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HomeMy WebLinkAbout01-6186GROFF TRACTOR & EQUIPMENT, INC.,: Plaintiff : ; V. FIVE-R-EXCAVATING, 1NC., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS To: Prothonotary Issue a Writ of Summons in Civil Action - Law on behalf of the Plaintiff Groff Tractor & Equipment, Inc., 6779 Carlisle Pike, Mechanicsburg, PA 17055, and against Defendants Five-R-Excavating, Inc., Off Route 711 South, New Florence, PA; Pathfinder Solutions, Ltd., 16 Linn Farm Road, Canonsburg, PA; and Donald M. Olmes a/Ma Rusty Olmes, 16 Lima Farm Road, Canonsburg, PA. McNEES WALLACE 8,: NURICK LLC Roy C. Fazio I.D. No. 86994 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Date: October 25, 2001 Attorneys for Plaintiff McNI~I~, WALLACE & NURICK Commonwealth of Pennsylvania County of Cumberland GROFF TRACTOR & EQUIPMENT, INC. FIVE-R-EXCAVATING, INC. Off Route 711 South New Florence, PA PATHFINDER SOLUTIONS, LTD. , DONALD M. OLMES a/k/a RUSTY OLMES 16 Linn Farm Road Canonsburg, PA Court of Conunon Pleas 01-6186 Civil Term No ...................................... 19 .... Civil Actio - Law In ............................................. Five_ R_Excavat _iD_il' thc., ~ pabb_fidder-S0.1utions, 'to -~ff/&-~f~i-~-¥~s ....................... You are hereby notified that Groff Tractor & Equipment, Inc. the Plain6f[ has commenced an action in ........ Ci%/ql-_~C~OB_J~/ ............................. against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date ..... -Oqg 9~- --r- - -2-9~- - -299-1- ...... ~9 .... Prothonotary GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. FIVE-R-EXCAVATING, INC.., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6186 CIVIL ACTION - LAW PLAINTIFF'S MOTION TO COMPEL DISCOVERY AGAINST DEFENDANTS PATHFINDER SOLUTIONS, LTD. AND DONALD M. OLMES, INDIVIDUALLY Plaintiff, Groff Tractor & Equipment, Inc., by and through its attorneys, McNees, Wallace & Nurick LLC, moves this Court to compel discovery. In support of its Motion, Plaintiff states the following: 1. Plaintiff, Groff Tractor & Equipment Co., Inc. ("Groff") initiated this action by filing a Writ of Summons against Defendants, Five-R-Excavating, Inc., Pathfinder Solutions, Ltd. ("Pathfinder") and Donald M. OImes a/k/a Rusty Olmes ("Olmes") on October 21, 2001. (A true and correct copy of the Writ of Summons is attached hereto as Exhibit "A.") 2 On November 7, 2001, Defendants Pathfinder and Groff were served with Requests for Production of Documents and Interrogatories. (True and correct copies of these discovery requests are attached hereto as Exhibit "B.") 3. Defendants Pathfinder's and Groff's responses to Plaintiff's discovery requests were due on or about December 10, 2001. 4. On December 12, 2001, Plaintiff mailed a letter to Defendants Pathfinder and Groff requesting responses to pre-complaint discovery, and Defendants failed to respond. (A copy of the December 12, 2001 letter is attached hereto as Exhibit "C.") 5. By letter dated January 11, 2002, Plaintiff advised Defendants Pathfinder and Groff, as well as Attorney Michael McGreal, who in good faith is believed to be counsel for Defendant Pathfinder Solutions, that responses to the outstanding discovery requests were overdue and stated that if Defendants failed to serve full and complete answers by January 21, 2002, a Motion to Compel would be filed. Defendants Pathfinder and Groff, as well as Attorney McGreal, failed to respond to Plaintiff's letter of January 11,2002.~ (A copy of the January 11, 2002 letter is attached hereto as Exhibit "D.") 6. Plaintiff received no responses to its correspondence of December 12, 2001 and January 11, 2002. 7. To date, Defendants Pathfinder and Olmes have served no responses to Plaintiff's pre-complaint discovery requests. 8. Defendant is in violation of Pa. R. Civ. P. 4006(a)(2) and 4009.12(a) by failing to respond or object to the Discovery requests within thirty (30) days. 9. The Court has the authority, pursuant to Pa. R. Civ. P. 4019(a)(1)(i) and (vii), and Pa. R. Civ. P. 4019(c)(5) to compel Defendants' responses to Plaintiff's discovery requests. WHEREFORE, Plaintiff respectfully requests that the Court enter an Order directing that Defendants respond fully and completely to Plaintiff's discovery requests within the deadline established by this Court, and providing that if either of the Defendants fails to ~ The firm of Bunson & Stevenson called Groff's counsel and stated that Attorney McGreal was no longer associated with the firm and provided Groff's counsel with a phone number for Attorney McGreal. However, Attorney McGreal failed to respond to a telephone message left by Groff's counsel. comply with the Court's Order, each Defendant shall be subject to appropriate sanctions, pursuant to Pa. R. Civ. P. 4019, and the imposition of counsel fees and costs related to this Motion. Dated: January 23, 2002 MCNEES WALLACE AND NURICK LLC By: Roy C. Fazio, Esquire Attorney I.D. No. 86994 Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Attorneys for Plaintiff, Groff Tractor & Equipment, Inc. Exhibit A GROFF TRACTOR & EQUIPMENT, INC.,: Plaintiff : FIVE-R-EXCAVATING, INC., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : NO. : .. .- : : CIVIL ACTION- LAW To: Prothonotary PRAECIPE FOR WRIT OF SUMMONS Issue a Writ of Summons in Civil Action - Law on behalf of the Plaintiff~rol~rra~i~r & Equipment, Inc., 6779 Carlisle Pike, Mechanicsburg, PA 17055, and against Defendants Five-R-Excavating, Inc., OffRoute 711 South, New Florence, PA; Pathfinder Solutions, Ltd., 16 Linn Farm Road, Canonsburg, PA; and Donald M. Olmes a/k/a Rusty Olmes, 16 Linn Farm Road, Canonsburg, PA. McNEES WALLACE & NURICK LLC Roy C. Fazio I.D. No. 86994 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Date: October 25, 2001 Attorneys for Plaintiff Exhibit B GROFF TRACTOR & EQUIPMENT, : Plaintiff : FIVE-R-EXCAVATING, 1NC., : PATHFINDER SOLUTIONS LTD., : and DONALD M. OLMES, a/k/a : RUSTY OLMES, INDIVIDUALLY, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION LAW PLAINTIFF'S PRE-COMPLAINT INTERROGATORIES DIRECTED TO DEFENDANTS PATHFINDER SOLUTIONS LTD. AND DONALD M. OLMES a/k/a RUSTY OLMES TO: Pathfinder Solutions Ltd. and Donald M. Olmes a/k/a Rusty Olmes, Defendants PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure, Rules 4001, 4003.1-.3,-.4,-.5, 4005 and 4006, to serve upon the undersigned, within thirty (30) days from service hereof, your Answers in writing and under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your Answers to said Interrogatories and the time of the trial of this case you or anyone acting on your behalf learn the identity and whereabouts of any other witnesses not identified in your said Answers, or if you or anyone on your behalf obtain or become aware of additional requested information not supplied in your Answers, you shall promptly furnish the same to the undersigned by Supplemental Answers. These Interrogatories are addressed to you as a party to this action and your Answers shall be based upon the information known to you or your attorney or other representatives. DEFINITIONS AND INSTRUCTIONS A. "Document" means the original and any non-identical copy of any draft of any written, printed, recorded, graphic, or photographic matter or sound reproduction, however produced, including but not limited to correspondence, telegrams, corporate minutes or committee notes, intraoffice memoranda, e-mails, contracts, diaries, logs, notes of meetings or conversations, official forms, paperwork, memoranda, calendars, tape recordings, computer stored information capable of reproduction, and any and all other documents prepared or received by you or in your possession, custody or control, or the identity, existence, or location of which is known by you. B. "Person" means any individual or any legal entity including but not limited to any corporation, partnership, proprietorship, association, or joint venture. C. "Identify" or "Identity" when used in reference to a person means to state the person's full name, present address and, if a natural person, his present or last known business affiliation and his position or business affiliation at the time in question. D. "Identify" or "Identity" when used in reference to a document means to state the date, author, subject matter and type of document or some other means of identifying it and its present location or custodian. If such document was but is no longer in your possession or subject to your control, state what disposition was made of it. E. "Identify" or "Identity" when used in reference to an oral communication means to state its description (e.g., in person, telephone, etc.), its date, the place or places at which it occurred, the identity of all Persons participating in or present during such communication, the substance of what was said and by whom, and its purpose. F. If you claim that the subject matter of the document or oral communication is privileged, you need not set forth a brief statement or the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. G. "Statement" means the following: (1) A written statement signed or otherwise adopted or approved by the person making it; or (2) Stenographic, mechanical, electrical or other recording, or a transcription thereof, such as a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. H. "Five-R" refers to Defendant Five-R-Excavating, Inc., its directors, officers, agents, employees, and all other persons acting on its behalf. I. "Tuckcora" refers to Tuckcora Enterprises, Inc., its directors, officers, agents, employees, and all other persons acting on its behalf. J. "GroW' refers to GroffTractor & Equipment, Inc., its directors, officers, agents, employees, representatives, consultants, and all other persons acting on its behalf, including its attorneys. K. "Pathfinder" refers to Defendants Pathfinder Solutions, Ltd. and/or Donald M. Olmes aJk/a Rusty Olmes, its directors, officers, agents, employees, and all other persons acting on its behalf. L. "Project" refers to the Frick Park Nine Mile Run project whereby Five-R Excavating was the contractor and Tuckcora, subcontractor. CAUSE OF ACTION The nature of this cause of action includes, but is not limited to, breach of contract, breach of implied contract, unjust enrichment, and breach to a third party beneficiary arising out Plaintiffs rental of construction equipment to Defendant for work related to the Frick Park Nine Mile Run Project. INTERROGATORIES Identify all officers, directors, and shareholders of Pathfmder since its incorporation and the percentage of ownership of each shareholder. ANSWER: Identify the relationship or any previous relationship that Pathfinder or Donald (a/k/a Rusty) Olmes had or has with Five-R, including but not limited to: (a) any common business ownership interests; (b) any financial arrangements related to the Project; (c) business dealings; (d) relationship of any subsidiaries, affiliates, or other parent business entity; and (e) any business understanding related to Groff or Tuckcora or the Project. ANSWER: o Identify the relationship or any previous relationship that Pathfinder or Donald (Mc/a Rusty ) Olmes had or has with Tuckcora, including but not limited to: (a) any common business ownership interests; (b) any financial arrangements related to the Project; (c) business dealings; (d) relationship of any subsidiaries, affiliates, or other parent business entity; and (e) any business understanding related to Groff or Tuckcora on the Project. ANSWER: Identify any and all ownership interest(s) that Pathfinder had or has in Five-R or Tuckcora, including but not limited to: (a) common officers or directors; (b) business ownership interests; (c) shares or stock held; and (d) other financial arrangements constituting ownership2 ANSWER: o Describe all details of the arrangement between Five-R and Pathfinder Solutions, Inc. and/or Donald (a/k/a Rusty) Olmes for payments to Groff, including but not limited to: (a) names of all individuals with knowledge of the arrangement; (b) nature and extent of communications related to the arrangement; (c) Identify all documents constituting any arrangement; (d) scope of the arrangement; and (e) date of said arrangements. ANSWER: (c) (d) ANSWER: Identify each and every reason why Pathfinder Solutions, Ltd. and its credit facilities were utilized on the Project to make payment on behalf of Five-R's subcontractor, Tuckcora, to Groff in the mount of $9,402.52 on July 3, 2000, and $11,130 on July 20, 2000. Kindly identify: (a) who directed Pathfinder Solutions to make such payments to Groff; 0o) all communications which Pathfinder Solutions had with Five-R or Tuckcora related to such arrangement; the date when Pathfinder first became aware that Tuckcora was having financial difficulty making its payments to Groff; and nature and full extent of the utilization of Pathfinder Solutions' resources on the Project. Identify any and all consideration, including but not limited to, any ownership interest in any company that Pathfinder Solutions, Inc or Donald (a/k/a Rusty) Olmes received in exchange for said entities making payment to Groff for monies owed by Tuckcora to Groff, related to the Project. ANSWER: Identify each and every reason why Pathfinder used its credit facilities and its Case Advantage Account to pay Groff for rentals and equipment which Groffprovided to the Project, including but not limited to: (a) all communications related to such payment; (b) all contracts or agreements pertaining thereto; (c) all consideration Pathfinder received by Five-R and/or Tuckcora in exchange for such payments; and (d) nature and scope of any agreement thereto. ANSWER: Identify all involvement, including but not limited to all financial resources, that Pathfinder used in the organization and capitalization of the business entity known as Tuckcora for work related to the Project. ANSWER: 10. Identify whether Pathfinder made any implied or express promises to Groff related to its agreement to pay Groff for money owed by Tuckcora to Groff. Kindly identify: (a) nature and extent of all promises; (b) individuals agreeing to such promises; and (c) all documents pertaining thereto. ANSWER: McNEES WALLACE & NURICK LLC Roy C. Fazio I.D. No. 86994 Diane M. Tokarsky I.D. No. 44369 100 Pine Slxeet P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff GroffTractor & Equipment, Inc. Dated: October 25, 2001 GROFF TRACTOR & EQUIPMENT, INC., Plaintiff FIVE-R-EXCAVATING, INC., PATHFINDER SOLUTIONS LTD., and DONALD M. OLMES, a/k/a RUSTY OLMES, INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION LAW PLAINTIFF'S PRE-COMPLAINT REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS PATHFINDER SOLUTIONS LTD. AND DONALD M. OLMES a/k/a RUSTY OLMES TO: PATHFINDER SOLUTIONS LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Defendants Pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, Plaintiff Groff Tractor & Equipment, Inc. (hereinafter "Grofff), requests that Defendants, Pathfinder Solutions Ltd. and Donald M. Olmes a/k/a Rusty Olmes (hereinafter "Defendant") produce the documents hereinafter described and permit Plaintiff, through its attomeys, to inspect them and copy such of them as they may desire. Plaintiffrequests that the documents be made available for this inspection at the offices of McNees Wallace & Nurick LLC, counsel for Plaintiff, or at such other location as may be mutually agreed upon, but not later than thirty (30) days after service of these requests. This request is intended to cover all documents in the possession, custody and control of Defendant, its agents, employees, and attorneys. If documents requested are outside the possession, custody or control of Defendant, but Defendant has knowledge of the person or entity in whose custody, control or possession the document resides, it is required to set forth that information. DEFINITIONS A. "Document" as used herein shall mean the original and any copy, marked-up copy; revision, amendment, modification, non-identical copy and/or draft, of any written, printed, typed, drawn, or other graphic matter of any kind or nature, however produced or reproduced, whether or not sent or received, including without limitation: memoranda, reports, computations, estimates, communications, financial repons or statements, notes, transcripts, letters, correspondence, intra or inter office communications, envelopes, telegrams, cables, tele messages, e-mails, messages, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, minutes, notes, notations, tabulations, studies, analyses, reports, evaluations, projections, work papers, summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings, blue prints, modules, specifications, data, sketches, maps, boring logs, soils tests, soils charts, soils reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices, checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or tape recordings of meetings or conferences, summaries or reports of investigations, opinions or reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts, articles, magazines, newspapers, booklets, cimulars, bulletins, press releases, notices, instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion picture film, microfilms, photographs, tapes or other recordings, punch cards, computer programs, magnetic tapes, discus, data cells, drams, printout and other data computations from which information can be obtained, and marginal comments appearing on any documents, and all other writings in the possession, custody or control of Plaintiff or its agents, officers, employees or attorneys. B. 'Grof~' shall mean Plaintiff, Groff Tractor & Equipment, Inc., and any or all individuals acting or purporting to act on their behalf. C. "Five-R" shall mean Five-R-Excavating, Inc., and any or all individuals acting or purporting to act on its behalf. D. "Defendant" shall mean Defendant Five-R-Excavating, and any or all individuals acting or purporting to act on its behalf. E. 'Tuckcora' shall mean Defendant Tuckcora Enterprises, Inc., its directors, officers, agents, employees, and ail other persons acting on its behalf. F. "Pathfinder" shall mean Defendant Pathfinder Solutions, Ltd. and/or Donald M. Olmes a/k/a Rusty Olmes. G. "Project" means the Frick Park Nine Mile Run project subcontracted by Five-R to Tuckcora at various times on which Groff supplied rental equipment. CAUSE OF ACTION The nature of this cause of action includes, but is not limited to, breach of contract, breach of implied contract, unjust enrichment, and breach to a third party beneficiary arising out of Plaintiffs rental of construction equipment to Defendant for work related to the Frick Park Nine Mile Run Project. INSTRUCTIONS 1. This request is continuing in nature and requires you to file supplemental responses if you obtain further or different information and/or documents after your initial response. 2. If any documents required to be provided by this request are withheld upon a claim of privilege, identify with specificity said document and state the basis for any such claims. 3. When a document is requested herein, Defendant shall produce the original of such document, if available, and the following: (a) Every copy of each document which is not an exact duplicate of the document which is produced, (b) Every copy which has any writing, figure, notation or the like on it, (c) All drafts of each document, (d) All attachments or enclosures with each document, and (e) Every document referred to in such document. 4. It is requested that all documents be produced in the form and in the same order within each file in which they existed prior to the production in that the file folders, boxes, or other containers or bindings in which such documents are found are also to be produced intact, including the titles, labels or other descriptions of each such folder, box, or other binding or container and that document be labeled to designate which request to which they are responsive. 5. If an objection is made to any of the requests, whether in whole or in part, respond to as much of the request concerned as to which no objection is made. 6. The masculine shall be deemed to include the feminine, and the feminine deemed to include the masculine. 7. The singular shall include the plural, and the plural, the singular. DOCUMENTS REQUESTED 1. All documents that constitute any agreement whatsoever between Five-R and Pathfinder Solutions, Ltd. related to the Project. All documents that were relied upon by Pathfinder in making payment to Groffon the Project. 3. All documents that constitute any business relationship between Pathf'mder, and any Defendant or Tuckcora, related to the Project. All documents related to financing or credit extended to Tuckcora by Five-R or Pathfinder. 5. All written or typed documents originating fi:om Tuckcora and/or Pathfinder which relates to payments made to Groff on the Project. 6. All documents pertaining to communications fi:om Five-R to Pathfinder or Donald (a/k/a Rusty) Olmes relating to the Project. 7. All meeting minutes or records of telephone conversations related to payment to Gruff for work related to the Project. 8. All e-mails, memoranda, or any other internal document pertaining to any communication of any sort related to Groff and/or Pathfinder with respect to the Project. 9. All documents related to any communication between Shirley Ritenour, President of Five-R, and Pathfinder related to Tuckcora or Groffwith respect to the Project. I 0. All documents pertaining to any ownership interest that Five-R or Shirley Ritenour had or has in Tuckcora, Pathfinder, or any business entity partially or wholly owned by Donald Olmes. 11. All documents that relate to any agreement or communication in any manner whatsoever, whereby Five-R or Shirley Ritenour determined that joint checks would not be issued to Groff, but instead Five-R or Shirley Ritenour directed Groffto use Pathfinder's credit facilities for monies owed to Groff as a result of equipment rented by Tuckcora, which was used on the Project. 12. All documents which relate in any manner to payments made by Path£mder to Groff. 13. All documents which relate in any manner to the Project. Respectfully submitted, McNEES, WALLACE & NURICK By R3y ~. Faz~o Atty I.D. No. 86994 Diane M. Tokarsky Atty I.D. No. 44369 100 Pine Sl~eet P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5354 Attorneys for Plaintiff, GroffTractor & Equipment, Inc. Dated: October 25, 2001 Exhibit C McNees Wallace & Nurick attorneys at law RoY C. FAZ~O DIRECT DIAL: (717) 237-5298 E-MAIL ,ADDRESS: RFAZlO~MWN.COM December 12, 2001 Rusty OImes Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 RE: Groff Tractor & Equipment, Inc. v. Pathfinder Solutions, LTD., and Donald M. Olmes a/k/a Rusty Olmes, Individually Dear Mr. Olmes: Please be advised that we represent Groff Tractor & Equipment, Inc. We served you with discovery requests on November 7, 2001. To date, we have not received responses to those requests nor have you requested an extension of time in which to respond. We assume that this is an oversight. In the event that you do not respond within ten (10) days of receipt of this letter, we will be forced to seek a Court Order to compel your answers to said requests. In the event that you are represented by counsel, please notify me of same. Thank you. Very truly yours, McNEES WALLACE & NURICK LLC By Roy C. Fazio jmc cc: Michael Hirsch 100 PINE STREET · HARRISSURG, PA 17108-1166 · TELl 717.232.8000 · FAX: 717.237.5300' WWW.MWN.COM COLUMBUS, OH · HAZLETON, PA · WASHINGTON, DC Exhibit D McNees Wallace & Nurick attorneys at law ROY C. FAZIO DIRECT DU~.: (717) 237-5298 E-MAIL ADDRESS: RFAZlO~MWN.CCM January 11,2002 VIA FACSIMILE & FIRST-CLASS MAIL Michael McGreal, Esquire Bunson & Stevenson 666 Washington Road Pittsburgh, PA 15228-1913 Donald Olmes PathfinderSolutions, lnc. 16 Linn Farm Road Canonsbu~, PA 15317 RE: Groff Tractor & Equipment, Inc. v. Five-R Excavatiqg, Inc and Pathfinder Solutions, Ltd. and Donald M. Olmes a/k/a Rusty Olmes, Individually Dear Messrs. McGreal and Olmes: Please note that this office represents Groff Tractor & Equipment (Grof0 in the above matter. We filed a Writ of Summons on October 29, 2001 which was served, along with pre-complaint discovery, on Mr. Donald Olmes and Pathfinder Solutions, Inc. on November 7, 2001. On December 12, 2001, we sent a letter to the attention of Mr. Olmes at Pathfinder Solutions, Inc. requesting a response to said information. Mr. OImes and Pathfinder have failed to respond to our discovery request. As the two of you are representing Mr. Olmes in other matters, we request that you advise us if you are counsel to Mr. Olmes and/or Pathfinder Solutions, Ltd. in the above- referenced matter. In the event that the discovery is not answered by you or Mr. Olmes within ten (10) days from the date above, we will seek a court Order to compel said discovery. As a courtesy, we have copied Mr. Olmes in the event that your representation does not extend to the aforementioned matter. I look forward to hearing from you and/or Mr. Olmes. Thank you for your cooperation. Very truly yours, McNEES WALLACE & NURICK LLC Roy C. Fazio jmc cc: Michael Hirsch PO Box 1166 · 100 PINE STREET ° HARRISBURG, PA 17108-1166 ''rEL; 717.232.8000 · FAX: 717,237.5300 · WWW. MWN.COM COLUMBUS, OH · HAZLETON, PA · WASHINGTON, DC CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this day served a true and correct copy of the foregoing Motion to Compel Discovery upon the person indicated by first- class mail, postage prepaid: Donald M. Olmes of Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 Dated: January 23, 2002 GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-6186 FIVE-R-EXCAVATING, INC.., : CIVIL ACTION - LAW PATHFINDER SOLUTIONS, LTD. and : DONALD M. OLMES a/k/a RUSTY : OLMES, Individually, : Defendants : PLAINTIFF'S MOTION TO COMPEL DISCOVERY AGAINST DEFENDANTS PATHFINDER SOLUTIONS, LTD. AND DONALD M. OLMES, INDIVIDUALLY Plaintiff, Groff Tractor & Equipment, Inc., by and through its attorneys, McNees, Wallace & Nurick LLC, moves this Court to compel discovery. In support of its Motion, Plaintiff states the following: 1. Plaintiff, Groff Tractor & Equipment Co., Inc. ("Groff") initiated this action by filing a Writ of Summons against Defendants, Five-R-Excavating, Inc., Pathfinder Solutions, Ltd. ("Pathfinder") and Donald M. Olmes a/k/a Rusty OImes ("Olmes") on October 21, 2001. (A true and correct copy of the Writ of Summons is attached hereto as Exhibit "A.") 2 On November 7, 2001, Defendants Pathfinder and Groff were served with Requests for Production of Documents and Interrogatories. (True and correct copies of these discovery requests are attached hereto as Exhibit "B.") 3. Defendants Pathfinder's and Groffs responses to Plaintiff's discovery requests were due on or about December 10, 2001. 4. On December 12, 2001, Plaintiff mailed a letter to Defendants Pathfinder and Groff requesting responses to pre-complaint discovery, and Defendants failed to respond. (A copy of the December 12, 2001 letter is attached hereto as Exhibit "C.") 5. By letter dated January 11, 2002, Plaintiff advised Defendants Pathfinder and Groff, as well as Attorney Michael McGreal, who in good faith is believed to be counsel for Defendant Pathfinder Solutions, that responses to the outstanding discovery requests were overdue and stated that if Defendants failed to serve full and complete answers by January 21, 2002, a Motion to Compel would be filed. Defendants Pathfinder and Groff, as well as Attorney McGreal, failed to respond to Plaintiff's letter of January 11, 2002.4 (A copy of the January 11, 2002 letter is attached hereto as Exhibit "D.") 6. Plaintiff received no responses to its correspondence of December 12, 2001 and January 11, 2002. 7. To date, Defendants Pathfinder and Olmes have served no responses to Plaintiff's pre-complaint discovery requests. 8. Defendant is in violation of Pa. R. Civ. P. 4006(a)(2) and 4009.12(a) by failing to respond or object to the Discovery requests within thirty (30) days. 9. The Court has the authority, pursuant to Pa. R. Civ. P. 4019(a)(1 )(i) and (vii), and Pa. R. Civ. P. 4019(c)(5) to compel Defendants' responses to Plaintiff's discovery requests. WHEREFORE, Plaintiff respectfully requests that the Court enter an Order directing that Defendants respond fully and completely to Plaintiff's discovery requests within the deadline established by this Court, and providing that if either of the Defendants fails to I The firm of Bunson & Stevenson called Groff's counsel and stated that Attorney McGreal was no longer associated with the firm and provided Groffs counsel with a phone number for Attorney McGreal. However, Attorney McGreal failed to respond to a telephone message left by Groff's counsel. comply with the Court's Order, each Defendant shall be subject to appropriate sanctions, pursuant to Pa. R. Civ. P. 4019, and the imposition of counsel fees and costs related to this Motion. Dated: January 23, 2002 MCNEES WALLACE AND NURICK LLC By: Roy C. Fazio, Esquire Attorney I.D. No. 86994 Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Attorneys for Plaintiff, Groff Tractor & Equipment, Inc. Exhibit A GROFF TRACTOR & EQUIPMENT, INC.,: Plaintiff Vo FIVE-R-EXCAVATING, INC., : PATHFINDER SOLUTIONS, LTD. and : DONALD M. OLMES afl, la RUSTY : OLMES, Individually, : Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW To: Prothonotary PRAECIPE FOR WRIT OF S~ONS Issue a Writ of Summons in Civil Action - Law on behalf of the Plaintiff'~roiL~ra~0r & Equipment, Inc., 6779 Carlisle Pike, Mechanicsburg, PA 17055, and against Defendants Five-R-Excavating, Inc., Off Route 711 South, New Florence, PA; Pathf'mder Solutions, Ltd., 16 Linn Farm Road, Canonsburg, PA; and Donald M. Olmes a/k/a Rusty Olmes, 16 Linn Farm Road, Canonsburg, PA. McNEES WALLACE & NURICK LLC Roy C. Fazio I.D. No. 86994 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Date: October 25, 2001 Attorneys for Plaintiff Exhibit B GROFF TRACTOR & EQUIPMENT, INC., Plaintiff FIVE-R-EXCAVATING, 1NC., PATHFINDER SOLUTIONS LTD., and DONALD M. OLMES, a/Fda RUSTY OLMES, INDIVIDUALLY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION LAW PLAINTIFF'S PRE-COMPLAINT INTERROGATORIES DIRECTED TO DEFENDANTS PATHFINDER SOLUTIONS LTD. AND DONALD M. OLMES a/k/a RUSTY OLMES TO: Pathfinder Solutions Ltd. and Donald M. Olmes a/k/a Rusty Olmes, Defendants PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure, Rules 4001, 4003.1-.3,-.4,-.5, 4005 and 4006, to serve upon the undersigned, within thirty (30) days from service hereof, your Answers in writing and under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your Answers to said Interrogatories and the time of the trial of this case you or anyone acting on your behalf learn the identity and whereabouts of any other witnesses not identified in your said Answers, or if you or anyone on your behalf obtain or become aware of additional requested information not supplied in your Answers, you shall promptly furnish the same to the undersigned by Supplemental Answers. These Interrogatories are addressed to you as a party to this action and your Answers shall be based upon the information known to you or your attorney or other representatives. DEFINITIONS AND INSTRUCTIONS A. "Document" means the original and any non-identical copy of any draft of any written, printed, recorded, graphic, or photographic matter or sound reproduction, however produced, including but not limited to correspondence, telegrams, corporate minutes or committee notes, intraoffice memoranda, e-mails, contracts, diaries, logs, notes ofmectings or conversations, official forms, paperwork, memoranda, calendars, tape recordings, computer stored information capable of reproduction, and any and all other documents prepared or received by you or in your possession, custody or control, or the identity, existence, or location of which is known by you. B. "Person" means any individual or any legal entity including but not limited to any corporation, partnership, proprietorship, association, or joint venture. C. "Identify" or "Identity" when used in reference to a person means to state the person's full name, present address and, if a natural person, his present or last known business affiliation and his position or business affiliation at the time in question. D. "Identify" or "Identity" when used in reference to a document means to state the date, author, subject matter and type of document or some other means of identifying it and its present location or custodian. If such document was but is no longer in your possession or subject to your control, state what disposition was made of it. E. "Identify" or "Identity" when used in reference to an oral communication means to state its description (e.g., in person, telephone, etc.), its date, the place or places at which it occurred, the identity of all Persons participating in or present during such communication, the substance of what was said and by whom, and its purpose. '-2 F. If you claim that the subject matter of the document or oral communication is privileged, you need not set forth a brief statement or the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. G. "Statement" means the following: (1) A written statement signed or otherwise adopted or approved by the person making it; or (2) Stenographic, mechanical, electrical or other recording, or a transcription thereof, such as a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. H. "Five-R" refers to Defendant Five-R-Excavating, Inc., its directors, officers, agents, employees, and all other persons acting on its behalf. I. "Tuckcora" refers to Tuckcora Enterprises, Inc., its directors, officers, agents, employees, and all other persons acting on its behalf. J. "GrolT' refers to Groff Tractor & Equipment, Inc., its directors, officers, agents, employees, representatives, consultants, and all other persons acting on its behalf, including its attorneys. K. "Pathfinder" refers to Defendants Pathfinder Solutions, Ltd. and/or Donald M. Olmes a/k/a Rusty Olmes, its directors, officers, agents, employees, and all other persons acting on its behalf. L. "Project" refers to the Frick Park Nine Mile Run project whereby Five-R Excavating was the contractor and Tuckcora, subcontractor. CAUSE OF ACTION The nature of this cause of action includes, but is not limited to, breach of contract, breach of implied contract, unjust enrichment, and breach to a third party beneficiary arising out Plaintiff's rental of construction equipment to Defendant for work related to the Frick Park Nine Mile Run Project. INTERROGATORIES Identify all officers, directors, and shareholders of Pathfinder since its incorporation and the percentage of ownership of each shareholder. ANSWER: Identify the relationship or any previous relationship that Pathfinder or Donald (a/k/a Rusty) Olmes had or has with Five-R, including but not limited to: (a) any common business ownership interests; (b) any financial arrangements related to the Project; (c) business dealings; (d) relationship of any subsidiaries, affiliates, or other parent business entity; and (e) any business understanding related to Groffor Tuckcora or the Project. ANSWER: Identify the relationship or any previous relationship that Pathfinder or Donald (a/k/a Rusty ) Olmes had or has with Tuckcora, including but not limited to: (a) any common business ownership interests; (b) any financial arrangements related to the Project; (c) business dealings; (d) relationship of any subsidiaries, affiliates, or other parent business entity; and (e) any business understanding related to Groffor Tuckcora on the Project. ANSWER: Identify any and all ownership interest(s) that Pathfinder had or has in Five-R or Tuckcora, including but not limited to: (a) common officers or directors; (b) business ownership interests; (c) shares or stock held; and (d) other financial arrangements constituting ownership. ANSWER: Describe all details of the arrangement between Five-R and Pathfinder Solutions, Inc. and/or Donald (a/kfa Rusty) Olmes for payments to Groff, including but not limited to: (a) names of all individuals with knowledge of the arrangement; (b) nature and extent of communications related to the arrangement; (c) Identify all documents constituting any arrangement; (d) scope of the arrangement; and (e) date of said arrangements. .A~SWER: Identify each and every reason why Pathfinder Solutions, Ltd. and its credit facilities were utilized on the Project to make payment on behalf of Five-R's subcontractor, Tuckcora, to Groffin the mount of $9,402.52 on July 3, 2000, and $11,130 on July 20, 2000. Kindly identify: (a) who directed Pathfinder Solutions to make such payments to Groff; Co) (c) .(d) ANSWER: all communications which Pathfinder Solutions had with Five-R or Tuckcora related to such arrangement; the date when Pathfinder first became aware that Tuckcora was having financial difficulty making its payments to Groff; and nature and full extent of the utilization of Pathfinder Solutions' resources on the Project. Identify any and all consideration, including but not limited to, any ownership interest in any company that Pathfinder Solutions, [nc or Donald (a/k/a Rusty) Olmes received in exchange for said entities making payment to Crroff for monies owed by Tuckcora to Groff, related to the Project. ANSWER: Identify each and every reason why Pathfinder used its credit facilities and its Case Advantage Account to pay Groff for rentals and equipment which Groffprovided to the Project, including but not limited to: (a) all communications related to such payment; (b) all contracts or agreements pertaining thereto; (c) all consideration Pathfinder received by Five-R and/or Tuckcora in exchange for such payments; and (d) nature and scope of any agreement thereto. .ANSWER: Identify all involvement, including but not limited to all financial resources, that Pathfinder used in the organization and capitalization of the business entity known as Tuckcora for work related to the Project. ANSWER: 10. Identify whether Pathfinder made any implied or express promises to Groffrelated to its agreement to pay Groff for money owed by Tuckcora to Groff. Kindly identify: (a) nature and extent of all promises; (b) individuals agreeing to such promises; and (c) all documents pertaining thereto. ANSWER: Dated: October 25, 2001 McNEES WALLACE & NURICK LLC Roy C. Fazio I.D. No. 86994 Diane M. Tokarsky I.D. No. 44369 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Groff Tractor & Equipment, Inc. GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. FIVE-R-EXCAVATING, INC., PATHFINDER SOLUTIONS LTD., and DONALD M. OLMES, a/kYa RUSTY OLMES, INDIVIDUALLY, Defendants CiVIL ACTION LAW : PLAINTIFF'S PRE-COMPLAINT REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS PATHFINDER SOLUTIONS LTD. AND DONALD M. OLMES afk/a RUSTY OLMg,~q TO: PATHFINDER SOLUTIONS LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Defendants Pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, Plaintiff Groff Tractor & Equipment, Inc. (hereinafter "Grof£'), requests that Defendants, Pathfinder Solutions Ltd. and Donald M. Olmes a/k/a Rusty Olmes (hereinafter "Defendant") produce the documents hereinafter described and permit Plaintiff, through its attorneys, to inspect them and copy such of them as they may desire. Plaintiffrequests that the documents be made available for this inspection at the offices of McNees Wallace & Nurick LLC, counsel for Plaintiff, or at such other location as may be mutually agreed upon, but not later than thirty (30) days after service of these requests. This request is intended to cover all documents in the possession, custody and control of Defendant, its agents, employees, and attorneys. If documents requested are outside the possession, custody or control of Defendant, but Defendant has knowledge of the person or entity in whose custody, control or possession the document resides, it is required to set forth that information. DEFINITIONS A. "Document" as used herein shall mean the original and any copy, marked-up copy; revision, amendment, modification, non-identical copy and/or draft, of any written, printed, typed, drawn, or other graphic matter of any kind or nature, however produced or reproduced, whether or not sent or received, including without limitation: memoranda, reports, computations, estimates, communications, financial reports or statements, notes, transcripts, letters, correspondence, intra or inter office communications, envelopes, telegrams, cables, tele messages, e-mails, messages, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, minutes, notes, notations, tabulations, studies, analyses, reports, evaluations, projections, work papers, summaries, journals, statistical records, calendars, appointment books, diaries, plans, drawings, blue prints, modules, specifications, data, sketches, maps, boring logs, soils tests, soils charts, soils reports, sketch books, quantity books, material books, time log sheets, purchase orders, invoices, checks, receipts, payroll records, summaries or records of meetings or conferences, minutes or tape recordings of meetings or conferences, summaries or reports of investigations, opinions or reports of consultants, questionnaires, surveys, charts, graphs, books, notebooks, note charts, articles, magazines, newspapers, booklets, circulars, bulletins, press releases, notices, instructions, manuals, photographs, schedules, network diagrams, bar-charts, line-charts, motion picture film, microfilms, photographs, tapes or other recordings, punch cards, computer programs, magnetic tapes, discus, data cells, drums, printout and other data computations t~om which information can be obtained, and marginal comments appearing on any documents, and all other writings in the possession, custody or control of Plaintiff or its agents, officers, employees or attorneys. B. "GrolT' shall mean Plaintiff, GroffTractor & Equipment, Inc., and any or all individuals acting or purporting to act on their behalf. C. "Five-R" shall mean Five-R-Excavating, Inc., and any or all individuals acting or purporting to act on its behalf. D. "Defendant" shall mean Defendant Five-R-Excavating, and any or all individuals acting or purporting to act on its behalf. E. "Tuckcora" shall mean Defendant Tuckcora Enterprises, Inc., its directors, officers, agents, employees, and all other persons acting on its behalf. F. "Pathfinder" shall mean Defendant Pathfinder Solutions, Ltd. and/or Donald M. Olmes a/kYa Rusty Olmes. G. "Project" means the Frick Park Nine Mile Run project subcontracted by Five-R to Tuckcora at various times on which Groff supplied rental equipment. CAUSE OF ACTION The nature of this cause of action includes, but is not limited to, breach of contract, breach of implied contract, unjust enrichment, and breach to a third p~ beneficiary arising out of PlaintitYs rental of construction equipment to Defendant for work related to the Frick Park Nine Mile Run Project. INSTRUCTIONS 1. This request is continuing in nature and requires you to file supplemental responses if you obtain further or different information and/or documents after your initial response. 2. If any documents required to be provided by this request are withheld upon a claim of privilege, identify with specificity said document and state the basis for any such claims. 3. When a document is requested herein, Defendant shall produce the original of such document, if available, and the following: (a) Every copy of each document which is not an exact duplicate of the document which is produced, (b) Every copy which has any writing, figure, notation or the like on it, (c) All drafts of each document, (d) All attachments or enclosures with each document, and (e) Every document referred to in such document. 4. It is requested that all documents be produced in the form and in the same order within each file in which they existed prior to the production in that the file folders, boxes, or other containers or bindings in which such documents are found are also to be produced intact, including the titles, labels or other descriptions of each such folder, box, or other binding or container and that document be labeled to designate which request to which they are responsive. 5. If an objection is made to any of the requests, whether in whole or in part, respond to as much of the request concerned as to which no objection is made. 6. The masculine shall be deemed to include the feminine, and the feminine deemed to include the masculine. 7. The singular shall include the plural, and the plural, the singular. the Project. 3. DOCUMENTS REQUESTED 1. All documents that constitute any agreement whatsoever between Five-R and Pathfinder Solutions, Ltd. related to the Project. All documents that were relied upon by Pathfinder in making payment to Crroff on All documents that constitute any business relationship between Pathfinder, and any Defendant or Tuckcora, related to the Project. All documents related to financing or credit extended to Tuckcora by Five-R or Pathfinder. 5. All written or typed documents originating fi:om Tuekcora and/or Pathfinder which relates to payments made to Groffon the Project. 6. All documents pertaining to communications fi:om Five-R to Pathfinder or Donald (a/k/a Rusty) Olmes relating to the Project. 7. All meeting minutes or records of telephone conversations related to payment to Groff for work related to the Project. 8. All e-mails, memoranda, or any other internal document pertaining to any communication of any sort related to Groff and/or Pathfinder with respect to the Project. 9. All documents related to any communication between Shirley Ritenour, President of Five-R, and Pathfinder related to Tuckcora or Groffwith respect to the Project. 10. All documents pertaining to any ownership interest that Five-R or Shirley Ritenour had or has in Tuckcora, Pathfinder, or any business entity partially or wholly owned by Donald Olmes. 11. All documents that relate to any agreement or communication in any manner whatsoever, whereby Five-R or Shirley Ritenour determined that joint checks would not be issued to Groff, but instead Five-R or Shirley Ritenour directed Groffto use Pathfinder's credit facilities for monies owed to Groff as a result of equipment rented by Tuckcora, which was used on the Project. 12. All documents which relate in any manner to payments made by Pathfinder to Groff. 13. All documents which relate in any manner to the Project. Respectfully submitted, McNEES, WALLACE & NURICK By 't~ R6y C. Fazl~ Atty I.D. No. 86994 Diane M. Tokarsky Atty I.D. No. 44369 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5354 Attorneys for Plaintiff, GroffTmctor & Equipment, Inc. Dated: October 25, 2001 Exhibit C McNees Wallace & Nurick attorneys st law ROY C. FAZlO DIRECT D~AL: (717) 237-5298 E-MAIL ADDRESS: RFAZIO@MWN.COM December 12, 2001 Rusty Olmes Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 RE: Greif Tractor & Equipment, Inc. v. Pathfinder Solutions, LTD., and Donald M. Olmes a/Ida Rusty Olmes, Individually Dear Mr. Olmes: Please be advised that we represent Groff Tractor & Equipment, Inc. We served you with discovery requests on November 7, 2001. To date, we have not received responses to those requests nor have you requested an extension of time in which to respond. We assume that this is an oversight. In the event that you do not respond within ten (10) days of receipt of this letter, we will be forced to seek a Court Order to compel your answers to said requests. In the event that you are represented by counsel, please notify me of same. Thank you. Very truly yours, McNEES WALLACE & NURICK LLC By Roy C. Fazio jmc cc: Michael Hirsch pO(~;~ 1~ · 100 PINE STREET · HARRISBURG, PA 17108-1166 ' TEL; 717.232.8000 ' FAX: 717.237.5300 ' WWW.MWN.COM COLUMBUS, OH · HAZLETON, PA · WASHINGTON, DC Exhibit D McNees Wallace & Nurick LLC attorneys at law ROY C. FAZIO D~RECT DU~L: (717) 237-5298 E-MAIL ADORESS: RFA~30~MWN.COM January 11,2002 VIA FACSIMILE & FIRST-CLASS MAIL Michael McGreal, Esquire Bunson & Stevenson 666 Washington Road Pittsburgh, PA 15228-1913 Donald Olmes Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 RE: Groff Tractor & Equipment, Inc. v F ve-R Excavating, Inc and Pathfinder Solutions, Ltd. and Donald M. Olmes a/Ida Rusty Olmes, Individually Dear Messrs. McGreal and Olmes: Please note that this office represents Groff Tractor & Equipment (Groff) in the above matter. We filed a Walt of Summons on October 29, 2001 which was served, along with pre-complaint discovery, on Mr. Donald Olmes and Pathfinder Solutions, Inc. on November 7, 2001. On December 12, 2001, we sent a letter to the attention of Mr. Olmes at Pathfinder Solutions, Inc. requesting a response to said information. Mr. Olmes and Pathfinder have failed to respond to our discovery request. As the two of you are representing Mr. Olmes in other matters, we request that you advise us if you are counsel to Mr. Olmes and/or Pathfinder Solutions, Ltd. in the above- referenced matter. In the event that the discovery is not answered by you or Mr. Olmes within ten (10) days from the date above, we will seek a court Order to compel said discovery. As a courtesy, we have copied Mr. Olmes in the event that your representation does not extend to the aforementioned matter. I look forward to hearing from you and/or Mr. Olmes. Thank you for your cooperation. Very truly yours, McNEES WALLACE & NURICK LLC Roy C. Fazio jmc cc: Michael Hirsch PO Box 1166 · 100 PINE STREET · HARRISBURG, PA 17108-1166 · TEL; 717.232.8000 · FAX: 717.237.5300 o W'C~N. MWN.COM COLUMBUS, OH ° HAZLETON, PA · WASHINGTON, DC CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this day served a true and correct copy of the foregoing Motion to Compel Discovery upon the person indicated by first- class mail, postage prepaid: Donald M. Olmes of Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 Dated: January 23, 2002 Rby C. Fazio GROFF TRACTOR : & EQUIPMENT, INC., : Plaintiff : . Vo FIVE-R-EXCAVATING, INC., PATHFINDER : SOLUTIONS, LTD., and : DONALD M. OLMES, : a/k/a RUSTY OLMES, : Individually, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6186 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of February, 2002, upon consideration of Plaintiff's Motion To Compel Discovery Against Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes, Individually, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. ~oyC. Fazio, Esq. Diane M. Tokarsky, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Plaintiff BY THE COURT, 0¢~s fey Oier J~, O2'0 q- OX (- i6~h~ch~l Yablonski, Esq. 1300 Oliver Building 535 Smithfield Street Pittsburgh, PA 15222-2304 Attorney for Defendant Five-R-Excavating, Inc. //5~thfinder Solutions, Ltd. 16 Linn Farm Road Canonsburg, PA 15317 Rdant, Pro Se d M. Olmes usty Olmes 16 Linn Farm Road Canonsburg, PA 15317 Defendant, Pro Se :rc GROFF TRACTOR & EQUIPMENT, INC.,: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA FIVE-R-EXCAVATING, INC., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Individually, Defendants : NO. 01-6186 : CIVIL ACTION - LAW PLAINTIFF'S PETITION TO MAKE RULE ABSOLUTE Plaintiffpetitions the Court to make the Order of February 4, 2002 absolute and to order Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes a/k/a Rusty Olmes to provide full and complete responses to Plaintiffs Interrogatories and Request for Production of Documents, and states as follows: 1. On January 28, 2002, Plaintiff filed a Motion to Compel Discovery Against Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes, Individually. A tree and correct copy of this Motion is attached hereto as Exhibit A. 2. On February 4, 2002, this Court issued an Order ruling Defendants to show cause why Plaintiffs Motion should not be granted. A tree and correct copy of the Order is attached hereto as Exhibit B. 3. The Order was served by this Court upon all parties, including Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes. 4. Neither Pathfinder Solutions, Ltd. nor Donald M. Olmes have filed any response to the Order. 5. The time for said Defendants to file a response has expired. WHEREFORE, Plaintiff requests the Court to make the rule absolute by issuing an order upon Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes to provide full and complete responses to Plaintiffs Interrogatories and Request for Production of Documents within ten (10) days from the date of the order or suffer the imposition of sanctions. Respectfully submitted, McNEES WALLACE & NURICK LLC By '~ 0'~'~''~-~ Roy C. Fazio Diane M. Tokarsky 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717)232-8000 Date: April ~ , 2002 Attorneys for Plaintiff Exhibit A GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. FIVE-R-EXCAVATING, INC.., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/kJa RUSTY OLMES, Individually, Defendants NO. 01-6186 CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF'S MOTION TO COMPEL DISCOVERY AGAINST DEFENDANTS PATHFINDER SOLUTIONS, LTD. AND DONALD M. OLMES, INDIVIDUALLY .~-~ Plaintiff, Groff Tractor & Equipment, Inc., by and through its attorneys, McNee,~ Wallace & Nurick LLC, moves this Court to compel discovery. In support of its Motion, Plaintiff states the following: 1. Plaintiff, Groff Tractor & Equipment Co., Inc. ("Groff") initiated this ac{ion by filing a'Writ of Summons against Defendants, Five-R-Excavating, Inc., Pathfinder Solutions, Ltd. ("Pathfinder") and Donald M. Olmes a/k/a Rusty Olmes ("Olmes") on October 21, 2001. (A true and correct copy of the Writ of Summons is attached hereto as Exhibit "A.") 2 On November 7, 2001, Defendants Pathfinder and Groff were served with Requests for Production of Documents and Interrogatories. (True and correct copies of these discovery requests are attached hereto as Exhibit "B.") 3. Defendants Pathfinder's and Groffs responses to Plaintiff's discovery requests were due on or about December 10, 2001. 4. On December 12, 2001, Plaintiff mailed a letter to Defendants Pathfinder and Groff requesting responses to pre-complaint discovery, and Defendants failed to respond. (A copy of the December 12, 2001 letter is attached hereto as Exhibit "C.") 5. By letter dated January 11, 2002, Plaintiff advised Defendants Pathfinder and Groff, as well as Attorney Michael McGreal, who in good faith is believed to be counsel for Defendant Pathfinder Solutions, that responses to the outstanding discovery requests were overdue and stated that if Defendants failed to serve full and complete answers by January 21, 2002, a Motion to Compel would be filed. Defendants Pathfinder and Groff, as well as Attorney McGreal, failed to respond to Plaintiff's letter of January 11, 2002.~ (A copy of the January 11, 2002 letter is attached hereto as Exhibit "D.") 6. Plaintiff receiv, ed no responses to its correspondence of December 12, 2001 and January 11, 2002. 7. To date, Defendants Pathfinder and Olmes have served no responses to Plaintiff's pre-complaint discovery requests. '8. Defendant is in violation of Pa. R. Civ. P. 4006(a)(2) and 4009.12(a) by failing to respond or object to the Discovery requests within thirty (30) days. 9. The Court has the authority, pursuant to Pa. R. Civ. P. 4019(a)(1)(i) and (vii), and Pa. R. Civ. P. 4019(c)(5) to compel Defendants' responses to Plaintiff's discovery requests. WHEREFORE, Plaintiff respectfully requests that the Court enter an Order directing that Defendants respond fully and completely to Plaintiff's discovery requests within the deadline established by this Court, and providing that if either of the Defendants fails to ~ The firm of Bunson & Stevenson called Groffs counsel and stated that Attorney McGreal was no longer associated with the firm and provided Groffs counsel with a phone number for Attorney McGreal. However, Attorney McGreal failed to respond to a telephone message left by Groff's counsel. comply with the Court's Order, each Defendant shall be subject to appropriate sanctions, pursuant to Pa. R. Civ. P. 4019, and the imposition of counsel fees and costs related to this Motion. MCNEES WALLACE AND NURICK LLC Roy C. Fazio, Esquire Attomey I.D. No. 86994 Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Attorneys for Plaintiff, Groff Tractor & Equipment, Inc. Dated: January 23, 2002 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this day served a true and correct copy of the foregoing Motion to Compel Discovery upon the person indicated by first- class mail, postage prepaid: Donald M. Olmes of Pathfinder Solutions, Inc. 16 Linn Farm Road Canonsburg, PA 15317 Dated: January 23, 2002 Rby C. Fazio Exhibit B GROFF TRACTOR : & EQUIPMENT, INC., : Plaintiff : FIVE-R-EXCAVATING, : INC., PATHFINDER : SOLUTIONS, LTD., and : DONALD M. OLMES, : a/k/a RUSTY OLMES; : Individually, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-6186 CIVIL TERM ORDER OF COURT AND NOW, this 4t~ day of February, 2002, upon consideration of Plaintiff's Motion To Compel Discovery Against Defendants Pathfinder Solutidhs~ Ltd. and Donald M. OImes, Individually, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Roy C.. Fazio, Esq. ~M. Tokarsky, Esq. /,4'00 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorneys for Plaintiff BY THE COURT, TR~E cOPY FROM RECORD In Test/nj(~, whereof, I ~ere un? s~ n~/ and t~ o~ ,~ Cobh aL..Ca~sle, Pa, Michael Yablonski, Esq. 1300 Oliver Building 535 Smithfield Street Pittsburgh, PA 15222-2304 Attorney for Defendant Five-R-Excavating, Inc. Pathfinder Solutions, Ltd. 16 Linn Farm Road Canonsburg, PA 15317 Defendant, Pro Se Donald.M. Olmes a/lda Rusty Olmes 16 Linn Farm Road Canonsburg, PA 15317 Defendant, Pro Se CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Petition was served by regular, first-class U.S. mail, Michael Yablonski, Esquire 1300 Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 Pathfinder Solutions, Ltd. 16 Linn Farm Road Canonsburg, PA 15317 Donald M. Olmes a/k/a Rusty Olmes 18~ Linn Farm Road Canonsburg, PA 15317 Date: April ,~- , 2002 Roy C. Fazio GROFF TRACTOR & EQUIPMENT, INC.,: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA FIVE-R-EXCAVATING, INC., PATHFINDER SOLUTIONS, LTD. and DONALD M. OLMES a/k/a RUSTY OLMES, Individually, Defendants NO. 01-6186 : CIVIL ACTION - LAW ORDER AND NOW, this ~ day of ~ ~ t , ,2002, upon consideration of Plaintiffs Petition to Make Rule Absolute, it is ORDERED that Defendants Pathfinder Solutions, Ltd. and Donald M. Olmes a/k/a Rusty Olmes provide full and complet~ responses to Plaintiffs Interrogatories and Request for Production of Documents withinler, t,,,~ days of the date otthis Order. BY THE COURT: