HomeMy WebLinkAbout07-2388IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. o'r -.023Pp C Cu
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3199
643883.3
t
COMPLAINT
1. Erdman Anthony is an engineering company with offices located at Three
Crossgate Drive, Mechanicsburg, PA.
2. Hartman Associates, Inc. ("Hartman") is an engineering company with offices
located at 2101 Orchard Rd, Camp Hill, PA 17011.
3. This is a lawsuit seeking payment on three contracts between Erdman Anthony
and Hartman as follows:
a. The "Loaned Employee Agreement" dated May 11, 2005;
b. The "Darby Town Homes Stormwater Revisions Agreement" dated March
27, 2006.
C. The "Walnut Point III Street Re-Design Agreement" dated April 4, 2006.
4. Hartman has failed to pay Erdman Anthony a total of $33,697.50 on these
contracts. Erdman Anthony is seeking the recovery of this amount together with interest,
penalties, attorneys fees and expenses as permitted by law.
Count I - Breach of the
Loaned Employee Agreement Contract
5. On or about March 11, 2005, Erdman Anthony and Hartman entered into the
Loaned Employee Agreement. A copy of the Loaned Employee Agreement is attached hereto as
exhibit A and incorporated by reference.
6. The Loaned Employee Agreement provided in pertinent part as follows:
a. That all loaned employees would perform work as directed by Hartman;
b. That Hartman would be responsible for supervising and assigning work to
the loaned employees;
2
C. That Hartman would pay Erdman Anthony for each hour of work
performed by a loaned employee within thirty (30) days of a submitted invoice;
d. That the Loaned Employee Agreement could be terminated at any time by
either party, with or without cause and at will, upon three days advance notice mailed or
otherwise given or delivered to the other party.
e. That Erdman Anthony and Hartman were not liable to each other for
incidental or consequential damages, including loss of revenue, loss of profit and loss of
use, whether arising in contract, in tort (including negligence) strict liability or otherwise.
7. Under the terms of the Loaned Employee Agreement, Erdman Anthony did not
assume any scope of work for any particular project work. Rather, Erdman Anthony's
employees performed only at the direction of Hartman.
8. Erdman Anthony provided surveying crews and an engineer to Hartman under the
terms of the Loaned Employee Agreement.
9. Erdman Anthony submitted invoices to Hartman for labor provided.
10. Hartman reviewed, approved and paid all such invoices from the beginning of the
contract work through the March 20, 2006 invoice.
11. Hartman stopped making payments to Erdman Anthony under the terms of the
Loaned Employee Agreement beginning with the March 20, 2006 invoice.
12. Hartman did not timely notify Erdman Anthony that Hartman was withholding
payment Erdman Anthony because the employees failed to perform in some way.
13. Hartman never exercised its option to terminate the Loaned Employee agreement.
14. On or about March 6, 2006-which was fourteen (14) days before the first
invoice Hartman failed to pay-Erdman Anthony forwarded correspondence advising Erdman
Anthony was terminating the Loaned Employee Agreement effective April 1, 2006.
15. Erdman Anthony terminated the Loaned Employee Agreement because Erdman
Anthony needed the loaned employee for an increased workload at Erdman Anthony.
16. The March 6, 2006 letter contained an offer from Erdman Anthony to perform
additional contract work (i.e. contracts with a specific scope of work) for Hartman.
17. Upon information and belief, Hartman entered into the additional contracts in
dispute in this matter as a result of Erdman Anthony's offer.
18. Had Hartman notified Erdman Anthony of its intention to withhold payment,
Erdman Anthony would have terminated the Loaned Employee Agreement sooner.
19. Had Hartman notified Erdman Anthony of its intention to withhold payment,
Erdman Anthony would not have offered to perform additional contract work for Hartman.
20. Erdman Anthony performed all work necessary under the terms of the Loaned
Employee Agreement and is entitled to be paid by Hartman.
21. Despite demand, Hartman has failed and refused to pay Erdman Anthony the
amount of $20,697.50 for work performed under the terms of the Loaned Employee Agreement.
22. Hartman's failure to pay Erdman Anthony under the terms of the Loaned
Employee Agreement is a material breach of contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $20,697.50 together with costs, fees and attorneys fees as permitted
by law.
4
Count II - Darby Town Homes
Breach of Contract
23. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
at length.
24. On or about March 27, 2006-which was after Erdman Anthony's March 6, 2006
letter advising that the Loaned Employee Agreement was terminated and offering to perform
additional contract work-Erdman Anthony entered into a contract with Hartman for the
preparation of certain Stormwater Management Plan documents in connection with the Darby
Town Homes project. A copy of the contract is attached hereto as exhibit B and incorporated by
reference.
25. Erdman Anthony billed Hartman for the performance of this work in the amount
of $6,000 as set forth in the contract between the parties.
26. Hartman has refused to pay Erdman Anthony's invoice without contractual
justification.
27. Had Erdman Anthony been aware that Hartman was withholding payment on the
Loaned Employee Agreement, Erdman Anthony would not have entered into this contract.
28. Erdman Anthony is currently owed $6,000 by Hartman for this work.
29. Hartman's' failure to pay Erdman Anthony is a material breach of the contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $6,000 together with costs, fees and attorneys fees as permitted by
law.
Count III - Walnut Point Phase III
Street Redesign Proiect Breach of Contract
30. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
at length.
31. On or about April 4, 2006-which was after Erdman Anthony's March 6, 2006
letter advising that the Loaned Employee Agreement was terminated and offering to perform
additional contract work-Erdman Anthony entered into a contract with Hartman for the
preparation of street systems redesign documents in connection with the Walnut Point Phase III
project. A copy of the contract is attached hereto as exhibit C and incorporated by reference.
32. Erdman Anthony billed Hartman for the performance of this work in the amount
of $7,000 as set forth in the contract between the parties.
33. Hartman has refused to pay Erdman Anthony's invoice without contractual
justification.
34. Had Erdman Anthony been aware that Hartman was withholding payment on the
Loaned Employee Agreement, Erdman Anthony would not have entered into this contract.
35. Erdman Anthony is currently owed $7,000 by Hartman for this work.
36. Hartman's' failure to pay Erdman Anthony is a material breach of the contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $7,000 together with costs, fees and attorneys fees as permitted by
law.
Count IV-Contractor and Subcontractor Payment Act
37. Erdman Anthony incorporates all of the above allegations as if fully set forth here
at length.
6
i 1
38. Hartman's breaches of contract set forth herein are material violations of the
Contractor and Subcontractor Payment Act, 73 P.S. § 501 et seq.
39. Erdman Anthony is entitled to recover interest, penalties and attorneys fees under
the provision of this statue.
WHEREFORE, Erdman Anthony requests this court enter judgment in its favor and
against Hartman in the full amount as authorized by the Contractor and Subcontractor Payment
Act, 73 P.S. § 501 et seq.
Count V-Quantum Meruit
40. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
an length.
41. In the alternative, and only if the court determines that there are not enforceable
contracts between the parties, Erdman Anthony is entitled to payment in the amount of
$33,697.50 under the theory of quantum meruit.
42. Erdman Anthony provided labor to Hartman Associates with a value of
$33,697.50 and to its detriment.
43. Hartman accepted this labor with an understanding that it was expected to pay
Erdman Anthony for the work performed at the amount invoiced.
44. Hartman has wrongfully failed and refused to pay Erdman Anthony for the full
value of the amounts billed.
45. It is inequitable for Hartman to retain these payments from Erdman Anthony.
WHEREFORE, Erdman Anthony is entitled to the recovery of $33,697 as the value of
the labor provided to Hartman Associates but not paid.
7
Respectfully submitted,
RHOADS & SINON LLP
{
By: i
David W. Francis
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorney for
Erdman Anthony
8
VERIFICATION
D. Vincent Weiser of Erdman Anthony deposes and says, subject to the penalties of 18
Pa.C.S. § 4904 relating to unsworn falsification to authorities, that he is authorized to execute
this Verification on behalf of Erdman Anthony, and that the facts set forth in the foregoing
document are true and correct to the best of his knowledge, information and belief.
Date:
D. Vincent Weiser
649928.1
EXHIBIT "A"
LOANED EMPLOYEE AGREEMENT
This Agreement is entered into on this 11th day of May 2005, by and between Hartman &
Associates, Inc. (the "Company"), 2101 Orchard Road, Camp Hill, PA 1701 land Erdman,
Anthony, Associates, Inc. (`Employer") of 3 Crossgate Drive, Suite 100, Mechanicsburg, PA
17050-2459.
WITNESSETH:
WHEREAS, the Company is desirous of retaining Employer for the providing of
specialized services related to the business of the Company; and
WHEREAS, such specialized services can be performed by Troy LaFerrara, PE, Jeff
MacKay, PE, Gregg Davis, SIT, Dan Klick, EIT, Michael Lockard (hereinafter, "Loaned
Employee"), who is a current employee of Employer; and
WHEREAS, Employer is prepared to make the Loaned Employee available to the
Company, in order for him to perform such specialized services, in accordance with the terms set
forth herein.
NOW, THEREFORE, the parties for and in consideration of the mutual promises
and covenants contained herein agree as follows:
1. Employer agrees to make the Loaned Employee available to Company from the
date of this Agreement through December 31, 2005. The Company's representative who can
authorize specific service activities and with whom Loaned Employee shall coordinate is
D. Vincent Weiser or his designee.
2. Reimbursement for services provided by Employer will be made (1) Specific Rate
for Civil Engineering Support @ $85.00 per hour. (2) Specific Rates for 2 person survey crew @
normal 40 hours per week @ $95.00/crew hour and overtime rate @ $105.00/crew hour.
A. Employer will submit monthly invoices to Company for review, approval,
and subsequent payment. Payment of invoices will be made by Company
within 30 days of receipt of invoice.
3. Employer agrees to maintain complete and accurate records of hours actually
worked in the performance of services pursuant to this Agreement. Copies of such records shall be
provided to Company with the monthly invoices.
4. It is expressly agreed and understood that this Agreement may be terminated at any
time by either party, with or without cause and at will, upon 3 days advance notice mailed or
November 2004 Page 1 of 9
otherwise given or delivered to the other party and that in such event, Employer's sole
compensation shall be for fees properly incurred to date of termination.
5. It is understood and agreed that Loaned Employee shall perform the services not as
an employee or agent of the Company.
6. Employer hereby acknowledges that Confidential Information disclosed to
Employer pursuant to this Agreement constitutes proprietary information and/or valuable trade
secrets, and Employer hereby agrees to maintain and protect them in strictest confidence.
Employer agrees that it will not, at any time, disclose to others, use for its own benefit or otherwise
appropriate or copy any Confidential Information, whether or not developed by Employer, except
as required in Employer's duties to Company. The term "Confidential Information" shall refer to
any information, not generally known in the relevant trade or industry, which was obtained from
Company, or which was learned, discovered, developed, conceived, originated or prepared during
or as a result of the performance by Employer of any services on behalf of Company hereunder
and which falls within the following general categories:
(i) Information relating to trade secrets (of Company or any customer of
Company);
(ii) Information relating to existing or contemplated services, technology,
designs, processes, formulas, computer systems, computer software, algorithms and
research or developments (of Company or any customer of Company);
(iii) Information relating to business plans, sales or marketing methods, methods
of doing business, customer lists, customer usages and/or requirements, financial data and
supplier information (of Company or any customer of Company); or
(iv) Any other information which either Company or any customer of Company
may wish to protect by patent, copyright or by keeping it confidential.
The term "Confidential Information" does not include:
(i) Information which the Employer can demonstrate by competent proof to
have been in its possession prior to disclosure of such information to Employer by
Company or its representatives;
(ii) Information that has also been furnished to Employer by a third party, as a
matter of right, and which was not received directly or indirectly from Company or its
representatives; and
(iii) Any other information once it becomes part of the public domain by
publication or otherwise through no act of Employer.
Further, any invention, discovery or information developed or obtained by Employer
during the course of this Agreement (and thereafter, related in any way to services provided under
this Agreement) including without limitation, any drawings, designs, blueprints, photographs,
sketches, software, data compilations and other materials developed or obtained by Employer,
November 2004 Page 2 of 9
shall be the property of Company, and any patent, copyright and proprietary rights associated
therewith shall be fully and finally assigned to the Company.
The obligations of Employer under this Article shall remain in effect for a period of one (1)
year after the expiration or sooner termination of this Agreement and, as respects Confidential
Information received from third parties, for such longer period of time as may be required under
third parry contracts or agreements.
Employer agrees to execute any and all documents necessary to fully effectuate any of the
provisions of this Article. Employer will require the Loaned Employee to sign the Exhibit A
"Certificate and Agreement" and will provide a copy of such signed document to the Company's
representative.
7. Neither Employer nor Company shall be liable to the other for incidental or
consequential damages, including loss of revenue, loss of profit and loss of use, whether arising in
contract, in tort (including negligence), strict liability or otherwise.
8. Employer represents and warrants that its signing of this Agreement and the Loaned
Employee services hereunder is not and will not be knowingly in violation of any other contract,
agreement or understanding to which it is a party.
9. This Agreement and the rights and obligations of Employer hereunder may not be
assigned or transferred in whole or in part by Employer without the prior written consent of the
Company, and no such assignment or transfer or attempted assignment or transfer shall be
effective for any purpose whatsoever without Company's prior written consent. Company shall
have no obligation to recognize any purported assignee or transferee to this Agreement.
10. Any provision of this Agreement which is unenforceable under applicable law shall
be reformed as nearly consistent with the parties' intentions as may be necessary to make it
enforceable, and if the provision cannot be so reformed, it shall be severed without invalidating the
remaining provisions of this Agreement.
11. This Agreement shall be governed by and construed in accordance with the laws of
the State of Pennsylvania. The parties have read this Agreement and agree to be bound by its
terms, and further agree that it constitutes the complete and exclusive statement of the Agreement
between them which supersedes all proposals, oral or written, and all other communications
between them relating to the subject matter of this Agreement.
12. During the period of this agreement and for a period of one year, commencing with
the expiration date of this Agreement, Company will not offer employment to Employer's
personnel identified or performing services under this contract. Company agrees to pay Employer
$15,000 as a penalty for each employee hired by Company during this period regardless of the
Company or the Loaned Employee initiating the offer of employment.
November 2004 Page 3 of 9
IN WITNESS WHEREOF and intending to be legally bound hereby, the Company and
Employer have caused this Agreement to be duly executed.
Erdman. Anthony. Associates, Inc.
14-
Attest: By: Ale~ E. 5 rm5
(Printed Namej??)
s
??FfLcu
(Signature)
/f (Company)
Attest: / hQ By: v / IJu . C P0)d K,Lrr:
T ( inted Name)
( 'gnature)
November 2004 Page 4 of 9
EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Troy LaFerrara, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed: i-' I ..r, -,
Dated: V & 10.5-
November 2004 Page 5 of 9
EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Jeff MacKay, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed: 104
Dated: _ 4AI-10'?
November 2004 Page 6 of 9
EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Gregg Davis, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
C
Signed:
Dated:
November 2004 Page 7 of 9
. .
% EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Dan Klick, certify that I have read and understand Article 6 of the Loaned Employee Agreement
between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May 11, 2005. I
further agree that I will be bound and obligated under the terms of the said Article 6 just as though
my own name appeared in the Article in place of "Employer."
Signed:
Dated:
November 2004
Page 8 of 9
f
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CERTIFICATE AND AGREEMENT
r + r
EXHIBIT A
I, Michael Lockard, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed: `
Dated: J ' t3 - 2-0 QJ?'
November 2004
Page 9 of 9
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EXHIBIT "B"
Darby Town homes Stormwater Management Plan
? 1 J
John Clark
Page 1 of 1
From: Troy A. LaFerrara [LaFerraraTA@erdmananthony.com]
Sent: Monday, March 27, 2006 4:25 PM
To: jclark@hartmanandassoc.com
Cc: Richard E. Stees; Robert J. Leonard
Subject: Darby Town homes Stormwater Management Plan
John,
imman Anthon ated the time required for its staff members to prepare the ng for the Darby
Townhomes:
- Grading Plan (Showing swale patters as identified by you at approx. 1%)
- E&S Plan & Narrative (TNe i=oAO-s)
- Details Plan
- Stormwater Collection Calcs. & Collection system Design - tk J Yr 13 E d 1 q-f.?<%? SC
- Utility Plan (Identifying Collection System locations and sizes)
- Profiles (Of Collection system)
- Opinion of Probable Copnstruction Cost
The plans will be prepared on Hartman & Assoc. Plan sheets for your review and approval.
The estimate to prepare the above is $6,000.00. The work is expected to take approximatelty
Please advise if Erdman Anthony is to proceed with the. design.
Thank you,
Troy A. LaFerrara, PE, PLS, SEO
Associate
Erdman Anthony
3 Crossgate Drive - Suite 100
Mechanicsburg, PA 17050-2459
Telephone 717 766 1741 Facsimile 717 766 5516
laferrarata@erdmananthony.com
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3/28/2006
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EXHIBIT "C"
:APR-05-2006 WED 1123 AM FAX NO. P. 01
. e I I
ERDMAN
ANTHONY
April 4. 2006
Mr. John W. Clark III, PE, PIS
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
, J
CONFIDENTIAL
SUBJECT: Work Order For:
Walnut Point Phase III
Street Re-Design
Dear Mr. Clark:
e • , •
Erdman, Anthony, Associates, Inc. offers to provide engineering services, for the re-design of the
street systems in Walnut Point Phase M. Erdman Anthony will revise the street grades based on
your direction utilizing the revised contours that your staff has prepared.
Erdman Anthony will provide the following:
• Set new street Centerline grades as per your direction (attempt to maintain existing grade
lines where possible)
• Calculate new street grades based on the typical cross-sectiori of the project
• Set "Key" grade points along the street right-of-way and adjust the lot grading where
required.
• Adjust the utilities based on the new centerline elevations on the profile sheets. As per
your direction, Erdman Anthony will attempt to maintain the currently designed low-
points and attempt to adjust the existing utilities (Storm-collection and Sanitary Sewer)
without requiring re-calculation of the colloction systems.
• Erdman Anthony will provide you with one (1) hardcopy of the revised plan sheets and
the corresponding electronic files on CD.
Compensation for services provided to you will be invoiced monthly on a time and materials
basis utilizing the rate schedule below.
The lump sum fee for this project is $7,000.00. Erdman Anthony anticipates that the work will
be completed within 3 weeks from receipt of authorization to proceed. This proposal follows the
Standard Contract Terms & Conditions in our previous contract (#57575).
Lempityee Owned - Quality Driven
3 Crossgate Drive - Suite 100, Mechanicsburg, PA 17050-2459
Telephone 717 766 1741 : Facsimile 717 766 5516
www.er&nananthony.com
APR-05-2006 WED 11:24 AM FAX NO. P. 02
Mr. John W. Clark III, PE, PIS
Walnut Point Phase III-Street Re-Design
April 4, 2006
Page 2 of 2
If Hartman & Associates, Inc. concurs with and accepts the provisions of this proposal and the
Standard Contract Terms and Conditions, please have an authorized representative sign this
proposal in the space provided, and this proposal and the Terms and Conditions shall become an
executed Contract between us. Receipt of an original signed copy of this Contract, shall
constitute Erdman Anthony's Authorization to Proceed with the work.
Two sets of documents are provided for your use.
Very truly yours,
ERDMAN, ANTHONY, ASSOCIATES, INC.
AL
Richard E. Stees, PLS
Vice President
Enclosures
® 2006, Erdman, Anthony, Associates, Inc.
Accepted for Hartman & Associates, Inc. by:
SIGNATURE:
NAME!
TITLE:
DATE:
NAM W MunicipaMropomhVroposals 2OWM0406 Harm= - Walnur Point M-doe
ERDMAN
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ERDMAN ANTHONY, ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
VS. )
CIVIL ACTION - LAW
HARTMAN & ASSOCIATES, INC., )
Defendant ) NO. 07-2388 CIVIL TERM
NOTICE
TO PLAINTIFF NAMED HEREIN:
YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED NEW MATTER AND
COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT
JUDGMENT MAY BE ENTERED AGAINST YOU.
. Andes
Attorney for Defendant
Supreme Court ID 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
ERDMAN ANTHONY, ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
VS. )
CIVIL ACTION - LAW
HARTMAN & ASSOCIATES, INC., )
Defendant ) NO. 07-2388 CIVIL TERM
DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM
AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the
following Answer, with New Matter and Counterclaim to Plaintiff's Complaint:
1. Admitted.
2. Admitted.
3. It is admitted that Plaintiff seeks recovery on these contracts but denied that Plaintiff is
entitled to such recovery for the reasons set forth below.
4. Defendant admits that it has not paid Plaintiff $33,697.50 and that Plaintiff now seeks
recovery of that amount. Defendant denies, however, that it owes Defendant that, or any other, amount
for the reasons set forth below.
COUNT I - BREACH OF THE LOANED EMPLOYEE AGREEMENT CONTRACT
5. Admitted.
6. The averments in Paragraph 6 are admitted in part and denied in part, as follows:
a. The agreement does not contain a provision which requires
Hartman to direct the work of Plaintiff's employees. That provision is simply
not in the agreement.
b. There is no such provision in the agreement and, to the contrary,
the agreement indicates that Plaintiff would be responsible to assign employee.
C. Admitted.
d. Admitted.
e. It is admitted that this language appears in the contract but denied
that the language was intended, or should be applied, as Plaintiff apparently asserts.
7. Denied as stated. The understanding between the parties was that Plaintiff would supply
qualified and experienced employees who were fully able to perform their duties for Defendant.
Plaintiff failed to do so.
8. Defendant admits that Plaintiff supplied workers for Defendant but denies that those
workers were experienced or qualified so as to do the work assigned to them properly.
9. Admitted. By way of further answer, however, Defendant incorporates herein the
averments set out in its New Matter and Counterclaim.
10. Admitted. B y way of further answer, however, Defendant states that it had made known
to Plaintiff and some of Plaintiff s employees, Defendant's dissatisfaction of the performance of the
workers supplied by Plaintiff.
11. Admitted. By way of further answer, the averments set forth in Defendant's New Matter
and Counterclaim are incorporated herein by reference.
12. Denied. Defendant notified Plaintiff of its dissatisfaction with the performance of some
of the workers supplied by Plaintiff and did so in a reasonable and timely fashion.
13. Denied. When Defendant became fully aware of the damages it suffered as a result of
the problems caused by Plaintiffs workers, it notified Defendant of those problems and stopped making
payments.
14. Admitted.
15. After reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth or accuracy of the averments in this Paragraph, because such information
is within the exclusive control of Plaintiff, and so Defendant denies those averments and demands proof
thereof at trial.
16. Admitted.
17. Denied. Defendant did not enter into any additional contracts with Plaintiff to supply
workers.
18. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
19. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
20. Denied. Plaintiff performed the work for Defendant in an incomplete, defective, and
improper fashion and is not entitled to the payment it now seeks. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
21. Admitted. By way of further answer, however, Defendant denies that it owes Plaintiff
such sum and incorporates herein, by reference, the averments set out in its New Matter and
Counterclaim.
22. Denied. Defendant's failure to make the payments demanded by Plaintiff is justified by
Plaintiff s breach of the agreement by failing to supply workers who could competently perform the
work for Defendant.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of Defendant in accordance with its Counterclaim.
COUNT II - DARBY TOWN HOMES BREACH OF CONTRACT
23. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
24. Admitted.
25. Admitted. By way of further answer, however, Defendant states that it does not owe the
Plaintiff the sum billed. Defendant incorporates herein by reference the averments set out in
Defendant's New Matter and Counterclaim.
26. Denied. Defendant was justified in not making the payments demanded by Plaintiff for
the reasons set forth in Defendant's New Matter and Counterclaim the averments of which are
incorporated herein by reference.
27. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
28. Denied. Defendant owes Plaintiff nothing for the work for which Plaintiff now seeks
payment because the work was not done properly or (competently. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
29. Denied. Defendant is justified in withholding payment because Plaintiff breached the
contract by failing to perform properly. Defendant incorporates herein by reference the averments set
out in its New Matter and Counterclaim.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of Defendant on its Counterclaim.
COUNT III - WALNUT POINT PHASE III STREET
REDESIGN PROJECT BREACH OF CONTRACT
30. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
31. Admitted.
32. Defendant admits that Plaintiff billed Defendant for various sums but denies that
Defendant owes the money for the reasons set forth in the averments contained in Defendant's New
Matter and Counterclaim.
33. Denied as stated. Defendant admits that it has failed to make the payment demanded by
Plaintiff but denies that such refusal is without justification. Defendant incorporates herein, by
reference, the averments set out in its New Matter and Counterclaim.
34. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
35. Denied. Plaintiff has not competently performed its obligations under the contract and is
not owed the money it seeks.
36. Denied. Plaintiff breached the contract between the parties by failing to provide services
in accordance with the contract and Defendant has not breached the contract by failing to pay Plaintiff
for its inadequate performance.
WHEREFORE, Defendant demands that Plaintiffs Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
COUNT IV - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT
37. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs
38. Denied. Defendant has not breached the contract between the parties. Plaintiff breached
the contract and Defendant's refiisal to pay Plaintiff is justified by Plaintiffs breach of the contract.
39. Denied. Plaintiff is the party that breached the contract and Defendant is entitled to
damages in accordance with its Counterclaim, the averments of which are incorporated herein by
reference.
WHEREFORE, Defendant demands that Plaintiff s Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
COUNT V - QUANTUM MERUIT
40. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
41. Denied. Plaintiff is not entitled to payment from Defendant because Plaintiff did not
perform its obligations as requested by Defendant or as agreed by the parties and did not confer upon
Defendant benefit beyond the payment Defendant has already made to Plaintiff.
42. Denied. The labor or services provided by Plaintiff to Defendant does not have a value
as claimed by Plaintiff because the work done by Plaintiff and its employees was inadequate and
substandard.
43. Denied as stated. Defendant intended to pay Plaintiff for Plaintiff s work but refused to
do so when Plaintiff failed to perform its work in accordance with the standards of the industry, the
agreement of the parties, an Defendant's reasonable expectation. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
44. Denied. Defendant has failed to pay Plaintiff the sums Plaintiff claimed because those
sums are not owed. Defendant incorporates herein by reference, the averments set out in its New Matter
and Counterclaim.
45. Denied. Plaintiff did not perform properly or competently and, as a result, is not entitled
to the payment it demands. Defendant incorporates herein by reference the averments set out in its
Counterclaim.
WHEREFORE, Defendant demands that Plaintiff s Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
NEW MATTER
By way of further answer, Defendant sets forth the following New Matter:
46. Plaintiff breached its loaned employee agreement with Defendant by failing to provide
employees who performed up to the standard of the industry in which they were engaged, up to the
standard required by the contract between the parties, or up to the reasonable expectations of the parties.
The failure of Plaintiff's employees to perform included the following:
A. Plaintiffs employees did not work consistently or competently without
constant supervision by Defendant's staff.
B. Plaintiff s employees did not work efficiently and frequently took much
longer to complete assigned work than was necessary, thereby causing Defendant
unnecessary expense and delay.
C. Plaintiff failed to provide the same employees on a regular basis which
required Defendant's staff to repeat its instruction and training to Plaintiffs employees.
D. Plaintiffs employees did not satisfy the standard of the engineering and
surveying industry in the place and at the time those services were provided. Plaintiff's
employees were not able to properly perform construction stake out work without
constant assistance from Defendant's staff.
47. With regard to the contractor work on the Darby Town House project, Plaintiff failed to
perform its obligations to Defendant in a thorough, competent, and efficient manner and thereby
breached the contract between the parties. Some examples of the defective or deficient work by
Plaintiff are:
A. Plaintiff provided staff that was not sufficiently trained or experienced to
perform all of the work or all of the calculations required by the contract.
B. Plaintiff s staff did not complete all of the work assigned to it and submitted
incomplete work to Defendant, which required Defendant to assign its own staff to complete
the work.
C. Plaintiff did not complete its work in a timely fashion, thereby delaying
completion of the work by Defendant.
48. With regard to the Walnut Point project, Plaintiff failed to perform its obligations to
Defendant in a thorough, competent, and efficient manner and thereby breached the contract between the
parties. Some examples of the defective or deficient work by Plaintiff are:
A. Plaintiff provided staff that was not sufficiently trained or experienced to
perform all of the work or all of the calculations required by the contract.
B. Plaintiff s staff did not complete all of the work assigned to it and
submitted incomplete work to Defendant, which required Defendant to assign its own
staff to complete the work.
C. Plaintiff did not complete its work in a timely fashion, thereby delaying
completion of the work by Defendant.
49. By failing to perform its obligations under the three contracts with Defendant, as
described in the foregoing three paragraphs, Plaintiff breached all of those contracts between the parties.
50. As a result of Plaintiff s breach of the contract between the parties, Defendant suffered
significant injury which included:
A. Completion of the projects was significantly delayed.
B. Much of the work that was done or should have been done by Plaintiff had
to be done or redone by Defendant or its staff.
C. The cost to Defendant to complete its work on all of the projects on which
Plaintiff worked was significantly increased.
D. Defendant's clients became dissatisfied with the work done by Plaintiff
and its staff and, as a result, refused to pay Defendant for much of that work and, in some
cases, either terminated Defendant or declined to engage Defendant to do additional
work.
All of the above injuries were suffered by Defendant as a direct result of Plaintiff's breach of the
contract between the parties as described herein.
51. As a result of Plaintiffs' breach of the' contracts between the parties, and the injuries
caused to Defendant by such breaches, Defendant suffered financial damages and losses in an amount in
excess of $45,000.00.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of Defendant in an accordance with its counterclaim as set forth herein.
COUNTFACLAIM
Defendant hereby asserts against Plaintiff a counterclaim for an amount in excess of $45,000.00,
based upon the following:
52. Defendant incorporates herein by reference the averments set forth in the
foregoing paragraphs of this Answer and New Matter.
53. Plaintiff breached the agreement between the parties as described in
Defendant's New Matter, the averments of which are incorporated herein by reference.
54. Solely and directly as a result of Plaintiff's breaches of the agreements
between the parties, Defendant suffered the injuries and damages described in its New Matter the
averments of which are incorporated herein by reference.
55. Plaintiff, by its conduct, has injured Defendant in an amount in excess of
$45,000.00.
56. Despite demands by Defendant, Plaintiff has failed and refused to pay
Defendant the damages which Plaintiff caused Defendant.
WHEREFORE, Defendant demands judgment against Plaintiff, on its Counterclaim, for an
amount in excess of $45,000.00, plus interest after 1 September 2006, plus costs of suit.
e 4L';G7e'4
Attorney for Defendant
Supreme Court ID # 17225
525 North 12'' Street
Lemoyne, Pa 17043
(717) 1,61-5361
I verify that the statements made in this document are true and correct. I understand that any
false statements in this document are subject to the Oenalties of 18 Pa. C.S. 4904 (unworn falsification
to authorities).
Date: J//? If,007
Hartman & Associates, Inc.
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the forlegoing document upon counsel for the Plaintiff by
regular mail, postage prepaid, addressed as follows:
David W. Fralncis, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Date: rJ `tea l ?, cbo3m "n.
Amy M. Qkins
Secretary for Samuel L. Andes
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTERCLAIM AND NEW
MATTER TO COUNTERCLAIM
46. Denied. Erdman Anthony specifically denies that it breached the terms of the
loaned employee agreement. Strict proof of this averment is demanded at the time of trial. It is
specifically denied that the labor Erdman Anthony supplied to Hartman failed to comply with
any of the applicable standard of performance or care. Erdman Anthony used and continues to
use these same employees. Their work has always been in accordance with the applicable
standards of performance and care. It is denied that the employees provided by Erdman Anthony
did not meet the reasonable expectations of the parties.
a. Under the terms of the loaned employee agreement - under which Erdman
Anthony did not assume the scope, Hartman was responsible for supervision. It is denied
that Hartman had to provide constant supervision. It is also denied that the Erdman
Anthony employees failed to complete the work in a consistent or competent manner. By
652365.1
way of further answer, in some instances Hartman failed to provide sufficient supervision
to Erdman Anthony's employees.
b. It is denied that Erdman Anthony's employees failed to work in an
efficient manner or that it took longer for them to complete work than necessary.
It is denied that Erdman Anthony breeched its contract in who it supplied
as labor. Erdman Anthony fully complied with the requirements of the contract
documents. Hartman never raised this complaint until now.
d. Erdman Anthony denies that its employees failed to satisfy any applicable
standard for engineering and land surveying. Erdman Anthony's employees did properly
perform all of the stake out work.
47. Erdman Anthony denies that it breached its contract with Hartman on the Darby
Town House project. Erdman Anthony further denies that it failed to provide services in a
thorough, competent and efficient manner.
a. Erdman Anthony denies that its staff was not sufficiently trained or
experienced to perform the work or calculations required under the contract. Hartman
accepted the work performed by Erdman Anthony.
b. Erdman Anthony denies that it failed to complete all work under the terms
of any contract or that it ultimately provided incomplete work to Hartman. Erdman
Anthony believes and therefore avers that any such Hartman performed work was not as
a result of Erdman Anthony's work under the contract.
C. Erdman Anthony denies that it failed to complete its work in a timely
fashion or otherwise in accordance with the contract requirements. Erdman Anthony
further denies that it is responsible for any additional costs incurred by Hartman.
2
48. Erdman Anthony denies that it breached its contract with Hartman on the Walnut
Point project. Erdman Anthony further denies that it failed to provide its services in a thorough,
competent and efficient manner.
a. Erdman Anthony denies that its staff was not sufficiently trained or
experienced to perform the work or calculations required under the contract.
b. Erdman Anthony denies that it failed to complete all work under the terms
of the contract or that it ultimately provided incomplete work to Hartman. Erdman
Anthony believes and therefore avers that any such Hartman performed work was not as
a result of Erdman Anthony's work under the contract.
C. Erdman Anthony denies that it failed to complete its work in a timely
fashion or otherwise in accordance with the contract requirements. Erdman Anthony
denies that it is responsible for any additional costs incurred by Hartman.
49. Denied as a conclusion of law to which no response is required. To the extent a
response is required, Erdman Anthony specifically denies that it breached any of its contracts
with Hartman.
50. Denied as a conclusion of law to which no response is required. To the extent a
response is required, Erdman Anthony denies Hartman suffered any damages as a result of
Erdman Anthony's performance of work under any of the contracts.
a. Erdman Anthony denies that its work resulted in a significant delay or
impact to any projects, or that Erdman Anthony is responsible for same.
b. Erdman Anthony denies that it failed to perform work or that there was
work that it "should have done" under the terms of the contracts that it did not perform.
3
Erdman Anthony denies that Hartman was required to correct work performed by
Erdman Anthony or its employees.
Denied as a conclusion of law to which no response is required. To the
extent a response is required, Erdman Anthony denies that its work resulted in additional
costs to Hartman, or that Erdman Anthony is responsible for any such costs.
d. Erdman Anthony denies that Hartman's clients became dissatisfied with
Hartman's work on account of Erdman Anthony. Erdman Anthony believes and
therefore avers that Hartman's clients became dissatisfied with Hartman for reasons
unrelated to Erdman Anthony, and that Hartman is attempting to shift the responsibility
for this to Erdman Anthony. It is denied that Hartman suffered any recoverable damages
on.account of Erdman Anthony.
51. Denied as a conclusion of law to which no response is required. To the extent a
response is required, Erdman Anthony denies that Hartman has suffered any recoverable
damages on account of Erdman Anthony's work under the contracts between the parties.
WHEREFORE Erdman Anthony requests judgment in its favor and against Hartman &
Associates, Inc. in those amounts set forth in the Complaint, together with costs, fees and
attorneys fees as permitted by law.
ANSWER TO COUNTERCLAIM
52. Erdman Anthony incorporates all of the averments set forth in the previous
pleadings as if fully set forth here at length.
53. Denied. Erdman Anthony did not breach the terms of any contract with Hartman.
54. Denied. Erdman Anthony is not responsible for any damages incurred by
Hartman.
4
55. Denied. Erdman Anthony is not responsible for any damages incurred by
Hartman.
56. It is denied that Hartman has demanded payment from Erdman Anthony. To the
contrary, Erdman Anthony has demanded payment from Hartman. In any event, Hartman is not
entitled to any monies from Erdman Anthony.
WHEREFORE, Erdman Anthony respectfully requests that judgment be entered in its
favor and against Hartman & Associates, Inc. with respect to the counterclaim, and that Erdman
Anthony be provided with that relief requested in its Complaint together with costs, fees and
attorneys fees as permitted by law.
NEW MATTER TO COUNTERCLAIM
46. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
at length.
47. Hartman's claims against Erdman Anthony are waived under the terms of the
Contractor and Subcontractor Payment Act, 73 P.S. §501 et seq. as follows:
a. Section 511(b) of the Contractor and Subcontractor Payment Act, 73 P.S.
511(b) provides that a contractor who withholds payment from a Subcontractor "must
notify the subcontractor or supplier and the owner of the reason within seven calendar
days of the date after receipt of the notice of the deficiency item."
b. Hartman failed to provide Erdman Anthony and the owner with notice and
a reason for withholding of payment in accordance with this statutory requirement.
48. Hartman's claims against Erdman Anthony are waived and/or estopped by its
failure to promptly withhold payment from Erdman Anthony for work that it now claims was
deficient or defective.
49. Hartman's claims against Erdman Anthony are waived and/or estopped by its
failure to exercise its option to terminate the loaned employee agreement.
50. Hartman's claims against Erdman Anthony are barred, waived and/or estopped by
its acceptance of the work performed by Erdman Anthony.
51. Hartman's claims against Erdman Anthony are barred by the terms of the
contracts between them.
WHEREFORE Erdman Anthony demands judgment in its favor and against Hartman &
Associates, Inc. in the amounts as set forth in its Complaint, together with all costs, fees and
attorneys fees as permitted by law.
By:
Respectfully submitted,
RHOADS & SINON LLP
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731 (phone)
(717) 231-6600 (fax)
dfrancis@rhoads-sinon.com
www.rhoads-sinon.com
Attorneys for Erdman Anthony
6
VERIFICATION
D. Vincent Weiser of Erdman Anthony deposes and says, subject to the penalties of 18
Pa.C.S. § 4904 relating to unsworn falsification to authorities, that he is authorized to execute
this Verification on behalf of Erdman Anthony, and that the facts set forth in the foregoing
document are true and correct to the best of his knowledge, information and belief.
Date: / Z /O -7
Z
D. Vincent Weiser
647928.1
CERTIFICATE OF SERVICE
I hereby certify that on this day of Jun{? , 2007, a true and correct copy of the
foregoing document entitled Plaintiffs Answer to New Matter and Counterclaim and New
Matter to Counterclaim was served by means of United States mail, first class, postage
prepaid, upon the following:
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
David W. Francis, Esquire
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SHERIFF'S RETURN - REGULAR
CASE NO: 2007-02388 P
COMMONWEALTH 0 PENNSYLVANIA:
COUNTY OF CUMB RLAND
ERDMAN ANTHONY
S
HARTMAN & ASSOCIATES INC
VALERIE WEARY , Sheriff or Deputy Sheriff of
Cumberland Coun y,Pennsylvania, who being duly sworn according to law,
says, the withi COMPLAINT & NOTICE was served upon
HARTMAN ASSOCIA ES INC the
DEFENDANT , at 1631:00 HOURS, on the 27th day of April 2007
at 2101 ORCHARD ROAD
CAMP HILL, PA 17011 by handing to
JOHN CLARK (GENERAL MANAGER)
a true and attes ed copy of COMPLAINT & NOTICE together with
and at the same 4ime directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Postage - 6/ 2 916 1
So Answers:
18.00
14.40 -,00` 42Zawe
.00
10.00 oTh mas Kline
39
42.79 00/00/0000
Sworn and Subscib d to
before me this
of
By.
day Deputy Sheriff
A. D.
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731--office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
PRAECIPE TO ATTACH NOTICE TO PLEAD
Kindly insert the attached Notice to Plead to Plaintiff's Answer to New Matter and
Counterclaim and New Matter to Counterclaim, which was filed with this Court on or about June
26, 2007, in the above-captioned matter.
Respectfully submitted,
RHOADS & SINON LLP
G
By:
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731 (phone)
(717) 231-6600 (fax)
dfrancis@rhoads-sinon.com
www.rhoads-sinon.com
Attorneys for Erdman Anthony
657825.1
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfTa-ncis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-573 1--office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff Civil Action - Law
V.
Docket No. 07-2388 - Civil Term
HARTMAN & ASSOCIATES, INC. I Jury Trial Demanded
Defendant
NOTICE TO PLEAD
TO: Hartman & Associates, Inc.
c/o Samuel L. Andes, Esquire
525 North Twelfth Street
Lemoyne, PA 17043
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER PURSUANT TO RULE 2252(d) WITHIN TWENTY (20)
DAYS FROM THE DATE OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED
AGAINST YOU.
RHOADS & SINON LLP
By: _Iz \
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731 (phone)
(717) 231-6600 (fax)
dfrancis@rhoads-sinon.com
www.rhoads-sinon.com
Attorneys for Erdman Anthony
652365.1
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of July, 2007, a true and correct copy of the
foregoing document entitled Praecipe to Attach Notice to Plead was served by means of United
States mail, first class, postage prepaid, upon the following:
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
David W. Francis, Esquire
cri
--i
N
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Phone: 717-233-5731
Fax: 717-231-6600
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
ERDMAN ANTHONY'S MOTION TO COMPEL DISCOVERY
Erdman Anthony files this Motion to Compel as follows:
1. On April 25, 2007 Erdman Anthony filed a complaint against Hartman &
Associates, Inc. ("Hartman") seeking payment, inter alia, in accordance with invoices submitted
in the amount of $33,697.50.
2. On May 1, 2007 Erdman Anthony filed:
a. Plaintiff's First Set of Interrogatories Directed to Defendant; and
b. Plaintiff's First Request for the Production of Documents Addressed to
Defendant.
(True and correct copies of these documents are attached as exhibits A and B hereto).
3. Pursuant to the Pennsylvania Rules of Civil Procedure, Hartman's responses were
due thirty (30) days from May 1, 2007, which is May 31, 2007.
4. On May 22, 2007, Samuel Andes forwarded a letter in which he acknowledged
Hartman's responsibility to respond to the discovery. It contained the following language:
I have your discovery materials and have discussed them, at
least in general, with my client. Unfortunately, the person who is
going to have to do most of the work to assemble that information
and explain it to me will be out of his office and on vacation until
early June. I will meet with him to review that material when he
returns and try to get the information to you shortly thereafter. In
the meantime, I request your patience to give us additional time to
get this information prepared and submitted to you properly.
(A true and correct copy of this letter is attached as exhibit C.)
5. Erdman Anthony did not receive responses to its discovery requests in early June.
6. On June 19, 2007 Erdman Anthony sent a letter to Mr. Andes stating in part,
In your letter of May 22, 2007 you requested an extension of time
to provide responses to outstanding discovery requests. It is now
June 19, 2007 and we still have not received responses. When do
you anticipate providing these responses?
(A true and correct copy of this letter is attached as exhibit D.)
7. Twenty-nine (29) days later, on July 18, 2007, Hartman responded in a letter as
follows:
Despite appearances, I have not been ignoring your formal
discovery documents. This is a critical and busy season for my
client and so it has been difficult for them to assemble the
information and meet with me to respond to your discovery. That
process has been further complicated by my rather hectic schedule.
I have drafted many of the answers to your interrogatories
and I have met with my clients to discuss the documents they need
to produce. I hope to get you answers to your discovery in the near
future. In the meantime, I want to at least let you know that we are
working on the matter.
(A true and correct copy of this letter is attached as exhibit E.)
8. On July 20, 2007 Erdman Anthony responded by providing two more weeks for
Hartman to provide responses to the discovery as follows:
Hartman's responses to Erdman Anthony's discovery
requests are now 50 days late. As of today, your client has had 80
days to provide responses. This is more than reasonable. It should
not be further delayed.
2
Erdman Anthony hereby demands that you provide full
and complete answers and responses to all outstanding discovery
requests by August 3, 2007. This additional two week period
should provide you with sufficient time to provide full and
complete answers and responses. If Erdman Anthony does not
receive this discovery by this date, it will file a motion to compel.
(A true and correct copy of this letter is attached as exhibit F.)
9. Hartman did not provide responses to the outstanding discovery by August 3,
2007.
10. Hartman did not respond to Erdman Anthony's letter of July 20, 2007.
11. Hartman has had 97 days to provide responses to discovery and has failed to
provide any of it.
12. Hartman continues to withhold the $33,697.50 from Erdman Anthony.
13. Hartman obviously does not concur in the filing of this motion.
WHEREFORE, Plaintiff Erdman Anthony requests this Court grant this Motion to
Compel and order Hartman Associates to provide full and complete responses to the
interrogatories and requests for the production of documents served within 10 days.
Respectfully submitted,
RHOADS S N LLP
By:
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731 (phone)
(717) 231-6600 (fax)
dfrancis@rhoads-sinon.com
www.rhoads-sinon.com
Attorneys for Erdman Anthony
3
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of August, 2007, a true and correct copy of this
Motion to Compel Discovery was served by United States mail, first class, postage prepaid, upon
the following:
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
V J /"-
Dav
id W. Francis, Esquire
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
PLAINTIFF'S FIRST SET OF INTERROGATORIES
DIRECTED TO DEFENDANT
To: John W. Clark III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
PLEASE TAKE NOTICE that you are hereby required, pursuant to the Pennsylvania
Rules of Civil Procedure, to serve upon the undersigned, a copy of your answers and objections, if
any, in writing and under oath, to the following interrogatories within 30 days after service of the
Interrogatories. The answers shall be inserted in the spaces provided. If there is insufficient space
to answer an interrogatory, the remainder of the answer shall follow on a supplemental sheet.
These interrogatories shall be deemed to be continuing in nature. If between the time of filing of
your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your answers, or if you learn that any information set forth in
your answer is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
DEFINITIONS
The following definitions are applicable to these interrogatories:
1. The term "you" or "your," or "Hartman" as used herein, means Hartman &
Associates, Inc., and the general partners, employees, agents, consultants, experts or anyone acting
on behalf of or purporting to act on behalf of Hartman, collectively or in any combination.
2. The term "document", as used herein, means any written, recorded, printed, typed,
or other graphic matter of any kind or nature, however produced or reproduced, whether sent or
received or neither, including drafts or copies bearing meaning, notations or marks not found on or
in the original, and includes but is not limited to:
(a) all letters or other forms of correspondence of communication, including
envelopes, notes, telegrams, cables, telex messages, messages (including reports,
notes, notations and memoranda of or relating to telephone conversations or
conferences);
(b) all memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections, work papers,
corporate records or copies thereof, lists, comparisons, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical records, compilations;
(c) all desk calendars, appointment books, diaries;
(d) all books, articles, press releases, magazines, newspapers, booklets, circulars,
bulletins, notices, instructions, manuals;
(e) all minutes or transcripts of all meetings; and
3
(f) all photographs, microfilms, phonographs, tapes or other records, punch
cards, magnetic tapes, discs, data cells, drums, print-outs, and other data
complications from which information can be obtained.
3. The term "communication" means not only oral communications but also any
"documents" (as such term is defined in paragraph 2 above), whether or not such document or the
information contained therein was transmitted by its author to any other person.
4. The term "identify" or "identification", as used herein means:
(a) When used in reference to a natural person, the terms "identify," "identity"
or "identification" mean to provide the following information:
(i) his/her full name;
(ii) his/her present or last known business address;
(iii) his/her present or last known business affiliation;
(iv) his/her present or last known business position (including job
title and a description of job functions, duties and responsibilities).
(b) When used with reference to any entity other than a natural person, state:
(i) its full name;
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation, if
known;
(iv) in the case of a corporation, the names of its directors and
principal officers; and,
4
(v) in the case of an entity other than a corporation, the identities of
its partners or principals or all individuals who acted or who
authorized another to act on its behalf in connection with the matters
referred to.
(c) When used in reference to a document, the terns "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (e.g., letter, contract, memorandum)
and any other information (i.e., its title, index or file number) which
would facilitate in the identification thereof;
(ii) its date of preparation;
(iii) its present location and the identity (as defined in paragraph 4(a)
hereof) of its present custodian or, if its present location and
custodian are not known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a
legible copy of the document to the answers to those interrogatories;
(v) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any significant function or had any role in connection
therewith (i.e., author, contributor of information, recipient, etc.) or
who has any knowledge; and,
(vi) if the document has been destroyed or is otherwise no longer in
existence or cannot be found, the reason, if known, why such
document no longer exists, the identity (as defined in paragraph 4(a)
5
hereof) of the people responsible for the document no longer being in
existence and of its last known custodian.
(d) When used in connection with an oral communication, the terms "identify,"
"identity" and "identification" mean to provide the following information:
(i) its general nature (i.e., conference, telephonic communication,
etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function or had any role in connection therewith
or who has any knowledge thereof, and,
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof.
5. The term "describe" or "description", as used herein, means:
(a) When used with respect to any act, action, accounting, activity, audit,
practice, process, occurrence, occasion, course of conduct, happening, negotiation,
relationship, scheme, communication, conference, discussion, development, service,
transaction, instance, incidence or event, the terms "describe" or "description" mean
to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
6
(iii) a chronological account setting forth each element thereof, what
such element consisted of and what transpired as part thereof;
(iv) the identity (as defined in paragraph 4(a) or 4(b) hereof) of each
person who performed any function or had any role in connection
therewith (i.e., speaker, participant, contributor or information,
witness, etc.) or who has any knowledge thereof,
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof, and,
(vi) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which was a part thereof or referred thereto.
(b) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and
meaning of each component part thereof);
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function with respect thereto;
(iv) the identity of each document (as defined in paragraph 4(c)
hereof) which refers thereto or which was used, referred to or
prepared in the course or as a result thereof; and,
(v) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which occurred in the course of the preparation
thereof or which referred thereto.
6. The term "factual basis", as used herein, means: (a) set forth each term of
information upon which the allegation, contention, claim or demand to which it pertains is based;
and (b) with respect to each such item of information, identify each person having knowledge
thereof and identify and describe (as defined in paragraphs 4 and 5 hereof) each source thereof,
including, but not limited to, each document, oral communication, act, action, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
7. The terms "relates to" or "relating to" when used in connection with any act, action,
activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual
provision or document, happening, relationship, scheme, conference, discussion, development,
service, instance, incident, event, etc., means used or occurring or referred to in the preparation
therefore, or in the course thereof, or as a consequence thereof, or referring thereto.
8. The term "person" means all natural persons, corporations, partnerships or other
business associations, public authorities, municipal corporations, state governments, local
governments, all governmental bodies, and any other legal entities.
9. "And" and "or" shall be construed conjunctively and disjunctively so as to bring
within the scope of these Interrogatories any information which might otherwise be construed to be
outside their scope.
8
10. The singular shall include the plural and the plural shall include the singular.
11. A masculine, feminine or neuter pronoun shall be construed to refer to all other
gender pronouns.
12. If you claim that the subject matter of a document or oral communication is
privileged, you need not set forth the brief statement of the subject matter of the document, or the
substance of the oral communication called for above. You shall, however, otherwise "identify"
such document or oral communication and shall state such ground on which you claim that such
document or oral communication is privileged.
13. In lieu of identifying documents in response to these Interrogatories, you may
provide copies of such documents with appropriate references to the corresponding Interrogatories.
14. "Incident" means the occurrence that forms the basis of a cause of action or claim
for relief set forth in the complaint or similar pleading.
15. "Person" means a natural person, partnership, association, corporation, or
government agency.
STANDARD INSTRUCTIONS
The following instructions are applicable to these standard interrogatories:
(1) Duty to answer. -- The interrogatories are to be answered in writing, verified, and served
upon the undersigned within 30 days of their service on you. Objections must be signed by the
attorney making them; In your answers, you must furnish such information as is available to you,
your employees, representatives, agents, and attorneys. Your answers must be supplemented and
amended as required by the Pennsylvania Rules of Civil Procedure.
9
(2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery,
you must identify the privilege or immunity asserted and provide sufficient information to
substantiate the claim.
(3) Option to produce documents. -- In lieu of identifying documents in response to these
interrogatories, you may provide copies of such documents with appropriate references to the
corresponding interrogatories.
10
INTERROGATORIES
Please explain the specific factual basis for each back charge Hartman is presently
asserting against Erdman Anthony. A complete Answer will identify the back charge by
contract, item of work for which the back charge was assessed, the specific reason why the back
charge was assessed, the value of the back charge, whether Hartman provided notice of the back
charge to Erdman Anthony, how Hartman provided notice to Erdman Anthony of the back
charge, and when Hartman provided notice of the back charge to Erdman Anthony.
ANSWER:
11
2. Please explain the specific factual basis for each back charge Hartman has not yet
asserted against Erdman Anthony. A complete Answer will identify the back charge by contract,
item of work for which the back charge may be assessed, the specific reason why the back
charge may be assessed, the value of the back charge, whether Hartman provided notice of the
factual basis for any such potential back charge to Erdman Anthony, how Hartman provided
notice of the potential back charge to Erdman Anthony, and when Hartman provided notice of
the potential back charge to Erdman Anthony.
ANSWER:
12
3. If you know of anyone that has given any statement (as defined by the Rules of
Civil Procedure) concerning this action or its subject matter, state:
a. the identity of such person;
b. when, where, by whom, and to whom each statement was made, and
whether it was reduced to writing or otherwise recorded; and
the identity of any person who has custody of any such statement that was
reduced to writing or otherwise recorded.
ANSWER:
13
4. Identify documents (except reports of experts subject to Pa. R.C.P. No. 4003.5)
which describe or in any way relate to the allegations in the Complaint and Hartman's back
charges (whether assessed yet or not) against Erdman Anthony.
ANSWER:
14
5. Identify each person you intend to call as a non-expert witness at the trial of this
case, and for each person identified state your relationship with the witness and the substance of
the facts to which the witness is expected to testify.
ANSWER:
15
6. Identify each expert you intend to call as a witness at the trial of this matter, and
for each expert state:
a. the subject matter about which the expert is expected to testify; and
b. the substance of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion. (You may file as your
answer to this interrogatory the report of the expert or have the interrogatory
answered by your expert.)
ANSWER.:
16
7. Identify all exhibits that you intend to use at the trial of this matter and state
whether they will be used during the liability or damages portions of the trial.
ANSWER:
17
If you intend to use any book, magazine, or other such writing at trial, state:
a. the name of the writing;
b. the author of the writing;
c. the publisher of the writing;
d. the date of publication of the writing; and
e. the identity of the custodian of the writing.
ANSWER:
18
If you intend to use any admission(s) of a party at trial, identify such
admission(s).
ANSWER:
19
10. If you are withholding any documents from production in response to Plaintiff s
First Request for Production of Documents Directed to Defendant on the grounds of privilege or
immunity, identify each document and separately as to each:
a. State the grounds upon which the document was withheld (e.g. attorney
client privilege or work product immunity) and the complete factual basis for the claim of
privilege or immunity;
b. In the case of an allegedly privileged document, identify all persons who
have been privy to it, including, but not limited to, all cc and bcc recipients, and in the
case of an allegedly privileged communication also identify all persons who were privy
to the underlying communication;
C. In the case of a document that is allegedly work product, identify the
litigation in connection with which, or in anticipation of which, the document was
prepared, and identify all persons who have been privy to the document; and
d. Identify each interrogatory and each document request to which the
respective document is responsive.
ANSWER:
20
11. If you have a records retention or other similar policy which sets forth the manner
and timing of retention of your business or other records or regarding the destruction of such
records, please state the following:
a. describe the record retention or destruction policy;
b. identify those persons who are responsible for maintaining or carrying out
said policy;
C. identify all documents which set forth such policy or which otherwise
pertain, refer or relate to such policy; and
d. identify all documents which are otherwise responsive to the Request for
Production of Documents which have been destroyed or discarded pursuant to such
policy.
21
Respectfully submitted,
RHOADS & SINON LLP
By:
David W. Francis
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for
Plaintiff
22
CERTIFICATE OF SERVICE
I hereby certify that on this 1 st day of May, 2007, a true and correct copy of the foregoing
Plaintiff's First Set of Interrogatories Directed to Defendant was served by means of United
States mail, first class, postage prepaid, upon the following:
John W. Clark, III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
David W. Francis
23
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS
ADDRESSED TO DEFENDANT
TO: John W. Clark III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
PLEASE TAKE NOTICE, that you are hereby required, pursuant to the Pennsylvania
Rules of Civil Procedure, to produce for inspection, examination, and copying the following
documents, at the offices of Rhoads & Sinon LLP, One South Market Square, 12th Floor,
Harrisburg, Pennsylvania, 17101, not later than 30 days after service of this request. This request
shall be deemed to be continuing in nature. If, between the time of your responses to this request,
and the time of trial, you, or anyone acting on your behalf, learn of additional documents
responsive to this request, you shall produce such documents by supplemental response.
DEFINITIONS AND INSTRUCTIONS
1. "You" or "your" or "Hartman" refers to Hartman and Associates, Inc., its
employees, agents, representatives, partners, subsidiaries, shareholders, affiliates, divisions, or
attorneys.
2. In responding to these document requests, you are required to obtain and furnish all
documents available to you and any of your representatives, employees, brokers, agents or
servants, and to obtain and furnish all documents that are in your possession or under your control,
or that are in the possession or control of any of your representatives, employees, agents, partners,
subsidiaries, shareholders, affiliates, divisions, or attorneys.
3. Any document request propounded in the disjunctive shall also be read as if
propounded in the conjunctive and vise versa. Any document request propounded in the singular
shall also be read as if propounded in the plural and vise versa.
4. Any document request which seeks information relating in any way to
communications to, from, or with any business or corporate entity, is hereby designated to mean,
and should be construed to include, all communications by and between representatives,
employees, agents and servants of the business of corporate entity.
5. As used herein, "document" or "documents" mean, without limitation, the original
and all non-identical copies of any reproduced or graphic form, whether written, typed,
handwritten, printed, photocopied, recorded on audiotape or videotape, microfilmed, saved by
computer or computer disc or otherwise stored, including, without limitation, all correspondence,
applications, records, schedules, reports, memoranda, notes, lists, telexes, telefaxes, messages,
contracts, agreements, ledgers, books of account, instructions, orders, statements,
acknowledgements, compilations, charts, summaries, diaries, calendars, microfilm, microfiche,
computer discs, computer tapes and computer generated matter.
6. As used herein, the terms "communication" and "communications" refer to and
include, but are not limited to, the transmission of a word, statement, fact, thing, idea, document,
instruction, demand, or question.
7. As used herein, the term "person" or "persons" means all entities of every
description and includes any natural person, corporation, partnership, limited partnership,
association, company, estate, business, or governmental entity or agency having a separate
identification, in law or in fact.
8. As used herein, the phrase "relating to" includes, but is not limited to, information
regarding, concerning, discussing, referring to, stating, or setting forth, describing, interpreting,
identifying, evidencing, reflecting, recording, containing, compromising, constituting,
contradicting, or in any way pertaining to, in whole or in part, the subject to which those phrases
refer.
9. As used herein, the term "representative" refers to and includes any person,
including any of your agents, who acts, has at any time acted, or who has at any time by any person
been requested or solicited to act, at your request, for your benefit, or on your behalf, or who acts
or has at any time acted on your behalf or for your benefit with your knowledge, consent or
acquiescence.
10. As used herein, the term "any" includes the term "all" and vice versa.
11. Unless otherwise specified, all document requests herein relate to the time period
from January 1, 1998 to the date of your response.
12. These documents shall be deemed continuing in nature so as to require
supplementation if you obtain further information or documents between the time the responses are
served and the time of trial.
13. If any requests for documents is deemed to call for the production of privileged
materials, or materials protected from disclosure by the Work Product Doctrine or otherwise, a list
is to be fizrnished containing the following information:
a. Its nature (i.e., letter, memorandum, tape recording, etc.);
b. Its date (or if it bears no date, the date when it was prepared);
C. The name, address, employer and job position of the signor or signors (or if
there is no signor, of the person who prepared it);
d. The name, address, employer and job position of the person or persons, if
any, to whom the document was sent;
e. The name, address, employer, and job position of each person known or
believed to have original copies of the documents;
f. The present location of the document and all copies thereof,
g. A brief statement of the subject matter of the document;
h. Each ground or basis upon which you contend that the document or oral
communication is privileged.
i. If any documents requested are unavailable or have been destroyed, list
each such document and describe when and why it became unavailable, or when and why
it was destroyed;
If you do not have possession, custody, or control of the document
requested, but know who has possession, custody, or control, you are required to identify
the document and the person who has possession, custody or control, in the manner
requested herein.
REQUEST FOR PRODUCTION
1. All correspondence, meeting minutes, notes, statements, summaries of statements,
transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or
interviews of any party, person or witness, or their agents or employees, relating to, referring to, or
in any way describing the basis for Hartman's withholding of payment from Erdman Anthony,
whether assessed or not yet assessed.
Attached to each statement provided pursuant to the preceding request should be an
explanation including:
(a) the name, address and occupation of the person who gave the
statement, and of the person who obtained the statement and the date
and time it was obtained; and
(b) the manner in which the statement was taken; i.e. electronic
recording, written, oral, etc.
RESPONSE:
2. All documents prepared by you, or by a representative, agent, or anyone acting on
your behalf, except your attorneys, during an investigation of the allegations and events regarding
the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such
documents shall include any documents made or prepared up through the present time, with the
exclusion of mental impressions, conclusions, or opinions respecting the value or merit of the claim
or respecting strategy or tactics.
RESPONSE:
3. The complete file, whether formally designated as such or otherwise, maintained by
you concerning the contracts and projects identified in the complaint, excluding mental impressions,
opinions and material protected by attomey/client privilege.
RESPONSE:
4. All statements of any person(s) who will be called as a witness at trial of this matter
relating to, referring to, or in any way connected to the allegations in the complaint.
RESPONSE:
5. All documents or other demonstrative evidence which will be introduced or used at
trial.
RESPONSE:
6. All expert opinions, expert reports, expert summaries or other writings in your
custody or control or in the custody or control of your attorneys, agents or representatives, which
relate to the subject matter of this litigation and the proposed testimony of the preparer of such
opinion, report, summary or other writing.
RESPONSE:
7. A current Curriculum Vitae for each expert retained by you or your attorneys in
connection with this case.
RESPONSE:
8. Any and all documents, including, but not limited to, advertisements, circulars,
brochures, pamphlets, leaflets, writings, and other such promotional items any expert witness you
have retained for use at trial uses and has used in the past to promote his services as an expert
witness.
RESPONSE:
9. All documents, diaries, correspondence or other writings in your custody or in the
custody or control of your attorneys, which relate, in any way, to the subject matter of this litigation,
including, but not limited to, all correspondence between you and Erdman Anthony or other parties
related, in any way, to the contracts identified in the complaint and the withholding of money from
Erdman Anthony.
RESPONSE:
10. Any and all documents, potential exhibits, or other tangible things, including, but not
limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you
or anyone acting on your behalf to have potential probative value regarding your claims or defenses
in this action. Also, provide the name and address of the person presently having possession,
custody or control of each such item.
RESPONSE:
11. Any and all documents relating in any way to back-charged damages and losses
allegedly sustained by you for which you seek recovery from or are otherwise withholding payment
from Erdman Anthony.
RESPONSE:
12. Any and all documents referred to or identified in Plaintiff s First Set of
Interrogatories Directed to Defendant.
RESPONSE:
Respectfully submitted,
RHOADS & SINON LLP
By:
David W. Francis
One South Market Square
P. 0. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for
Plaintiff Erdman Anthony
CERTIFICATE OF SERVICE
I hereby certify that on this 1 st day of May, 2007, a true and correct copy of the foregoing
Plaintiff's Requests for Production of Documents Addressed to Defendant was served by means
of United States mail, first class, postage prepaid, upon the following:
John W. Clark, III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
David W. Francis
SAMUEL L. ANDES
ATTORNEY AT LAW
528 NORTH TWELFTH STREET
P. 0. BOX 166
MAILING ADDRESS: LEMOYNE, PENNSYLVANIA 17043 TELEPHONE
P. 0. BOX 168 (717) 761.3361
LEMOYNE, PA 17043 - 0168
FAR
E-MAIL: LawAndes0aot-Om
(717) 761-1435
22 May 2007
David W. Francis, Esquire
One South Market Square
P.O. Box 1146
Harrisbura. PA 17108-1146
RE: Erdman Anthony vs. Hartman & Associates, Inc.
Dear Mr. Francis:
Enclosed is a copy of the Answer, New Matter, and Counterclaim I will file in
the above matter within the next several days.
I have your discovery materials and have discussed them, at least in general,
with my client. Unfortunately, the person who is going to have to do most of the work
to assemble that information and explain it to me will be out of his office on vacation
until early June. I will meet with him to review the material when he returns and try to
get the information to you shortly thereafter. In the meantime, I request your
patience to give us additional time to get this information prepared and submitted to
you properly.
Sincerely,
Sa e . n es
amh
cc: Hartman & Associates, Inc.
r.
RE OA D S? t& SINON LLP
David W. Francis
ph (717) 237-6738
fx (717) 231-6600
dfrancis@rhoads-sinon. com
FILE NO: 9864.1
June 19, 2007
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
Via Fax and U.S. Mail
SUBJECT: Erdman Anthony v. Hartman and Associates, Inc.; Cumberland
County Court of Common Pleas Docket No. 07-2388
Overdue Discovery Responses
Dear Mr. Andes:
In your letter of May 22, 2007 you requested an extension of time to provide responses to
outstanding discovery requests. It is now June 19, 2007 and we still have not received responses.
When do you anticipate providing these responses?
Thank you for your attention to this matter.
Very truly yours,
RHOADS & SINoN LLP
By/Da "Fran DW
F/kag
cc: Vince Weiser, P.E.
654370.1
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
MAILING ADDRESS:
P. O. I30X 168
LEMOYNE, PA 17043-0168
E-MAIL: L ,.AndesV ol-om
David W. Francis, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
RE.
Dear David:
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P. O. BOX 168
LEMOYNE, PENNSYLVANIA 17043
18 July
Erdman Anthony vs. Hartman & Associates, Inc.
TELEPHONE
(717) 761-5361
PAX
(717) 761-1435
Despite appearances, I have not been ignoring your formal discovery documents.
This is a critical and busy season for my client and so it has been difficult for them to
assemble the information and meet with me to respond to your discovery. That process has
been further complicated by my rather hectic schedule.
I have drafted many of the answers to your Interrogatories and I have met with my
clients to discuss the documents they need to produce. I hope to get you answers to your
discovery within the near future. In the meantime, I want to at least let you know that we are
working on the matter.
Sincerely,
S . Andes
amh
cc: Hartman & Associates, Inc.
E{iE?l{11 E
"TOADS
& SINON LLP
David W. Francis
ph (717) 237-6738
fx (717) 231-6600
dfrancis@rhoads-sinon.com
FRI xo: 9864.1
July 20, 2007
Samuel L. Andes
525 North Twelfth Street
Lemoyne, PA 17043
SUBJECT: Erdman Anthony v. Hartman Associates, Inc.; Cumberland County
Court of Common Pleas Docket No. 07-2388.
Dear Sam:
I am in receipt of your letter of July 18, 2007 addressing your client's failure to provide
responses to Erdman Anthony's outstanding discovery requests. Your response is unacceptable
because of the extensive period of delay already incurred and your lack of specificity as to when
responses will be provided. Let me discuss.
Erdman Anthony sent your client the discovery requests on May 1, 2007. Answers,
Responses, and Productions ("Responses") were due on May 31, 2007. On May 22, 2007 you
forwarded a letter saying that the Responses would be provided in early June. They were not.
On June 19, 2007 I sent you a letter saying that we have not yet been provided with Responses.
We specifically asked when the responses would be required.
You did not provide a timely response to my letter. You finally responded on July 18,
2007 saying only that your respective schedules have not permitted completion of your responses
and that you would "hope to get ... answers ... within the near future." Your letter does not
say when the responses will be provided.
Hartman's responses to Erdman Anthony's discovery requests are now 50 days late. As
of today, your client has had 80 days to provide responses. This is more than reasonable. It
should not be further delayed.
Moreover, this situation is further aggravated by the fact that your client is holding
Erdman Anthony's money.
Erdman Anthony hereby demands that you provide full and complete answers and
responses to all outstanding discovery requests by August 3, 2007. This additional two week
period should provide you sufficient time to provide full and complete answers and responses.
If Erdman Anthony does not receive this discovery by that date, it will file a motion to compel.
657792.1
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg, PA 17108-1146 • Ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
July 20, 2007
Page 2
Thank you for your attention to this matter.
Very Truly Yours,
RHOADS & SINON LLP
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BY:
David W. Francis
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cc: Vincent D. Weiser
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ERDMAN ANTHONY,
PLAINTIFF
V.
HARTMAN & ASSOCIATES, INC.,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 07-2388 CIVIL
ORDER OF COURT
AND NOW, this 9th day of August, 2007, upon consideration of the Motion
to Compel Discovery filed by the Plaintiff,
IT IS HEREBY ORDERED AND DIRECTED that the Defendant shall
provide full and complete responses to the Interrogatories and Requests for the
Production of Documents on or before August 31, 2007.
By the Court,
vid W. Francis, Esquire
Attorney for Plaintiff
amuel L. Andes
Attorney for Defei
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M. L. Ebert, Jr., J.
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Backp-round
1. This is Erdman Anthony's Motion For Sanctions or, In the Alternative, To
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
Defendant
MOTION FOR SANCTIONS OR, IN THE ALTERNATIVE, TO COMPEL DISCOVERY
Compel Discovery against Hartman & Associates, Inc. ("Hartman") for failing to provide
discovery.
2. Erdman Anthony's goal of this Motion is the imposition of sanctions due to
Hartman's discovery abuse.
3. Hartman's consistent failure to provide basic information justifying its
withholding of payment from Erdman Anthony is unacceptable. Moreover, in light of this
Court's Order compelling discovery, it is sanctionable.
4. In the alternative, and only if this Court does not sanction Hartman, then Erdman
Anthony requests the entry of a second Order compelling discovery as explained herein.
5. On August 9, 2007 Judge M. L. Ebert issued an Order granting Erdman
Anthony's Motion to Compel Discovery. A copy of this Order is attached as Exhibit A.
665491.1
Discussion
6. On or about April 25, 2007 Erdman Anthony instituted a complaint against
Hartman. A copy of the Complaint-without exhibits-is attached as Exhibit B.
7. Erdman Anthony's complaint sought payment for work performed and/or labor
supplied under three contracts as follows:
a. The "Loaned Employee Agreement" dated May 11, 2005 by which
Erdman Anthony provided employees to Hartman to work under Hartman's control and
supervision;
b. The "Darby Town Homes Stormwater Revisions Agreement" dated March
27, 2006; and
c. The "Walnut Point III Street Re-Design Agreement" dated April 4, 2006.
Copies of these contracts are attached as Exhibit C.
8. Erdman Anthony submitted invoices to Hartman under the terms of these three
contracts.
9. Hartman reviewed, approved and paid all invoices submitted by Erdman Anthony
through March 20, 2006.
10. On or about May 19, 2007 Hartman filed its Defendant's Answer with New Matter
and Counterclaim ("Answer"). A copy of the Counterclaim is attached as Exhibit D and
incorporated by reference.
11. Hartman's Answer contains numerous averments asserting that Erdman Anthony
breached the three contracts, damaged Hartman, and is responsible for losses incurred.
Hartman's Answer asserts that Hartman is entitled to, among other things, the following:
2
a. At 1 463 Hartman asserted that it is entitled to delay damages because
Erdman Anthony "did not work efficiently and frequently took much longer to complete
assigned work than was necessary, thereby [causingl Defendant unnecessary expense and
delay." (emphasis supplied).
b. At ¶ 46.C Hartman asserted that it is entitled to inefficiency damages
because Erdman Anthony "failed to provide the same employees on a regular basis which
required [Hartman'sl staff to reheat its instruction and training to r Erdman Anthony'sl
employees." (emphasis supplied).
C. At ¶ 46.D Hartman asserted that it is entitled to extra work damages
because Erdman Anthony's "employees were not able to properly perform construction
stake out work without constant assistance from Defendant's staff." (emphasis supplied).
d. At ¶ 59.B Hartman asserted that it is entitled to corrective work damages
because "Much of the work that was done or should have been done by r Erdman
Anthony] had to be done or redone by [Hartman] or its staff." (emphasis supplied).
12. On May 1, 2007 Erdman Anthony served Plaintiff's First Set of Interrogatories
Directed to Defendant ("1St Set of Interrogatories"). A true and correct copy of the 1St Set of
Interrogatories (with Hartman's Answers) is attached hereto as Exhibit E and incorporated by
reference.
13. On May 22, 2007 Hartman forwarded a letter to Erdman Anthony addressing
these interrogatories which stated,
I have your discovery materials and have discussed them, at least
in general, with my client. Unfortunately, the person who is going
to have to do most of the work to assemble that information and
explain it to me will be out of the office on vacation until early
June. I will meet with him to review the material when he returns
and try to get the information to you shortly thereafter.
3
A copy of this letter is attached as Exhibit F.
14. This letter reflects that Hartman would be providing sufficient information
justifying its claims against Erdman Anthony.
15. Hartman did not respond in early June.
16. On June 19, 2007 Erdman Anthony sent a letter to Hartman stating,
In your letter of May 22, 2007 you requested an extension of time
to provide responses to outstanding discovery requests. It is now
June 19, 2007 and we still have not received responses. When do
you anticipate providing these responses?
A copy of this letter is attached as Exhibit G.
17. On July 18, 2007 Hartman finally responded to Erdman Anthony's letter stating,
Despite appearances, I have not been ignoring your formal
discovery documents. This is a critical and busy season for my
client and so it has been difficult for them to assemble the
information and meet with me to respond to your discovery. That
process has been further complicated by my rather hectic schedule.
I have drafted many of the answers to your Interrogatories
and I have met with my clients to discuss the documents they need
to produce. I hope to get you answers to your discovery in the near
future. In the meantime, I want to at least let you know that we are
working on the matter.
A copy of this letter is attached as Exhibit H.
18. This letter reflects that Hartman was working hard at preparing answers and
identifying specific documents that need to be produced.
19. On July 20, 2007 Erdman Anthony responded to Hartman's letter in part as
follows:
Hartman's responses to Erdman Anthony's discovery
requests are now 50 days late. As of today, your client has had 80
days to provide responses. This is more than reasonable. It should
not be further delayed.
4
Erdman Anthony hereby demands that you provide full
and complete answers and responses to all outstanding discovery
requests by August 3, 2007. This additional two week period
should provide you sufficient time to provide full and complete
answers and responses. If Erdman Anthony does not receive this
discovery by that date, it will file a motion to compel.
A copy of this letter is attached as Exhibit I.
20. Hartman did not respond to Erdman Anthony's July 20, 2007 letter.
21. On August 6, 2007 Erdman Anthony filed Erdman Anthony's Motion to Compel
Discovery ("Motion to Compel"). A copy of this - without exhibits - is attached as Exhibit J.
22. On August 9, 2007 Judge M. L. Ebert entered the Order granting Erdman
Anthony's Motion to Compel and providing Hartman until August 31, 2007 to answer the
interrogatories. The text of the Order states, in part:
IT IS HEREBY ORDERED AND DIRECTED that the
Defendant shall provide full and complete responses to the
Interrogatories and Requests for the Production of Documents on
or before August 31, 2007.
(emphasis in the original).
23. Based upon Judge Ebert's Order, Hartman had 122 days to provide responses to
Erdman Anthony's discovery requests.
24. On or about August 27, 2007 Hartman provided Answers to Erdman Anthony's
lst Set of interrogatories.
25. Hartman had taken 118 days to provide answers to Erdman Anthony's
Interrogatories.
5
26. Several of Erdman Anthony's Interrogatories requested to know the specific
reasons-and not mere generalities-as to why Erdman Anthony was being back charged by
Hartman.
27. Hartman failed and refused to provide any such information.
28. Hartman's responses to Erdman Anthony's Interrogatories Nos. 1 and 2 were
incomplete, evasive and non-responsive.
29. Erdman Anthony's Interrogatory No. 1 and Hartman's Answer are as follows:
1. Please explain the specific factual basis for each
back charge Hartman is presently asserting against Erdman
Anthony. A complete Answer will identify the back charge by
contract, item of work for which the back charge was assessed, the
specific reason why the back charge was assessed, the value of the
back charge, whether Hartman provided notice of the back charge
to Erdman Anthony, how Hartman provided notice to Erdman
Anthony of the back charge, and when Hartman provided notice of
the back charge to Erdman Anthony.
ANSWER: Defendant has not asserted any "back-charge" against
Plaintiff. Defendant's defense and counterclaim is based upon its
contention that Plaintiff failed to perform its obligations under the
contract by failing to supply qualified and effective employees.
Thus it is Plaintiffs breach of contract for which the Defendant
seeks to recover, not back-charges for corrective work required.
(emphasis supplied).
30. Erdman Anthony's Interrogatory No. 2 and Hartman's Answer are as follows:
2. Please explain the specific factual basis for each
back charge Hartman has not yet asserted against Erdman
Anthony. A complete Answer will identify the back charge by
contract, item of work for which the back charge may be assessed,
the specific reason why the back charge may be assessed, the value
of the back charge, whether Hartman provided notice of the factual
basis for any such potential back charge to Erdman Anthony, how
Hartman provided notice of the potential back charge to Erdman
Anthony, and when Hartman provided notice of the potential back
charge to Erdman Anthony.
6
ANSWER: Defendant is not asserting any "back charge"
against Plaintiff. Please see to Answer to Interrogatory No. 2
above.
(emphasis supplied).
31. Hartman's Answers adopt an intentionally inaccurate definition of the term "back
charge" so as to avoid providing the basic discovery ordered by this Court.
32. A "back charge" is not a "type" of damage, it is the imposition of a charge for
damages back against an amount due under contract. In this instance, Hartman back charged
against the amount due to Erdman Anthony under the three contracts.
33. Hartman's assertion that it is not seeking "back charges for corrective work" is
also inconsistent with its own pleadings. As explained above, Hartman specifically pled that it
was entitled to recover for corrective work. At 150 of its pleading, Hartman stated,
50. As a result of Plaintiff's breach of contract between
the parties, Defendant suffered significant injury which included:
B. Much of the work on that was done or
should have been done by Plaintiff had to be done or
redone by Defendant or its staff.
(emphasis supplied)
34. On September 7, 2007 Erdman Anthony sent a letter to Hartman which identified
the non-responsive nature of Hartman's responses. That letter demanded that Hartman provided
full and complete answers to the 1St Set of Interrogatories no later than Monday, September 10,
2007. A copy of that letter is attached as Exhibit K.
35. Moreover, Hartman has not identified any documents supporting its position.
Rather, Hartman elected to produce "all" of its documents relating to the project, making Erdman
7
Anthony go on a fishing expedition to find relevant information. This is set forth in Defendant's
Answer to Plaintiff's First Request For Production of Documents. A copy of this is attached as
Exhibit L.
36. The September 7, 2007 letter also served Plaintiff's Second Set of Interrogatories
Directed to Defendant upon Hartman (2nd Set of Interrogatories). A copy of the 2"d Set of
Interrogatories is attached as Exhibit M and incorporated by reference. The 2°d Set of
Interrogatories-which were based in large measure upon Hartman's responses to the 1" Set of
Interrogatories-requested basic information and documentation about the following topics
raised by Hartman:
a. The "contractual damage" or "other damages" suffered by Hartman and
asserted against Erdman Anthony.
b. Hartman's assertion that it was damaged by Erdman Anthony employees
who were not "qualified or effective."
C. Hartman's assertion that it incurred delays because of Erdman Anthony.
d. Hartman's assertion that it had to repeatedly train Erdman Anthony's
employees.
e. Hartman's assertion that its clients refused to pay Hartman's invoices
because of Erdman Anthony;
f. Hartman's assertion that it terminated the contracts with Erdman Anthony.
37. Hartman did not provide any further response to Erdman Anthony's 1St Set of
Interrogatories and has not provided any response to Erdman Anthony's 2nd Set of
Interrogatories.
38. Further, Hartman did not respond to Erdman Anthony's September 7, 2007 letter.
8
39. As of October 19, 2007 Hartman has had 171 days to provide the requested
information explaining why Erdman Anthony's money is being withheld.
40. Erdman Anthony has been harmed and prejudiced by Hartman's failure to provide
this basic discovery. After all of this time, Erdman Anthony still does not have specific
information justifying the withholding of payment.
41. Pa.R.C.P. 4019(a)(1)(i) authorizes a court to make an appropriate order imposing
sanctions where "a party fails to serve answers, sufficient answers, or objections to written
interrogatories under Rule 4005."
42. Pa.R.C.P. 4019(c) authorizes a court to enter an Order prohibiting a disobedient
party from introducing in evidence certain designated documents or testimony, as well as the
entry of any order with regard to discovery that is just.
43. Pa. R.C.P. 4019(g)(1) authorizes a court to enter an Order requiring a party that
fails to comply with a court order compelling discovery to pay the prevailing party's legal fees
for securing the order compelling discovery and a motion for sanctions.
44. Hartman does not concur with this Motion.
45. By this Motion, Erdman Anthony requests the entry of an Order providing,
a. That Hartman is precluded from entering any evidence in support of its
assertions that Erdman Anthony breached its contracts with Hartman and/or that Erdman
Anthony is responsible for any other type of damage allegedly incurred by Hartman.
b. That Hartman must pay Erdman Anthony's legal fees incurred in pursuing
its Motion to Compel and this Motion for Sanctions or, In the Alternative, to Compel
Discovery in an amount to be determined by the Court;
9
C. In the alternative, and only if the relief set forth in subparagraph a is not
granted, then Erdman Anthony requests the entry of an Order compelling Hartman to
provide full and complete Answers to the 1" and 2nd Sets of Interrogatories.
WHEREFORE, Erdman Anthony respectfully requests the entry of an Order as follows:
a. That Hartman is precluded from introducing any evidence in support of
his claims against Erdman Anthony;
b. That Hartman is precluded from introducing any evidence in support of its
damages against Erdman Anthony;
C. That Hartman is precluded from introducing any evidence justifying the
withholding of money to Erdman Anthony;
d. In the alternative if the relief requested in sections (a) to (c) is not granted,
requiring Hartman to provide full and complete answers to Erdman Anthony's 1st and 2nd
Sets of Interrogatories.
10
e. That Hartman shall pay all costs and fees, including attorneys' fees
incurred by Erdman Anthony in preparing its Motion to Compel and this Motion for
Sanctions or, In the Alternative, to Compel Discovery.
By:
Date: 0 G f3 E'?- tg? ?.D
Respectfully submitted,
RHOADS & SINON LLP
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
dfrancis@rhoads-sinon.com
(717) 233-5731
Attorneys for Erdman Anthony
11
CERTIFICATE OF SERVICE
I hereby certify that on October 19, 2007, a true and correct copy of the foregoing Motion
for Sanctions or, In the Alternative, to Compel Discovery was served by means of United States
mail, first class, postage prepaid, upon the following:
Samuel L. Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
David W. Francis
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
ORDER
AND NOW, this day of , 2007, upon consideration of Erdman
Anthony's Motion for Sanctions, it is hereby Ordered:
a. That Hartman is precluded from introducing any evidence in support of
his claims against Erdman Anthony;
b. That Hartman is precluded from introducing any evidence in support of its
damages against Erdman Anthony;
C. That Hartman is precluded from introducing any evidence justifying the
withholding of money to Erdman Anthony;
d. In the alternative if the relief requested in sections (a) to (c) is not granted,
requiring Hartman to provide full and complete answers to Erdman Anthony's 1" and 2nd
Sets of Interrogatories.
e. That Hartman shall pay all costs and fees, including attorneys' fees
incurred by Erdman Anthony in preparing its Motion to Compel and this Motion for
Sanctions or, In the Alternative, to Compel Discovery.
BY THE COURT:
J.
Service:
David W. Francis
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
ERDMAN ANTHONY, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V.
HARTMAN & ASSOCIATES, INC., :
DEFENDANT : NO. 07-2388 CIVIL
ORDER OF COURT
AND NOW, this 9t' day of August, 2007, upon consideration of the Motion
to Compel Discovery filed by the Plaintiff,
IT IS HEREBY ORDERED AND DIRECTED that the Defendant shall
provide full and complete responses to the Interrogatories and Requests for the
Production of Documents on or before August 31, 2007.
David W. Francis, Esquire
Attorney for Plaintiff
Samuel L. Andes, Esquire
Attorney for Defendant
bas
By the Court,
. NA -?
M. L. Ebert, Jr., J.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. n? - c23 8P a" LL -Fe .Jn
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth
in the following pages, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR YOU CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
643883.3
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3199
n ? o
?.
CYI
COMPLAINT
Erdman Anthony is an engineering company with offices located at Three
Crossgate Drive, Mechanicsburg, PA.
2. Hartman Associates, Inc. ("Hartman") is an engineering company with offices
located at 2101 Orchard Rd, Camp Hill, PA 17011.
3. This is a lawsuit seeking payment on three contracts between Erdman Anthony
and Hartman as follows:
a. The "Loaned Employee Agreement" dated May 11, 2005;
b. The "Darby Town Homes Stormwater Revisions Agreement" dated March
27, 2006.
C. The "Walnut Point III Street Re-Design Agreement" dated April 4, 2006.
4. Hartman has failed to pay Erdman Anthony a total of $33,697.50 on these
contracts. Erdman Anthony is seeking the recovery of this amount together with interest,
penalties, attorneys fees and expenses as permitted by law.
Count I - Breach of the
Loaned Employee Agreement Contract
5. On or about March 11, 2005, Erdman Anthony and Hartman entered into the
Loaned Employee Agreement. A copy of the Loaned Employee Agreement is attached hereto as
exhibit A and incorporated by reference.
6. The Loaned Employee Agreement provided in pertinent part as follows:
a. That all loaned employees would perform work as directed by Hartman;
b. That Hartman would be responsible for supervising and assigning work to
the loaned employees;
2
C. That Hartman would pay Erdman Anthony for each hour of work
performed by a loaned employee within thirty (30) days of a submitted invoice;
d. That the Loaned Employee Agreement could be terminated at any time by
either party, with or without cause and at will, upon three days advance notice mailed or
otherwise given or delivered to the other party.
e. That Erdman Anthony and Hartman were not liable to each other for
incidental or consequential damages, including loss of revenue, loss of profit and loss of
use, whether arising in contract, in tort (including negligence) strict liability or otherwise.
7. Under the terms of the Loaned Employee Agreement, Erdman Anthony did not
assume any scope of work for any particular project work. Rather, Erdman Anthony's
employees performed only at the direction of Hartman.
8. Erdman Anthony provided surveying crews and an engineer to Hartman under the
terms of the Loaned Employee Agreement.
9. Erdman Anthony submitted invoices to Hartman for labor provided.
10. Hartman reviewed, approved and paid all such invoices from the beginning of the
contract work through the March 20, 2006 invoice.
11. Hartman stopped making payments to Erdman Anthony under the terms of the
Loaned Employee Agreement beginning with the March 20, 2006 invoice.
12. Hartman did not timely notify Erdman Anthony that Hartman was withholding
payment Erdman Anthony because the employees failed to perform in some way.
13. Hartman never exercised its option to terminate the Loaned Employee agreement.
3
14. On or about March 6, 2006-which was fourteen (14) days before the first
invoice Hartman failed to pay-Erdman Anthony forwarded correspondence advising Erdman
Anthony was terminating the Loaned Employee Agreement effective April 1, 2006.
15. Erdman Anthony terminated the Loaned Employee Agreement because Erdman
Anthony needed the loaned employee for an increased workload at Erdman Anthony.
16. The March 6, 2006 letter contained an offer from Erdman Anthony to perform
additional contract work (i.e. contracts with a specific scope of work) for Hartman.
17. Upon information and belief, Hartman entered into the additional contracts in
dispute in this matter as a result of Erdman Anthony's offer.
18. Had Hartman notified Erdman Anthony of its intention to withhold payment,
Erdman Anthony would have terminated the Loaned Employee Agreement sooner.
19. Had Hartman notified Erdman Anthony of its intention to withhold payment,
Erdman Anthony would not have offered to perform additional contract work for Hartman.
20. Erdman Anthony performed all work necessary under the terms of the Loaned
Employee Agreement and is entitled to be paid by Hartman.
21. Despite demand, Hartman has failed and refused to pay Erdman Anthony the
amount of $20,697.50 for work performed under the terms of the Loaned Employee Agreement.
22. Hartman's failure to pay Erdman Anthony under the terms of the Loaned
Employee Agreement is a material breach of contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $20,697.50 together with costs, fees and attorneys fees as permitted
by law.
4
Count II - Darby Town Homes
Breach of Contract
23. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
at length.
24. On or about March 27, 2006-which was after Erdman Anthony's March 6, 2006
letter advising that the Loaned Employee Agreement was terminated and offering to perform
additional contract work-Erdman Anthony entered into a contract with Hartman for the
preparation of certain Stormwater Management Plan documents in connection with the Darby
Town Homes project. A copy of the contract is attached hereto as exhibit B and incorporated by
reference.
25. Erdman Anthony billed Hartman for the performance of this work in the amount
of $6,000 as set forth in the contract between the parties.
26. Hartman has refused to pay Erdman Anthony's invoice without contractual
justification.
27. Had Erdman Anthony been aware that Hartman was withholding payment on the
Loaned Employee Agreement, Erdman Anthony would not have entered into this contract.
28. Erdman Anthony is currently owed $6,000 by Hartman for this work.
29. Hartman's' failure to pay Erdman Anthony is a material breach of the contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $6,000 together with costs, fees and attorneys fees as permitted by
law.
5
Count III - Walnut Point Phase III
Street Redesign Proiect Breach of Contract
30. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
at length.
31. On or about April 4, 2006-which was after Erdman Anthony's March 6, 2006
letter advising that the Loaned Employee Agreement was terminated and offering to perform
additional contract work-Erdman Anthony entered into a contract with Hartman for the
preparation of street systems redesign documents in connection with the Walnut Point Phase III
project. A copy of the contract is attached hereto as exhibit C and incorporated by reference.
32. Erdman Anthony billed Hartman for the performance of this work in the amount
of $7,000 as set forth in the contract between the parties.
33. Hartman has refused to pay Erdman Anthony's invoice without contractual
justification.
34. Had Erdman Anthony been aware that Hartman was withholding payment on the
Loaned Employee Agreement, Erdman Anthony would not have entered into this contract.
35. Erdman Anthony is currently owed $7,000 by Hartman for this work.
36. Hartman's' failure to pay Erdman Anthony is a material breach of the contract.
WHEREFORE, Erdman Anthony demands judgment in its favor and against Hartman
Associates in the amount of $7,000 together with costs, fees and attorneys fees as permitted by
law.
Count IV-Contractor and Subcontractor Payment Act
37. Erdman Anthony incorporates all of the above allegations as if fully set forth here
at length.
6
38. Hartman's breaches of contract set forth herein are material violations of the
Contractor and Subcontractor Payment Act, 73 P.S. § 501 et seq.
39. Erdman Anthony is entitled to recover interest, penalties and attorneys fees under
the provision of this statue.
WHEREFORE, Erdman Anthony requests this court enter judgment in its favor and
against Hartman in the full amount as authorized by the Contractor and Subcontractor Payment
Act, 73 P.S. § 501 et seq.
Count V---Quantum Meruit
40. Erdman Anthony incorporates all of the above paragraphs as if fully set forth here
an length.
41. In the alternative, and only if the court determines that there are not enforceable
contracts between the parties, Erdman Anthony is entitled to payment in the amount of
$33,697.50 under the theory of quantum meruit.
42. Erdman Anthony provided labor to Hartman Associates with a value of
$33,697.50 and to its detriment.
43. Hartman accepted this labor with an understanding that it was expected to pay
Erdman Anthony for the work performed at the amount invoiced.
44. Hartman has wrongfully failed and refused to pay Erdman Anthony for the full
value of the amounts billed.
45. It is inequitable for Hartman to retain these payments from Erdman Anthony.
WHEREFORE, Erdman Anthony is entitled to the recovery of $33,697 as the value of
the labor provided to Hartman Associates but not paid.
7
Respectfully submitted,
By:
RHOADS & SINON LLP
David W. Francis
One South Market Square
P. 0. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorney for
Erdman Anthony
VERIFICATION
D. Vincent Weiser of Erdman Anthony deposes and says, subject to the penalties of 18
Pa.C.S. § 4904 relating to unsworn falsification to authorities, that he is authorized to execute
this Verification on behalf of Erdman Anthony, and that the facts set forth in the foregoing
document are true and correct to the best of his knowledge, information and belief.
Date: !?'/-l ?ZO 7
D. Vincent Weiser
647925.1
LOANED EMPLOYEE AGREEMENT
This Agreement is entered into on this 11th day of May 2005, by and between Hartman &
Associates, Inc. (the "Company"), 2101 Orchard Road, Camp Hill, PA 1701 land Erdman,
Anthony, Associates, Inc. ("Employer") of 3 Crossgate Drive, Suite 100, Mechanicsburg, PA
17050-2459.
WITNESSETH:
WHEREAS, the Company is desirous of retaining Employer for the providing of
specialized services related to the business of the Company; and
WHEREAS, such specialized services can be performed by Troy LaFerrara, PE, Jeff
MacKay, PE, Gregg Davis, SIT, Dan Mick, EIT, Michael Lockard (hereinafter, "Loaned
Employee"), who is a current employee of Employer; and
WHEREAS, Employer is prepared to make the Loaned Employee available to the
Company, in order for him to perform such specialized services, in accordance with the terms set
forth herein.
NOW, THEREFORE, the parties for and in consideration of the mutual promises
and covenants contained herein agree as follows:
1. Employer agrees to make the Loaned Employee available to Company from the
date of this Agreement through December 31, 2005. The Company's representative who can
authorize specific service activities and with whom Loaned Employee shall coordinate is
D. Vincent Weiser or his designee.
2. Reimbursement for services provided by Employer will be made (1) Specific Rate
for Civil Engineering Support @ $85.00 per hour. (2) Specific Rates for 2 person survey crew @
normal 40 hours per week @ $95.00/crew hour and overtime rate @ $105.00/crew hour.
A. Employer will submit monthly invoices to Company for review, approval,
and subsequent payment. Payment of invoices will be made by Company
within 30 days of receipt of invoice.
3. Employer agrees to maintain complete and accurate records of hours actually
worked in the performance of services pursuant to this Agreement. Copies of such records shall be
provided to Company with the monthly invoices.
4. It is expressly agreed and understood that this Agreement may be terminated at any
time by either party, with or without cause and at will, upon 3 days advance notice mailed or
November 2004 Page 1 of 9
otherwise given or delivered to the other party and that in such event, Employer's sole
compensation shall be for fees properly incurred to date of termination.
5. It is understood and agreed that Loaned Employee shall perform the services not as
an employee or agent of the Company.
6. Employer hereby acknowledges that Confidential Information disclosed to
Employer pursuant to this Agreement constitutes proprietary information and/or valuable trade
secrets, and Employer hereby agrees to maintain and protect them in strictest confidence.
Employer agrees that it will not, at any time, disclose to others, use for its own benefit or otherwise
appropriate or copy any Confidential Information, whether or not developed by Employer, except
as required in Employer's duties to Company. The term "Confidential Information" shall refer to
any information, not generally known in the relevant trade or industry, which was obtained from
Company, or which was learned, discovered, developed, conceived, originated or prepared during
or as a result of the performance by Employer of any services on behalf of Company hereunder
and which falls within the following general categories:
(i) Information relating to trade secrets (of Company or any customer of
Company);
(ii) Information relating to existing or contemplated services, technology,
designs, processes, formulas, computer systems, computer software, algorithms and
research or developments (of Company or any customer of Company);
(iii) Information relating to business plans, sales or marketing methods, methods
of doing business, customer lists, customer usages and/or requirements, financial data and
supplier information (of Company or any customer of Company); or
(iv) Any other information which either Company or any customer of Company
may wish to protect by patent, copyright or by keeping it confidential.
The term "Confidential Information" does not include:
(i) Information which the Employer can demonstrate by competent proof to
have been in its possession prior to disclosure of such information to Employer by
Company or its representatives;
(ii) Information that has also been furnished to Employer by a third parry, as a
matter of right, and which was not received directly or indirectly from Company or its
representatives; and
(iii) Any other information once it becomes part of the public domain by
publication or otherwise through no act of Employer.
Further, any invention, discovery or information developed or obtained by Employer
during the course of this Agreement (and thereafter, related in any way to services provided under
this Agreement) including without limitation, any drawings, designs, blueprints, photographs,
sketches, software, data compilations and other materials developed or obtained by Employer,
November 2004 Page 2 of 9
shall be the property of Company, and any patent, copyright and proprietary rights associated
therewith shall be fully and finally assigned to the Company.
The obligations of Employer under this Article shall remain in effect for a period of one (1)
year after the expiration or sooner termination of this Agreement and, as respects Confidential
Information received from third parties, for such longer period of time as may be required under
third party contracts or agreements.
Employer agrees to execute any and all documents necessary to fully effectuate any of the
provisions of this Article. Employer will require the Loaned Employee to sign the Exhibit A
"Certificate and Agreement" and will provide a copy of such signed document to the Company's
representative.
7. Neither Employer nor Company shall be liable to the other for incidental or
consequential damages, including loss of revenue, loss of profit and loss of use, whether arising in
contract, in tort (including negligence), strict liability or otherwise.
8. Employer represents and warrants that its signing of this Agreement and the Loaned
Employee services hereunder is not and will not be knowingly in violation of any other contract,
agreement or understanding to which it is a party.
9. This Agreement and the rights -and obligations of Employer hereunder may not be
assigned or transferred in whole or in part by Employer without the prior written consent of the
Company, and no such assignment or transfer or attempted assignment or transfer shall be
effective for any purpose whatsoever without Company's prior written consent. Company shall
have no obligation to recognize any purported assignee or transferee to this Agreement.
10. Any provision of this Agreement which is unenforceable under applicable law shall
be reformed as nearly consistent with the parties' intentions as may be necessary to make it
enforceable, and if the provision cannot be so reformed, it shall be severed without invalidating the
remaining provisions of this Agreement.
11. This Agreement shall be governed by and construed in accordance with the laws of
the State of Pennsylvania. The parties have read this Agreement and agree to be bound by its
terms, and further agree that it constitutes the complete and exclusive statement of the Agreement
between them which supersedes all proposals, oral or written, and all other communications
between them relating to the subject matter of this Agreement.
12. During the period of this agreement and for a period of one year, commencing with
the expiration date of this Agreement, Company will not offer employment to Employer's
personnel identified or performing services under this contract. Company agrees to pay Employer
$15,000 as a penalty for each employee hired by Company during this period regardless of the
Company or the Loaned Employee initiating the offer of employment.
November 2004 Page 3 of 9
IN WITNESS WHEREOF and intending to be legally bound hereby, the Company and
Employer have caused this Agreement to be duly executed.
Erdman. Anthony, Associates, Inc.
`- 5
Attest: By: lfjeManj? 6.
(Printed Nam
!r 1e1)
IBC (?d?.u
(Signature)
• (Company)
uv • Cc?4c, TS
Attest: BY:
ted Name)
Lj( gnature)
November 2004 Page 4 of 9
EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Troy LaFerrara, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed: ??,?. ?4 -t-?•.•
Dated: V lG./ 0.5--
November 2004 Page 5 of 9
EXHIBIT A
CERTIFICATE AND AGREEMENT
I, Jeff MacKay, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed:
Dated:
November 2004 Page 6 of 9
CERTIFICATE AND AGREEMENT
EXHIBIT A
I, Gregg Davis, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
c
Signed:
Dated:
November 2004
Page 7 of 9
i
EXHIBIT A
CERTEFICATE AND AGREEMENT
I, Dan IGick, certify that I have read and understand Article 6 of the Loaned Employee Agreement
between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May 11, 2005. I
further agree that I will be bound and obligated under the terms of the said Article 6 just as though
my own name appeared in the Article in place of "Employer."
Signed:
Dated:
November 2004
Page 8 of 9
CERTIFICATE AND AGREEMENT
EXHIBIT A
I, Michael Lockard, certify that I have read and understand Article 6 of the Loaned Employee
Agreement between Hartman & Associates, Inc. and Erdman, Anthony, Associates, Inc. dated May
11, 2005. I further agree that I will be bound and obligated under the terms of the said Article 6
just as though my own name appeared in the Article in place of "Employer."
Signed:'
Dated: S - 13 - 20 Q5
November 2004
Page 9 of 9
Darby Town homes Stormwr
John Clark
Management Plan
From: Troy A. LaFerrara [LaFerraraTA@erdmananthony.com]
Sent: Monday, March 27, 2006 4:25 PM
To: jclark@hartmanandassoc.com
Cc: Richard E. Stees; Robert J. Leonard
Subject: Darby Town homes Stomnwater Management Plan
John,
Page 1 of 1
n Anthon ated the time required for its staff members to prepare the 'ng for the Darby
Townhomes:
- Grading Plan (Showing Swale patters as identified by you at approx. 1 %)
- E&S Plan & Narrative ('twe Foontis)
-Details Plan
- Stornmter Collection Calcs. & Collection system Design 3 T '5 6 a I _*1 6
- Utility Plan (Identifying Collection System locations and sizes)
- Profiles (Of Collection system)
- Opinion of Probable Coprnstruction Cost
The plans will be prepared on Hartman & Assoc. Plan sheets for your review and approval.
The estimate to prepare the above is $5,000.00. The work is expected to take approximatelty
Please advise if Erdman Anthony is to proceed with the- design.
Thank you,
Troy A LaFerrara, PE, PLS, SEO
Associate
Erdman Anthony
3 Crossgate Drive - Suite 100
Mechanicsburg, PA 17050-2459
Telephone 717 766 1741 Facsimile 717 766 5516
laferrarata@erdmananthony.com
?6?)
?l'- T SLY
312- 6 /q*<--L
3/28/2006
A_,(. nPI-1A
APR-05-2006 WED 11:23 AM FAX NO. P. 01
ERDMAN
ANTHONY
April 4, 2006
W. John W. Clark M, PE, PIS
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
CONFIDENTIAL
SUBJECT: Work Order For:
Walnut Point Phase ](YI.
Strut Ra-Dedgn
Dear Mr. Clark:
Erdman, Anthony, Associates, Inc. offers to provide engineering services, for the re--design of the
street systems in Walnut Point Phase M. Erdman Anthony will revise the street grades based on
your direction utilizing the revised contours that your staff has prepared.
Erdman Anthony will provide the following:
• Set new street Centerline grades as per your direction (attempt to maintain existing grade
lines where possible)
• Calculate new street grades based on the typical cross-section of the project
• Set "Key' grade points along the street right-of-way and adjust the lot grading where
required.
• Adjust the utilities based on the new centerline elevations on the profile sheets. As per
your direction, Erdman Anthony will attempt to maintain the currently designed low-
points and attempt to adjust the existing utilities (Storm-collection and Sanitary Sewer)
without requiring re-calculation of the collection systems.
• Erdman Anthony will provide you with one (1) hardcopy of the revised plan sheets and
the corresponding electronic files on CD.
Compensation for services provided to you will be invoiced monthly on a time and materials
basis utilizing the rate schedule below.
The lump sum fee for this project is $7,000.00. Erdman Anthony anticipates that the work will
be completed within 3 weeks from receipt of authorization to proceed. This proposal follows the
Standard Contract Terms & Conditions in our previous contract (#57575).
Employee Owned - Quality Driven
3 Crossgate Drive - Suite 100,1vleehanicsburg, PA 17050-2459
Telephone 717 766 174 1 : Facsimile 717 766 5516
www ertdmanawhony.corn
FPR-05-2008 WED 1I:24 Ah1 FAX NO. P. 02
Mr. John W. Clark M, PE, PLS
Walnut Point Phase III-Street Re-Design
April 4, 2046
Page 2 of 2
If Hartman & Associates, Inc. concurs with and accepts the provisions of this proposal and the
Standard Contract Terms and Conditions, please have an authorized representative sign this
proposal in the space provided, and this proposal and the Terms and Conditions shall become an
executed Contract botwecn us. Receipt of an original signed copy of this Contract, shall
constitute Erdman Anthony's Authorization to Proceed with the work.
Two sets of documents are provided for your use.
Very truly yours,
ERDMAN, ANTHONY, ASSOCIATES, INC.
?ZJLJL
Richard E. Stecs, PLS
Vice President
Enclosures
0 2006, Erdman, Anthony, Associates, Inc.
Accepted for Hartman & Associates, Inc. by:
SIGNATURE- P AVIV 4MX4
NAME
TITLE:
DATE:
NVOW MuntelpaAPropaanlt mp"alt 200 040406 Hannan, - Walnur Pane W &V
ERDMAN ANTHONY A,
ERDMAN ANTHONY,
Plaintiff }
VS. )
HARTMAN & ASSOCIATES, INC., )
Defendant )
NOTICE
TO PLAINTIFF NAMED HEREIN:
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-2388 CIVIL TERM
YOU ARE HEREBY NOTIFIED TO RESPOND TO THE ENCLOSED NEW MATTER AND
COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT
JUDGMENT MAY BE ENTERED AGAINST YOU.
. Andes
Attorney for Defendant
Supreme Court ID 17225
525 North 12th Street
Lemoyne, PA 17043
(717) 761-5361
ERDMAN ANTHONY,
Plaintiff
VS.
HARTMAN & ASSOCIATES, INC.,
Defendant
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-2388 CIVIL TERM
DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM
AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the
following Answer, with New Matter and Counterclaim to Plaintiff's Complaint:
1. Admitted.
2. Admitted.
3. It is admitted that Plaintiff seeks recovery on these contracts but denied that Plaintiff is
entitled to such recovery for the reasons set forth below.
4. Defendant admits that it has not paid Plaintiff $33,697.50 and that Plaintiff now seeks
recovery of that amount. Defendant denies, however, that it owes Defendant that, or any other, amount
for the reasons set forth below.
COUNT I - BREACH OF THE LOANED EMPLOYEE AGREEMENT CONTRACT
5. Admitted.
6. The averments in Paragraph 6 are admitted in part and denied in part, as follows:
a. The agreement does not contain a provision which requires
Hartman to direct the work of Plaintiff's employees. That provision is simply
not in the agreement.
b. There is no such provision in the agreement and, to the contrary,
the agreement indicates that Plaintiff would be responsible to assign employee.
C. Admitted.
d. Admitted.
e. It is admitted that this language appears in the contract but denied
that the language was intended, or should be applied, as Plaintiff apparently asserts.
7. Denied as stated. The understanding between the parties was that Plaintiff would supply
qualified and experienced employees who were fully able to perform their duties for Defendant.
Plaintiff failed to do so.
8. Defendant admits that Plaintiff supplied workers for Defendant but denies that those
workers were experienced or qualified so as to do the work assigned to them properly.
9. Admitted. By way of further answer, however, Defendant incorporates herein the
averments set out in its New Matter and Counterclaim.
10. Admitted. B y way of further answer, however, Defendant states that it had made known
to Plaintiff and some of Plaintiff s employees, Defendant's dissatisfaction of the performance of the
workers supplied by Plaintiff.
11. Admitted. By way of further answer, the averments set forth in Defendant's New Matter
and Counterclaim are incorporated herein by reference.
12. Denied. Defendant notified Plaintiff of its dissatisfaction with the performance of some
of the workers supplied by Plaintiff and did so in a reasonable and timely fashion.
13. Denied. When Defendant became fully aware of the damages it suffered as a result of
the problems caused by Plaintiffs workers, it notified Defendant of those problems and stopped making
payments.
14. Admitted.
15. After reasonable investigation, Defendant is without knowledge or information sufficient
to form a belief as to the truth or accuracy of the averments in this Paragraph, because such information
is within the exclusive control of Plaintiff, and so Defendant denies those averments and demands proof
thereof at trial.
16. Admitted.
17. Denied. Defendant did not enter into any additional contracts with Plaintiff to supply
workers.
18. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
19. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
20. Denied. Plaintiff performed the work for Defendant in an incomplete, defective, and
improper fashion and is not entitled to the payment it now seeks. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
21. Admitted. By way of further answer, however, Defendant denies that it owes Plaintiff
such sum and incorporates herein, by reference, the averments set out in its New Matter and
Counterclaim.
22. Denied. Defendant's failure to make the payments demanded by Plaintiff is justified by
Plaintiff's breach of the agreement by failing to supply workers who could competently perform the
work for Defendant.
WHEREFORE, Defendant demands that Plaintiffs Complaint be dismissed and that judgment
be entered in favor of Defendant in accordance with its Counterclaim.
COUNT H - DARBY TOWN HOMES BREACH OF CONTRACT
23. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
24. Admitted.
25. Admitted. By way of further answer, however, Defendant states that it does not owe the
Plaintiff the sum billed. Defendant incorporates herein by reference the averments set out in
Defendant's New Matter and Counterclaim.
26. Denied. Defendant was justified in not making the payments demanded by plaintiff for
the reasons set forth in Defendant's New Matter and Counterclaim the averments of which are
incorporated herein by reference.
27. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
28. Denied. Defendant owes Plaintiff nothing for the work for which Plaintiff now seeks
payment because the work was not done properly or competently. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
29. Denied. Defendant is justified in withholding payment because Plaintiff breached the
contract by failing to perform properly. Defendant incorporates herein by reference the averments set
out in its New Matter and Counterclaim.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of Defendant on its Counterclaim.
COUNT III - WALNUT POINT PHASE III STREET
REDESIGN PROJECT BREACH OF CONTRACT
30. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
31. Admitted.
32. Defendant admits that Plaintiff billed Defendant for various sums but denies that
Defendant owes the money for the reasons set forth in the averments contained in Defendant's New
Matter and Counterclaim.
33. Denied as stated. Defendant admits that it has failed to make the payment demanded by
Plaintiff but denies that such refusal is without justification. Defendant incorporates herein, by
reference, the averments set out in its New Matter and Counterclaim.
34. After reasonable investigation, Defendant is not able to determine the intention of the
Plaintiff because such is within the exclusive control of Plaintiff and so Defendant denies the averments
in this Paragraph and demands proof thereof at trial.
35. Denied. Plaintiff has not competently performed its obligations under the contract and is
not owed the money it seeks.
36. Denied. Plaintiff breached the contract between the parties by failing to provide services
in accordance with the contract and Defendant has not breached the contract by failing to pay Plaintiff
for its inadequate performance.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
COUNT IV - CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT
37. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs
38. Denied. Defendant has not breached the contract between the parties. Plaintiff breached
the contract and Defendant's refusal to pay Plaintiff is justified by Plaintiff's breach of the contract.
39. Denied. Plaintiff is the party that breached the contract and Defendant is entitled to
damages in accordance with its Counterclaim, the averments of which are incorporated herein by
reference.
WHEREFORE, Defendant demands that Plaintiff s Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
COUNT V - QUANTUM MERUIT
40. No answer required. To the extent that an answer is required, Defendant incorporates
herein the averments set out in the foregoing paragraphs of this Answer and of the New Matter and
Counterclaim attached hereto.
41. Denied. Plaintiff is not entitled to payment from Defendant because Plaintiff did not
perform its obligations as requested by Defendant or as agreed by the parties and did not confer upon
Defendant benefit beyond the payment Defendant has already made to Plaintiff.
42. Denied. The labor or services provided by Plaintiff to Defendant does not have a value
as claimed by Plaintiff because the work done by Plaintiff and its employees was inadequate and
substandard.
43. Denied as stated., Defendant intended to pay Plaintiff for Plaintiff's work but refused to
do so when Plaintiff failed to perform its work in accordance with the standards of the industry, the
agreement of the parties, an Defendant's reasonable expectation. Defendant incorporates herein by
reference the averments set out in its New Matter and Counterclaim.
44. Denied. Defendant has failed to pay Plaintiff the sums Plaintiff claimed because those
sums are not owed. Defendant incorporates herein by reference, the averments set out in its New Matter
and Counterclaim.
45. Denied. Plaintiff did not perform properly or competently and, as a result, is not entitled
to the payment it demands. Defendant incorporates herein by reference the averments set out in its
Counterclaim.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of the Defendant on its Counterclaim.
NEW MATTER
By way of further answer, Defendant sets forth the following New Matter:
46. Plaintiff breached its loaned employee agreement with Defendant by failing to provide
employees who performed up to the standard of the industry in which they were engaged, up to the
standard required by the contract between the parties, or up to the reasonable expectations of the parties.
The failure of Plaintiffs employees to perform included the following:
A. Plaintiffs employees did not work consistently or competently without
constant supervision by Defendant's staff.
B. Plaintiff's employees did not work efficiently and frequently took much
longer to complete assigned work than was necessary, thereby causing Defendant
unnecessary expense and delay.
C. Plaintiff failed to provide the same employees on a regular basis which
required Defendant's staff to repeat its instruction and training to Plaintiff s employees.
D. Plaintiffs employees did not satisfy the standard of the engineering and
surveying industry in the place and at the time those services were provided. Plaintiff's
employees were not able to properly perform construction stake out work without
constant assistance from Defendant's staff.
47. With regard to the contractor work on the Darby Town House project, Plaintiff failed to
perform its obligations to Defendant in a thorough, competent, and efficient manner and thereby
breached the contract between the parties. Some examples of the defective or deficient work by
Plaintiff are:
A. Plaintiff provided staff that was not sufficiently trained or experienced to
perform all of the work or all of the calculations required by the contract.
B. Plaintiff's staff did not complete all of the work assigned to it and submitted
incomplete work to Defendant, which required Defendant to assign its own staff to complete
the work.
C. Plaintiff did not complete its work in a timely fashion, thereby delaying
completion of the work by Defendant.
48. With regard to the Walnut Point project, Plaintiff failed to perform its obligations to
Defendant in a thorough, competent, and efficient manner and thereby breached the contract between the
parties. Some examples of the defective or deficient work by Plaintiff are:
A. Plaintiff provided staff that was not sufficiently trained or experienced to
perform all of the work or all of the calculations required by the contract.
B. Plaintiffs staff did not complete all of the work assigned to it and
submitted incomplete work to Defendant, which required Defendant to assign its own
staff to complete the work.
C. Plaintiff did not complete its work in a timely fashion, thereby delaying
completion of the work by Defendant.
49. By failing to perform its obligations under the three contracts with Defendant, as
,described in the foregoing three paragraphs, Plaintiff breached all of those contracts between the parties.
50. As a result of Plaintiff s breach of the contract between the parties, Defendant suffered
significant injury which included:
A. Completion of the projects was significantly delayed.
B. Much of the work that was done or should have been done by Plaintiff had
to be done or redone by Defendant or its staff.
C. The cost to Defendant to complete its work on all of the projects on which
Plaintiff worked was significantly increased.
D. Defendant's clients became dissatisfied with the work done by Plaintiff
and its staff and, as a result, refused to pay Defendant for much of that work and, in some
cases, either terminated Defendant or declined to engage Defendant to do additional
work.
All of the above injuries were suffered by Defendant as a direct result of Plaintiffs breach of the
contract between the parties as described herein.
51. As a result of Plaintiffs' breach of the contracts between the parties, and the injuries
caused to Defendant by such breaches, Defendant suffered financial damages and losses in an amount in
excess of $45,000.00.
WHEREFORE, Defendant demands that Plaintiff's Complaint be dismissed and that judgment
be entered in favor of Defendant in an accordance with its counterclaim as set forth herein.
COUNTERCLAIM
Defendant hereby asserts against Plaintiff a counterclaim for an amount in excess of $45,000.00,
based upon the following:
52. Defendant incorporates herein by reference the averments set forth in the
foregoing paragraphs of this Answer and New Matter.
53. Plaintiff breached the agreement between the parties as described in
Defendant's New Matter, the averments of which are incorporated herein by reference.
54. Solely and directly as a result of Plaintiff' breaches of the agreements
between the parties, Defendant suffered the injuries and damages described in its New Matter the
averments of which are incorporated herein by reference.
55. Plaintiff, by its conduct, has injured Defendant in an amount in excess of
$45,000.00. \
56. Despite demands by Defendant, Plaintiff has failed and refused to pay
Defendant the damages which Plaintiff caused Defendant.
WHEREFORE, Defendant demands judgment against Plaintiff, on its Counterclaim, for an
amount in excess of $45,000.00, plus interest after 1 September 2006, plus costs of suit.
1 L. An
Attorney for Defendant
Supreme Court ID # 17225
525 North 12* Street
Lemoyne, Pa 17043
(717) 761-5361
I verify that the statements made in this document are true and correct. I understand that any
false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification
to authorities).
Date: J// q /tw7
Hartman & Associates, Inc.
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon counsel for the Plaintiff by
regular mail, postage prepaid, addressed as follows:
David W. Francis, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Date: 5 ??a `m
Amy M. Qkins
Secretary for Samuel L. Andes
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfimcis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 -- Civil Term
PLAINTIFF'S FIRST SET OF INTERROGATORIES
DIRECTED TO DEFENDANT
To: John W. Clark III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
PLEASE TAKE NOTICE that you are hereby required, pursuant to the Pennsylvania
Rules of Civil Procedure, to serve upon the undersigned, a copy of your answers and objections, if
any, in writing and under oath, to the following interrogatories within 30 days after service of the
Interrogatories. The answers shall be inserted in the spaces provided. If there is insufficient space
to answer an interrogatory, the remainder of the answer shall follow on a supplemental sheet.
These interrogatories shall be deemed to be continuing in nature. If between the time of filing of
your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your, answers, or if you learn that any information set fo
AUG 3 0 2007
your answer is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
2
DEFINITIONS
The following definitions are applicable to these interrogatories:
1. The term "you" or "your," or "Hartman" as used herein, means Hartman &
Associates, Inc., and the general partners, employees, agents, consultants, experts or anyone acting
on behalf of or purporting to act on behalf of Hartman, collectively or in any combination.
2. The term "document", as used herein, means any written, recorded, printed, typed,
or other graphic matter of any kind or nature, however produced or reproduced, whether sent or
received or neither, including drafts or copies bearing meaning, notations or marks not found on or
in the original, and includes but is not limited to:
(a) all letters or other forms of correspondence of communication, includiniz
envelopes, notes, telegrams, cables, telex messages, messages (including reports,
notes, notations and memoranda of or relating to telephone conversations or
conferences);
(b) all memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections, work papers,
corporate records or copies thereof, lists, comparisons, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical records, compilations;
(c) all desk calendars, appointment books, diaries;
(d) all books, articles, press releases, magazines, newspapers, booklets, circulars,
bulletins, notices, instructions, manuals;
(e) all minutes or transcripts of all meetings; and
3
(f) all photographs, microfilms, phonographs, tapes or other records, punch
cards, magnetic tapes, discs, data cells, drums, print-outs, and other data
complications from which information can be obtained.
3. The term "communication" means not only oral communications but also any
"documents" (as such term is defined in paragraph 2 above), whether or not such document or the
information contained therein was transmitted by its author to any other person.
4. The term "identify" or "identification", as used herein means:
(a) When used in reference to a natural person, the terms "identify," "identity"
or "identification" mean to provide the following information:
(i) his/her full name;
(ii) his/her present or last known business address;
(iii) his/her present or last known business affiliation;
(iv) his/her present or last known business position (including job
title and a description of job functions, duties and responsibilities).
(b) When used with reference to any entity other than a natural person, state:
(i) its full name;
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation, if
known;
(iv) in the case of a corporation, the names of its directors and
principal officers; and,
4
(v) in the case of an entity other than a corporation, the identities of
its partners or principals or all individuals who acted or who
authorized another to act on its behalf in connection with the matters
referred to.
(c) When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (e.g., letter, contract, memorandum)
and any other information (i.e., its title, index or file number) which
would facilitate in the identification thereof;
(ii) its date of preparation;
(iii) its present location and the identity (as defined in paragraph 4(a)
hereof) of its present custodian or, if its present location and
custodian are not known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a
legible copy of the document to the answers to those interrogatories;
(v) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any significant function or had any role in connection
therewith (i.e., author, contributor of information, recipient, etc.) or
who has any knowledge; and,
(vi) if the document has been destroyed or is otherwise no longer in
existence or cannot be found, the reason, if known, why such
document no longer exists, the identity (as defined in paragraph 4(a)
5
hereof) of the people responsible for the document no longer being in
existence and of its last known custodian.
(d) When used in connection with an oral communication, the terms "identify,"
"identity" and "identification" mean to provide the following information:
(i) its general nature (i.e., conference, telephonic communication,
etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function or had any role in connection therewith
or who has any knowledge thereof; and,
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof.
5. The term "describe" or "description", as used herein, means:
(a) When used with respect to any act, action, accounting, activity, audit,
practice, process, occurrence, occasion, course of conduct, happening, negotiation,
relationship, scheme, communication, conference, discussion, development, service,
transaction, instance, incidence or event, the terms "describe" or "description" mean
to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
6
(iii) a chronological account setting forth each element thereof, what
such element consisted of and what transpired as part thereof;
(iv) the identity (as defined in paragraph 4(a) or 4(b) hereof) of each
person who performed any function or had any role in connection
therewith (i.e., speaker, participant, contributor or information,
witness, etc.) or who has any knowledge thereof;
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof; and,
(vi) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which was a part thereof or referred thereto.
(b) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and
meaning of each component part thereof);
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function with respect thereto;
(iv) the identity of each document (as defined in paragraph 4(c)
hereof) which refers thereto or which was used, referred to or
prepared in the course or as a result thereof; and,
7
(v) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which occurred in the course of the preparation
thereof or which referred thereto.
6. The term "factual basis", as used herein, means: (a) set forth each tern of
information upon which the allegation, contention, claim or demand to which it pertains is based;
and (b) with respect to each such item of information, identify each person having knowledge
thereof and identify and describe (as defined in paragraphs 4 and 5 hereof) each source thereof,
including, but not limited to, each document, oral communication, act, action, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
7. The terms "relates to" or "relating to" when used in connection with any act, action,
activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual
provision or document, happening, relationship, scheme, conference, discussion, development,
service, instance, incident, event, etc., means used or occurring or referred to in the preparation
therefore, or in the course thereof, or as a consequence thereof, or referring thereto.
8. The term "person" means all natural persons, corporations, partnerships or other
business associations, public authorities, municipal corporations, state governments, local
governments, all governmental bodies, and any other legal entities.
9. "And" and "or" shall be construed conjunctively and disjunctively so as to bring
within the scope of these Interrogatories any information which might otherwise be construed to be
outside their scope.
8
10. The singular shall include the plural and the plural shall include the singular.
11. A masculine, feminine or neuter pronoun shall be construed to refer to all other
gender pronouns.
12. If you claim that the subject matter of a document or oral communication is
privileged, you need not set forth the brief statement of the subject matter of the document, or the
substance of the oral communication called for above. You shall, however, otherwise "identify"
such document or oral communication and shall state such ground on which you claim that such
document or oral communication is privileged.
13. In lieu of identifying documents in response to these Interrogatories, you may
provide copies of such documents with appropriate references to the corresponding Interrogatories.
14. "Incident" means the occurrence that forms the basis of a cause of action or claim
for relief set forth in the complaint or similar pleading.
15. "Person" means a natural person, partnership, association, corporation, or
government agency.
STANDARD INSTRUCTIONS
The following instructions are applicable to these standard interrogatories:
(1) Duty to answer. -- The interrogatories are to be answered in writing, verified, and served
upon the undersigned within 30 days of their service on you. Objections must be signed by the
attorney making them; In your answers, you must famish such information as is available to you,
your employees, representatives, agents, and attorneys. Your answers must be supplemented and
amended as required by the Pennsylvania Rules of Civil Procedure.
9
(2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery,
you must identify the privilege or immunity asserted and provide sufficient information to
substantiate the claim.
(3) Option to produce documents. -- In lieu of identifying documents in response to these
interrogatories, you may provide copies of such documents with appropriate references to the
corresponding interrogatories.
10
INTERROGATORIES
1. Please explain the specific factual basis for each back charge Hartman
is presently asserting against Erdman Anthony. A complete Answer will identify the
back charge by contract, Item of work for which the back charge was assessed, the
specific reason why the back charge was assessed, the value of the back charge,
whether Hartman provided notice of the back charge to Erdman Anthony, how
Hartman provided notice to Erdman Anthony of the back charge, and when Hartman
provided notice of the back charge to Erdman Anthony.
ANSWER: Defendant has not asserted any "back charge" against Plaintiff.
Defendant's defense and counterclaim is based upon its
contention that Plaintiff failed to perform its obligations under the
contract by failing to supply qualified and effective employees.
Thus it is Plaintiffs breach of the contract for which Defendant seeks
to recover not back charges for corrective work required.
2. Please explain the specific factual basis for each back charge Hartman
has not yet asserted against Erdman Anthony. A complete Answer will identify the
back charge by contract, item of work for which the back charge may be assessed,
the specific reason why the back charge may be assessed, the value of the back
charge, whether Hartman provided notice of the factual basis for any such potential
back charge to Erdman Anthony, how Hartman provided notice of the potential back
charge to Erdman Anthony, and when Hartman provided notice of the potential back
charge to Erdman Anthony.
ANSWER; Defendant is not asserting "back charge" against Plaintiff. Please
see to the Answer to Interrogatory 1 above.
3. If you know of anyone that has given any statement (as defined by the
Rules of Civil Procedure) concerning this action or its subject matter, state:
a. The identity of such person;
b. When, where, by whom, and to whom each statement was
made, and whether it was reduced to writing or otherwise
recorded; and
c. The identity of any person who has custody of any such statement
that was reduced to writing or otherwise recorded.
ANSWER: Defendant is not aware of any written statements given by any
person.
4, identify documents (except reports of exerts subject to Pa. R.C.P. No.
4003,5) which describe or in any way relate to the allegations in the Complaint and
Hartman's back charges (whether assessed yet or not) against Erdman Anthony).
ANSWER: Defendant is not asserting any "back charges" against Plaintiff for
the reasons set forth in the answer to Interrogatory 1. Any
documents which support the defenses raised by Defendant or
the claims made in its counterclaim are contained in its files which
are available pursuant to Defendants answer to Plaintiffs Request
for Production, which answer is incorporated herein.
5. Identify each person you Intend to call as a non-expert witness at the
trial of this case, and for each person identified state your relationship with the witness
and the substance of the facts to which the witness is expected to testify.
ANSWER: Plaintiff has not determined what witnesses it may call at trial In this
matter. It anticipates that it will call, at a minimum, its manager,
John Clark, and James Skonezney, a field party chief. Other
witnesses may be Identified later.
6. Identify each expert you intend to call as a witness at the trial of this
matter, and for each expert state:
A. The subject matter about which the expert is expected to testify;
and
B. The substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each opinion. (You may
file as your answer to this interrogatory the report of the expert or have the
interrogatory answered by your expert).
ANSWER: At this time Defendant has not determined any expert witness it
intends to call to testify at trial of this matter.
7. Identify all exhibits that you intend to use at the trial of this matter and
state whether they will be used during the liability or damages portions of the trial.
ANSWER: At this time, Defendant has not determined what exhibits it will offer
into evidence at trial in this matter.
8. If you intend to use any book, magazine, or other such writing at trial,
state:
A. The name of the writing;
B. The author of the writing;
C. The publisher of the wrmng;
D. The date of publication of the writing; and
E. The Identify of the custodian of the writing.
ANSWER: At this time, Defendant has not determined whether it will offer any
book, magazine, or other writing into evidence at trial In this
matter.
9. If you intend to use any admission(s) of a party at trial, identify such
admission(s).
ANSWER: Defendant has not yet decided whether it will offer admissions into
evidence at trial.
10. If you are withholding any documents from production in response to
Plaintiffs First Request for Production of Documents Directed to Defendant on the
grounds of privilege or immunity, identify each document and separately as to each:
A. State the grounds upon which the document was
withheld (e.g. attorney client privilege or work produce Immunity) and the
complete factual basis for the claim of privilege or immunity; and
B. In the case of the allegedly privileged document, identify
all persons who have been privy to it, including, but not limited to, all cc
and bcc recipients, and in the case of an allegedly privileged
communication also identify all persons who were privy to the underlying
communication;
C. In the case of a document that Is allegedly work product,
identify the litigation in connection with which, or in anticipate of which,
the document was prepared, and identify all persons who have been
privy to the document, and
D. Identify each interrogatory and each document request
to which the respective document is responsive.
ANSWER: Defendant is not withholding any document from production in
response to Plaintiffs First Request for Production of Documents on
the basis of any privilege. The only exception to that are
communications between Plaintiff and its attorney in this matter,
which will not be among the documents produced and which are
being withheld because of the attorney-client privilege.
11. If you have a records retention or other similar policy which sets forth
the manner and timing of retention of your business or other records or regarding the
destruction of such records, please state the following:
A. Describe the record retention or destruction policy;
B. Identify those persons who are responsible for maintaining
or carrying out said policy;
C. Identify all documents which set forth such policy or
which otherwise pertain, refer or relate to such policy; and
D. identify all documents which are otherwise responsive to
the Request for Production of Documents which have been destroyed or
discarded pursuant to such policy.
ANSWER: Defendant has no formal records retention policy.
Respectfully submitted,
By:
RHOADS & SINON LLP
David W. Francis
One South Market Square
P. 0. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for
Plaintiff
22
CERTIFICATE OF SERVICE
I hereby certify that on•this 1st day of May, 2007, a true and correct copy of the foregoing
Plaintiff s First Set of Interrogatories Directed to Defendant was served by means of United
States mail, first class, postage prepaid, upon the following:
John W. Clark, III, P.E., P.L.S.
Hartman & Associates, Inc.
2101 Orchard Road
Camp Hill, PA 17011
David W. Francis
23
I verify that the statements made in this document are true and correct. I
understand that any false statements in this document are subject to the penalties of 18
Pa. C.S. 4904 (unsworn falsification to authorities).
HART(IPAN & ASSOCIATES, INC.
Date :
JOHN
Manager
MAILING ADDRESS:
P. O. BOX 188
LEMOYNE, PA 17043.0168
E-MA.IL: LawAndesaaol.com
David W. Francis, Esquire
One South Market Square
P.O. Box 1146
Harrisburg. PA 17108-1146
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P. O• BOX 168
LEMOYNE, PENNSYLVANIA 17043
22 May 2007
RE: Erdman Anthony vs. Hartman & Associates, Inc.
Dear Mr. Francis:
TELEPHONE
(717) 761-3361
PAX
(717) 761-1435
Enclosed is a copy of the Answer, New Matter, and Counterclaim I will file in
the above matter within the next several days.
I have your discovery materials and have discussed them, at least in general,
with my client. Unfortunately, the person who is going to have to do most of the work
to assemble that information and explain it to me will be out of his office on vacation
until early June. I will meet with him to review the material when he returns and try to
get the information to you shortly thereafter. In the meantime, I request your
patience to give us additional time to get this information prepared and submitted to
you properly.
Sincerely,
w
Sa a es
amh
cc: Hartman & Associates, Inc.
r
IRIFITOADS 5,1
& SINON LLP
David W. Francis
ph (717) 237-6738
fx (717) 231-6600
dfrancis@rhoads-sinon.com
FaE No: 9864.1
June 19, 2007
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
Via Fax and U.S. Mail
SUBJECT: Erdman Anthony v. Hartman and Associates, Inc.; Cumberland
County Court of Common Pleas Docket No. 07-2388
Overdue Discovery Responses
Dear Mr. Andes:
In your letter of May 22, 2007 you requested an extension of time to provide responses to
outstanding discovery requests. It is now June 19, 2007 and we still have not received responses.
When do you anticipate providing these responses?
Thank you for your attention to this matter.
Very truly yours,
RHOADS & SINoN LLP
By:
Da . Fran
654370.1
DWF/kag
cc: Vince Weiser, P.E.
C2
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square P.O. Box 1146
Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
MAILING ADDRESS:
P. O. BOX 168
LEMOYNE, PA 17043 - 0168
E-MAIL: LawAndesaaol.com
David W. Francis, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
RE:
Dear David:
SAMUEL L. ANDES
ATTORNEY AT LAW
525 NORTH TWELFTH STREET
P. 0. BOX 168
LEMOYNE, PENNSYLVANIA 17043
18 July 200 fix.
Erdman Anthony vs. Hartman & Associates, Inc.
TELEPHONE
(717) 761-5361
FAX
(717) 761.1435
Despite appearances, I have not been ignoring your formal discovery documents.
This is a critical and busy season for my client and so it has been difficult for them to
assemble the information and meet with me to respond to your discovery. That process has
been further complicated by my rather hectic schedule.
I have drafted many of the answers to your Interrogatories and I have met with my
clients to discuss the documents they need to produce. I hope to get you answers to your
discovery within the near future. In the meantime, I want to at least let you know that we are
working on the matter.
Sincerely,
S . Andes
amh
cc: Hartman & Associates, Inc.
T) T-TO
ful MS Isar
& SINON LLP
July 20, 2007
Samuel L. Andes
525 North Twelfth Street
Lemoyne, PA 17043
David W. Francis
ph (717) 237-6738
fx (717) 231-6600
dfrancis@rhoads-sinon.com
Fn.E xo: 9864.1
SUBJECT: Erdman Anthony v. Hartman Associates, Inc.; Cumberland County
Court of Common Pleas Docket No. 07-2388.
Dear Sam:
I am in receipt of your letter of July 18, 2007 addressing your client's failure to provide
responses to Erdman Anthony's outstanding discovery requests. Your response is unacceptable
because of the extensive period of delay already incurred and your lack of specificity as to when
responses will be provided. Let me discuss.
Erdman Anthony sent your client the discovery requests on May 1, 2007. Answers,
Responses, and Productions ("Responses") were due on May 31, 2007. On May 22, 2007 you
forwarded a letter saying that the Responses would be provided in early June. They were not.
On June 19, 2007 I sent you a letter saying that we have not yet been provided with Responses.
We specifically asked when the responses would be required.
You did not provide a timely response to my letter. You finally responded on July 18,
2007 saying only that your respective schedules have not permitted completion of your responses
and that you would "hope to get ... answers ... within the near future." Your letter does not
say when the responses will be provided.
Hartman's responses to Erdman Anthony's discovery requests are now 50 days late. As
of today, your client has had 80 days to provide responses. This is more than reasonable. It
should not be further delayed.
Moreover, this situation is further aggravated by the fact that your client is holding
Erdman Anthony's money.
Erdman Anthony hereby demands that you provide full and complete answers and
responses to all outstanding discovery requests by August 3, 2007. This additional two week
period should provide you sufficient time to provide full and complete answers and responses.
If Erdman Anthony does not receive this discovery by that date, it will file a motion to compgl,
657792.1
Rhoads & Sinon LLP • Attorneys at Law • Twelfth Floor • One South Market Square • P.O. Box 1146
Harrisburg, PA 17108-1146 • ph (717) 233-5731 • fx (717) 232-1459 • www.rhoads-sinon.com
July 20, 2007
Page 2
Thank you for your attention to this matter.
Very Truly Yours,
RHOADS & SINON LLP
By:
David W. Francis
DWF/kag
cc: Vincent D. Weiser
rAUG 0 82007
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Phone: 717-233-5731
Fax: 717-231-6600
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
ORDER
AND NOW, this day of
2007, upon consideration of Erdman
Anthony's Motion to Compel Discovery, it is hereby Ordered that:
1. A Rule is issued upon Hartman & Associates to show cause why Erdman
Anthony is not entitled to the relief requested; and
2. Hartman Associates shall file an Answer to this Rule within twenty (20) days
following entry of this Order.
BY THE COURT:
'S 3 1 2007
659392.1
J.
Service:
David W. Francis
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
2
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq. 0 0
Attorney I.D. No. 53718 ig ? `n
dfrancis@rhoads-sinon.com f - 1 --
Rhoads and Sinon, LLP = C) M F=
One South Market Square -
P.O. Box 1146
Harrisburg, PA 17108-1146 r -? -r
Phone: 717-233-5731 - ' - : r
Fax: 717-231-6600 r-_ i7-3 m
ERDMAN ANTHONY
Plaintiff
V.
HARTMAN & ASSOCIATES, INC.
Defendant
Civil Action - Law
Docket No. 07-2388 - Civil Term
Jury Trial Demanded
cr,
ERDMAN ANTHONY'S MOTION TO COMPEL DISCOVERY
Erdman Anthony files this Motion to Compel as follows:
1. On April 25, 2007 Erdman Anthony filed a complaint against Hartman &
Associates, Inc. ("Hartman") seeking payment, inter alia, in accordance with invoices submitted
in the amount of $33,697.50.
2. On May 1, 2007 Erdman Anthony filed:
a. Plaintiff's First Set of Interrogatories Directed to Defendant; and
b. Plaintiff's First Request for the Production of Documents Addressed to
Defendant.
(True and correct copies of these documents are attached as exhibits A and B hereto).
3. Pursuant to the Pennsylvania Rules of Civil Procedure, Hartman's responses were
due thirty (30) days from May 1, 2007, which is May 31, 2007.
4. On May 22, 2007, Samuel Andes forwarded a letter in which he acknowledged
Hartman's responsibility to respond to the discovery. It contained the following language:
I have your discovery materials and have discussed them, at
least in general, with my client. Unfortunately, the person who is
going to have to do most of the work to assemble that information
and explain it to me will be out of his office and on vacation until
early June. I will meet with him to review that material when he
returns and try to get the information to you shortly thereafter. In
the meantime, I request your patience to give us additional time to
get this information prepared and submitted to you properly.
(A true and correct copy of this letter is attached as exhibit C.)
5. Erdman Anthony did not receive responses to its discovery requests in early June.
6. On June 19, 2007 Erdman Anthony sent a letter to Mr. Andes stating in part,
In your letter of May 22, 2007 you requested an extension of time
to provide responses to outstanding discovery requests. It is now
June 19, 2007 and we still have not received responses. When do
you anticipate providing these responses?
(A true and correct copy of this letter is attached as exhibit D.)
7. Twenty-nine (29) days later, on July 18, 2007, Hartman responded in a letter as
follows:
Despite appearances, I have not been ignoring your formal
discovery documents. This is a critical and busy season for my
client and so it has been difficult for them to assemble the
information and meet with me to respond to your discovery. That
process has been further complicated by my rather hectic schedule.
I have drafted many of the answers to your interrogatories
and I have met with my clients to discuss the documents they need
to produce. I hope to get you answers to your discovery in the near
future. In the meantime, I want to at least let you know that we are
working on the matter.
(A true and correct copy of this letter is attached as exhibit E.)
8. On July 20, 2007 Erdman Anthony responded by providing two more weeks for
Hartman to provide responses to the discovery as follows:
Hartman's responses to Erdman Anthony's discovery
requests are now 50 days late. As of today, your client has had 80
days to provide responses. This is more than reasonable. It should
not be further delayed.
2
Erdman Anthony hereby demands that you provide full
and complete answers and responses to all outstanding discovery
requests by August 3, 2007. This additional two week period
should provide you with sufficient time to provide full and
complete answers and responses. If Erdman Anthony does not
receive this discovery by this date, it will file a motion to compel.
(A true and correct copy of this letter is attached as exhibit F.)
9. Hartman did not provide responses to the outstanding discovery by August 3,
2007.
10. Hartman did not respond to Erdman Anthony's letter of July 20, 2007.
11. Hartman has had 97 days to provide responses to discovery and has failed to
provide any of it.
12. Hartman continues to withhold the $33,697.50 from Erdman Anthony.
13. Hartman obviously does not concur in the filing of this motion.
WHEREFORE, Plaintiff Erdman Anthony requests this Court grant this Motion to
Compel and order Hartman Associates to provide full and complete responses to the
interrogatories and requests for the production of documents served within 10 days.
Respectfully submitted,
RHOADS S N LLP
By:
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731 (phone)
(717) 231-6600 (fax)
dfrancis@rhoads-sinon.com
www.rhoads-sinon.com
Attorneys for Erdman Anthony
3
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of August, 2007, a true and correct copy of this
Motion to Compel Discovery was served by United States mail, first class, postage prepaid, upon
the following:
Samuel Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043-0168
od z
David. Francis, Esquire
f14{.r
1\,"T-TOADS
& SINON LLP
David W. Francis
ph (717) 237-6738
fx (717) 231-6600
dfrancis@rhoads-sinon.com
MENO: 9864.1
September 7, 2007
Samuel L. Andes, Esquire Via Fax and U.S. Mail
525 North Twelfth Street
Lemoyne, PA 17043
SUBJECT: Erdman Anthony v. Hartman Associates, Inc.; Cumberland County
Court of Common Pleas Docket No. 07-2388
Dear Sam:
This letter addresses the current status of discovery in this case, and follows up on our
telephone discussion today.
Responses to Interrogatories
I have determined that Hartman's responses to Erdman Anthony's First Set of
Interrogatories, nos. 1, 2 and 4 are not "full and complete" as mandated by the Court's Order of
August 9, 2007. Hartman's responses did not provide M information about the claims it
asserted against Erdman Anthony. Instead, Hartman adopted a dishonest definition of the term
"back-charge" in order to avoid providing the requested information. This is unacceptable and a
violation of the Court's Order.
These interrogatories requested Hartman provide information about the back-charges it
has asserted against Erdman Anthony. Hartman denied that any back-charges were assessed.
Instead, Hartman asserts that only "contractual damages" were assessed. Hartman's answer to
Erdman Anthony's first interrogatory states,
ANSWER: Defendant has not asserted any "back-charge" against Plaintiff.
Defendant's defense and counterclaim is based upon its contention that
Plaintiff failed to perform its obligations under the contract by failing to
supply qualified and effective employees. Thus it is Plaintiffs breach
of contract for which the Defendant seeks to recover, not back-charges
for corrective work required.
661988.1
In other words, Hartman is claiming that the term "back-charge" is not a way of
recovering contractual damages, and that correcting defective work is not a contractual damage.
That is simply wrong.
A back-charge is not a type of damage, such as extra work, delay, inefficiency, and so
forth. It is a method by which contractual damages are asserted against the amount due to
vow-
Rhoads & Sinon LLP - Attorneys at Law - Twelfth Floor - One South Market Square - P.O. So
Harrisburg, PA 17108-1146 - ph (717) 233-5731 - fx (717) 232-1459 - www.rhoads-sinon.c
September 7, 2007
Page 2
another party under a contractual agreement. In this case, Hartman owed Erdman Anthony
payment for work performed and billed on three contracts. Hartman has back-charged against
those amounts based upon its purported contractual damages. Erdman Anthony's interrogatories
sought the information supporting these back-charges. Hartman has refused to provide any of
the information.
The term "back-charge" is widely used and well understood. Hartman undoubtedly
knows this. It is obvious to Erdman Anthony that Hartman adopted this incorrect version in
order to avoid providing "full and complete" responses to our discovery requests. It is also
obvious that Hartman wants to make Erdman Anthony expend additional sums of money
securing this discovery. Hartman should be reminded that Erdman Anthony has a claim under
the terms of the Contractor and Subcontractor Payment Act, and that Hartman will ultimately be
responsible for payment of theses costs.
Further, and perhaps a better demonstration of Hartman's lack of good faith, even if your
interpretation of the term "back-charge" is correct, which is strictly denied, Hartman specifically
pled that its breach of contract damages includes correcting Erdman Anthony's work. At 150 of
its pleading, Hartman stated,
50. As a result of Plaintiff's breach of contract between
the parties, Defendant suffered significant injury which included:
B. Much of the work on that was done or
should have been done by Plaintiff had to be done or
redone by Defendant or its staff.
This is an admission by Hartman that correcting Erdman Anthony's work is a type of
contractual damage. Hartman's response to Erdman Anthony's interrogatories are inconsistent
with its pleading altogether.
Hartman has no good faith basis for failing to provide "full and complete" answers to
these interrogatories. Accordingly, please ensure that full and complete answers to these
interrogatories are delivered to my office no later than 5:00 p.m. on Monday, September 10,
2007. If full and complete responses are not received, Erdman Anthony will pursue an
appropriate remedy.
Second Set of Interrogatories
Erdman Anthony is also propounding a Second Set of Interrogatories Directed to
Hartman. These are attached. Please provide full and complete answers in accordance with the
Pennsylvania Rules of Civil Procedure.
Inspection of Hartman's Documents
Erdman Anthony will wait until it receives full and complete responses to discovery
before conducting this inspection.
September 7, 2007
Page 3
Deposition of Mr. Clark
Erdman Anthony will take the deposition of Mr. Clark. It will wait until it has received
full and complete responses to both sets of outstanding interrogatories and obtained copies of all
documents necessary for the depositions. Erdman Anthony cannot yet judge how long Mr.
Clark's deposition will take because it has not received any information supporting Hartman's
back-charges against Erdman Anthony. At present, we expect that the deposition will take one
full day. It will be held at Erdman Anthony's offices. Erdman Anthony cannot guarantee that
Hartman will be able to depose its employees on the same day.
Deposition of Erdman Anthony Employees
Finally, your letter of August 31; 2007 states, "I want to depose whoever in your client's
organization was in charge with the workers who were provided to Hartman pursuant to the
agreement between the parties." There are actually three (3) agreements between the parties in
this matter. I address each below:
• The Loaned Employee A erement. Under the terms of this agreement, Erdman
Anthony was not in charge of the workers it provided. It merely provided employees to
Hartman. Hartman was responsible for supervising the employees' work. Erdman
Anthony will produce Richard E. Stees, PLS, Vice President, who executed the
agreement on behalf of Erdman Anthony to testify in that capacity.
• The Darby Town Homes Project. Under the terms of this agreement, Erdman
Anthony provided professional services for a specific scope of work. Unlike the Loaned
Employee Agreement, it did not provide workers for Hartman's use. Erdman Anthony
can produce Richard E. Stees to testify about these services.
• The Walnut Point Phase III Project. Similarly, Erdman Anthony provided
professional services on this project. Erdman Anthony will produce Richard E. Stees to
testify about these services.
Thank you for your attention to this matter. Erdman Anthony reserves all rights.
Very Truly Yours,
RHOADS & S1NON LLP
By:
David W. Francis
DWF/kag
Enclosure
cc: Vincent D. Weiser
ERDMAN ANTHONY,
Plaintiff
VS.
HARTMAN & ASSOCIATES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND
COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-2388 CIVIL TERM
DEFENDANT'S ANSWER TO PLAINTIFF'S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes
the following Answer to Plaintiff's First Request for Production of Documents:
1. All documents described in this Request, to the extent they exist, are within Defendant' s
files which Defendant shall make available to Plaintiff's attorney at the offices of Defendant' s attorney,
pursuant to Pa. R.C.P. 4009.12 (a) (2) (i).
2. Defendant did not conduct an investigation and there are no such documents as a result.
3. These documents are available for inspection at a convenient time at the offices of
Defendant's attorney, pursuant to Pa. R.C.P. 4009.12 (a) (2) (i).
4. At this time Defendant does not have any statements from persons Defendant plans to
call to testify at trial.
5, Defendant has not yet determined what documents or other demonstrative evidence it
will introduce or otherwise use at trial. To the extent such documents exist, they are within the records
which are available at Defendant' s attorneys office, pursuant to Pa. R.C.P. 4009.12 (a) (2) (1).
6. Defendant has no such reports, summaries, or opinions.
7. Defendant has not retained an expert at this time and so does not have these documents.
8. Defendant has not retained an expert at this time and so it does not have these
documents.
9. To the extent these documents exist they are among the files and other documents which
are available for inspection at Defendant's attorneys office pursuant to Pa. R.C.P. 4009.12 (a) (2) (i).
10. To the extent these documents exist they are among the files and other documents
which are available for inspection at Defendant's attorneys office pursuant to Pa. R.C.P. 4009.12 (a)
(2) (1).
V
AUG 3 0 2007
IL 1/31.4 7.
l
11. Defendant does not assert "back charges" against Plaintiff. Documents relating to its
measure of damages on its counterclaim or information relating to the Plaintiffs breach of the
contract between the parties as part of Defendant' s defense are among the files and documents
available for inspection at Defendant's attorneys office pursuant to Pa. R.C.P. 4009.12 (a) (2) (i).
12. Defendant did not refer to or identify documents in its answer to Interrogatories.
Samuel L. Andes
Attorney for Defendant
Supreme Court ID # 17225
525 North 12"' Street
Lemoyne, Pa 17043
(717) 761-5361
I verify that the statements made in this document are true and correct, I understand that any
false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn
falsification to authorities),
Date: 17
Hartman & Associates, Inc.
1 7A-?
41
1/ ; John ' . Clark
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
David W. Francis, Esq.
Attorney I.D. No. 53718
dfrancis@rhoads-sinon.com
Rhoads and Sinon, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
717-233-5731-office
717-231-6600-fax
ERDMAN ANTHONY
Plaintiff Civil Action - Law
V.
Docket No. 07-2388 - Civil Term
HARTMAN & ASSOCIATES, INC.
Defendant
PLAINTIFF'S SECOND SET OF INTERROGATORIES
DIRECTED TO DEFENDANT
To: Samuel L. Andes
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
PLEASE TAKE NOTICE that you are hereby required, pursuant to the Pennsylvania
Rules of Civil Procedure, to serve upon the undersigned, a copy of your answers and objections, if
any, in writing and under oath, to the following interrogatories within 30 days after service of the
Interrogatories. The answers shall be inserted in the spaces provided. If there is insufficient space
to answer an interrogatory, the remainder of the answer shall follow on a supplemental sheet.
These interrogatories shall be deemed to be continuing in nature. If between the time of filing of
your answers and the time of trial of this matter, you, or anyone acting on your behalf, learn of any
further information not contained in your answers, or if you learn that any information set forth in
662000.2
your answer is or has become inaccurate or incorrect, you shall promptly file and serve
supplemental answers.
2
DEFINITIONS
The following definitions are applicable to these interrogatories:
1. The term "you" or "your," or "Hartman" as used herein, means Hartman &
Associates, Inc., and the general partners, employees, agents, consultants, experts or anyone acting
on behalf of or purporting to act on behalf of Hartman, collectively or in any combination.
2. The term "document", as used herein, means any written, recorded, printed, typed,
or other graphic matter of any kind or nature, however produced or reproduced, whether sent or
received or neither, including drafts or copies bearing meaning, notations or marks not found on or
in the original, and includes but is not limited to:
.(a) all letters or other forms of correspondence of communication, including
envelopes, notes, telegrams, cables, telex messages, messages (including reports,
notes, notations and memoranda of or relating to telephone conversations or
conferences);
(b) all memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections, work papers,
corporate records or copies thereof, lists, comparisons, questionnaires, surveys,
charts, graphs, summaries, extracts, statistical records, compilations;
(c) all desk calendars, appointment books, diaries;
(d) all books, articles, press releases, magazines, newspapers, booklets, circulars,
bulletins, notices, instructions, manuals;
(e) all minutes or transcripts of all meetings; and
3
(f) all photographs, microfilms, phonographs, tapes or other records, punch
cards, magnetic tapes, discs, data cells, drums, print-outs, and other data
complications from which information can be obtained.
3. The term "communication" means not only oral communications but also any
"documents" (as such term is defined in paragraph 2 above), whether or not such document or the
information contained therein was transmitted by its author to any other person.
4. The term "identify" or "identification", as used herein means:
(a) When used in reference to a natural person, the terms "identify," "identity"
or "identification" mean to provide the following information:
(i) his/her full name;
(ii) his/her present or last known business address; ,
(iii) his/her present or last known business affiliation;
(iv) his/her present or last known business position (including job
title and a description of job functions, duties and responsibilities).
(b) When used with reference to any entity other than a natural person, state:
(i) its full name;
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation, if
known;
(iv) in the case of a corporation, the names of its directors and
principal officers; and,
4
(v) in the case of an entity other than a corporation, the identities of
its partners or principals or all individuals who acted or who
authorized another to act on its behalf in connection with the matters
referred to.
(c) When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (e.g., letter, contract, memorandum)
and any other information (i.e., its title, index or file number) which
would facilitate in the identification thereof;
(ii) its date of preparation;
(iii) its present location and the identity. (as defined in paragraph 4(a)
hereof) of its present custodian or, if its present location and
custodian are not known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a
legible copy of the document to the answers to those interrogatories;
(v) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any significant function or had any role in connection
therewith (i.e., author, contributor of information, recipient, etc.) or
who has any knowledge; and,
(vi) if the document has been destroyed or is otherwise no longer in
existence or cannot be found, the reason, if known, why such
document no longer exists, the identity (as defined in paragraph 4(a)
5
hereof) of the people responsible for the document no longer being in
existence and of its last known custodian.
(d) When used in connection with an oral communication, the terms "identify,"
"identity" and "identification" mean to provide the following information:
(i) its general nature (i.e., conference, telephonic communication,
etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function or had any role in connection therewith
or who has any knowledge thereof, and,
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof.
5. The term "describe" or "description", as used herein, means:
(a) When used with respect to any act, action, accounting, activity, audit,
practice, process, occurrence, occasion, course of conduct, happening, negotiation,
relationship, scheme, communication, conference, discussion, development, service,
transaction, instance, incidence or event, the terms "describe" or "description" mean
to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
6
(iii) a chronological account setting forth each element thereof, what
such element consisted of and what transpired as part thereof;
(iv) the identity (as defined in paragraph 4(a) or 4(b) hereof) of each
person who performed any function or had any role in connection
therewith (i.e., speaker, participant, contributor or information,
witness, etc.) or who has any knowledge thereof;
(v) the identity (as defined in paragraph 4(c) hereof) of each
document which refers thereto or which was used, referred to or
prepared in the course or as a result thereof; and,
(vi) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which was a part thereof or referred thereto.
(b) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and
meaning of each component part thereof);
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in paragraph 4(a) hereof) of each person
who performed any function with respect thereto;
(iv) the identity of each document (as defined in paragraph 4(c)
hereof) which refers thereto or which was used, referred to or
prepared in the course or as a result thereof, and,
7
(v) the identity (as defined in paragraph 4(d) hereof) of each oral
communication which occurred in the course of the preparation
thereof or which referred thereto.
6. The term "factual basis", as used herein, means: (a) set forth each term of
information upon which the allegation, contention, claim or demand to which it pertains is based;
and (b) with respect to each such item of information, identify each person having knowledge
thereof and identify and describe (as defined in paragraphs 4 and 5 hereof) each source thereof,
including, but not limited to, each document, oral communication, act, action, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance; incident,, event, calculation and
computation upon which you rely with respect thereto.
7. The terms "relates to" or "relating to" when used in connection with any act, action,
activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual
provision or document, happening, relationship, scheme, conference, discussion, development,
service, instance, incident, event, etc., means used or occurring or referred to in the preparation
therefore, or in the course thereof, or as a consequence thereof, or referring thereto.
8. The term "person" means all natural persons, corporations, partnerships or other
business associations, public authorities, municipal corporations, state governments, local
governments, all governmental bodies, and any other legal entities.
9. "And" and "or" shall be construed conjunctively and disjunctively so as to bring
within the scope of these Interrogatories any information which might otherwise be construed to be
outside their scope.
8
10. The singular shall include the plural and the plural shall include the singular.
11. A masculine, feminine or neuter pronoun shall be construed to refer to all other
gender pronouns.
12. If you claim that the subject matter of a document or oral communication is
privileged, you need not set forth the brief statement of the subject matter of the document, or the
substance of the oral communication called for above. You shall, however, otherwise "identify"
such document or oral communication and shall state such ground on which you claim that such
document or oral communication is privileged.
13. In lieu of identifying documents in response to these Interrogatories, you may
provide copies of such documents with appropriate references to the corresponding Interrogatories. .. .. I
14. "Incident" means the occurrence that forms the basis of a cause of action or claim
for relief set forth in the complaint or similar pleading.
15. "Person" means a natural person, partnership, association, corporation, or
government agency.
STANDARD INSTRUCTIONS
The following instructions are applicable to these standard interrogatories:
(1) Duty to answer. -- The interrogatories are to be answered in writing, verified, and served
upon the undersigned within 30 days of their service on you. Objections must be signed by the
attorney making them; In your answers, you must furnish such information as is available to you,
your employees, representatives, agents, and attorneys. Your answers must be supplemented and
amended as required by the Pennsylvania Rules of Civil Procedure.
9
(2) Claim of privilege. -- With respect to any claim of privilege or immunity from discovery,
you must identify the privilege or immunity asserted and provide sufficient information to
substantiate the claim.
(3) Option to produce documents. -- In lieu of identifying documents in response to these
interrogatories, you may provide copies of such documents with appropriate references to the
corresponding interrogatories.
10
INTERROGATORIES
Please refer to your answers to Plaintiff s First Set of Interrogatories Directed To
Defendant, Interrogatory No. 1 and 2. Kindly provide the following information:
a. For each contract, please identify each purported item of contractual
damage that Hartman suffered and for which it asserts, or can assert, a claim against
Erdman Anthony. A complete answer will identify the specific contractual obligation
that Erdman Anthony breached, the method by which it breached the obligation, the
impact of Erdman Anthony's breach upon Hartman, and the specific damages incurred by
Hartman as a result of the breach.
ANSWER:
11
b. For each contract, please identify all documents which Hartman relied
upon in answering the paragraph 1(a) above. A complete answer will identify the
specific documents relied upon by Hartman, and not assert that the relied upon
documents are being produced with all of the project files.
ANSWER:
12
C. For each contract, identify each employee you contend was not "qualified
or effective," and explain how each such employee was not "qualified or effective." A
complete answer will identify the employee, the manner in which the employee was not
qualified or effective, and the specific item of work for which the employee was not
qualified or effective.
ANSWER:
13
d. Identify whether Hartman contends that it is entitled to additional damages
from Erdman Anthony for its failure to provide "qualified or effective" employees, and
how the employee was not "qualified or effective." A complete answer will identify the
employee, the manner in which the employee was not qualified or effective, and the
specific projects on which the employee was not qualified or effective.
ANSWER:
14
2. Please identify each and every item of damage you are asserting against Erdman
Anthony. A complete answer will identify what type of damage you are asserting (such as but
not limited to breach of contract, delay, acceleration, disruption, correction of defective work,
lost profits, project overhead, home office overhead, loss of business with clients) ("damage").
ANSWER:
15
3. For each item of damage you identified in the above interrogatory, please provide
the calculations by which you arrived at the value of the damage. If you did not perform a
calculation, then set forth the specific method by which you determined the value of the damage.
ANSWER:
16
4. Please identify all information, documentation, standards of care, publications, or
other authority or information supporting your assertion of damages against Erdman Anthony.
ANSWER:
17
5. Please identify each delay experienced by Hartman as a result of Erdman
Anthony's work. A complete answer will identify the project, the action (breach of contract or
otherwise) of Erdman Anthony that caused the delay, the period of delay, the damages incurred by
Hartman as a result of the delay, the notification by Hartman to Erdman Anthony that its work was
delaying the project, and all documentation or other communication between Hartman and any
other person or entity regarding the delay.
ANSWER:
18
6. Please identify each instance in which Hartman's employees were responsible for
training Erdman Anthony's employees. A complete answer will identify the Erdman Anthony
employee, the work task which required training, the dates on which the training occurred, the
approximate length of the training per day (i.e. minutes, hours) and how this training adversely
impacted Hartman.
ANSWER:
19
7. Please identify each client who refused to pay Hartman for work performed, and for
which Hartman asserts a claim against Erdman Anthony. A complete answer will identify the
project, the owner, the basis used by the owner to refuse payment, the date when the payment was
refused, all communications between Hartman and the project owner who is refusing payment
ANSWER:
20
8. Please identify any other form of damage that Hartman is asserting against Erdman
Anthony in this litigation.
ANSWER:
21
9. Please identify the specific factual basis for your assertion that Hartman terminated
any of the agreements between the parties. A complete answer will identify the date of any such
termination, the method by which the agreement was terminated, the method by which the
termination was communicated to Erdman Anthony, the individual at Hartman who provided
notice of the termination, the individual at Erdman Anthony who received notice of the
termination, any documents associated with Hartman's termination of the contract, and the specific
reasons provided by Hartman for the termination.
ANSWER:
22
Respectfully submitted,
RHOADS & SINON LLP
i
By:
David W. Francis
Attorney I.D. No. 53718
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-11.46
(717) 233-5731
Attorneys for Erdman Anthony
Date: September 7, 2007
23
CERTIFICATE OF SERVICE
I hereby certify that on September 7, 2007, a true and correct copy of the foregoing
Plaintiff s First Set of Interrogatories Directed to Defendant was served by means of United
States mail, first class, postage prepaid, upon the following:
Samuel L. Andes
525 North Twelfth Street
P.O. Box 168
Lemoyne, PA 17043
David W. Francis
24
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ERDMAN ANTHONY, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
HARTMAN & ASSOCIATES, INC., :
DEFENDANT : No. 07-2388 CIVIL
ORDER OF COURT
AND NOW, this 19th day of November, 2007, upon consideration of Plaintiff's
Motion for Sanctions or, in the Alternative, to Compel Discovery,
IT IS HEREBY ORDERED AND DIRECTED that:
A. A Rule shall issue upon the Defendant to show cause why Plaintiff's Motion
should not be granted. Defendant shall file an Answer to the Motion on or before
December 7, 2007;
B. A status conference on this matter shall be held on Tuesday,
January 8, 2008, at 8:30 a.m. in chambers of Courtroom No. 5 of the Cumberland
County Courthouse, Carlisle, Pennsylvania.
Counsel for the Plaintiff, Erdman Anthony, shall bring copies of the invoices
submitted to Defendant, Hartman & Associates, for the work preformed by the surveying
crews and the engineer listed in paragraph 8 of its complaint. If not included in the
invoice, Counsel for Plaintiff shall list the name of each employee who performed the
work on each invoice.
By the Court,
M. L. Ebert, Jr., J.
/FNS;"
0 -l W8 OZ 0 LOOZ
David W. Francis, Esquire
Attorney for Plaintiff
Samuel L. Andes, Esquire
Attorney for Defendant
L?-
bas
ERDMAN ANTHONY, )
Plaintiff )
vs. )
HARTMAN & ASSOCIATES, INC., )
Defendant )
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-2388 CIVIL TERM
JURY TRIAL DEMANDED
DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR SANCTIONS
OR, IN THE ALTERNATIVE, TO COMPEL DISCOVERY
AND NOW comes the above-named Defendant, by its attorney, Samuel L. Andes, and makes the
following answer to Plaintiff's Motion:
1. Admitted.
2. Defendant admits that is the Plaintiff's goal but denies that Defendant has abused discovery
or procedure in this matter.
3. Denied. Defendant has provided adequate information to explain the reasons it withheld
payment from Plaintiff and those explanations are acceptable. They are certainly adequate for Plaintiff
to prepare for depositions or litigation in the matter if necessary.
4. Defendant admits that is Plaintiff's request. Defendant denies, however, that it has failed to
adequately or properly answer Plaintiff's discovery requests and demands.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Denied. Defendant did not approve all invoices submitted by Plaintiff. To the contrary,
there were a series of discussions and communications between the parties in which Defendant raised
objections to the work done by Plaintiff, the work improperly done by Plaintiff, and the excessive fees
charged by Plaintiff for the work done. Defendant also made Plaintiff aware of the difficulties that
-1-
Plaintiff's deficient work had caused and continued to cause Defendant in performing its obligations to
Defendant's clients.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. Denied as stated. The letter speaks for itself. Moreover, the information provided by
Defendant in its responses to Plaintiffs discovery was adequate to define its claims to Plaintiff and
Plaintiff s counsel. In addition, Defendant has offered to make one or more of its employees available
for deposition and to make extensive records available for inspection by Plaintiff or Plaintiff's counsel to
further explain its position. Plaintiff has declined to inspect the documents that have been so offered or
to proceed with depositions.
15. Admitted.
16. Admitted.
17. Admitted.
18. Denied as stated. The letter speaks for itself. Moreover, after the letter, Defendant, through
its counsel, offered to make extensive records available to Plaintiff for review and inspection and to
make employees of Defendant available for deposition.
19. Admitted.
20. Admitted.
21. Admitted.
22. Admitted.
23. Admitted.
24. Admitted.
25. Admitted.
26. Admitted.
27. Denied. Defendant submitted the information available to it and the information it
provided was more than sufficient for Plaintiff to understand Defendant's defenses and claims in the
matter. Moreover, Defendant has assembled all of its records relating to the claims in this action,
delivered them to its attorney's office, and offered, through its attorney, to allow Plaintiff or its
z.
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representative to review those records at their convenience. In addition, Defendant has offered to make
one or more of its employees available for deposition to further address Plaintiff s discovery demands.
To date, Plaintiff has not availed itself of either opportunity offered by Defendant.
28. Denied for the reasons set forth in Paragraph 27 above.
29. Admitted.
30. Admitted.
31. Denied. Defendant's answer does not adopt an intentionally inaccurate definition of any
term. It merely states that Defendant's claims are not based upon back charges, which would involve
payments to third parties to correct work inadequately or deficiently done by Plaintiff, but are offsets
against the amounts Plaintiff claims to be owed.
32. Denied. Defendant has merely raised a defense to Plaintiff's claim by asserting that
Plaintiff did not comply with the contract and provide services in accordance with the contract and the
agreement between the parties.
33. Denied. The fact that Defendant is asserting that Plaintiff did not do its work correctly and
that, as a result, Plaintiff incurred additional inconvenience, loss, cost, or expense, does not arise to a
"back charge" as defined by the statute on which Plaintiff relies.
34. Admitted. By way of further answer, however, Defendant denies that it has any obligation
to further expand its answers because the answers provide adequate information to Plaintiff on which it
can investigate and prepare its case, particularly with the additional opportunities for discovery which
Defendant has repeatedly offered.
35. Denied as stated. Defendant has offered to produce its entire files for the projects on which
Plaintiff worked or are involved in this dispute. Pursuant to Pa. R.C.P. 4009.12(a)(2)(i), Defendant may
do so by making all of the documents available because the burden of identifying documents for use in
this case is as great for Defendant as it is for Plaintiff.
36. Defendant admits that Plaintiff served a second set of interrogatories. Defendant denies
Plaintiff s characterization of those and the interrogatories speak for themselves.
37. Admitted.
38. Defendant admits that it did not respond to Plaintiffs counsel's letter but denies that an
answer is required.
-3-
39. Defendant admits the number of days averred by Plaintiff but denies that it has failed to
provide the requested information explaining why it has not paid Plaintiff's claim. The averments set
forth in the foregoing paragraphs of this answer are incorporated herein.
40. Denied. Defendant has reasonably answered Plaintiff's discovery requests and demands
and has, beyond that, offered all of its records to be inspected by Plaintiff or its representatives and one
or more of its employees to be deposed. To the extent that Plaintiff has suffered damage by any delay in
this matter, it is self-inflicted because Plaintiff has declined to avail itself of the discovery and
information offered by Defendant.
41. Admitted.
42. Admitted. However, such a remedy is inappropriate in this matter for the reasons set forth
in the averments in the foregoing paragraphs.
43. Defendant admits that the rule so provides but denies that a sanction is appropriate in this
case for the reasons set forth in the averments in the foregoing paragraphs.
44. Admitted.
45. Defendant admits that Plaintiff seeks such relief but denies the relief is appropriate for the
reasons set forth in this answer.
WHEREFORE, Defendant prays this Court to deny Plaintiff's motion and direct the parties to
proceed with appropriate discovery prior to involving the court in their discovery disputes.
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Smamuel L. Andes
Attorney for Defendant
Supreme Court ID 17225
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
-4-
NOV-30-2007(FRI) 12;31
Samuel Andes, Esq.
(FAX)717 761 1435
P. 020/021
I verify that the statements made in this document are true and correct. I understand that any false
statements in this document are subject to the penalties of,?8 Pa. C.S. 4904 (unworn falsification to
authorities). t
DATE: 1 :?L.VjZ4V ?
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CERTIFICATE OF SERVICE
I hereby certify that on 6 December 2007 , I served a copy of the foregoing document upon
counsel for Plaintiff by U.S. Mail, postage prepaid, addressed as follows:
David W. Francis, Esquire
P.O. Box 1146
Harrisburg, PA 17108-1146
Samuel L. Andes
Attorney for Defendant
Supreme Court ID 17225
P.O. Box 168
Lemoyne, PA 17043
(717) 761-5361
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ERDMAN ANTHONY, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V. :
HARTMAN & ASSOCIATES, INC.,
DEFENDANT No. 07-2388 CIVIL
IN RE: PLAINTIFF'S MOTION FOR SANCTIONS/DISCOVERY
ORDER OF COURT
AND NOW, this 9t" day of January, 2008, upon consideration of the
Plaintiff's Motion for Sanctions and/or to Compel Discovery, the Defendant's
Answer thereto, and after conference with counsel this date,
IT IS HEREBY ORDERED AND DIRECTED that the Defendant shall
respond to the Plaintiffs Second Set of Interrogatories as follows:
Interrogatory 1a - The Defendant shall make a good faith effort to identify
each purported item of contractual damage Defendant suffered. If an item is not
identified, the Defendant will be prohibited from asserting the item of contractual
damage at trial.
Interrogatory 1 b - The Defendant shall identify all documents relied upon
in answering Interrogatory I a. Should the Defendant fail to provide such
documents, the documents will be prohibited from being introduced to evidence
at trial.
Interrogatory 1 c - The Defendant will identify those employees of the
Plaintiff which it considered not "qualified or effective" and specifically why
Defendant considered them such. If individual employees can not be specifically
y
identified, crews provided by the Plaintiff which were not "qualified or effective"
will be identified by when they worked and what project they were working on.
Interrogatory 1d - The Defendant will state what specific damages it
suffered as a result of the Plaintiff not providing "qualified or effective"
employees.
Interrogatory 2 - The Defendant shall provide a complete answer.
Interrogatory 3 - The Defendant shall provide a complete answer.
Interrogatory 4 - The Defendant will not be required to answer this
Interrogatory at this time. Should further discovery disclose the necessity for the
information requested, Plaintiff will be allowed to renew their request.
Interrogatory 5 - The Defendant will identify the dates of each claimed
delay, the length of each claimed delay, and the cost associated with each
claimed delay attributed to the Plaintiff.
Interrogatory 6 - The Defendant will identify those occasions when the
Defendant had to provide "correctional instruction" to the Plaintiff's personnel in
order for Plaintiffs personnel to properly perform their assigned functions.
Interrogatory 7 - The Defendant shall provide a complete answer.
Interrogatory 8 - The Defendant shall provide a complete answer.
Interrogatory 9 - The Defendant shall provide a complete answer.
IT IS FURTHER ORDERED AND DIRECTED that the information ordered
to be provided above will be provided by the Defendant on or before the close of
business on February 8, 2008. Failure to provide this information will result in a
sanction being imposed upon the Defendant in the amount of $2,000.00.
By the Court,
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David W. Francis, Esquire
Attorney for Plaintiff
Samuel L. Andes, Esquire
Attorney for Defendant
M. L. Ebert, Jr.,
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Michael W. Winfield, Esquire
Attorney I.D. No. 72680
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
Phone: (717) 233-5731
Fax: (717) 231-6637
E-Mail: mwinfield@rhoads-sinon.com
Attorneys for Plaintiff Erdman Anthony
ERDMAN ANTHONY,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
HARTMAN & ASSOCIATES, INC.,
Defendant
CIVIL ACTION - LAW
NO. 07-2388 CIVIL
PRAECIPE FOR SUBSTITUTION OF COUNSEL
TO THE PROTHONOTARY:
Kindly substitute the undersigned as counsel for Plaintiff, Erdman Anthony, in the above
action.
RHOADS & ISIXON LLP
Bv:
One SL th Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff, Erdman Anthony
765716.1
CERTIFICATE OF SERVICE
I hereby certify that on December 23, 2009, a true and correct copy of the foregoing
Praecipe for Substitution of Counsel was served by means of United States mail, first class,
postage prepaid, upon the following:
Samuel L. Andes, Esquire
P.O. Box 168
Lemoyne, PA 17043
Lynn G. Ritter
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2009 Dirt 29 Ail 10: Ou