HomeMy WebLinkAbout99-04895 (2)CINEMAGIC, INC. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
NO. 99-4895 CIVIL TERM
SCOTT W. HARVEY and
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION PANEL
ORDER OF COURT
AND NOW, October 18, the appointment of Daryl Christopher,
Esquire, to the Arbitration Panel in the above matter is vacated, and Lisa
Coyne, Esquire, is appointed in his stead.
By the Court,
AyMn
G r o er, P.J.
?jonald Dorer, Esquire
Chairman of the Arbitration Panel
214 Senate Avenue, Ste. 503 J
Camp Hill, PA 17011-2336
Court Administrator
1.7
f ?i - 141
CINEMAGIC, INC. : IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PA
V.
: CIVIL ACTION- LAW
SCOTT W.HARVEY and :NO. 99-4895 CIVIL TERM
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION
PRAECIPE
AND NOW, this 6'h day of December 2005 Plaintiff's and Plaintiffs Counsel
respectfully requests that this matter be withdrawn from Arbitration at this time.
Defendants and Defendant's Counsel do not object to this request.
Robert W. W770li
P.O. Box 234
Harrisburg PA 717-783-3770 In ?:fiaL?:: ?; +, •er.;:.f - :. ,.. : a :ire; 1t:a:A
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CINEMAGIC, INC.
V.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
NO. 99-4895 CIVIL
SCOTT W. HARVEY and
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION
ORDER OF COURT
AND NOW, December 7, 2005, the Court having been informed that
the above matter is being withdrawn from arbitration at this time, the Board of
Arbitrators previously appointed in the above matter is vacated
Donald Dorer, Esquire
Chairman of the Arbitration Panel
214 Senate Avenue
Suite 503
Camp Hill, PA 17011
Robert W. Waeger, Esc
PO Box 234
Harrisburg, PA 17108
Lisa M. Coyne, Esquire
1901 Market Street
Camp Hill, PA 17013
juire
v
Megan Malone, Esquire
401 East Louther Street, Ste. 101
Carlisle, PA 17013
(161 r 41n110.
By the Court,
Ge r AEo er, P.
c;- r: r'r
?7
CINEMAGIC, INC.
Plaintiff
vs.
SCOTT W. HARVEY AND
CHARLES HARVEY, T/DB/A
COINS UNLIMITED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. W - y k 5F5--
CIVIL ACTION - LAW
NOTICE
444
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take certain action within twenty (20) days after this
Complaint and Notice are served by entering a written appearance personally or by an
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(s). 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.
Pa. Lawyer Referral Service
P.O. Box 1086
Harrisburg, PA 17108
PA. Residents Telephone
1-800-692-7375
Out-of-State Residents
1-717-238-6715
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
Robert W. Waeger, E ire
Attorney for Plaint'
C+1
CINEMAGIC, INC.
Plaintiff
Vs.
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY
SCOTT HARVEY AND CHARLES : CIVIL ACTION - LAW
DOCKET NO: 9q _ yF??,5
HARVEY T/D/B/A COINS UNLIMITED
JURY TRIAL DEMANDED
Defendant
AND NOW, this day of 1999, comes Cinemagic, Inc. a Pennsylvania
corporation, by and through its tt Vr1i
, , Robert W. Waeger, Esquire, and brings this action
against Defendant in the above-styled case, and in support thereof alleges as follows:
COUNTI
Breach of Contract
1. Cinemagic, Inc. is a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania, having its principal place of business at 3607 Rosemont Avenue,
Suite 402, Cumberland County, Camp Hill, Pennsylvania 17011, and is engaged in the business
of selling and servicing computers, peripherals, software and related equipment, as well as
programming and designing programs.
2. Defendants are Scott Harvey and Charles Harvey, co-owners of a business T/D/B/A
"Coins Unlimited" hereinafter "Coins". Their business address is 230 South Second Street,
Wormleysburg, PA. All of the above-referenced entities are hereinafter individually and/or
collectively referred to as "Defendant(s)".
2
14. As a result of the aforesaid breach of agreement between the parties, Plaintiff is now
justly due and owing from the Defendant prices that the Defendant or his agents or employees
agreed to pay.
15. The Plaintiff further avers that the Defendant or her agents or employees, although
frequently requested, refuses and still does refuse to pay said sum or any part thereof, in direct
breach of the agreement between the Plaintiff and Defendant.
16. As a result of the aforesaid breach of agreement between the parties, Plaintiff is now
justly due and owing from the Defendant, the sum of $33,749.38 with legal interest thereon from
the 1st day of January 1997.
WHEREFORE, Plaintiff Cinemagic, Inc. respectfully requests that this Honorable Court enter
judgment in its favor in an artount in excess of $33,749.38 against the above-named Defendant,
together with all allowable interest, costs and attorneys fees.
COUNT II
BREACH Of Contract
DestluCtion and Dis osal of Cinema is Pro ert17. The averments of paragraphs 1 through 16 above are incorporated by reference as if
fully set forth herein.
18. On or about Octo')er 1997, "Coins" agreed to accept storage and responsibility for
Cinemagic merchandise at its warehouse in Wormleysburg, Pennsylvania, for the mutual benefit
of both parties. "Coins" off'red to store the merchandise belonging to Cinemagic, but with the
5
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understanding that all items were returnable to Cinemagic in whole or in part at any time, as with
any bailment.
19. On or about November 1997, "Coins" moved Cinemagic's merchandise into two
basement rooms under the Edministrative offices of "Coins". This same month, additional
merchandise purchased by Cinemagic was delivered to "Coins" for storage and it was placed in
one of the "Coins" basemen rooms.
20. On or about December 1998, Cinemagic delivered additional merchandise to "Coins"
for storage in the form of 10 cases of CD-I discs.
21. On or about December 1998, Cinemagic employees arrived at "Coins" facilities to
retrieve some of the merchandise that was stored at "Coins" facilities. Upon arrival, Cinemagic
was informed by Chuck Harvey, a "Coins" employee that a water leak had destroyed all of
Cinemagic's merchandise. Chuck Harvey along with his mother-in-law and father-in-law had
advised that they disposed of ,he destroyed merchandise. In addition, Chuck Harvey's mother-in-
law stated that Scott Harvey should not have been so slow in repairing said water leak.
22. Cinemagic immediately asked for an accounting of all elements that were destroyed and
disposed of. Chuck Harvey claimed that he did not have an accounting of the disposed items and
that all items had been long since been removed from the premises.
23. On or about December 1998, Scott Harvey of "Coins" stated to Cinemagic that none
of the items in storage at "Coins" facilities were destroyed. Cinemagic requested an accounting
of those items. "Coins" dil not provide an accounting of those items other than to say they
included about 15 boxes ans were not destroyed or disposed of.
6
24. On or about March 1999, Cinemagic requested the return of all items in the possession
of "Coins". "Coins" did return the CD-I discs in the form of 10 cases that were delivered to
"Coins" warehouse on or about December 1998. "Coins" did not return any of the additional
merchandise itemized on Exl.ibit "G".
25. As a result of the aforesaid destruction of Cinemagic's property left in the care of
defendants, in breach of a coiitract to properly store and protect said items, Plaintiff is now justly
due and owing from the Defendants, the value of said items left with Defendants.
WHEREFORE, Plaintiff Cinemagic, Inc. respectfully requests this Honorable Court enter
judgment in its favor in an armunt in excess of $36,071.20 against the above-named Defendant,
together with all allowable imerest, costs and attorneys fees.
COUNT III
Breach Of Contract
Web Site Design and Implementation
26. The averments of paragraphs 1 through 25 above are incorporated by reference as if
fully set forth herein.
27. On or about September 1998, Cinemagic management met with "Coins" management
(including Scott Harvey) to di3cuss the creation of two electronic commerce web sites for
"Coins". Cinemagic presented a proposal to create a web site for "Coins" to sell its NASCAR
specialty items. Cinemagic also presented a proposal to create a corporate web site and electronic
commerce web site for "Coins" as well.
28. This proposal entailed the creation of a single site for $5,000.00 and the creation of
both sites for a total of $10j)(0.00. It also stated that each month's worth of web site hosting
7
provided by Cinemagic would cost $500.00 per site. The registering and hosting of the domain
names of COINSUNLTD.COM and HAULINAS.COM would cost $150.00 each for two years.
29. At that meeting of September 17, 1998 with Scott Harvey, "Coins" agreed to the
proposal and stated that they wanted production to start immediately. Mr. Scott Harvey paid for
the registration of names as a,, erred in paragraph 28 (Exhibit '11").
30. Cinemagic registered both internet sites and began the process of creating the sites.
31. Subsequently, Cinemagic met with "Coins" employees to discuss the handover of
specific images and pricing to be exhibited on the web site. On both occasions, Cinemagic was
told that "Coins" had not yet determined which items it specifically wanted to sell over the
internet, but that Cinemagic should proceed with temporary filler items.
32. Cinemagic spent considerable time and effort to build the graphics and program the
code for the sites. In addition; Cinemagic activated the sites on-line in order for "Coins"
personnel to view the site and provide their feedback. Between November 1, 1998 and February
1999, Cinemagic made numer,)us attempts to get feedback from "Coins" in regards to the sites
and their operations to no avail.
33. The Plaintiff avers that the charges were made at or about the time of the respective
dates set forth in the attached documentation and that the goods and services for which said
charges were made, were sold and delivered as charged, upon agreement and at the request of
said Defendant.
34. As a result of the a:oresaid breach of agreement between the parties, Plaintiff is now
justly due and owing from the Defendant, invoices that Defendant agreed to pay.
35. The Plaintiff further avers that the Defendant or his agents or employees, although
requested, refuses to pay said sum or any part thereof, in direct breach of the agreement between
Plaintiff and Defendant.
36. As a result of the aforesaid breach of agreement between the parties, Plaintiff is due
and owing from the Defendant, the sum of $10,000 plus 4 months @ $1,OOOimonth or $14,000
v,ith legal interest thereon from November 1, 1998 thru February 28, 1999.
WHEREFORE, Cinemagic, Inc. respectfully requests this Honorable Court enter judgment in
its favor in an amount in exce, s of $14,000 against the above named Defendant, together with all
allowable costs and attorney f-es.
COUNT IV
Breach Of Contract
Noii=Pament For Purchased Computer Svstem
37. The averments o£Iaragraphs I through 36 above are incorporated by reference as if
fully set forth herein.
38. On or about Octo`..er 1998, "Coins" agreed to purchase a new personal computer
system, monitor and input accessories from Cinemagic.
39. Cinemagic assembled a list of equipment and presented it to Scott Harvey, President
of "Coins" on or about October, 1998. (Exhibit "r').
40. On or about Octoi;er 1998, Scott Harvey visited Cinemagic's offices and spent
considerable time undergoing training to learn how to use the system. At the same time,
Cinemagic inquired about the anticipated payment for the personal computer and related items
discussed previously herein. : colt Harvey requested that the figure be added to this running tab
and that he would pay for it la-.er.
9
41. The ordered PC and its related components remained at Cinemagic. Cinemagic made
numerous attempts to contact Scott Harvey or anyone at "Coins" to pick-up the merchandise they
had purchased. Each time Cinemagic was told by Scott Harvey that he wanted to have it
delivered to his home but wanted to wait until he acquired a special desk for it.
42. On or about late February 1999, Scott Harvey of "Coins" arrived at Cinemagic offices
and requested to take possess on of the personal computer system. He picked up the items
identified in Exhibit "I".
43. The Plaintiff avers that the charges were made at or about the time of the respective
dates set forth in the attached documentation and that the goods and services for which said
charges were made, were sold and delivered to Cinemagic as charged, upon agreement and at the
request of said Defendant.
44. As a result of the aforesaid breach of agreement between the parties, Plaintiff is now
justly due and owing from the Defendant, invoices that Defendant agreed to pay.
45. The Plaintiff further avers that the Defendant or his agents or employees, although
requested, refuses to pay said sum or any part thereof, in direct breach of the agreement between
Plaintiff and Defendant.
46. As a result of th; aforesaid breach of agreement between the parties, Plaintiff is due
and owing from the Defendant, the sum of $2,200 with legal interest thereon from October 1,
1998.
WHEREFORE, Cinemagic, Inc. respectfully requests this Honorable Court enter judgment in
its favor in an amount in exce? s of $2,200 against the above named Defendant, together with all
allowable costs and attorney es.
10
COUNT V
ACTION IN QUANTUM I MRUIT
47. The averments of r aragraph 1 through 46 above are incorporated by reference as if
fully set forth.
48. In the alternative, even if no contract is found to have existed between the Plaintiff and
Defendant, which is denied by Plaintiff, Plaintiff alleges that it is entitled to recovery on the theory
of quantum meruit based upon the facts set forth below.
49. Computer equipment, software, supplies, programming, solutions to problems and
peripherals were furnished to Defendant by Plaintiff over the period of December 1996 through
March 1999.
50. The computer equip nent, software, supplies, programming, solutions to problems and
peripherals were delivered to, accepted and utilized by Defendant and a resulting benefit has
inured to Defendant, or said supplies were used in the production of the "Coin" Board products,
produced by Plaintiff for Defendant
51. Plaintiff, at all times r raterial hereto, reasonably expected payment from the Defendant in
the amount of $86,000 pursuant to the discussions and dealings between the parties.
52. No part of the said net principal sum has ever been paid by the Defendant to the Plaintiff,
notwithstanding repeated derr ands for same, and such monies are presently owing, unpaid and
due from the Defendant to the Plaintiff, to Plaintiff's great detriment and loss.
11
WHEREFORE, Plaintiff Cinemagic, Inc. respectfully requests that this Honorable Court enter
judgment in its favor in an am,)unt in excess of $86,000 against the above-named Defendant,
together with al allowable interest, costs and attorneys fees.
Respectfully submitted,
ROBERT W. WAEGER, ESQUIRE
Robert W. Waeger, ire
Attorney I.D. No: 3 6
204 State Street tl/
Harrisburg, PA 17101
(717)783-3770 extension 206
Attorney for Plaintiff
Cinemagic, Inc.
DATED:
12
Cinemag&
December 9, 1996
Scott Harvey
Coins Unlimited
Good Morning Scott:
3607 Rosemont :Avenue
Camp Hill, PA 17011
(717) 737-4683
FAX (717- 737-9275
Thank you for taking the time out of your busy schedule to speak with us last
week. As we discussed we are proposing a hybrid business plan that will allow
you to make use of our technical and artistic capabilities to further sales within
your business.
This proposal entails two major components. First, it will involve the
implementation of a large format plotter at our location. This plotter will be used to
produce boards, banners, or other materials that you need for your business. The
second components involves use of Cinemagic resources for designing and
outputting your materials.
Our ability to provide comprehensive solutions has also earned praise from
organizations throughout the country including the National Audubon Society,
Hearst Broadcasting, Diversified Communications Group, and Advance
Publications (Newhouse).
If you have any questions concerning this proposal, please call us at (717) 737-
4683. Thank you again.
Magically,
M. Louise Hanley
Executive Vice President
com • 11'61?ff!• http.//f?lVf6;
Cmab°I?COm
Calcomp Techjet Plotter
Calcomp Techjet 5336GT/PS Plotter ........................................... ............. 4,500.00
Ethertalk Interface ..........................................................................................400.00
.................................................................. Total ....... $4.900.00
Extra
We are recommending that these supplies you to handle large
jobs on short notice.
1 - Roll (150 ft) 24" 341b Poster Bond .........................................................100.00
7 - Roll (150 ft) 36" 341b Poster Bond ...........................
4- Color Ink Cartridges (2- Single Pack) .....................................................280.00
2 - Spray Fixer (Used to Reduce Color Smear and Fading) ......................... 40.00
.................................................................. Total .......... $549.00
Cinemagic Creative Services
Cinemagic Creative Design Services ..............................................................40.00 /hr.
Creative Services are available by appointment between 9am to 5 pm Monday
through Friday excluding holidays.
Cinemagic Strategic Technical Business Planning ..................... .
Cinemagic Technical Consulting ................................................................................... .75.00 /hr.
cmagic@cmagiccom lvR'%V: http:Hwww.cmaglc.com P,,,o ,
Below is a brief listing of organniizato s reces
that have turned to Cinemagic for our
expertise and/or abilities. The list is not at all comprehensive, yet provides the
broadest combination of organizational types and services.
B
II
uI.t1natio
n aWortune 500
Air Products and Ch
.
.
.
emical ...........
.
AMP, Inc ..................
.............................Gas K Chemical Prod ts
uc
...........................
Teledyne .............................
Electronics Manufacturing
York International .......... Manufacturing Conglomerate
......................
Becton-Dickinson .......... ............................
H1AC Manufacturing
......................
Voith Hydro ..................... ...........................
Biomedical Engineering
........
R. R. Donnelley 8 Sons
.. Turbine Manufacturing
.....................
Hershey Foods Corporation ............................
............... ............................Foods Manufacturing
111
edia/TeI
eUsion/Conuuun
icatious
Advance Publications
.
. .
.
......................
Barash Group
............. ......................
....
.Publishing
..............
James Bunting Advertising (Dupont,
T
Remin ton Publishing/Advertising
g )
Ad
he Pottsville Republican .....
vertising Agency
The Patriot News ....................
..... ...........................Daily Newspaper
.............................
Bell Atlantic
.............. ...........................Daily Newspaper
.......................
..... ..
Hearst Broadcasting
.......
....... .
............
Communications
........
1VPNIT (FOX)
.......... ..........................
Communications
...............................
R'TAE (ABC) .......
...... .........................
.York, PA
............................
Y
(CBS) ............. .......................... Pittsburgh, A
W
............................
OU (CBS) ..........................Florence, SC
.
.
....................................
IVPXI (IND) .......... .........................Scranton, PA
.
.
.
AVFMVFM ................ ..... ..............
Z (I1VD) ......................... Pittsburgh,
........................................... ......................... Allentown, pA
0rganiza11ou s
Cardinal Technologies ................. Oth ....... er ..............
Continental Medical Systems. ........................................Medicaler Peripherals Mfg.
Eastern Technology Council ..........................................Association
Sir Speedy Corporation
Turtle Beach Systems ...................................................Printing Franchisor
...........................
•••••••.•••••••.........Computer Peripherals Mfg.
Terms are availabel subject to prior pTerms
notice. Cinemagic is not responsible for oanyAtypog aphical cer o s. Any ion-site
consulting that requires overnight lodging or airfare are not included in any
published rates and will be billed at cost.
com
Design Serj7ice Terms
The services outlined in this proposal represent only the finished work provided in
terms of outputted materials. The creative abilities and the creative elements
designed using traditional or manual methods are the sole property of Cinemagic,
Inc. Cinemagic retains all rights to modif
the intellectual y, sell, or distribute without charge any of
the right to show property developed by its creative staff. Cinemagic also reserves
any and all such work as a sample of our capabilities to any
prospective or current client of Cinemagic at any time.
Ownership and Copyrights
It is understood that all materials provided to Cinemagic are free and clear of all
copyrights or that you have obtained written permission to use such materials in
accordance with the requested finished product. You agree to hold Cinemagic
h
copyright and any other Ownership of armless for any and all claims that may result in any and all disputes regarding
intellectual limited to I go design s, photographcs, graph cs, lik likenesses, an or' writ but
spoken teat.
n nor
.con
Cinemagic
MAGIC MEMO
To: Scott Harvey, Coins Unlimited
From: Louise Hanley
Date: February 4, 1997
Subject: Cost Estimate
Following is a brief calculation based on estimates for this usage of goods on the "first" St.
Patrick's Day job.
PAPER USED
We printed 19 Sheets (3 up) for a total of 57 Posters
Each of the 19 Sheets were 20" tall which used 380 inches of the Poster Roll
The poster roll contairs a total of 1200 inches of Linear Space.
380 divided by 1200 = 31.6% of the roll used so far.
The roll costs $300.00 times 31.6% = $94.90 In Paper Costs
INK USED
1 - Yellow Cartridge
.............................
1 - Cyan Cartridge . $30.00
................................
3/4 Magenta cartridge . $30.00
.........................
1/4 Black Cartridge . $20.00
................................
TOTAL .. . $10.00
................................................ $90.00
Paper Usage Costs $94.90
Ink Usage Costs $94.90
GRAND TOTAL ESTIMATE FOR GOODS $184.90
Fernwood Office Complex, 3607 Rosemont Ave., Ste 402, Camp Hill, PA
Voice: 717-737-4683 0 Fax: 717-737-9275
Web: www.cmagic.COm • E-Mail,, cmagicQomagicC
17011
Cinemag&
To: Scott Harvey, Coins Unlimited
From: Louise Hanley
Date: March 6, 1997
Subject: LARGE CAPACITY INK DELIVERY SYSTEM
TECHJET 5336 GT/PS
Following is the price for the large capacity ink delivery system that will pump ink to
the plotter head from 500 ml wells. These wells are refillable from supply bottles and
the system comes with a 500 ml supply bottle of each color.
DESCRIPTION IC
Large Capacity Ink Delivery System
includes four 500 ml bottles of ink
2,295.00
500 ml. refill bottle - black 130.00
500 ml, refill bottle - cyan 130.00
500 ml. refill bottle - yellow 130.00
500 ml. refill bottle - magenta 130.00
PROJECTED SAVINGS
We are currently using 25 ml disposable cartridges. By moving to the large capacity ink
delivery system, 500 ml of ink will now cost $130 versus $600 for 20 disposable 25 ml
cartridges.
If you back out the four 500 ml of bottles ink included with the -system" this reveals
the cost of the hardw= ink delivery system at $1775. With a $470 savings on 500 ml
and an estimated 700 ml usage per month your hardware outlay will be paid back in
approximately 3 months.
PORCH SING
I will place the order as soon as I have verbal approval from you. It will take
approximately 5 to 7 days to arrive. If you have a heavy printing load for us, I suggest
based on the savings, that it be shipped via air to begin saving money immediately.
The ink delivery system is relatively small. I have been absorbing the cost of UPS
ground on the supplies to this point.
Fernwood Corporate Center
3607 Rosemont Avenue Camp Hill, PA 17011
Voice: 717-737-4683 Fax: 717-737-9275 L)
COINS MEDIA PURCHASES
DATE
- 3/5/97! OTV Iran
_ 1'. Black Ink Jet Cartrid SHIPPING COST PRICE
_ +-----;.
PRICE EXT.
3/5/97_ es
8
_
Cyan Ink Jet Cartridges
- ----
- 3--0.-00
-3/5 /97! _ Ma enta Ink Jet Cartrid es
5 ?
-
9 3.21 ;
__ 30.00,
-
' 240_00
--..
0
9_x'. -
_-
1 Tec Lh'et Color Print Head
- 30. 00
--
'.
?- 15
-.-0_00
s/
1
_
1
;Cyan Bulk Ink 500ML Refill
--190_OOT _
_ 190_00.
6/20/97T
1'Magenta Ink SOOML Refill'
- ----?---30.00 _
130,00
_ 6/20/97
1'Yellow Ink 500ML ----Refill - 130.00'
-- +-- __----.-
?30.00
_ 6/20/97'-
j'glack Ink 500ML Re-----afil I -
130.00_) --- --
6/20/97
y:
_ 1
36"x100' Hi Gloss Photbas
130.00
130_00' ---
6/24/97! _
_-
_ ---
236"x100' Glossv 25.50 128.00_
--
------
128.00.
6/25/97
6/25 _
1
'Graphix Display Gloss36100
1 0 G 11.09
---L- 226_00,
37.041 179
00''
-?
452_00
179
1------
6/30/97; raphix Dis la Gloss36100 No
- _. .
.
Char es Listed
---T
79
? .00
----------
1 :Black Maxink 500ML R
fill =00 '
- X
--- 1,790.00;
6/30/97! _
__ e
---------_-_0ML
_
1
?Cyan
Maxink 50 Refill
130_00 _
130.00! --
_ 6/30/9X
_ 1
IMa
enta Maxink 500ML
-9_
130.00! __
130 001
6/30/9
7.
-___
--
--
-.-_-- -
1Yellow Maxink 500ML Refill ?-
--
-- 130.
00!
1-..._.--
130.00,
I ,
---- _ 15.52, 130.00; 130_nnl --
1 OF 1
JUIY 8, 1997
COINS MEDIA PURCHASES
7-DATE
ITEM
' Black Ink Jet Cart
ritl e
PRICE _
--
RICE EXT.
s
8 Cyan Ink Jet Cartrid -- 30 00 30.00
-
: 5 ?Magenta
Ink Jet
Cartndge- 30 00'
----1- _
- - 240.001
_5/2/97 _
-
1 Techjet Color Print
Head
30.001 __
150_DO'
6/20/97 _
__ 1 Cyan Bulk Ink 500ML Refi
F
190.001
--- ---- _ _
190.00
-----
_ 6/20/97_
- 1 Magenta Ink 500ML Refill - r
- 130.0OL
.__ - _.__?- ___
-
?'
130.OD
6/20/97 11 YYellow_
Ink 500MR 130.00'
- _
130.001 _
----
6/20/97
Black Ink SOOML Refill
130.00 --
_ 130.00_
-
6/20/97 136"x100' Hi Gloss Photb 130.00 __
130_00
24/9 T a
_-
236"x0G 128.00' 128.00 -----
6/25/97 11.091 99F nn' .?., ..-,.. ____-_
_6/30/97'__ 11
_6/30/97 1
6/30/97, _ 1*
6/30/97'
7/7/971- 1
_ 7/9/97
7/25/97 1 i'(
7/25/97 7
7/28/97
1?k
7/28/971
7/28/971 1'Y
_8/19/97 2
8/19/971 p
8/22/97 1 31G
8/22/971 1 G
9/5/9 1;7,
9/8971 117E
9/16/971 ?Tnn
y rz[/y7 1
9/22/97 1
9/22/97 1
3/26/971 1
3/26/97 1
1 OF 1
179.00 179
00'---
Listed 779.00! _
1,790.00----
T _-130.0 1 30.00__.-.._
_ _ 130.00 1_30.00
---
1 130.00,' _
1
30.00,
15,52
-T _
130.00,
-.-
--_1_
--
130.00'
13.03;
96.00 _
96.OOT
3.591 190.00 190
00,
15.37 94.001 _
94.00': --
15_371 94.00, 94.00'
--r- _94
.00;
94_00'
94.001 94.001
12.171
---- 94.00
-__ -
94.001
94.OOi 188
'.2_301 94.00 188.001
0.071 170.00, 2 210.001
5.395.99 0 .00' 170.00; -
1.43!.. 96.001 96
00
3.59; 190.001 .
190.001 -
3.49 0 130.001
96.001 96.00.
96.00 96.00'
1.81 96.00, 96,001
).511 op nnl
1
94
October 15, 1997
COINS MEDIA PURCHASES
DATE
- -
DTy
ITEM
-
3/5/ 97
- - _ SHIPPING COST
7 Bla
-ck Ink -- Jet --- Cartrid-
---
- -- PRICE
--
PRICE EXT
_ 3/5/97 _
ges
Cyan Ink Jet Cartridges -- -
30.00'
, .
30.00
3/5/97
---- 21
5'Magenta Ink Jet Cartridges 30.00: _
- --- -
240.00 - -
5(2/97 _ _ _--1 Techlet C01or Print Head __30 00 150.00
6/20/97 %yan Bulk Ink 500ML Refill - -3 59, _--__- 190 00 _ - 190.00 - - - -
6/20/97I
_; ----------- -------
Ma enta Ink 500ML Refill 130.00
- - _.----- --
730,-- - -
00
6/20/97 1 'Y_ellow Ink j&( ML Refill
_ -------- ---
-Y ___ 130.00
--
-- - --
--
136.001
6/20
. /97,
__
- ------_ _
1 Black Ink 500ML Refill
-
- 130_00_' ------
130.00
0
_6/20/97 ---
? 36
x100
Hi Gloss Photb
- -----
6/24/97-
as
.'
25 50
_ Y36 x100' Glossr?
- ----
- 128.00
128
00-
-------
6/2
5/97. _
i r Grap
hix DisPfaLGloss36 -1 09'
' _
P26 00:: -
_
_
452.00'
6/2
5/97
- - ---
6/30/97 1 O'Gra hix Dis la 37.04,
---- P -p_y Gloss36100 : No --'
- Char es Listed
9
1
Bl
..
1 179.00'
179 -_-----
179.00'
_
-
---
- _
--
I
ack Maxink SOOM
l f
e
---._ .0(), 1,790.00
6/30/
97
. _- - -_?
_
Cyan Maxink
500ML Refill
30
.00; --- __
306Oj
- --
6/30/97 _ _
_1TMagenta Maxink 500M y
--- 130.00' - --
1 - _--
01
6/30/9
_7;
_._. -
1 Yellow Maxink 500ML Ra(II 130.00 n n - I----
-
130 ,
7/25/97
7/25/97
7/28/97
-7/28/97
8/19/97:'
_ 8/1-9/97,!
8/22/97
8/22/97_
-9/5/97'
_ 9/8/9_7'
9/16/97
_9/22/97r
2/
9/26/97
9/26/97
9/26/97
10/8/97
10/6/971
10/21/97
10/31 g7
11/12/971
11/12/0
11/12/97
12/30/9
12/30/97'
12/3 0/ 97 _
1
1 OF 1
.1'750/755-Black _CartritlyeT- 15.5
l Tech'et Color Print Head
?-
.0
--- 1 3
1 ( Cyan Ink nk 250 250ML --- Refill fill
--- 3.5
.1
1TMagenta
1Iyan Ink 250ML
Refill - 15.3
_
1 ?Ma enta
1 Yellow
12.17
x_
1 Graph__ Disma 01 07
y Gloss36100
1'750/755 Black Cartri?e 15.39
21.43
1 i75n/7SS nn.,..__, .. 3.
1 750/755 C 11.6
an Cartrid a
1 C an Ink 250ML Refill 10.5
1 Me enta
7 Yellow I
1 Can Maxin Refill 11.6
1 !Yellow Maxink 500ML Refill I
41Graphix Display Gloss36100
T- - -
1175
0/755 Me 3 6f
53.4E
_
enta Cartridca_
ljcyan Ink 250MI aor,, !---
- X051
1 !Yellow
1 (Magenta 11
1 (Yellow
II ITT"et color Print Head 11
3
I irc01n,
a0. uu 96.0C
190.00:
---`
_190.OC
-
94.001 - -
94.00
--
94.00 -
94.00
94.001 9
4.00
-
94.00
- _
-
94 00
94.00
401
9
94.00 188.00'
94.00' 188.00!
170.00 22 10.00
170.00 0
00
96
001 .
. 96.00
190.00- 190 00,E
130.00 130 00,_
96.001 as nn!
96.001
8 04 0 96.00
1 94.00
94.00 94.00
94.00 94.00
130.00 130 nn
96.00--y ?96.0C
94.00' 94.00
94.00 94.00
94.0'_=4 94. Dv
94.00' 94.00
94.00 94.00
190.00, 190. nn
L)
January 28, 1998
2OF2
June 23, 1998
COINS MEDIA PURCHacFs
COINS MEDIA' PURCHASES
DATE_ OTy REM
1 iBlack_Ink_Jet Cartridges I -L SHIPPING COST PRICE_L PRICE EXT.
- - ---
3/5/97_ .Y___ 8 C_ I_nk Jet 11
30.00 30.00
9 Cartrid es _3.2 1
_- __? 5;M_agentaInkJetCartndges --1-- 30.00_ -- --- -
240.00
5/2/97-_ --
1 at Color Print Head i_= ._30_00. -----
6/20
_6/20/97 --n _3_59-------_-
1 Cyan Bulk Ink SOOML Refill 19000,_ 190.00_
_6/20/97; - 1 'MacZenta Ink SOOML Refill r -`- 1303-0'1_130.00'.
6/207 !Yellow Ink SOOML Refill-- 130.001 1 -'?--
6/20/9 F? - 30. 00
1' Black Ink 500 ML Refil- I ---;`-------i 130.001 130.00
6/20/971 -?- --------
1'36"x100' Hi Gloss Photb- as- 130.00 J-- -?--_? 130.00'
6/24/97 ?- 25.501 -i--------
-i_ 336x100' Gloss -??----- 128.00 128.00
11.
_6/25/971 1 ?GraQhix Displa Gloss3610 9, 452
226_00 .00
. --------
- 6/25/91 _ i D_Gra hix Displa Gloss36100 No Char 37.041 179.001 1
9.001
6/3 6/30/97,' 0 /9 ---y----- ---0 7 79 0. 0 0,
-- 1 !Black Maxink 500ML Refill c es Listed 179.OT? 1 0il
T--------
?- -- _
7! ?.y= _-nk 50 _ 130.00,' --
- 1 C an Maxink 500ML Refill 130.00!___ -
6/30/9 _?'Ma_genta Maxi ' 130
nk SOOML .00 130.001 -
6/30/97_?-1 yellow Maxink SOOML Refill ?- 130.00 0 00
----
13.'
7/7/97_ 11750/755 Black Cartridge 15.521 130 00' 13060! -
7/9/97I 1 ?Tec1h'et Color Print Head i 31 96.001 96.001
7/25/9 ------- 3.59! -----x-__----19 -
+ 7 yen Ink 250ML Refill -1 0 001 19000 --
7/25/97._1-agenta 15.371 94.00' .
94.OOT---- ---
7/28/971 1 an Ink 250ML Refill I 15.37 94.00-1
.. 94.00'' --
7/26/97,' 11Ma?enta- 94.001 94 001 ----
7/28/97,' allow - 94.001 .'001 -
94.00;
8/19 g 2iCyanink256MLRefill 12171 gq,00f 94.001 --
low 94.00i 188.00' -----
8/22/971 13iGra hix is la GlosS36100 22'301 94.00 188.00
.
8/22/97; 1'Graphix Dis 50 07
la Gloss36100 170.001 2,210.001
9/5/97 1 1750/755 Black Cartrid e 1 15.39 170.00 170.001
_ 9/8 97- 1 TlechLet Color Print Head 21431 96.00 96.001
9/16/971 1 IMa enta Maxink SOOML 3'59 190.00 190.00
--?_/22/97
1,750/755 Ma -- 349 130.00
9/22/971 genta Cartrid a 130.00,
---?.-__ 1 1750/755 Yellow Cartrid a 96.00 96.00
9/22/97 1'750/755 Black Cartridge 96.001 96.00--
8/22/9?I _7;750/755 CYan Cartndna I 11 81 96 00 96 001
9/26/971 1C an Ink 250ML Refill 10'51 96.00 96.00
9/26/97 agenta 94.00. 94.001
9/26/971 1 Yellow 94.001 94.00 -
10/8/97 1 C an Maxink 500ML Refill 11'81 94.00 94.001
10/8/97 1'Yellow Maxink 500ML Refill 130.00 130.00
10/21/971 14 3.89 130.00
-? iGraphix Display Glss36100
10/31/97 11750/755 Me enta Cartridge 53.46 130.00
170.00 2,380.00
11/12/97 1 an Ink250ML Refill 1051 96.00
11/12/97 96.00
1.Ma enta 94.00 94.00
1 1/12/9 7[ 1 Yellow 94.00 -
12/30/97 11 Magenta 11.81 94.001
94.00
12/30/971?yW-- 94.00 94.00
_12/30/971 11 69 94_00
1 ?Tech'et Color Print Head I 94.00 94.001
1/15/981 1 750/755 Me enta Cartrid a 3 59 190.001
190.00 --
1/15/981 2'C an Maxink 500ML Refill t 1121 96.00 96.00*?-
1/15/98_ 1 Magenta Maxink 500ML 130.00
1/20/98; 1i 4 260.00
C an Ink 250ML Refill '19 130.00 130.00
1/20/98J 1 Ma enta 94.00
1/20/98 1 Yellow 94.001
94.00 94.00
1 /21 /98 1 1 1Gra hix Dis la Gloss36100 17.86 94.00
1/21/98 94.00
----?? 1 _Gra hix Dis Is Gloss24100 153.00 1,683.00
1/22/981 L750/755 C an Cartrid a 44'48 11000 ?_
1/22/981 110.00
1 IBlack Maxink 500ML Refill 16'74 96.00 192 00
1/28/98 11750 55 C an Cartridge 1NoChar es Listed 130.00 -
1/28/98, 130.001
11750/755 Ma enta Cartritl a 96.00 96 00
1 OF 2 96.00 96. Doi
October 11, 1998
1/28/98' 2750/755 Yellow Cartrid
2/10/98 ' _ 1 Cyan Ink 250ML Refill
2/10/98 _ -_2.Magenta
-_2/10/98 _
--1- t Color Print Head
3/6 _
---1 cyan Maxink 500ML Refill
-3/6/98, _ 2 Magenta Maxink 5t50-ML
__ 3/6/98'
^ Yellow Maxink 500ML Ref
__3/9/98 Cyan Ink250ML Re fill
_--3/9/98 _ 1_Me enta
3/998 1 Yellow
3/16/98 _12 Graphix Display Gloss361
4/1/98 - 1_ Clan Ink 250ML Refill
--/98;_ -
1 Yellow
4/30/98
- - _
-13 Graphix Display Gloss3610
5/1/98,_ - 1Cyan Bulk Ink250ML Refill
-5/1/981
T _ I magenta Bulk 250ML Refill
_5/1/98
.?._ 1 :Yellow Bulk
250ML Refill
5/1%98' _
1 Magenta Bulk 250ML Refill
_ 5/4/98_ _ Cyan Ink 250ML Refill
5/4/981 11Ma enta Bulk 250ML Refill
9_--
5/5/98!
- _ -
?TCyen Maxink 500ML Refill
5/5/981 1 Yellow Maxink 500ML Refill
5/15/98' 1'Yellow
_5/22/98' 1Yellow
5/22/981 1'Mapenta
5/2.- _ J-- 1 1Cyan Ink 250ML Refill
_ 5/2 / Uyan Ink 250ML Refill
-5/27/98i_ 2!Ma?enta
5/27/98! 2; Yellow
6/5/98 _
1_Techjet Color Print Head
6/15/98; 16Graphix Displa`s35100
6/26/981 4'C an Desi n'et 700 Ink Cart
6/26/98 4 Magenta Desi n'et 700
6/26/98i Yellow Desi n'e1 700
6/26/981 3'Ink Cartrid es
7/14/98 1 (Tech at Color Print Head
8/6/98! 1'Black Maxink 500ML Refill
8/6/98 1 C an Maxink 500ML Refill
8/14/98! 1
51 Black HPCartna as
6/14/98 Cyan HP Cartrid es
8/14/98 B Magenta HP Cartridges
8/14/9
B _8'Yell, I IF I art,,a as
? 5DiIIMa entaCartrid as
8/21/881 41Dril1 Black Cartrid as
8/211981 4'Drill Yellow Cartrid as
8/2? /881 4 Drill C an Cartrid as
8/26/98- 1
8/26/9 81 p; Drill Magenta Cartrid e-
2 'Drill Black C
i
artr
d es
8/26/981 2iDrillYellowCartrid as
6/2.61981 21 r)611 G,-., r_.._:-.
COINS MEDIA PURCHASES
-ga J 20.27' 96.00 19706'0
_94.00T_ 9----?-__ 12 43 '-_-_._94.00; 183 79190.009130.00; 313000' 26-4.B9130.OOT 13.---!---_I 94.00, 94.00.:---
_ ?----
94.00: 94_00-!-2-4 .31 94_0 0i 94.00---
44,61: '.
00 -------
T 143.001,716 00,
1 1 .741 --'---- .-
--------- 94.00'i 94.00''.. -
--?_ 12.19, 94.001 --
0 'No Charoes Liste- -T"-94'00?-
-y 143.00 1,859.00
- ?2.00 j _72.00 -
72.00: 72,00: ----
12.43 72.00' 72
. .00'----
1 11.741 72.00 ---'-
?_72.00
30.86 94.011 94.001
1 33.66' --
72.00 720 7---
1 130.00 130.00
3.98 130.00! 130.0-
' 30.861 94.00
94.00'
28.62 94.001 94.001
28.621 94.00'
28.62 94.0011 84.00; 94.001^
1 --> 94 00? 188 00I
94 00! -
188.00
25.081 94.00; 168.001
3.411 190.001 190.001
59.761 143.00 212
35.001 140.00
1 1 35.00 140.00 -
35.00 140.00
5.16 30.00 90.001
3.76 190.00 190.00
130.00 11 01
4.991 130.00 130.00
30.00 150.00
30.00 240.00
30.00 240.00
30.00 240.00
30.00 150.001
? 30.00 120.00
30.001 120.00
15.95 30.00 120.00_
30.00 60.00
30.00 6 1.00
30.00 60.00
13.501 30 001 60.001
2OF2
October 11, 1998
DATE QTY I ITEM
7/7/g7T- '--
_ i____ 1750/755 Black car
---17 1 1 'Cyan Ink 250ML ReRe
7/25/97 Megenta
- 7/28/97, 1 Cyan Ink 250ML Ref
7/28/97 j
Magenta
7/28/971 _
1 (Yellow
8/19/97 _ 2?CyanInk250MLRefi
8/1 9/971 2', Yellow
9/5/971 1750/755 Black Carti
_ 9/28/971 1 IC en Ink 250ML Refil
9/26/97 1 Magenta
9/26/97 1 !Yellow
9/22/97 750/7 5 50Magenta C,
9/22/97 1 750/71 750/75_5 Yellow Cart
9/22/97 1 750/755 Black Cart ri
1
1
9/22/9771 1 ,
750/755 C an Cartri,
11/12 7 9 1 Cyan Ink 250ML R
fill
11/12/971 e
1 Magenta
_11/12/97 1 Yellow
10/31/971 11750/755 Magenta Ca
_ 12/30/971 1 J Magenta
12/30/971 1 Yellow
1 /20/9- 8_, 1 JCyan Ink 250ML Refill
1/20/98 11Ma Magenta
_ 1/20/98 1lYellow
1/15/981 11750/755 Me ants par
1/28/981 11750/755 Cyyn Cyrtridc
1/28/98 11750/755 Ma enta Can
1/28/981 2'750/755 Yellow Cartri
1/22/98 (
21750/755 Cyan Cartndg
2/10/98. 1 an Ink 250ML Refill
2/10/98 2 Me ants
3/9/98 1 C an Ink 250ML Refill
3/9/98 1 Magenta
3/9/98 1 Yellow
4/1/98 1 Cyan Ink 250MI Refill
4/1/98 1 Yellow
5/15/98 1 Yellow
5/4/98 1 Can Ink 250ML Refill
5/27/98 2.C an Ink 250ML Refill
5/27/98 2 agents
5/27/98 2 Yellow
5/22/98 1 Yellow
5/22/98 1Magenta
5/22/98 1 C an Ink 250an Ink 250-- ML Refill -
10/16/98 4.C an lnk250ML Refill
10/16/98 6 Magenta
10/16/981 6'Yallow --
3/5/971 1 Black Ink Jet Cartrid as
3/5/97 8 C an Ink Jet Cartridges
3/5/97
5/2/971 S IMa enta Ink Jet Cartridges
'
1 Tech
et Color Print Head
6/20/97 1 1C an Bulk Ink 500ML Refill
6/20/97 1 1Ma ante Ink 500ML Refill
6/20/97 1 Yellow Ink 500ML Refill
6/20/97' 1
7 Black Ink 500ML Refill
_ 6/24/9
2 136"x100 Gloss
?----
6/20/97 1136"x100' Hi Gloss Photbas
1 OF 3
COINS MEDIA PURCHASES
SHIPPING COST PRICE PRICE FJCT.
_i 13 03, 96.00, 98.00;
15.37 -T-------
?--- 94.00; _-
+----_ 94.00;
15.37; 94.001 94 001----
; 94.00 94.001-_--
94.00i 94.00'
12.17 94.001
94.00
94.001 188.00..
22.301 94.001 18 8.00
21.43 96.001 96.001
-7-----,L-94 001 94.00
94.001 94.00
11.811 94.00' 94.00
?e 1 96_001 ---
96.00
96.00 69 001
11.81 96.001 96.00,
10.511 96.001 96.001
94.00 94.001
I 94.001 94.00
11.81' 94.00, 94.001
el 1051 96001
96. 00
94.00 9400
11.691 94.001 94.00
94.00 94.00
94.00 94.00
17.86 94.001 94.00
11.12 96.00' 96.00
96.001 96.00
96.OOj 96.00
20.27 96.00 192.00
16.74 96.001 192.00
94.00 94.00
12.43 94.00 188.00
1 94.00 94.00
94.00 94.001
12.43 94.00 94.00
11.74 94.00 94.00
12.19 94.00 94.00
30.86 94.00 94.00
30.86 94.00 94.00
94.00 188.00
94.00 188.00
25.08 94.00 188.001
28.62 94.00 94.00
28.62 94.00 94.00
28.62 94.00 94.00
87.00 346.001
o Charges Listed 87.00 522 00,
87 001 522.00
0.00
30.001 30.00
3.21 30.00 240.001
30.00 150, 00?
3.591 190.00 190.00
130.001 130.00
130.00 130.00
130.00 130.00
130.00 130.00
11.09 226.00 452.00
25.501 128.00. 128.00
1/15/99 , 12:24 PM
COINS Ill PURCHASES
. 11 _6/30/971 1 1Black Maxink SOOML Refill ''-^---
6/397r---I-- - 130.00 130.00
--- 1,Cyan Maxink 500ML Refill
_ 6/30/97 1 iMagenta -Maxink 500ML 130.00 130.00
--?----- _---------
__6/30/971 T Yellow Maxink SOOML Refill T---X30.00 130.00
7(9/91 1 Techet Color Print Head 15'52 130.00 130.00
?---?---- 3.59
9/76/97 1'M_agentaMaxink5o0Ml- -------790'00 190.00
9/8/97 1 Tech h'at Color Print Head 3.49' 13 130.00
_797 1
x----. -
--- 3.591 190.00 _ 190
-. _ .00
Cyan Maxink SOOML Refill 10/8/97 ?--_-- _131_30.00
1 iYellow Maxink SOOML Refill
1_2/30/97 1 ITechjet_Color Print Head 3'89 130.0
_ 130.00
1/15/98 _ ---- 3.59 190.00 _
Cyan Maxink 500ML Refill 190.00
_7/15/98 --1 _ 2UMa ' enta Maxink SOOML 130400 260.0--
--c-------- 4.19 130.00 _ -
_ 1 /22/981 1 'Black Maxink 500ML Refill 130.00
2/10/9g?- _ - ----- No Char as Listed Te 130.00 130.00 _
chlet C olor Print Head J?
-_ 3/6/9-1'CY- anMaxwnk_50oMLRefill 9'79 790'001 190.00
3/6/9 2--
,8- 2tMayenta Maxink _500ML 130 00 130.00
3/6/981 1_Yellow Maxink 500ML Refill 130.00 260.00
5/5/98 1 L'Cyn Maxi an Maxink SOOML Refill q'B91 130.00 _130.00
5/5/98 130.001
1 (Yellow Maxink 500ML Refill 130.00
_6/5/98 1 rTechjet Color Print Head 398 130.0-130.00
6/26/98 4_C a_n_Desi n'et 70o Ink Cart 341 190.00 190.00
Y_ -?-?
_6/26/981 41Menta Desi njet 700 35.001 140.00
a?
_ 6/26/984 ellowDesi 35
140.00
n et 700 . 00
6/26/9nk - 35.00 140.00
-- 3 I Cartri dges _
-_7/1 4_/98 1 1T_e_ch et Color Print Head 5.161 30.001 _ 90.00
8/6/98-T --------- 3.76 190.o0t--
-.--1 Black Maxink 1 90 00
MOML Refill
8/6/99-7Cyan Maxink SOOML Refill -- 130' _ 130.00
10/16/98 1 IMagenta Maxink 500ML 4'991 130.OOL-130.00
-----T- - - - 3.98 1304001 13_0.00
6/25/97---- rt--f - 0_._00
_ 1+Graphix Display Gloss3f63 _
6/25/9_7 __ _ 37.04 17_9,00 179.00
} 1 0I -ra? h ix Di splay Gloss36100 No Char as Listed _ --
/22/91 8't---
1 1 3 TG-
rahix Dis layGloss36100 17--L 790.00
p ix -? -
8/22/97 ijGraphixDisP__ 50.07 170.00 2
la Gloss3610o ,210 .00
10/21/97 14 1 -- G _Y__- 15.39 170.00 170.00
raphix Display Gloss36100 53.461 - ?-
1/21/981 11'Gra hix Dis la Gloss36100
1 _Gra 170.00 2,380.0
1/21/98 ?- p -P--- T-153.00T1,683.001
-r- phix DisplGloss24100 44.48-110.00 T
3/1 6/98 1 2'.Graphix Dis la
4/30/981 Gloss36100 10.00
_ _-- 44.611 1434001 .00-
1 3, _ raphix Display Gloss36_1 ?N00 No Charges Lsted 193.00 1 716
6/15/98- 161Graphix Display Gloss36100 859_00
10/2/98^ _.--- 59.761 14300 1
_? 1 2 Graphix Display Gloss36100 2 _ 286.00
?- - --{-
__ - - - 143 00 1,716.00
5/1/98--- -.-1 Cyan Bulk Ink 250ML Refill ?- ---
5/1 /9_ 1 iMagenta Bulk 250ML Refill 27 00 72.001
_
5/1/981. 1 ''Yellow Bulk 250ML Refill T 00 7_2.OOr-
5/1/98-1 i rMa enta Bulk 250ML Refill -j 12.43 72400 725 /4/9 8 j2.00
t-- 1_-9 72.00
__L 1 !Magenta Bulk 72.00L
l _
10/1 --- 41Cyan Bulk Ink 250ML Refill 33.661
- -L Refill I 66.500 _266 00
10/ 13/98
--
-T
,._ 6' 66.5011 399.0
Yellow Bulk 250ML 0ML Refill
10/13/98 _ 6 .Magenta Bulk Refill _ -? --66_50 - _3_99.00_
8/14/98 5 Black HP Cartridges = -- ---? 0.00
-8/14/98 8 CYanHP -Cartrid----- 30_001 - --150.00
f ges_ - 8/1 4/98J 8 Magenta HP Cartnd ? ----30'Ot _240.00
- t- -
_ 8/1 4/98L es
8 Yellow HP Cartridges 30 00, - 240 001
I
304001 240.001
--?- ---- __ - -.
_ _8/21 98 5 Drill_Magenta Cartridges _ 0.00
150 00,
- 8/21 /98 4 Drill Black Cartridges. 3 _ ---
8/21 /9gl 4 Drill Yellow Cartridges _ -----?-- 30_00 120 Ol--
8/21 /981-- 4 Drill Cyan Cartridges -30.0_01 120 oo?-
8/26/98, 2 Drill Ma enta Cartridges 9 -30.00' 12000
2 OF 3 30.00 60.001
/\ 1/15/99 , 12:24 PM
COINS MENA PURCHASES
3OF3
1/15/99 , 12:24 PM
INVOICE
3607 Rosemont Ave, Ste 402 (717) 737-4683
Camp HUI, PA 17011 PAX: (717) 737-9275
INVOICE NO:
INVOICE DATE:
CINEMAGIC
MEDIA TECHNOLOGY AND SERVICES
BILL TO: SHIP TO:
Coins Unlimited Same
230 South 2nd St
Wormleysburg, PA 17043
4173
1/29/99
ORDER DATE 'SNIP DATE TERMS R.O. NUM9ER (
Net 10 CONTACT PERSON
Harvey
QUANTITY CLASS. T DESCRIPTION UNIT PRICE AMOUNT
12.00 CSA Service Summary 1/25/99 (Rod King) 40.00 480.00
2.42 CSA Service Summary 1/25/99 (Rod King) 40.00 96.80
1.50 CSA Service summary 1/25/99 (harry Luther) 40.00 60.00
? E
C
All Past Due Invoices are subject to a 1.5% Monthly Late Payment Penalty
COMMENTS
SUBTOTAL: 636.80
SALES TAX:
TOTAL: $636.80
. ., ,
INVOICE
3607 Rosemont Ave, Ste 402
Camp }lilt. PA 17011
II
(717) 737.4683
PAX: (717) 737.9275
;ZG NEMA
GIC
IA TECHNOLOGY AND SER
VICES
SILL TO:
Coins Unlimited
230 South 2nd St
Wormleysburg, PA
SHIP TO:
Same
17043
ORDER DATE
SMIA DATE TERMS
I
QUANTITY
11.25
50
CLASS.
CSA
CSA
INVOICE NO:
INVOICE DATE:
NUMBER
CONTACT PERSON
+1arveu
aervlce summary 2/8/gq (Rod King)
Service Summary 2/10/99 (Rod King)
UNIT PRICE
04 0
04 0
4191
2/10/99
AMOUNT
450.0
20.o
COMMENTS All Past Due Invoices are subject to a 1.5% Monthly Late Payment Penalty
SUBTOTAL:
SALES TAX:
TOTAL:
470.00
$470.00
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3607 Rosemont Ave. Ste 402
Camp Hlll. PA 17011 (717) 737.4683
PAX: (717) 737-9275
INVOICE NO: 4034
9/17/98
C INEMAGIC INVOICE DATE:
MEplq -TECH NOLOGy qND SERVICES
BILL TO:
Coins Unlimited SHIP TO:
230 South 2nd St Same
Wormleysburg. PA 17043
ORDER DATE SHIP DATE
TERMS
8/30/98 Net 10 IR.o. MUnBER ICONTACTPERSON QUANTITY CLASS. T DESCR Harvey
IPTION
INCT Internet Registration HAULINAS.COM UNIT PRICE AMOUNT
INET Internet Registration COINSUNLTD.
- 150.00 150.0
COM
_150.00I 150.0
COMMENTS All Past Due Invoices are subject to a 1.5% Monthly Late Payment Penalty
DOMAIN REGISTRATIONS ARE GOOD FOR
TWO YEARS
SUBTOTAL:
SALES TAX:
TOTAL:
300.00
$300.00
o?
f l f ,
Cinemag& P17001 Box 992
Camp Hill, PA -0992
(717) 737-4683
Scott Harvey
Coins Unlimited
PC System
Compaq Presario 2256 ....30OMHZ AMD K-6 MMX, 4.Ogig Hard Drive
56k Modem
Serial Number: 1X86BXS2VO7K
17" Monitor ....1280X1024, 75MHZ
Serial Number: GR81630399
Speakers with Sub Woofer System
Indy Car Software
NASCAR Software
NASCAR Steering Wheel and Pedals
Total Price: $2,200.0
?i 1
L . l ..
I,
CINEMAGIC, INC. hereby
VERIFICATION
. , , .
I°
AS of
the facts set forth in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904, relating to unsworn falsification to authorities.
f
Dated: 7eG LI/
/
13
M
N%.
to `
a
Johnson, Wefdnertewart & Weidner
By, C. Roy
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043 0109
(717) 761-4540
CINEMAGIC, INC.,
Plaintiff
V.
SCOTT W. HARVEY and CHARLES HARVEY
t/d/b/a COINS UNLIMITED,
Defendants
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO 99-4895 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE TO WITHDRAW APPEARANCE
1 withdraw the appearance of C. ROY WEIDNER, JR
AND NOW, this 7 /'day of April, 2003,
I.D. No. 19530 on behalf of Defendants in the above captioned suit.
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
C. R eidner, Jr.
PRAECIPE FOR ENTRY OF APPEARANCE
day of April, 2003, enter the appearance of DAVID J. LANZA, I.D.
AND NOW, this
55782 on behalf of Defendants in the above captioned suit.
JOHNSON, DUFFIE, STEWART & WEIDNE
By:
David J. Lanza
:212621
10015-9
sere AND NOW this v7 CERT,F?CATEOFS.E
e a copy of the foregoi day of Apri/ RVICE
United States mail, first cla oraecipe Upon the gg2, the enders
')stage prepaid at teother ne
moy a ies of recd d Sys hereby certify th
Rob 204 t eger, ?snnsylvania a dres ed S fto be dpos, edis date
Harrisburg Pq tr??D quire /lops. n the
ST?wA
?pHNSON DUFF/iE?
ey. ? ? ,,- Rr& wFi
DNER
liehel% HagY
r.
?:.:: ? n
a;J -
+,r _
t!i
r??
` -;
-?-
a ';;rn
:.n ???
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-04895 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CINEMAGIC INC
VS.
HARVEY SCOTT W ET AL
CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon HARVEY SCOTT the
defendant, at 13:00 HOURS, on the 18th day of August
1999 at 1 SOUDER COURT
MECHANICSBURG, PA 17055 CUMBERLAND
County, Pennsylvania, by handing to CHARLES HARVEY
a true and attested copy of the COMPLAINT
together with NOTICE
and at the same time directing His attention to the contents thereof
Sheriff's Costs: So answers:
Docketing 18.00
Service 6.20
Affidavit .00
Surcharge 8.00 Z omas ine, 5 eri -
ROBE08/1RT W. WAEGER
9/1999
by
p eri
Sworn and subscribed to before me
this /9 fE5 day of
199el A.D./ y
rocnonorary
Jbhnson, Duffle, Stewart & Weidner
By: C. Roy Weidner, Jr.
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
CINEMAGIC, INC.,
V.
Plaintiff
SCOTT W. HARVEY and CHARLES HARVEY
t/d/b/a COINS UNLIMITED,
Defendants
APPEARANCE
NO. 99-4895 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
AND NOW, this y141 ay of September, 1999, enter the appearance of C. ROY WEIDNER, JR., I.D.
19530 on behalf of Defendants in the above captioned suit.
JOHNSON, DUFFIE, STEWART & WEIDNER
By'
C. Ro eidner Jr.
:126538
10015-9
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CERT/F/CA TE OF SERVICE
AND NOW, this J day of September, 1999, the undersigned does hereby certify that she did this
date serve a copy of the foregoing appearance upon the other parties of record by causing same to be
deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as
follows:
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
BY.???» F??n
Q chelle Hagy
jTI
Johnson, Duffle, Stewart & Weidner
By: C. Roy Weidner, Jr.
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
CINEMAGIC, INC.,
V.
Plaintiff
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
SCOTT W. HARVEY and CHARLES HARVEY, CIVIL ACTION -LAW
t/d/b/a COINS UNLIMITED, JURY TRIAL DEMANDED
Defendants
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
AND NOW, this I "LL day of October, 1999, come Defendants, through their undersigned attorneys
and answer Plaintiffs Complaint as follows:
COUNTI
Breach of Contract
1. Admitted in part. Denied in part. The corporate identity and principal place of business of
Plaintiff is admitted. The remainder of this averment is denied in that after reasonable investigation,
Defendants are without knowledge or information sufficient to form a belief as to the truth thereof.
2. Denied. On the contrary, Coins Unlimited is a sole proprietorship of Scott Harvey, with its
principal place of business located at 1 Souder Court, Suite A, Mechanicsburg, Pennsylvania.
3. - 4. Denied. On the contrary, Defendants incorporate by reference herein pursuant to Pa.R.C.P No.
1019(g) Paragraphs 1 through 11 of Defendants' Complaint against Plaintiff to Number 99-1718 Civil in the
Court of Common Pleas of Cumberland County, Pennsylvania, a copy of which is attached hereto as Exhibit
"A"
1
5. Denied. On the contrary, on or about December 9, 1996, Defendants issued a check to Plaintiff
as part of the business relationship described in Paragraphs 1 through 11 of Exhibit "A" hereto, which are
incorporated by reference herein pursuant to Pa.R.C.P. No. 1019(g).
6. Denied. After a reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of said averment.
7. - 10. These averments are specifically denied. On the contrary, at all times through the duration of
the business relationship referred to above, Defendants insisted on prompt and timely billing statements for
any supplies and other items for which payment was requested by Plaintiff, and, to the extent that such
statements were provided, Defendants promptly paid them. At no time did Defendants ask that Plaintiff "run a
tab" or delay billings so that the costs could be traded against an anticipated lease or for any other reason.
11. Denied. On the contrary, on or about February 26, 1999, Plaintiff and Defendants mutually
agreed to terminate any commercial lease.
12. Denied. It is specifically denied that Defendants never paid for services. On the contrary,
Defendants' Answer to Paragraphs 7 through 11 hereof is incorporated by reference herein.
13. Denied. On the contrary, Defendants' Answer to Paragraphs 7 through 11 hereof is
incorporated by reference herein.
14. Denied. Any breach of agreement on the part of Defendants is specifically denied. By way of
further denial, Paragraphs 1 through 13 hereof are incorporated by reference herein.
15. Denied in part. Admitted in part. It is specifically denied that Defendants have refused to pay
any amount to which Plaintiff is entitled. It is admitted that Defendants refuse to pay the amounts claimed in
Plaintiffs Complaint and various exhibits thereto for the reasons set forth in Paragraphs 1 through 14 hereof,
which are incorporated by reference herein.
2
16. Denied. It is specifically denied that Defendants breached any agreement with Plaintiff and owe
Plaintiff any amount of money. By way of further specific denial, Paragraphs 1 through 15 hereof are
incorporated by reference herein.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed.
COUNT II
Breach of Contract
Destruction and Di uosal of Cinemagic Prouem
17. Admitted in part. Denied in part. Paragraphs 1 through 16 hereof are incorporated by
reference herein.
18. Denied. On the contrary, at some time believed to be in or about October of 1997, Defendants
gratuitously agreed to allow Plaintiff to store certain personal property for Plaintiffs sole benefit at Defendants'
business property.
19. - 20. Denied. These averments are specifically denied. On the contrary, it is believed that on two
occasions, the specific dates of which are unknown to Defendants, Plaintiffs employees placed personal
property believed to belong to Plaintiff and believed to consist of Christmas ornaments, paper, envelopes,
wreaths and disk covers in Plaintiffs basement. The only time that any of Plaintiffs property was moved by
Defendants was when it was moved upstairs during the course of cleaning of the basement.
21. Denied. These averments are specifically denied. On the contrary, at no times did Defendants
experience a water leak or any other casualty which destroyed or damaged Plaintiffs property or any other
property upon the premises. Further, at no time did Chuck Harvey or any other person so advise Plaintiff or
Plaintiffs employees.
22. Denied. These averments are specifically denied. On the contrary, Paragraph 21 hereof is
incorporated by reference herein. By way of further specific denial, at no time did Chuck Harvey or any other
employee of Defendants discuss any accounting or disposal and removal of Plaintiffs property from the
premises.
3
23. Denied. These averments are specifically denied. On the contrary, no such conversation or
conversations ever occurred. By way of further specific denial, Paragraphs 18 through 22 hereof are
incorporated by reference herein.
24. Denied. These averments are specifically denied. On the contrary, Defendants permitted
Plaintiff to retrieve any items remaining on the premises.
25. Denied. These averments are deemed denied as conclusions of law to which no responsive
pleading is required. By way of further denial, Paragraphs 1 through 24 hereof are incorporated by reference
herein.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed.
COUNT III
Breach of Contra
Web Site Design and IM121emantatio
26. Admitted in part. Denied in part. Paragraphs 1 through 25 hereof are incorporated by
reference herein.
27. - 29. Denied. These averments are specifically denied. On the contrary, in September of 1998,
Plaintiff and Defendants met and discussed the possibility of creating two web sites for Defendants. Plaintiff
agreed to register or reserve two names for Defendants and Defendants paid for that on September 30, 1998.
Defendants did not order, agree to, request or receive any additional or further services from Plaintiff in
relation to these or any other web sites, or agree to pay for anything but their registration.
30. Denied. After a reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of said averment.
31. Denied. These averments are specifically denied. On the contrary, at no time did
defendants discuss, request or receive any further or additional services from Plaintiff other than to register
4
the names as set forth in Paragraphs 27 through 29 above, which are incorporated by reference herein, nor
did Defendants agree to pay for any additional services.
32. Denied. The time and effort claimed by Plaintiff and the activation of the sites are denied in
that after a reasonable investigation, Defendants are without knowledge or information sufficient to form a
belief as to the truth of said averments. By way of further denial, at no time did Plaintiff seek "feed back"
from Defendants. Paragraphs 27 through 31 hereof are incorporated by reference herein.
33. Denied. These averments are specifically denied. On the contrary, Paragraphs 1 through 32
hereof are incorporated by reference herein.
34. Denied. Any breach of agreement on the part of Defendants and any amount due and owing
to Plaintiff are specifically denied. On the contrary, there is no amount due and owing by Defendants to
Plaintiff for the reasons set forth in Paragraphs 1 through 33 hereof, which are incorporated by reference
herein.
35. Denied. It is specifically denied that Defendants breached any agreement with Plaintiff and
owe Plaintiff any amount of money. By way of further specific denial, Paragraphs 1 through 34 hereof are
incorporated by reference herein.
36. Denied. It is specifically denied that Defendants breached any agreement with Plaintiff and owe
Plaintiff any amount of money. By way of further specific denial, Paragraphs 1 through 35 hereof are
incorporated by reference herein.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed.
5
COUNT IV
Breach of Contract
Non-Payment For Purchased CQMRUkLSY-sA0M
37. Admitted in part. Denied in part. Paragraphs 1 through 36 hereof are incorporated by
reference herein.
38. Admitted.
39. Admitted in part. Denied in part. It is admitted that Plaintiff presented Scott Harvey with a list of
equipment. It is specifically denied that it is the list comprising Exhibit I.
40. Denied. These averments are specifically denied. On the contrary, all that Plaintiff did was to
show Defendants briefly how the NASCAR system worked. By way of further specific denial, Defendants paid
the amount due for the computer system and related equipment.
41. - 42. Admitted in part. Denied in part. It is admitted that the computer and related equipment
were ordered and remained at Plaintiffs facility. It is specifically denied that Plaintiff made numerous attempts
to have Defendants pick them up. It is further specifically denied that Plaintiff was told that Defendants wanted
to wait until Defendants acquired a desk for the computer. On the contrary, Defendants simply did not have or
find the time or have the interest to pick the computer up until such time as the parties terminated their
relationship, whereupon Defendants did so.
43. - 46. Denied. These averments are specifically denied. On the contrary, Defendants paid the
agreed amount for the computer system.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed.
6
COUNT V
47. Admitted in part. Denied in part. Paragraphs 1 through 46 hereof are incorporated by
reference herein.
48. Denied. This averment is deemed denied as a conclusion of law to which no responsive
pleading is required.
49. Denied. Any items supplied by Plaintiff to Defendants for which Plaintiff was entitled to
payment were paid for by Defendants in timely fashion.
50. Admitted in part. Denied in part. Paragraphs 1 through 49 hereof are incorporated by
reference herein.
51. Denied. Plaintiff's expectation is denied in that after a reasonable investigation, Defendants
are without knowledge or information sufficient to form a belief as to the truth of said averments. By way of
further denial, that any such expectation was reasonable is specifically denied for the reasons set forth in
Paragraphs 1 through 50 hereof, which are incorporated by reference herein.
52. Denied. Paragraph 49 hereof is incorporated by reference herein.
WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed.
JOHNSON, DUFYIE, STEWART & WEIDNER
127232
Jr.
7
VERIFICATION
I, SCOTT W. HARVEY, t/d/b/a COINS UNLIMITED, verify that the statements made in the foregoing
document, which are within the personal knowledge of the undersigned, are true and correct, and as to the
facts based on the information of others, the undersigned, after diligent inquiry, believes them to be true. And
further, this verification is signed on the recommendation of my attorneys, who advise me that the statements
and language in this document are required legally to raise issues for resolution at trial by the Court, or by
continuing investigation and preparation for trial. I understand that some of these statements may prove
inappropriate after investigation and trial preparation are complete, and I leave determination of these matters
to our attorneys on their advice.
I understand that all statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904,
relating to unsworn falsification to authorities.
Dater ??_? SCOTT W. HARVEY
CERTIFICATE OF SER VICE
AND NOW, this / *day of October, 1999, the undersigned does hereby certify that she did this date
serve a copy of the foregoing appearance upon the other parties of record by causing same to be deposited in
the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
Michelle Hagy
EXHIBIT `A"
Johnson, Duffle, Stewart & Weidner
By: David W. DeLuce
I.D. No. 41687
By: Michael J. Cassidy
I.D. No. 82164
301 Market Street
P. 0. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540'
SCOTT W. HARVEY Vd/b/a
COINS UNLIMITED, INC.,
Plaintiff
V.
CINEMAGIC, INC.,
Defendant
To the Defendant:
COPY
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. W. /7/? `r
NOTICE TO DEFEND
CIVIL ACTION - LAW
IN REPLEVIN
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within twenty (20) days after this complaint and notice are served, by entering a written
appearance personally or by attorney and filing in writing with the court your defense 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 17013
Telephone: (717) 249-3166
,Johnson, Duffle, Stewart & Weidner
By: David W. DeLuce
I.D. No. 41687
By: Michael J. Cassidy
I.D. No. 82164
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
SCOTT W. HARVEY t/d/b/a
COINS UNLIMITED, INC.,
Plaintiff
V.
CINEMAGIC, INC.,
Defendant
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
IN REPLEVIN
COMPLAINT
AND NOW, this 23d day of March, 1999, comes the Plaintiff, through its undersigned attorneys,
Johnson, Duffle, Stewart & Weidner, upon a cause of action in replevin, whereof the following is a
statement:
1. Plaintiff, Scott W. Harvey, is a proprietor of Coins Unlimited with his principal place of
business located at 230 South Second Street, Wormleysburg, Cumberland County, Pennsylvania 17043.
2. Defendant, CineMagic, Inc., is a Pennsylvania corporation with its principal place of business
located at 3607 Rosemont Avenue, Camp Hill, Cumberland County, Pennsylvania 17011.
3. Plaintiff owns a Hewlett Packard 755 CM Plotter (hereinafter "Plotter"), serial number
ESB7406695, valued at $8,670.00, including numerous IBM compatible Computer Diskettes (hereinafte
"Computer Diskettes") which contain graphic board designs.
4. Plaintiff owns a large capacity Ink Delivery System designed for the Plotter (hereinafter "InI
Delivery System") valued at $2,750.00.
5. Plaintiff owns Cartridges with stems designed for the Ink Delivery System (hereinafter
"Cartridges") valued at $380.00.
6. The Plotter, Computer Diskettes, Ink Delivery System and Cartridges (hereinafter collectively
referred to as "Equipment") are presently in the possession of Defendant, located at 3607 Rosemont
Avenue, Camp Hill, Cumberland County, Pennsylvania 17011.
7. On or about June 16, 1997 Plaintiff purchased the Equipment for the purpose of graphically
designing and manufacturing game boards.
8. On or about June, 1997, Plaintiff entered into an oral agreement with Defendant whereby
Defendant agreed to graphically design and manufacture said game boards in exchange for payment of
services.
9. At or about the time Plaintiff entered into the oral agreement referenced in Paragraph 8,
Plaintiff agreed to provide to Defendant the Equipment so as to facilitate graphic design and manufacture of
the game boards.
10. Defendant has used Plaintiffs Equipment to design and manufacture game boards for
Plaintiff.
11. On or about February, 1999, Plaintiff and Defendant mutually terminated the oral agreement
wi Hereby Deici dant would no longer design or manufacture game boards on behalf of Plaintiff.
12. On or about March 1, 1999, Plaintiff, through his undersigned attorneys, made a formal
request to Defendant requesting Defendant allow Plaintiff to retake possession of the Equipment.
13. Defendant has repeatedly rejected Plaintiffs requests to retake possession of the Equipment.
14. Defendant's wrongful detention of the Equipment has prevented Plaintiff from producing his
own game boards and has resulted in significant loss of revenue for Plaintiff.
15. Defendant's wrongful detention of Plaintiffs Equipment has been outrageous, willful, wanton
and/or in reckless disregard to Plaintiffs rights and Plaintiff therefore seeks recovery of punitive damages.
WHEREFORE, Plaintiff demands judgment against Defendant determining that Plaintiff is entitled to
possession of the Plotter, the IBM compatible Computer Diskettes, the Ink Delivery System and the
Cartridges, awarding special damages sustained by Plaintiff and punitive damages, together with costs and
attorneys fees and such other and further relief as the Court may deem appropriate under the
circumstances.
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
David Luce
Micha Cassidy
:121266
TRUE COPY FROM RECORD
in Teslimchny wrr.rK.4, I h^r%a vi to wt my h:ni
arsd the swat el said cozi : at Gqr le, N.
This 23 ray ol_ auJti 9 99
I, Scott W. Harvey, do verify that the statements made in the foregoing Complaint are true and correct
to the best of;my knowledge, information and belief. I understand that false statements made herein are
subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities.
Dated:
Scott W. Harvey
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CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
SCOTT W. HARVEY AND:
CHARLES HARVEY,
t/d/b/a COINS
UNLIMITED,
Defendants NO. 99-4895 CIVIL TERM
ORDER OF COURT
AND NOW, this 18`h day of November, 2002, upon consideration of Plaintiff's
Petition To Open, it is ordered that:
1. A Rule is issued upon Defendant to show cause why Plaintiff is not entitled to
the relief requested;
2. Defendant shall file an answer to the petition within 21 days of the date of this
order;
3. The petition shall be decided under Pa. R.C.P. 206.7;
4. Depositions shall be completed within 49 days of the date of this order;
5. Argument shall be held on Wednesday, February 19, 2003, at 3:00 p.m., in
Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shall be submitted at least seven days prior to argument.
BY THE COURT,
Robert W. Waeger, Esq.
P.O. Box 234 n O a
Harrisburg, PA 17108 L - l i l9 0
Attorney for Plaintiff 7 R g
John A. Snyder, Esq.
811 University Drive
State College, PA 16801
Attorney for Defendants
:rc
lv0 0 82 0
02
CINEMAGIC, INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 99-4895 CIVIL
vi.
SCOTT W. HARVEY AND CHARLES
HARVEY t/d/b/a COINS UNLIMITED,
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendants
AND NOW, this day of
ORDER
2002, it is hereby Ordered that
this case shall be placed back on the active list and not dismissed for inactivity.
J.
CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
V.
SCOTT W. HARVEY AND CHARLES CIVIL ACTION -LAW
HARVEY t/d/b/a COINS UNLIMITED, JURY TRIAL DEMANDED
Defendants
PETITION TO OPEN
Petitioner, Cinemagic, by and through its attorney, Robert W. Waeger, Esquire, hereby
respectfully requests this Honorable Court to reopen the above styled case.
1. Petitioner's attorney, Robert W. Waeger, Esquire, intended to be present at the
Cumberland County special call of the pending case list held on October 22, 2002.
2. Attorney Robert W. Waeger, Esquire, because of a last minute family emergency, could
not attend the call of the list. Mr. Waeger spent most of that day in the Holy Spirit
Hospital Emergency Room ultimately obtaining a diagnosis that his college age son had
a serious staph infection.
3. The discovery in this case is on going and this case should remain active.
THEREFORE, the Petitioner respectfully requests this case remain open.
Respectfully submitted,
ROBERT W. WAEG
I.D. NO. 23656
P.O. Box 234
Harrisburg, PA 17108
Johnson, Duffle, Stewart & Weidner
By: C. Roy Weidner, Jr.
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
CINEMAGIC, INC.,
V.
Plaintiff
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
SCOTT W. HARVEY and CHARLES HARVEY, CIVIL ACTION - LAW
t/d/b/a COINS UNLIMITED,
JURY TRIAL DEMANDED
Defendants
DEFENDANTS'ANSWER TO PLAINTIFF'S PETITION TO OPEN
AND NOW, this 6-4 day of December, 2002, come Defendants, through their undersigned attorneys
and answer Plaintiffs petition to open as follows:
1. - 2. Denied. After a reasonable investigation, Defendants are without knowledge or information
sufficient to form a belief as to the truth of said averment.
3. Denied. On the contrary, Plaintiff has conducted no discovery in this case. Defendant
propounded interrogatories and requests for production of documents to Plaintiff on November 30, 1999. After
numerous communications by the undersigned to Plaintiffs counsel, Plaintiff provided some, but incomplete,
responses to those items of discovery, the last being a telephone promise on May 23, 2000 to provide
supplementation.
WHEREFORE, Defendants request that Plaintifrs petition to open be dismissed.
JOHNSO , DUFFIE, STEWART & WEIDNER
165879 B
0015-s ZC. " --
Roy Weidner, Jr.
CERT/F/CA TE OF SERV/CE
AND NOW, this (p c" day of December, 2002, the undersigned does hereby certify that she did this
date serve a copy of the foregoing answer upon the other parties of record by causing same to be
the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as fol ows•eposited in
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
By:Vch.e'lle Aag?y??.
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CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 99 - 4895 CIVIL
SCOTT W. HARVEY AND CHARLES CIVIL ACTION - LAW
HARVEY T/DB/A COINS UNLIMITED
Defendants
ORDER OF COURT
AND NOW, this 2"S i d day of Me( e -j , 2003, upon consideration of
Plaintiff's Petition to Open Non Pros under Rule 3051, the parties are hereby directed to
comply With the Judge's Order of February 19, 2003.
BY THE COURT
Robert W. Waeger, Esquire
P.O. Box 234
Harrisburg, PA
Attorney for Plaintiff
David Lanza, Esquire
301 Market Street
Lemoyne, PA 17043
Attorney for Defendants
,j., ds. 03
41
10
CINEMAGIC, INC.,
Plaintiff
SCOTT W. HARVEY AND CHARLES
HARVEY T/DB/A COINS UNLIMrfED
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99 - 4895 CIVIL
CIVIL ACTION - LAW
PETITION TO OPEN PURSUANT TO PA. R.C.P. 3051
Petitioner, Cinemagic, by and through its attorney, Robert W. Waeger, Esquire,
hereby respectfully requests this Honorable Court to open the Judgment of Non Pros
and Dismissal in the above-styled case.
1. Petitioner's attorney, Robert W. Waeger, Esquire, intended to be present at the
Cumberland County special call of the pending case list held on October 22,
2002.
2. Attorney Robert W. Waeger, Esquire, because of a last minute family
emergency, could not attend the call of the list. Mr. Waeger spent most of that
day in the Holy Spirit Hospital Emergency Room ultimately obtaining a
diagnosis that his college age son had a serious staph infection.
3. The discovery in this case is on going and this case should remain active.
4. Attorney Robert W. Waeger, Esquire filed a Petition to OPEN on November
6, 2002 based upon his nonattendance of the call of the purge list.
5. Said Petition to Open was pursuant to instructions received from both the
Cumberland County Court Administrator's Office and Prothonotary's Office
in that no Order was entered dismissing said case. Said Petition to Open, per
instructions, was "to explain counsel's non-attendance" at the calling of the
purge list and a "statement if the case was still active".
6. On November 18, 2002, Defendants were ordered in a Rule to Show Cause
why Plaintiff s relief should not be granted. Plaintiffs understood the hearing
set for February 19, 2003 on the Rule to Show Cause to be determinative of
this issue, but, based upon a Dismissal Order entered by the Prothonotary on
January 13, 2002, Plaintiffs are filing this Petition under Pa. R.C.P. 3051.
7. Robert W. Waeger, Esquire, Attorney for Petitioner Cinemagic, noted when
checking the docket in this case on February 10, 2003, that an Order of Court
was entered on January 13, 2003 dismissing this case. He received no other
notice.
8. Attorney, Robert W. Waeger, Esquire, also had no knowledge until February
19, 2003 that another docket entry was made by the Cumberland County
Prothonotary on February 14, 2003 vacating the Dismissal Order of January
13, 2003. Based upon the foregoing docket entry, confusion and non-
notification of said entries to the parties and the Court's Order dated February
19, 2003, Plaintiffs believe this Petition to Open is timely.
9. Attorney Robert W. Waeger, Esquire, had no knowledge of this January 13,
2003 Order prior to February 10, 2003 as described above.
2
10. Cinemagic, Inc. and its attorney, Robert W. Waeger believe there is a
reasonable explanation and/or legitimate excuse for any perceived inactivity or
delay in this matter outlined as follows:
a. Suit was instituted 8/13/99
b. Defendants entry of appearance 9/13/99
c. Defendants Answer to Plaintiff's
Complaint 10/11/99
d. Defendant's Interrogatories & Request
For Production of Documents 11/30/99
e. Plaintiffs had oral communications with
Defendants re: confidentiality 2/11/00
f. Plaintiff's Answers to Defendant's
Interrogatories and Document Request 3/14/00
g. Supplemental discovery response
Provided by Plaintiffs
h. Oral communications re: Offering
Plaintiff's Computer to complete
Discovery
i. Oral communications re: Offering
Plaintiff's Computer to complete
5/23/00
8/20/00
3
Discovery 10/01
j. Oral communication re: scheduling
Depositions in September or October
2002 9/02
11. During the time in which this case was pending, Attorney Robert W. Waeger
has discussed this case on multiple occasions with his client in an effort to
reach some settlement compromise position. As Plaintiffs operate a time
consuming and time sensitive business, there were conflicts in scheduling
meetings, including the scheduling of depositions of both parties.
12. During the time in which this case was pending, Attorney Robert W. Waeger
took on many additional work-related duties which compounded the
scheduling issues between him and his clients, as well as between Plaintiffs
and Defendants.
13. During the pendency of this case, Counsel for Plaintiffs, Robert W. Waeger,
Esquire, has been required to become more involved as the Litigation Manager
of hundreds of medical malpractice cases. On a yearly basis, the workload
amounts to 500+ cases involving $320,000,000 to $350,000,000 in payments
and over 200 trials (See Exhibit A), with a pending list of over 5000 cases.
Over one-half of these cases are venued in Philadelphia County which has
routinely required his attendance at settlement conferences, trials or
4
availability by phone (See Exhibit B as representative). The other half of
these cases are venued in the remaining 67 counties in Pennsylvania. Many
times these jurisdictions require his attendance at settlement conferences, trials
or availability by phone (See Exhibit C), wherein in Mulligan v. Piczon, 566
Pa. 214, 779 A.2d 1143 (2001), he was ordered to attend a 6-week trial. Mr.
Waeger is responsible for providing the ultimate authority or evaluation on
these pending cases. (See Exhibit D as representative).
14. Attorney Robert W. Waeger understands judicial economy and the importance
of settling cases and, therefore, made attempts to complete discovery
requested by Defendants and settle this case not exhibited by any docket
entries.
15. The averments in pp. 10 and 14 alone provide "reasonable explanation or
legitimate excuse" for any delay in this case.
16. Additional reasonable explanation for any alleged delay in moving this case
forward is Attorney Robert W. Waeger's strategy. (a) It is Plaintiff's intent to
provide Defendants with all the information requested in their discovery
requests including access to Plaintiff's computer to obtain said information.
(b) Deposition scheduling was in progress when the Cumberland County
purge list issues arose. (c) Further "reasonable explanation" of any alleged
delay on the part of Plaintiffs involves the fact that there has been prior legal
actions between the parties and it is Plaintiff attorney's strategy that by
waiting until cooler heads prevail and each party has moved on to other
business that a reasonable solution/settlement can be effectuated, as had been
accomplished in two prior issues, and (d) As this is a contractual collection
matter, once those depositions are completed, Plaintiffs intend to list this case
for trial.
17. Defendants have not been prejudiced in any way. To the contrary, by the
Plaintiff's strategy of not wasting time and money with unnecessary
discovery, an argument could be made that Defendants have benefited.
18. The plaintiff's Complaint and Answer thereto, offers sufficient evidence that
this action is meritorious.
THEREFORE, the Petitioner, Cinemagic, by and through its attorney, Robert W.
Waeger, respectfully requests this case be reopened.
ALTERNATIVE AVERMENTS
PETITION TO OPEN PURSUANT TO PA. R.C.P. 3051
AND PA R.C.P. 206.7
Alternatively, if this Honorable Court concludes that PA. R.C. P. 206.7 is
applicable based upon this Court's issuance of a Rule to Show Cause on November 18,
2002, Plaintiff aver as follows:
19. Plaintiffs and Plaintiff's attorney were unaware following the call of
Cumberland County's purge list whether this case was dismissed.
20. To the contrary, communication with the Prothonotary and Court
Administrator's Office and after a check of the docket, it did not reveal to
Plaintiffs anything other than that the providing of an explanation of counsel's
non-attendance and a brief statement if the case was still active would be
sufficient.
21. Plaintiff's initial Petition to Open filed on November 6, 2002 need not meet
the requirements of PA R.C.P. 3051 as no entry of Non Pros had been made or
docketed.
22. Plaintiffs titled their November 6, 2002 filing a Petition to Open because they
believed that pursuant to local custom, and/or instructions received, an
explanation of non-attendance at the purge list, etc. was all that was necessary.
Clearly, if, prior to the call of the purge list, Plaintiff's sent a letter to the
Court containing the same information contained herein, and Defendants did
not object (as in this case), this case would still be active.
23. As the docket clearly can only lead one to conclude that this case was not
dismissed until January 13, 2003 and reopened on. February 14, 2003, then
neither the Plaintiff nor Defendant should receive any presumptions,
7
prejudices or waivers, that all facts are admitted, etc. pursuant to PA R.C.P.
206.7 (b) or (c).
24. In this case, the Non Pros or dismissal entry was made on January 13, 2003,
but this dismissal Order was reversed on February 14, 2003, and this
Honorable Court issued an appropriate Order and Rule to Show Cause on
February 19, 2003 received by Plaintiff's counsel on February 25, 2003,
affording Plaintiff the opportunity to file this Petition.
Only the Order dated February 19, 2003 and this authorized Petition to Open
should be considered.
THEREFORE, the Petitioner, Cinemagic, by and through its attorney, Robert W.
Waeger, respectfully requests t his case be reopened.
Respectfully submitted,
ROBERT W. W
ID No. 23656 r /
Box 234 v
Harrisburg, PA 17108
(717) 783-3770 x 206
8
CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 99 - 4895 CIVIL
SCOTT W. HARVEY AND CHARLES CIVIL ACTION - LAW
HARVEY T/DB/A COINS UNLIMITED
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Plaintiff's Petition to Open
pursuant to PA. R.C.P. 3051 in the above captioned matter was mailed by U.S. First
Class Mall, postage prepaid, on this 141?day of March, 2003 to:
C. Roy Weidner, Sr., Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
9
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2151485439 T_NO. '10 3602/'
2
-BB3
IN THE UMMED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF Pp-NNSyLVANIA
Patricia Brennan, at al.
• CIVIL ACTION
V.
Village Improvement Association
d/b/a Doylestown Hospitat et al. NO. 01-1443
.
ZIMREAIC_L N=
Please be advised that a Settlement Conference in the above-captioned case will
be held on Monday, January 27, 2003 at 1030 a.m. before the Honorable James R. Me
Chief Uuited States MadsbVe Judge, in Room 3000 U•S. o
PhiladelPhis, Pa. 19106. • C tuthoasa 601 Marltat Street,
directed to tfy the qr tt a if s?ms settlement of this case is a real Possibility. Counsel are
not' this assumption is unwarranted,
Counsel are dtreeted to arrange to have clients with sett phynica py &$ to the courtroom, for the duration of this i0iralk:O]IS",,6?
"0 to remain present until expressly released by the court.
ary to be
Summ dCouneliv? to s ? on or to before complete the enclosed Settlement Cmference
Monday, January 20, 2003•
Date: January 14, 2003
cc: Joan Orsini-Ford. $sq,
Nancy Deusle
=m`!:% Meliason
215-597-5316
Rodger L Mntzel, Esq. Ewer J. Darnsbeio in
an beftert ` Parods wl near idth an inter.', in one a?od'er hasioasr enriHes, and' m?
here ra or oQi
?a inin the t cher bimium case
p ea with
am - d ?ttd rLc oamfblenw, &I the case of
tho
aaano, nrance company is involved a _ re}+reseoaa with ultimate c ??t authority is regmrod t* amend.
w+ty is alro aoq..y? m
RECEIVED TIME MAR. 6. 11:45AM '6
- - JAN. 3. 200344..2: 89PWL'-5 1916108012211-L1" RTZ_cdMPBELL NO. 0074 P. 4)03
COi)RT.UF CtOMMO
]Y::PL19AS' ...
FIRST JUDICILA*L DISTRICT OP'PENN5YLVAhfIA
CIVIL TRIAL DIVISION
and.MEDICAL CED4,T'tR, et al.
9B?E$
ANI?I " .. tlii. 30th day of December ,2002 it ie hereby, ORD
Settl'ement' Cnnferenbe in this matter shall d ?RBD that a,
take place.on'Tuesday,, January 7;; 2003'at'
11100 AM, in Courq;noi in 425 City ?1, philadel hw' PA, Af least one attornoy.
who's full p.•, a,
y farniliar 4.0th the case and who h ot1'tplete authority t? ettle the:case
shaU appear for each party, except in the case or a T
without counsel. If. attome AIQ s litigant who may appear
y does not have complete settlement authority, the
party, person or p6iscins with,full settlement authority, shaU accompany. the etto n
to the; conference or uihall be available continuously by 'telephone for the duration of
the. conference unless and until excused by the Court.
Further, defense counsel representing a
s
befara settlement neg ?(jations on his or her behalf consent is required
the settlement confereripe the following statement, completed and signed by th it at
client (do not mail, fast or deliver the statement to chambers):
I have discussed ibis case with may attorney(s), and
I do /I do riot (ci.rcle one) consent to a settlement of.this case
insofar" as it pei"tains to me,
RECEIVED TIME JAN. 3. 3:16PM
5104
A physician whbhak not executed this•form•for subuiission td the' C6Wf prior
to the settlement conf,:reryce must personally attenei,tlie conference. The, Eke eion
and delivery of this-sui[ternent;, vvhether•there is or: is hot cons' :. are notgi.1- to
be excused from the:G6tifererige; ,
Further, if a pa rtXv coUns,el or person or persons'with authotiity.fail s :-tti attend
.the Battlement Conferisiice, or fail(s) to par eipate:in a ioeaningful meniier. while' in
attendance, whether if: be'by'personal appearance of telephone, the Court fray, make
such Order or imP03 . such sanctions as in its discretion seem proper under e.
rson or placing av9lue ocircumstances. Any Gie persons n the ,case may be'calied
upon to provide a rea .oiiable foundation far iheir position. A failure to do so'miay
be deemed by the Cotfft'to:be a lack of mearungful`.participation,
Further; counsel, sha11'h'ave the obligation,of communicating this Order to
such person or persons as may be required.
Further, eounse.l shell, at the time of the Conference,.certify in writifig as to
the names, addresses, telephone numbers, employers and titles ofall'
persons
notified of this Orden,.
13Y THE COURT:
cc: Andrew 1. Stern, Esquire
John P, Shea;'- ;squire.
George L. Young, Esquire
'Robert B. Mulficiir-n, Esquire
Daniel F. Ryan„ M, Esquire
David Griffith; i2sgWre
dedoonLc,a
RECEIVED TIME JAN. I J;16PM
4i"D W. AHRAMSON, I.
:i
i
i
`DEC. 26. 2002a: 3.25 PM Fa 91610801221' iu 71p1Y0 1LC1 0006 V
N0. 4
Dec 10 '02 22-4S -S
P.02/02
COURT OF COMMON PLEAS /O a?
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
BETH A- GONLAGA, et al,
MAY TERM 1999
V. NO. 3934
STANLEY C, JIUSLIN, IM,D., et al,
2&DER
AND NOW, this 1 I th day of December, 2002, O
that a Settlement Conf it is bereb
erence shall lake place on Dec y ORDERED and DECREbD
425 City Hall, Philadelphia, PA, All 3.2002 at 10:00 A,
Persons tt authority to tie shall be ca) M in upon toOOm
articulate on the record their respective position in etat . Conclusory declazaeions,
pendency such as "the
case is defensible" will not be accepted as meaningful patticipahon, Anticipated motions or the
dtereof shall not
excuse participation participation
position of another, A failure to participate will result in sanc may tions, not be conditioned upon the
BY THE COURT,
0 WLAND w. ??
ABItAMSON, j,
Cc: Steven Gitman, Esquire
John P. Shea, Esquire
George L Young, Esquire
Chandler F, Hosmer, IIT,1=.squire
Israel Eisenberg, Esquire
IGS !c.
DEC 11 2002 10:45
RECEIVED TIME DEC.26.
29PM
PRINT TIME DEC. 26.
WW TOTAL PAGE-OZ
3:
1.:S7AiM 9161DcD12211'?LL 215 S87 164eiT(1 `t75a03ENO• 9'19112 J•_??_~' j-
• mac, ,,? I
COURT OF COMMON PLEAS j
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
BETH A. GONZAGA, at al. MAY TERM 1999
NO. 3934
V.
STANLEY C. HUSLIN, M.D., et al_
ORDER
LAND NOW, this 23rd day of December, 2002, Dr. Stanley C. ,Huslin's secondary insurer,
Mcdic4l Care Availability and Reduction of Error Fund (MCARE), is. fined $500. for its second
failure t?oo meaningfully participate in a settlement conference for this matter and 5100. per day
i, l sL*h time as it purges itself of its contempt through antra ful artier a " e Ss00.fute
is be made payable to the First Judicial District within ten (10) days. The daily fine shall be
paid every ten (10) days and on the day MCARB purges itself of its contempt. Payment shall be
made at the office of Procurement, 368 City Hall, Philadelphia and proof of payment shall be
submitted to Judge's Chambers, Suite 1211 Criminal Justiee'Center, 1301 Filbert' Street,
Philadelphia, pA 19107. The second conference was scheduled because MCARE took no
position whatsoever on December 9, 2002 when the conference was originally scheduled and the
Court learned that Dr. Huslin had consented to settlement discussions and his primary carrier had
tendered years earlier. The Court was advised on Deccrnber 9, 2002 by Dr. Ruslin's anorney that
MCARE would committee the matter on December 19, 2002 and have a position to report to the
Court. M reliance on this representation, the Court set the matter down for December 23, 2002_
On December 18, 2002, itt the late afternoon, am MCARE claims adjuster called the Court to say
sheju* received the file and was unprepared to proceed. The Court denied this continuance
request because the claims adjuster was, irate unwilling to specify a date and time when the
matrcr would receive the necessary attention, no good cause was shown for continuing the
matter, the request was exparte, and no attorney, when called, confirmed that there was such a
request. The Court finds that MCARE obstructed the orderly administration ofjustice and
continues to do so.
BY THfi URT:
I
f N
M.
Cc. Steven Gilman, Esquire
John P. Shea, Esquire
George L. Young, Esquire I
Chandler E. Hosmer, III, Esquire
Israel Eisenberg, Esquire
DEC 23 2002 15:03
RECEIVED TIME . DEC. 24. 12: 01 PM pAP•a2
PRINT TINE DEC, 24. *12:O1?h? PHGF.A? ,.... I
?L 09 LP TEL 610 430 04 75 P. 002
f?
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
No. 0053 Appeal Docket 2000
LORETTA MULLIGAN and THOMAS MULLIGAN,
her husband, and MARK GUREVITZ
V.
SEVERINO PICZON, M.D.
COMMONWEALTH OF PENNSYLVANIA MEDICAL
PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND,
Appellant.
Appeal from the Order of the Commonwealth Court No. 672 C.D. 1999, Dated _
September 3, 1999 Affirming the Order Making Rule Absolute of the Court of
Common Pleas of Lackawanna County, 95 Civ. 1038. 1284, Dated March 12, 1999
and From the Order of the Commonwealth Court No. 67.2 C.D. 1899 Dated
November 3, 1999, Denying Appellants' Application for Reargument
BRIEF FOR APPELLANT
THE COMMONWEALTH OF PENNSYVLANIA
MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND
Cl-
13:43 •'$2153458622 PLARINS RIEFFEL U006
ATTACHMENT ORDER
And now to with, this 15th day of January, 1999,
it is hereby ORDERED and DECREED that the
Catastrophic Loss Fund is hereby ordered to
immediately name their attorney designee who
is to be attached to observe and oversee trial
progress in the above captioned matter from
March 15, 1999 continuously until conclusion
which is estimated to be May 7, 1999, a period
of approximately seven weeks. The Fund shall
designate their representative within ten (10)
days of the date of this Order and so notify the
Court.
BY THE COURT, Carmen D. Minora, J.
In response to this Attachment Order, on February 22, 1999, Deputy
Director of the Fund, Robert W. Waeger notified the Court in writing that the
Fund would not be providing a representative to attend the Mulligan trial, but
that its attorney examiner, Joann Dittmann, would be available by telephone to
monitor trial and/or developments surrounding the MuM an claim. See
Lackawanna County Local Rule of Civil Procedure 212, Section E, infra..).
On February 25, 1999, Judge Minors. issued the following:
RULE
AND NOW TO WITH, this 251h day of February 1999,
it is hereby ORDERED and DECREED that a rule returnable
is ordered upon Robert W. Waeger, Esquire, and attorney
Jo Ann Dittman to show cause why they should not be
held in contempt for a violation of this Court's attachment
order dated January 15, 1999 (Exhibit A) by virtue of
their correspondence dated February 22, 1999 (Exhibit
B). A hearing, if necessary, shall be held at 1:30 p.m.
on Friday, March 5, 1999 in the courtroom of the
Honorable Carmen D. Minora, 2nd Floor Lackawanna
County Courthouse, Scranton, Lackawanna:County,
Pennsylvania-
4
0315 '99 13:36
CLAIMS EVALUATION
EXAMINER: James L. Cook III DATE:
CLAIMANT: Willianamow FUND FILE: -dow
DATE: 814197 DATE FILED: 9/17/98
PLAINTIFF'S ATTY: Alan Perer FUND D'S: 1
VENUE/CTY: Allegheny TRIAL DATE: 1/14/99
BROKER: Roger Roggenbaum JUDGE: Strassburger
SF HCP SPEC P.C. 605/ C/T DEFATT TDR/ E FUND DATE
CON
A David'c Dermatologist PMSLIC EX Dan Stetko 300,000 900,000
B Gf /&-a
C
D
E
F
- DAMAGES
PAST FUTURE
MEDICAL 357,604
I
WAGE LOSS 100,000 800,000
TOTAL 457,604 800,000
TOTAL
900,000
1.25 million
LIENS
TYPE: AMOUNT:
AUTHORITY
REQUESTED APPROVED
PRIMARY MONEY 300,000 300,000
FUND MONEY 600,000
TOTAL MONEY
SETTLEMENT DEMAND
LAST OFFER{
RECOMMENDATIONS
DEFENSE COUNSEL
Dan Stelko
1.2 =Lhon
t
?OM
RANGE ,
pay the 1.1 milion-this case has punitive
4q??
IN-.-N--EN
/??= lPCfl jJD6
???
CLA
EXAMINER:
CLAIMANT.
OCC DATE:
PLAINTIFF'S ATTY:
VENUE/CTY:
BROKER:
Kevin Co ian
ale nd Ga
6/20/97
Thomas R Yorko
c n
Philadelphia Court of Common Pleas
Dieter
DATE: 5/3/00
ND FILES
DATI/23/98:
FUND D'S:5
TRIAL
DATE-,5/15/00
JUDGEtmoss
SF HCP SPEC P?.C) 605/EX C/T D/?E?+FATTY TDR/CON E FUND DA
A KR6LL "S?
o
B PAOLI
C ELLEN C.a/Gy,V / l!/f11? SNg?°n y D?? OCb
D " MANFREX R v ?ofrsi?/9 3c?j o? o
E Main Line / I?o E55 r ?' C?
OB?GYN Co '4o FSSi?? 3o "000
,
F
MEDICAL
WAGE LOSS
DAMAGES
PAST F'JTTJRE
? 9d?; X00
TOTAL
TOTAL
LIENS
TYPE: AMOUNT: A
I
n IFSTED
PRIMARY MONEY 9d , c O O .
FUND MONEY / 7 /S n
TOTAL MONEY
SETTLEMENT DEMAND:
lj? O 1J6, 0 C> D
LAST OFFER: q O 0l -
RECOMMENDATIONS ° MME
COUNSEL:
''2/
APPROVED
d
7, 0
I
,,/D %d
0:31AM PRINT TIMEMAY. 9. 10:45AM
CLAIMS EVALUATION
EXAMINER: Bob McDermott Z? DATE:
CLAIMANT: Maria?e
c (
V FUND FILE:
OCC DATE: October 26,1995 I DATE FILED:
PLAINTIFF'S ATTY: Glenn McCarthy FUND D'S:
VENUE/CTY: CCP/Philadelphia TRIAL DATE:
BROKER: N/A JUDGE:
February 8, 2002
now
November 5,1999
5
March 15, 2002
TED
Vb
SF
I HCP SPEC P.C.
I 605/
E C/T ATT
- TDR/ E FUND DATE
CON
A Fernando Gomez-Irizarry OB/GYN MHX 605 P.J. Stapleton Lb mil
B Iyla Johnson, MD OB/GYN MIlX 605 P.J. Stapleton 1.0 mil
C Valerie Whiteman
(Dismissed) Perinatology MHX 605 P.J. Stapleton
D Temple Univ. Hosp. Hos
p.
AM
605
Gary
Samms 1.0 mil
E Kira Przybylko OB/GYN MHX 605 P.J. Stapleton - 1.0 nil
F
DAMAGES
PAST FUTURE
MEDICAL $900,000
WAGE LOSS
TOTAL
TOTAL
LIENS
TYPE: DPW Med Expense
AMOUNT: $900,000
AUTHORITY
REQUESTED
APPROVED
PRIMARY MONEY
FUND MONEY $600,000 global; 1,000,000 for high-low _
TOTAL MONEY
SETTLEMENT DEMAND /11,W .l •/`L
AST OFFER t- (((
RECOMMENDATIONS / COMMEN1lS_. J
DEFENSE COUNSEL RANGE %rn
v ? [rte
PRIMARY CARRIER RAN
MCARE CLAIMS EVALUATION
Clai presentative: Patricia T. Wiedt Date: 2/13/03
Fund ional Super. Leslie Thomas Committee Date: 2/25/03
CL Marissa WW FUND FILE: *Wr
OCC DATE: 7/16/00 (start date/end date) TPA File: TPA File #
Date Filed: 7/19/01 C-416 receipt date: 2/25/02
PLAINTIFF'S ATTY: Rolf Patberg FUND D'S: 6
VENUE/CTY: Ct of Common Pleas, Allegheny County TRIAL DATE: 3119103
BROKER: Dave Hickey JUDGE:
Baldwin
Day in the Life Video: Yes
SF HCP/ List all Parties
Involved
A Nicole Mchta, MD SPEC P.C. -
iga/phico 6051
715/ C/T DEF ATT
o Henry Sneath -
TDR/ Ex/$ .Pruimary DATE of
CON
/Fnd $ tender!
consent
B Mark Caine, MD OB/GYN Piga/pli;co EX No Henry Sneath
Supervises
high/risk
patients
Trains
residents
I
C I Shaun Lencki, NM ` Piga/phico EX No Henry Sneath
D Mchael Bomdie MD I OB/GYN Piga/phmo EX Na Henry Sneath
Trained
residents
E I Jeffrey Zwart, MD
chief resident
EX. I No I Henry
F I Western Pennsylvania Hosp Pigaiphico EX T Henr Y Sneath
500,000 Y 700,000 2/10/03
DAMAGES
PAST FUTURE TOTAL
MEDICAL billed/paid $701,289 billed/ 0 paid $10,153,658
(explain)
$10,153,658
$1,883,799
612,037,457
LIENS
TYPE:
?:: ? c,
_?, ?;
?,`,`
_.
._. __,
r,
??
_.
,; ;t
;??
,??
?x?
?N?
CINEMAGIC, INC.,
Plaintiff
V.
SCOTT W. HARVEY AND CHARLES
HARVEY t/d/b/a COINS UNLIMITED,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFF'S RESPONSE TO DEFENDANT'S
NEW MATTER AND MOTION TO STRIKE
Plaintiff (Petitioner) by and through its attorney, Robert W. Waeger, Esquire, responds to
Defendant's New Matter and Motion to Strike as follows:
NEW MATTER
26. Plaintiff incorporates by reference the allegations of paragraphs 1-25 as though set forth
herein.
27. Denied. Plaintiff's Petition to Open filed on March 6, 2003 is not barred by the doctrine
of waiver. The docket in this case clearly shows that a judgment of non pros was
entered on January 13, 2003 and the docket further reflects the judgment was vacated
on February 14, 2003.
Pursuant to Pa. R.C.P. 126, the Rules of Civil Procedure applicable hereto shall be
liberally construed, especially considering that the Plaintiff herein will be dramatically
prejudiced if the non pros is not opened.
1
A Rule was issued by the Court on February 19, 2003 granting Plaintiff permission to
file a Petition to Open based upon the docket entries.
WHEREFORE, Plaintiff respectfully requests this Court to deny Defendant's New Matter and
not award costs or attorney fees. f
MOTION TO STRIKE 11
28. Plaintiff incorporates by reference the allegations of paragraphs 1-28 as though set forth
herein.
29. Denied. Defendant has mischaracterized the events and filings in this matter. The
Plaintiff has not filed a third Petition to Open in this matter.
The averments of paragraphs 20 through 25 of Plaintiff's Peittion to Open filed on
March 6, 2003 clearly outline the facts in this matter.
30. Denied. The Petition to Open filed on March 6, 2003 was with leave of Court per Order
dated February 19, 2003.
31. Denied. Plaintiff s "Petition to Open" dated February 12, 2003 (prior to the hearing
date of February 19, 2003) was not filed with the Prothonotary as it did not meet the
requirements pursuant to local rules, therefore, based upon the docket entries and
arguments discussed in chambers, Plaintiff filed its March 6, 2003 Petition to Open.
Pursuant to Pa. R.C.P. 126, the Rules of Civil Procedure applicable hereto shall be
liberally construed, especially considering that the Plaintiff herein will be dramatically
prejudiced if the non pros is not opened.
J ?
WHEREFORE, Plaintiff respectfully requests this Court to deny Defendant's Motion to Strike
and not award costs or attorney fees.
Respectfully submitted,
ROBERT W. WAEGER,
I.D. NO. 23656
P.O. Box 234
Harrisburg, PA 17108
CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 99-4895 CIVIL
vi.
CIVIL ACTION - LAW
SCOTT W. HARVEY AND CHARLES
HARVEY t/d/b/a COINS UNLIMITED, JURY TRIAL DEMANDED
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Plaintiff's Response to Defendant's
New Matter and Motion to Strike in the above captioned matter was mailed by U.S.
First Class Mall, postage prepaid, on this 31' day of March, 2003 to:
John A. Snyder, Esquire
McQuaide, Blasko
811 University Drive
State College, PA 16801
ROBERT W. W
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Johnson, Duffle, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
CINEMAGIC, INC.,
Plaintiff
V.
SCOTT W. HARVEY and CHARLES HARVEY,
t/d/b/a COINS UNLIMITED,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
CIVIL ACTION - LAW
DEFENDANTS' ANSWER TO PLAINTIFF'S PETITION
TO OPEN PURSUANT TO Pa. R. 1P. 3051
1. Denied. Defendants have no knowledge of Plaintiff's attorney's intentions.
2. Denied. Defendants have no knowledge regarding this averment.
3. Denied. Discovery has not been ongoing or active in this case for several years.
4. Admitted in part. Denied in part. Plaintiff filed a Petition that did not comply with Rule 3051
and that related only to Plaintiffs failure to attempt to attend the call of the list.
5. Denied. The aforesaid Petition has no relevance to the issues to this case. By way of further
denial, those offices do not provide legal advice.
6. Admitted in part. Denied in part. This averment is irrelevant to the issues of this case.
7. Admitted.
Attorneys for Defendants
8. Denied. This Petition to open is not timely.
9. Denied. It is not known when Plaintiff discovered the Order of January 13, 2003.
10. Denied. It is denied that the aforesaid communications took place or that Plaintiffs have timely
complied with Defendants' discovery requests.
11. Denied. Defendants have no knowledge regarding this averment.
12. Denied. Defendants have no knowledge regarding this averment.
13. Denied. Defendants have no knowledge regarding this averment.
14. Denied. Plaintiffs have not complied with discovery requests of Defendants.
15. Denied. Reasonable explanation for delay would relate only to matters having something to do
with this case.
16. Denied. It is denied that the activities averred herein have occurred.
17. Denied. The delay has made it more difficult for Defendants to provide a defense or dispute
such evidence as Plaintiff may present.
18. Denied. These averments do not provide sufficient evidence that the action is meritorious.
19. Denied. This averment is irrelevant and beyond the knowledge of Defendants.
20. Denied. This averment relates to a conclusion of law. The information referred to by Plaintiffs
would not be found in the docket.
21. Admitted in part. Denied in pan`. Plaintiffs were required to file a Petition under Rule 3051 as
soon as this Court dismissed this case.
-2-
Denied. This averment states a legal COnclusion•
22. nclusion which
Qenied This averment states a legal conckusIon which
23.
is incorrect under Pa. R C P 206 et
seq. 2003, Was improper.
ied The Order of February 14,
24. Den
WHEREFORE, Defendants request that this case be dismissed.
Respectfully submitted,
JOHNSON, DUFF IE, STEWART & WEIDNER
G
By:
David J. Lanza
Attorney I. D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17061-4540
Telephone (717)
Attorneys for Defendants
:211083
-3-
VERIFICATION
I verify that the statements made in this Answer To Petition To open are true and correct to the best
of my knowledge, information and belief. These statements constitute legal conclusions, matters of record
and matters within the knowledge of counsel. I understand that false statements made herein are made
subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities.
t 4 1 i ?S By:
Date:
David J. Lanza
C C,
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4
CERTIFICATE OFSERVICE
AND NOW, this i! day of April, 2003, the undersigned does hereby certify that she did this date
serve a copy of the foregoing ANSWER upon the other parties of record by causing same to be deposited in
the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
JOHNSON, DUFFIE, STEWART & WEIDNER
By:
'Jennifer L. Bixler
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CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS
P 9 2003
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. NO. 99 - 4895
SCOTT HARVEY, CIVIL ACTION - LAW
Defendant JURY TRIAL DEMANDED
ORDER
AND NOW, this _ Z2 3c4-- day of
2003, the Motion
for Enlargement of Time is granted. Depositions in this matter for the pending Motion are
to be completed by May 1, 2003.
0 BY THE COURT:
c
CINEMAGIC, INC.,
Plaintiff
V3.
SCOTT HARVEY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4895 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
MOTION OF PLAINTIFF TO ENLARGE TIME FOR COMPLETION OF DISCOVERY
On or about February 19, 2003, the Honorable Judge Oler issued an Order, inter
alia, that depositions were to be completed within forty-nine (49) days from that date.
2. Plaintiff attempted to complete the deposition within the timeframe set by the
Court, but was unable because plaintiff's wife has been in the Hospital for three (3) weeks during
this time frame, followed by daily therapy.
3. The Defendant was represented by Roy A. Weidner, Esquire, and recently
referred this matter to his partner, David Lanza, Esquire.
4. On April 4, 2003, Plaintiff's counsel served a Notice of Deposition on counsel for
Defendant, attached hereto as Exhibit "A".
5. The deposition was scheduled for April 8, 2003.
6. Defense counsel, David Lanza, Esquire, advised that he was unavailable for this
deposition timeframe, but does not object to an extension of time to complete the discovery by
May 1, 2003.
Date: April 9 2003
Respectfully sub itted,
By: / ??
Robert W. Wae Esquire
P.O. Box 234
Harrisburg, 17108
Ph: 717/78 - 70
Attorneyfor inemagicc.
ln
APR 0 9 2003
EXHIBIT A
CINEMAGIC, INC.; IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
Plaintiff COUNTY, PENNSYLVANIA
V.
SCOTT W. HARVEY AND CHARLES
HARVEY t/d/b/a COINS UNLIMITED
NO. 994895 CIVIL
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
NOTICE OF DEPOSITION
TO: David Lanza, Esquire
301 Market Street
Lemoyne, PA 17043
Pursuant to Rule 4007.1 of the Pennsylvania Rules of Civil Procedure and before
a Notary Public duly authorized to administer oaths, TAKE NOTICE that the oral
deposition of Robert Waeger will be taken for discovery and use at trial, on Tuesday,
April 8, 2003, commencing at 4:00 p.m., at the offices of Marshall & Haddick, 20 South
36' Street, Camp Hill, PA 17011, at which time you are invited to appear and take such
part as shall be fitting and proper.
Respectfully
April 3, 2003 By: /f C_.
Robert Waeger,
Attorney for Pla
Cinemagic, Inc.
CERTIFICATE OF SERVICE
Q
AND NOW, this / day of 06V , 2003, I, Robert
Waeger, Esquire, hereby certify that I did serve Wue and correct copy of the foregoing
Motion for Enlargement of Time for Discovery upon counsel of record by depositing, or
causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed as follows:
David Lanza, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
Lemoyne, PA 17043
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CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS APR 0 9 2003
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
VS. NO. 99 - 4895
SCOTT HARVEY, CIVIL ACTION - LAW
Defendant JURY TRIAL DEMANDED
CERTIFICATE OF CONCURRENCE
Plaintiff, Cinemagic, Inc., by and through its counsel, Robert Waeger, Esquire, states
that he has sought concurrence of counsel, David Lanza, Esquire, on this Motion to Enlarge
Time for Completion of Discovery and he is in agreement.
Robert Waeger, Es e
KEITH E. and HOLLY M. JOHNSON,
Husband and wife,
Plaintiffs
V.
CCI, ENGINEERED PRODUCTS, INC.,
And ROTONDO WEIRICH, INC.
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 99 - 7382
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
ORDER
AND NOW this day of 2002, upon
consideration of the Motion for Summary Judgment filed on behalf of Defendants
Engineered Products, Inc. and Rotondo Weirich, Inc., it is hereby ORDERED and
DECREED that said Motion is granted.
KEITH E. and HOLLY M. JOHNSON, IN THE COURT OF COMMON PLEAS
Husband and wife, OF CUMBERLAND COUNTY, PA
Plaintiffs
V. NO. 99 - 7382
CCI, ENGINEERED PRODUCTS, INC.,
And ROTONDO WEIRICH, INC. CIVIL ACTION - LAW
Defendants JURY TRIAL DEMANDED
MOTION FOR SUMMARY JUDGMENT FILED ON
BEHALF OF ENGINEERED PRODUCTS, INC. AND ROTONDO WEIRICH, INC.
AND NOW come Defendants Engineered Products, Inc. and Rotondo Weirich, Inc.,
by and through their attorneys, Marshall & Haddick, P.C., and moves for Summary
Judgment against the Plaintiffs and in support thereof avers as follows:
1. The Plaintiffs initiated this Civil Action with the filing of a Complaint against
CC], Engineered Products, Inc. and Rotondo Weirich, Inc.
2. A Joinder Complaint was issued against Glenco Construction Services.
Glenco Construction Services has, by Stipulation of the parties, been dismissed from this
matter.
3. The pleadings in this case are closed.
4. The Plaintiffs in their Complaint charge CCI, Engineered Products, Inc. and
Rotondo Weirich, Inc. with negligence for a slip and fall accident which is alleged to have
taken place at the Homesdale State Prison near State College on December 9, 1997.
5. The Plaintiff's employer, Glenco Construction Services, was erecting steel at
the Homesdale prison.
6. Co-Defendant CC] acted as the general contractor on the jobsite and,
according to the Plaintiff, was responsible for pouring a concrete slab upon which modular
prison cells were to be placed for erection of what is now the Honesdale State Prison.
7. Plaintiffs charge Defendant CCI with negligence for maintenance of the
jobsite on or about December 9, 1997. More specifically, it is alleged that CCI used plastic
tarps to cover a concrete slab so as to guard the slab from inclement weather.
8. The Plaintiff charges CCI with negligence for removing the plastic tarps and
scattering them about the jobsite in a negligent manner, creating a risk of harm to the
Plaintiff.
9. On the evening of December 8, 1997, it is reported to have snowed on the
jobsite at the Honesdale State Prison. Plaintiffs allege that snow covered a negligently
discarded plastic tarp. Plaintiff further alleges that he walked across the jobsite on the
morning of December 9, 1997, where he encountered a negligently discarded plastic tarp
that was covered by snow.
10. According to the Plaintiff, Keith Johnson, fell to the ground, twisting his knee
and sustaining a broken ankle at the time of his fall on December 9, 1997.
11. Discovery in this matter is closed.
12. The sole deposition testimony concerning the use of plastic tarps at the
jobsite at the Honesdale State Prison consisted of the testimony of the Plaintiff.
13. The Plaintiff alleges that CCI was the only company on the Honesdale State
Prison job to utilize the plastic tarp that he encountered at the time of his slip and fall
accident.
2
14. Plaintiff further alleged that CCI, as general contractor for the jobsite, had the
duty, not only to discard the plastic tarps in a more reasonable fashion, but also breached a
more general duty to the Plaintiff concerning jobsite maintenance.
15. There is no evidence of record to suggest that any employee, agent or servant
of either Defendants Engineered Products, Inc. and/or Rotondo Weirich, Inc. had any role
in placing or discarding a plastic tarp which is alleged to be the cause of the Plaintiff's fall.
16. In the absence of any evidence of record linking Defendants Engineered
Products, Inc. and/or Rotondo Weirich, Inc. to the use or disposal of the subject plastic
tarps, renders judgment in favor of Defendants Engineered Products, Inc. and Rotondo
Weirich, Inc. appropriate.
17. The Plaintiffs, in light of the evidence of record, have agreed to the voluntary
dismissal of Engineered Products, Inc. and Rotondo Weirich, Inc. from this matter. A true
and correct copy of a Stipulation to Dismiss, executed by counsel for the Plaintiffs, is
attached hereto as Exhibit "A".
18. The Stipulation to Dismiss was forwarded to counsel for CCI. Counsel for
CCI has failed to respond in any way to the Moving Defendants' Motion for Concurrence
and their voluntary dismissal of Engineered Products, Inc. and Rotondo Weirich, Inc.
19. Defendant CCI, has failed to produce any evidence which in any way
connects Engineered Products, Inc. and/or Rotondo Weirich, Inc. with the facts and
circumstances of this Civil Action.
20. The absence of evidence of record drawing a connection between
Defendants Engineered Products, Inc. and Rotondo Weirich, Inc. to the Plaintiff's slip and
3
fall accident renders judgment in favor of Engineered Products, Inc. and Rotondo Weirich,
Inc. appropriate.
21. Co-Defendant, CCI, seeks indemnification from Engineered Products, Inc.
and/or Rotondo Weirich, Inc. pursuant to a contract that is attached as Exhibit "A" to the
New Matter Cross-Claims of Co-Defendant, CCI.
22. The indemnification language in the subject contract is insufficient as a
matter of law to create a right of indemnification for the sole negligence of CCI. The Cross-
Claims of Co-Defendant, CCI, against Engineered Products, Inc. and/or Rotondo Weirich,
Inc. should be dismissed as a matter of law.
23. Engineered Products, Inc. did not agree to indemnify Co-Defendant, CC], for
injuries arising out of the sole negligence of Co-Defendant, CCI. The contract between CCI
and Engineered Products, in pertinent part, provides as follows:
Subcontractor [Engineered Products, Inc.] shall defend, indemnify and hold
harmless, the contractor [CCI]... from and against all claims... arising out of
or resulting from the performance of the subcontract, provided that:
a. Any such claim, damage, loss or expense, attributable to bodily injury,
sickness, disease or death, or to injury or destruction of tangible property
(other than the subcontractor's work itself), including the loss of use
resulting therefrom, to the extent caused or alleged to be caused in
whole or in part by any negligent act or omission of the subcontractor,
or anyone directly or indirectly employed by the subcontractor, or for
anyone for whose acts the subcontractor may be liable, regardless of
whether it is caused in part by a party indemnified hereunder;
Contract between Co-Defendant, CCI, and Engineered Products, Inc. attached
hereto as Exhibit "B" (emphasis added).
24. The indemnification language contained within the contract between
Co-Defendant, CCI, and Engineered Products, Inc., is limited to injuries that are in
4
some way related to an act or omission, on the part of Engineered Products, Inc., its
employees or subcontractors in the performance of the contract.
Date: April 23, 2003
Respectfully submitted,
MARSH/ALL & HADDI
C L '
Francis E. Marshall, Jr., Esquire
Attorney I.D. No: 27594
Thomas M. Chairs, Esquire
Attorney I.D. No: 78565
20 South 36th Street
Camp Hill, PA 17011
(717)731-4800
Attorney for Engineered Products, Inc.
and Rotondo Weirich, Inc.
5
EXHIBIT A
KEITH E. and HOLLY M. JOHNSON,
h/w,
Plaintiffs
V.
CCI, ENGINEERED PRODUCTS, INC.,
And ROTONDO WEIRICH, INC.
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUN ?
CIVIL ACTION - LAW (+! ti!+, 1
? Ir
NO: 99-7382 ry t;'s
JURY TRIAL DEMANDED ` '. _..... ".
----------------
STIPULATION TO DISMISS ENGINEERED PRODUCTS, INC. AND ROTONDO WEIRICH, INC.
is hereby agreed by and betwen counsel all parties of recor Engiered
Products In
c. and Rotondo Weiri h, Inc. are volunta ilyfdismissed from his materlintaccord with
Pennsylvania Rule of Civil Procedure' 229.
Respectfully submitted,
MARSHALL & HADDICK, P.C.
Tho as M. Chairs, Esquire
Attorney I.D. No: 78565
20 So. 36t' Street
Camp Hill, PA 17011
20 South 36th Street
(717) 731-4800
Atty. for Engineered Products, Inc.
and Rotondo Weirich, Inc.
Date: 17 / 7 e 2-..
onan K. Zellner, Esquire
Attorney I.D. No.
THOMAS, THOMAS & HAFER, LLP
Michelle Thorpe, Esquire -
Attorney I.D. No.
305 No. Front Street
Harrisburg, PA 17101
(717) 237-7100
Atty. for CCI
Date: 4
P.O. Box 368
Camp Hill, PA 17001
(717) 975-9446
Atty. for Plaintiffs
EXHIBIT B
THE ASSOCIATED GENERAL CONTRACTORS O40
F AMERICA
STATE CORRECTIONAL INSTITUTTOta - unrnnonTara
®` E CCI CONSTRUCTION CO., M
?trt1?
NT O?ITT
Ie ,
SEP 04 1997
FOR
BUILD SUBCONTRACTING CONSTRUCTION O L
TABLE OF ARTICLES PROJECT NO. 445
1. AGREEMENT 5120-6
2. SCOPE OF WORK PHASE CODE
3. SCHEDULE OF WORK
ENGINEERED
4. CONTRACT PRICE PRODUCTS INC.
5. PAYMENT SUBCONTRACTOR
6. CHANGES, CLAIMS AND DELAYS Miscellaneous steel
7. CONTRACTOR'S OBLIGATIONS ck otion
annd joist o&
De
8. SUBCONTRACTOR'S OBLIGATIONS l
TYPE
OF WORK
9. SUBCONTRACT PROVISIONS
(4121 242-6900
10. RECOURSE BY CONTRACTOR PHONE NUMBER
- 11. LABOR RELATIONS
12. INDEMNIFICATION (4121 242-5203
FAX NUMBER
13. INSURANCE
14. ARBITRATION 02-296639
, "
15. CONTRAC f INTERPRETATION PA SALES TAX N0.
16. SPECIAL PROVISIONS
This Agreement has Important legal and insurance consequences. Conaultatlon with an attorney and Insurance consultant Is en.
couraged with respect to its completion or modification and particularly when used with other than AIA A201, General Conditions
of the Contract for Construction, 1887 edition.
AOC DOCUMENT NO. 600 • SUBCONTRACT FOR BUILDING CONSTRUCTION
G 1890, The Associated General Contractors of America
12
se rrfrc
sa ari
do ooO? r negli{fence of the Subcontractor or by a cause for which
ubcontrector would have been responsible.
r?lhes The Contract Price shall not be adjusted under this Ar.
asp title for any suspension, delay or Interruption to the ex.
ro tent that
interrupted by aocause for which the Subcon-
tractor would have been entitled only to a time extension
under this Agreement.
10.7 WRONGFUL EXERCISE. If the Contractor wrongfully
exercises any option under this Article, the Contractor
shall be liable to the Subcontractor solely for the
reasonable value of work performed by the Subcontrac.
tor prior to the Contractor's wrongful action, Including
reasonable overhead and profit on the Work performed,
less prior payments made, and attorney's fees.
ARTICLE 11
LABOR RELATIONS
(Insert here any conditions, obligations or requirements
relative to labor relations and their effect on the project.
Legal counsel is recommended.)
ARTICLE 12
INDEMNIFICATION
12.1 SUBCONTRACTOR'S PERFORMANCE. To the fullest ex-
tent permitted by law, the Subcontractor shall defend, in.
demnify and hold harmless, the Contractor (Including the
affiliates, parents and subsidiaries, their agents and
employees) and other contractors and subcontractors and
all of their agents and employees and when required of
the Contractor by the Contract Documents, the Owner, the
Architect, Architect's consultants, agents and employees
from and against all claims, damages, loss and expenses,
including but not limited to attorney's fees, arising out of
or resulting from the performance of the Subcontract pro.
vided that:
(a) any such claim, damage, loss, or expense is at.
tributable to bodily injury, sickness, disease, or
death, or to injury to or destruction of tangible pro.
perty (other than the Subcontractor's Work itself) in.
cluding the loss of use resulting therefrom, to the
extent caused or alleged to be caused in whole or
in part by any negligent act or omission of the Sub-
contractor or anyone directly or indirectly employed
by the Subcontractor or for anyone for whose acts
the Subcontractor may be liable, regardless of
whether it is caused in part by a party indemnified
hereunder;
(b' such obligation shall not be construed to negate, or
abridge, or otherwise reduce any other right or
obligation of indemnity which would otherwise ex.
ist as to any party or person described in this Arti.
cle 12.
12.2 NO LIMITATION UPON LIABILITY. In any and all claims
against the Owner, the Architect, Architect's consultants,
agents and employees, the Contractor (including its af.
filiates, parents and subsidiaries) and other contractors
or subcontractors, or any of their agents or employees,
by any employee of the Subcontractor, anyone directly or
Indirectly employed by the Subcontractor or anyone for
whose acts the Subcontractor may be liable, the indem•
nification obligation under this Article 12 shall not be
limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for
the Subcontractor under worker's or workmen's compen-
sation acts, disability benefit acts or other employee
benefit acts.
12.3 ARCHITECT EXCLUSION. Except as provided by the
Contract Documents, the obligation of the Subcontractor
under this Article 12 shall not extend to the liability of the
Architect, the Architect's consultants, agents or
employees of any of them, arising out of
(a) the preparation or approval of maps, drawings, opi-
nions, reports, surveys, Change Orders, designs or
specifications, or
(b) the giving of or the failure to give directions or in-
structions by the Architect, the Architect's Con-
sultants, and agents or employees of any of them
provided such giving or failure to give is the primary
cause of the injury or damage.
12.4 COMPLIANCE WITH LAWS. The Subcontractor agrees
to be bound by, and at Its own cost, comply with all federal,
state and local laws, ordinances and regulations
(hereinafter collectively referred to as "laws") applicable
to the Subcontractor's Work Including, but not limited to,
equal employment opportunity, minority business enter-
prise, women's business enterprise, disadvantaged
business enterprise, safety and all other laws with which
the Contractor must comply according to the Contract
Documents.
The Subcontractor shall be liable to the Contractor and
the Owner for all loss, cost and expense attributable to
any acts of commission or omission by the Subcontrac-
tor, its employees and agents resulting from the failure
to comply therewith, Including, but not limited to, any
fines, penalties or corrective measures.
12.5 PATENTS. Except as otherwise provided by the Con-
tract Documents, the Subcontractor shall pay all royalties
and license fees which may be due on the Inclusion of any
patented materials in the Subcontractor's Work. The Sub-
contractor shall defend all suits for claims for Infringement
of any patent rights arising out of the Subcontractor's
Work, which may be brought against the Contractor or
Owner, and shall be liable to the Contractor and Owner
for all loss, including all costs, expenses, and attorney's
fees.
ARTICLE 13
INSURANCE
13.1 SUBCONTRACTOR'S
Subcontractor's Work, the Subcontractor shalll procure for
the Subcontractor's Work and maintain in force Workers'
Compensation Insurance, Employer's Liability Insurance,
Comprehensive or Commercial General Liability Insurance
on an occurrence basis, and all insurance required of the
Contractor under the Contract Documents.
The Contractor, Owner and other parties as designated
in the Contract Documents shall be named as additional
insureds on each of these policies except for Workers'
Compensation.
AGC DOCUMENT NO. 600 • SUBCONTRACT FOR BUILDIh
1990, The Associated General Contractors of America
CERTIFICATE OF SERVICE
AND NOW, this 23rd day of April, 2003, I, Thomas M. Chairs, Esquire, hereby certify that I
did serve a true and correct copy of the foregoing Motion for Summary Judgment filed on Behalf of
Defendants Engineered Products, Inc. and Rotondo Weirich, Inc. upon all counsel of record by
depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill,
Pennsylvania, addressed as follows:
Darrell C. Dethlefs, Esquire
3805 Market Street
P.O. Box 368
Camp Hill, PA 17001
Counsel for Plaintiff
Michelle Thorpe, Esquire
Jim Thomas, Esquire
THOMAS, THOMAS & HAFER, LLP
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
Counsel for Def., CC/
Tho as M. Chairs, Esquire
(?:
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' C?gERLAND
INC. , LAW
MAOIC' ACTION
CINE Plaintiff CIVIL
v.
slid
HARVEY /dlb/a CIVIL TERM
SCOTT CHARLES HARVEY, No. 99-4895
COINS UNLIMITED'
Defendants COURT
ORDER Og of February, 2003,
AND NOW, this 19th day
Petition To open, and
Plaintiff's Pet el fosthe
deration of with coups
upon cOnsl conference in chambers eger, Esqul" and
following a of Robert W' Wa , and it
the Person Lanza Esqui
Plaintiff in is David J )f the
the Defendan ragraph
counsel for th no record' Pursuant to pa has bee ade by
appearing that November 18, 2002,
Petition
rt dated ing a sec
order of CO tha tiff will be fil , 13, 2003,
that Plain on Jar
Plaintiff' try of a notice othonotary,
based on the en nd Coun+
To Open case by the Cumberla ounty
sing this the Cu?berl
dismis gebruary 14' 200d iered and
and that on aced the said notice, it
Prothonotary vac tart' dated
directed as follows ice of the P1 2003,
The not nary 13,
order
e
vacating t
February 14' 2003, ,fendants to show
is itself vacated;
A rule is issued relief
2•
n
cause why ot entitle in the second
Plaintiff is
rel
requested, including the relief r
tgnr..?ti
\dw
Petition To Open to be filed by Plaintiff;
3. Defendants shall file an answer to the
petition within 21 days of the date of this order, without
prejudice to Defendants, right to include in the answer
contentions respecting waiver on the part of Plaintiff.
4. The petition(s) shall be decided under
Pa. R.C.P. 206.7;
5. Depositions shall be completed within 49
days of the date of this order;
6. Argument shall be held on Wednesday, May
21, 2002, at 3:30 p.m, in Courtroom No. 1, Cumberland
County Courthouse, Carlisle, Pennsylvania;
7. Briefs shall be submitted at least seven
days prior to argument.
By the Court,
c, a
J. esley O Jr.,
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
For the Plaintiff
David J. Lanza, Esquire
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
For the Defendants
,t7?LCC ; /? v a esp. ?, ?? /- 6.3
wcy
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Cinetnagic, Inc
Plaintiff
V.
NO. 99-4895 20
Scott W. Harvey and
Charles Harvey T/D/B/A
COINS UNLIMITED
DefendantpETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Robert' W Waeger counsel for the plaintiff/. in the above
action (or actions), respectfully represents that:
1. The above-captioned action (or actions) is (are) at issue.
2. The claim of plaintiff in the action is $ 25 000 ar a mi nimnm
The counterclaim of the defendant in the action is -0-
The following attorneys are interested in the case(s) w counsel or are otherwise disqualified to sit
as arbitrators:
NA
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to
whom the case shall be submitted.
Respectfully submitted, r
Robert W. Waeger,,Es
P.O. 234
HArrisburg, PA 17 8
ORDER OF COURT 717-783-3770
AND OW,
i
petition, ppEsq., and r!i/
200 S in consider 'on of the foregoing
Esq., and --????
. Esq., are app mted arbitrators in the above
captioned action (or actions) as prayed for.
By the Co 01144-4-\
IV r
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READING & SIGNING OF DEPOSITION
To be attached to the depositiWWAIrweldner
taken on:
byi?aren L. Blouch RPR RMR
in the matter olciaemag;° °S' Harvey
PAGE LINE CHANGE OR CORRECTION AND REASON
? x AAAGrr IOfl+ &G `iO?u2GID??l2'GPRdk In G)lfFid?i ,(/fFMG
I have inspected and read my deposition as captioned above and have listed all changes and corrections
above, along with my reasons therefore.
SIGNATURE:
DATE: 05fl7-/o3
DEPONENT INSTRUCTIONS
Do not write on the deposition itself.
2 Use1he attached form to make any changes and/or corrections.
3. Sign and date the form.
4. Return the Read & Sign Form *rAWA wmw*t within thirty (30) days to:
GEIGER & LORIA REPORTING SERVICE
2408 PARK DRIVE, SUITE B
HARRISBURG, PA 17110
5. Any questions, please contact Robin Smith at (717)541-1508 or 1-800-222-4577
PENNSYLVANIA RULES OF CIVIL PROCEDURE
RULE 4017. TRANSCRIPT OF TESTIMONY. OBJECTIONS. FILING
(C) When the testimony is fully transcribed a copy of the deposition with the original signature page shall be
submitted to the witness for inspection and signing and shall be read to or by him and shall be signed by
him, unless the inspection, reading and signing are waived by the witness and by all parties who attended
the taking of the deposition, or the witness is ill or cannot be found or refuses to sign. Any changes in form
or substance which the witness desires to make shall be entered upon the deposition by the person before
whom it was taken with a statement of the reasons given by the witness for making the changes. If the
deposition Is not signed by the witness within thirty (30) days of its submission to him, the person before
whom the deposition was taken shall sign it and state on the record the fact of the waiver or of the illness or
absence of the witness or the refusal to sign together with the reason, if any, given therefor; and the
deposition may then be used as fully as though signed, unless the court holds that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part.
FEDERAL RULES OF CIVIL PROCEDURE
RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(e) REVIEW BY WITNESS; CHANGES; SIGNING
(e) If requested by the deponent or a party before completion of the deposition, the deponent shall have 30
days after being notified by the officer that the transcript or recording is available in which to review the
transcript or recording and, if there are changes in form or substance, to sign a statement reciting such
changes and the reasons given by the deponent for making them. The officer shall indicate in the certifi-
cate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any
changes made by the deponent during the period allowed.
„aw COFeicWAR,t V ]EIDNER
FFIEf `?? HORACE A. lOHN50N
DU I??0{&CtOTE OF COUNSEL
?O=U `?SO?' A professions T STREET
301 MAlk 109 0109
11043-
DEPONENT INSTRUCTIONS
1 • Do not write on the deposition itself.
2. ". Use•the attached forrrr to make any changes and/or corrections.
3• Sign and date the form.
4. Return the Read & Sign Form
0""N0Mtiipt within thirty (30) days to:
GEIGER & LORIA REPORTING SERVICE
2408 PARK DRIVE, SUITE B
HARRISBURG, PA 17110
5. Any questions, please contact Robin Smith at (717)541-1508 or 1-800-222-4577
PENNSYLVANIA RULES OF CIVIL PROCEDURE
RULE 4017. TRANSCRIPT. OF TESTIMONY. OBJECTIONS. FILING
(C) When the testimony is fully transcribed a copy of the deposition with the original signature page shall be
submitted to the witness for inspection and signing and shall be read to or by him and shall be signed by
him, unless the Inspection, reading and signing are waived by the witness and by all parties who attended
the taking of the deposition, or the witness is III or cannot be found or refuses to sign. Any changes in form
or substance which the witness desires to make shall be entered upon the deposition by the person before
whom it was taken with a statement of the reasons given by the witness for making the changes. If the
deposition is not signed by the witness within thirty
whom the deposition was taken shall sign It and state on a es record t enfact of the waiver oreof the illllne s or of its to him, the
0
absence of the witness or the refusal to sign together with the reason, If any, given therefor; and the
deposition may then be used as fully as though signed, unless the court holds that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part.
FEDERAL RULES OF CIVIL PROCEDURE
RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(e) REVIEW BY WITNESS; CHANGES; SIGNING
(e) If requested by the deponent or a party before completion of the deposition, the deponent shall have 30
days after being notified by the officer that the transcript or recording is available in which to review the
transcript or recording and, if there are changes in form or substance, to sign a statement reciting such
changes and the reasons given by the deponent for making them. The officer shall indicate in the certifi-
cate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any
changes made by the deponent during the period allowed.
WEIDINER
S 1 ++ "N? 1 HORpCE A. lOHN50N
r' DUFFLE,
CO.Votation OF COUNSEL
]OHNSON, A pLOfesaion ET
0109
301 M Y 0. 13OL7VA109 NiA
17043-
• TERRY R. DUFFLE YENNSY STEWART LEb10YI"E' www-jaw-co,n
B$ITE?
RICHARD W. WE
C ROY WEIDNER- IR 61.4540 N0. 19
ONE 7)7.7 WRITER'S EXT
L ctw(?.Idsw.com
. t EDMUND G. MYERS TELEYH 717,161,3015
DAVID W. DELUCE PAGSIMILE E'Mp'I
dsw.com
?l
WRIGHT' IR' FiMAlL mail
RALPH H.
DAVID I. LANZA
MARK C. DUFFLE VlD50N
KEIRSTEN WAL5H DA
MICHAEL L CA551DY
March 29, 2000
Robert W. Waeger, Esquire
204 State Street
P.O. Box 234 8
Harrisburg, PA 1710 Scott vv. HarveY+ et al.
Re.. Cinemagic, Inc. v
No. 99-4895 Civil
Cumberland Co.C.C.P.
•
•
l.?w
you dropped off on orabout
i n
pear Bob: ts on
ortunity to review the materials that y propounded to yo
1 have had an oPP uest for Production of Documents 14, 2000 in response to the Req
1999. 3, 8, 13, 14, 18, 20 and 21 have
November 30, responsive to requests 1.
It appears that documents exist, except for the canceled checks that I requested in
been p checks.
rovi led to the extent that they appreciate being provided with those canceled
responsive material is
request number 18. I would our response stateSs that -1 rly iponse to requests
In response to requests 7 and 11, Y retrieved. obtained from the
stored electronically and is in the process of being being
then or
responses are that responsive information is receipts
ing thereon
our client's uest 2, you produced the same invoices
noth
9 and 12, Y onse to request number 1.
accountant.. I note also that in answer to req
roduced in resp
indicating that the materials on can enlighten me on that?sari y for the plotter as requestedin the
other documents that you P stored and
Y
indicate that the material is electronically
second request. Perhaps Y four
responses nearly
bee, sutricieril
,
being obtained from the accountant 1 submit that
To the extent that your ro nded should have onses to those
retrieved or that it is to be nests were Poou complete and verified resp
months that have elapsed since the req
Thus, unless we have full,
000, we will file our motion.
enough time April to 1 do 5, so.
requests by MIT 401 3"ffm
• Robert W. Waeger, Esquire
March 29, 2000
Page 2
As always, if you have any questions or comments do not hesitate unavailable, please feel free to peak with my legal ssistantaMi Michelle Ha y. if to call. If I am you call than during our normal business hours, which are 8:30 a.m. to 5:00 P.M. on Voice Mail extension is #19 and Michelle's is #31. Please feel free to leave amessage owith
either one of us, and we will return your call. If you would prefer, you may contact edthrough
my direct e-mail address, crwkid w om.
Very truly yours,
JOHNSON, DUFFIE, STEWART & WEIDNER
C. Roy Weidner, Jr.
mh:133060
10015-9
c: Scott Harvey
i
LAW OFFICES - ---
JOHNSON, DUFFIE, STEWART & WEIDNER
• JERRY R. DUFFIE
RICHARD W. STEWART
C. ROY WEIDNER. JR
EDMUND G. MYERS
DAVID W. DELUCE
RALPH H. WRIGHT, JR.
DAVID 1. LANZA
MARK C. DUFFIE
KDRSTEN WALSH DAVIDSON
MICHAEL 1. CASSIDY
A Professional Corporation
301 MARKET STREET
P. O. BOX 109
LEMOYNE, PENNSYLVANIA 17043-0109
WEBSITE: www.jdsw.com
TELEPHONE 717-761-4540
FACSIMILE 717.761-3015
E-MAIL mailajdsw.com
April 17, 2000
Robert W. Waeger, Esquire
204 State Street
P.O. Box 234
Harrisburg, PA 17108
Re: Cinemagic, Inc. v. Scott W. Harvey, at al.
No. 99-4895 Civil
Cumberland Co.C.C.P.
Dear Bob:
HORACE A. JOHNSON
OF COUNSEL
WRITER'S EXT. NO. 19
E-MAILcrw@jdsw.com
I will be satisfied to wait another week until your clients can generate the remaining
documents.
Very trul yo rs,
JOH
C. R5y \ffeidner, Jr.
mh:133681
10015-9
c: Scott Harvey
•
STEWART & WEIDNER
JZ
Weidner, C. Roy
From:
Igo
:
ant:
Subject:
Date and Time:
Message Type:
MessageReadPage:
Please Contact:
Re: Cinemagic If/LO
Hagy, Michelle
Tuesday, May 23, 2000 1:12 PM
Weidner, C. Roy
You received a Phone Call, contact Bob Waeger.
5/23/2000 1:08:00 PM
a Phone Call
a Phone Call
Bob Waeger
He said thanks for your ongoing patience. He has almost everything and will send very shortly. He said he would go
ahead and send some of the stuff now.
0
..-.
?-
?,
-
:.
?-- _,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CINEMAGIC, INC.,
PLAINTIFF
VS NO. 99-4895
SCOTT W. HARVEY AND CHARLES HARVEY CIVIL ACTION - LAW
T/D/B/A COINS UNLIMITED,
DEFENDANTS
DEPOSITION OF:
TAKEN BY:
BEFORE:
DATE:
PLACE:
CLINTON ROY WEIDNER, ESQUIRE
DEFENDANTS
KAREN L. BLOUCH, RMR
NOTARY PUBLIC
APRIL 30, 2003, 1:30 P.M.
JOHNSON, DUFFIE,
STEWART & WEIDNER
301 MARKET STREET
LEMOYNE, PENNSYLVANIA
APPEARANCES:
ROBERT W. WAEGER, ESQUIRE
FOR - PLAINTIFF MAY 0 5 2003
JOHNSON, DUFFIE, STEWART & WEIDNER jQjyNSO Dt??F?E
BY: DAVID J. LANZA, ESQUIRE STEWART AND WEIDNER
FOR - DEFENDANT
MARSHALL & HADDICK P.C.
BY: FRANCIS E. MARSHALL, JR., ESQUIRE
FOR - ROBERT W. WAEGER, ESQUIRE
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1?J
FOR DEFENDANT
C. Roy Weidner
by Mr. Waeger
INDEX
WITNESS
DIRECT CROSS
3
15
EXHIBIT
WEIDNER EXHIBIT NUMBER
1 - Letter dated March 29, 2000
2 - Letter dated April 17, 2000
3 - E-mail dated 5/23/2000
MARKED
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STIPULATION
It is hereby stipulated by and between
counsel for the respective parties that sealing,
certification and filing are waived; and that all
objections except as to the form of the question are
reserved to the time of trial.
C. ROY WEIDNER, called as a witness, being
sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LANZA:
Q This is the date and time set for the
deposition of Roy Weidner in this case.
Would you state and spell your name, for the
record.
A
Q
A
Q
A
Q
you focus on?
A
Clinton Roy Weidner, Jr.
Where do you work?
Johnson, Duffie, Stewart & Weidner.
You are an attorney?
Yes.
Do you have a particular practice area that
Civil litigation.
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Q How long have you been a litigator?
A Twenty-eight years plus.
Q Until recently, you have been
attorney-of-record in this case.
A Correct.
Q Is that correct? All right. How much of
that practice would you say is devoted to discovery
matters?
A Probably the large bulk of it. Most cases
get settled during discovery.
Q So you have handled a fair number of
discovery requests and objections and motions and related
proceedings?
A Correct.
Q First of all, I'm going to show you a
document that we have labeled in last week's deposition of
Mr. Waeger from April 24th as Defendant's Exhibit Number 1.
I'm not going to remark it or reintroduce it here, but do
you recognize that?
A Yes.
Q It's labeled Request for Production of
Documents from defendants to the plaintiff. Is that
something you sent to the plaintiff in this case?
A I sent it to Mr. Waeger.
MR. LANZA: Do you want to see it, Bob?
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MR. WAEGER: No, I'm sure that's what it is.
BY MR. LANZA:
Q What was the importance of that request?
A Well, the plaintiffs had filed a
multi-count, I would call it, commercial complaint against
our client. And the request was to obtain documents
related to the various counts in the complaint, obtain
discovery of those documents for review by me, perhaps the
client, perhaps by others.
Q Has the plaintiff fully complied with this
request?
A No.
Q How did they respond?
A There was a partial response in that I
received some documents responsive to certain of the
requests, no documents responsive to others of the request.
(Letter dated March 29, 2000 marked as
Weidner Exhibit Number 1.)
BY MR. LANZA:
Q I'm going to show you what we're going to
have labeled Weidner Exhibit 1 and ask if you recognize
this.
A Yes.
Q Is that a letter you sent to Mr. Waeger?
A Yes.
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Q Can you just summarize what that is, for the
record.
MR. WAEGER: Maybe just an objection, for
the record, I think that even though you are going to ask
him to summarize it, I think that the wording and the
document itself speaks for itself.
MR. LANZA: Certainly.
A It basically tells him what I found on my
review of the documents that he did provide in response to
the request for production of documents, those that I
thought had been responded to adequately, those that I
thought there was no response to or that were not
adequately responded to.
MR. LANZA: I'm going to ask that that be
marked.
BY MR. LANZA:
Q Did he respond to your letter, to the best
of your recollection?
A My recollection is that at some point I got
a letter from him suggesting that either I look at a
computer; or that it would take another week for him to get
the documents assembled to respond to the request as I had
outlined my concerns on the March 29, 2000 letter.
Q I'm going to show you a document that was
labeled last week on the 24th as Waeger Exhibit 4. It's a
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letter dated April 17, 2000. Do you recognize that?
A That's the letter I just referenced where,
as I read it, the -- it said I could look at a computer,
have a paralegal look at a computer, and stated otherwise,
it will be another week or so until all of the discovery
items not furnished to date can be generated.
Q As far as having you or a paralegal go and
look at a computer, would that have been a proper response
to your discovery request?
A I didn't view it as one. I don't think it
complies with the rules. I'm not very computer savvy, so
that probably would not have done me any good. I don't
think anybody else would know what I'm looking for in
response to the request for production of documents, so I
don't know how they could do it.
Q Did Mr. Waeger ever actually identify what
you would be looking at on the computer screen?
A Not that I know of. That letter is
basically what I recall receiving.
Q There was testimony, I am summarizing
because we don't have the transcript at this point, there
was testimony last week on the 24th from Mr. Waeger that
you could have sent an assistant or someone else to look at
something, to look at this, instead of yourself, based on
your own proficiency issues. Do you recall that
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suggestion?
A The suggestion's in the letter.
Q You recall him making it at any other point,
over the phone or anything like that?
A I don't have a recollection of a phone
conversation like that.
Q Would it have been good practice, in your
opinion and experience, to send an administrative assistant
in your place to look at discovery items?
A No, because they would not know what I'm
looking -- what I'm looking for.
Q You also suggested last week, and again I'm
summarizing, but the record will speak for itself, that you
could have sent a computer technician or hired an
accountant to go look at this computer. Do you recall any
suggestion like that?
A Not other than is in this letter, being
Waeger 4.
Q Would that have been a reasonable option, to
hire a computer technician or an accountant to go look at
the computer?
A No. Particularly not if he's going to have
the documents ready in another week, which is what the last
sentence of the -- the next to the last sentence of the
letter says. They wouldn't know what I'm looking for. And
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logistically, it probably would have taken a week to
arrange it in any event.
(Letter dated April 17, 2000 marked as
Weidner Exhibit Number 2.)
BY MR. LANZA:
Q I'm going to show you what we will have
labeled as Weidner Exhibit 2 and ask if you recognize that.
A That's a letter I sent out on April 17,
2000, in response to the letter I got from Mr. Waeger
basically stating I'd wait the week to get the documents.
Q That was basically the option he gave you on
his April 17th letter?
A As I read it. The next to last sentence
was, quote, otherwise, it will be another week or so until
all of the discovery items not furnished to date can be
generated, period, end quote.
Q Do you recall receiving any response from
Mr. Waeger to that letter?
A No.
Q Or whether anyone on your staff received a
response?
A I have no indication a staff person received
a response to that letter. I ultimately got word that he
had left a voice mail about the situation.
(E-mail dated 5/23/2000 marked as Weidner
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Exhibit Number 3.)
BY MR. LANZA:
Q I'm going to have this labeled as Waeger
Exhibit 3 and ask if you recognize that.
A That is an e-mail from my legal assistant to
me indicating that Mr. Waeger had called and left a voice
mail, or a phone message, with her, and basically giving me
what he said. It says, he said thanks for your ongoing
patience. He has almost everything and will send it very
shortly. He said he would go ahead and send some of the
stuff now.
I had this -- I printed this out, as I
usually do, hard copy it, wrote file on it, and it was put
in the file.
Q That was done contemporaneously with your
receipt of the document, your receipt of the e-mail?
A It may not have been contemporaneously. I
typically store a-mails for maybe -- and at the end of the
week I print them out for filing. So that that may have
been in the system for -- it was read immediately. Then it
would have been maybe stored for a couple days until I
print out the e-mail for filing.
Q That's something you have kept in the file
ever since?
A That was in the correspondence section of
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the file.
Q Did Mr. Waeger ever express to you a concern
regarding confidentiality of any of the documents?
A Apparently he did, because I wrote him a
letter about a confidentiality agreement, or confirmed
something about a confidentiality agreement.
Q Do you recall what you asked, if you asked
him to do anything about that, or to pursue -- how you
pursued that issue?
A My recollection is I said prepare a draft
confidentiality agreement, let me take a look at it.
Q Did you ever receive a draft copy of the
confidentiality agreement?
A No.
Q Did you ever hear anymore about
confidentiality?
A Not based on my present recollection.
Q Did he ever serve or send you an objection
to any of your discovery?
A Not that I know of or have in the file or
can remember.
Q Did he ever serve you with anything like a
privilege log or any other list or item identifying
documents that he might want to exclude or protect?
A I never recall getting it, nor do we have
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one in the file.
Q The issue, to the extent that there was an
issue related to what might or might not have been on
plaintiff's computer, did that issue, was that issue
responsible for the delay that has occurred in this case?
A No.
Q Essentially he could have simply supplied
the documents you were requesting a couple years ago and
been done with it.
A That was my understanding based on the
letter I wrote to him about the computer situation and
based on the phone message I got, that he was going to work
on it and get the documents.
Q So how did you leave the issue with
Mr. Waeger?
A Probably as it stands with that voice
message or telephone message that was relayed to me in May
of 2000.
Q Did you ever file a motion to compel him to
do anything further?
A No.
Q Why not?
A I didn't view it as my place to do that. It
was his obligation to move his client's case forward.
Q Were there ever any settlement discussions
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that you can recall in this case?
A Insofar as numbers are concerned, not that I
can recall. There may have been a mention by Mr. Waeger of
he'd like to get the case settled. But nothing that ever
indicated that there was a realistic possibility of
settlement.
Q So they never got to the point where
settlement discussions would have provided a reason to
delay other aspects of the case?
A I never saw anything that indicated that
this case had any likelihood of settlement.
Q Do you recall discussing depositions with
Mr. Waeger?
A I don't think they were face-to-face
discussions of depositions. I think there may have been a
phone -- Mr. Waeger and I did a lot by voice mail. I think
he left voice mails for me. And I tried to reach him back.
And I don't know, very few times did I get him instead of
voice mail. So I left voice mails typically. And I -- I
know that there was one where he -- I got the word either
through a phone message or voice mail that he wanted to
depose Mr. Harvey.
Q Did you ever provide him with available
dates?
A I voice mailed him back and told him three
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dates, as I recall, in November of last year, that I could
do depositions. And I think I wanted to depose his
clients. But probably would not -- well, I wouldn't have
deposed them until I had my documents, or his documents.
But I gave him dates that I could do depositions.
Then I know I confirmed that in a letter.
And I had to remove one of the dates from the letter
because another notice of deposition in another case had
come in, so I couldn't do it on that date, one of the
dates.
4 I'm going to show you what was labeled last
week as Waeger Exhibit 3. It purports to be a letter over
your signature.
A That's what I was just talking about. I
left a voice mail about my availability to do depositions,
and some dates in November of last year. Then I
postscripted it because of that intervening notice of
another deposition to indicate November 5th was not
available.
4 That's written September 27th, 2002. Did
you ever receive a response to that letter?
A Not to my recollection. I don't have any
recollection of anything happening on this case after that
until it got on the list.
MR. LANZA: I don't have any further
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questions. Your witness, Bob.
CROSS-EXAMINATION
BY MR. WAEGER:
Q Maybe we will start backwards first. You
did talk about whether there was any possibility of
settlement, and you were asked a question with regards to
other cases, I believe. I think we can go back and find
the actual question.
MR. WAEGER: I think you said something to
the effect of were there any settlement discussions on this
case. Is that correct?
MR. LANZA: Something like that, yes.
MR. WAEGER: And he answered.
BY MR. WAEGER:
Q Roy, are you aware of any other cases that
I've had representing Cinemagic with regards to being a
litigation against the Harveys?
A No. Well, there was the replevin action
Dave DeLuce handled here, D-E-L-U-C-E.
Q That's correct. Are you aware, I realize
the record will speak for itself, but after the ultimate
decision by the court, there needed to be some settlement
negotiations between myself and Dave with regards to
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returning some of Harveys' equipment to them.
MR. LANZA: I'm just going to put an
objection on the record as it relates to other suits or
settlement discussions that would have related to other
suits just on the grounds of relevance. Go ahead, answer.
A I'm not aware of what transpired as far as
the return of the property that was involved in the
replevin action.
BY MR. WAEGER:
4 With regards to some other case that
ultimately did not get in litigation, were you aware of a
lease arrangement that was a contract signed between the
parties that I think your partner --
A Jerry Duffie.
4 Jerry Duffie handled -- I just saw him
outside -- that also ultimately got resolved and
compromised over time?
MR. LANZA: Same objection. You can answer.
A I'm aware that there was an issue about a
lease. I, today, cannot tell you that I know that that
issue is, in fact, settled. It may be that I saw something
on that, but at this moment, I couldn't tell you it settled
or not. I imagine it -- well, I don't know.
BY MR. WAEGER:
4 Knowing about those, at least generally
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knowing about those two cases that I can tell you occurred
during the same time frame as this lawsuit, do you think
that -- or are you aware of conversations that you would
have had with your partners or with your client, without
disclosing what your client said, that there is a distinct
probability that cooler heads needed to prevail before this
particular case that we're here on today could have come to
some settlement, meaningful negotiations?
A I don't understand your question.
MR. LANZA: I'm going to object also just to
the extent that it calls for attorney-client privilege or
speculation.
MR. WAEGER: I'm not asking him --
MR. LANZA: I understand.
MR. WAEGER: I will rephrase the question.
BY MR. WAEGER:
Q Knowing that we had, between these two
clients, an issue over a lease that ultimately got
resolved, and knowing that we had a litigation over a
replevin where there was return of property, even though
Cinemagic won the replevin action, ultimately got resolved,
are you aware, with your general knowledge of those two
cases, whether you -- and are you aware of any conversation
that you have had with your partners or with this client
with regards to how difficult or not difficult it might
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have been to get this particular case settled while those
litigations were ongoing in those other two cases?
MR. LANZA: I'm going to renew my objection.
Just for the record, the only relevant test for the purpose
of determining the outcome of this motion, of this
proceeding, is under the Jacobs test. Whether or not, at
least as it relates to settlement discussions, whether
settlement discussions delayed the proceedings in this
case, not whether or not it was possible. I think you are
getting --
MR. WAEGER: And my offer of proof, be it
said, is that I say that part of the alleged delay in this
case had to do with a lawyer's strategy, and I underline
that word strategy, in dealing with these two clients and
how they interreacted with each other.
We were already aware that they have had two
prior, we will call them litigation issues, although one
was not in court. And my question is, knowing that history
between these two clients, is Roy aware that that might
have delayed meaningful settlement negotiations.
I think that's a fair question, and I think
he has to say yes or no.
MR. MARSHALL
You have your objection on
the record.
MR. LANZA: If he can answer, he can answer.
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MR. WAEGER: And I'm not -- I'm sorry, Roy,
I didn't mean to interrupt you.
I'm not asking him to divulge any
partnership conversations or any conversations he had
directly with his client. Just in general, is he aware of
the animosity between the parties, and would that have
precluded meaningful settlement negotiations in this
matter.
A Am I aware of the animosity between the
parties, and do I think it would have precluded meaningful
settlement negotiations.
BY MR. WAEGER:
Q Yes, that's the question.
A From what I know, the animosity between the
parties was sufficient for me to believe that this case
would not settle.
Q That's fair. And part of what is the basis
of your knowledge is the two prior, I'm loosely calling
them litigation issues, that were previously mentioned?
A No. My basis is what had transpired in this
case and this underlying scenario.
Q That's fair. We talked about one of the
documents there where, I'm not sure I wrote down what it
was numbered, but where I said that -- where I said, I
believe, on -- where I said on April 17th, and you
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responded on April 17th about generating some additional
documents. Do you have an independent recollection that,
in fact, I brought over some additional documents in
response to the discovery request?
A I don't have an independent recollection of
that. The file of date stamped materials may indicate when
documents were brought in. I think you brought in
documents, but I think that was maybe the original batch.
But you may have brought in documents. I can't say you
did; I can't say you didn't, as I sit here today.
4 You might have been asked this already. You
have never filed a motion to compel or any kind of a
request for production of documents?
A I did serve you --
4 Since the first one.
A No, I served you with the first and only
one. And I did not file a motion to compel, as previously
answered.
4 When I offered to you both in writing and
verbally the issue of coming to my client's office to
secure some documents off their computer, do you think that
in any way limited your ability to obtain discovery in this
matter?
A First of all, I don't recall you verbally
doing it. Secondly, you did it in writing. And I
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responded in writing. And all I can tell you is that I
said I would -- I viewed it as having an option. I could
do the computer way, or wait another week as per your
April 17 letter. I told you I would wait the other week.
I don't know if that's an answer to your question or not.
Q Okay. After that letter of April of 2000, I
want to make sure I understand, you never sent any other
records with regard to discovery or filed any motion to get
discovery complete?
A I don't have a recollection of doing it.
There's nothing in the file to indicate that I did it. The
only other thing in the file regarding your response to
discovery that I was able to find was that transcript of a
phone message from my legal assistant to me that you had
called on or about May 23rd and said you would have the
remaining materials and were working on it, or whatever it
says.
Q I think you have already -- it is a fact
though in either October, at some point in the month of
October or at least in some part of early November, our
offices, my office and your office, had communications with
regards to attempting to find some amenable deposition
dates for the two of us. And I think that was responded to
in a letter by you dated September 27, 2002.
A Right. Waeger Exhibit 3, I think,
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memorializes that I at least left you a voice mail probably
in response to a voice mail from you or some similar
message talking about dates in early November that I could
do some depositions that you want to do.
Q In that, I know you testified here today
that you also said that you would have not completed these
depositions without completion of discovery, but that
letter doesn't say that, is that correct?
A No, it tells you that I want to depose your
clients and any witnesses that you are going to call at
trial. It doesn't necessarily mean that I'm going to
depose them at that time. You were asking for a date to
depose Scott Harvey.
Q Right. So other than this letter, your
office has never sent me a letter that said this discovery
must be completed for us to complete any other depositions
other than the ones that were talked about in this letter?
A No. I never sent you another letter. That
was the last letter I sent you in regard to depositions.
Q Did you ever send a letter to Mr. Waeger
advising that you needed the documents before any of the
depositions were taken?
A No. I was just alerting you to the fact
that I wanted to take people's depositions in this case.
MR. WAEGER: That is all I have. That's
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all. Thanks.
(The deposition was concluded at 2:05 p.m.)
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STATE OF PENNSYLVANIA
ss
COUNTY OF LEBANON
I, Karen Slouch, a Reporter Notary-Public,
authorized to administer oaths within and for the
Commonwealth of Pennsylvania and take depositions in the
trial of causes, do hereby certify that the foregoing is
the testimony of C. Roy Weidner.
I further certify that before the taking of
said deposition, the witness was duly sworn; that the
questions and answers were taken down stenographically by
the said reporter Karen Blouch, a Reporter Notary-Public,
approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the proceedings and
evidence contained fully and accurately in the notes by me
on the within deposition, and that this copy is a correct
transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this 1st day of May, 2003.
__ r n L. B cYn''?R,
My commission expires:
October 14, 2005
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
By No ah kfi,a Stewart & Weidner
I.D. 55782
301 Market Street
p. 0. Box 109
Lemoyne P
(717) 61' ennsylvatlla 17043-0109
4540
CINEMAGIC, INC.,
Plaintiff
V.
SCOTT W HARVEY and
t/d/b/a COINS UNLIMITED, CHARLES HARVEY,
Defendant
TO THE CLERK OF COURT:
DEPOSRT NAECIPE S 1I FILE'
,ftSCRIPTS
CIVIL ACTION - LAW
Kos Please file of record the De
tukovich and the exhibits thereto,position
Transcripts of C. Roy Weidner, Robert W. Waeger and John
Respectfully submitted,
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9-4895
JOHNSON, DUFFIE,
®STEWAR7-g tyE1DNER
By_
David J! La? Za ??
Dated: p 3 Attorney LD. No. 55782
273460 301 Market Street
P O• Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761.
Atto 4,540
rneys for Defendants
1 1
CEO OFOF S?RV
AND NOW this
serve a copy of the fore
gom day of May, 2003, undersigned does hereby certify that she did this date
the United States g document upon the othb
Mail, first Gass arties of record by causing same to be deposited in
Postage prepaid, at Lei
yne, Pennsylvania, addressed as follows:
Robert W. WaegeEsquire
204 State St,.t
Harrisburg, PA j101
OHNSON, DUFFIE, STEWART & WEIDNER
By:_ 1
Jennifer ff. Bixie.
2
,?
4
RICHTER
757 Route 113
Souderton, PA 18964
AC:CC3unt P
REMIT PAYMENT TO
P O BOX 286
SOUDERTON, PA 18964
15164
TEL; (215)723-3900
1-800.7-PRINTS
FAX: (215) 723.6803
CHIARGE
CINEMAGIC
P 0 BOX 992
CAMP HILL.
PA 17011 0992
CAL IJ-2055-BK
CAL IJ-2055-C
CAL IJ-2055-M
CAL IJ-2055-Y
CAL IJF'-GLO13SY-R3
FREIGHT-UC
•
Who C1.11(ad : I._
INK JET CARTRIDGE, BLAC
INK JET CARTRIDGE, CYAN
INK JET CARTRIDGE, MAGE
INK JET CARTRIDGE, YELL
36"XI50'INK JET GLOSSY
FREIGHT CHARGES
I. SE.
INVOICE
TERMS: NET 30 DAYS
F'atatz I. 100/ 1E f.
PO 444261,38 Routte UPS
CIhIEMAiDIC
,UIT'I'm 402
3607 ROSE:11OI,IT ()Vl--
CAMP HILL
P e>t 1 70:i. ].
6 6 24.95 E 2Q.9 c 19.9.6 119.7,~
6 b 28.95 EA 20.0 23.161 L3c1.91)
6 2 4 28.95 E 20.0 23.16:: 92. u4
8 8 228.95 EA 20.0 S 23.161 1^35.20
1 1 375.00 R 30.0 262.5i._: 262.`0
1 1 B.49 E 8.4911 I 6.49
THANK YOU! WE APPRECIATE YOUR BUSINESS!
Total Invoice DISCOUNT IS $ 246.66 For a 223.4% SAVINGS.
CREDIT AND RETURN POLICY: Stock materials may be returned within 30 days of purchase (in original carton) for exchange
or full credit. No material accepted for credit without prior authorization and our invoice number furnished. Past due invoices are
subject to 1 $% per month (18% per annum) service charge per month.
0
AND OFFICE SUPPLY CO., Inc.
SUB
TOTAL .-: ;1
\I?
RICHTER
FTING AND OFFICE SUPPLY CO., inc
113 TEL: (215)723-3900
PA 18984 1-800-7-PRINTS
REMIT PAYMENT TO FAX: (215) 723-6803
P O BOX 286
SOUDERTON, PA 18964
Fl!] coLU'i i_ y 15164
CIFIEI'Ir41;;T.C
P U BOX 9 9
C,AIYIF:' 11111.
PA 17011 0992,
INVOICE
77
TERMS: NET 30 DAYS
36 07 F'0?31:. PION f- C"Vj
CAMP IATLI..
CAL IH-955-C
CAL IH-955-11
CAL IH-955-Y
FREIGHT-UC
n
lU
Who :: I:..
BLACK HEAD k: CARTI-"! iG
CYAN HEAD S CARTRIDGE
IIAGENTA HEAD R: CARTRIA11
YELLOW HEAD & CARTR;1$GE
FREIGHT CHARGES
i'
4 4 a r I'I'
4 4 42.95 F'K 20.0
\4 4 42.95 Pli 2x0.0
4 . ..\ 4 4 95 Pk 20.1
THAN: YOU! WE APPRECIATE YOUR BUSINESS!
1160.68 For ii 19.9%.
:y'v'.tl+lii^+
CREDIT AND RETURN POLICY: Stack materials may be returned within 30 days of purchase (in original carton) for exchange
or full credit. No material accepted for credit without prior authorization and our invoice number fumished. Pest due invoices are
subject to 1 Yx % per month (18% per annum) service charge per month.
:(_7.44
.,qVl
TOTAL \•I 4iii
r
f 1
L_J
SENTINEL-1/0-IMAGING
Oirdion w5entrW suareu sNxme, me FEDERAL ID# 02-0469850
747 PORTSMOUTH AVENUE ¦ GREENLAND, NH 03840
603.427.1911 ¦ PAX 603.427.1912
•
Invoice No: 040934
Date: 01/21/98
Page No: 1
Sold CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 402
CAMP HILL, PA 17011
Ship Via: OVERNIGHT
Ship Date: 01/20/98
Terms: 1/10, NET 30
Ship CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 402
CAMP HILL, PA 17011
Cust No: CINE01
P.O. No: 43056-LOUISE
Order: 038047
Sales Rep: AS
Item I. D.
Description
GDG36100-7.SM02
GRAPHIX DISPLAY GLOSS
•
Qty Ordered Qty Shipped Unit
3
3 EACH
Price
130.00
LOUISE HANLEY 717-737-4683 Sale Amt
Miscellaneous
Freight
• Sales Tax
Total
Cartridges and now the Sent;nat sir„1.... ?_.. - Extension
-- ----- --- ------ -- -----
****YOUR IMAGING PRODUCTS EXPERTS**** We offer the FINEST in Inkje
390.00
3910. 00
.00
53.89
.00
443.89
dia, Inks,
SENTINEL `'* 'IMAGING
alAUn ms.nM1Srewai... seisms, m?. FEDERAL IDk 02-0469850
747 PORTSMOUTH AVENUE • GREENLAND, NH 03840
603.427.1911 • FAX 603.427.1912
•
Invoice No: 040939
Date: 01/221/98
Page No: 1
Sold CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 402
CAMP HILL, PA 17011
Ship Via: GROUND
Ship Date: 01/20/98
Terms: 1/10, NET 30
Ship CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 402
CAMP HILL, PA 17011
Cust No: CINE01
P.O. No: 43056-LOUISE
Order: 038052
Sales Rep: AS
Item I. D. Qty Ordered Qty Shipped Unit Price Extension
Description
GDG36100-7.5MO2 11 11 EACH 130.00 1,430,00
GRAPHIX DISPLAY GLOSS
G 4100-7.5MO2 1 1 EACH 95.00 95.00
APHIX DISPLAY GLOSS
Z
-----------------------------------------------------
Sale Amt
1, X5,00
LOUISE HANLEY 717-737-4683 Miscellaneous ,00
SHIP WITH SAMPLES Freight 44.48
• Sales Tax ,00
Total 1,569.46
--------------------------------------------------------------------------------
f***YOUR IMAGING PRODUCTS EXPERTS**** We offer the FINEST in Inkjet Media, Inks,
:artridges and now the Sentinel "Color Ivey" system for your LM Displaymaker.
SENTINEL AMAGING
a"W^a9uaaw. synw, me FEDERAL IDN 02-0469850
747 PORTSMOUTH AVENUE ¦ GREENLAND, NHO3840
603.427.1911 ¦ FAX 603.427.1912
•
Invoice No: 043775
Date: 03/16/96
Page No: 1
Sold CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 402
CAMP HILL, PA 17011
Ship Via: GROUND
Ship Date: 03/13/98
Terms: 1/10, NET 30
Ship CINEMAGIC INC
To 3607 ROSEMONT AVE.
SUITE 40^c
CAMP HILL, PA 17011
Cust No: CINE01
P.O. No: 43128
Order: 040881
Sales Rep: AS
Item I. D
G.ty Ordered Oty Shipped Unit
Price Extension
GDG36100-7.5M02
GRAPHIX DISPLAY GLOSS
•
12 lc EACH
122. 00 1,464.00
LOUISE HANLEY 717-737-4683 Sale Amt 1,464.00
Miscellaneous ,00
Freight 44.61
• Sales Tax 00
Total 1,508.61
---------------- _____________________________ ____
****YOUR IMAGING PRODUCTS EXPERTS**** We offer the FINEST in Inkjet Media, Inks
Cartridges and now the Sentinel "Color Key" system for your LM Displaymaker.
92/01/2000 16:48 717-730-0821
• JOHN S. KOSTUKOVICH
Certified Public Accountant
To:
Cc:
Phone:
From:
Date:
RE:
JS KOSTUKOVICH, CFA
PAGE 01
• No. of pages, including cover sheet:_
Comments:
CONFIDENTIALITY NOTE: The Documents accompanying this fax transmission
contain information from the office of John S. Kostukovich, CPA, which is confidential
and/or legally privileged. The information is intended only for the use of the individual
or the entity named on this transmission sheet. If you are not the intended recipient, you
are hereby notified that any disclosure, copying, distribution or the taking of any action in
reliance on the contents of this information is strictly prohibited, and that the documents
should be returned to John S. Kostukovich, CPA immediately. In this regard, if you have
received this FAX in error, please notify us by telephone immediately so that we can
arrange for the return of the original documents to us, at no cost to you.
•
EXHIBIT
1104 Fernwuad Avenue* Suite 302
Camp Hill, PA 17011 Glro2?t?y,?-?
Phone: (717) 730-0820 • Fax: (717) 730-0821
02/01/2000 16:48
r?
Form Corp
Nam
717-730-0821
JS KOSTUKOVICH, CPA
SUPPLEMENTAL SCHEDULE
SUMMARY SCHEDULE FOR DEPRECIATION
BUSINESS ACTIVITY:
DESCRIPTION
TELE EQUIP
EUUNET TECH EQP
OFFICE FURNITU
OFFICE FURN
OFF FURN HBG 0
OF FURN PA TEL
OFFICE FURN
TOTALS
***
DESCRIPTION
?EO EQUIPMBN
VIDEO CAMERA C
VIDEO EQUIPMEN
TELEPHONE SYST
COMPUTERS
FURNITURE
COPIER,
TELEPHONES
FURNITURE
OFFICE FURNITU
OFFICE FURN
EQUIPMENT
EQUIPMENT
FURNITURE
FURNITURE
FURNITURE
FURNITURE
.EQUIPMENT
..EQUIPMENT
,EQUIPMENT
FURNITURE
OFF FURN
TOTALS
*** MACRS ASSETS PLACED IN SERVICE IN
DATE COST/ REC ACCUM/
ACQ BASIS PRD MTH ^-
SEC 179
- 04/96 3,994E5
12/96 3,951 5
05/96 200 7
09/96 665 7
12/96 2,290 7
12/96 320 7
10/96 732 7
12,152
MACRS ASSETS PLACED
DATE COST/ REC
ACQ BASIS PRA
01/92 2,58 5--
01/92 38 5
06/92 1,20Q?5
12/94 4,408E5
12/94 2,404E5
12/95 2,840 5
12/95 1,8031-5
12/95 746`5
01/92 505 7
07/92 127 7
07/92 274 7
12/92 1,459 7
12/93 10,898 7
11/93 214 7
11/93 210 7
12/94 8,193 7
09/94 350 7
02/94 1,107 7
06/94 165 7
06/94 899 7
09/95 260 7
11/95 3,105 7
*
44,128
QB2 3,994
QB2 3,951
QB2 200
QB2 665
QB2 2,290
QB2 320
QB2 732
12,152
IN SERVICE PRIOR
ACCUM/
MTH SEC.179
DB2 -
2,134
DB2 315
DB2 992
DB2 2,292
DB2 1,250
DB2 568
DB2 361
DB2 149
DB2 347
DB2 87
DB2 188
QB2 946
DB2 10,898
DB2 214
DB2 210
DB2 3,177
DB2 136
DB2 428
DB2 64
DB2 348
DB2 37
DB2
25,141
6,436
467
20
63
10
51
28
329
1,809
NEXT YR
DEDUCT
NEXT YR
-DEDUCT
149
22
69
508
277
545
346
143
45
11
24
127
1,023
44
138
21
112
45
543
,;,192
*** GRAND TOTALS ***
COST/ ACCUM CURRENT EXCESS NE>" YR
BASIS DEPR. DEDUCT DEPR D!JUCT
GRAND TOTALS: 56,280 37,293 _ 6,436 1,809 a;192
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a
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PAGE 02
For Tax Year
1996
Employer ID Number
25-16 7660
1996 : ***
CURRENT EXCESS
DEDUCT DEPR
------- -------
TO 1996: ***
CURRENT EXCESS
DEDUCT
------- - DEPR
297 -----
--133
44 -19
138 -62
846 326
462 33
909 515
577 117
239 49
45 1
11
24
146 14
1,433
61
194
29
157
64
760
02/01/2000 16:48 717-730-0821 JS KOSTUKOVICH, CPA PAGE 0
SUPPLEMENTAL SCHEDULE
Form Corp For Tax Year
Summary Schedule for Depreciation Form 1120 7997
Name
--T Irzo-r
Cinema iC Inc. Employer ID Pd,
25-161:766
60
Business activity:
*** MACRS Assets placed in service in 1997 ***
Date Cost/ Rec Accum/ Current Excess Next Yr
Description acq basis prd Mth Sec.179 Deduct Depr Deduct
_ ------- ------- -------
Furniture & Fi 06/97 472 7 D32 67 32 - 116
Furn & Fix 12/97 18,200 7 DB2 18,000 29 14 49
------- -------
TOTALS -
18,672 18,000 96 46 165
**** MACRS Assets placed in service prior to 1997: ***
Date Cost/ Rec Accum/ Current Excess ext Yr
Description acq basis rd Mth Sec.179 Deduct Depr Deduct
-----------
Video Equipmen 01/92 2,580 5 DB2 2,431 149 -66
Video camera C 01/92 381 5 DB2 359 22 -10
Video Equipmen 06/92 1,200 5 DB2 1,130 69 -31
Telephone Syst 12/94 4,408 5 DB2 31138 508 66 508
Computers 12/94 2,404 5 DB2 1,712 277 -124 277
rniture 12/95 2,840 5 DB2 1,477 545 210 327
opier 12/95 1,803 5 DB2 938 346 24 208
Telephones 12/95 746 5 DB2 388 143 10 86
`!'ele Equip 04/96 3,994 5 QB2 3,994
TMet Tech Eqp 12/96 3,951 5 QB2 3,951
,furniture 01/92 505 7 DB2 392 45 1 45
Office Furnitu 07/92 127 7 DB2 98 11 11
Cffice Furn 07/92 274 7 DB2 212 24 24
F4uipmc:nt 12/92 1,459 7 QB2 1,092 127 127
Equipment 12/93 10,898 7 DB2 10,898
Furniture 11/93 214 7 DB2 214
Furniture 11/93 210 7 DB2 210
Furniture 12/94 8,193 7 DB2 4,610 1,023 202 731
Furniture 09/94 350 7 DB2 197 44 9 31
Equipment 02/94 1,107 7 DB2 622 138 27 99
Equipment 06/94 165 7 DB2 93 21 4 15
Equipment 06/94 899 7 DB2 505 112 22 80
Furniture 091/95 260 7 DB2 101 45 14 32
Office Furnitu 05/96 200 7 QB2 200
Office Furn 09/96 665 7 QB2 665
Off Furn Hbg 0 12/96 2,290 7 QB2 2,290
Of Furn PA tel 12/96 320 7 QB2 320
Office Furn 10/96 732 7 QB2 732
Off Furn 11/95 3,105 7 DB2 760 543 177 388
-
?OTALS 56,280 43,729 4,192 535 1,939
NT F zees
02/01/2000 16:48
Form Corp 717-730-0821 JS KOSTUKOVICH,
SUPPLEMENTAL SCHEOULE-
Summary Schedule for Depreciation CPA PF 01
Fa T Ymr
Form 1120 398
....
NWM Cmp$uyer I Number
Cinemaaic Inc. 25-16G 50
Business activ ity: Form 1120
*** Unc lassified ***
Date Coat/ Rec Accum/ Current Excess Next Yr
Description acq basis prd
- Mth
-- Sec.179
------- Deduct
------- Depr
------- Deduct
-------
-----------
Computers ---- -
12/94 ------
2,404 --
5 -
DB2 1,969 277 -124 138
Video Camera C 01/92 381 5 DB2 381
Video Equipmen 06/92 1,200 5 D32 1,199
Furniture 01/92 $05 7 DB2 437 45 1 23
Office Furnitu 07/92 127 7 DB2 109 11 6
Office Furn 07/92 274 7 DB2 236 24 12
Equipment 12/92 1,459 7 QB2 1,219 127 111
Equipment 12/93 10,898 7 DB2 10,898
Furniture 11/93 214 7 DB2 214
Furniture 11/93 210 7 DB2 210
Furniture 12/94 8,193 7 D82 5,633 731 15 731
Furniture 09/94 350 7 DB2 241 31 31
Equipment 02/94 1,107 7 DB2 760 99 2 99
quipment
W 06/94 165 7 DB2 114 15 1 15
quipment 06/94 899 7 DB2 617 80 1 80
Telephone Syst 12/94 4,408 5 DS2 3,646 508 123 254
Furniture 09/95 260 7 DB2 146 32 6 23
Video Equipmen 01/92 2,580 5 DB2 2,580
Furniture 12/95 2,840 5 D32 2,022 327 42 327
Copier 12/95 1,803 5 DB2 1,284 208 -92 208
Telephones 12/95 746 5 D132 531 86 -38 86
Office Furnitu 05196 200 7 QB2 200
Office Furn 09196 665 7 QB2 665
Off Furn Hbg 0 12/96 2,290 7 QB2 2,290
Of Furn PA tel 12/96 320 7 QB2 320
Office Furn 10196 732 7 QB2 732
Tele Equip 04/96 3,994 5 QB2 3,994
UUNet Tech Eqp 12/96 3,951 5 QB2 3,951
Off Furn 11/95 3,105 7 DB2 1,303 388 77 277
Equipment 12/98 1,158 5 QB2 58 15 440
Office Furnitu 12/98 14,500 7 QB2 500 500 237 3,857
Telephone Equi 12/98 2,793 5 QB2 140 35 1,061
Equipment 12/98
- 572
------ 5 QB2
------- 29
------- 8
------- 217
------
TOTALS 75,303 48,421 3,716 309 7,996
*** Furni ture and Fixtures "**
Date Cost/ Rec Accum/ Current Excess Next Yr
ascription
ep acq basis prd Mth Sec.179
-
--- Deduct
------- ---Depr Deduct
-------
-
----------
Furniture & Fi -
---
06/97 -
472 7 ---
D132 --
-
67 116 50 63
Furn & Fix 12/97 18,200 7 DB2 18,029 49
------ 21
------- 35
TOTALS -------
18,672 -------
18,096 -
165 71 118
- ?;,
:_
_.
L
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v
i
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
9
CINEMAGIC, INC.,
PLAINTIFF
VS
SCOTT W. HARVEY AND CHARLES HARVEY
T/D/B/A COINS UNLIMITED,
DEFENDANTS
DEPOSITION OF
TAKEN BY:
BEFORE:
DATE:
PLACE:
APPEARANCES:
JOHN S
NO. 99-4895
CIVIL ACTION - LAW
• f J
KOSTUKOVICH,- CPA
DEFENDANTS
KAREN L. BLOUCH, RMR
NOTARY PUBLIC
APRIL 30, 2003, 2:10 P.M.
JOHNSON, DUFFIE,
STEWART & WEIDNER
301 MARKET STREET
LEMOYNE, PENNSYLVANIA
??yyo"djcog iIIykb
At,t 9 P
ROBERT W. WAEGER, ESQUIRE J 20Q
FOR - PLAINTIFF ST?wq,T? b,p
JOHNSON, DUFFIE, STEWART & WEIDNER 4e'9
BY: DAVID J. LANZA, ESQUIRE
FOR - DEFENDANT
MARSHALL & HADDICK P.C.
BY: FRANCIS E. MARSHALL, JR., ESQUIRE
FOR - ROBERT W. WAEGER, ESQUIRE
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FOR DEFENDANT
John S. Kostukovich
by Mr. Waeger
INDEX
WITNESS
DIRECT CROSS
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33
EXHIBIT
KOSTUKOVICH EXHIBIT NUMBER MARKED
1 - Invoice dated 2/11/97 14
CINEMAGIC EXHIBIT NUMBER
1 - Fax cover sheet dated 2/1/00 with attached 44
Summary Schedule for Depreciation
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STIPULATION
It is hereby stipulated by and between
counsel for the respective parties that sealing,
certification and filing are waived; and that all
objections except as to the form of the question are
reserved to the time of trial.
MR. WAEGER: Offer of proof?
MR. LANZA: First of all, this is the date
and time set for the deposition of John Kostukovich in this
case.
My intention is to establish, for the
record, under the Jacobs test, as the established legal
controlling authority in non-pros cases, the issue of
prejudice and how the two-and-a-half-year delay in
prosecution of this case has impacted our ability to refute
the claims made by the plaintiff.
MR. WAEGER: Okav. I'm aoina to ohiect fnr
a whole bunch of reasons. One, maybe you need to
elaborate, which we will save until later, what you think
the Jacobs test is.
But I'm not sure that John is qualified in
any way, shape or form to give an opinion as to what
prejudices with regards to documents as well as to what
prejudice might be over a two or two-and-a-half-year
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period.
I think accountants advise people to keep
things for seven years or longer. So I would object. I
think he's not qualified to testify to that.
And I forgot, coupled with the fact that I'm
obviously aware that he represents or did represent the
Harveys at the time and also at the time represented
Cinemagic, so I think that he might also have a conflict of
interest because I can feel fairly comfortable he does not
have permission from my clients to testify as to anything
or any documents that they might or might not retain.
MR. LANZA: All right. Your objection is on
the record.
MR. MARSHALL: I'm just going to add
something. This is Frank Marshall. I'm here as personal
counsel for Mr. Waeger.
We had a discussion concerning this issue
prior to the deposition. I suggested to Mr. Lanza that Mr.
Kostukovich -- am I pronouncing it right?
MR. KOSTUKOVICH: No, sir. Kostukovich.
MR. MARSHALL: Kostukovich, I apologize.
MR. KOSTUKOVICH: That's okay.
MR. MARSHALL: -- have an opportunity to
contact his legal counsel to determine whether, without the
express authority of his client, Cinemagic, whether or not
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he can provide any testimony whatsoever that relates to
them or may have an impact upon them.
I renew that offer at this time, as is
Mr. Waeger, to ensure that Mr. Kostukovich understands his
role here and what his responsibilities are. I know
accountants have certain ethical considerations that they
must comply with. If he's comfortable proceeding today, he
does so. But I'm making an offer that prior to doing this,
that at least he be given an opportunity to check on this
to make sure that he is comfortable with the proposed
testimony.
MR. LANZA: I have had that discussion with
Mr. Kostukovich. All I can say is that if you hear
something, hear a question of mine or see a document during
the course of this deposition that you think would not be
the proper subject of testimony, you are free to enter an
objection at that point. Mr. Waeger is free to object at
that point.
MR. WAEGER: I'm going to, on the record, I
will object to the deposition of Mr. Kostukovich.
MR. LANZA: You have a continuing objection.
MR. WAEGER: A continuing objection. Now,
the first part of my objection was to ask you about the
Jacobs test. I'm not sure I understand what you mean by
the Jacobs test.
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MR. LANZA: There is a case, I don't have
the cite in front of me, but I believe it's Jacobs versus
Holleran. I could be misstating that. But that is the,
has been the recognized law ever since Penn Piping has been
overruled.
MR. WAEGER: That's fine. Just so I
understood what case you were talking about.
MR. LANZA: If I'm mis-citing that, I will
try to get you something a little more definite there.
JOHN S. KOSTUKOVICH, called as a witness,
being sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LANZA:
Q Would you state and spell your name, for the
record.
A It's John Kostukovich,
K-O-S-T-U-K-O-V-I-C-H.
Q What is your occupation?
A Certified public accountant.
Q What's your business address?
A 1104 Fernwood Avenue, Suite 302, Camp Hill,
PA 17011.
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Q How long have you been a CPA?
A Approximately 12 years.
Q What educational requirements did you have
to fulfill to become a CPA?
A You have to have a Bachelors of Science. I
had a major in accounting. And then you have to sit for
the CPA exam. And you also have to have two years of
experience before you can write to the State to get your
certificate after you pass the exam.
Q And you have done all that?
A Yes, sir.
Q And you have practiced as a CPA continuously
since that time?
A Correct.
Q You are familiar with a company known as
Coins Unlimited?
A Correct.
Q Are you familiar with Scott Harvey?
A Yes.
Q How do you know them?
A He's a client of mine. Scott's been a
client of mine now for approximately ten years.
Q You are familiar also with a company known
as Cinemagic?
A Yes.
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Q How do you know them?
A I met Ed Ritchie and Louise Hanley, I
believe it was in 1995. They became clients sometime in
196. And we performed work for them up through, I believe
the date was August 21st, 2001.
Q So you performed work for both entities
really at the time that these disputes were occurring.
A Correct.
Q The time of the business relationship.
A Correct.
Q Do you recall how the dispute got started?
A To my --
MR. MARSHALL: I'm going to -- go ahead.
MR. WAEGER: I'm going to object. I don't
think he has any direct knowledge or information as to how
the dispute started. He says he understands the defendants
in this case, not the plaintiffs.
MR. LANZA: He can testify as to what he
understands.
MR. WAEGER: Okay. Continuing objection.
A It was brought to my knowledge that there
were some invoices, i.e., ink and paper invoices that
needed to be resolved; that these were supplies that Louise
had made a list of. That was pretty much how it was
brought to my attention. Louise came to me and asked me
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what should I do. I said you just need to approach Scott,
and you two need to sit down and discuss this.
BY MR. LANZA:
Q Louise is of Cinemagic.
A Louise Hanley of Cinemagic, correct.
Q At some point then did Mr. Harvey and Ms.
Hanley have a meeting at which you were present?
A Yes. They did. They had a meeting in my
conference room.
Q Can you tell me, generally, what did they
discuss?
MR. WAEGER: I'm going to object. That's
hearsay.
BY MR. LANZA:
Q Go ahead, please.
MR. MARSHALL: And the other reasons he
stated.
MR. WAEGER: Yes, a continuing objection.
BY MR. LANZA:
Q Go ahead, please.
A They discussed these -- this list of
invoices, ink and paper, as far as that they had not been
billed previously to Mr. Harvey. That was the generality
of the discussion. It was about, I forget what the amount
is, 20, 25, 30-thousand dollars of ink and paper. Louise
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had a listing, and she presented that to Scott.
Q Essentially she wanted Mr. Harvey to pay for
roughly that dollar amount in ink and paper supplies?
A That is correct.
Q At this point, do you recall roughly when
this was?
A I believe it was late 1998 or early 1999.
December of '98, January 1999, I believe, is my
recollection.
Q At this point had the business relationship
between Mr. Harvey and Cinemagic ended?
A As far as the business relationship, I think
it was still ongoing to some extent because the plotter was
still in Cinemagic's office, the plotter being the piece of
equipment that was used to produce the end product for
Scott. And to my knowledge, they were still -- Cinemagic
was still producing this product for them, yes.
Q How much longer after this meeting did that
continue?
A Oh, I would say probably several weeks to a
month or so, not -- it wasn't a very long process after
that. They probably cleaned up what they had, and that was
the end of it.
Q Do you recall roughly how long the business
relationship did exist between Cinemagic and Mr. Harvey and
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his company, Coins Unlimited?
MR. MARSHALL: I'm going to object.
BY MR. LANZA:
Q Go ahead.
MR. WAEGER: I object as well unless you
have direct knowledge.
A The only direct knowledge I have is that
Louise -- Scott approached me one day and said do you know
of anybody that has graphic artists and can do this type of
work for me. And I said I have a client, Cinemagic, that
is very skilled in this type of -- in this type of work.
So I gave Scott Cinemagic's number. They
hooked up. And they started doing work.
BY MR. LANZA:
Q When?
A I believe it was in 1997, at sometime in 197
is when they started doing this work.
Q So for at least a couple of years, they had
been working --
A I believe it was at least 18 months to 24
months, if not slightly longer.
Q Do you recall whether Mr. Harvey or Coins
Unlimited ran a tab with Cinemagic?
A To my knowledge, there was no tab run.
Q What was the payment arrangement?
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A I believe it was just normal terms, you
know, as an invoice is presented for payment, the payment
terms would be whatever was listed on Cinemagic's invoice.
I don't know -- I can't remember what terms
they would have, two 10 net 30, or just net 30, or payable
upon receipt, I can't remember that.
Q Did Mr. Harvey pay the bills promptly?
A To my knowledge, yes. He has a history of
paying his bills on time.
Q You are speaking, when you say his history,
you are referring specifically to Cinemagic or to
generally?
A Generally speaking overall.
Q As far as you know, did that apply to
Cinemagic as well, to his payments to Cinemagic as well?
A To my knowledge.
MR. WAEGER: I'm going to object because
there's no relevance here. I thought we were going to get
into the issues involving this case, not whether they pay
their bills or don't pay their bills or send bills net 30
or --
MR. LANZA: We're going to get into that.
I'm establishing the groundwork.
BY MR. LANZA:
Q With regard to the particular invoices that
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are at issue today, have you reviewed some of those
invoices that we're talking about?
A I have looked at the exhibits. Is that what
you're talking about?
4 Yes.
referring to?
MR. WAEGER: My other objection is, is he
being offered as an expert witness?
MR. LANZA: Yes, he's being offered as an
MR. MARSHALL: What exhibits are you
expert witness.
MR.
MR.
MR.
MR.
going to allow obj
team.
WAEGER:
LANZA:
WAEGER:
LANZA:
ections
As what, as an accountant?
As an accountant.
Okay.
First of all, also, we're only
by one of you. It's not a tag
MR. WAEGER: We understand.
MR. LANZA: We're not going to have both of
you badgering the witness with objections.
MR. MARSHALL: We're not badgering anybody.
We're preserving our legal rights against this gentleman
who is being offered here essentially as an expert witness.
You are offering him as an expert witness. There's no
notice in the deposition notice that he was going to be
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here as an expert witness today.
MR. LANZA: It says for any purposes.
MR. MARSHALL: No. That is fraudulent.
That is downright fraudulent. I object strenuously to
that. If he's -- he's now being offered as an expert
witness against a former client, without the client's
authority, without the client's knowledge.
MR. LANZA: Be careful how you use the word
fraudulent.
BY MR. LANZA:
Q Now we will proceed. I'm going to show
you --
MR. MARSHALL: He proceeds at his own peril
then.
MR. LANZA: All right.
BY MR. LANZA:
Q I will show you what I'm having labeled as
Kostukovich Exhibit Number 1.
(Invoice dated 2/11/97 marked as Kostukovich
Exhibit Number 1.)
BY MR. LANZA:
Q I will represent to you this is something
that Mr. Waeger, this is a portion of a much larger set of
documents that Mr. Waeger sent to this office more than
three years ago. If you recall me showing this to you a
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couple of days ago, do you recall me showing you some
documents that Mr. Waeger had sent to us a few years ago?
A Yes, sir.
Q You recall looking at these documents?
A Yes, sir.
Q These are, these actually purport to be
invoices from vendors of Cinemagic to Cinemagic, is that
correct?
A Correct.
MR. WAEGER: Object to relevance.
BY MR. LANZA:
Q Are these invoices -- do these happen to be
invoices from Cinemagic to Mr. Harvey?
MR. WAEGER: I would like an offer as to why
you think they are relevant.
MR. LANZA: See now, if you are going to do
whatever you can to obstruct this deposition --
MR. WAEGER: No, I'm not. I'm really not.
MR. LANZA: We could be done here very
quickly.
MR. WAEGER: I got all night. The question
is how can we talk about relevance --
MR. LANZA: I would remind Mr. Marshall he
has not entered his appearance in this case.
MR. WAEGER: He is my personal counsel.
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MR. LANZA: All right.
MR. WAEGER: My dilemma was, how can he
testify as to what a bill was from Richter Draft and Office
Supply and some other imaging company with regard to ink
jet cartridges and those issues, A, as to how it is
relevant to this case and whether there was a delay or not
in the prosecution of this case, as well as has he ever --
has he ever ordered supplies from this company or --
MR. LANZA: You are free to ask all of these
questions when your opportunity comes.
MR. MARSHALL: His objection is you are
having him testify as to the business practices --
MR. LANZA: I'm going to remind you again,
you have not entered your appearance in this case.
MR. MARSHALL: I will enter my appearance if
that is -- listen, we had a deposition last week, okay?
You did not object at that time.
MR. LANZA: I let that go at that point.
MR. MARSHALL: I believe you have waived
your right. You know I am here as personal counsel to
Mr. Waeger. And I strongly object to any testimony, move
to strike any testimony whatsoever relative to these
exhibits for Sentinel Imaging and Richter Drafting and
Office Supply as these have absolutely no relevance or
connection to the Cinemagic lawsuit that we're here today
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about.
MR. LANZA: And I would point out also that
neither Mr. Weidner, who testified earlier today, nor Mr.
Kostukovich, is a witness in any case in which Mr. Waeger
is a party.
I know of no case that Mr. Waeger is a party
to. Although I keep hearing that you are Mr. Waeger's
counsel, that's fine --
MR. MARSHALL: I'm here as Mr. Waeger's
counsel.
MR. LANZA: You are allowed to be here.
That's fine. But your participation in this deposition is
becoming obstructive.
MR. MARSHALL: No, it is not. It absolutely
is not. If obstruction is seeking justice, this is seeking
justice. You explain to me, we want an offer of proof
right now --
MR. LANZA: I will tell you what, I will
explain it right now.
MR. MARSHALL: Excuse me, let me put this on
the record. Would you please explain to us how invoices
from Richter Drafting and Office Supply, Inc., of
Souderton, Pennsylvania and Sentinel Imaging of Greenland,
New Hampshire, in the January 198 time frame and the
February 197 time frame, have any relevance whatsoever to
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the Cinemagic case that we are here today about.
MR. LANZA: You are asking me to explain
this, and I'm going to explain it. As I understand it,
people at Cinemagic presented a dollar amount that they
wanted Mr. Harvey to pay, at or near the end of their
business relationship, they went back in time, essentially,
pulled out old invoices to which they were invoiced from
their vendors for ink jets, which are items that are put
into printers so that items can be printed, for specialty
paper.
They invoiced Mr. Harvey and expected him to
pay for their supplies which they had incurred in
performing services for Mr. Harvey and his company. And at
this point, two-and-a-half years have passed since this
case was -- since the discovery issues, two-and-a-half --
I'm sorry, it's been three years since the discovery issue
and longer than that since the case was filed.
This witness can testify that the only way
you can determine at this point whether or not these
products were used for other clients other than Mr. Harvey
would be, would be, I emphasize would, to question the
employees of Cinemagic and ask them what they used these
particular ink jets for.
Since Cinemagic expects Mr. Harvey to buy
them ink jets and to buy them paper, and now you want,
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three years later, us to defend against this case after
it's been sat on for so long, putting the burden on us to
have to reconstruct, through interviews with these
witnesses, with these employees of Cinemagic, what they did
with these ink jets, whether they used them for other
projects, to expect them to remember particular projects
from that long ago, that is our offer of proof.
MR. MARSHALL: Now, on that offer of proof,
how do you know until you ask him? Have you had one
deposition in this case where the people have said to you,
we don't know, we don't recall? The fact of the matter is,
as Mr. Weidner stated, he wanted to depose witnesses as
late as October 2000 -- 2002.
MR. LANZA: 2002.
MR. MARSHALL: Then this issue came up about
the list. The point being --
MR. LANZA: You are arguing the law.
MR. MARSHALL: No.
MR. LANZA: Yes, you are. It's not our duty
to pursue the case. That is what clearly the case is, it's
not our duty --
MR. MARSHALL: You cannot hide and say --
MR. LANZA: It' Mr. Waeger's duty.
MR. MARSHALL: It's not Mr. Waeger's duty to
have you depose his clients or his employees. If Roy
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Weidner wanted to do that, or your office wished to do
that, or Mr. Harvey wanted to do that, all they had to do
was follow up, get notices of deposition out.
They could have done that, if they were so
concerned about any type of inconsistency or people
forgetting, they certainly could have done it.
Even as late as February of 2002,
Mr. Weidner was attempting to get depositions scheduled.
So that argument is specious.
MR. LANZA: First of all, you are misstating
the law regarding --
MR. MARSHALL: I'm not arguing the law.
We're not here to argue the law.
MR. LANZA: You are very much arguing the
law. And secondly, you are boot strapping. You are
stating that because you don't believe that we fulfilled
our duty, that, therefore, this witness, you want to
disrupt this witness from testifying.
MR. MARSHALL: No, ask him a question.
MR. LANZA: May I?
MR. MARSHALL: Ask him a question, please.
MR. LANZA: I have been attempting to ask
him questions, and you are giving legal arguments. And I'm
going to respond to that legal argument.
The fact is we do not have the duty to push
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this case. It's the plaintiff's duty to push this case.
That's been recognized by the courts. And the fact
remains, as Mr. Weidner testified earlier today, the
document production request has not been fully complied
with.
So to expect us then -- to tell us now,
well, you shouldn't have taken these depositions without
all the documents, without being able to confront the
witnesses with all the documents that may be relevant, that
is what is specious. That is why we're going to -- that's
why we are establishing our prejudice at this point.
MR. MARSHALL: Ask him a question.
MR. WAEGER: I have my own objection. My
own objection would be, not only with regards to relevancy,
but is it not that the plaintiff has the burden of proof in
the case? And my objection is that I don't believe, not
only that he's not qualified, but also that it's not
relevant. And there's probably three or four others that I
could come up with as to why he shouldn't -- any of his
testimony with regards to bills is at issue in this case.
My objection is, it is the plaintiff's
burden of proof to present their case. They have to submit
the documents, they have to justify the reasonableness and
necessity of them, etcetera. It's not some accountant who
clearly represents both parties and has a conflict of
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interest to testify as to any kind of relevancy with any
kind of issues over bills.
He has no idea what was billed to Harvey or
not billed to Harvey. He has no idea how many, if there
were even any other plotters ever used by any client other
than the Harveys and Coins Unlimited at Cinemagic. He has
no idea. So his testimony is absolutely not relevant.
MR. LANZA: What I would say, first of all,
you do have a point that it's the plaintiff's burden to
come forward with evidence and to make their case. And
certainly if you are raising the issue of whether this
makes it more difficult for the plaintiff also, that may
very well be.
But at the same time, we don't know exactly
how the plaintiff would go about meeting the plaintiff's
burden. We don't know what the plaintiff would say about
these invoices. We don't know what the plaintiff would say
about whether or not other clients used these supplies
which they're billing Mr. Harvey for now. And we're
entitled to have our defenses preserved and entitled to the
remedies we would have.
MR. MARSHALL: Let's move forward.
A Excuse me.
MR. MARSHALL
Nobody has a question on the
table for you.
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A Is it appropriate if I ask -- can I talk to
Dave out in the hall?
MR. LANZA: We can take a break.
MR. MARSHALL: You might as well. Go ahead.
I believe you --
MR. LANZA: We can go off the record for a
moment.
(Brief recess.)
MR. WAEGER: Let the record reflect that Mr.
Kostukovich decided to talk to his counsel, and they're
back.
MR. LANZA: No, I'm not his counsel.
MR. WAEGER: I'm sorry. I apologize.
MR. LANZA: He spoke to me. We can put that
on the record.
MR. MARSHALL: Outside of the presence of
other counsel.
MR. LANZA: That's fine.
MR. LANZA: First of all, I would also, I
think just to clarify for the record, there's no objection
to Mr. Kostukovich seeing this document which I have
labeled Exhibit 1, is there?
MR. WAEGER: I don't know.
MR. LANZA: You don't know.
MR. WAEGER: I don't know whether he has
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seen it or not before today. I think I heard --
MR. LANZA: Let me ask you, Bob, do you have
knowledge that this is part of what you sent to Mr. Weidner
a couple of years ago?
MR. WAEGER: Yes. I believe it is. Yes, I
believe it is.
MR. LANZA: It's a part of a much larger
set. The only reason I'm not using the whole set is
because it's very voluminous, relatively voluminous.
BY MR. LANZA:
4 With regard, Mr. Kostukovich, with regard to
these documents, and again, because there's been a
relatively long period of attorney discussion since I have
asked you my last question, we have established that these
are not invoices to Mr. Harvey, these are invoices from
vendors to Cinemagic.
And the question I would have for you is,
how would you determine, as an accountant, whether or not
those particular items that they're invoicing for were used
for multiple customers?
MR. WAEGER: Objection. My continuing
objection as well as the one that I'm not sure -- I'm not
trying to give you a hard time here. But I am almost
positive, but I will say I am not sure that he knows how
many clients Cinemagic had at the time --
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MR. LANZA: I didn't ask him that.
MR. WAEGER: Listen to my question.
MR. LANZA: All right.
MR. WAEGER: I am not sure that he has any
knowledge, other than that there was a plotter involved
with Scott Harvey, I don't think he has any knowledge
whatsoever of whether Cinemagic was supplying other clients
with other plotters, if that's what your question is going
to be.
MR. LANZA: All right. It wasn't my
question. My question is, as an accountant, how he would
determine whether or not these supplies were used for
multiple customers.
MR. WAEGER: Okay.
MR. LANZA: I would imagine he would have to
perform some sort of auditing procedure on it to determine
if their internal controls would allow you to trace that
back to certain customers. Just looking at the invoice,
there's certainly, I can't tell that, who they were used
for, but --
MR. WAEGER: I'm going to move to strike
then the answer. He's speculating.
MR. LANZA: He's not even finished with his
answer, and you are moving to strike.
MR. WAEGER: That's fine. I thought he was.
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Then finish. You can't ask him another question if he's
not finished with his answer.
BY MR. LANZA:
Q Were you finished with your answer?
A Yes.
MR. WAEGER: Then I move to strike. He
speculated. And he admitted in his answer he doesn't know.
MR. LANZA: First of all, this is not
speculation. It's based on his experience as an
accountant.
BY MR. LANZA:
Q Would you have to speak to the individuals
involved?
A I would think that would be part of the
overall auditing procedure if you wanted to perform like a
specified audit on something like this, yes.
Q Is that what you would do?
A I think any accountant would do that.
Q That would include you.
A Correct.
Q Would that be feasible or likely to produce
success after several years have elapsed since the various
items were used?
MR. WAEGER: I'm going to object. That
calls again for speculation. He has no idea. He has no --
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MR. LANZA: He is an accountant, and this is
something that would fall within his area of expertise.
MR. WAEGER: Except that he -- let me get my
objection on the record. My objection is that he has no
idea whether those same employees work for Cinemagic or
not, whether the same corporate people work for Cinemagic,
whether they still have a relationship with the Richter
Drafting and Office Supply, or whether they have the same
relationship with Sentinel Imaging or as to what other
clients Cinemagic might or might not have had during this
time frame. That is really speculative.
MR. LANZA: Those are very good points. And
actually, I'm going to have that quoted and blocked in my
brief in support of my argument that we have suffered
prejudice.
BY MR. LANZA:
4 Now, would you go ahead and please answer
the question.
A What was the question?
4 The question is, is it feasible after
several years have elapsed to establish by interviews with
the employees what they used particular ink jet cartridges
or paper supplies for?
A Feasible, I'd have to say yes, it is
feasible.
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4 Feasible to ask.
A Correct.
4 Is it reasonable to expect you'd find the
answers after this amount of time?
A I don't know if one would know that until
you actually went through it, but.
4 Okay.
A That's the answer.
4 Okay. To your knowledge, has Cinemagic ever
billed customers for reimbursement for the purchases of
cartridges or paper supplies?
MR. WAEGER: I'm going to object. Because
he has conflict of interest here.
A Specific questions, as I told you, about
Cinemagic internally, I'm not going to answer those. I
said that before I started today.
BY MR. LANZA:
4 Can you tell me why you don't want to answer
that question?
A Simply put, because they were a client of
mine at the time. And so was Scott Harvey. I agreed today
to answer questions relevant to today's proceedings, not
specific to Cinemagic itself or for that matter Scott
Harvey himself.
4 Has Mr. Marshall's comments today influenced
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your decision --
MR. MARSHALL: Objection.
BY MR. LANZA:
4 -- not to answer these questions?
MR. MARSHALL: Let's stop right now. I want
to know, before we go any further --
MR. LANZA: There's a question pending.
MR. MARSHALL: I want to know what comments
you are specifically referring to that are on this record.
I want to see exactly what comments you are referring to.
MR. LANZA: The comments that he's heard
today.
MR. MARSHALL: What comments has he heard
today?
MR. LANZA: Frank, keep in mind something
that you have said --
MR. MARSHALL: No, don't tell me what I have
said. I want to know specifically -- you are representing
that I said something. I want to know exactly what comment
you are referring to.
MR. LANZA: You pound that table or raise
your voice one more time, I'm going to have you removed
from this building. All right? Do you understand?
MR. MARSHALL: Oh, please.
MR. LANZA: Do you understand that?
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MR. MARSHALL: Please --
MR. WAEGER: You can't do that.
MR. MARSHALL: Are you trying to intimidate
me? Are you trying to intimidate me?
MR. LANZA: I'm telling you what I'm going
to do. Do not pound that table one more time.
MR. MARSHALL: Don't tell me how to act, my
friend.
MR. LANZA: This is an office. You are in
my office. I have never had to tell anybody how to act in
this office before.
MR. MARSHALL: I will tell you what, you are
impugning my reputation. And I want to know what comment,
it's a simple question, what comment are you referring to
when you asked that question, that's all I want to know.
MR. LANZA: I'm not going to have the
reporter read back this entire transcript.
MR. MARSHALL: I can understand why.
MR. LANZA: It will speak for itself.
BY MR. LANZA:
4 Now, has your decision not to answer some of
these questions as it relates to Cinemagic been influenced
by Mr. Marshall's statements and objections here today?
A I guess I'd have to ask to what degree of
influence. I said, you know, prior to coming here I would
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only answer specific questions. Yeah, there was one thing
he said, it was kind of directed right towards me, that
kind of made me re-think.
But as I said initially, I would only answer
things about Cinemagic -- not specifically about Cinemagic.
Anything internally, etcetera, I would ask general
questions.
Q When we were out in the hallway earlier --
MR. WAEGER: Can I just ask him what the one
thing was?
MR. LANZA: You can ask him that when I'm
done questioning.
MR. WAEGER: Okay.
BY MR. LANZA:
Q When we were out in the hallway earlier, did
you state that you were afraid of getting in the middle of
a lawsuit? You didn't want to get into a lawsuit?
A That's correct.
Q And that was after we had proceeded for
awhile during this deposition, is that correct?
A That's correct.
Q There was testimony last week from
Mr. Waeger -- Bob, are you listening?
MR. WAEGER: I am.
MR. LANZA: I'm referring to something that
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you said. You don't have to listen if you don't want to,
but I would like you to hear this.
MR. WAEGER: All right.
MR. LANZA: Because you want to be in a
position to refute me if I'm wrong.
BY MR. LANZA:
4 There was testimony from Mr. Waeger, and I
hate to summarize, but the transcript is not available yet.
There was testimony regarding a possible Y2K issue
involving Cinemagic that may have influenced or somehow
affected the discovery process in this case.
To the best of your knowledge, was there
ever a Y2K problem or issue with Cinemagic?
MR. WAEGER: Again, I'm going to object just
because it directly bears on the way Cinemagic operates
their business, the way they operate their records
retention, the way they operate their accounts, etcetera.
A I would have to say that I, again, I won't
answer any specific questions.
BY MR. LANZA:
4 That's for the reasons we have discussed
here today?
MR. MARSHALL: Objection.
A It's for all the reasons I stated several
minutes ago.
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MR. LANZA: Those are the only questions I
CROSS-EXAMINATION
BY MR. WAEGER:
4 I realize when you first came here this
afternoon, you specifically had in your own mind some
guidelines that you were going to testify to and not
testify to, is that correct?
A That is correct.
4 I don't care about the pluses, just tell me
what, in maybe a little more descriptive terms, you are not
going to agree to testify to.
A Well, anything specific relative to
Mr. Harvey's business and/or Cinemagic's internal control
structure, accounting practices, procedures, reporting,
etcetera, you know, tax, accounting issues, things of that
nature.
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4 Would records retention be included in that?
A Records retention, specifically meaning?
4 On computer disks or in a computer
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mainframe.
A If it relates to the accounting issues, I
would say yes. I mean, on that specific disk, if there is
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accounting information, yes.
Q Fine. I realize then you said that you
might have expanded very minimally what you might not
testify to because of what Mr. Marshall has potentially
stated earlier in this deposition.
A I wouldn't say I expanded it. I would say
it was just brought to my attention in greater detail,
let's put it that way. I mean, as far as what I would and
wouldn't do, that was decided prior.
Q You had your mind made up.
A That's correct.
Q You didn't hear Mr. Marshall say anything
about a lawsuit here against you today, did you?
A Not specifically lawsuit, no, sir.
Q You didn't hear me say anything about a
lawsuit?
A Not a lawsuit, no.
Q You just heard me object and say you
represent both parties, and you just kind of need to be
careful.
A Correct.
Q And that's what you are being.
A Correct.
MR. LANZA: You are telling me now, there's
no threat of any lawsuit against this accountant for any
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testimony, is that what you're saying?
MR. WAEGER: Is that a question?
MR. LANZA: Yes, that's a question. Put
that on the record.
MR. WAEGER: I don't think that the word
lawsuit was ever used here today at all. I thought there
was just general conversation with regards to whether
there's an account --
MR. LANZA: Or any proceeding of any kind.
You are not contemplating any proceeding of any kind
against Mr. Kostukovich, is that correct?
MR. WAEGER: I'm not the deponent here. You
asked him a question, and he answered the word lawsuit.
And I never heard the word lawsuit here today. Is that a
fair answer?
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MR. LANZA: You are telling me that you
didn't say anything about going to the disciplinary board
or anything like that?
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MR.
MR.
that -- maybe you
MR.
getting -- now you
my friend.
MARSHALL: On this record?
LANZA: You were very careful, put it
were very careful.
MARSHALL: Now, see, now you are really
are really, you are really pushing it,
MR. LANZA: Are you telling me you didn't
25
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say he proceeds at his peril, is that what you are telling
me, Mr. Marshall?
MR. MARSHALL: May I put a statement on the
record. I'm going to put a statement on the record, and
you can stop your testifying. Prior to this deposition --
MR. LANZA: First of all, all right, first
of all, Mr. Marshall is not a witness. If he wants to put
a statement on the record, he can be sworn. If he wants
to be sworn, he can put a statement on the record;
otherwise --
MR. MARSHALL: No.
MR. LANZA: -- we turn off the record.
MR. MARSHALL: No. You don't control the
record.
MR. LANZA: Yes, I do. Turn off the record.
MR. MARSHALL: No, you are not.
MR. LANZA: This is my record, turn it off.
MR. MARSHALL: I want the record to
reflect --
MR. LANZA: Ma'am, this is my record. I
have hired you for this deposition. Turn it off, or else
Mr. Marshall can get the bill.
MR. MARSHALL: Excuse me, ma'am. David,
look, I'm preserving the record.
MR. LANZA: If this record doesn't go off, I
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am not paying this bill. That's all there is to that.
MR. MARSHALL: From this point forward,
anything I say you don't have to pay.
MR. LANZA: I hired the stenographer. If
you are going to insist that she take your statement
without being sworn, then --
MR. MARSHALL: No, it's not a statement.
MR. LANZA: You can pay this bill yourself.
MR. MARSHALL: It's not a statement.
MR. LANZA: Then this is your record.
MR. MARSHALL: David, it's very simple.
Prior to this deposition starting, I don't believe that
there was any testimony or anything directly from this
gentleman indicating what limitations he was placing on the
deposition. That never came out in the opening part of
this record, number one.
Number two, Mr. Waeger appropriately
reminded him that he does represent both. And he,
according to his -- he's testified that what he was
intending to do, we didn't hear that until the last few
minutes of this deposition, that he had already made up in
his mind that he was not going to say anything about the
inner workings or details of Cinemagic or Mr. Harvey. And
I respect him for that.
I do resent the innuendo in the comments
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that you have made suggesting that we have in any way
attempted to intimidate this witness.
You will recall that prior to his even
coming in here, I said there is an issue as to how far he
can go relative to any testimony concerning Cinemagic. And
I even offered, and offered to him before the deposition
started, to just check with his lawyer, if he needed to,
just to make sure, just to make sure he knew what the
bounds were. That was it. Nothing more.
There's never been any threats here.
There's nothing that can be inferred or imputed to me to
suggest that. And the thing that gets me upset is your
suggestion that that has occurred.
MR. LANZA: You acknowledge then that you
told me, or you asked me to speak to him about the
possibility of him speaking to his attorney.
MR. MARSHALL: Simply to make sure, because
you were giving him legal advice --
MR. LANZA: I did not give him legal advice.
MR. MARSHALL: I'm sorry, you told me --
MR. LANZA: Do you acknowledge that you told
me earlier before either of these depositions got underway
that you would consider a disciplinary proceeding?
MR. MARSHALL: Only if, only if, I never
said it to this witness, only if --
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MR. LANZA: You said it to me.
MR. MARSHALL: I said it to you. The
witness was not here.
MR. LANZA: You asked me to communicate that
to the witness.
MR. MARSHALL: No, I did not. I asked you
to communicate to the witness the opportunity to speak with
a lawyer, his own counsel, to ensure that he was okay with
proceeding under this deposition given the fact that you
were offering him as an expert witness. That's all.
MR. LANZA: You expected that I would not
communicate to him that you had threatened a disciplinary
proceeding against him.
MR. MARSHALL: I did not threaten any
disciplinary proceeding. I simply wanted him to be sure
that this was okay with himself and his legal counsel, if
he so desired. That's all.
MR. LANZA: Do you deny having brought up
the whole disciplinary board concept?
MR. MARSHALL: No, you said there was no --
-- this all started with you saying there is no such thing,
and tell me if I'm wrong, that there is no
accountant-client privilege, that's what you said. That's
what started the whole thing.
MR. LANZA: I believe that to be the law in
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response to something that you and Mr. Waeger raised. Then
you told me that he faced possible disciplinary action.
MR. MARSHALL: I did not.
MR. LANZA: You did not say that? You never
made --
MR. MARSHALL: Not in that format.
MR. LANZA: You never referenced the
disciplinary board?
MR.
MR.
MR.
MR.
being careful abou
MR.
with you. I think
MR.
BY MR. WAEGER:
MARSHALL: Not in that format.
LANZA: Not in any format?
MARSHALL: Not in that format.
LANZA: In other words, yes, but you are
t how you answer that.
MARSHALL: I'm going to cease arguing
this is an embarrassment.
LANZA: It should be. You go ahead.
4 Just one or two more questions. Earlier in
the deposition, you stated that you looked through, I guess
the word was a large portion of documents.
A A large portion, I looked through documents
that were presented, I believe, the last time that
Cinemagic, and I believe they went to court, what, several
years ago, my recollection is.
4 Right.
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A I was called as a witness that time.
Q Correct. I just mean in this case. Did you
go through -- when I answered the defendant's request for
production of documents in preparation for your testimony
here today, did they show you my responses or Cinemagic's
responses to those requests of which some included the --
what do you call these?
MR. LANZA: You sent therm tn me
BY MR. WAEGER:
Q Some included these two bills from Richter
Drafting and Sentinel Imaging.
A Yes. What I saw was the original list where
Louise had had it on an Excel spreadsheet, and these
invoices, which was essentially the back-up.
Q So they, to assist you in some preparation
for the deposition here today, did you get some selected
things to look at, or did you look at the entire stack of
things that were furnished in response to the discovery
request?
A I wouldn't know what the stacks means. I
was given certain information, such as these invoices.
Q You didn't see --
A It was certainly not that.
Q -- a stack that was 9 inches or 12 inches
high?
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A No, sir. It was maybe a half-inch thick,
something along those lines.
4 Do you have any knowledge or recollection
of, in this particular case, after your involvement in that
meeting, that when the discovery request, meaning
interrogatories and requests for production of documents
were sent by the Harveys and their attorney to Cinemagic,
that Cinemagic sent you a copy of that request and asked
you what you could produce with regards to their trying to
respond to those questions?
A I don't recall receiving anything like that
from Cinemagic.
4 Earlier today, I did not object, you were
asked -- I don't want to call it a hypothetical, but you
were asked what do you normally do in your normal course of
business as an appropriate CPA, is that correct? Do you
understand the test?
A Okay.
4 So my question is, using that test what you
would normally do, if Cinemagic would have sent you a copy
of a request for production of documents, and I will maybe
cite some things --
MR. LANZA: What are you looking for?
MR. WAEGER: I'm looking for the original
request.
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MR. LANZA: Our request?
MR. WAEGER: Yes.
BY MR. WAEGER:
Q For example, in the request would be furnish
us all invoices, receipts and other documents with regards
to the acquisition of supplies used with a plotter, that
was one request. Another request would have been all
records indicating that the items listed in Exhibit G,
which are -- which was part of our complaint, which was
part of that Excel spreadsheet bill, were stored at
defendant's premises.
And then there were a number of other things
like furnish all accounts receivable, sales journals and
monthly agings. Another was assets such as depreciation
schedules from your IRS form number such and such.
A (Witness moved head affirmatively.)
Q My question again is, would you have any, I
realize it's been a couple of years, would you have any
direct memory of ever getting a copy of just six or seven
pages of requests for specific information that a client
like Cinemagic might send to their accountant to help
collect this information?
A I don't recall getting any specific request
for invoices from them.
Q My question is not --
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A They may have sent --
Q -- just invoices.
A They may have sent a depreciation schedule,
can we have a copy of it off of your computer. I can
certainly press a button and present that to them.
4 As well as accounts receivable or sales
journals, etcetera?
A That would be their internal records. I
wouldn't keep their sales journals, their accounts
receivable.
4 Would you keep monthly agings?
A That would be Cinemagic's job. That's their
internal accounting records, not external, after the fact.
(Fax cover sheet dated 2/1/00 with attached
Summary Schedule for Depreciation marked as Cinemagic
Exhibit Number 1.)
BY MR. WAEGER:
4 So if I were to show you a document which I
will mark as Waeger 1 -- or Cinemagic 1, I guess, can you
identify that document?
A That's my facsimile sheet. And that's the
depreciation schedule, as I alluded to before, that she may
have requested only the depreciation schedule.
4 But you don't know whether she just
requested the depreciation schedule here today, isn't that
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what I thought I heard you say just a little bit earlier?
A I can't recall that she would have asked for
anything else, no, sir.
MR. LANZA: You are asking for specific --
asking specific questions about Cinemagic's internal
accounting procedures here. And I submit you have waived
any claim of privilege you might have had.
MR. WAEGER: No.
MR. MARSHALL: No.
MR. WAEGER: I'm just asking about the
furnishing of documents.
BY MR. WAEGER:
4 I'm not going to ask any questions about
what they contain other than in the normal course of your
business, if a client can't recover or determine specific
things, and they know their accountant has them, they go to
their accountant, is that correct?
A Generally speaking, yes.
4 Would Cinemagic be one of those types of
client?
A I would think every client would be that
way.
4 And even though you said you don't remember
ever getting one, this clearly is just a fax of a document
that you faxed to them?
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A I think I said I don't remember getting
them, you're correct. But I did state that depreciation
schedules is something I think that Louise did ask for.
And it's clear that she did. That would be something that
we would have.
Q Right.
MR. WAEGER: That's all. I don't have any
other questions. Thank you.
MR. LANZA: Nothing further.
(The deposition was concluded at 3:05 p.m.)
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C
STATE OF PENNSYLVANIA
ss
COUNTY OF LEBANON
I, Karen Slouch, a Reporter Notary-Public,
authorized to administer oaths within and for the
Commonwealth of Pennsylvania and take depositions in the
trial of causes, do hereby certify that the foregoing is
the testimony of John S. Kostukovich.
I further certify that before the taking of
said deposition, the witness was duly sworn; that the
questions and answers were taken down stenographically by
the said reporter Karen Slouch, a Reporter Notary-Public,
approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the proceedings and
evidence contained fully and accurately in the notes by me
on the within deposition, and that this copy is a correct
transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this 1st day of May, 2003.
4e::n L. B ch - ,
My commission expires:
October 14, 2005
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
Johnson, Duffle, Stewart & Weidner
By: C. Roy Weidner, Jr.
I.D. No. 19530
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
FILE CO
Attorneys for Defendants
CINEMAGIC, INC., IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 99-4895 CIVIL
V.
CIVIL ACTION - LAW
SCOTT W. HARVEY and CHARLES HARVEY,
t/d/b/a COINS UNLIMITED, JURY TRIAL DEMANDED
Defendants
REQUEST FOR PRODUCT/ON OFDOCUMENTS TO PLAINTIFF
Set No. 9
Cinemagic, Inc.
c/o Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
AND NOW, this 30' day of November, 1999, Defendants, through their undersigned attorney, request
that you produce the documents hereinafter specified at the offices of the undersigned within 30 days of the
date of service hereof upon you in accordance with the requirements of Pa. R.C.P. No. 4009.12.
In accordance with Pa. R.C.P. 4002.1, this request has not been filed with the Court. Your responses
are to be supplemented in accordance with Pa. R.C.P. No. 4007.4.
:129220
JOHNSON, DUFFIE, STEWART & WEIDNER
C. Roy er, Jr.
EXHIBIT
• JERRY R. DUFFIE
RICHARD W. STEWART
C. ROY WEIDNER JR.
EDMUND G. MYERS
DAVID W. DELUCE
RALPH H. WRIGHT. JR.
DAVID 1. LANZA
MARK C. DUFFIE
KEIRSTEN WALSH DAVID50N
MICHAEL I. CAS5IDY
LAW OFFICES
JOHNSON, DUFFIE, STEWART & WEIDNER
A Profeaional Corporation
301 MARKET STREET HORACE A. JOHNSON
P. O. BOX 109
LEMOYNE, PENNSYLVANIA 17043-0109
WEBSITE: www.jd,w.com
TELEPHONE 717.76L-4540
FACSIMILE 717-761.3015
E-MAIL mall®idsw.com
March 1, 2000
Robert W. Waeger, Esquire
204 State Street
P.O. Box 234
Harrisburg, PA 17108
Re: Cinemagic, Inc. v. Scott W. Harvey, et al.
No. 99-4895 Civil
Cumberland Co.C.C.P.
Dear Bob:
OF COUNSEL
WRITER'S EXT. NO. 19
E-MAIL crw@jdsw.com
When we met on February 11, 2000, 1 suggested that you prepare a confidentiality
agreement to cover your client's concerns about disclosing information of a confidential nature.
• It was my understanding that you would be doing that. Since then, 1 have not heard any
communication from you, and my client is interested in getting this matter moving. Accordingly,
please provide answers to our outstanding discovery which are not involved in the confidentiality
concern and provide me with your draft agreement at your earliest convenience.
I will calendar this for 10 business days. If I do not have these items, I will file a Motion
to Compel. It is ready in draft from.
As always, if you have any questions or comments, please do not hesitate to call. If I am
unavailable, please feel free to speak with my legal assistant, Michelle Hagy. If you call other
than during our normal business hours, which are 8:30 a.m. to 5:00 p.m. on weekdays, my
Voice Mail extension is #19 and Michelle's is #31. Please feel free to leave a message with
either one of us, and we will return your call. If you would prefer, you may contact me through
my direct e-mail address, crw jdsw.com.
Very truly yours,
JOHNS DUFFIE,
4' C
C. Roy idner, Jr.
mh:132065
10015-9
• c: Scott Harvey
STEWART & WEIDNER
EXHIBIT
-a a 3 7
LAW OFFICES
JOHNSON, DUFFIE, STEWART & WEIDNER
A Profosional Corporation
JERRY R. DUFFIE 301 MARKET STREET HORACE A. JOHNSON
•
RICHARD W. STEWART P. O. BOX 109 OF COUNSEL
C. ROY WEIDNER. JR. LEMOYNE, PENNSYLVANIA 17043-0109
EDMUND G. MYERS WEBSITE: w jdswxc
DAVID W. DELUGE
RALPH H. WRIGHT, JR. TELEPHONE 717461-4540
DAVID 1. LANZA FACSIMME 717-761-3015
MARK C. DUFFIE EMAIL m rl®jdsw.wm WRITER'S EXT. NO. 19
KEIRSTEN WALSH DAVIDSON E-MAIL crw@jdsw.wm
MICHAEL L CASSIDY
November 30, 1999
Robert W. Waeger, Esquire
204 State Street
Harrisburg, PA 17101
Re: Cinemagic, Inc. v. Scott W. Harvey, et al.
No. 99-4895 Civil
Cumberland Co.C.C.P.
is
Dear Bob:
Served herewith is Defendants' Request for Production of Documents, Set 1. Kindly note
that we include in our definition of documents electronically created data and electronically stored
data which can be transferred to hard copy by your client.
Kindly provide us with answers in the form required by Pa. R.C.P. 4009.12 within the time
therein specified. Of course, if you require a reasonable but defined extension of time within
which to do so, please do not hesitate to contact me about that.
As always, if you have any questions or comments, please do not hesitate to call. If I am
unavailable, please feel free to speak with my legal assistant, Michelle Hagy. If you call other
than during our normal business hours, which are 8:30 a.m. to 5:00 p.m. on weekdays, my
Voice Mail extension is #19 and Michelle's is #31. Please feel free to leave a message with
either one of us, and we will return your call. If you would prefer, you may contact me through
my direct e-mail address, crw jdsw&om.
Very truly
STEWART & WEIDNER
C. Ro)MeMner, Jr.
mh:129222
10015-9
Enclosure
c: Scott Harvey
LAW OFFICES
JOHNSON, DUFFIE, STEWART & WEIDNER
A Professional Corporation
RRY R. DUFFLE 301 MARKET STREEr HORACE A JOHNSON
CHARD W STEWART P. O. BOX 109 COUNSEL TO THE FIRM
C. ROY WEIDNER JR. LEMOYNE, PENNSYLVANIA 17043-0109
EDMUND G. MYERS WEBSITE: www.jdsw.mm KEIRSTEN WALSH DAVIDSON
DAVID W. DELUCE OF COUNSEL
RALPH H. WRIGHT, JR. TELEPHONE 717.761.4540
DAVID J. LAMA FACSIMILE 717.761.3015
MARK C. DUFFLE EMAIL mdlOjdsw.com
WRITER'S EXT. NO. 19
MELISSA PEEL GREEVY E-MAIL crwOjdsw.mm
MICHAEL J. CASSIDY
ROBERT M. WALKER
September 27, 2002
Via Facsimile & Regular Mai! (Fax # 783-7659)
Robert W. Waeger, Esquire
204 State Street
P.O. Box 234
Harrisburg, PA 17108
Re: Cinemagic, Inc. v. Scott W. Harvey, et al.
No. 99-4895 Civil
Cumberland Co.C.C.P.
• Dear Bob:
This confirms the voice mail I left this morning. I am not available to do depositions in
this case the last week of October.
November 4, and 6 are currently available dates for me. 1 am checking with our client on
his availability on those dates for you to depose him.
I do wish to depose your clients and any witnesses they intend to call at trial.
As always, if you have any questions or comments, please do not hesitate to call. If I am
unavailable, please feel free to speak with my legal assistant, Michelle Hagy. If you call other
than during our normal business hours, which are 8:30 a.m. to 5:00 p.m. on weekdays, my
Voice Mail extension is #19 and Michelle's is #11. Please feel free to leave a message with
either one of us, and we will return your call. If you would prefer, you may contact me through
my direct e-mail address, crw jdsw.com.
Very
FFIE, STEWART & WEIDNER
C. Roy Vii4r, Jr. EXHIBIT
10015-9
c: Scott Harvey 2_q -'03
P. S. November 5 is now no longer available, as I just received notice of other depositions on
that date.
. Robert W. Waeger
Attorney - At - Law
P.O. Box 234
Harrisburg, PA 17108
(717) 783-3770
April 17, 2000
C. Roy Weidner, Jr., Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
RE: Cinemagic, Inc. v. Harvey, et al.
No. 99-4895 Civil
Cumberland Co. C.C.P.
Dear Roy:
Cinemagic will make a computer available to you or your paralegal, as well as an
operator, so that the discovery in this matter can be completed. This way, your paralegal may sit
next to the operator and generate whatever documents are related to this matter. Otherwise, it
will be another week or so until all of the discovery items not furnished to date can be generated.
I am sorry for the delay but we are working on it.
Sincerely,
Robert W. Waeg(
RWW:gms
EXHIBIT
...
i '
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
0
CINEMAGIC, INC.,
PLAINTIFF
VS
SCOTT W. HARVEY AND
CHARLES HARVEY T/D/B/A
COINS UNLIMITED,
DEFENDANTS
DEPOSITION OF
TAKEN BY:
BEFORE:
DATE:
PLACE:
NO. 99-4895
• r3
i .-
ROBERT W. WAEGER, ESQUIRE
PLAINTIFF ?r
VIRGINIA LORIA, RPR
NOTARY PUBLIC
APRIL 24, 2003, 3:00 P.M.
MARSHALL SMITH & HADDICK P.C.
20 SOUTH 36TH STREET
CAMP HILL, PENNSYLVANIA
APPEARANCES:
MARSHALL SMITH & HADDICK P.C.
BY: FRANCIS E. MARSHALL, JR., ESQUIRE
FOR - PLAINTIFF
JOHNSON, DUFFIE, STEWART & WEIDNER
BY: DAVID J. LANZA, ESQUIRE
FOR - DEFENDANTS
14
eo1 Yo
M4Y 0 2 2003
STEWART A* WEIDNER
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TABLE OF CONTENTS
WITNESS
FOR DEFENDANT DIRECT CROSS REDIRECT RECROSS
Robert W. Waeger, Esquire 3 26 45
PRODUCED
DEFENDANT EXHIBIT NO AND MARKED
1 - Request for Production 26
WAEGER EXHIBIT NO.
1 - Letter dated 3/1/00, Weidner to Waeger 43
2 - Letter dated 11/30/99, Weidner to Waeger 43
3 - Letter dated 9/27/02, Weidner to Waeger 43
4 - Letter dated 4/17/00, Waeger to Weidner 43
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STIPULATION
It is hereby stipulated by and between counsel
for the respective parties that reading, signing, sealing,
certification and filing are waived; and that all objections
except as to the form of the question are reserved to the
time of trial.
ROBERT W. WAEGER, ESQUIRE, called as a
witness, being sworn, testified as follows:
DIRECT EXAMINATION
MR. LANZA: I want to reserve objections to the
time of trial, although I will be making objections here
because we are submitting this as the record for this
proceeding.
MR. MARSHALL: So did you say you are going to
reserve --
MR. LANZA: I will be making objections here
just because of that, however, for purposes of trial or
later proceedings, I will reserve objections.
MR. MARSHALL: Just for the record, we are here
in the case of Cinemagic, Inc., plaintiff, versus Scott W.
Harvey, Charles Harvey t/d/b/a Coins Unlimited, this is
pending in the Court of Common Pleas of Cumberland County,
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Civil Action Number 99-4895. We are here pursuant to Judge
! Oler's order of February 19th,-2003 concerning the
deposition of Mr. Waeger arising out of that conference.
ROBERT W. WAEGER, ESQUIRE, called as a
witness, being sworn, testified as follows:
DIRECT EXAMINATION
BY MR. MARSHALL:
Q Would you state your full name for the record,
please.
A Robert Waeger, W-a-e-g-e-r.
Q What is your connection with the Cinemagic
case that I have referred to today?
A I'm the attorney that represents Cinemagic.
Q Have you represented Cinemagic on previous
occasions?
A Yes, I have.
Q Did any of those occasions involve -- other
than this litigation -- involve Scott W. Harvey?
A Yes, they have.
Q On how many occasions?
A On two other occasions.
Q When was this civil action filed? If you
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L would like to refer to your petition, you're welcome to.
A It was filed on August 13th of 1999.
Q What type of action is this?
A This is a -- I guess it's a breach of contract
action, it's a collection matter for services and items that
were billed to the Harveys for which they have not paid
Cinemagic.
Q What is the amount in controversy,
approximately?
A T Ann' f- ,-e..,e.,.u......
thousand dollars.
Q Could you tell us when did Harvey respond by
virtue of having an attorney or do anything of record in the
case?
A They answered the plaintiff's complaint on --
first, I'm sorry, they entered an appearance on September
13th of 1999 and then they answered the complaint on October
11th of 1999.
MR. LANZA: Can I just have the record reflect
that you are referring to paragraph 10 of your petition from
March 6.
A Yes, I am. Although, actually, it is the same
as what the copy of the Cumberland County Prothonotary's
office sheet says also.
MR. LANZA: You have both items in front of you
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1 I as you're testifying?
2 A Yes, I do.
3 BY MR. MARSHALL:
& Q Was any discovery served on plaintiffs by the
5 defense?
'I A Yes, there was.
7 Q Could you tell us approximately when they were
served?
A That was a -- some interrogatories and a
request for production of documents. And I have the date as
of November 30th of 1999.
Q So at the end of November, 1999, were there
any further communications concerning issues related to
confidentiality or other matters that were of concern to
your clients?
A Yes. Sometime after I got those
interrogatories and request for production. Because of the
prior litigation between the parties and what those issues
were, my clients at least discussed with me the issue of
should we ask the Harveys to sign a confidentiality
agreement and I did talk too Roy Weidner about that.
Q Who was Roy Weidner at that time?
A He was the counsel of record at the time.
Q Was Roy Weidner the counsel of record up until
recently?
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1 A Yes.
2 Q When I say recently, since, let's say, January
3 1st of 2003? ,
4 A That's probably fair.
5 Q What was the issue relative to the
5 confidentiality that had to be worked out?
7 A Well, part of what the requests were asking
3 for were some what Cinemagic felt were some confidential
> business records and they just were concerned about that. So
I said at some point in the conversations with Roy -- and
there was probably more than one -- we ultimately reached
an agreement that maybe there would not be the need for a
confidentiality agreement, but at some point I would get up
and make some set of arrangements wherein he could send his
paralegal -- and I might have even talked to Roy's
paralegal -- I think it's a female, wherein they could come
to Cinemagic's premises. This all had to do with Y2K issues
and they had switched computers, et cetera, and all the
information was on one set versus not on their new set. And
I had suggested that for the completion -- I answered the
interrogatories --
Q When did you answer the interrogatories?
A At two different times. The first time was on
March 14th, 2000 and the second time was May 23rd I supplied
some supplemental information and/or answers.
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1 4 Were any records or anything also supplied
2 with the discovery?
3 A Yes, there were some documents, records.
4 4 Would I be correct those documents had to be
S accumulated and prepared and supplied then?
' A They did, it was actually a pretty thick
' package.
4 Was there an agreement to open up the computer
systems with the defendants and have their representative
come over and review the documents contained therein?
A I don't know if there was ever an agreement.
I know that there was an offer made that we would -- if they
give us about a week's notice -- that we would supply a
computer person to sit there with whomever they wanted to
come do the discovery and whatever documents they wanted
that were related to this case.
And some of it had to do with accounts
receivable and accounts billable, et cetera, et cetera, and
that's why the confidentiality issue arose, but if it was
specific to this case that we would supply a computer person
to assist in that search.
4 This was accepted by the defendants?
A I'm not sure that that's fair to say. We
never got it resolved.
4 It was never resolved?
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1 A I think that's fair to say, it was never
2 resolved.
3 4 Subsequent to that point in time,
k approximately when was this?
A Obviously, it had to be after May or in that
time frame of 2000.
4 But the offer was made?
A Very clearly.
4 And you had conversations with their
paralegal?
A
time.
4 Was it your understanding that with notice the
computer would be made available?
A yes, it would.
4 Since that time did they ever follow-up and
actually come over and look at the documents?
A No.
4 Was there any further request for them to do
that?
A By the plaintiffs?
4 No, by the defendants to come over and take a
look.
A No, not that I remember.
4 At or about this time, were there other
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1 matters that came up during the pendency of this litigation
2 between Cinemagic and the Harveys?
3 A I don't know if it was right at this time, but
} there were two other instant cases that were involved in
> these.years that are involved in this lawsuit. One was with
5 -- that the parties, meaning the owners of Cinemagic and
' the Harveys had entered into a lease agreement about the
building, construction of an office complex by the Harveys
with which Cinemagic would be a major tenant.
Ultimately, for whatever reasons, I don't
remember all of the reasons, but building code issues or
size of building or whatever, those signed agreements fell
apart. And Jerry Duffie and I worked out a settlement that
was fair to both sides.
4 Was there actually litigation filed?
A No, there was not.
4 Jerry Duffie, what firm is he with?
A He's with Johnson Duffie.
4 Is that the same firm that's representing
Harvey in this case?
A Yes, that's correct. And it might have been
earlier in 1999, I don't remember exactly the date.
4 What was the other issue?
A The other issue was -- which was
litigation -- I could tell you exactly if I had it, there
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C was a petition filed by the Harveys in Cumberland County
Court for a writ of seizure of property that the Harveys
I felt that Cinemagic had in their possession. Just in very
brief terms, it had to do with Harveys in their business had
asked Cinemagic to design or redesign some products.
Cinemagic in fact did that but felt that that was their work
product and belonged to them and not the product of the
Harveys. There was an actual hearing held with memorandums
of law submitted in Cumberland County Court and --
4 Which judge?
A It was Judge Oler. And Cinemagic was held to
have the computer slash property rights in those -- I will
call them products. However, as part of a compromise,
though, between myself and the other lawyer -- and I don't
remember the name of the other lawyer from the firm that
handled that, I could find it -- was there were still some
other property items like a printer or a computer piece or
something that Cinemagic had that in fact was purchased by
the Harveys and belonged to them.
And we had to negotiate, just because of the
disagreements between the parties we even after that hearing
and after the decision, there was still a lot of time
expended negotiating how Harveys were going to go get their
equipment and when, where, how and why. But it ultimately
all got resolved.
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L 4 Was this during pendency of this litigation?
A I believe it was. I could give you the date if
i you really need it.
4 Did that have some impact on moving this case
further in addition to --
A Yes, it did, because I mean in all honesty
part of what my strategy was in this case, in all honesty,
was to let the defendants have anything they wanted in
discovery and then we were just going to list the case for
trial.
My parties did not want any information at all
from the Harveys, none whatsoever. I asked them, because
when we got the interrogatories the normal question is do
you want me to send them a set? And the issue was, no,
let's just move this to no discovery from our point of view
upon them.
Part of that had to do I think with -- let's
call it animosity -- I think that's fair -- between the
parties. And my strategy -- I want to get back -- is that
I have dealt with -- and Mr. Harvey was at that one hearing
that we had in front of the judge. So I learned from
dealing with the way he interacted with them and they
interacted with him at a hearing.
4 You're talking about they, who is they?
A Meaning my clients at Cinemagic and the
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1 Harveys, that cooler heads needed to prevail here. And once
Z I got that all calmed down, I knew then that either we could
3 try to figure out some settlement of this case or ultimately
l we would have to list it for trial. I always try to get the
5 cases settled.
4 Were there communications from either side
relative to depositions that occurred?
A There were. At some point in the end of the
summer of 2002, rather than just send out a notice of
deposition, I do what I think is practical, I called the
opposing counsel -- or in this case his paralegal or
secretary -- and tried to get two or three appropriate
dates, go to my clients and see what dates are fair to
them. I want to say maybe in August, maybe September of
2002 I tried to do that.
We had had a date agreed upon, but either Roy
had to go to trial or Roy was away, decided to take vacation
and we had to reschedule it until October. But then all of
this arose. So the depositions never got scheduled. And
they would have been depositions by each party of the other.
4 So they were going to depose your people?
A Yes, same day.
Q And then you were going to on the same day
depose Mr. Harvey?
A Correct.
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C Q Both Harveys or just one Harvey?
A No, I think it was both.
Q But discovery was still ongoing as of the
E September/October 2002 time frame?
' A I thought it was.
Q Upon completion of those depositions, what was
the game plan at that point, looking towards the end of
2002, assuming you got the depositions completed?
A I was going to do two things: I was going to
list the case for trial and I was going to refer it out to
another attorney.
Q We get to the point now where there was this
termination for inactive cases. You're familiar with that
in this case?
A That's correct.
Q Did you receive a notice of the hearing?
A I did.
Q Do you recall when the date was that that was
to be held?
A I think it was October 22nd, it might have
been the 21st.
Q Of?
A Of 2002.
MR. LANZA: I'm going to object to the
characterization of the proceeding as a hearing at this
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1 point unless we get more specific about what we're talking
about.
S BY MR. MARSHALL:
I 4 Did you receive notice of a special call for
i inactive cases to be held on October 22nd, 2002?
A Yes, I did.
4 Did you attempt to attend that hearing?
A Yes.
4 Did you attend the hearing?
A No, I did not.
MR. LANZA: I'm going to object to this also on
relevance grounds. Go ahead.
MR. MARSHALL: We are going to go ahead.
MR. LANZA: I understand, I just wanted it of
record.
MR. MARSHALL: I don't see how it's not
relevant because you will see once we work through this.
BY MR. MARSHALL:
4 What occurred that prevented you from
attending that termination hearing?
A I had a child -- I'm a single father of five
children -- I had one of my children who came home who had
-- I will call them boils, you and I would look at them and
call them boils, like on four or five different parts of his
body, like on his arm, on his leg, on his chest. And I did
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L what I thought -- we have an HMO -- so I did what I
? thought was the routine thing.
We started with the family practitioner, we
started with a specialist, we ultimately wound up at Holy
Spirit Hospital, they ultimately -- and I'm making this
short -- but it took a day and a half. They ultimately did
a culture and determined that in fact they were not boils,
but that they were localized Staph infections.
Q When did this occur, these hospital visits?
A And doctors' visits.
Q And doctors' visits, when they did they occur?
A On the day before and the day of the October
22nd hearing.
Q When did you learn that you would not be able
to make the actual physical hearing?
A It was actually sometime that morning of the
hearing, because what I did was I called -- '
Q That's not what I'm asking about.
A When I knew that it was going to be longer
than just an hour.
Q Where were you, though?
A I was at the hospital.
Q Which hospital?
MR. LANZA: I'm going to renew my objection to
the reference to this as a hearing, just for the sake of
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1 having a clean record.
2 MR. MARSHALL: Understood.
3 A On the day of the call --
4 By MR. MARSHALL:
5 Q Of the inactive case list?
A -- inactive case list, I was at the hospital.
7 And it was determined by my logic that I was going to --
that it was going to take me longer than shorter, as you
know from getting medical treatment, and that I knew that I
i was not going to be able to get all the way down to Carlisle
by noon or one o'clock.
Q What, if anything, did you do?
A I called the Prothonotary's Office in
Cumberland County.
Q What, if anything, did you learn?
A I talked to whoever the person was that
answered the phone -- and I do not have her name -- but
she specifically told me that that call of the list was
currently going on and that the person from the
Prothonotary's Office who was assigned to attend that call
was in fact at the call and I could not speak to her.
So I said, I'm not going to be able to get
there in time, what do I do. And I was told very
specifically, you just need to either send a letter or a
very brief petition, because I specifically asked, do you
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1 need a full blown-up thing or is it short and sweet. And
2 she said, no, brief, and it just needed to say this was an
3 active case, I intended to be there and why I was not going
i to be able to be there.
MR. LANZA: I'm going to place an objection on
i the record as to the relevance of advice given by the
Prothonotary.
MR. MARSHALL: Understood.
BY MR. MARSHALL:
Q Now, sir, did you in fact file a petition?
A I did per those instructions. But the day or
two after not being at the call of the list, I called the
court administrator's office and I asked the very same
question and was given the very same answer, file a very
brief petition that covered X, Y and Z. And I in fact then
did do that.
MR. LANZA: Same objection.
BY MR. MARSHALL:
Q After filing the petition, what if anything
occurred in terms of the Court?
A I don't remember the date exactly. On November
-- I filed the petition on November 6th -- and I'm looking
at the -- what would you call this?
Q The docket.
A The docket from the Cumberland County
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1 Prothonotary's Office. On November 18th the judge issued a
2 ruling, a rule to show cause upon defendants to show why the
3 case should not be nol prossed.
4 Q Up to this point in time, did you receive any
5 communication from the Prothonotary's Office that th
e case
5 had been dismissed?
7 A Not anything.
Q Was a hearing scheduled with Judge Oler
relative to that petition and his rule to show cause?
A Yes. The hearing was to be held on February
-- I wan t to say the 18th.
Q February 19th?
A I'm sorry, February 19th.
Q Of 2000 and...
A And 03.
Q Did you proceed there?
A I did.
Q Did you have counsel there with you?
A I did.
Q Were you prepared to place evidence along the
lines of what we have just discussed here today as to
your
reason for not appearing at the call of the termination of
the inactive case list?
A Yes.
Q Prior to the hearing on February 19th, up to
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1 that point in time, had you received any notification or
2 order from the Prothonotary's Office that the case had been
3 terminated?
4 A I did not. I knew that it had, but not from
5 information sent to me by the Prothonotary.
' 4 How was it that you*learned that this had
occurred?
' A I went to the courthouse when I got the
November 18th rule -- I don't remember the day, I'm drawing
a blank -- I want to say that. . .
4 Was it in 2003?
A It was in 2003. I believe it was January 10th
of 2003 I was in Carlisle for some other business, I stopped
at the courthouse. And I said, well, I'm going to just stop
and get a copy the docket. I did. It showed nothing. I
went back -- so I had that.
Then I went back the week before the hearing
of February 19th and I want to say maybe February 10th or
11th or 12th and I all of a sudden saw that on January 13th
they entered an order -- the Prothonotary entered an
order -- dismissing the case. And the docket in fact does
say that.
4 Is that the first time you learned of the
actual dismissal?
A Yes, absolutely.
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1 4 Prior to that there had been no entry of any
2 order on the docket?
3 A There was none.
i MR. LANZA: I'm going to object here. I think,
i first of all, the judge did enter an order on or after
i February 19th which we are following here by having these
7 proceedings. And to renew and clarify my earlier objection
on relevance, under the Jacobs test for these types of
proceedings, what is relevant is not what happened on
October 22nd and thereafter, but what happened in the
preceding period.
MR. MARSHALL: We will get to that.
MR. LANZA: That's why I'm objecting to this
line of questioning regarding the events of from October
through February.
BY MR. MARSHALL:
4 Upon learning that, what if anything did you
do?
A On the day of the hearing of February 19th, I
again went to the docket and I got a copy that morning I
showed up early for the hearing, I got a copy. Lo and
behold the docket then had a new entry on it dated February
14th that wiped away the January 13th dismissal order. And
I then on that hour later at the judge's conference I
brought that to the judge's attention.
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1 Q At that time now did the judge instruct you to
2 do anything at that time as a result of that hearing?
3 A Yes. He issued another rule to show cause
4 upon defendants as well as authorized me to file a petition
5 to open under Rule 3051.
6 Q Did you do that?
7 A I did.
B Q Is this deposition part of the proceedings
3 ordered by Judge Oler?
A Yes.
L Q Now, sir, going back to the time period
' immediately prior to the termination list that was held
October 22nd, 2002, am I correct that you had sought
depositions from Mr. Weidner?
A We had attempted to get them scheduled.
Q You actually had them scheduled?
A We did have a date, yes.
Q It was cancelled by the defendants' attorneys,
not by you?
A No. I was just -- we got them scheduled maybe
late September for some date in October
And I
.
was going to
send out the actual deposition notice and all of a sudden I
got the call of the list.
Q Ultimately, though, the discovery was ongoing
in the case?
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I A I thought it was.
2 Q In the intervening period, as I understand it,
3 this was originally filed August of 1999, am I correct?
I A The complaint was filed August of 1999.
Q You were in active discovery, is that correct,
through the year 2000?
A We were responding to the defendants'
discovery.
Q And I am also correct, am I not, that the
defendants up through October of 2002 failed to make the
arrangements to come over and obtain the information from
the computer that they sought in discovery and that you were
freely willing to provide?
A We were, yes. They had not and we are still
willing to provide it.
Q If the Court were to open this case, what
further steps would be taken prior to listing the case for
trial?
A We would probably still take those depositions
that we had intended to take some time in the fall of 2002
and then list the case for trial and I would assign it to
different counsel.
Q That's all the discovery that you needed?
A We did not want any other discovery.
Q Had this issue not arisen, that is the
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1 termination of the active case list that you have testified
2 to, is it your belief this the discovery would have been
3 completed by this time frame?
4 A Yes.
5 Q And would the case now be listed for trial?
A Yes, it would have.
7 Q At any time during the
pendency of the
3 discovery issues, was there any communication or
conversations in an attempt to settle the case with Mr.
Weidner?
A I am sure that at least at some point in this
time frame that we at least talked about it. But I believe
that the parties were too diametrically opposed.
Q Am I correct, sir, that the defendants even as
late as September of -- the August/September time frame of
2002 were intending to take your client's deposition and to
provide theirs for deposition?
A That was my understanding.
Q Did they every write and tell you that they
did not wish to take any further depositions?
A No.
Q Have you received any information from the
defendants that either Mr. Harvey -- that's Scott Harvey or
Charles Harvey -- were unavailable for depositions?
A No.
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I Q Have you been willing to make your clients
2 available for their depositions if the defendants sought
3 that?
4 A Yes.
5 Q Once the offer was made to make the computer
6 available, was it your understanding that the defendants
7 needed that discovery before they took the depositions of
9 the parties?
3 A I don't think I had an understanding of that
as to whether they needed it or not.
Q Did they indicate to you that they wanted the
documents off of the computer?
A They did want the documents, they did ask for
the documents. And we did have a discussion about that, in
fact, Cinemagic -- it was going to be for them to just sit
there and make a guess as to what was wanted. It was not
going to work because they might get a second request.
So that's when I offered to them, let's offer
to the defendant, they can just come over here and sit with
a person and take whatever they want that's related to the
case.
Q That offer continued to be open up until the
time frame when the depositions were scheduled?
A Yes.
Q It's open even up to this date.
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1 A They can come do it any time.
2 Q I'm not sure whether I asked this before, but
3 I want to clarify. Prior to your actually going to the
4 courthouse, I believe you said it was in February of 2003,
5 you had not received any written communication from the
6 Court regarding the fact that this case had been terminated?
7 A That's correct.
3 Q When was the first time that that order
3 actually app eared on the record?
A On the docket the order appeared January 13th
of 2003.
Q Once you learned of that, is that when you
took action?
A Yes.
MARSHALL: I have no further questions.
(Discussion held off the record.)
CROSS-EXAMINATION
BY MR. LANZA:
Q I'm going to give you what I'm going to have
marked as Defendant Exhibit 1 and have you take a look at
that.
(Witness confers with counsel.)
(Request for Production of Documents marked as
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1 Defendant Exhibit Number 1.)
2 MR. LANZA: The record will reflect that the
3 witness has consulted with his counsel.
4 BY MR. LANZA:
5 Q Do you recognize that document?
5 A Yes.
7 Q You referred in your testimony earlier to a
3 document production request. Is this that request?
A I believe that's one of them.
Q Were there others?
A I'm not sure, but it just says set one. I
don't reme mber if there was a set two or not.
Q Is it your understanding or belief that the
plaintiffs have complied with this request fully?
A Pardon me?
Q Is it your belief or understanding that the
plaintiffs have complied with this request fully?
A There when I --
MR. MARSHALL: I'm going to confer with my
client.
(Witness confers with counsel.)
A I need to -- if you want a yes or no, I can do
that. I think it needs to be explained, so I might as well
just explain it.
BY MR. LANZA:
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1 Q can you give me a yes or no first and then
2 explain?
3 A Read the question back to me.
4 (Question read.)
5 A It was my understanding that we at the time
6 tried to comply with this request as best we could with the
7 qualifications that when I could only answer part of what
8 all of the very comprehensive things that were being asked
3 for were asked for, I said, we will either furnish them at a
later date and/or I might have even said I could check my
L answer to these, that they are on our computer, we will
either try to get them -- this was at the time when I
answered these -- or I might have said you can come over
and get them. But I would have tried to, as comprehensively
as I could, answer these.
BY MR. LANZA:
Q You were testifying earlier regarding a
confidentiality issue?
A Yes.
Q Forgive me if I'm not fully understanding
that, but was that related to a request from defendants to
plaintiffs for documents, the confidentiality issue?
A That's correct.
Q Would that relate to this particular request?
A It would have.
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1 Q Did you ever file any objections or serve any
2 objections on the basis of confidentiality?
3 A No, because I talked to Mr. Weidner and he
4 said that -- before we got it worked out -- if you just
5 give me a confidentiality agreement that m
cli
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6 sign, I'm sure we can work it out.
7 Q That's what Mr. Weidner said?
3 A Yes.
Q Did you provide a confidentiality agreement?
A Ultimately, we got it worked out.
Q What was the resolution?
A The resolution was that I suggested that they
come over and look through our computer with a
person
standing next to them to give them all the relevant things.
We were no t just going to give them complete computer
records of the voluminous things they asked for in this
document.
Q What was Mr. Weidner's response to that offer?
A I think he might have suggested that I talk to
either his secretary or paralegal. I do know that I did talk
to a woman about this.
Q Do you remember the woman's name?
A I do not.
Q But all this was over the phone?
A Yes, it was.
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1 Q Can you remember when it was?
2 A And it might have been one time I actually
3 stopped in his office. I do have a memory that one time I
4 was probably in the Lemoyne area or whatever and said, have
5 you got ten minutes, I would like to stop and talk to you
6 about it. And it might have been about a confidentiality
7 issue, I just don't remember. But I did stop and talk to him
B at least once.
3 Q Can you take a look at our
Y petition,
paragraph ten, what you were looking at earlier. There is a
reference in subparagraph H and I. Is what you're
testifying about now substantially what you referred to
subparagraphs H and I?
A Yes. I will admit -- the reason that I'm not
positive of the date, I did -- after I had completed
this -- saw that I had sent a letter dated April 17th of
2000. But I also had either a note or something in my file
that some time in August -- and I must have had August
20 -- because I had the date somewhere that I talked to
either the paralegal or Roy with regard to coming over and
having availability of the computer.
Q Did Roy make any statement regarding his own
proficiency or lack thereof with computers?
A He did, he absolutely did, now that you say
that.
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2 A He said, I wouldn't even know how to turn a
3 computer on. And I agreed with him because I said I don't
4 know how to turn the computer on. And that's why I thought
5 maybe he said you need to talk to either my secretary or
6 paralegal. I think it was actually paralegal.
7 4 Did Roy express any concern with the ability
8 of a paralegal or an assistant to recognize the significance
9 of legal documents that might appear on the computer file
10 and as to whether those documents would suit the request?
11 A No, he did not, not that I remember.
12 MR. MARSHALL: Just for the record
your
13 request consisted not just of legal documents, but invoices,
14 receipts, documents relative to the acquisition of
15 supplies, for use with a plotter, all expenses related to
16 the plotter, time cards, work sheets by various employees.
17 We once sought information related to estimated replacement
18 costs, accounts receivable, sales journals, monthly aging
19 reports, all fixed asset and appreciation schedules used to
20 prepare IRS Form 4562, asset ledgers, et cetera.
21
And the point that I'm making is that you say
22 you mentioned legal documents, it was my understanding that
23 the types of information that were sought here would be
24 readily available on the previous computer system. And that
25 was the reason why the offer was made. It's not legal
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1 documents, but just all of the receipts and ledgers and
2 things relative to your request.
3 4 To clarify my question, if I referred to legal
4 documents, that was not what I intended. What I intended to
5 ask was whether Roy Weidner had expressed concern over
6 whether his assistant would recognize the legal significance
7 of documents in the computer system and whether those
8 documents were responsive to the request.
9 A I thought that they were at the time. You need
to just understand, we talked about prior litigation in this
L case. What you might not be aware of was that in the case
where there was an action filed to get the property back,
seizure, one of the witnesses was an accountant named
Kostukovich, I believe was his name. He is the accountant
for the Harveys.
Well, guess who else he is the accountant for.
Cinemagic. And part of the problem was that I had to
cross-examine that accountant. And, ultimately, in the
cross-examination of the seizure case, he turned into our
witness and not the Harveys' witness. So part of what you
were asking for was information from an accountant who now
possibly was going to be a hostile party.
It was a real complication here about all
these things. That's why we felt after talking with
Cinemagic that the smarter way to get the discovery
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2 like what we would need to complete the discovery. And we
3 were willing to give it.
4 4 As far as an answer to my question then
you
5 don't recall Roy expressing any concern over a paralegal or
6 an assistant's ability to discern the suitability of
7 documents that might appear on that computer?
B A He could have, I honestly do not remember
3 that. I do know that he did say that he was not capable and
I said I clearly was not capable.
_ MR. MARSHALL: I don't want you to guess or
speculate. It's a simple yes or no.
A I do not remember.
MR. LANZA: He has answered my question.
BY MR. LANZA:
4 Did you have any -- whether you expressed
them or not -- did you have any concerns with whether or
not an administrative assistant, given the complexities that
you have expressed here, did you have any concerns whether
an administrative assistant would be able to discern the
responsiveness of particular entries on the computer to that
document production request?
A Did I?
4 Yes.
A Absolutely. That a paralegal could have picked
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2 without any doubt in my mind.
3 MR. MARSHALL: Let's go back and ask the
4 question again.
5 A That's fine.
6 BY MR. LANZA:
7 Q Since I understand the offer at the time to
9 have been since Roy is not proficient or expressed a lack of
3 proficiency with computers, the offer was to have Roy's
administrative assistant come over to Cinemagic and look at
their computer. Is that correct?
A Or someone of Roy's choice, yes.
Q But at the time you expressed it as Roy's
assistant?
A I believe that's what was discussed.
Q You're saying that based on your previous
answer you feel that an assistant, Roy's assistant, could
have understood and discerned whether a particular document
on Cinemagic's computer would have been responsive to this
request?
MR. MARSHALL: Objection. I'm not going to
allow him to answer that question as phrased. Very simply,
the offer was to have someone at Cinemagic pull up all of
the documents related to Harvey on their old computer system
and have them available for either copying, downloading,
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1 reviewing by a representative of Harvey, whether it be
2 an
administrative assistant, an accountant, anybody they
3 wanted. That was the offer.
4 And I don't see how my client can determine
5 whether or not your folks have the capability of assessing
6 information. The offer was to just simply call up all of
7 the information that was on the computer that related i
8 n any
way to the discovery request and to the Harveys' acc
ount.
9 BY MR. LANZA:
10 Q Is there a reason why under that offer
11 we
would have had to have someone come over and look at the
12 computer screen rather than look at a printout
, you could
13
14 send to us and then Mr. Weidner could then review it at his
own leisure or at his own convenience in his office under
15 the normal course of discovery?
16 A Because the items that, as I understood it,
17 that were involved with the Harvey collection lawsuit
18 were
-- did not involve some preexisting contractual dealings
19 that they had for which the Harveys paid for
So it
.
would
20 have been a waste of time just to print out everything that
21 had to do with the name Harvey.
22 We felt that someone needed to take the time
23 and sit down there and review from the dates of the lawsuit
24 and the items that were not paid for. That's why I felt
25 there was an issue as to who would come over to do it.
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1 Q What would someone have been looking at under
2 your offer if they had come to Cinemagic's office?
3 A I guess -- and I realize I have counsel
4 here -- but I guess my question is what is the relevancy of
5 all this. I even answered in my answers that this stuff is
6 electronically stored, we were ultimately going to try to
7 retrieve it. And, ultimately, it turned out that it would
8 be more practical for my client, more economic, less time
3 consuming just for them to pay an employee to sit there with
a representative of Harvey or the law firm to get what they
l wanted. I said that in my answers.
Q My question, though, is what I don't
understand is what would they have been looking at if they
had come to Cinemagic's office, what would have been on the
computer screen?
A Guess what, I don't know because we never got
there.
Q I'm not asking for particular items, I'm
asking for categorization of what someone would have seen?
A I don't know because we never got there.
Q When you spoke to Roy, you didn't know at that
time either, is that correct?
MR. MARSHALL: I'm going to object to that
question. He has already testified that they were
attempting to answer specifically the stuff that was in the
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2 request for production. Mr.
computer expertise. One of Waeger has testified
the reasons -- as Mr. he has no
Weidner
3
4
5
6 didn't -- one of the reasons that they opted to go this way
was it would be more efficient and economical for everybody
and there was going to be no holding back of any
information.
i
7 Mr. Waeger does not know about the internal
8 mechanics of how they keep their documents and receipts and
9 their records on the computer. That's why the offer was
10 made to the defendant to send whoever they want to send to
11 come over and sit down. They will go through the stuff,
12 anything related to the request for production and the
13 intent was to provide it either by way of downloading or
14 printing because there was not just Cinemagic information on
15 it, there was other clients' information that's interwoven
16 on the computer. So how can he know what's on the computer,
17 he is told by his client, this will answer it, the offer was
18 made and to this date has not been followed up upon by the
19 defendant. What more do you want from him?
20 MR. LANZA: I assume that's an objection.
21 MR. MARSHALL: That is an objection.
22 MR. LANZA: The response, I bring this up
23 because essentially Mr. Waeger has offered into evidence
24 this information about this offer that was made to Mr.
25 Weidner and apparently where we seem to be going with this,
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1 with my line of questioning, is we really don't know and
2
3 apparently we did not know at the time the offer was made
what specifically was being offered.
4 Whether or not our staff was going to be
5
6 looking for -- looking at a list of documents, the documents
themselves, apparently, it might have involved other files
7
8 of Cinemagic that had nothing to do with Harvey, and somehow
an administrative assistant of Mr. Weidner's was somehow
9
10
11 supposed to discern whether those items were what we were
looking for or not. That really is the reason I'm asking
these questions to see if this offer really was leading
12 anywhere productive as opposed to simply providing the
. 13
14
15
16
17 documents.
A I'm involved with the litigation management of
eight thousand lawsuits. I can tell you in hundreds of
those lawsuits I have a reputation of providing the best
answer and not the evasive answer in answer to discovery
18
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And I felt, in representing my client, that because this was
stuff that they wanted to protect, that the most efficient
way, as I have done in many other lawsuits, was to have a
paralegal or whomever the defendants decided was the most
appropriate person to review the records on the computer and
decide what was wanted. That happens every day in complex
medical malpractice cases. And that was my only logic.
BY MR. LANZA:
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1 Q Your experience has been to allow or to i
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2 nv
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a paralegal or administrative assistant in other litigation
3 cases to come and look at the computer similar to what
4 you
are offering here?
5 MR. MARSHALL: Objection, that's not what he
6 said. He said or someone of their choosing.
7 BY MR. LANZA:
8 Q Or someone of their choosing?
9 MR. MARSHALL: It's been asked and answered.
10 He did said he did not know specifically what they would be
11 looking at because he is not computer literate
I
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t
s my
understanding that to this date there has
never been one
13 follow-up letter, there has been no motion to compel by the
14 defendant, there has been no effort whatsoever from th
i
15 e t
me
of that offer to the present time, even as we sit here
16 today, to come over and review that material by whomever the
17 defendant chooses to utilize.
18 How is he to know what your person's
19 capability would be. The offer was that they would o
20 pen up
their systems, that they would make it all availabl
21 e and
that they just simply would have one of their employees sit
22 there and they could go with whomever Mr. Weidner cho
23 se to
review this stuff and give it to them. I don't
see how it
24 can be any clearer.
25 BY MR. LANZA:
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1 Q My question was since Mr. Waeger has brought
2 up the experience in hundreds of other cases in the medical
3 malpractice cases, I'm trying to clarify and establish that
4 in fact in those cases you invited opposing counsel to have
5 someone of their choosing come and look at your client'
6 s
computers?
7 A I don't invite them. I know that there
8 are
many times when there is discovery ongoing and things are
9 held on a computer base, that law firms in the discover
10 y
process send young associates, senior partners,
paralegals,
11 secretaries, whatever it is to go through a co
mputer --
12 whatever the word is. . .
13 MR. MARSHALL: Database?
14 A Database, to get what matches the discovery
15 request. I don't personally do it, but I know that i
'
16 t
s
done.
17 BY MR. LANZA:
18 Q In your experience, have you invited and made
19 similar offers as you made to Mr. Weidner to have
20 someone
from the opposing side come and look at
your client's
21 computer?
22 A In a case that I would have handled
23 personally?
24 Q Yes.
25 A No.
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1 Q That's all I really wanted to know. Did
2
3
4 settlement negotiations take place in this case? I'm asking
specifically this case, not the other cases involving Harvey
or Cinemagic.
5
6
7
8
9
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11 A I am sure that Roy and I at least one time had
at least some generic conversation as to whether or not
these parties would ever agree to some settlement of this
case, because I do have a memory of talking to my clients
about should I talk to the opposing counsel about this case,
can we get this case settled after they had calmed down and
dust had settled, et cetera.
12
13
14
15
16 Knowing that, I'm sure that I would have
talked to Roy. I don't have a date and I don't have a
memory, but I would venture to say that at least one time we
had at least a general conversation about was it even
plausible.
17 Q So it never went beyond the level of
18 plausibility?
19
20 A It never went to a written document, that's
correct.
21
22 Q Did it ever even go as far as anyone making an
offer of any kind?
23 A No.
• 24
25 Q When the subject of whether it was plausible
came up, did you inquire of Mr. Weidner of whether it was
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1 plausible that it might settle?
2 A Either that or he might have inquired of
3 me.
I just don't remember.
4 Q Whoever made inquiry as to plausibility, do
5 you recall what the response was?
6 A I don't, I really don't.
7 Q Do you recall how often that those discussions
8 might have happened?
9 A I do not. I think it's honest to say maybe one
10 time.
11 Q Did you ever send a notice of deposition?
12 A No.
13 Q If I understand your testimony from before,
14 that was because you received a call of the list for October
15 of 2002 that we referred to earlier?
16 A When I tried to
get it scheduled, I thought I
17 was being practical of trying to get a date that all the
18 partied had agreed upon. I think when we got a date, it
19 might have been like maybe the same week that the call of
20 the list came out or the week after that was
a proposed
21 date. And I knew that once that list came out that it
22 was
going to be effortless -- or useless -- for
23 me to send out
a deposition notice, depending upon that.
24 Q Did you have a date actually set, though?
25 A I thought we did have an approximate date.
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1 But I didn't look to see if I had it written down anywhere,
2 to tell you the truth. I knew that there was some
3 conversation that we had tried maybe a September date, maybe
4 we even tried an October date. But it might have e
ven moved
5 into a date -- or not an actual date -- but a date or two
6 or three in late October, early November.
7 No, in answer to your question, we never had a
8 firm date that I could have sent a notice of deposition
9 out
on. We had some approximate dates between either me and
10 either his secretary or paralegal that I
was going to talk
11 to my client about to try to get it scheduled. There
12 was
clearly more than one or two phone calls with regard to
. 13 getting it scheduled.
14 Q Those phone calls took place in October of
15 2002?
16 A In one of those two months there, yes,
17 September or October.
18 Q You didn't learn of any --
19 A I'm sorry, I might have a written document
20 from Roy or his paralegal that talks about the dates.
21 MR. LANZA: If you have one I'm sure, we have
22 it too somewhere so that's fine.
23 (Documents marked as Waeger Exhibit Numbers 1,
24 2 and 3 and 4.)
25 (Discussion held off the record.)
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1 MR. MARSHALL: I think we were talking earlier
2 about some of the dates and I think these four letters would
3 clarify some of the dates, in any event.
4 BY MR. LANZA:
5 Q One of these does help. I will look at Number
6 3 September 27, 2003, by way of clarification you did
7 receive Exhibits 1, 2 and 3?
8 A That's correct.
9 Q Those are from your files?
3 A That's correct.
L Q Number 3, September 27th refers to the dates
of November 4th and 6th. As best as you can recall, were
those dates available for you?
A Today, I don't know, I don't remember.
Q To the best of your recollection, did you ever
express, either orally or in writing, any disagreement with
those dates?
A No, I'm sure that the reason that the letter
was written the way it was is because I talked to whomever
the paralegal or whoever and said, let's try November 4th or
6th because they were available to my client.
Q According to this -- and this is consistent
with your earlier testimony -- there was no order of Court
actually dismissing the case until January 2003, January
13th, and you testified you were not aware of it at least
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1 until February 2003, is that correct?
2 A That's correct, but that the call of the list
3 was for October.
4 MR. LANZA: Right. Those are the only questions
5 I have.
6
7
REDIRECT EXAMINATION
8
9 BY MR. MARSHALL:
10 Q Mr. Wae er
4 just to clarify a couple of points
11 here. Am I correct that there were attempts made to kee
th
12 p
e
case moving up until the
point in time when this situation
13 arose relating to the call of the inactive list?
14 A Yes, I was trying to keep the case moving.
15 Q I'm going to refer you to what has been marked
16 as Waeger Number 1. Could you identify that for the
17 record,
please.
18 A It's letter dated March 1st of 2000 from Roy
19 Weidner to myself.
20 Q What if anything was the topic the letter?
21 A It says that I met with him on February 11th
22 of 2000. And we --
23
Q Why don't you just read the first paragraph.
24 A The letter says that I suggested that
25 you
prepare a confidentiality agreement to
cover your client's
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1 concerns, obviously, because I brought that up at the
2 meeting about disclosing information of a confidential
3 nature and that it was his understanding that I would, as I
4 earlier testified, that I would be preparing the
5 confidentiality agreement.
6 Q Could you read paragraph two there.
7 A "I will calendar this for ten business days.
8 If I do not have these items, I will file a motion to
9 compel. It is ready in draft form".
Q Am I correct to this date the plaintiff -- or
L the defendants -- have never filed a motion to compel any
activity in this case?
A That's correct.
MR. LANZA: I will object to the relevance of
that under the Jacobs test.
MR. MARSHALL: Your objection is noted.
BY MR. MARSHALL:
Q I would like to refer you to Exhibit Number 2.
What is Exhibit Number 2?
A It is also a letter from Roy Weidner to myself
dated November 30th of 1999.
Q What does it relate to?
A It relates to a letter that talks about the
request for production of documents and it says specifically
that they were served and that we include in our definition
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1 of documents electronically created data and electronically
2 stored data.
3 Q You have given testimony about the difficulty
4 in obtaining that information in the discovery process,
5 isn't that true?
6 A Yes. It had to do partly because of Y2R,
7 which was occurring at this time and my clients changed
8 computers.
9 Q You were asked on cross-examination about the
fact that you had some questions whether Mr. Weidner's
L people, whomever it might be, would be competent to discern
the value of information contained on the computer. Do you
recall those questions?
A Yes.
Q Did you limit in any way the person that the
defendants could send over to review the computer data?
A No.
Q They could have had a computer specialist, if
they so sought?
A Yes.
Q An accountant or any other specialist that's
competent in computer operation to view the contents of that
computer?
A Yes, we made no limit.
Q In fact, I would like to refer you to Exhibit
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1 Number 4. What is the date of Exhibit Number 4?
2 A April 17th of 2000.
3 Q Who is it addressed to?
4 A To Roy Weidner.
5 Q And is it in reference to this case?
6 A Yes.
7 Q Could you read into the record the letter.
3 Read it verbatim, please.
3 A It says, "Dear Roy: Cinemagic will make a
computer available to you or your paralegal as well as an
operator so that the discovery in this matter can be
completed. This way your paralegal may sit next to the
operator and generate whatever documents are related to this
matter. Otherwise, it will be another week or so until all
of the discovery items not furnished to date can be
generated. I'm sorry for the delay, but we are working on
it".
Q You did not limit it to Roy or his paralegal,
did you?
A No.
Q He understood that the offer was anybody he
wanted to could come?
MR. LANZA: I'm going to object to the question
as to what Roy understood.
A I did not limit it.
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1 BY MR. MARSHALL:
2 Q It was not limited in any way, that's my
3 point, okay. I'm going to refer you to Exhibit Number 3.
4 What is the date of Exhibit Number 3?
5 A September 27th, 2002, a letter from Roy to
6 myself.
7 Q Is it in reference to this matter?
8 A It is.
9 Q Did this letter have anything to do with
scheduling the depositions you have testified to today?
L A Yes.
Q In fact, would you read the first paragraph
i into the record?
A This is again from Roy to me that says: This
confirms the voice mail I left this morning. I am not
available to do depositions in this case the last week of
October.
Q I will stop you right there. Are those the
dates that you were originally talking about as of September
-- the late September time frame?
A I believe so, yes.
Q Could you read the next paragraph.
A November 4th and 6th are currently available
dates for me. I am checking with our client on his
availability on those dates for you to depose him. And then
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there is a footnote that also says: November 5th is no
longer available.
Q Those are dates that he would be available,
correct?
A Correct.
Q What's the next line?
A I do wish to depose your clients and any
witnesses they intend to call to trial. Which is what I
said, it was going to be their deposition and my deposition.
Q As a result of that letter, did you receive
any notice of deposition from Mr. Weidner?
A No.
Q Do you know whether he was putting out for the
first time the dates of November 4th, apparently, 5th and
6th at the time of this letter or did you discuss that as a
possibility before?
A My memory was that we originally first tried
for September. For whatever reason some dates in September
didn't work. Then we tried October and ultimately that got
tied up or there was a conflict. And then we got into
November.
Q Were you attempting to move the case along?
A Yes.
Q Was it in fact you that was pushing for the
depositions?
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A Yes. I made the calls to get the depositions
scheduled.
Q He did not call you to suggest that he do your
people first, am I correct, it was you who called them?
A That's correct, I called them.
Q And there was apparently some communication
and cooperation between the parties checking availability at
that time?
A That's correct, I was not going to send out a
notice until we had a date certain.
Q One of the reasons is as the P.S. indicates on
the bottom of the page?
A That's correct.
MR. MARSHALL: That's all I have, thank you.
MR. LANZA: Nothing further.
(The deposition was concluded at 4:15 p.m.)
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STATE OF PENNSYLVANIA
. ss
COUNTY OF DAUPHIN
I, Virginia Loria, a Reporter Notary-Public,
authorized to administer oaths within and for the
Commonwealth of Pennsylvania and take depositions in the
trial of causes, do hereby certify that the foregoing is the
testimony of ROBERT W. WAEGER.
I further certify that before the taking of
said deposition, the witness was duly sworn; that the
questions and answers were taken down stenographically by
the said reporter Virginia Loria, a Reporter Notary-Public,
approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the proceedings and
evidence contained fully and accurately in the notes by me
on the within deposition, and that this copy is a correct
transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this 2nd day of May, 2003.
V
Virgin Loria, RPR
My commission expires:
May 17, 2003
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577
?? J
CINEMAGIC, INC., IN THE COURT OF COON PLE OF
Plaintiff CUMBERLAND COUNTY, P NNSYLVANIA
V. CIVIL ACTION - LAW
SCOTT W. HARVEY .
and CHARLES HARVEY, :
t/d/b/a COINS
UNLIMITED,
Defendants NO. 99-4895 CIVIL TERM
ORDER OF COURT
AND NOW, this 22 n1 day of May, 2003, upon consideration of Plaintiff's petition
to Open, and following oral argument held on May 21, 2003, Plaintiff's petition is
granted and the purge of this case is vacated.
BY THE COURT,
Robert W. Waeger, Esq.
P.O. Box 234
Harrisburg, PA 17108
David J. Lanza, Esq.
301 Market Street
P.O. Box 109
Lemoyne, PA 17043
Attorney for Defendants
J• esley Oler, J
,t4lo .2
1 Q,
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VNVAIASNN3d
,kmc ? ciF(?t ==ono
gu :zl ad + ?, kVW Po
CINEMAGIC, INC. IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
SCOTT W. HARVEY and
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION PANEL
CIVIL ACTION - LAW
NO. 99-4895 CIVIL TERM
ORDER OF COURT
AND NOW, October 18, the appointment of Daryl Christopher,
Esquire, to the Arbitration Panel in the above matter is vacated, and Lisa
Coyne, Esquire, is appointed in his stead.
By the Court,
X
G r o er, P.J.
Alonald Dorer, Esquire
Chairman of the Arbitration Panel
214 Senate Avenue, Ste. 503 J
Camp Hill, PA 17011-2336
Court Administrator
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CINEMAGIC, INC. : IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PA
V.
CIVIL ACTION- LAW
SCOTT W.HARVEY and :NO. 99-4895 CIVIL TERM
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION
PRAECIPE
AND NOW, this 6`h day of December 2005 Plaintiff's and Plaintiff's Counsel
respectfully requests that this matter be withdrawn from Arbitration at this time.
Defendants and Defendant's Counsel do not object to this request.
4j?
Robert W. Wi
P.O. Box 234
Harrisburg PA
717-783-3770
CINEMAGIC, INC. : IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PA
V.
CIVIL ACTION- LAW
SCOTT W.HARVEY and :NO. 99-4895 CIVIL TERM
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION
PRAECIPE
AND NOW, this 6`h day of December 2005 Plaintiff's and Plaintiff's Counsel
respectfully requests that this matter be withdrawn from Arbitration at this time.
Defendants and Defendant's Counsel do not object to this request.
?A44
Robert W. Wae
P.O. Box 234
Harrisburg PA 7 08
717-783-3770 06
i??h? adYJ P4.': MT ??,. •:?Wi Fi?W.?y 494.
- ;
,__
?`\
CINEMAGIC, INC.
V.
SCOTT W. HARVEY and
CHARLES HARVEY, t/d/b/a
COINS UNLIMITED
IN RE: ARBITRATION
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
NO. 99-4895 CIVIL
ORDER OF COURT
AND NOW, December 7, 2005, the Court having been informed that
the above matter is being withdrawn from arbitration at this time, the Board of
Arbitrators previously appointed in the above matter is vacated
By the Court,
/%%/-)i
Ge r E. o er, P. J.
Donald Dorer, Esquire
Chairman of the Arbitration Panel
214 Senate Avenue
Suite 503
Camp Hill, PA 17011
Robert W. Waeger, Esquire /
PO Box 234 ?VD
Harrisburg, PA 17108
Lisa M. Coyne, Esquire
1901 Market Street
Camp Hill, PA 17013
Megan Malone, Esquire
401 East Louther Street, Ste. 101
Carlisle, PA 17013
'?,,?, .:
Curtis R. Long
Prothonotary
(Office of the Protbonotarp
QCumberiarlb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
L79 - J499S CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573