The URL can be used to link to this page

Home My WebLink About03-5352WADE CUTLER d/b/a WARCU, 1NC., Plaintiff FEDEX GROUND (f/k/a) RPS, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. In the matter of the Arbitration between Wade R. Cutler/WARCU, INC., Petitioner and FedEX Ground Package Systems, Inc. No. 55 181 0003803 RE: Robert Hillegas, Respondent PETITION TO ENFORCE SUBPOENA ISSUED BY ARBITRATORS And now comes, Petitioner, Wade R. Cutler and WARCU, Inc., through their undersigned counsel, petitions this Court for an Order compelling the attendance of Robert Hillegas to testify an give evidence at an AAA arbitration hearing and in support hereof avers as follows: 1. Petitioner files this Petition pursuant to 42 Pa.C.S.A. §7309 and §7342 (a). 2. Petitioner is presently engaged in a contract dispute with Fed Ex Ground Package Systems, Inc ("FedEx"). 3. A two (2) day AAA hearing is scheduled for October 9, 2003 at the Cumberland County Bar Association, 32 S. Bedford Street, Carlisle, Cumberland County, Pennsylvania commencing at 9:30 a.m. 4. On numerous occasions during the last 6 weeks, Petitioner spoke to Respondent, Robert Hillegas ("Hillegas") about testifying on his behalf against FedEx at the Arbitration Hearing on October 9, 2003, and Robert Hillegas responded thai he would need a subpoena. 5. Upon information and belief, Hillegas, a contract pickup and delivery driver for FedEx, the Respondent in the subject Arbitration, advised FedEx that he would be attending the Arbitration under a subpoena more than a month in advance of the arbitration hearing date. 290146-1 6. On or about October 2, 2003, at the request of Petitioner, Arbitrator, Nancy E. Gregor issued a subpoena pursuant to 42 Pa.C.S.A. §7309 and §7342 (a) to Hillegas directing him to appear at the hearing at Cumberland County Bar Association, 32 South Bedford Street, Carlisle, PA and to testify in response to the subpoena. A copy of the subpoena issued is attached hereto as Exhibit A. 7. On October 3, 2003, the Petitioner's attorney spoke to Hillegas to advise him that he would be subpoenaed and verified the place and time of service of the subpoena and made arrangements to accommodate his schedule in accordance with his request as evidenced by a copy of the correspondence from undersigned's counsel attached hereto as Exhibit B. 8. On October 7, 2003, service of the subpoena was properly made upon Hillegas and the witness fee paid. A copy of the affidavit of service confirming that the subpoena was personally served upon Hillegas on October 7, 2003, is attached hereto as Exhibit C. 9. Upon information and belief, on October 7, 2003., after FedEx was made aware of the subpoena, FedEx notified Hillegas by Sandy Staib, Pick Up and Delivery Manager that he would be obligated to perform under his employment contract and that he could not attend the arbitration hearing. 10. The testimony of Hillegas is relevant to the issues to be determined by the Arbitrator, because he will be able to refute testimony of FedEx and confirm and explain testimony of Petitioner. 11. Despite the relevance of the testimony of Responctent Robert Hillegas, FedEx has coerced him to dishonor the subpoena and has refused to permit Hillegas to testify at the arbitration proceeding, as is suggested by the copy of correspondence from Respondent Robert Hillegas's attorney Robert D. O'Brien, Esquire attached hereto tis Exhibit D. 12. Unless this Court enforces the subpoena petitioner will have no way to compel the testimony of Hillegas. WHEREFORE, Petitioner requests this Honorable Court enter an Order compelling the attendance and testimony of Respondent Robert Hillegas at the arbitration and directing that FedEx be held in contempt for coercing Robert Hillegas to dishonor the subpoena and refusing to permit his appearance and testimony at the arbitration. Document ii: 199320.1 Respectfully submitted: Date: METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Brace J. Warshawsky, Esquire Attorney I.D. No. 58799 David H. Martineau, Esqui[re Attorney I.D. No. 84127 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Petitioner Document #: 199320.1 American Arbitration Association In the Matter of the Arbitration between Wade R. Cutler/WARCU, Inc. and FedEx Ground Package System, Inc. 55 181 0003803 Subpoena FROM THE PEOPLE OF THE COMMONWEALTH OF PENNSYLVANIA TO: Robert Hillegas 3484 Fox Ridge Court Dover, PA 17315 GREETING: WE COMMAND YOU that, all business and excuses being laid aside, you and each of you appear and attend before Nancy E. Gregor, arbitrator acting m~der the arbitration law of this Commonwealth, at Cumberland County Bar Association; 32 South Bedford Street, Carlisle, Pennsylvania 17013 on the 9th day of October, 2003, at 9:30 a.m. to testify and give evidence in a certain arbitration, then and there to be held between the above entitled parties. Nancy E. C~or, Arbitrator fJ / Request by: Wade Cutler, WARCU, Inc., Claimant Brace J. Warshawsky, Esquire 3211 North Front Street Harrisburg, PA 17110 717-238-8187 Dated: October l, 2003 October 6, 2003 Robert Hillegas 3484 Fox Ridge Court Dovex, PA 17315 Re: Wade R. Cutler / FedEx Ground Arbitration SINC£ 1888 3211 North Front Street IZO. Box 5300 Harrisburg, PA 1711043300 717-238-8187 Fax: 717-234-9478 Dear Mr. Hillegas: Enclosed is a subpoena for your attendance as a wimess at the Cutler/FedEx arbitration. Other Offices Colonial Park Mechanicsburg 717-652-7020 717 691-5577 Millersburg Shippensburg 717-692-5810 717-530-7515 Also enclosed are directions and a check in the amount of $15.00, representing your statutory wimess fee. Per our recent discussion, we will accommodate your request to testify Thursday, October 9, 2003 in the morning. Please plan on arriving at 10:00 a.m. My cell number is 717-574-4089 for your reference. I would appreciate it if you would call me and give me a reliable phone number to reach you. Very truly yours, METZOER, WICKERSHAM, KNAUSS & ERB, P.C. Brace J. Warshawsky Special Counsel BJW/tmn Enclosures (3) 289814-1 James E Carl Edward E. Knauss, IV* Jered L. Hock Steven E Miner Clark DeVere Milton Bernstein Brace J. Warshawsky Francis J. Lafferty, IV David H. Martineau Andrew W. Norfleet Andrew C. Spears Young-Suh Koo · Board Certified in civil trial law and advocacy by the National Board of Trial Adt~lcact/ RETURN OF SERVICE I, ~h~,~_~e~.. /,/. /XY~/¢ ,~,OJo hereby swear or affirm that on the ,'~ ~ay of October, 2003, I served a tmc and correct copy of the Subpoena to Attend and Testify at the ! by personally handing a copy of the same to arbitration of Wade R. Cutler dfo/a WARCU, Inc. / Federal Express Ground on £off ,-¢ , . Thc above statement is true and correct to th~ best of my knowledge, infommtion and belief and I acknowledge that it is subject to the penalties of 18 Pa.C.S. 4904 relatinl~ to unswom falsification to authorities. Dated: 149 East Market Street York. Pennsylvania 17401 Msrc Roberts Robert D. O'Brlen Telephone (717) 843-1639 Facsimffe (717) 845-8700 October 8, 2003 Nancy E. Gregor, Arbitrator The Mercantile-Towson Building 409 Washington Avenue, Suite 1000 Towson, MD 21204 Fax (410)823-8509 Wade R. Cutler/WARCU, Inc. 55 181 0003803 Inc. and FedEx Ground Package System, Dear Ms. Gregor: I represent Robert Hillegas, who was just recently served a subpoena to testify in an arbitration hearing scheduled for October 9, 2003. My client contacted this firm because of his concerns about not being able to both testify in Carlisle and comply with his contractual requirements with FedEx Ground Package System, Inc., to make deliveries and pickups in the Lancaster County area of Pennsylvania. I suggested to my client that he consider giving testimony by deposition (as authorized by 42 Pa.C.S.A. Section 7309(b)), or make himself available by speakerphone testimony since his testimony is expected to be relatively brief. In speaking with Bruce J. Warshawsky, Esquire, who requested the subpoena, it is my understanding that a deposition is not possible due to the expedited nature of the proceedings. However, he is not opposed to having Mr. Hillegas testify by speakerphone. Mr. Warshawsky also tried to reach his opposing counsel, Frank C. Botta, Esquire, to determine if he would agree to speakerphone testimony at my request. However, Mr. Warshawsky was not able to reach Mr. Botta prior to lunch today, and I feel I am obligated on my client's behalf to send this letter to you as the arbitrator to determine if speakerphone testimony will be acceptable. If speakerphone testimony is not acceptable, then I informed my client that we can file a motion to quash the subpoena and/or seek other relief from compliance with it after Mr. Warshawsky applies to the appropriate court for an order to enforce the subpoena. October 8, 2003 page 2 However, I would prefer to have my client provide testimony via speakerphone or deposition (my client would be available any weekday at 5:00 p.m. in Harrisburg, including tomorrow, for a deposition), so he can comply with the subpoena's request for him to provide testimony and his obligations to FedEx. If speakerphone testimony is allowed, Mr. Hillegas will make himself available to ~pull off the road and testify tomorrow at 10:00 a.m., which was the ti~ proposed by Mr. Warshawsky, or anytime requested. Will you be so kind as to contact me upon your receipt and review of this letter as to whether or not speakerphone testimony can be allowed for Mr. Hillegas' testimony in this case. By copy of this letter to Attorney Botta, I would request him to either contact myself or yourself as the arbitrator regarding whether he would agree to my client testifying via speakerphone. Thank you for your kind consideration of this request. Sincerely, RDO/dasl cc: Frank C. Botta, Esquire (412/394-2555) Bruce J. Warshawsky, Esquire (717/234-9478) Robert Hillegas VERIFICATION I, Brace J. Warshawsky, Esquire, attorney for Wade R. Cutler/WARCU, Inc., hereby certify that the facts set forth in the within Petition to Enforce Subpoena Issued by Arbitrators are tree and correct to the best of my knowledge, information and belief, and that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities. Date: Document #: 245292,1 CERTIFICATE OF SERVICE ~ day AND NOW, this of October, 2003, I, Tammy M. Nissley, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Petitioner, hereby certify that I served a copy of the within Petition to Enforce Subpoena Issued by Arbitrators this day by facsimile, addressed to: Robert D. O'Brien Law Office of Marc Roberts 149 East Market Street York, PA 17401 Facsimile (717) 845-8700 Attorney for Robert Hillegas METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Tammy M; Ni~(,41ey' ' 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Document #: 199320.1 WADE CUTLER d/b/a WARCU, INC., Plaintiff FEDEX GROUND (f/k/a) RPS, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA In the matter of the Arbitration between Wade R. Cutler/WARCU, INC. and FedEX Ground Package Systems, Inc. AAA No. 55 181 0003803 ORDER AND NOW this day of October, 2003, upon consideration of petitioner's; Petition to Enforce Subpoena Issued By Arbitrators, a heating is scheduled for~" [ 0~ , 2003 in Courtroom #~, Cumberland County Courthouse. Petitioner shall immediately serve Robert Hillegas, Respondent, Nancy Gregor, Arbitrator, and FedEx Ground Package Systems, Inc. BY THE COURT: Document #: 199320. I