms, M^NNING &. M^RTlN . LIMm:D LlAJIlIl"/ r"'lNfJ\1111I' Franklin Brown, Esq. Jalluary 21, 1998 Page 3 Kindly advise me on or before Wednesday, January 14, 191)8. whelher Messrs. GrasS and Morris will execute the Affidl1vit3. If you do not hear from me by JRJluory 141h, I will have no choico excepl 10 subpoena them for deposition. It is my sincere hope thaI Ihis will not be necessary , Mr. Brown, I regret involving Rite Aid in Ihis matter, but your assistance will be greatly appreciated, I look forward to hearing from you soon. and by the way. Happy New Year, Very truly yours, MORRIS. MANNING &. MARTIN. L.L,P, Tacita A. Mikel Scott /jjb cc: Josoph R. Mllnning, Esq. DJlGGII).OJ \ ' I ,," , , /1 , I " ) I' \ . , , , I . , I , , JAN-21-9B 13:35 From:MORRIS MANNING l0436U199 T-III p t3/19 Job-33G MORRIS, M^NNtNG &. MAATIN ^ UMrnp LlAalLl'1Y rM11'/EIUHII' Franklin Brown, Esq, JAnuary 21,1998 Page 4 bee: Mr. Lawrence M. Rivit:i. U1I6Ci19,01 '. , i I I I EXHIBIT C I i' I " COMMONWEAL'I'H OF PENNSYLVANIA COUN'I'Y OF CUMBERLAND LAWRENCE M. RlVITZ, Plaintiff : IN THE COUR'I' OF COMMON PLEAS : CUMBERLAND COUNTY, PA v. : No. Civil MILLER/ZEI,L, INC, Defendant SUBPOENA DUCES TECUM TO ATTEND AND TESTIFY To: Michael F. Morris 30 Hunter Lane Camp Hill, PA 17011 1. You are ordered by the Court to come to 2303 Market Street, Camp Hill, Pennsylvania, on January 26, 1998, at 10:00 a.m" to testify on behalf of Plaintiff in the above case, and to remain until excused. 2. And bring with you the following: any and all documents, correspondence, memorandum, notes and other writings relating to the performance of Plaintiff, Lawrence M, Rivitz, in connection with the business relationship established between Rite Aid Corporation and defendant, Martin/Zell, Inc., through the efforts of Plaintiff, If you fail to attend or produce the documents authorized by this subpoena, you may be subject to the sanctions authorized by Rule 234,5 of the Pennsylvania .". ~ . . . Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment, Requested by: Qf of'{1JJ Richard E, Connell, Esq. I.D, #21542 p, O. 1108 Harrisburg, PA 17108 (717) 232.8731 Attorney for Plaintiff BY THE COURT, Date: (Seal of the Court) By Lawrence E. Welker Prothonotary i' ! .' GJ "-tJ ""'< r f: '(I[ ~'""- ~ "('"" ~q\) ~c. G ~ ~ ~ C) ., n ~ 'J 'il r'. ~ ~:~:, .. ! ~ ~. G ~~ ~. " , - . "11 t C'" , 1:1 :....1" '.) , .~J ~. I ~ ; , '(") ,..... , , '-"'1 \ 1"..\ .-.-, .--'-' ~ ~ -\ '!;- ) ~, ", )"11 '" , ::.? '~"i 'f{ ..... ,~ .~ :::-, -- :':J .. -.,;" ')) -', "(