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Home My WebLink About07-4913e Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. No. O'1- 14q 13 Ci v i 1 U'm MICHAEL P. WAGNER CIVIL ACTION - LAW Defendant 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013-3308 (717) 249-3166 P Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. No. 4 7- 11913 k T - MICHAEL P. WAGNER CIVIL ACTION - LAW Defendant COMPLAINT AND NOW, comes the Plaintiff, Z Best Construction, Inc., by and through its attorney, Mark K. Emery, Esquire and files this Complaint as follows: 1 2 3 4. 5, 6. 7. 8. Plaintiff is Z Best Construction, Inc., (hereinafter Z Best) is a Pennsylvania corporation with a registered address of 10 Gordon Drive, Carlisle, PA 17013. Defendant, Michael P. Wagner, (hereinafter Wagner)is an adult individual with an address of 407 Pine Road, Mt. Holly Springs, PA 17065. In or about March 2006, Z Best was formed as a Pennsylvania S Corporation. Z Best was and is in the business of construction and remodeling. The individual shareholders and officers of Z Best were Wagner and Brian R. Nester. At time of formation, Nester owned eighty (80%) percent of the outstanding shares of common stock and Wagner owned twenty (20%) percent. In or about March 2007, a disagreement arose between the shareholders, which resulted in Wagner in ceasing all work or efforts on behalf of the corporation. As a result of such disagreement, Wagner changed the locks on the warehouse rented by Z 1 Best, and would not allow the corporation to utilize the warehouse or obtain corporate assets maintained within the warehouse. 9. Subsequent to such period of time, Wagner has establishes his own construction company, therefore usurping potential corporate opportunities. 10. From March 2007 forward, Wagner has retained corporate assets including but not limited to a corporate truck, two (2) cap nail guns, one (1) roofing gun, and other materials and office equipment, all of which is owned and/or purchased by and on behalf of the corporation. 11. Upon information and belief, Wagner obtained payment from customers of Z Best due the corporation, and retained them for his own benefit. COUNTI CONVERSION 12. Paragraphs 1 through 11 are incorporated fully herein by reference. 13. Despite repeated demands Wagner has retained corporate assets as set forth above. 14. Despite repeated demands, Wagner refuses to return such assets to the corporation. 15. It is believed and therefore averred that the value of such assets totals at least $12,000.00. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement for it and against Defendant in the amount of $12,000.00, or as otherwise determined by the Court.. COUNT U BREACH OF FIDUCIARY DUTY 16. Paragraphs 1 through 15 are incorporated fully herein by reference. 17. As shareholder, Wagner owed a fiduciary duty to the corporation to act in the 2 i corporation's bests interest. 18. Wagner has breached such fiduciary duty by utilizing and retaining corporate assets that are necessary for the corporation to conduct business. 19. In addition to retaining assets, Wagner received monies from certain corporate jobs, such monies being due the corporation rather than Wagner individually. 20. Wagner has refused and failed to return such corporate funds to the corporation. 21. Wagner immediately commenced operating a competing construction business, which has usurped corporate opportunities. 22. Wagner continues to utilize a phone number to conduct his business which had been used in phone directory advertising for Z Best. 23. Z Best has contracted for such phone directory ad, and is responsible for all payments to the phone directory. 24. Upon information and belief, Wagner has obtained work through the use of the phone directory advertising paid for by Z Best. 25. Due to Wagner's breach of fiduciary duty, Z best has incurred expenses necessary to compensate for its loss of the use of its assets, lost certain job opportunities, and has incurred unnecessary expenses. WHEREFORE, Plaintiff respectfully this Honorable Court enter judgement for it and against Defendant. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: ?Z?7?e Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: August 16, 2007 4 VERIFICATION I, Brian Nester, President of Z Best Construction, Inc., hereby verify that I have read the foregoing Complaint and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. 4. /1 "? ria Nester DATE: ?_? 1 00 SHERIFF'S RETURN - REGULAR CASE NO: 2007-04913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND Z BEST CONSTRUCTION INC VS WAGNER MICHAEL P CPL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WAGNER MICHAEL P the DEFENDANT , at 0814:00 HOURS, on the 24th day of August , 2007 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQUARE CARLISLE, PA 17013 MICHAEL WAGNER by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents.thereof. Sheriff's Costs: Docketing 18.00 Service 6.72 Postage .41 Surcharge 10.00 .00 ?,. ?/"/*-1 ? 35.13 Sworn and Subscibed to before me this day So Answers: 1f R. Thomas Kline 08/24/2007 LAW OFFICE By: of A. D. Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4913 CIVIL TERM CIVIL ACTION - LAW ANSWER AND NEW MATTER AND NOW, comes the Defendant, by and through his attorney, Suzanne C. Hixenbaugh, Esquire and files this Answer as follows: 1. Admitted. 2. Admitted 3. Admitted. 4. Admitted 5. Admitted 6. Admitted 7. Denied as stated. On or about March 2007, a disagreement arose between the shareholders. Wagner continued to finish all jobs for which Z Best Construction, Inc. (the "Corporation") had been engaged. 8. Admitted in part, denied in part. It is denied the Corporation rented the warehouse space. It is admitted Wagner changed the locks on the warehouse Wagner rented in his own name. It is denied Wagner did not provide sufficient opportunity for the Corporation to obtain its assets within the warehouse. 9. Admitted in part, denied in part. Since March 2007, Wagner has operated Wagner Construction, a sole proprietorship. Wagner has not usurped any potential corporate opportunities of the Corporation. 10. Admitted in part, denied in part. It is admitted from March 2007 forward, Wagner has retained custody of a corporate truck which is registered and insured in Wagner's personal name. It is denied Wagner retained two cap nail guns, a roofing gun, other materials or office equipment owned or purchased by the Corporation. 11. Admitted in part, denied in part. It is admitted Wagner obtained payments from customers of the Corporation. It is denied these payments were retained for Wagner's own benefit. In the alternative, it is averred payments received from customers of the Corporation were used to pay subcontractors retained by the Corporation and Wagner's hourly wage for work done. COUNTI CONVERSION 12. Paragraphs 1 through 11 are incorporated fully herein by reference. 13. Admitted in part, denied in part. It is admitted Wagner has retained the truck, which is titled and insured in Wagner's personal name. It is denied Wagner has retained any other corporate assets. 14. Admitted in part, denied in part. Wagner has returned all corporate assets to the Corporation with the exception of the truck, which is titled and insured in Wagner's personal name. 15. Denied. Further proof is demanded. In the alternative, it is averred the estimated blue book value of the truck is $3,710. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment against the Plaintiff or in the alternative, determine the value of the assets held by Defendant. COUNT II BREACH OF FIDUCIARY DUTY 16. Paragraphs 1 through 15 are incorporated fully herein by reference. 17. Admitted. 18. Denied. Wagner has declined to turn over the truck, an admitted corporate asset, until such time as Brian R. Nester, the controlling shareholder of the Corporation, can ensure the truck will not be used for Mr. Nester's personal use. 19. Admitted in part, denied in part. It is admitted Wagner has obtained payments from customers of the Corporation. It is denied these payment were for Wagner's individual benefit. In the alternative, it is averred these payments were used to pay subcontractors retained by the Corporation and Wagner's hourly wage. 20. Admitted in part, denied in part. It is denied Wagner has refused and failed to return assets to the Corporation. In the alternative, it is averred Wagner has returned or made the warehouse available to the Corporation to reclaim corporate assets. Wagner has declined to turn over the truck until such time as the Corporation can ensure the truck will not be used for improper purposes as it is titled and insured in Mr. Wagner's personal name. 21. Denied. Wagner operates as Wagner Construction, a sole proprietorship, utilizing his skills to provide a livelihood for himself. By way of further denial, Wagner denies usurping any corporate opportunities from the Corporation and asks for proof. 22. Admitted in part, denied in part. It is admitted Wagner's personal cellular phone and home telephone were used in advertising for the Corporation. It is denied this phone number was an asset of the Corporation. 23. Admitted. 24. Denied. It is specifically denied that Wagner has obtained work through the use of the phone directory advertising paid for by the Corporation. By way of further denial, it is averred Mr. Wagner's cellular phone number and home telephone number both utilize messages that advise the caller to call the Corporation at a separate telephone number. 25. Denied. It is denied Wagner has breached any fiduciary duty. Proof of damages and expenses incurred is demanded. WHEREFORE, Defendant respectfully requests this Honorable Court ender judgment for Defendant and against Plaintiff. NEW MATTER ASSERTING AFFIRMATIVE DEFENSE OF FAILURE OF CONSIDERATION 26. Paragraphs 1 through 25 are incorporated by reference. 27. On or about March 2007, Defendant separated from the Corporation due to work ethic conflicts with the primary shareholder, Brian R. Nester. 28. Defendant and Brian R. Nester entered into a Shareholders Agreement dated April 1, 2006, a copy of which is attached to this New Matter as Exhibit "A" (the "Shareholders Agreement"). 29. Plaintiff s complaint seeks to recover the sum of $12,000 from Defendant, alleging such amount to be due as assets owned by the Corporation. 30. Under the terms of the Shareholders Agreement, upon the date of permanent separation of a Shareholder from the Corporation, the Corporation is obligated to purchase all of the shares of the Corporation owned by the separating or resigning Shareholder for fair market value. 31. Plaintiff has failed to make payment to Defendant in accordance with the Shareholders Agreement. 32. Plaintiffs failure to make payment in accordance with the Shareholders Agreement, bar Plaintiff's action under the defense of failure of consideration. WHEREFORE, Defendant respectfully requests this Honorable Court ender judgment for Defendant and against Plaintiff. NEW MATTER ASSERTING AFFIRMATIVE DEFENSE OF ARBITRATION AND AWARD 33. Paragraphs 1 through 32 are incorporated by reference. 34. Paragraph 9(b) of the Shareholders Agreement provides the parties are required to submit a dispute as to fair market value to an independent third party appraiser for determination. 35. Paragraph 9(b) of the Shareholders Agreement further provides the determination of independent third party appraiser(s) as to the fair market value is final and binding upon the parties. 36. To date, Plaintiff has not submitted the matter to an independent appraiser for valuation. 37. The failure of Plaintiff to submit the valuation of Defendant's shares of the Corporation to an independent third party appraiser under the terms of the Shareholders Agreement controls the Plaintiff s alleged cause of action and serves as a bar thereto. WHEREFORE, Defendant respectfully requests this Honorable Court ender judgment for Defendant and against Plaintiff. Respectfully Submitted, Date: Suzanne C. ixenbaugh PA Attorney ID No. 91641 Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 (717) 243-6222 fax - (717) 243-6486 Attorney for Defendant Dec 04 07 12:29p Prologis 33 6107461849 1Lf V4/ LVV f 1L. LG f 1 f 44JOJIV 1:3"JLAJ1J f°LLAfYLIN of 6 JLIIU VERIFICATION I. Micha.cl P. Wagner, hereby verify that I have read the foregoing A New Nutter and that the informatiorn contained therein is true and cOrrect to acid best of my knowledge, information. and belief. I uodemand that false statements hermT are subject to the penaltes of 18 PaC-S- § 4904 relating to unworn falsification t? authorities- O ? -yo Datc iclaagll-. agner I 1 P-" VLf VL Z BEST CONSTRUCTION, INC. SHAREHOLDERS AGREEMENT THIS AGREEMENT is made effective as of April 1, 2006 among Z BEST CONSTRUCTION, INC., a Pennsylvania business corporation (hereinafter referred to as the "Corporation") having a business address at 10 Gordon Drive, Carlisle, PA 17013, and the persons whose names appear on the signature page to this Agreement (such persons, together with any other persons who hereafter may become bound hereby are hereinafter collectively referred to as the "Shareholders"). WITNESSETH: WHEREAS, the Corporation is duly organized under the laws of the Commonwealth of Pennsylvania and currently has an authorized capital of Two Thousand (2,000) shares of common stock, no par value per share. References herein to "Shares" and/or "Common Stock" shall mean any and all shares of the authorized capital stock of the corporation. There are currently issued and outstanding on the date hereof 2,000 Shares of Common Stock, owned by the Shareholders as set forth on Schedule A hereto, which is incorporated herein by reference; and WHEREAS, it is in the parties' mutual best interests to impose certain restrictions and obligations upon themselves, the Corporation and their several Shares of Common Stock; NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein, the parties hereto hereby amend and restate any and all prior oral or written agreements regarding the subject matter hereto as follows: 1. General Prohibition Against Common Stock Transfers. a. Restrictions on Shareholders. No Shareholder shall transfer (whether by sale, assignment, gift, exchange, devise, transfer in trust, operation of law or otherwise), pledge, give as security, allow the encumbrance of, or otherwise dispose of the Common Stock or any interest therein (any of the foregoing or any attempt to do any of the foregoing, a "Transfer"), except upon compliance with the Right of First Refusal (as defined in Section 2 of this Agreement) or as otherwise expressly permitted by this Agreement. Shareholders who are married may take title to their shares with their spouse. b. Restrictions on Corporation. The Corporation shall not, except (i) as authorized by the holders of eighty-one percent (81 %) or more of the shares of Common Stock, or (ii) in connection with transactions authorized by this Agreement, or (iii) otherwise in accordance with this Agreement, cause or permit a Transfer to be made on its books. C. Effect of Prohibited Transfer. Any Transfer by a Shareholder of an interest in Common Stock which is not in compliance with the express terms of this Agreement shall be void and of no effect. Nevertheless, if a Transfer which is not in compliance with this Agreement is enforced by a court of competent jurisdiction, the transferee's interest in the Common Stock shall be fully subject to the restrictions and other provisions of this Agreement, 1 of 13 except that such transferee shall not receive nor have any right to exercise the Right of First Refusal (as such term is hereinafter defined). d. Legends on Share Certificates. The following legend shall be conspicuously endorsed on all certificates representing Common Stock: "Sale, transfer, or hypothecation of any interests in the shares represented by this Certificate is restricted by the provisions of a Shareholders Agreement by and among the Shareholders and the Corporation, a copy of which may be inspected at the principal office of the Corporation, and all provisions of which are incorporated by reference in this Certificate. These shares are not registered and may not be transferred unless such transfer is in compliance with any and all applicable securities laws." A copy of this Agreement shall be kept in the custody of the Secretary of the Corporation at the Corporation's principal office. 2. Right of First Refusal. Subject to the terms of this Section, a Shareholder may sell all or any portion of his or her Common Stock pursuant to a bona fide written offer from a party (an "Offer"); provided, however, as follows: a. Notice of Prior Sale. The Shareholder proposing to sell his Common Stock (the "Selling Shareholder") shall first give the Secretary of the Corporation and all other Shareholders (the "Remaining Shareholders") a copy of the Offer and written notice of the Selling Shareholder's intention to sell, identifying the proposed transferee(s) and setting forth the date of the Offer, the number of shares of Common Stock to be sold, and the proposed price per share and terms of payment (the "Notice of Proposed Sale"). b. Right of First Refusal. The Selling Shareholder hereby grants to the Corporation and to the Remaining Shareholders the right and option (the "Right of First Refusal") to acquire in the aggregate all (but, unless otherwise agreed by the Selling Shareholder, not less than all) of the shares of Common Stock subject to the Offer, at the price and on terms and conditions equal to those set forth in the Offer. The Right of First Refusal shall be exercisable first by the Corporation, by written notice, specifying the number of shares to be purchased (the "Corporation Offer") and given to the Selling Shareholder within thirty (30) days after the date of the Notice of Proposed Sale. If the Corporation does not notify the Selling Shareholder and the Remaining Shareholders of its election to purchase Common Stock of the Selling Shareholder within said thirty (30) day period, the Corporation shall be deemed to have not exercised its purchase option. If the Corporation has elected to purchase none or less than all of the shares of Common Stock subject to the Offer, the Remaining Shareholders shall have the option to purchase the portion of the shares of Common Stock not purchased by the Corporation (the "Remaining Common Stock"), in such proportions as may be agreed upon among them. The exercise of such option shall be reflected in a written notice signed by all of the Remaining Shareholders and delivered to the Selling Shareholder and the Corporation within five (5) days after the end of the above-mentioned thirty (30) day period. If an agreement among the Remaining Shareholders 2of13 cannot be reached, then each Shareholder shall have the right, by giving written notice thereof to the Corporation and all Remaining Shareholders, including the Selling Shareholder, during the next ten (10) day period (the "Next Ten Day Period"), to purchase all or any part of that proportion of the Remaining Common Stock as the number of shares of Common Stock owned by him bears to the total number of shares of Common Stock owned by all of the Shareholders other than the Selling Shareholder. If the Remaining Shareholders have not elected to purchase all of the Remaining Common Stock, then each Shareholder who has elected to purchase the maximum amount permissible pursuant to the preceding sentence shall have the further right, by giving written notice thereof to the Corporation and all Remaining Shareholders, including the Selling Shareholder, during the five (5) day period following the above mentioned Next Ten Day Period, to purchase all or any part of the Remaining Common Stock not theretofore covered by a purchase election from Shareholders. If the number of shares designated for purchase by the Shareholders pursuant to the preceding sentence is greater than the number of shares of Remaining Common Stock not theretofore covered by a purchase election from the Remaining Shareholders, then each Shareholder electing to purchase Common Stock pursuant thereto shall be deemed to have elected to purchase that proportion of the Remaining Common Stock not theretofore covered by purchase elections from Remaining Shareholders as the number of shares of Common Stock he or she designated for purchase bears to the aggregate number of shares of Common Stock designated for purchase by all Shareholders pursuant to the preceding sentence. C. Transfer to Offeree. If the Right of First Refusal is not exercised as provided in this Agreement, or if exercised by the Corporation and the Remaining Shareholders for less than all shares of the Common Stock subject to the Offer, the Selling Shareholder may sell all the shares of Common Stock subject to the Offer within sixty (60) days after the close of the last option period described in subparagraph (b) above, but only to the transferee(s) named in, and only on the same terms and conditions set forth in, the Notice of Proposed Sale; provided, however, that (i) any and all transferees of a Selling Shareholder's Common Stock pursuant to this paragraph shall be bound by the terms of this Agreement and shall execute any and all instruments necessary so to confirm and (ii) any and all Common Stock transferred by the Selling Shareholder shall be subject to this Agreement from and after the date of Transfer. After the expiration of such sixty (60) day period, the Selling Shareholder shall not Transfer any Common Stock without again complying with the provisions of this Agreement. 3. Bankruptcy of Shareholder Purchase Option. Each Shareholder hereby grants to the Corporation the right and option (the "Purchase Option"), at the price and upon the terms set forth in Section 4, to purchase all, but not less than all, of such Shareholder's Common Stock upon the occurrence of any of the following: (a) a proceeding in bankruptcy shall be commenced with respect to such Shareholder (including a petition filed by or on behalf of or against such Shareholder) and, in the case of an involuntary proceeding, such proceeding is not dismissed within 120 days after the date of the filing thereof, or (b) such Shareholder makes an assignment for the benefit of his or her creditors; or (c) such Shareholder permits any of his or her Common Stock to be attached or levied upon or subjected to judicial sale or execution of judgment. Upon the occurrence of any of the foregoing events, the Common Stock of the Shareholder with respect to whom such event occurs shall be deemed "Option Stock". If the Corporation does not extend an offer to purchase all of a Shareholder's Option Stock within the Option Period (as defined in Section 4), such Shareholder and the Option Stock shall continue to be bound by the terms of this Agreement. 3 of 13 4. Exercise, Purchase Price and Payment Terms for Bankruptcy Option Stock. a. Exercise. Any party hereto becoming aware of the occurrence of any event causing Common Stock to become Option Stock (an "Option Event") shall promptly notify the other parties hereto in writing thereof. In the event that such notice is not given, it will be deemed to have been given to any party when such party shall have actual knowledge of the Option Event. The Purchase Option shall be exercisable by the Corporation upon notice to the Shareholder owning the Option Stock, his or her heirs or personal representatives (hereafter sometimes referred to as the "Terminating Shareholder") given within thirty (30) days after the date notice of the Option Event is given or deemed given to the Corporation (the "Option Period"). b. Purchase Price. The purchase price (the "Purchase Price") for Option Stock shall be the book value of the shares as determined on the last day of the month preceding the Option Event. The book value shall be determined by first adding as of the valuation date the capital, surplus, and undivided profits, after having deducted any reserves previously established. The sum of these items shall be divided by the number of shares outstanding as of that date, and the quotient shall represent the book value of each share. C. Settlement. A settlement (the "Settlement") for the transfer of the Option Stock shall be held at the Corporation's offices at a time and date fixed by the Corporation upon not less than ten (10) days' notice to the Terminating Shareholder. At Settlement, the Purchase Price shall be paid in cash, and certificates representing the Option Stock shall be endorsed in blank and delivered to the purchaser thereof. The President, any Vice President and Secretary of the Corporation then in office, or any of them, shall be the agent and attorney-in-fact for any Terminating Shareholder for the purpose of endorsing certificates representing Option Stock pursuant to this Agreement. 5. Repayment of Loans and Advances. In the event of the sale of all shares of Common Stock of a Shareholder, all loans, advances, or accounts of any nature whatsoever between the Corporation and such Shareholder, whether owing to or by the Corporation, shall become due and payable on the date on which equitable title to such Common Stock passes to the purchaser thereof, without regard to any retention of any legal or equitable interest therein by the selling Shareholder. All loans from the Corporation to a Shareholder must be approved in advance by the Board of Directors and must be on commercially reasonable terms and conditions, evidenced by a promissory note. Notwithstanding any term of this Agreement or any promissory note to the contrary, the repayment of any loan, advance or account of any nature by the Corporation to a Shareholder shall be suspended if the repayment of the principal or interest shall either cause the Corporation (1) to become insolvent or (2) unable to pay the Corporation's other debts as they become due; however, interest shall continue to accrue to the benefit of such Shareholder and the Corporation shall be required to make any and all such repayments of principal and interest to such Shareholder as soon as possible after giving effect to either such insolvency consideration. 6. Sale of Business or Securities; Fundamental Changes. The Corporation shall not (a) sell all or substantially all of the Corporation's business or assets, (b) merge or consolidate, (c) sell any securities such as stock, options, or debt convertible into stock, or (d) 4of13 effect any other fundamental change in the Corporation's status excluding dissolution, unless such transaction is approved by the vote of the holders of fifty-one percent (51 %) of the then issued and outstanding shares of Common Stock subject to this Agreement. 7. Management Provisions; S Corporation Status. The Shareholders agree among themselves and with the Corporation that: a. S Corporation Status. The Corporation shall remain an S corporation under the applicable provisions of state and federal tax law and the rules and regulations promulgated there under. No shareholder shall take any action to revoke the Corporation's S corporation election, transfer shares of Common Stock to a party ineligible to hold the Common Stock of an S corporation, or otherwise take or omit to take any action that would result in a revocation of the Corporation's S corporation status. b. Certain Actions and Expenditures. The Corporation shall not (i) incur any indebtedness for borrowed money in excess of $15,000.00, (ii) pay or agree to pay any compensation to any employee, independent contractor or consultant in excess of $15,000.00, (iii) acquire or agree to acquire by purchase or lease any real or personal property having a purchase price or aggregate rental in excess of $15,000.00 or (iv) incur any individual cost or expense to the Corporation in the amount of more than $15,000.00, in any such case unless such proposal shall receive the affirmative vote of holders of the majority of votes of the Board of Directors. C. Board of Directors. From and after the date hereof and until the provisions of this subsection cease to be effective, each Shareholder shall vote all Shares over which such Shareholder has voting control, and will take all other necessary or desirable actions within his or her control (whether in his or her capacity as a Shareholder, Director, member of a Board committee or officer of the Corporation or otherwise), in order to cause the following: (1) The number of directors constituting the Board of Directors to be set at two (2); (2) The election to the Board of Directors of: (a) As long as Bryan R. Nester ("Nester") holds at least 80% of the total outstanding Shares, one (1) representative designated by Nester, which representative shall have 80 votes in any vote before the Board of Directors. (b) As long as Michael P. Wagner ("Wagner") holds at least 20% of the total outstanding Shares; one (1) representative designated by Wagner, which representative shall have 20 votes in any vote before the Board of Directors. (c) In the event that the election of Directors pursuant to this subsection results in the election of less than two (2) Directors to the Board of Directors, the vacancy shall be filled by the written consent of the Shareholders holding at least 51 % of the total outstanding Shares or, if the Shareholders holding at least 51 % of such Shares so elect, the number of Directors shall be reduced in lieu of electing such replacement Director(s). 5of13 (d) Board of Directors - Replacement. Each of Nester and Wagner, respectively, shall have the right (1) to remove, with or without cause, any Director designated by such Shareholder in accordance with this Subsection, and (ii) to designate any replacement for a Director nominated by such Shareholder in accordance with this Subsection upon the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors shall duly appoint as a Director each person so designated to fill a vacancy on the Board of Directors. d. Board of Directors - Covenant to Vote. Each Shareholder shall take all actions necessary to call, or cause the Corporation and the appropriate officers and directors of the Corporation to call, a special or annual meeting of shareholders of the Corporation and to vote all Shares owned or held of record by such Shareholder at any such annual or special meeting in favor of, or take all actions by written consent in lieu of any such meeting necessary to cause, the election as members of the Board of Directors of those individuals so designated in accordance with, and otherwise to effect the intent of, this Section. In addition, each Shareholder shall vote the Shares owned or held of record by such Shareholder upon any other matter arising under this Agreement submitted to a vote of the shareholders of the Corporation in a manner so as to implement the terms of this Agreement. e. Designation of Proxy / Identity of Proxyholder. In order to effectuate the provisions of this Section and in addition to and not in lieu of Sections 7(c) through 7(d), each Shareholder hereby grants to the Board of Directors a proxy to vote all of the Shares owned or held of record by such Shareholder at any meeting of shareholders of the Corporation, or to take action by written consent in lieu of such meeting. Each such proxy is irrevocable and shall continue in full force and effect until this Shareholders Agreement is terminated. The proxies granted herein shall survive any Transfer of Shares by a Shareholder. f. Powers of Proxyholder. The proxies granted pursuant to Section 7(e) shall be to vote the respective Shares as to all matters covered by this Agreement, including without limitation, to vote such Shares for the election or replacement of directors designated in accordance with Section 7(c), to the end that the terms and provisions of this Agreement shall be given effect. The proxyholder shall have no power to vote in a manner contrary to this Agreement. 8. Obligations on Shareholder's Death. a. Purchase and Sale of Shares of Deceased Shareholder. On the death of any Shareholder, the Corporation shall purchase from the decedent's personal representatives, and the decedent's personal representatives shall sell to the Corporation, all of the shares of the Corporation owned by the decedent (including shares owned jointly with the spouse of the Shareholder, if any) at the time of death, according to this Agreement. b. Determination of Purchase Price. On the death of a Shareholder the purchase price shall be the value of his or her stock as established in accordance with Section 8(c). 6of13 C. Determination of Value of Shares. The value of the shares of each Shareholder to be sold pursuant to,Section 9b below. d. Payment of Purchase Price. The purchase price payable to the estate of the deceased Shareholder shall be paid in cash to the estate of the deceased Shareholder on: (1) The estate of the deceased Shareholder becoming capable of transferring to the Corporation full legal and equitable tax-free title to the shares of the deceased Shareholder; and (2) Delivery to the Secretary of the Corporation of the certificate representing the shares of the deceased Shareholder properly endorsed in the manner required to transfer full legal and equitable tax-free title of those shares to the Corporation. e. Costs of Performance. The estate of the deceased Shareholder shall bear, and shall hold the Corporation harmless from, all costs and expenses required for securing any court orders, court decrees, court approvals, inheritance tax clearances, and estate tax clearances required to enable the estate of the deceased Shareholder to transfer to the Corporation full legal and equitable tax-free title to the shares of the deceased Shareholder in the Corporation. f. Estate of Deceased Shareholder Defined. The term "estate of the deceased Shareholder" as used in this Agreement, shall include as those terms are understood under the laws of the Commonwealth of Pennsylvania: (1) The personal representative of the estate of the deceased Shareholder. (2) The surviving joint tenant of the deceased Shareholder when shares of the Corporation are owned by the deceased Shareholder and a person who is not active in the business of the Corporation as joint tenants. (3) Any other person who may, because of the community property or other law of any jurisdiction, acquire without formal probate proceedings any right, title, or interest in or to the shares of the deceased Shareholder in the Corporation because of the death of the Shareholder. g. Closing. The closing of the purchase and the sale shall take place at the office of the Corporation at a date designated by the Corporation, which shall not be more than 120 days following the date of the qualification of the personal representatives, and not less than ten days following that date. However, the closing shall take place, regardless of the date of qualification of the personal representatives, within six months of the date of the death of the decedent. h. Inability or Unwillingness to Purchase. If the Corporation has insufficient earned surplus to permit the lawful purchase of the shares, or if the Corporation is otherwise unable or refuses to purchase all of the decedent's shares, the obligation of the Corporation with respect to the shares shall be deemed assumed proportionately by the surviving Shareholder. 7of13 i. Common Disaster Provision. In the event of the simultaneous deaths of all of the Shareholders, or in the event of the deaths of all of the Shareholders within 90 days after the death of the first Shareholder to die, the estate of each Shareholder shall own its respective shares of the Corporation. 9. Obligations on Shareholder's Permanent Separation from Employment. a. Purchase and Sale of Shares of a Shareholder separated from the Corporation who is not deceased. On the date of the permanent separation of a Shareholder from employment with the Corporation, the Corporation shall purchase from the separating or resigning Shareholder and the separating or resigning Shareholder shall sell to the Corporation, all of the shares of the Corporation owned by the separating or resigning Shareholder (including shares owned jointly with the spouse of the Shareholder, if any), according to this Agreement. The date of permanent separation shall be the earliest date that the Shareholder is no longer employeed full-time for the Corporation and it is apparent that the Shareholder can no longer remain employed by the Corporation on a full-time basis for a period of at least six (6) months, regardless of whether the reason for such inability is disability, incarceration, refusal to work full-time, or any other cause whatsoever. On the date of permanent separation, such Shareholder's positions as a shareholder, officer, director and employee of the Corporation shall automatically be terminated, and all of such Shareholder's shares of the Corporation (including shares owned jointly with the spouse of the Shareholder, if any) shall automatically be transferred to the Corporation, and the Corporation's sole obligation to such Shareholder, and such Shareholder's sole and exclusive right against the Corporation shall be to obtain the fair market value of said shares as of the date of permanent separation, according to this Section 9. b. Purchase Price on Permanent Separation. from Employment. The Corporation shall be obligated, from and after the date of permanent separation, to pay to such permanently separated Shareholder the fair market value of his shares of common stock in the Corporation, taking into account the effect on value of the separation of the permanently separated Shareholder, to be determined as follows: (1) The fair market value jointly agreed to in writing by the permanently separated Shareholder and the Corporation (hereinafter, the "parties"); (2) If the parties are unable to agree on the fair market value, then the parties shall submit the dispute to a qualified independent third party appraiser mutually selected by both parties. If the parties agree upon such appraiser within such 30 day period, the appraiser shall have 30 days to determine the fair market value, which appraisal shall be final and binding upon the parties; (3) If the parties are unable to mutually select an appraiser under (2) immediately above, then each party shall select a qualified independent third party appraiser and those two (2) appraisers shall select a third independent third party appraiser (collectively the "Appraisers"). Each of the Appraisers shall have 30 days to submit to the parties in writing their respective appraisals. The fair market value shall be determined by a majority vote of the three Appraisers; 8of13 (4) The determination of the fair market value under this Section 9(b) shall be final and binding upon the parties. The parties shall share equally the cost of any appraiser hired pursuant to this Section 9(b)(2). Each party shall pay the costs and expenses of any appraiser it selects pursuant to Section 9(b)(3) and shall share equally the cost of the third appraiser. C. Payment of Purchase Price. The purchase price payable to the permanently separated Shareholder shall occur at such date, time and place as shall be agreed by the parties, provided that such payment shall occur no later than 30 days following the determination of the fair market value by wire transfer of immediately available funds into an account designated by the permanently separated Shareholder. d. Inability or Unwillingness to Purchase. If the Corporation has insufficient earned surplus to permit the lawful purchase of the shares, or if the Corporation is otherwise unable or refuses to purchase all of the permanently separated Shareholder's shares, the obligation of the Corporation with respect to the shares shall be deemed assumed by the remaining Shareholder. 10. Termination. This Agreement shall terminate: a. upon the written agreement of the holders of eighty-one percent (81 %) of the then issued and outstanding shares of Common Stock subject to this Agreement; or b. upon the dissolution of the Corporation. The Corporation shall not be permitted to voluntarily dissolve except upon the approval of the holders of eighty one percent (81%) of the then issued and outstanding shares of Common Stock subject to this Agreement. 11. Tax Returns. The Corporation shall prepare and provide to each Person who was a Shareholder for all or any portion of the previous taxable year of the Corporation Federal Schedules K-1 (Form 1120S) ("U.S. Schedules K-1") and the corresponding state income tax information returns ("State Schedules K-1 ") for each state in which the Corporation has made (or will be treated as having made) an election comparable to the Federal S Election for every taxable year in which any such election is in effect. If the Corporation determines that it will be unable to provide such Persons with a U.S. Schedule K-1 or a State Schedule K-1 prior to the due date of the corresponding Federal or state income tax return of such Persons, the Corporation shall provide such Persons with an estimate of the amounts required to be reported on such U.S. Schedule K-1 or such State Schedule K-1. 12. Dividend Distributions to Pay Taxes. The Corporation and each of the Shareholders of the Corporation shall use their best efforts to cause the Corporation to declare and pay dividends in such amounts and at such times as will enable the Shareholders or, if applicable, the Corporation on behalf of the Shareholders, to make timely payment of any Federal and state income withholding or estimated tax liabilities of the Shareholders arising from the Corporation's status as an "S corporation" under the Federal income tax laws and from any comparable status the Corporation may enjoy under the income tax laws of any state ("Shareholder S Tax Liability"). To the extent possible the following principles shall be followed by the Corporation and the Shareholders in declaring and paying such dividends: 9of13 a. Date of Payment. Dividends shall be paid at least five business days prior to the due date for making (a) Federal individual estimated tax payments, (b) state individual estimated tax payments, or (c) state personal income tax withholding payments, and at least five business days prior to the due date for filing (without extension) the Shareholders' Federal and state income tax returns; and b. Amount of Payment. The amount of each dividend shall be determined in accordance with the following assumptions: (1) The Shareholder S Tax Liability shall be determined by applying the highest applicable marginal Federal and state income tax rates to the aggregate items of income, gain, loss, deduction or credit shown on the Shareholders' U.S. Schedules K-1 and State Schedules K-1, respectively, as if such items were attributable to one individual who was a resident of Pennsylvania and who did not "materially participate" (within the meaning of Section 469 of the Code) in the conduct of any trade or business of the Corporation but without allowance for any exemption, deduction or credit provided generally under Federal or state law (such as, by way of illustration and not of limitation, the Federal personal exemption and standard deduction). (2) Any item of loss or credit that cannot be utilized in determining the Shareholder S Tax Liability for any taxable year shall be carried forward and applied in determining the Shareholder S Tax Liability for any subsequent taxable year to which an individual would be entitled to carry forward a loss or credit under the applicable Federal or state income tax law. For this purpose, the availability of a carryback of such item of loss or credit under any Federal or state income tax law shall be disregarded. (3) In determining the Shareholder S Tax Liability, allowance shall be made for any deduction, credit or other tax benefit available to an individual under the applicable Federal or state income tax law by reason of the payment of the Shareholder S Tax Liability. (4) Federal and state minimum income taxes shall be ignored in determining the Shareholder S Tax Liability. (5) Any dividend that is not paid by the due date of any Federal or state estimated tax or income tax or withholding tax with respect to which Shareholder S Tax Liability may be incurred shall include interest at the rate determined under Section 6621 of the Code that is applicable to underpayments of Federal income tax. (6) Federal or state estimated tax liabilities for any taxable year shall be determined as if the Shareholder S Tax Liability for the immediately preceding taxable year were the Shareholder S Tax Liability for the taxable year: (a) State estimated tax and withholding tax liabilities for any taxable year shall be determined by applying the current year's state personal income tax rate to the S Corporation's income for the immediately preceding taxable year as reported on the Corporation's state information returns and Forms K-1. 10 of 13 (b) In the event that the rules for making Federal or state estimated tax payments are altered, the Directors shall, by resolution, adopt such changes to the foregoing procedures as may be necessary in their judgment to ensure that the Corporation pays dividends sufficient to enable the shareholders to make adequate payments of estimated taxes. 13. Conflicts with "Default" Provisions of Law or Existing Bylaws. In the event of a conflict between any provision of this Agreement and either (a) any provision of the bylaws of the corporation now existing, or (b) any rule of law under the Act which may be altered by a bylaw duly adopted by a Pennsylvania corporation, then, to the fullest extent permitted by the Act, the provisions of this Agreement shall control. To such extent, this Agreement shall be treated as establishing a bylaw. In the event of any conflict between any provision of the Act and an express provision of this Agreement, the express provisions of this Agreement shall control, and the express provisions of this Agreement shall constitute, shall replace and generally stand in lieu of any provisions of the Act constituting default rules applicable to Pennsylvania corporations whose articles of incorporation or its bylaws do not otherwise provide that a Pennsylvania corporation may not or do not otherwise provide, insofar as such provisions (a) relate to the Common Stock, the Shareholders, the Corporation and any other matter governed by this Agreement, and (b) with the effect that such provisions shall have no effect on the Common Stock, the Shareholders or the Corporation. 14. Arbitration. Any controversy or claim arising out of or related to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the then current rules for commercial disputes of the American Arbitration Association, which arbitration shall be held at Harrisburg, Pennsylvania. It is the express intent of the parties hereto that the American Arbitration Association shall provide a list of potential arbitrators for the determination of any such controversy or claim. The Corporation shall select one arbitrator and the other party to the controversy shall select one arbitrator and the arbitrators so selected shall pick a third arbitrator. If either the Corporation or other party to the controversy fails to select its arbitrator within thirty (30) days of the filing of the demand for arbitration with the American Arbitration Association then, and in such event, the sole selected arbitrator shall decide the controversy. If the Corporation and other party to the controversy each select an arbitrator and the arbitrators cannot agree upon a third arbitrator within thirty (30) days after the date in which the first two arbitrators were selected then, and in such event, either party shall ask the American Arbitration Association to select a third arbitrator. The award of the arbitrators in any such proceeding shall be final and binding on the parties hereto, their respective heirs, successors, legal representatives and assigns, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. While the initial costs for arbitration shall be borne equally by the parties, the arbitrators shall have the right to award both legal and equitable remedies and to award the cost of the arbitration, including reasonable attorney's fees, to the prevailing party or to apportion such costs as the arbitrator deems fair and equitable. Notwithstanding the foregoing, any party seeking injunctive or other equitable relief shall have the option to seek such relief (and only such relief) in a court of equity in lieu of arbitration. 11 of 13 15. Miscellaneous. a. Further Assurances. Each party to this Agreement agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement. b. Amendment. Except as otherwise provided herein, the provisions of this Agreement may be altered or amended only with the written consent of all parties hereto. C. Parties Bound. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns, except that no party hereto may assign or transfer his or her rights or obligations hereunder without the prior written consent of the other parties hereto or as otherwise permitted herein. d. Entire Agreement. This Agreement represents the entire agreement of the parties concerning the subject matter hereof, and replaces all previous and contemporaneous agreements concerning such subject matter, whether written or oral. e. Severability. It is intended that each provision of this Agreement shall be viewed as severable, and if any provision shall be held to be invalid, the remaining provisions shall remain in full force and effect. f Headings. The headings of Sections are for convenience only, and shall not affect the interpretation thereof. g. Governing Law. The formation, performance, and interpretation of this Agreement shall be governed by and construed in accordance with the provisions of the laws of the State of Pennsylvania. h. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. i. Gender, Number, Computation of Time. All pronouns used herein shall include all genders and the singular and plural as the context requires. All days, including Saturdays, Sundays and holidays, shall be counted in computing periods defined by number of days. j. Equitable Relief. The parties acknowledge that the Common Stock is unique, and that any violation of this Agreement cannot be compensated for in damages alone. Therefore, in addition to all of the other remedies which may be available under applicable law, any party hereto shall have the right to equitable relief, including without limitation, the right to enforce specifically the terms of this Agreement by obtaining injunctive relief against any violation or nonperformance hereof k. Notices. All notices, requests, demands, and other communications required under this Agreement shall be in writing and shall be deemed to have been duly given 12 of 13 y" on the date of service if served personally on the party to whom notice is to be given, sent by express courier, or mailed by first class mail, registered or certified, postage prepaid, and properly addressed to the party at his or her registered address as it appears on the stockholder register of the Company, or any other address that any party may designate by written notice to the others. 16. Effectiveness of this Agreement. This Agreement shall become effective immediately following its execution and delivery by all of the parties hereto. Thereafter, this Agreement shall continue in full force and effect until it shall terminate in accordance with the terms herein stated. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Z BEST CONSTRUCTION, INC. By;?,+w /- A??- Bryan R. Nester, President Bryan R. Nester Attest• Micha agner, Treasurer ichael P. Wagner SCHEDULE A Bryan R. Nester 1,600 Shares of Common Stock Michael P. Wagner 400 Shares of Common Stock 13 of 13 CERTIFICATE OF SERVICE AND NOW, this 4th day of December, 2007, I, Suzanne C. Hixenbaugh, do hereby certify that I have served the foregoing Answer and New Matter by mailing a true and correct copy via United States first class mail, addressed as follows: Z Best Construction, Inc., Plaintiff c/o Mark Emery, Esq. 410 North Second Street Harrisburg, PA 17101 f V 44 /7 Del, Date Suz e C. Hixenbaugh, Esq. ?... ?? : - . '. -T1 ? ?-?? { s '?, ? ? ,? _?? 3 ? f y., Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913-Civil CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO NEW MATTER AND NOW, comes the Plaintiff, Z Best Construction, Inc., by and through its attorney, Mark K. Emery, Esquire, and files this Answer to New Matter as follows: NEW MATTER AFFIRMATIVE DEFENSE OF FAILURE OF CONSIDERATION 26. No response required. 27. Denied as a conclusion of law. Waiving none of the foregoing, by way of further response, Defendant, through its counsel, specifically stated in correspondence dated March 29, 2007 that Defendant had not separated from the corporation. Defendant may not now take a position in direct contravention to the legal claims made by him and his counsel. 28. Denied. Paragraph 28 refers to a writing which speaks for itself, and therefore paragraph 28 is denied. 29. Denied as stated. Paragraph 29 refers to a pleading of record which speaks for itself, and therefore paragraph 29 is denied. 30. Denied. Paragraph 30 refers to a writing which speaks for itself, and therefore paragraph 30 is denied. f 31. Denied. It is specifically denied that Defendant is due any sums from the corporation, based upon both Defendant's legal position that he has not become separated from the corporation, and due to the fact that the Defendant's own actions has devalued the corporation to such an extent that Defendant's shares are of no value. 32. Denied as a conclusion of law. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement for it and against Defendant. NEW MATTER AFFIRMATIVE DEFENSE OF ARBITRATION AND AWARD 33. No response required. 34. Denied. Paragraph 34 refers to a writing which speaks for itself, and therefore paragraph 34 is denied. 35. Denied. Paragraph 35 refers to a writing which speaks for itself, and therefore paragraph 35 is denied. 36. Denied as stated. It is admitted that Plaintiff has not submitted this matter to an independent appraiser for valuation. By way of further response, Plaintiff incorporates paragraph 27 fully herein. In addition, Plaintiffs claims are for violation of Defendant's breach of fiduciary duty and conversion of corporate assets, and therefore are not based upon the Shareholders Agreement nor the valuation of shares subject to the Shareholders Agreement arbitration clause. 37. Denied as a conclusion of law. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter judgement for it and against Defendant. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esqu' ' Supreme Cou o.72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: December 10, 2007 CERTIFICATE OF SERVICE AND NOW, this 10'h day of December, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Answer to New Matter by mailing a true and correct copy via United States first class mail, addressed as follows: Suzanne C. Hixenbaugh, Esquire Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 LAW OFFICES OF MARK K. EMERY By. Mark K. Emery ? -rz ?.? r, ? }.y (i -^-, `4; ._ i':" :a C;"7 .? Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL P. WAGNER No. 07-4913- Civil Defendant CIVIL ACTION PETITION OF DEFENDANT'S COUNSEL FOR LEAVE TO WITHDRAW The petition of Suzanne C. Hixenbaugh, Esq., respectfully represents the following: 1. The action was filed on August 16, 2007, and petitioner was shortly thereafter retained by defendant to represent him in the matter. 2. On December 4, 2007, after consultation with the defendant, petitioner filed an answer on defendant's behalf, verified by defendant, denying the allegations of the complaint. 3. Since that date, petitioner has heard nothing from the defendant and after numerous attempts has been unable to locate his whereabouts. Petitioner has written a number of times to the last known address of the defendant, but has received no response from him. 4. The case will be listed for trial in the near future and petitioner will be unable to prepare the defense of the action without the presence or availability of the defendant. 5. Petitioner's continued representation of defendant has been rendered unreasonably difficult by virtue of the client's absence, and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for petitioner's withdrawal of appearance in the case. 6. Despite a fee agreement requiring payment by defendant for petitioner's services on an hourly basis and the submission of bills to the defendant, petitioner has received no fee from the defendant for representing him in this action. 7. The continued representation of defendant without payment of petitioner's fees, or the prospect of such payment, has resulted and will further result in an unreasonable financial burden on petitioner, and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for petitioner's withdrawal. 8. Counsel for the plaintiff has been consulted and has no objection to petitioner's withdrawal from this case at this time. WHEREFORE, petitioner requests that this Court grant petitioner leave to withdraw his or her appearance for defendant in this action. Suz e C. Hixenbaugh, Esq. . PA ID No. 91641 26 W High Street Carlisle, PA 17013 (717) 243-6222 Petitioner and Attorney for Defendant VERIFICATION I, Suzanne C. Hixenbaugh, Esquire, hereby verify that the information contained in the foregoing Petition is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. tC?%VW i Date Suzann . Hixenbaugh CERTIFICATE OF SERVICE AND NOW, this 12`h day of May, 2008, I, Suzanne C. Hixenbaugh, do hereby certify that I have served the foregoing Petition by mailing a true and correct copy via United States first class mail, addressed as follows: Michael P. Wagner 407 Pine Road Mount Holly, PA 17065 Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 c Date Suz nne C. Hixenbaugh, Esq. a ? 12 N r s t'' ? a C Z BEST CONSTRUCTION, INC., Plaintiff V. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913- Civil CIVIL ACTION AMENDED PETITION OF DEFENDANT'S COUNSEL FOR LEAVE TO WITHDRAW The amended petition of Suzanne C. Hixenbaugh, Esq., respectfully represents the following: 1. The action was filed on August 16, 2007, and petitioner was shortly thereafter retained by defendant to represent him in the matter. 2. On December 4, 2007, after consultation with the defendant, petitioner filed an answer on defendant's behalf, verified by defendant, denying the allegations of the complaint. 3. Since that date, petitioner has heard nothing from the defendant and after numerous attempts has been unable to locate his whereabouts. Petitioner has written a number of times to the last known address of the defendant, but has received no response from him. 4. The case will be listed for trial in the near future and petitioner will be unable to prepare the defense of the action without the presence or availability of the defendant. 5. Petitioner's continued representation of defendant has been rendered unreasonably difficult by virtue of the client's absence, and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for petitioner's withdrawal of appearance in the case. 6. Despite a fee agreement requiring payment by defendant for petitioner's services on an hourly basis and the submission of bills to the defendant, petitioner has received no fee from the defendant for representing him in this action. 7. The continued representation of defendant without payment of petitioner's fees, or the prospect of such payment, has resulted and will further result in an unreasonable financial burden on petitioner, and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for petitioner's withdrawal. 8. Counsel for the plaintiff has been consulted and has no objection to petitioner's withdrawal from this case at this time. 9. To date, no Judge in Cumberland County has ruled upon this or any other issue in the this matter. WHEREFORE, petitioner requests that this Court grant petitioner leave to withdraw his or her appearance for defendant in this action: _j GCM?l.2 ? •C? ck?iLtsV l? ? 1 ? ?? Suz . Hixenbaugh, Esq. PA ID No. 91641 26 W High Street Carlisle, PA 17013 (717) 243-6222 Petitioner and Attorney for Defendant VERIFICATION I, Suzanne C. Hixenbaugh, Esquire, hereby verify that the information contained in the foregoing Amended Petition is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date Suza . Hixenbaugh, Esq. CERTIFICATE OF SERVICE AND NOW, this 15 1h day of May, 2008, I, Suzanne C. Hixenbaugh, do hereby certify that I have served the foregoing Amended Petition by mailing a true and correct copy via United States first class mail, addressed as follows: Michael P. Wagner 407 Pine Road Mount Holly, PA 17065 Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 C_. a? Date Suzanne C. Hixenbaugh, Esq. N l'r G? n c-n w? '?\ Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 07-4913 CIVIL MICHAEL P. WAGNER, DEFENDANT CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 20th day of May, 2008, upon consideration of the Petition to Withdraw as Counsel filed by the Counsel for Defendant, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant to show cause why the Petitioner should not be granted permission to withdraw as counsel of record; 2. The Defendant will file an answer on or before June 10, 2008; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made absolute. If the Defendant files an answer to this Rule to Show Cause, the Court will determine if a hearing, argument or further Order of Court is needed. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, Suzanne C. Hixenbaugh, Esquire Petitioner -,' Mark K. Emery, Esquire Attorney for Plaintiff .,'?Michael P. Wagner Defendant bas I aO p ?S /vt_.5 c l; - I ! / Nk-? ?i L. Ebert, Jr., J. Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND, COUNTY, PENNSYLVANIA V. NO: 07-4913 CIVIL MICHAEL P. WAGNER, DEFENDANT CIVIL ACTION - LAW MOTION TO MAKE RULE ABSOLUTE On May 12, 2008, Defendant Counsel, Suzanne C. Hixenbaugh, Esq. filed a petition for leave to withdraw her appearance for defendant in this action; 2. On May 20, 2008 an order was issued by the Honorable Judge Ebert, Jr. directing, inter alia, that Defendant show cause on or before June 10, 2008 as to why the petition should not be granted. 3. Defendant failed show cause or file an answer as to why the petition should riot be granted. WHEREFORE, Petitioner Suzanne C. Hixenbaugh, Esq. respectfully requests this Honorable Court to make the Rule Absolute and issue the attached order. Date: give) B 4zaS e C. Hixenbaugh, Esquire PA I.D. No. 91641 26 West High Street Carlisle, PA 17013 Petitioner and Attorney for Defendant c C -n r? k3 4? `• y Jty1 t "? f V ? ? .+V Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND, COUNTY, PENNSYLVANIA V. NO: 07-4913 CIVIL MICHAEL P. WAGNER, DEFENDANT CIVIL ACTION - LAW ORDER OF COURT 11 day of TJnL , 2008, upon consideration of the verified AND NOW, this Petition of Defendant's Counsel For Leave to Withdraw, it is hereby ORDERED and DECREED that said petition is GRANTED and that petitioner, Suzanne C. Hixenbaugh, Esq., be permitted to withdraw her appearance of record for the defendant in the above matter. I t i, f v 0 Owl Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913-Civil CIVIL ACTION - LAW PLAINTIFFS' MOTION TO COMPEL ANSWERS TO DISCOVERY AND NOW, comes the Plaintiff, by and through its counsel, the Law Offices of Mark K. Emery, and files this Motion to Compel Answers to Discovery, as follows: 1. Plaintiff served Interrogatories and a Request for Production of Documents upon Defendant on April 18, 2007. Copies of such discovery requests are attached and incorporated herein as Exhibits "A" and "B", respectively. 2. Defendant has failed to respond to the discovery requests in the time set by the Pennsylvania Rules of Civil Procedure. 3. Defendants have not served objections to the discovery. 4. On May 12, 2008, Defendant's counsel filed a Petition to Withdraw, stating that Defendant has refused to communicate with her. 5. Defendant did not respond to the Rule issued as a result of such petition, and on June 12, 2008 that Rule was made absolute. 6. It is clear that, base upon Defendant's continued refusal to respond to discovery or other pleadings, absent an Order of Court Defendant will not respond to the outstanding discovery requests. 1 WHEREFORE, Plaintiffs respectfully request this Honorable Court Order Defendant to fully respond to Plaintiffs' Interrogatories and Request for Production of Documents within 15 (15) days, or suffer the appropriate sanctions. Respectfully submitted, LAW OFFICES OF MARK K. EMERY 1z? By: Mark K. Emery, Esquire Supreme Court I.D. No. 7 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: June 16, 2008 2 Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant TO: Michael P. Wagner C/o Suzanne C. Hixenbaugh, Esquire Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913-Civil CIVIL ACTION - LAW PLAINTIFF'S FIRST SET OF WRITTEN INTERROGATORIES These Interrogatories are propounded pursuant to the Pennsylvania Rules of Civil Procedure and are to be answered by the Defendant in accordance therewith. Defendant is required to answer these Interrogatories in writing under oath, based upon all information available to it and to its attorneys, employees, and other agents, or representatives. Defendant is also required to serve answers to these Interrogatories within thirty (30) days, to the offices of Plaintiff's counsel, The Law Offices of Mark K. Emery, 410 North Second Street, Harrisburg, PA 17101, and supplement its answers in accordance with the Pennsylvania Rules of Civil Procedure. 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 provides 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. 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 names and present or last known address of the entity's subsidiary, division or subdivision. c. 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. Identify all clients and customers of Wagner Construction from March 2007 to the present. 2. Identify all customers of Z Best Construction, Inc., who provided payments directly to Defendant Wagner, and in addition identify the date such payments were made, and the dispositions of all such funds. Identify all subcontractors paid by Defendant Wagner as alleged in paragraph 19 of Defendant's Answer and New Matter, and in addition identify the amount of such payments, and date such payments were made. Identify the amount of Defendant Wagner's hourly wage paid to him as alleged in paragraph 19 of Defendant's Answer and New Matter. Identify the date for which Defendant Wagner permanently separated himself as shareholder from the corporation. 6. Identify the date on which Defendant Wagner resigned as an officer and director of the Z Best Construction. 7. Identify the date Defendant Wagner submitted his alleged dispute as to the fair market value of his shares of the Z Best Construction to a third party appraiser. Identify the date Defendant Wagner changed the locks on the warehouse utilized by Z Best Construction. Identify the monthly rent for the warehouse utilized by the Z Best Construction. 10. Identify all payments made by Z Best Construction for rent of the warehouse, and all payments and the date of all payments made by Defendant Wagner for the use of the warehouse. 11. Identify the current location of the Z Best Construction's truck being retained by Defendant Wagner, and in addition identify all miles put on the truck from March 2007 to the present. 12. Identify all employees of Wagner Construction. 13. Identify all tools or materials in your possession currently, or which were in your possession from March 2007, which are the property of Z Best Construction, Inc., or which were utilized during your course of work with Z Best Construction but you assert ownership. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: April 18, 2008 CERTIFICATE OF SERVICE AND NOW, this 18'h day of April, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing First Set of Written Interrogatories by mailing a true and correct copy via United States first class mail, addressed as follows: Suzanne C. Hixenbaugh, Esquire Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery W. Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913 -Civil CIVIL ACTION - LAW PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO: Michael P. Wagner C/o Suzanne C. Hixenbaugh, Esquire Saidis, Flower & Lindsay 26 West High Street 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 Plaintiffs counsel, The Law Offices of Mark K. Emery, 410 North Second Street, Harrisburg, PA 17101, or alternatively, by delivering copies of the same to the Defendant's counsel at the aforesaid address. This Request for Production of Documents is deemed continuing so as to require a supplemental answer if Defendant, or Defendants' 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 Plaintiff requests that Defendants 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. "Defendant" shall mean Michael P. Wagner, and any business, whether a sole proprietorship or otherwise, of which he currently operates or controls. 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: 0 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. REQUESTED DOCUMENTS Copies off all checks for payments made directly to Defendant Wagner and/or Wagner Construction by clients of, or for work performed by, Z Best Construction, Inc. 2. All contracts for construction work entered into by Defendant Wagner and/or Wagner Construction from March 2007 to the present. 3. All bank account statements for any account in which Wagner Construction has submitted deposits from March 2007 to the present. 4. Copies of all checks, invoices or other documentation of payments received by Wagner Construction for construction work from March 2007 to the present. 5. All documents evidencing all payments to subcontractors retained by Z Best Construction, as referenced in Paragraph 11 of Defendant's Answer and New Matter. 6. The title to the corporate truck retained by Defendant Wagner. 7. All documents evidencing the fair market value of the corporate truck retained by Defendant Wagner, as of both March 2007 and the present date. 8. All documents evidencing any maintenance or repairs performed on the corporate truck being retained by Defendant Wagner. 9. All documents evidencing whether insurance has been retained on the corporate truck from March 2007 to the present. 10. All payments made by Defendant Wagner and/or Wagner Construction for the phone book advertising for the Wagner Construction phone number. 11. All documents evidencing the hourly wage paid to Defendant Wagner as referenced in Paragraph 19 of Defendant's Answer and New Matter. 12. All business cards or other advertising for Defendant Wagner's constructions business, including Wagner Construction, from March 2007 to the present. 13. All documents evidencing the date of Defendant Wagner's separation as a shareholder from the Z Best Construction. 14. All documents evidencing the fair market value of Defendant Wagner's shares of Z Best Construction, Inc. 15. All documents evidencing demand made by Defendant Wagner upon Z Best Construction, Inc., for payment for the value of Defendant Wagner's, shares. 16. All documents evidencing Defendant Wagner's submission to an independent third party appraiser for the determination of the fair market value of his shares of Z Best Construction, Inc. IT Federal tax returns for Defendant Wagner for year 2007, including all schedules and statements. 18. Any lease agreement for the warehouse utilized by Z Best Construction. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: April 18, 2008 CERTIFICATE OF SERVICE AND NOW, this 18'' day of April, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing First Request for Production of Documents by mailing a true and correct copy via United States first class mail, addressed as follows: Suzanne C. Hixenbaugh, Esquire Saidis, Flower & Lindsay 26 West High Street Carlisle, PA 17013 LAW OFFICES OF MARK K. EMERY By: , Mark K. Emery CERTIFICATE OF SERVICE AND NOW, this 16th day of June, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Compel Answers to Discovery by mailing a true and correct copy via United States first class mail, addressed as follows: Michael P. Wagner 407 Pine Road Mt. Holly Springs, PA 17065 LAW OFFICES OF MARK K. EMERY e- '? By: Mark K. Emery ?'` rv r- r?a73 ;rn ?` crt r Z BEST CONSTRUCTION, INC., Plaintiff vs. MICHAEL P. WAGNER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-4913-Civil CIVIL ACTION - LAW AMENDMENT TO PLAINTIFFS' MOTION TO COMPEL ANSWERS TO DISCOVERY AND NOW, comes the Plaintiff, by and through its counsel, the Law Offices of Mark K. Emery, and files this Amendment to Plaintiffs' Motion to Compel Answers to Discovery, as follows: 1. This amendment is filed in order that Plaintiffs' original Motion, filed on or about June 17, 2008, complies with the Cumberland County Local Rules of Court. 2. The Honorable Judge Ebert has previously ruled upon the Petition of Defendant's Counsel for Leave to Withdraw, and has granted such Petition. No other matters have been submitted for judicial disposition. 3. As Defendant is now acting pro se, the undersigned has not contacted him in order to determine if he would concur to this Motion. WHEREFORE, Plaintiffs respectfully request this Honorable Court Order Defendant to fully respond to Plaintiffs' Interrogatories and Request for Production of Documents within fifteen (15) days, or suffer the appropriate sanctions. r Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emer squire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: June 16, 2008 2 f? CERTIFICATE OF SERVICE AND NOW, this 16th day of June, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Amendment to Motion to Compel Answers to Discovery by mailing a true and correct copy via United States first class mail, addressed as follows: Michael P. Wagner 407 Pine Road Mt. Holly Springs, PA 17065 LAW OFFICES OF MARK K. EMERY Mark K. Emery ?? ? ? ?-` ?' ---? ?, ? ?„? ? .Y} . ..--. ?? _ !? ; ' ? -? ('+,? Z BEST CONSTRUCTION, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL P. WAGNER, DEFENDANT NO. 07-4913 CIVIL ORDER OF COURT AND NOW, this 7th day of July, 2008, upon consideration of Plaintiffs Motion to Compel Answers to Discovery, and the Amendment thereto, IT IS HEREBY ORDERED AND DIRECTED that Defendant shall provide full and complete answers within 20 days of the date of this order or suffer appropriate sanctions. By the Court, - N\1UA - M. L. Ebert, Jr., J Mark K. Emery, Esquire Attorney for Plaintiff Michael P. Wagner Defendant Q bas m c OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle, PA 17013 Phone (717) 240-6200 Toll Free 1-888-697-0371 x6200 Fax(717)240-6460 courtadmin@ccpa.net Mark K. Emery, Esquire June 20, 2008 VIA FACSIMILE ONLY: (717) 238-9884 RE: Failure to Comply with Cumberland County Local Rule 208.3 (a) Plaintiff's motion to compel answers to discovery (2007-4913) Dear Mr. Emery: Please note that due to your failure to comply with Cumberland County Local Rule 208.3(a)(2) and/or Rule 208.3(a)(9), your motion will be held in the Court Administrator's Office until an amendment containing the missing information is filed in the Prothonotary's Office. If after two notices no amendment has been filed, your motion will be sent back to the Prothonotary's office and placed in the file and no further action will be taken. Rule 208.3(a). Motions. (2) The motion shall state whether or not a Judge has ruled upon any other issue in the same or related matter, and, if so, shall speck the judge and the issue. (9) All motions and petitions shall contain a paragraph indicating that the concurrence of any opposing counsel of record was sought and the response of said counsel; provided, that this requirement shall not apply to preliminary objections, motions for judgment on the pleadings, motions for summary judgment, petitions to open or strike judgments, and motions for post-trial relief. Please note that you do not need to file an additional proposed order or provide additional envelopes for service. Your amendment will be attached to the original motion. Please feel free to contact me if you have any questions or concerns regarding this matter. e ,jrely, e A. Mitchell Deputy Court Administrator TRANSMISSION VERIFICATION REPORT TIME 06/19/2008 21:22 NAME ; FAX TEL SER.# : BRODGJ462119 DATE,TIME 06119 21:21 FAX N0./NAME 92389884 DURATION PAGE(S) 00:00:32 RESULT K MODE ECM r ? OFFICE OF THE COURT ADMINISTRATOR CUMBERLAND COUNTY COURT OF COMMON PLEAS 1 Courthouse Square • Carlisle, PA 17013 Phone (717) 240-6200 Toll Free 1-888-697-0371 x6200 Fax(717)240-6460 Courtedmin@ccpa.net Mark K. Emery, Esquire June 20, 2008 VIA FA.CSD4 LE ONLY: (717) n8-9884 RE: Failure to Comply with Cumberland County Local Rule 208.3 (a) PlAlntiff s motion to cpmpel a"sweirs to discovery (20074913) Dear W. Emery: Please note that due to your failure to comply with Cumberland C Local a)(2) Rule 208.3(a)(9), your motion will be held in the Count Administror's lama end Rule 208.3(ng the and/or missing information is filed in the Prothonotary's Office. If after two notioes office no oamendmen ? ? filed, g ur motion will be sent back to the Prothonotary's office and placed in the file and no further action will be taken Rule 208 3(a). Motions. (2) The »iotion shall state whether or not a Judge hav ruled upon any other issue in matter, and, iifso, shall sped the judge and the issue- the same or related Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 07-4913-Civil MICHAEL P. WAGNER CIVIL ACTION - LAW Defendant PLAINTIFFS' MOTION FOR SANCTIONS AND NOW, comes the Plaintiff, by and through its counsel, the Law Offices of Mark K. Emery, and files this Motion for Sanctions, as follows: Plaintiff served Interrogatories and a Request for Production of Documents upon Defendant on April 18, 2007. 2. Defendant failed to respond to the discovery requests, thereby causing plaintiff to file a Motion to Compel Answers to Discovery on June 17, 2008. 3. The Court, by the Honorable Judge Ebert, issued an Order dated July 7, 2008, requiring Defendant to "provide full and complete answers within 20 days of the date of this order or suffer appropriate sanctions." A copy of such Order is attached hereto as Exhibit "A". 4. The Honorable Judge Ebert has previously ruled upon the Petition of Defendant's Counsel for Leave to Withdraw, and has granted such Petition. No other matters have been submitted for judicial disposition. 5. As Defendant is now acting pro se, the undersigned has not contacted him in order to determine if he would concur to this Motion. 6. The parties to the action are Plaintiff, a Pennsylvania corporation, and Defendant, one of the two shareholders and directors of the corporation. 1 7. Plaintiff's Complaint contains two causes of action: Count I for Conversion of corporate assets, claiming Defendant has retained Plaintiff's assets necessary to conduct its construction business, such as a company truck and tools; and, Count II, Breach of Fiduciary Duty, claiming Defendant has kept corporate assets and funds, as well as maintained his own construction business in competition to the that run by Plaintiff. Absent Defendant responding to the requested discovery, Plaintiff will not be able to proceed on its suit as the discovery is the only avenue to determine the location and condition of the assets maintained by Defendant, and is the only manner in determining what corporate jobs, and the value of such, that have been usurped by Defendant. 9. Plaintiff's claim for Conversion is of an amount certain of $12,000.00. Plaintiff's claim for Breach of Fiduciary Duty is unliquidated at this time. 10. Due to Defendant's continued evasion of discovery, and blatant contempt of this Court's discovery Order, the appropriate sanction is to enter judgment for Plaintiff under Count I, in the amount of $12,000.00, and further enter judgment for Plaintiff on Count II, in an unliquidated amount, with such damages under Count II to be determined upon a future hearing on the issue of damages. 11. In addition, this Court should order Defendant to pay attorney's fees incurred by Plaintiff in having to prepare and file its Motion to Compel Answers to Discovery and this Motion for Sanctions, that amount being $500.00. 2 WHEREFORE, Plaintiffs respectfully request this Honorable Court order the appropriate sanctions, that sanction being judgment on Count I in favor of Plaintiff and against Defendant in the amount of $12,000.00, and judgment on Count II in favor of Plaintiff and against Defendant in an unliquidated amount, and further award Plaintiff $500.00 in attorney's fees for the cost incurred in preparing and filing these discovery motions. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By. Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Plaintiff DATE: July 29, 2008 3 Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL P. WAGNER, DEFENDANT NO. 07-4913 CIVIL ORDER OF COURT AND NOW, this 71" day of July, 2008, upon consideration of Plaintiff's Motion to Compel Answers to Discovery, and the Amendment thereto, IT IS HEREBY ORDERED AND DIRECTED that Defendant shall provide full and complete answers within 20 days of the date of this order or suffer appropriate sanctions. By the Court, M. L. Ebert, Jr., J. Mark K. Emery, Esquire Attorney for Plaintiff Michael P. Wagner Defendant bas ~H #if>n?ny v???r t, f here UntO Sei r <y hart-t1 tole seal of said Court at Carlisle, Pa. C 27L1 k Proth fi i CERTIFICATE OF SERVICE AND NOW, this 29th day of July, 2008, I, Magk K. Emery, Esquire do hereby certify that I have served the foregoing Motion for Sanctions by mailing a true and correct copy via United States first class mail, addressed as follows: Michael P. Wagner 407 Pine Road Mt. Holly Springs, PA 17065 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery w f.,„? t.? !? w.e. ( .. ._ ' ?. L, ""Y . .. , .? ? ? i Fr - t ?' t?_.:,? v t'^*.? 4 .. R°.• ?. i 1e .:..? ...( p;. . ?.? Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-4913 CIVIL MICHAEL P. WAGNER, DEFENDANT CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 61h day of August, 2008, upon consideration of the Plaintiff's Motion for Sanctions, and it appearing that the Defendant has violated the Order of this Court dated July 7, 2008, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendant to show cause why he should not be held in contempt; 2. The Defendant will file an answer to the Rule on or before August 28, 2008; 3. The Prothonotary is directed to forward said Answer to this Court. 4. The Cumberland County Sheriff's Department is directed to personally serve the Defendant with this Order of Court. 5. A hearing on this matter will be held on Friday, September 12, 2008, at 9:30 a.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Failure of the Defendant to file an Answer to the Rule will result in a warrant being issued for his arrest and a hearing on the contempt citation being set. By the Court, Xark K. Emery, Esquire Attorney for Plaintiff \ 4 1*1, M. L. Ebert, Jr., J. 9z .z wa 9- " 084 1111 xn c hael P. Wagner, Pro Se efendant 407 Pine Road Mt. Holly Springs, PA 17065 Cumberland County Sheriff - &A S 8I bas 1( . AM & ILiLAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 Z BEST CONSTRUCTION, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL WAGNER Defendant TO THE PROTHONOTARY: : NO.: 07-4913 Civil Action-Law PRAECIPE OF ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant, Michael Wagner, in the above- captioned matter. DATE c0 acok Respectfully submitted, ABom ter KumLAKIS, LLP Wayne Me Lick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 CERTIFICATE OF SERVICE AND NOW, this 6`h day of August, 2008, I, Wayne Melnick, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing Praecipe of Entry of Appearance by hand deliver addressed to the following: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Respectfully submitted, ABom & KUTULAKis, LLP DATE A-I? l F' F Wayne Melnic Esquire ° m M =r ?? te x TA BOM & &U i ULAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 Z BEST CONSTRUCTION, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL WAGNER Defendant TO THE PROTHONOTARY: NO.: 07-4913 Civil Action-Law DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS AND NOW, comes the Defendant, by and through its counsel, the law offices of Abom & Kutulakis, LLP, and files this response to Plaintiffs Motion for Sanctions as follows: 1. Admitted. 2. Admitted in part and denied in part. Admitted that Defendant failed to respond to the discovery request. Denied that Defendant's failure to respond to discovery request forced Plaintiff to file a Motion to Compel to answer discovery as Defendant is without knowledge of what effort Plaintiff took to secure discovery short of filing the Motion to Compel. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. Plaintiff's Motion for Sanctions plead no facts upon which to characterize Defendant's action as "continued invasion of discovery" and "blatant contempt." By way of further answer, Defendant's have retained undersigned counsel who has provided them with copies of Plaintiff's Request for Production of Documents and Interrogatories and directed Defendant to begin compiling responses post-haste. With the Entry of Appearance of counsel and the preparation of responses to Plaintiff's request for discovery whereas the sanction requested by Plaintiff would not be appropriate. Plaintiff's pleading fails to demonstrate necessary factors to impose such a sanction. Plaintiff's pleading fails to demonstrate that the requested sanction is appropriate compared to the violation of the discovery rules. Factors that must be considered when a discovery sanction is imposed are appropriate based upon the prejudice caused to Plaintiff, whether the prejudice can be cured by Defendant now complying with discovery requests, facts regarding the Defendants willfulness for bad faith and failing to comply with Discovery Order and any other irreparable prejudice if Defendant now complies with Plaintiff's discovery request. See Reilly v. Ernst and Young. LLP, 929A2d1193, Pa.Super.2007. 11. Denied. Defendant is without any knowledge as to the amount and reasonableness of the attorneys' fees incurred by Plaintiff in preparing its Motion to Compel answers. Wherefore, strict proof hereof is demanded. -? WHEREFORE, Defendant respectfully requests This Honorable Court refrain from issuing sanctions until such time as it can be determined whether with the assistance of counsel, Defendant may now bring himself in compliance with the prior Discovery Order in this matter. Respectfully submitted, DATE • S? ABom & KUTULAKIS, LLP Wayne elnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 CERTIFICATE OF SERVICE AND NOW, this 6"' day of August, 2008, I, Wayne Melnick, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS by hand deliver addressed to the following: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Respectfully submitted, ABOM & KUTULAKIS, LLP DATE AAQ ? Obff Wayne elnick, squire _, c-> SHERIFF'S RETURN - REGULAR CASE NO: 2007-04913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND Z BEST CONSTRUCTION INC VS WAGNER MICHAEL P WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WAGNER MICHAEL P the DEFENDANT , at 0018:09 HOURS, on the 7th day of August 2008 at 407 PINE ROAD MT HOLLY SPRINGS. PA 17065 MICHAEL P WAGNER by handing to DEFENDANT a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of So Answers: .00 / .00 ?A08 .00 00 -/5z .00 M "Thomas Kline .00 .00 08/08/2008 NO FEE CHARGED By :4? day Deputy Sheriff A. D. AM & ruLnicis Wayne Melnick, Esquire Attorney LD. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 Z BEST CONSTRUCTION, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL WAGNER Defendant TO THE PROTHONOTARY: NO.: 07-4913 Civil Action-Law DEFENDANT'S ANSWER TO THE RULE TO SHOW CAUSE AND NOW, comes the Defendant, by and through its counsel, the law offices of Abom & Kutulakis, LLP, and files this response to Plaintiffs Motion for Sanctions as follows: 1. On August 6, 2008, the Honorable Judge M.L. Ebert, Jr., issued an Order directing Defendant to show cause why he should not be held in contempt. 2. A hearing on this matter is scheduled before the Honorable Judge M.L. Ebert, Jr. on September 12, 2008. 3. On July 29, 2008, Plaintiff filed a Motion for Sanctions alleging evasion of discovery. 4. On April 18, 2008, Plaintiff filed its First Set of Written Interrogatories and Request for Production of Documents. 5. On June 16, 2008, Plaintiff filed an Amendment to Plaintiff's Motion to Compel Answers to Discovery correcting procedural flaws in its original Motion filed on June 17, 2008. 6. On July 7, 2008, the Honorable Judge M.L. Ebert, Jr. issued an Order directing Defendant to provide full and complete answers within 20 days. 7. Defendant was not represented by counsel from May 20, 2008, when his prior counsel was granted leave to withdraw until August 6, 2008, when undersigned counsel entered his appearance. 8. Since August 6, 2008, Defendant has worked diligently with counsel to comply with Plaintiffs discovery requests. 9. On August 28, 2008, Defendant, through counsel, has completed and mailed his response to Plaintiffs discovery requests. 10. Plaintiffs Motion for Sanctions plead no facts upon which to characterize Defendant's action as "continued invasion of discovery" and "blatant contempt." With the Entry of Appearance of counsel and Defendant's responses to Plaintiffs request for discovery the sanction requested by Plaintiff would not be appropriate. 11. Plaintiffs pleading fails to demonstrate necessary factors to impose such a sanction. 12. Plaintiffs pleading fails to demonstrate that the requested sanction is appropriate compared to the violation of the discovery rules. Factors that must be considered when a discovery sanction is imposed are appropriate based upon the prejudice caused to Plaintiff, whether the prejudice can be cured by Defendant now complying with discovery requests, facts regarding the Defendants willfulness for bad faith and failing to comply with Discovery Order and any other irreparable prejudice if Defendant now complies with Plaintiffs discovery request. See Reilly v. Ernst and Young, LLP, 929.A2d.1193, (Pa. Super. 2007). 13. Defendant is without any knowledge as to the amount and reasonableness of the attorneys' fees incurred by Plaintiff in preparing its Motion to Compel answers. Wherefore, strict proof hereof is demanded. WHEREFORE, Defendant respectfully requests This Honorable Court refrain from issuing Sanctions. Defendant has brought himself to compliance with the prior Discovery Order in this matter. Respectfully submitted, DATE Ob ABOM & KUTULAKIS, LLP Wayne Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 CERTIFICATE OF SERVICE AND NOW, this 28th day of August, 2008, I, Wayne Melnick, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing DEFENDANT'S ANSWER TO THE RULE TO SHOW CAUSE by first class mail addressed to the following: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Respectfully submitted, ABOM & KUTULAKIs, LLP DATE d? 2L Wayne elnick, E quire r.a co ?r. Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-4913 CIVIL MICHAEL P. WAGNER, DEFENDANT CIVIL ACTION - LAW ORDER OF COURT AND NOW this 1 e day of September, 2008, this being the time and place scheduled for the Plaintiffs Motion for Sanctions and prior to testimony the parties having reached an agreement; IT IS HEREBY ORDERED AND DIRECTED that Defendant is found in contempt of the Order of Court dated July 7, 2008, directing him to respond to discovery within 20 days. IT IS FURTHER ORDERED AND DIRECTED given the fact that the Defendant did eventually comply with the Order and having agreed to make a $500.00 payment to the Plaintiff by the close of business today, no further sanctions will be ordered. IT IS FURTHER ORDERED AND DIRECTED by agreement of the parties that the deadline for discovery in the above captioned case shall be set at 60 days from today's date. By the Court, Mark K. Emery, Esquire Attorney for Plaintiff 410 North Second Street Harrisburg, PA 17101 ?Wayne Melnick, Esquire Abom & Kutulakis Attorney for Defendant bas ?.:OiJ1ES' rrtl.t l.?ct_.. 14?l S?D$ ?Vq? ?A 1 M. L. Ebert, Jr., J. 69:L WV 91 V 81 OS OOOZ j.l? 1L7 .+ +++. 3§14 0 CA/ PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. ?X for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Z Best Construction, Inc. 2010 AH 27 F f ? ? ? 1 CU?d _: ?iV I r`' (check one) ® Civil Action - Law ? Appeal from arbitration (other) vs. Michael Wagner vs. (Plaintiff) (Defendant) The trial list will be called on March 3 0, 2 010 and Trials commence on April 26, 2010 Pretrials willbe held on April 7, 2010 (Briefs are due S days before pretrials No. 4 913 , 2007 Term Indicate the attorney who will try case for the party who files this praecipe: Mark K. Emery, Esquire Indicate trial counsel for other parties if known: Wayne Melnick, Esquire This case is ready for trial. Signed: Print Name: Mark K. Emery, Esquire Date: 1/26/2010 Attorneyfor: Z Best Construction, Inc. 05•oo PD AT -f at 0. 01(o ato Z BEST CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MICHAEL WAGNER, Defendant NO. 07-4913 CIVIL TERM ORDER OF COURT AND NOW, this 11t` day of February, 2010, a pretrial conference in the above matter is scheduled for Tuesday, May 4, 2010, at 3:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Wednesday, June 2, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. ?Mark K. Emery, Esq. 410 N. Second Street Harrisburg, PA 17101 Attorney for Plaintiff .,Wayne Melnick, Esq. 2 West High Street Carlisle, PA 17013 Attorney for Defendant n CV N vv N c? N "6 Fi; 1c r„ Court Administrator (26f 'ev MCULC a/r?,l rv BY THE COURT, it •% Z BEST CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVAI;A 4 Plaintiff C CIVIL ACTION - LAW 70 ixl o v rtlr? MICHAEL WAGNER, Defendant NO. 07-4913 CIVIL TERM, C • `-? i' IN RE: PRETRIAL CONFERENCE A pretrial conference in the above-captioned case was held in the chambers of Judge Oler on May 4, 2010. Present on behalf of the Plaintiff was Mark K. Emery, Esquire. Present on behalf of the Defendant was Wayne Melnick, Esquire. This case involves claims for conversion and breach of fiduciary duty brought by the Plaintiff against the Defendant. No counterclaims have been filed in the case. The estimated duration of trial is one day. The trial will be nonjury, and by separate order of Court has been scheduled for Wednesday, June 2, 2010, at 9:30 a.m. Counsel have agreed to stipulate to the authenticity of certain letters written by Suzanne Hixenbaugh, Esquire, Mark Emery, Esquire, and Robert May, Esquire, without conceding the admissibility of those letters. One issue expected to arise in the case is the validity of certain affirmative defenses raised by Defendant, it being Plaintiff's position that these affirmative defenses are not relevant to the Plaintiff's action. Defendant concedes for purposes of the trial that a certain truck titled in the name of Defendant is actually an asset of Plaintiff. With respect to settlement negotiations, counsel have indicated that they do not anticipate the case to be settled. Mark K. Emery, Esquire 410 N. Second Street Harrisburg, PA 17101 For Plaintiff dyne Melnick, Esquire 2 West High Street Carlisle, PA 17013 For Defendant Court Administrator :mae ? I'ez s?rv?ta By the Court, FILED-?), A OM &' ULAKIS Jason P. Kutulabs, Esquire Attorney LD. No.: 80411 Melissa P. Tanguay, Esquire Attorney I.D. No. 307155 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 Z BEST CONSTRUCTION, INC. Plaintiff V. MICHAEL WAGNER Defendant TO THE HONORABLE JUDGE OLER: 2010 W Ay ! 9 FN 3: ,;; 1 1: 1'i .?11'1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO.: 07-4913 CIVIL ACTION - LAW MOTION FOR CONTINUANCE OF NON JURY TRIAL AND NOW, comes the Defendant, by and through its counsel, ABOM & KUTULAKIS, LLP, and moves this Honorable Court for a continuance of Non Jury Trial that is currently scheduled for June 2, 2010 at 9:30 a.m., and in support thereof avers the following: 1. Wayne Melnick, Esquire is no longer affiliated with the law firm of Abom & Kutulakis, LLP as of May 7, 2010. 2. This case has been reassigned to undersigned counsel and undersigned counsel is unavailable on June 2, 2010. 3. Undersigned counsel contacted Attorney Mark Emery, counsel for Plaintiff, to request a continuance and he concurred with the continuance. 4. Undersigned counsel's staff contacted Judge Oler's chambers to inquire as to availability for a rescheduled non-jury trial and judge Oler is available for a full day non-jury trial on August 23, September 1, September 2, or September 3, 2010. Both undersigned counsel and Attorney Emery concur with the hearing occurring on any of those four (4) possible dates. WHEREFORE, the Defendant respectfully requests that this Honorable Court reschedule the non-jury trial scheduled for June 2, 2010 at 9:30 a.m. to August 23, September 1, September 2 or September 3, 2010. Respectfully submitted, ABOM & SUTULA"S, LLP DATE15? [C a ?? . f,,,-Jason P. Kutulakis, Esq 2 West High Street Carlisle, PA 17013 (717) 249-0900 ID No. 80411 CERTIFICATE OF SERVICE AND NOW, this 19`h day of May, 2010, I, Sally Evans, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing MOTION TO CONTINUE NON JURY TRIAL by first class mail addressed to the following: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Sally Evans MOM dz' &uTULAKis Jason P. Kutulakis, f 'squire Attorney I.D. No: 53150 Melissa P. Tanguay, Esquire Attorney I.D. No: 307155 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 Z BEST CONSTRUCTION, INC., Plaintiff V. MICHAEL WAGNER, Defendant (IF FLED--0-;_ :.. ARY 2010 MAY 19 Pt; 3: s I CUM j i l,: 1V1 3TY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 07-4913 CIVIL ACTION - LAW Please enter our appearance on behalf of Michael Wagner, in place of Wayne S. Melnick, Esquire, in the above-captioned matter. Respectfully submitted, ABOM & Ku=A"s, LLP DATE t L? Jason P. Kutulakis, Esq 2 West High Street Carlisle, PA 17013 (717) 249-0900 ID No. 81927 ABOM & KUTULASIS, LLP DATE 5. Melissa P. Tanguay, Esquire 2 West High Street Carlisle, PA 17013 (717) 249-0900 ID No. 307155 AND NOW, this day of May, 2010, I, Sally Evans of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Substitute Counsel by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: Mark K. Emery, Esquire LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 17101 (Attorney for Plaintf Sally Evans Z BEST CONSTRUCTION, INC., Plaintiff V. MICHAEL WAGNER, Defendant R.H. DONNELLEY PUBLISHING & ADVERTISING, INC., Plaintiff V. MICHAEL WAGNER, d/b/a Z BEST CONSTRUCTION, INC., Defendant V. BRIAN NESTER & Z BEST CONSTRUCTION, INC., Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-4913 CIVIL TERM , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW a' f f': cn ce NO. 08-7174 CIVIL TERM IN RE: MOTION TO CONSOLIDATE CIVIL ACTIONS PURSUANT TO Pa. R.C.P. RULE 213(a) WITH MOTION TO STAY TRIAL AND MOTION TO REMAND TO ARBITRATION ORDER OF COURT AND NOW, this 24th day of August, 2010, upon consideration of the Motion to Consolidate Civil Actions Pursuant to Pa. R.C.P. Rule 213(a) with Motion To Stay Trial and Motion To Remand to Arbitration, the motion is denied by reason of its having been received too close to trial for the court to obtain and consider a response from the non- moving parties, including a pro se litigant. The relief requested will, however, be granted if the movant secures the concurrence of all other parties prior to trial as scheduled. BY THE COURT, ,/Jason P. Kutulakis, Esq. Melissa P. Tanguay, Esq. 2 West High Street ?Car?lisle, PA 17013 ? Mark K. Emery, Esq. 410 N. Second Street Harrisburg, PA 17101 Michael R. Lessa, Esq. Amato & Associates, PC 107 North Commerce Way Suite 100 Bethlehem, PA 18017-8930 -. Brian Nester 10 Gordon Drive Carlisle, PA 17013 ?O L ?ES /YLc1 L ?? g a s??? s J Wesley 01 , Jr., j. ABOM C& ' - &UTLILAKIS Jason P. Kutulakis. Esquire Attorli fy I.D. No.: 80411 Melissa P. Tauguay. Esquire lttorng, J.D. ?`'o. 307 755 3 If-est Hzgb Street Carlisle, Pe?ta rydvania 17 D j-' (-17 ) 249-0900 Z BEST CONSTRUCTION, INC Plaintiff V. MICHAEL WAGNER Defendant R.H. DONNELLEY PUBLISHING & ADVERTISING, INC. Plaintiff v. MICHAEL WAGNER d/b/a Z BEST CONSTRUCTION Defendant v. BRIAN NESTER & Z BEST CONSTRUCTION, INC. Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 07-4913 CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 08-7174 Civil Term TO THE HONORABLE WESLEY OLER, JR., JUDGE: MOTION TO CONSOLIDATE CIVIL ACTIONS PURSUANT TO Pa.R.C.P. Rule 213(a) WITH MOTION TO STAY TRIAL AND MOTION TO REMAND TO ARBITRATION AND NOW, comes the Defendant, by and through his counsel, Jason P. Kutulakis, Esquire and Melissa P. Tanguay, Esquire, of ABOM & KUTULAKIS, LLP, and moves This Honorable Court to consolidate the above-captioned civil actions, stay the non-jury trial in Z Best Construction, Inc. v. Michael Wagner and remand the case to arbitration, and in support thereof avers as follows: 1. On January 26, 2010, Plaintiff Z Best Construction, Inc. listed Z Best Construction, Inc. v. Michael Wagner for non-jury trial before This Honorable Court. 2. On May 11, 2010, This Honorable Court, by and through judge Wesley Oler, issued a Pre- Trial Order, following the submission of pre-trial memoranda and a pre-trial conference with This Honorable Court. 3. On May 20, 2010, This Honorable Court continued the non-jwy trial to September 1, 2010 on motion of Defendant Michael Wagner, due to a change in counsel for Mr. Wagner. 4. Mr. Wagner is the Defendant in a related civil action in the Cumberland County Court of Common Pleas, R.H. Donnelley Publishing & Advertising, Inc. v. Michael Wagner, d/b/a Z Best Construction v. Brian Nester & Z Best Construction, Inc., No. 08-7174 Civil Term. 5. The Donnelley v. Wagner, et al. civil action arises out of unpaid invoices from advertising for Z Best Construction, Inc. in the local Yellowpages. 6. On August 2, 2010, Mr. Wagner filed a joinder Complaint in the Donnelley v. Wagner, et al. civil action against Z Best Construction, Inc. and Brian Nester, Plaintiff in the Z Best v. Wagner civil action. 7. Mr. Wagner's Joinder Complaint alleges sole liability and/or contribution against Brian Nester and sole liability, contribution and/or indemnification against Z Best Construction, Inc. S. On August 6, 2010, the Cumberland County Office of the Sheriff served the joinder Complaint on Mr. Nester and Z Best Construction, Inc. at Mr. Nester's home. 9. Mark Emery, Esquire, counsel for Z Best Construction, Inc. was notified of the filing of the joinder Complaint against his client, but declined to accept service of the joinder Complaint for his client. 10. The above-captioned cases should be consolidated pursuant to Pa.R.C.P. Rule 213(a) because the civil actions involve common questions of fact and law and arise from the same transactions or occurrences. 11. The Donnelley v. Wagner, et al. civil action involves debts of Z Best Construction, Inc. 12. Z Best Construction, Inc. cannot be properly dissolved in the Z Best v. Wagner civil action without first resolving the debts at issue in the Donnelley v. Wagner, et al. civil action. 13. This Honorable Court should Order a joint hearing or trial of the above-captioned cases to avoid unnecessary cost and delay of either matter. 14. This Honorable Court should stay the non-jury trial in Z Best v. Wagner, scheduled for September 1, 2010, in order for the requested consolidation to occur. 15. Furthermore., the Plaintiff in Z Best Construction, Inc. v. Wagner. alleges the amount at issue to be $12,000 in the initial Complaint and then $20,000 at a later time, both of which amounts are well below the limit for compulsory arbitration :in Cumberland County of $50,000, in accordance with C.C.R.P. Rule 1301-1. 16. This Honorable Court should immediately remand the Z Best v. Wagner civil action, or the consolidated civil actions, for presentation to a panel of arbitrators in Cumberland County. 17. Undersigned counsel has sought the concurrence of counsel for Z Best Construction, Inc. and Brian Nester, Mark Emery, Esquire and Attorney Emery opposes the relief requested. 1 S. Undersigned counsel has sought the concurrence of counsel for R.H. Donnelley Publishing & Advertising, Inc., Michael R. Lessa, Esquire, and concurrence was received. WHEREFORE, Defendant Michael Wagner respectfully requests that This Honorable Court consolidate the above-captioned civil actions, stay the non-jury trial in. Z Best Construction, Inc. v. Michael Wagner and remand the case for arbitration in Cumberland County. Respectfully submitted, ABOM & KUTULA"s, LLP D_vm: AUGUST 19, 2010 a 6'__ Jas g'n Rkuwlakis, Esquire ID 0. 80411 Melissa P. Tanguay, Esquire ID No. 307155 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorrneys for Defendant CERTIFICATE OF SERVICE AND NOW, this 19" day of August, 2010, I, Shannon Freeman, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing MOTION TO CONSOLIDATE CIVIL ACTIONS PURSUANT TO Pa.R.C.P. Rule 213(a) WITH MOTION- TO STAY TRIAL AND MOTION TO REMAND TO ARBITRATION by U.S. Mail, First Class, addressed to the following: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff Michael R. Lessa, Esquire Amato & Associates, PC 107 North Commerce Way, Suite 100 Bethlehem, PA 18017-8930 Brian Nester 10 Gordon Drive Carlisle, PA 17013 f1 "Y annon Freeman Z BEST CONSTRUCTION, INC., Plaintiff V. MICHAEL WAGNER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 07-4913 CIVIL TERM IN RE: DEFENDANT'S MOTION IN LIMINE ORDER OF COURT AND NOW, this 27th day of August, 2010, upon consideration of Defendant's Motion in Limine, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE at the nonjury trial scheduled in this matter for Wednesday, September 1, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Wesley Ole r., J. ason P. Kutulakis, Esq. Melissa P. Tanguay, Esq. 2 West High Street Carlisle, PA 17013 ,?dark K. Emery, Esq. 410 N. Second Street Harrisburg, PA 17101 00 C- k .j i (l t i Cs"?7 d N ' O re r Z BEST CONSTRUCTION, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA • ~ ~:.~ vs. No.07-4913-Civil ~ ~ -v MICHAEL P. WAGNER CIVIL ACTION -LAW ~: ~ Defendant ~~~ ~,,, ~~~ Z BEST CONSTRUCTION. INC.'S ANSWER TO~"'..~ DEFENDANT'S MOTION IN LIl1~IIIVE AND NOW, comes the Plaintiff, Z Best Construction, Inc., by and through its attorney, Mazk K. Emery, Esquire and files this Answer to Defendant's Motion in Limine, as follows: 1. Admitted. 2. Denied. It is specifically denied that the trial will center around the dissolution of Z Best Construction, Inc. Rather, the issues to be addressed are Defendant's conversion of corporate assets for his own personal use and benefit, and breach of fiduciary duty to the corporation. No party has ever asserted a demand for dissolution of the corporation nor filed any action to dissolve the corporation. 3. Denied. Paragraph 3 refers to the Complaint, which is a matter of record and speaks for itself. 4. Admitted that Plaintiff ahs not identified the specific make, model, brand or serial number of the items retained by Defendant. It is denied that Plaintiff is legally required to make such identification, particulazly as it is clear that the damage to Plaintiff was caused by Defendant's improper action. It is assumed Defendant is not arguing Plaintiff was required to more fully identify the corporate truck, since Defendant admits such truck is a 1 t corporate asset, and remains in his possession. 5. Denied as a conclusion of law. Waiving none of the foregoing, it is incorrect, and defies logic, that Defendant would not be able to rebut the values placed on the construction tools by Bryan Nestor, Plaintiffs President. 6. Denied. Paragraph 6 refers to the Complaint, which is a matter of record and speaks for itself. 7. Denied. Paragraph 7 refers to the Complaint, which is a matter of record and speaks for itself. 8. Admitted that Plaintiff never performed a precise valuation, as the assets remained in Defendant's possession. Paragraph 8 is denied to the extent is alleges an erroneous legal conclusion that such a precise valuation is required to establish a measure of damages at trial. See, Paves v. Corson, 765 A.2d 1128, 1135, reversed in part on other grounds, 569 Pa. 171, 800 A.2d 546 (2002), Pikunse v. Kopchinki, 429 Pa. Super. 46, 631 A.2d 1049 (1993). 9. Admitted. 10. Denied as a conclusion of law. 11. Admitted that no witness qualified as an expert will testify at trial. Paragraph 11 is denied to the extent it alleges an erroneous legal conclusion that such an expert is required to establish a measure of damages at trial. See, Paves v Corson, 765 A.2d 1128, 1135, reversed in part on other grounds, 569 Pa 171, 800 A.2d 546 (2002), Pikunse v. Kopchinki, 429 Pa. Super. 46, 631 A.2d 1049 (1993). 12. Denied as a conclusion of law. 2 f 13. Denied. Defendant's counsel never contacted the undersigned prior to filing of their Motion. WHEREFORE, Plaintiff Z Best Construction, Inc. respectfully requests this Honorable Court deny Defendant's Motion in Limine. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. L~nery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717)238-9883 Attorney for Plaintiff DATE: September 1, 2010 3 Z BEST CONSTRUCTION, INC. Plaintiff v MICHAEL WAGNER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-4913 CIVIL TERM IN RE: MOTION IN LIMINE ORDER OF COURT AND NOW, this 1st day of September, 2010, upon consideration of Defendant's Motion in Limine, and following oral argument, the motion is denied. ark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 For Plaintiff ason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 For Defendant :mae f? t ?S' /hr?C C =n c:.? flt71 ?C? cn By the Court, Z BEST CONSTRUCTION, INC.: Plaintiff v MICHAEL WAGNER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW n C NO. 07-4913 CIVIL TERM IN RE: RECORD TO REMAIN OPEN ORDER OF COURT AND NOW, this 1st day of September, 2010, "J t E5 ca irJ upon consideration of Plaintiff's Complaint, Defendant's Answer with New Matter, and Plaintiff's Reply to New Matter, and following an initial day of a nonjury trial held on this date, the record shall remain open, and counsel are requested to contact the Court's secretary for purposes of scheduling a further full day of trial in this case. It is noted that at the time of adjournment on today's date Plaintiff had completed its presentation of its case-in-chief and had secured the admission of Plaintiff's Exhibits 1, 2, 4, 5, 6, 7, 8, 9, 10, and 3. It is noted further that as of the time of adjournment on today's date Defendant, who was about to commence presentation of his case-in-chief, had secured the admission of Defendant's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. No other exhibits had been identified or admitted. Neither- counsel at this time has requested ,7, that the stenographer transcribe and file the notes of testimony from today's proceeding. By the Court, /Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 For Plaintiff ,,-?Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 For Defendant :mae ' `7101O-L Offlt'O ?::ryl Z BEST CONSTRUCTION, INC.: IN THE COURT OF COMMON PLEAS OF. Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION -- LAW MICHAEL WAGNER, Defendant NO. 07-4913 CIVIL TERM IN RE : EXHIBIT TO BE SEALED ORDER OF COURT AND NOW, this 1st day of September, 2010, pursuant to an agreement of counsel, Plaintiff's Exhibit 8 shall be sealed in this matter because it may contain personal information. Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 For Plaintiff .'_'"yon P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 For Defendant mae LOI 1 £ S ?ry`? L LC, glzl? `7 t ' C By the Court, Z BEST CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : v. CIVIL ACTION -LAW MICHAEL WAGNER, Defendant N0.07-4913 CIVIL TERM IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 8~' day of September, 2010, a further day of trial in the above matter is scheduled for Thursday, December 30, 2010, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, .,iNlark K. Emery, Esq. 410 N. Second Street Harrisburg, PA 17101 Attorney for Plaintiff ./Jason P. Kutulakis, Esq. 2 West High Street Carlisle, PA 17013 Attorney for Defendant rc ~4/~D /Yta`t l l,~G~,, z~ 3 Wesley Ol ' Jr., . ,,~ n G, ~ ~ -:~< ~ ~ ~,,.. c.-nC a- r" Cr~ ~ ~ - ~ rn ~~ ~' ~~ C ~ -~ Z BEST CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW MICHAEL WAGNER, Defendant NO. 07-4913 CIVIL TERM VERDICT AND NOW, this P day of January, 2011, upon consideration of Plaintiff s complaint, Defendant's answer with new matter, and Plaintiff's reply to new matter, and following a nonjury trial held on September 1, 2010, and December 30, 2010, the court finds in favor of Plaintiff and against Defendant in the amount of $9053.63, plus interest at the legal rate from March 3, 2007, plus costs of suit. NOTHING in this verdict is intended to represent a decision as to a dissolution of the corporate Plaintiff or a distribution of corporate assets to shareholders pursuant to such dissolution. Mark K. Emery, Esq. 410 N. Second Street Harrisburg, PA 17101 Attorney for Plaintiff Jason P. Kutulakis, Esq. 2 West High Street Carlisle, PA 17013 Attorney for Defendant C"1 1?3? M W fr :rc BY THE COURT, Z BEST CONSTRUCTION, INC. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW MICHAEL WAGNER, Defendant NO. 07-4913 CIVIL TERM IN RE: MATTER TAKEN UNDER. ADVISEMENT ORDER OF COURT AND NOW, this 30th day of December, 2010, upon consideration of Plaintiff's Complaint, Defendant's Answer with New Matter, and Plaintiff's Reply to New Matter, and following a second day of trial, which has concluded the evidentiary phase of the case, the record is declared closed, and the matter is taken under advisement. By the Court, 'Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 For Plaintiff Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 For Defendant :mae II I t DOS c ? r r, c a P. TA L i''"i 13 g 3 12 P Sill y ".1,7 1�. Alom LAKIS E cI l!1 `�1_ ' NIA Jason P.Kutulakis,Esquire Attorney J.D.No:53150 2 West High Street Carlisle,Pennsylvania 17013 (717)249-0900 Z BEST CONSTRUCTION, INC., : IN THE COURT OF COMMON Plaintiff : PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 07-4913 MICHAEL WAGNER, Defendant CIVIL ACTION -LAW PRAECIPE TO DI ONTINUE AND MARK SATI FIED Please mark this case settled, discontinued, and satisfied. Respectfully submitted, DATE Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 ti Attorney ID # 72787 CERTIFICATE OF SERVI E AND NOW, this day of �`f'� z- , 2013, I, Mark Emery, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Discontinue by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: Jason P. Kutulakis, Esquire ABOM&KUTULAKIS,LLP 2 West High Street Carlisle, PA 17013 Mar Emery,Esquire