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HomeMy WebLinkAbout99-07559 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. q4-Z-5-1 CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS To: Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 AND NOW, this 1 l ()ay of December 1999, issue a summons against CARL J. DAVIS, at his last known address, which is 120 Locust Lane, Dillsburg, Pennsylvania 17019. For your records, the Plaintiffs address is 5053 Ritter Road, Suite 200, Mechanicsburg, Pennsylvania 17055. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :129818 Attorneys for Plaintiff cr C) nr c r7ZZ, a t u:-: C'j ?_ G :ii ` `?' `J 10 Commonwealth of Pennsylvania County of Cumberland J. MICHAEL BRILL S ASSOCIATES, INC. i vs. t CARL J. DAVIS 120 Locust Lane Dillsburg PA 17019 Court of Common Pleas 99-7559 Civil Term No - ------------------------------------- 19 Civil Action - Law In ----------------------- Carl J. Davis: To --------------------------------------------- You are hereby notified that .----------------------------- - - J _ Michael -Brill -*-&6_Associa-t-- es 1_ Inc_ -° ----- --------- - the Plaintiff ha commenced an action in ------- ------------------------------------------------- against you which you are required to defend or a default judgment may be entered against you. (SEAL) Curtis R. Long December 20, Date ------------------- 19 99 By v a N v i? C ,O N E r-I i Ln I d i ? o ' . z n i . a; j N . i C i ???777 • ? Qi i N U >; V, QI n s a V_ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-07559 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRILL J MICHAEL & ASSOC INC VS DAVIS CARL J R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: DAVIS CARL J but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within WRIT OF SUMMONS On January 28th , 2000 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answ s: Docketing 18.006?> out of county 9.00 Surcharge 8.00 R. Thomas Kline DEP. YORK CO. 48.60 Sheriff of Cumberland County .00 83.60 01/28/2000 JOHNSON, DUFFIE, STEWART Sworn and subscribed to before me this day of ,q c-v?7 A.D. ? 7In n C ?' ?e Prothonotary i COUNTY OF YORK OFFICE OF THE SHERIFF S71 ICE ALL 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN J. Michael Brill & Assoc., Inc. 3.-DEFENDANT/St Carl J. Davis SERVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE POSTED( ) POE( ) Carl J. Davis 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT NO.. CITY, BORO, TWP., STATE AND ZIP CODE AT 120 Locust Lane, Dillsburg, Pp°^ ^ 7. INDICATE SERVICE: 0PERSONAL O PERSON IN CHARGE DEPUTIZECL NOW 17/71 199 19 - 1, SHERIFF OM COUNTY to c to taw. Th s deputation being made at the request and risk of the plaintiff. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING Sl .Advance: fee 9a by Cumberland Co Sheriff INSTRUCTIONS PLEASE TYPE ONLY LINES 1 TO 12 DO NOT DETACH ANY COPIES. 2. COURT NUMBER - 1V, 4. TYPE OF WRIT OR COMPLAINT Writ of Summons 1ST CLASS MAIL D POSTED 00 to hereby a the sheriff of e y according 'nr< -y, Cumberland-, OUT OF COiRgPIv CUMBER"M rv NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any prop same without a watchman. In custody of whomever is found in possession, alter notifying person of levy or attachment. without liability on the pan plaintiff herein for any loss, tlestmclion, or removal of any property bolero sherill's sale thereof. 8. TYPE NAME AND ADDRESS of ATTORNEY/ORIGINATOR and SIGNATURE 10. TELEPHONI David J Lanza, Esq PO Box 109 Lemoyne PA 17043 17-761-4! Cumberland Co SHeriff'^m ^ r ), SPACE BELOW F0. 13. I acknowledge receipt of the writ or complaint as indicated above. T KOhr 18.HOWSERVED: PERSONAL RESIDE '. ?Y?; 17.01 herobYZvC[fy and return a 140T FOUND becau- to any SHERIFFSOFF( ) OTHER( ) SEEREMARKS named above. erendant) -12- -22.? ya>, 3 A R1, .S, lA U /S 'J. A011011441 vests Zc. serv¢e UOSts 25. wr 25. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary Fee 31. Surcharge 32. Total Costs 33. Cost Due o un $75.00 18.00 28.60 46.60 2.00 48.60 26.40 #;j7, 34. Foreign County Costs 35. Advance Costs 36. Service Costs 37. Notary Can. 38. Mileage/Postage/N.F. 39. Total Costs 40. Cost Due or Refund 42.dayol County Sheriff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE -Issuing Authority 2. PINK •Affomey 3. CANARY - Sheritrs Office 4. BLUE - Sheriff's Office (rs_.__. 4. TYPE OF WRIT OR COMPLAINT i Writ of Summons ?. iSERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. - `CITY, B CP., STATE AND ZIP CODE <C 'lo o. 19 uTIZa:UITrXEERTe MAID 01ST CLASS MAIL 0POSTED DOTHER % ' :F OF.XORKCOUNTY, PA, do hereby deputize the sheriff of ' 4TY, to oxecute'this Writ and make return thereof ,according; :, !! N e N daintiff. _ I.n DmNO SERVICE: Cumberland' ,.,OUT OF COUNTY CUMBFRLIND - Any deputy sheriff levying upon or attaching any property under within wdt may leave ;arson of levy or attachment, without liability on the pan of such deputy or the sheriff to any; rent. - -? 10. TELEPHONE NUMBER 11. DATE FILED 043 -17-761-454.` 1210 951 must be completed If notice is to be mailed). - J ct.tnrt 14. Date Received 15. E:pimtiogHeadnqg Date - 12-23-99 1-22-00 `. POE ( ) SHERIFFS OFF ( ) OTHER ( ) ` '.SEE REMARKS.'::Z 'al, company, corporation, etc, named above. (See remarks below.) -r - - N ABOVE (Relationship to Defendant) - 19. Date of Service 20. Time o n4co 5 int.. Date Time Mlles InL Date Time Mllac Ing. patea Tlme•M ea. Ing.' COUNTY OF YORK OFFICE OF THE SHERIFF SERVICE CALL 21 EAST MARKET ST., YORK, PA 17401 (717) 771-9601 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT, and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINES 1 TO, 12 i. PLAINrIFF/B/ - DO NOT DETACH ANY COPIE._.. J. J. N.i.chao..t Orin S' 4 6 Asso; -, , .'' COURTNUMBER ? --`: 3. DEFENDANT Inc: 2. Carl J, 4. TYPE OFW Da,, i s Sill COM PLA INT tJrit of Summons I -'< SERVE 8. NAME OF INDIVIDUAL, COMPANY. CORPORATION; ETC. TO SERVE OR DESCRIPTION OF PR Car]. J. Davis _ I? ?,, OPERTy 70 BE LEVIED, ATTACHED, O SOLD. t - e. ADDRESS ISTREET OR RFD WITH BOX NUMBER APT NO., Sig7E AND ZIP CODE AT ?. I0 Locus; l.sb 7r?r ACITY 1 7o 1`9 7.INDICATE SERVICE: OPERSONAL Lane, Di l V {.,'NOW 12121 oy OPERSON IN CHARGE DEPIn'12LL;U1 131 ;1 11},bt11 N v ' 19 __? I, SHERIFF Olfg(1qM000NTY, PA, do hereby deputize th0 POSTED e sheriff of o oTHt to law. This deputation being Made at the request and risk of the plalnto 6. SPECIAL INSTRUCTIONS OR OTHER INFORMATION TNAT WILL ASSIST IN EXOPEDf NG SERVICEIe thls.Wdt endmake return there0} according ' .. AdVanCe feO pd . by CLnrtSerland Co Sheriff Cumberland OUT OF COUD1'!'Y CIMEPIAM NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: ill 1 WAIVER A x OF WATCHMAN •ny deputy same without a watchman, in custody of whomever is found In possession, after nati n plainee herein for any loss, sherid le in i ` . destructbn,orremova vY I or any g upon oral aching anypro 0 Within .g T,? A E leg person onevyar a113chmenL without liability on the part of such r the sheriff to any N ANDADDRESSorATTORNEY/ORIGINATOepandSbefore IGNATURESSalethereof. m DaV1o J Lanza, Esy deputy or PO Box 109 Ise ln0}?nE' PA 17043 f0. TELEPHONE NUMBER 11. DATE FILED J2. SEND NOTICE OF SERVICE COPY TO NAME. AND ADDRESS BELOW: (This area must be completed if notice is lobe malls ?G1-454 12-20-99 CLBllberland Co Sheriff LO F nowledgerecei SPACE BE W 13. 1 ackn OR USE OF THE SHERIFF ONLY - DO NOT pt al the wnl SIGNATURE OF gU7HOR12ED CLERK or complaint as Indicated above. T Kolir WRITE BELOW.THIS LINE -..'; 18.HOW SERVED: PEgSONALI 14. Oslo Received 18. EX vahoruNeanng Date RESIDENCES 12-23-99 i-Y.2 00 ) POSTIED( SHERIFF'SOFF( t 17, O I hAWtiN -nify and a NOT FOUND because 1 m unable to locate he ondrvidual, company co ( ) OTHER ,19: NAMEAND TITLpF return INDIVIDUAL SERVED/LIST ADDRESS HERE IF NO75N0 NA90VE (golallonahip to Detentlant ( ) SEE REMARKS ?1. rpomlion, etc, nametl above. (Seeremarksbelow) X21. ATTE Data nme Mlfea Int. Date nme I n'? G ) 19 Date of sarvice 20. riimaIprw?e yy 5 i • Mill Int. Data / Time III Int. oats •C ?J dl0 ce .. 22.R MARKS: nme Mile _a Int. Datel nme Miles Int. Date nme' n M ea' Int. $75.00 13..QO,.,,,N < r..r Foreign County Costs_ 38, Advance C uDSCnbed to before •41.AFFIRMED and ^me a2dayor - ?JanuarS i is-c 28.60 "" 1 45.60 25 t-h 2.00 e/POsWgF, 39. -SO ANSWER. 7PF `' / `L 'HITE • Issuing Authonly 2. PINK • Aflomey 3. CANARY • Shenlrs Office 4. BLUE • ShenMa Office 48.60 26.40 :osls 40, Cost Due or Refund , v nacmVBd ,.... ..: J C Johnson, Duffle, Stewart & Weidner By: David J. Lanza !.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant V. PATTY BRIDGES, Respondent Attorneys for Plaintiff MAR - 8 ?U90 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW ORDER OF COURT (-) * q r C I AND NOW, this 1 t / d'ay of March, 2000, a Rule is hereby issued upon Respondent Patty Bridges to show cause, if any she has, why the relief requested in Plaintiffs Petition should not be granted. Rule returnable within 2-0 days after service upon Respondent by regular mail at the address upon which she was served as specified in the subpoena attached to Plaintiffs Petition. BY THE COURT: Pursuant to Rule 206-6, the persons required to be notified are as follows: Patty Bridges Thomas J. Weber, Esquire Crabtree, Rohrbaugh & Associates Goldberg, Katzman & Shipman, P.C. Suite 800, 20 N. Market Square P.O. Box 1268 Harrisburg, PA 17101 Harrisburg, PA 17108-1268 Attorney for Defendant I ' Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 1 7043-0 1 09 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., V. CARL J. DAVIS, V. PATTY BRIDGES, Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Defendant Respondent NO. 99-7559 Civil CIVIL ACTION - LAW PLAINTIFF'S FIRST DISCOVERY ENFORCEMENT PETITION AND NOW, this 3-: day of March, 2000, comes Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this First Discovery Enforcement Petition, averring as follows: 1. Petitioner, J. Michael Brill & Associates, Inc., is the Plaintiff in the above-captioned matter. 2. The Respondent, Patty Bridges, is a witness in the above-captioned matter and an employee of Crabtree, Rohrbaugh & Associates, Inc. 3. Defendant is Respondent's immediate supervisor. 4. On or about December 21, 1999, Plaintiff served a subpoena upon Respondent at her place of employment. A true and correct copy of the aforesaid subpoena is attached hereto as Exhibit "A." 5. Respondent failed to appear pursuant to the aforesaid subpoena, or to seek or obtain a protective order. 6. Respondent has provided (through Defendant's counsel) only vague medical excuses related to a pregnancy as an excuse for her failure to appear. 7. Respondent has refused all reasonable attempts to arrange for an alternative deposition date. A true and correct copy of correspondence from Plaintiffs counsel to Defendant's counsel is attached hereto as Exhibit "S." 8. Respondent has refused to agree upon any date at which she will appear for a deposition. 9. Plaintiff has been forced to incur attorney fees as a result of Respondent's refusal to appear for the aforesaid deposition. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order requiring Respondent to appear for a deposition pursuant to the subpoena attached hereto as Exhibit "A." Respectfully submitted, JOHNSON, DUFFIE STEWART & WEIDNER gy: David J. Lanza :131371 Exhibit A OOtP?NWEt4+TEi OF PENNSnVANIA OOUNPY OF CUNIBFRLAND \ / I_1 V i .3. -MICHAEL BRILL & ASSOCIATES, INC., Plaintiff G1 (? _ S S File No. 1 v. CARL J. DAVIS, Defendant SUBPOENA TO ATTEND AND TESTIFY Patty Bridges TO: CRABTREE, ROHRBAUGH & ASSOCIATES Suite 800, 20 North Market Square Harrisburg, PA 17101 JOHNSON, DUFFLE, STEWART & WEIDNER 1. You are ordered by the cart to come to 301 Market Street, Lemoyne, PA 17043 (Specify courtroom or other Place) January 19, 2000 at Lemoyne , Cumberland County, Pennsylvania, on Plaintiff at 10:00 o'clock, A M., to testify on behalf of in the above case, and to remain until excused. 2. And bring with you the following: If you fail to attend or to produce the documents or things required by this subpoena, you may be sub3ect to the sanctions authorized by Rule 234.5 of the Pennsylvania Pules of civil procedure, including but not limited to costs, attorney fees and impriscnment. REQUESTED BY A PARTY/ATTORNEY IN OOMPLIANCE WITH Pa.R.C.P. No. 234.2(a): NAME: navid's-E r jn ,a Esq JOHNSON, DUFFLE, STEWART & WEIDNER ADDRESS: 301 Market Street, P.O. Box 109 Lemmyne, PA 17043 TELEPHONE: (717) 761-4540 SUPREME COURT ID # 55782 -. BY Tbg COURT: n / Prothono y lerk, ivfI Division :y? (f DATE Sea-1 of the court DePUty OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, od ters, oannissioners, etc. in earpliance with Pa.R.C'8? No. 234.1. 21f a subpoena for Pr of documents, records or things is desired, complete (Eff. 7/97) .TE OF SERVICE certify that I am, and at all times during the service of this subpoena was, not less than 18 y "'(f age and not a party to the matter concernin 'which service of. this subpoena was made. 1 further certify th t the service of this subpoena was made on ` (date) by Merinpj copy of this tubpoena, and tendering the attendance fees and mileage allowed by law, to 7 r t d ?ie? , a witness in this case, at: (naire) Under penalty of perjury, I declare that the foregoing is true and correct. Date i lijtr/ ? ?,cl?v/ Signature C O I l C' Exhibit B RONALD M. KATZMAN F. LEE SHIPMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. RUSSO MICHAEL J. CROCENII THOMAS J. WEBER ARNOLD B. KOGAN EVAN J. KLINE. III JOHN DELOREN20 STEVEN E GRUBB DIANA WOODSIDE JOHN R. NINOSKY A, LAW OPPICES G0L1)3BERE3. RATZMAN Se SHIPi?X??O Ar?•4`Jlj? `+'df0? ?•Y ?'.?1/.n?y OF COUNSEL 000 MARKET STREET 9'?>SO ?D ARTHUR L. GOLDBERG STRAWBERRY SOUAHE JOSHUA D. LOCK P.O. ROX 1208 HARRISBURG. PENNSYLVANIA 1.1100.1008 TELEPHONE: (717) 904••4101 , HARRY B. GOLDBERG 11fl8 PAX; (717) 204.0808 '?i C•1 1.199BI 1ITTPJM W W.OKSLAW-COM HERSHEY OFFICE: 17171 333.4049 January 26, 2000 CARLISLE OFFICE: 17171 245-0397 YORK OFFICE: 17171 843.7912 David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Re: Brill v. Davis Dear Dave: This will confirm our telephone conversation of earlier today. 1 have had an opportunity to pre-complaint florna your atte Bridges take h disovery in he abo e-referened gmatte . NmP Bridges senot deposition ceakwith sufferme. However, as explained, shs s from conside able nauseae) As (la deposition attended by yourself, the court reporter and in the first trimester of a high-risk pregnancy and result, her doctors have instructed her not to subject herself to a deposition at this time. -eling better by the Mrs. Bridges informed d then at that ti me may soften nstheir (stance regarding the deposition beginning of March an she has indicated that as soon as she starts feeling bette wouldnbe willing to do slo. s 1 through a deposition without becoming physically III, she grid status and his anticipate receipt of a letter from Dr. Carl Bronitsky confirming Ms. ges' advice. Upon receipt of the same, 1 will make a copy available to you. In any event, your proposed date of February 1, 2000, is not acceptable. Thank you for your continued understanding in this regard and 1 will keep you updated as to future events. Very trul ours, W el - Tho as J. Weber, Esq. TJW/kdm 37740.1 cc: Patty Bridges YM^ -CERTIFICATE OF FRyICE AND NOW, this ?a day of March, 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing FIRST DISCOVERY ENFORCEMENT PETITION 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: Patty Bridges Crabtree, Rohrbaugh & Associates Suite 800, 20 N. Market Square Harrisburg, PA 17101 Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DU?F,?FII?E, STEWART& WEIDNER 0 David J. Lanza IR ? ? IJ1? C': _? r ? f)? f1J lLL Vii! - r R' QIL J -- 0 _ o o 11 a o U GOLDBERG, KA77MAN & SHIPMAN, P.C. Thonwo J. Weber, Esquire- I.D. #58853 Atfomeyn for Defendant 320 Market Street P. O. Box 1268 Harrisburg, PA 17108.1268 (71712344161 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff CARL J. DAVIS, PATTY BRIDGES, V. Defendant V. Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 CIVIL CIVIL ACTION -LAW DEFENDANT AND RESPONDENT'S RESPONSE TO PLAINTIFF'S FIRST DISCOVERY ENFORCEMENT PETITION 1. Admitted. 2. After reasonable investigation, Mrs. Bridges is unable to form a belief as to the truth of the averments regarding her being a witness in the above-captioned matter since no complaint has been filed. It is admitted that she is an employee of Crabtree, Rohrbaugh & Associates, Inc. 3. Admitted. 4. Admitted. By way of further answer the subpoena served by the plaintiff fails to comply with the rules of civil procedure pertaining to pre-complaint discovery. it .?- i I? S. Admitted. By way of further answer, undersigned counsel contacted counsel for the plaintiff prior to the scheduled deposition explaining the witness was in the first trimester of an extremely high-risk pregnancy and was under doctor's orders not to sit for the deposition. Undersigned counsel afforded the opportunity of discovery through a less intrusive manner, such as deposition by written interrogatories. These efforts to accommodate plaintiff's wishes were rejected by the plaintiff's counsel. 6. Denied. Undersigned counsel has provided plaintiff's counsel with correspondence from Dr. Bronitsky, the area's leading fertility specialist, regarding his concerns over Mrs. Bridges' sitting for depositions. Undersigned counsel has also sent numerous correspondence to plaintiff's counsel offering the possibility of a deposition once plaintiff's health improved and her constant nausea stopped. See copies of correspondence attached hereto as Exhibit "A". 7. Denied. As correspondence from the undersigned counsel displays, witness has been willing to work with plaintiff's counsel regarding the deposition once her health would allow her to do so. In fact, her health has now improved to such a state that she is willing to sit for the deposition on April 11, 2000. 8. Denied. See correspondence of this date confirming scheduling of the deposition attached hereto as Exhibit "B". g. Denied. Witness and undersigned counsel have always acted in a reasonable manner in attempting to schedule the pre-complaint discovery. WHEREFORE, undersigned counsel respectfully requests that the petition be denied and the discovery allowed to take place as agreed upon by counsel. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Q Thomas J. W ber, Esquire Supr. I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: j•jl-UO 41958.1 „U. Exhibit A Carl Bronitsky, %IE,YtcAc,3 REC 0 Pamela E. Netuschil, nw Gynecology & Obstetrics •121 Noah 21st Suect American Ollice Center. Sure 201 Camp I 101Y A 17011 717767967.1 kn 717763717.1 January 24, 2000 \ ,#Tom Weber, Esquire Goldberg, Katzman, and Shipman 320 Market Street Harrisburg, PA 17108-1268 Re: Patricia Bridges Dear Mr. Weber: Patty Bridges is an obstetrical patient of our practice. She has a somewhat complicated gynecologic and obstetric history; and, because of this, I have recommended that she not proceed with a deposition for which she has been scheduled. The stress associated with this deposition could further adversely affect her early pregnancy which has already been complicated by hyperemesis. If you require any further information, please do not hesitate to contact me. Sincerely, f 0 I Carl Bronitsky, M.D. l CB:vfd Uenrher.I lem:gla Wdrad Groul. LAW OPPICES GOLDBERG. KATZMAN & SHIPMAN. P.C. RONALD M. KATZMAN F. LEE SHIPMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E BRENNER JOHN A. STATLER APRIL L. STRANG•KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. RUSSO MICHAEL J. CROCENZI THOMAS J. WEBER ARNOLD B. KOGAN EVAN J. KLINE. III JOHN DELORENZO STEVEN E. GRUBB DIANA WOODSIDE JOHN R. NINOSKY 300 N.LREET STREET STRAW DERRY SQUARE P.O. DOX 1008 RARRISDURo. PENNSYLVANIA 17108.1008 TELEPIIONE: (717) £34'4101 FAX: (717) 204.OSOB 11 TPJMWW.OESLAWAON January 26, 2000 OF COUNSEL ARTHUR L. GOLDBERG JOSHUA D. LOCK HARRY S. GOLDBERG 11981.19981 HERSHEY OFFICE: 17171 533.4049 CARLISLE OFFICE 17171 245.0597 YORK OFFICE: 17171 843.7912 David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Re: Brill v. Davis Dear Dave: This will confirm our telephone conversation of earlier today. I have had an opportunity to speak with Patty Bridges regarding your attempts to take her deposition in pre-complaint discovery in the above-referenced matter. Mrs. Bridges is not opposed to sitting for a deposition attended by yourself, the court reporter and me. However, as explained, she is still in the first trimester of a high-risk pregnancy and suffers from considerable nausea. As a result, her doctors have instructed her not to subject herself to a deposition at this time. Mrs. Bridges informed me that her physicians anticipate her feeling better by the beginning of March and then at that time may soften in their stance regarding the deposition. She has indicated that as soon as she starts feeling better and is confident that she could sit through a deposition without becoming physically ill, she would be willing to do so. I anticipate receipt of a letter from Dr. Carl Bronitsky confirming Ms. Bridges' status and his advice. Upon receipt of the same, I will make a copy available to you. In any event, your proposed date of February 1, 2000, is not acceptable. Thank you for your continued understanding in this regard and I will keep you updated as to future events. Very trul ours, Tho as J. Weber, Esq. TJW/kdm 37740.1 cc: Patty Bridges LAW OFFICES GOLDBERG. KATZMAN & SHIPMAN. P.C. 020 MA88ET 3T88ET RONALD M. KATZMAN OF COUNSEL PAUL J. ESPOSITO STRAWBERRY SQUARE ARTHUR L. GOLDBERG NEIL HENDERSHOT P.O. BOX 1008 F. LEE SHIPMAN J. JAY COOPER IIARRISBUBO. PENNSYLVANIA 17108.1208 JOSHUA 0. LOCK THOMAS E BRENNER JOHN A. STATLER TELEPIIONE: (717) 204.4101 APRIL L. STRANG•KUTAY PAX: (717) 204.0808 HARRY B. OOLOBERG GUY H. BROOKS 11981.199BI JEFFERSON J. SHIPMAN II=PWW W W.OBSLAW.COM JERRY J. RUSSO MICHAEL J. CROCENZI CARLISLE OFFICE: THOMAS J. WEBER 17171245-0597 ARNOLD B. KOGAN February 1 2000 ROYCE L. MORRIS , YORK OFFICE: EVAN J. KLINE. III M71 843.7912 JOHN OELORENZO STEVEN E. GRUBS JOHN R. NINOSKY David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Re: Brill v. Davis Dear Dave: Enclosed is correspondence faxed to me this morning from Dr. Bronitsky pertaining to Patty Bridges. As I had previously stated, Patty has indicated that once she has started feeling better, shewould be amenable to a deposition involving you, a stenographer, her, and myself. Kindly advise me as to whether the fact that Patty happens to be the spouse of one of the principals involved in the engineering firm with which your client apparently has a concern has had an impact on his desire to take her deposition. ' Very yours, ,4 Au(W9w., Thomas J. Weber, Esq. TJW(kdm Enclosure cc: Patricia Bridges 38105.1 LAW OPPICES GOLDBERG. KATZMAN 8: SHIPMAN. P.C. OCO MARKET STREET RONALD M. KATZMAN COUNSEL PAUL J. ESPOSITO STRAWBERRY SOUARE ARTHUR L. . GOLDBERG OB NEIL HENDERSHOT P.O. BOX ICOO F. LEE SHIPMAN J. JAY COOPER IIARRISOIIRO. PENNSYLVANIA 17108.1000 JOSHUA D. LOCK THOMAS E. BRENNER JOHN A. STATLER TELEPHONE: (717) 004.4101 APRIL L. STRANG•KUTAY PAX: (717) 004-0800 HARRY S. GOLDBERG GUY H. BROOKS 11961-19901 JEFFERSON J. SHIPMAN 1ITTPV/W W W.OESLAW.COM JERRY J. RUSSO MICHAEL J. CROCENZI CARLISLE OFFICE: THOMAS J. WEBER 17171 245.0397 ARNOLD B. KOGAN March 2 2000 ROYCE L. MORRIS , YORK OFFICE: EVAN J. KLINE. III 17171 840.7912 JOHN DELORCNZO STEVEN E. GROB JOIN R. NINOSKY David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Re: Brill v. Davis Dear Dave: I am in receipt of your advance motion to enforce the subpoena. I have spoken to Mrs. Bridges and she has informed me that her physicians continue to advise her against sitting for the deposition out of a concern for her and her unborn baby's health. As I have informed you, it is a high-risk pregnancy that has not gone particularly well. In fact, she has only gained two pounds. Dr. Bronitsky and other personnel in his office have been so adamant in their position, that they have gone so far as to intimate that they are absolving themselves of responsibility should she proceed. As a result, we are in no better position to predict when her health may improve to such a point that she can sit for the deposition. Therefore, if you and your client are still unwilling to proceed with the less intrusive method of depositions by way of interrogatories, proceed with your motion if you must. In response to your contentions that my clients have not told me the full nature of the controversy, you must remember that we have only been served with a writ. My comments to you were rendered in an effort to try and avoid the necessity of this deposition. You have provided mewith no information regarding the basis forMr. Brill's lawsuit, nor anyjustification as to why Patty Bridges is an essential witness. Very tr yours,, )^ ?? Uv?V Th mas J. Weber, Esq. TJW/kdm cc: Carl Davis Patty Bridges 40111.1 Exhibit B LAW OFFICES GOLDBERG- KATZMAN 8c SHIPMAN. P.C. 020 MAREET STREET OF COUNSEL RONALD M. KATZMAN STRAWBERRY SQUARE ARTHUR L. GOLDBERG PAUL J. ESPOSITO TO . ESP P.O. BOX 1200 F. LEE SHIPMAN JOSHUA D. LOCK S NAIL ENNSYLVANIA 17100.1008 J. JAY COOPER TIARRISBURO. P THOMAS E. BRENNER TELEPRONE: (717) 204-4101 HAPPY B. RG JOHN A. STATLER PAX: (717) 004.8808 11951.1298) 19981 APRIL L. STRANG•KUTAY GUY K BROOKS HTTP•l/W W W.OHBLAW.COM JEFFERSON J. SHIPMAN CARLISLE OFFICE: J. RUSSO JERRY 17171245-0597 MICHAEL J. . CRO CROCENZI THOMAS J. WEBER 2000 March 31 YORK OFFICE: ARNOLD B. KOGAN , 17171043-7912 ROYCE L. MORRIS EVAN J. KLINE. III JOHN OELORENZO VIA FACSIMILE (761-3015) STEVEN E GRUBS JOHN R. NINOSKY David J. Lanza, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 Re: Brill v. Davis - Deposition of Patty Bridges Dear Dave: This letter will confirm the deposition of Mrs. Bridges in my office on Tuesday, April 11, 2000, commencing at 10:00 a.m. This will further confirm that the deposition will be attended by Mrs. Bridges, myself, you and the court reporter. I assume that you will make arrangements to obtain the reporting service. I look forward to meeting you on the 11'. VenLtruly yours, Th?mas J. Weber, Esq. TJW/kdm cc: Patty Bridges 41954.1 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: ?+fUlu (Ad ?lJk t. Thomas J. We er, Esquire Attorney I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Dated: 3.31.00 cr, L; .r L? C) c^. rl) Lt _ C7 U 'i c0 ?tu _J CJ ?A3t1BtiY4S?9itR:'0?er?`^' C754re?wd?S:_/.euL4k.1eMY7:t+?unnrr..cwn.avre.wo-,•?..h.?,...-....-_ GOLDBERG, KATZMAN & SHIPMAN, P.C, Tho,na, J. Weber, Esquire • I.D. 858859 Attorneys for Defendant 320 Market Street p. 0. Box 1268 HartBburg, PA 171081268 1717) 2144161 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. CARL J. DAVIS, Defendant NO. 99-7559 CIVIL CIVIL ACTION - LAW PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon the Plaintiff, J. Michael Brill & Associates, Inc., to file a Complaint within twenty (20) days or suffer a judgment non pros s r, ee submitted, & SI):-1113MAN, P.C. Supd I.D. #58853 320 Market Street, P. 0. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: June 6, 2000 Attorneys for Defendant RULE TO: J. Michael Brill & Associates, Inc. and David J. Lanza, Esquire, attorney for Plaintiffs A Rule is hereby issued upon J. Michael Brill & Associates, Inc., to the a Complaint within twenty (20) days of service hereof, or suffer judgment of non pros. Date: JL,t_„JE- -?l7 )-ooc) 45741.1 u 's R. Long, Prothonotary CERTIFICATE OF SERVICE 1 hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: David J. Lanza, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043 By: GOLDBERG, KATZMAN & SHIPMAN, P.C. Th as J.'Wh eber, Esquire Atto ney I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 ' Attorneys for Defendant Dated: June 6, 2000 t ? S.J r__ ?._ ?. U.•'^? CJ fi.; ?. _Jc ?: ' f . - C7 ?' . .: '.l ?-= i. _ ?:n '. - J n :.J Q U Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Strcet P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant NOTICE TO DEFEND To the Defendant: NO. 99-7559 Civil CIVIL ACTION - LAW 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 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Johnson, Duffic, Stewart & Weidner By: David J. Lanza I.D. No. 55752 301 Market Strccl P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant Attomcys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW COMPLAINT AND NOW, this "? 'day of June 2000, comes the Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., by and through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and avers in support of this Complaint as follows: 1. The Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., is a Pennsylvania corporation with a principal place of business at 5053 Ritter Road, Suite 200, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant, CARL ?. DAVIS, is an adult individual with an address at 120 Locust Lane, . Dillsburg, York County, Pennsylvania 17019. 3. The Defendant regularly conducts business in Cumberland County. 4. On or about May 6, 1997, Plaintiff entered into an Agreement with Defendant (and others), a ue and correct copy of which is attached hereto as Exhibit "A." 'rcr., 5. The aforesaid Agreement which prohibits Defendant from engaging in the business of civil or site engineering or engaging in management, ownership, or similar participation in any civil or site engineering firm within fifty (50) miles of Plaintiffs then-address at 5010 Ritter Road, Lower Allen Township. 6. Defendant has breached the Agreement by engaging in conduct prohibited by §3.A. of the Agreement. 7. Defendant Davis has performed or supervised the performance of various management and administrative duties for Civil and Environmental Design, Inc. (a civil engineering firm), including leasing activities, hiring, purchasing, and other activities. 9. Plaintiff has demanded additional information from Defendant regarding his activities with Civil and Environmental Design, Inc., but such request has been denied. 8. Plaintiff has suffered damages as a result of Defendant's conduct insofar as Plaintiff paid Sixty-three Thousand and 00/100 Dollars ($63,000.00) to Defendant (and related parties) in exchange for Defendant's promise not to engage in competition with Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in an amount exceeding Twenty-five Thousand and 00/100 Dollars ($25,000.00). Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: ak David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 35263 Telephone (717) 761-4540 Attorneys for Plaintiff I. 'I A]" VERIFICATION I, DAVID J. LANZA, attorney for Plaintiff, verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I further certify that the Plaintiffs principal witness (and owner) is unavailable to execute this Verification page in time to meet the relevant filing deadlines. The information set forth herein has been provided by Plaintiffs owner as well as pre-complaint investigation and discovery. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: 6 A7 /'?- By: David J. Lanza Exhibit A AGREEMENT NOT TO COMPETE THIS AGREEMENT is made this _ I1? day of _ IQ a , 1997, by and among J. MICHAEL BRILL AND ASSOCIATES, INC., a Pennsylvania business corporation, (hereafter "Buyer") and THOMAS C. CRABTREE (hereaf ter, individually, calied" Crabtree"), G. DOUGLAS ROHRBAUGH(hereafter, individually, called "Rohrbaugh") and CARL J. DAVIS (hereafter, individually, called "Davis'), Crabtree, Rohrbaugh and Davis hereafter collectively called "Sellers", and CRABTREE, ROHRBAUGH & ASSOCIATES, INC., a Pennsylvania business corporation, (hereinafter called "CRA"), WITNESSETH: WHEREAS, the parties hereto have entered into an Agreement for Purchase and Sale of Stock of J. Michael Brill and Associates, Inc. (hereafterthe "Stock Agreement'), dated C/dw Ly 1997, pursuant to which Buyer has agreed to purchase all of the shares of Buyer owned by Crabtree, Rohrbaugh and Davis; and WHEREAS, as a condition of the above-described stock purchase, Sellers have agreed that within four (4) years from the date of said stock purchase, Sellers, or any of them shall not individually, collectively or in a combination with any other individuals, organize, or become a part of, a civil or site engineering firm; and WHEREAS Sellers are officers and shareholders in CRA; and WHEREAS, CRA engages in the limited amount of civil engineering work; and WHEREAS, Sellers have induced CRA to refrain from activities which could cause economic harm to Buyer, including but not limited to, engaging in marketing activities directed at current clients of Buyer pertaining to civil or site engineering work; and WHEREAS, Buyer has agreed to compensate Sellers for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, which compensation shall be paid as follows: Crabtree shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), Rohrbaugh shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), and Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00) all of which sums shall be paid to the respective named individuals at closing with respect to the Stock Agreement. NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The above-stated recitals are hereby incorporated by reference. 2. Consideration. In consideration of, and subject to the terms and conditions of this Agreement, Buyer shall pay: to Crabtree the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); to Rohrbaugh the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); and to Davis the sum of Fifteen Thousand Three Hundred ($15,300.00). 3. Non-Compete Period. Without the express prior written consent of Buyer, at the date of this Agreement and ending on the fourth anniversary of such date (the "Non-Compete Period"), Sellers, or any of them, shall not: A. Directly, or indirectly, including, without limitation, as an individual, partner, shareholder, officer, director, employee, principal, agent, or consultant; (a) organize, engage in, manage, operate, control, or supervise, or participate in the management operation, control or supervision of, any business or entity operating within fifty (50) miles of Buyer's present office at 5010 Ritter Road, Mechanicsburg (Lower Allen Township), Cumberland County, Pennsylvania, which competes with Buyer's civil or site engineering business, including, but not limited to any -2- civil or site engineering firm; or (b) acquire or retain ownership, or financial interest in any such business or entity which is engaged in civil or site engineering. B. Without the express prior written consent of Buyer, during the Non-Compete Period, Sellers, CRA, or any of them shall not, for business purposes related to any of the activities described in Subparagraph 3. A. herein, call on, solicit, or take away, or attempt to call on, solicit or take away, any of the clients of Buyer as set forth on Exhibit "C" attached hereto and made a part hereof. Sellers and CRA hereby acknowledge and agree that, in the event of any breach by Sellers, or CRA, or all of them, of certain provisions in this Agreement, including, without limitation, those contained in Paragraph 3, Buyer shall have no adequate remedy at law, and may suffer substantial and irreparable damage. Accordingly, Sellers hereby agree that in the event of any such breach, Buyer shall be entitled to temporary and/or permanent injunctive relief, without the necessity of proving damages, to enforce said provisions. In the event of any breach by Sellers or CRA of this Agreement, Buyer, in its sole discretion, may seek to obtain temporary and/or permanent injunctive relieve, or to recover monetary damages, or to take any other available remedy provided by law or equity. If the Buyer pursues such injunctive relief, Buyer shall not be required to post a bond in any jurisdiction in which said injunctive relief is requested. Sellers and CRA acknowledge that this Agreement has been executed in connection with the Stock Agreement, and that Buyer would not have agreed to execute the Stock Agreement without having obtained this Agreement Not To Compete from Sellers and CRA. 4. Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be deemed duly given when delivered in person, or when mailed or by certified (return receipt requested), or registered mail, or express mail, or by overnight delivery service company, postage or express charges prepaid, in a securely wrapped envelope to the following addresses, unless the parties shall otherwise designate an address by notice: -3- .. c. _.._ _ r.Ks To Buyer: J. Michael Brill and Associates, Inc. Attention: J. Michael Brill, President 5010 Ritter Road - Suite 112 Mechanicsburg, PA 17055-4828 i To Sellers: Thomas C. Crabtree C. Douglas Rohrbaugh Carl J. Davis 20 North Market Square - Suite a00 Harrisburg, PA 17101 To CRA: Crabtree, Rohrbaugh & Associates, Inc. 20 North Market Square - Suite 800 Harrisburg, PA 17101 5. Authorization by CRA. Sellers and CRA hereby warrant that the officers of CRA have received the necessary authorization in accordance with the Bylaws of CRA and the Pennsylvania Corporation Law to execute this Agreement. 6. Representations Survive Closing. The certifications, warranties, and indemnifications contained in this Agreement shall survive closing hereunder. 7. EntireAgreement. This Agreement contains the whole agreement between the parties and there are no other terms, obligations, covenants, representations statements or conditions, oral or otherwise, of any kind whatsoever and it may not be altered, amended or modified other than in writing executed by the parties hereto. 8. Binding Effect. This Agreement shall be binding upon and shall inure to Seller and Buyer, heir respective heirs, personal representatives, successors and permitted assignees. .4- 9. Goveming Law and Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any disputes regarding this Agreement shall be litigated in Cumberland County, Pennsylvania. ATTEST: Secretary Buyer: J. MICHAEL BRILL AND ASSOCIATES, INC. a 4 J. Michael Bnll, President WITNESS: ATTEST: S e ry aaoea -5. Seller: CRABTREE: Thomas C. Crabtree ROHRBAUGH: G. Douglas Rohrbaugh DAVIS: doK Carl J Davis CRA: CRABTREE, ROHRBAUGH &ASSOCIATES, INC. By( President CLIENT LIST SMITH LAND & IMPROVEMENT CORP. ROSSMOYNE BUSINESS CTR CAMP HILL, PA OWNER ASSOCIATION HARRISBURG, PA LANCASTER DEVELOPMENT CO. LANCASTER, PA BILL & NICK NICHOLS NEW CUMBERLAND, PA L. B. SMITH CORPORATION CAMP HILL, PA U S POSTAL SERVICE PHILADELPHIA, PA CONSOLIDATED PROPERTIES WORMLEYSBURG, PA MR A RICHARD SZELES SZELES REAL ESTATE DEV CO BOB-BOB ASSOCIATES HARRISBURG, PA YORK, PA KEELEY & CO STEWART-MARCH MECHANICSBURG,PA YORK, PA CROWN AMERICAN CORPORATION THE KORNGOLD COMPANY JOHNSTOWN, PA BALA CYNWYD, PA MR & MRS MARLIN P PICKEL HARDEE'S FOOD SYSTEMS, INC. WIX WENGER & WEIDNER LINTHICUM, MD HARRISBURG, PA CUMBERLAND BUILDERS HOMESTEAD GROUP CARLISLE, PA CAMP HILL, PA HIGH PROPERTIES MORRISON RESTAURANTS INC. LANCASTER, PA MOBILE, AL COMMONWEALTH PACKAGING COMPASS RETAIL HARRISBURG, PA ATLANTA, GA HIGH CONSTRUCTION KEELEY & COMPANY LANCASTER,PA MECHANICSBURG,PA AYCOCK, INC SCHOLL, SOWERS &ASSOC INC HUMMELSTOWN, PA CARLISLE, PA BELL OF PENNSYLVANIA NEW PENN MOTOR EXPRESS INC HARRISBURG, PA LEBANON, PA STEINMETZ INVESTMENTS RVG MGMT & DEVELOPMENT CO LANCASTER, PA WORMLEYSBURG,PA MIDLANTIC DEVELOPMENT PILOT CORPORATION MECHANICSBURG, PA KNOXVILLE, TN EBERLY & ASSOCIATES, INC. JAGER MANAGEMENT, INC ATLANTA, GA MAPLE SHADE, NJ EXHIBIT "C" Page 1 of 3 CLIENT LIST CALDWELL DEVELOPMENT CO STEPHENSON'S FLOWERS WORMLEYSBURG, PA SHIREMANSTOWN, PA TIRE AMERICA, INC. UTILICON PHOENIXVILLE, PA WHEELING, WV GIANT FOOD STORES, INC. MEMBERS 1 ST FCU MECHANICSBURG, PA CARLISLE, PA DOUBLE M DEVELOPMENT INTERCON SYSTEMS WORMLEYSBURG, PA HARRISBURG, PA FOUR SEASONS PRODUCE INC MANOR CARE INC SILVER SPRING, MD DENVER, PA HORST CONSTRUCTION HIGH ASSOCIATES, LTD NEWHOLLAND, PA LANCASTER, PA MCDONALDS CORPORATION GLAIZE & BROTHER COLUMBIA, MD WINCHESTER, VA MUMPER CONSTRUCTION BRISBEN COMPANY MECHANICSBURG, PA CINCINNATI, OH INC. UNI-MARTS PA BAR INSTITUTE , STATE COLLEGE, PA HARRISBURG, PA SHANE CONSTRUCTION GREENFIELD ARCHITECTS MECHANICSBURG, PA LANCASTER, PA BINKARCHITECTURAL PARTNERSHIP W. LEE ROLAND, BUILDER CAMP HILL, PA MECHANICSBURG, PA HERRE BROS. MR HAROLD BENTZEL ENOLA, PA DILLSBURG, PA ERIE INSURANCE GROUP BLUE BEACON INTERNATIONAL ERIE, PA SALINA. KN LEVIN MANAGEMENT CORPORATION PA PUBS, INC PLAINFIELD, NJ WYOMISSING. PA SANBURY CORPORATION CRACKER BARREL ATLANTA, GA LEBANON, TN ANTIQUE AUTO CLUB OF AMERICA MESSICKTRUST MANSFIELD, OH LANCASTER, PA MR LUKE ROHRBAUGH, CFP DELTA DENTAL OF PA PA LEMOYNE HARRISBURG, PA . STRATFORD WDS HOME OWNER ASSOC RALPH C & NANCY L THOMAS PA CAMP HILL THOMAS CONSTRUCTION , MECHANICSBURG, PA EXHIBIT "C" Page 2 of 3 y,m ..? CLIENT LIST HAROLD D. STONER SCHENKEL-SHULTZ CAMP HILL, PA INDIANAPOLIS, IN MARIANO CONSTRUCTION, INC. KINGS CROSSING, INC BLOOMSBURG, PA CAMP HILL, PA COMMONWEALTH OF PA HBE CORPORATION PA DEPT OF TRANSPORTATION ST. LOUIS, MO ENGINEERING DISTRICT 8-0 HARRISBURG, PA MR. GERARD ELCHAAR BOOK OF THE MONTH CLUB WEST YORK PARTNERSHIP MECHANICSBURG, PA DELCO PLAZA MALL YORK, PA KINSLEY CONSTRUCTION, INC. YORK, PA MESSIAH COLLEGE GRANTHAM, PA DAUPHIN DISTRIBUTION SERVICES MECHANICSBURG,PA ASSOCIATED WHOLESALERS, INC. ROBESONIA, PA JACK GAUGHEN REALTY CAMP HILL, PA MARK M. MINIUM NEW CUMBERLAND, PA CHI-CHI'S RESTAURANTS LOUISVILLE, KY TRIPLE CROWN CORPORATION HARRISBURG, PA HOSS'S DUNCANSVILLE, PA CENTRAL DAUPHIN SCHOOL DIST C/O BINK & ASSOCIATES HAMPDEN TOWNSHIP AUTHORITY CAMP HILL, PA MECHANICSBURG, PA NEW VIEW CORPORATION V. L. RENDINA CONTRACTING CAMP HILL, PA LANCASTER, PA OVERNITE TRANSPORTATION CENTURY 21 - BRENEMAN ASSOCIATES RICHMOND, VA MECHANICSBURG, PA HARRISBURG EAST GALLERIA SZELES REAL ESTATE LANCASTER, PA HARRISBURG, PA GENERAL MILLS RESTAURANT, INC ORLANDO, FL EXHIBIT "C" Page 3 of 3 v! n C: iJ o v 3 AN Johnson, Duffie, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Attorneys for Plaintiff Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CARL J. DAVIS, Defendant PRAECIPE TO ATTACH VERIFICATION TO THE PROTHONOTARY: NO. 99-7559 Civil CIVIL ACTION - LAW Please file the attached Verification to the Complaint in the above-captioned matter. Respectfully submitted, JOHNSON, DUFFIE,, STEWART & WEIDNER By: h , An?- David J.fLYnza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: Attorneys for Plaintiff :136225 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Strcet P. O. Box 109 Lcmoync,Pennsylvania 17043-0109 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW VERIFICATION I, J. MICHAEL BRILL, President of J. MICHAEL BRILL & ASSOCIATES, INC., 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 unsworn falsification to authorities. Dated: ?7 -10 - 0 O a _ __ J. Michael Brill, President By ti is ,, [ r _ it f ? ? ] 2J C O J U Thomas J. Weber, Esquire Attorney I.D. No. 58853 David M. Steckel, Esquire Attorney I.D. No. 82340 GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Bor. 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant, Carl J. Davis J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff, V. CARL J. DAVIS, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 99-7559 JURY TRIAL DEMANDED ORDER AND NOW, this day of July, 2000, upon consideration of Defendant's Preliminary Objections and Plaintiff's response thereto, it is hereby ordered that Defendant's Preliminary Objections are SUSTAINED. Plaintiff is ordered to file a more specific complaint. In addition, the phrases "various management and administrative duties" and "and other activities" found in Paragraph 7 of Plaintiff's complaint are stricken with prejudice. In addition, this action is referred to compulsory arbitration pursuant to C.C.R.P. 1301-1. BY THE COURT: J. .i 1 .1 Thomas J. Weber, Esquire Attorney I.D. No. 58853 David M. Steckel, Esquire Attorney I.D. No. 82340 GOLDBERG, KATZMAN 6 SHIPMAN, P.C. 320 Market Street P.O. Bor. 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant, Carl J. Davis J. MICHAEL BRILL S ASSOCIATES, INC., Plaintiff, V. CARL J. DAVIS, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-7559 JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, Carl J. Davis, by and through his counsel , Goldberg, Katzman 5 Shipman, P.C., who files these Preliminary Objections to Plaintiff's complaint by respectfully stating the following: 1. Plaintiff initiated this litigation upon the issuance of a Writ of Summons on or about December 20, 1999. 2. After Defendant acquiesced to Plaintiff's efforts at pre-complaint discovery, Plaintiff filed its complaint on or about June 27, 2000. 3. Service was accepted on or about July 5, 2000. 4. Plaintiff purports to allege that Defendant breached an agreement- entered into between Plaintiff and Defendant (and others) on or about May 6, 1997 (the "Agreement") Plaintiff's complaint s 4. 5. The Agreement Plaintiff refers to in its complaint was entered into between Plaintiff and Thomas C. Crabtree, G. Douglas Rohrbaugh, Crabtree, Rohrbaugh & Associates, Inc., and Defendant, a copy of which is attached hereto as Exhibit "A." 6. Plaintiff purports to allege that Defendant breached Section 3.A of the Agreement by "perform(ing] or supervis[ing] the performance of various management and administrative duties for Civil and Environmental Design, Inc. (a civil engineering firm), including FI leasing, hiring, purchasing, and other activities." I. Plaintiff's complaint TT 6, 7. 7. As a result of Defendant's alleged breach, Plaintiff purports to have suffered damages of $63,000.00. Plaintiff's complaint if 8 (sic]. Preliminary objection for Insufficient Specific tof a Pleadin 8. The averments contained in Paragraphs 1 through 7 of I Defendant's preliminary objections are incorporated herein as though set forth in their entirety. 9. Pennsylvania is a fact-pleading state. 10. To be proper, the complaint must set forth the material i f 1`I facts on which the cause of action is based. Pa. Lf t R.C.P. No. 1019(a). 11. Pa. R.C.P. No. 1028(a) states: "Preliminary Objections may be filed by any party to any pleading and are y- limited to the following grounds . . . (3) insufficient specificity of a pleading." 12. A review of Plaintiff's nine (9) paragraph complaint establishes that is has wholly failed to set forth the material facts upon which the action is based, opting instead to boldly allege a violation of the Agreement. 13. Further, Plaintiff's bold allegations of wrongdoing are impermissibly vague. 19. Plaintiff's allegation in Paragraph 7 that Defendant breached the Agreement by "perform[ing] or supervising] the performance of various management and administrative duties for Civil and Environmental Design, Inc. (a civil engineering firm), including leasing, hiring, purchasing, and other activities" does not properly contain sufficient factual allegations to apprize the Defendant of the manner in which he allegedly breached the Agreement. 15. Defendant is entitled to be advised of the specific acts or omission or commission that Plaintiff believes constitutes a breach so that Plaintiff's proof may be 3 confined to such acts so that Defendant may reasonably prepare his defense. 16. The courts of this Commonwealth have held that defendants must preliminarily object- to, or waive their objection to, such vague and ambiguous allegations. 17. If allowed to remain in the complaint, this improper allegation of breach of contract would severely prejudice the Defendant since Plaintiff may have the opportunity to amend the complaint to introduce new theories of breach after the applicable statute of limitations has expired. See Connor v Alleahenv Gen Hosp., 501 Pa. 306, 961 A. 2d 600 (1983). 18. The phrases "various management and administrative duties" and "and other activities," which are found in Paragraph 7, should be stricken from Plaintiff's complaint, or, in the alternative, Plaintiff should be required to plead these allegations with more specificity. WHEREFORE, Defendant respectfully requests that This Honorable Court enter an Order requiring the Plaintiff to file a more specific complaint setting forth the material facts upon which the action is based, and striking the phrases "various management and administrative duties" and "and other activities," which are found in Paragraph 7 of Plaintiff's complaint. 4 i z t Preliminary Objection for Failure of Pleading to Conform to Law or Rule of Court 19. The averments contained in Paragraphs 1 through 18 of Defendant's preliminary objections are incorporated herein as though set forth in their entirety. 20. Pa. R.C.P. No. 1028(a) states, in pertinent part: "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds . . (2) failure of a pleading to conform to law or rule of court ." 21. The Pennsylvania Rules of Civil Procedure require that "[i]n counties having rules governing compulsory arbitration the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local rule." Pa. R.C.P. No. 1021(c). 22. Cumberland County Local Rules require all civil cases that are at issue in which the total amount in controversy is Twenty-Five Thousand Dollars ($25,000) or less, exclusive of interest and costs, be submitted to compulsory arbitration. C.C.R.P. 1301-1. 23. Plaintiff alleges that it has suffered damages "insofar as Plaintiff paid Sixty-three Thousand and 00/100 Dollars ($63,000.00) to Defendant (and related parties) in exchange for Defendant's promise not to engage in 5 competition with Plaintiff." Plaintiff's complaint 91 8 [sic] (emphasis added). 29. Plaintiff did not sue the "related parties" identified in paragraph 8 [sic] of its complaint. 25. On page 2 of the Agreement, however, attached hereto as Exhibit "A," Plaintiff expressly states that, "for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, . . . [Defendant] Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00) . . . ." 26. Plaintiff fails to allege that it suffered damages in addition to the amount paid to Defendant in exchange for Defendant's promise not to engage in competition with Plaintiff. 27. Plaintiff's alleged damages, attributable to the only named Defendant, therefore fall under the $25,000 arbitration threshold in Cumberland County. WHEREFORE, Defendant respectfully requests that This Honorable Court enter an Order referring this matter to compulsory arbitration. 6 DATE: July 25, 2000 Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By Thomas J. Weber, Esquire I.D. #58853 David M. Steckel, Esquire I.D. 482340 P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant 7 it Exhibit A AGREEMENT NOT TO COMPETE THIS AGREEMENT is made this 67_?11 da y of Mdl?a _i 1997, by and among J. MICHAEL BRILL AND ASSOCIATES, INC., a Pennsylvania business corporation, (hereafter "Buyer") and THOMAS C. CRABTREE(hereafter, individually, called "Crabtree"), G. DOUGLASROHRBAUGH(hereafter, individually, called "Rohrbaugh") and CARL J. DAVIS (hereafter, individually, called "Davis"), Crabtree, Rohrbaugh and Davis hereafter collectively called "Sellers", and CRABTREE, ROHRBAUGH & ASSOCIATES, INC., a Pennsylvania business corporation, (hereinafter called "CRA"), WITNESSETH.' WHEREAS, the parties hereto have entered into an Agreement for Purchase and Sale of Stock of J. Michael Brill and Associates, Inc. (hereafter the "Stock Agreement"), dated _L4d C P , 1997, pursuant to which Buyer has agreed to purchase all of the shares of Buyer owned by Crabtree, Rohrbaugh and Davis; and WHEREAS, as a condition of the above-described stock purchase, Sellers have agreed that within four (4) years from the date of said stock purchase, Sellers, or any of them shall not individually, collectively or in a combination with any other individuals, organize, or become a part of, a civil or site engineering firm; and WHEREAS, Sellers are officers and shareholders in CRA; and WHEREAS, CRA engages in the limited amount of civil engineering work; and WHEREAS, Sellers have induced CRA to refrain from activities which could cause economic harm to Buyer, including but not limited to, engaging in marketing activities directed at current clients of Buyer pertaining to civil or site engineering work; and a ?f WHEREAS, Buyer has agreed to compensate Sellers for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, which compensation shall be paid as follows: Crabtree shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), Rohrbaugh shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), and Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00) all of which sums shall be paid to the respective named individuals at closing with respect to the Stock Agreement. NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The above-stated recitals are hereby incorporated by reference. 2. Consideration. In consideration of, and subject to the terms and conditions of this Agreement, Buyer shall pay: to Crabtree the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); to Rohrbaugh the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); and to Davis the sum of Fifteen Thousand Three Hundred ($15,300.00). 3. Non-Compete Period. Without the express prior written consent of Buyer, at the date of this Agreement and ending on the fourth anniversary of such date (the "Non-Compete Period"), Sellers, or any of them, shall not: A. Directly, or indirectly, including, without limitation, as an individual, partner, shareholder, officer, director, employee, principal, agent, or consultant; (a) organize, engage in, manage, operate, control, or supervise, or participate in the management operation, control or supervision of, any business-or entity operating within fifty (50) miles of Buyer's present office at 5010 Ritter Road, Mechanicsburg (Lower Allen Township), Cumberland County, Pennsylvania, which competes with Buyer's civil or site engineering business, including, but not limited to any -2- civil or site engineering firm; or (b) acquire or retain ownership, or financial interest in any such business or entity which is engaged in civil or site engineering. B. Without the express prior written consent of Buyer, during the Non-Compete Period, Sellers, CRA, or any of them shall not, for business purposes related to any of the activities described in Subparagraph 3. A. herein, call on, solicit, or take away, or attempt to call on, solicit or take away, any of the clients of Buyer as set forth on Exhibit "C" attached hereto and made a part hereof. Sellers and CRA hereby acknowledge and agree that, in the event of any breach by Sellers, or CRA, or all of them, of certain provisions in this Agreement, including, without limitation, those contained in Paragraph 3, Buyer shall have no adequate remedy at law, and may suffer substantial and irreparable damage. Accordingly, Sellers hereby agree that in the event of any such breach, Buyer shall be entitled to temporary and/or permanent injunctive relief, without the necessity of proving damages, to enforce said provisions. in the event of any breach by Sellers or CRA of this Agreement, Buyer, in its sole discretion, may seek to obtain temporary and/or permanent injunctive relieve, or to recover monetary damages, or to take any other available remedy provided by law or equity. If the Buyer pursues such injunctive relief, Buyer shall not be required to post a bond in any jurisdiction in which said injunctive relief is requested. Sellers and CRA acknowledge that this Agreement has been executed in connection with the Stock Agreement, and that Buyer would not have agreed to execute the Stock Agreement without having obtained this Agreement Not To Compete from Sellers and CRA. 4. Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be deemed duly given when delivered in person, or when mailed or by certified (return receipt requested), or registered mail, or express mail, or by overnight delivery service company, postage or express charges prepaid, in a securely wrapped envelope to the following addresses, unless the parties shall otherwise designate an address by notice: -3- w To Buyer: J. Michael Brill and Associates, Inc. Attention: J. Michael Brill, President 5010 Ritter Road - Suite 112 Mechanicsburg, PA 17055-4828 To Sellers: Thomas C. Crabtree C. Douglas Rohrbaugh Carl' J. Davis 20 North Market Square - Suite 800 Harrisburg, PA 17101 To CRA: Crabtree, Rohrbaugh & Associates, Inc. 20 North Market Square - Suite 800 Harrisburg, PA 17101 5. Authorization by CRA. Sellers and CRA hereby warrant that the officers of CRA have received the necessary authorization in accordance with the Bylaws of CRA and the Pennsylvania Corporation Law to execute this Agreement. 6. Representations Survive Closing. The certifications, warranties, and indemnifications contained in this Agreement shall survive closing hereunder. 7. Entire Agreement. This Agreement contains the whole agreement between the parties and there are no other terms, obligations, covenants, representations statements or conditions, oral or otherwise, of any kind whatsoever and it may not be altered, amended or modified other than in writing executed by the parties hereto. 8. Binding Effect. This Agreement shall be binding upon and shall inure to Seller and Buyer, heir respective heirs, personal representatives, successors and permitted assignees. -4- a 1 ?..;rnC Governing Law and Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any disputes regarding this Agreement shall be litigated in Cumberland County, Pennsylvania. ATTEST: Secretary WITNESS: ??G ATTEST: L ? S e ry 97090 Buyer: J. MICHAEL BRILL AND ASSOCIATES, INC. 8 ? J. Michael Brill, President Seller: CRABTREE: Thomas C. Crabtree ROHRBAUGH: G. Douglas Rohrbaugh DAVIS: dlwc Carl J Davis CRA: CRABTREE, ROHRBAUGH &ASSOCIATES, INC. Bl'' ,unwAdti? / ?/ C!XY? President -5. CLIENT LIST I SMITH LAND & IMPROVEMENT CORP. ROSSMOYNE BUSINESS CTR CAMP HILL, PA OWNER ASSOCIATION HARRISBURG, PA LANCASTER DEVELOPMENT CO. LANCASTER, PA BILL & NICK NICHOLS E' NEW CUMBERLAND, PA L. B. SMITH CORPORATION CAMP HILL, PA U S POSTAL SERVICE N PHILADELPHIA, PA CONSOLIDATED PROPERTIES WORMLEYSBURG, PA MR A RICHARD SZELES SZELES REAL ESTATE DEV CO } BOB-BOB ASSOCIATES HARRISBURG, PA YORK, PA KEELEY & CO STEWART-MARCH MECHANICSBURG,PA YORK, PA CROWN AMERICAN CORPORATION THE KORNGOLD COMPANY JOHNSTOWN, PA GALA CYNWYD, PA MR & MRS MARLIN P PICKEL HARDEE'S FOOD SYSTEMS, INC. WIX WENGER & WEIDNER UNTHICUM, MD HARRISBURG, PA CUMBERLAND BUILDERS HOMESTEAD GROUP CARLISLE, PA CAMP HILL, PA HIGH PROPERTIES MORRISON RESTAURANTS INC. LANCASTER, PA MOBILE, AL COMMONWEALTH PACKAGING COMPASS RETAIL HARRISBURG, PA ATLANTA, GA HIGH CONSTRUCTION KEELEY & COMPANY LANCASTER,PA MECHANICSBURG,PA AYCOCK, INC SCHOLL, SOWERS &ASSOC INC HUMMELSTOWN, PA CARLISLE, PA BELL OF PENNSYLVANIA NEW PENN MOTOR EXPRESS INC HARRISBURG, PA LEBANON, PA STEINMETZ INVESTMENTS RVG MGMT & DEVELOPMENT CO LANCASTER, PA WORMLEYSBURG,PA MIDLANTIC DEVELOPMENT PILOT CORPORATION MECHANICSBURG, PA KNOXVILLE, TN EBERLY & ASSOCIATES, INC. JAGER MANAGEMENT, INC ATLANTA, GA MAPLE SHADE, NJ EXHIBIT "C" STEPHENSON'S FLOWERS SHIREMANSTOWN, PA TIRE AMERICA, INC. WHEELING, WV GIANT FOOD STORES, INC. CARLISLE, PA INTERCON SYSTEMS HARRISBURG, PA FOUR SEASONS PRODUCE INC DENVER, PA HORST CONSTRUCTION NEWHOLLAND,PA GLAIZE & BROTHER WINCHESTER, VA MUMPER CONSTRUCTION MECHANICSBURG, PA UNI•MARTS, INC. STATE COLLEGE, PA SHANE CONSTRUCTION MECHANICSBURG, PA BINK ARCHITECTURAL PARTNERSHIP CAMP HILL, PA HERREBROS. ENOLA, PA ERIE INSURANCE GROUP ERIE, PA LEVIN MANAGEMENT CORPORATION PLAINFIELD. NJ SANSURY CORPORATION ATLANTA, GA MESSICK TRUST LANCASTER,PA DELTA DENTAL OF PA HARRISBURG, PA RALPH C & NANCY L THOMAS THOMAS CONSTRUCTION MECHANICSBURG, PA CLIENT LIST CALDWELL DEVELOPMENT CO WORMLEYSBURG, PA UTILICON PHOENWLLE, PA MEMBERS 1 ST FCU MECHANICSBURG, PA DOUBLE M DEVELOPMENT WORMLEYSBURG, PA MANOR CARE INC SILVER SPRING, MD HIGH ASSOCIATES, LTD LANCASTER, PA MCDONALDS CORPORATION COLUMBIA, MO BRISBEN COMPANY CINCINNATI, OH PA BAR INSTITUTE HARRISBURG, PA GREENFIELD ARCHITECTS LANCASTER,PA W. LEE ROLAND, BUILDER MECHANICSBURG, PA MR HAROLD BENTZEL DILLSBURG, PA BLUE BEACON INTERNATIONAL SALINA, KN PA PUBS, INC WYOMISSING, PA CRACKER BARREL LEBANON,TN ANTIQUE AUTO CLUB OF AMERICA MANSFIELD, OH MR LUKE ROHRBAUGH. CFP LEMOYNE,PA STRATFORD WDS HOME OWNER ASSOC CAMP HILL, PA EXHIBIT "C" 4?. pl , ?I CLIENT LIST HAROLD D. STONER SCHENKEL-SHULTZ CAMP HILL, PA INDIANAPOLIS, IN MARIANO CONSTRUCTION, INC. KINGS CROSSING, INC BLOOMSBURG, PA CAMP HILL, PA COMMONWEALTH OF PA HBE CORPORATION PA DEPT OF TRANSPORTATION ST. LOUIS, MO ENGINEERING DISTRICT 8-0 HARRISBURG, PA MR. GERARD ELCHAAR BOOK OF THE MONTH CLUB WEST YORK PARTNERSHIP MECHANICSBURG, PA DELCO PLAZA MALL YORK PA KINSLEY CONSTRUCTION, INC. YORK, PA MESSIAH COLLEGE GRANTHAM, PA DAUPHIN DISTRIBUTION SERVICES MECHANICSBURG, PA ASSOCIATED WHOLESALERS, INC. ROBESONIA, PA JACK GAUGHEN REALTY CAMP HILL, PA MARK M. MINIUM NEW CUMBERLAND, PA CHI-CHI'S RESTAURANTS LOUISVILLE, KY TRIPLE CROWN CORPORATION HARRISBURG, PA HOSS'S DUNCANSVILLE, PA CENTRAL DAUPHIN SCHOOL DIST CIO BINK & ASSOCIATES HAMPDEN TOWNSHIP AUTHORITY CAMP HILL, PA MECHANICSBURG, PA NEW VIEW CORPORATION V. L. RENDINA CONTRACTING CAMP HILL, PA LANCASTER, PA OVERNITE TRANSPORTATION CENTURY 21 - BRENEMAN ASSOCIATES RICHMOND, VA MECHANICSBURG, PA HARRISBURG EAST GALLERIA SZELES REAL ESTATE LANCASTER, PA HARRISBURG, PA GENERAL MILLS RESTAURANT, INC ORLANDO, FL EXHIBIT "C" CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon the following counsel of record by depositing the same in the United States Mail at Harrisburg, Pennsylvania with first-class postage prepaid on July 25, 2000: David J. Lanza, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17093-0109 GOLDBERG, KATZMAN & SHIPMAN, P.C. By 'a/?i/9 ?.?. D vid M. Steckel, Esquire I.D. H82390 P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 239-9161 Attorneys for Defendant 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 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant NOTICE TO DEFEND To the Defendant: NO. 99-7559 Civil CIVIL ACTION - LAW 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 rase 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. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 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 i? 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 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant AMENDED COMPLAINT NO. 99-7559 Civil CIVIL ACTION - LAW AND NOW, this _ day of August 2000, comes the Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., by and through its undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and avers in support of this Amended Complaint as follows: 1. The Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., is a Pennsylvania corporation with a principal place of business at 5053 Ritter Road, Suite 200, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant, CARL J. DAVIS, is an adult individual with an address at 120 Locust Lane, Dillsburg, York County, Pennsylvania 17019. 3. The Defendant regularly conducts business in Cumberland County. 4. On or about May 6, 1997, Plaintiff entered into an Agreement with Defendant (and others), a true and correct copy of which is attached hereto as Exhibit "A." Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 5. The aforesaid Agreement which prohibits Defendant from engaging in the business of civil or site engineering or engaging in management, ownership, or similar participation in any civil or site engineering firm within fifty (50) miles of Plaintiffs then-address at 5010 Ritter Road, Lower Allen Township. 6. Defendant has breached the Agreement by engaging in conduct prohibited by §3,A. of the Agreement. 7. Defendant Davis has performed or supervised the performance of various management and administrative duties for Civil and Environmental Design Group, Inc. (a competing civil engineering firm), including leasing activities, hiring, purchasing, and other activities. 8. Defendant has exercised control over assets of the competing civil engineering firm, Including bank accounts. 9. Defendant has made his own assets available for use by the competing engineering firm. 10. Plaintiff has demanded additional information from Defendant regarding his activities with Civil and Environmental Design, Inc., but such request has been denied. 11. Plaintiff has suffered damages as a result of Defendant's conduct Insofar as Plaintiff paid Sixty-three Thousand and 00/100 Dollars ($63,000.00) to Defendant (and related parties) in exchange for Defendant's promise not to engage in competition with Plaintiff. 12. The agreement of all parties to refrain from competition was material to the agreement and to the payment of any funds. 13. To the extent that Defendant's conduct has resulted in the diversion of profits from Plaintiff, Plaintiff is entitled to reimbursement for those lost profits. WHEREFORE, Plaintiff demands judgment against Defendant in an amount exceeding Twenty-five Thousand and 00/100 Dollars ($25,000.00). Respectfully submitted, JOHNSON, DUFFIIE, STEWART & WEIDNER By: q_J I L David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :?s7ooo Attorneys for Plaintiff J t. r VERIFICATION I, J. MICHAEL BRILL, President of J. MICHAEL BRILL & ASSOCIATES, INC., verify that the statements made in the foregoing AMENDED 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 unsworn falsification to authorities. Dated: -2,3-00 By: J. Michaol Brlll, President It"a R Exhibit A AGREEMENT NOT TO COMPETE THISAGREEMENT is made this (jTl?v day of U&d , 1997, by and among J. MICHAEL BRILL AND ASSOCIATES, INC., a Pennsylvania business corporation, (hereafter "Buyer") and THOMASC. CRABTREE(hereafter, individually, called "Crabtree"), G. DOUGLASROHREAUGH(hereafter, individually, called "Rohrbaugh") and CARL J. DAVIS (hereafter, Individually, called "Davis'), Crabtree, Rohrbaugh and Davis hereafter collectively called "Sellers", and CRABTREE, ROHRBAUGH & ASSOCIATES, INC., a Pennsylvania business corporation, (hereinafter called "CRA"), WI TNESSETH: WHEREAS, the parties hereto have entered into an Agreement for Purchase and Sale of Stock of J. Michael Brill and Associates, Inc. (hereafter the "Stock Agreement"), dated ce 1997, pursuant to which Buyer has agreed to purchase all of the shares of Buyer owned by Crabtree, Rohrbaugh and Davis; and WHEREAS, as a condition of the above-described stock purchase, Sellers have agreed that within four (4) years from the date of said stock purchase, Sellers, or any of them shall not individually, collectively or in a combination with any other individuals, organize, or become a part of, a civil or site engineering firm; and WHEREAS, Sellers are officers and shareholders in CRA; and WHEREAS, CRA engages in the limited amount of civil engineering work; and WHEREAS, Sellers have induced CRA to refrain from activities which could cause economic harm to Buyer, including but not limited to, engaging in marketing activities directed at current clients of Buyer pertaining to civil or site engineering work; and WHEREAS, Buyer has agreed to compensate Sellers for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, which compensation shall be paid as follows: Crabtree shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), Rohrbaugh shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), and Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00) all of which sums shall be paid to the respective named individuals at closing with respect to the Stock Agreement. NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The above-stated recitals are hereby incorporated by reference. 2. consideration. In consideration of, and subject to the terms and conditions of this Agreement, Buyer shall pay: to Crabtree the sum of Twenty-four Thousand Eight Hundred Fifty Dollars (524,850.00); to Rohrbaugh the sum of Twenty-four Thousand Eight Hundred Fifty Dollars (524,850.00); and to Davis the sum of Fifteen Thousand Three Hundred ($15,300.00). 3. Non-Compete Period. Without the express prior written consent of Buyer, at the date of this Agreement and ending on the fourth anniversary of such date (the "Non-Compete Period"), Sellers, or any of them, shall not: A. Directly, or indirectly, including, without limitation, as an individual, partner, shareholder, officer, director, employee, principal, agent, or consultant; (a) organize, engage in, manage, operate, control, or supervise, or participate in the management operation, control or supervision of, any business or entity operating within fifty (50) miles of Buyer's present office at 5010 Ritter Road, Mechanicsburg (Lower Allen Township), Cumberland County, Pennsylvania, which competes with Buyer's civil or site engineering business, including, but not limited to any -2- civil or site engineering firm; or (b) acquire or retain ownership, or financial interest in any such business or entity which is engaged in civil or site engineering. S. Without the express prior written consent of Buyer, during the Non-Compete Period, Sellers, CRA, or any of them shall not, for business purposes related to any of the activities described in Subparagraph 3. A. herein, call on, solicit, or take away, or attempt to call on, solicit or take away, any of the clients of Buyer as set forth on Exhibit "C" attached hereto and made a part hereof. Sellers and CRA hereby acknowledge and agree that, in the event of any breach by Sellers, or CRA, or all of them, of certain provisions in this Agreement, including, without limitation, those contained in Paragraph 3, Buyer shall have no adequate remedy at law, and may suffer substantial and irreparable damage. Accordingly, Sellers hereby agree that in the event of any such breach, Buyer shall be entitled to temporary and/or permanent injunctive relief, without the necessity of proving damages, to enforce said provisions. In the event of any breach by Sellers or CRA of this Agreement, Buyer, in its sole discretion, may seek to obtain temporary and/or permanent injunctive relieve, or to recover monetary damages, or to take any other available remedy provided by law or equity. If the Buyer pursues such injunctive relief, Buyer shall not be required to post a bond in any jurisdiction in which said injunctive relief is requested. Sellers and CRA acknowledge that this Agreement has been executed in connection with the Stock Agreement, and that Buyer would not have agreed to execute the Stock Agreement without having obtained this Agreement Not To Compete from Sellers and CRA. 4. Notices. Any notice or other communication required or which maybe given hereunder shall be in writing and shall be deemed duly given when delivered in person, or when mailed or by certified (return receipt requested), or registered mail, or express mail, or by overnight delivery service company, postage or express charges prepaid, in a securely wrapped envelope to the following addresses, unless the parties shall otherwise designate an address by notice: -3- To Buyer: J. Michael Brill and Associates, Inc. Attention: J. Michael Brill, President 5010 Ritter Road - Suite 112 Mechanicsburg, PA 17055-4828 To Sellers: Thomas C. Crabtree C. Douglas Rohrbaugh Carl J. Davis 20 North Market Square - Suite 800 Harrisburg, PA 17101 To CRA: Crabtree, Rohrbaugh & Associates, Inc. 20 North Market Square - Suite 800 Harrisburg, PA 17101 5. Authorization by CRA. Sellers and CRA hereby warrant that the officers of CRA have received the necessary authorization in accordance with the Bylaws of CRA and the Pennsylvania Corporation Law to execute this Agreement. 6. Representations Survive Closing. The certifications, warranties, and indemnifications contained in this Agreement shall survive closing hereunder. 7. Entire Agreement. This Agreement contains the whole agreement between the parties and there are no other terms, obligations, covenants, representations statements or conditions, oral or otherwise, of any kind whatsoever and it may not be altered, amended or modified other than in writing executed by the parties hereto. 8. Binding Effect. This Agreement shall be binding upon and shall inure to Seller and Buyer, their respective heirs, personal representatives, successors and permitted assignees. -4- S. Governing Law and Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any disputes regarding this Agreement shall be litigated in Cumberland County, Pennsylvania. ATTEST: Buyer: --?J?/kU 1 ?11.c?P t7 Secretary WITNESS: ATTEST: S e ry uasa -5- J. MICHAEL BRILL AND ASSOCIATES, INC. 13 J. Michael Brill, President Seller: CRABTREE: Thomas C. C-ree ROHRBAUGH: G. Douglas Rohrbaugh DAVIS: Carl J Davis CRA: CRABTREE, ROHRBAUGH &ASSOCIATES, INC. President CLIENT LIST SMITH LAND & IMPROVEMENT CORP. ROSSMOYNE BUSINESS CTR CAMP HILL, PA OWNER ASSOCIATION HARRISBURG, PA LANCASTER DEVELOPMENT CO. LANCASTER, PA BILL & NICK NICHOLS NEW CUMBERLAND, PA L. B. SMITH CORPORATION CAMP HILL, PA U S POSTAL SERVICE PHILADELPHIA, PA CONSOLIDATED PROPERTIES WORMLEYSBURG, PA MR A RICHARD SZELES SZELES REAL ESTATE DEV CO BOB-BOB ASSOCIATES HARRISBURG, PA YORK, PA KEELEY & CO STEWART-MARCH MECHANICSBURG,PA YORK, PA CROWN AMERICAN CORPORATION THE KORNGOLD COMPANY JOHNSTOWN, PA BALA CYNWYD, PA MR & MRS MARLIN P PICKEL HARDEE'S FOOD SYSTEMS, INC. WIX WENGER & WEIDNER LINTHICUM, MD HARRISBURG, PA CUMBERLAND BUILDERS HOMESTEAD GROUP CARLISLE, PA CAMP HILL, PA HIGH PROPERTIES MORRISON RESTAURANTS INC. LANCASTER, PA MOBILE, AL COMMONWEALTH PACKAGING COMPASS RETAIL HARRISBURG, PA ATLANTA, GA HIGH CONSTRUCTION KEELEY & COMPANY LANCASTER, PA MECHANICSBURG, PA AYCOCK, INC SCHOLL, SOWERS & ASSOC INC HUMMELSTOWN, PA CARLISLE, PA BELL OF PENNSYLVANIA NEW PENN MOTOR EXPRESS INC HARRISBURG, PA LEBANON, PA STEINMETZ INVESTMENTS RVG MGMT & DEVELOPMENT CO LANCASTER, PA WORMLEYSBURG, PA MIDLANTIC DEVELOPMENT PILOT CORPORATION MECHANICSBURG, PA KNOXVILLE, TN EBERLY & ASSOCIATES, INC. JAGER MANAGEMENT, INC ATLANTA, GA MAPLE SHADE, NJ ' ` EXHIBIT "C" 0e 4 nfI CLIENT LIST STEPHENSON'S FLOWERS CALDWELL DEVELOPMENT CO SHIREMANSTOWN, PA WORMLEYSBURG, PA TIRE AMERICA, INC. UTILICON WHEELING, VVV PHOENIXVILLE, PA GIANT FOOD STORES, INC. MEMBERS 1ST FCU CARLISLE, PA MECHANICSBURG, PA INTERCON SYSTEMS DOUBLE M DEVELOPMENT HARRISBURG, PA WORMLEYSSURG, PA FOUR SEASONS PRODUCE INC MANOR CARE INC DENVER, PA SILVER SPRING, MD HORST CONSTRUCTION HIGH ASSOCIATES, LTD NEWHOLLAND, PA LANCASTER, PA GLAIZE & BROTHER MCDONALDS CORPORATION WINCHESTER, VA COLUMBIA, MD MUMPER CONSTRUCTION BRISBEN COMPANY MECHANICSBURG, PA CINCINNATI, OH UNI-MARTS, INC. PA BAR INSTITUTE STATE COLLEGE, PA HARRISBURG, PA SHANE CONSTRUCTION GREENFIELD ARCHITECTS MECHANICSBURG, PA LANCASTER, PA BINK ARCH ITECTURAL PARTNERSHIP W. LEE ROLAND, BUILDER CAMP HILL, PA MECHANICSBURG, PA HERRE BROS. MR HAROLD BENTZEL ENOLA, PA DILLSBURG, PA ERIE INSURANCE GROUP BLUE BEACON INTERNATIONAL ERIE, PA SAUNA, KN LEVIN MANAGEMENT CORPORATION PA PUBS, INC PLAINFIELD, NJ WYOMISSING, PA SANBURY CORPORATION CRACKER BARREL ATLANTA, GA LEBANON, TN MESSICK TRUST ANTIQUE AUTO CLUB OF AMERICA LANCASTER, PA MANSFIELD, OH DELTA DENTAL OF PA MR LUKE ROHRBAUGH, CFP HARRISBURG, PA LEMOYNE, PA RALPH C & NANCY L THOMAS STRATFORD WDS HOME OWNER ASSOC THOMAS CONSTRUCTION CAMP HILL, PA MECHANICSBURG, PA EXHIBIT "C" CLIENT LIST HAROLD D. STONER SCHENKEL-SHULTZ CAMP HILL, PA INDIANAPOLIS, IN MARIANO CONSTRUCTION, INC. KINGS CROSSING, INC BLOOMSBURG, PA CAMP HILL, PA COMMONWEALTH OF PA HBE CORPORATION PA DEPT OF TRANSPORTATION ST. LOUIS, MO ENGINEERING DISTRICT 8 0 HARRISBURG, PA MR. GERARD ELCHAAR BOOK OF THE MONTH CLUB WEST YORK PARTNERSHIP MECHANICSBURG, PA DELCO PLAZA MALL YORK, PA KINSLEY CONSTRUCTION, INC. YORK, PA MESSIAH COLLEGE GRANTHAM, PA DAUPHIN DISTRIBUTION SERVICES MECHANICSBURG, PA ASSOCIATED WHOLESALERS, INC. ROBESONIA, PA JACK GAUGHEN REALTY CAMP HILL, PA MARK M. MINIUM NEW CUMBERLAND, PA CHI-CHI'S RESTAURANTS LOUISVILLE, KY TRIPLE CROWN CORPORATION HARRISBURG, PA HOSS'S DUNCANSVILLE, PA CENTRAL DAUPHIN SCHOOL DIST C/O BINK &ASSOCIATES HAMPDEN TOWNSHIP AUTHORITY CAMP HILL, PA MECHANICSBURG, PA NEW VIEW CORPORATION V. L. RENDINA CONTRACTING CAMP HILL, PA LANCASTER, PA OVERNITE TRANSPORTATION CENTURY21- BRENEMAN ASSOCIATES RICHMOND, VA MECHANICSBURG, PA HARRISBURG EAST GALLERIA SZELES REAL ESTATE LANCASTER, PA HARRISBURG, PA GENERAL MILLS RESTAURANT, INC ORLANDO, FL EXHIBIT " I--- 1-11 ®o. _Uk" CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon the following counsel of record by depositing the same in the United States Mail at Harrisburg, Pennsylvania with first-class postage prepaid on July 25, 2000: David J. Lanza, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 GOLDBERG, KATZMAN & SHIPMAN, P.C. By David M. Steckel, Esquire I.D. #82340 P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant CERTIFICATE OF SERVICE AND NOW, this L d- of August 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing AMENDED COMPLAINT 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DUFFIE, STEWART & WEIDNER By:_ = U za David. Lanza r Thomas J. Wek> -r, Esquire Altontey I.D. No. 58853 David M. Steckel, Esquire Allorney I.D. No. 82340 GOLDBERG, KA17AMN & Sf IPMAN, P.C. 320 Market Street Y.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 J. MICHAEL BRILL & : IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION - LAW V. NO. 99-7559 CARL J. DAVIS, Defendant. : JURY TRIAL DEMANDED ORDER AND NOW, this _ day of August, 2000, upon consideration of Defendant's Preliminary Objections and Plaintiffs response thereto, it is hereby ordered that Defendant's Preliminary Objections are SUSTAINED. Plaintiff is ordered to file a more specific amended complaint. In addition, Paragraph 13 of Plaintiff's amended complaint is stricken with prejudice. In addition, this action is referred to compulsory arbitration pursuant to C.C.R.P. 1301-1. BY THE COURT: J. Thomas J. Weber, Esquire Attorney I.D. No. 58853 David M. Steckel, Esquire Attorney I.D. No. 82340 GOLDBERG, KATZMAN & SllIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 2344161 J. MICHAEL BRILL & : IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., : CUMBERLAND COUNTY, PENNSYLVAI IA Plaintiff, CIVIL ACTION - LAW V. NO. 99-7559 =2 i• CARL J. DAVIS, Defendant. : JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the Defendant, Carl J. Davis, by and through his counsel , Goldberg, Katzman & Shipman, P.C., who files these Preliminary Objections to Plaintiff's amended complaint by respectfully stating the following: Plaintiff initiated this litigation upon the issuance ofa Writ of Summons on or about December 20, 1999. 2. After Defendant acquiesced to Plaintiff's efforts at pre-complaint discovery, Plaintiff filed its complaint on or about June 27, 2000. 3. Service was accepted on or about July 5, 2000. 4. Defendant filed preliminary objections to Plaintiffs complaint on or about July 26, 2000. 5. Plaintiff filed an amended complaint on or about August 4, 2000. 6. Plaintiff purports to allege that Defendant breached an agreement entered into between Plaintiff and Defendant (and others) on or about May 6, 1997 (the "Agreement"). Plaintiffs amended complaint 14. 7. The Agreement Plaintiff refers to in its amended complaint was entered into between Plaintiff and Thomas C. Crabtree, G. Douglas Rohrbaugh, Crabtree, Rohrbaugh & Associates, Inc., and Defendant, a copy of which is attached hereto as Exhibit "A." 8. Plaintiff purports to allege that Defendant breached Section 3.A of the Agreement by "perform[ing] or supervis[ing] the performance of various management and administrative duties for Civil and Environmental Design, Inc. (a civil engineering firm), including leasing, hiring, purchasing, and other activities." Plaintiff's amended complaint ¶J 6, 7. 9. Plaintiff further alleges that Defendant has exercised control over the assets of Civil and Environmental Design, Inc., and has made his own assets available for use by Civil and Environmental Design, Inc. Plaintiffs amended complaint ¶¶ 8, 9. 10. As a result of Defendant's alleged breach, Plaintiffpurports to have suffered damages of $63,000.00. Plaintiff's amended complaint ¶ 11. 2 } , 11. Plaintiffalso purports to be entitled to reimbursement of lost profits "[t]o the extent that Defendant's conduct has resulted in the diversion of profits from Plaintiff." Plaintiff's amended complaint 113. Preliminary Objection for Insufficient Specificity of a Pleading 12. The averments contained in Paragraphs 1 through I 1 of Defendant's preliminary objections are incorporated herein as though set forth in their entirety. 13. Pennsylvania is a fact-pleading state. 14. To be proper, the complaint must set forth the material facts on which the cause of action is based. Pa. R.C.P. No. 1019(a). 15. Pa. R.C.P. No. 1028(a) states: "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds ... (3) insufficient specificity of a pleading." 16. A review of Plaintiff's 13 paragraph amended complaint establishes that is has wholly failed to set forth the material facts upon which the action is based, opting instead to boldly allege a violation of the Agreement. IT Further, Plaintiff's bold allegations of wrongdoing are impermissibly vague. 18. Plaintiff's allegation in Paragraph 7 that Defendant breached the Agreement by "perform[ing] or supervis[ing] the performance of various management and administrative duties for Civil and Environmental Design Group, Inc. (a competing civil engineering firm), including leasing activities, hiring, purchasing, and other 3 activities" does not properly contain sufficient factual allegations to apprize the Defendant of the manner in which he allegedly breached the Agreement. 19. Defendant is entitled to be advised of the specific acts or omission or commission that Plaintiff believes constitutes a breach so that Plaintiffs proof may be confined to such acts so that Defendant may reasonably prepare his defense. 20. The courts of this Commonwealth have held that defendants must preliminarily object to, or waive their objection to, such vague and ambiguous allegations. 21. If allowed to remain in the amended complaint, this improper allegation of breach of contract would severely prejudice the Defendant since Plaintiff may have the opportunity to further amend the complaint to introduce new theories of breach after the applicable statute of limitations has expired. See Connor v. Allepheny Gen. Hosa., 501 Pa. 306, 461 A.2d 600 (1983). 22. The phrases "various management and administrative duties" and "and other activities," which are found in Paragraph 7, should be stricken from Plaintiffs amended complaint, or, in the alternative, Plaintiff should be required to plead these allegations with more specificity. WHEREFORE, Defendant respectfully requests that This Honorable Court enter an Order requiring the Plaintiff to file a more specific amended complaint setting forth the material facts upon which the action is based, and striking the phrases "various management and administrative duties" and "and other activities," which are found in Paragraph 7 of Plaintiffs amended complaint. 4 Preliminary Objection for Insufficient Specificity of a Pleadine 23. The averments contained in Paragraphs I through 22 of Defendant's preliminary objections are incorporated herein as though set forth in their entirety. 24. Pa. R.C.P. No. 1028(a) states: "Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds ... (3) insufficient specificity of a pleading." 25. In support of its damages claim, Defendant vaguely alleges that it is entitled to reimbursement for its lost profits, to the extent that there were any lost profits. Plaintiff's amended complaint ¶ 13. 26. Coincidentally, this amorphous allegation by Defendant is in response to Plaintiff's preliminary objection that Plaintiff's complaint failed to conform to C.C.R.P. 1301-1, which requires that all civil cases that are at issue in which the total amount in controversy is Twenty-Five Thousand Dollars ($25,000) or less, exclusive of interest and costs, be submitted to compulsory arbitration. 27. In Pennsylvania, "the great majority of courts require general damages to be particularized insofar as reasonably practicable when such is requested in the form of a preliminary objection." Masters v. Karivalis, 73 D. & C.2d 40, 41 (C.P. Phila. Co. 1975); Powell's Furniture Store v. Statesman Co., 60 Luz. L.R. 117, 120 (1970); Bentz v. Knecht (No. 1),26 Leh. 267, 272-73 (1955). 28. It is reasonable to require Plaintiff, a proprietary operation, to state specifically the amounts it claims for lost profits. Masters, 73 D. & C.2d at 42. 5 29. Defendant is entitled to be advised of the specific amount of lost profits claimed by Plaintiff so that Defendant may adequately prepare a defense to such an allegation. 30. The courts of this Commonwealth have held that defendants must preliminarily object to, or waive their objection to, such vague and ambiguous allegations. 31. Paragraph 13 of Plaintiff's amended complaint should be stricken, or, in the alternative, Plaintiff should be required to plead the nature and extent of its alleged lost profits with the requisite specificity. WHEREFORE, Defendant respectfully requests that This Honorable Court enter an Order striking Paragraph 13 of Plaintiff's amended complaint, or, in the alternative, requiring Plaintiff to plead the nature and extent of its alleged lost profits with the requisite specificity. Preliminary Objection for Failure of Pleading to Conform to Law or Ride of Court 32. The averments contained in Paragraphs 1 through 31 of Defendant's preliminary objections are incorporated herein as though set forth in their entirety. 33. Pa. R.C.P. No. 1028(a) states, in pertinent part: "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds ... (2) failure of a pleading to conform to law or rule of court...." 34. The Pennsylvania Rules of Civil Procedure require that "[i]n counties having rules governing compulsory arbitration the plaintiff shall state whetherthe amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local rule." Pa. R.C.P. No. 1021(c). 6 35. Cumberland County Local Rules require all civil cases that are at issue in which the total amount in controversy is Twenty-Five Thousand Dollars ($25,000) or less, exclusive of interest and costs, be submitted to compulsory arbitration. C.C.R.P. 1301-1. 36. Plaintiff alleges that it has suffered damages "insofar as Plaintiff paid Sixty-three Thousand and 00/100 Dollars ($63,000.00) to Defendant (and related parties) in exchange for Defendant's promise not to engage in competition with Plaintiff." Plaintiff's amended complaint ¶ 1 I (emphasis added). 37. Plaintiff did not sue the "related parties" identified in Paragraph 11 of its amended complaint. 38. On page 2 of the Agreement, however, attached hereto as Exhibit 'A" Plaintiff expressly states that, "for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, ... [Defendant] Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars ($15,300.00). . . ." 39. Plaintiff fails to allege that it suffered damages in addition to the amount paid to Defendant in exchange for Defendant's promise not to engage in competition with Plaintiff. 40. Plaintiff's alleged damages, attributable to the only named Defendant, therefore fall under the $25,000 arbitration threshold in Cumberland County. 7 41. Plaintiffs impermissibly vague allegation regarding lost profits in Paragraph 13 of its amended complaint, which is addressed supra, is insufficient to elevate Plaintiffs alleged damages above the $25,000 arbitration threshold in Cumberland County. WHEREFORE, Defendant respectfully requests that This Honorable Court enter an Order referring this matter to compulsory arbitration. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Tlibmas J. Weber, Esquire I.D. #58853 David M. Steckel, Esquire I.D. #82340 P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 DATE: August 22, 2000 Attorneys for Defendant 8 Exhibit A AGREEMENT NOT TO COMPETE THIS AGREEMENT is made this da y of? 1997, by and among J. MICHAEL BRILL AND ASSOCIATES, INC., a Pennsylvania business corporation, (hereafter "Buyer") and THOMASC. CRABTREE(hereafter, individually, called "Crabtree"), G. DOUGLASROHRBAUGH(hereafter, individually, called "Rohrbaugh") and CARL J. DAVIS (hereafter, individually, called "Davis"), Crabtree, Rohrbaugh and Davis hereafter collectively called "Sellers", and CRABTREE, ROHRBAUGH & ASSOCIATES, INC., a Pennsylvania business corporation, (hereinafter called "CRA"), WITNESSETH: WHEREAS, the parties hereto have entered into an Agreement for Purchase and Sale of Stock of J. Michael Brill and Associates, Inc. (hereafter the "Stock Agreement"), dated A (.,Q , 1997, pursuant to which Buyer has agreed to purchase all of the shares of Buyer owned by Crabtree, Rohrbaugh and Davis; and WHEREAS, as a condition of the above-described stock purchase, Sellers have agreed that within four (4) years from the date of said stock purchase, Sellers, or any of them shall not individually, collectively or in a combination with any other individuals, organize, or become a part of, a civil or site engineering firm; and WHEREAS, Sellers are officers and shareholders in CRA; and WHEREAS, CRA engages in the limited amount of civil engineering work; and WHEREAS, Sellers have induced CRA to refrain from activities which could cause economic harm to Buyer, including but not limited to, engaging in marketing activities directed at current clients of Buyer pertaining to civil or site engineering work; and WHEREAS, Buyer has agreed to compensate Sellers for their agreement not to organize, or become part of, a civil or site engineering firm, and to cause CRA to refrain from marketing for civil or site engineering certain clients of Buyer, which compensation shall be paid as follows: Crabtree shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), Rohrbaugh shall receive the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00), and Davis shall receive the sum of Fifteen Thousand Three Hundred Dollars 015,300.00) all of which sums shall be paid to the respective named individuals at closing with respect to the Stock Agreement. NOW, THEREFORE, intending to be legally bound, the parties hereto agree as follows: 1. Recitals. The above-stated recitals are hereby incorporated by reference. 2. Consideration. In consideration of, and subject to the terms and conditions of this Agreement, Buyer shall pay: to Crabtree the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); to Rohrbaugh the sum of Twenty-four Thousand Eight Hundred Fifty Dollars ($24,850.00); and to Davis the sum of Fifteen Thousand Three Hundred ($15,300.00). 3. Non-Compete Period. Without the express prior written consent of Buyer, at the date of this Agreement and ending on the fourth anniversary of such date (the "Non-Compete Period'), Sellers, or any of them, shall not: A. Directly, or indirectly, including, without limitation, as an individual, partner, shareholder, officer, director, employee, principal, agent, or consultant; (a) organize, engage in, manage, operate, control, or supervise, or participate in the management operation, control or supervision of, any business or entity operating within fifty (50) miles of Buyer's present office at 5010 Ritter Road, Mechanicsburg (Lower Allen Township), Cumberland County, Pennsylvania, which competes with Buyer's civil or site engineering business, including, but not limited to any F_r, r;y -2- civil or site engineering firm; or (b) acquire or retain ownership, or financial interest in any such business or entity which is engaged in civil or site engineering. B. Without the express prior written consent of Buyer, during the Non-Compete Period, Sellers, CRA, or any of them shall not, for business purposes related to any of the activities described in Subparagraph 3. A. herein, call on, solicit, or take away, or attempt to call on, solicit or take away, any of the clients of Buyer as set forth on Exhibit "C" attached hereto and made a part hereof. Sellers and CRA hereby acknowledge and agree that, in the event of any breach by Sellers, or CRA, or all of them, of certain provisions in this Agreement, including, without limitation, those contained in Paragraph 3, Buyer shall have no adequate remedy at law, and may suffer substantial and irreparable damage. Accordingly, Sellers hereby agree that in the event of any such breach, Buyer shall be entitled to temporary and/or permanent injunctive relief, without the necessity of proving damages, to enforce said provisions. In the event of any breach by Sellers or CRA of this Agreement, Buyer, in its sole discretion, may seek to obtain temporary and/or permanent injunctive relieve, or to recover monetary damages, or to take any other available remedy provided by law or equity. If the Buyer pursues such injunctive relief, Buyer shall not be required to post a bond in any jurisdiction in which said injunctive relief is requested. Sellers and CRA acknowledge that this Agreement has been executed in connection with the Stock Agreement, and that Buyer would not have agreed to execute the Stock Agreement without having obtained this Agreement Not To Compete from Sellers and CRA. 4. Notices. Any notice or other communication required or which may be given hereunder shall e in writing and shall be deemed duly given when delivered in person, or when mailed or by certified eturn receipt requested), or registered mail, or express mail, or by overnight delivery service company, ostage or express charges prepaid, in a securely wrapped envelope to the following addresses, unless e parties shall otherwise designate an address by notice: -3- I I i , To Buyer: J. Michael Brill and Associates, Inc. Attention: J. Michael Brill, President 5010 Ritter Road - Suite 112 Mechanicsburg, PA 17055-4828 To Sellers: Thomas C. Crabtree C. Douglas Rohrbaugh Carl J. Davis 20 North Market Square - Suite 800 Harrisburg, PA 17101 To CRA: Crabtree, Rohrbaugh & Associates, Inc. 20 North Market Square - Suite 800 Harrisburg, PA 17101 5. Authodzation by CRA. Sellers and CRA hereby warrant that the officers of CRA have received the necessary authorization in accordance with the Bylaws of CRA and the Pennsylvania Corporation Law to execute this Agreement. 6. Representations Survive Closing. The certifications, warranties, and indemnifications contained in this Agreement shall survive closing hereunder. 7. Entire Agreement. This Agreement contains the whole agreement between the parties and there are no other terms, obligations, covenants, representation,s statements or conditions, oral or otherwise, of any kind whatsoever and it may not be altered, amended or modified other than in writing executed by the parties hereto. 8. Binding Effect. This Agreement shall be binding upon and shall inure to Seller and Buyer, their respective heirs, personal representatives, successors and permitted assignees. .4- 9. GoveminglawandCholce of Forum. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any disputes regarding this Agreement shall be litigated in Cumberland County, Pennsylvania. ATTEST: Secretary WITNESS: ATTEST: 1090 S e ry Buyer: J. MICHAEL BRILL AND ASSOCIATES, INC. 4j?ill?, President Seller: CRABTREE: i Thomas C. Crabtree ROHRBAUGH: G. Douglas Rohrbaugh DAVIS: Carl J Davis CRA: CRABTREE, ROHRBAUGH &ASSOCIATES, INC. BA President -5. M CLIENT LIST SMITH LAND & IMPROVEMENT CORP. CAMP HILL, PA LANCASTER DEVELOPMENT CO. LANCASTER, PA L. B. SMITH CORPORATION CAMP HILL, PA CONSOLIDATED PROPERTIES WORMLEYSBURG, PA BOB-BO9 ASSOCIATES YORK, PA STEWART_MARCH YORK, PA THE KORNGOLD COMPANY BALACYNWYD, PA HARDEE'S FOOD SYSTEMS, INC. LINTHICUM, MD CUMBERLAND BUILDERS CARLISLE, PA HIGH PROPERTIES LANCASTER,PA COMMONWEALTH PACKAGING HARRISBURG, PA HIGH CONSTRUCTION LANCASTER,PA AYCOCK, INC HUMMELSTOWN, pA BELL OF PENNSYLVANIA HARRISBURG, PA STEINMETZ INVESTMENTS LANCASTER,PA MIDLANTIC DEVELOPMENT MECHANICSBURG,PA EBERLY & ASSOCIATES, INC. ATLANTA, GA ROSSMOYNE BUSINESS CTR OWNER ASSOCIATION HARRISBURG, PA BILL & NICK NICHOLS NEWCUMBERLAND,PA U S POSTAL SERVICE PHILADELPHIA, PA MR A RICHARD SZELES SZELES REAL ESTATE DEV CO HARRISBURG, PA KEELEY & CO MECHANICSBURG,PA CROWN AMERICAN CORPORATION JOHNSTOWN, PA MR & MRS MARLIN P PICKEL WV WENGER & WEIDNER HARRISBURG, PA HOMESTEAD GROUP CAMP HILL, PA MORRISON RESTAURANTS INC. MOBILE, AL COMPASS RETAIL ATLANTA,GA KEELEY & COMPANY MECHANICSBURG,PA SCHOLL, SOWERS & ASSOC INC CARLISLE, PA NEW PENN MOTOR EXPRESS INC LEBANON, PA RVG MGMT & DEVELOPMENT CO WORMLEYSBURG, PA PILOT CORPORATION KNOXVILLE, TN JAGER MANAGEMENT, INC MAPLE SHADE, NJ EXHIBIT "C" Page 1 of3 wren STEPHENSON'S FLOWERS SHIREMANSTOWN, PA TIRE AMERICA, INC. WHEELING, WV GIANT FOOD STORES, INC. CARLISLE, PA INTERCON SYSTEMS HARRISBURG, PA FOUR SEASONS PRODUCE INC DENVER,PA HORST CONSTRUCTION NEWHOLLAND, PA GLAIZE & BROTHER WINCHESTER, VA MUMPER CONSTRUCTION MECHANICSBURG,PA UNI-MARTS, INC. STATE COLLEGE, PA SHANE CONSTRUCTION MECHANICSBURG,PA RINK ARCHITECTURAL PARTNERSHIP CAMP HILL, PA HERRE BROS. ENOLA,PA ERIE INSURANCE GROUP ERIE, PA LEVIN MANAGEMENT CORPORATION PLAINFIELD, NJ SANBURY CORPORATION ATLANTA, GA MESSICK TRUST LANCASTER, PA DELTA DENTAL OF PA HARRISBURG, PA RALPH C & NANCY L THOMAS THOMAS CONSTRUCTION MECHANICSBURG, PA CLIENT LIST CALDWELL DEVELOPMENT CO WORMLEYSBURG, PA UTILICON PHOENDWILLE, PA MEMBERS 1ST FCU MECHANICSBURG, PA DOUBLE M DEVELOPMENT WORMLEYSBURG, PA MANOR CARE INC SILVER SPRING, MD HIGH ASSOCIATES, LTD LANCASTER,PA MCDONALDS CORPORATION COLUMBIA, MD BRISBEN COMPANY CINCINNATI, OH PA BAR INSTITUTE HARRISBURG, PA GREENFIELD ARCHITECTS LANCASTER,PA W. LEE ROLAND, BUILDER MECHANICSBURG,PA MR HAROLD BENTZEL DILLSBURG, PA BLUE BEACON INTERNATIONAL SALINA. KN PA PUBS, INC WYOMISSING, PA CRACKER BARREL LEBANON, TN ANTIQUE AUTO CLUB OF AMERICA MANSFIELD, OH MR LUKE ROHRBAUGH, CFP LEMOYNE,PA STRATFORD WDS HOME OWNER ASSOC CAMP HILL, PA EXHIBIT "C" Pape 2 of 3 i _ CLIENT LIST HAROLD D. STONER SCHENKEL-SHULTZ CAMP HILL, PA INDIANAPOLIS, IN MARIANO CONSTRUCTION, INC. KINGS CROSSING, INC BLOOMSBURG, PA CAMP HILL, PA COMMONWEALTH OF PA HBE CORPORATION PA DEPT OF TRANSPORTATION ST. LOUIS, MO ENGINEERING DISTRICT 8-0 HARRISBURG, PA MR. GERARD ELCHAAR BOOK OF THE MONTH CLUB WEST YORK PARTNERSHIP MECHANICSBURG, PA DELCO PLAZA MALL YORK, PA KINSLEY CONSTRUCTION, INC. YORK, PA MESSIAH COLLEGE GRANTHAM, PA DAUPHIN DISTRIBUTION SERVICES MECHANICSBURG, PA ASSOCIATED WHOLESALERS, INC. ROBESONIA, PA JACK GAUGHEN REALTY CAMP HILL, PA MARK M. MINIUM NEW CUMBERLAND, PA CHI-CHI'S RESTAURANTS LOUISVILLE, KY TRIPLE CROWN CORPORATION HARRISBURG, PA HOSS'S DUNCANSVILLE,PA CENTRAL DAUPHIN SCHOOL DIST CIO BINK & ASSOCIATES HAMPDEN TOWNSHIP AUTHORITY CAMP HILL, PA MECHANICSBURG, PA NEW VIEW CORPORATION V. L. RENDINA CONTRACTING CAMP HILL, PA LANCASTER, PA OVERNITE TRANSPORTATION CENTURY 21 - BRENEMAN ASSOCIATES RICHMOND, VA MECHANICSBURG. PA HARRISBURG EAST GALLERIA SZELES REAL ESTATE LANCASTER, PA HARRISBURG, PA GENERAL MILLS RESTAURANT, INC ORLANDO, FL EXHIBIT "C, Pape 3 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon the following counsel of record by depositing the same in the United States Mail at Harrisburg, Pennsylvania with first-class postage prepaid on August 22, 2000: David J. Lanza, Esquire JOHNSON, DUFFfE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: jrr' . Dr?fvid M. Steckel, Esquire I.D. #82340 P.O. Box 1268 Harrisburg, PA 17108-1268 (717)234-4161 Attorneys for Defendant 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 Attorneys for Plaintiff J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant NO. 99-7559 Civil CIVIL ACTION - LAW CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA 5 PURSUANT TO RULES 4009.22 and 4009.2 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.25, J. MICHAEL BRILL & ASSOCIATES, INC., certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3. no objection to the subpoena has been received; and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. I Date: q I Lq I J) David J. Lanza, Attorney for Plaintiff :139174 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CERTIFICATE OF SERVICE AND NOW, this 2_i day of September 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DU/?FFFI IE, STEWART & WEIDNER By: KAY I/ David J. Lanza Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff e:. J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT Q QLE 40 k-21 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. if no objection is made, the subpoena may be served. Date: 10L) W? L David J. Lanza :137829 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 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009,22 TO: Robin Zellers High Realty Investors, Inc. High Realty Corporation High Industries, Inc. High Realty Associates 5010 Ritter Road Mechanicsburg, PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Please see Exhibit "A"attached hereto at Johnson Duffle Stewart & Weidner 3Q1 Market Street, P.O. Box 109, Lemoyne PA 17043-0109 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you do comply with it. This subpoena was issued at the request of the following person: David J. Lanza, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 BY THE COURT: Date: :137831 By: Prothonotary 1. Your entire file regarding the leasing of the real estate situate at 5010 Ritter Road, Mechanicsburg (or any portion thereof), in 1999 and 2000, including copies of all checks, correspondence, leases, proposals, and notes of all telephone conversations. EXHIBIT "A" .C-ERT/FICATE OF SERVICE AND NOW, this !?-ql-tiay of August 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DUFFIE, STEWART & WEIDNER I By: David J. Lanza r rr; ? C) Johnson, DUftie,.StOVert & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW ANSWERS TO PRELIMINARY OBJECTIONS AND NOW, this _"day of October 2000, comes Plaintiff, J. MICHAEL BRILL & ASSOCIATES, INC., by and through its undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and provides answers to Plaintiffs Preliminary Objections as follows: 1. Admitted. 2. Admitted in part. Denied in part. Plaintiff was permitted to conduct one pre-complaint deposition pursuant to a subpoena following delays and disputes. Defendant then filed a Rule to require Plaintiff to file a complaint rather than cooperate with further discovery. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part. Denied in part. By way of denial, the Complaint speaks for itself. 7. Admitted. 8. Admitted in part. Denied in part. By way of denial, the Complaint speaks for itself. C, FS g. Admitted in part. Denied in part. By way of denial, the Complaint speaks for itself. Defendant's liability stems from his violation of a noncompetition agreement by engaging in the activities set forth in the Complaint. 10. Admitted in part. Denied in part. By way of denial, the Complaint speaks for itself. Plaintiff paid Defendant and related parties that amount in exchange for the promise of Defendant and related parties to refrain from the very activities in which Defendant now engages. 11. Admitted in part. Denied in part. By way of denial, the Complaint speaks for itself. Preliminary Objection for Insufficient ,Sp ifi ity of a Pleading 12. Admitted in part. Denied in part. Plaintiff incorporates the answers of paragraphs one (1) through eleven (11) as if fully set forth herein. 13. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 14. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 15. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 16. Denied. Plaintiff has set forth the facts which constitute Defendant's violation of the agreement at issue. 17. Denied. Plaintiff has set forth the facts which constitute Defendant's violation of the agreement at issue. By way of further denial, Defendant has greater access than Plaintiff to the details and evidence of his own conduct. 18. Denied. The aforesaid allegation and subsequent allegations sufficiently set forth Defendant's conduct. Plaintiff does not need to plead evidence to support the allegations of Defendant's conduct. 19. Admitted in part. Denied in part. The aforesaid averment constitutes a conclusion of law. By way of further denial, Defendant has been advised of his specific acts. By way of further denial, Defendant has greater access than Plaintiff to the details and evidence of his own conduct. 20. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 21. Denied. Defendant will not suffer prejudice, as Defendant is not entitled to protection afforded by the statute of limitations for conduct which he has concealed. 22. Denied. The phrases about which Defendant complains are sufficient by themselves and are also defined by subsequent paragraphs. Defendant is aware of the prohibition against management and administrative activities and is also aware of his own conduct and the evidence in support thereof. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary objections be dismissed. Preliminary Objection for Insufficient 5MQIfIcitY of a Pleading 23. Denied. Plaintiff incorporates the answers of paragraphs one (1) through twenty-two (22) as if fully set forth herein. 24. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 25. Denied. The Complaint speaks for itself. By way of further denial, the extent to which Defendant has profited from his activities in competing with Plaintiff in violation of the Agreement is known only to Defendant. 26. Denied. Plaintiffs allegation is not in response to any preliminary objection. It does not matter to Plaintiff whether this case is initially submitted to arbitration. Plaintiff must be permitted to pursue discovery regarding Defendant's wrongly obtained profits. 27. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. The extent to which Defendant has profited from his wrongful activity can be "particularized" only by Defendant. 28. Denied. Only Defendant knows the extent to which Defendant has profited from Defendant's wrongful activity. 29. Denied. On the contrary, Defendant must provide, through discovery, information to Plaintiff regarding the wrongful profits which Defendant has made. 30. Denied. Plaintiffs allegations are not vague or ambiguous in light of Defendant's knowledge of the profits which Defendant has wrongly obtained. 31. Denied. On the contrary, Plaintiff must be permitted to conduct discovery regarding the wrongful profits which Defendant has obtained. WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss Defendant's preliminary objections. Preliminary Objection for Failure of Pleading IQ Conform tp Law or Rul_ a of Court 32. Denied. Plaintiff incorporates the answers of paragraphs one (1) through thirty-one (31) s if fully set forth herein. 33. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 34. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 35. Denied. This averment constitutes a conclusion of law which requires no responsive pleading. 36. Admitted in part. Denied in Part. The quoted paragraph from Plaintiffs Complaint (as well as related paragraphs) speak for themselves. By way of further denial, the quoted paragraph does not contain Plaintiffs exclusive damage claim. 37. Admitted in part. Denied in Part. Plaintiff has sued only Defendant Carl Davis. By way of denial, it is irrelevant that Plaintiff has not sued related parties. 38. Admitted in part. Denied in part. Is admitted that Defendant Davis received $15,300.00 for his promise not to compete with Plaintiff. By way of denial, it is irrelevant that Plaintiff paid $63,000.00 to three individuals, including Defendant Davis, instead of paying the entire amount to Defendant Davis. Plaintiff would not have paid any of this amount to anyone if any of the contracting parties had been permitted to compete with Plaintiff. The breach by Defendant Davis renders the entire $63,000.00 amount a wasted expenditure. 39. Denied. Plaintiff repeats the allegations made in response to paragraph 38. By way of further denial, the extent to which Defendant has been unjustly enriched by diverting revenues and profits from Plaintiff is known only to Defendant at this time. 40. Denied. Plaintiff incorporates the denials from paragraphs 28, 29, 38 and 39, By way i of further denial, it was foreseeable to Defendant that Defendant's breach of the contract would render i Plaintiffs purchase of the non-competition agreement worthless. By way of further denial, the agreement pecifically states, on page three, that "Buyer would not have agreed to execute the Stock Agreement vithout having obtained this Agreement Not To Compete from Sellers." The damages resulting from Plaintiff aving to compete with Plaintiffs former owner can be fully calculated only after discovery has been taken egarding Defendant's wrongful profits. 41. Denied. Plaintiff has pled damages in excess of the arbitration amount. Defendant cannot reduce that claim at the pleading level merely because Defendant does not agree with the basis for seeking those damages. WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss Defendant's Preliminary Objections. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By. David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 :138845 Telephone (717) 761-4540 Attorneys for Plaintiff zI Peet, CERRECAT OF SERVICE AND NOW, this A day of October 2000, the undersigned does hereby certify that he did this date serve a copy of the foregoing ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, D,UFFIE, STEWART & WEIDNER By: David J. Lanza C. ..1IL C U U GJ '7 lJ 3ohnson, 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 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant NO. 99-7559 Civil CIVIL ACTION - LAW CERTIFICATE PREREQUISITE TO SERVICE OFA SUBPOENA PURSUANT TO RULES 4009.22 and 4009.25 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.25, J. MICHAEL BRILL & ASSOCIATES, INC., certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena is sought to be served; 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; 3. no objection to the subpoena has been received; and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. ??6IJI A Date: David J. Lanza, Attorney for Plaintiff :143081 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 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 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. CARL J. DAVIS, Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CIVIL ACTION - LAW NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Date: Z 1 ? /p :143078 'd/ David J. Lanza Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Attorneys for Plaintiff Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 J. MICHAEL BRILL & ASSOCIATES, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7559 Civil CARL J. DAVIS, Defendant CIVIL ACTION - LAW SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.2 2 TO: Records Custodian PNC Bank, N.A. 4242 Carlisle Pike Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: P/ .a.ca .cae Exhibit "A"attach hereto, at Johnson Duffie Stewart & Weidner- inn M ket Street. P Box 109, Lemoyne PA 117043-0109 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. 1 F 1 ?! it If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you do comply with it. This subpoena was issued at the request of the following person: David ?. Lanza, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 BY THE COURT: Date: By: Prothonotary i ?i :143077 1. All documents relating to check signing authority for any account belonging to Civil & Environmental Design Group, including all documents which identify any party who ever had authority to sign checks on behalf of Civil & Environmental Design Group. EXHIBIT "A" CERTIFICATE OF SERVICE AND NOW, this M day of February 2001, the undersigned does hereby certify that he did this date serve a copy of the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DUFFIE, STEWART & WEIDNER By: 014 David J. Lanza CERTIFICATE OF SERVICE AND NOW, this -day of March 2001, the undersigned does hereby certify that he did this date serve a copy of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA 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: Thomas J. Weber, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 JOHNSON, DUFFIE, STEWART & WEIDNER 11 By: David J. Lanza In The Court of Common Pleas of Cumberland County, Pennsylvania Fite No. 1999.07559 BRILL J MICHAEL & ASSOC INC vs DAVIS CARL J STATEMENT OF INTENTION TO PROCEED To the court: PI?I:fF Date: I A 13 io-i intends to proceed with the above captioned matter. Dg?j Attorney for P?-? I t i r :n T C? LJ C_ ? O LL U CJ v N Curtis R. Long Prothonotary Office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 99- 755 7 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 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