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HomeMy WebLinkAbout01-0315 FX THOM LEWIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants AND NOW, this day of DOCKET NO, 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER 2001, upon consideration of Plaintiff's Motion to Compel Answers to Interrogatories and Request for Production of Documents, it is hereby ORDERED that Defendant The Smith Agency, Inc. shall provide full and complete Answers within 20 days or suffer sanctions. BY THE COURT, J. Distribution: Mark K. Emery, Esquire William A. Addams, Esquire LAw OFFICE OF MICHAEL J. I IANFT ATTORNEYS &- COUNSELLORS AT LAW -P? WILLIAM A. ADDAMS MICHAEL J. HANFT GREGORY H . KNIGHT December 18, 2001 RICHARD L. WEBBER, JR. LINDSAY D. GINGRICH Curtis R. Long, Prothonotary Cumberland County Courthouse Carlisle, PA 17013 RE: Lewis v. The Smith Agency, Inc., et al. No. 01-315 Dear Mr. Long: I am enclosing the Defendants' response to Plaintiff's motion to compel answers to interrogatories and request for production of documents. A copy is being forwarded to Judge Hess. Very truly yours, LAW OFFICE OF MICHAEL J. HANFT William A. Addams VVAA/mmp Enclosure cc: Honorable Kevin A. Hess - - Mark K. Emery, Esquire F \User Folder\Firm Docs\Genltr200M025-I cl wpd 19 BROOKWOOII AvENUI: SL'II1= 106 CA It I_ISI - PA 17013-9142 717.249.5373 I-Ax 717.249.0457 WWW HANritAWFIRM.COn1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants CIVIL ACTION - LAW NO. 01-315 DEFENDANTS' BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT FACTS The Second Amended Complaint alleges that the Plaintiff is a performer who entered into a written contract with Defendant, The Smith Agency, Inc., which provides that he would be paid 80% of the gross contract fees booked by and paid to The Smith Agency. The contract, attached as Exhibit "A" to the Second Amended Complaint, is captioned: Contract between The Smith Agency, Inc. (AGENCY) and Thom Lewis (ARTIST) Period covered March 15, 1999 to March 15, 2001 The contract is signed by the Plaintiff and "William J. Smith, President, The Smith Agency, Inc. (AGENCY)." Paragraph 2 of the Complaint alleges that The Smith Agency, Inc. is a Michigan corporation. The contract provides that the Artist is to be booked for college shows through the Agency. The college will then pay the Agency, which is to remit 80% of the fee to the Artist. In essence, the Complaint alleges that the Plaintiff was booked and performed, but has not been paid for six performances. Counts I and lI of the Second Amended Complaint allege breach of contract and unjust enrichment solely against The Smith Agency, Inc. Counts III through VI assert claims against both the corporation and William J. Smith, individually. The Defendants request that all causes of action against William J. Smith, individually, be dismissed and demur to Count III alleging a violation of Pennsylvania's Wage Payment and Collection Law. ARGUMENT In Count I of their Preliminary Objections, the Defendants stated that William J. Smith, individually, had not been served. Plaintiff's counsel subsequently filed an affidavit of service. Accordingly, the motion to dismiss is withdrawn. DEMURRER OF DEFENDANT WILLIAM J. SMITH Paragraph 4 of the Second Amended Complaint states, "At all times relevant to this Complaint, William J. Smith was the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency." No facts are alleged which would indicate that Mr. Smith acted in any capacity other than as president of the corporation. In fact, there is nothing to indicate that he did anything personally other than signing the contract. Count III of the Second Amended Complaint alleges that the Defendants refused to pay wages in violation of Pennsylvania's Wage Payment and Collection Law, 43 P.S. §206.1, et seq., and that William J. Smith is an employer as defined in the Act. Mr. Smith, however, was not a party to the contract and was not the Plaintiffs employer. Counts IV and V alleges that the Defendants 2 improperly placed an advertisement, but the copy of the advertisement which is attached as Exhibit "B" to the Second Amended Complaint refers only to The Smith Agency, Inc. Count VI claims a "tortious interference with a prospective business relationship," but Paragraph 38 states, "William Smith, acting in his capacity as an agent and employee of The Smith Agency, along with other employees," committed the acts. An individual acting as an agent for a disclosed principal is not personally liable on the contract between the principal and a third party unless the agent specifically agrees to liability. Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 56, 489 A.2d 828, 836 (1985); Grant R. Wright, Inc. v. Haworth Energy Resources, Inc., 337 Pa. Super. 115, 486 A.2'd 507 (1984). "A corporation is a distinct and separate entity." Glazier v. Cambridge Industries, Inc. 281 Pa. Super. 621, 625, 422 A.2d 642, 644 (1980). Stockholders and officers cannot be held liable for the contracts of the corporation in the absence of extraordinary circumstances, which are not claimed in this case. Revere Press, Inc. V. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968). Accordingly, Mr. Smith cannot be held personally liable and the claims against him should be dismissed. DEMURRER TO COUNT III The Second Amended Complaint in Count III alleges that the Defendants refuse to pay wages in violation of Pennsylvania's Wage Payment and Collection Law, 43 P.S. §206.1, et seq., and that William J. Smith is an employer as defined in the Act. An employer, as defined, is "every person ... [or] corporation ... employing any person in this Commonwealth." 43 P.S. §206.2a. Neither the Defendant corporation nor Mr. Smith employed the Plaintiff, however, but rather acted solely as the Plaintiff's agent in obtaining employment. As specified in the contract, the agency received a 20% commission and was required to remit 80% of the gross contract fee following receipt of payment from the college. If there was an employer, it was the college, not the agency. Therefore, Count III should be dismissed. Respectfully submitted, LAW OFFICE OF MICHAEL J. HANFT By: William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Defendants 4 CERTIFICATE OF SERVICE AND NOW, this 12th day of July, 2001, I, Mary M. Price, an employee of the Law Office of Michael J. Hanft, hereby certify that I have served the Defendants' Brief in support of preliminary objections to second amended complaint by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Mark K. Emery, Esquire FENSTERMACHER AND ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17055 THOM LEWIS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' PRELIMINARY OBJECTIONS I. Statement of Facts. On March 12, 1999, Plaintiff and Defendant The Smith Agency, Inc. ("the Agency") entered into a written contract whereby Agency would book Plaintiff to perform at various college venues. The written contract is attached to Plaintiff's Second Amended Complaint as Exhibit "A:'. Under the contract, Agency would pay to Plaintiff eighty (80%) percent of the gross contract fee entered into between the Agency and any third party college. Plaintiff provided numerous performances for Agency under the contract, for which he has not been paid. (Amended Complaint, Paragraph 12) The written contract, by its very terms, expired in March of 2001. (The contract was actually null and void at an earlier date due to the material breach of the Agency.) Despite such, William Smith, acting as an agent and employee of the Agency, placed an advertisement in the April 2001 issue of Campus Activities Magazine promoting Thom Lewis as one of the Agency's acts. (Id., Paragraph 30) Neither Defendant Smith nor Defendant Agency was granted the right or permission to utilize the name "Thom Lewis" for their own commercial purposes. (Id., Paragraph 33) Partly as a result of the aforementioned advertisement, prospective college venues have contacted Defendants in an attempt to book Plaintiff for performances. Defendant Smith, acting in his capacity as an agent and employee of the Agency, along with other employees of the Agency, have misrepresented to those venues that Plaintiff is no longer performing as a professional musician. (Id., Paragraph 38) Defendants' actions have been done intentionally and maliciously in an attempt to harm Plaintiff and prevent him from performing. (Id., Paragraph 39) Due to Defendants' actions, Plaintiff has been injured through lost bookings and revenue. (Id., Paragraph 41) II. Questions Presented. A. WHETHER DEFENDANT WILLIAM J. SMITH'S DEMURRER SHOULD BE DENIED AS THE CLAIMS AGAINST HIM, INDIVIDUALLY, DO NOT ARISE OUT OF A WRITTEN CONTRACT AND THEREFORE HE MAY BE HELD PERSONALLY LIABLE FOR HIS TORTIOUS CONDUCT. Answered in the affirmative herein. B. WHETHER DEFENDANTS MAY BE JOINTLY LIABLE AS THEY ARE AN "EMPLOYER" UNDER PENNSYLVANIA'S WAGE PAYMENT AND COLLECTION LAW. Answered in the affirmative herein. 111. Argument. Standard of Review. A demurrer may be sustained only when the complaint is clearly insufficient to establish a right to relief. County of Allegheny v. Com. of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). Any doubt must be resolved in favor of overruling the 2 demurrer. Id., Leach v. Hough, 352 Pa. Super. 213, 507 A.2d 848 (1986). In reviewing the objections, the Court must accept as true all well pled material facts, together with all reasonable inferences which may be drawn from such facts. Mellon Bank, N.A. v. Fabinvi, 437 Pa. Super. 559, 567, 650 A.2d 895, 899 (1994). A. DEFENDANT WILLIAM J. SMITH'S DEMURRER SHOULD BE DENIED AS THE CLAIMS AGAINST HIM, INDIVIDUALLY, DO NOT ARISE OUT OF A WRITTEN CONTRACT AND THEREFORE HE MAY BE HELD PERSONALLY LIABLE FOR HIS TORTIOUS CONDUCT. Defendant demurrers to four counts: Count III - Wage Payment and Collection Law; Count IV - Misappropriation of Right of Publication; Count V - Lanham Trade-Mark Act; and Count VI - Tortious Interference with a Business Relationship The basis for Defendant's demurrer is the claim that since Defendant Smith was not a signatory to the employment contract, he cannot be held personally liable for the acts of the corporate defendant. This argument is based on the faulty premise that the above claims arise out of the Agency's breach of the employment contract. In actuality, they arise out of tortious conduct of Defendant Smith in his individual capacity. Defendant's demurrer will be addressed separately by Count. a. Count III - Wage Payment and Collection Law. Defendant Smith is an "employer' as that term is used in the Wage Payment and Collection Law ("WPCL"), The WPCL defines "employer' as including any "person", 3 "officer" or "agent' employing any person in Pennsylvania. 43 P.S. §260.2(a) The WPCL extends liability to any high ranking corporate officer responsible for the corporate entity's non-payment of wages. See Carpenter's Health & Welfare Fund of Phila. by Gray v. Kenneth R. Ambrose. Inc., 727 F.2d 279 (1983), Amalgamated Cotton Garment & Allied Industries Fund v. Dion, 341 Pa. Super. 12, 17, 491 A.2d 123, 125 (1985). ("It is undeniable that the definition of 'employer' encompasses an officer of the corporation.") Defendant Smith identifies himself as the President of the Agency. (See contract, Exhibit "U' to Second Amended Complaint) Defendant argues that no facts have been alleged "which would indicate that Mr. Smith acted in any capacity other than as president of the corporation". It is Defendant Smith's capacity as President which includes him as a potentially liable "employer" under the WPCL. b. Count IV - Misappropriation of Right of Publication. Count V - Lanham Trade-Mark Act. Counts IV and V arise out of the same operative fact: the publication of an advertisement utilizing the name "Thom Lewis" for Defendant's own commercial purposes. These causes of action do not arise out of the Agency's material breach of contract. Rather, they arise out of the Defendant's tortious conduct of improperly utilizing the Plaintiffs protected name. The protectable right to publicity of one's own name is protected under Pennsylvania law. See Seale v. Grumercv Pictures, 964 F. 4 Supp. 918 (E.D. Pa 1997) affm 156 F3d 1225. Such right is further protected by federal law under the Lanham Trade-Mark Act, which prohibits any person from using any name in commercial advertising or promotion in a false or misleading manner. 15 U.S.C. §1124(a)(1). Admittedly, the relevant advertisement is for the Agency. However, as alleged in the Complaint, the placement of the advertisement was done by Smith, individually. A corporation is an entity of legal fiction which operates only through the actions of its agents and employees. The placement of the advertisement could only be done through the tortious actions of the Agency's agent. As it is alleged that Defendant Smith, individually, placed the offending advertisement, he is subject to individual liability. C. Tortious Interference with a Business Relationship. As in section (b) above, it is alleged that Defendant Smith, individually, committed the tortious act. Again, the fact that a contract existed between Plaintiff and the Agency is not relevant to this issue. The elements of a claim for tortious interference with a business relationship are: 1) existence of prospective contractual relationship; 2) purposeful action on part of the defendant to interfere with contractual relationship; 3) absence of privilege or justification; and 4) damages resulting from defendant's conduct. Hennesy v. Santiago, 708 A.2d 1269, 1278 (Pa. Super. 1998), Shiner v. Moriarty, 706 A.2d 1228, 1238 (Pa. 5 398). These elements have been properly pled against Defendant Smith, his individual capacity, and therefore his demurrer must be denied. fhe sole argument of Defendant for his demurrer to each of the four referenced 3 is simply that Defendant Smith cannot be liable for contracts of the corporate While that may be a correct legal proposition in theory, it has no relevance to the at hand. The asserted causes of action are in no way based upon the loyment contract. In fact, a telling review of Defendants' argument would be to ply assume that the employment contract does not exist. Assuming such, the uses of action still stand on their own against Defendant Smith, in his individual apacity. B. DEFENDANTS MAY BE JOINTLY LIABLE AS THEY ARE AN "EMPLOYER" UNDER PENNSYLVANIA'S WAGE PAYMENT AND COLLECTION LAW. The WPCL applies to any "employer', defined as "every person, firm, partnership, association, corporation, receiver or other officer of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth." 43 P.S. §260.2(a). It is Defendants' contention that they did not employ Plaintiff. Rather, Defendants argue, they acted solely as an agent in procuring employment for Plaintiff by colleges. This narrow reading of the WPCL is not supported by law. The term "employment" is not defined under the WPCL. Where a statute does not define a term, we must apply the rules of statutory construction. Frank Burns. Inc. v. 6 Interdigital Communications Corp., 704 A.2d 678, 680 (Pa. Super. 1997). Under those rules, technical terms must be given their "peculiar and appropriate meaning". Id. (citing 1 Pa. C.S. §1903(a)) In determining the "peculiar and appropriate meaning" of the term "employee", the Court in Burns looked to definitions provided by the Pennsylvania Unemployment Compensation Act. Id. Using this same analysis, the Unemployment Compensation Act defines "employment' as "all personal service performed for remuneration by an individual under any contract of hire .." 43 P.S. 753 (1)(1). In the instant case, Plaintiff performed services for Defendants under the employment contract. As pled in the Second Amended Complaint (by way of incorporation of the contract), all monies to be paid by the college were provided to the Defendants. Defendants would then make payment to Plaintiff based upon the'terms of the contractual agreement between them. Therefore, the service of performing at the shows booked by them was provided to the Defendants for remuneration of 80% of the contract price between Defendants and the College. Even if we assume no employer/employee relationship existed, Defendants are still subject to liability under the WPCL. The civil remedies under the WPCL are available to not only "employees", but also any "party to whom any type of wages is payable." 43 P.S. 260.9(a) (emphasis added). "Wages" is defined under the WPCL as "all earnings... regardless of whether determined on time, task, piece, commission or 7 other method of calculation." 43 P.C. §260.2(a). Plaintiff is due earnings under the contract, and therefore may avail himself of the remedies of the WPCL. Under the facts pled, Defendants are subject to possible liability under the WCPL. Therefore, Defendants' demurrer must be denied. IV. Conclusion. For the reasons set forth herein, Defendants' Preliminary Objections should be denied. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: July 19, 2001 8 CERTIFICATE OF SERVICE AND NOW, on this 19th day of July, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs Brief in Opposition to Defendants' Preliminary Objections by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. ...- By: Mark K. Emery ARGUMENT COURT - JULY 25, 2001 BEFORE BAYLEY, OLE& JJ. #4 THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW THE SMITH AGENCY, INC., and WILLIAM J. SMITH, Defendant NO. 01-0315 CIVIL TERM Motion: Defendants' Preliminary Objections to Second Amended Complaint Briefs: Defendants' Brief in Support of Preliminary Objections to Second Amended Complaint Plaintiffs Brief in Opposition to Defendants' Preliminary Objections Facts: Plaintiff and Defendant The Smith Agency, Inc., entered into a contract under which the agency would book Plaintiff to perform at colleges, the colleges would pay the agency, and the agency would remit 80% of the fees to Plaintiff. Defendant Smith is president of The Smith Agency, Inc. The agency allegedly failed to pay Plaintiff for six performances. Plaintiff alleges that after the contract expired and without permission Smith, acting as an "agent and employee of The Smith Agency," placed an advertisement for Plaintiffs performance in a college magazine, with references to The Smith Agency, Inc. Further, Plaintiff alleges that Smith, acting as an "agent and employee of The Smith Agency," told colleges responding to the advertisement that Plaintiff no longer performed. Plaintiff filed a complaint alleging breach of contract and unjust enrichment claims against The Smith Agency, Inc., a claim against both Defendants under the Wage Payment and Collection Law ("Law"), claims against both dealing with misappropriation of right of publication, and a claim against both of tortious interference with a prospective business relationship. Arguments: Defendants argue for a demurrer as to all claims against Defendant Smith and the claims against both Defendants under the Wage Payment and Collection Law. Defendants argue that the complaint does not state a claim against Smith personally, but only in his capacity as an agent and employee of the corporation. since an agent is not /J / personally liable on contracts between the corporation and third parties, Defendants argue that all claims against Defendant Smith should be dismissed. Further, Defendants argue ?A that only em lovers are liable under the Law, and Defendants acted only as agents. ?s Plaintiff argues that Smith personally placed the advertisement and personally misrepresented Plaintiffs status to colleges; therefore, Defendant Smith is personally liable for those acts. Plaintiff argues that Defendants are employers under the Law. ?J V Although the Law does not define employers, Plaintiff argues that all fees for performances were paid by the colleges to The Smith Agency, Inc., which then paid Plaintiff 80%, Plaintiff received wages as defined in the Law. Further, Plaintiff analogizes the Unemployment Compensation Act, which defines employment to include P all personal service performed under contract for hire. THOM LEWIS, V. Plaintiff THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants •&! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 61- 31,E' (210 (,`-? CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 THOM LEWIS, V. Plaintiff THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants A 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. !-e- " CIVIL ACTION - LAW COMPLAINT AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint, as follows: 1. Plaintiff Thom Lewis is an adult individual with a current residence of 263 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant The Smith Agency, Inc. ("Smith Agency") is, upon information and belief, a Michigan corporation with an address for conducting business at 457 Standale Plaza, Grand Rapids, Michigan 49544. 3. Defendant William J. Smith is an adult individual whose current residence is unknown. 4. At all times relevant to this Complaint, William J. Smith was the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency. 5. On or about March 12, 1999, Plaintiff and Defendants entered into a written contract whereby Defendants would book musical performances with various colleges at which Plaintiff would perform. A copy of said contract is attached and incorporated fully herein as Exhibit "A". 6. Upon payment by the colleges to Defendants, the Defendants were then to provide payment to Plaintiff. 7. All negotiations for the contract were performed by the Plaintiff from his residence in Cumberland County, Pennsylvania. 8. All payments to be made under the contract were to be made to Plaintiffs residence in Cumberland County, Pennsylvania. 9. All payments that were made under the contract were delivered to Plaintiff at his residence in Cumberland County, Pennsylvania. 10. The Smith Agency and William J. Smith represent numerous performance clients throughout Pennsylvania and the United States. 11. The Smith Agency and William J. Smith book shows for their clients throughout Pennsylvania and the United States. 12. Plaintiff has performed at various colleges under the contract with the Smith Agency and William J. Smith for which he has not been paid. 13. The total amount due and owing Plaintiff at this time is $3,315.00. 14. Defendants have materially breached the contract. 2 Count I Thom Lewis v. The Smith Agency, Inc. and William J. Smith Breach of Contract 15. Paragraphs 1 through 14 are incorporated fully herein by reference. 16. Plaintiff performed services under the contract for which Defendants were obligated to provide to him payment. 17. Plaintiff fulfilled his obligations under the contract in a reasonable and professional manner. 18. Upon information and belief, the colleges at which Plaintiff performed have paid the Smith Agency and William J. Smith for said performances. 19. On at least two occasions, payment from the venues was provided to Defendants by Plaintiff, via certified mail. Despite evidence that Defendants signed for receipt of said checks, Defendants have stated they did not receive payment. 20. Defendants, despite numerous requests, have failed and refused to make payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants, jointly and severally, in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. 3 Count II Thom Lewis v. The Smith Agency, Inc. and William J. Smith Unjust Enrichment 21. Paragraphs 1 through 20 are incorporated fully herein by reference. 22. Plaintiff has provided services to Defendants by performing at various venues. 23. Defendants have been paid by the venue providers for the performances of Plaintiff. 24. It would be unjust for Defendants to maintain said funds without making payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants, jointly and severally, in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. Count III Thom Lewis v. The Smith Agency, Inc. and William J. Smith Pennsylvania's Wage Payment and Collection Law 25. Paragraphs 1 through 24 are incorporated fully herein by reference. 26. Defendants, despite numerous requests, have failed and refused to provide wages due Plaintiff. 4 27. Defendants' actions are in violation of Pennsylvania's Wage Payment and Collection Law, 42 P.S. §260.1, et seq. 28. Defendant William J. Smith is an employer as defined under the Wage Payment and Collection Law. 29. Pursuant to the Wage Payment and Collection Law, Plaintiff is entitled to 125% of all monies due him, plus all attorney's fees incurred. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants, jointly and severally, in the amount of $4,143.75 plus all attorney's fees, costs, interest and all other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By:? / Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: January 11, 2001 t0 Fun Fresh duality Entertainment Contract between The Smith Agency, Inc. (AGENCY) and Thom Lewis (ARTIST) Period covered March 15, 1999 to March 15, 2001 The AGENCY will provide a minimum of 27 College/University (COLLEGE) shows per year in addition to non-COLLEGE shows that may be available through the AGENCY. The AGENCY will attempt to do as much block booking as possible. Payment by the AGENCY to the ARTIST will be 80% of the gross contract fee 10 days following receipt of payment from COLLEGE. AGENCY commission will be 20% of gross contract fee. The ARTIST will be booked for all COLLEGE shows exclusively through the AGENCY. The only exception will be if the ARTIST has an outstanding contract with COLLEGE prior to the signing of this contract. ARTIST agrees to inform the AGENCY of any outstanding contracts within 10 days of signing this contract. Any dates reported after the time will be subject to 20% commission to the AGENCY. The ARTIST will be able to book non-COLLEGE shows through either direct contactor through other agencies. However, those shows may not interfere with any already.booked performances by the AGENCY without permission of the AGENCY. The ARTIST will keep the AGENCY continually updated with his non-AGENCY bookings to prevent scheduling conflicts. The ARTIST will give preference to any AGENCY show to best of his ability. The ARTIST will attempt to reschedule any previously booked shows that will conflict with proposed COLLEGE bookings. 3950 Lake Michigan Drive Grand Rapids MI 49544 Phone 616.791.8298 Fax 616.791.8393 The ARTIST will be responsible for transportation to and from the COLLEGE but not to exceed 350 miles for and isolated date or the first multiple (blocked) dates, and no more than 300 miles between shows in a block. if travel does exceed the mileage limit, the ARTIST will be given an additional night's lodging when requested to be provided by the COLLEGE or AGENCY. Further, if travel exceeds the mileage limit, the AGENCY will encourage the COLLEGE to provide air transportation, and if airfare is not provided, accepting the booking will be at the option of the ARTIST. The ARTIST will provide adequate PA sound equipment. The ARTIST and the AGENCY will have joint responsibility for providing promotional material, including splitting costs of posters and fliers. The AGENCY will encourage the COLLEGE to provide reasonable overnight lodging or provide a lodging allowance for the ARTIST to obtain own lodging. If airline travel is required by the ARTIST, the AGENCY will encourage the COLLEGE to provide an adequate sound system for the performance. The AGENCY will encourage the COLLEGE to provide transportation both to and from airport, hotel and place of the performance. Provisions of this contract are accepted and agreed to this 12th day of Marc' 1999 TRW L i (ARTIST) The Smith Agency, Inc. (AGENCY) VERIFICATION I, Thom Lewis, hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements. herein are subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. V \ hom wis DATE: ) - /? _t'19 ( a ? a Q C Cj THOM LEWIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended 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 Amended Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 THOM LEWIS, V. Plaintiff THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-315 CIVIL ACTION - LAW AMENDED COMPLAINT AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint, as follows: 1. Plaintiff Thom Lewis is an adult individual with a current residence of 263 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant The Smith Agency, Inc. ("Smith Agency") is, upon information and belief, a Michigan corporation with an address for conducting business at 457 Standale Plaza, Grand Rapids, Michigan 49544. 3. Defendant William J. Smith is an adult individual whose current residence is unknown. 4. At all times relevant to this Complaint, William J. Smith was the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency. 5. On or about March 12, 1999, Plaintiff and Smith Agency entered into a written contract whereby Smith Agency would book musical performances with various colleges at which Plaintiff would perform. A copy of said contract is attached and incorporated fully herein as Exhibit "A". 6. Upon payment by the colleges to Smith Agency, the Defendant was then to provide payment to Plaintiff. 7. All negotiations for the contract were performed by the Plaintiff from his residence in Cumberland County, Pennsylvania. 8. All payments to be made under the contract were to be made to Plaintiffs residence in Cumberland County, Pennsylvania. 9. All payments that were made under the contract were delivered to Plaintiff at his residence in Cumberland County, Pennsylvania. 10. The Smith Agency and William J. Smith represent numerous performance clients throughout Pennsylvania and the United States. 11. The Smith Agency and William J. Smith book shows for their clients throughout Pennsylvania and the United States. 12. Plaintiff has performed at various colleges under the contract with the Smith Agency and William J. Smith for which he has not been paid. Said venues, dates and amounts due are: (a) West Virginia Tech December 8, 2000 $600 (b) Tri State University November 14, 2000 480 (c) Point Park College November 13, 2000 600 (d) Albany College November 6, 2000 555 (e) Tidewater College November 2, 2000 520 (f) Mount Alaysius October 9, 2000 560 2 13. The total amount due and owing Plaintiff at this time is $3,315.00. 14. Defendants have materially breached the contract. Count I Thom Lewis v. The Smith Agency, Inc. Breach of Contract 15. Paragraphs 1 through 14 are incorporated fully herein by reference. 16. Plaintiff performed services under the contract for which Defendant was obligated to provide to him payment. 17. Plaintiff fulfilled his obligations under the contract in a reasonable and professional manner. 18. Upon information and belief, the colleges at which Plaintiff performed have paid Defendant for said performances. 19. Defendant, despite numerous requests, has failed and refused to make payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendant in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. 3 Count II Thom Lewis v. The Smith Agency, Inc. Unjust Enrichment 20. Paragraphs 1 through 19 are incorporated fully herein by reference. 21. Plaintiff has provided services to Defendant by performing at various venues. 22. Defendant has been paid by the venue providers for the performances of Plaintiff. 23. It would be unjust for Defendant to maintain said funds without making payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendant in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. Count III Thom Lewis v. The Smith Agency, Inc. and William J. Smith Pennsylvania's Wage Payment and Collection Law 24. Paragraphs 1 through 23 are incorporated fully herein by reference. 25. Defendants, despite numerous requests, have failed and refused to provide wages due Plaintiff. 26. Defendants' actions are in violation of Pennsylvania's Wage Payment and Collection Law, 42 P.S. §260.1, et seq. 4 27. Defendant William J. Smith is an employer as defined under the Wage Payment and Collection Law. 28. Pursuant to the Wage Payment and Collection Law, Plaintiff is entitled to 125% of all monies due him, plus all attorney's fees incurred. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants, jointly and severally, in the amount of $4,143.75 plus all attorney's fees, costs, interest and all other relief this Court deems fair and equitable. Said amount requires compulsory arbitration. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: March 28, 2001 5 ta Fun Fresh Quality Entertainment Contract between The Smith Agency, Inc. (AGENCY) and Thom Lewis (ARTIST) Period covered March 15, 1999 to March 15, 2001 The AGENCY will provide a minimum of 27 College/University (COLLEGE) shows per year in addition to non-COLLEGE shows that may be available through the AGENCY. The AGENCY will attempt to do as much block booking as possible. Payment by the AGENCY to the ARTIST will be 80% of the gross contract fee 10 days following receipt of payment from COLLEGE. AGENCY commission will be 20% of gross contract fee. The ARTIST will be booked for all COLLEGE shows exclusively through the AGENCY. The only exception will be if the ARTIST has an outstanding contract with COLLEGE prior to the signing of this contract. ARTIST agrees to inform the AGENCY of any outstanding contracts within 10 days of signing this contract. Any dates reported after the time will be subject to 20% commission to the AGENCY. The ARTIST will be able to book non-COLLEGE shows through either direct contact or through other agencies. However, those shows may not interfere with any already booked performances by the AGENCY Without permission of the AGENCY. The ARTIST will keep the AGENCY continually updated with his non-AGENCY bookings to prevent scheduling conflicts. The ARTIST will give preference to any AGENCY show to best of his ability. The ARTIST will attempt to reschedule any previously booked shows that will conflict with proposed COLLEGE bookings. The ARTIST will be responsible for transportation to and from the COLLEGE but not to exceed 350 miles for and isolated date or the first multiple (blocked) dates, and no more than 300 miles between shows in a block. if travel does exceed the mileage limit, the ARTIST will be given an additional night's lodging when requested to be provided by the COLLEGE or AGENCY. Further, if travel exceeds the mileage limit, the AGENCY will encourage the COLLEGE to provide air transportation, and if airfare is not provided, accepting the booking will be at the option of the ARTIST. The ARTIST will provide adequate PA sound equipment. The ARTIST and the AGENCY will have joint responsibility for providing promotional material, including splitting costs of posters and fliers. The AGENCY will encourage the COLLEGE to provide reasonable overnight lodging or provide a lodging allowance for the ARTIST to obtain own lodging. Lf airline travel is required by the ARTIST, the AGENCY will encourage the COLLEGE to provide an adequate sound system for the performance. The AGENCY will encourage the COLLEGE to provide transportation both to and from airport, hotel and place of the performance. Provisions of this contract are accepted and agreed to this 12th day of March, 1999 TRW L i (ARTIST) Presiderif The Smith (AGENCY) Agency, Inc. VERIFICATION I, Thom Lewis, hereby certify and verify that the facts set forth in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. Th wis DATE: 3- )), o t CERTIFICATE OF SERVICE AND NOW, on this a8 day of March, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Amended Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Michael J. Hank Esquire 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: MarKK. Emery c> (tJ ?a :: y ?.: R? *:.?i? 'a 4'SP...rcl+•es •sT'nr`P.?t?$R?'2H2dAh3?.4'f?#&€F+.?[ ". THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Amended 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 Amended Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW SECOND AMENDED COMPLAINT AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Complaint, as follows: 1. Plaintiff Thom Lewis is an adult individual with a current residence of 263 Texaco Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant The Smith Agency, Inc. ("Smith Agency") is, upon information and belief, a Michigan corporation with an address for conducting business at 457 Standale Plaza, Grand Rapids, Michigan 49544. 3. Defendant William J. Smith is an adult individual whose current residence is unknown. 4. At all times relevant to this Complaint, William J. Smith was the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency. 5. On or about March 12, 1999, Plaintiff and Smith Agency entered into a written contract whereby Smith Agency would book musical performances with various colleges at which Plaintiff would perform. A copy of said contract is attached and incorporated fully herein as Exhibit "A". 6. Upon payment by the colleges to Smith Agency, the Defendant was then to provide payment to Plaintiff. 7. All negotiations for the contract were performed by the Plaintiff from his residence in Cumberland County, Pennsylvania. 8. All payments to be made under the contract were to be made to Plaintiffs residence in Cumberland County, Pennsylvania. 9. All payments that were made under the contract were delivered to Plaintiff at his residence in Cumberland County, Pennsylvania. 10. The Smith Agency and William J. Smith represent numerous performance clients throughout Pennsylvania and the United States. 11. The Smith Agency and William J. Smith book shows for their clients throughout Pennsylvania and the United States. 12. Plaintiff has performed at various colleges under the contract with the Smith Agency and William J. Smith for which he has not been paid. Said venues, dates and amounts due are: (a) West Virginia Tech (b) Tri State University (c) Point Park College (d) Albany College (e) Tidewater College (f) Mount Alaysius December 8, 2000 $600 November 14, 2000 480 November 13, 2000 600 November 6, 2000 555 November 2, 2000 520 October 9, 2000 560 2 13. The total amount due and owing Plaintiff at this time is $3,315.00. 14. Defendants have materially breached the contract. Count I Thom Lewis v. The Smith Agency, Inc. Breach of Contract 15. Paragraphs 1 through 14 are incorporated fully herein by reference. 16. Plaintiff performed services under the contract for which Defendant was obligated to provide to him payment. 17. Plaintiff fulfilled his obligations under the contract in a reasonable and professional manner. 18. Upon information and belief, the colleges at which Plaintiff performed have paid Defendant for said performances. 19. Defendant, despite numerous requests, has failed and refused to make payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendant in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. 3 Count II Thom Lewis v. The Smith Agency, Inc. Unjust Enrichment 20. Paragraphs 1 through 19 are incorporated fully herein by reference. 21. Plaintiff has provided services to Defendant by performing at various venues. 22. Defendant has been paid by the venue providers for the performances of Plaintiff. 23. It would be unjust for Defendant to maintain said funds without making payment to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendant in the amount of $3,315.00 plus all costs, interest and other relief this Court deems fair and equitable. Count III Thom Lewis v. The Smith Agency, Inc. and William J. Smith Pennsylvania's Wage Payment and Collection Law 24. Paragraphs 1 through 23 are incorporated fully herein by reference. 25. Defendants, despite numerous requests, have failed and refused to provide wages due Plaintiff. 26. Defendants' actions are in violation of Pennsylvania's Wage Payment and Collection Law, 42 P. S. §260.1, et seq. 4 27. Defendant William J. Smith is an employer as defined under the Wage Payment and Collection Law. 28. Pursuant to the Wage Payment and Collection Law, Plaintiff is entitled to 125% of all monies due him, plus all attorney's fees incurred. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants, jointly and severally, in the amount of $4,143.75 plus all attorney's fees, costs, interest and all other relief this Court deems fair and equitable. Count IV Thom Lewis v. The William Smith Agency, Inc. and William Smith Misappropriation of Right of Publicity 29. Paragraphs 1 through 28 are incorporated fully herein by reference. 30. The Smith Agency, by and through William Smith, placed an advertisement in the April 2001 issue of Campus Activities utilizing Thom Lewis' name. A copy of such advertisement is attached hereto as Exhibit B. 31. Campus Activities is distributed to colleges throughout the United States and Canada and advertises and promotes entertainment acts who regularly perform on college campuses. 32. The Defendants' advertisement sets forth various acts that they allegedly promote, including "Thom Lewis" 33. Defendants held no right or permission to utilize the name "Thom Lewis" for their own commercial purpose. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants and further award punitive damages, costs, interest and other relief this Court deems fair and equitable. Said amount is believed to be higher than that requiring compulsory arbitration. Count V Thom Lewis v. The William Smith Agency, Inc. and William Smith Violation of Lanham Trade-Mark Act 15 U.S.C.A. §1051 et seq. 34. Paragraphs 1 through 33 are incorporated fully herein by reference. 35. Defendants' actions, as more particularly set forth in Paragraphs 30 through 33, are a violation of 15 U.S.C.A. §1125. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants and further award punitive damages, costs, interest and other relief this Court deems fair and equitable. Said amount is believed to be higher than that requiring compulsory arbitration. Count VI Thom Lewis v. The William Smith Agency, Inc. and William Smith Tortious Interference with a Prospective Business Relationship 36. Paragraphs 1 through 35 are incorporated fully herein by reference. 6 37. Prospective college venues have contacted Defendants in an attempt to book Lewis for performances. The said colleges that Plaintiff is aware of at this point are Barat College and Sweetbriar College. 38. William Smith, acting in his capacity as an agent and employee of The Smith Agency, along with other employees of The Smith Agency, has advised said colleges that Lewis is no longer performing as a professional musician. 39. Defendants' acts were done both intentionally, and maliciously, to harm Lewis by preventing Lewis from performing at such venues. 40. Defendants' actions were neither privileged or justified. 41. Lewis has suffered damages through lost bookings due to Defendants' wanton, willful and malicious actions. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgment for him and against Defendants and further award punitive damages, costs, interest and 7 other relief this Court deems fair and equitable. Said amount is believed to be higher than that requiring compulsory arbitration. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By:? -? Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: April 19, 2001 8 Contract between The Smith Agency, Inc. (AGENCY) and Thom Lewis (ARTIST) Period covered March 15, 1999 to March 15, 2001 The AGENCY will provide a minimum of 27 College/University (COLLEGE) shows per year in addition to non-COLLEGE shows that may be available through the AGENCY. The AGENCY will attempt to do as much block booking as possible. Payment by the AGENCY to the ARTIST will be 80% of the gross contract fee 10 days following receipt of payment from COLLEGE. AGENCY commission will be 20% of gross contract fee. The ARTIST will be booked for all COLLEGE shows exclusively through the AGENCY. The only exception will be if the ARTIST has an outstanding contract with COLLEGE prior to the signing of this contract. ARTIST agrees to inform the AGENCY of any outstanding contracts within 10 days of signing this contract. Any dates reported after the time will be subject to 20% commission to the AGENCY. The ARTIST will be able to book non-COLLEGE shows through either direct contact or through other agencies. However, those shows may not interfere with any already booked performances by the AGENCY without permission of the AGENCY. The ARTIST will keep the AGENCY continually updated with his non-AGENCY bookings to prevent scheduling conflicts. The ARTIST will give preference to any AGENCY show to best of his ability. The ARTIST will attempt to reschedule any previously booked shows that will conflict with proposed COLLEGE bookings. 3950 Lake Michigan Drive Grand Rapids MI 49544 None 616.791.8296 Fax 616.791.6393 The ARTIST will be responsible for transportation to and from the COLLEGE but not to exceed 350 miles for and Isolated date or the first multiple (blocked) dates, and no more than 300 miles between shows in a block. if travel does exceed the mileage limit, the ARTIST will be given an additional night's lodging when requested to be provided by the COLLEGE or AGENCY. Further, if travel exceeds the mileage limit, the AGENCY will encourage the COLLEGE to provide air transportation, and if airfare is not provided, accepting the booking will be at the option of the ARTIST. The ARTIST will provide adequate PA sound equipment. The ARTIST and the AGENCY will have joint responsibility for providing promotional material, including splitting costs of posters and fliers. The AGENCY will encourage the COLLEGE to provide reasonable overnight lodging or provide a lodging allowance for the ARTIST to obtain own lodging. !f airline travel is required by the ARTIST, the AGENCY will encourage the COLLEGE to provide an adequate sound system for the performance. The AGENCY will encourage the COLLEGE to provide transportation both to and from airport, hotel and place of the performance. Provisions of this contract are accepted and agreed to this 12th day of March, 1999 z,--) Th L i (ARTIST) Presiders( The Smith (AGENCY) Agency, inc. VERIFICATION I, Thom Lewis, hereby certify and verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. A'-4? om L is DATE: ?- CD-O( ,, W PRIM -, 11"m Rim., -MMM CERTIFICATE OF SERVICE AND NOW, on this 19th day of April, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Second Amended Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery .a r ?F F \User FoldaTiml Docs\Gendocs2001@025. I mponse.wpd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants CIVIL ACTION - LAW NO. 01-315 DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, come the Defendants, The Smith Agency, Inc. and William J. Smith, by their attorney, William A. Addams, of the Law Office of Michael J. Hanft, and respond to Plaintiff's Motion to Compel as follows: Admitted. 2. Admitted. Denied. The Defendants were preparing responses prior to the issuance of the previous Order of Court. 4. The Defendants are compiling documents and information to respond to the Plaintiff's latest discovery requests and request an additional 30 days. LAW OFFICE OF MICHAEL J. HANFT By:? William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants TO: PROTHONOTARY CIVIL ACTION - LAW NO. 01-315 PRAECIPE Please enter my appearance on behalf of the Defendants, THE SMITH AGENCY, INC. and WILLIAM J. SMITH. Respectfully submitted, LAW OFFICE OF MICHAEL J. HANFT Date: 2-(z o 4,-40 q7y'?- - Michael J. Hanft, squire Attorney ID No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorney for Defendants, The Smith Agency, Inc. and William J. Smith F:\Ul, Fotde,\Fhm Doc,\a d.a200M0254"tryaF,.ar ,d CERTIFICATE OF SERVICE AND NOW, this 12th day of February, 2001, I, Michael J. Hanft, Esquire, hereby certify that I have this day served the following persons with a copy of the foregoing document,,by first class, United States Mail, postage pre-paid, addressed as follows: Mark K. Emery, Esquire FENSTERMACHER AND ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17050 Attorney for Plaintiff LAW OFFICE OF MICHAEL J. HANFT kj'?) lyel?- chael J. Hanft, E ui Attorney ID No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorney for Defendants, The Smith Agency, Inc. and William J. Smith L- C7 ^'fl ... C.? ' a? _, ?dW49ettsgk !+N9ii!ssasr.? ??-, ; =a v,^?? r•:.•a.?saz;wt=??4:•aw:rv :?a"'T'... ms's:` F:\Usu Folder\Firm Dncs\Gendo W2001@W 5- lprelim.objecfion,nd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff CIVIL ACTION - LAW V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants NO. 01-315 TO: THOM LEWIS, Plaintiff, and his attorney, MARK K. EMERY, ESQUIRE You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. LAW OFFICE OF MICHAEL J. HANFT ichael J. Hanft, E uire Attorney I.D. No. 57976 1 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorney for Defendants, The Smith Agency, Inc. and William J. Smith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff CIVIL ACTION - LAW V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants NO. 01-315 PRELIMINARY OBJECTIONS OF DEFENDANTS THE SMITH AGENCY, INC. AND WILLIAM J. SMITH AND NOW, this 12th day of March, 2001 come Defendants, The Smith Agency, Inc. and William J. Smith, and file the following Preliminary Objections and in support thereof aver as follows: COUNT I: PRELIMINARY OBJECTION FOR LACK OF JURISDICTION OVER DEFENDANT WILLIAM J. SMITH On or about January 11, 2001, Plaintiff filed a Complaint in the above-referenced matter. 2. Paragraph 3 of the Complaint provides that Defendant William J. Smith is an adult individual whose current residence is unknown. Paragraph 2 of the Complaint provides Defendant The Smith Agency, Inc. ("Smith Agency") is, upon information and belief, a Michigan corporation with an address for conducting business at 457 Standale Plaza, Grand Rapids, Michigan 49544. 4. Paragraph 5 of the Complaint provides that on or about March 12, 1999, Plaintiff and Defendants entered into a written Contract whereby Defendants would book musical performances with various colleges, at which Plaintiff would perform. A copy of said Contract is attached and incorporated fully herein as Exhibit "A." The Contract attached to Plaintiff s Complaint as Exhibit "A" is a contract between The Smith Agency, Inc. and Thom Lewis. 6. The Contract between The Smith Agency and Thom Lewis attached to the Complaint as Exhibit "A" was executed by only two parties, namely Thom Lewis as the Artist and William J. Smith, President on behalf of The Smith Agency, hic. 7. William J. Smith is a Michigan resident and this Honorable Court lacks personal jurisdiction over him. WHEREFORE, Defendants, The Smith Agency, hic. and William J. Smith, respectfully request that this Honorable Court dismiss the Complaint as it relates to William J. Smith for lack of jurisdiction. COUNT II: PRELIMINARY OBJECT IN THE NATURE OF A MOTION TO STRIKE FOR FAILURE OF A PLEADING TO CONFORM TO LAW 8. Paragraphs 1 through 7 are incorporated by reference as if fully set forth at length herein. 9. This Preliminary Objection in the nature of a Motion to Strike is filed pursuant to Pennsylvania Rule of Civil Procedure 1028(a) and pursuant to Pennsylvania Rule of Civil Procedure 1019(i), which states: When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient to state, together with the reason, and to set forth the substance of the writing. 10. Paragraph 5 of Plaintiffs Complaint states that "On or about March 12, 1999, Plaintiff and Defendants entered into a written contract whereby Defendants would book musical performances with various colleges at which Plaintiff would perform. A copy of said contract is attached and incorporated fully herein as Exhibit "A." 11. The Contract attached to Plaintiff s Complaint as Exhibit "A" is a Contract between The Smith Agency, Inc. and Thom Lewis. 12. Plaintiff has failed to attach a copy of any Contract he may have with William J. Smith in an individual capacity. 13. Plaintiff has not averred that said Agreement or Contract is not accessible to them, thus they have not complied with Pennsylvania Rule of Civil Procedure 1019(i). WHEREFORE, Defendants, The Smith Agency, Inc. and William J. Smith, respectfully request your Honorable Court strike the Complaint as it relates to Defendant William J. Smith. COUNT III: COMPLAINT IS NOT PLED WITH SUFFICIENT SPECIFICITY AS REQUIRED BY PENNSYLVANIA RULE OF CIVIL PROCEDURE 1019(a) 14. Paragraphs 1 through 13 above are incorporated by reference as if fully set forth herein. 15. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary objections to any pleading on the grounds of insufficient specificity of the pleading. 16. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose of which is to require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. 1 1. 1 "W"W 17. Plaintiff's Complaint fails to specifically provide what colleges he performed at for which he has not been paid. 18. Paragraph 12 of Plaintiffs Complaint provides that Plaintiffhas performed at various colleges under the Contract with The Smith Agency and William J. Smith for which he has not been paid. 19. Paragraph 13 of Plaintiff s Complaint provides that the total amount due and owing Plaintiff at this time is $3,315.00. 20. Plaintiffs Complaint fails to specifically identify any performances for which he alleges he was not paid. 21. Plaintiff s Complaint fails to in any way identify damages totaling $3,315.00. WHEREFORE, Defendants, The Smith Agency, Inc. and William J. Smith respectfully request that this Honorable Court grant its Preliminary Objections and dismiss Plaintiffs Complaint for failure to comply with Pennsylvania Rule of Civil Procedure 1019(a). COUNT IV: COUNT I OF PLAINTIFF'S COMPLAINT IS NOT PLED WITH SUFFICIENT SPECIFICITY AS REQUIRED BY PENNSYLVANIA RULE OF CIVIL PROCEDURE 1019(al 22. Paragraphs 1 through 21 are incorporated by reference as if fully set forth herein. 23. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file Preliminary Objections to any pleadings on the ground of insufficient specificity of the pleading. 24. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose of which is to require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. 25. Paragraph 16 ofPlainfiff s Complaintprovides that Plaintiffperformed services under the Contract for which Defendants were obligated to provide to him payment. 26. Plaintiff does not define what services were performed or when they were performed for which he is claiming Defendants were obligated to provide him payment. 27. Thus, Plaintiff has not plead Count I of the Complaint with the specificity required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants, The Smith Agency, Inc. and William J. Smith, respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss Count I ofPlaintiff's Complaint. COUNT V: PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE BECAUSE COUNT II OF PLAINTIFF'S COMPLAINT IS NOT PLED WITH SUFFICIENT SPECIFICITY AS REQUIRED BY PENNSYLVANIA RULE OF CIVIL PROCEDURE 1019(a) 28. Paragraphs 1 through 27 are incorporated by reference as if fully set forth herein. 29. Pennsylvania Rule of Civil 1028(a)(3) allows a party to file preliminary objections to any pleading on the grounds of insufficient specificity of the pleading. 30. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose of which is to require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. 31. Paragraph 22 of Plaintiff's Complaint provides that "Plaintiff has provided services to Defendants by performing at various venues." 32. Nowhere in Plaintiff s Complaint does Plaintiff identify the services provided or the venues which he alleges he performed at. 33. Thus, Plaintiff has not plead Count 11 of Plaintiff's Complaint with the specificity required by the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendants, The Smith Agency, hie. and William J. Smith respectfully request that this Honorable Court grants its Preliminary Objections and dismiss Count II of Plaintiff s Complaint. COUNT VI: PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE BECAUSE COUNT III OF PLAINTIFF'S COMPLAINT IS NOT PLED WITH SUFFICIENT SPECIFICITY AS REQUIRED BY PENNSYLVANIA RULE OF CIVIL PROCEDURE 1019(a) 34. Paragraphs I through 33 above are incorporated by reference as if fully set forth herein. 35. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to file preliminary objections to any pleading on the grounds of insufficient specificity of the pleading. 36. Pennsylvania Rule of Civil Procedure 1019(a) requires fact pleading, the purpose of which is to require the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. 37. Count III of Plaintiff's Complaint alleges a violation of Pennsylvania's Wage Payment and Collection Law. 38. Paragraph 26 of Plaintiff's Complaint states that Defendants, despite numerous requests, have failed and refused to provide wages due Plaintiff. 39. Paragraph 27 of Plaintiffs Complaint provides that "Defendants' actions are in violation of Pennsylvania's Wage Payment and Collection Law, 42 P.S. §260.1, et seq." 40. Paragraph 28 of Plaintiff s Complaint provides that Defendant, William J. Smith, is an employer as defined in the Wage Payment and Collection Law. 41. Nowhere in Plaintiffs Complaint nor in Count III of Plaintiffs Complaint does Plaintiff identify what wages would be due Plaintiff by Defendants. 42. Nowhere in Count III of Plaintiff s Complaint or anywhere else in the Complaint does Plaintiff identify any actions by Defendants that are alleged to be in violation of Pennsylvania's Wage Payment and Collection Law. 43. Nowhere in Count III of Plaintiffs Complaint, nor in Count III of Count III of Plaintiffs Complaint, does Plaintiff identify any reason why William J. Smith would be considered an employer as defined under the Wage Payment and Collection Law. 44. Thus, Plaintiff has not pled Count III of Plaintiffs Complaint with sufficient specificity as required by Pennsylvania Rule of Civil Procedure 1019(a). WHEREFORE, Defendants, The Smith Agency, Inc., and William J. Smith, respectfully request that this Honorable Court grants its Preliminary Objections and dismiss Count III of Plaintiff s Complaint. COUNT VII: PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 45. Paragraphs 1 through 44 above are incorporated by reference as if fully set forth at length herein. 46. This Motion to Strike is filed pursuant to Pennsylvania Rule of Civil Procedure 1028(a) and pursuant to Pennsylvania Rule of Civil Procedure 1019(i), which states: When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient to state, together with the reason, and to set forth the substance of the writing. 47. Paragraph 19 of Plaintiff's Complaint provides that "On at least two occasions, payment from the venues was provided to Defendants by Plaintiff, via certified mail. Despite evidence that Defendants signed for receipt of said checks, Defendants have stated they did not receive payment." 48. Paragraph 19 references certified mail. 49. Plaintiff has not attached a copy of any certified mail to his Complaint. 50. Plaintiff has not averred that said certified mail is not accessible to him, thus he has not complied with Pennsylvania Rule of Civil Procedure 1019(i). WHEREFORE, Defendants, The Smith Agency, Inc. and William J. Smith, respectfully request that this Honorable Court dismiss Plaintiff's Complaint for failure to comply with Pennsylvania Rule of Civil Procedure 1019(i). Respectfully submitted, LAW OFFICE OF MICHAEL J. HANFT Micliael J. Hanft, Esquire " Attorney I.D. No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 02105/2001 10:46 6167918393 THE SMITH AGENCY INC PAGE 10 $1, i; ,? Fun Fresh Qu89ty Entertelnment Contract between The Smith Agency, Inc;. (AGENCY) and Thom Lewis (ARTIST) : Period covered March 15, 1999 to Marcl.i 15, 2001 The AGENCY will provide a minimum of 27 College/University (COLLEGE) shows per year in addition to non-COLLEGE shows that may be available through the AGENCY, The AGENCY will attempt to do as much block bopking as possible. Payment by the AGENCY to the ARTIST will be 80% of the gross contract fee 10 days following receipt of payment from COLLEGE. AGENCY comrission will be 20% of gross contract fee. The ARTIST will be booked for.all COLLEGE shovis exclusively through'the AGENCY. The only exception will be 0 the ARTIST has an outstanding contract with COLLEGE prior to the signing ofthis contract. ARTIST agrees to inform the AGENCY C.4 any outstanding contracts within 10 days.of signing this contract. Any dates reported* r after the time will be subject to 20% commission to the AGENCY. The ARTIST will be able to book non-COLLEGE shows through either .direct contact or through other agencies. However, those shows may not interfere with any already booked performancias by the AGENCY without permission of the AGENCY. The ARTIST Will keep the AGENCY continually updated with his`non-AGENCY bookings to prevent scheduling conflicts. The ARTIST will give preference to any AGENCY,shoW to best of his ability. The ARTIST will attempt to reschedule any, previously booked shows that will conflict with proposed COLLEGE bookings. 91E-1 61/60d 692-1 ZZE9922919+ 3gso ? R?d+Ra? R>fAro Grand Rados MR 49514 PRbM 616.791.8?a8 Fu 816,781.8346. 0131INVO 83111{9-100id wd1E:E0 10-90-983 ru? 41 The ARTIST will be responsible for transportation to and from the' COLLEGE but not to exceed.350 miles for. and Isolated date or the first multiple (blocked) dates, and no more than 300 miles between shows in a block. if travel does exceed the mileag(i limit, the ARTIST' will be given an additional night's lodging when, requested to be provided by the COLLEGE or AGENCY. Further, tt travel exceeds the mileage limit, the AGENCY will encourage the COLLEGE* to provide air transportation, and if airfare is not.provided, accepting the booking will be at the option of the ARTIST. The ARTIST will provide adequate PA sound equipment. The ARTIST and the AGENCY will have joint responsibility for providing promotional material, including splitting costs of posters and fliers. The AGENCY will encourage the COLLEGE to provide reasonable overnight lodging or provide a lodging allowance for the ARTIST to obtain own lodging: J! ld;na,t avel is regui ed by the ARTIST, the AGENCY will encourage the COLLEGE.to provide an adequate sound system for the performance. The AGENCY will encourage thti. COLLEGE to provide transportation both to and from airport, hotel and place of the performance. Provisions of this coptract are accepted and; agreed to this 12th day of March, 1999 • „ Th L (ARTIST) The. Smith Agency, Inc. (AGENCI? 91F-i RUN 4 M-1 77MR) A14 11;1gVV18a111W-m0i4 wtllF:fn In-9n-Qa4 CERTIFICATE OF SERVICE AND NOW, this 12th day of March, 2001, I, Michael J. Hanft, Esquire, hereby certify that I have this day served the following persons with a copy of the foregoing document, by first class, United States Mail, postage pre-paid, addressed as follows: Mark K. Emery, Esquire FENSTERMACHER AND ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17050 LAW OFFICE OF MICHAEL J. HANFT Michael J. Hanft, Esqu e Attorney ID No. 5797 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants TO THE PLAINTIFF: CIVIL ACTION - LAW NO. 01-315 You are hereby notified to plead to the within Preliminary Objections within twenty (20) days of service or a judgment may be entered against you. LAW OFFICE OF MICHAEL J. HANFT William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff CIVIL ACTION - LAW V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants NO. 01-315 PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT AND NOW, come the Defendants, The Smith Agency, Inc. and William J. Smith, and in accordance with Pa. R.C.P. 1028 file Preliminary Objections to the Plaintiff's Amended Complaint and in support thereof assert the following: 1. The Amended Complaint alleges that the Plaintiff entered into a written contract with Defendant The Smith Agency, Inc., a Michigan corporation, which provides that he would be paid 80% of gross contract fees booked by and paid to Defendant Agency. 2. The contract, attached as Exhibit "A" to the Amended Complaint, is signed by the Plaintiff and William J. Smith, President, The Smith Agency, Inc. 3. The Amended Complaint alleges that William J. Smith is an individual whose residence is unknown, and who was, "the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency." 4. Counts I and If of the Amended Complaint allege breach of contract and unjust enrichment solely against The Smith Agency, Inc. 5. Count III claims a violation of the Wage Payment and Collection Law, 43 P.S. §260.1, et seq. against both the corporation and William J. Smith. COUNTI MOTION TO DISMISS 6. Defendant William J. Smith has not been served. 7. The Plaintiff has made no attempt to serve Defendant William J. Smith. 8. Accordingly, the Court lacks jurisdiction over the person of said Defendant. WHEREFORE, Defendant William J. Smith requests your Honorable Court to dismiss the action against him. COUNT II DEMURRER OF DEFENDANT WILLIAM J. SMITH 9. Defendant William J. Smith is not a party to the contract on which the Plaintiff's claim is based. 10. Defendant William J. Smith cannot be held liable as an owner and/or officer of the corporation which is a party to the contract. 11. Defendant William J. Smith cannot be held liable as the agent of the corporation which is a party to the contract. WHEREFORE, Defendant William J. Smith requests your Honorable Court to dismiss the action against him. COUNT III DEMURRER TO COUNT III 12. Count III of the Amended Complaint alleges that the Defendants refused to pay wages in violation of Pennsylvania's Wage Payment and Collection Law., 43 P. S. §206.1, et seq. and that William J. Smith is an employer as defined in the Act. 13. An employer, as defined, is "every person ... [or] corporation ... employing any person in this Commonwealth." 43 P.S. §206.2 a. 14. Defendant William J. Smith is not a party to the Plaintiff's contract, and was not the Plaintiff's employer. 15. Neither the Defendant corporation nor Mr. Smith employed the Plaintiff, but rather acted solely as the Plaintiff's agent in obtaining employment. WHEREFORE, the Defendants request that Count III of the Amended Complaint be dismissed. LAW OFFICE OF MICHAEL J. HANFT William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants CERTIFICATE OF SERVICE AND NOW, this 2"a day of April, 2001, I, William A. Addams, hereby certify that I have this day served the following person(s) with a copy of the foregoing document, by first class, United States mail, postage prepaid, addressed as follows: Mark K. Emery, Esquire FENSTERMACHER AND ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17055 LAW OFFICE OF MICHAEL J. HANFT William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants F.\User Folded mDocs\Gw&cs200M025-1 prcl .Ind IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants TO THE PLAINTIFF: CIVIL ACTION - LAW NO. 01-315 You are hereby notified to plead to the within Preliminary Objections within twenty (20) days of service or a judgment may be entered against you. LAW OFFICE OF MICHAEL J. HANFT ,? "& By: William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff CIVIL ACTION - LAW V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants NO. 01-315 PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT AND NOW, come the Defendants, The Smith Agency, Inc. and William J. Smith, and in accordance with Pa. R.C.P. 1028 file Preliminary Objections to the Plaintiff s Second Amended Complaint and in support thereof assert the following: 1. The Second Amended Complaint alleges that the Plaintiff entered into a written contract with Defendant The Smith Agency, hie,, a Michigan corporation, which provides that he would be paid 80% of gross contract fees booked by and paid to Defendant Agency. 2. The contract, attached as Exhibit "A" to the Second Amended Complaint, is signed by the Plaintiff and William J. Smith, President, The Smith Agency, hie. 3. The Second Amended Complaint alleges that William J. Smith is an individual whose residence is unknown, and who was, "the owner, operator, agent and representative of Smith Agency, acting in his individual capacity and in his capacity for Smith Agency." 4. Counts I and II of the Second Amended Complaint allege breach of contract and unjust enrichment solely against The Smith Agency, Inc. 5. Counts III through VI assert claims against both the corporation and William J. Smith, individually. COUNTI MOTION TO DISMISS OF DEFENDANT WILLIAM J. SMITH 6. Defendant William J. Smith has not been served. 7. The Plaintiff has made no attempt to serve Defendant William J. Smith. 8. Accordingly, the Court lacks jurisdiction over the person of said Defendant. WHEREFORE, Defendant William J. Smith requests your Honorable Court to dismiss the action against him. COUNT II DEMURRER OF DEFENDANT WILLIAM J. SMITH 9. Count IV in Paragraph 30 of the Second Amended Complaint alleges, "The Smith Agency, by and through William Smith," placed an advertisement which constitutes a "misappropriation of right of publicity." 10. Count V alleges that the advertisement was a "Violation of the Lanham Trade-Mark Act." 11. Count VI alleges in Paragraph 38 that "William Smith, acting in his capacity as an agent and employee of The Smith Agency," committed a "tortious interference with a prospective business relationship." 12. Defendant William J. Smith is not a party to the contract on which the Plaintiff's claim is based. 13 Defendant William J. Smith cannot be held liable as an owner and/or officer of the corporation which is a party to the contract. 14. Defendant William J. Smith cannot be held liable as the agent of the corporation which is a party to the contract. WHEREFORE, Defendant William J. Smith requests your Honorable Court to dismiss the action against him. COUNT III DEMURRER TO COUNT lII OF BOTH DEFENDANTS 15. Count III of the Amended Complaint alleges that the Defendants refused to pay wages in violation of Pennsylvania's Wage Payment and Collection Law., 43 P. S. §206.1, et seq. and that William J. Smith is an employer as defined in the Act. 16. An employer, as defined, is "every person ... [or] corporation ... employing any person in this Commonwealth." 43 P.S. §206.2 a. 17. Defendant William J. Smith is not a party to the Plaintiff's contract, and was not the Plaintiff s employer. 18. Neither the Defendant corporation nor Mr. Smith employed the Plaintiff, but rather acted solely as the Plaintiff's agent in obtaining employment. WHEREFORE, the Defendants request that Count III of the Amended Complaint be dismissed. LAW OFFICE OF MICHAEL J. HANFT William Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants CERTIFICATE OF SERVICE AND NOW, this 2' day of May, 2001, I, William A. Addams, hereby certify that I have this day served the following person(s) with a copy of the foregoing document, by first class, United States mail, postage prepaid, addressed as follows: Mark K. Emery, Esquire FENSTERMACHER AND ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17055 LAW OFFICE OF MICHAEL J. HANFT By: William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Attorneys for Defendants F:\Vser Folde4lFirm DOm\G &cs2ool\2o25-1 Frelmind uc: -? _?J 7'7 :c cl, C--. f`J -.,f.n THOM LEWIS, V. Plaintiff THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWERS TO DEFENDANTS' PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPLAINT AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Plaintiff's Answers to Defendants' Preliminary Objections to Second Amended Complaint, as follows: 1. Paragraph 1 refers to a matter of record, which speaks for itself. 2. Paragraph 2 refers to a matter of record, which speaks for itself. 3. Paragraph 3 refers to a matter of record, which speaks for itself. 4. Paragraph 4 refers to a matter of record, which speaks for itself. 5. Paragraph 5 refers to a matter of record, which speaks for itself. Count I Motion to Dismiss Defendant William J. Smith 6. It is admitted that Defendants have now taken the position that Defendant William J. Smith has not been served. By way of further response, the undersigned was advised by Defendants' counsel in Michigan, Stanley Steck, Esquire, that both defendants had been served and that they were not asserting any issues as to service. ti Only recently, as part of Defendants' second set of objections, do they now raise the issue that Defendant Smith has not been served. 7. Denied. Plaintiff incorporates Paragraph 6 fully herein. By way of further response, Plaintiff has made attempts to serve Defendant Smith, an out-of-state resident, in accordance with the Rules of Civil Procedure. Further, Defendants' objection to service is not ripe as the time period to serve an out-of-state resident, as established by Pennsylvania's Rules of Civil Procedure, has not yet run. 8. Denied as a conclusion of law. WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' objections. Count II Motion to Dismiss Defendant William J. Smith 9, Paragraph 9 refers to a matter of record, which speaks for itself. 10. Paragraph 10 refers to a matter of record, which speaks for itself. 11. Paragraph 11 refers to a matter of record, which speaks for itself. 12. Denied as a conclusion of law. By way of further response, Plaintiff's claims for misappropriation of right of publicity, violation of the Lanhan Trademark Act, and tortious interference with a prospective business relationship, are not predicated upon the referenced contract. 13. Denied as a conclusion of law. 14. Denied as a conclusion of law. 2 WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' objections. Count 117 Demurrer to Count III of Both Defendants 15. Paragraph 15 refers to a matter of record, which speaks for itself. 16. Denied as a conclusion of law 17. Denied as a conclusion of law. 18. Denied as a conclusion of law. By way of further response, to the extent that Defendants attempt to set forth a factual averment in Paragraph 18, Defendants' preliminary objections are not verified, as required under the Rules of Civil Procedure. WHEREFORE, Plaintiff respectfully requests this Honorable Court overrule Defendants' objections. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: 57' 2.4) 3 CERTIFICATE OF SERVICE AND NOW, on this 7 day of May, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs Answers to Defendants' Preliminary Objections to Second Amended Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery ?7&. 1 73 hl;%' _P ter` ,. co <_j -?r 1! C A THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOCKET NO. 01-315 THE SMITH AGENCY, INC. and CIVIL ACTION -LAW WILLIAM J. SMITH, Defendants JURY TRIAL DEMANDED RETURN OF SERVICE k I, Mark K. Emery, do hereby swear and affirm that service was made upon Defendant William Smith via certified mail, Article #Z 089 202 250, on May 5, 2001. The certified mail return receipt is attached hereto. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By. G? ..._ Z . Mark K. Emery, Esquire Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiffs DATED: May 9, 2001 ? 99^? " • -'11ipt@[6ltetris t?anMar2ibr adtllNonalsaMees.' I,alS©WISh tO•F8061V8 the - ? • :Complete Items 3,4a, and 4b. following services (for an :Prim your name and address on the rewirse of this foim so d that we can return this extra fee): m s car to you. :Attach Ink; form to the from of the mallplece, or on the back d space does not 1. 11 Addressee's Address m • WdtemRafum Receipt Requested' on the mailpiece below t ids number. 2. ? Restricted Delivery y :The Return Receipt will show to whom the article was ddl - hd the date C delivered. Consult postmaster for fee. -a 3. Article Addressed to: - - - 4a. Article Number William Smith Z 089 202 250 12 E a E 4508 Dutches Ct. 4b. Service Type o Walker MI 49544 ? Registered ?116ertiffed ? Express Mail ? Insured S - - C/Retum Receipt for Merchandise ? COD ` c c a 7. D8t D ery + - Z ` 15 p 5. Received By: (P ntN a - ' . Ad LV Add (Only ffrequested and IsP d) ix F g 6. Signature: ( e rAge W ! "i ??° ?l /?lfl :i:il i i li i l(tf i PS Fo .,. M 094 - , - Re%ff-n R Ipt ? CERTIFICATE OF SERVICE AND NOW, on this 9th day of May, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Return of Service by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: '; ?° Mark K. Emery J?l 'Gb c y xt V `17. x PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) THOM LEWIS (Plaintiff) VS. THE SMITH AGENCY, INC. and WILLIAM J. SMITH (Defendant) No. 315 Civil 2001 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objection to Second Amended Complaint 2. Identify counsel who will argue case: Mark K. Emery, Esq. (a) for plaintiff: Fenstermacher and Associates, P.C. Address: 5115 East Trindle Road Mechanicsburg, PA 17050 (b) for defendant: William A. Addams, Esq. Address: Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: July 25, 2001. if Dated: 5-4-01 Attorney for Plaintiff i?? m, ,G 'c') ,T r r i` THOM LEWIS, V. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this /6 " day of c , 2001, upon consideration of Plaintiffs Motion to Compel Answers to Interrogatories and Request for Production of Documents, it is hereby ORDERED that Defendant The Smith Agency, Inc. shall rcJ/vn.d ?a ,A'-d 06'ycvv?r wU 34 ?ayi 7 f ly y I fi IT711 zt?C7R-f rl^ rFa. c. pvd+ Distribution: Mark K. Emery, Esquire William A. Addams, Esquire/ '7-11-01 '?- ' BY THE COURT, `,'a THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Plaintiffs Motion to Compel Answers to Interrogatories and Request for Production of Documents, as follows: 1. Plaintiff served upon the Defendant The Smith Agency, Inc. his First Set of Written Interrogatories and First Request for Production of Documents on May 7, 2001. Said discovery requests are attached and incorporated herein as Exhibit "A". 2. On June 13, 2001, Defendant's counsel was requested to provide Answers to the outstanding discovery within 10 days, or advise when the Answers would be provided. Defendant responded only that Defendant's lead counsel, located in Michigan, was advised to direct Defendant's attention to the discovery requests. 3. As of this date, Defendant has failed to timely provide answers to Plaintiff's Interrogatories or otherwise respond to Plaintiff's request. WHEREFORE, Plaintiffs respectfully request this Honorable Court order Defendant to fully respond to Plaintiff's First Set of Written Interrogatories and First Request for Production of Documents within 20 days or suffer the appropriate sanctions. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: July 2, 2001 2 THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' FIRST SET OF WRITTEN INTERROGATORIES ADDRESSED TO DEFENDANTS THE SMITH AGENCY, INC. TO: The Smith Agency, Inc. c/o William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 These Interrogatories are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendants in accordance therewith. Defendants are required to answer these Interrogatories in writing under oath, based upon all information available to them and to their attorneys, employees, and other agents, or representatives. Defendants are also required to serve answers to these Interrogatories within thirty (30) days, to the offices of Plaintiffs' counsel, Fenstermacher and Associates, P.C., 5115 East Trindle Road, Mechanicsburg, Pennsylvania 17050, and supplement their answers in accordance with the Pennsylvania Rules of Civil Procedure. These Interrogatories are to be answered by the Defendants, The Smith Agency, Inc. Instructions 1. The following Interrogatories are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of service upon you. Objections must be signed by the attorney raising the objection. In answering, you must furnish any and all information 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. 2. 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. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. 4. These Interrogatories shall be construed and interpreted in accordance with the Pennsylvania Rules of Civil Procedure. Definitions 1. "Document", when used herein, means any record, including any object which contains written, printed, typed or magnetically recorded information, a graphic or photographic representation or sound, however produced or reproduced. Document includes an original or any copy of any statement, report, letter, memorandum, book, article, note, blueprint, drawing, sketch, photograph, motion picture, videotape, phonograph, compact disc or any other sound recording. Document also includes any card, disc, magnetic tape, printout, data cell, drum and any other data compilations designed for the storage of information in conjunction with a computer or any other word/data processing system. 2. "Identify" or "Identity", when used herein with respect to: a. A natural person means to state: i. the person's full name; ii. the person's present or last known address; and iii. the person's employer and employer's address at the time of the events referred to in the Interrogatory. FIRM MINI-INNI 111 P b. An entity other than an individual, including a corporation, partnership, limited liability company or partnership, unincorporated association, governmental agency, etc. or a subsidiary, division, or subdivision thereof, means to state: L Its full corporate name; ii. the date and place of incorporation, if known; iii. the present or last known address of the entity; and iv. if applicable, the full name and present or last known address of the entity's subsidiary, division or subdivision. C. A document, as defined above, means to state: L the nature of the document (i.e. whether it is a report, statement, letter, etc.); ii. the title of the document, or if no title, a description of the document sufficient to identify same; iii. the identity of the person(s) who prepared the document; iv. the identity of the person(s) for whom the document was prepared or to whom the document was directed; V. the date the document was prepared; and vi. the identity of the present custodian of the document or any copy of the document. An oral communication means to state: L the date the communication occurred; ii, the place where the communication occurred; iii. the substance of the communication; iv. the identify of the person(s) who made the communication; V. the identity of each person to whom such communication was made; and vi. the identity of each person who was present when such communication was made. e. Any other context means to provide a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, the identification of relevant people, entities, and documents. 3. "Person", when used herein refers to a natural person, association, partnership, corporation, or government agency. 4. "You" or "Your", when used herein, refers to The Smith Agency, Inc., Defendant, their agents, representatives, servants, and/or employees. INTERROGATORIES State: a. Your full name; b. Your date of incorporation; C. All officers and directors for the past five years. ANSWER: 2. If you are covered by any type of insurance that might be applicable to the incident in this matter, state the following with respect to each such policy: a. The name of the insurance carrier which issued the policy; b. The named insured under each policy and the policy number of each policy; C. The type(s) and effective dates(s) of each policy; d. The amount of coverage provided for each occurrence, and in the aggregate for each policy; and e. Each exclusion, if any, in the policy which is applicable to any claim thereunder and any reasons, if any, why you or the carrier claim the exclusion is applicable. ANSWER: 2 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 G. The identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. ANSWER: 4. 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: 4 R 5. 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: 5 6. 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 at the trial. ANSWER: 6 7. Identify each college you booked Plaintiff to appear at, and in addition identify: a. The date of such performance; b. the amount paid to you; C. the date each payment was received by you; the amount provided to Plaintiff by you. ANSWER: 7 8. Identify each individual who has contacted you regarding booking Thom Lewis for a performance within the last year, and in addition identify: a. the date of such contact; b. the school or other affiliation each individual-represented; C. your response or other action taken as a result of such contact. ANSWER: 8 9. Identify every trade publication, journal, or other media you have advertised with in the past year. ANSWER: Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: May 7, 2001 9 CERTIFICATE OF SERVICE AND NOW, on this 7th day of May, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing First Set of Written Interrogatories by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO: The Smith Agency, Inc. c/o William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 YOU ARE HEREBY REQUESTED, pursuant to Pa. R.C.P. 4009, to produce the following documents and other physical objects for inspection and copying, within no more than thirty (30) days after service hereof, at the offices of Defendant's counsel, Fenstermacher and Associates, P.C., 5115 East Trindle Road, Mechanicsburg, Pennsylvania 17050, or alternatively, by delivering copies of the same to the Defendants' counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Plaintiff, or Plaintiff's agents or representatives obtain other information between the time the answers are served and the time of trial. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this request, except that Defendant requests that Plaintiff identify all documents for which privilege is claimed, and specify the exact grounds upon which the claim for privilege is based. DEFINITIONS AND DIRECTIVES The following request to produce is governed by the following definitions and directives: 1. "You" and "your" shall mean Defendants, The Smith Agency, Inc., jointly or singularly, their agents and employees. 2. "Document" shall mean all forms of recorded data or information, including writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including, without limitation, correspondence memoranda, notes, work sheets, diaries, statistics, letters, telegrams, telex, telefax, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books); notations of any sort of conversations, telephone calls, meetings or other communications; bulletins or printed matter of any type, and all forms of drafts, notations, workings, alterations, modifications, changes or amendments of any of the foregoing; graphical or oral records or representations of any kind (including, without limitation, photographs, films, charts, graphs, videotapes, recordings, and motion pictures); and electrical records or representations of any kind (including, without limitation, tapes, cassettes, disks and recordings). . 3. "Pertain to" shall be interpreted to include relating to, referring to, reflecting, regarding, constituting, concerning or having as its subject matter, in any manner whatsoever, directly or indirectly, expressly or implied, the subject matter of the specific request. 4. "Communication" includes, but is not limited to, all written or oral discussions, statements, conversations, memoranda, notations, letters, notices or any document. 5. If any request for documents is deemed to call for production of privileged or work product materials and such privilege or work product is asserted, identify in writing each document so withheld. If only a portion of a document is privileged or work product, then redact and identify such portion thereof that is withheld. With regard to all documents or all portions of documents withheld, provide the following information: (a) The reason for withholding the documents; (b) The statement for the basis of the claim of privilege, work product or other ground of non-disclosure; (c) A brief description of the document, including: (i) the date of the document; (ii) number of pages, attachments and appendices; (iii) the names of its author, authors or preparers and an identification by employment and title of each such person; (iv) the name of each person who was sent, or shown blind copies or carbon copies or has had access to or custody of the document together with an identification of each such person; (v) the present custodian; and (vi) the subject matter of the document and in the case of any document relating to or referring to a meeting or conversation, identification of such meeting or conversation. ,: REQUEST TO PRODUCE 1. All documents, including correspondence and contracts, exchanged between you and any college at which you booked Plaintiff to perform. 2. All documents, including correspondence, contracts, proof sheets, bills or invoices exchanged between you and Campus Activities Magazine, its agents, employers or publishers, which relates or pertains to your ad placed in the April 2001 edition of Campus Activities Magazine. 3. Your complete file for Thom Lewis. 4. All message sheets or phone logs indicating, evidencing or memorializing any third party contract with you regarding, relating or pertaining to Thom Lewis within the past year. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: 4 CERTIFICATE OF SERVICE AND NOW, on this day of May, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs First Request for Production of Documents by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery 5 CERTIFICATE OF SERVICE AND NOW, on this ?) day of July, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs' Motion to Compel Answers to Interrogatories and Request for Production of Documents by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery ?'? ?° t t , - ? -?. ",? i <i .,: -, THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-0315 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this 2nd day of August, 2001, after careful consideration of Defendants' preliminary objections to Plaintiff's second amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' preliminary objection based upon lack of personal jurisdiction over Defendant William J. Smith is deemed withdrawn; and 2. Defendants' remaining preliminary objections are denied. Mark K. Emery, Esq. 5115 East Trindle Road Mechanicsburg, PA 17055 Attorney for Plaintiff BY THE COURT, 14 MNNAIAS*Sd winon 5nV 10 AAMON` William A. Addams, Esq. Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Attorney for Defendants THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-0315 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., August 2, 2001. In this action arising out of a business relationship between an entertainer and a booking agency and its president, the entertainer has sued the agency and the president. Plaintiff's complaint consists of claims against the agency for breach of contract and unjust enrichment and claims against both the agency and the president for violation of Pennsylvania's Wage Payment and Collection Law, misappropriation of the right of publicity, violation of the federal Lanham Trademark Act, and tortious interference with prospective business relations. For disposition at this time are preliminary objections filed by Defendants to Plaintiff's second amended complaint. The preliminary objections consist of (a) a motion to dismiss all claims against the agency's president on personal jurisdiction grounds, (b) a demurrer to the claims against the president for misappropriation of the right of publicity, violation of the federal Lanham Trademark Act, and tortious interference with prospective business relations, and (c) a demurrer to the claim against both the agency and the president for violation of Pennsylvania's Wage Payment and Collection Law. The motion to dismiss on personal jurisdiction grounds is based upon lack of proper service upon the agency's president. However, Defendants have advised that this preliminary objection is to be deemed withdrawn.t The demurrer to the claims against the president for misappropriation of the right of publicity, violation of the federal Lanham Trademark Act, and tortious interference with prospective business relations is based upon the fact that the president was not a party to the transaction between Plaintiff and the agency. The demurrer to the claim against the agency and the president for violation of Pennsylvania's Wage Payment and Collection Law is, as to the president, based upon the fact that the president was not a party to the transaction between Plaintiff and the agency, and, as to both the agency and the president, based upon the argument that the transaction was not within the purview of the act. The matter was argued on July 25, 2001. For the reasons stated in this opinion, Defendants preliminary objections will be deemed withdrawn or denied. STATEMENT OF FACTS The allegations of Plaintiff's second amended complaint may be summarized as follows. Plaintiff is Thom Lewis, an adult resident of Mechanicsburg, Cumberland County, Pennsylvania, and a musician.2 Defendant Smith Agency, Inc., is a Michigan corporation engaged in the business of booking musical performances at various colleges.3 Defendant William J. Smith is an adult individual who is the owner, operator, president, agent and representative of the agency.4 By a contract dated March 12, 1999, Defendant Smith Agency, Inc., and Plaintiff entered into an agreement whereby the agency agreed to book Plaintiff for at least 27 performances per year at colleges during the period from March 15, 1 Defs.' Br. Supp. Prelim. Objections Second Am. Compl. at 2. 2 Pl.'s Second Am. Compl. paras. 1, 5. s Pl.'s Second Am. Compl. paras. 2, 5. Pl.'s Second Am. Compl. paras. 3-5; Pl.'s Second Am. Compl. Ex. A at 2. 2 1999, until March 15, 2001.5 With respect to compensation for the performances, the contract provided as follows: Payment by the AGENCY to the ARTIST will be 80% of the gross contract fee 10 days following receipt of payment from COLLEGE. AGENCY commission will be 20% of gross contract fee.6 The contract was executed on behalf of Defendant Smith Agency, Inc., by Defendant William J. Smith, in his capacity as president of the corporation.7 Count I of Plaintiff's complaint is for breach of contract against Defendant agency. It alleges that Plaintiff performed at six colleges pursuant to the contract during the months of October, November and December, 2000, that he was not compensated for the performances by the agency following demand therefor, and that payment for the performances had been received by the agency from the colleges.$ Damages in the amount of $3,315.00 are demanded.9 Count II is for unjust enrichment against Defendant agency, based upon the agency's alleged failure to make proper disposition of the money received.10 Damages in the amount of $3,315.00 are demanded." Count III is for violation of Pennsylvania's Wage Payment and Collection Law against both defendants. It alleges that Defendant William J. Smith met the criteria of an "employer" under the act, and that the failure of the defendants to forward the money due Plaintiff represented a violation of the act. 12 Damages in 5 Pl.'s Second Am. Compl. para. 5; Pl.'s Second Am. Compl. Ex. A. 6 Pl.'s Second Am. Compl. para.5; Pl.'s Second Am. Compl. Ex. A at 1. Pl.'s Second Am. Compl. para. 5; Pl.'s Second Am. Compl. Ex. A at 2. 8 Pl.'s Second Am. Compl. paras. 12-13, 18-19. 9 Pl.'s Second Am. Compl. at 3 (Count I, ad damnum clause). 10 Pl.'s Second Am. Compl. paras. 20-23. 11 Pl's. Second Am. Compl. at 4 (Count H, ad damnum clause). 12 Pl.'s Second Am. Compl. paras. 24-28. 3 the amount of $4,143.75 (125% of the money due), and attorney's fees, are demanded. 13 Count IV is for misappropriation of the right of publicity against both defendants. It alleges that Defendants falsely advertised to colleges that the agency represented Plaintiff, after the term of the contract had expired. 14 Punitive damages in an unliquidated amount are demanded. 15 Count V is for violation of the federal Lanham Trademark Act against both defendants. It alleges that Defendants' misappropriation of Plaintiff's name as alleged in the preceding count was violative of the act. 16 Punitive damages in an unliquidated amount are demanded. 17 Count VI is for tortious interference with prospective business relations against both defendants. It alleges that, when certain colleges contacted Defendant William J. Smith and other employees of the agency for purposes of booking Plaintiff, they were maliciously told that Plaintiff was no longer giving performances. 18 Compensatory and punitive damages in unliquidated amounts are demanded. 19 Defendants' preliminary objections raising the issues. of personal jurisdiction and legal sufficiency discussed above were filed on May 3, 2001. DISCUSSION Statement of Law Demurrer. "The test on preliminary objections [which would result in dismissal of a claim] is whether it is clear and free from doubt from all of the facts " Pl.'s Second Am. Compl. para. 28, at 5 (Count IV ad damnum clause). 14 Pl.'s Second Am. Compl. paras. 30-33. 15 Pl.'s Second Am. Compl. at 6 (Count IV ad damnum clause). 16 Pl.'s Second Am. Compl. para. 35. U Pl.'s Second Am. Compl. at 6 (Count V ad damnum clause). 18 Pl.'s Second Am. Compl. paras. 37-41. 19 Pl.'s Second Am. Compl. para. 41, at 7 (Count VI ad damnum clause). 4 pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). In determining whether to grant such a preliminary objection, a "[c]ourt must consider as true all of the well-pleaded material facts set forth in [the pleading challenged] and all reasonable inferences that may be drawn from those facts." Id. at 57, 611 A.2d at 182. Moreover, such "preliminary objections will only be sustained if clear and free from doubt." Triage, Inc. v. Pa. Dept. of Transp., 113 Pa. Commw. 348, 354 n.7, 537 A.2d 903, 907 n.7 (1988). Liability of agent. An individual acting as an agent for a disclosed principal is not personally liable on a contract between the principal and a third party unless the agent specifically agrees to liability. Rossi v. Pa. State Univ., 340 Pa. Super. 39, 56, 489 A.2d 828, 837 (1985). Pennsylvania Wage Payment and Collection Law. Under Pennsylvania's Wage Payment and Collection Law, 20 an employee may maintain a civil action against an employer for unpaid wages. Act of July 14, 1961, P.L. 637, §9.1, as amended, 43 Pa. C.S. §260.9x. An employer, for purposes of the act, [i]ncludes every corporation ... and any ... officer of any [corporation] employing any person in this Commonwealth. Act of July 14, 1961, P.L. 637, §2.1, 43 Pa. C.S. §260.2a (emphasis added). Thus, in appropriate circumstances a corporate officer will be deemed an employer under the act. Mohney v. McClure, 390 Pa. Super. 338, 343-45, 568 A.2d 682, 685-86 (1990), aff'd, 529 Pa. 430, 604 A.2d 1021 (1992). Wages, for purposes of the act, [i]ncludes all earnings of an employe, regardless of whether determined on time, task, piece, commission or other method of calculation. The term "wages" also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employes' pay by the employer. 20 Act of July 14, 1961, P.L. 637, as amended, 43 Pa. C.S. §§ 260.1-.12 (2000). 5 43 Pa. C.S. §260.2a. Misappropriation of right of publicity. Under Section 46 of the Restatement (Third) of Unfair Competition, a "right of publicity" has been described as follows: One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability .... Restatement (Third) of Unfair Competition §46 (1995). A cause of action based upon this right has been deemed by a federal court to be consistent with Pennsylvania law. Seale v. Gramercy Pictures, 964 F. Supp. 918, 929 (E.D. Pa. 1997), aff'd, 156 F.3d 1225 (3d Cir. 1998). Lanham Trademark Act. Under the federal Lanham Trademark Act, 21 a civil action may be brought against a person who, on or in connection with any ... services,... uses in commerce any... name ... or ... false or misleading description of fact, or false or misleading representation of fact ... which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her... services, or commercial activities by another person, or in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's ... services, or commercial activities. 15 U.S.C. § 1125(a)(1)(2001). Tortious interference with prospective business relations. It has been held in Pennsylvania "that a cause of action exists where a person intentionally and improperly interferes with another's prospective contractual relation," provided that the interference "induce[s] or cause[s] a third person not to enter into the prospective relationship." Hennessy v. Santiago, 708 A.2d 1269, 1278 (Pa. Super. 21 15 U.S.C. §§ 1051 etseq. 6 Ct. 1998), quoting Yaindl v. Ingersoll-Rand Co., 281 Pa. Super. 560, 422 A.2d 611, 624 (1980) (emphasis omitted). Application of Law to Facts Defendants' demurrer to Plaintiff's claims against Defendant William J. Smith for misappropriation of the right of publicity, violation of the federal Lanham Trademark Act, and tortious interference with prospective business reflation is based upon the fact that he was not a party to the alleged contract between the agency and Plaintiff. In this regard, the demurrer rests upon the rule in contract law that an agent who contracts on behalf of a disclosed principal will not generally be personally liable on the contract. However, a careful review of the complaint reveals that the causes of action in question are not predicated upon contractual liability. Instead, they are premised upon allegedly wrongful conduct independent of the contract. For this reason, the rule relied upon is not controlling and Defendants' demurrer cannot be sustained on that ground. Defendants' demurrer to Plaintiffs claim under Pennsylvania's Wage Payment and Collection Law is (as to both defendants) based upon the argument that any obligation under the contract to forward payment to Plaintiff for his performances was not within the purview of the act and (as to Defendant William J. Smith) based upon the argument that liability under the act cannot attach to a corporate officer where the alleged employment contract was with the corporation. However, the broad definitions under the act of "wages" and "employer" militate against a holding that it is clear and free from doubt that Plaintiff can not recover on his claim, particularly where issues of intent and trade practice may be involved in the interpretation of Plaintiffs contract with the agency, and where the statute expressly authorizes the imposition of liability upon corporate officers in appropriate circumstances. For these reasons, Defendants' demurrer can not be sustained on these grounds. Based upon the foregoing, the following order will be entered: 7 ORDER OF COURT AND NOW, this 2nd day of August, 2001, after careful consideration of Defendants' preliminary objections to Plaintiff's second amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendants' preliminary objection based upon lack of personal jurisdiction over Defendant William J. Smith is deemed withdrawn; and 2. Defendants' remaining preliminary objections are denied. BY THE COURT, /s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Mark K. Emery, Esq. 5115 East Trindle Road Mechanicsburg, PA 17055 Attorney for Plaintiff William A. Addams, Esq. Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Attorney for Defendants 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants CIVIL ACTION - LAW NO. 01-315 ANSWER AND NOW, come the Defendants, The Smith Agency, Inc. and William J. Smith, by their attorney, William A. Addams, of the Law Office of Michael J. Hanft, and make the following Answer to the Plaintiff's Second Amended Complaint: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated. William J. Smith acted only as President of The Smith Agency, Inc. 5. Admitted. 6. Admitted. 7. After reasonable investigation, the Defendants are without knowledge sufficient to form a belief as to the truth of the averment. The same is therefore denied. 8. Admitted. 9. Admitted. 1 10. Admitted except the answer to Paragraph 4 is incorporated herein by reference. 11. The answer to Paragraph 10 is incorporated herein by reference. 12. Denied. Plaintiff is not due the amounts set forth in the complaint. 13. The conclusion of law is denied. 14. The conclusion of law is denied. COUNTI THOM LEWIS v. THE SMITH AGENCY. INC. BREACH OF CONTRACT 15. The answers to Paragraphs 1-14 are incorporated herein by reference. 16. Denied. The Plaintiff has been paid for all services which he properly performed under the contract and for which the Defendant has been paid by the colleges. 17. Denied. On numerous occasions the Plaintiff did not perform in a professional manner which reflected adversely on The Smith Agency. 18. Denied. The answer to Paragraph 16 is incorporated herein by reference. 19. Admitted. WHEREFORE, the Defendant requests Count I be dismissed. COUNT H THOM LEWIS v. THE SMITH AGENCY. INC. UNJUST ENRICHMENT 20. The answers to Paragraphs 1-19 are incorporated herein by reference. 21. The answer to Paragraph 16 is incorporated herein by reference. 22. The answer to Paragraph 18 is incorporated herein by reference. 23. The conclusion of law is denied. WHEREFORE, the Defendant requests Count U be dismissed. COUNT HI THOM LEWIS v. THE SMITH AGENCY. INC. and WILLIAM J. SMITH PENNSYLVANIA'S WAGE PAYMENT AND COLLECTION LAW 24. The answers to Paragraphs 1-23 are incorporated herein by reference. 25. The conclusion of law is denied. 26. The conclusion of law is denied. 27. The conclusion of law is denied. 28. The conclusion of law is denied. WHEREFORE, Defendants request Count III be dismissed. COUNT IV THOM LEWIS v. THE SMITH AGENCY. INC. and WILLIAM SMITH MISAPPROPRIATION OF RIGHT OF PUBLICITY 29. The answers to Paragraphs 1-28 are incorporated herein by reference. 30. Denied. William Smith did not place the advertisement. A previously used advertisement was inadvertently used by Campus Activities. 31. Admitted. 32. Admitted. 33. The conclusion of law is denied. WHEREFORE, the Defendants request Count IV be dismissed. COUNT V THOM LEWIS v. THE SMITH AGENCY. INC. and WILLIAM SMITH VIOLATION OF TRADE-MARK ACT 15 U.S.C.A. §1051. et seq. 34. The answers to Paragraphs 1-33 are incorporated herein by reference. 35. The conclusion of law is denied. WHEREFORE, the Defendants request Count V be dismissed. COUNT VI THOM LEWIS v. THE SMITH AGENCY. INC. and WILLIAM SMITH TORTIOUS INTERFERENCE WITH A PROSPECTIVE BUSINESS RELATIONSHIP 36. The answers to Paragraphs 1-35 are incorporated herein by reference. 37. Denied. No colleges contracted the Defendants attempting to book Lewis. 38. Denied. William Smith did not advise anyone that the Plaintiff is no longer performing as a professional musician. 39. Denied. The answer to Paragraph 38 is incorporated herein by reference. 40. Denied. The answer to Paragraph 38 is incorporated herein by reference. 41. After reasonable investigation, the Defendants are without knowledge sufficient to form a belief as to the truth of the averment and the same is therefore denied. WHEREFORE, Defendants request Count VI be dismissed. NEW MATTER By way of further answer and defense, the Defendants assert the following in new matter: 42. On numerous occasions the Plaintiff failed to perform in a professional manner which resulted in a loss of revenue. 4 43. As a result, the Plaintiff's conduct reflected adversely on The Smith Agency, which lost revenue. WHEREFORE, Defendants request a set-off on any amount found due and owing to Plaintiff. LAW OFFICE OF MICHAEL J. HANFT By: William . Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Defendants FAUrer Md.Ti.U \Grndocs20 QW5-lA .S .wpd 5 y ??TF ?aTT William a. .'n:thPresident, The Smith Agency, Inc. hereby verifies that t.h ::.';acts set forth in the foregoing Answer are true. and Correct 'ao the best of his k?aowledge, information and belief, and uiid?'s--ands that false statements herein are ma subject to the.e realties of'18 Pa. C.S. 54904. e t g worn; falsifications .??:.G, C:. 0 DATE: y;v C. THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW comes the Plaintiff, by and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Plaintiffs Motion to Compel Answers to Interrogatories and Request for Production of Documents, as follows: 1. Plaintiff served upon the Defendant The Smith Agency, Inc. his Second Set of Written Interrogatories and Second Request for Production of Documents on October 10, 2001. Said discovery requests are attached and incorporated herein as Exhibit "A". 2. As of this date, Defendant has failed to timely provide answers to Plaintiff's Interrogatories or Requests for Production of Documents. 3. Plaintiff was previously required to obtain a Court Order compelling Defendants to respond to discovery requests, said Order being issued on July 10, 2001. It is believed and therefore averred that Defendants will again purposely delay responding to discovery requests absent Court intervention. WHEREFORE, Plaintiff respectfully requests this Honorable Court order Defendant to fully respond to Plaintiffs Second Set of Written Interrogatories and Second Request for Production of Documents within 20 days or suffer the appropriate sanctions. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. %f.... By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: November 27, 2001 2 EXHIBIT `A' THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY. PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' SECOND SET OF WRITTEN INTERROGATORIES ADDRESSED TO DEFENDANTS THE SMITH AGENCY, INC. TO: The Smith Agency, Inc. c/o William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 These Interrogatories are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendants in accordance therewith. Defendants are required to answer these Interrogatories in writing under oath, based upon all information available to them and to their attorneys, employees, and other agents, or representatives. Defendants are also required to serve answers to these Interrogatories within thirty (30) days, to the offices of Plaintiffs' counsel, Fenstermacher and Associates, P.C., 5115 East Trindle Road, Mechanicsburg, Pennsylvania 17050, and supplement their answers in accordance with the Pennsylvania Rules of Civil Procedure. These Interrogatories are to be answered by the Defendants, The Smith Agency, Inc. and/or William J. Smith. Instructions 1. The following Interrogatories are to be answered in writing, verified, and served upon the undersigned within thirty (30) days of service upon you. Objections must be signed by the attorney raising the objection. In answering, you must furnish any and all information 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. 2. 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. In lieu of identifying documents in response to these Interrogatories, you may provide copies of such documents with appropriate references to the corresponding Interrogatories. 4. These Interrogatories shall be construed and interpreted in accordance with the Pennsylvania Rules of Civil Procedure. Definitions 1. "Document", when used herein, means any record, including any object which contains written, printed, typed or magnetically recorded information, a graphic of photographic representation or sound, however produced or reproduced. Document includes an original or any copy of any statement, report, letter, memorandum, book, article, note, blueprint, drawing, sketch, photograph, motion picture, videotape, phonograph, compact disc or any other sound recording. Document also includes any card, disc, magnetic tape, printout, data cell, drum and any other data compilations designed for the storage of information in conjunction with a computer or any other word/data processing system. 2. "Identify" or "Identity", when used herein with respect to: a. A natural person means to state: i. the person's full name; ii. the person's present or last known address; and iii. the person's employer and employer's address at the time of the events referred to in the Interrogatory. b. An entity other than an individual, including a corporation, partnership, limited liability company or partnership, unincorporated association, governmental agency, etc. or a subsidiary, division, or subdivision thereof, means to state: i. Its full corporate name; ii. the date and place of incorporation, if known; iii. the present or last known address of the entity; and iv. if applicable, the full name and present or last known address of the entity's subsidiary, division or subdivision. A document, as defined above, means to state: i. the nature of the document (i.e. whether it is a report, statement, letter, etc.); ii. the title of the document, or if no title, a description of the document sufficient to identify same; iii. the identity of the person(s) who prepared the document; iv. the identity of the person(s) for whom the document was prepared or to whom the document was directed; V. the date the document was prepared; and vi. the identity of the present custodian of the document or any copy of the document. d. An oral communication means to state: i. the date the communication occurred; ii. the place where the communication occurred; iii. the substance of the communication; iv. the identify of the person(s) who made the communication; V. the identity of each person to whom such communication was made; and vi. the identity of each person who was present when such communication was made. e. Any other context means to provide a description with sufficient particularity that the thing may thereafter be specified and recognized, including relevant dates and places, the identification of relevant people, entities, and documents. 3. "Person", when used herein refers to a natural person, association, partnership, corporation, or government agency. 4. "You" or "Your", when used herein, refers to The Smith Agency, Inc., Defendant, their agents, representatives, servants, and/or employees. INTERROGATORIES 1. Identify each specific instance which you claim Plaintiff did not perform in a professional manner, and specifically identify: a. The location of such performance; b. The date of such performance; C. The amount paid to Plaintiff for such performance; d. All individuals with knowledge of such alleged conduct of Plaintiff; e. The exact amount and nature of damages or loss of revenue you claim as a result of such alleged conduct, as well as the exact amount of set-off you claim is due; f. All documents, including contracts with the venue, supporting your allegation or claim for lost revenue; and g. The specific conduct of Plaintiff you allege was not conducted in a professional manner. ANSWER: 2. Identify all shows you allege Plaintiff failed to perform at, including the exact dates and locations, and all written contracts with the venues. ANSWER: 2 3. Identify each alleged breach of contract committed by Plaintiff, including the dates such breach occurred and all individuals with knowledge of said breach. ANSWER: 4. Identify each lawsuit brought against either named Defendant in any state or federal court from 1995 to the present, including an identification of the claim asserted, the plaintiff, and the docket number and court of jurisdiction. ANSWER: 4 5. Identify each criminal charge or conviction brought against Defendant William J. Smith which occurred within the past 10 years. ANSWER: Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By:?; Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: October 10, 2001 5 CERTIFICATE OF SERVICE AND NOW, on this 10th day of October, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Second Set of Written Interrogatories by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery THOM LEWIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO: The Smith Agency, Inc. c/o William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 YOU ARE HEREBY REQUESTED, pursuant to Pa. R.C.P. 4009, to produce the following documents and other physical objects for inspection and copying, within no more than thirty (30) days after service hereof, at the offices of Defendant's counsel, Fenstermacher and Associates, P.C., 5115 East Trindle Road, Mechanicsburg, Pennsylvania 17050, or alternatively, by delivering copies of the same to the Defendants' counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Plaintiff, or Plaintiff's agents or representatives obtain other information between the time the answers are served and the time of trial. Documents for which a proper claim of privilege can be substantiated are expressly excluded from this request, except that Defendant requests that Plaintiff identify all documents for which privilege is claimed, and specify the exact grounds upon which the claim for privilege is based. DEFINITIONS AND DIRECTIVES The following request to produce is governed by the following definitions and directives: "You" and "your" shall mean Defendants, The Smith Agency, Inc., jointly or singularly, their agents and employees. 2. "Document" shall mean all forms of recorded data or information, including writings of any kind, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including, without limitation, correspondence memoranda, notes, work sheets, diaries, statistics, letters, telegrams, telex, telefax, minutes, contracts, reports, studies, checks, statements, receipts, returns, summaries, pamphlets, books); notations of any sort of conversations, telephone calls, meetings or other communications; bulletins or printed matter of any type, and all forms of drafts, notations, workings, alterations, modifications, changes or amendments of any of the foregoing; graphical or oral records or representations of any kind (including, without limitation, photographs, films, charts, graphs, videotapes, recordings, and motion pictures); and electrical records or representations of any kind (including, without limitation, tapes, cassettes, disks and recordings). 3. "Pertain to" shall be interpreted to include relating to, referring to, reflecting, regarding, constituting, concerning or having as its subject matter, in any manner whatsoever, directly or indirectly, expressly or implied, the subject matter of the specific request. 4. "Communication" includes, but is not limited to, all written or oral discussions, statements, conversations, memoranda, notations, letters, notices or any document. 5. If any request for documents is deemed to call for production of privileged or work product materials and such privilege or work product is asserted, identify in writing each document so withheld. If only a portion of a document is privileged or work product, then redact and identify such portion thereof that is withheld. With regard to all documents or all portions of documents withheld, provide the following information: (a) The reason for withholding the documents; (b) The statement for the basis of the claim of privilege, work product or other ground of non-disclosure; (c) A brief description of the document, including: (i) the date of the document; (ii) number of pages, attachments and appendices; the names of its author, authors or preparers and an identification by employment and title of each such person; (iv) the name of each person who was sent, or shown blind copies or carbon copies or has had access to or custody of the document together with an identification of each such person; (v) the present custodian; and (vi) the subject matter of the document and in the case of any document relating to or referring to a meeting or conversation, identification of such meeting or conversation. REQUEST TO PRODUCE 1. All documents identified in Defendants' Answers to Interrogatories. 2. All federal and state tax returns for The Smith Agency for 1995 to the present. 3. All documents evidencing any loss of revenue claimed as a result of the action of Plaintiff. 4. All 1099 worksheets for Thom Lewis. Respectfully submitted, FENSTERMACHER AND ASSOCIATES, P.C. By: Mark K. Emery Supreme Court I.D. #72787 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff DATED: October 10, 2001 4 CERTIFICATE OF SERVICE AND NOW, on this 10th day of October, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs Second Request for Production of Documents by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 FENSTERMACHER AND ASSOCIATES, P.C. By._ Mark K. Emery CERTIFICATE OF SERVICE AND NOW, on this 1?-) 2 day of November, 2001, I, Mark K. Emery, Esquire, hereby certify that I have served the foregoing Plaintiffs' Motion to Compel Answers to Interrogatories and Request for Production of Documents by mailing a true and correct copy by United States first class mail, addressed as follows: William A. Addams, Esquire Law Office of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 a ; FENSTERMACHER AND ASSOCIATES, P.C. By. ,. Mark K. Emery r cn G i? ` 47 'jif 1, THOM LEWIS, Plaintiff vs. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-315 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION TO COMPEL ORDER AND NOW, this 6" day of December, 2001, a rule is issued on the defendant, The Smith Agency, Inc., to show cause why the relief requested in the within motion ought not to be granted. This rule returnable fifteen (15) days after service. BY THE COURT, Kevy A. Hess, J. ?p ZIA9?-61 R S i 1 VN fo,S?P1?d l ?'j?.( F.\User FolderTirm DocsX&re o 52001\2025-lmsponse.Wd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants CIVIL ACTION - LAW NO. 01-315 DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS AND NOW, come the Defendants, The Smith Agency, Inc. and William J. Smith, by their attorney, William A. Addams, of the Law Office of Michael J. Hanft, and respond to Plaintiff's Motion to Compel as follows: Admitted. 2. Admitted. Denied. The Defendants were preparing responses prior to the issuance of the previous Order of Court. 4. The Defendants are compiling documents and information to respond to the Plaintiff s latest discovery requests and request an additional 30 days. LAW OFFICE OF MICHAEL J. HANFT By: 7G y r a?z William A. Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Defendants R ?v c3 0 0 2- - c u l< ?? CO ''Sm F\User FoldwW mDocs\Gwdocs2002\2025-lPetitim.Withdmw.wpd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff CIVIL ACTION - LAW V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants NO. 01-315 PETITION TO WITHDRAW AS COUNSEL AND NOW, comes Hanft & Knight, P.C., by William A. Addams, and petitions Your Honorable Court to withdraw as counsel for the Defendant and in support thereof asserts the following: 1. The Petitioner is Hanft & Knight, P.C., counsel for the Defendants in the above captioned matter. 2. Respondents are The Smith Agency, Inc., William J. Smith, and Plaintiff Thom Lewis. The Petitioner has represented the Defendants in these proceedings since February of 2001. The Defendants owe the Petitioner a substantial amount of attorney's fees, and despite Petitioner's repeated request for Defendants to pay the amount due, the Defendants have failed to do so. 5. The Rules of Professional Conduct adopted by Order of the Supreme Court of Pennsylvania provide, inter alia, that a lawyer may be granted permission to withdraw from employment if the representation will result in an unreasonable financial burden on the lawyer or if the lawyer is discharged. Pa. R.P. C. 1.16(6)(5). 6. The withdrawal of Petitioners as counsel for the Defendants will present no material adverse effect on the interests of the Defendants as this matter has not been listed for trial and the Defendants have ample time to employ replacement counsel, should they choose to do so. WHEREFORE, Petitioner respectfully requests that the Court enter an order granting leave to withdraw as counsel for the Defendants in this matter. HANFT & KNIGHT, P.C. 01 V- Willi& A Addams Attorney I.D. No. 06265 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorneys for Defendants VERIFICATION William A. Addams hereby verifies that the facts set forth in the foregoing Petition to Withdraw as Counsel are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsifications to authorities. William A. Ad dams DATE: ??-O? CERTIFICATE OF SERVICE AND NOW, this 17th day of September, 2002, I, Mary M. Price, an employee of Hanft & Knight, P.C., hereby certify that I have served a copy of the Petition to Withdraw as Counsel by mailing the same by United States mail, postage prepaid, to: The Smith Agency 457 Standale Plaza Grand Rapids, MI 49544 William J. Smith 457 Standale Plaza Grand Rapids, MI 49544 Mark K. Emery, Esquire FENSTERMACHER and ASSOCIATES, P.C. 5115 East Trindle Road Mechanicsburg, PA 17050 V J? SEP I 11902 rJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS, Plaintiff V. THE SMITH AGENCY, INC. and WILLIAM J. SMITH, Defendants CIVIL ACTION - LAW NO. 01-315 RULE AND NOW, this ZO r day of September, 2002, a Rule is entered upon the Respondents, The Smith Agency, Inc., William J. Smith, and Thom Lewis, to show cause why the relief requested in Petitioner's Petition to Withdraw as Counsel should not be granted. Said Rule returnable within twenty (20) days of service of this Order. By the Court, cc: /The Smith Agency, Inc. ,-William J. Smith / Mark K. Emery, Esquire, attorney for Plaintiff Thom Lewis William A. Addams, Esquire 0 q? VI; ?ASNN'ld 1UN100 aitr:i BJli^J vIi oad-1 ZO Zt1 ttw _tJ Thom vs Case No. 01-315 The Smith Agency, Inc, and William J. Smith Statement of Intention to Proceed To the Court: Thom Lewis, Plaintiff, intends to proceed with the above captioned matter. Print Name Mark K. Emery, Es g. Sign Name Date: 9/23/05 Attorneyfor Thom Lewis, Plaintiff Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Nere the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rulc230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. 13 J _ - . *Y"Wf?RI •???i:ti t,?z."?."-?.?- '?sRtl?"Ari.?^C'&1%fu4..:&.. . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS Plaintiff DOCKET NO. 01-315 vs. CIVIL ACTION - LAW THE SMITH AGENCY, and : WILLIAM J. SMITH : JURY TRIAL DEMANDED Defendant PETITION TO REINSTATE A TER?AJ ATED CASE PURSUANT TO PA RCP No. 230.2(d) AND NOW comes the Plaintiff, Thom Lewis, seeking reinstatement of the above referenced case as allowed under Pa. RCR No. 230.2(d)1. Additionally, Plaintiff asserts that because the Cumberland County Prothonotary did not serve notice of the Proposed Termination sixty (60) days prior to the actual termination, as required under Pa. RCP 230.2(b)(I f, there was not proper service under this rule. A .Statement of Intention to Proceed was filed by the Plaintiff, and time stamped with the Prothonotary prior to the termination of the case (and within the sixty (60) day window as required), but the Prothonotary has returned it to the Plaintiff, stating he is refusing to accept it. IN SUPPORT of this Motion to Reinstate a Terminated Case. Petitioner avers the following: 1 Pa. RCP 230.2(d)(l ){2) states: (dx 1) If an action has been terminated pursuant to this rule, an aggrieved party may petition the court to reinstate the action. (d) (2) If the petition is filed within thirty days after the entry of the order of termination on the docket, the court shall grant the petition and reinstate the action. 2 Pa. RCP 230.2(b)(1) states: (b)(1) The court shall serve the notice on counsel of record and on the parties if not represented, sixty days prior to the date of the proposed termination. The notice shall contain the date of the proposed termination and the procedure to avoid termination. STATEMENT OF FACTS 1. Petitioner, Thom Lewis, is a resident of Cumberland County, PA with an address of 263 Texaco Road, Mechanicsburg PA 17050. 2. Petitioner is the PLAINTIFF in the above referenced case, and was represented by Attorney Mark Emory. 3. On or about Sept 16, 2008 the Cumberland County Prothonotary served Mr. Emory with a Notice of Proposed Termination of Case; No O 1-315 with a proposed termination date of Oct. 28, 2008. (Attached as Exhibit A). Only forty-two (42) days passed from the date of service (Sept 16) to the termination date (Oct. 28). 4. This appears to be an error by the Prothonotary that is not allowed under PA RCP 230.2(b)(1), which requires sixty (60) days between the date of service and termination. (see footnote #2) 5. Mr. Emory subsequently forwarded that notice to Petitioner, but told Plaintiff he would need to represent himself in this matte?. 6. It became necessary for Petitioner to get another attorney to deal with Mr. Emory, who then assisted Petitioner in filing the Statement of Intention to Proceed. (Attached Exhibit B) 7. The Statement (Exhibit B) was filed and time stamped by the Prothonotary on Nov. 6, 2008, which is fifty-one (51) days after original service date of Sept 16, 2008, and still well within the sixty (60) days mandated under PA RCP 230.2(b)(1). 8. On or about Nov 6, 2008, The Cumberland County Prothonotary's Office returned Petitioners Statement of Intention to Proceed by first class mail, with a letter stating that the Notice was untimely (Attached Exhibit C) and the case was being terminated. 3 When Mr. Emory was asked why Petiticnaf needed to proceed pro se, he became belligerent towards Petitioner. Apparently, Mr. Emory mistakenly believes be is under some sod of investigation that was initiated by the Petitiaw. In either case, it is abundantly clear that Mr. Emory is not proceeding and Petitioner will need to either refam a different attorney or proceed pro se 2 9. Petitioner asserts that because PA RCP 230.2(b)(1) was not followed, (see footnote #2) the Prothonotary should not have the authority to terminate the case or refuse the Petitioner's Statement of intention to Proceed. Any Termination Order entered should be deemed void. 10. Petitioner requests that he be granted relief for the following three (3) reasons: a. Because he has petitioned for reinstatement within thirty (30) days, as allowed under Pa. R.C.P. No. 230.2(d)(2), (see footnote #1) and as per that rule, reinstatement should be GRANTED automatically. b. Improper service by the Prothonotary of the Proposed Terminatunder Pa. RCP 23 0.2(b)(1); or in the alternative, failure to allow shay days from the date of service until the actual date of termination, as required under the rule. c. The Cumberland County Prothonotary erred by refusing to accept the Statement of Intention to Proceed that was filed by the Petitioner on Nov. 6, 2008, because the statement was filed within sixty (60) days of the date that was listed on the Notice of Proposed Termination from the Prothonotary. MOTION TO REINSTAM CASE AND STRIKE THE TERMINATION ORDER WHEREFORE, for the above stated reasons, Petitioner respectfully requests this Honorable Court GRANT him the requested relief and REINSTATE the above referenced case and/or STRIKE the Termination Order, or in the alternative any other relief this Honorable Court may deem just and appropriate. Respectfully Submitted, k-=- Thom Lewis 263 Texaco Road Mechanicsburg, PA 17050-2629 717-795-9248 Office of the Prothonotary Cumberland Country, PA Curtis R. Long pcaottt?ry case # (s) 01-0315 05-34% NOTICE OF PROPOSED TERMINATION OF COURT CASE To: MARK K EMERY, !' Q. ,t+iorss?6?thosk farther"a:beaaseah docitet shows no. aedvity in the case for at least two years. You- may stop the court from termiaa - the case by Mft a Stateaeat of Intention to Proceed. The Statement of intention to Proceed should be fwd with the Prothonotary of the Court at: CUMBERLAND COUNTY PROTHONOTARY ONE COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6195 - .ff on or before er?,Z008. IF YOU FAIL TO. FILE THE REQUIRED STATEMENT OF IlNTEN ON TO PROCEED, THE CASE WILL BE TERMINATED September 1+6,,1008 Date of this Notice Curtis R-T6i&,?Yknotary °s:? ?.Ar ? the .::frd ?cr?uz: ot" a ,??,,;?? oa:•4--== the ward "Courts: Click on the word "Prothonotary". This will bring you to the "Prothonotary Hone Page". On the left hand Navigation Bar click on "Searchable Civil Records". Follow these ar,,,medo 0 R? c t -1 1 L A#""f A iF,. I lYi ?6 Thom Lewis vs Case No. 01-315 The Smith Agency Inc. and William J. Smith Statement of Intention to Proceed To the Court: Thom Lewis intends to proceed with the above captioned matter. Print Name J h{ Sign Name r Date: At 2, D 0,9 Attorney for 7-A9 Llij L,. + -1. l 5 Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is-with the parties. If the parties do riot wish-to pursue the case, they wilf take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a patty believes that it should not have been terminated, that parry may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. t? 1? s4ff ?4vwJ Curtis R. Long Prothonotary Office of the Protbonotarp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor Cumberianb Countp Date NOVEMBER 6, 2008 TO: TOM LEWIS AND/OR ATTY BAILEY We are returning the enclosed transaction(s) for the following reason(s) : • Incorrect fee received $ should be $ • Need signature • Must provide` duplicate copies of the proposed judgment, decree or order and stamped envelopes addressed to the said persons and/or attorneys for notification. Please note: This notification is not a substitute for service of process. Other reasons : WE CAN NOT ACCEPT THE STATEMENT OF INTENTION TO PROCEED. THE LAST DAY TO FILE WAS OCTOBER 281 2008. WE RECEIVED YOUR FILING ON NOVEMBER 6, 2008. I AM RETURNING THE PAPERWORK. Note: All transactions directed to this office must include a SELF ADDRESSED ENVELOPE WITH POSTAGE if a return receipt or certificate is desired. PAYMENT or FEE at time of filing will be required in every instance. Curtis R. Long, Prothonotary Deputy Prothonotary A0,6-d %% 6 % One Courthouse Square • Carlisle. Pennsylvania 17013 • 17171 7an..At01Z . lc-- -,+-% %A- --- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS Plaintiff vs. THE SMITH AGENCY, and WILLIAM J. SMITH Defendant DOCKET NO. 0l -315 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 2& day of November, 2008, I, Thom Lewis, do hereby certify I have served a true and correct copy of the Motion to Reinstate A Terminated Case Pursuant to PA RCP 230.2(a by mailing the same by United States mail, postage prepaid to: The Smith Agency 457 Standale Plaza Grand Rapids, MI 49544 William Smith 457 Standale Plaza Grand Rapids, MI 49544 Thom ewis 263 Texaco Road Mechanicsburg, PA 17050 717-795-9248 4 r 4- - 1P C..) `O " .e. G 6) NOV 2 1 2006E IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA THOM LEWIS Plaintiff vs. THE SMITH AGENCY, and WILLIAM J. SMTTH Defendant DOCKET NO. 01-315 CIVIL ACTION - LAW JURY TRIAL DEMANDED O_ AND NOW, this Zf & day of2008, upon consideration of Plaintiffs Petition to Reinstate a Terminated Case Pursuam to PA RCP 230.2(d)- said motion is GRANTED, the above referenced case is reinstated and the Termination Order is Stricken. J 4 f+?vu7 r uv ,s Curtis R. Long Prothonotary office of the Protbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 01-.31,5 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573 David D. Bueff 1Protlionotary KirkS. Sohonage, ESQ. Solicitor Renee X Simpson T` Deputy Prothonotary Irene E. Worrow 2 "d Deputy Prothonotary Office of the Prothonotary Cumberland County, Tennsy(vania 61- CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 2S T" DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, PA 17013 9 (717)240-6195 * Fa.A?(717) 240-6573