HomeMy WebLinkAbout03-2558
Andrew c. sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechaniosburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (FaX)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
03 - .).5':)-r
CIVIL TERM
BRENDA L. BELAND,
Defendant
IN DIVORCE
NOTICE TO DEFEND AND CLAIM RIGHTS
You have been sued in Court. If you wish to defend against
the claims set forth in the following pages, you must take prompt
action. You are warned that if you fail to do so, the case may
proceed against you and a decree in divorce or annulment may be
entered against you by the Court. A judgment may also be entered
against you for any other claim or relief requested in these
papers by the Plaintiff. You may lose money or property or other
rights important to you, including custody or visitation with your
children.
When the ground for the divorce is indignities or
irretrievable breakdown of the marriage, you may request marriage
counseling. A list of marriage counselors is available in the
Office of the Prothonotary at the Cumberland County Courthouse,
Carlisle, Pennsylvania.
IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY,
LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS
GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PENNSYLVANIA 17013
(717) 249-3166
Andrew C. Sheely, Esqu'
PA. I.D. No. 62469
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
717 697-7050
Attorney for Plaintiff
BY
Andrew c. Sheely, Esquire
127 S. Market Street
... P.O.. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - .:1517
CIVIL TERM
IN DIVORCE
DIVORCE COMPLAINT
1. Plaintiff is MICHAEL J. BELAND, an adult individual who
currently resides at 712 Breezewood Drive, Mechanicsburg,
Cumberland County, Pennsylvania.
2. Defendant is BRENDA L. BELAND, an adult individual who
resides at 216 Stoner Drive, Mechanicsburg, Cumberland County,
Pennsylvania.
3. Plaintiff and Defendant have been bona fida residents of
the Commonwealth of Pennsylvania for at least six (6) months
immediately previous to the filing of this Complaint.
4. Plaintiff and Defendant were married on July 12, 1996 in
Mechanicsburg, Cumberland County, Pennsylvania.
5. There have been no prior actions of divorce or annulment
between the parties.
6. Neither party is a member of the armed forces of the
United States of America.
7. Plaintiff has been advised of the availability of
marriage counseling and understands that he may have the right to
request that the court require the parties hereto to participate
in counseling.
Date: MAY 30, 2003
Respectfully submitted,
~()
Andrew C. Sheely, Esquire
Attorney for Plaintiff
PA ID No. 62469
P.O. Box 95
127 S. Market Street
Mechanicsburg, PA 17055
717-697-7050
3
VERIFICATION
I verify that the statements made in this Complaint are true
and correct. I understand that false statements herein are made
subject to penalties of 18 Pa.C.S.A. Section 4904, relating to
unsworn falsification to authorities.
Date: MAY 3?, 2003
m 'cArxd ffn Adaro/-
Michael J. Be nd
Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA 1D NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 -
CIVIL TERM
IN DIVORCE
AFFIDAVIT
deposes and says:
Michael J. Beland, being duly sworn according to law,
counseling and understand that I may request that the Court
(1) I have been advised of the availability of marriage
require that my spouse and I participate in counseling.
(2) I understand that the Court maintains a list of
marriage counselors in the Domestic Relations Office, which list
is available to me upon request.
(3) Being so advised, I do not request that the Court
require that my spouse and I participate in counseling prior to a
Divorce Decree being handed down by the Court.
the penalties of 18 Pa.C.S.A. Section 4904 relating to unsworn
I understand that false statements herein are made subject to
falsification to authorities.
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Andrew c. Sheely, Esquire
127 s. Market street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - 2558
CIVIL TERM
IN DIVORCE
ACCEPTANCE OF SERVICE
I, Samuel L. Andes, Esquire, hereby accept service of the
divorce complaint on behalf of Brenda L. Beland, Defendant, and
further certify that I am authorized to do so in accordance with
PA. R.C.P No. 402 (b).
Date: June 10
,
2003
~~~.a
el L. des, squire
525 North 12th Street
Lemoyne, PA 17043
717-761-5361
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.,
CIVIL ACTION NO. 02-2558
Plaintiffs
vs.
CAPITAL BLUE CROSS,
Defendant
DEFENDANT CAPITAL BLUE CROSS' PRELIMINARY OBJECTIONS
Defendant Capital Blue Cross ("Capital"), by and through its attorneys, Stevens &
Lee, hereby file these preliminary objections to the Complaint filed by Shanon D. Holcomb and
HCC of Carlisle, P.C. Judge Oler has previously ruled on matters in this case.
1. Plaintiffs' Complaint contains 83 paragraphs and asserts three counts.
2. Count I is a claim for defamation by both Plaintiffs against Capital.
3. Count II is a claim by both Plaintiffs for interference with contract.
4. Count III is asserted only by HCC of Carlisle and is a claim for disparagement.
5. The Complaint devotes a number of paragraphs to describing conduct that is not
the subject of this case, but instead describes an action involving different plaintiffs and that is
pending in Franklin County. [Complaint, '\['\[10-21].
6. These averments are irrelevant to this case and should be stricken.
7. Finally, at paragraph 24, Plaintiffs get to allegations arguably relevant this case.
8. In paragraph 24, they allege:
CBC communicated to patients, agencies and other insurance
providers defamatory and disparaging communications which
placed Dr. Holcomb and HCC of Carlisle, P.C. in a false light by
1
SLl 368763v1l02109.071
stating and/or suggesting that they unethically and improperly
provided unnecessary services and engaged in improper and
unethical billing practices.
[Complaint, ~ 24].
This paragraph is as specific as the Complaint gets with respect to defamation.
9. Even though Plaintiffs had 14 months to investigate potential claims and conduct
the pre-complaint discovery they said they needed to meet the specificity requirements for
defamation proceedings, there is not a single allegation in this 83-paragraph Complaint that
identifies which patients, which agencies or which insurance providers were the recipients of the
alleged defamatory statements, the substance ofthe alleged defamatory statements, when they
were said, or by whom.
10. They try to excuse this pleading deficiency by contending that it would be
"contrary to legitimate privacy interests of third parties (e.g., patients) and would be unduly
burdensome to attempt to identify all such communications in this Complaint.. .." [Complaint, ~
26].
II. Plaintiffs have never -- in all the papers filed with this Court previously -- asserted
that there were obstacles to their meeting the specificity required for pleading a defamation
claim.
12. What the Complaint does contain are internal inconsistencies.
13. On the one hand, Plaintiffs claim that they have so much evidence of defamation,
it would be burdensome to include any of it in the Complaint. [Complaint, ~ 26].
14. On the other hand, Plaintiffs claim that they cannot be more specific in their
Complaint because Capital took a narrow view of the areas that could be explored at the
depositions allowed by the Court. [Complaint, ~ 50].
2
SLI 368763vl/02109.071
15. Although Plaintiffs admit that they should have filed a motion to compel when
they were dissatisfied with the depositions, they decided it was better to file a non-specific
complaint and keep their fingers crossed that something would turn up in discovery after the
pleadings were closed. [Complaint, ~ 52].
16. The Complaint contains three counts; however, each count is based on the same
allegedly defamatory statements.
17. Count I alleges a cause of action for defamation and is based on the non-specific
defamatory statements summarized above.
18. The same is true for Count II, the claim for interference with contract.
19. Paragraph 72 of Count II alleges "the defamatory conduct detailed above was
intended to interfere with contractual relations. . .."
20. Similarly, in paragraphs 57 and 78 of the Complaint (with respect to Count III for
disparagement), Plaintiffs allege only that the wrongful conduct they describe generally in the
preceding paragraphs caused "the corporate reputation ofHCC of Carlisle, P.C." to be "defamed
and disparaged" and resulted in "a general disparagement ofthe services provided by HCC of
Carlisle, P.C." [Complaint, n 57 and 78].
21. Also missing from the disparagement claim are allegations of actual pecuniary
loss.
22. The Complaint's only allegations of disparagement damages are found in
paragraphs 80 and 81.
23. In these paragraphs, Plaintiffs allege they have lost unidentified clients and their
unidentified relatives or friends as potential referrals.
3
SLI 368763vIl02109.071
24. Plaintiffs also fail to quantify the amount of money damages they have lost as a
result of this allegedly lost business.
25. Although the Complaint contains 83 paragraphs, it lacks the particularity required
for defamation claims (and other claims based on defamation), and should be dismissed with
prejudice for the reasons detailed below.
The Complaint Fails To Set Forth Defamation (Count I), Intentional Interference With
Contract (Count II) And Disparaeement (Count III) With Specificity.
26. Although the Complaint contains three claims against Capital, Plaintiffs admit
that all of these claims stem from the same basic allegation, that Capital allegedly defamed
Plaintiffs and caused them to lose business and its reputation. [Complaint, ~~ 57, 72 and 78].
27. Accordingly, Plaintiffs' failure to satisfy the heightened pleading requirements of
a defamation claim means all three counts of the Complaint fail and must be dismissed.
28. There is no dispute about the law in Pennsylvania on pleading defamation: a
complaint for defamation must, on its face, identify specifically what allegedly defamatory
statements were made, and exactly to whom they were made. Moses v. McWilliams, 549 A.2d
950,960 (pa. Super. 1988) (emphasis added) (citing Gross, 302 A.2d at 371); see also laindl v.
Mohr, 637 A.2d 1353, 1358 (Pa. Super. 1994).
29. Failure to plead with specificity "will subject the complaint to dismissal. . . . "
Moses, 549 A.2d at 960.
30. Plaintiffs' Complaint fails to plead defamation with the required specificity.
31. The Complaint fails to plead:
(a) the identify of the person(s) to whom the alleged defamatory statements
were made;
4
SLl 368763v1/02109.071
(b) the substance of the alleged defamatory statements;
(c) the date of the allegedly defamatory statements;
(d) who made the allegedly defamatory statements; or
(e) how the allegedly defamatory statements were made.
32. Dismissal ofthe Complaint is appropriate because (1) Plaintiffs were given the
opportunity and took pre-complaint discovery because it claimed it needed to obtain more
specific information and (2) it is improper to plead defamation without specificity and then seek
to obtain the required specificity through post-pleading discovery.
Count III Of The Complaint For Business Disparagement Should Be Dismissed Because
Plaintiffs Have Not Allel!ed Anv Actual Damal!es.
33. In Count III ofthe Complaint, Plaintiffs allege that Capital disparaged HCC of
Carlisle's business reputation.
34. In support of this claim, Plaintiffs allege that they have lost existing and
prospective contractual relations with patients and relatives and friends of patients. [Complaint,
~~ 80 and 81].
35. These two paragraphs contain Plaintiffs only allegations with respect to
disparagement damages.
36. These allegations are insufficient to sustain a claim for business disparagement.
37. Plaintiffs' claim for disparagement fails to identify by name even one patient who
has stopped treating with Plaintiffs as a result of allegedly defamatory statements by Capital.
38. They fail also to allege any specific monetary loss of business that resulted from
Capital's alleged defamatory statements.
5
SLJ 368763vIl02109.071
39. Plaintiffs should not be given the opportunity to amend their Complaint because
they have had ample time to obtain all the specific information they needed to file a legally
sufficient complaint for disparagement.
Alternatively, Paragraphs 10-21 and 50-51 Of The Complaint Should Be
Stricken Because They Are Not Pertinent To This Case, and Paragraphs 43-47
Should be Stricken Because Thev Improperlv Plead Evidence.
40. Plaintiffs have violated the Pennsylvania Rules of Civil Procedure by including
scandalous and impertinent information and by pleading evidence in the Complaint.
41. Accordingly, to the extent the entire Complaint is not dismissed for its legal
insufficiency, paragraphs 10-21,43-47 and 50-51 should be stricken.
42. Under Pennsylvania Rule of Civil Procedure 1019(a), "the material facts on which
a cause of action or defense is based shall be stated in concise and summary form." Pa. R. Civ.
P. 1019(a).
43. When a complaint fails to conform to this rule and instead contains "scandalous
and impertinent" information, this information can be stricken. Pa. R. Civ. P. 1028(a)(2).
44. Allegations are "scandalous and impertinent" when they are "immaterial and
inappropriate to the proof of the cause of action." Common CauseIPennsvlvania v. Commw.,
710 A.2d 108, 115 (Pa. Commw. Ct. 1998).
45. Paragraphs 10 through 21 of the Complaint contain allegations that have no
bearing or relevance to the case at bar.
46. Rather, these paragraphs detail separate and independent litigation currently
pending in Franklin County, to which Plaintiffs admit they are not parties. [Complaint, 1 15].
47. Plaintiffs do not set forth any reasons for the inclusion of these paragraphs in the
Complaint.
6
SLl 368763vI/02109.071
48. The only plausible reason for including these allegations is to embarrass and
prejudice Capital, which the pleading rules prohibit.
49. Accordingly, paragraphs 10-21 ofthe Complaint should be stricken.
50. Moreover, paragraphs 50 and 51 contain Plaintiffs' untimely complaints about the
way in which the pre-complaint depositions were conducted.
51. Plaintiffs admit they did not follow the proper procedure of filing a motion to
compel when they were dissatisfied with the pre-complaint depositions. [Complaint, '\[52].
52. It is improper for them to include averments that include their gripes about it now.
53. Paragraphs 50 and 51 do not set forth any material facts in support of Plaintiffs'
claims for defamation, interference with contract or disparagement.
54. Accordingly, those paragraphs should be stricken.
55. Finally, Rule 1019(a)'s requirement that a complaint contain only "material facts"
means that the complaint should not contain evidence. Commw. v. Bethlehem Steel Com., 380
A.2d 1308,1313 (Pa. Commw. Ct. 1977).
56. Paragraphs 43-47 of the complaint violate this rule.
57. Plaintiffs' use of the words "it is believed and averred" in these paragraphs
demonstrates first that they are not facts of which Plaintiffs have knowledge.
58. Second, the allegations contained in those paragraphs are not material facts that
support Plaintiffs' claims for defamation, but contain the evidence Plaintiffs think they will find
(with a post-complaint fishing expedition) to support their claims against Capital.
59. For example, in paragraphs 45 and 46, Plaintiffs allege that they will be able to
prove defamation because they believe they will uncover evidence to discredit the Capital peer
7
SLl 368763vIl02109.071
reviews that gave rise, in part, to the finding that the services provided by Plaintiffs were not
medically necessary.
60. Such allegations are evidence and not facts, and paragraphs 43-47 of the
Complaint should be stricken for failing to comply with Rule 1019(a).
WHEREFORE, Defendant Capital Blue Cross requests that Plaintiffs' Complaint
be dismissed with prejudice. To the extent the Complaint is not dismissed, paragraphs 10-21,
43-47 and 50-51 should be stricken because they are not pertinent to the claims in this case
and/or plead evidence.
Dated: July ~, 2003
lWU
aniel B. uyett _
Attorney .D. No. 21385
Stacey A. Scrivani
Attorney J.D. No. 84275
111 North Sixth Street
P.O. Box 679
Reading, Pennsylvania 19603
(610) 478-2000
8
SLl 368763v1/02109.071
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Andrew c. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - 2558
CIVIL TERM
IN DIVORCE
STIPULATION AND ORDER FOR DIVISION
OF PENSION BENEFITS ANACOMP, INC 401 (K) PLAN
QUALIFIED DOMESTIC RELATIONS ORDER
AND NOW, this
....APi. 61 ~ _
.,.! day of V4:;?1~
2003, in
accordance with the agreement and stipulat:ion of the parties, it
is hereby Ordered and Decreed as follows:
1. Michael J. Beland, Plaintiff, (hereinafter referred to
as "Participant" has earned benefits unde:r: the Anacomp, Inc. 401
(k) Plan (hereinafter referred to as the "Plan"). Participant and
Brenda L.
Beland (hereinafter referred to as "Alternate
Payee") intend, by this Stipulation and OI:der, to allocate these
benefits between them.
2. This Stipulation and Order is intended to be a Qualified
Domestic Relations Order ("QDRO"), as defined in Section 414(p) of
the Internal Revenue Code of 1986, as amended ("Code") and Section
206 of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA").
addresses for Participant and Alternate Payee are set forth below:
3. Social Security Numbers, dates of birth and current
PARTICIPANT - Michael J. Beland
Social Security NUmber
Date of Birth:
Address:
145-50-3902
October 12, 1954
712 Breezewood Drive
MechanicsbuD}, PA 17055
ALTERNATE PAYEE - Brenda L. Belanq
Social Security NUmber
Date of Birth:
Address:
208-42-0505
October 6, 1954
216 Stoner Dr'ive
Mechanicsburg, PA 17055
4. The current address of the Plan is set forth below:
The Plan
Name:
Anacomp, Inc. 401 (k) Plan
c/o Paul Najar, General Counsel
Anacomp, Inc.
15378 Avenue of Science
San Diego, CA 92128
ordered to keep one another timely apprised of their current
5. Part.icipant., Alt.ernat.e Payee and the Plan are each
addresses for receipt of notices.
ALTERNATE PAYEE'S INTEREST IN THE PLAN
6. Alt.ernat.e Payee's Plan interest ('''Plan Interest") shall
be Fourteen Thousand Five Hundred Dollars ($14,500.00) of the
total value of the Participant's vested account(s) in the Plan as
of the Date of this Order.
2
7. In the event Alternate Payee does not request or
receive an immediate distribution from the Plan as soon as
administratively feasible after this Order is determined to be a
QDRO by the Plan Administrator, the Alternate Payee's Plan
Interest plus the earnings/losses attributable to such Interest
from the date Alternate Payee's Plan Interest is determined to
the date of segregation, shall be segregated in a separate account
for Alternate Payee to be held by the Plan until distribution.
Such separate account will be credited with its allocable share of
the income and losses of the Plan but shall not be credited with
any future contributions or forfeiture. Alternate Payee shall
have the same ability to designate the investment of the amounts
in the Alternate Payee's separate account as the Participant
would otherwise have had with respect to those amounts. In
accordance with the terms of the Plan, at such time as Alternate
Payee may request in writing or as otherwise required under the
Internal Revenue Code, the Plan shall distribute the amount in
Alternate Payee's separate account to Alternate Payee in a
single lump sum payment or in such other form of benefit permitted
under the Plan and selected by the Alternate Payee. In no event
shall benefits be paid in the form of a qualified joint and
survivor annuity.
8. Alternate Payee may designate a beneficiary on the
appropriate form provided by the Plan Administrator to receive
3
Alternate Payee's Plan Interest in the event of Alternate
payee's death prior to distribution of such Plan Interest. In
the event that Alternate Payee dies priOJ~ to payment of
Alternate Payee'S Plan Interest pursuant to this Order, such
Plan Interest shall be paid to Alternate Payee's designated
beneficiary, if any, otherwise to Alternate Payee's estate.
9. Each party shall be responsible for and pay any taxes
due in connection with his or her receipt of distribution from the
Plan. The Plan shall withhold applicable federal and state income
taxes on any direct distribution to Alternate Payee as required
by law.
MISCELLANEOUS
10. From the date of this Order and thereafter, the
Participant shall have no further right or interest in any
portion of the benefits under the Plan which are assigned to the
Alternate Payee pursuant to this Order.
11. While it is anticipated that the Plan will pay directly
to Alternate Payee the benefit awarded to him or her,
Participant is designated a constructive tr'ustee to the extent he
receives any benefits under the Plan that arEl due Alternate
Payee. If Participant receives any of the benefits due
Alternate Payee under the Plan, Participant is ordered and
decreed to pay the benefit defined above directly to Alternate
Payee within ten (10) days after receipt.
4
12. This Order is made pursuant to the domestic relations
law of the Commonwealth of Pennsylvania as it relates to the
provision of marital property rights as defined therein between
spouses in actions for divorce.
13. The Plan shall not be required by the terms of this
Order to provide any type or form of benefit, or any option, not
otherwise provided under the Plan, nor to increase the amount of
any benefits the Plan provides. This Order shall not require the
Plan to provide benefits to the Alternate Payee which are
required to be paid to another Alternate Payee under another
order previously determined to be a QDRO, within the meaning of
Section 414(P) of the Code and Section 206(D) of ERISA. In the
case of any conflict between the terms of the Plan and the terms
of this Order, the terms of the Plan shall prevail.
14. This Order shall not constitute QDRO until such time
that the Plan Administrator determines that the Order is qualified
under Section 414(P) of the Code and Section 206(D) of ERISA.
15. Each party shall, upon receiving a request, perform any
act reasonably necessary to carry into effect or verify the
carrying into effect of the terms of this Order.
16. The Court retains jurisdiction to amend this Order for
the purpose of establishing or maintaining this Order as a
Qualified Domestic Relations Order and/or to effectuate the
parties' intentions.
5
THE FOREGOING IS AGREED TO BY:
DATED:
/ / oJ. <;-03
/}7J/cj-,ad~ A-t., ramal
Michael J. B and, Participant
DATED: 2' IV\}.] 2:oV"3
~IC r--ic L. k IG^ c~
Brenda L. Beland, Alternate Payee
An~~2~ire
~ney n.~pant
~~n;e;\~~Uire
Attorney for Alternate Payee
DATED: II-t-';) - ZD (} "3
DATED: 2L /frhl 2.Q)"3
BY THE COURT,
J.
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II
PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT, made this a% day of _ 4rk.Ab?7Lt..v2/ ,2003,
is by and between:
MICHAEL J. BelAND, of 712 Breezewood Drive in Mechanicsburg, Pennsylvania,
hereinafter referred to as "Husband"; and
BRENDA l. BELAND, of 216 Stoner Drive, Apartment D in Mechanicsburg,
Pennsylvania, hereinafter referred to as "Wife."
WITNESSETH:
WHEREAS, the parties hereto are Husband and Wife, having been married on 12
July 1996 and no children having been born of this marriage; and
WHEREAS, certain difficulties have arisen between the parties hereto which have
made them desirous of living separate and apart from one another and Husband has
initiated an action in divorce filed to No. 03-2558 Civil Term before the Court of Common
Pleas of Cumberland County, Pennsylvania;
WHEREAS, the parties hereto, Wife being represented by Samuel L. Andes, Esquire,
and Husband by Andrew C. Sheely, Esquire, have each exchanged full and complete
information as to the property, assets, and liabilities owned and owed by each and have
disclosed to each other and to their respective attorneys full information as to the financial
status of both parties hereto; and
WHEREAS, the parties hereto have mutually entered into an agreement for the
division of their assets, the provision for the liabilities they owe, and provision for the
resolution of their mutual differences, after both parties have had full and ample
opportunity to consult with their respective attorneys, and the parties now wish to have
that agreement reduced to writing.
NOW, THEREFORE, the parties hereto, in consideration of the above recitals, the
mutually made and to be kept promises set forth hereinafter, and for other good and
valuable considerations, and intending to be legally bound and to legally bind their heirs,
successors, assigns, and personal representatives, do hereby covenant, promise, and
agree as follows:
Page 1 of 8
II
1. RESIDENCE AT 712 BREEZEWOOD DRIVE. Wife covenants and agrees to
convey to Husband, as his sole and separate property, the real estate presently owned by
the parties hereto as tenants by the entireties and being known as 71 2 Breezewood Drive
in Mechanicsburg, Pennsylvania, subject, however, to all liens, encumbrances, easements,
and restrictions presently existing thereon. In furtherance of this Agreement, Wife
represents that she has, as of the date of this Agreement, executed, acknowledged, and
delivered to husband or his representative, a deed to the real estate, to convey the same
to Husband.
2. MORTGAGE ON RESIDENCE. In consideration of the conveyance of the
property at 712 Breezewood Drive by Wife to Husband, Husband agrees that he shall,
within thirty days of the date of this Agreement, refinance the debt owed to Chase
Manhattan Mortgage Company which is secured by a mortgage against the said property
so as to obtain Wife's unconditional release from that obligation, or Husband represents
that he has already accomplished such refinancing and the release of Wife from any
further liability, in which event he shall provide proof of such to Wife within ten (10) days
of the date of this Agreement. In either event, Husband shall be responsible to pay and
satisfy, in accordance with their terms, all debts and liabilities arising out of the parties'
ownership or occupancy of the property and shall further indemnify and save Wife
harmless from any loss, cost, or expense caused to her by his failure to do so.
3. HUSBAND'S ANACOMP 401 IKI PLAN. The parties acknowledge that, during
their marriage, Husband acquired certain benefits within a 401 (k) Plan operated by his
employer, Anacomp, Inc., which is generally known as the Anacomp Savings Plus Plan.
The parties further agree that they shall divide and distribute such benefits as follows:
A. Husband shall transfer to Wife, in the form of a tax-free rollover
from his account within the said plan into an individual retirement account in
Wife's name alone, assets, funds, or benefits within the plan having a value
of $14,500.00 as of the date of this Agreement, increased or decreased by
investment results within the plan on said sum from the date of this
Agreement until the date such transfer is complete.
B. The transfer of such assets contemplated by Sub Paragraph A
hereof will be accomplished by a Qualified Domestic Relations Order which
Page 2 of 8
II
Husband shall, at his sole expense, obtain in the divorce action now pending
between the parties.
C. Upon the transfer of the funds from Husband's account within the
said plan, in accordance with this Agreement, Husband shall retain as his
sole and separate property the remaining balance within his account in the
said plan, free of any claim by Wife hereafter.
The parties shall cooperate with each other and their attorneys as necessary to promptly
complete the transfer contemplated by this Paragraph.
4. WIFE'S RETIREMENT PLAN. The parties acknowledge that, during the
marriage, Wife acquired certain benefits within the Jackson Gastroenterology Retirement
Plan, and the parties have exchanged information about such benefits and the amount by
which they increased during the marriage of the parties. Being aware of such assets,
Husband does hereby waive, release, and relinquish any claim to or interest in said funds
or account and confirms that account and all of the funds and assets therein to be the
sole and separate property of Wife hereafter, free of any further claim by him.
5. OTHER INVESTMENTS. The parties acknowledge that, during the marriage,
Husband obtained certain stock in Home Depot, which they believe has a value of this
time of approximately $1,580.00 and an account with ABFS Investments which they
believe has a value at this time of approximately $14,200.00. Wife does hereby waive,
release, and relinquish any claim to or interest in said accounts and confirms them to be
the sole and separate property of Husband hereafter, free of any claim by her.
6. CASH PAYMENT TO WIFE. In consideration of the distribution and division of
the assets set forth above, Husband shall pay to Wife, as equitable distribution of marital
property and not as alimony, the sum of $17,000.00. The payment shall be made in cash
or certified funds and shall be delivered to Wife contemporaneously with the execution
and delivery of this Agreement or the delivery of the Deed conveying the property at 71 2
Breezewood Drive to Husband, whichever first occurs.
7. PERSONAL PROPERTY. The parties hereto mutually agree that they have
effected a satisfactory division of the furniture, household furnishings, appliances, and
other household and personal property between them and they mutually agree that each
party shall, from and after the date hereof, be the sole and separate owner of all such
tangible personal property presently in his or her possession, whether said property was
Page 3 of 8
II
heretofore owned jointly or individually by the parties hereto, and this agreement shall
have the effect of an assignment or receipt from each party to the other for such property
as may be in the individual possessions of each of the parties hereto, the effective date of
said bill of sale to be contemporaneous with the date of the execution of this Agreement.
8. WAIVER OF ALIMONY. SUPPORT AND ALIMONY PENDENTE LITE. The
parties aCknowledge that they are aware of the income, education, income potential, and
assets and holdings of the other or have had full and ample opportunity to become familiar
with such items. Both parties acknowledge that they are able to support and maintain
themselves comfortably, without contribution from the other beyond that as provided for
in this Property Settlement Agreement, upon the income and assets owned by each of
them. The parties hereby accept the mutual covenants and terms of this Agreement and
the benefits and properties passed to them hereunder in lieu of any and all further rights
to support or alimony for them self, counsel fees, and alimony pendente lite at this time
and during any and all further or future actions of divorce brought by either' of the parties
hereto and the parties do hereby remise, release, quit claim, and relinquish forever any
and all right to support, alimony, alimony pendente lite, counsel fees and expenses
beyond those provided for herein, during the pendency of or as a result of any such
actions, as provided by the Divorce Code of Pennsylvania or any other applicable statute,
at this time and at any time in the future.
9. WAIVER OF EQUITABLE DISTRIBUTION. The parties aCknOWledge that each
of them have had a full and ample opportunity to consult with counsel of their choice
regarding their claims arising out of the marriage and divorce and that they have
specifically reviewed their rights to the equitable distribution of marital property, including
rights of discovery, the right to compel a filing of an Inventory and Appraisement, and the
right to have the court review the assets and claims of the parties and decide them as
part of the divorce action. Being aware of those rights, and being aware of the marital
property owned by each of the parties, the parties hereto, in consideration of the other
terms and provisions of this agreement, do hereby waive, release and quitclaim any
further right to have a court or any other tribunal equitably distribute or divide their marital
property and do hereby further waive, release and quitclaim any and all claim against or
interest in assets now currently in the possession or held in the name of the other, it
being their intention to accept the terms and provisions of this agreement in full
Page 4 of 8
II
satisfaction of all of their claims to the marital property of the parties and the equitable
distribution of the same.
10. WAIVER OF ESTATE RIGHTS. Husband releases his inchoate intestate rights
in the estate of Wife and Wife releases her inchoate intestate rights in the estate of
Husband, and each of the parties hereto by these presents for himself or herself, his or
her heirs, executors, administrators, or assigns, does remise, release, quit claim, and
forever discharge the other party hereto, his or her heirs, executors, administrators, or
assigns, or any of them, of any and all claims, demands, damages, actions, causes of
action or suits of law or in equity, of whatsoever kind or nature, for or because of any
matter or thing done, omitted, or suffered to be done by such other party prior to the date
hereof; except that this release shall in no way exonerate or discharge either party hereto
from the obligations and promises made and imposed by reason of this agreement and
shall in no way affect any cause of action in absolute divorce which either party may have
against the other.
11. WAIVER OF PROPERTY CLAIMS AND ESTATE CLAIMS. Except as herein
otherwise provided, each party hereto may dispose of his or her property in any way, and
each party hereby expressly waives and relinquishes any and all rights he or she may now
have or hereafter acquire, under the present or future laws of any jurisdiction, to share in
the property or the estate of the other as a result of the marital relationship, including,
without limitation, the right to equitable division of marital property, alimony, alimony
pendente lite, and counsel fees, except as provided for otherwise in this Agreement,
dower, courtesy, statutory allowance, widow's allowance, right to take in intestacy, right
to take against the will of the other, and right to act as administrator or executor of the
other's estate, and each will, at the request of the other, execute, acknowledge, and
deliver any and all instruments which may be necessary or advisable to carry into effect
this mutual waiver and relinquishment of all such interests, rights, and claims.
12. REPRESENTATION AS TO NO DEBTS. The parties hereto mutually represent
to the other than neither of them has incurred any debts in the name of the other not
previously disclosed or provided for in this agreement. Each of the parties hereby
represents to the other that neither one of them have incurred or contracted for debts in
the name of the other or for which the other is or would be legally liable from and after
the date of the parties' separation. Both parties hereto mutually agree and promise that
Page 5 of 8
/I
'I
neither will contract or otherwise incur debts in the other's or joint names without the
prior permission and consent of the other party hereto. Both parties hereto represent and
warrant to the other party that they have not so contracted any debts unbeknownst to
the other up to the time and date of this Agreement.
13. RELEASE. The parties acknowledge that the purpose of this agreement is to
divide all of their marital property, resolve all of the economic claims between them, and
terminate and conclude any and all claims one party may have against the other. The
parties acknowledge that each of them has had ample opportunity to consult with an
attorney of their choice and to obtain legal representation with regard to this agreement
and to the claims which they are terminating hereby. Consequently, each of the parties,
for themselves, their heirs, successors, and assigns, does hereby accept the terms and
provisions of this agreement in full satisfaction of any claims, of any nature, they may
have, or may ever have had, against the other party and each of the parties does hereby
waive, relinquish, release, and surrender forever any claim they have against the other
party, arising out of their marital relationship, or any other dealing between the parties
prior to the date of this agreement, provided, however, that this release shall not
exonerate either of the parties from the obligations they expressly make in this agreement,
which shall survive the date of this agreement until such obligations are fully performed.
14. CONCLUSION OF DIVORCE. The parties acknowledge that this agreement is
made in contemplation of the conclusion by both of them of an action in divorce which
has been filed or will be filed shortly by one of the parties hereto. Both of the parties
hereto agree that they shall, contemporaneously with the execution of this agreement,
execute and deliver to their respective attorney or attorneys, an Affidavit of Consent
under Section 3301 (c) of the Divorce Code, consenting to the entry of a final decree in
divorce, and a Waiver of further notice for the entry of such decree. Both parties agree
that they shall accept the terms and provisions of this agreement in full satisfaction of any
claims they may have under the Divorce Code of the Commonwealth of Pennsylvania,
including, but not limited to, alimony, alimony pendente lite, counsel fees, equitable
distribution, and the like.
15. CHOICE OF LAW. This Agreement shall be interpreted, applied and enforced
in accordance with the laws of, and by the courts of, the Commonwealth of Pennsylvania.
Page 6 of 8
"
16. SEVERABILITY. If for any reason whatsoever any part of this Agreement shall
be declared void or invalid, only such part shall be deemed void and in all other respects
this Agreement shall remain valid and fully enforceable.
17. NON-WAIVER. The waiver of any term, condition, clause, or provision of this
Agreement shall in no way be deemed or considered a waiver of any other term,
condition, clause or provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day
and year first above written.
t!:s~ C6L3
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MICHAEL J. BE AND
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BRENDA L. BELAND
Page 7 of 8
II
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS.:
On this, the~1\ day of N(j.J{','ier , 2003, before me, the undersigned
officer, personally appeared MICHAEL J. BELAND known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged
that said person executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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My Co mission Expi s:
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COMMONWEALTH OF PENNSYLVANIA
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COUNTY OF CUMBERLAND
On this, the ~/61 day of ~ 2003, before me, the undersigned
officer, personally appeared BRENDA L. BELAND known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and aCknowledged that
said person executed same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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My mission Expires:
NOTARIAL SEAL
AMYM. HARIlINS. NOTAIlY PUBLIC
IlMOVNE BORO.. CUMBERLAND COUNTY
MY COMMISSION EXPIRES JAN. 31. 2005
Page 8 of 8
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Andrew C. Sheely, Esquire
127 S. Market street
P.o. Box 95
Mechanicsburg, PA 17055
PA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
: 03 - 2558
CIVIL TERM
IN DIVORCE
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301(c) of the
Divorce Code was filed on May 30, 2003.
2. The marriage of Plaintiff and Defendant is irretrievably
broken and ninety (90) days have elapsed from the date of filing
the Complaint.
3. I consent to the entry of a final decree of divorce after
service of notice of intention to request entry of the decree.
I verify that the statements made in this Affidavit are true
and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Section 4904 relating to
unsworn falsification to the authorities.
DATE:
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Andrew C. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
FA ID NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - 2558
CIVIL TERM
IN DIVORCE
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301(c) of the
Divorce Code was filed on May 30, 2003. I a.cknowledge that my
attorney filed an acceptance of service form on my behalf on June
16, 2003.
2. The marriage of Plaintiff and Defendant is irretrievably
broken and ninety (90) days have elapsed from the date of filing
the Complaint.
3. I consent to the entry of a final decree of divorce after
service of notice of intention to request en.try of the decree.
I verify that the statements made in this Affidavit are true
and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Sec1:ion 4904 relating to
unsworn falsification to the authorities.
DATE:
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Andrew c. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA 10 NO. 62469
717-697-7050 (Phone)
717-697-7065 (FaX)
MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - 2558
CIVIL TERM
IN DIVORCE
WAIVER OF NOTICE OF INTENTION TO REQUEST
ENTRY OF A DIVORCE DECREE UNDER
S3301 (C) OF THE DIVORCE CODE
1. I consent to the entry of a final decree of divorce
without notice.
2. I understand that I may lose rights concerning
alimony, division of property, lawyer's fees or expenses if I do
not claim them before a divorce decree is granted.
3. I understand that I will not bE' divorced until a
divorce decree is entered by the Court and that a copy of the
decree will be sent to me immediately after it is filed with the
Prothonotary.
I verify that the statements made in this affidavit are
true and correct. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S.A" Section 4904
relating to unsworn falsification to the authorities.
DATE:
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Andrew c. Sheely, Esquire
127 S. Market Street
P.O. Box 95
Mechanicsburg, PA 17055
PA 1D NO. 62469
717-697-7050 (Phone)
717-697-7065 (Fax)
WAIVER OF NOTICE OF INTENTION TO REQUEST
ENTRY OF A DIVORCE DECREE UNDER
S3301 (C) OF THE DIVORCE CODE
1. I consent to the entry of a final decree of divorce
without notice.
2. I understand that I may lose rights concerning
alimony, division of property, lawyer's fees or expenses if I do
not claim them before a divorce decree is granted.
3. I understand that I will not: be divorced until a
divorce decree is entered by the Court and that a copy of the
decree will be sent to me immediately after' it is filed with the
Prothonotary.
I verify that the statements made in this affidavit are
true and correct.
I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S.A. Section 4904
relating to unsworn falsification to the authorities.
DATE:
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MICHAEL J. BELAND,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
BRENDA L. BELAND,
Defendant
03 - 2558
CIVIL TERM
IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Kindly transmit the record, together with the following
information to the Court for entry of a Divorce Decree:
1. Grounds for Di vorce: Irretrievable breakdown under
Section 3301 (C) of the Pennsylvania Divorce Code.
2. Date and Manner of service of the complaint:
Acceptance of Service by counsel filed June 16, 2003.
3. Complete either paragraph (a) or (b).
(a) Date of execution of affidavit of consent required by
Section 3301 (C) of the Pennsylvania DivorCE! Code: by Plaintiff on
November 25, 2003 and by Defendant on November 21, 2003.
(b) (1) Date of execution of the affidavit required by
Section 3301 (d) of the Divorce Code: Not applicable: (2) Date of
filing and service of the plaintiff's affidavit upon the
respondent: Not applicable.
4. Related claims pending: None. The marital
settlement agreement dated November 21, 2003 and Qualified
Domestic Relations Order are incorporated but not merged in the
Decree in Divorce.
5. Complete either (a) or (b).
(a) Date and manner of service of the notice of intention
to file praecipe to transmit record, a copy of which is attached:
Not applicable
(b) Date Plaintiff's Waiver of Notice in Section 3301 (C)
was filed with the Prothonotary. November 26 . 2003.
Divorce
Date Defendant's Waiver of Notice in Section
wa' filed wi'h 'he prO'hono'~
A drew C. Sheely, E
Attorney for Plainti
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IN THE COURT OF COMMON PLEAS
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OF CUMBERLAND COUNTY
.
STATE OF
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MICHAEL J. BELAND,
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PLAINTIFF
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VERSUS
BRENDA L. BELAND,
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DEFENDANT
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AND NOW,
DECREED THAT
AND
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PENNA.
No.
03
2558
CIVIL ACTION - LAW
IN DIVORCE
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:f. Of;+: Of Of. '+' Of 'f +' '+: +:+
DECREE IN
DIVORCE
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, IT is ORDERED AND
MICHAELJ. BELAND
, PLAI NT] FF,
BRENDA L. BELAND
, DEFENDANT,
ARE DIVORCED FROM THE BONDS OF MATRiMONY.
THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE
YET BEEN ENTERED;
BEEN RAiSED OF RECORD IN THIS ACTiON FOR WHICH A FINAL ORDER HAS NOT
The Marital Settlement Agreement dated November 21,2003 and Qualified Domestic
Relations Order excecuted herewith are incorporated but not merged in this Decree in Divorce.
B
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PROTHONOTARY
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Plaintiffs,
Civil Action
No. 02-2558
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.
v.
CAPITAL BLUE CROSS,
Defendant.
DEFENDANT CAPITAL BLUE CROSS' MOTION TO COMPEL
AGAINST PLAINTIFFS
Defendant Capital Blue Cross, by and through its attorneys, Stevens & Lee, P.C.
hereby moves the Court for an Order compelling Plaintiffs to respond to the interrogatories and
document requests that have been outstanding for more than 17 months. In support ofthat
motion, Defendant states the following:
I. Plaintiffs commenced this action against Capital by Writ of Summons on May 24,
2002.
2. After limited pre-complaint discovery, Plaintiffs filed their Complaint on July 2,
2003.
3. In the Complaint, Plaintiffs plead vague and general allegations of defamation,
disparagement and interference with contract.
4. These claims of defamation, disparagement and interference, according to the
Complaint, occurred both orally and in writing.
5. Thus, on October 6, 2003, Capital served Plaintiffs with its First Set of Document
Requests and First Set of Interrogatories Directed to Plaintiffs ("First Discovery Requests")
1
SLl 534593v1l02109.071
2
.
seeking information regarding the defamatory and disparaging statements allegedly made by
Capital about Plaintiff. [Copies of the First Discovery Requests are attached hereto as Exhibits
A and B].
6. For example, the First Discovery Requests ask for the identity of patients to
whom the allegedly defamatory and disparaging statements were made, the substance of the
allegedly defamatory and disparaging statements and any documents containing the allegedly
defamatory and disparaging statements.
7. The First Discovery Requests track the allegations in Plaintiffs' Complaint and
ask Plaintiffs to identify the evidence they have to support those allegations.
8. All of the requests in the First Discovery Requests are narrowly tailored to obtain
information that is relevant to the claims asserted by Plaintiffs here.
9. Plaintiffs' responses to the First Discovery Requests were due on or before
November 5, 2003.
10. Plaintiffs did not serve their responses on or before November 5,2003.
11. In fact, to date, more than 17 months after the responses originally were due,
Plaintiffs still have not responded in any fashion to the First Discovery Requests.
12. Over the past 17 months, Capital has repeatedly demanded that Plaintiffs respond
to the First Discovery Requests.
13. Capital's demands have largely been ignored by Plaintiffs.
14. Pursuant to Pa. R.c.P. 4019(a)(I)(vi), (vii) and (viii), the Court is authorized to
enter an appropriate order compelling Plaintiff to respond to the First Discovery Requests.
SLl 534593vl102109.071
3
.
15. Pa. R. Civ. P. 4019 provides that the Court may, on motion, make an appropriate
order if:
. "a party fails to serve answers, sufficient answers or objections to written
interrogatories under Rule 4005";
. "a party, in response to a request for production or inspection made under
Rule 4009, fails to respond that inspection will be permitted as requested or
fails to permit inspection as requested"; or
. "a party or person otherwise fails to made discovery or to obey an order of
court respecting discovery."
Pa. R. Civ. P. 4019(a)(I)(i), (vii) and (viii).
16. The Court should further Order that Plaintiffs' responses be made without
objection.
17. Pennsylvania law is well settled that a party that fails to serve objections to
discovery within the time allotted waives those objections.
18. Pa. R.Civ.P. 4006(b) and 4009.12 provide that a party upon whom interrogatories
or document requests are served shall "within thirty days after.. . service" of the requests serve
an answer including objections.
19. Pennsylvania Courts have determined this language to be mandatory and found
that objections not made within 30 days of service ofthe requests are waived. Nissley v.
Pennsylvania Railroad Co., 259 A.2d 451, 454 (Pa. 1969) (holding plaintiffs failure to respond
to discovery within 30 days waived her right to object to the breadth of the discovery); Burda v.
Cesare, 50 Pa. D. & C.3d 354 (C.C.P. Luzeme 1988) (finding waiver of objections when not
served within 30 days of the date of service of discovery requests).
SLl 534593v1l02109.071
4
20. Plaintiffs' have failed to serve their responses within the required 30 days and
have, therefore, waived all objections.
WHEREFORE, Defendant Capital Blue Cross requests that its motion to compel
against Plaintiffs Shanon Holcomb and HCC of Carlisle, P .C. be granted.
Pursuant to Local Rule 208.2(d) Capital has attempted to resolve this matter
amicably with Plaintiffs' counsel before seeking the Court's intervention. Plaintiffs have largely
ignored Capital's request that Plaintiffs respond to the outstanding discovery.
Motions previously filed in this matter were heard by Judge Oler.
Dated: if!.:Lo.-! 05
STEVENS & LEE
Byliiil!!~-
Attorney 1. . No. 21385
Stacey A. Scrivani
Attorney LD. No. 84275
III North Sixth Street
P.O. Box 679
Reading, Pennsylvania 19603
(610) 478-2000
SLl 534593vl/02109.071
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and HCC OF
CARLISLE, PC,
Plaintiff
CIVIL ACTION
v.
No. 02-2558
CAPITAL BLUE CROSS,
Defendant
DEFENDANT'S FIRST SET OF
DOCUMENT REOUESTS TO PLAINTIFFS
DOCUMENT REOUESTS
Defendant hereby incorporates by reference the Definitions and Rules of
Construction set forth in Defendant's First Set ofInterrogatories to Plaintiffs.
1. All documents that you contend contain defamatory and/or disparaging
communications made by CBC.
ANSWER:
2. All communications referred to in Paragraph 24 of the Complaint.
ANSWER:
SLl 382624v3/02109.071
.) 0\.>
2
3. All the letters and email referred to in Paragraph 25 of the Complaint.
ANSWER:
4. All the numerous letters referred to in Paragraph 26 of the Complaint.
ANSWER:
5. All the complaints referred to in Paragraph 27 ofthe Complaint.
ANSWER:
6. All the solicitations or communications for sham reviews referred to in
Paragraphs 28 and 45 of the Complaint.
ANSWER:
SLl 382624v3/02109.071
8. All the documents containing the claims referred to in Paragraph 32 of
7. All the defamatory and disparaging communications and improper
processing of claims referred to in Paragraph 32 of the Complaint.
ANSWER:
the Complaint.
the Complaint.
SLl 382624v3/02109.071
ANSWER:
9. All the denials of payments for services referred to in Paragraph 33 of
ANSWER:
3
4
10. The complaint to the Department of State you refer to in Paragraphs 29,
30, and 35 of the Complaint.
ANSWER:
II. All documents that contain the direct responses to inquiries of CBC
referred to in Paragraph 34 of the Complaint.
ANSWER:
12. All of the other billing and payment inquiries referred to in Paragraph 34
of the Complaint.
ANSWER:
SLl 382624v3/02109.071
5
13. All the communications to patients, other insurers, and agency
representatives referred to in Paragraph 36 of the Complaint.
ANSWER:
14. All the communications of defamatory and disparaging conduct referred
to in Paragraph 38 of the Complaint.
ANSWER:
15. All the documents containing the baseless denials of payments referred
to in Paragraph 39 of the Complaint.
ANSWER:
SLl 3&2624v3J021G9.071
6
16. All documents that contain the prospective denials referred to in
Paragraph 40 of the Complaint.
ANSWER:
17. All the letters CBC sent to the Pennsylvania Attorney General and the
Pennsylvania Chiropractic Association referred to in Paragraph 41 of the Complaint.
ANSWER:
18. All the denials issued to patients of Dr. Holcomb or HCC of Carlisle,
P.C. referred to in Paragraph 41 of the Complaint.
ANSWER:
SL1382624v3/02109.071
7
19. All the documents containing the avowed procedures referred to in
Paragraph 41 of the Complaint.
ANSWER:
20. All the denials referred to in Paragraph 42 of the Complaint.
ANSWER:
21. All documents containing the comprehensive review process referred to
in Paragraph 42 of the Complaint.
ANSWER:
SLl 382624v3/02109.071
8
22. All documents containing the denials where the comprehensive review
process was not applied as referred to in Paragraph 42 of the Complaint.
ANSWER:
23. All documents that you contend establish CBC's "flagging system"
referred to in Paragraph 43 of the Complaint.
ANSWER:
24. All documents containing the procedures described to the Attorney
General and the Chiropractic Association referred to in Paragraph 43 ofthe Complaint.
ANSWER:
SLl 382624v3/02109.071
9
25. All documents containing the procedures described in patient
information materials referred to in Paragraph 43 of the Complaint.
ANSWER:
26. All documents that you contend contain CBC's allegedly inconsistent
explanations referred to in Paragraph 44 of the Complaint.
ANSWER:
27. All documents containing the claims you alleged should have received
peer reviews referred to in Paragraph 45 of the Complaint.
ANSWER:
SLl 382624v3/02109.071
10
28. All documents containing the reviews you allege were conducted by
consultants whose payments were tied to cost savings as referred to in Paragraph 46 of the
Complaint.
ANSWER:
29. All documents containing the particular reviews referred to in
Paragraph 47 of the Complaint.
ANSWER:
30. All documents containing the general rejection policies referred to in
Paragraph 47 of the Complaint.
ANSWER:
SLl 382624v3/02109.071
11
31. All documents containing the comments of consultants referred to in
Paragraph 47 ofthe Complaint.
ANSWER:
32. All documents that demonstrate the amount (in dollars) of your loss of
income as referred to in Paragraph 48 of the Complaint.
ANSWER:
33. All documents containing the numerous and disparaging
communications referred to in Paragraph 54 of the Complaint.
ANSWER:
SL1382624,,3/02109.011
12
34. All documents that demonstrate the amount oflost income (in dollars)
referred to in Paragraph 55 of the Complaint.
ANSWER:
35. All documents that demonstrate the amount (in dollars) of your loss of
income referred to in Paragraph 57 ofthe Complaint.
ANSWER:
36. All documents that demonstrate the amount (in dollars) of the
administrative costs you contend you incurred as a result of CBC's conduct referred to in
Paragraph 58 ofthe Complaint.
ANSWER:
8LI382624v3/02109.071
13
37. All documents containing the false unprivileged statements referred to in
Paragraph 63 of the Complaint.
ANSWER:
38. All documents containing the defamatory and false light communications
referred to in Paragraph 64 of the Complaint.
ANSWER:
39. All documents containing the communications referred to in Paragraph
65 of the Complaint.
ANSWER:
SU ]82624v3!02109.071
14
40. All documents that contain the defamatory communications referred to in
Paragraph 66 of the Complaint.
ANSWER:
41. All documents that contain the alleged republication of defamatory
statements referred to in Paragraph 67 of the Complaint.
ANSWER:
42. All documents that demonstrate the amount (in dollars) of the direct loss
of income suffered by HCC referred to in Paragraph 69 of the Complaint.
ANSWER:
SL13&2624v3fa21G9.071
15
43. For each patient you contend you lost because of the conduct ofCBC, all
documents relating to each patient, including but not limited to, the services you provided,
patient files, medical documentation, written communications, payment agreements, billing
records, communications from CBC, claim forms, explanations of benefits, denial letters from
CBC, written communications to CBC, and/or written communications to any third party.
ANSWER:
44. For Carolyn Warvesyn, Stephen Brymesser, Juanita Wickard, and the
patients referred to in Paragraph 33 ofthe Complaint, all documents relating to each patient,
including but not limited to, the services you provided, patient files, medical documentation,
written communications, payment agreements, billing records, communications from CBC,
claim forms, explanations of benefits, denial letters from CBC, written communications to CBC,
and/or written communications to any third party.
ANSWER:
SLl 382624v3/02109.071
16
45. All statements as defined by Pennsylvania Rule of Civil Procedure
4003.4.
ANSWER:
46. All expert reports as defined by Pennsylvania Rule of Civil Procedure
4003.5.
ANSWER:
47. For both plaintiffs, from July 13, 2000 to the present, all financial
records of any kind, including but not limited to financial statements, books and records showing
revenue and expense, state and federal tax returns (including all schedules and attachments),
financial statements submitted to any bank, lender and/or provider of credit.
ANSWER:
SLI382624v3/02109.071
17
48. With respect to the purchase by Dr. Holcombe ofHCC of Carlisle, Inc.
from Herman, as referred to in Paragraph 22 of the Complaint, all documentation of including
but not limited to all agreements and attachments.
ANSWER:
49. All documentation of the registration and incorporation ofHCC of
Carlisle, P.e. as a business organization under the laws of the Commonwealth of Pennsylvania,
including but not limited to the certificate of incorporation.
ANSWER:
SLl 382624v3/02109.07I
Daniel B. Huyett
Attorney LD. No. 21
Stacey A. Scrivani
Attorney J.D. No. 84275
III North Sixth Street
P.O. Box 679
Reading, P A 19603
(610) 478-2000
Dated: October --' 2003
STEVENS & LEE
By
Randall G. Gale
James K. Thomas, II
Thomas, Thomas & Hafer, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
Attorneys for Defendant,
Capital Blue Cross
18
SLl 382624v3/02109.071
Dated: October to , 2003
Danie~~e~'\~
CERTIFICATE OF SERVICE
I, DANIEL B. HUYETT, hereby certify that on this date I served a true and
correct copy of the foregoing Defendant Capital Blue Cross' First Set of Document Requests to
Plaintiffs upon the following counsel of record by first class mail addressed as follows:
Andrew W. Barbin, Esquire
Andrew Barbin, P.C.
5020 Ritter Road
Suite 109
Mechanicsburg, P A 17055
Facsimile (717) 506-4672
Charles 1. Artz, Esquire
Charles 1. Artz & Associates
207 State Street
Harrisburg, PA 17101
Facsimile (717) 238-2443
SLl 382624v3/02109.071
, ,
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and HCC OF
CARLISLE, P.C.,
Plaintiff
CIVIL ACTION
v.
No. 02-2558
CAPITAL BLUE CROSS,
Defendant
DEFENDANT'S FIRST SET OF
INTERROGATORIES TO PLAINTIFFS
DEFINITIONS
The following definitions are applicable to and incorporated by reference into
each discovery request:
A. The term "person," as used herein, means any natural person, partnership,
corporation, or other business entity, and all present and former officers, directors, agents,
employees, attorneys, and others acting or purporting to act on behalf of such natural person,
partnership, corporation, or other business entity.
B. The terms "you" and "your," as used herein, mean all Plaintiffs, Shanon D.
Holcomb, D.C., HCC of Carlisle, P.C., and each agent or other person acting or authorized to act
on behalf of either or both of them.
C. The terms "and" and "or," as used herein, shall be construed conjunctively
or disjunctively as required to include within the scope of each discovery request any
information which might be excluded by the opposite construction.
D. The term "document," as used herein, means the original and all copies of
any written, printed, typed or other graphic matter of any kind or nature and any other tangible
thing in your possession, custody, or control, or available to you, wherever located. Any copy
I
SLl 382622v3/0Z109.071
2
containing thereon or having attached thereto any alterations, notes, comments, or other material
not included in the originals or copies referred to in the preceding sentence shall be deemed a
separate document within the foregoing definition. The term "document" includes but is not
limited to:
1. Any contract, agreement, letter agreement, representation,
warranty, certificate, and opinion;
2. Any letter or other form of correspondence or communication,
including any envelope or note, telegram, cable, e-mail, g-mail, any computer-generated
memorandum or message, telex message, or other message, including but not limited to any
report, note, notation, or memorandum of or relating to a telephone conversation or conference;
3. Any memorandum, report, test result, financial statement or report,
note, script, transcript, tabulation, study, analysis, evaluation, projection, work paper, corporate
record or copy thereof, expression or statement of policy, list, comparison, questionnaire, survey,
chart, graph, summary, extract, statistical statement or record, compilation, and any opinion or
report of consultants;
4. Any desk calendar, appointment book, or diary;
5. Any minutes, note, record, or transcript of a meeting or conference,
and any list of persons attending a meeting or conference;
6. Any report or summary of an interview or negotiation;
7. Any book, article, press release, magazine, newspaper, booklet,
brochure, pamphlet, circular, bulletin, notice, instruction, or manual;
8. Any motion picture or photograph (whether developed or
undeveloped), videotape, tape recording, microfilm, phonograph, tape or other record,
SU 382622v3/02109.071
3
punch card, magnetic tape, disc, data cell, drum, print-out, hard drive, zip drive, or other
data compilation from which information can be obtained; and
9. Drafts of any document, revisions of drafts of any document, and
original or preliminary notes.
E. The term "communication" includes but is not limited to any statement,
admission, denial, inquiry, discussion, conversation, instruction, negotiation, agreement,
contract, understanding, meeting, telephone conversation, letter, correspondence, note, e-mail,
telegram, telex, facsimile transmission, advertisement, or any other form of written or verbal
intercourse.
F. When referring to an entity other than a natural person, the term "identify"
means to state the entity's full name, address, telephone number, and its nature (for example,
without limitation, partnership, joint venture, corporation, etc.).
G. When referring to a natural person, the term "identify" means to state the
person's full name, present or last known residence address, and present or last known place of
employment, including address, job title, and relationship to you, if any.
H. When referring to a document, the term "identify" means to describe the
(i) type of document; (ii) general subject matter of the document; (iii) date of the document (or
approximate time of preparation); (iv) length ofthe document; (v) authors, addressee(s) and
recipient(s) of the document; (vi) the file in which the document resides; and (vii) the custodian
of the original and all copies, and anything else necessary, including indexing and reference
methods, to enable a request for production to be based on the answer.
1. The terms "evidence(s)," "refer(s) to," "relate(s) to," "concem(s)," or
"reflect(s)," or grammatical variants thereof, shall mean in any way logically or factually
connected with the matter described in the discovery request, including but not limited to
SLl 382622v3/02109.071
4
anything that constitutes, refers to, reflects, relates to, concerns, or pertains to the subject matter
of the request in any way.
1. "Relevant Patients" means those persons who you contend had existing or
prospective doctor-patient relationships with Shanon D. Holcomb HCC, or any licensed
chiropractor ofHCC, with which relationships you claim Capital tortiously interfered.
K. "Treatment" means any medical or chiropractic treatment, care, procedure,
or equipment provided by you.
L. "CBC" means Capital Blue Cross and each agent or other person acting or
authorized to act on its behalf.
M. "HCC" means HCC of Carlisle, P.C. and each agent or other person acting
or authorized to act on its behalf.
O. "Complaint" means the civil complaint filed in this matter in the Court of
Common Pleas of Cumberland County on July 2,2003, and designated as Shannon D. Holcomb,
D.C. and HCC of Carlisle. P.e.. v. Capital Blue Cross, No. 02-2558.
RULES OF CONSTRUCTION
In construing these discovery requests:
A. The singular shall include the plural, and the plural shall include the singular.
B. A masculine, feminine, or neuter pronoun shall not exclude other genders.
INTERROGA TORIES
1. IdentifY each existing patient, prospective patient, agency, insurance
provider, other insurer, agency representative, client, and/or recipient referred to in
Paragraphs 24, 28, 33, 36, 38, 40, 42 and 65 of the Complaint.
ANSWER:
SLI382622v3/02J09.071
5
2. Identify each lost patient referred to in Paragraphs 48, 57, 73, 74, 80 and 81
of the Complaint.
ANSWER:
3. Identify each consultant referred to in Paragraphs 46 and 47 of the
Complaint.
ANSWER:
4. With respect to each oral communication referred to in Paragraph 25 of the
Complaint, provide the date, identify the person making each such communication, identify the
recipients of each such communication, and describe in detail the communication you contend
was defamatory and/or disparaging.
ANSWER:
SLl 382622v3/02109.071
6
5. With respect to each oral communication by CBC that you contend was
defamatory and/or disparaging, provide the date, identify the person making each such
communication, identify the recipients of each such communication, and describe in detail the
communication you contend was defamatory and/or disparaging.
ANSWER:
6. Identify the third parties referred to in Paragraph 28 of the Complaint.
ANSWER:
7. Identify the claims referred to in Paragraph 32 of the Complaint, by
providing the identity ofthe patients, the dates of service for which each claim was made, and by
identifying each document relating to each claim..
ANSWER:
SLl 3g2622v3/02109.071
7
8. With respect to your allegations in Paragraph 41 ofthe Complaint, identify
the patients for whom CBC has not followed its avowed procedures.
ANSWER:
9. For each patient identified with respect to the preceding interrogatory,
describe in detail how CBC has not followed its avowed procedures.
ANSWER:
10. With respect to your allegations in Paragraph 41 of the Complaint, describe
in detail the avowed procedures CBC did not follow.
ANSWER:
11. Identify each and every Relevant Patient of Holcomb and/or HCC that you
contend CBC's conduct interfered with an existing and/or prospective contractual relationship as
alleged in Paragraph 38 of the Complaint.
ANSWER:
SLl 382622v3/02109.071
8
12. With respect to your allegations in Paragraph 42 of the Complaint, identify
each claim for which the comprehensive review process was not applied by providing the
identity of the patient involved and the dates of service involved and for each such claim
identified, describe in detail for each claim how the review process was not applied.
ANSWER:
13. With respect to your allegations in Paragraph 43 of the Complaint, identify
each claim for service that was delayed and/or subjected to prejudicial processing by providing
the identity of the patient involved and the dates of service involved and for each such claim
identified, describe in detail how the claim was delayed, subjected to prejudicial processing,
and/or not subjected to the procedures described in patient information material and described to
the Attorney General or the Chiropractic Association.
ANSWER:
14. With respect to your allegations in Paragraph 44 of the Complaint, identify
the claims by providing the identities of the patients involved and the dates ofthe services
involved, and for each such claim identified, describe in detail how the explanations for the
denials were inconsistent and pretextual.
ANSWER:
SL1382622v3/02109.071
9
.
IS. With respect to your allegations in Paragraph 45 of the Complaint, identify
the claims not subjected to peer reviews by providing the identities of the patients involved and
the dates of service involved, and for each such claim identified, describe in detail why you
contend each such claim should have been subjected to a peer review.
ANSWER:
16. With respect to your allegations in Paragraph 45 of the Complaint, identify
the claims subjected to sham reviews by providing the identities ofthe patients and the dates of
service involved, and for each such claim identified, describe in detail how each such claim
review was a sham.
ANSWER:
17. Describe in detail and quantify (in dollars) all monetary damages you claim
to have suffered as a result of CBC's actions, up to the date of your response, and identify all
persons with knowledge of any such damages and all documents supporting your calculation of
damages.
ANSWER:
SLl 382622v3/02109.071
10
.
18. With respect to your allegations in Paragraph 47, identify the particular
reviews by providing the identities ofthe patients involved and the dates of service involved, and
for each such particular review identified, describe in detail how CBC's comments were
unwarranted by the comments of consultants and without basis.
ANSWER:
19. With respect to each and every communication that you contend constitutes a
republication of defamatory statements as alleged in Paragraph 67 ofthe Complaint, provide the
dates of the communication, identify the person making the communication, identify the
recipient of the communication, and describe in detail the communications, including the actual
words you contend constitute defamation.
ANSWER:
20. Describe in detail the circumstances involved with your receipt of a CBC
provider number, including but not limited to what the provider number is and when the number
was assigned.
ANSWER:
SLl 382622v3/02109.071
. .
Dated: October --' 2003
SLl 382622v3/02lD9.071
By
Daniel B. Huyett
Attorney I.D. No.
Stacey A. Scrivani
Attorney LD. No. 84275
III North Sixth Street
P.O. Box 679
Reading, P A 19603
(610) 478-2000
Randall G. Gale
James K. Thomas, II
Thomas, Thomas & Hafer, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
Attorneys for Defendant,
Capital Blue Cross
11
. .
CERTIFICATE OF SERVICE
I, DANIEL B. HUYETT, hereby certify that on this date I served a true and
correct copy of the foregoing Defendant's First Set of Interrogatories to Plaintiffs upon the
following counsel ofrecord by first class mail addressed as follows:
Andrew W. Barbin, Esquire
Andrew Barbin, P.C.
5020 Ritter Road
Suite 109
Mechanicsburg, PA 17055
Facsimile (717) 506-4672
Charles 1. Artz, Esquire
Charles I. Artz & Associates
207 State Street
Harrisburg, PA 17101
Facsimile (717) 238-2443
Dated: October I.L 2003
DWi'!B~
SLl 3'62622v3/0ZlD9.071
I!iii)/? f/,,~~,
Stacey A crivan/
.. '.
CERTIFICATE OF SERVICE
I, Stacey A. Scrivani, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing motion to compel and proposed order upon the following
counsel of record, by federal express, addressed as follows:
Andrew W. Barbin, Esquire
Andrew W. Barbin P.C.
5020 Ritter Road, Suite 109
Mechanicsburg, P A 17055
Charles 1. Artz, Esquire
Charles 1. Artz & Associates
207 State Street
Harrisburg, P A 17101
Randall G. Gale, Esquire
Thomas, Thomas & Hafer LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
Date: April a-J-2005
SLl 534593vl/02109.071
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.
Plaintiffs,
Civil Action
No. 02-2558
v.
CAPITAL BLUE CROSS,
Defendant.
ORDER
AND NOW, this _ day of
, 2005, upon consideration
of Defendant Capital Blue Cross' Motion for Protective Order, and Plaintiffs' responses thereto,
if any, it is hereby ORDERED that the Qualified Protective Order attached to Defendant's
Motion for Protective Order as Exhibit A is ENTERED and is binding on the parties.
BY THE COURT
J.
SLl 534513vl102109.071
Plaintiffs,
Civil Action
No. 02-2558
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.
v.
CAPITAL BLUE CROSS,
Defendant.
DEFENDANT CAPITAL BLUE CROSS' MOTION FOR PROTECTIVE ORDER
PURUSANT TO PA. R. CIV. P. 4012
Defendant Capital Blue Cross, by and through its counsel, Stevens & Lee, P.C.,
hereby moves the Court for the entry of a Qualified Protective Order as required by the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. 9 1320d-2, to
protect the privacy rights of its subscriber, and in support thereof avers the following:
INTRODUCTION
I. This case involves claims by Plaintiffs Holcomb and HCC of Carlisle against
Defendant Capital Blue Cross ("Capital") for defamation, disparagement, and interference with
contract based on defamation and/or disparagement.
2. Plaintiffs contend Capital defamed them by allegedly informing Plaintiffs'
patients and Capital's subscribers that they were being overbilled by Plaintiffs, the services
provided by Plaintiffs were unnecessary, and/or that Plaintiffs was under investigation.
3. According to Plaintiffs, the evidence ofthis alleged defamation is located within
the records Capital maintains regarding its subscribers.
I
SLl 534513vI/02109.071
2
4. In written discovery Plaintiffs served on Capital, Plaintiffs seek these records,
which include private, medical information about patients of Plaintiffs who were insured by
Capital.
5. In this motion, Capital seeks from the Court the entry of a Qualified Protective
Order as required by the Health Insurance Portability and Accountability Act of 1996
("HIP AA"), 42 U.S.C. 9 1320d-2, to protect the privacy rights of its subscribers.
6. HIP AA's privacy regulations were implemented to protect the rights of
individuals from the disclosure and use of their medical records.
7. Although HIPAA allows the disclosure and use of this private information in
limited situations, such as litigation, safeguards in the form of either consent by the individuals
or a Qualified Protective Order must be in place before such disclosure occurs.
8. Since Plaintiffs have not demonstrated they have the consent of the individuals
whose medical records are likely to be disclosed in this litigation, a Qualified Protective Order
must be in place before Capital can produce any of the private, medical information of its
subscribers.
9. The order Capital seeks has two components.
10. First, Capital seeks to protect the privacy rights of its subscribers and Plaintiffs'
patients 1 by putting in place a procedure (i.e., a protective order) to safeguard the private,
medical records that will undoubtedly be disclosed in this litigation.
1 Capilal served Plainliffs with inlerrogatories and document requests on October 6, 2003. To date, Plaintiffs have
failed to respond in any fashion to those requests. Recently, Plaintiffs' counsel has indicated his refusal to respond
is due in part to the fact that no protective order is in place in this case. The Qualified Protective Order attached
hereto as Exhibit A would protect Plaintiffs' confidential information also. Capital is filing simultaneously herewith
a motion to compel against Plaintiffs for their failure to respond to discovery for more than a year.
SL1534513vl102t09.071
3
II. Second, in the protective order, Capital seeks to prohibit the disclosure and use of
this information outside of this litigation.
12. Plaintiffs' counsel admits he intends to show documents Capital produces in this
litigation, including those containing confidential and private, medical information, to another
non-party chiropractic practice he represents in another lawsuit pending in Franklin County
against Capital (the "Franklin County Litigation").
13. In addition to showing this confidential information to this third party that has no
connection to this litigation, it is likely Plaintiffs' counsel will use this confidential information
in that other lawsuit.
14. Capital asks the Court to enter the Qualified Protective Order attached hereto to
protect the privacy rights of Capital's subscribers and Plaintiffs' patients and prevent these
highly private documents from ending up in the hands of disinterested third parties.
BACKGROUND
The Discovery Requests
15. Plaintiffs have served Capital with broad and extensive discovery requests that
necessarily will require Capital to produce the private, medical information of its subscribers of
the kind identified above (claim forms and EOBs, for example).
16. Capital served timely objections to the discovery requests on September I, 2004.
In addition to asserting objections to the vagueness and over breadth of the discovery requests,
Capital objected to the document requests because they sought the private, medical information
of Capital's subscribers.
17. Capital explained in its responses that it would produce the requested information
(subject to its other objections) following the entry of an appropriate protective order.
SL1534513,,1I02109.071
4
18. Because Plaintiffs will not agree to an appropriate protective order, Capital seeks
such an order in this motion.
19. There is no question that Plaintiffs' discovery requests require Capital to divulge
the private, medical information of its subscribers.
20. For example, in Document Request 3, Capital is asked to provide information
about all the claims for benefits patients of Plaintiffs have submitted to Capital for Manipulation
and/or Physical Therapy between March 22, 1999 and January 1,2003.
21. To answer this request, Capital will have to divulge not only subscribers' names,
but information about the condition for which they sought and received treatment, including any
medical records, and all the communications Capital had with its subscribers about this treatment
and the payment or non-payment for the treatment.
22.
160.103.
All this information constitutes protected information under HIPAA. 45 C.F.R. 9
23. Similarly, Plaintiffs' Requests 4,5,6,7, 13 and 14 seek information about "any
services" provided by Plaintiffs (presumably to Capital subscribers) between October I, 1998
and January 2003.
24. The "services" to which Plaintiffs refer means the medical care it provided to its
patients (and Capital's subscribers).
25. Accordingly, these requests also ask Capital to divulge the private, medical
information of its subscribers.
26. The remaining requests seek information about Capital's communications
regarding Plaintiffs and the services they provided to Capital's subscribers.
SL1534513vl/02109.071
5
27. Once again, these requests will require Capital to disclose information and
documents that will contain private, medical information of its subscribers.
28. Because responding to Plaintiffs' discovery requests will require it to divulge the
private, medical information of its subscribers, federal law requires, as explained below, Capital
to obtain "satisfactory assurances" from Plaintiffs that this information will not be used for any
purpose other than this litigation. 45 C.F.R. 9 164.512(e)(I)(iv).
29. The Qualified Protective Order attached hereto for the Court's consideration
provides such "satisfactory assurances." Id.
Capital's Efforts to Enter a Stipulated Protective Order with Plaintiffs
30. Plaintiffs initiated this case by filing a writ of summons.
31. Thereafter, Plaintiffs sought to engage in sweeping pre-complaint discovery.
32. Both parties understood that a protective order would be necessary to protect
patient rights and draft protective orders were exchanged.
33. The parties eventually agreed on a draft, signed it and Capital moved the Court to
enter the protective order.
34. After the motion to enter the stipulated protective order was filed, but before the
Court ruled on it, Capital learned that despite the existence of an identical protective order in the
Franklin County Litigation, Plaintiffs' counsel had divulged information protected in the
Franklin County Litigation to Plaintiffs here.
35. Following that discovery, Capital promptly withdrew its consent to the stipulated
protective order it had signed in this case.
SLt 534513v1/02109.071
6
36. At the April 2, 2003 hearing before the Court on a number of outstanding
motions, including the motion to enter the stipulated protective order, Capital informed the Court
that it no longer consented to the protective order that was before the Court.
37. As such, the Court denied the motion to enter the stipulated protective order.
38. Even if the stipulated protective order had been entered by the Court at that time,
it would have subsequently required revision because it did not contain language sufficient to
comply with the HIP AA regulations that became effective on April 14, 2003.
39. In September 2004, when Capital served its responses and objections to Plaintiffs'
discovery, it enclosed for Plaintiffs' counsel's signature a revised stipulated protective order.
Capital explained in its responses and objections that it would produce the requested discovery,
subject to objections, once an appropriate protective order was in placed.
40. Although the proposed stipulated protective order contained the standard
language prohibiting use of the confidential information outside of the litigation and the
language required by HIP AA, because of Capital's past experience with Plaintiffs' counsel,
Capital included a provision in the stipulation that expressly excluded certain of Plaintiffs'
counsel's other clients (non-parties to this lawsuit) from having access to the confidential
information produced pursuant to the protective order.
41. Plaintiffs' counsel, Attorney Andrew Barbin, has made clear to Capital that he
believes he is entitled to disclose confidential information Capital produces in one lawsuit
(subject to a protective order prohibiting such disclosure) to other clients he represents in
separate and unrelated lawsuits filed against Capital, and even use that confidential information
in the unrelated lawsuits.
SLl 534513vl102109.071
7
42. This is why the proposed stipulated protective order Capital provided to Plaintiffs
in September contained a paragraph expressly prohibiting Mr. Barbin's other clients, Jason and
Larry Herman, Herman Chiropractic Center, Inc., HCC of Carlisle, Inc., Barry Merchant and
Physicians Plus, P.C.2 from seeing any documents or information produced by Capital in this
case that is produced subj ect to protective order.
43. Plaintiffs' counsel never signed the proposed stipulated protective order.
44. In a recent email, Plaintiffs' counsel admits he has every intention of showing the
confidential documents produced in this litigation to his other client.
ARGUMENT
45. In this motion, Capital seeks the entry of a Qualified Protective Order to protect
the medically sensitive information of its subscribers that is likely to be produced in this
litigation.
46. Rule 4012 of the Pennsylvania Rules of Civil Procedure gives the Court the
power to enter a protective order, "to protect a party or person from unreasonable annoyance,
embarrassment, oppression, burden or expense."
4 7. Medical records are just the type of information Rule 4012 is designed to protect.
See Sanderson v. Bryan, 522 A.2d 1138, 1142 (Pa. Super. 1987) (noting privacy in medical
records is a fundamental right "older than the Bill of Rights"); Tavlor v. West Penn Hospital, 48
Pa. D. & C.3d 178 (C.C.P. Allegheny Co. 1987) (Wettick, J.) (granting protective order to blood
bank allowing it to withhold the name of blood donor who donated blood infected with HIV).
2 The case with Barry Merchant and Physicians Plus, P.c. was recently settled. The draft stipulated protective order
attached to this motion for the Court's consideration does not include a reference to Barry Merchant and Physicians
Plus, P.c.
SL1534513vtl02109.071
8
48. Additionally, recently effective regulations under HIPP A expressly require the
entry of a Qualified Protected Order when confidential, medical information will be disclosed in
litigation.
49. These privacy regulations of HIP AA, which became effective April 14, 2003,
regulate the use and disclosure of an individual's medical information maintained or transmitted
by a "covered entity." 45 C.F.R. 9164.512(e)(1).
50. Because Capital is a covered entity under HIP AA, it is prohibited from disclosing
the private, medical information of its subscribers except in limited circumstances. 45 C.F.R.
9164.512.
51. Although a judicial proceeding constitutes such a limited circumstance, absent
consent from each person whose private, medical information will be disclosed (which has not
been given here), HIPAA requires a Qualified Protective Order that prohibits the parties from
using or disclosing this private, medical information for any purpose other than the litigation or
proceedings for which the information was requested. 45 C.F.R. 9164.512 (e)(1)(v).
52. This is exactly what Capital seeks to prohibit by specifically excluding those
people to whom Plaintiffs' counsel concedes he will show the protected information even though
they have no connection to this litigation.
53. Capital believes that the only contested issue regarding Capital's proposed
protective order is paragraph 5, and that Plaintiffs do not take issue with the remaining items in
the attached Qualified Protective Order.
SL15345t3vl102109.071
9
54. This paragraph prohibits Jason and Larry Herman, Herman Chiropractic Center,
Inc., and HCC of Carlisle, Inc. from seeing the documents produced pursuant to the Qualified
Protective Order in this litigation.
55. This paragraph is necessary for two reasons.
56. First, the issue of prime concern here is the privacy rights of Capital's subscribers.
HIP AA requires Capital to obtain "satisfactory assurances" from Plaintiffs that the private,
medical information produced in this litigation will not be used outside of this litigation. C.F.R.
9164.512(e)(1)(iv).
57. Plaintiffs have not provided such assurances. Rather, Plaintiffs admit they intend
to violate the spirit and purpose of the privacy rights afforded under HIP AA by allowing other
chiropractors with no connection to this litigation to not only see this private information, but
potentially use it for their own economic gain in the litigations they are pursuing separately
against Capital.
58. This simply is not a legitimate reason for circumventing the rights of Capital's
subscribers.
59. The Qualified Protective Order attached as Exhibit A (especially paragraph 5)
affords Capital's subscribers the protection they expect and Capital is required to provide under
HIP AA, and provides Capital with the "satisfactory assurances" they must have under HIP AA
before producing protected information.
60. Second, the reason Plaintiffs provide for allowing these non-parties to see the
confidential Capital documents is invalid.
SLl 534513vl102109.071
10
61. Plaintiffs claim their counsel's (Mr. Barbin) other non-party clients should be
permitted to see the private medical information produced here because they may be witnesses
regarding CBC policies and practices.
62. According to Plaintiffs' Complaint, however, this case is not about Capital's
policies and practices.
63. Rather, as articulated by Plaintiffs, this case is about allegations that Capital made
defamatory statements about Plaintiffs to certain of Plaintiffs' patients that harmed their business
reputation.
64. While Plaintiffs expect to find evidence of defamation among Capital's
subscribers' records, showing these records to other non-party chiropractors will not assist
Plaintiffs in proving their case, and the attached Qualified Protective Order should be entered.
WHEREFORE, Defendant Capital Blue Cross requests that the Court enter the
Qualified Protective Order attached as Exhibit A.
SL1534513vl102109.071
11
Pursuant to Local Rule 208.2( d) Capital has attempted to resolve this matter
amicably with Plaintiffs' counsel before seeking the Court's intervention. Plaintiffs refuse to
sign the attached protective order. Capital is adamant that the attached protective order is the
only way it can provide "satisfactory assurances" to its subscribers that their private medical
information will remain private.
Motions previously filed in this matter were heard by Judge Oler.
Dated: ~ ;;;2.;)..) JOt..S
STEVENS & LEE
B~~Jy@ La-;
Attorney II[; No. 21385
Stacey A. Scrivani
Attorney 1.D. No. 84275
III North Sixth Street
P.O. Box 679
Reading, Pennsylvania 19603
(610) 478-2000
SL1534513vl102109.071
~
A
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---------~
Plaintiffs,
Civil Action
No. 02-2558
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.
v.
CAPITAL BLUE CROSS,
Defendant.
STIPULATED PROTECTIVE ORDER
WHEREAS, in the course of discovery in the above-captioned action, it may be
necessary for the parties to disclose medical records, billing records, trade secrets, proprietary
information and other confidential business information, the parties having stipulated to the entry
of a Protective Order; and it appearing that such a Protective Order should be entered;
IT IS HEREBY ORDERED that the following terms and conditions shall
govern the production of confidential documents and information in the above-captioned matter
(hereinafter "the Litigation").
I. This Order shall apply to certain documents or portions thereof, and to
information contained therein, which the parties designate as "Confidential Material" in the
manner described below in paragraph 3. the parties may designate a document or information
(including information provided during depositions) as "Confidential Material" ifit is the type
specified in Pa. R.c.P. 4012(a)(9). In addition, the parties may designate as "Confidential
Material" any information that constitutes "Protected Health Information" ("PHI,,)l the Health
1 Protected Health Information is defined as:
"Individually identifiable health information that is (i) transmitted by electronic media; (ii) maintained in any
medium described in the definition of electronic media; or (iii) transmitted or maintained in any other form or
medium." 45 C.F.R. S 164.501.
I
SL1473516vI/02109.071
2
Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIP AA") and
regulations promulgated thereunder by the U.S. Department of Health and Human Services (the
"Privacy Rule") and other applicable laws shall automatically constitute and be treated as
"CONFIDENTIAL" under the terms of this Protective Order. PHI may not be used or disclosed
for any purpose other than the litigation that is the subject of this Protective order.
The "CONFIDENTIAL" designation shall not be used for documents which are
in the public domain, nor shall the provisions ofthe Protective Order apply where the non-party,
or his/her representative, has authorized, in HIP AA-compliant writing, the use, production and
disclosure ofthe non-party medical records and charts. The use of the "CONFIDENTIAL"
designation shall also serve to preserve any privilege applicable to the document or information,
including the confidentiality protections of the Pennsylvania Peer Review Protection Act, 63 Pa.
C.S.A. 99425.1-425.4. The use by any party of the "CONFIDENTIAL" designation with
respect to any document or information pursuant to this order shall not waive any claim by any
other party or by any non-party that such document or information is not confidential and/or is
not protected from disclosure pursuant to, inter alia, the Pennsylvania Peer Review Protection
Act or other privileges
2. To the extent that matter stored or recorded in the form of electronic or
magnetic media (including information, databases or programs stored on computers, discs,
networks or tapes) ("Computerized Material") is produced by the parties in such form, the parties
may designate such matter as Confidential Material, if the requirements of paragraph I above are
Individually identifiable health information is defined as:
"Information that is a subset of health information, including demographic information... and (1) is created or
received by a health care provider, health plan, employer, or healthcare clearinghouse; and (2) relates to the
past, present, or future physical or mental health or condition of an individual; the provision of health care to an
individual; or the past, present or future payment for the provision of health care to an individual; and (i) that
identifies the individual; (ii) with respect to which there is a reasonable basis to believe the information can be
used to identify the individual." 45 C.F.R. S 160.103.
SLt 473516vl/02109.071
3
met, by cover letter referring generally to such matter. Whenever any person to whom
Computerized Material designated as Confidential Material is produced reduces such material to
hard-copy form, such person shall mark such hard-copy form with the legend provided for in
paragraph 3 below.
3. "Confidential Material" may be so designated by the parties by marking
"CONFIDENTIAL" or "Confidential Information Subject To Protective Order" on the face of
the documents and on each page containing confidential information, or by indicating during the
course of a deposition that certain testimony shall be designated as "CONFIDENTIAL."
4. Confidential Material shall only be used for purposes of the Litigation, and for
no other purpose whatsoever, except as otherwise permitted by this Order or required by law,
and may be disclosed only to the following persons:
(a) Counsel for any party to the litigation and their associates, paralegal,
clerical or service support staff;
(b) Experts or consultants (including their employees, associates and/or
support staff) retained by a party to the litigation;
(c) Trial or hearing witnesses and court reporters;
(d) The Court; and,
Confidential Material shall not be disclosed to any person referred to in
subparagraphs 4(b) and (c) unless and until such person has: (a) read and agreed to be bound by
the terms and conditions of this Order; and (b) each person who is provided access to the
Confidential Material has executed a Declaration in the form attached as Exhibit "A." Complete
sets of all such executed Declarations shall be kept on file by counsel who obtained such
SLl 473516vl102109.071
4
Declaration for a period of not less than three years from the termination of the Litigation by
settlement, judgment or order of court.
5. Notwithstanding the foregoing, Confidential Material shall not be disclosed to
any of the following: Jason Herman; Larry Herman; any former or current officer, director,
owner, employee or agent ofHCC of Carlisle, Inc.; any former or current officer, director,
owner, employee or agent of Herman Chiropractic Center, Inc.; and/or any former or current
officer, director, owner, employee, attorney or agent of any chiropractor, chiropractic
association, or cl;1iropractic practice that has litigation pending against Capital.
6. When Confidential Material is used in or provided by witnesses at
depositions, counsel may request that the exhibits and all pages of transcript or video containing
the confidential material or reference to confidential material be marked "Confidential,"
produced separately, and thereafter be treated as Confidential Material. Confidential Material
may be included in affidavits, statements and responses to interrogatories or requests for
admissions provided that the party files the material under seal, placing the Confidential Material
in a sealed envelope marked, "Confidential Information Subject To Protective Order." In filing
materials with the Court, where practicable, counsel shall file under seal only those specific
documents and testimony designated confidential, and only those specific portions of briefs,
discovery responses, statements or other filings which contain Confidential Material.
7. If any party to the litigation disputes the designation of any document as
Confidential Material, or otherwise seeks a removal or alteration of the protections of this Order
for any reason, the parties shall expeditiously attempt to resolve by agreement the question
whether or on what terms the document is entitled to confidential treatment. If the parties are
unable to agree, counsel for the party seeking to challenge the designation of specific
SLl 473516vl/02109.071
5
.' .
Confidential Material may file an appropriate motion with the Court seeking that the protection
of this Order be removed or altered as to the documents specified. The burden shall rest upon
the party making the designation to demonstrate that such designation and protections are proper
as if they were seeking a Protective Order in the first instance. Until a resolution of the dispute is
achieved either through consent or order, all parties shall treat the designated document as
Confidential Material.
8. Nothing in this Order shall prevent any party from using or disclosing its own
documents or information.
9. Nothing in this Order shall operate to require the production of information or
documents that are subject to a good faith assertion of attorney-client privilege or work product
immunity.
10. A person's compliance with the terms of this Order shall not operate as an
admission that any particular document is or is not (a) confidential, (b) privileged, or
(c) admissible in evidence at trial.
II. This Order shall survive the termination of this Litigation and shall continue
in full force and effect thereafter. Documents designated as Confidential Material shall be
returned to the appropriate party or destroyed within ninety (90) days after an Order finally
terminating the Litigation (including any appeals). Upon request, the party who received
Confidential Material in this Litigation shall provide the designating party with a declaration
certifying that all documents required to be returned or destroyed pursuant to the provisions of
this paragraph have been returned or destroyed.
12. Any person in possession of Confidential Material who receives a subpoena
(or other process) from any person (including natural persons, corporations, partnerships, finns,
SL1473516vl102109.071
6
.' .
governmental agencies, departments or bodies, boards, or associations) who is not a party to this
Order seeking production or other disclosure of such Confidential Material shall promptly give
telephonic notice and written notice by overnight delivery and/or telecopier to counsel for the
parties, identifying with specificity the materials sought and those intended to be produced in
response thereto enclosing a copy ofthe subpoena or other process where possible at least ten
(10) business days before production or other disclosure, unless such party is prohibited from
disclosing the request seeking the materials, by lawful order of a governmental entity or
otherwise by law, which prohibits such disclosure or delay. In no event shall production or other
disclosure be made before the latest of (I) the date on which notice is given or (2) the return date
ofthe subpoena. Nothing in this paragraph shall be deemed to require a recipient of confidential
information to resist production, but no voluntary surrender made be made without compliance
with the notice requirement, which is intended to permit the parties to assert any rights against
production which they would have had had the documents remained exclusively in the
possession or control ofthe parties under this Order. If production is required by lawful process
prior to providing the above required notice, the producing party shall nonetheless provide
written notice of such production, unless lawfully forbidden by the party to whom the documents
are provided.
13. This Order may be modified or amended by Order of the Court for good cause
shown or by agreement of the parties.
14. This Order shall apply to all parties to the Litigation who are given access to
documents and information produced by the parties during the course ofthe Litigation.
15. This Order shall not apply to the use of Confidential Material at any trial or
hearing in the Litigation, unless otherwise Ordered by the Court. The Court shall determine at an
SLt 473516vl/02109.071
.' ,
appropriate time whether and (if so) under what circumstances the use or disclosure of
Confidential Material shall be restricted at any trial or hearing.
BY THE COURT
J.
7
SLl 473516vt102109.071
(Printed Name)
. . ,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SHANON D. HOLCOMB, D.C. and
HCC OF CARLISLE, P.C.
Plaintiffs,
Civil Action
No. 02-2558
v.
CAPITAL BLUE CROSS,
Defendant.
DECLARATION
This is to certify that the undersigned has read and is fully familiar with the
provisions of the Protective Order dated ,2004, entered by the Court.
As a condition precedent to examination of any material subject to the Protective
Order or obtaining any information contained in said material, the undersigned hereby agrees
that the Protective Order shall be deemed to be directed to and shall be binding on the
undersigned, and the undersigned shall observe and comply with the provisions of the Protective
Order.
(Signature)
(Address)
Dated:
Exhibit A
SLI 473516vl102109.011
~ j),,'M~,",^c
Stacey A. rivanl
, ", II
CERTIFICATE OF SERVICE
I, Stacey A. Scrivani, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing motion for protective order, and proposed order upon the
following counsel of record, by federal express, addressed as follows:
Andrew W. Barbin, Esquire
Andrew W. Barbin P.C.
5020 Ritter Road, Suite 109
Mechanicsburg, P A 17055
Charles 1. Artz, Esquire
Charles 1. Artz & Associates
207 State Street
Harrisburg, P A 1710 I
Randall G. Gale, Esquire
Thomas, Thomas & Hafer LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
Date: April1.?, 2005
SL1534S13vl102109.071
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