HomeMy WebLinkAbout03-3049
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNTY ASPHALT CO"
Plaintiff,
v,
No, 03 - .1649
C,'u i( '-r~
BEAUCHAT & BEAUCHAT
and WENDY WEIKAL-BEAUCHAT,
(. 3 w. JJ".;C- ~Defendants,
. u /;) 11~J,'5'
~ ,tJ.., PRAECIPE FOR WRIT OF SUMMONS
CIVIL ACTION - LAW
TO THE PROTHONOTARY:
Please issue a writ of summons against Defendants, Beauchat & Beauchat and
Wendy Weikal-Beauchat, in the above-captioned action,
Respectfully submitted,
MILL'EK Lll-'SlTr LLL
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Dated: 6/IIJ/03
~- ~
- Chadwick 0, Bogar
Attorney LD, No, 83755
2157 Market Street
Camp Hill, PA 17011
717,737,6400
WRIT OF SUMMONS
TO: Beauchat & Beauchat
Wendy Weikal-Beauchat
You are hereby notified that Adams County Asphalt Co, has commenced a
lawsuit against you, ~ J.2 . ~
Curt Long, prothonota~
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Dated:~JLu.. 'of! .;)(" ;).N.3
Seal of Court
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVNIA
ADAMS COUNTY ASPHALT CO"
Plaintiff,
v,
No, 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants,
CIVIL ACTION - LAW
ACCEPTANCE OF SERVICE
I accept service of the Writ of Summons on behalf of Defendant, Beauchat &
Beauchat, and certify that I am authorized to do so,
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VNIA
ADAMS COUNTY ASPHALT CO"
Plaintiff,
v,
No, 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants,
CIVIL ACTION - LAW
ACCEPTANCE OF SERVICE
I accept service of the Writ of Summons,
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(Date)
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(Wendy Weikal-Beauchat)
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHA T,
Jury Trial Demanded.
Defendants.
NOTICE
YOU HA VE BEEN SUED IN COURT. If you wish to defend
against the claims set forth in the following pages, you must take
action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney
and filing in writing with the court your defenses or objections to the
claims set forth against you, You are warned that if you fail to do so
the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested by
the plaintiff, You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD
ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania
717,249.3166
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
COMPLAINT
AND NOW, Plaintiff, ADAMS COUNTY ASPHALT CO" ("ACA") files
the following complaint against Defendants, BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHA T:
Parties
1. Plaintiff is Adams County Asphalt Company a Pennsylvania
corporation with a principle place of business located in Bowmansdale,
Cumberland County, Pennsylvania,
2, Defendant, Beauchat & Beauchat is a law firm with a principle place
of business located in Gettysburg, Adams County, Pennsylvania.
3, Defendant, Wendy Weikal-Beauchat is an attorney and principle in
the firm of Beauchat & Beauchat
Background
4, ACA retained Defendants to represent its interests as plaintiff in two
actions filed before the Pennsylvania Board of Claims,
5, Those claims were docketed at Docket No, 1767 ("Case 1767") and
Docket No, 1809 ("Case 1809"),
Case 1767
6, ACA filed Case 1767 against the Pennsylvania Department of
Transportation ("PennDot") to the Board of Claims seeking monetary damages.
7, On December 5, 1996, PennDOT forwarded discovery requests to
Defendants in Case 1767,
8, Defendants did not prepare timely responses to the discovery requests,
9, PennDOT filed a Motion to compel the responses on July 27,2000,
10, Defendants did not respond to the Motion to CompeL
11. On April 26, 2001, the Board of Claims l~ntered an order stating:
AND NOW, this 26th day of April 2001, it is ORDERED and
DECREED that Plaintiffs, Adams County Asphalt Company,
Complaint be dismissed with prejudice unless Answers to
Interrogatories are filed and Plaintiff complies with the Motion to
Compel Production of Documents within thirty (30) days from the
exit date of this Order,
A copy of the Docket to Case 1767 evidencing the order is attached hereto as
Exhibit "A" and incorporated herein,
2
12, On July 26,2001, after receiving an extension, Defendants
responded to the discovery requests in part stating that the requested documents
were available for inspection at Defendants' offices,
13, On October 3, 2001, PennDOT's counsel inspected the documents at
Defendants' offices,
14, PennDOT's counsel identified certain documents that they wanted to
take and the parties agreed that Defendants would have the selected documents
copied and forwarded to PennDOT.
15, Defendants did not forward the identified documents to PennDOT.
16, On July 10, 2002, PennDOT's counsel sent correspondence to
Defendants requesting the documents,
17, Not receiving the documents, PennDOT's counsel filed a Motion for
Sanctions on December 13, 2002,
18, On February 26,2003, the Board of Claims issued the following
order:
AND NOW, this 26th day of February 2003, the Board of Claims,
upon its own motion and discretion hereby issues upon Adams County
Asphalt Company, Plaintiff, a Rule to Show Cause why the
Commonwealth of Pennsylvania, Department of Transportation's
Motion for Sanctions should not be granted, Rule is returnable in
thirty (30) days, Upon failure to respond timely, the Rule shall be
made Absolute and the instant Complaint shall be dismissed with
prejudice,
3
A copy of the February 26,2003 order is attached hereto as Exhibit "B" and
incorporated herein,
19, Defendants submitted no response to the Rule to Show Cause,
20, Therefore, on April 22, 2003, the Board of Claims entered the
following order dismissing Case 1767 with prejudice:
AND NOW, this 22nd day of April, 2003, upon consideration of the
Motion for Sanctions filed by the Commonwealth of Pennsylvania,
Department of Transportation, on December 13,2002, this Board's
earlier Order of April 26, 2001, and the most recent Order of
February26, 2003, the Rule contemplated by the Board's Order of
February 26, 2003, is made ABSOLUTE. It is hereby ORDERED
that the Complaint filed by Plaintiff, Adams County Asphalt
Company, is hereby DISMISSED with prejudice in conjunction with
the entry of a judgment on non pros pursuant to Pa, R. C. P, 4019 (c)
(3), IT IS ORDERED, Costs to be borne by Plaintiff
A copy ofthe April 22, 2003 order is attached hereto as Exhibit "C" and
incorporated herein,
Case 1809
21. On April 13, 1994, ACA filed claim against PennDOT to the Board
of Claims seeking $1,279,883,80,
22, On December 11, 1996, PennDOT forwarded Interrogatories and
Requests for Documents to Defendants in Case 1809,
23, Defendants did not provide timely responses,
4
24, Following the filing of a motion by PennDOT on August 23, 2002,
the Board of Claims issued an order directing that responses to PennDOT's
discovery be made within 60 days or the case would be dismissed with prejudice,
A copy of the docket for Case 1809 evidencing the August 23, 2002 order is
attached hereto as Exhibit "D" and incorporated herein.
25, On October 9, 2002, Defendants, via correspondence, requested
another copy of Penn DOT's discovery requests,
26, PennDOT again provided those discovery requests on October 16,
2002,
27. On October 22, 2002, Defendants forwarded correspondence
offering to meet with counsel for PennDOT to review boxes of documents, which
Defendants stated contained the documents sought A copy of the October 22,
2002 correspondence is attached hereto as Exhibit "E" and incorporated herein,
28, Defendants also forwarded correspondence to the Board of Claims
advising that PennDOT and Defendants would be meeting to review documents
and asserting that the parties were working to resolve the discovery dispute,
29, On October 22,2002, PennDOT's counsel forwarded
correspondence to the Board of Claims advising that the parties were not working
to resolve the dispute and PennDOT intended to rely on the Board of Claims'
August 23, 2002 order to seek dismissal if the documents were not provided, A
5
copy of the October 22, 2002 correspondence is attached hereto as Exhibit "F" and
incorporated herein,
30, Defendants did not provide the documents within the required time
period,
31, On November 7, 2002, PennDOT filed a Motion to Dismiss pursuant
to the Board of Claim's order of August 23,2002,
32, Defendants provided no response to the Motion to Dismiss,
33, On February 12,2003, Case 1809 was dismissed with prejudice, A
copy of the February 12,2003 order is attached hereto as Exhibit "G" and
incorporated herein,
34, On June 12,2003, with new counsel, ACA filed a Petition to Open
Case 1809, however, that Petition was denied by the Board of Claims, A copy of
the July 28, 2003 order is attached hereto as Exhibit "H" and incorporated herein,
ACA Discovers Defendants' Conduct
35, ACA knew nothing of any of the discovery disputes or the dismissal
of the two cases until months after the dismissals,
36, ACA through new counsel contacted Defendants on or about
July/June of 2003 to ascertain the status of the two matters,
37, At that time, Defendants informed ACA for the first time of the
dismissals,
6
38, In an attempt to justify the Defendants' actions, Defendants
forwarded an unsigned letter dated September 24, 2002 purportedly sent by
Defendants to ACA in September and again in October of2002, A copy of the
correspondence is attached hereto as Exhibit "I" and incorporated herein,
39. The letter warned of the discovery dispute and asked ACA to
provide the documents needed to respond to discovery,
40, In the letter, Defendants asserted that documents needed to respond
to discovery were previously provided to Defendants in large boxes, that the boxes
were now missing and alleging that the boxes were returned to ACA.
41. The letter concluded by stating that Defendants would take no
further action until the boxes were returned to Defendants,
42, ACA never received this correspondence,
43, ACA does not possess the boxes offiles and the boxes were not
returned to ACA.
44. The assertion in the September 24, 2002 correspondence that
Defendants did not have the boxes of files is in direct conflict with October 18,
2002 correspondence sent by Defendants to PennDOT in which Defendants state:
We have several boxes of documentation with regard to this matter
[Case 1809]. My suggestion is we attempt to get together next week. I
would be willing to come to Harrisburg so that you and I may go through
the boxes and pull out what it is you still want with regard to the request
for production of documents. That may save us both some time
reviewing documents and cut down on repetitive copies,
7
(Emphasis added). A copy of the October 18, 2002 correspondence is attached
hereto as Exhibit "J" and incorporated herein,
COUNT I
LEGAL MALPRACTICE AND PROFESSIONAL NEGLIGENCE
45, ACA incorporates paragraphs 1 through 44 as iffully set forth
herein,
46, ACA retained Defendants to act as its attorneys in relation to Case
1767 and Case 1809 and Defendants consequently had the duty to act with
reasonable and ordinary care, skill and knowledge,
47, Case 1767 and Case 1809 were viable, actionable claims for which
ACA would have been successful in securing judgments totaling over $1 million
collectively,
48, Defendants were negligent and failed to exercise ordinary care, skill
and knowledge as ACA's attorney, including but not limited to, the following:
A Losing ACA's files and documents that related to the
transactions, which were the subject of Case 1767 and
Case 1809,
B. Failing to respond to PennDOT's Discovery Requests
C. Failing to respond to PennDOT's July 27,2000 Motion
to Compel.
D. Failing to respond to the Board of Claims' February 26,
2003 Rule to Show Cause,
8
E. Failing to respond to the November 7, 2002 Motion to
Dismiss, filed by PennDOT.
F, Causing the dismissal of Case 1767 and Case 1809,
Q, Failing to timely advise ACA of the lost documents, the
potential dismissal of Cases 1767 and Case 1809 and
the actual dismissal of Case 1767 and Case 1809,
49, Due to Defendants' negligence, Case 1767 and Case 1809 were
dismissed and ACA damaged by the loss of its ability to secure the monies sought
in those suits,
[Remainder of Page Intentionally Ldt Blank]
9
WHEREFORE, Adams County Asphalt Company respectfully requests that
the Court enter judgment against Defendants Beauchat & Beauchat and Wendy
Weikal-Beauchat in an amount in excess of one million dollars and grant such
other relief as the Court deems proper.
Respectfully Submitted:
LIPSITT LLC
2157 Market Street
Camp Hill, P A 17011
717,737,6400
Attorneys for Plaintiff
10
08/28/03 THU 11:24 FAX 717 766 9445
RMMII
I4i 002
VERIF1CA TION
I veritY that the statements made in this Complaint are true and correct I
understand that false statements herein are made subject to the penalties of 18
Pa.C.S. ~4904 relating to unsworn falsification to authorities,
Date
~l
~~
Robert M. Mumma, II
11
EXHIBIT" A"
Docket Number: 1767
ADAMS COUNTY ASPHALT COMPANY
....l\..v.Y :J. COL.~l.l., E.:;)y'u~~e
Geo~9~ Ful165, E~y'u~~e
JLeveu 1\... T~J~........W:~.U, Esql1i-re
Gleull J. Jllli.tL., E~cau.i:re
Wendy Weikal-Beauchat, Esquire
....;:'%,
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't
<,.""
!'~'!y',. I"" ;"""
RoLC:.J...L J. .JLc:6., E5"-:!.u':':re
~1l0UARfl l."ERUSEr:.UI, SECRETAR.... OF TilE PENHSyr:r:1diIA DEPAR'fMBN"i' OF
TRA:N3FOR'l'ld'ION
EOwll.L.J "le.Lu.5cl':'w, F.E.
AND
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
JOL:l.l. J. Robil.l..::luH, J.I-. / CL':'e[ Clt~':'lLL.s Attv.Ll..I.e}l
Jeffrey W, Davis, Assistant Counsel
Docket No. 1767
September 10, 1993
By Order of Commonwealth Court, case filed, ORDER as follows: "AND
NOW, this 4th day of August, 1993, by its Amended Complaint in
Equity, Adams County Asphalt Company (ACA) requests this court to
make a declaratory judgment which requires, at least, an
interpretation of sections 105,01(b), 105,05(a) and 108,05(b) of
the Pennsylvania Department of Transportation (DOT) publication 408
specifications, Also applicable is Form FHWA 1273, revised
8-89, section VIII., 1., at page 6, (Appendix A,ACA's Amended
comp],al:nt~in,\,E. qui ty, ) All''O~ thes.ejW'pr>,vi-s4ionsmmaz;e . in
t.e......:rm..:.s witnin ~,;;l:he con.t.r,act b'E!l-....w... eeti... AcAi. anl~." DOT'tand
questions 'aseb thier interpre~ti . and' :rel ; ance to
r'~sed in ACAis.1 (sic) am~nded C ':lai e pr'~ bro
the Board 0 f Craims, . ShOve 1 TrJis f er & . rag~ v, S*imps
2:3;~ 56511 2dlO-153 )-19.8~l.- Be~~us~,weI'ck lllL.risd~hi
act'~e t;r~fe-r''''thls "ii\at;.t:~ to ~lWI'loard~Uflim
THE FOLLOWING FILED IN COMMONWEALTH COURT:
June 22, 1993
petition for Review/Notice of Appeal Filed,
June 22, 1993
Petitioner's petition for Temporary Restraining Order and for a
Preliminary Injunction filed,
June 22, 1993
Order as follows: "petition for Temporary R'2straining Order, in the
nature of an application for Ex Parte Preliminary Injunction id
DENIED, Hearing on Preliminary Injunction is filxed for 6/25/93 at
10:00 a,m, in Courtroom No, 1, HAR, Motion for expedited,
Discovery is DENIED, Kelley, J, (Order exit 6/23/93) ,.
June 24, 1993
Motion for Continuance filed by petitioner'.
June 24, 1993
Memorandum of Law in Support of Motion for Continuance filed by
Petitioner,
2
Docket No. 1767
June 24, 1993
Order as follows: "Petitioner's Motion for Continuance is GRANTED,
Hearing on Petitioner's petition for Preliminary injunction,
previously fixed for 6/25/93 at 9:30 a,m, is continued & is hereby
rescheduled to 6/30/93 at 1:00 p,m" Courtroom No, 1, HAR, Kelley,
J, (Order exit 6/24/93),
June 29, 1993
Memorandum of Law in Opposi tion to Petition for a Preliminary
InjunCti'onl ti+J;~" by Respopd'en4,jli1~"~
Jlliminar: oltctions..Ll::n: .993 ,
,',:^\... ~~. July
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<':;~;,i~.u;'1'bo". .~~~.Ol1A$.~~"'
Petltloner's exhlblts 1
1993
Hearing transcript filed,
July 19, 1993
Amended. Petitioner's amended complaint in equity.
August 4, 1993
Order as follows: "Transferred to Board of Claims because we lack
jurisdiction, Friedman, J,"
August 6, 1993
Preliminary Objections of Respondents Yeruselim & D,O,T, to Amended
Complaint filed,
August 9, 1993
Order as follows: "Argument on Rep, 's p,O, 's to amended complaint
is fixed FOR 8/31/93, 1:30 p,m" Courtroom No, 2, HAR, Rsp, brief
in support of P,O, 's (50 due by 8/20/93. Pet. brief in opposition
to P.O, 's (5) due by 8/27/93, Doyle, J, (order exit 8/10/93) ."
August 11, 1993
Order as follows: "Court transferred this matter to Board of
Claims on 8/4/93, Our order of 8/9/93 scheduling argument on
respondent's P.O. is hereby VACATED as improvidently entered.
Doyle, J, (Exit 8/12/93) ,"
,
~
Docket No. 1767
AUgust 10, 1993
Transferred to the Board of Claims,
BEFORE THE BOARD OF CLAIMS:
September 10, 1993
File received from Commonwealth Court,
*November 24, 1993
Claim and filing fee filed by Plaintiff,
$ 3 25:ifbtro\'!,O~O +':i;T;t~'-' e' ;ji;"".......f~,~,q ?{;#j\V'""1\~:;k~ ---~~riZil<b-HilE1t;liffi
Jl" ~ f~ ,,:,NOVemb~;;~30'
',: I"~ li;i1 5t~'
t'r"i1 ~;,j:
. ies of n~,;'m forw~~ded tOl~; Howa
D~f~ndant and~~hief Deputy Att~e~ Gene.
.,~a,,,.....,~,... . ":])ecemJ:l'&r 3~hl141~~2P
Acceptance of Service of Claim filed by Attorney for Defendant
(Department of Transportation). Receipt of same acknowledged by
Attorney for Defendant (Department of Transportation) December 1,
1993,
December 9, 1993
Acceptance of Service of Claim received from Chief Deputy Attorney
General, Receipt of same acknowledged by Chief Deputy Attorney
General December 2, 1993,
December 27, 1993
Preliminary Objections filed by attorney for Defendants, Copy
forwarded to attorney for Plaintiff by attorney for Defendants,
February 1, 1994
Brief in Support of Preliminary Objections to Complaint filed by
attorney for Defendants, Copy forwarded to attorney for Plaintiff
by attorney for Defendants,
February 25, 1994
Plaintiff's Brief in Opposition to Defendants' Preliminary
Objections filed by attorney for Plaintiff (Renee Biribin), Copy
forwarded to attorney for Defendants by attorney for Plaintiff
(Renee Biribin),
4
Docket No, 1767
**February 25, 1994
Amended Complaint filed by attorney for Plaintiff (Renee Biriban) ,
March 7, 1994
Copies of Amended Claim forwarded to attorney for Defendant and
Chief Deputy Attorney General,
March 11, 1994
Acceptance of Service of Amended Claim dated March 7, 1994 received
from Chief Deputy Attorney General, Receipt of same acknowledged
by ~Clii'ef"DepUt:Y'Attorney . Ge'ner,al Ma,;r;cll~.~ 19
ALimina~ oj~ectionst6 ::::iI,6;omp 94 ..~ a
p~~;L. im. inary Ob. ject. ions ,to Ame.ndea aom.p.ll~a".t
De~~~( c'~'PX,6coTlJar'a.e~.i~,~t to~~~r
for Der:endant,
April 15, 1994
Plaintiff's Brief in Opposition to Defendant's Preliminary
Objections to Amended Claim filed by attorney for Plaintiff, Copy
forwarded to attorney for Defendant by attorney for Plaintiff,
May 13, 1994
The Board rendered an Opinion and made the following Order: "AND
NOW, this 13th day of May, 1994, the preliminary Objections as
filed by the Defendant, Corrunonwealth of Pennsylvania, Department of
Transportation are hereby DENEID, The Defendant is given thirty
(30) days from the exit date of this Order to file responsive
pleadings," Copy forwarded to attorney fOJ~ Plaintiff and attorney
for Defendant,
May 17, 1994
Acceptance of Service of Opinion and Order dated May 13, 1994
received from attorney for Defendant, Receipt of same acknowledged
by attorney for Defendant May 16, 1994.
May 23, 1994
Acceptance of Service of Opinion and Order dated May 13, 1994
received from attorney for Plaintiff, Receipt of same acknowledged
by attorney for plaintiff May 16, 1994,
5
.
Docket No. 1767
June 13, 1994
Answer to Amended Complaint filed by attorney for Defendant, Copy
forwarded to attorney for Plaintiff by attorney for Defendant.
December 9, 1996
Defendant's Request for Production of Documents and Defendant's
Interrogatories filed by attorney for Defendant, Copy forwarded to
attorney for Plaintiff by attorney for Defendant,
April 2, 1997
Lette'f""'rorWarded to parties~r~ques
paifties Miry 2~fh997, d' 'il.
L'~er fo~arld La pa~~.e"O:]"8~ng
pa'ttJ..es J:a'nuafY. 8, .1998"". .# It...
DeCeInber 19, 1997
Letter received from attorney for Plaintiff advising that the
parties are engaged in discovery and settlement negotiations, Copy
forwarded to attorney for Defendant by attorney for Plaintiff,
January 14, 1998
Letter received from attorney for Defendant advising that the
parties are presenting attempting to settle this case,
July 13, 1998
Letter forwarded to parties requesting status, Response due from
parties August 13, 1998,
August 6, 1998
Letter received from attorney for Defendant advising that the
parties are in settlement negotiations,
February 24, 1999
Letter forwarded to parties requesting status, Response due from
parties March 24, 1999,
March 25, 1999
Status letter received from attorney for Plaintiff advising that
the parties are conducting settlement negotiations,
6
Docket No. 1767
April 3, 2000
Letter forwarded to parties requesting status, Response due from
parties May 3, 2000,
April 24, 2000
Letter received from attorney for Plaintiff removing themselves as
attorney of record on behalf of Plaintiff,
June 2, 2000
Letter forwarded to parties requesting status, Response due from
part:i'~S-0-.ulJ.y-c3)"'2000. /,"-'''~ ",ill"""""ll'
situs let~erleceivel~to~naetrineY
tR~ parties af~ in d~sdbYery. &1
"'~'~"c'/ ~,,\I!ILCc~"'" . .' -,1:<.:r~~e;.2 8 ,
The Board rendered an Opinion and made the following Order: "AND
NOW, this 28th day of June, 2000, it is hereby ORDERED and DECREED
that after consideration of correspondence dated April 19, 2000
and June 7, 2000 from George E, Pallas, Esquire, and Defendant's,
Corrunonweal th of pennsyl vania, Department of Transportation,
response dated June 12, 2000, it is hereby ORDERED and DECREED that
George E, Pallas, Esquire and the firm of Cohen, Seglias, Pallas
and Greenhall, P,C, is permitted to withdraw as counsel for the
Plaintiff, Adams County Asphalt Company in the above-referenced
matter, Adams County Asphalt Company is hereby ORDERED to notify
the Board of Claims within thirty (30) days from the exit date of
this Order whether it plans to proceed on a pro-se basis or if they
are in the process of obtaining new counsel," Copy forwarded to
attorney for plaintiff and attorney for Defendant,
July 10, 2000
Mail returned (Opinion and Order dated ,June 28, 2000) due to
forwarding order expired,
July 12, 2000
Mail reforwarded (Opinion and Order dated ,June 28, 2000) with new
address,
7
.
Docket No, 1767
July 27, 2000
Defendant's Motion to Compel Plaintiff's production of Documents
and Answers to Interrogatories Pursuant to Pa. R,C,P, 4019 filed by
attorney for Defendant, Response due from plaintiff September 1,
2000,
April 26, 2001
The Board rendered an Opinion and made the following Order: "AND
NOW, this 26th day of April, 2001, it is ORDERED and DECREED that
Plaintiff's, Adams County Asphalt Company, Complaint be dismissed
wi ~'e-j~di(:eJ:unless AnswerS~11 to .~nt~g~e:r"I'e'S""r~ . nd
p~a!intiff .~ cotnplies with the ~tMotS.on to cdlY!\pel Pro.tion f
06'c;uments wi~n thirty (30) laAyS" m' th xi da' of t
a~aer," Copyrforwarded to attorney fo ~aint a at neys
6gfendants, ',; t" ';t~
i!il,; Mayrtit.21 2001 J:!#
- """","..,..~",-" . J.)' , ""--&~;'
Motion for Continuance and Proposed Order filed by attorney for
Plaintiff,
May 22, 2001
Entry of Appearance of. Glenn J. Smith,
Plaintiff filed (via fax) by attorney for
May 22, 2001
Esquire on
Plaintiff,
behalf
of
Letter forwarded to attorney for Plaintiff granting an extension
until July 23, 2001 to file Answers to Interrogatories, Copy
forwarded to attorney for Plaintiff and attorney for Defendant.
May 23, 2001
Entry of Appearance
Plaintiff filed (via
of Glenn J, Smith,
D,S, mail) by attorney
May 23, 2001
Esquire on behalf. of
for Plaintiff,
Certificate of Service of Entry of Appearance and Motion for a
Continuance filed by attorney for Plaintiff,
July 23, 2001
Answers to Defendant's First Request for Production of Documents
and Answers to Defendant's First Set of Interrogatories filed (via
fax) by attorney for Plaintiff,
8
.
Docket No, 1767
July 26, 2001
Answers to Defendant's First Request for production of Documents
and Answers to Defendant's First Set of Interrogatories filed (via
D,S, mail) by attorney for Plaintiff,
August 3, 2001
.\',.
Certificate of Service of Plaintiff's Answers to Defendant's First
Set of Interrogatories together with Plaintiff's Answer to
Defendant's First Request for production of Documents filed by
attorney for Plaintiff,
."V,(\ '.<1" September 171"'2001
c;;i~ifica~, o~ service~~f Pla~\i '~R~qUe? ,fo4
Documents hlea by attorney fO:QilPlaln, ill
[Januarycf 28 l 2002~"
--"'~Y t,.",W
'.';:;.,,,,,~;d-.' fP~~:J,;.,{
Letter forwarded to parties requesting a Status Report,
Report due on or before 2/27/02.
February 27, 2002
__.~~~:t;;~;;~_~~. .
Status
Letter received (via
advising that she has
awaiting instructions
fax) from Wendy Weikal-Beauchat, Esquire
taken over the caSe for the Plaintiff and is
from the client on going forward,
August 30, 2002
Letter forwarded to parties requesting a Status Report.
Report due on or before 9/30/02.
October 1, 2002
Status
Letter received (via fax) from attorney for Plaintiff advising that
the parties are in the process of completing discovery.
October 2, 2002
Letter received (via D,S,
advising that the parties
discovery,
Mail) from
are in the
attorney
process
for
of
plaintiff
completing
9
.
Docket No, 1767
October 22, 2002
Letter received from attorney for Plaintiff via facsimile advising
that the parties are working together to resolve all outstanding
discovery issues and request that the Boare! take no action per its
August 23, 2002 opinion until the counsel have met to resolve this
matter,
October 24, 2002
~'~
Letter received from attorney for Plaintiff via U,S, Mail advising
that the parties are working together to resolve all outstanding
discdVety.(ciissues and request-that the"'~a:hl'tl:lke-no:'\tad . ts
A~gtst 23 ,"i 200,2 opiniort;until the c6\msellhav~ilmet tb r s
matter , .;~ !~!l Ii ~. ili
~~] ,.!December/13, 'ZO,
D~k~_~c:1.~[lt./~ _ri9~~.i.gE.,. /o>\sa.r:'3..~>~Jts ~~.. ~lie~... JilJO:!
attorney for Defendant, Copy forwardecr to attorney for
by attorney for Defendant, Response due from Plaintiff
February 26, 2003
by
Plaintiff
1/15/03.
The Board rendered an Opinion and made the following Order: "AND
NOW, this 26th day of February, 2003, the Board of Claims, upon its
own motion and discretion hereby issues upon Adams County Asphalt
Company, Plaintiff, a Rule to Show Cause lNhy the Commonwealth of
Pennsylvania, Department of Transportation's Motion for Sanctions
should not be granted, Rule is returnable in thirty (30) days,
Upon failure to respond timely, the Rule shall be made Absolute and
the instant Complaint shall be dismissed with prejudice," Copy
forwarded to attorney for Plaintiff and attorney for Defendant,
April 22, 2003
The Board rendered an Opinion and made the following Order: "AND
NOW, this 22nd day of April, 2003, upon consideration of the Motion
for Sanctions filed by the Commonwealth of ?ennsylvania, Department
of Transportation, on December 13, 2002, this Board's earlier Order
of April 26, 2001, and most recent Order of February 26, 2003, the
Rule contemplated by the Board's Order of February 26, 2003, is
made ABSOLUTE, It is hereby ORDERED that the Complaint filed by
Plaintiff, Adams County Asphalt Company, is hereby DISMISSED with
prejudice in conjunction with the entry of a judgment of non pros
pursuant to Pa, R.C,P, 4019 (c) (3), IT IS SO ORDERED, Costs to be
borne by the Plaintiff," Copy forwarded to attorney for Plaintiff
and attorney for Defendant,
10
.
April 23, 2003
Docket No. 1767
Letter received from attorney for Defendant requesting the Board
dismiss the Plaintiff's complaint with prejudice,
~
11
EXHIBIT "B"
COM1\!ONWEAL TH OF PENNSYL VANIA
ADAMS COUNTY ASPHALT C(H,lPANY
BEFORE THE BOARD OF CLAIMS
YS.
COMtvlONWEAL TH OF PEN'NSYL Y ANlA,
DEPARTMENT OF TRANSPORTATION
DOCKET NO. 1767
OPINION
This matter is presently bdore the Board of Claims for determination of Defendant's
Motion for Sanctions which \\as tiled on December 13, 2002, It appears that Plaintiff, Adams
County Asphalt Company has refused to comply with the Board's Order of April 26, 2001, directing
Plaintiff to comply with Ddendant's !\lotion to Compel Production of Documents within thirty (30)
days of date of such Order. The Order Il1l1her stated that PlaintiJTs Complaint would be dismissed
with prejudice for failure to comply.
Ddendant's instant !\lotion for Sanctions avers that Plaintiff has, in fact, failed to
comply with the Board's Order of April 26, 200 I, and requests that the Board of Claims enter a
judgment of non pros against the Plaintiff. Adams County Asphalt Company in the case docketed
to No. 1767. The Board of Claims believes that the Plaintiff in this case should be extended an
ultimate chance to preserve its cause of action and issues the following Order:
ORDER
AND NOW, this 26th
day of February, 2003, the Board of Claims, upon its
own motion and discretion hereby issues upon Adams County Asphalt Company, Plaintiff, a Rule
to Show Cause \\hy the Commonwealth of Pennsylvania, Department of Transportation's Motion
for Sanctions should not be granted, Rule is returnable in thirty (30) days. Upon failure to respond
timely, the Rule shall be made Absolute and the instant Complaint shall be dismissed with prejudice.
BOARD OF CLAIMS
~ ))1 a V
FEB 2 6 ?C03 BOARD OF CLAIMS
- 2 -
EXHIBIT "C"
cmlMONWEAL TH OF PENNSYLVANIA
ADAMS COUNTY ASPHALT CO!vIP ANY
BEFORE THE BOARD OF CLAIMS
VS.
COMMONWEALTH OF PEl'.TNSYL VANIA,
DEPARTMENT OF TRANSPORT A TION
DOCKET NO, 1767
OPINION
This matter is presently before the Board of Claims for determination of Defendant's
Motion for Sanctions which \\'as filcd on December 13,2002, The Plaintiff, Adams County Asphalt
Company ("Adams"), was ordered by tbis Board on February 26,2003, to comply with yet another
Order of this Board, dated April 26, 200 I, which directed Adams to comply with the Defendant's
Motion to Compel Production of Documents within thirty (30) days of the exit date of the April 26,
2001, Order. The April 26, 2001, Order further stated that Plai11lifrs complaint would be dismissed
with prejudice for failure to comply. This Board's most recent Order of February 26, 2003, reads
as follows:
ORDER
AND NOW, this 26th day of February, 2003, the Board of Claims,
upon its own motion and discretion hereby issues upon Adams County
Asphalt Company, Plaintiff, a Rule to Show Cause why the
Commonwealth of Pennsylvania, Department of Transportation's
Motion for Sanctions should not be granted, Rule is returnable in
thirty (30) days. Upon failure to respond timely, the Rule shall be
made Absolute and the instant Complaint shall be dismissed with
prejudice.
BOARD OF CLAIMS
While this Board is certainly reluctant to dismiss any case for failure of a party to proceed in a
diligent fashion, the Plaintiff in this matter leaves us little choice,
Plaintiffhas pro\'ided no response whatsoever to the Board's February 26, 2003, Rule
to Show Cause. Moreo\'er, this matter has languished on the Board's docket since September 10,
1993, when the instant claim was filed after transfer from Commonwealth Court of Pennsylvania.
Since that time, the Board has repeatedly sent letters to the parties requesting status reports, The
current pending t--Iotion for Sanctions filed by the Commonwealth pertains to a failure to respond
sufficiently to discovery requests that were served by the Department on or about December 5, 1996,
nearlv six and a half vears mwl The Department received no response whatsoever as of July 27,
2000, and tiled a Motion to Compel and Supporting Brief with the Board. The Board issued an
Order dated April 26, 200 I, On July 26, 200 I, (alter receiving an extension of time from the Board)
Adams tiled "Answers to Defendant's First Request for Production of Documents" and "Answers
to Defendant's First Set ofInterrogatories"; however, Adams refused to respond to all the discovery
requests even though they raised no objections to any of the requests, Specifically, Adams supplied
no answers to Interrogatories 7(a) and 7(b) which pertain to additional material costs claimed in
paragraph 58(b) of Adams' Amended Complaint. Adams also made certain documents available for
inspection by the Department on October 3, 2001; however, Adams never copied the documents as
promised e\'en though the Department agreed to pay for the reasonable copying costs.
On July I 0.2002, counsel for the Department wrote to Adams' counsel advising of
the aforementioned failure to respond, but Adams also failed to respond to the letter. In addition,
there are a number of "answers" to the Department's Interrogatorics which were essentially
')
unresponsive as outlined in parJgraph 8 of the Commonwealth's Motion for Sanctions, e.g. Adams'
failure to differentiate between bhor costs and "additional" lahor costs,
Pennsyh'ania Rule of Civil Procedure 4019 provides authority for this Board to enter
an appropriate order if a part v fails to serve answers, sufficient answers or objections to written
interrogatories and/or fails to respond to a request for production of documents, Given Adams'
willful and obstinate failure tl) respond to this Board's Orders, the entry ofajudgment of non pros
is appropriate. See i\IcSlO\ \. Jeanes IlospitaL 376 Pa. Super. 595, 546 A.2d 684; See also Pa.
R.CP. 4019 (c)(3). This will he done in conjunction with the Rule heing made Absolute pursuant
to this Board's Order of Febru:lr: 26,2003, as welL
ORDER
AND NOW, this 22nd
day of April, 2003, upon consideration of the Motion
for Sanctions tiled by the C\>l11momvealth of Pennsylvania, Department of Transportation, on
December 13, 2002, this BO.lrd's earlier Order of April 26, 2001, and most recent Order of
February 26, 2003, the Rule l'ontemplated by the Board's Order of February 26, 2003, is made
ABSOLUTE. It is hereby ORDERED that the Complaint filed by Plaintiff, Adams County Asphalt
Company. is hereby DISl\IISSED \\ith prejudice in conjunction with the entry ofajudgment of non
pros pursuant to Pa. R.Cp. ,HI i 9 (c)(:l). IT IS SO ORDERED,
Costs to be borne hv the Plaintiff
nO^RD OF CLMMS
If( R
TI
~i
J" fr (. ith
,chief Administrative Judge
APR 2 2 2003
- 3 -
BOARD OF CLAIMS
EXHIBIT "D"
,~'._' '
Docket Number: 1809
ADAMS COUNTY ASPHALT CO.
Geo~gc E, Falla~, E~quiYe
Ju.::;.Lu.6. D. L6Gk, E5"-:1.u.':re
81eb.l! J. .:JJ.llitL, LbCJ.uire
Wendy weikal-BeauchettJ
,.s.)""-"itt'!tk5
t" '1
0;~J Sf
'{:
;.:~~
;,1.L
,
"
VS,
~i';;
Hi....
.H'J
'i" il, ',1,
~.(y ~../)0"
~'COMMO~T~ OF P~~~VAN:IA
DEPARTMENT OF TRANSPORTATION
JoLu J. Rob":"u.::;.()u, J.:L" CL':~f COu.u5el
Jeffrey W, Davis, Assistant Counsel
Docket No, 1809
April 13, 1994
Claim and filing fee filed by attorney for Plaintiff, Amount of
Claim: $1,279,883,80+,
April 15, 1994
Copy of Claim forwarded to attorney for Defendant and Chief Deputy
Attorney General,
April 21, 1994
Acceptance of Service of Claim dated April 15, 1994 received
Chief'13'epdty"tAt:'torney Gen'er"a1J"" Re~1:~1o~~'~~kn
ctiref DepJty Attorney General ~pri~t19, ~9941~ \
Pft~ f~j ... ..... May ~~i' 19~
p~~liminary O}:jjections".filed ,~~ a.~torn" f.;
forWarded/to ,a.ttorney for, Pla;i!TItiff~4:>y..,Flit?tor~1!\':y,
August 1, 1994
Answer of Plaintiff, Adams County Asphalt Company to Defendant's
preliminary Obj ections filed by attorney for Plaintiff, Copy
forwarded to attorney for Defendant by attorney for Plaintiff.
March 7, 1995
Answer with New Matter filed by attorney for Defendant. Copy
forwarded to attorney for Plaintiff by attorney for Defendant,
April 3, 1995
The Board rendered an Opinion and made the following Order: "AND
NOW, this 3rd day of April, 1995, it is ORDERED and DECREED that
the preliminary Objections which counsel for the Defendant,
Commonwealth of Pennsylvania, Department of Transportation, fi.led
on May 16, 1994, are DISMISSED as being moot." Copy forwarded to
attorney for Plaintiff and attorney for Defendant,
April 12, 1995
Acceptance of Service of Opinion and Order dated April 3, 1995
received from attorney for Plaintiff, Receipt of same acknowledged
by attorney for Plaintiff April 9, 1995.
April 13, 1995
Acceptance of Service of Opinion and Order dated April 3, 1995
received from attorney for Defendant, Receipt of same acknowledged
by attorney for Defendant April 10, 1995,
2
Docket No, 1809
December 11, 1996
Defendant's Request for production of Documents as well as
Defendant's Interrogatories to Plaintiff filed by attorney for
Defendant, Copy forwarded to attorney for Plaintiff by attorney
for Defendant,
October 20, 1997
Status letter received from attorney for Plaintiff advising that
the parties are conducting negotiations,
March 9, 1998
L~t:;'-;~a~'~ to pa~~r;::"';'~es
p~!ties Ap~il~9, 1998,,~! ?
Ii I ~l May J' 19
s~~~tter.~~~.<:~y'd ''fre~~~tIf'orn~....,~ pI
the part~es are conduct~ng settlement neg()t~at~ons
the Board notified of their progress filed by attorney for
Plaintiff, Copy forwarded to attorney for Defendant by attorney
for Plaintiff,
November 23, 1998
Letter forwarded to parties requesting status, Response due from
parties December 23, 1998,
February 24, 1999
Letter forwarded to parties requesting status, Response due from
parties March 24, 1999,
March 25, 1999
Status letter received from attorney for plaintiff advising that
the parties are conducting settlement negotiations,
January 14, 2000
Letter forwarded to parties requesting status, Response due from
parties February 14, 2000,
January 24, 2000
Letter-type withdrawal of counsel, Georc;re E, Pallas, filed on
behalf of Plaintiff,
3
Docket No. 1809
January 28, 2000
The Board rendered an Opinion and made the following Order: "AND
NOW, this 28th day of January, 2000, it is ORDERED and DECREED that
the Board GRANTS the request of George E, Pallas, Esquire to
withdraw as counsel of record, It is further ORDERED and DECREED
that Plaintiff, Adams County Asphalt Co" shall have new counsel
enter an appearance on the record within thirty (30) days of the
exit date of this Order," Copy forwarded to all parties of record,
February 9, 2000
AccePt;;'nc~ of~rvice 0~10piri'iJbn and>'"O~b- ~ua
r#eived from~ttorneYj;for pla''hp(fc (Ge~):'ge t~. palias,
Rtceipt of s~~~ acknow~e,dged bYi~ttbj ~ for ~a~ptiff
$las, ESqu~~) January 31, 20;01L . ,
/ ~~ / \:~i~ M a cr ch,t;27, ~:c2000;1J
,/ t::><.. .,', _~"'.' ~",:, ,j' ,"i~~, __,.i4"
1;;,:-.;1'-' ,~,~-;<...-~.~...;. .. '-'.c.',' "".jj;JiJ,J ~"''41~'')ii'jllCl'w
Status letter received from attorney for Defendant advising that
Plaintiff has not responded to any requests of Defendant since 1996
and if no action from Plaintiff, Defendant will move the Board to
dismiss the case for lack of prosecution.
April 17, 2000
Status letter receiv~d from attorney for Plaintiff advising that
the parties are working on an amicable resolution of this matter,
July 27, 2000
Defendant's Motion to Compel Plaintiff's production of Documents
and Answers to Interrogatories Pursuant to Pa, R,C,P, 4019 filed by
attorney for Defendant. Response due from Plaintiff September 1,
2000,
AUgust 24, 2000
Status letter received
extend the deadline for
to Compel,
from attorney for Plaintiff requesting we
Plaintiff to respond to Defendant's Motion
AUgust 30, 2000
Letter forwarded to attorney for Plaintiff granting an extension of
time until November 24, 2000 in which to respond to Defendant's
Motion to Compel Plaintiff's production of Documents and Answers to
Interrogatories,
4
Docket No, 1809
November 27, 2000
Letter received from attorney for Plaintiff advising that he would
be receiving the entire file from Judge Evans of the Dauphin County
Court of Common Pleas on November 28, 2000, at which time he will
be prepared to comply with the discovery order issued,
March 22, 2001
Letter forwarded to parties requesting a status report. Response
due from parties 4/23/01,
April 27, 2001
~",I"!<"';"";". ~ '''''''''i;.'' 'd";&.ih.:~4" f -''''(f;;;<<iDTJ4''v;;mt>4;<fU
tV "..;~ \<i!Jk 'i'~;>;' \:,1;1 \n~:!i- " ~ ~ ~
Status letter,fecei ved from att6;:.neJ,iiifor !\fentl!nt ad\ris
ha.~ been attenipting to? obtain t;~is1!~11>:-~"Y fr r:q .ft~ PIa
se,yeral years Filnd Joshua Lock, E~quire""'im~se efef!J.ant at he
n~ql.on..ger the (at.torney for..Pla. irttif~.. an.d~f . ant w~ll ttemp
Ob~~"",.Sis'co..':'~~,Y do.<:.ument?,.~JO.~ Pl~i~S~ir, s_A~_~r
not successful, he will be moving to ~smiss the case for lack
prosecution,
AUgust 31, 2001
Letter forwarded to parties requesting a status report, Response
due from partes 10/01/01,
October 12, 2001
The Board rendered an Opinion and made the following Order: "AND
NOW, this 12th day of October, 2001, a Rule to Show Cause is
issued upon Plaintiff, Adams County Asphalt Company, wherein
it is DIRECTED that Plaintiff advise th(~ Board, within thirty
(30) days from the exit date of this Order, as to whether or
not Plaintiff wishes to pursue the above-captioned matter. In
the event the Board does not receive a response to this Rule,
said Rule to Show Cause shall become absolute and the case
shall be marked "closed, discontinued and ended with
prejudice" ,
October 18, 2001
Praecipe to
attorney for
forwarded to
withdraw appearance of Joshua D, Lock, Esquire,
Plaintiff filed by Joshua D, Lock, Esquire, Copy
attorney for Defendant by Joshua D, Lock, Esquire,
5
Docket No. 1809
October 30, 2001
Entry of Appearance of Glenn J, Smith, Esquire, on behalf of
plaintiff filed by attorney for Plaintiff,
October 31, 2001
Answer to Rule to Show Cause filed by attocney for Plaintiff,
November 6, 2001
Certificate of Service of Entry of Appearance and Plaintiff's
Answer.to Rule to Show Cause filed by,attorney for Plaintiff.
/.1 ': ',', . . JuIiif~?, ~002 'jl.:~""""""l
i'.' . !;f.." ~tt'.\ ~t.. ~,'
U~iter forwar4.kd to pA~..'~ies re~... eS~~~.j.~ St~~.I.llSD~epor
~~port due onkor before"July 8, ':2002. ~l1l', ~rr~ '1
Julni8, 2002fflll
ii' ~,. ",iJj:tW
'"...~ , 1:t"""rAilW~
Letter/Status Report ceceived (via fax) froIn attorney for plaintiff
advising that there are still outstanding discovery requests,
July 8, 2002
Letter/Status Report received (via U,S, Hail) from attocney for
Plaintiff advising 'hat there are still outstanding discovery
requests,
July 19, 2002
Letter received from attorney for Defendant requesting that the
Board dismiss the case with prejudice, or at the very least, grant
Defendant's Motion to Compel Discovery that was filed ,July 27,
2000, '
August 23, 2002
The Board rendered a:l Opinion and made the following Order: "AND
NOW, this 23rd day 0: August, 2002, it is hereby ORDERED that the
Plaintiff, Adams County Asphalt Co" comply with all the discovery
requests served upon it by the Commonwealth of Pennsylvania,
Department of Transportation, within sixty (60) days of the date
hereof, and in the event that the Plaintiff fails to reply to such
discovery this case shall be dismissed with prejudice upon motion
of the Defendant," Copy forwarded to attorney for Plaintiff and
attorney for Defendant,
6
Docket No. 1809
October 22, 2002
Letter received from attorney for Plaintiff via facsimile advising
that the parties are working together to resolve all outstanding
discovery issues and request that the Board take no action per its
August 23, 2002 opincon until the counsel have met to resolve this
matter,
October 22, 2002
Letter received from attorney for Defendant via facsimile advising
that he disagrees wich Plaintiff's letter stating that the parties
are/wo'rki~g . t()~eth~r to res61:'V:i:, out~e's.rt~~g~t:~'ty .~ if
t.uer reSPOri!3es[',~o dl"coy~ry are'1J:l.?t df\e.cceel~ed hln.. 60 s of
8~23/02 Order!cthat Plamtiff wii1.1 s~ move r d:l-smi l,
1r,~ !,,\;~~~Octobej~4, :1:1J' I .
L~'~'t~EE.eCei'S...~a,,~r.9.m at"to:r.;~e~ttgr p~aj}:~'f ~~IIlg.,.,S'Ma a~g
that fFie parties arc' working together'to resolve all outstanding
discovery issues and request that the Board take no action per its
August 23, 2002 opin on until the counsel have met to resolve this
matter,
October 22, 2002
Letter received from attorney for Defendant via D,S, Mail advising
that he disagrees wi'h Plaintiff's letter stating that the parties
are working togethe' to resolve outstanding discovery and that if
the responses to dit"overy are not received within 60 days of our
8/23/02 Order that Tlaintiff will still move for dismissal,
November 7, 2002
Defendant's Motion: Dismiss As Sanction for Discovery Violation
Pursuant to The Bo. d's Order of August 23, 2002 and Brief in
Support filed by " torney for Defendant, Copy forwarded to
attorney for Plaintiff by attorney for Defendant. Plaintiff's
response due 12/12/02.
7
February 12. 2003
Docket No. 1809
The Board rendered an Opinion and made the following Order: "AND
NOW, this 12th day of February, 2003, after due consideration of
the pleadings and the failure of Plaintiff to respond to discovery
requests of the Defendant as ordered and upon Defendant's Motion to
Dismiss, it is hereby ORDERED that said motion is GRANTED and the
matter docketed to No, 1809 is DISMISSED WITH PREJUDICE and the
docket shall be marked accordingly, IT IS SO ORDERED." Copy
forwarded to attorney for Plaintiff and attorney for Defendant,
''-'',
~.
8
EXHIBIT "E"
BEAUCHAT&'BEAUCHAT
All0RNEYS AI LAW
63 West High Sheet
C;cllysGurg, Pennsylvania 17325
lelephone 717.334.4515
rocsirnile 717-337-2009
E-mail wbeouchol@earthlink.nel
Mark D. Beauchal, Esq.
Wendy Weikal.Beauchal, Esq.
October 22, 2002
VIA F ACSIMlLE: (717) 772-2741
Jeffrey W. Davis, Esquire
P,O. Box 8212
Harrisburg, PA 17105-8212
He: Adams County Asuhalt COllllJanv v. COllllllonwalth or I'ennsvlvania
Deuartment or Transportation Board or Claims Docl(et # 1767. 1809.2238
Dear Attorney Davis:
Per my message with your office yesterday morning, I would like to arrange a time this
week that we can get together to exchange documents. I have had the opportunity to review not
only claim II I 809, but also the other two claims mentioned above. It appears from my review
that at one point in time Attorney Smith who was previously with this office; had promised you
some documents, Particularly in the case or 1767, it appears that those had never been provided
at this point. My client has several boxes of documents regarding these three claims,
I am not sure what has and has not been provided to you. However, I believe that irwe
meet either at your office or at my office we will be able to go through these documents and find
out what your office still seeks. For your records, 1 have attached a copy of the status update that
I am sending into the Board or Claims today with regard to this matter.
I look forward to getting this matter resolved in a timely manner. Please give me a call at
your convenience today, thank you for assistance with this matter.
Sincerely,
UEAUCJlAT & UEAUClIAT
.I
If"
Wendy Weikal-l3eauchat
WWB/jlk
a
FAXED
I () -.:t2 -0 2...
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
www.dot.state.pa.us
Office of Chief Counsel
400 North Street - 9th Floor
Keystone Building
Harrisburg, PA 17120-0096
Tel: 717-787-5804
Fax: 717-772-2741
~
OS.2 (4.01)
J\.1ailinl!' Address:
P,O, Box 8212
Harrisburg, PA 17105-8212
October 22, 2002
BY FAX ((717) 787-0415) AND FIRST CLASS MAIL
Honorable David C. Clipper
Chief Administrative Judge
Pennsylvania Board of Claims
200 North Third Street, Suite 700
Fulton Building
Harrisburg, Pennsylvania 17101-1501
Re: Adams County Asphalt Co. v. Commonwealth of Pennsylvania, Department
of Transportation. Docket No, 1809
Dear Judge Clipper:
This letter is written in response to Ms. Weikal-Beauchat's letter to you of October 22,
2002,
It is inaccurate to state that Ms, Weikal-Beauchat's office "has been working with" me
"to resolve all outstanding discovery issues with regard to, , , three cases," The only
"outstanding discovery issue" is in Docket No, 1809, and that involves only the need for Ms,
Weikal-Beauchat's client to respond to the discovery requests that have been outstanding for
almost six years in order to avoid dismissal for failure to prosecute pursuant to the Board's order
of August 23, 2002, Ms, Weikal-Beauchat seems to be attempting to evade responding by
representing to you that there is going to be a meeting to which she and I have not agreed and
which I have no interest in attending, It is the Department's position, from which it has never
retreated, that the case should be dismissed per your August 23, 2002 order if responses are not
served within 60 days after the order,
The attempt to link the matter presently before the Board in Docket No, 1809 with two
other cases is curious, Ms, Weikal-Beauchat and I have never discussed Docket No, 1767; I
wrote to her in July 2002 regarding her client's failure to provide documents and information
previously promised, and she has, to this date, completely ignored my correspondence, I have no
idea what Docket No, 2238 is about, having never appeared in that case on behalf of the
Commonwealth,
Hon, David C. Clipper, Chief Administrative Judge
October 22, 2002
Page Two
If discovery responses are served within the time allowed by your August 23, 2002 order,
I do not intend to refer the matter to the Board any further. If they are not, as the order suggests, I
will move for dismissaL
Very truly yours,
A;;~'/Z/L
J/fJfey W, Davis
Assistant Counsel
cc: Wendy Weikal-Beauchat, Esquire (by fax (717)337-2009) and first class mail)
EXHIBIT "G"
CU\lMONWEALTH OF PENNSYLVANIA
ADAMS COUNTY ASPH:\LT CO.
BEFORE THE BOARD OF CLAIMS
VS.
COMMONWEALTH OF PINNSYL VANIA,
DEPARTMENT OF TRc-\l\SPORTATlON
DOCKET NO. 1809
OPINION
This case was <,riginally received by the Board of Claims on April 13, 1994 upon a
Compbint tiled by :\dal11'; CLlUI11Y Asphalt Co., Plaintiff, against the Commonwealth of
Pennsylvania, Department "I' Transportation, Defendant, demanding judgment in favor of the
Plaintiff in the amount of One' :dillion Two Hundred Seventy-Nine 1110usand Eight Hundred Eighty-
Thrce Dollars and Eighty CCllts (5 I ,279,883,80) as damages for delay in a construction project in
Cumberland County, Penns) I\'ania.
Defendant fih! an Answer with New Matter with the Board of Claims on March 7,
1995 and, thereafter, on Dc'cember 11, 1996, Defendant began discovery with a Request for
Production of Documents as well as Interrogatories to the Plaintiff No response to discovery
requests has been delivered h Plainti!T.
On October 1:. :001, the Board ofCbims issued a Rule to Show Cause directing the
Plaintiff to respond to said Rule or thc Rule would become absolute and the case closed with
prejudice. Plaintiff responded to the Rule on October 31,2001,
Following a period of inactivity, on August 23, 2002, the Board of Claims rendered
an Opinion and Order, directing Plaintiff to comply with aH discovery requests propounded by
Defendant within sixty (60) days or the case shall be dismissed with prejudice upon motion of the
Defendant. After denial that the parties were negutiating a settlement of the case, Defendant, on
November 7, 2002, submitted to the Board of Claims, a Motion to Dismiss pursuant to the Board's
Order of August 23, 2002. in that Plaintiff failed to comply with said Order. No response to
Defendant's t-"Iotion to Dismiss has been filed by Plaintiff to date.
ORDER
AND NO\\',this 12th
day of February, 2003, after due consideration of the
pleadings and the failure of Plaintiff to respond to discovery requests of the Defendant as ordered
and upon Defendant's t-,Iotion to Dismiss, it is hereby ORDERED that said motion is GRANTED
and the matter docketed to No. 1809 is DISMISSED WITH PREJUDICE and the docket shall be
marked accordingly.
IT IS SO ORDERED,
BOARD OF CLAIMS
~ L<< ~ V
FEB 1 2 l:{)O3 BOARD OF CLAIMS
- 2 -
EXHIBIT "H"
COMMONWEALTH OF PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
BEFORE THE BOARD OF CLAIMS
VS,
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
DOCKET NO, 1809
July 28, 2003
PROCESS EXIT DATE*
TO:
Board of Claims
Commonwealth of Pennsylvania
Fulton Building
200 North Third Street - Suite 700
Harrisburg, Pennsylvania 17101-1518
Chadwick O. Bogar, Esquire J
Jeffrey W, Davis, Assistant Counsel
FROM:
Kindly accept service of the enclosed Opinion and Order by signing this form at the place provided
below and return the executed form immediately to the Fulton Building, 200 North Third Street -
Suite 700, Harrisburg, Pennsylvania 17101-1501, Please retain the attached for your jiles.
'0 O;;:IM'g ;?rd/C
Connie G, Rode / ' Y
xec:utive Secretary
ACCEPTANCE OF SERVICE
AND NOW,
service of Opinion and Order in the above named case is
Acceptance Date
accepted and receipt of a tme copy thereof acknowledged,
For
*ACCORDING TO ARTHUR T. MCDERMOTT VS. DEPT, OF HEALTH, 519 A.2d 1088 (1987), THE
THIRTY (30) DAY APPEAL PERJOD BEGINS TO RUN FROM THE DATE OF THE MAILING OF THE
OPINION AND ORDER, SAME BEING EVIDENCED ON THE MAILING ENVELOPE.
arg
COMMONWEALTH OF PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
BEFORE THE BOARD OF CLAIMS
VS,
COMMONWEAL TH OF PENNSYLVANIA,
DEPARTMENT OF TRANSPORTATION
DOCKET NO, 1809
FACTS
The Claim was originally filed on April 13, 1994. An Answer with New Matter was
filed by Defendant on March 7, 1995, No reply to New Matter was ever filed, Interrogatories and
a request for production of documents were filed by Defendant on December 11, 1996, and a copy
forwarded to Plaintiff.
Defendant first moved to compel responses to its discovery request on July 27, 2000,
by motion, and after requests for extensions of time to file responses were granted, no responses
were received from Plaintiff.
On April 27, 200 I, the Board was advised by Defendant by status letter that he had
been attempting to obtain discovery from Plaintiff for several years but had not been successfuL
Accordingly, on October 12,2001. the Board issued a Rule to Show Cause upon Plaintiff to advise
the Board within 30 days as to whether or not Plaintiff wished to pursue the matter, indicating that
the rule would become absolute if Plaintiff did not respond and that the case would be marked
closed, discontinued and ended,
On October 30, 200 I, Plaintiff changed attorneys, and on October 31,2001, Plaintiff
filed an Answer to the Rule to Show Cause indicating it wished to pursue the case, However,
Plaintiff still did not comply with Defendant's discovery requests nor provide any reasons for not
doing so,
Again, on August 23, 2002, the Board ordered Plaintiff to comply with Defendant's
discovery requests within 60 days or, upon failure to do so, the case would be dismissed with
prejudice. On October 22, 2002, attorney for Plaintiff, via facsimile, advised the Board that both
parties were working together to resolve the outstanding discovery issues, On October 22, 2002, via
facsimile, attorney for Defendant disagreed with Plaintiffs assertion that the parties were working
to resolve the discovery issues,
On November 7, 2002, Defendant filed a Motion to Dismiss as Sanction for
Discovery Violation. No brief or response to this Motion was filed by Plaintiff. On February 12,
2003, the Board granted Defendant's Motion to Dismiss for failure to respond to discovery requests
and dismissed this matter with prejudice.
On June 12, 2003, Plaintiff filed a Petition to Open, which was responded to by
Defendant on July 7, 2003,
OPINION
Defendant's attempt to obtain answers to interrogatories and production of documents
from Plaintiff extended over a period of time in excess of six years, Plaintiff has never complied
with these requests or explained its failure to do so, even after numerous attempts by Defendant and
multiple orders of this Board,
Finally on February 12, 2003, nearly nine years from initiation of the Claim, the
Board granted Defendant's request and dismissed this case,
- 2 -
The Petition to Open was not received until June 12,2003, some four months after
dismissaL In the Petition, the Board is requested to open this matter due to the assertion that
Defendant has not been incurably prejudiced by Plaintiffs ulilure to respond to the numerous
discovery requests over this extended time period, Plaintiff avers that sanctions of dismissal for
discovery violations should only be granted in extreme circumst,mces. Citing Crovdon Plastics Co"
Inc. v, Lower Bucks Cooling: & Heating, 698 A.2d 625 (Pa, Super. 1997)
Plaintitr s extensive delay in failing to respond to discovery requests and Board orders
make its assertion that Defendant has not been prejudiced thereby extremely dubious, However, we
need not decide any issue alleging prejudice or extreme circumstances, By statute, judgment entered
in an adverse proceeding becomes final if no appeal therefrom is filed within thirty (30) days, See
42 Pa. P,S, 95505. Thereafter, the judgment cannot be opened unless fraud or some other
circumstances of a grave or extraordinary cause is established, .Luckenbaugh v, Shearer, 523 A,2d
399 (Pa, Super. 1987) Unlike a judgment entered by confession or by default, which remains within
the control of the court indefinitely and may be opened or vacated at any time upon l','oper cause
shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed as it is final if
no appeal is filed within 30 days. Simpson v. Allstate Ins, Co., 504 A.2d 335 (Pa, Super. 1986)
Plaintiff would have to demonstrate extraordinalY cause in order to justi fy the relief
which it seeks. It has failed to do so. See Simpson, id, The order of dismissal became final 30 days
after its entry, Plaintiff did not respond to discovery requests for over well over six years, did not
respond to Defendant's Motion to Dismiss and did not file its Petition to Open for a period of four
months after the Order of DismissaL There are no extraordinary circumstances favoring Plaintiffs
Petition to Open. Accordingly, the Petition to Open is denied,
- 3 -
ORDER
AND l\'OW, this 28 th day of July, 2003, it is hereby ORDERED and DECREED
that PlaintitTs Petition to Open is DENIED.
BOARD OF CLAIMS
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JUL 28 2003 BOARD OF CLAIMS
u~~Zi
JJ:-ffreff. S ltb.
€hie'f AdnBnistrative Judge
- 4 -
EXHIBIT "I"
BEAUCHAT&BEAUCHAT
m
ATTORNEYS AT LAW
Mark O. Beauchat, Esq.
Wendy Weikal-Beauchal, Esq.
63 West Hiyh Slreel
Gettysburg, Pennsylvania 17325
Telephone 717-334-4515
Facsimile 717-337-2009
E-mail BeauchalaDcvn.net
Scplcmber 24, 2UU2
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Roberl M. Mumma, H
AUenliun: Karen
I'.O.lJux E
llowmansdale,I'ennsylvania
~7/17(/&~&/
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!tE: Adams Counlv ASllhall COllluanv v. l'cnn Uol
Claims Numbcrs: 1767.1809.2238
Dear Bob or Karen:
Enclosed please find an Opinion and Order enlcred by Ihe Doard appmenl1y in response
lo a Rule 10 Show Cause filed in Oclober of 20UI in conjum:lion with lile a!mvp-""plianed
mailers, As you will see from 1Ile pleading I have approximalely.J!)-{fnySlll which 10 produce
1I1e requesled discovery. If it is nol produced 1I1e mallcr will be dismissed,
,::t)
I have allempled to work lIlfough Ihis maller wilh Ginger 10 ascerlain Ihe localion of 1I1e
files which I believe contain 1I,e requesled inloflnalion on nwncrous occasions, However, we
have come 10 a dead end, I believe lIlat 1Ilere were two boxes of files here in our office,at one
point 1I1at pertained to lilis matter, However, I was under lile impression that 1I1e files' were
relurned to Bob or McDennilt. This was my bcliefdue to the fact lIml GlelUllell the office willI
1I1e files one day to go to a meeling, I believed willI Dob, Ginger has .infoflncd llIe UIlII she has
. been wmble to locate 1I1e files and has direcled llIe to conlacl Karen, '
When Glenn Smilll Jell our office he provided me willI a comprehensive list of the cases
he was working on. He indicales to me lImt 1I1e files for case II wlIber 18U9 are willI Allomey
Cohen in Philadelphia, and the location for the files for case nWlIber 2238 are wlknown,
Therefore I believe 1Ilat the filcs for 1767 must be Ule boxes in question. lIe ulso references tile
fact timt Josh Lock is possession of some multers for Adams Cowlly Asphalt und lhat he is
witlulOlding tile file pending payment
frankly, I am in possession of very lillle infonualion wilh regard to lhese mailers and I
feel very wleolllfortable moving forward ill tills maIUler. Withoul the requeslcd discovery
infonnation 1 can Ilotmove forward wilh this mailer and thc Illostlikely result is thatthc above
mailers will be dismissed, Thcrcfor'c, 1 will tullc no furthc.' uctiun without thc I'cllucslcd
infol'lnalion or yonI' further ins!l'uction. Should you nol conlactme amI/or provide me with
further instruction, 1 will ass wile Ihat you do nol wish to move forwlud with this maltcr, If there
is wlOtller allomey handling this mailer please let me know so that 1 can Iorward what
information I do have,
If you have W1Y queslions, please do nol hesitate to conlact me,
Sincerely,
Wendy Weikal-l3eauchat, Esq,
13eauchat & 13eauchat
Enclosure (I)
EXHIBIT" J"
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BEAUCHAT '&'BEAUCHAT
AJIORNEYS AT lAW
63 .....V<.?~I Hgh Slleel
(--:.r.Uy~.f')l'lg. r(,IlIl~,ylv'(]l1iCJ 17325
le1cpl1olle 7 \7-334-4515
ruc;,ll!lilc- 717.337.2009
['mo,] \',~uchot@eorthlin~.nel
tv\ork D, Beauchol, Esq.
Wendy Weikol.Beouchot, Esq.
October IS, 2002
VIA FACSIMILE TO: (717)772-2741
Jeffrey W, Davis, Esquire
CIO Susan M, Tyrone, Paralegal
P,O, Box 8212
Harrisburg, PAl 7105-8212
Re: Adams County Asphalt Company v, Commonwealth of l'ennsyJyania Department of
Transportation Board of Claims Docket # 1809
Dear Mr, Davis:
Today, I have received from your paralegal U,e request for production of documents and
interrogatories, Upon review, it is my belief Umt we have provided much of Ulis information previously.
However, please keep in mind I Ulink I anI UIC third if not UIC fourUl allomey who has worked on this file,
I may be missing someUling.
'.
We have several boxes of documentation with regard to this matter. My suggestion is we attempt
to get together next week. I would be willing to come to Harrisburg so that you and I may go Uuough the
boxes and pull out what it is you still want with regard to Ihe request of production of documents. TImt
may save us both some time reviewing documents and cut down on repetitive copies.
TIle interrogatories came straightforward with regard to UIC relallon to the documents and U,e
potential witnesses, By my estimation U,e due date for Ulis information is Wednesday October 23.
I will be out of Ule oillee for UIC rest of the al1ernoon. It may be nccessa,!' to request a brief 10
day extension of time in which to get you this information. Ho\\"c\'cr. frolll prcvious convcrsations with
you, I anI not sure tlmt will even be necessary, I request we discuss Ulis matter on Monday,
I look forward to speaking with, Please contact my oillce and inform one of my assistants as to
''''hat the best time to reach you all Monday will be, Thank you for YOl.::r assistancc in this matter.
Sincerely,
DE,\ CIIA T & UEAUCIIA T
Wendy Wcikal-Ueauelral
WWB/jlk
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CERTIFICATE OF SERVICE
I, Bradley A. Schutjer, certify that on this date, I served a certified true and correct copy
of the foregoing upon the following, by depositing the same in the United States mail, postage
prepaid, addressed as follows:
BEAUCHAT & BEAUCHAT
63 West High Street
Gettysburg, P A 17325
and
WENDY WEIKAL-BEAUCHAT
BEAUCHAT & BEAUCHAT
63 West High Street
Gettysburg, PA 17325
Dated: '61 ,:)Q{6'S
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO"
CIVIL DIVISION
Plaintiff,
Case No,: 03-3049
v,
PRAECIPE FOR APPEARANCE
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Filed on Be.half of Defendants, Beauchat
& Beauchat and Wendy Weikal-
Beauchat
Defendants
Counsel of Record for These Parties:
VINCENT J, GROGAN, ESQUIRE
Pa, LD, No,: 00630
CHARLES W, KENRICK, ESQUIRE
Pa, LD, No,: 15967
GROGAN GRAFFAM, P,C,
Finn LD, No, 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURy TRlAL DEMANDED
Our File No,: 49016/17011
{49016-1701\ WOIl4721.1}
IN THE COURT OF COMMON PLEAS OF CUNmERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants
PRAECIPE FOR APPEARANCE
To: Prothonotary
Kindly enter our appearance on behalf of Defendants, Beauchat & Beauchat and
Wendy Weikal-Beauchat, in the above-captioned action.
Respectfully submitted,
GROGAN GRAFFAM, P.C.
~v
CHARLES W. KENRIC
Pa. I.D. No.: 15967
Four Gateway Center, Twelfth Floor
Pittsburgh, Pennsylvania 15222
{49016-17011 W0I14721.1}
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Praecipe for
Appearance has been served on this IOlh day of September, 2003, via U.S. Mail, f1rst-
class, postage pre-paid upon the following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, Pennsylvania 17001
(Counsel for Plaintiff)
~~;~qL
Charles W. Kenrick, Esquire
{49016-17011 W0114721.1 }
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
MOTION TO COMPEL RESPONSES TO DISCOVERY
~..f.,
AND NOW, this (~J.;;;- day of October, 2003, Plaintiff, by and through
counsel, files the following Motion to Compel Defendants to provide responses to
Plaintiff's discovery requests.
1. On August 29, 2003, Plaintiff served Defendants with Interrogatories
and Requests for Production of Documents. A copy ofthe Interrogatories and
Requests for Production of Documents are attached hereto as Exhibit "A."
2. On September 24,2003, Defendants, through counsel, requested and
were granted an extension until October 10, 2003 to reply to the discovery.
3. On October 14,2003, Defendants provided responses to Plaintiff's
Requests for Production of Documents but no response to the Interrogatories.
4. Therefore, Defendants are in violation of the rules of civil procedure
as they have failed to timely answer Plaintiff's Interrogatories.
WHEREFORE, Plaintiff, Adams County Asphalt Company, respectfully
requests that the Court order Defendants, Beauchat & Beauchat and Wendy
Weikal-Beauchat, to provide answers to Plaintiff's Interrogatories within ten (10)
days and grant such other relief as the Court deems proper.
Respectfully Submitted:
Baley A. tjer
a. ID No. 75954
Chadwick O. Bogar
Pa. ID No. 83755
2157 Market Street
Camp Hill, PA 17011
717.737.6400
Attorneys for Plaintiff
2
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct
copy of the foregoing was served by First Class Mail upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
Dated: IO/:J..l /b'3
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EXHIBIT "A"
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COU:\"TY ASPHALT CO.,
Plaintiff,
v.
BEAUCHA T & BEAUCHA T and
WENDY WEIKAL-BL\UCHAT,
Defendants.
INTERROGATORIES AND REQUEST FOR DOCUMENTS TO
DEFDIDANT BEAUCHAT & BEAUCHAT
AND NOW, Plaintiff. Adams County Asphalt Co. ("Plaintiff' or "ACA"), by and
through counsel serves the following Interrogatories and Request For Documents, upon
Defendant, Beauchat & Beauchal.
These interrogatories and docllment requests are intended to be continuing and,
therefore, responses are to be supplemented and/or corrected in the event additional
infomlation is obtained at any dale after the initial answer, up to and including the time of
trial, pursuant to the Rules ofCil'il Procedure. In answering these Interrogatories,
Defendant is requested to follO\\ the definitions and instructions outlined below.
Defendant's ans\\ws to interrogatories and responsive documents to Plaintiffs
document requests should be produced to Plaintiff within thirty (30) days of service
hereof. If Defendant intends to make responsive documents available for inspection and
,~
copying, such documents should be produced during regular business hours at the
Plaintiffs counsel's office in thirty (30) days of service hereof, and continuing until
inspection and copying is completed.
GENERAL INSTRUCTIONS
1. Whenever an interrogatory or document request is framed in the
disjunctive, it shall also be taken in the conjunctive and vice versa.
2. Whenever an interrogatory or document request is framed in the singular,-
it shall also be taken in the plural and vice versa.
3. Whenever a masculine pronoun or possessive adjective appears in an
interrogatory or documem request, reference is made to both males and females, if
appropriate.
4. The use of any tense of a verb shall be considered also to include within
its meaning all other tenses of the verb so used.
5. In responding to the interrogatories and document requests. Defendant
shall give the broadest reading \0 all tenns used herein, consistent with the applicable
Rules of Civil Procedure and in compliance with the definitions set forth herein and
incorporated in these interrogatories and document requests by reference.
6. Should the precise answer to an interrogatory not be known, Defendant is
instructed to state that she does not know the precise answer, give the best estimate
possible, and state that her answer is an estimate.
7. All documents produced by Defendant shall be segregated and identified
according to thc paragraph to which they are primarily responsive.
DEFINITIONS
For purposes of these interrogatories and document requests, the following words
and phrases shall have the meanings indicated:
1. The word "person" means any entity and includes, but is not limited to,
any natural person, joint o\\'ner, association, company, partnership, joint venture,
corporation, tmst or estate.
2. The word "document" means the original (or any copies when originals
are not available) unless otherwise stated, and any non-identical copies (whether different
from the original because notes were made on such copies or otherwise) of writings of
every kind and description. whethcr inscribed by hand or by mechanical, electronic,
microfilm, photographic or other means, as well as phonic (such as tape recordings) or
visual reproduction of oral statcmcnts, conversations or events, and including, but not
limited to, correspondence, telet~1Je messages, internal memoranda, notes, financial
statements or projcctions, reports, compilations, studies, tabulations, tallies, maps,
diagrams, plans, pictures, computer nms, photographs, sound reproductions, and
summaries of computer mns, pertaining in any manner to the subject matter indicated.
3. The word "communication" means any exchange, transmission or receipt
(whether as listener, addressee, person called or otherwise) of information, whether such
exchange, transmission or receipt be oral, written, or otherwise and includes, without
limitation, any meeting, conversation, telephone call, letter, telegram, telecopy, e-mail
and the exchange, transmission, or receipt of any document of any kind whatsoever.
4. Thc word "idcnti fy" when used with respect to a pcrson, means to state the
full name and prescnt or last known residence and business address of such person and, if
a natural person, his or her present or last known job title and the name and address of his
or hcr prescnt or last known cmploycr.
5. The word "identify" when used with respect to a document, means to
describe the document by date, subject matter, the name of each person who wrote,
signed, initialed, dictated, or otherwise participated in the preparation of the same, as well
as the name and address of each person who has possession, custody or control of such
document. If any document was, but is no longer in existence or in Defendant's
possession, custody or control, state the date and manner of its disposal. If any claim of .
privilege is asserted with respect to any such document or communication, Defendant
shall state the facts supporting the claim and identify the documents or communications
involved.
6. The word "identify" when used with respect 10 an act, occurrence,
statement or conduct, hercinafter collectively called an "act", means to (a) describe the
substance of each event constituting such act and to state thc date when such act
occurred; (b) identify each pcrson participating in such act; (c) identify each person
present when such act occllrrcd; (d) state whether the occurrence of such act was
recorded or described in a document; ( e) state whether each document or a copy thereof
now exists, and (f) identify the person presently having possession, custody or control of
each such document.
INTERROGATORIES
I. Identify ewry individual who has or claims to have relevant knowledge of
the facts, incidents and/or circumstance surrounding the claims set forth in Plaintiffs
Complaint and in relation to the identified individuals, state the following:
a. Pro\'ide the individual's name, address and telephone number.
b. Identify the individual's employer and position.
c. Pro\'ide the source of each individual's knowledge and describe
what each individual knows or claims to know.
ANSWER:
2. Identify an\" and all communications, whether written or oral, between
Defendants, their employees and representatives and Plaintiff, its employees and
represenl3tives, relating 10 the incidents and claims set forth in Plaintiffs Complaint and~
in relation to the identified communications, state the following:
a. Pro\"ide the name, affiliation and employer of each participant in
lhe communication.
b. Describe the subject or content of the communication.
c. Describe the mode of the communication (written, oral, etc.).
d. Pro\'ide the dale and place of the communication.
e. Identify any documents covering, referencing or describing the
communication.
ANSWER:
3. Identify every individual who \Vas employed in any capacity with
Beauchat & Beauchat from 1996 to date and in relation to the identified individuals, state
the following:
a. Provide the individual's name, address and telephone number.
b. Identify the individual's position and dates of service.
c. Provide the individual's current status (i.e. - still employed, retired,
etc).
ANSWER:
REQUEST FOR PRODUCTION OF DOCUMENTS
1. Any and all documents reOecting or relating to the facts, incidents and/or
circumstance surrounding the claims set forth in Plaintiffs Complaint.
2. All notes, joumals, diaries or written materials prepared by Defendants,
their employees, agents or any other person which relate in any way to the facts, incidents
and/or circumstance surrounding the claims set forth in Plaintiffs Complaint.
3. Any and all documents provided to Defendants by Plaintiff or provided by
to Plaintiffby Defendants reOecting or relating to the facts, incidents and/or
circumstances surrounding the claims set forth in Plaintiffs Complaint.
-I. All documents reOecting or relating to the testimony, opinions and/or
subject matter of each witness and/or expert witness you expect to call at trial for any
purpose.
5. Any and all legal bills, invoices, draft invoices or other billing material
relating to Defendants' representation of Plaintiff from 1996 to date.
6. Any and all ""insurance agreements" as that term is defined in Rule 4003.2 '
of the Pennsylvania Rules of Civil Procedure.
7. Any and all correspondence, notes or other fonns of communication
between Defendants and any insurance company, claim representative or other person
relating to the facts, incidents and/or circumstance surrounding the claims set forth in
Plaintiffs Complaint.
Respectfully Submitted
Date: c{; /"7-"1 lo 3
MILLER LIPSITT LLC
2157 Market Street
Camp Hill, PA 17011
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby cenifies that on this date a true and correct copy of the
foregoing \Vas served by First Class Mail upon the following:
BEAUCHAT & BEAUCHAT
63 West High Street
Gellysburg, PAl 7325
:ll1d
\\"E:\'DY WEIKAL-BEAUCHAT
BEAUCHAT & BEAUCHAT
63 West High Street
Gellysburg, P A 17325
.~-~~
ley K. Scl tjer
Dated:~3
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
Plaintiff,
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
NOTICE TQ PLEAD
TO: PLAINTIFF
YOU ARE REQUIRED TO PLEAD
TO THE ENCLOSED ANSWER AND
NEW MATIER WITHIN TWENTY
(20) DAYS OR A JUDGMENT NON
PROS MAY BE ENTERED AGAINST
Y~~4I
Charles W. Kenrick, Esquire
{49016-1701l WQI I 6276. ! }
CIVIL DIVISION
Case No.: 03-3049
ANSWER ANI) NEW MATTER
Filed on Behalf of Defendants, Beauchat
& Beauchat and Wendy Weikal-
Beauchat
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. I.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. I.D. No.: 15967
GROGAN GRAFFAM, P.C.
Finn I.D. No. 072
FOllr Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
IN THE COURT OF COMMON PLEAS QF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants
ANSWER AND NEW MATTI:R
AND NOW, come the Defendants, Beauchat & Beauchat and Wendy Weikal-Beauchat,
by and through their counsel, Vincent J. Grogan, Esquire, Charles W. Kenrick, Esquire, and
Grogan Graffam, P.C., and files the following Answer and Nt:w Matter:
1. Paragraph one (1) of Plaintiff's Complaint is admitted, although Defendants are
without sufficient knowledge or information, after reasonable investigation, as to whether
Plaintiff remains an active business.
2. Paragraph two (2) of Plaintiff's Complaint is admitted.
3. Paragraph three (3) of Plaintiff's Complaint is admitted.
4. Paragraph four (4) of Plaintiff's Complaint is admitted in part and denied in
part. It is admitted that one or more attorneys at the Defendant law fIrm performed limited
legal services at certain points in time as to the two matters filed by earlier counsel before the
Board of Claims. It is denied that Defendants were the only lawyers and/or law firm who
{4901t'i-17011 W01l6276.!}
2
represented Plaintiff at material times in the cases at issue and that they were the only lawyers
responsible for providing services about which complaint is now made.
5. Paragraph five (5) of Plaintiff's Complaint is admitted in part and denied in
part. It is admitted that the two identified claims were ftled by Plaintiff at the docket numbers
indicated. It is denied that Defendants were counsel throughout the existence of the same
cases, or that they had anything more than limited involvement and responsibilities as to the
same underlying matters. In further response, Defendants incorporate their Answer to
Paragraph four (4) above.
6. Paragraph six (6) of Plaintiff's Complaint is admitted in part and denied in part.
It is admitted that Plaintiff, represented by other counsel, initially ftled an action in the
Commonwealth Court, and that the action was later transferred by the Court to the Board of
Claims wherein Plaintiff sought both injunctive relief and monetary damages arising out of
work that was not completed by Plaintiff and wherein Plaintiff was replaced because of its
failure to satisfy a contract with PennDot.
7. Paragraph seven (7) of Plaintiff's Complaint is denied. Any discovery requests
forwarded by Penn DOT in December, 1996, were not forwarded to Defendants, who did not
represent Plaintiff at the time.
8. Paragraph eight (8) of Plaintiff's Complaint is denied. On the contrary,
Defendants were not representing Plaintiff at the time alleged or during several years
thereafter. The responsibility for providing timely discovery responses during the period from
1996 through at least 2000 was either with Plaintiff and/or earlier counsel representing
Plaintiff.
{49016-17011 WOI I 6276. 1 }
3
9. Paragraph nine (9) of Plaintiffs Complaint is admitted in part and denied in
part. It is admitted that Penn DOT fIled a Motion to Compel on or about July 27, 2000, but it
is denied that Defendants were Plaintiff's legal counsel in the case at the time, and further
denied had any duty to respond to the same motion.
10. Paragraph ten (10) of Plaintiffs Complaint is admitted insofar as it is claimed
that Defendants did not respond, but it is denied that Defendants had any duty to respond to the
Motion at the time as they were not Plaintiff's counsel at the time. Any duty to respond in the
circumstances would have been Plaintiffs duty and/or the duty of other previous counsel
retained by Plaintiff.
11. Paragraph eleven (11) of Plaintiff's Complaint is admitted in part and denied in
part. It is admitted that the Board of Claims entered the same order. It is denied that
Defendants were cOllnsel for Plaintiff at the time the same order was entered.
12. Paragraph twelve (12) of Plaintiffs Complaint is admitted in part and denied in
part. It is admitted Defendant Beauchat & Beauchat through Attorney Glenn J. Smith
responded at or about the time indicated by stating:
"1. Plaintiff (Adams County Asphalt Company) agrees to
permit the inspection of all documents demanded in Defendant's
Request Nos. 1-14 that are in the possession, custody, or control
of Plaintiff.
2. Inspection shall be permitted a:, requested by Defendant
Commonwealth of Pennsylvania Department of Transportation."
The remaining allegations of Paragraph (12) are denied and denied as stated.
13. Paragraph thirteen (13) of Plaintiffs Complaint is admitted as to Case No.
1767.
149016-17011W0116276.1}
4
14. Paragraph fourteen (14) of Plaintiffs Complaint is admitted as to Defendant.
Beauchat & Beauchat, acting at the time through Attorney GleIm Smith. The allegations of the
paragraph are denied as to Defendant Attorney Beauchat. On the contrary, Defendant
Attorney Beauchat had no involvement with Penn DOT's counselor any meeting with such
counsel during October 2001.
15. Paragraph fifteen (15) of Plaintiffs Complaint is admitted.
16. Paragraph sixteen (16) of Plaintiffs Complaint is admitted.
17 . Paragraph seventeen (17) of Plaintiff's Complaint is admitted. In further
response, Defendants through Attorney Beauchat called and corresponded with Plaintiff Adams
County Asphalt and its various representatives at material times during the summer and fall of
2002 concerning Case No. 1767 in an attempt to locate th,~ documents requested by Penn
DOT's counsel. On or about September 24, 2002, and again on or about October 3, 2002,
Defendants informed Plaintiff in writing of the need to locate fIle boxes for Case No. 1767,
and Defendant Attorney Beauchat's belief that the requested boxes and/or related material in
that case were likely with Robert Munna or in the custody of one of his companies' employees.
The same letters sent to Plaintiff explained that two (2) boxe:l of fIles apparently produced by
Penn DOT's counsel for inspection through Attorney Glenn Smith's efforts during 2001 were
apparently returned to Plaintiff or other counsel who had and/or were representing Plaintiff.
The same letters requested Plaintiff to contact Attorney Beauchat with instructions, and further
informed the client that Attorney Beauchat intended to take no further action without the
requested information or the client's further instruction. No further information or instructions
were received by Defendants thereafter from Plaintiff, otht~r than a call or calls that their
employees were continuing to look for the documents and hoped to fmd them. In the
{49016-17011 W0116276.1}
5
circumstances, Defendants are not liable and/or Plaintiff is contributorily liable for any further
actions of PennDot's counsel and the Board of Claims in the underlying matter.
18. Paragraph eighteen (18) of Plaintiff s Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraph seventeen (17) above as though
here set forth at length.
19. Paragraph nineteen (19) of Plaintiff's Complaint is admitted. In further
response Defendants incorporate their Answer to Paragraph seventeen (17) above as though
here set forth at length.
20. Paragraph twenty (20) of Plaintiff's Complaint is admitted. In further response
Defendants incorporate their Answer to Paragraph seventeen (17) above as though here set
forth at length.
21. Paragraph twenty-one (21) of Plaintiffs Complaint is admitted. In further
response, the same claim was prepared and fIled by other counsel.
22. Paragraph twenty-two (22) of Plaintiffs Complaint is admitted in part and
denied in part. It is admitted that Penn DOT served Interrogatories and Requests for
Production of Document on other previous counsel retained by Plaintiff as of December 1996.
It is denied that Defendants were served with such discovery requests at the time indicated or
at any other time by PennDot.
23. Paragraph twenty-three (23) of Plaintiff's Complaint is denied. On the contrary,
the Beauchat law firm and its attorneys had no involvement with the underlying matter until
October, 2001 and Attorney Beauchat had no personal involvement until 2002. Defendants
further incorporate other paragraphs of the Answer outlining their efforts and actions during
the limited period they did serve as counsel in the matter, including alerting Plaintiff to the
{49016-1701IW0l16276.t}
6
existence of problems of compliance with outstanding Court orders and the likelihood that
discovery material requested in Case No. 1809 was likely with one of Plaintiff's previous
counsel, Attorney Roy Cohen in Philadelphia.
24. Paragraph twenty-four (24) of Plaintiff's Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraphs seventeen (17) and twenty-three
(23) above as though here set forth at length.
25. Paragraph twenty-five (25) of Plaintiff's Complaint is admitted.
26. Paragraph twenty-six (26) of Plaintiff's Complaint is admitted.
27. Paragraph twenty-seven (27) of Plaintiff's Complaint is admitted. In further
response, the same letter was sent after receiving oral information from a representative of
Plaintiff at or about this time that boxes containing the information that was sought by Penn
DOT might still be located, and that Plaintiff's representative:; were continuing to look for the
same records. In further response at the time Plaintiff knew or should have known that
relevant documents with respect to Case Number 1809 were with Attorney Cohen in
Philadelphia, Pennsylvania.
28. Paragraph twenty-eight (28) of Plaintiff's Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraph twenty-seven (27) above as
though here set forth at length.
29. Paragraph twenty-nine (29) of Plaintiff's Complaint is admitted.
30. Paragraph thirty (30) of Plaintiff's Complaint is admitted, although it is denied
that the inability to produce documents was due to any alleged negligence on the part of
Defendants. On the contrary, Defendants made reasonable efforts to locate the documents in
question, pointed out their best information and belief that any such documents were with
{49016-170IIW0116276.1}
7
Attorney Roy Cohen in Philadelphia, based upon information the client itself had provided in
October 2001 and/or thereafter, and informed the client of the consequences of Plaintiff's
inability to locate and produce the same documents both orally and in writing during the
summer and fall of 2002.
31. Paragraph thirty -one (31) of Plaintiff's Complaint is admitted.
32. Paragraph thirty-two (32) of Plaintiff's Complaint is admitted. In further
response, Defendants incorporate their Answers to Paragraphs seventeen (17), twenty-three
(23), and thirty (30) above as though here set forth at length.
33. Paragraph thirty-three (33) of Plaintiff's Complaint is admitted.
34. Paragraph thirty-four (34) of Plaintiff's Complaint is admitted.
35. Paragraph thirty-five (35) of Plaintiff's Complaint is denied. On the contrary,
there were a number of phone conversations, as well as conespondence sent to the client by
Defendants at material times during 2002 before any dismissals occurred.
36. Paragraph thirty-six (36) of Plaintiff's Complaint is admitted in part and denied
in part. It is admitted that Attorney Bogar contacted Attorney Beauchat to discuss the two
Board of Claims' cases at or about the time indicated. The remaining allegations of Paragraph
36 are denied. In further response, Defendants incorporate their Answer to Paragraph 37
below.
37. Paragraph thirty-seven (37) of Plaintiff's Complaint is admitted in part and
denied in part. It is admitted that Defendant Attorney Beauchat spoke with Attorney Bogar at
about the time indicated generally concerning the two cases. It is denied that this was the first
time Plaintiff was informed by Defendants or otherwise had reason to know of the dismissals.
{49016-17011 W0l16276.!}
8
On the contrary Plaintiff knew and had reason to know of both the likelihood and reality of
dismissals of both cases at earlier points in time.
38. Paragraph thirty-eight (38) of Plaintiffs Complaint is admitted in part and
denied in part. It is admitted that Defendants forwarded the ktters comprising Exhibit "I" on
or about the dates indicated on the same letters, also enclosing a relevant Opinion and Order of
the Board of Claims putting Plaintiff on notice that the viability of its pending claims was in
jeopardy. The same letters were sent in order to formally inform the client concerning the
issue of the missing ftles and the need to timely locate the same ftles, which were not in the
offices of Defendants, and which ftles were believed by Attorney Beauchat to either be with a
client representative or another attorney in the instance of Case No. 1767, or in the instance of
Case No. 1809, to be with Attorney Cohen in Philadelphia.
39. Paragraph thirty-nine (39) of Plaintiff s Complaint is admitted. In further
response, Defendants incorporate the text of Exhibit "I" to the: Complaint.
40. Paragraph forty (40) of Plaintiffs Complaint is admitted insofar as Case No.
1767 is concerned. The allegations are denied as respects to Case No. 1809, and on the
contrary Plaintiff both knew and was informed that those' ftles or documents were with
Attorney Cohen. In further response, Defendants incorporate the text of Exhibit "I" to the
Complaint.
41. Paragraph forty-one (41) of Plaintiff's Complaint is admitted in part. In further
response, Defendants incorporate the text of Exhibit "I" to the Complaint.
42. Paragraph forty-two (42) of Plaintiffs Complaint is denied. Defendants mailed
Exhibit "I" on or about the date indicated and followed-up the same letter with a later revised
version of the same letter in early October 2002.
{49016-170llW0116276.1}
9
43. Paragraph forty-three (43) of Plaintiff's Complaint is denied. On the contrary,
Defendant Attorney Beauchat had reason to believe that the missing boxes in Case No. 1767
were returned to the client or another attorney, and that in ;my event there were never any
boxes received by anyone at her law firm with respect to Case No. 1809. In further response
Attorney Beauchat was earlier informed and informed the client that Attorney Cohen with
another law firm had documents relevant to Case No. 1809.
44. Paragraph forty-four (44) of Plaintiff's Complaint is admitted in part and denied
in part. It is admitted that Defendants stated in correspondence of September 24, 2002, that
they did not have the boxes of fIles in question, so advised their client in writing and orally at
material times thereafter, and never indicated differently to their client, while urging the client
to continue to look for the same materials requested by the adversary and ordered by the Board
of Claims. It is also admitted that Defendants sent the letter of October 18, 2002 to PennDot,
based on oral communication from the client at or about the time that it had reason to believe
the documents would be found, and with the knowledge, as previously communicated by
Defendants to the client, that a likely "drop dead" deadline was approaching with respect to
production of documents to the adversary. In further response, Defendants sent the letter of
October 18, 2002, to Penn DOT's counsel based upon conversations with their client's
representative, and in the hope that the same letter might buy additional time for the client to
locate the documents in question.
45. Defendants incorporate their answers to Paragraphs one (1) through forty-four
(44) as though set forth at length.
46. The allegations of Paragraph forty-six (46) contain contentions and conclusions
of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If a
(49016-17011WOll6276.1)
10
response is deemed necessary, Defendants respond that they acted with reasonable and
ordinary care, skill, and knowledge in the circumstances during the limited period they served
as counsel for limited purposes in the underlying matters.
47. The allegations of Paragraph forty-seven (47) contain contentions and
conclusions of law to which no response is required under the Pennsylvania Rules of Civil
Procedure. If a further response is deemed necessary, and based upon what is now known, the
allegations are denied and strict proof of each element of proof of the underlying cases is
demanded as of time of trial.
48. The allegations of Paragraph forty -eight (48) contain contentions and
conclusions of law to which no response is required under the Pennsylvania Rules of Civil
Procedure. If a response is deemed necessary, Defendants respond that they acted with
reasonable and ordinary care, skill, and knowledge in the circumstances during the limited
period they served as counsel in the underlying matters for limited purposes. In further
response, Defendants informed the client of the problem with missing ftles in Case No. 1767 at
material times, the existence of ftles relevant to Case No. 1809 as likely in the possession or
control of Attomey Cohen in Philadelphia, and the likely consequences on Plaintiff's potential
claims if the files and/or certain documents could not be produced in a timely manner in both
cases. Finally, it is alleged that Plaintiff could not have prov(:d either of its underlying cases.
49. The allegations of Paragraph forty-nine (49) contain contentions and conclusions
of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If a
response is deemed necessary, Defendants respond that they acted with reasonable and
ordinary care, skill, and knowledge in the circumstances during the limited period they served
as counsel in the underlying matters for limited purposes. In further response, it is denied that
{4~16-17011 WOI16276.!}
11
Defendants were the cause of the cases being dismissed in the circumstances, and further deny
that Plaintiff would have recovered the monies sought before the Board of Claims had Plaintiff
continued to pursue the matter to a determination on the merits. On the contrary, Plaintiff
would not have been successful in proving either of the underlying cases before the Board of
Claims.
WHEREFORE, Defendants request that the Complaint be dismissed with prejudice
and judgment entered in their favor.
50.
51.
52.
53.
times.
54.
NEW MATTER
The Court lacks subject matter jurisdiction in this case.
Plaintiff lacks standing or authority to sue and/or proceed with suit.
The Complaint fails to state a cause of action.
The Complaint is barred by Plaintiff's own contributory negligence at material
The Complaint is barred by the negligence or other conduct of third persons
over which Defendants exercised no control and for which they have no legal responsibility.
55. Plaintiff's claims are barred by the defense of lack of causation.
56. Plaintiff's claims are barred by its inability to prove the merits, including the
damages claimed, of both of the cases that it filed and pursued utilizing different attorneys at
different times before the Board of Claims.
57. Defendants incorporate by reference the respective Answers and New Matter
f1led by the Pennsylvania Department of Transportation before the Board of Claims in cases
1767 and 1809, as though the same pleadings were here set forth at length, and demand strict
{49016-17011W0116276.1}
12
proof of both underlying cases filed before the Board of Claims as part of Plaintiff's burden of
proof in the above case.
58. Defendants were retained for limited purposes with respect to prosecution of the
underlying cases in the Court of Claims and may not be held liable in the circumstances for
Plaintiff's ultimate inability to prove the underlying cases and recover damages in either case.
59. Plaintiff's purported causes of action are barred by the defense of judicial
estoppel.
WHEREFORE, Defendants request that the Complaint be dismissed with prejudice
and judgment entered in their favor.
Respectfully submitted,
GROGAN GRAFFAM, P.C.
Four Gateway Center, Twelfth Floor
Pittsburgh, Penns ylvania 15222
{49016-170IIW0l16276.1}
13
VERIFICATION
1, Wendy Weikal-Beauchat, Esquire, on behalf of the law firm of Beauchat & Beauchat,
state that the averments contained in the foregoing Answer and New Matter are true and correct to
the best of my knowledge, information and belief.
I understand that the statements herein are made subject to the penalties of 18 Pa.C.SA
~4904, relating to unsworn falsification to authorities.
Wendy Weikal-Beauchat, Esquire
k
-
DATE:
/tJ In ~3
w ,
{49016-17011WOl16276,l}
1?
CERTIFICATE QF SERVICE
I hereby certify that a true and correct copy of the foregoing Answer and New Matter
has been served on thiJ~y of October, 2003, via U.S. Mail, frrst-class, postage pre-
paid upon the following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, Pennsylvania 17001
(Counsel for Plaintiff)
~~~
Charles W. Kenric , ESqUir~
{49016-17011W0l16276.1}
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ADAMS COUNT
ASPHAL T CO.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
BEAUCHA T &
BEAUCHAT and
WENDY WEIKAL
BEAUCHAT,
Defendants
NO. 03-3049CIVIL TERM
ORDER OF COURT
AND NOW, this 27th day of October, 2003, upon consideration of Plaintiffs
Motion To Compel esponses to Discovery, a Rule is hereby issued upon Defendants to
show cause why the elief requested should not be granted,.
RULERE
ABLE within 20 days of service.
BY THE COURT,
..roradley A. Schutjer, sq.
Chadwick O. Bogar, sq.
2157 Market Street
Camp Hill, PA 1701
Attorneys for Plainti
esley 01 ,
A"incent J. Grogan, E q.
Charles W. Kenrick, sq.
Four Gateway Center 12th Floor
Pittsburgh, PA 15222
Attorneys for Defend nts
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUN~Y ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & ijEAUCHAT and
WENDY WEIK;\L-BEAUCHA T,
Jury Trial Demanded.
I Defendants. :
tLAINTIFF'S REPLY TO NEW MATTER
I
AND Now,1 Plaintiff, ADAMS COUNTY ASPHALT CO., ("ACA") files
the following repl~ to Defendants, BEAUCHA T & BEAUCHA T and WENDY
,
,
WEIKAL-BEAuctT, New Matter:
50. The a erment contained in paragraph 50 is a conclusion oflaw to
which no response s required. To the extent an anSWf:r is deemed required, it is
denied that the Cou lacks subject matter jurisdiction iin this case. To the contrary,
the Court has subje~t matter jurisdiction in this case.
I
51. The av~rment contained in paragraph 51 is a conclusion of law to
I
which no response i required. To the extent an answer is deemed required, it is
denied that Plaintif lacks "standing or authority to sue and/or proceed with this
suit." To the contr , the Plaintiff has standing and authority to sue.
52. The averment contained in paragraph 52 is a conclusion of law to
which no respons~ is required. To the extent an answer is deemed required, it is
denied that the corpplaint fails to state a cause of action. To the contrary, the
complaint states a cause of action.
53. The ayerment contained in paragraph 53 is a conclusion oflaw to
I
which no responseiis required. To the extent an answer is deemed required, it is
denied that Plainti1f's complaint is barred by its alleg(~d contributory negligence at
material times. Tolthe contrary, the complaint is not barred by Plaintiff's
,
contributory negli~ence, as Plaintiff was not negligent at any time.
,
54. The a~erment contained in paragraph 54 is a conclusion of law to
which no response ~s required. To the extent an answer is deemed required, it is
I
denied that the c01Plaint is barred by the negligence or other conduct of third
parties over which pefendants exercised no control and for which they have no
I
legal responsibilityj To the contrary, the Defendants' negligence was the sole
cause of the injury 10 Plaintiff and no third parties werc~ to blame.
55. The aVFrment contained in paragraph 55 is a conclusion oflaw to
I
which no response ~s required. To the extent an answer is deemed required, it is
,
i
denied that the Plaittiff'S claims are barred by the defense oflack of causation. To
the contrary, the De endants actions solely and directly caused Plaintiff's injuries.
2
56. The averment contained in paragraph 56 is a conclusion of law to
which no respons, is required. To the extent an answer is deemed required, it is
denied that Plaintiff's claims are barred by its inability to prove the merits,
including the dam~ges claimed, of both of the cases that it filed and pursued
utilizing different t' ttorneys at different times before the Board of Claims. To the
contrary, Plaintiff'. claims are not barred and Plaintiff can and will prove the
merits of both undfrlYing cases including the likelihood of a significant damage
. i
award in both cases.
I
57. The aterment contained in paragraph 57 incorporates pleadings from
,
the underlying maiers and, consequently, no response' is required. To the extent
an answer is deem d required, Plaintiff's underlying cases were real actionable
claims with a stron likelihood of significant damage awards.
58. Admit ed in part and denied in part. It is admitted that Defendants
were retained to prtsecute the underlying actions before the Board of Claims. It is
denied that Defendants may not be held liable in the circumstances for Plaintiff's
I
ultimate inability t9 prove the underlying cases and rec:over damages in either case.
,
To the contrary, bot cases were dismissed due directly to Defendants' negligence
and, with the dismi~sals, Plaintiff lost its strong likelihood of receiving a
significant damage ward in the case.
3
59. The averment contained in paragraph 59 is a conclusion oflaw to
which no respons~ is required. To the extent an answer is deemed required, it is
denied that Plaintiff's causes of action are barred by the defense of judicial
estoppel. To the c(:mtrary, Plaintiff's causes of action are not barred by judicial
estoppel.
I
WHEREFORE, Adams County Asphalt Company respectfully requests that
the Court enter jUd~ment against Defendants, Beauchat & Beauchat and Wendy
Weikal-Beauchat, 1n an amount in excess of one million dollars and grant such
oth" reHor., tho iourt doom' propeL
Respectfully Submitted:
/ ()!JCf!b3
adle A~
Pa. ID No. 75954
Chadwick O. Bogar
Pa. ID No. 83755
LIPSITT LLC
2157 Market Street
Camp Hill, P A 17011
717.737.6400
Attorneys for Plaintiff
4
CERTIFICATE OF SERVICE
I, Bradley A. Schutjer, certify that on this date, I served a certified true and
correct copy of the foregoing upon the following, by depositing the same in the
United States mail, postage prepaid, addressed as follows:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.c.
Four Gateway Center, 12th )<'Ioor
Pittsburgh, PA 15222
Dated:
J O/9--f /03
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
PRAECIPE FOR ENTRY OF
JUDGMENT OF NON PROS
BEAUCHAT & BEAUCHAT and WENDY
WEIKAL-BEAUCHA T,
Defendants.
Filed on Behalf of Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. LD. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. LD. No.: 15967
GROGAN GRAFFAM, P.C.
Firm LD. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRlAL DEMANDED
BEAUCHAT & BEAUCHAT and WENDY
WEIKAL-BEAUCHA T,
Defendants.
PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS
We, the undersigned, attorneys for Defendants, hereby certifY that: the Plaintiff named
above has asserted professional liability claims against both Defendants; Defendants are,
respectively. an area law firm and a lawyer, who is a licensed professional with the law firm; no
certificate of merit has been filed by Plaintiff within the time required by Pennsylvania Rule of
Civil Procedure 1042.3(a); Plaintiff did not file a motion to extend the time for filing the
certificate of merit on or before the required filing date; and there is no motion to extend the time
for filing the certificate pending before the Court.
Pursuant to Pa.R.C.P. ill 042.1, et seq., kindly enter judgment of non pros against Adams
County Asphalt Company, Plaintiff, and in favor of Defendants Beauchat & Beauchat and Wendy
Weikal-Beauchat, Defendants in this professional liability claim.
Date: October 30, 2003
Respectfully submitted,
2
CERTIFICATE OF SERVICE
I hereby certity that a true and correct copy of the foregoing Praecipe for Entry of
Judgment of Non Pros has been served on this 30th day of October, 2003, via U.S. Mail, first-
class, postage pre-paid upon the following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, PA 17001
(Counsel for Plaintiff)
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNT"\'" ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BfAUCHAT and
WENDY WEIKAi-BEAUCHAT, :
iDefendants.
PLAINTIF~'S CERTIFICATE OF MERIT AS TO DEFENDANT,
I BEAUCHAT & BEAUCHAT
!
I
I, Bradley Af Schutjer, certify that:
Jury Trial Demanded.
The claim that this defendant deviated from an acceptable professional standard is
based solely on all gations that other licensed professionals for whom this
defendant is respo sible deviated from an acceptable professional standard and an
appropriate licens professional has supplied a written statement to the
undersigned that t ere is a basis to conclude that the care, skill and knowledge
exercised or exhib ted by the other licensed professionals in the treatment, practice
or work that is the ubject of the complaint, fell outside acceptable professional
standards and that uch conduct was a cause in bringing about the harm.
Respectfully Submitted:
adley ~. utjer
a. ID No. 75954
Chadwick O. Bogar
Pa. ID No. 83755
2157 Market Street
Camp Hill, PA 17011
717.737.6400
Dated:
CERTIFICATE OF SERVICE
I, Bradley A. Schutjer, certifY that on this date, I served a certified true and
correct copy of th~ foregoing upon the following, by depositing the same in the
United States mail; postage prepaid, addressed as follows:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNllY ASPHALT CO. :
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & ~EAUCHAT and
WENDY WEIK1L-BEAUCHAT,
Jury Trial Demanded.
Defendants.
PLAINTIFF'S RTIFICATE OF MERIT AS TO DEFENDANT WENDY
WEIKAL-BEAUCHA T
i
I
I, Bradley Af Schutjer, certify that:
I
An appropriate lic nsed professional has supplied a written statement to the
undersigned that ere is a basis to conclude that the care, skill and knowledge
exercised or exhibi ed by this defendant in the treatment, practice or work that is
the subject of the c mplaint, fell outside acceptable professional standards and that
such conduct was cause in bringing about the harm.
Respectfully Submitted:
Dated: 1\/3/D~
i
I
I
Br ley . c
Pa. ID No. 759 .
Chadwick O. Bogar
Pa. ID No. 83755
2157 Market Street
Camp Hill, PA 17011
717.737.6400
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I, Bradley A. Schutjer, certify that on this date, I served a certified true and
correct copy of th~ foregoing upon the following, by depositing the same in the
United States mailJ postage prepaid, addressed as follows:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
I Pittsburgh, P A 15222
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
MOTION FOR PROTECTIVE
ORDER AND/OR MOTION FOR
EXTENSION OF TIME TO
RESPOND TO DISCOVERY
SERVED ON OCTOBER 8, 2003
BEAUCHAT & BEAUCHAT and
WENDY WElKAVBEAUCHAT,
Defendants.
Filed on Behalf of Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. I.D. No.: 00630
CHARLES'W.KENRICK,ESQUIRE
Pa. I.D. No.: 15967
GROGAN GRAFFAM, P.C.
Finn I.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
{49016-1701IWOI]7852.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
MOTION FOR :fROTECTIVE ORDER AND/OR MOTION FOR EXTENSION
OF TIME TO ~SPOND TO DISCOVERY SERVED ON OCTOBER 8, 2003
AND NOW, come the Defendants, Beauchat & Beauchat and Wendy Weikal-
Beauchat, by and through their counsel, Vincent J. Grogan, Esquire, Charles W.
Kenrick, Esquire, and Grogan Graffam, P.C., and files the following Motion for
Protective Order ali1d/or Motion for Extension of Time to Respond to Discovery Served
on October 8, 200~ as follows:
1. On or about October 8, 2003, Plaintiff served a First Set of Requests for
Admissions and In~errogatories.
2. On or about the same date, Plaintiff also served a Second Set of
Interrogatories and! Request for Production of Documents.
{49016-17011W0117852.1 }
2
3. On October 30, 2003, Defendants f1led and served a Praecipe for
Judgment of Non Pros for Failure to File Certification pursuant to Rule 1042.1 et seq.
dealing with professional liability actions based upon the assumption that the
Complaint, in the above case was f1led on the same day the Complaint was served by
mail by Plaintiff on August 29,2003.
4. Based upon the facts as stated above, Defendants expected the
Prothonotary woul~ enter judgment on behalf of Defendants and insofar as Defendants
are concerned, that there would be no further obligation to respond to any discovery in
the above case.
5. On November 3, 2003, Plaintiff's counsel faxed a letter to the
undersigned stating that he filed the Complaint in the above case on September 2,2003,
and further stating that he had filed two (2) separate Certificates of Merit required
,
under Rule 1042.11et seq. on November 3,2003.
6. Asslilming that Plaintiff's recent filings do comply with the requirements
of Rule 1042.1 et seq., Defendants are filing and serving this Motion for Protective
Order pursuant tq Rule 4012 of the Pennsylvania Rules of Civil Procedure, and
alternatively me a Motion for Extension of Time to respond, including the right to
object to requests! for admissions, interrogatories, and document requests served on
,
October 8, 2003, fur the following reasons.
7. Ruld 1042.5 of the Pennsylvania Rules of Civil Procedure specifically
I
provides that with the exception of the request for production of documents or the entry
upon property for Inspection, a professional liability claimant may not, without leave of
,
court, seek any disbovery prior to the filing of a certificate of merit.
{49016-1701] WQl17852.1}
3
8. Plaintiff did not seek leave of court to serve the aforementioned
discovery on or about October 8, 2003.
9. Accordingly, Plaintiff was not entitled to serve the same discovery until
on or after November 3, 2003.
10. In the circumstances, Defendants will require a reasonable time of at
least an additional thirty (30) days from the date this Motion is determined to respond,
,
including objectio~s, to written discovery served prematurely by Plaintiff on or about
October 8, 2003.
11. If the Motion for Protective Order and/or Extension of Time would be
denied, Defendants would be unfairly prejudiced and Plaintiff would gain an unfair
advantage not pro.,ided by the Pennsylvania Rules of Civil Procedure.
WHEREFORE, Defendants respectfully request this Honorable Court to grant
the within Motion for Protective Order and allow Defendants thirty (30) days from the
time this Motion ~s determined to respond to the aforementioned discovery.
Respectfully submitted,
GROGAN GRAFFAM, P.C.
~~
VINCENT J. GROGAN,
Pa. I.D. No.: 00630
~r&
CHARLES W. KENRICK, Q RE
Pa. I.D. No.: 15967
Four Gateway Center, Twelfth Floor
Pittsburgh, P A 15222
Attorneys for Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
{49016-17QllWOI17852.\ }
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No,: 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WElKAL-BEAUCHAT,
ANSWER OF DEFENDANTS TO
RULE TO SHOW CAUSE OF
OCTOBER 27, 2003
v,
Defendants.
Filed on Behalf of Defendants, Beauchat
& Beauchat and Wendy Weikal-Beauchat
Counsel of Record for These Parties:
VINCENT 1. GROGAN, ESQUIRE
Pa. I.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. 1.0. No.: 15967
GROGAN GRAFFAM, P.C.
Firm I.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
{49016-17011WOI17889.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAlVCHAT and
WENDY WEIKAL-BEAUCHA T,
Defendants
ANSWER OF DEIlENDANTS TO RULE TO SHOW CAUSE OF OCTOBER 27.2003
AND NOW, come the Defendants, Beauchat & Beauchat and Wendy Weikal-Beauchat,
by and through their counsel, Vincent 1. Grogan, Esquire, Charles W. Kenrick, Esquire, and
Grogan Graffam, P.C., and files the following Answer of Defendants to Rule to Show Cause of
October 27,2003:
I. Plaintiff filed and served a Motion to Compel on or about October 22, 2003,
seeking a Rule to Show Cause Order.
2. The sulilject matter of the Motion to Compel concerns Defendants' alleged failure
to respond to Interrogatories served by mail on August 29, 2003 in a timely manner.
3. The abcilve case is a professional liability claim.
4. Under Rule 1042.5, a plaintiff may not, with the exception of requests for
production of documents and request to inspect property, seek any discovery with respect to that
claim prior to the filing of a certificate of merit unless the party obtains leave of court to do so.
{4901(i-17011 W0117889.!}
2
5. Plaintiff has at no time sought leave of court allowing for pre-certification
discovery by means oflnterrogatories.
6. On November 3, 2003, Plaintiff filed and served two (2) separate Certificates of
Merit in the above case for the first time.
7. In the circumstances, Plaintiff had no basis for tIling its Motion to Compel on or
about October 22, 2003, and any obligation to respond to Interrogatories could only begin to run
i
on and after November 3, 2003.
8. In the circumstances, Defendants respectfully request that Plaintiffs Motion to
Compel be denied on the basis of Pennsylvania Rule of Civil Procedure 1042.5.
WHEREFORE, Defendants respectfully request that this Honorable Court deny
Plaintiff s Motion to Compel.
Respectfully submitted,
GROGAN GRAFFAM, P.C
Four Gateway Center, Twelfth Floor
Pittsburgh, Pennsylvania 15222
{49016-17011WOll7889.1}
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Answer of Defendants to
Rule to Show Cause !of October 27, 2003 has been served on this 74tday of November,
2003, via U.S. Mail, first-class, postage pre-paid upon the following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, Pennsylvania 17001
(ConnseI for PIaintitl)
~~
Charles W. Kenrick, Esquire
{49016-170ll WOll7889.\}
4
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WElKAL-BfAUCHA T,
Defendants
ORDER OF COURT
AND NOW, this _ day of
_, 2003, it is hereby ordered that
Plaintiff's Motion to Compel be denied on the basis that the discovery sought by interrogatories
served on August 29, 2003, was not authorized under Rule 1042.5 until on or after appropriate
Certificates of Merit were filed.
BY THE COURT:
1.
{49016-17011W01l7889.1}
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
ORDER OF COURT
AND NOW, to wit, this 26Jtday of fiJ /'")'U (f .., 6,- J, 2003, Defendants'
Motion for a Protective Order with respect to Discovery served by Plaintiff on or about
October 8, 2003, including requests for admissions, interrogatories, and request for
production of documents is granted, and Defendants need only respond to that
discovery within3'D days of this Order. TIns <vA,:; Li. CJ) +0 c Jo f. dV)
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BY THE COURT:
{49016-17011WOI17852.1}
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
MOTION TO WITHDRAW
PRAECIPE FOR ENTRY OF
JUDGMENT OF NON PROS
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
Filed on Behalf of Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. I.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. I.D. No.: 15967
GROGAN GRAFFAM, P.C.
Firm I.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
{49016.]701I W0l18'711.1 }
IN THE COURT OF COMMON PLEAS QF CUMBERLAND COUNTY,
PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
MOTION TO WITHDRAW PRAECIPE FOR
ENTRY QF JUDGMENT OF NQN PROS
AND NOW, come the Defendants, Beauchat & Beauchat and Wendy Weikal-
Beauchat, by and through their counsel, Vincent J. Grogan, Esquire, Charles W.
Kenrick, Esquire, and Grogan Graffam, P.C., and files the following Motion to
Withdraw Praecipe for Entry of Judgment of Non Pros:
1. Both Defendants filed a Praecipe for Entry of Judgment of Non Pros
against Plaintiff on October 30, 2003.
2. Defendants ftIed a Praecipe pursuant to Pennsylvania Rule of Civil
Procedure 1042.3(a) under their good faith belief that timely Certificates of Merit had
not been ftIed by Plaintiff as of that time.
3. Plaintiff subsequently ftIed and served two (2) separate Certificates of
Merit with respect to both Defendants on November 3,2003.
{49016.1701I W0118711.1}
2
.'
4. It has been determined that the aforementioned Certificates of Merit were
timely rued on the last possible day from the date of filing of the Complaint on
September 3, 2003.
5. In the circumstances, Defendants wish to withdraw their Praecipe for
Judgment of Non Pros for Plaintiffs Failure to Comply with Pennsylvania Rule of
Civil Procedure 1042.3(a).
6. Defendants are informed and believe that Plaintiff does not oppose this
Motion and further believe that Plaintiffs Motion to Strike Non Pros is unnecessary
and/or moot in the circumstances.
WHEREFORE, Defendants, Beauchat & Beauchat and Wendy Weikal-
Beauchat, respectfully request this Honorable Court to withdraw their Praecipe for
Judgment of Non Pros against the Plaintiff.
Respectfully submitted:
GROGAN GRAFFAM, P.C.
~~ - / ~p
CHARLES W. CK, ES~
Pa. I.D. No.: 15967
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
Attorneys for Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
{49016-17011 WO08711.\}
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to
Withdraw Praecipe for Entry of Judgment of Non Pros has been served on this
A?~y of November, 2003, via U.S. Mail, first-class, postage pre-paid upon the
following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, PA 17001
(Counsel for Plaintiff)
~4t~;R
CHARLES W. KENRICK, ~~
{49016-17011 WOI1S711.1}
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IN THE COURT OF COMMQN PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
c
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
ORDER OF COURT
AND NOW, to wit, this 4. day of ~C ("'"' 'cJ, 2003, Defendants'
Motion to Withdraw Praecipe for Entry of Judgment of Non Pros is granted and the
above matter may proceed with further discovery as appropriate.
BY THE COURT:
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{49016-17011WOIl87II.I}
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
MOTION TO WITHDRAW
PRAECIPE FOR ENTRY OF
JUDGMENT OF NON PROS
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
Filed on Behalf of Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. I.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. I.D. No.: 15967
GROGAN GRAFFAM, P.C.
Firm I.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
{49016-17011WOII87I1.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
MOTION TO WITHDRAW PRAECIPE FOR
ENTRY OF JUDGMENT OF NON PROS
AND NOW, come the Defendants, Beauchat & Beauchat and Wendy Weikal-
Beauchat, by and through their counsel, Vincent J. Grogan, Esquire, Charles W.
Kenrick, Esquire, and Grogan Graffam, P.C., and files the following Motion to
Withdraw Praecipe for Entry of Judgment of Non Pros:
1. Both Defendants filed a Praecipe for Entry of Judgment of Non Pros
against Plaintiff on October 30, 2003.
2. Defendants f1led a Praecipe pursuant to Pennsylvania Rule of Civil
Procedure 1042.3(a) under their good faith belief that timely Certificates of Merit had
not been f1led by Plaintiff as of that time.
3. Plaintiff subsequently f1led and served two (2) separate Certificates of
Merit with respect to both Defendants on November 3,2003.
{49016-11011WOll8711.\ }
2
4. It has been determined that the aforementioned Certificates of Merit were
timely rued on the last possible day from the date of filing of the Complaint on
September 3, 2003.
5. In the circumstances, Defendants wish to withdraw their Praecipe for
Judgment of Non Pros for Plaintiffs Failure to Comply with Pennsylvania Rule of
Civil Procedure 1042.3(a).
6. Defendants are informed and believe that Plaintiff does not oppose this
Motion and further believe that Plaintiffs Motion to Strike Non Pros is unnecessary
and/or moot in the circumstances.
WHEREFORE, Defendants, Beauchat & Beauchat and Wendy Weikal-
Beauchat, respectfully request this Honorable Court to withdraw their Praecipe for
Judgment of Non Pros against the Plaintiff.
Respectfully submitted:
GROGAN GRAFFAM, P.C.
~1![f~~
~~~i&
CHARLES W. CK, ES
Pa. I.D. No.: 15967
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
Attorneys for Defendants:
Beauchat & Beauchat and
Wendy Weikal-Beauchat
{4901l'i-I70IIWOll8711.1 }
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to
Withdraw Praecipe for Entry of Judgment of Non Pros has been served on this
~~y of November, 2003, via U.S. Mail, first-class, postage pre-paid upon the
following:
Bradley A. Schutjer
Miller Lipsitt, LLC
2157 Market Street
Camp Hill, PA 17001
(Counsel for Plaintiff)
~~
CHARLES W. KENRICK, ES UIRE
{49016-17011W0l18711.1}
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WElKAL-BEAUCHAT,
Defendants.
MOTION TO COMPEL
Defendants, Beauchat & Beauchat and Wendy Weikal-Beauchat, Esquire, by
and through their counsel, Vincent J. Grogan, Esquire, Charles W. Kenrick, Esquire,
and Grogan Graffam, P. C., serve the following Motion to Compel.
1. The above case involves a claim of legal malpractice arising out of the
dismissal of two (2) underlying actions by the Board of Claims which Plaintiff claims
were meritorious and would have resulted in a favorable judgment had they proceeded
to a hearing. The gist of Plaintiff's underlying claims asserted that PennDOT breached
a contract or contracts when it removed Plaintiff as the contractor on a roadside rest
paving project on 1-81 that had only been partly completed as of the late spring or early
summer of 1993.
2. Plaintiff ceased business operations during 1994 and has never resumed
business operations up to the present time.
3. Plaintiff f1!ed the two (2) underlying actions during 1994 in the Board of
Claims that give rise to the above case. A limited amount of discovery was taken early
on in one Board of Claims case and no discovery was taken in the other matter.
{49()16-17011WOI256931 }
Plaintiff employed two (2) other attorneys and law firms to pursue the underlying
matters during the period from 1994 until 2001 when Defendant law firm was retained
for limited purposes.
4. Defendants have filed an Answer and New Matter denying, among other
things, that Plaintiff would have succeeded in proving either of the underlying cases.
Defendants also raised issues concerning Plaintiff's authority to sue and subject matter
jurisdiction.
5. Specifically III their New Matter, Defendants raise the following
affirmative defenses:
(a) 55. Plaintiff's claims are barred by the defense of lack of
causation;
(b) 56. Plaintiff's claims are barred by its inability to prove the
merits, including the damages claimed of both of the cases that it
filed and pursued before the Board of Claims;
(c) 50. The Court lacks subject matter jurisdiction in this case;
and,
(d) 51. Plaintiff lacks authority to sue and/or proceed with suit in
this case.
6. Under Pennsylvania law, Plaintiff in order to establish a cause of action
for legal malpractice, has the burden of proving its "case within a case." Defendants
are defending the claim by intending to show that it was more likely than not that
Plaintiff would not have prevailed on the merits in the underlying actions, and that there
would have been no difference in ultimate outcome had the two (2) underlying matters
been determined on the merits by the Board of Claims.
{40016-17011W0125693.1j
7. On or about December 31, 2003, Defendants served a First Set of
Interrogatories and Request for Production of Documents that Plaintiff responded to and
objected in part on or about March 1, 2004.
8. After receiving Plaintiff's various objections in early March, defense
counsel communicated his position concerning why the discovery objected to was
sought and pursued the possibility of resolving some of the parties' differences.
9. Counsel have been unable to resolve their differences necessitating this
Motion.
10. Defendants move to compel Answers to Interrogatories 15, 16, 19 and
20. A copy of Plaintiff's Objections to the same Interrogatories, all of which seek
discoverable information, is attached as Exhibit" A. "
(a) Interrogatory Number 15 asks Plaintiff to identify accountants
and accounting firms that performed tax and accounting services
for Plaintiff during a relevant period. This question is relevant
because:
1) Plaintiff's Complaint seeks damages "in excess of one
million dollars" (See WHEREFORE clause at page 10 of
the pleading) that supposedly would have been recovered
in of the two (2) underlying Board of Claims cases.
2) Plaintiff is entitled to discovery and evaluate the basis and
reasonableness of the damages claimed in the underlying
action in the circumstances, as well as the financial
condition of the corporation at certain times at or near the
time events were occurring in the underlying lawsuit that
may help explain Plaintiffs inability to perform and meet
deadlines under the PennDOT contracts at issue in the
Board of Claims litigation.
3) Accountants who represented Plaintiff at relevant times
are likely to possess relevant and discoverable information
in the circumstances that will enable Defendants to test the
(40016-1701!WOI25693.1}
reasonableness of the damages that are claimed. There is
no burden in providing this information.
11. Interrogatory Number 16 asks Plaintiff to identify lawsuits to which
Plaintiff has been a party since 1990. Again, this general interrogatory is designed to
discover whether Plaintiff has been involved in other lawsuits that could be related to
and reveal other causes and/or explanations for Plaintiffs inability to perform the
PennDOT contract(s) in the underlying cases. Moreover, Defendants have agreed to
narrow this question to ask only about civil lawsuits f1led by Plaintiff and/or lawsuits
involving fee disputes with lawyers. Plaintiff still refuses to answer the interrogatory.
The narrowed interrogatory clearly seeks discoverable information insofar as
Defendants have alleged in their Answer that they never received underlying f1les in
Board of Claims Case Number 1809 due to a fee dispute between Plaintiff and an
earlier attorney who handled that case. Moreover, the existence of other civil lawsuits
is reasonably calculated to discover, among other things" the amount of litigation in
which Plaintiff and its owner have been involved during the relevant time period, and
whether Plaintiff have maintained inconsistent positions and/or sought and recovered
damages that they seek to recover.
12. Interrogatory Numbers 19 and 20 asks Plaintiff to identify all employees
and representatives of Plaintiff and subcontractors who worked on the 1-81 Roadside
Rest Project that is the subject of both underlying Board of Claims cases. Nothing
could be more discoverable than the names and addresses of fact witnesses who were
present and have first-hand knowledge of what occurred when and why that explain the
{40016-17011W0125693.1}
delays in completing the construction job on time and supervisory safety issues that
served as a basis for PennDOT terminating Plaintiff.
13. Defendants also request the Court order Plaintiff to fully respond to
Requests for Production of Documents Numbers 9 through 15. A copy of the
Objections to these Requests is attached as Exhibit "B. "
(a) Defendants' Requests for Production of Documents Numbers 9 and 10
seek records of other claims by Plaintiff either filed against and/or settled
with PennDOT. Again, these requests seek to discovery of other
contemporaneous or related legal activity of Plaintiff that may explain its
inability to perform the contract in the present case and to determine
whether Plaintiff has sought or recovered similar and/or duplicative
damages or made inconsistent allegations in similar cases. The same
discovery may also reveal variances between Plaintiffs ability to plead
and prove claims against PennDOT in the underlying case. The requests
seek further information settlement valuations placed on any similar
claims filed and pursued by Plaintiff. Such requests are reasonably
calculated to lead to discoverable information, witnesses, and records
with respect to liability and damage issues.
(b) Paragraph 11 seeks the caption or coversheet for any lawsuit in which
Plaintiff is a party. Defendants have indicated that they are willing to
narrow this request along the lines indicated with Interrogatory 12 above.
Defendants incorporate their argument for obtaining these records as
though here set forth at length.
14. Requests Numbers 12, and 14 and 15 are all relevant to the defenses of
authority to sue and subject matter jurisdiction. If Plaintiff has been or is involved in
any bankruptcy proceeding, then under bankruptcy law it is Defendants' understanding
that authority to pursue this action would have to be obtained from the Bankruptcy
Court, this lawsuit would have to be disclosed to the Bankruptcy Court, and Plaintiff's
counsel would need to have obtained Bankruptcy Court approval to have f1led and
pursued this case. Moreover, if Plaintiff is in bankruptcy, a question of subject matter
{49J16-170IlW0125693.1}
jurisdiction may exist to the extent Plaintiff has authority to file and maintain a lawsuit.
In any event, Defendants are entitled to this information.
WHEREFORE, Defendants request that their Motion to Compel be granted and
Plaintiff ordered to answer the Interrogatories and Request for Production of
Documents specified in the attached Order of Court.
Respectfully Submitted:
By:
GROGAN GRAFFAM, P.C.
~I!rz-l
CHARLES . K NRICK, IRE
Pa. I.D. No.: 15967
Four Gateway Center - Twelfth Floor
Pittsburgh, PA 15222
(t) 412.553.6309
(f) 412.553.6718
{40016-17011W0125693.1}
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
Answer to Defendants' Interroeatories
1. IdentifY the current officers and directors of Plaintiff.
ANSWER: Robert M. Mumma, President
2. IdentifY all current owners of Plaintiff.
ANSWER: Robert M. Mumma
3. Is Plaintiff currently an active business?
ANSWER: No.
4. If the Answer to Interrogatory No.3 is no, when did Plaintiff last function
as an active business?
ANSWER: December 31,1994.
5. What are the reasons Plaintiff ceased doing business?
ANSWER: Financial difficulties.
6. Does Plaintiff have any plans to resume business operations?
ANSWER: Yes.
DEFENDANT'S
EX,,-T
ALL.STATE- INTERNATIONAL
7. If the answer to Interrogatory No.6 is yes, outline Plaintiffs current plan
and timetable to resume business operations?
ANSWER. Plaintiff intends to resume operations within one year.
8. IdentifY Plaintiffs record custodian(s) from 1990 to the present.
ANSWER: Robert M. Mumma II, President
9. IdentifY any officers and all supervisory and/or managerial employees or
agents of Plaintiff, past or present, who have any knowledge or information to support the
claims of the lawsuit filed by Plaintiff and against PennDOT at Case No. 1767 in the
Board of Claims.
ANSWER: Robert M. Mumma, President
10. IdentifY any officers and all supervisory and/or managerial employees or
agents of Plaintiff, past or present, who have any knowledge or information to support the
claims of the lawsuit filed by Plaintiff and against PennDOT at Case No. 1809 in the
Board of Claims.
ANSWER: Robert M. Mumma, President
11. IdentifY the employees or agents of Plaintiff past or present, who are most
knowledgeable about the claims of damages asserted in:
(a) Case No. 1767; and
(b) Case No. 1809.
ANSWER: Robert M. Mumma, President
12. Identify all persons known to Plaintiff who have knowledge and
information to support the claims oflegal malpractice and professional negligence
contained in Count 1 of the Complaint.
ANSWER:
1. Defendants
2. Glenn Smith
3. Defendants employees (current and former)
4. Robert M. Mumma II
5. PIaintifrs attorneys
6. Roy Cohen
7. Joshua Lock
13. Identify the chief financial officer, managerial or staff employee, or third
person most familiar with Plaintiffs financial condition at all material times from 1990
until the time Plaintiff ceased active operations.
ANSWER: Robert M. Mumma, President
14. Identify the person(s) most familiar with Plaintiffs financial condition
since it ceased active operations.
ANSWER: Robert M. Mumma, President
15. Identify all outside accountants and/or accounting firms who performed
accounting or tax services for Plaintiff from 1990 to the present.
ANSWER: Objection. Plaintiff objects to this request to the extent that it
seeks information regarding accountants and accounting firms that have nothing to
do with the issues presented in this matter and, consequently, the request is
overbroad and burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
16. Identify all lawsuits in which Plaintiff has been a party from 1990 to the
present providing the complete caption of the case(s), and the current status of the
case(s).
ANSWER: Objection. Plaintiff objects to this interrogatory to the extent
that it seeks information regarding unrelated lawsuits and covers a period of 14
years. Consequently, the interrogatory is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
17. Identify the current records custodian of Plaintiffs business records and
identify the records custodian, if different, during the following years:
(a) 2000;
(b) 2001;
( c) 2002; and,
(d) 2003.
ANSWER: Robert M. Mumma II, President
18. Identify the current location of Plaintiffs business records and indicate
how long the records have been stored and/or maintained in this location.
ANSWER: At all relevant times, the records were stored with counsel for
Plaintiff or at a general corporate office building located in BowmansdaIe,
Pennsylvania.
19. IdentifY all employees and/or agents of Plaintiff who worked on the 1-81
Roadside Rest Project that was the subject of both Case Nos. 1767 and 1809 filed by
Plaintiff before the Board of Claims.
ANSWER: Objection. Plaintiff objects to this interrogatory to the extent
that it seeks information regarding a large number of employees who have no
relation to the issues presented in this suit. Consequently, the interrogatory is
overbroad and burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
20. IdentifY all subcontractors who worked for or with Plaintiff on the 1-81
Roadside Rest Project that was the subject of both Case Nos. 1767 and 1809 filed by
Plaintiff before the Board of Claims.
ANSWER: Objection. Plaintiff objects to this request to the extent that it
seeks information regarding a large number of employees and subcontractors for
work done many years ago and for projects for which Plaintiff's records were lost
by Defendants. Consequently, the request is overbroad and burdensome.
Date:'] II (L~
Respectfully Submitted
;/7
By B/~
Attorney l.D. No. 75954
-
MILLER LlPSlTT LLC
P.O. Box 959
Camp Hill, P A 1700 I -0959
Attorneys for Plaintiff
CERTIFICATE OF SERVICE.
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served by First Class Mail upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
Dated: ;:) I ( (OL(
/;7
~
Sradle. A. utjer
. .
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
CCQ)~1f
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
Answer to Defendants' Request for Documents
1. Hiring or retainer agreements, correspondence and/or written agreements
and correspondence of any sort with all law firms or attorneys who represented Plaintiffs
interest at any time in either Case No. 1767 and/or Case No. 1809 either in the
Commonwealth Court and/or the Board of Claims of the Commonwealth of
Pennsylvania.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
2. Correspondence, memoranda, notes, or e-mails reflecting the termination
of the services of any law firm or attorney who represented Plaintiff at any time in either
Case No. 1767 and/or Case No. 1809 either in Commonwealth Court and/or the Board of
ClaiIIJS.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
3. Correspondence, memoranda, notes, or e-mails evidencing any disputes
involving fees and expenses claimed by any law firm or attorney who provided legal
services to Plaintiff in either Case No. 1767 and/or Case No. 1809 either in
Commonwealth Court and/or the Board of Claims.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
DEFENDANT'S
EX'lJ'T
All-STATE. INTERNATIONAL
4. Correspondence, memoranda, notes, or e-mails with any counsel
representing Plaintiff in Case No. 1767 and/or Case No. 1809 concerning the settlement
value of either or both of those cases at any time either case was an active case before the
Board of Claims.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
5. Correspondence, memoranda, notes, or e-mails with any counsel
representing Plaintiff in Case No. 1767 and/or Case No. 1809 setting forth any attorney
or law firm's opinion or evaluation of:
(a) The liability prospects of either case;
(b) An assessment or evaluation ofPennDOT's defenses in either
case; and,
( c) The likely damages Plaintiff could expect to recover if there was a
recovery on its part in either case.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
6. Correspondence, memoranda, notes, and/or e-mails to any attorney or law
firm representing Plaintiff sending, transmitting, or delivering underlying files, records,
and documentation of Plaintiff in any way related to Case No. 1767 and Case No. 1809.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
7. Correspondence, memoranda, e-mails, or notes of meetings or telephone
calls by any representative of PennDOT with anyone from Plaintiff concerning the
subject of settlement of Case No. 1767 and/or Case No. 1809, either individually, jointly,
and/or globally along with other claims asserted by Plaintiff against PennDOT from 1990
to the present.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
8. Files, documents, and records of any nature supporting Plaintiffs claim
of:
(a) Liability in Case No. 1767;
(b) Damages in Case No. 1767;
(c) Liability in Case No. 1809; and,
(d) Damages in Case No. 1809.
RESPONSE: Please see the following documents:
Exhibit "A" - Documents obtained from Defendants on Claim 1809
(Bates No. 1- 59).
Exhibit "B" - Docket from Board of Claims on Claim 1809
(Bates No. 60 - 350).
Exhibit "C" - Docket from Board of Claims on Claim 1767
(Bates No. 351- 418).
Exhibit "D" - Documents obtained from Defendants on Claim 1767
(Bates No. 419 - 487).
Exhibit "E" - Documents relating to attempt to open judgment.
(Bates No. 488 - 534).
9. Files, documents and records of any nature evidencing other claims
asserted by Plaintiff against PennDOT which were settled since 1990, including
documents and records of any kind reflecting the settlement amount(s) paid as to any
claim(s) of Plaintiff which were or have been settled.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence.
10. Files, documents, and records of any nature evidencing any pending
claims or lawsuits by Plaintiff against PennDOT.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims that have nothing to do with the issues presented in
this matter and, consequently, the request is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
11. A complete caption or cover sheet for any pending or current lawsuits
filed in any court and jurisdiction in which Plaintiff is a party.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims that have nothing to do with the issues presented in
this matter and, consequently, the request is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
12. Files, documents and records involving any bankruptcy proceedings where
Plaintiff was or is a party, including but not limited to bankruptcy filings showing
pending litigation involving Plaintiff.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information issues and confidential financial records that have nothing to do with
the issues presented in this matter and, consequently, the request is overbroad and
burdensome and not reasonably calculated to lead to the discovery of admissible
evidence.
13. Any corporate records, documents, resolutions or actions authorizing the
filing and/or maintenance of the above-captioned lawsuit.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information issues and confidential financial records that have nothing to do with
the issues presented in this matter and, consequently, the request is overbroad and
burdensome and not reasonably calculated to lead to the discovery of admissible
evidence.
14. Records or documents evidencing authorization by any bankruptcy court
to file and maintain the above action.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence.
15. Records or documents evidencing disclosure of the existence of the above
lawsuit to any bankruptcy court at any time.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence.
16. Discovery and investigation of any kind obtained by Plaintiff from
PennDOT at any time in Case No. 1767.
RESPONSE: Please see Exhibit "D."
17. Discovery and investigation of any kind obtained by Plaintiff from
PennDOT at any time in Case No. 1809.
RESPONSE: Please see Exhibit "B."
18. Correspondence, e-mails, memoranda, notes, and written and/or electronic
communication of any nature with Defendants concerning Case No. 1767.
RESPONSE: Please see Exhibits "C" and "D."
19. Correspondence, e-maiIs, memoranda, notes, and written and/or electronic
communication of any nature with Defendants concerning Case No. 1809.
RESPONSE: Please see Exhibits "A," "B" and "E."
20. Correspondence, e-mails, memoranda, notes, and written and/or electronic
communication of any nature with the Board of Claims concerning Case No. 1767, either
through counselor on a pro se basis.
RESPONSE: Please see Exhibits "c" and "D."
21. Correspondence, e-mails, memoranda, notes, and written and/or electronic
communication of any nature with Board of Claims concerning Case No. 1809, either
through counselor on a pro se basis.
RESPONSE: Please see Exhibits "A," "B" and "E."
22. All records and documents relating to fees and expenses charged to
Plaintiff by Attorney Roy Cohen and his law firm, including records of fees and expenses
paid by Plaintiff to Attorney Cohen and/or his law firm pertaining to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
and/or law firm.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
23. All records and documents relating to fees and expenses charged to
Plaintiff by Attorney Josh Lock and his law firm including records offees and expenses
paid by Plaintiff to Attorney Lock and/or his law firm pertaining to:
Case No. 1767;
Case No. 1809; and
Any other legal representation of Plaintiff by the same attorney and/or law firm.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
24. All records and documents relating to fees and expenses charged to
Plaintiff by Attorneys Wendy Beauchat, Glenn Smith or others at the Beauchat &
Beauchat law firm, including records offees and expenses paid by Plaintiff to Attorneys
Wendy Beauchat, Glenn Smith or others at the Beauchat & Beauchat law firm pertaining
to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
and/or law firm.
RESPONSE: Following reasonable investigation, other than the documents
provided by Defendants in response to Plaintiff's discovery, Plaintiff does not have
documents responsive to this request.
25. All records and documents relating to fees and expenses charged to
Plaintiffby Attorney Glenn Smith individually, including records of fees and expenses
paid by Plaintiff to Attorney Smith individually pertaining to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
and/or law firm.
RESPONSE: Following reasonable investigation, other than the documents
provided by Defendants in response to PIaintifPs discovery, Plaintiff does not have
documents responsive to this request.
Respectfully Submitted
Date: J / \ I D '1
MILLER LlPSITT LLC
P.O. Box 959
Camp HilI, PA 17001-0959
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served by First Class Mail upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.c.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
Dated: '3/1 (OL{
-----
/'
CERTIFICATE OF SERVICE
1 hereby certify that the Motion to Compel has been served on this 23"' day of
March, 2004, via U.S. Mail, first-class, postage pre-paid upon the following:
Bradley A. Schutjer, Esquire
Miller Lipsitt, LLC
P.O. Box 959
Camp Hill, PA 17001-0959
{40016-17011WOI25693.1}
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ADAMS COUNTY
ASPHALT CO.,
Plaintiff
v.
BEAUCHAT &
BEAUCHAT and
WENDY WEIKAL-
BEAUCHAT,
Defendants
,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
NO. 03-3049CIVIL TERM
ORDER OF COURT
AND NOW, this 7th day of April, 2004, upon consideration of Defendant's Motion
To Compel, a discovery conference is scheduled in chanlbers of the undersigned judge
for Thursday, June 10,2004, at 2:15 p.m. Counsel who wish to participate by telephone
are requested to contact the Court as well as opposing counsel.
~radley A. Schutjer, Esq.
Chadwick O. Bogar, Esq.
2157 Market Street
Camp Hill, PA 17011
Attorneys for Plaintiff >
Vincent J. Grogan, Esq.
.,Kharles W. Kenrick, Esq.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
Attorneys for Defendants
:rc
BY THE COURT,
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
AMENDED MOTION TO COMPEL
ANSWERS AND PRODUCE
DOCUMENTS IN RESPONSE TO
DEFENDANTS' SECOND SET OF
INTERROGATORIES AND
DOCUMENT REQUESTS
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHA T,
Defendants.
Filed on Behalf of Defendants:
Beauchat & Beauchat and Wendy
Weikal-Beauchat, Esquire
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. J.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. J.D. No.: 15967
GROGAN GRAFFAM, P.C.
Firm J.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
Our File No.: 49016/17011
{49016-17QIIW0128516.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
AMENDED MOTION TO COMPEL ANSWERS AND PRODUCE DOCUMENTS
JNRESPONSE TO DEFENDANTS' SECOND SET OF INTERROGATORIES
AND DOCUMENT REQUESTS
Defendants, Beauchat & Beauchat and Wendy Weikal-Beauchat, Esquire, by and
through their counsel, Vincent J. Grogan, Esquire, Charles W. Kenrick, Esquire, and
Grogan Graffam, P.C., serve the following Amended Motion to Compel Answers and
Produce Documents in Response to Defendants' Second Set of Interrogatories and
Document Requests.
Request to Hear Amended Motion to COlllPeI on
June 10.2004 at 2:15 p.m. before Judge Wesley OIer, AIOIlg with the
Pendin.g and Related Discovery Motion
1. A Motion to Compel filed with the Court on March 29,2004 is currently
scheduled to be heard as part of a discovery conference before the Honorable J. Wesley
Oler, Jr. on June 10,2004 at 2:15 p.m.
2. A copy of the earlier Motion to Compel, without attachments, is attached
as Exhibit "A" and incorporated by reference.
{49016-17011WOI28516.1}
3. In the interests of the fair, orderly, and efficient administration of justice,
counsel for the parties to the case request the Court, and particularly Judge Oler, to
decide the issues contained in this Amended Motion to Compel, as well as the initial
Motion filed on March 29,2004 on June 10, 2004 at the time indicated.
4. Counsel for the parties have conferred and cannot agree as to the
discovery issues raised by this Amended Motion to Compel.
5. Counsel for Defendants wishes to participate in the discovery conference
on June 10, 2004 and oral argument heard in connection with both the initial and
Amended Motions to Compel by telephone. Counsel for Plaintiff has agreed to defense
counsel's participation by this means and the undersigned will contact the Court
Administrator or the Court's law clerk to confirm that a phone conference has been
approved for the date and time indicated.
Background and Substance of Amended Motion to Compel
6. On or about March II, 2004, Defendants served a Second Set of
Interrogatories and Requests for Production of Documents on Plaintiff.
7. On or about May 3, 2004, Plaintiff served responses to the same
discovery. A copy of the same responses is attached as Exhibit "B."
8. Some of Plaintiffs discovery responses are insufficient and Defendants
take issue with Plaintiffs objections as set forth below.
{49016-170l1W0l285J6.1}
9. The following responses to Defendants are insufficient for the reasons
stated: 5, 8, 17-18, and 24-25.
Interrogatory NO.5:
This question asks for the identity of former employees and
agents of Plaintiff, other than its President, who have any
knowledge or information about the damages claimed in either of
the two (2) cases filed before the Board of Claims. Plaintiff
objects that the question was previously asked and answered.
In fact, this specific question was not asked. The only
related question previously was Number II in the First Set of
Interrogatories which asked who was "most knowledgeable" about
the damage claims and the answer was "Robert M. Mumma,
President." If there is anyone else who has knowledge and
information, Defendants are entitled to a responsive answer that
provides this clearly discoverable information.
Interrogatory No.8:
Defendants are most interested in obtaining meaningful
responses, as opposed to the non-responsive and incomplete
answers of 8(e) and 8(f). Interrogatory 8(e) seeks the identity of
employees of Plaintiff who supervised construction projects
between 1991 and 1994 and 8(f) asks for the identity of
supervisors with responsibility for "any aspect of the 1-81
{49016-17011 WOI28516.1}
Roadside Rest Project that was the subject of [the underlying
Board of Claims cases]."
Plaintiffs current answer, briefly summarized, states that
Robert M. Mununa, II, was responsible for everything, that
employment records relating to the projects are not available, and
that certain files provided to Defendants were lost. Plaintiff further
states it "will supplement this response if and when the information
becomes available."
Plaintiff's response IS insufficient and disingenuous.
Plaintiff does not deny the relevance ofthe request of 8(e) and 8(f).
Moreover, Plaintiff does not deny that responsive records still exist
which would identifY the names and last known addresses of its
construction supervisors on projects during a four (4) year period
during the early 1990's, and particularly the 1-81 Roadside Rest
Project that gives rise to the Board of Claims cases during a two
(2) year period in 1992 and 1993.
Two of the key liability issues in both underlying cases in
the Board of Claims were: (1) whether the 1-81 Roadside Rest
Project was progressing on time such that Plaintiff could complete
its contractual obligation with PennDOT as of June, 1993; and, (2)
whether Plaintiff had or could provide a qualified and competent
replacement supervisor as of that time to try to finish the job
properly, safely, and as otherwise required by the PennDOT
{490J6-1701IWOI28516.1}
contract. In fact, the key decision that prompted the filing of the
underlying lawsuits was PennDOT's determination, on or about
June 8,1993, to shut down the 1-81 Roadside Rest Project because
Plaintiff had not and could not provide a qualified and competent
project supervisor.
The relevance of the information sought is manifest.
Moreover, it is known from an examination of PennDOT's files
relating to the underlying case that Adams County Asphalt had
experienced serious problems involving retaining the services of
key supervisory personnel at material times leading up to June of
1993. In this regard, Defendants attach a copy of correspondence
dated June 1, 1993 from a John M Harris, a former supervisor of
Plaintiff, directed to Robert Mumma, II, as Exhibit "c" and
incorporate it by reference. Harris' letter states in part:
"I thank you for your kind offer to work directly for
you. However, after carefully weighing any
personal goals and professional considerations, I
respectfully decline. Your companies have
exhibited a turnover of key personnel that
approaches 80% per a year, which inhibits the
efficient management and operation of jobs to
completion." (Emphasis added).
Exhibit "c" demonstrates the need for this Court to order
full and complete responses to Interrogatories 8(e) and 8(f).
Plaintiff's non-responsiveness is intentional here as elsewhere, and
Plaintiff should be sanctioned and ordered to pay defense counsel
fees in connection with the need to present this Motion and deter
{49016-17011 WOI28516.1}
{49016-17011W0128516.1 }
Plaintiff from stonewalling and withholding information on issues
of vital importance, where Plaintiffs President clearly possesses
discoverable information.
Interrogatory Nos 17-18:
These questions seek to determine whether Plaintiff ever
had several relevant categories of documents contained in
Paragraphs 1-7 of Plaintiffs First Request for Documents, and if
so, what persons had control or responsibility for those documents
previously in Plaintiffs possession. Plaintiffs earlier response to
all seven (7) requests was that it did not currently have any
responsive documents. Categories of documents requested on or
about December 31, 2003 included:
I) Retainer agreements with any law firms in
the underlying Board of Claims cases;
2) Correspondence, memoranda, notes, and the
like reflecting the termination of other law
firms in the same Board of Claims cases;
3) Correspondence, memoranda, notes, and
like evidencing any fee disputes with
previous counsel in the Board of Claims
cases;
4) Correspondence, memoranda, notes, or the
like reflecting the subject of settlement value
of either Board of Claims cases;
5) Any opinion letter or memoranda from
previous counsel containing their evaluation
of the liability prospects for recovery and
likely damages recoverable in either of the
Board of Claims cases;
6) Correspondence, memoranda, notes, and the
like to any lawyer or law firm showing
transmission or delivery of relevant
underlying case files and records from
Plaintiff pertaining to either of the Board of
Claims cases; and,
7) Correspondence, memoranda, notes, and the
like evidencing communications with
anyone from PennDOT concerning the
subject of settlement of either Board of
Claims case individually or as part of a
settlement of other claims then pending
against PennDOT.
Common sense suggests that someone at Plaintiff had or
has copies of all the items requested during the past ten (10) years.
{49016-17011 W0128S16.1}
No claim of privilege was initially asserted with respect to the
seven (7) categories of documents. Plaintiff now states in response
to Interrogatory No. I7 that the information sought has nothing to
do with the issues in this case, and is overly broad and
burdensome, but again asserts no claim of privilege. Lastly, to the
extent there is any "response", Plaintiff states it cannot provide a
concise answer, but at one time it likely had some of the
documents requested. This is a patently insufficient response.
Interrogatory No. 18 seeks the identity of the person who
had custody or responsibility for the documents requested. That
question is not answered at all.
Defendants are entitled to know who has responsibility for
which categories of documents when they existed, the names and
addresses ofthose person( s), and further obtain a clear statement as
to whether some or all of these documents still exist. It would
appear that Robert Mumma, II, the President of Adams County
Asphalt, has not looked long or hard for any of the documents
since Plaintiff now objects to Interrogatory No. 17 stating that the
request is over broad and burdensome and not reasonably
calculated to lead to admissible evidence. No objection of
relevance is made. Indeed, what could be more relevant than the
seven (7) categories of documents outlined above in terms of
presenting a true picture of the merit and value, or lack thereof. of
{49016-1701IW0128516.\ }
the underlying Board of Claims cases at issue in this claim of legal
malpractice? Moreover, the claim that the question is burdensome
is bogus. Again, Plaintiffs attempt to evade the issues of who had
custody of the relevant documents and what became of them
should not be tolerated.
Interro!1-atory Nos. 24-25:
The question asked III No 24 is simple: "Were any
documents or records asked for III their First Request for
Production destroyed or discarded once Plaintiff ceased
operating as an active business?" The question is never answered.
The "response" otherwise consists of a serious of generic
objections.
Interrogatory No. 25, inquiring about the circumstances
under which any requested documents were discarded or
destroyed, is similarly not answered.
Defendants are entitled to responses and not evasions. The
documents sought are relevant as eXplained above and elsewhere.
If they exist, Defendants are entitled to their prompt production to
know this and obtain access to them. If they were destroyed,
Defendants are entitled to know the circumstances.
10. The balance of this Motion deals with objections to Interrogatories and/or
Request for Production of Documents that need to be overruled so that Defendants may
{49016-17011 WOI28516.1}
proceed with discovery, and the need for a verification from the President of Plaintiff that
the answers provided and to be supplemented are accurate.
11. Interrogatories Nos. nine (9) through sixteen (16) seek information
concerning the following:
Interrogatory Nos. 9-10:
The existence and identity of the attorney relationships with
counsel who represented Plaintiff in the Board of Claims before
Defendants were hired.
Interrogatory Nos. 11-12:
The reasons at least two earlier attorneys' services were
terminated in both cases.
Interrogatorv Nos. 13-16:
The existence and nature of any fee dispute with Attorney
Roy Cohen, one of Plaintiffs previous counsel, whether that
dispute led to litigation, and if so a synopsis and status report of
any such litigation including identifying the Court docket.
12. Plaintiff has objected to answering every Interrogatory claiming that the
requests are not reasonably calculated to lead to the discovery of admissible evidence and
are overly broad and burdensome. The last two (2) objections are absurd as several of the
questions can be answered in a word and all can be answered in a few sentences.
Moreover, all of the questions relate to relevant issues pertaining to the
underlying Board of Claims cases and as such seek discoverable information. Plaintiff
{49016-17011 W0128516.1}
has the obligation, as part of its burden of proof, to prove "the case within a case" in
order to make out a colorable claim oflegal negligence.
Defendants are entitled to find out what occurred relative to both underlying cases
when they were the responsibility of other lawyers, what their fee arrangements were,
whether they were paid for their services, and whether their termination was due to a fee
dispute or for other reasons. Moreover, the location of underlying documents with
Attorney Roy Cohen was referenced in paragraphs 23 and 27 of Defendants' Answer.
See, Exhibit "D" attached to this Amended Motion to Compel. Hence the information
sought is clearly relevant and the existence of a fee dispute with Plaintiff's previous
counsel may well explain why Defendants were not able to produce discovery in Case
Number 1809 in the Board of Claims, that ultimately resulted in dismissal of that action.
13. Interrogatory No. 19 asks whether Plaintiff ever had documents reflecting
fees and expenses charged and paid to any of the lawyers who represented Plaintiff in the
two (2) Board of Claims cases in question. Plaintiff refuses to answer the simple yes or
no question on the grounds it is burdensome and irrelevant. It cannot be burdensome and
it is relevant to find out whether Plaintiff paid its counsel. If it did not, this would explain
why the case did not progress before the Board of Claims, and why it is unlikely that
either underlying case would have ever proceeded to judgment or settlement, assuming
arguendo either case had possible merit. Unpaid lawyers in civil private practice do not
and cannot be forced to provide services. If there were contingency fee arrangements,
this fact would reduce any recovery assuming Plaintiffs underlying claims had merit. If
hourly bills were submitted and still exist, they would be expected to show what work
{49016-170IlWOI28516.1}
was done on the case between 1993 and 2001 when Defendants were retained in the
underlying cases.
14. For all the above reasons, Defendants request that their Amended Motion
to Compel be granted in its entirety.
15. Defendants further request that their counsel fees by paid in the amount of
$1,000.00 for preparation and presentation of the Amended Motion as an appropriate
sanction for Plaintiffs conduct in providing nothing more than objections and non-
responsive answers to Defendants' second set of written discovery.
WHEREFORE, Defendants request that their Amended Motion to Compel
Answers and Produce Documents in Response to Defendants' Second Set of
Interrogatories and Document Requests be granted and Plaintiff ordered to answer the
Interrogatories and Request for Production of Documents specified in the attached Order
of Court and pay Defendants the sum of $1,000.00 for the expense of preparing and
presenting this Amended Motion.
Respectfully Submitted:
By:
GROGAN GRAFFAM, P.C.
~~~UffiE
Pa.I.D. No.: 15967
Four Gateway Center - Twelfth Floor
Pittsburgh, P A 15222
(t) 412.553.6309
(f) 412.553.6718
{49016-17011W0128516.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
Plaintiff,
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
f49016-17011 WOI2S6!;l3,1 )
CIVIL DIVISION
Case No.: 03-3049
MOTION TO COMPEL
Filed on Behalf of Defendants:
Beauchat & Beauchat and Wendy
Weikal-Beauchat, Esquire
Counsel of Record for These Parties:
VINCENT J. GROGAN, ESQUIRE
Pa. J.D. No.: 00630
CHARLES W. KENRICK, ESQUIRE
Pa. I.D. No.: 15967
GROGAN GRAFFAM, P.C.
Firm I.D. No. 072
Four Gateway Center, Twelfth Floor
Pittsburgh, PA 15222
(412) 553-6300
JURY TRIAL DEMANDED
Our File No.: 49016/17011
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DEFENDANT'S
7-
AlL-STAne'NTtRNA1IONAL
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
MOTION TO COMPEL
Defendants, Beauchat & Beauchat and Wendy Weikal-Beauchat, Esquire, by
and through their counsel, Vincent 1. Grogan, Esquire, Charles W. Kenrick, Esquire,
and Grogan Graffam, P.C., serve the following Motion to Compel.
I. The above case involves a claim of legal malpractice arising out of the
dismissal of two (2) underlying actions by the Board of Claims which Plaintiff claims
were meritorious and would have resulted in a favorable judgment had they proceeded
to a hearing. The gist of Plaintiff's underlying claims asserted that PennDOT breached
a contract or contracts when it removed Plaintiff as the contractor on a roadside rest
paving project on 1-81 that had only been partly completed as of the late spring or early
summer of 1993.
2. Plaintiff ceased business operations during 1994 and has never resumed
business operations up to the present time.
3. Plaintiff filed the two (2) underlying actions during 1994 in the Board of
Claims that give rise to the above case. A limited amount of discovery was taken early
on in one Board of Claims case and no discovery was taken in the other matter.
{49016-1701IWOI2S693_1}
Plaintiff employed two (2) other attorneys and law firms to pursue the underlying
matters during the period from 1994 until 2001 when Defendant law firm was retained
for limited purposes.
4. Defendants have filed an Answer and New Matter denying, among other
things, that Plaintiff would have succeeded in proving either of the underlying cases.
Defendants also raised issues concerning Plaintiff's authority to sue and subject matter
jurisdiction.
5. Specifically III their New Matter, Defendants raise the following
affirmative defenses:
(a) 55. Plaintiff's claims are barred by the defense of lack of
causation;
(b) 56. Plaintiff's claims are barred by its inability to prove the
merits, including the damages claimed of both of the cases that it
filed and pursued before the Board of Claims;
(c) 50. The Court lacks subject matter jurisdiction in this case;
and,
(d) 51. Plaintiff lacks authority to sue and/or proceed with suit in
this case.
6. Under Pennsylvania law, Plaintiff in order to establish a cause of action
for legal malpractice, has the burden of proving its "case within a case." Defendants
are defending the claim by intending to show that it was more likely than not that
Plaintiff would not have prevailed on the merits in the underlying actions, and that there
would have been no difference in ultimate outcome had the two (2) underlying matters
been determined on the merits by the Board of Claims.
{40016-17011WOI25693.1)
7. On or about December 31, 2003, Defendants served a First Set of
Interrogatories and Request for Production of Documents that Plaintiff responded to and
objected in part on or about March I, 2004.
8. After receiving Plaintiff's various objections in early March, defense
counsel communicated his position concerning why the discovery objected to was
sought and pursued the possibility of resolving some of the parties' differences.
9. Counsel have been unable to resolve their differences necessitating this
Motion.
10. Defendants move to compel Answers to Interrogatories 15, 16, 19 and
20. A copy of Plaintiff's Objections to the same Interrogatories, all of which seek
discoverable information, is attached as Exhibit" A. "
(a) Interrogatory Number 15 asks Plaintiff to identify accountants
and accounting firms that performed tax and accounting services
for Plaintiff during a relevant period. This question is relevant
because:
I) Plaintiff's Complaint seeks damages "in excess of one
million dollars" (See WHEREFORE clause at page 10 of
the pleading) that supposedly would have been recovered
in of the two (2) underlying Board of Claims cases.
2) Plaintiff is entitled to discovery and evaluate the basis and
reasonableness of the damages claimed in the underlying
action in the circumstances, as well as the financial
condition of the corporation at certain times at or near the
time events were occurring in the underlying lawsuit that
may help explain Plaintiff's inability to perform and meet
deadlines under the PennDOT contracts at issue in the
Board of Claims litigation.
3) Accountants who represented Plaintiff at relevant times
are likely to possess relevant and discoverable information
in the circumstances that will enable Defendants to test the
149016.J7011W0125693,1 \
reasonableness of the damages that are claimed. There is
no burden in providing this information.
11. Interrogatory Number 16 asks Plaintiff to identify lawsuits to which
Plaintiff has been a party since 1990. Again, this general interrogatory is designed to
discover whether Plaintiff has been involved in other lawsuits that could be related to
and reveal other causes and/or explanations for Plaintiffs inability to perform the
PennDOT contract(s) in the underlying cases. Moreover, Defendants have agreed to
narrow this question to ask only about civil lawsuits filed by Plaintiff and/or lawsuits
involving fee disputes with lawyers. Plaintiff stilI refuses to answer the interrogatory.
The narrowed interrogatory clearly seeks discoverable information insofar as
Defendants have alleged in their Answer that they never received underlying files in
Board of Claims Case Number 1809 due to a fee dispute between Plaintiff and an
earlier attorney who handled that case. Moreover, the existence of other civil lawsuits
is reasonably calculated to discover, among other things, the amount of litigation in
which Plaintiff and its owner have been involved during the relevant time period, and
whether Plaintiff have maintained inconsistent positions and/or sought and recovered
damages that they seek to recover.
12. Interrogatory Numbers 19 and 20 asks Plaintiff to identify all employees
and representatives of Plaintiff and subcontractors who worked on the 1-81 Roadside
Rest Project that is the subject of both underlying Board of Claims cases. Nothing
could be more discoverable than the names and addresses of fact witnesses who were
present and have first-hand knowledge of what occurred when and why that explain the
{4SlO16-1101IWOI25693.ll
delays in completing the construction job on time and supervisory safety issues that
served as a basis for PennDOT terminating Plaintiff.
13. Defendants also request the Court order Plaintiff to fully respond to
Requests for Production of Documents Numbers 9 through 15. A copy of the
Objections to these Requests is attached as Exhibit "B."
(a) Defendants' Requests for Production of Documents Numbers 9 and 10
seek records of other claims by Plaintiff either filed against and/or settled
with PennDOT. Again, these requests seek to discovery of other
contemporaneous or related legal activity of Plaintiff that may explain its
inability to perform the contract in the present case and to determine
whether Plaintiff has sought or recovered similar and/or duplicative
damages or made inconsistent allegations in similar cases. The same
discovery may also reveal variances between Plaintiff's ability to plead
and prove claims against PennDOT in the underlying case. The requests
seek further information settlement valuations placed on any similar
claims filed and pursued by Plaintiff. Such requests are reasonably
calculated to lead to discoverable information, witnesses, and records
with respect to liability and damage issues.
(b) Paragraph 1l seeks the caption or coversheet for any lawsuit in which
Plaintiff is a party. Defendants have indicated that they are willing to
narrow this request along the lines indicated with Interrogatory 12 above.
Defendants incorporate their argument for obtaining these records as
though here set forth at length.
14. Requests Numbers 12, and 14 and 15 are all relevant to the defenses of
authority to sue and subject matter jurisdiction. If Plaintiff has been or is involved in
any bankruptcy proceeding, then under bankruptcy law it is Defendants' understanding
that authority to pursue this action would have to be obtained from the Bankruptcy
Court, this lawsuit would have to be disclosed to the Bankruptcy Court, and Plaintiff's
counsel would need to have obtained Bankruptcy Court approval to have filed and
pursued this case. Moreover, if Plaintiff is in bankruptcy, a question of subject matter
!4\X}t6.17()lIWOI25693.1)
jurisdiction may exist to the extent Plaintiff has authority to file and maintain a lawsuit.
In any event, Defendants are entitled to this information.
WHEREFORE, Defendants request that their Motion to Compel be granted and
Plaintiff ordered to answer the Interrogatories and Request for Production of
Documents specified in the attached Order of Court.
RespectfuIly Submitted:
By:
GROGAN GRAFFAM, P.C.
Atd ~~/{1P
CHARLES r:iCk'k. ~IRE
Pa. J.D. No.: 15967
Four Gateway Center - Twelfth Floor
Pittsburgh, PA 15222
(t) 412.553.6309
(f) 412.553.6718
(49016.11011 WOI2S693,1}
CERTIFICATE OF SERVICE
I hereby certify that the Motion to Compel has been served on this 23'" day of
March, 2004, via U.S. Mail, first-class, postage pre-paid upon the following:
Bradley A. Schutjer, Esquire
Miller Lipsitt, LLC
P.O. Box 959
Camp Hill, PA 17001-0959
~~ ~~/td
CHARLES W. ~~CK, ESQ~~
{49016-17011 WOI256&l3.t}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
ORDER OF COURT
AND NOW, to wit, this
day of
. 2004, it is
hereby ORDERED, ADJUDGED and DECREED that Plaintiffs provide full and
complete responses to the following Interrogatories and produce documents and
responses to Request for Production requests as follows: Interrogatory Numbers: 15-16
and 19-20 and Requests for Production of Documents Numbers 9 through 15. Said
responses and production are due ten (10) days from the date of this Order of Court or
appropriate sanctions will be entered.
BY THE COURT:
J.
{49016.170JIWOI2S693.11
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO,
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WE1KAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
Answer to Defendants' Interroeatories
I. IdentifY the current officers and directors of Plaintiff.
ANSWER: Robert M. Mumma, President
2. IdentifY all current owners of Plaintiff.
ANSWER: Robert M. Mumma
3. Is Plaintiff currently an active business?
ANSWER: No.
4. If the Answer to Interrogatory No.3 is no, when did Plaintiff last function
as an active business?
ANSWER: December 31, 1994.
5. What are the reasons Plaintiff ceased doing business?
ANSWER: Financial difficulties.
6. Does Plaintiff have any plans to resume business operations?
ANSWER: Yes.
· DEFENDANT'S '
7
ALl-STATE-INTERNATIONAl
7. If the answer to Interrogatory No.6 is yes, outline Plaintiffs current plan
and timetable to resume business operations?
ANSWER. Plaintiff intends to resume operations within one year.
8. IdentifY Plaintiffs record custodian(s) from 1990 to the present.
ANSWER: Robert M. Mumma II, President
9. IdentifY any officers and al1 supervisory and/or managerial employees or
agents of Plaintiff, past or present, who have any knowledge or information to support the
claims of the lawsuit filed by Plaintiff and against PennDOT at Case No. 1767 in the
Board of Claims.
ANSWER: Robert M. Mumma, President
10. IdentifY any officers and al1 supervisory and/or managerial employees or
agents of Plaintiff, past or present, who have any knowledge or information to support the
claims of the lawsuit filed by Plaintiff and against PennDOT at Case No. 1809 in the
Board of Claims.
ANSWER: Robert M. Mumma, President
11. IdentifY the employees or agents of Plaintiff past or present, who are most
knowledgeable about the claims of damages asserted in:
(a) Case No. 1767; and
(b) Case No. 1809.
ANSWER: Robert M. Mumma, President
12. Identify all persons known to Plaintiff who have knowledge and
infoffi1ation to support the claims oflegal malpractice and professional negligence
contained in Count I of the Complaint.
ANSWER:
1. Defendants
2. Glenn Smith
3, Defendants employees (current and former)
4. Robert M. Mumma II
5. Plaintiff's attorneys
6. Roy Cohen
7. Joshua Lock
13. Identify the chief financial officer, managerial or staff employee, or third
person most familiar with Plaintiffs financial condition at all material times from 1990
until the time Plaintiff ceased active operations.
ANSWER: Robert M. Mumma, President
14. Identify the person(s) most familiar with Plaintiffs financial condition
since it ceased active operations.
ANSWER: Robert M. Mumma, President
15. Identify all outside accountants and}or accounting firms who performed
accounting or tax services for Plaintiff from 1990 to the present.
ANSWER: Objection. Plaintiff objects to this request to the extent that it
seeks information regarding accountants and accounting firms that have nothing to
do with the issues presented in this matter and, consequently, the request is
overbroad and burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
16. Identify all lawsuits in which Plaintiff has been a party from 1990 to the
present providing the complete caption of the case(s), and the current status of the
case(s).
ANSWER: Objection, Plaintiff objects to this interrogatory to the extent
that it seeks information regarding unrelated lawsuits and covers a period of 14
years. Consequently, the interrogatory is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
17. Identify the current records custodian of Plaintiffs business records and
identify the records custodian, if different, during the following years:
(a) 2000;
(b) 2001;
(c) 2002; and,
(d) 2003.
ANSWER: Robert M. Mumma II, President
18. Identify the current location of Plaintiffs business records and indicate
how long the records have been stored and/or maintained in this location.
ANSWER: At all relevant times, the records were stored with counsel for
Plaintiff or at a general corporate office building located in Bowmansdale,
Pennsylvania.
19. Identify all employees and/or agents of Plaintiff who worked on the 1-81
Roadside Rest Project that was the subject of both Case Nos. 1767 and 1809 filed by
Plaintiff before the Board of Claims.
ANSWER: Objection. Plaintiff objects to this interrogatory to the extent
that it seeks information regarding a large number of employees who have no
relation to the issues presented in this suit. Consequently, the interrogatory is
overbroad and burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
20. Identify all subcontractors who worked for or with Plaintiff on the 1-81
Roadside Rest Project that was the subject of both Case Nos. 1767 and 1809 filed by
Plaintiff before the Board of Claims.
ANSWER: Objection. Plaintiff objects to this request to the extent that it
seeks information regarding a large number of employees and subcontractors for
work done many years ago and for projects for which Plaintiffs records were lost
by Defendants. Consequently, the request is overbroad and burdensome.
Date:'] ! \ (t.-1-f
Respectfully Submitted
//)
/,/~
' /
By I i"-1 /l.
B,2iey"A. S h tjer
Attorney J.D. No. 75954
MILLER LIPSITT LLC
P.O. Box 959
Camp Hill, PA 17001-0959
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
g
. ,/j. ./-
rad~ A. 4~tjer
foregoing was served by First Class Mail upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
Dated: 3 I ( (D~
,
. .
'"
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Demanded.
Defendants.
Answer to Defendants' Request for Documents
1. Hiring or retainer agreements, correspondence andJor written agrecments
and correspondence of any sort with all law firms or attorneys who represented Plaintiffs
interest at any time in either Case No. 1767 andJor Case No. 1809 either in the
Commonwealth Court and/or the Board of Claims of the Commonwealth of
Pennsylvania.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
2. Correspondence, memoranda, notes, or e-mails reflecting the termination
of the services of any law firm or attorney who represented Plaintiff at any time in either
Case No. 1767 and/or Case No. 1809 either in Commonwealth Court and/or the Board of
ClaiIJ}S.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
3. Correspondence, memoranda, notes, or e-mails evidencing any disputes
involving fees and expenses claimed by any law finn or attorney who provided legal
services to Plaintiff in either Case No. 1767 andJor Case No. 1809 either in
Commonwealth Court andJor the Board of Claims.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
. .
4. Correspondence, memoranda, notes, or e-mails with any counsel
representing Plaintiff in Case No. 1767 andJor Case No. 1809 concerning the settlement
value of either or both of those cases at any time either case was an active case before the
Board of Claims.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
5. Correspondence, memoranda, notes, or e-mails with any counsel
representing Plaintiff in Case No. 1767 andJor Case No. 1809 setting forth any attorney
or law firm's opinion or evaluation of:
(a) The liability prospects of either case;
(b) An assessment or evaluation ofPennDOT's defenses in either
case; and,
(c) The likely damages Plaintiff could expect to recover if there was a
recovery on its part in either case.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
6. Correspondence, memoranda, notes, andJor e-mails to any attorney or law
firm representing Plaintiff sending, transmitting, or delivering underlying files, records,
and documentation of Plaintiff in any way related to Case No. 1767 and Case No. 1809.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
7. Correspondence, memoranda, e-mails, or notes of meetings or telephone
cal1s by any representative of PennDOT with anyone from Plaintiff concerning the
subject of settlement of Case No. 1767 andJor Case No. 1809, either individual1y, jointly,
and/or globally along with other claims asserted by Plaintiff against PennDOT from 1990
to the present.
RESPONSE: Following reasonable investigation, Plaintiff does not have copies of
documents responsive to this request.
. .
8. Files, documents, and records of any nature supporting Plaintiffs claim
of:
(a) Liability in Case No. 1767;
(b) Damages in Case No. 1767;
(c) Liability in Case No. 1809; and,
(d) Damages in Case No. 1809.
RESPONSE: Please see the following documents:
Exhibit "A" - Documents obtained from Defendants on Claim 1809
(Bates No. 1- 59).
Exhibit "B" - Docket from Board of Claims on Claim 1809
(Bates No. 60 - 350).
Exhibit "C" - Docket from Board of Claims on Claim 1767
(Bates No. 351 - 418).
Exhibit "D" - Documents obtained from Defendants on Claim 1767
(Bates No. 419 - 487).
Exhibit "E" - Documents relating to attempt to open judgment.
(Bates No. 488 - 534).
9. Files, documents and records of any nature evidencing other claims
asserted by Plaintiff against PennDOT which were settled since 1990, including
documents and records of any kind reflecting the settlement amount(s) paid as to any
claim(s) of Plaintiff which were or have been settled.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence.
10. Files, documents, and records of any nature evidencing any pending
claims or lawsuits by Plaintiff against PennDOT.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims that have nothing to do with the issues presented in
this matter and, consequently, the request is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
" .
II. A complete caption or cover sheet for any pending or current lawsuits
filed in any court and jurisdiction in which Plaintiff is a party.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims that have nothing to do with the issues presented in
this matter and, consequently, the request is overbroad and burdensome and not
reasonably calculated to lead to the discovery of admissible evidence.
12. Files, documents and records involving any bankruptcy proceedings where
Plaintiff was or is a party, including but not limited to bankruptcy filings showing
pending litigation involving Plaintiff.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information issues and confidential financial records that have nothing to do with
the issues presented in this matter and, consequently, the request is overbroad and
burdensome and not reasonably calculated to lead to the discovery of admissible
evidence.
13. Any corporate records, documents, resolutions or actions authorizing the
filing and/or maintenance of the above-captioned lawsuit.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information issues and confidential financial records that have nothing to do with
the issues presented in this matter and, consequently, the request is overbroad and
burdensome and not reasonably calculated to lead to the discovery of admissible
evidence.
14. Records or documents evidencing authorization by any bankruptcy court
to file and maintain the above action.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence.
15. Records or documents evidencing disclosure of the existence of the above
lawsuit to any bankruptcy court at any time.
RESPONSE: Objection. Plaintiff objects to this request to the extent that it seeks
information regarding claims or settlements over the past 13 years that have
nothing to do with the issues presented in this matter and, consequently, the request
is overbroad and burdensome and not reasonably calculated to lead to the discovery
of admissible evidence,
16. Discovery and investigation of any kind obtained by Plaintiff from
PennDOT at any time in Case No. 1767.
RESPONSE: Please see Exhibit "D."
17. Discovery and investigation of any kind obtained by Plaintiff from
PennDOT at any time in Case No. 1809.
RESPONSE: Please see Exhibit "B."
18. Correspondence, e-mails, memoranda, notes, and written and/or electronic
communication of any nature with Defendants concerning Case No. 1767.
RESPONSE: Please see Exhibits "c" and "D."
19. Correspondence, e-mails, memoranda, notes, and written andJor electronic
communication of any nature with Defendants concerning Case No. 1809.
RESPONSE: Please see Exhibits "A," "B" and "E."
20. Correspondence, e-mails, memoranda, notes, and written and/or electronic
communication of any nature with the Board of Claims concerning Case No. 1767, either
through counselor on a pro se basis.
RESPONSE: Please see Exhibits "c" and "D."
21. Correspondence, e-mails, memoranda, notes, and written andJor electronic
communication of any nature with Board of Claims concerning Case No. 1809, either
through counselor on a pro se basis.
RESPONSE: Please see Exhibits "A," "8" and "E."
22. All records and documents relating to fees and expenses charged to
Plaintiff by Attorney Roy Cohen and his law firm, including records of fees and expenses
paid by Plaintiff to Attorney Cohen andJor his law firm pertaining to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
andJor law firm.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to tbis request.
'.
23. All records and documents relating to fees and expenses charged to
Plaintiff by Attorney Josh Lock and his law firm including records of fees and expenses
paid by Plaintiff to Attorney Lock and/or his law firm pertaining to:
Case No. 1767;
Case No. 1809; and
Any other legal representation of Plaint iff by the same attorney andJor law firm.
RESPONSE: Following reasonable investigation, Plaintiff does not have documents
responsive to this request.
24. All records and documents relating to fees and expenses charged to
Plaintiff by Attorneys Wendy Beauchat, Glenn Smith or others at the Beauchat &
Beauchat law firm, including records of fees and expenses paid by Plaintiff to Attorneys
Wendy Beauchat, Glenn Smith or others at the Beauchat & Beauchat law firm pertaining
to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
andJor law firm.
RESPONSE: Following reasonable investigation, other than the documents
provided by Defendants in response to Plaintiff's discovery, Plaintiff does not have
documents responsive to this request.
:>
.!
----~---...__._"..- -.
25. All records and documents relating to fees and expenses charged to
Plaintiff by Attorney Glenn Smith individually, including records of fees and expenses
paid by Plaintiff to Attorney Smith individually pertaining to:
(a) Case No. 1767;
(b) Case No. 1809; and,
(c) Any other legal representation of Plaintiff by the same attorney
and/or law firm.
RESPONSE: Following reasonable investigation, other than the documents
provided hy Defendants in response to Plaintiffs discovery, Plaintiff does not have
documents responsive to this request.
Respectfully Submitted
Date: J / \ ! D'l
MILLER LIPSITT LLC
P.O. Box 959
CarnpHill,PA 17001-0959
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served by First Class Mail upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.c.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
Dated: '3 II (0 L{
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/ .-
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.
H & H CONTRACTING, INC.
RR 14 BOX 357
NEWPORT, PA 17074
TELEPHONE (717) 567-7330
June 1, 1993
Mr. Robert Mumma II
Adams County Asphalt
5100 Paxton St.
Harrisburg, PA 17105
Dear Mr. Mumma,
This letter confirms your verbal directions of Thursday, May
20, 1993 and Friday, May 28, 1993. Specifically your
instructions to me are as follows:
1. The May invoice from H & H Contracting, Inc. would be the
final payment for services rendered.
2. Adams County Asphalt Co. had no future need of H & H
Contracting, Inc. 's services.
3. You requested that I consider resigning from H & H
Contracting, Inc. to work directly for Adams County
A~2halt at- a rate to be determined by yeu at so~e fut~~e
date.
Therefore, in accordance with your directions, H & H
Contracting, Inc. will not incur any additional costs to either
you personally or any of your companies as of five p.m. (5:00
p.m.) Friday, May 28, 1993.
I thank you for your kind offer to work directly for you.
However, after carefully weighing my personal goals and
professional considerations, I respectfully decline. Your
companies have exhibited a turnover of key personnel that
approaches 80% per year, which inhibits the efficient management
and operation of jobs to completion. As an employee I would also
be concerned about the company not haVing a comprehensive health
plan in place, not having a corporate strategy and not having any
corporate organization, either in the abstract or in realty.
Therefore, I feel my long term interests will be best served by
H & H Contracting, Inc.
cc: Mr. Richard Levando
Mr. Carl Furi
Mr. Lawrence Vertical
Very truly YOtlSj
w-- ~. ~v)
hn M. Harris
DEFENDANT'S
~
PENNDOT 00074
ALl-STATE-INTERNATIONAl
circumstances, Defendants are not liable and/or Plaintiff is contributorily liable for any further
actions of PennDot's counsel and the Board of Claims in the underlying matter.
18. Paragraph eighteen (18) of Plaintiff's Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraph seventeen (17) above as though
here set forth at length.
19. Paragraph nineteen (19) of Plaintiffs Complaint is admitted. In further
response Defendants incorporate their Answer to Paragraph seventeen (17) above as though
here set forth at length.
20. Paragraph twenty (20) of Plaintiff's Complaint is admitted. In further response
Defendants incorporate their Answer to Paragraph seventeen (17) above as though here set
forth at length.
21. Paragraph twenty-one (21) of Plaintiff's Complaint is admitted. In further
response, the same claim was prepared and fIled by other counsel.
22. Paragraph twenty-two (22) of Plaintiffs Complaint is admitted in part and
denied in part. It is admitted that Penn DOT served Interrogatories and Requests for
Production of Document on other previous counsel retained by Plaintiff as of December 1996.
It is denied that Defendants were served with such discovery requests at the time indicated or
at any other time by PennDot.
23. Paragraph twenty-three (23) of Plaintiff's Complaint is denied. On the contrary,
the Beauchat law fum and its attorneys had no involvement with the underlying matter until
October, 2001 and Attorney Beauchat had no personal involvement until 2002. Defendants
further incorporate other paragraphs of the Answer outlining their efforts and actions during
the limited period they did serve as counsel in the matter, including alerting Plaintiff to the
{49016-1701lWOll6276.11
DEFENDANT'S
EX2JIT
AlL.STAlE.INTERNATIONAL
existence of problems of compliance with outstanding Court orders and the likelihood that
discovery material requested in Case No. 1809 was likely with one of Plaintiffs previous
counsel, Attorney Roy Cohen in Philadelphia.
24. Paragraph twenty-four (24) of Plaintiffs Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraphs seventeen (17) and twenty-three
(23) above as though here set forth at length.
25. Paragraph twenty-five (25) of Plaintiff's Complaint is admitted.
26. Paragraph twenty-six (26) of Plaintiff's Complaint is admitted.
27. Paragraph twenty-seven (27) of Plaintiff's Complaint is admitted. In further
response, the same letter was sent after receiving oral information from a representative of
Plaintiff at or about this time that boxes containing the information that was sought by Penn
DOT might still be located, and that Plaintiff's representatives were continuing to look for the
same records. In further response at the time Plaintiff knew or should have known that
relevant documents with respect to Case Number 1809 were with Attorney Cohen in
Philadelphia, Pennsylvania.
28. Paragraph twenty-eight (28) of Plaintiff's Complaint is admitted. In further
response, Defendants incorporate their Answer to Paragraph twenty-seven (27) above as
though here set forth at length.
29. Paragraph twenty-nine (29) of Plaintiff's Complaint is admitted.
30. Paragraph thirty (30) of Plaintiff's Complaint is admitted, although it is denied
that the inability to produce documents was due to any alleged negligence on the part of
Defendants. On the contrary, Defendants made reasonable efforts to locate the documents in
question, pointed out their best information and belief that any such documents were with
(49016-17011 WOI16276.1)
7
CERTlFICATE OF SRRVICE
I hereby certity that the Amended Motion to Compel Answers and Produce
Documents in Response to Defendants' Second Set of Interrogatories and Document
Requests has been served on this ~ay of May, 2004, via U.S. Mail, first-class,
postage pre-paid upon the following:
Bradley A. Schutjer, Esquire
Miller Lipsitt, LLC
P.O. Box 959
CampHilI,PA 17001-0959
C~4~~E
{49016-17011 WOI2!\SI6.1}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff,
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
ORDER OF COURT
AND NOW, to wit, this
day of
, 2004, it is
hereby ORDERED, ADJUDGED and DECREED that Plaintiff provide full and complete
responses to the following second Interrogatories and Request for Production of
Documents as follows: Interrogatory Numbers 5, 8, 17-18, and 24-25. Said responses
and production with a supporting verification by the President of Plaintiff are due ten (10)
days from the date ofthis Order of Court, or further sanctions will be entered.
Plaintiff is further ordered to pay the sum of $1,000.00 for the preparation and
presentation of the Amended Motion to Compel.
BY THE COURT:
J.
149016-17011 W0I28516.I}
ADAMS COUNTY
ASPHALT CO.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
BEAUCHAT &
BEAUCHAT and
WENDY WEIKAL-
BEAUCHAT,
Defendants
NO. 03-3049CIVIL TERM
AND NOW,
ORDER OF COURT
this ",-;}- day o~ 2004, upon
consideration of Defendant's
Amended Motion To Compel Answers and Produce Documents in Response to
Defendants' Second Set of Interrogatories and Document Requests, a discovery
conference is scheduled in chambers of the undersigned judge for Thursday, June 10,
2004, at 2:15 p.m. Counsel who wish to participate by telephone are requested to contact
the Court as well as opposing counsel.
BY THE COURT,
4adley A. Schutjer, Esq.
Chadwick O. Bogar, Esq.
2157 Market Street
Camp Hill, PA 17011
Attorneys for Plaintiff
Vincent J. Grogan, Esq.
...charles W. Kenrick, Esq.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
Attorneys for Defendants
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:D!:J:lO...CE]ll:1
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial[ Demanded.
Defendants.
PETITION TO WITHDRAW AS COUNSEL FOR PLAINTIFF
AND NOW, comes MILLER LIPSITT LLC, and hereby files this Petition to Withdraw
as Counsel for Plaintiff, and, in support thereof, states:
I. Petitioner has been representing Plaintiff in numerous actions, including the
instant, since March of2003.
2. For the most part, the first year of Petitioner's relationship with Plaintiffwas
positive with litigation proceeding in a professional manner.
3. However, more recently disputes have arisen over strategies and the
reasonableness of Plaintiffs expectations.
4. These disputes have caused the attorney-client relationship to become estranged
as a result of the foregoing to the extent that Plaintiff no longer believes that Miller Lipsitt LLC
is adequately representing him.
5. Currently, Plaintiff is indebted to Miller Lipsitt LLC in an amount in excess of
$42,000.00 and has failed to pay this debt despite Plaintiffs repeat,ed promises to make payment.
6. Based on the foregoing, it is clear that the relationship between Plaintiff and
Petitioner is beyond repair.
7. Plaintiff will not be prejudiced by Petitioner's withdrawal.
WHEREFORE, Petitioner, MILLER LIPSITT LLC, respectfully requests that its petition
to withdraw as counsel for Plaintiff be granted.
Respectfully Submitted,
MILLER LIPSITT LLC
Date: () (p /(J7 /0'1
, I
~7
By , J/
~
Attorney 1. 0.: 75954
Chadwil:k O. Bogar
Attorney 1.D. No.: 83755
P.O. Box 959
Camp Hill, PA 17001-0959
(717) 909-5920
2
CERTIFICATE OF SERV!rCE
The undersigned hereby certifies that on this date a tme and correct copy of the foregoing
Petition to Withdraw as Counsel for Plaintiff was served via first-class, United States mail,
postage pre-paid, upon the fOllowing:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 121!h Floor
Pittsburgh, P A 15222
Dated: () It) h71n~
J f
Robert M. Mumma, II
6880 SE Harbor Circle
Stuart, FL 34996-1968
(Plaintiff)
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ADAMS COUNTY
ASPHAL T CO.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LA W
BEAUCHAT &
BEAUCHAT and
WENDy WEIKAL_
BEAUCHA T,
Defendants
NO. 03-3049CIVIL TERM
AND NOW, this 10th day of June, 2004, upon consideration of Defendant's
ORDER OF COURT
Motion To Compel, and of Defendants' Amended Motion To Compel Answers and
Produce Documents in Response to Defendants' Second Set of Interrogatories and
Document Requests, and following a conference in chambers of the undersigned jUdge in
which Bnul',y A. S'h",~, E,q" """,,"'cd P',;"tiff "d V;'oeo, J. Gro"", &.j.,
represented Defendants (both counsel Participating by telephone), and pursuant to an
agreement of counsel intended to facilitate disposition of a motion by Plaintiff's counsel
to withdraw and Plaintiff's retention of new counsel, the discovery conference scheduled
for this date is continued until Wednesday, July 14, 2004, at 1 :30 p.m.
BY THE COURT,
v13'radley A. Schuger, Esq.
Chadwick O. Bogar, Esq.
2157 Market Street
Camp Hill, PA 17011
Attorneys for Plaintiff
)
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~incent J. Grogan, Esq.
'tJINVi\lASNt"gr,l
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381:Ho-G31I:\
Charles W. Kenrick, Esq.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
Attorneys for Defendants
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JUNI 0 LU04 '?
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYl[. VANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHA T,
Jury Trial Demanded.
Defendants.
RULE TO SHOW CAUSE
AND NOW, this
tsliA
day of
Sl.O.h,'"
, 2004, upon
consideration of the Petition to Withdraw as Counsel for Plaintiff, it is hereby ORDERED that a
rule is issued upon the above Defendants, and upon Plaintiff, Robert M. Mumma, II, to show
cause, if any, why the relief sought should not be granted~at thi~ mull.;. i. l::T A v J;;!Y
p~di9g the AlJtt'!- : E1ftft5 ab1'6JitiSB 6f~is Petiti8R. :ft...J-.l'O
Rule returnable within -f 0
days of service.
BY THE COURT:
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3SH:io-G311::l
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial ])emanded.
Defendants.
MOTION TO MAKE RULE ABSOLUTE
AND NOW, COMES, Miller Lipsitt LLC, and files this Motion to Make Rule
Absolute and, in support thereof, states:
1. On or about June 7, 2004, Miller Lipsitt LLC filed a Petition to Withdraw
as Counsel for Plaintiff, Adams County Asphalt (" ACA"), in the above-referenced
matter.
2. On June 15, 2004, this Honorable Court directed the individual Plaintiff
and Defendant to show cause within ten days of service why the relief requested should
not be granted.
3. Defendant advised that they had no objection to the requested relief.
4. On June 17, 2004, Miller Lipsitt LLC served the above-reference Rule to
Show Cause on ACA.
5. ACA failed to show cause on or before June 27, 2003, why the relief
requested by Miller Lipsitt LLC should not be granted.
WHEREFORE, Miller Lipsitt LLC respectfully requests that its Petition to
Withdraw as Counsel for Plaintiff be Granted.
Respectfully Submitted,
Date: to);;<q I n~
MILLER L,TT LLC
BY~
Attorney J.D. No.: 75954
Chadwick O. Bogar
Attorney I.D. No.: 83755
P.O. Box 959
Camp Hill, PA 17001-0959
(717) 909-5920
2
CERTIFICATE OF SERVICE,
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
Motion to Make Rule Absolute was served via first-class, United States mail, postage pre-paid,
upon the following:
Vincent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
Robert M. Munrma, II
6880 SE Harbor Circle
Stuart, FL 34996-1968
(Plaintiff)
/l~s4~
~ A. L Paralegal ~
Dated: !J{~!otf
3
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JUL 0 1 2004f
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
Case No. 03 - 3049
v.
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Jury Trial Oemanded.
Defendants.
ORDER
AND NOW, this " tt day of :J v \ ~ ' 2004, upon
VVlotfLi., Tv (II( 2~ R"IC!.. ~l.zLt<... 2J'd n:;t"
consideration of the P~n to Withdraw llfl Cpunsel for Plaintiff, it is hereby ORDERED that
1't1c...IA-7j(cm ~ t:>~Q.J)' 2.le.arVlEd
the.P n' _u L L~ :" liP <lIld MILLER LIPSITT LLC is withdrawn as counsel for Plaintiff in
the above-captioned matter.
BY THE COURT:
-/ ~Kat:
Dated:
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ADAMS COUNTY
ASPHALT co.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
BEAUCHAT &
BEAUCHAT and
WENDY WEIKAL-
BEAUCHAT,
Defendants
NO. 03-3049CIVIL TERM
ORDER OF COURT
AND NOW, this 14th day of July, 2004, upon consideration of Defendant's
Motion To Compel, and of Defendants' Amended Motion To Compel Answers and
Produce Documents in Response to Defendants' Second Set of Interrogatories and
Document Requests, and following an initial period of a discovery conference in which
Charles Buechel, Esq., appeared (by telephone) on behalf of Defendants and no
appearance was made on behalf of the corporate Plaintiff; and pursuant to an oral motion
by Defendants' counsel for a continuance of the conference to facilitate Plaintiffs
acquisition of an attorney of record, the discovery conference is continued until
Monday, September 27, 2004, at 2:30 p.m., in chambers of the undersigned judge,
Cumberland County Courthouse, Carlisle, Pennsylvania.
NO FURTHER continuance ofthe conference will be granted.
BY THE COURT,
J.
III
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3::;f::HO--031i::l
Adams County Asphalt Company
c/o Robert M. Mumma, II
Box 58
Bowmansdale, P A 17008
Plaintiff
Adams County Asphalt Company
c/o Robert M. Mumma, II
6880 SE Harbor Circle
Stuart, FL 34996-1968
Plaintiff
Charles Buechel, Esq.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
Attorney for Defendants
I.' 7_/S.0'l
~'f~u />'V1~
C)-,
Courtesy Copy:
Miller Lipsitt, LLC
P.O. Box 959
Camp Hill, P A 17001-0959
:rc
QUG-0?-2004(MON) 14: 32 Kennedy / Bogar LlC
(FAX)717 909 5925
P,002/038
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
ADAMS COUNTY ASPHALT CO. ;
.
.
Plaintiff,
;
Case No,. 03 - 3ll4!l
.
.
v.
.
.
BEAt1CRAT &: BEAt1CHAT and
WENOYWElKAL-BEAUCHAT,
Defendants.
:
:
;
Juxy Triill Demanded.
.
.
.
.
PRAECIPE FOR EN'TRYIWITBDRAWAL IOF A.PP2ARANCE
Kindly Withdraw the following counselors of recclrd in the above-captioned
ma tter:
Otadwlck O. Bogar, Esquit'lil
Attorney J.D. 83755
Bradley A, Schu ~er, Esquire
Attorney r.o. 75954
Oated:~l-(
Dated: D~tN/tfI
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Kindly lanter the fOllOwing counselors of record in ,!:he above-captioned matter:
Dated: g: 1. ilL
Kirk Sohonage, Esquire
Attorney 1.0. No.: 77851
Mu.ulR LlPsn-r LLC
2157 Market Street
Camp Hill, PA 17011
eit?) 737-6400 #.
By:---..d
~ ohonage, Esquire
rUG-0~-~004(MON) 14:33
Kennedy / Bogar LLC
(FAX)717 909 59~5
P 003/03B
CERTIFICATE OF SERVICE
I. the undersigned. hereby certify that a !:rue and ,'orrect copy of the foregoing
Praecipe for Entzy/Withclrawal of Appearance was 5C1'Vcd via first-class, United States
mail, postage pre-paid, u.pon the following:
Vmcent J. Grogan
Charles W. Kenrick
Grogan Graffam, P.C.
Four Gateway Center. 12th Floor
Pittsburgh, PA 15222
Dated: od..~IO'I
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHA T,
Defendants
PLAINTIFF'S ANSWER TO DEFENDANTS' AMENDED MOTION
TO COMPEL ANSWERS AND PRODUCE DOCUMENTS
IN RESPONSE TO DEFENDANTS' SECOND SET OF INTERROGATORIES
AND DOCUMENT REOUESTS
Plaintiff, Adams County Asphalt (hereinafter "ACA"), by and through its counsel,
Kirk S. Sohonage, Esquire and Daryl E. Christopher, Esquire, and Miller Lipsitt LLC,
and file tl1e following Answer to Defendants' Amended Motion to Compel Answers and
Produce Documents in Response to Defendants' Second Set ofInterrogatories and
Document Requests and in support thereof avers the following:
1. DENIED. A hearing on Defendant's Motion to Compel had been
scheduled for June 10, 2004, but such hearing was continued and is currently scheduled
for September 27,2004, before tl1e Honorable J. Wesley Oler Jr.
2. ADMITTED.
3. ADMITTED.
4. ADMITTED in part. Plaintiff's previous counsel and Defense counsel
had conferred on the discovery issues and could not agree on the same, but Plaintiff's
current counsel has not yet conferred wiili defense counsel.
5. No answer required.
Back2round and Substance of Amended Motion to ComDel
6. ADMITTED.
7. ADMITTED.
8. DENIED. It is specifically denied that Plaintiff's responses are
insufficient. On the contrary, Plaintiff believes Defendant's Interrogatories and Requests
eiilier deal with privileged information or are not calculated to lead to other admissible
evidence.
9. DENIED. It is specifically denied that Plaintiff's response to
Interrogatories 8(e), 17-18 and 24-25 are insufficient. On ilie contrary, Plaintiff believes
Defendants' Interrogatories either deal wiili privileged information or are not calculated
to lead to oilier admissible evidence.
As to Interrogatories No.5 and 8(f), Plaintiff's counsel is attempting to
locate the appropriate information and will submit the same to defense counsel upon
receipt.
In response to the request in Interrogatory 8(f), which sought ilie identity of
supervisors with responsibility for "any aspect of the I-8lRoadside rest Project that was
the subject of [ tl1e underlying Board of Claims cases]" the Plaintiff avers the supervisor
of this project during this time was:
Jay Martin, a former employee
(Plaintiff is attempting to locate his address and will provide the same when found)
(a) Interrol!atorv No. 8(e)
"Identify what employees andJor officers of the Plaintiff,
other than Robert M. Mumma, had any responsibilities for Plaintiff
regarding the following matters during the period of January I,
1991 through December 31,1994:
(e) Supervising construction projects performed by the
Plaintiff during the indicated time period;
Plaintiff again specifically denies that its Answer to this Interrogatory was
insufficient. On the contrary, Plaintiff responded that the "records relating to projects,
including employment records, are not available and the files provided to the Defendants
were lost. Plaintiff will supplement this response if and when the information becomes
available." Furthermore, Plaintiff objects to 8( e) on the grounds that such request is not
reasonably calculated to lead to admissible evidence, that it is overbroad and irrelevant to
the case at hand.
(b) Interrol!atorv No. 17
"State whether Plaintiff had documents that were
responsive to the documents described and requested in
paragraphs one (I) through seven (7) oftl1e Defendants'
First Request for Production of Documents served on or
about December 31,2003, at any previous time."
I. Retainer agreements with any law firm in the
underlying Board of Claims cases;
2. Correspondence, memoranda, notes, and tl1e like
reflecting the termination of otl1er law firms in
the same Board of Claims cases;
3. Correspondence, memoranda, notes, and like
evidencing any fee disputes with previous
counsel in the Board of Claims cases;
4. Correspondence, memoranda, notes, or the like
reflecting the subject of tl1e settlement value of
either Board of Claims cases;
5. Any opinion letter or memoranda from previous
counsel containing tl1eir evaluation of the
liability prospects for recovery and likely
damages recoverable in eitl1er of the Board of
Claims cases;
6. Correspondence, memoranda, notes, and the like
to any lawyer or law firm showing transmission
or delivery of relevant underlying case files and
records from Plaintiff pertaining to either of the
Board of Claims cases; and
7. Correspondence, memoranda, notes, and the like
evidencing communications with anyone from
PennDOT concerning the subject of settlement
of either Board of Claims case individually or as
part of a settlement of other claims then pending
against PennDOT.
Plaintiff again specifically denies that its Answers to Interrogatory 17 were
insufficient. Further, Plaintiff objects to Interrogatory 17 on the grounds that such
requests are not reasonably calculated to lead to admissible evidence, that they seek
privileged information, that they seek information the Plaintiff would not have possessed,
that they seek information regarding settlement discussions that are inadmissible and
cannot reasonably be calculated to lead to admissible evidence or that they seek
information that is not relevant to the case at hand.
(c) Interrogatory No. 18
"To the extent Plaintiff ever had any responsive documents
as set forth in paragraph seventeen (17) above, at any
previous time, what person(s) had custody, control, or
responsibility for any such documents."
Plaintiff responded to this interrogatory by objecting on the above-noted grounds
and also by advising that it is likely the Plaintiff had possessed such documents at one
time, but that it is unable to identify with particularity tl1e responsive documents.
Again, Plaintiff specifically denies tl1at its Answer to Interrogatory 18 was
insufficient. Further, Plaintiff objects to Interrogatory 18 on the grounds that such
request is not reasonably calculated to lead to admissible evidence and that it seeks
information that is not relevant to tl1e case at hand.
Due to the passage of time, the Plaintiff has been unable to locate certain
documents that it may have once possessed, but will continue to look for the same and
will submit to the defendant if they are discovered.
(d) Interrogatorv No. 24
"Were any documents or records asked for in tl1eir First
Request for Production of Documents destroyed or
discarded once Plaintiff ceased operating as an active
business?"
Again, the Plaintiff specifically denies that its answer to Interrogatory 24 is
insufficient. The documents of which the defendant inquires in Interrogatory 24 are those
outlined above, which, again, are objected to on tl1e aforementioned grounds tl1at they are
not reasonably calculated to lead to admissible evidence, that tl1ey seek privileged
information, that they seek information the Plaintiff would not have possessed, that tl1ey
seek information regarding settlement discussions that are inadmissible and cannot
reasonably be calculated to lead to admissible evidence or that they seek information that
is not relevant to tl1e case at hand.
(e) InterrolZatorv No. 25
"If the answers to the previous Interrogatory is yes, what
documents which have been requested by Defendants were
ordered to be destroyed and discarded, who ordered this,
and when did such document destruction take place."
Again, the Plaintiff specifically denies that its answer to Interrogatory 25 is
insufficient. Interrogatory 24 was not answered in the affirmative, so tl1ere was no need
to respond to Interrogatory 25. To the extent that a response is necessary, the Plaintiff,
again, objects on the aforementioned grounds that the responses are not reasonably
calculated to lead to admissible evidence, that they seek privileged information, that they
seek information tl1e Plaintiff would not have possessed, that they seek information
regarding settlement discussions that are inadmissible and cannot reasonably be
calculated to lead to admissible evidence or that tl1ey seek information that is not relevant
to the case at hand.
10. The intimation by defendants that Plaintiffs objections should be
overruled is not supported by law or fact. The Plaintiff has raised appropriate objections
to tl1e unanswered interrogatories.
11. Plaintiffs object to the requests for inforrnation in Interrogatory Nos. 11-
16 in that such requests seek information that is inadmissible and cannot reasonably be
calculated to lead to admissible evidence and that the evidence is not relevant to the case
at hand.
With regard to the requests for information in Interrogatory Nos. 9-10, the names
of prior counsel who had represented the Plaintiff in this action are:
Roy Cohen, Esquire; and
Glenn Smith, Esquire
12. Plaintiff stands by its objections on the ground tl1at such
inforrnation is not reasonably calculated to lead to admissible evidence. Pursuant to tl1e
Rules of Civil Procedure and the case law, tl1e Defendants are not entitled to receive from
the Plaintiff privileged infOffi1ation, irrelevant infOffi1ation or information that is not
reasonably calculated to lead to admissible evidence.
If tl1e Defendant has certain "hunches" about this case she can certainly
investigate those on her own. Furthermore, the matter ofthis litigation is that Defendant
failed to act in any fashion. She simply chose to ignore certain deadlines tl1at had been
issued by the Board of Claims. Rather than advising the Board of Claims tl1at she was
attempting to obtain certain documents for discovery or respond to its threat to dismiss
the case, Defendant did nothing. It is not that she acted incorrectly, rather it was her
inaction that led to the Plaintiff's case being dismissed. Plaintiff avers that she cannot
attempt to defend her failure to act by alleging that prior counsel and Plaintiff had a fee
dispute and as a result she did not have access to certain documents. This "defense" begs
the question as to whetl1er she attempted to obtain or subpoena the records from
Plaintiff's prior counsel if that is where she believed tl10se records might have been.
Simply put, as tl1e Defendant admitted in her deposition, she never contacted prior
counselor attempted to obtain these records from tl1em. It seems as though Defendant
failed to give this case the proper attention it needed and in failing to do so she let the ball
drop. Only now, after tl1e fact, does Defendant raise this issue about a fee dispute.
The law with regard to attorneys' liens in Pennsylvania is quite clear: an
attorney may retain work product for which he or she has not been paid, but cannot do so
to the prejudice of the client. Assuming for argument's sake that Plaintiff's prior counsel
actually possessed the documents in question and refused to release them due to an
alleged attorney lien, then Defendant could have initiated an action against prior counsel
alleging prejudice to the Plaintiff (certainly there can exist no greater prejudice than what
occurred in this case) to obtain the records or, in the very least, she could have advised
the Board of View of tl1e situation and asked that it not dismiss Plaintiff's case until the
issue with the records could be resolved. Had the Defendant taken any action in this
matter the case would not have been dismissed; it was her failure to act that has led to this
malpractice action!
13. Plaintiff stands by its objections on the ground tl1at such information is not
reasonably calculated to lead to admissible evidence. Pursuant to tl1e Rules of Civil
Procedure and the case law, the Defendants are not entitled to receive from tl1e Plaintiff
privileged information, irrelevant information or information that is not reasonably
calculated to lead to admissible evidence.
14. For all of the above reasons, Plaintiff requests that Defendants' Amended
Motion to Compel be denied.
15. Plaintiff avers that Defendants' Motion is without merit and tl1at tl1e
arguments contained within lack legal justification based on the Rules of Civil Procedure
and the case law and, therefore, requests this Court order sanctions be imposed against
the Defendants for compelling Plaintiff to address these meritless arguments.
WHEREFORE, Plaintiff requests the Court deny tl1e Defendants'
Amended Motion to Compel and that it impose sanctions against the Defendants in the
amount of$1500.00 for the expense of preparing, presenting and arguing such Amended
Motion.
Respectfully submitted,
By:
K' . 0 onage, Esquire
Pa J.D.: #77851
2157 Market Street
Camp Hill, PA 17011
P.717.737.6400
F.717.737.5355
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
03-3049 CIVIL TERM
ADAMS COUNTY ASPHALT CO.,
Plaintiff
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants
JURY TRIAL DEMANDED
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon
consideration of Defendants' Motion To Compel and of Defendants'
Amended Motion To Compel Answers and Produce Documents in
Response to Defendants' Second Set of Interrogatories and
Document Requests, and following a conference in chambers of the
undersigned judge, in which Plaintiff was represented by Kirk S.
Sohonage, Esquire, and Defendants were represented by Jason
Wehrle, Esquire, (participating by telephone), it is ordered and
directed as follows:
1. Within 30 days of today's date Plaintiff
shall furnish to Defendants' counsel the following in properly
verified form:
a. The names of any accountants of
Plaintiff from 1990 through 1995;
b. The captions of any lawsuits involving
fee disputes between Plaintiff and any attorneys representing
Plaintiff with respect to the claims of Plaintiff before the
Board of Claims underlying the present litigation;
c. The identities of any of Plaintiff's
employees, representatives, and subcontractors who or which
worked at the I-81 roadside rest project(s) underlying the
present litigation;
d. The identities of any of Plaintiff's
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employees or agents or of any third person who has knowledge or
information about the aforesaid underlying claims before the
Board of Claims;
e. The identities of any employees and/or
officers, other than the President of Plaintiff, who had
responsibility for supervising the work on the project(s) to
which the aforesaid underlying claims are related;
f. The identity of any person employed by
Plaintiff who had custody of documents referred to in paragraphs
1 through 7 of Defendants' First Request for Production of
Documents, and which have been reported by Plaintiff to have been
destroyed or otherwise disposed of;
g. The manner and time of, and identity of
the said destruction or disposition of documents; and
h. The identity of any attorneys who
represented Plaintiff in the Board of Claims matters which are
the subject of the present litigation i~ which fee disputes have
arisen between the attorney(s) and Plaintiff, and the nature of
those fee disputes.
2. No other relief is ,granted at this time.
By the Court,
~irk S. Sohonage, Esquire
2157 Market Street
Camp Hill, PA 17011
For Plaintiff
wr!:e~fpl J.
~son Wehrle, Esquire
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
For Defendants
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
CIVIL DIVISION
Plaintiff
Case No.: 03-3049
v.
JURY TRIAL DEMANDED
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants
PLAINTIFF'S SECOND ANSWER TO DEFENDANTS' MOTION AND AMENDED
MOTION TO COMPEL ANSWERS AND PRODUCE DOCUMENTS
, IN RESPONSE TO DEFENDANTS' SECOND SET OF INTERROGATORIES AND
DOCUMENT REOUESTS
AND NOW, in response to the Court's Order of September 29,2004, the
Plaintiff, through its counsel, files this Second Answer to Defendants' Motion to
Compel and in support thereof avers the following:
I (a) The names of any accountants of Plaintiff from 1990 through 1995:
i) Brown, Shultz, Sheridan & Fritz
210 Grandview Avenue
Camp Hill, PA 17011; and
ii) Stambaugh-Ness, p.c.
2600 Eastern Blvd.
York, PA 17402
I (b) There have been no lawsuits involving fee disputes between Plaintiff and
any previous attorneys who represented the Plaintiff with respect to the underlying claim
before the Board of Claims.
I (c) Other than tl1e information previously providc:d regarding supervisors, the
Plaintiff is attempting to locate time sheets that would help to provide the requested
information. Once the information is located it will be forwarded.
I (d) Please see the response to I(c).
I (e) Jay Martin, a former employee
(Plaintiff is attempting to locate his address and will provide the same when found)
I(f) Attorney Roy Cohen; Attorney Glenn Smith; and Attorney Wendy Weikal
Beachat.
1 (g) Plaintiff is unaware if the documents were destroyed or how they were
disposed of.
I (h) The Plaintiff objects to this request on the grounds that it is not relevant to
the case at hand and that it is not designed to elicit any infonnation that would be
admissible in court. The Defendant has already stated in her deposition that she took no
steps to contact any of Plaintiff's prior counsel regarding certain documents that they
might have possessed. Therefore, for her to pursue some notion of an attorney's lien
is wholly irrelevant. If Defendant had requested the documents and prior counsel refused
to submit them to her and asserted a lien, tl1en Defendant could have compelled the
production of tl10se documents due to the adverse consequences to her client, tl1e
Plaintiff. Or, in the very least, Defendant could have advised the Board of Claims that
she was attempting to obtain the documents and requested more time. Instead, though,
Defendant chose to do nothing! Thus, Plaintiff objects to this request as irrelevant.
Miller Lipsitt LLe
BY:
Kirk ohonage, Esquire
J.D. # 77851
2157 Market Street
Camp Hill, PA 17011
P.717.737.6400
F.717.737.5355
Attorney for Plaintiff
CERTIFICATE OF SERVIC~
I hereby certify that a true and correct copy of the foregoing was served via
regular mail, upon tl1e following:
Jason Wehrle, Esquire
Four Gateway Center, 12th Floor
Pittsburgh,PPl 15222
Dated: October 27.2004
By:
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IN THE COURT OF COMMON PU:AS
CUMBERLAND COUNTY, PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
v.
Case No.: 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
Jury Trial Demanded.
PRAECIPE FOR WITHDRAW / ENTRY OF APPEARANCE
Kindly withdraw the following counselors of record.
MILLER LIPSITT LLC
Kirk S. Sohonage, Esquire
AttorneyLD. No.: 77851
2157 Market Street
Camp Hill, P A 17011
(717) 737-6400
(
Kindly enter the following counselors of record
Kirk S. Sohonage, Esquire
Attorney J.D. No.: 77851
P.O. Box 480
Camp Hill, P A 17001
(717) 612-9721
Daryl E. Christopher, Esquire
Attorney J.D. No.: 91895
P.O. Box 480
Camp Hill, PA 17001
(717) 612.9721
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Date
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~)l1onage, Esq.
J,J./J.J./Oo/
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~;hristopher, ESq.
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
PRAECIPE FOR WITHDRAWAL / ENTRY OF APPEARANCE was served via first-
class, postage-prepaid, United States mail upon the following:
Mr. Jason Wehrle, Esquire
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, P A 15222
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.
Plaintiff,
v.
Case No.: 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WElKAL-BEAUCHAT,
Defendants.
Jury Trial Demanded.
PRAECIPE TO WITHDRAW
Please withdraw the appearance of Attorney Daryl Christopher and the law firm
of SOHONAGE & CHRISTOPHER from the above-captioned case. Attorney Kirk
Sohonage will remain counsel for the Plaintiff and will continue to use the same address:
Kirk S. Sohonage, Esq.
P.O. Box 480
Camp Hill, P A 17001
Attorney for the Plaintiff
(717) 612-9721
Respectfully Submitted
S/J-~/{)r;
D!tte (
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Daryl . Christopher, Esq.
LD. No.: 91895
II Southview Circle
Elizabethtown, P A 17022
: 7/"1> ' )1j I ~ ni '7
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
PRAECIPE TO WITHDRAW was served via first-class, postage-prepaid, United States
mail upon the following:
Mr. Jason Wehrle, Esquire
Grogan Graffam, P.C.
Four Gateway Center, 12th Floor
Pittsburgh, PA 15222
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Kirk S. Sohonage, Esquire
PO Box 480
Camp Hill, P A 17001-0480
IN THE COURT OF COMMON PLEAS
FOR CUMBERLAND COUNTY, PENNSYL VANIA
ADAMS COUNTY ASPHALT CO.,
Plaintiff,
v.
No. 03-3049
BEAUCHA T & BEAUCHA T and
WENDY WElKAL-BEAUCHAT,
Defendants.
PETITION FOR LEAVE TO WITHDRAW
AND NOW comes the Petitioner, Kirk S. Sohonage and files this Petition for
Leave to Withdraw and in support thereof aver:
1. Petitioner represents Adams County Asphalt (ACA) in the matter.
2. Robert M. Mumma II is an officer and/or director of ACA.
3. For various reasons Petitioner can no longer effectively represent the interests of
ACA and it is impractical for Petitioner to continue representing it.
4. Plaintiff has not paid Petitioner for his services and it is a financial hardship for
Petitioner to continue his representation of ACA.
5, Withdrawal by Petitioner will not prejudice the interests of ACA and this case is
not moving in that ACA is in bankruptcy.
6. Robert M. Mumma II's addresses are Box 58, Bowmansdale, PA 17008 and 6880
S.E. Harbor Circle, Stuart, FL 34996.
7. Robert M. Mumma II has been served on behalf of ACA.
WHEREFORE, Petitioner respectfully requests that he be allowed to withdraw as
counsel for Plaintiff in the above-captioned action.
(0 .lo .0<::>
Date
Respectfully Submitted
/~~
Kirk S, Sohonage, Esq.
I.D. No.: 77851
Box 480
Camp Hill, PA 17001-0480
.
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I served copy of this PETITION FOR
LEAVE TO WITHDRAW was served via postage-prepaid, first-class, US mail addressed
to:
Jason Wehrle, Esquire
Four Gateway Center, lih Floor
Pittsburgh, P A 15222
Attorney for the Defendant
And by hand-delivery to
Robert M. Mumma II
Box 58
Bowmansdale, P A 17008
For ACA
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OCT 2 5 200~
IN THE COURT OF COMMON PLEAS
FOR CUMBERLAND COUNTY, PENNSYLVANIA
ADAMS COUNTY ASPHALT CO.,
Plaintiff,
v.
No. 03-3049
BEAUCHAT & BEAUCHAT and
WENDY WEIKAL-BEAUCHAT,
Defendants.
RULE TO SHOW CAUSE WHY PETITIONER SHOULD NOT BE ALLOWED
TO WITHDRAW
AND NOW this -! ~ *
day of -V'V a vi:...., Lc:J 2005, a Rule
returnable in ~ 0 days is hereby issued upon all interested parties to show cause
why Attorney Kirk S. Sohonage should not be allowed to withdraw as counsel in the
above-captioned case.
BY THE COURT
Distribution to:
~. Sohonage, Esquire;
~~ehrle, Esquire; and
~bert M. Mumma II for ACA
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