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HomeMy WebLinkAbout08-3925IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 0-F-39-2!( Civil Term V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant NOTICE TO DEFEND 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 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. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant No. OT- 3 9a !' Civil Term COMPLAINT Plaintiff, by and through his undersigned counsel, Barley Snyder LLC, files the following Complaint against Defendant, Leisher Insurance Solutions Group, Inc., of which the following is a statement: 1. Plaintiff, Steven S. Wevodau (hereinafter "Wevodau") is an adult individual who resides at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant Leisher Insurance Solutions Group, Inc., (hereinafter LISG) is a California corporation which has a principal office of 437 S. Highway 101 Suite 212, Solana Beach, California 92075. LISG has an agent for service of process of Marty Benowitz, 1905 Diamond Ste B, San Marcos, CA 92069. 3. Defendant LISG acquired certain of the assets of Potomac Group West, Inc., (hereinafter "PGW") a California corporation which had or has a place of business located at 437 South Highway 101, Suite 403, Solana Beach, California 92075. PGW has a registered agent for service of process of Steven C. Leisher, 437 S Highway 101, Solana Beach, CA 92705. 4. By virtue of the purchase of the assets of PGW, LISG is the successor in interest of PGW on account of the claims as set forth below. 1 By virtue of a judgment against PGW, PGW changed its name to Leisher Insurance Solutions Group, Inc. See Exhibit A. Consequently, LISG is the successor in interest of PGW and responsible for the claims as set forth below. 6. Wevodau is a former employee of an entity known as The BISYS Group, Inc., a Delaware corporation which has headquarters in New York City, New York. 7. Wevodau is also a former independent contractor of The BISYS Group, Inc. 8. Wevodau is a former independent contractor for PGW. 9. On September 22, 2003, Wevodau and PGW (now LISG) entered into an Indemnification Agreement, which document specifically sets forth respective obligations of the parties to one another. A true and correct copy of the Indemnification Agreement is attached and made a part hereof as Exhibit "B." 10. The Indemnification Agreement memorializes the agreement of the parties and their obligations to one another, and valid consideration was received by both parties, thereby making the Indemnification Agreement a binding contract upon both parties. 11. Since approximately September 13, 2002, PGW has been involved as a plaintiff in a legal action before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V, which legal action also involves The BISYS Group, Inc. as a defendant. 12. The Maryland Action has multiple plaintiffs and multiple defendants although Wevodau is not a named party. 13. Wevodau has been involved in the Maryland Action as a third-party witness and has incurred Expenses (as that term is defined in the Indemnification Agreement attached as 2 Exhibit B hereto), including but not limited to attorney's fees, for legal representation provided to him in connection with his involvement in the Maryland Action as a third-party witness. 14. In connection with the Maryland Action, Wevodau has incurred and continues to incur attorney's fees and expenses, for which PGW (now LISG) is obligated to pay on his behalf pursuant to the Indemnification Agreement. 15. Concerning the Maryland Action, Wevodau was initially represented by the law firm of McNees, Wallace & Nurick, LLC, of Harrisburg, Pennsylvania, but he has since transferred as of mid-2005 his legal representation regarding the Maryland Action to the law firm of Barley Snyder LLC, which firm is also his counsel in the matter now being presented through the within Complaint. 16. On or about October 15, 2003, Wevodau was named as a defendant in a legal action brought by The BISYS Group, Inc., against him before the United States District Court for the Southern District of New York at Docket No. 03-8846, which action was subsequently transferred to the United States District Court for the Middle District of Pennsylvania (Harrisburg) at Docket No. 1:CV-04-0964 (hereinafter the "Pennsylvania BISYS Action"). 17. In the Pennsylvania BISYS Action, Wevodau was initially represented by Martin 1. Kaminsky, Esquire of the law firm of Pollack & Kaminsky of New York (while that case was pending in New York) and was subsequently represented by the law firm of McNees, Wallace & Nurick, LLC once the Pennsylvania BISYS Action was transferred to the Middle District of Pennsylvania. 3 18. The legal representation of Wevodau in the Pennsylvania BISYS Action has been transferred from McNees, Wallace & Nurick, LLC to Barley Snyder LLC and undersigned counsel to this Complaint. 19. The Pennsylvania BISYS Action was voluntarily dismissed on November 14, 2006, pursuant to F.R.C.P. 41 and a stipulation of the parties, subject to terms and conditions of a Stay and Tolling Agreement. See Exhibit C. 20. In connection with the Pennsylvania BISYS Action, Wevodau has incurred Expenses (as that term is defined in the Indemnification Agreement attached as Exhibit B hereto), including but not limited to attorney's fees, and may incur Expenses in the future. 21. Wevodau has incurred and continues to incur attorney's fees and expenses in connection with bringing the claims stated in the Amended Complaint (Case No. 05-5393), which fees and expenses Wevodau is entitled to recover pursuant to the Indemnification Agreement upon prevailing in this matter. 22. At all times, Wevodau has fully complied with his obligations under the Indemnification Agreement and therefore is entitled to receive full performance by LISG as the successor in interest to PGW of its obligations under the Indemnification Agreement. 23. Exclusive jurisdiction is conveyed upon this Honorable Court pursuant to Section Nine of the Indemnification Agreement, wherein it is stated that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." 4 Count I - Breach of Contract Steven S. Wevodau V. Leisher Insurance Solutions Group, Inc. 24. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 25. Pursuant to the Indemnification Agreement, LISG as the successor in interest to PGW, is responsible for payment of all attorney's fees and expenses incurred by Wevodau in connection with the Maryland Action. 26. Despite demand made by and/or on behalf of Wevodau upon PGW and LISG for payment of such attorney's fees and expenses in connection with the Maryland Action, PGW and LISG have refused and continue to refuse to make payment, and therefore PGW and LISG, its successor in interest, have breached their obligations under the Indemnification Agreement. 27. Pursuant to the Indemnification Agreement, LISG as the successor in interest to PGW, is responsible to pay for all Expenses (as that term is defined in the Indemnification Agreement) incurred by Wevodau in connection with the Pennsylvania BISYS Action, which is an "Action" as defined by the Indemnification Agreement. 28. Despite demand made by and/or on behalf of Wevodau upon LISG for payment for the Expenses incurred by Wevodau in connection with the Pennsylvania BISYS Action, LISG has refused and continues to refuse to pay, and LISG is therefore in breach of its obligations under the Indemnification Agreement. Further, Wevodau may incur expenses in the future on account of the Pennsylvania BISYS Action. 29. LISG has been duly advised of the transfer of legal representation from McNees, Wallace & Nurick, LLC to the law offices of Barley Snyder LLC with respect to both the 5 Maryland Action and the Pennsylvania BISYS Action, however, LISG nevertheless has refused and continues to refuse to pay for any of the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have and continue to be incurred by Wevodau through the legal representation being provided by Barley Snyder LLC to Wevodau in connection with the Pennsylvania BISYS Action. 30. Demands have been made upon LISG for payments due under the Indemnification Agreement, which demands have had no effect and it is evident that LISG has no intention of making payment for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have already been incurred and that will continue to be incurred by Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action. 31. By not fulfilling their obligations under the Indemnification Agreement and paying for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) to or on behalf of Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action, LISG is in breach of the Indemnification Agreement and continues to breach its obligations on an ongoing basis as these amounts continue to be incurred and LISG continues its refusal to pay. 32. In connection with the legal representation provided by McNees, Wallace & Nurick, LLC to Wevodau regarding the Maryland Action and the Pennsylvania BISYS Action, payment from LISG is still due in the principal amount of $44,509.54. A breakdown of fees and expenses paid by Wevodau that have wrongfully been withheld by PGW is attached hereto, marked as Exhibit "D", and incorporated herein. 6 33. In connection with legal representation provided to Wevodau by Martin Kaminsky, Esquire of New York, during such time as the Pennsylvania BISYS Action was pending in New York, LISG is obligated under the Indemnification Agreement to pay any fees and expenses that may remain due and owing to Mr. Kaminsky, which amount is unknown at the time this Complaint is filed. 34. In connection with legal representation provided thus far to Wevodau by Barley Snyder LLC with respect to the Maryland Action and the Pennsylvania BISYS Action, payment is due from LISG as of March 24, 2008 in the amount of $29,187.82, which amount continues to accrue as legal representation continues to be provided to Wevodau. 35. Because LISG failed to perform its obligations under the Indemnification Agreement, Wevodau has been compelled to bring the within legal action against LISG to obtain full and complete performance by it and, upon prevailing in the within action, Wevodau is entitled to recover all fees, including but not limited to attorney's fees, costs, expenses, and any other relief reasonably incurred in bringing and prosecuting the within action. See Section Three of Exhibit B hereto. 36. The amounts in controversy in the within matter exceed the compulsory arbitration threshold in Cumberland County, Pennsylvania of $25,000. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Leisher Insurance Solutions Group, Inc. for: (a) The amount of $48,492.04 for attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) through September 30, 2005; (b) All amounts due to Martin Kaminsky, Esquire for legal services and fees incurred regarding legal representative of Wevodau in the Pennsylvania BISYS Action; 7 (c) The presently unliquidated amount of attorney's fees, expenses, and Expenses that will be incurred by Plaintiff from September 30, 2005 forward through the time of judgment as the Maryland Action and Pennsylvania BISYS Action continue to remain active; (d) Attorney's fees, costs, and expenses, and such other relief that may be deemed appropriate by this Honorable Court incurred by Plaintiff in pursuing the within action stated in this Complaint; and (e) Interest on all of the foregoing at the applicable Pennsylvania statutory rate. Count II - For Declaratory Judgment Pursuant to 42 PA. C.S.A. § 7531, et seq. Steven S. Wevodau V. Leisher Insurance Solutions Group, Inc. 37. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 38. Wevodau is harmed by the continuing failure of LISG, the successor in interest to PGW, to fulfill its obligations under the Indemnification Agreement and evident wrongful assertion by them, through their inaction and refusal to indemnify or otherwise pay pursuant to the Indemnification Agreement, that they are not obligated to indemnify or otherwise pay Wevodau for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred relative to the Maryland Action, Pennsylvania BISYS Action, or any other events and circumstances that fall within the scope of the Indemnification Agreement. 39. The Declaratory Judgment Act (42 Pa. C.S.A. § 7531, et seq.) provides that where an actual or justifiable controversy exists or is imminent between the parties, the court possesses the power to declare the rights, status, and legal relations of the parties involved if so doing will terminate the controversy or remove an uncertainty. 8 40. This case presents an actual and justifiable controversy between Wevodau and LISG concerning its obligations under the Indemnification Agreement, Wevodau's entitlement to receive the benefits thereof, the obligation of LISG as the successor in interest to PGW to indemnify or otherwise reimburse Wevodau for the amounts set forth under Count I of this Complaint, and the obligation of LISG to continue to indemnify or otherwise reimburse Wevodau for any and all attorney's fees, expenses and Expenses (as defined in the Indemnification Agreement) in connection with the Maryland Action and Pennsylvania BISYS Action until those matters are fully and finally concluded through their respective courts and any appellate practice. WHEREFORE, Plaintiff demands this Honorable Court enter declaratory judgment as follows: (a) That the Indemnification Agreement attached as Exhibit B to this Complaint is a valid and binding contract between Wevodau and LISG; (b) That LISG is obligated to and must pay to Wevodau all amounts claimed by Plaintiff under Count I of this Complaint; (c) That, pursuant to the Indemnification Agreement, LISG must now act and continue to act to indemnify or otherwise fully and timely reimburse Wevodau for all attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur in connection with the Maryland Action and Pennsylvania BISYS Action until both of those matters are fully and finally concluded before their respective courts and through any appellate practice; and (d) That LISG must abide by all other obligations as set forth in the Indemnification Agreement and that the failure to do so could result in the imposition of sanctions, civil fines, and/or punitive damages at the discretion of this Honorable Court. 9 BARLEY SNYDER LLC By: / V U Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2306474 10 VERIFICATION I, Steven S. Wevodau, the within Plaintiff, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: ?/ 3© Q teven S. vodau C,wi+ A California Business Search DISCLAIMER: The information displayed here is current as of MAR 14, 2008 and is updated weekly. It is not a complete or certified record of the Corporation. Corporation THE POTOMAC GROUP WEST, INC. Number: C1909469 Date Filed: 7/29/1997 Status: active Jurisdiction: California Address 437 S HWY 101 SOLANA BEACH, CA 92075 Agent for Service of Process STEVEN C LEISHER 437 S HWY 101 SOLANA BEACH, CA 92075 Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered. Page 1 of 1 http://kepler.ss.ca.gov/corpdata/ShowAIlList?QueryCorpNumber=C 1909469&nri„tP,--uPe 2/1)niInno California Business Search mmilwaWam%ow DISCLAIMER: The information displayed here is current as of MAR 14, 2008 and is updated weekly. It is not a complete or certified record of the Corporation. Corporation LEISHER INSURANCE SOLUTIONS GROUP, INC. Number: C2990889 Date Filed: 5/23/2007 -? Status: active Jurisdiction: California Address !E-- [43 S HIGHWAY 101 ST E 403 SOLANA BEACH, CA 92075 Agent for Service of Process 11MARTY BENOWITZ 1905 DIAMOND STE B SAN MARCOS, CA 92069 Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered. Page 1 of 1 http://kepler.ss.ca.gov/corpdata/ShowAIlList?QueryCorpNumber=C2990889&Drinter=ve. '111WInnu Exh?b?f .? INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September 7-21, 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS A. The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. B. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS A. "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf of Wevodau in connection with any Action. B. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in wholc or in part by reason of the production or disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (1) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation -2- r shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attomeys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shalt be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of (1) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately be determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the - 3 - Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AND JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. -4- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEISHER PRESIDENT Dated: STEVEN S. WEVODAU STEVEN S. DAU Dated: 1 q ` o 3 -5- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: - STEVEN C. LE HER PRESIDENT Dated: `? q o3 STEVEN S. WEVODAU STEVEN S. WEVODAU Dated: - 5 - ex k Al 4 C- IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA THE BISYS GROUP, INC., Plaintiff V. STEVEN WEVODAU, Defendant Case No. 1:04-CV-00964 Judge Caldwell Filed Electronically NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41 Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, Plaintiff Bisys Group, Inc. and Defendant Steven Wevodau hereby stipulate to the dismissal of all claims in the above action, without prejudice, and subject to the terms and conditions of a Stay and Tolling Agreement, a copy of which is attached hereto as Exhibit "A." Respectfully submitted, BARLEY SNYDER, LLC Respectfully submitted, RHOADS & SINON LLP By: /s/ Sean Summers Sean Summers, Esquire 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (717) 846-8888 ssummers@barley.com Attorneys for Defendant By: /s/ Robert J. Tribeck Robert J. Tribeck, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 rtribeck@rhoads-sinon.com Attorneys for Plaintiff 629644.1 STAY AND TOLLING AGREEMENT CONCERNING RIGHT OF STEVEN WEVODAU TO RAISE THE DEFENSES OF STATUTE OF LIMITATIONS, LACHES, OR OTHER SIMILAR DEFENSES This Agreement dated October 31, 2006 is by and between The Bisys Group, Inc. (`Bisys") and Steven Wevodau ("Wevodau").. Whereas, Bisys instituted an action against Wevodau in November 2003 in the Supreme Court of the State of New York, which was subsequently removed to the United States District Court for the Southern District of New York, and ultimately transferred to the United States District Court for the Middle District of Pennsylvania, known as The Bisys Group, Inc. v. Steven Wevodau, Case No.. 1:04-CV-00964 (the "Action"); Whereas, the Action has been stayed since August 25, 2004 by the Court as a result of an action pending in the State of Maryland, known as Steven Leisher et al. v The BISYS Group, Inc. et al., Case No. 236402-V (Judge Durke Thompson), Circuit Court for Montgomery County, Maryland (the "Maryland Action"). Whereas, the Action was administratively stayed until such time as the Maryland Action was concluded; Whereas, trial in the Maryland Action has been continued on numerous occasions, and is currently scheduled for January 2007; Whereas, the Court in the Action is not agreeable to a further extension of a stay of the Action; Whereas, the parties have agreed that the Action would be voluntarily dismissed, without prejudice, and that they would enter this Stay and Tolling Agreement as set out herein below. Now, therefore, in consideration of the undertakings by the Parties hereto as set out herein below and for other good and valuable consideration, the receipt and sufficiency of which is hereby 6032773 acknowledged, and intending to be legally bound, the Parties do hereby agree and contract as follows: 1. The recitals listed above ar-e incorporated herein by reference. 2. Tolling Provisions. In the event that Bisys shall hereafter institute a new action against Wevodau, Wevodau promises and agrees that he will not and cannot raise or plead the statute of limitations, ]aches, status of repose, or some other similar defenses in defense to any claims advanced by Bisys which were previously raised in the Action, and that, for purposes of determining the date such new action was instituted, the parties understand and agree that November 7, 2003, the date on which the Action was originally instituted, shall be treated as the applicable initiation date for such new action; provided, however, that Wevodau may interpose any such defense to the extent such defense existed on November 7, 2003.. 3. Termination Date. This Agreement and all tolling pursuant to it shall end upon the earlier of the two following events: a.. Thirty (30) days after- final resolution of the Maryland Action, including all appeals therefrom, it being the obligation of the terminating party to notify the remaining Party of the fact and date of termination, or b. One-hundred and twenty (120) days after notice by either party, which notice shall not occur prior to conclusion of the trial in the Maryland Action.. 4. No Revival. Nothing in this Agreement shall be construed to revive any claim that was already barred prior to execution of this Agreement. 5. No Admissions. Nothing in this Agreement shall be construed as an admission by any party that a claim does in fact or law exist in favor of any Party hereto against any other Party. 6. Integration Clause. No modification or amendment which affects any provision of this Agreement may be made except in a writing which is executed by all Parties.. 7. Contact Information. The contact information for each Party is as follows and if used by fax or overnight delivery service is agreed to be effective notice: a.. For Bisys: Steven J. Kyono Executive Vice President, General Counsel & Secretary The BISYS Group, Inc. 105 Eisenhower Parkway Roseland, New Jersey 07068 b. For Wevodau Sean Summers, Esquire Barley Snyder 126 East King Street Lancaster, PA 17602 8.. Warranty of Authority_ The signatories to this Agreement individually warrant that each of them has the necessary authority to bind their principals- 9? Counterparts. This Agreement may be executed in counterparts each of'which will be considered an original and together shall constitute an Agreement.. 10, Construction. This Agreement shalt be construed in accordance with the law of the Commonwealth of Pennsylvania. THE BISYS GROUP, INC. By: 6100\ , I Date: Jof-31 /V(, I -T- STEVEN WEVODAU By: Date: STEVEN. WEVODAU . B. ?) b,+ 'D ex FEES DUE TO AND PAID TO McNEES, WALLACE & NURICK, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5105 $8,047.91 Expense Payment to Filius & McLucas (Stenographic Reporting Services) $961.63 Payments made to McNees, Wallace & Nurick, LLC: June 2003 August 2003 $3,000.00 October 2003 $1,500.00 September 2004 $5,000.00 May 2005 $10,000.00 R6&0-000 Total Amounts Owed to Wevodau for payments made to $44,509.54 McNees, Wallace & Nurick, LLC 1491392.1 N _ J 1? l `?' CsJ '1 d r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, ) Plaintiff ) V. ) LEISHER INSURANCE SOLUTIONS ) GROUP, INC. ) Defendant ) No. 08-3925 Civil Term DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT GOLDBERG KATZMAN P.C. Thomas J. Weber, Esq. I.D. #58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG DAGAN, LLP Ronald H. Blumberg (Pro Hac Vice Pending) CA Bar No. 130557 137 N. Acacia Ave. Solana Beach, CA (858) 509-0600 Attorneys for Defendant, Leisher Insurance Solutions Group, Inc. t 1 ' DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, by and through his counsel, Goldberg Katzman, P.C., and files the following Preliminary Objections to Plaintiffs' Complaint, pursuant to Pa. R.C.P. No. 1028, and in support thereof, avers the following: 1. Plaintiff initiated this litigation with the filing of a Complaint (hereinafter the "LISG Complaint") on or about July 2, 2008. 2. Plaintiff, Steven S. Wevodau (hereinafter "Wevodau") is identified in Plaintiff's complaint as an adult individual who resides at 21 Bridgeport Dr., Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant, Leisher Insurance Solutions, Inc., (hereinafter "LISG"), is an active corporation, organized and existing under the laws of California, with a principal place of business at 437 S. Highway 101, Suite 212, Solana Beach CA 92075. LISG has a registered agent of for process: Mr. Marty Benowitz, 1905 Diamond St., #B, San Marcos, CA 92069. 4. Potomac Group West, Inc., (hereinafter "PGW"), is an active corporation, organized and existing under the laws of California, with a principal place of business at 437 S. Highway 101, Suite 403, Solana Beach CA 92075. PGW has a registered agent of for process: Mr. Steven C. Leisher, 437 S. Highway 101, Solana Beach CA 92075. 5. The LISG Complaint alleges that Wevodau and PGW entered into an Indemnification Agreement (hereinafter the "Indemnification Agreement") 6. The LISG Complaint alleges that PGW has breached the terms of the Indemnification Agreement. 2 7. The LISG Complaint admits that LISG is not a party to the Indemnification Agreement. 1. FIRST PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TO Pa.R.C.P. NO. 1028(a)(4) 8. The averments contained in paragraphs 1 through 7 are incorporated herein as thought set forth in their entirety. 9. As stated in the LISG Complaint, Plaintiff alleges that he has incurred and continues to incur attorney's fees and expenses, for which PGW is obligated to pay on Wevodau's behalf pursuant to the Indemnification Agreement. 10. Based on Plaintiff's claim that PGW is obligated to pay him pursuant to the Indemnification Agreement, Plaintiff initiated litigation against PGW in this Court ("hereinafter the PGW Action") by virtue of a complaint filed on or about October 17, 2005, at Docket No. 05- 5393 (hereinafter the "PGW Complaint") wherein he asserted the same causes of action as in the LISG Complaint stemming from the same alleged Indemnification Agreement. See copy of the PGW Complaint attached hereto as Exhibit "A." 11. On or about April 7, 2008 Wevodau filed a "Motion for Determination of Successor Liability and Leave to Amend Complaint" in the PGW Action. That Motion sought a judicial determination that LISG is the successor in interest to PGW's alleged liabilities regarding the Indemnification Agreement, and requested leave to amend the PGW Complaint to add LISG as a defendant. See attached copy of Rule to Show Cause and Plaintiff's Motion for Determination of Successor Liability and Leave to Amend Complaint attached hereto as Exhibit «B 3 12. On or About April 11, 2008, based on Plaintiff's Motion for Determination of Successor Liability and Leave to Amend Complaint, this Court ordered a Rule issued upon PGW to show cause why relief on Plaintiff's motion should not be granted. As part of that order, this court held "If no answer to the Rule to Show Cause is filed by the required date, the relief requested by the Plaintiff [Wevodau] shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants [PGW] file an answer to the Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing and/or argument will then be scheduled." 13. On or about May 21, 2008, after briefing, introduction of evidence, and oral argument on the motion, this Court ruled on behalf of PGW (and for LISG's benefit) and denied Plaintiff's Motion for Determination of Successor Liability and Leave to Amend Complaint. See attached copy of the Order of Court attached hereto as Exhibit "C." 14. Plaintiff's complaint is predicated on allegations that PGW is obligated to pay Wevodau money for obligations that arose under the Indemnification Agreement. 15. The plain language of the Indemnification Agreement provides: "[PGW] has agreed to indemnify Wevodau against damages, fines, fees, expenses, and costs incurred by Wevodau in connection with any claims, actions, suits, or proceedings arising from his providing or disclosing Information." 16. Additionally, the Indemnification Agreement under Section 2, "INDEMNITY," requires that,"[t]he Corporation [PGW] shall hold harmless, defend, and indemnify Wevodau in any Action against any and all Expenses related to such Action." 4 r ? 17. Furthermore, the Indemnification Agreement deemed that "Action" within the Agreement "shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in whole or in part by reason of the production or disclosure by Wevodau of Information including but not limited to information regarding the accounting procedures utilized by BISYS." 18. Lastly, the Indemnification Agreement defined "Information" as "Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or relates to BISYS (the "Information")." 19. The LISG complaint admits that Wevodau was not named as a party in the lawsuit filed by PGW in the Circuit Court of Montgomery County, Maryland, at case Identification No. 236402V, (hereinafter the "Maryland Action") but was involved in the action merely as a third- party witness, which involvement does not trigger indemnity obligations under the Agreement. 20. Also, although the LISG complaint alleges that Wevodau was named as a party in the lawsuit brought by The BISYS Group at Docket No. 1: CV-0400964 (hereinafter the "Pennsylvania BISYS Action"), it fails to allege any additional facts regarding other conditions precedent to invoke PGW's alleged obligation to indemnify Wevodau, to wit, allegations that the Pennsylvania BISYS Action was brought by reason "of the production or disclosure by Wevodau of Information including but not limited to information regarding the accounting procedures utilized by BISYS." 5 21. Furthermore, the Pennsylvania BISYS action fails to trigger obligations under the Agreement, because such action is based on Wevodau's conduct prior to the execution of the Agreement. See a Copy of Defendant's Counter-Claim for Fraud in Docket No. 05-5393, Cumberland County, Paragraphs 22-24, attached hereto as Exhibit "D." 22. Therefore, the LISG complaint fails to allege facts which would trigger any obligations under the Indemnification Agreement for PGW to indemnify Wevodau. 23. Plaintiff has failed to plead any facts in the LISG complaint to establish the occurrence of any conditions precedent which would trigger any obligation under the Indemnification Agreement for PGW to indemnify Plaintiff. 24. Concerning the liability of LISG on the contract claims, LISG is not a party to the Indemnification Agreement, nor does the LISG Complaint allege so. 25. Indeed, Plaintiff has never made a demand for payment on LISG 26. The LISG Complaint alleges that "By virtue of a judgment against PGW, PGW changed its name to Leisher Insurance Solutions Group, Inc." However, Plaintiff attaches copies of alleged reports from the Secretary of State of California that indicate that PGW and LISG are each separate, distinct, active corporate entities which are organized and exist under the laws of California. 27. The allegation in the LISG complaint that "Defendant LISG acquired certain assets of Potomac Group West, Inc. (PGW)" is vague, ambiguous, and not pleaded with the requisite specificity to demonstrate successor liability. 28. The allegation in the LISG complaint that "By virtue of a judgment against PGW, PGW changed its name to Leisher Insurance Solutions Group, Inc.," is vague, ambiguous, and 6 not pleaded with the requisite specificity to demonstrate successor liability. 29. Apparently, Plaintiff's sole ground for alleging that LISG is obligated to pay him money is based on the improper legal conclusion that "LISG is the successor in interest of PGW." 30. Plaintiff has failed to plead any facts in the LISG complaint to establish that "LISG is the successor in interest of PGW" 31. Further, Plaintiff is precluded from asserting his claim that LISG is a successor in interest of PGW, as the matter was previously litigated and determined by a prior adjudication in Civil Action 05-5393 filed in this Court on October 17, 2005. See copy of Order of Court attached hereto as Exhibit "C." 32. In Pennsylvania, the doctrine of collateral estoppel is designed to prevent re- litigation of a question of law or issue of fact, which has already been litigated in a court of competent jurisdiction. Mellon Bank a Rafsky, 369 Pa.Superior Ct. 585, 535 A.2d 1090 (1987) allocatur granted 518 Pa. 650, 544 A.2d 961 (1988). 33. In the aforesaid previous lawsuit filed in this Court at Docket No. 05-5393, the court ruled on a Motion for Determination of Successor Liability and Leave to Amend the Complaint. 34. After the filing of briefs, introduction of evidence, and oral argument, the Court denied said motion by Order of Court issued on May 21, 2008. See copy of Order of Court attached hereto as Exhibit "C." 35. Thus, Plaintiff is estopped to raise the issue of successor-liability on the Indemnification Agreement in the instant action. 7 f 1 ? 36. Because the matter of successor-liability on the Indemnification Agreement is essential to prove his claims for relief on the contract, Plaintiff cannot maintain a cause of action for Breach of Contract and Declaratory Judgment, and his claims must fail. 37. Plaintiff has failed to state a cause of action upon which relief can be granted under any theory of law. WHEREFORE, Defendant respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss Plaintiff's Complaint. II. SECOND PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY IN A PLEADING PURSUANT TO Pa.R.C.P. NO. 1028(a)(3) 38. Paragraphs 1 through 37 are incorporated herein as if fully set forth. 39. Pa.R.C.P. 1028(a)(3) permits Preliminary Objections for insufficient specificity in a pleading. 40. Moreover, Pa.R.C.P. 1019(a) requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." 41. Here, Plaintiff fails to specify the facts upon which he has improperly concluded that "LISG is the successor in interest of PGW" 42. The allegation in the LISG complaint that "Defendant LISG acquired certain assets of Potomac Group West, Inc. (PGW)" is vague, ambiguous, and not pleaded with the requisite specificity to demonstrate successor-liability on the Indemnification Agreement. 43. The allegation in the LISG complaint that "By virtue of a judgment against PGW, PGW changed its name to Leisher Insurance Solutions Group, Inc.," is vague, ambiguous, and not pleaded with the requisite specificity to demonstrate successor liability. 8 44. Therefore, Plaintiff has failed to set forth any material facts upon which his cause of action is based. 45. Thus, Defendant's Preliminary Objections should be granted and Plaintiff's Complaint should be dismissed. WHEREFORE, Defendant Leisher Insurance Solutions Group, Inc., respectfully requests that this Honorable Court grant its Preliminary Objections and dismiss Plaintiff's Complaint. Respectfully submitted, GOLDBERG KATZMAN P.C. By: t4. Ronaldol,egaspi, Esq. I.D. # 200240 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG DAGAN, LLP Ronald H. Blumberg CA Bar No. 130557 137 N. Acacia Ave. Solana Beach, CA Attorneys for Defendant, Leisher Insurance Solutions Group, Inc. Dated: August 6, 2008 9 ???b?k '? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY COMPLAINT Plaintiff, by and through his undersigned counsel, Barley Snyder LLC, files the following Complaint in this action against Defendant, Potomac Group West, Inc., of which the following is a statement: 1. Plaintiff, Steven S. Wevodau (hereinafter "Mr. Wevodau") is an adult individual who maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Potomac Group West, Inc. (hereinafter "PGW") is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California. 3. Mr. Wevodau is a former employee of an entity known as The BISYS Group, Inc., which is a Delaware corporation with its headquarters located in New York City, New York. 4. Mr. Wevodau is also a former independent contractor of The BISYS Group, Inc. 5. Mr. Wevodau is a former independent contractor for PGW. 1 8 6. On September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement, which document specifically sets forth respective obligations of the parties to one another, as specified therein. A true and correct copy of the Indemnification Agreement is attached hereto as Exhibit "A" and the entirety of the document is incorporated herein by reference as if fully set forth at length. 7. The Indemnification Agreement memorializes the agreement of the parties and their obligations to one another, and valid consideration was received by both parties, thereby making the Indemnification Agreement a binding contract upon both parties. 8. Since approximately September 13, 2002 to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V, which legal action also involves The BISYS Group, Inc. as a Defendant. 9. The Maryland Action has multiple Plaintiffs and multiple Defendants; Mr. Wevodau is not a named party in the Maryland Action. 10. Mr. Wevodau has been involved in the Maryland Action as a third-party witness and has and continues to incur Expenses (as that term is defined in the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees, for legal representation provided to him in connection with his involvement in the Maryland Action as a third-party witness. 11. In connection with the Maryland Action, Mr. Wevodau has incurred and continues to incur attorney's fees and expenses, for which PGW is obligated to pay on behalf of Mr. Wevodau pursuant to the Indemnification Agreement. 2 12. Concerning the Maryland Action, Mr. Wevodau was initially represented by the law firm of McNees, Wallace & Nurick, LLC, of Harrisburg, Pennsylvania, but Mr. Wevodau has since transferred as of mid-2005 his legal representation regarding the Maryland Action to the law firm of Barley Snyder LLC, which firm is also Mr. Wevodau's counsel in the matter now being presented through the within Complaint. 13. On or about October 15, 2003, Mr. Wevodau was named as a defendant in a legal action brought by The BISYS Group, Inc. against him before the United States District Court for the Southern District of New York at Docket No. 03-8846, which action was subsequently transferred to and currently remains pending before the United States District Court for the Middle District of Pennsylvania (Harrisburg) at Docket No. 1:CV-04-0964 (hereinafter the "Pennsylvania BISYS Action"). 14. In the Pennsylvania BISYS Action, Mr. Wevodau was initially represented by Martin I. Kaminsky, Esquire of the law firm of Pollack & Kaminsky of New York (while that case was pending in New York) and Mr. Wevodau was subsequently represented by the law firm of McNees, Wallace & Nurick, LLC once the Pennsylvania BISYS Action was transferred to the Middle District of Pennsylvania. 15. Presently, as of mid-2005, the legal representation of Mr. Wevodau in the Pennsylvania BISYS Action has been transferred from McNees, Wallace & Nurick, LLC to Barley Snyder LLC and undersigned counsel to this Complaint. 1® In connection with the Pennsylvania BISYS Action, Mr. Wevodau has and continues to incur Expenses (as that term is defined the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees. 3 10 17. Mr. Wevodau has incurred and continues to incur attorney's fees and expenses in connection with bringing the claims stated in this Complaint, which fees and expenses Mr. Wevodau is entitled to recover pursuant to the Indemnification Agreement upon prevailing in this matter. 18. At all times, Mr. Wevodau has fully complied with his obligations under the Indemnification Agreement and Mr. Wevodau is entitled to receive full performance by PGW of its obligations under the Indemnification Agreement. 19. Exclusive jurisdiction is conveyed upon this Honorable Court pursuant to Section Nine of the Indemnification Agreement, wherein it is stated that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." COUNT I - BREACH OF CONTRACT 20. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 21. Pursuant to the Indemnification Agreement, PGW is responsible for payment of all attorney's fees and expenses incurred by Mr. Wevodau in connection with the Maryland Action. 22. Despite demand made by and/or on behalf of Mr. Wevodau upon PGW for payment of such attorney's fees and expenses in connection with the Maryland Action, PGW has and continues to refuse to make payment and therefore PGW has breached its obligations under the Indemnification Agreement and continues to breach its obligations on an ongoing basis by 4 11 also failing to make payment as these attorney's fees and expenses continue to accrue in connection with Mr. Wevodau's ongoing involvement in the Maryland Action. 23. Pursuant to the Indemnification Agreement, PGW is responsible to pay for all Expenses (as that term is defined in the Indemnification Agreement) incurred by Mr. Wevodau in connection with the Pennsylvania BISYS Action, which is an "Action" as defined by the Indemnification Agreement. 24. Despite demand made by and/or on behalf of Mr. Wevodau upon PGW for payment for the Expenses incurred by Mr. Wevodau in connection with the Pennsylvania BISYS Action, PGW has refused and continues to refuse to pay, and PGW is therefore in breach of its obligations under the Indemnification Agreement and continues to breach its contractual obligations by failing to make payment on an ongoing basis as Mr. Wevodau continues to incur Expenses in the Pennsylvania BISYS Action. 25. PGW has been duly advised of the transfer of legal representation from McNees, Wallace & Nurick, LLC to the law offices of Barley Snyder LLC with respect to both the Maryland Action and the Pennsylvania BISYS Action, however, PGW nevertheless has refused and continues to refuse to pay for any of the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have and continue to be incurred by Mr. Wevodau through the legal representation being provided by Barley Snyder LLC to Mr. Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action. 26. Demands have been made upon PGW for payments due under the Indemnification Agreement, which demands have had no effect and it is evident that PGW has no intention of making payment for the attorney's fees, expenses, and Expenses (as defined in 5 12 the Indemnification Agreement) that have already been incurred and that will continue to be incurred by Mr. Wevodau in connection with the ongoing matters of the Maryland Action and the Pennsylvania BISYS Action. 27. By not fulfilling its obligations under the Indemnification Agreement and paying for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) to or on behalf of Mr. Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action, PGW is in breach of the Indemnification Agreement and continues to breach its obligations on an ongoing basis as these amounts continue to be incurred and PGW continues its refusal to pay. 28. In connection with the legal representation provided by McNees, Wallace & Nurick, LLC to Mr. Wevodau regarding the Maryland Action and the Pennsylvania BISYS Action, payment from PGW is still due in the principal amount of $44,509.54. A breakdown of fees and expenses paid by Mr. Wevodau that have wrongfully been withheld by PGW is attached hereto, marked as Exhibit "B", and incorporated herein. 29. In connection with legal representation provided to Mr. Wevodau by Martin Kaminsky, Esquire of New York, during such time as the Pennsylvania BISYS Action was pending in New York, PGW is obligated under the Indemnification Agreement to pay any fees and expenses that may remain due and owing to Mr. Kaminsky, which amount is unknown at the time this Complaint is filed. 30. In connection with legal representation provided thus far to Mr. Wevodau by Barley Snyder LLC with respect to the Maryland Action and the Pennsylvania BISYS Action, payment is due from PGW as of September 30, 2005 in the amount of $3,982.50, which amount 6 13 continues to accrue as legal representation continues to be provided to Mr. Wevodau in both the ongoing Maryland Action and Pennsylvania BISYS Action. 31. Because PGW has failed to perform its obligations under the Indemnification Agreement, Mr. Wevodau has been compelled to bring the within legal action against PGW to obtain full and complete performance by PGW and, upon prevailing in the within action, Mr. Wevodau is entitled to recover all fees, including but not limited to attorney's fees, costs, expenses, and any other relief reasonably incurred in bringing and prosecuting the within action. See, Section Three of Exhibit A hereto. 32. The amounts in controversy in the within matter exceed the compulsory arbitration threshold in Cumberland County, Pennsylvania of $25,000. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Potomac Group West, Inc. for: (a) The amount of $48,492.04 for attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) through September 30, 2005; (b) All amounts due to Martin Kaminsky, Esquire for legal services and fees incurred regarding legal representative of Mr. Wevodau in the Pennsylvania BISYS Action; (c) The presently unliquidated amount of attorney's fees, expenses, and Expenses that will be incurred by Plaintiff from September 30, 2005 forward through the time of judgment as the Maryland Action and Pennsylvania BISYS Action continue to remain active; (d) Attorney's fees, costs, and expenses, and such other relief that may be deemed appropriate by this Honorable Court incurred by Plaintiff in pursuing the within action stated in this Complaint; and (e) Interest on all of the foregoing at the applicable Pennsylvania statutory rate. 7 14 COUNT II - FOR DECLARATORY JUDGMENT PURSUANT TO 42 PA. C.S.A. § 7531, ET SEQ. 33. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 34. Mr. Wevodau is harmed by PGW's continuing failure to fulfill its obligations under the Indemnification Agreement and evident wrongful assertion by PGW, through its inaction and refusal to indemnify or otherwise pay pursuant to the Indemnification Agreement, that it is not obligated to indemnify or otherwise pay Mr. Wevodau for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur relative to the Maryland Action, Pennsylvania BISYS Action, or any other events and circumstances that fall within the scope of the Indemnification Agreement. 35. The Declaratory Judgment Act (42 Pa. C.S.A. § 7531, et seq.) provides that where an actual or justifiable controversy exists or is imminent between the parties, the court possesses the power to declare the rights, status, and legal relations of the parties involved if so doing will terminate the controversy or remove an uncertainty. 36. This case presents an actual and justifiable controversy between Mr. Wevodau and PGW concerning the obligations of PGW under the Indemnification Agreement, Mr. Wevodau's entitlement to receive the benefits thereof, PGW's obligation to indemnify or otherwise reimburse Mr. Wevodau for the amounts set forth under Count I of this Complaint, and the obligation of PGW to continue to indemnify or otherwise reimburse Mr. Wevodau for any and all attorney's fees, expenses and Expenses (as defined in the Indemnification Agreement) in connection with the Maryland Action and Pennsylvania BISYS Action until those matters are fully and finally concluded through their respective courts and any appellate practice. is WHEREFORE, Plaintiff demands this Honorable Court enter declaratory judgment as follows: (a) That the Indemnification Agreement attached as Exhibit A to this Complaint is a valid and binding contract between Mr. Wevodau and PGW; (b) That PGW is obligated to and must pay to Mr. Wevodau all amounts claimed by Plaintiff under Count I of this Complaint; (c) That, pursuant to the Indemnification Agreement, PGW must now act and continue to act to indemnify or otherwise fully and timely reimburse Mr. Wevodau for all attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur in connection with the Maryland Action and Pennsylvania BISYS Action until both of those matters are fully and finally concluded before their respective courts and through any appellate practice; and (d) That PGW must abide by all other obligations as set forth in the Indemnification Agreement and that the failure to do so could result in the imposition of sanctions, civil fines, and/or punitive damages at the discretio this Honorable Court. BARLEY SNYDE By: James . Chiaruttini Court I.D. 82060 Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff (491529.1 9 16 VERIMCATION I, Steven S. Wevodau, the within Plaintiff, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Dated: ID - f - OS Steven S. Wevodau 17 ..E?-i?-?-?gIT • ra ? f INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September ZZ , 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS A. The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. B. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS A. "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf of Wevodau in connection with any Action. B. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in wholc or in part by reason of the production or 19 &t i disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses tinder Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (1) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation -2- 20 .o shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attomeys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shall be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of (1) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately be determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau sliall not be obliged to repay any amounts advanced for Expenses after the -3- 21 Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AND JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. - 4 - 22 SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each patty to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEISHER PRESIDENT STEVEN S. WEVODAU STEVEN S. DAU Dated: Dated: q! f q- o 3 -5- 23 SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LE HER PRESIDENT Dated: g 4 a3 STEVEN S. WEVODAU STEVEN S. WEVODAU Dated: -5- 24 EXHIBIT B 25 FEES DUE TO AND PAID TO McNEES, WALLACE & NURICK, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5/05 $8,047.91 Expense Payment to Filius & McLucas (Stenographic Reporting Services) $961.63 Payments made to McNees, Wallace & Nurick, LLC: June 2003 $3,000.00 August 2003 $1,500.00 October 2003 $5,000.00 September 2004 $10,000.00 May 2005 $16,000.00 Total Amounts Owed to Wevodau for payments made to $44,509.54 McNees, Wallace & Nurick, LLC 1491392.1 26 ?xh?b??" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, I No. 05-5393 Civil Term Plaintiff f V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY RULE TO SHOW CAUSE AND NOW, this day of April 2008, in consideration of Plaintiff's Motion for Determination of Successor Liability and for Leave to Amend Complaint, a Rule is hereby entered against Potomac Group West, Inc., to show cause why the relief requested by Plaintiff, that is, a determination by this Court that Leisher Insurance Solutions Group, Inc., is the successor in interest to Potomac Group West, Inc., and granting Plaintiff leave to amend his Complaint to include Leisher Insurance Solutions Group, Inc., as a named defendant. BY THE COURT, Judge IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY MOTION FOR DETERMINATION OF SUCCESSOR LIABILITY AND FOR LEAVE OF COURT TO AMEND COMPLAINT Plaintiff, Steven S. Wevodau, (hereinafter Wevodau), by and through his undersigned counsel, Barley Snyder LLC, files the following Motion for Leave of Court to Amend Complaint, of which the following is a statement: 1. Plaintiff initiated this action by Complaint filed on October 17, 2005. 2. Defendants filed an Answer with Affirmative Defenses and a Counter-Complaint on or about November 21, 2005, and filed an Amended Answer with Affirmative Defenses and an Amended Counter-Complaint on or about February 2, 2006. 3. Plaintiff filed his Reply to Defendants' New Matter and an Answer to the Counter-Complaint with New Matter on May 1, 2006, to which Defendants filed a Reply on or about May 23, 2006. 4. Depositions of Defendants' representatives, Karen Davis and Steven C. Leisher, were taken on February 21, 2008 and March 10, 2008. 5. During the course of their depositions, Ms. Davis and Mr. Leisher testified that the above named Defendant, Potomac Group West, Inc. (PGW), is no longer in business, and that they are now employed by Leisher Insurance Solutions Group (LISG). 6. Defendants' representatives further testified that the location of LISG remained the same as PGW, that the employees of LISG remained the same as PGW, that the office manager of the two companies, Karen Davis, remained the same and that her duties remained the same. 7. Mr. Leisher, the president of PGW, testified that the business of PGW had been a life insurance brokerage business and although LISG shifted focus from selling of policies to the purchase of policies it still services brokers. 8. Mr. Leisher testified that he owned 90% of PGW with the remaining 10% owned by his children's trust, the Leisher Children's Family Trust. 9. Mr. Leisher testified that LISG is owned 80% by the Leisher Children's Family Trust, which is owned by Mr. Leisher's children. 10. Mr. Leisher, upon information and belief, controls the Leisher Children's Family Trust. 11. Mr. Leisher testified that he had check-signing authority for both PGW and LISG. 12. Mr. Leisher testified that he could terminate employees for both PGW and LISG. 13.- Although he was a 90% owner of PGW, Mr. Leisher was unable to describe the mechanics of the actual change in ownership or to identify or describe the consideration paid by LISG for PGW or provisions made for creditors of PGW. 14. Based on the testimony of Ms. Davis and Mr. Leisher, Plaintiff believes and therefore avers that Defendant, although purportedly closing its doors in August 2007, merely changed its name and began operating as LISG in September of 2007. 2 15. In fact, the records of the California Secretary of State Business Portal website reveals that LISC was formed on May 23, 2007, and that both PGW and LISG are active corporations as of March 20, 2008. (See attached Exhibit A) 16. Further, the docket from the Maryland Action reveals that judgment was entered on April 12, 2007, "enjoining, restraining, and ordering Steven C. Leisher and PGW to cease and desist, immediately, the use of any business name using the word "Potomac" or any business name confusingly similar to "Potomac Group" and further that Steven C. Leisher and PGW are permanently enjoined, restrained, and ordered not to use any business name using the word "Potomac" or any business name confusingly similar to "Potomac Group," (See attached Exhibit B) 17. Plaintiff believes and therefore avers that the transaction from PGW to LISG was merely a continuation of the original corporation PGW in order to comply with the order of court, or, alternatively, amounted to a consolidation, or was fraudulently entered into to escape liability. 18. Plaintiff believes and therefore avers that based on the facts established at deposition, LISG is in fact PGW. 19. Pennsylvania Rule of Civil Procedure 1033 provides that by leave of court a party may at any time change the form of action, correct the name of a party or amend his pleading. 20. Pennsylvania Rule of Civil Procedure 1033 further provides that the amended pleading may aver transactions or occurrences which have happened after the filing of the original pleading even though they give rise to a new cause of action. 21. Pennsylvania Rule of Civil Procedure 1033 further provides that an amendment may be made to conform the pleading to the evidence offered. 22. Pursuant to Pa.R.C.P. 1033, Plaintiff requests leave of Court to amend his Complaint to add Leisher Insurance Solutions Group, Inc., as a party Defendant. A copy of Plaintiff's proposed Amended Complaint is attached and marked Exhibit C. 23. Plaintiff gave notice of its intention to file the within Motion, and Defendant has not consented to the request for relief. 24. The Hon. M. L. Ebert, Jr., was previously assigned to hear other issues in this matter. WHEREFORE, Plaintiff, Steven S. Wevodau, respectfully requests your Honorable Court issue a Rule to Show Cause upon Defendant, Potomac Group West, Inc., to show cause why Leisher Insurance Solutions Group, Inc., should not be determined to be its successor in interest and joined as a party Defendant in this action and Plaintiff granted leave to file an Amended Complaint in the form attached. BARLEY SNYDER L j? By: Sean C. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2220621 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Leave to Amend Complaint is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald 14. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SYER LLC - LND By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: / l 611? E?xh Ib1+ C STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. POTAMAC GROUP WEST, INC.,: DEFENDANT : NO. 06-5393 CIVIL ORDER OF COURT AND NOW, this 295' day of May, 2008, upon consideration of Plaintiffs Motion for Determination of Successor Liability and for Leave of Court to Amend Complaint and the Defendant's Response thereto, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiffs Motion is DENIED. By the Court, ? t _ M. L. Ebert, Jr., ? J. Sean E. Summers, Esquire Attorney for Plaintiff Thomas J. Weber, Esquire Attorney for Defendants bas E ".. vi r ? 'b.J' l 4 s .'A.?" •.i' 4 4a r?l e4'{:: f-aaf, I here ly"?':.i; 'i °SE'? I'6car:i{ „ ?.r/?+qr Y Y s- -6ay REC/CLED Thomas J. Weber, Esquire I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST. INC., Defendant CIVIL ACTION - LAW AND EQUITY ANSWER And COUNTER-COMPLAINT Counter-Plaintiff Potomac Group West., Inc. ("PGW") hereby files the following Answer and Counter-Claims against Counter-Defendant Steven C. Wevodau ("Wevodau") ANSWER Counter-Plaintiff, Potomac Group West., Inc. ("PGW") hereby files this Answer against Plaintiff Steven C. Wevodau ("Wevodau"). 1. Admitted in part. Denied in part. Counter-Plaintiff admits that Steven Wevodau is an adult individual. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Admitted. Counter-Plaintiff admits that Potomac Group West, Inc. is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South highway 101, Suite 403, Solana Beach, California. 3. Denied. Counter-Plaintiff denies the allegations set forth in Paragraph 3 of the Complaint. Upon suspicion and belief, Wevodau is a former employee of BISYS Insurance Services, Inc., a wholly owned subsidiary BISYS Group, Inc. 4. Denied. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau is a former independent contractor of BISYS Group, Inc. 5. Admitted. Counter-Plaintiff admits that Mr. Wevodau is a former independent contractor for Potomac Group West, Inc. 6. Admitted in part. Denied in part. Counter-Plaintiff admits that on September 22, 2003, Wevodau and Potomac Group West entered into an Indemnification Agreement. Counter-Plaintiff denies the remaining allegations set forth in Paragraph 6, as the Indemnification Agreement speaks for itself. 7. Denied. Counter-Plaintiff denies that valid consideration was received by Potomac Group West, Inc., therefore, the indemnification agreement does not constitute a binding agreement upon Potomac Group West, Inc. 8. Admitted. Counter-Plaintiff admits that since approximately September 13, 2002, to the present, Potomac Group West has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. 9. Admitted. Counter-Plaintiff admits that Wevodau is not named as a parry in the Maryland Action. 10. Admitted in part. Denied in part. Counter-Plaintiff admits that Wevodau has acted as a third party witness in the Maryland action. Counter-Plaintiff has insufficient evidence with which to admit or deny the remaining allegations set forth in Paragraph 10. 11. Denied. It is denied that Counter-Plaintiff is obligated under the Indemnification Agreement to pay such fees and attorney's fees as set forth by Plaintiff. 12.. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 13. Admitted. 14. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 15. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 16. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 17. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for actions arising out of Wevodau's conduct which occurred prior to the execution of the Indemnification Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 18. Denied. The averments are denied in that Wevodau did not perform under the Indemnification Agreement. 19. Counter-Plaintiff admits that Section Nine of the Indemnification Agreement provides that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." COUNT I - BREACH OF CONTRACT 20. Admitted. 21. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 22. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 23. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. 24. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. The averments are also denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 25. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 26. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 27. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 28. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 29. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 30. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 31. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 32. Admitted COUNT II - FOR DECLARATORY JUDGMENT PURSUANT TO 42 PA. C.S.A. §7531, ET SEQ. 33. Admitted 34. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 35. Admitted. 36. Denied. The controversy at issue is governed by a written contract, the validity of which is in dispute. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant. AFFIRMATIVE DEFENSES 1. The counts fail to state a claim against Counter-Plaintiff upon which relief may be granted. 2. Plaintiffs' claims are barred by the applicable statute of limitations. 3. Plaintiffs' claims are barred by the doctrine of unclean hands. 4. Plaintiffs' claims are barred by the doctrine of laches. 5. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 6. Plaintiff's claims are barred by fraud. 7. The contract in question was executed as a result of fraud in the inducement, therefore, the contract is null and void and/or voidable. 8. Plaintiff's claims are barred by the doctrine of waiver. 9. Plaintiff's claims are barred by his own breach. 10. Plaintiff's claims are barred by lack of consideration. 11. Plaintiff's claims are barred because the damages sought relate to events or disclosures outside the scope of the contract, and is thus, overreaching. 12. Plaintiff's claims are barred by non-performance of conditions precedent. 13. Plaintiff's claims are barred by the doctrine of frustration. 14. Plaintiff's claims are barred as a matter of public policy. 15. Plaintiff's claims are barred by the doctrine of impossibility. 16. Plaintiff's claims are barred because the are vague, uncertain, and lack for a specific time within which to perform. 17. Counter-Plaintiffs have insufficient knowledge or information upon which to form a belief as to whether it may have additional affirmative defenses. Counter-Plaintiffs hereby reserve the right to assert additional affirmative defenses should additional facts be discovered which would lead to additional appropriate affirmative defenses. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant. COUNTER-CLAIM FOR FRAUD Parties 1. Counter-Plaintiffs, Potomac Group West, Inc. is a corporation organized and existing under the laws of California. With a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California. 2. Counter-Defendant, Steven C. Wevodau is an adult individual whose principal place of residence is 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. From 1996 through March 13, 2002, Wevodau was employed by BISYS Insurance, Inc. 4. Mr. Wevodau is also a former independent contractor of BISYS Insurance, Inc. 5. Mr. Wevodau is a former independent contractor of PGW. Jurisdiction and Venue 6. Jurisdiction in this Court is proper pursuant to Section Nine of the Indemnification Agreement, which states that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." Factual Allegations 7. On September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement, which document sets forth respective obligations of the parties to one another, as specified therein. A True and correct copy of the Indemnification Agreement is attached hereto as Exhibit A, and the entirety of the document is incorporated herein by reference as if fully set forth at length. 8. No oral or written indemnification Agreement existed between the parties prior to September 22, 2003. 9. The Indemnification Agreement, by its terms, provides indemnification to Wevodau against any Action and against all expenses related to such Action arising from conduct by Wevodau after September 22, 2003. 10. The term "action" as referenced in the indemnification agreement refers to any future "claim, action, or suit, whether brought by BISYS or anyone else ...by reason of the production or disclosure by Wevodau of information, including, but not limited to information regarding the accounting procedures utilized by BISYS." 11. Prior to the execution of the Indemnification Agreement, Steve Wevodau voluntarily disclosed certain information related to BISYS accounting practices. Wevodau represented, among other things, that BISYS engaged in a systematic practice of "skimming" or withholding commissions owed to PGW and Steven C. Leisher, President of PGW. 12. Wevodau provided PGW a spreadsheet containing calculations of money owed to PGW, and represented that those calculations were based on his personal experience and knowledge of the accounting of Steve Leisher's commissions throughout the time period relevant to the law suit. 13. Wevodau also made representations regarding amounts allegedly withheld by BISYS. 14. Each of the above referenced representations were made voluntarily, prior to the time of the execution of the indemnification agreement. 15. The above referenced disclosures were made as early as September, 2002, and continued up to September 21, 2003, the date on which Wevodau memorialized such representations in an affidavit to be filed with the Court. 16. In conjunction with the above referenced representations, Wevodau represented to Plaintiffs that he had the ability to, and was willing to provide a more detailed analysis of the commissions owed to PGW and Steve Leisher. 17. Plaintiffs relied on such representations, and in an effort to encourage Wevodau to continue to work as an independent consultant with respect to providing information related to resolving accounting issues, entered into said indemnification agreement with Wevodau. 18. The purpose of the Indemnification Agreement was to secure Wevodau's "expertise" to assist PGW in resolving "certain accounting issues involving compensation due and owing" PGW. 19. Specifically, at the time the indemnification agreement was entered into, PGW was in the process of seeking a court ordered accounting of commissions owed. 20. Because of the complexity of the accounting issues with respect to the commissions, and due to Wevodau's specialized knowledge of such, PGW hoped to use Wevodau's expertise to resolve the accounting issues underlying the litigation, and thus, move towards a speedy and efficient resolution of the case. 21. Plaintiffs' belief that Wevodau would, in fact, be able to assist with the resolution of the accounting issues was based on Wevodau's representations about his knowledge of amounts owed to Plaintiffs. 22. Wevodau was subsequently sued by BISYS in the State of New York for violating his Restrictive Covenant Agreement and Independent Contractor Agreements with BISYS. 23. According to the Complaint filed in the New York Action, "[f]ollowing Wevodau's employment with employment with BISYS Insurance, he directly and/or indirectly discussed and disclosed his privileged communication... [I]n doing so, Wevodau disclosed confidential information in violation of the Contractor Agreement and the 1998 Agreement." 24. The New York Complaint also alleges that "[o]n or about September 8, 2003, Wevodau again violated the terms of the nondisclosure provisions of the Contractor Agreement and 1998 Agreement by providing Mr. Kelsall and/or Potomac West with an affidavit, describing a confidential communication between Wevodau and BISYS's in- house counsel. First Cause of Action Fraud 25. Plaintiff incorporates the allegations set forth in paragraph 1 through 25 as though fully set forth herein. 26. Wevodau made representations to Plaintiffs regarding his ability and willingness to provide Plaintiffs with certain information regarding amounts owed to Plaintiff by BISYS. 27. Specifically, Wevodau made representations that calculations made by him related to commissions, including bonuses, owed to Plaintiffs for the years 1997 through 2002 were based on his personal knowledge of commissions owed and that such calculations were accurate. 28. The representations were made by Wevodau to Steve Leisher, Bruce Abbott, and other individuals associated with Potomac Group West during December, 2002, on or before September 21, 2003, and at various other times throughout the relevant time period. 29. Wevodau also made representations that he was willing, if asked, to testify regarding his calculations and the accuracy of such calculations. 30. Wevodau also represented to Plaintiffs that he was willing, and able, to provide additional, detailed analysis of commissions owed, and that he would, if asked, provide additional analysis of the accounting of commissions between BISYS Insurance and PGW. 31. Wevodau knew, at the time, he made such representations, that such representations were false. 32. Subsequent to making the aforesaid representations, Wevodau testified during his deposition that he did not have personal knowledge of the accounting analysis performed, and that such numbers were mere estimates. 33. Wevodau also testified, during his deposition, that he did not have the ability to provide a full analysis of the amounts of commissions owed, or to perform an accounting of commissions. 34. Wevodau's representations to PGW were materially false when made, and were calculated to induce Plaintiffs to enter into the indemnification agreement with Wevodau. 35. Plaintiff reasonably relied on Wevodau's representations. 36. In reliance upon Wevodau's representations, Plaintiffs entered into the indemnification agreement, and took other strategic action with respect to their accounting which they would not have done were it not for the misrepresentations by Wevodau. 37. As a result of said misrepresentations, Plaintiffs suffered damages, and will continue to suffer damages in an amount to be proven at trial. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant in an amount that exceeds $35,000.00 along with interest and costs and all other relief the Court deems just. Respectfully submitted, GOLDB ZMAN C. ]JAI (I J'\ A I (iAO Thoina J. Weber, I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: November 21, 2005 INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September 222003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain infotwation that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf or Wevodau in connection with any Action. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in whop or in part by reason of the production or disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (I) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attorneys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shall be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of: ( I) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately he determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the -3- r ? Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AN JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. J 1- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. Bv: STEVEN C. LEISHER PRESIDENT STEVEN S. WEVODAU STEVEN S. DAU Dated: Dated: -0 5 SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: HER STEVEN S. WEVODAU STEVEN S. WEVODAU STEVEN C. LE PRESIDENT Dated: ?/-, 7 Dated: FEES DUE TO AND PAID TO McNEES, WALLACE & NURICK, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5/05 Expense Payment to Filius & McLucas (Stenographic Reporting Services) Payments made to McNees, June 2003 August 2003 October 2003 September 2004 May 2005 Wallace & Nurick, LLC: Total Amounts Owed to Wevodau for payments made to McNees, Wallace &, Nurick, LLC $8,047.91 $961.63 $3,000.00 $1,500.00 $5,000.00 $10,000.00 $16,000.00 $44,509.54 1491392.1 r CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. '.?. .?. BY: Thomas J. Weber, Esq. Attorney I.D. No. 58853 Dated: November 21, 2005 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. By: ' Ronaldo egaspi, Esq. I.D. # 200240 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Dated: August 6, 2008 161072.1 10 ; t cr'N 71;.x . Thomas J. Weber, Esquire I.D. #58853 J. Ronaldo Legaspi, Esquire I.D.#200240 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 STEVEN S. WEVODAU, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant : NO. 08-3925 MOTION TO ADMIT RONALD H. BLUMBERG TO PRACTICE PRO HAC VICE AND NOW COMES the Defendant, Leisher Insurance Solutions Group, Inc., by and through its counsel, Goldberg Katzman P.C., and moves that Attorney Ronald H. Blumberg be admitted Pro Hac Vice and in support thereof asserts the following: 1. Ronald H. Blumberg ("Petitioner") is an adult individual who resides at 202 N. Sierra Avenue, Solana Beach, California 92075 and has an office at 137 N. Acacia Avenue, Solana Beach, California 92075. 2. That Petitioner attended the following educational institutions and received the following degrees: B.A. - University of California, Berkeley; J.D. - Loyola Law School (Los Angeles, California). 3. That Petitioner was admitted to practice in the State of California in 1987, and is a member of the bar of the state in which the Defendant does business. Petitioner is Managing Partner of Blumberg Lorber Nelson LLP, California counsel for Defendant in this action. 4. Petitioner is admitted to the following courts: California, all superior courts, U.S. District Court for the Central District of California, U.S. District Court for the Southern District of California, U.S. District Court for the Northern District of California, and the United States Tax Court. See Certificate of Good Standing attached hereto as Exhibit "A." 5. That Petitioner has never been held in contempt of court or censured in a disciplinary proceeding, suspended or disbarred by any court or admonished by any disciplinary committee of the organized bar, nor is the subject of any pending complaint before any court. 6. This Honorable Court has granted a motion to admit Attorney Blumberg to practice pro hac vice in a prior related case at Docket No. 05-393 by order dated November 23, 2005. See Order attached hereto as Exhibit "B." WHEREFORE, the Petitioner respectfully requests to be admitted Pro Hac Vice in the Cumberland County Court of Common Pleas. Respectfully submitted, GOLDBERG KATZMAN P.C. T as J. We er, Esquire I.D. #58853 J. Ronaldo Legaspi, Esquire I.D. #200240 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: August 19, 2008 :0DMA\PCD0CS\D0CS\161650\1 2 0A. F ? C ?O 9 y THE STATE BAR OF CALIFORNIA MEMBER SERVICES CENTER 180 HOWARD STREET, SAN FRANCISCO, CALIFORNIA 94105-1639 July 31, 2008 TO WHOM IT MAY CONCERN: TELEPHONE: 888-800-3400 This is to certify that according to the records of the State Bar, RONALD HOWARD BLUMBERG, #130557 was admitted to the practice of law in this state by the Supreme Court of California on December 14, 1987; and has been since that date, and is at date hereof, an ACTIVE member of the State Bar of California; and that no recommendation for discipline for professional or other misconduct has ever been made by the Board of Governors or a Disciplinary Board to the Supreme Court of the State of California. THE STATE BAR OF CALIFORNIA Kath ambert Custodian of Membership Records 7 STEVEN S. WEVODAU IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 05-5393 POTOMAC GROUP WEST, INC. Defendant ORDER AND NOW this ) day of 2 to Admit Ronald H. Blumberg to Practice Pro ac Vice, said consideration of the Motion granted. J TRUE COPY FROM R O BL) In Testimony wh"d, i hers unto sit tiny hand Md the $eail of said Cwd at , . T y Prothondbe r CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN P.C. Tomas J. Weber, Esquire Attorney I.D. #58853 J. Ronaldo Legaspi, Esquire I.D. #200240 Dated: August 19, 2008 C? 0 rn' W w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, No.08-3925 Civil Term Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of York I, Sean E. Summers, being duly sworn according to law, depose and state that service of the Complaint filed in the above matter was effected upon Defendant, Leisher Insurance Solutions Group, Inc., on July 7, 2008, by sending a true and correct copy thereof to said Defendant by Certified Mail, Return Receipt Requested, Restricted Delivery, at York, Pennsylvania, addressed as follows: Leisher Insurance Solutions Group, Inc. 437 S. Highway 101 Suite 212 Solana Beach, CA 92075 The Return Receipt Card evidencing service is Exhibit A. Sworn and subscribed to before me this 18th day of P-pst, 2008. /l t, I 1 11 /"U- 1'zm-?L?? tart' Public ?C 2379340 COMMQ"E" OF PENNSYLVANIA made a part hereof as Noterwl SW Deore D Senken. Notary Pul*c City of York Yore County Commission Evm 1W 11, 2012 Member, faern n of ries 2. Anide Number e?/ """ ? Ada d"very address blow: n M. 3. 9orvice Type CERTIFIED MAIL 4. Restricted Wkwyl (Em, Feej 1. Article Addressed to: Leisher Insurance Solutions Group, Inc 437 S. Highway 101 Suite 212 Solana Beach, CA 92075 PS Form 3911, Armliq 42434-1 SES EXHIBIT A ? >...? } _ ?--fi r ??. ?: .. - ? ? ?.,A C.,?i _?! Thomas J. Weber, Esquire I.D. #58853 J. Ronaldo Legaspi, Esquire I.D. #200240 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 STEVEN S. WEVODAU, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant : NO. 08-3925 MOTION TO ADMIT RONALD H. BLUMBERG TO PRACTICE PRO HAC VICE AND NOW COMES the Defendant, Leisher Insurance Solutions Group, Inc., by and through its counsel, Goldberg Katzman P.C., and moves that Attorney Ronald H. Blumberg be admitted Pro Hac Vice and in support thereof asserts the following: 1. Ronald H. Blumberg ("Petitioner") is an adult individual who resides at 202 N. Sierra Avenue, Solana Beach, California 92075 and has an office at 137 N. Acacia Avenue, Solana Beach, California 92075. 2. That Petitioner attended the following educational institutions and received the following degrees: B.A. - University of California, Berkeley; J.D. - Loyola Law School (Los Angeles, California). 3. That Petitioner was admitted to practice in the State of California in 1987, and is a member of the bar of the state in which the Defendant does business. Petitioner is Managing Partner of Blumberg Dagan LLP, California counsel for Defendant in this action. 4. Petitioner is admitted to the following courts: California, all superior courts, U.S. District Court for the Central District of California, U.S. District Court for the Southern District of California, U.S. District Court for the Northern District of California, and the United States Tax Court. See Certificate of Good Standing attached hereto as Exhibit "A." 5. That Petitioner has never been held in contempt of court or censured in a disciplinary proceeding, suspended or disbarred by any court or admonished by any disciplinary committee of the organized bar, nor is the subject of any pending complaint before any court. 6. This Honorable Court has granted a motion to admit Attorney Blumberg to practice pro hac vice in a prior related case at Docket No. 05-393 by order dated November 23, 2005. See Order attached hereto as Exhibit "B." 7. Petitioner has provided the required information and paid the required fee to the Pennsylvania Interest on Lawyer Trust Account (IOLTA) Board as mandated by the IOLTA Board regulations. See Fee Payment Certification Letter attached hereto as Exhibit "C." WHEREFORE, the Petitioner respectfully requests to be admitted Pro Hac Vice in the Cumberland County Court of Common Pleas. Respectfully submitted, GOLDBERG KATZMAN P.C. mas eber, Esquire I.D. #58853 J. Ronaldo Legaspi, Esquire I.D. #200240 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: September 8, 2008 ::ODMA\PCDOCS\DOCS\161650\1 2 F 0 THE STATE BAR OF CALIFORNIA MEMBER SERVICES CENTER 180 HOWARD STREET, SAN FRANCISCO, CALIFORNIA 94105-1639 TELEPHONE: 888-800-3400 TO WHOM IT MAY CONCERN: July 31, 2008 This is to certify that according to the records of the State Bar, RONALD HOWARD BLUMBERG, #130557 was admitted to the practice of law in this state by the Supreme Court of California on December 14, 1987; and has been since that date, and is at date hereof, an ACTIVE member of the State Bar of California; and that no recommendation for discipline for professional or other misconduct has ever been made by the Board of Governors or a Disciplinary Board to the Supreme Court of the State of California. THE STATE BAR OF CALIFORNIA 4a ambert Custodian of Membership Records ??( ?,?J+ i? N O V 2 1 2005 1 STEVEN S. WEVODAU IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-5393 POTOMAC GROUP WEST, INC. Defendant ORDER d r AND NOW this ,?3 day of N 20 to Admit Ronald H. Blumberg to Practice Proac Vice, said consideration of the Motion granted. J TRUE COPY FROM R OBE) 10 Toomony w , f hers unto set ray hand and the si of said Cwn at, PL T j day Prothonoari ???b??' ? Sep U3 08 11:37a Connie Leeds 7172382031 ;' ..:•;'r?' ,,,jet,]. SUPREME COURT OF PENNSYLVANIA PENNSYLVANIA INTEREST ON LAWYERS TRUST ACCOUNT BOARD P. O. BOX 1025 - 115 STATE STREET HARRISBURG, PENNSYLVANIA 17108-1025 717/238-2001 - 888•PA-IOLTA (724-6582) - 717/238-2003 FAX paiolta@pacourts.us www.paiolta.org Chair bf kUREEN P. KELLY. Esquire September 3, 2008 Two Gateway Center 601 Stanwix Street. 8th Floor Pittsburgh, PA 15222-5412 vioe-cbalr Sent by fax: WILL: IM P. CARLUCCI, Esquire Williamsport, PA Ronald H. Blumberg, Esquire BLUMBERG DAGAN LLP aim, 137 N. Acacia Ave. HI (BERT X. GILROY, Esquire Solana Beach, CA 92075 Carlisle, PA LE, CIS E GOULD, JR., Esquire Dear Attorney Blumberg Philadelphia, PA g MM : [AM T. HANGLET Esquire Philadelphia, PA PENINP KESSLER LIEBER, Esquire Pittsburgh, PA I• . MARK MENDEL, Esquire Philadelphia, PA p.2 This letter senses as the fee payment certification referenced in 204 Pa Code §81.503 and acknowledges receipt of the $100 fee paid by Check, number 2489, on this date related to your pursuit for admission pro hac vice in the case identified as Steven S. Wevc-dau v.Leisher Insurance Solutions Group. Inc., case no. 08-3925, filed in the Court of Common Pleas of Cumberland County. You should refer to Pa Rule of Civil Procedure 1012. I, local court rules, I ICHAEL hREED, pia,PA ? and other regulations of 204 Pa Code §81.501 et. sett. concerning additional requirements related to seeking pro ha(,- vice admission. A! DREW F, SUSKO, Esquire Philadelphia, PA Sincerely, ''g Eve=Uve Director ALFRED J. AZEN Alfr J. e Executive Dii !c or cc: Jose Ronaldo Legaspi, Esq. (717) 234-6808 G:\CL\DOC\PHV\ACK LTR\2008\Sep\September 3.wpd Administering Pennsylvania's Interest On Lawyers Trust Account (IOL'iA) P1 ogram CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN P.C. Thdmas J. Veber, Esquire Attorney I.D. #58853 J. Ronaldo Legaspi, Esquire I.D. #200240 Dated: September 8, 2008 C? N c.:a 2000 STEVEN S. WEVODAU Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-3925 Defendant ORDER AND NOW this -k- day of 2008, upon consideration of the Motion to Admit Ronald H. Blumberg to Practice Pr( * 41 N z .` -?- ?-.., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant No.08-3925 Civil Term PRAECIPE FOR JUDGMENT Enter judgment in favor of Plaintiff and against Defendant for want of a written response to Plaintiff's Complaint. (x) Assess damages as follows: Debt------------------------- $ Interest from ------ $ Attorney's Commission-------- $ TOTAL------------------------ $ () I certify that the foregoing assessment of damages is for specified amounts alleged to be due in the complaint and is calculable as a sum certain from the complaint. O Pursuant to Pa. R.C.P. 237 (Notice of praecipe for final judgment or decree), I certify that a copy of this praecipe has been mailed to each other party who has appeared in the action or to his/her Attorney of Record. (x) Pursuant to Pa. R.C.P. 237. 1, I certify that written notice of the intention to file this praecipe was mailed or delivered to the party against whom judgment is to be entered and to his/her Attorney of Record, if any, after the default occurred and at least ten days prior to the date of the filing of this praecipe and a copy of the notice is attached. BARLEY SNYDER L By: Sean E. Su ers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff NOW, ?p , 2008, JUDGMENT IS ENTERED AS ABOVE. Protfi onot , Civi ivision By: Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant No.08-3925 Civil Term TO: Leisher Insurance Solutions Group, Inc. 437 S. Highway 101 Suite 212 Solana Beach, CA 92075 DATE OF NOTICE: August 18, 2008 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. 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. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 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. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 BARLEY By I--,'?/// / Sean IJ. Summers Court I.D. 92141 100 East Market Street P. O. Box 15012 York, PA 17405-7012 (717) 846-8888 2379087.1 14* O _- _, .? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant No.08-3925 Civil Term NOTICE OF FILING JUDGMENT (X) Notice is given that a judgment in the above-captioned matter was entered against you on September /00 , 2008. (X) A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. urt Lo Prothonotary of Cumberland County By: Deputy If you have any questions regarding this Notice, please contact the filing party: Sean E. Summers, Esq. Barley Snyder LLC 100 East Market Street P. O. Box 15012 York, PA 17405-7012 717.846.8888 (This Notice is given in accordance with Pa.R.C.P. 236.) Notice sent to: Leisher Insurance Solutions Group, Inc. 437 S. Highway 101 Suite 212 Solana Beach, CA 92075 PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) 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) STEVEN S. WEVODAU (Plaintiff) VS. LEISHER INSURANCE SOLUTIONS GROUP, INC. vs. (Defendant) (check one) P Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. 08-3925 Term indicate the attorney who will try case for the party who files this praecipe: Sean E. Summers - Indicate trial counsel for other parties if known: Thomas J. Weber and Ronald H. Blumberg This case is ready for trial. Date: 11/18/08 Signed: Print Name: Sean E. Summers Attorney for: P l a i n t i f f 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff v. LEISHER INSURANCE SOLUTIONS GROUP, INC. No.08-3925 Livia i erm Defendant CERTIFICATE OF SERVICE I hereby certify that I have this date served by First Class United States Mail a copy of the foregoing Praecipe on the persons indicated below: Ronald H. Blumberg, Esq. 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 1701_$k BARLEY By: Seaif E. Simmers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Date: November 19, 2008 (.: CD STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: NONJURY TRIAL ORDER AND NOW, this 2l' day of December, 2008, a pretrial conference in the above- captioned matter is set for Friday, January 23, 2009, at 9:30 a.m. in the Chambers of the undersigned. BY THE COURT, Sean E. Summers, Esquire For the Plaintiff Thomas J. Weber, Esquire Ronald H. Blumberg, Esquire For the Defendant Court Administrator,( :rlm 3,71 u STEVEN S. WEVODAU, Plaintiff vs. LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN THE COURT 03COMMON PLEAS OF CUMBERLAND C UNTY, PENNSYLVANIA CIVIL ACTION - L W NO. 08-3925 CIVIL RE: NONJURY TRIAL ORDER AND NOW, this i-V day of December, 2008, th? pretrial conference in the above- captioned matter set for January 23, 2009, is continued to Friday, February 6, 2009, at 9:30 a.m. in the Chambers of the undersigned. BY THE COURT, XS'ean E. Summers, Esquire For the Plaintiff ,/Thomas J. Weber, Esquire ,/Donald H. Blumberg, Esquire For the Defendant Kevin ss, J. Court Administrator :rlm ES moo tITCL, ia/?z/off OF THE' 2008 DEC 17 PH 3:.4 CUM', v Ronald H. Blumberg Blumberg Law Group, LLP 437 S. Highway 101, Suite 217 Solana Beach, CA 92075 Telephone: (858) 509-0600 Facsimile: (858) 509.0699 STEVEN S. WEVODAU, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LEISHER INSURANCE SOLUTIONS GROUP, INC. NO. 08-3925 Defendant PETITION TO OPEN DEFAULT JUDGMENT Leisher Insurance Solutions Group, Inc., by its attorney, petitions this Court to open the default judgment entered against it, and in support thereof, states the following: 1. Petitioner is a California corporation which has a principal office located at 437 S. Highway 101, Suite 212, Solana Beach, California 92075. Petitioner has a registered agent for process: Mr. Marty Benowitz, 1905 Diamond Street, Suite B, San Marcos, CA 92069. 2. Respondent is an adult individual who is a citizen of the Commonwealth of Pennsylvania with his residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 1 3. A default judgment was erroneously entered against Petitioner by Respondent on September 10, 2008, in Cumberland County, Pennsylvania. 4. The underlying suit seeks damages from Petitioner as a result of Petitioner's alleged breach of contract between the Respondent and Potomac Group West, Inc. (hereinafter "PGW'), in which he incurred and continues to incur attorney's fees and expenses for which PGW is obligated to pay on Respondent's behalf pursuant to an Indemnification Agreement (hereinafter "Indemnification Agreement"). Petitioner has never been and is currently not a party to the Indemnification Agreement or any other agreement for that matter with Respondent. 5. PGW is currently an inactive corporation in Bankruptcy whose principal place of business was located at 437 S. Highway 101, Suite 403, Solana Beach, CA 92075. 6. Petitioner has a valid and meritorious defense to the underlying lawsuit, as set forth in the Defendant's Preliminary Objections to Plaintiffs Complaint timely filed with the prothonotary of Cumberland County, Pennsylvania on or about August 6, 2008. 7. Petitioner has an acceptable and reasonable explanation for the circumstances under which Respondent entered a default judgment against it, as set forth more particularly below: 2 a. This petition to open default judgment is being requested due to the fact that Petitioner timely filed and served it's Preliminary Objections to Plaintiffs Complaint with the prothonotary of Cumberland County, Pennsylvania pursuant to the ten (10) day rule set forth in Pa. R.C.P. 237.3 (b); b. Default was erroneously entered on or about August 18, 2008; c. Petitioner's preliminary objections clearly state and show that Petitioner is not a successor liability to PGW, therefore Petitioner assumed that the matter was resolved with the court and no further action would be taken; and d. This matter has been set for nonjury trial on January 23, 2009 by way of December 2, 2008 order issued by the Honorable Kevin A. Hess, and despite entry of default judgment against the Respondent by the Petitioner. 8. Unless this Court opens the default judgment entered against Petitioner, Petitioner will be deprived of its right to defend this case, a case which it always defended aggressively and which it believes is without merit. 3 WHEREFORE, Petitioner prays that this Honorable Court open the default judgment and let this case proceed on the merits. Dated: December 19, 2008 Respectfully ?ubmitted, BLUMBERG4 AW GROUP, LLP Ronald H. Bljm rg, Esq. (Admitted Pro Ha Vice) Attorney for Defe ant, Leisher Insurance olutions Group, Inc. BLUMBERG LAW OUP, LLP 437 S. Highway 101, Suite 217 Solana Beach, CA 92075 Telephone: 858.509.0600 Facsimile: 858.509.0699 4 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Solana Beach, California, with first-class postage prepaid, as follows: Sean E. Summers, Esq. Barley Snyder LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 BLUMBERG LAW GROU , LLP e ! . Torley Dated: December 29, 2008 :SAN 0 S awr'- v STEVEN S. WEVODAU : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08-3925 LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant ORDER AND NOW this day of ei.... 2898J2009, upon consideration of the Petition to open the default judgment, said Order is granted. The default judgment entered on August 18, 2008 is opened and this case shall proceed according to the December 2, 2008 nonjury trial order. I Dated: 14 ,v- z ,Wu.U""U , C3 Jj b ?w "V ivy _ brl'etl/ AiNnor? viNvA-M, N3d BE .Z Wd ' 1 Nvr ou "N'W4" ?o STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held this date were Sean Summers, Esquire, attorney for the plaintiff, and Ronaldo Legaspi, Esquire, local counsel for the defendant. Ronald H. Blumberg, Esquire, attorney for the defendant participated by telephone. Following discussion, the court directed the following: 1. That discovery in this case be completed within thirty (30) days; and 2. That any dispositive motions be filed within sixty (60) days. A nonjury trial in this case is set for Thursday, May 14, 2009, at 9:30 a.m. Inasmuch as the dispositive motion which is contemplated will be a motion for summary judgment, the court suggested that the pending preliminary objections in this case be withdrawn. February 6, 2009 /an E. Summers, Esquire For the Plaintiff V"onald Legaspi, Esquire nald H. Blumberg, Esquire For the Defendant Court Administrator :rim CAF ?tom ?' 'NM RY 2089 FEB -g pH ?; l t cup 1° A. HE COURT OF CON PLEAS OF IN?BERLANDCOUNTnOENNSYLVANIA 'U STEVEN S. W$VODAU, V. LEISHER INSURANCE SOLUTIONS GROUP, INC. No. 08-3925 Civil Term LOCAL RULE 1028(c) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 1. Defendant, Leis er Insurance Solutions Group, Inc., requests that its Motion for Summary Judgment be 'sted for the next term of oral argument. The Brief of Defendant is filed concurrently wit this Praecipe, addressing the Defendant's Motion for Summary Judgment. 2. Ronald Blumber , counsel pro hac vice, of Blumberg Law Group, LLP, 437 S. Highway 101, Ste. 217, Solana Beach, California, 92075, will argue said Motion on behalf of Defendant. Sean Summers, of Barley Snyder LLC, 100 East Market Street, P.O. Box 15102, York, ennsylvania 17405-7012, will argue on behalf of the Plaintiff. 3. Notice in writing will be given to all parties within two days that this case has been listed for argument. 4. Argument court is scheduled for April 29, 2009. GERG KATZMAN, P.C. By: Thomas J. Weber, Esquire PAAttorney ID # 58853 PO Box 1268 Harrisburg, PA 17108-1268 717-234-4161 tja)goIdbergkatzman.com Attorney for Defendant, Leisher Insurance Solutions Group, Inc. Date: April 9, 2009 CERTIFICATE OF SERVICE I, hereby certify that on this date, I served the foregoing document, via U. S. Mail, postage prepaid, on the Oersons set forth below, namely: Sean Summers, Esquire Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (Counsel for Plaintiff) GOLDBERG KATZMAN, P.C. J. 6Valdo Legaspi, Esquire Date: Apri19, 2009 GOLDBERG KATZMAN P.C. J. Ronaldo Legaspi, Esq. I.D. #200240 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG LAW GROUP, LLP Ronald H. Blumberg (Pro Hac Vice) CA Bar No. 130557 437 S. Highway 101, Ste. 217 Solana Beach, CA 92075 (858) 509-0600 Attorneys for Defendant, Leisher Insurance Solutions Group, Inc. o6?" F1??%? rICE OE THE 6~"tOTARY 2gog ApR _g PM 3-- 26 PDIIINISYOVIPIINI?A 1 ?y n IN THE COURT OF COMMON PLEAS OF UMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVO AU, Plain iff v. LEISHER INSURA CE SOLUTIONS GROUP INC., Def dant No. 08-3925 Civil Term LION FOR SUMMARY JUDGMENT OF LEISHER INSURANCE SOLUTIONS GROUP, INC. GOLDBERG KATZMAN P.C. Thomas J. Weber, Esq. I.D. #58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERGLAW GROUP, LLP Ronald H. Blumberg (Pro Hac Vice) CA Bar No. 130557 437 S. Highway 101, Suite 217 Solana Beach, CA 92075 (858) 509-0600 Attorneys for Defendant, LEISHER INSURANCE SOLUTIONS GROUP, INC. 1 t Defendant, Leisher Insurance Solutions Group, Inc. ("LISG"), by and through its undersigned counsel, Ronald H. Blumberg ro hac vice), of Blumberg Law Group, LLP, respectfully moves this Honorable Court for summary j dgment in its favor and against Plaintiff, Steven S. Wevodau, as to Count I of his complaint allegi g that LISG as successor in interest to Potomac Group West, Inc. ("PGW"), breached its contract to indemnify Plaintiff and as to Count II for Declaratory Judgment. Defendant makes this 1035.2(a). By pre-trial conference submits its brief in support of i calendar on April 29, 2009. Dated: April 6, 2009 pursuant to Pennsylvania Rules of Civil Procedure, Rule of this Court, trial is set for May 14, 2009, and LISG concurrently for summary judgment herewith for hearing on this Court's Respectfully submitte BLUMBERG LAW C By: Ronald H. Blu Attorneys for LEISHER INIL GROUP, INC. LLP Esq. ant CE SOLUTIONS GOLDBERG KATZMAN P.C. By: Thomas J. Weber, Esq. I.D. #58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 2 OF THE PP THONOT RY 2009 APR -9 PM 3.23 LVA IN STEVEN S. V. LEISHER INS GROUP, INC. TO THE PROTHON Please withdraw COURT OF COMMON PLEAS OF :LAND COUNTY, PENNSYLVANIA SOLUTIONS ) No. 08-3925 Civil Term OF CUMBERLAND COUNTY: Preliminary Objections filed on August 6, 2008. Respectfully submitted, GOLDBERG KATZMAN, P.C. By: J. naldo rdia"spi, Esquire Attorney I.D. No. 200240 320 Market Street, P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Defendant Date: April 9, 2009 CERTIFICATE OF SERVICE I, hereby certify that on this date, I served the foregoing document, via U. S. Mail, postage prepaid, on the Oersons set forth below, namely: Sean Summers, Esquire Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (Counsel for Plaintif? j`} GOLDBERG KATZMAN, P.C. (X?k oi4to'n'aid6?16'gaspi, Esquire Date: April 9, 2009 GOLDBERG KATZMAN P.C. J. Ronaldo Legaspi, Esq. I.D. #200240 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG LAW GROUP, LLP Ronald H. Blumberg (Pro Hac Vice) CA Bar No. 130557 437 S. Highway 101, Ste. 217 Solana Beach, CA 92075 (858) 509-0600 Attorneys for Defendant, Leisher Insurance Solutions Group, Inc. OF THE PROTHONOTARY 1049 AFB _9 PM 3: 20 _L.}1M ? \V...F1 t qu(lt'?\.Il E, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant No. 08-3925 Civil Term ANSWER OF DEFENDANT, LEISHER INSURANCE SOLUTIONS GROUP, INC., TO PLAINTIFF'S COMPLAINT Defendant, Leisher Insurance Solutions Group, Inc. ("LISG") hereby files this Answer against the complaint of Plaintiff, Steven S. Wevodau ("Wevodau") 1. Admitted in part. Denied in part. LISG admits that Wevodau is an adult individual. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Admitted. LISG is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South Highway 101, Suite 212, Solana Beach, California, and LISG's agent for service of process is Marty Benowitz. 1 3. Admitted in part. LISG admits that it acquired certain of the assets of Potomac Group West, Inc. ("PGW") but denies that PGW has a registered agent for service of process. PGW is in Bankruptcy, and no longer a viable entity. 4. Denied. LISG did not purchase all of the assets of PGW and is not successor in interest to PGW. 5. Denied. LISG did not simply change its name from PGW and is not successor in interest to PGW. LISG is not responsible for Wevodau's claims against PGW. By way of further response, the remaining averments contained in paragraph 5 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 6. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau is a former employee of BISYS Group, Inc. 7. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau is a former independent contractor of BISYS Group, Inc. 8. Admitted. LISG admits that Wevodau was a former independent contractor for PGW. 9. Denied. LISG did not enter into any indemnification agreement with Wevodau. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that PGW entered into an indemnification agreement. Upon suspicion and belief, PGW did enter into an 2 indemnification agreement with Wevodau for which Wevodau now claims LISG is responsible. 10. Denied. LISG did not enter into any indemnification agreement with Wevodau. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that PGW entered into an indemnification agreement with Wevodau that constituted a binding contract. LISG was not a party to that agreement. Upon suspicion and belief, PGW entered into an indemnification agreement with Wevodau for which Wevodau now claims LISG is responsible. By way of further response, the remaining averments contained in paragraph 10 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 11. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that since approximately September 13, 2002, to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. Upon suspicion and belief, the case caption and party information is public record, however, LISG was not in existence during the time frames mentioned and can therefore admit nothing. 12. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that since approximately September 13, 2002, to the present, PGW has been involved as a Plaintiff in a 3 legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. Upon suspicion and belief, the case caption and party information is public record, however, LISG was not in existence during the time frames mentioned and can therefore admit nothing. 13. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that since approximately September 13, 2002, to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. Upon suspicion and belief, the case caption and party information is public record, however, LISG was not in existence during the time frames mentioned and can therefore admit nothing. 14. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that since approximately September 13, 2002, to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. Upon suspicion and belief, the case caption and party information is public record, however, LISG was not in existence during the time frames mentioned and can therefore admit nothing. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non- performance of conditions precedent of the Agreement, failure of consideration, 4 the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 15. Admitted in part. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding Wevodau's initial representation. LISG is aware, however, that Barley Snyder LLC does currently represent Wevodau with regard to the instant complaint. 16. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding the former or current legal proceedings involving The BISYS Group, Inc., since it is not a named party. Upon suspicion and belief, the case information is public record, however, and speaks for itself. 17. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding the former or current legal proceedings involving The BISYS Group, Inc., since it is not a named party. Upon suspicion and belief, the case information is public record, however, and speaks for itself. 18. Admitted in part. Denied in part. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding Wevodau's initial representation in any action involving The BISYS Group, Inc. LISG is aware, however, that Barley Snyder LLC does currently represent Wevodau with regard to the instant complaint. The remainder of this averment is denied. 5 19. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding the former or current legal proceedings involving The BISYS Group, Inc., since it is not a named party. Upon suspicion and belief, the case information is public record, however, and speaks for itself. 20. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding the former or current legal proceedings involving The BISYS Group, Inc., since it is not a named party. LISG further denies having any knowledge of any incurred expenses of Wevodau in that case. Upon suspicion and belief, the case information is public record, however, and speaks for itself. 21. Denied. LISG has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint regarding the former or current legal proceedings involving The BISYS Group, Inc., since it is not a named party. LISG further denies having any knowledge of any incurred expenses of Wevodau in that case. Upon suspicion and belief, the case information is public record, however, and speaks for itself. LISG was never a party to Case No. 05-5393 and can not therefore admit anything with regard to that proceeding. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 6 22. Denied. Wevodau has not fully complied with the terms of the indemnification agreement for which he now attempts to hold LISG liable. Further, LISG is not successor in interest to PGW. By way of further response, the remaining averments contained in paragraph 22 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 23. Admitted. COUNT I - BREACH OF CONTRACT 24. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 25. Denied. The averments are denied in that LISG is not successor in interest to PGW and is therefore responsible for nothing on Wevodau's instant complaint. By way of further response, the remaining averments contained in paragraph 25 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 26. Denied in part. Admitted in part. The averments are denied in that LISG owes nothing to Wevodau and is not successor in interest to PGW. The refusal to pay is admitted. By way of further response, the remaining averments 7 contained in paragraph 26 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 27. Denied. The averments are denied in that LISG owes nothing to Wevodau and is not successor in interest to PGW. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non- performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 28. Denied in part. Admitted in part. The averments are denied in that LISG owes nothing to Wevodau and is not a party to any other action in which Wevodau is Plaintiff. The refusal to pay is admitted. By way of further response, the remaining averments contained in paragraph 28 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of 8 duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 29. Denied in part. Admitted in part. The averments are denied in that LISG is not aware of the former legal representation of Wevodau: LISG did not exist at that time. LISG admits that Wevodau is currently represented by Barley Snyder LLC in the instant action against LISG. The refusal to pay is admitted. By way of further response, the remaining averments contained in paragraph 29 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 30. Denied in part. Admitted in part. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. LISG further denies having any knowledge or information on the veracity of the alleged incurred and to be incurred expenses of Wevodau. It is admitted that LISG is aware of the demands and has no intent to pay. 31. Denied. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. By way of further response, the remaining averments contained in paragraph 31 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, 9 consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 32. Denied. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. LISG further lacks the knowledge or information to form a belief as to the veracity of Wevodau's claimed expenses. By way of further response, the remaining averments contained in paragraph 32 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 33. Denied. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. By way of further response, the remaining averments contained in paragraph 33 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 34. Denied. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. LISG has insufficient knowledge or information on which to admit or deny the veracity of the statements made in the Complaint as to Wevodau's claimed 10 expenses. By way of further response, the remaining averments contained in paragraph 34 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 35. Denied. The averments are denied in that LISG has no obligation to Wevodau in this, or any other matter which may or may not still be pending. By way of further response, the remaining averments contained in paragraph 35 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non-performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 36. Admitted in part. Denied in part. The averments are admitted in part only inasmuch as LISG owes Wevodau nothing and any amounts in controversy are solely contained in Wevodau's pleadings and the court file. By way of further response, the remaining averments contained in paragraph 36 are 11 conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. COUNT II - FOR DECLARATORY JUDGMEN PURSUANT TO 42 PA. C.S.A. 7531, ET SEQ. 37. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 38. Denied. The averments are denied in that LISG has no reason to believe Wevodau has been harmed by any failure of LISG. LISG is not successor in interest to PGW and has no obligation to Wevodau under any agreement. LISG further is not a named party to any of the actions referenced in Wevodau's complaints and can therefore admit nothing in that regard. By way of further response, the remaining averments contained in paragraph 38 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. By way of further answer, Wevodau's contract claims are barred by the statute of limitations, non- performance of conditions precedent of the Agreement, failure of consideration, the doctrine of waiver, lack of privity, misjoinder of parties, consent, mitigation, no breach of duty, comparative fault, and the equitable doctrines of Estoppel, laches and unclean hands. 39. Denied. The controversy at issue is governed by a written contract, the validity of which is in dispute. By way of further response, the remaining averments contained in paragraph 39 are conclusions of law to which 12 no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. 40. Denied. The averments contained in paragraph 40 are conclusions of law to which no response is necessary. To the extent that a response to this averment is necessary, the averments are denied. WHEREFORE, Answering Defendant respectfully request this Honorable Court entered judgment in their favor and against Plaintiff, and order any further relief deemed appropriate by this Court. Dated: April 17, 2009 Respectfully s, BLUMBERG By Ronald H. Blu Attorneys for i LEISHER INS GROUP, INC. G j.MMRG [ I By. F 13 Thdrn s J M„ r, Esq. 1.0 #58853 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 GROUP, LLP Esq. SOLUTIONS P.C. VERIFICATION I hereby acknowledge that I have read the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: Y//,/of It 1 4.v."n C. eisher CERTIFICATE OF SERVICE I, hereby certify that on this date, I served the foregoing document, via U. S. Mail, postage prepaid, on the persons set forth below, namely: Sean Summers, Esquire Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (Counsel for Plaintiff) Date: April 20, 2009 O KATZMAN, P.C. 414onaldo Legaspi, Esquire I.D. # 200240 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG LAW GROUP, LLP Ronald H. Blumberg (Pro Hac Vice) CA Bar No. 130557 437 S. Highway 101, Ste. 217 Solana Beach, CA 92075 (858) 509-0600 Attorneys for Defendant, Leisher Insurance Solutions Group, Inc. 173816.1 2 RLE O r' F`? 20L13 Ai"R 20 PH 3: 8 :A I NJ , t C ti`?l ; ti STEVEN S. WEVODAU, Plaintiff VS. LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-3925 CIVIL IN RE: MOTION OF DEFENDANT, LEISHER INSURANCE SOLUTIONS GROUP INC., FOR SUMMARY JUDMENT BEFORE HESS OLER AND GUIDO, J.J. ORDER AND NOW, this day of April, 2009, following argument thereon, it appearing that there are disputed issues of material fact, the motion of the defendant, Leisher Insurance Solutions Group, Inc., for summary judgment is DENIED. BY THE COURT, Sean E. Summers, Esquire For the Plaintiff T omas Weber, Esquire nald H. Blumberg, Esquire For the Defendant :rlm OoF f-s m? t gfa4/0? I=tyl Kevin A,0 Hess, J. ht ?4 qy 10 f(?',?}1 t t STEVEN S. WEVODAU, Plaintiff VS. LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-3925 CIVIL IN RE: INTERIM ORDER ON ISSUE OF WHETHER CONDITIONS PRECEDENT WERE SATISFIED ORDER AND NOW, this o0 day of May, 2009, this matter having been trifurcated and after hearing without a jury, on the first issue, the court finds that conditions precedent were established with respect to the Indemnification Agreement of September 22, 2003, and, specifically, with regard to both Paragraph A. (the "Action" being the subsequent law suit brought by BISYS) and Paragraph B. (the then pending Maryland litigation) of Section Two of said Agreement. Therefore, on said issue we find in favor of the PLAINTIFF. Trial on the issue of Successor Liability is scheduled for Wednesday, July 29, 2009, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. We note that this is a date different from the one discussed at our most recent hearing and counsel are directed to contact the undersigned immediately if this time poses an extraordinary hardship. BY THE COURT, 1.-.444 ? Sean E. Summers, Esquire For the Plaintiff Tomas Weber, Esquire 1-40nald H. Blumberg, Esquire For the Defendant E,S i7 t I'l a` t LVCL . if Hess, J. 1 ? ? y i? ?Ci 'i? (\??i .? y1{ ?5 i1? ?L 4,i ??_,i__? STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: CIVIL NONJURY TRIAL ORDER AND NOW, this 2!'Y- day of June, 2009, trial on the issue of 'Successor Liability set for July 29, 2009, is continued to Thursday, August 27, 2009, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Sean E. Summers, Esquire For the Plaintiff Thomas Weber, Esquire Ronald H. Blumberg, Esquire For the Defendant Kevin Hess, J. .2- f. 0 f rim 1,- f:'/_&:,. ZOO] f 1 r f STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-3925 CIVIL TERM LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, May 14, 2009, in Courtroom Number 4. APPEARANCES: SEAN E. SUMMERS, Esquire For the Plaintiff THOMAS J. WEBER, Esquire RONALD H. BLUMBERG, Esquire (By videoconference) For the Defendant INDEX TO WITNESSES FOR THE PLAINTIFF DIRECT CROSS Donald B. Kaufman, Esq. 4 11 Steven Wevodau 23 31 Steven Leisher 80 85 0 REDIRECT RECROSS 61, 77 71, 79 89 2 FOR THE PLAINTIFF INDEX TO EXHIBITS Ex. No. 1 - Indemnification agreement Ex. No. 2 - complaint FOR THE DEFENDANT Ex. No. 1 - Plaintiff's Responses to Defendant's Requests for Admissions Ex. No. 2 - Affidavit of Steven Wevodau Ex. No. 3 - Stay & Tolling Agreement • MARKED ADMITTED 5 91 27 91 35 91 38 91 47 91 3 0 0 1 THE COURT: Good afternoon. 2 MR. WEBER: Good afternoon, Your Honor. 3 MR. SUMMERS: Good afternoon, Your Honor. 4 THE COURT: Unless counsel want to make any 5 opening statements of any kind, I am familiar with the 6 issue. I understand we are dealing with one of the several 7 issues in the case and dealing with it first because it may 8 be expeditious to do so. Go ahead. 9 MR. SUMMERS: I will call Attorney Don 10 Kaufman as my first witness. It is a little out of order, 11 Your Honor. I just want to get him in and out. 12 THE COURT: I understand. 13 Whereupon, DONALD B. KAUFMAN, Esquire, having 14 been duly sworn, testified as follows: 15 MR. SUMMERS: May I proceed, Your Honor? 16 MR. WEBER: Your Honor, before Mr. Summers 17 proceeds, I would just like to ask for a proffer of proof 18 regarding Mr. Kaufman's testimony. 19 THE COURT: Okay. 20 MR. SUMMERS: He is the attorney that drafted 21 the agreement itself. 22 THE COURT: Okay. Go ahead. 23 DIRECT EXAMINATION 24 BY MR. SUMMERS: 25 Q Could you state your name, sir„ 4 9 0 1 A Donald B. Kaufman, K-a-u-f-m-a-n. 2 Q And where are you employed? 3 A McNees, Wallace & Nurick, LLC.. 4 Q And where is that located? 5 A The principal office, which is where I work, 6 is 100 Pine S treet, Harrisburg, Pennsylvania. 7 Q And what is your position at McNees? 8 A I am a member. 9 Q And do you know Steve Wevodau, 10 A Yes. 11 Q At one point in time was he your client? 12 A Yes. 13 MR. SUMMERS: May I hand the witness an 14 exhibit, Your Honor? 15 THE COURT: Go ahead. 16 (Whereupon, Plaintiff's Exhibit No. 1 17 was marked for identification.) 18 MR. SUMMERS: This has been marked as Exhibit 19 1. 20 MR. WEBER: Is that Plaintiff's 1? 21 MR. SUMMERS: Yes. 22 BY MR. SUMMERS: 23 Q Sir, I have handed you -- 24 MR. WEBER: May I address them'? I am not 25 sure they are familiar or aware of how sensitive the 5 1 microphones are? 2 THE COURT: Yes. 3 MR. WEBER: Everyone in California, the 4 microphones are extremely sensitive, so every whisper, 5 tearing of paper, we can hear. So if you would act 6 accordingly, as though you were sitting here, in terms of 7 what noises you are producing, it would be beneficial for us 8 in presenting the matter here this afternoon. 9 MR. BLUMBERG: Understood. 10 BY MR. SUMMERS: 11 Q Sir, do you have Exhibit 1 in front of you? 12 A Yes. 13 Q Have you seen that document before? 14 A Yes. 15 Q Did you draft the document? 16 A I prepared -- I was the original preparer of 17 the agreement. There was I believe some back and forth with 18 the PGW's attorney regarding it. But I think it is fair to 19 describe me as the drafter or the originator. 20 Q At the time you represented Steven S. 21 Wevodau, which is identified in the first paragraph, 22 correct? 23 A Yes. 24 Q And the document, as you have '.mentioned, is 25 between Mr. Wevodau and Potomac Group West, correct? 6 0 1 A Yes. 2 Q Now, if you could, flip to page two.. Are you 3 there? 4 A Yes. 5 Q There is a section called Indemnity, and 6 there is an A and B. Are you with me? 7 A Yes. 8 Q A refers to an action, but at this point in 9 time I want to talk about B. Go ahead and read that to 10 yourself qui ck, and I will have a question for you. 11 A I have read it. 12 Q At the point in time that this; agreement was 13 drafted, was there litigation already going on, for example, 14 that refers to depositions already have taken place? 15 A Yes. There was litigation going on I believe 16 between BISY S and Potomac Group West, as to which Mr. 17 Wevodau -- h is deposition had been commenced but was not 18 completed. 19 Q Did you participate in his initial 20 deposition? 21 A Well, I think it is one deposition 22 technically. I did not participate in the first session of 23 his deposition. 24 Q Fair enough. It was over several days is 25 what you are saying? 7 ! • 1 A There had been a portion of the deposition 2 already completed. The deposition had been :suspended or 3 temporarily postponed. And that is when Mr. Wevodau and I 4 entered into an attorney/client relationship. 5 Q And the litigation referred to in paragraph 6 B, is that... 7 A It is the Maryland action between BISYS and 8 PGW. 9 MR. WEBER: I will just place an objection on 10 the record. There is no reference to what the litigation is 11 in B. If you are asking him what his understanding is, then 12 I place an objection, as the intent of the scrivener is not 13 relevant, but in turn the interpretation of the contract, 14 which -- 15 THE COURT: What are you saying, that the 16 evidence should come from Mr. Wevodau? 17 MR. WEBER: If parol evidence is going to be 18 introduced, it should be -- 19 THE COURT: Well, it says the word 20 litigation, right? So without somebody telling us what 21 litigation they meant, it would seem to me parol evidence 22 would be required to explain to us what that word means, 23 right? Or is there some other litigation referred to in the 24 document? 25 MR. SUMMERS: There is not. The point is 8 • 0 1 paragraph A refers to an action. And paragraph B refers to 2 litigation. 3 THE COURT: Litigation? 4 MR. SUMMERS: Right. 5 THE COURT: And he is saying that's what the 6 litigation was as the drafter of that instrument. 7 MR. SUMMERS: Yes. 8 THE COURT: Your objection is overruled. 9 MR. WEBER: Thank you, Your Honor. 10 BY MR. SUMMERS: 11 Q You referred to two things. I: think it is 12 the same thing. I just want to clarify for the court. You 13 referred to an action between Mr. Leisher and. BISYS. And 14 then you referred to a Maryland action -- or Potomac Group 15 West and BISYS. And then you referred to a Maryland action, 16 are they one and the same? 17 A As I understood it, yes. There was an action 18 pending in the State of Maryland I believe between BISYS and 19 Potomac Group West. That is the litigation to which I was 20 referring when answering your questions about Section Two, 21 Paragraph B. 22 Q Okay. Now, I understand you didn't 23 participate in the first session of the deposition, but did 24 you subsequently attend depositions with Mr. Wevodau? 25 A Yes. 9 • 0 1 Q And I am just going to read you the first 2 couple sentences. It says, The corporation shall pay on 3 behalf of Wevodau the amount of attorney's fees and expenses 4 he has incurred. Is that referring to the depositions that 5 you went with Mr. Wevodau? 6 A No. That's in the past perfect tense. It 7 refers to the fees and expenses he has incurred for his 8 representation in connection with his depositions and other 9 involvement in the litigation. What it refers to is the 10 fees that he was incurring with me from the moment that he 11 retained me in connection with his involvement in the 12 litigation. 13 Q All right. Fair enough. And then the 14 sentence goes on to talk about other involvement in the 15 litigation, negotiation, drafting and execution of this 16 agreement. This agreement means the actual Exhibit 1, 17 correct? I am in the same paragraph. 18 A Yes. It is defined in the very first 19 sentence of the agreement. 20 Q Was this document limited in time? 21 MR. WEBER: Objection. 22 THE COURT: The document would seem to me to 23 speak to itself in that matter. 24 MR. SUMMERS: And these questions only go to 25 the memo that I got overnight from them. 10 • • 1 THE COURT: In addition, I don't understand 2 the question. 3 MR. SUMMERS: Okay. 4 BY MR. SUMMERS : 5 Q Mr. Kaufman, when is this agreement dated, 6 the first page? 7 A September 22, 2003. 8 Q Did you say you sent this document to PGW's 9 counsel? 10 A I believe I did. 11 Q And was that a Mr. Abbott? 12 A Yes. Bruce Abbott I believe was his name. 13 MR. SUMMERS: No further questions, Your 14 Honor. 15 MR. WEBER: May I cross-examine? 16 THE COURT: Yes. 17 CROSS-EXAMINATION 18 BY MR. WEBER: 19 Q Good afternoon, Mr. Kaufman. My name is 20 Thomas Weber. 21 A Good afternoon. 22 Q It is my pleasure to represent LISG in this 23 litigation that we are here today. I have a couple 24 questions in fo llow-up to Mr. Summers' questions. But as an 25 attorney you un derstand how this goes I assume. Your 11 • 0 1 representation of Mr. Wevodau from my review of some of the 2 deposition transcripts that have been produced in what you 3 have referred to as the Maryland action commenced shortly 4 after what you identified as the interruption of Mr. 5 Wevodau's deposition, isn't that correct? 6 A It is correct that it was after. I don't 7 recall the dates sufficiently to tell you whether the adverb 8 shortly is accurate. 9 Q Okay. You were present during Mr. Wevodau's 10 two sessions of depositions, correct, that occurred in May 11 of 2004 in your office? 12 A Yes. 13 Q And do you recall Mr. Wevodau indicating that 14 his deposition commenced at the end of November of 2002, and 15 that his first meeting with you was December 2nd, 2002? 16 A Would you repeat that question or have it 17 read back? 18 Q Perhaps it was inartfully said. Let me 19 rephrase it. You were present during Mr. Wevodau's 20 deposition in the Maryland action that took palace in your 21 office on May 28, 2004, correct? 22 A I don't remember the exact day, but, yes, I 23 believe so. 24 Q Do you recall in that deposition that Mr. 25 Wevodau testified that the deposition began at the end of 12 • 0 1 November 2002, shortly before Thanksgiving, and your first 2 meeting with Mr. Wevodau was December 2nd, 2002? 3 A No. 4 Q Do you have any reason to doubt that it was 5 within a week of the commencement of the deposition that 6 your representation started? 7 A I am sorry. What was within a week? I am 8 confused. 9 Q Your representation of Mr. Wevodau occurred 10 within a week of the beginning of his deposition? 11 A I just don't recall. 12 Q Fair enough. Do you know approximately how 13 long you repre sented Mr. Wevodau prior to the September 22, 14 2003, agreemen t that has been marked as Plaintiff's Exhibit 15 1? 16 A No. 17 Q Can you give me an approximation, Mr. 18 Kaufman? 19 A None that would do you any good. I mean, I 20 can give you a vast approximation. It was certainly less 21 than several years, but I really don't know how long it was. 22 Q Was it less than a year? 23 A I don't recall. 24 Q Was it more than a month? 25 A I don't recall. I just don't recall. 13 0 0 1 Q Do you recall what your fees were to 2 representing Mr. Wevodau which this litigation is about? 3 MR. SUMMERS: Objection, Your Honor. We are 4 here to talk about condition precedent. 5 MR. WEBER: I will move on, Your Honor. 6 BY MR. WEBER: 7 Q You indicated that you drafted Plaintiff's 8 Exhibit 1, correct, or it would be appropriate to call you 9 the drafter? 10 A Much of the language originated with me. 11 There was back and forth about it. So I would say that it 12 is an agreement between the parties that was drafted as a 13 result of communications between counsel. 14 Q Anywhere in Plaintiff's Exhibit 1 does it 15 indicate that it was jointly drafted by Mr. Wevodau and PGW? 16 A I don't believe so. 17 Q And you indicated you believe, I believe was 18 your word, that there was back and forth between you and Mr. 19 Abbott. Do you know what substantive changes Mr. Abbott may 20 have made to the document you drafted? 21 A No. 22 Q Do you recall how many back and forths there 23 were between you and Mr. Abbott? 24 A No. 25 Q And as Mr. Summers pointed out in paragraph B 14 • 0 1 there is at least an attempt to have PGW pay for your 2 efforts in drafting the agreement, correct? 3 A Not an attempt. It is what it says. 4 Q For negotiating and drafting? 5 A It says what it says, that the corporation 6 shall pay on behalf of Wevodau. And then it goes on to say 7 the amount of attorney's fees. And it goes on to refer to 8 the negotiation, drafting and execution of this agreement. 9 That's what it says. 10 Q Going back to Mr. Wevodau's deposition of May 11 28, 2004, in your office. Do you recall him testifying that 12 shortly after the suspension of that deposition all 13 communication between him and Mr. Leisher became 14 nonexistent, and that it was conducted between you and 15 counsel for PGW? 16 A No. 17 Q Do you have a reason to doubt that that is 18 what occurred? Or is it just again that you cannot recall 19 what happened so many years ago? 20 A I just don't recall. 21 Q In drafting the agreement in 2003 were you 22 aware that Mr. Wevodau had already provided certain 23 information to PGW? 24 A I am concerned that that is privileged -- I 25 am here as a witness. 15 1 Q Right. I am not sure you are allowed to 2 raise an objection. But on the other hand as an attorney I 3 have a duty to protect the privilege. 4 MR. SUMMERS: Your Honor, it is hard for me 5 to object when I don't know what the answer is. 6 THE COURT: Is it calling for communications 7 between the attorney/client? I wasn't sure that it was. 8 THE WITNESS: If you would repeat the 9 question. 10 BY MR. WEBER: 11 Q I am wondering whether you are aware prior to 12 December 22, 2003, Mr. Wevodau had already provided certain 13 information to PGW regarding PGW's interaction with BISYS? 14 A Well, the simple answer to your question is 15 no, I don't remember. The reason that I raised the 16 attorney/client privilege question was that I would infer 17 that if I learned that it was the result of an 18 attorney/client communication, but I don't remember one way 19 or the other. 20 Q Mr. Kaufman, you identified that the 21 litigation -- the term you used in B referred to the 22 Maryland action, is that correct? 23 A Yes. 24 Q Did you define that in the agreement you 25 drafted? 16 • • 1 A No. 2 Q On the first line of page two, if I could 3 draw your attention to that, there is the word information 4 capitalized. 5 A Yes. 6 Q Can you tell me why you capitalized 7 information? 8 A Because it is a defined term. 9 Q Can you tell me where it is defined? 10 A In the recitals, paragraph C on page one. 11 Q In the recitals where you define information, 12 and again action is defined, correct, in subparagraph B of 13 the definitions? 14 A Yes. 15 Q Again, there is no definition for litigation 16 anywhere in t he agreement? 17 A Yes. 18 Q There is no definition of litigation, 19 correct? 20 A Yes. 21 Q I just wanted to make sure my question was 22 answered. In reference to the attorney's fees incurred, you 23 used the term under direct examination that that was the 24 past perfect tense. 25 A I think it is. 17 1 Q I will defer to your intellect. In the 2 recitals you identify that Mr. Wevodau has certain 3 information, correct, in paragraph C of the recitals? 4 A Yes. 5 Q Has means that it is still in his possession. 6 He hasn't produced it to PGW, correct? 7 A No. 8 Q I am sorry, no, that isn't correct? 9 A That's not what the words mean to me. 10 Q Well, isn't has still in his possession? 11 A Yes. But it doesn't mean that: he hasn't 12 disclosed it. It means that he has it. It gays what it 13 says. 14 Q Anywhere in the recitals or the agreement as 15 the drafter do you acknowledge that Mr. Wevod.au has already 16 made disclosures to PGW? 17 A With the caveat about the word. drafter, which 18 I have already answered, no. 19 Q In the recitals D and E, D, let's take that 20 one first. It is intended to serve as protection for 21 Wevodau from any claim against him by anyone, including but 22 not limited to BISYS, arising from his providing or 23 disclosing information, correct? 24 A Yes. 25 Q You did not include any language to the 18 1 effect of having already provided or disclosed, correct? 2 A The words you just used are not in there. 3 Q Nor is there any similar words that would 4 seek protection for information already provided, isn't that 5 correct? 6 A No. 7 Q Why not? 8 A Because it is not limited in time to past, 9 present or future. The language says arising from his 10 providing or disclosing information. 11 Q Which is future tense, is it not? 12 A No. 13 Q We will have the judge, again, as the finder 14 of fact make a determination as to the meaning of the 15 agreement. This agreement does not request or require any 16 personal guarantee from Steven Leisher, does it? 17 A No. 18 Q Do you know whether Mr. Wevoda-u provided any 19 information, as you define that term in the recitals, to PGW 20 after September 22nd, 2003? 21 MR. SUMMERS: I would object to the extent 22 that it calls for attorney/client disclosure. 23 THE COURT: Well, we don't know that. You 24 might want to be clear as to the source of the information. 25 MR. WEBER: Well, I think if it: was disclosed 19 1 to PGW, any privilege between him and his client would have 2 been waived at that time. 3 MR. SUMMERS: Except for if he learned that 4 from -- it is different if PGW says Mr. Wevodau told me the 5 following. But if Mr. Wevodau -- 6 MR. WEBER: I am not asking what he told -- 7 THE COURT: That's my point. Which is it? 8 BY MR. WEBER: 9 Q I am just asking are you aware of whether Mr. 10 Wevodau, and without getting into the substance of what 11 might have been exchanged, are you aware of whether Mr. 12 Wevodau provided PGW any information at all that relates to 13 BISYS after September 22nd, 2003? 14 A I don't recall exact dates. I am aware that 15 Mr. Wevodau provided an affidavit to PGW. And I am aware 16 that Mr. Wevodau testified in the deposition sessions, which 17 you earlier referred to that I was present at. The 18 substance of what he provided I do not recall. 19 Q The depositions that you referenced, and you 20 had indicated you were already in attendance on behalf of 21 Mr. Wevodau at those sessions, correct, the ones that 22 occurred in May of 2004, not the first one that occurred 23 obviously prior to your representation? 24 A The one at my office? 25 Q Yes. Which occurred over two clays, correct? 20 • 0 1 A I don't remember. 2 Q Do you remember meeting with Mr. Wevodau and 3 counsel for BISYS in preparation of those depositions? 4 A I remember meeting with Mr. Wevodau and 5 counsel for BISYS prior to those depositions. 6 Q Did you meet with anyone on behalf of PGW and 7 Mr. Wevodau prior to those depositions, do you recall? 8 A Not that I recall. 9 Q But you have a specific recollection of 10 meeting with Mr. Wevodau and personnel on behalf of BISYS 11 prior to those depositions? 12 A Yes. When you say specific recollection, I 13 recall that it happened, but I couldn't tell you the names 14 of the people who were there for BISYS or the! substance of 15 what was discussed, but I do remember having the meeting. 16 Q And if Mr. Wevodau testified in his 17 deposition on May 27 that it was BISYS's counsel, Mr. Hume, 18 as well as Mr. Kendall, do you have any reason to doubt Mr. 19 Wevodau's testimony in that regard? 20 MR. SUMMERS: Objection, Your Honor. Mr. 21 Wevodau is going to testify. If he testifies to something 22 different, he can certainly impeach him. But him being 23 questioned about whether he doubts someone else's 24 testimony... 25 THE COURT: Fortunately there is no jury 21 LI E 1 sitting here. 2 THE WITNESS: No. I have no :reason to doubt 3 that. 4 BY MR. WEBER: 5 Q And did you bill Mr. Wevodau for the time you 6 spent in meeting with him and personnel on behalf of BISYS 7 in anticipation of Mr. Wevodau's deposition? 8 A I don't recall. 9 Q Is it your custom -- let me back up. Were 10 you charging Mr. Wevodau on an hourly basis for your time 11 spent on his behalf? 12 A Yes. 13 Q And is it your custom to record the amount of 14 time you spend on behalf of clients to generate a bill and 15 send it to those clients to be paid? 16 A Yes. 17 Q And you don't recall whether you billed him 18 in this case, but can you recall any reason why you would 19 not have billed Mr. Wevodau for your time spent counseling 20 him while you met with counsel for BISYS? 21 A No. 22 MR. WEBER: I have nothing further. 23 THE COURT: Any redirect? 24 MR. SUMMERS: No further questions, Your 25 Honor. Can Mr. Kaufman be excused? 22 1 THE COURT: Unless there is objection. 2 MR. WEBER: No objection, Your Honor. 3 THE COURT: Thank you, Mr. Kaufman. 4 MR. SUMMERS: Call Mr. Wevodau. 5 Whereupon, STEVEN WEVODAU, having been 6 duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. SUMMERS: 9 Q Can you state your name, sir. 10 A Steven S. Wevodau. 11 Q And you are the plaintiff in this matter? 12 A Yes. 13 Q At one point in time were you familiar with 14 Potomac Group West, Incorporated? 15 A Yes. 16 Q And was there a principal person at PGW? 17 A Yes. 18 Q Who was that? 19 A Steven Leisher. 20 Q And you have met Mr. Leisher before? 21 A Yes. 22 MR. SUMMER: May I approach, Your Honor? 23 THE COURT: Go ahead. 24 BY MR. SUMMERS: 25 Q I am going to put Exhibit 1 in front of you. 23 • 0 1 I will start off with asking you have you seen that document 2 before? 3 A Yes. 4 Q Is there a signature on the back that is 5 yours? 6 A Yes. 7 Q And I want to put this agreement in context. 8 I know you heard Attorney Kaufman talk about a few things. 9 Roughly the time this was executed where were you employed, 10 or what business were you in? 11 A I was the managing partner with an investment 12 banking firm by the name of WFG Capital Advisors. 13 Q In September of 2003? 14 A Correct. 15 Q Now, if you look at the recitals in the 16 agreement, it refers to information -- now, I don't think 17 the court needs a long explanation, but just can you 18 summarize what information that you had? Was it accounting 19 information? That's what I am getting at. 20 A Yes. 21 Q Can you in a couple sentences tell us what it 22 was? 23 A As it relates to my prior employment with 24 BISYS, who was a service provider for Potomac Group West, 25 and by virtue of my role with the organization I had 24 • • 1 information and insights as to the payment practices of the 2 organization. 3 Q And do you relay that information to Mr. 4 Leisher? 5 A Yes. 6 Q And ultimately did you fill out an affidavit 7 and sign an affidavit? 8 A Yes. 9 Q Mr. Kaufman testified about several 10 depositions. Did you participate in a deposition? 11 A Yes. 12 Q Did it last more than one day? 13 A Yes. 14 Q Was Mr. Kaufman with you on each day? 15 A No. 16 Q All right. Did you have counsel with you 17 initially? 18 A No. 19 Q Why did you obtain counsel? 20 A I initially participated as an individual 21 without counsel. And by virtue of the direction of the 22 interaction between the counsel and some of the overtures 23 that the BISYS counsel was making, I felt compelled to at 24 least get legal counsel for protection. 25 Q And is that when you sought out the advice of 25 • 0 1 Mr. Kaufman? 2 A Yes. 3 Q And then were you concerned that you might 4 get sued at that point in time? 5 A Yes. 6 Q Because of the information that you might 7 disclose? 8 A Yes. 9 Q All right. On your behalf was the 10 indemnification agreement marked as Exhibit 1. drafted? 11 A Excuse me? 12 Q I understand you didn't draft Exhibit 1, did 13 you? 14 A I did not. 15 Q So someone on your behalf drafted it, 16 correct? 17 A Correct. 18 Q And you heard Mr. Kaufman say that he at 19 least initiat ed it, correct? 20 A Correct. 21 MR. SUMMER: May I approach, Your Honor? 22 THE COURT: Certainly. 23 BY MR. SUMMER S: 24 Q The defendant's pretrial memo, paragraph 25 three. Under witness list it says Bruce Abbott (the 26 • • 1 attorney that drafted the agreement). Do you have any 2 information that leads you to believe that Mr. Abbott 3 drafted this agreement tha t's in front of you? 4 A He did not. 5 Q After you s igned the agreement marked as 6 Exhibit 1, were you in fact sued? 7 A Yes. 8 Q And did you in fact participate in the 9 depositions that Mr. Weber mentioned? 10 A Yes. 11 MR. SUMMER: May I approach, Your Honor? 12 THE COURT: Sure. 13 MR. SUMMERS: I hand the witness Exhibit 2. 14 (Whereupon, Plaintiff's Exhibit No. 2. 15 was marked for identification.) 16 BY MR. SUMMERS: 17 Q Have you see n that document before? 18 A Exhibit 2 is a complaint which was filed in 19 New York. 20 Q Mr. Wevodau, can you read the caption, 21 plaintiff versus defendant, who does it say? 22 A BISYS Group, Inc., plaintiff, against Steven 23 Wevodau, defendant. 24 Q And you are in fact the Steven Wevodau that 25 was sued? 27 1 A Correct. 2 Q And it is a little bit hard to read the date 3 stamp at the top. But if you look at the last page it is 4 also dated. Can you tell us what date is on that document? 5 A October 15th, 2003. 6 Q And what date is on the indemnification 7 agreement? 8 A September 22nd, 2003. 9 Q Did you in fact incur legal fees for the 10 depositions we talked about? 11 A Yes. 12 Q Did you in fact incur fees related to the 13 complaint that's in front of you, Exhibit 2? 14 A Yes. 15 Q Now, look at Exhibit 1, please, sir. And if 16 you refer to page two, there is a section two. Are you with 17 me? 18 A Yes. 19 Q There is an A and B. Section B refers to 20 litigation. Do you see that? 21 A Yes. 22 Q At the time this document was executed, were 23 you participa ting in any litigation other than the Maryland 24 action that M r. Kaufman talked about? 25 A No. 28 i • 1 Q And in that action you were just 2 participating as a witness, correct? 3 A Correct. 4 Q So with regard to paragraph B in Section two, 5 the only litigation you are aware of is actually the 6 Maryland action, correct? 7 A Correct. 8 Q Now, you discussed, just generally speaking, 9 you discussed the information that you had, correct? 10 A Correct. 11 Q Was that same information disclosed in the 12 affidavit, generally speaking? 13 A Yes. 14 Q What about the depositions, were you asked 15 questions about the same information? 16 A Yes. 17 Q Is it fair to say that your only role in the 18 Maryland action was a disclosure of this information, 19 correct? 20 A Correct. 21 Q Like you weren't an eyewitness to anything or 22 anything like that? 23 A No. 24 Q Were the depositions themselves 25 confrontational between the parties and counsel? 29 9 0 1 MR. WEBER: Objection. Irrelevant. 2 THE COURT: Overruled. Go ahead. 3 BY MR. SUMMERS: 4 Q Were they? 5 A Yes. 6 Q And is that one of the reasons you sought out 7 this indemnification agreement? 8 A Yes. 9 Q And any point in time were there any threats 10 made in the depositions themselves? 11 A There was veiled threats by BISYS's counsel 12 that based on the disclosure of information that they 13 reminded me and encouraged me that I do have restrictive 14 covenants. 15 Q So one more reason to lead you to believe 16 that you might be named as a defendant in a lawsuit? 17 A Correct. 18 Q The complaint that I handed you, that was 19 subsequently -- I understand you might not understand the 20 legal terminology, that was subsequently moved to the Middle 21 District of Pennsylvania, correct? 22 A Correct. 23 Q And that is stayed currently, correct? 24 A Correct. 25 MR. SUMMERS: That's all the questions I 30 1 have, Your Honor. 2 MR. WEBER: May I cross, Your Honor? 3 THE COURT: Of course. Go ahead. 4 CROSS-EXAMINATION 5 BY MR. WEBER: 6 Q Mr. Wevodau, again my name is Tom Weber. We 7 have had the opportunity to meet briefly before today's 8 proceedings. Just a point of clarification. Mr. Summers 9 had asked in those depositions you were there to disclose 10 the information you had. You were not an eyewitness to 11 anything. And I just want to examine that a little bit. 12 You were deposed on three separate days, correct? 13 A Correct. 14 Q I believe your testimony on the last day 15 indicated it ended rather abruptly, when you realized you 16 didn't have counsel and you might be at some risk, correct? 17 A Correct. 18 Q The other two days were rather lengthy in 19 duration and much more substantive, correct? 20 A Correct. 21 Q When Mr. Summers said you weren't an 22 eyewitness to anything, you were asked questions as a result 23 of your employment with BISYS first as an employee and then 24 your activity as an independent contractor, correct? 25 A Correct. 31 1 Q So you were a fact witness in addition to 2 just releasing whatever information might have been 3 identified in this indemnification agreement, correct? 4 A I am not sure what a fact witness... 5 Q Well, rather than serving as an expert to 6 opine on the impact certain information may have in this 7 case on commissions that may or may not be owed, you 8 actually had meetings with BISYS's individuals, and you were 9 questioned about those meetings, correct? 10 A Correct. 11 Q You were in charge of -- I believe you 12 indicated you actually went out to PGW in 2001, August, 13 September, is that correct? 14 A I don't remember the specific date, but I was 15 there. 16 Q While you were employed with BISYS, and the 17 purpose of your visit was to, if I remember correctly, try 18 and reconcile some differences that were occurring with 19 commissions as well as do an evaluation for a potential 20 acquisition of PGW by BISYS, correct? 21 A Correct. 22 Q And you were questioned about those 23 activities as well, correct? 24 A Correct. 25 Q So it wasn't just two days of testimony about 32 0 0 1 what information you may or may not have given to PGW, but 2 depositions about your activities as a BISYS employee and 3 independent contractor, correct? 4 A Correct. 5 Q And removing the first day of deposition, 6 which you indicated ended rather abruptly, the other two 7 depositions, did you assist in the preparation for those 8 depositions with anyone on behalf of PGW? Did you meet with 9 counsel for PGW in anticipation of those depositions? 10 A No. 11 Q Did you meet with counsel on behalf of BISYS 12 in anticipation of those depositions? 13 A Yes. 14 Q And you had counsel present with you, 15 correct? 16 A Yes. 17 Q And did your counsel charge you time for 18 while you met with the BISYS's attorneys? 19 A I don't recall. 20 Q But one of the elements of damage that you 21 are seeking in this case -- 22 MR. SUMMERS: Objection, Your Honor. We are 23 getting pretty far astray from the condition precedent -- 24 MR. WEBER: Well, Mr. Summers asked him 25 questions as to whether it occurred -- 33 0 0 1 THE COURT: You went into the fees. But 2 keeping in mind that that's not the issue that's going to be 3 resolved this afternoon, but nonetheless go ahead. 4 BY MR. WEBER: 5 Q But you were attempting to seek recovery of 6 fees incurred by you as part of your participation in the 7 Maryland acti on, correct? 8 A Correct. 9 Q And part of that participation. was you 10 meeting with your counsel and counsel on behalf of BISYS to 11 prepare for t he depositions, correct? 12 A I am not absolutely sure of all the billing 13 transcripts a nd specifics. 14 Q But you did meet with counsel for BISYS in 15 anticipation and preparation of your deposition testimony? 16 A I was advised to, yes. 17 Q Advised by your counsel? 18 A Correct. 19 Q In reference to Plaintiff's Exhibit 2, do you 20 recall being served with requests for admissions in this 21 matter by counsel for Leisher Insurance Solutions Group, 22 Inc.? 23 A Can you ask that question again? 24 MR. WEBER: It might be easier if I can just 25 approach. 34 • 0 1 THE COURT: Go ahead. 2 MR. WEBER: Can we have this marked as 3 Defendant's Exhibit No. 1? 4 (Whereupon, Defendant's Exhibit No. 1 5 was marked for identification.) 6 BY MR. WEBER: 7 Q I hand you what's been marked as Defendant's 8 Exhibit No. 1, which is a seven page document, and ask if 9 you could turn to the second to the last page. Is that your 10 signature on the verification? 11 A It appears to be, yes. 12 Q And the last page is a certificate of service 13 signed by Sean Summers, who is your counsel now, correct? 14 A Correct. 15 Q And I am not sure why -- it is titled 16 Plaintiff's responses to Defendant's requests for 17 admissions, and page five has a signature pacfe for Sean, but 18 he didn't sign that. Do you have a recollection meeting 19 with Mr. Summers to go over responses for these requests for 20 admissions? 21 A We had various conversations throughout the 22 course of this process, telephonically and through email 23 exchange. 24 Q I would like to turn your attention to 25 request for admission number four. And the requested 35 • 1 admission, correct me if I read this incorrectly, You were 2 not sued in the October 15th, 2003, complaint by BISYS, 3 Docket No. 1 CV 04-0964, for providing information about 4 BISYS to Potomac Group West, Inc. Did I read that 5 accurately? 6 A Yes. 7 Q And your answer to that request for admission 8 was Denied. After reasonable investigation, defendant was 9 without sufficient knowledge to admit or deny this request, 10 inasmuch as the case was dismissed before discovery 11 proceeding. Did I read that accurately? 12 A Yes. 13 Q And the date of Mr. Summers' certificate of 14 service to us is March 11, 2009, approximately two months 15 ago, is that accurate? 16 A Yes. 17 Q So two months ago you didn't have sufficient 18 knowledge or information to form a belief as to whether the 19 suit that Mr. Summers identified as Plaintiff's Exhibit 2 20 was as a result of you giving information to Potomac Group 21 West, isn't that correct? 22 A That's what it says. 23 Q Thank you. Mr. Summers had asked you 24 generally to identify the type of information you had at 25 your disposal, and you said accounting information, correct? 36 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q You did not have records of BISYS in your possession after you left the employment of BISYS, did you? A No. Q You had your experience as a BISYS employee and your experience in the insurance industry, correct? A Correct. Q And your recollection of what may or may not have gone on, correct? A Correct. Q You had indicated you are not sure of the exact time frame, but we can go back to your deposition, August or September of 2001, you went out and visited PGW for two purposes. One to try an attempt a reconciliation of commission disputes. And, two, to doing an evaluation of a potential acquisition of PGW by BISYS, is that correct? A Correct. Q And after that meeting you maintained some contact with individuals from PGW over a course of time, correct? A Q BISYS, correct? A Q Correct. And at some point you left the employment of Correct. Did you then start performing some consulting 37 1 services for PGW? 2 A Yes. 3 Q And you were paid for those services, 4 correct? 5 A Correct. 6 Q And you were paid I believe $150.00 per hour? 7 A I don't recall. 8 Q And all your invoices submitted to PGW were 9 paid according to your deposition testimony on May 28, 2004, 10 correct? 11 A Yes. If it says that. 12 Q You haven't brought a claim against PGW on 13 behalf of any unpaid consulting services, correct? 14 A Correct. 15 MR. WEBER: May I approach? 16 THE COURT: Certainly. 17 (Whereupon, Defendant's Exhibit No. 2 18 was marked for identification.) 19 BY MR. WEBER: 20 Q I would like to hand you a document that we 21 have had mark ed as Defendant's Exhibit No. 2, which is an 22 affidavit of Steven Wevodau. I am sure you have seen that 23 throughout th is litigation, but I will afford you an 24 opportunity t o review it and reacquaint yourself with the 25 substance of that document. And please let me know when you 38 • 0 1 are satisfied that you have had sufficient time to review 2 it. 3 A Okay. 4 Q Attached to that affidavit is an Exhibit A, 5 is that correct? 6 A Yes. 7 Q And I would like to turn your attention to 8 Exhibit A. You prepared Exhibit A, did you not, in the 9 summer of 2002, approximately fourteen months prior to the 10 execution of your affidavit? 11 A Yes. 12 Q And you prepared that on behalf of PGW, 13 correct? 14 A Correct. 15 Q And you were paid for preparing that, 16 correct? 17 A Correct. 18 Q And you did not request or demand any 19 indemnification agreement at the time you prepared that 20 document, correct? 21 A No. 22 Q And when you prepared this, if: I can recall 23 your testimony accurately, this was just an estimate of what 24 commissions might be due for all BISYS work performed in 25 Texas and California, is that correct? 39 0 1 A It related to an outstanding difference of 2 opinion between the two organizations as to revenue sharing 3 on business from producers from those two states. 4 Q And it was all of BISYS's business, not just 5 PGW, correct, the estimate prepared by you? 6 A I recall that that was the contention, was 7 entitlement to all of BISYS's business pursuant to an 8 agreement that existed between Potomac Group East and 9 Potomac Group West. 10 Q And when you prepared this, you did not look 11 at any financial records, actual financial records, of 12 BISYS, correct? 13 A No. 14 Q You went on your recollection? 15 A Correct. 16 Q You didn't expect to find any actual numbers 17 that were placed here that would correspond with BISYS's 18 numbers, correct? 19 A Correct. 20 Q And, in fact, when asked in your deposition 21 on May 28th -- let me read the question. And, in fact, if 22 we were to look at the financial records of BISYS, you 23 wouldn't expect to find any of the actual numbers that you 24 placed here to appear in the financial records, correct? 25 And your answer was, There would be no correlation to 40 0 0 1 anything related to BISYS's financial records within this 2 exhibit. Is that accurate? 3 A If that's what I stated, that's correct. 4 MR. SUMMERS: Your Honor, the objection is to 5 relevance. It is a bench trial. I have been letting this 6 go for a while, but we are not focused on the condition 7 precedent. 8 THE COURT: Well, it is interesting 9 background to be sure. But I am not sure how it relates to 10 the question of the condition precedent. 11 MR. WEBER: Well, it dovetails to -- one of 12 the conditions precedent is that he gave actual information 13 as opposed to guesses or estimates. This is nothing but -- 14 THE COURT: That's your argument. 15 MR. WEBER: And I need to get the evidence of 16 record to make that argument substantive. 17 THE COURT: Now we know the answer to your 18 question. Go ahead. 19 BY MR. WEBER: 20 Q So this Exhibit A, which you prepared 21 approximately fourteen months before your affidavit, bore no 22 correlation to actual BISYS's numbers, correct? 23 A Correct. 24 Q And you did not request an indemnification 25 agreement when you produced this to PGW and they paid you 41 1 for it, correct? 2 A Correct. 3 Q If I could turn your attention to Plaintiff's 4 Exhibit 1, which is the indemnification agreement. Your 5 counsel at the time had testified that this agreement was 6 effective as of September 22, 2003. By that time you had 7 already provided to PGW the Exhibit A that we just 8 discussed, which was attached to your affidav=it, correct? 9 A Correct. 10 Q And I believe in your May 28, 2004, 11 deposition you had testified that following the first 12 session of your deposition in the fall of 2002, all direct 13 communication between you and Steve Leisher or Bruce Abbott 14 on behalf of PGW became nonexistent, is that correct? 15 A That was a requirement. That was a court 16 order. 17 Q So you did not talk to them at all? 18 A Correct. 19 Q And you didn't provide them with any 20 information related to BISYS since you were under a court 21 order not to communicate with them, correct? 22 A Correct. 23 Q And despite that court order, we find 24 ourselves as of September 22, 2003, entering into an 25 indemnification agreement with PGW, correct? 42 s • 1 A Let me rephrase. The prohibition from any 2 communication was as a direct result of the Middle District 3 of Pennsylvania action that BISYS brought against me. So 4 there was no communication subsequent to the initiation of 5 the lawsuit that BISYS brought against me. That was the 6 court order. 7 Q Okay. So as of October 15th -- I am sorry. 8 You have confused me. Because the BISYS litigation against 9 you is in October of 2003, correct? 10 A Correct. 11 Q The first session of your deposition in the 12 Maryland action took place in November of 2002, correct? 13 A Correct. 14 Q And I believe on May 28, 2004, you had 15 testified after that deposition. All communication with 16 Steve Leisher, Bruce Abbott or anyone on behalf of PGW 17 became nonexistent, is that accurate? 18 A After which date? 19 Q After November of 2002. 20 A No. That is not correct. 21 Q Who were you communicating with after 22 November of 2002? 23 A Bruce Abbott. 24 MR. WEBER: May I approach? 25 THE COURT: Certainly. 43 • • 1 BY MR. WEBER: 2 Q I would like to show you a portion of a 3 deposition transcript from May 28, 2004, and :read you a 4 question. Now, after your deposition, what was the next 5 contact you had with anyone from Potomac Group. There was 6 an objection interposed, but then you answered. I need to 7 -- I need to explain the deposition was ended abruptly, 8 because of my lack of counsel. And I immediately retained 9 counsel after that deposition. Any subsequent direct 10 communication I had with Bruce or Steve to my knowledge was 11 nonexistent. Is that your testimony? 12 A That's correct. 13 Q So after that deposition in 2002, November, 14 you no longer had any direct communication with Steve or 15 Bruce? 16 A If that's the testimony, then that's correct. 17 Q Now, your indemnification agreement is dated 18 September 22nd, 2003, correct? 19 A Correct. 20 Q Did you provide Mr. Leisher, Mr. Abbott or 21 anyone working on behalf of Potomac Group West any 22 information, as that term is defined in the indemnification 23 agreement, September 22nd, 2003? 24 A No. 25 Q And if you look at that indemnification 44 0 0 1 agreement, in page two Mr. Kaufman was careful enough to 2 identify that you have already incurred some legal expenses 3 in subparagraph B of Section two on page two, correct? 4 A Correct. 5 Q And his testimony that he was seeking to have 6 you obtain payment for that. But nowhere in this agreement 7 is it memorialized that you had already provided information 8 to PGW for which you were paid as a consultant:, and that you 9 are seeking indemnification protection for that, is that 10 correct? 11 MR. SUMMERS: Objection, Your Honor. The 12 agreement speaks for itself. It says whatever it says. 13 THE COURT: Well, it does, and we will 14 certainly override any -- to the degree that -- 15 MR. SUMMERS: Well, short of him reading the 16 whole thing, it says what it says. And I am sure that you 17 will read it. 18 THE COURT: Well, in which regard the 19 question is harmless. Go ahead. 20 BY MR. WEBER: 21 Q Let me move on. The Wevodau affidavit, which 22 has been marked as Defendant's 2, that is dated -- your 23 signature on that is dated -- or the notary date on that is 24 September 8, 2003, correct? The affidavit, Defendant's 25 Exhibit No. 1. Your signature appears on the second page, 45 0 i 1 and on the third page there is a notary, correct? 2 A Correct. 3 Q And that notary indicates that you appear on 4 the 8th day of September 2003, correct? 5 A Correct. 6 Q So that also predates the indemnification 7 agreement, correct? 8 A Correct. 9 Q And just so we are clear, after you signed 10 the indemnification agreement, you did not give any 11 additional information to anyone on behalf of PGW? 12 A Correct. 13 Q And when preparing for the second two days of 14 your deposition, you didn't meet with anyone on behalf of 15 PGW to assist them in the preparation? 16 A I was prohibited. 17 Q You did not do it? 18 A I did not. 19 Q You were not prohibited from meeting with 20 BISYS's counsel though, correct? 21 A Correct. 22 Q The BISYS litigation that you identified that 23 occurred or was filed on October 15, and two months ago you 24 weren't sure what the basis was, that's subject to a stay 25 and tolling and agreement, is that correct? 46 • 1 A Yes. 2 Q And that stay and tolling agreement the 3 litigation could be reactivated following the occurrence of 4 two events, correct? 5 A I am not sure. 6 Q Let me -- 7 MR. SUMMERS: It is another document, Your 8 Honor, that's going to speak for itself. I don't know that 9 he is going to be able to interpret a legal document. 10 MR. WEBER: Let me just have this marked as 11 Defendant's Exhibit 3. 12 (Whereupon, Defendant's Exhibit No. 3 13 was marked for identification.) 14 BY MR. WEBER: 15 Q And to move things along, I am not going to 16 ask you a lot of questions. But does this appear to be the 17 stay and tolling agreement entered into between you and 18 BISYS in relation to the litigation that was initiated 19 October 15th, 2003, in New York and ultimately removed to 20 the Middle District of Pennsylvania? 21 A It appears to be. 22 Q And on the last page is that your signature? 23 A Yes. 24 Q Paragraph three identifies two termination 25 dates, is that correct? 47 • 0 1 A Correct. 2 Q One being within thirty days of the 3 resolution of the Maryland action. Do you know what the 4 status of the Maryland action is at this point? 5 A I do not. 6 Q And the other was a 120 day written request 7 by either party, is that correct? 8 A Correct. 9 Q To the best of your knowledge has either side 10 taken any action to reinstate the New York -- the complaint 11 filed against you in New York, which was removed to the 12 Middle District? 13 A No. 14 Q That litigation is still dormant, is that 15 correct? 16 A Correct. 17 Q Turning your attention to the affidavit that 18 you provided, which is in fact referenced in the complaint 19 filed by BISYS in New York on October 15th. Do you know how 20 BISYS came into possession of this affidavit approximately a 21 month after you executed it? 22 A I believe it was executed and submitted as 23 part of the Maryland action. 24 Q And if I could turn your attention to the 25 affidavit, paragraph one. The document attached hereto is 48 • 0 1 Exhibit A is a copy of a document I created. Again, you 2 created that about fourteen months before, correct? 3 A Correct. 4 Q And this was a pro forma, which was an 5 estimate based upon my recollection of production generated 6 while I was employed at BISYS, correct? 7 A Correct. 8 Q You didn't use any actual BISYS information 9 to prepare Exhibit 1, correct? 10 A No. 11 Q You didn't have any confidential information 12 at your disposal to prepare Exhibit 1, correct? 13 A No. 14 Q Paragraph 2 talks about an agreement between 15 Potomac Group West and BISYS as well as to Potomac Group 16 East, correct? 17 A Correct. 18 Q That agreement or the existence of it would 19 have already been known to Potomac Group West, correct? 20 A Correct. 21 Q They are a party to the agreement, correct? 22 A Correct. 23 Q Paragraph three, in order to calculate the 24 amount owed by BISYS to PGW under the agreement, it was 25 necessary to review the insurance carrier commission 49 0 • 1 statements. That's nothing confidential. That's just a 2 statement of fact of how you determine commissions, correct? 3 A Correct. 4 Q Paragraph three doesn't disclose any 5 confidential information possessed by BISYS, does it? I 6 will let you offer an opinion. 7 A In my opinion, the carrier statements are 8 between the insurance company and the service provider, 9 which would be BISYS, which is their property, so it is not 10 public information. 11 Q But you don't disclose what that information 12 is, you just make a statement of fact, that in order to 13 calculate commissions, you have to look at the statements? 14 A Correct. 15 Q You don't disclose any propriety information 16 from BISYS what those statements say, is that correct? 17 A Correct. 18 Q Paragraph four, again, is just a statement of 19 fact. Those carrier commission statements were in the 20 position of BISYS while I was employed there. 21 A Correct. 22 Q You don't reveal what the statements say? 23 A Correct. 24 Q After BISYS purchased PGE, PGW asked BISYS 25 for the insurance carrier commission statements described 50 • • 1 above in paragraph three. That's knowledge obviously 2 available to PGW, because they are the ones who made the 3 request, correct? 4 A Correct. 5 Q Paragraph six references a meeting you had in 6 New York City with three individuals. Those are three 7 employees of BISYS, correct? 8 A Three executives. 9 Q And it is after that meeting that you were 10 given the charge go out to California and try and reconcile 11 the commission differences and prepare an evaluation for the 12 potential acquisition of PGW, correct? 13 A Generally correct. 14 Q So the fact that you met with these 15 individuals and were charged with the responsibility of 16 addressing these problems is not confidential information, 17 is it? 18 A I recall there was a little bit more 19 substance to the dialogue. 20 Q But in terms of just meeting, and what's 21 conveyed in paragraph six, you don't reveal what that 22 dialogue was, correct? 23 A Not in this document, correct. 24 Q And you never provided PGW with any 25 additional information after you signed this document, 51 1 correct? 2 A Correct. 3 Q Paragraph seven, if you could just read that. 4 That's a little lengthier. And ultimately in paragraph 5 seven you state your opinion, or at least your belief, that 6 PGW had been paid in accordance with its agreement with 7 BISYS, correct, the second to the last paragraph, PGW in 8 accordance with the agreement? 9 A Correct. 10 Q And obviously PGW as a party to the agreement 11 would have had that information at their disposal, correct? 12 A Correct. 13 Q So there is nothing confidential there? 14 A Correct. 15 Q Paragraph eight just discusses a movement of 16 accounting offices from Maryland up to Pennsylvania, which I 17 think had something to do with BISYS's acquisition of 18 Potomac Group East, correct? 19 A Correct. 20 Q No confidential or proprietary information 21 contained in paragraph eight? 22 A There is confidential information in eight. 23 Q I am sorry. I don't mean to mislead you. I 24 am trying to rush through this. The second portion of that 25 talks about there was a change in how commissions were 52 • M 1 reported from actual commissions earned to a reportable 2 commission or keepage by BISYS, correct? 3 A Correct. 4 Q But the commissions being paid to PGW, they 5 obviously would have been aware of that information, 6 correct, they are the ones receiving it? 7 A They would not. 8 Q They would not be aware of what commission 9 they were getting or how it was calculated? 10 A How it was calculated. 11 Q You said that there is a chancfe, but does 12 paragraph eight define with specificity what that change 13 was? 14 A It is a general statement. 15 Q And then, I am sorry, I reversed eight and 16 nine. Nine was the paragraph that referred to the movement 17 of the office, correct? 18 A Correct. 19 Q And there is no subsequent information to the 20 affidavit of September 8th in the Exhibit A, which had been 21 prepared fourteen months and provided to PGW? 22 A Not directly. It is in my deposition. 23 Q Your deposition. Which you met with counsel 24 for BISYS to prepare for it, correct? 25 A No. 53 • C? 1 Q You met with counsel -- 2 A I met with counsel for BISYS, correct. 3 Q The day before your deposition? 4 A Correct. 5 Q That wasn't to prepare for your deposition? 6 A No. 7 Q What was it for? 8 A It was to discuss the probability or 9 possibility of having the Mid-Atlantic case dismissed. 10 Q What is the mid-Atlantic case? 11 A I am sorry. The Middle District case 12 dismissed. And at the advice of my counsel to participate 13 in those discussions. 14 Q So in the eve of you giving testimony in the 15 PGW versus BISYS litigation, you meet with counsel for BISYS 16 to discuss t he possibility of them discontinuing their 17 litigation a gainst you, is that correct? 18 A That is correct. 19 Q You never filed an answer in the suit brought 20 by BISYS, di d you? 21 A I don't recall. 22 Q And we know from your admission that the case 23 was at least stayed prior to discovery being done, correct? 24 A Correct. 25 Q And it hasn't been reinstated after your 54 • 0 1 deposition testimony, correct? 2 A Correct. 3 Q In the indemnification agreement, which is 4 marked as Plaintiff's Exhibit 1, Section three, it indicates 5 that the corporation shall perform its obligations under 6 this agreement on receipt of written demand for such 7 performance from Wevodau. You have not introduced any such 8 written demand in this litigation, have you? 9 MR. SUMMERS: Your Honor, we are here to talk 10 about the condition precedent, specifically identified in 11 Section two, and all the briefs dealt with that -- 12 MR. WEBER: That appears to be a condition 13 precedent to me -- 14 MR. SUMMERS: That issue has never been 15 addressed by Mr. Blumberg, who has participated in 16 everything and also -- 17 THE COURT: And all that means is I will give 18 you more time to respond to the matter if you feel you are 19 prejudiced by this line of questioning. But at least if it 20 is going to become an issue, let's get started. 21 MR. SUMMERS: I understand that, but we 22 didn't talk about -- 23 THE COURT: As a matter of fact, generally 24 speaking there needs to be some sort of demand in a contract 25 case. I think that's the law. Now, whether it bars you 55 • 0 1 from recovery or not, I am not prejudging that issue. I am 2 just saying normally speaking it is a relevant inquiry. Go 3 ahead. 4 THE WITNESS: Can you ask the question again? 5 BY MR. WEBER: 6 Q You never -- 7 THE COURT: First of all, what: paragraph are 8 you referring to? 9 MR. WEBER: I am sorry, it is page two 10 Section three, Notice to Corporation. The first line, The 11 Corporation shall perform its obligations under this 12 agreement on receipt of written demand for such performance 13 from Wevodau. 14 THE COURT: I see. 15 BY MR. WEBER: 16 Q I know you sued PGW and ultimately you sued 17 LISG, but I have not seen a written demand of PGW for 18 performance under this agreement, is that correct? 19 A I believe there was -- I believe that prior 20 counsel, Mr. Kaufman, had submitted that. 21 Q And you were here during Mr. Kaufman's 22 testimony? 23 A Correct. 24 Q Did he testify as to ever doing that? 25 A He was not asked that question., 56 • • 1 Q Has PGW paid any of your attorney's fees for 2 your preparation and participation in the depositions in the 3 Maryland action? 4 A No. 5 MR. WEBER: May I approach? 6 THE COURT: Certainly. 7 MR. WEBER: I am sorry, may I have a moment? 8 I tell all my doctor clients never to use post-it notes 9 because they fall off. Apparently mine has fallen off as 10 well. 11 THE COURT: Do you need a moment so we can 12 take a brief recess? 13 MR. WEBER: Five or ten minutes will be fine. 14 THE COURT: We will take a brief recess. 15 Folks out in California, we will be with you in a little 16 bit. We can just stay connected. 17 (Whereupon, a recess was taken.) 18 AFTER RECESS 19 THE COURT: Mr. Weber, go ahead. 20 BY MR. WEBER: 21 Q I had asked if Potomac Group West has paid 22 any of your attorney's fees associated with your preparation 23 and appearance at the depositions conducted in the Maryland 24 action, and I believe your answer was no? 25 A Correct. 57 • • 1 MR. WEBER: May I approach? 2 THE COURT: Yes. 3 BY MR. WEBER: 4 Q I would like to show you copy of the 5 transcript from the May -- 6 MR. SUMMERS: Do you know what: page? 7 MR. WEBER: Yes. It is going to be page 205, 8 line nine. 9 BY MR. WEBER: 10 Q The deposition transcript from the May 28th, 11 2004, deposition, and this again was in the Maryland action. 12 And you have already testified that shortly before this 13 deposition you met with counsel for BISYS for the purposes 14 of seeing if you could make the suit they had against you go 15 away, correct? 16 A Correct. 17 Q And up until this time, since the execution 18 of the indemnification agreement, you had not provided any 19 information or assistance to Potomac Group West, correct? 20 A Correct. 21 Q Now, the deposition in May occurred in your 22 counsel's office over two days, correct? 23 A Correct. 24 Q May 27th was Potomac Group's counsel asking 25 you questions, correct, the first day was, correct? 58 • 0 1 A I don't recall. 2 Q Is it accurate that your deposition was 3 broken down into two days? They were consecutive days. One 4 day counsel for Potomac Group asked you questions. The 5 other day counsel for BISYS asked you questions? 6 A Correct. 7 Q And what I want to show you is the May 28 8 deposition, page 205, question by Mr. Hume, and I would like 9 to read you the question starting on line nine. Are your 10 attorney's f ees in connection with this deposition being 11 paid for by anyone? Your answer is yes. Did I read that 12 correctly? 13 A Yes. 14 Q You didn't qualify that at all correct, just 15 yes, I didn't omit anything? 16 A Correct. 17 Q The next question on line two, By whom? Line 18 thirteen, By Potomac. Line fourteen, question, Potomac 19 Group West? Your answer, Yes. The next question, Is paying 20 Mr. Kaufman's fees for you yesterday and today', is that 21 correct? Eighteen is yes. Correct? 22 A Correct. 23 Q Are they paying for all of Mr. Kaufman's fees 24 in connection with any BISYS related matters that you have, 25 and you said yes. Correct? 59 • 0 1 A Correct. 2 Q That wasn't true, was it? 3 A The context of my answer was :based upon the 4 indemnificati on agreement. 5 Q The context of your answers were yes and no. 6 There was no qualification -- 7 MR. SUMMERS: Argumentative. 8 MR. WEBER: It is cross-examination. 9 THE COURT: It is argumentative. He says it 10 was based on the indemnification. That's his answer. 11 BY MR. WEBER: 12 Q By the timing of this deposition you had 13 incurred fees from Mr. Kaufman for the drafting of this 14 agreement, di d you not? 15 A Correct. 16 (California was disconnected briefly.) 17 Q We are back on line. We were just getting 18 into the fact that you had incurred fees from Mr. Kaufman in 19 relation to d rafting the indemnification agreement, correct? 20 A Correct. 21 Q And those had not been paid by Potomac Group, 22 correct? 23 A Correct. 24 Q So you incurred fees back in September of 25 2003 that had not been paid, correct? 60 0 0 1 A Correct. 2 Q But when you were answering the question on 3 behalf of BISYS's attorney in May of 2004, you didn't 4 qualify your answers at all that I hoped to be paid pursuant 5 to the indemnification agreement? 6 A That's a choice of words. 7 Q So when he asked are all of your attorney's 8 fees being paid, and you said yes, you were just using a 9 choice of words? 10 A I was going based upon the existence of the 11 indemnification agreement. 12 Q Which you had not received a single penny 13 under up until that point, correct? 14 A To my knowledge nothing directly. 15 Q You weren't doing that in order to place 16 Potomac Group in a bad light in their litigation with BISYS, 17 were you, so that BISYS could discontinue the litigation 18 against you? 19 A No. 20 Q Just a choice of words? 21 A Correct. 22 MR. WEBER: Nothing further. 23 REDIRECT EXAMINATION 24 BY MR. SUMMERS: 25 Q Mr. Wevodau, just to follow up on those 61 0 0 1 questions. When you were answering that Potomac 2 Group West was paying your fees, you did expect them to pay 3 your fees, correct? 4 A Correct. 5 Q And that's why we are here today, correct? 6 A Correct. 7 Q Mr. Weber asked you some questions about 8 providing information subsequent to November 2002. Is that 9 roughly the time frame when you had employed Mr. Kaufman? 10 A Roughly. 11 Q Roughly. And so at that point in time did 12 communications happen by and between counsel? 13 A Correct. 14 Q I don't want you to mention what you told Mr. 15 Kaufman, but Mr. Kaufman communicated with I think he said 16 the gentleman's name was Mr. Abbott, correct? And that's 17 how the communication went after you employed counsel? 18 A Correct. 19 Q Now, Mr. Weber asked you some questions about 20 seeking an indemnification agreement for the affidavit. The 21 affidavit was the product of something that PGW wanted you 22 to say, right? 23 A Correct. 24 Q And did they have several drafts of that that 25 they sent you? 62 0 • 1 A Yes. 2 Q And when I say sent you, I mean through your 3 counsel? 4 A Correct. 5 Q And you were providing accurate information 6 back to PGW, correct? 7 A Correct. 8 Q And the indemnification agreement and 9 affidavit are roughly the same time frame, correct? 10 MR. WEBER: Objection. They are all dated. 11 The affidavit comes before the indemnification agreement. 12 THE COURT: Can you be a little more precise? 13 BY MR. SUMMERS: 14 Q Let me just put it a little different way. 15 When the Potomac Group West was sending you various versions 16 of the affidavit, your counsel was simultaneously 17 negotiating the indemnification agreement, correct? 18 MR. WEBER: Objection. 19 THE WITNESS: Right. 20 THE COURT: On what basis? 21 MR. WEBER: Well, on foundation initially. I 22 don't know that he can testify as to -- 23 THE COURT: Well, perhaps it might be helpful 24 to know how he knows that. 25 MR. SUMMERS: I don't want to get into the 63 • • 1 attorney/client information. Let me just ask it a different 2 way. 3 BY MR. SUMMERS: 4 Q Did you know that your counsel was seeking an 5 indemnification agreement? 6 A Yes. 7 Q And was he seeking that from Potomac Group 8 West? 9 A Yes. 10 Q On your behalf? 11 A Yes. 12 Q Which was eventually reduced to Plaintiff's 13 Exhibit 1? 14 A Yes. 15 Q And when he was seeking that, was that the 16 same time frame that PGW was sending you versions of the 17 affidavit? 18 A Yes. 19 Q Now, I want to get through some of the 20 nuances of the information that you provided. After 21 November 2002 you were deposed. I know it is one 22 deposition, but several days, correct? 23 A Correct. 24 Q And did PGW participate in those depositions, 25 their counsel? 64 • • 1 A Yes. 2 Q And they were able to ask you whatever 3 questions they wanted, correct? 4 A Yes. 5 Q And are you aware of how many conversations 6 that Mr. Kaufman had with Mr. Abbott? 7 MR. WEBER: Can I have a time frame? 8 BY MR. SUMMERS: 9 Q From November 2002 to -- say a one year time 10 frame, November 2002 to November 2003. 11 A Numerous. I don't know the exact number. 12 Q And the information you were providing would 13 have been through counsel, correct? 14 A Correct. 15 Q Now, the New York one that was transferred to 16 the Middle District, which is Plaintiff's Exhibit 2? 17 A Yes. 18 Q When you got sued in that action, the only 19 information you had to go off was the complaint itself, 20 correct? 21 A Correct. 22 Q Because you know how you were deposed in the 23 Maryland action, that never happened in the Middle District 24 action, did it? 25 A No. 65 • • 1 Q I want you to look at the paragraphs in the 2 complaint, which is marked as Plaintiff's Exhibit 2. Look 3 at paragraph seventeen. 4 THE COURT: I am sorry, paragraph seventeen 5 of what? 6 MR. SUMMERS: Of the complaint, Your 7 Honor. 8 THE COURT: Of your complaint in this action? 9 MR. SUMMERS: Plaintiff's Exhibit 2. 10 THE COURT: Plaintiff's Exhibit 2. Okay. 11 BY MR. SUMMERS: 12 Q Are you there, Mr. Wevodau? 13 A Yes. 14 Q And paragraph seventeen, the last sentence, 15 specifically references the Maryland action, correct? 16 A Correct. 17 Q And read paragraph eighteen to yourself. Is 18 that information relating to the information you 19 subsequently talked to PGW about? 20 MR. WEBER: Objection. 21 BY MR. SUMMERS: 22 Q In other words, are they one and the same? 23 A I believe so, yes. 24 Q And what about paragraph nineteen? 25 A Yes. 66 1 Q And look at paragraph twenty-three in the 2 same exhibit, please. The last part of that paragraph says 3 to counsel for Potomac West. 4 A Yes. 5 Q Did you have conversations directly with Mr. 6 Abbott, or did they all go through Mr. Kaufman? 7 A I had conversations directly with Mr. Abbott. 8 Q And we are going to get to those in a second. 9 Paragraph twenty-five specifically refers to an affidavit. 10 A Yes. 11 Q I know we talked about several versions that 12 Potomac Group West drafted and several versions of the 13 affidavit, but was there only one affidavit that you 14 actually agreed to? 15 A Yes. 16 Q And that's marked I believe as Defendant's 2, 17 is that correct? 18 A Yes. 19 Q And that's the only affidavit that was 20 actually executed? 21 A Yes. 22 Q And while we are on the topic of the 23 information that's in the complaint and also referred to in 24 the indemnification agreement, did you have conversations 25 with Mr. Leisher concerning the knowledge that you had? 67 • • 1 A Yes. 2 Q And directly with him? 3 A Yes. 4 Q So you communicated to him the information 5 that you had? 6 A Yes. Periodically. 7 Q And are some of the same conversations you 8 had with Mr. Abbott? 9 A Yes. 10 Q And were those conversations before or after 11 September 22, 2003, and that's the date of indemnification 12 agreement? 13 A It was before. 14 Q So on the date that this indemnification 15 agreement was executed, you communicated fully to Mr. 16 Leisher and Mr. Abbott the information that you had? 17 A Yes. 18 Q Which more or less was reduced to the 19 affidavit? 20 A Yes. 21 Q I want you to look at the indemnification 22 agreement, whi ch is Plaintiff's 1, and look at page two. 23 Are you there? 24 A Yes. 25 Q And it is the paragraph actually that Mr. 68 • 1 Weber talked about, the Notice to Corporation. I want to 2 refer your attention to the last sentence. It starts out by 3 saying, In any action brought by Wevodau to enforce this 4 agreement. That's why we are here? 5 A That's right. 6 Q And the second part of that sentence says, On 7 a showing by Wevodau that he has been named in any action. 8 We have Plaintiff's Exhibit 2, correct? 9 A Correct. 10 Q And then read the next part of that sentence 11 aloud. 12 A If he prevails in whole or in part -- 13 Q No. 14 A I am sorry. 15 Q I will read it. There shall be a presumption 16 that Wevodau is entitled to the defense of indemnification. 17 Correct, that's what it says? 18 A Correct. 19 Q Mr. Weber asked you some questions concerning 20 the Maryland action. Just simply, you don't know what the 21 status of that is, correct? 22 A Correct. 23 Q Now, back to the attorney's fees. You 24 originally employed, or maybe your counsel employed on your 25 behalf, counsel in New York, right? 69 • 1 A Correct. 2 Q Do you know if that counsel sends bills 3 directly to you, or did they send them to PGW? 4 A My recollection is that they had sent them 5 directly to PGW. 6 Q And was that based upon the indemnification 7 agreement? 8 A Yes. 9 Q To your knowledge has PGW paid any of your 10 fees, whethe r it be to me, to Mr. Kaufman, or the New York 11 counsel? 12 A I believe initially they did make payments to 13 the New York firm. 14 Q You just are not positive? 15 A I am not positive. 16 Q Now, Mr. Weber asked you questions about the 17 affidavit. More or less he was asking you -- my 18 understanding he was asking you questions about what was 19 confidential and what wasn't, is that correct? 20 A Yes. 21 Q And in the complaint, which is marked as 22 Plaintiff's Exhibit 2, they suggest certain things are 23 confidential, generally speaking? 24 A Yes. 25 Q You never had a chance to answer the 70 1 complaint, correct? 2 A Correct. 3 MR. SUMMERS: That's all the questions I 4 have, Your Honor. 5 RECROSS-EXAMINATION 6 BY MR. WEBER: 7 Q Mr. Wevodau, your counsel had asked you some 8 questions about direct communication you had with Mr. 9 Leisher. Isn't it true that your last direct communication 10 with Mr. Leisher was a dinner that you attended with Mr. 11 Leisher and Mr. Piscotty at Parev Restaurant in Harrisburg, 12 and that that occurred prior to the initiation of the 13 Maryland suit? 14 A I don't recall if that was the last 15 communication, but I recall a dinner. 16 MR. WEBER: May I approach? 17 THE COURT: Yes. 18 BY MR. WEBER: 19 Q Page 166. Question on line seventeen. 20 What's the last time you have had a direct conversation with 21 Steve Leisher? I believe perhaps the dinner would have been 22 the last conversation I had with him. Did I read that 23 accurately? 24 A Yes. 25 Q And that dinner occurred with Mr. Piscotty 71 • • 1 and Mr. Leisher prior to Mr. Leisher's filing the Maryland 2 action, correct? 3 A (No response). 4 Q We are testing recollections. Maybe I can 5 make this easier. The indemnification agreement is dated 6 September 22, 2003, correct? 7 A Correct. 8 Q You did not have any direct communications 9 with Mr. Leisher at any point in the calendar year 2003, 10 isn't that correct? 11 A I am not absolutely certain. 12 Q Well, maybe I can help refresh your 13 recollection. You go to a deposition in the Maryland action 14 in November of 2003, correct -- I am sorry, 2002? 15 A Correct. 16 Q And from your testimony that we referred to 17 something occurred in that deposition that caused you to end 18 the deposition abruptly, so that you could retain counsel 19 for yourself, correct? 20 A Correct. 21 Q After you retained counsel, shortly after 22 that deposition of November of 2002, you didn't have any 23 direct communication with Mr. Leisher, did you? 24 A I don't recall. 25 Q You testified in 2004 that your direct 72 • • 1 communication with Mr. Abbott and Mr. Leisher was 2 nonexistent, is that correct? 3 A That was five years ago. I don't recall five 4 years later. 5 Q Would your recollection five years ago be 6 better than it is here today? 7 A Based on specific dates and interaction, 8 probably so, y es. 9 Q And your counsel asked you how many 10 communications Mr. Kaufman may have had with Mr. Abbott, and 11 you said numerous? 12 A Correct. 13 Q You can't give us a specific number, correct? 14 A No. 15 Q And you did not participate in those 16 communications, correct? 17 A No. 18 Q You don't know the substance of those 19 communications, correct? 20 A I received feedback from Mr. Kaufman after 21 any communicati on. 22 Q And Mr. Summers had asked you that any 23 information you would have had conveyed to PGW would have 24 gone through Mr . Kaufman, correct? 25 A Correct. 73 • 1 Q What information specific to PGW's claim for 2 commissions against BISYS did you convey to Mr. Kaufman so 3 that he could convey it to PGW? 4 MR. SUMMERS: Objection, Your Honor. That 5 directly relates to the attorney/client privilege. Anything 6 he communicated to Mr. Kaufman would be attorney/client 7 privilege. 8 THE COURT: I agree. 9 BY MR. WEBER: 10 Q Mr. Summers asked you a question that the 11 affidavit that you signed on September 8, 2003, was that the 12 information you provided to PGW was more or less reduced to 13 the affidavit, correct, and you answered yes? 14 A Correct. 15 Q So if we look at the affidavit and the 16 attachment, that pretty much captures all the information 17 you provided to PGW, correct? 18 A It is a summary, yes. 19 Q And all of that information was provided 20 prior to the execution of the affidavit, correct? 21 A Correct. 22 Q The affidavit just memorializes what you had 23 done, like Exhibit A was done back in the summer of 2002, 24 correct? 25 A Will you ask that again? 74 • • 1 Q The affidavit is a summary of the information 2 that you had provided previously, correct? 3 A Correct. 4 Q And Exhibit A to the affidavit was prepared 5 back in August or July of 2002, correct? 6 A Correct. 7 Q So no new information was disseminated to PGW 8 in that affidavit, correct? 9 A Correct. 10 Q And you had no additional information 11 conveyed to PGW after that affidavit was executed? 12 A Correct. Well, can I comment? 13 Q No. And other than sitting in a deposition 14 and answering questions, you provided no other information 15 to anyone working on behalf of PGW, is that correct? 16 A That is correct. 17 Q And those depositions occurred in 2004, 18 correct, the two dates that... 19 A Correct. 20 Q And the other information that you would have 21 provided prior to the affidavit on September 8, 2003, you 22 would have done that in your capacity as working as a 23 consultant for PGW, is that correct? 24 A The affidavit was not submitted as a 25 consultant. 75 • • 1 Q But all the information -- we just clarified 2 that the affidavit is just a summary of all the information 3 that you had previously given PGW, correct? 4 A No. It extended beyond the consulting. 5 Q I am sorry. I am probably not asking the 6 question correctly. What extended beyond the consulting? 7 A The discussions with Mr. Abbott and Mr. 8 Kelso. 9 Q And those all pre-dated the affidavit? 10 A Correct. 11 Q And the information you conveyed, like 12 Exhibit A, that was done pursuant to a request from Bruce 13 Abbott, you were compensated for that, correct? 14 A I am sorry? 15 Q You were compensated as a consultant for 16 preparing Exhibit A to your affidavit? 17 A Correct. 18 Q You also prepared something you called an 19 audit plan. I believe it took you twenty minutes to 20 prepare, and you were compensated for that as well, is that 21 correct? 22 A Correct. 23 Q And just so we are clear, the affidavit 24 didn't provide any new information to PGW, correct? 25 A Correct. 76 • r 1 Q Mr. Summers asked you some questions 2 regarding the allegations made by BISYS in their lawsuit, 3 particularly paragraph twenty-three. You directly or 4 indirectly discussed and disclosed privileged 5 communications. That's Plaintiff's Exhibit 2 I believe, 6 paragraph twenty-three. What privileged communications did 7 you disclose to PGW? 8 A I don't recall. 9 Q Did you disclose privileged communications to 10 PGW? 11 A I don't recall. 12 Q So this is just BISYS's allegation against 13 you, as Mr. Summers indicated, you were never called upon to 14 answer that, correct? 15 A Correct. 16 MR. WEBER: I have nothing further. 17 REDIRECT EXAMINATION 18 BY MR. SUMMERS: 19 Q The comment you wanted to make concerning the 20 communications. 21 A I forgot. 22 MR. SUMMERS: No further questions. 23 THE COURT: Okay. 24 MR. WEBER: I figured if I dragged it out 25 long enough. 77 • • 1 THE COURT: Thank you. No, wait a minute. I 2 have some questions for you. 3 Just by way of clarification, and I don't 4 advocate for anybody in these cases, but I just want to make 5 sure I understand. This Exhibit A that you have attached to 6 your affidavit, you said it was an estimate or something 7 like that. It was not based on actual information, am I 8 right about that, is that what you said? 9 THE WITNESS: Yes, that's correct. 10 THE COURT: Was your understanding of BISYS's 11 accounting procedures necessary for your preparation of the 12 exhibit? 13 THE WITNESS: Yes. 14 THE COURT: And you met with BISYS about 15 their litigation against you in New York and then the Middle 16 District. When you met with them to try to resolve that, 17 was Mr. Kaufman there and representing you? 18 THE WITNESS: Yes. 19 THE COURT: And if I understand the sequence 20 correctly, you were deposed once in the Maryland action and 21 entered into the indemnification agreement, and then the 22 other depositions occurred after the indemnification 23 agreement. Do I have that right? 24 THE WITNESS: That's correct. 25 THE COURT: Anything else in light of my 78 • 0 1 questions? 2 MR. WEBER: Just so the record is clear. In 3 reference to the deposition -- I am sorry, Sean, did you 4 want to go first? 5 MR. SUMMERS: Go ahead. 6 RECROSS EXAMINATION 7 BY MR. WEBER: 8 Q Just so we have the chronology of the 9 depositions. The initial deposition in the Maryland action 10 was approximately November of 2002, correct? 11 A Correct. 12 Q And then the next two days occurred in May of 13 2004, correct? 14 A Correct. 15 Q And when you met with outside counsel and 16 inside counsel for BISYS with Mr. Kaufman immediately before 17 the deposition , that was a day-long meeting, is that 18 correct? 19 A That is not correct. 20 Q How long was it? 21 A Maybe ninety minutes. 22 MR. WEBER: Nothing further. 23 THE COURT: Anything else? 24 MR. SUMMERS: No, Your Honor. 25 THE COURT: Thank you, sir. You can step 79 1 down. 2 THE WITNESS: Thank you. 3 THE COURT: Anything else? 4 MR. SUMMERS: I am going to call Mr. Leisher 5 briefly jus t to establish he signed the contract. 6 Whereupon, STEVEN LEISHER, having been 7 duly sworn, testified as follows: 8 DIRECT EXAMINATION 9 BY MR. SUMMERS: 10 Q Mr. Leisher, this is Sean Summers. I know we 11 met in your deposition. Can you hear me? 12 A Yes, I can. 13 Q Could you state your name, please. 14 A Steven Charles Leisher. 15 Q And during September of 2003 were you 16 employed by Potomac Group West? 17 A Yes. 18 Q And you were the president of the company, 19 correct? 20 A Correct. 21 Q And Mr. Blumberg, do you have a copy of the 22 indemnification agreement there? 23 MR. BLUMBERG: We sure do. 24 MR. SUMMERS: Can you hand a copy to him. 25 THE WITNESS: I have a copy right in front of 80 1 me. 2 BY MR. SUMMERS: 3 Q There is two counterparts, two page fives. 4 At least th e one I have the last page has a signature on it 5 above your signature block. Do you see that? 6 A Yes. 7 Q Is that your signature? 8 A Yes. 9 Q And you executed this on behalf of Potomac 10 Group West? 11 A Yes, 12 Q And can I get you to flip to page two, sir. 13 A Okay. 14 Q By way of background, in September of 2003, 15 you were involved, you personally and your company, were 16 involved in litigation in Maryland, correct? 17 A Yes. 18 Q And Mr. Wevodau was called as a witness in 19 that action, correct? 20 MR. BLUMBERG: Objection. Calls for a legal 21 conclusion, assumes facts not in evidence, calls for 22 speculation, no foundation. 23 THE COURT: That he was a witness? 24 MR. SUMMERS: I just asked -- first of all, I 25 want to know which counsel is going to be doing the 81 1 objecting. 2 THE COURT: We have a lawyer here to make 3 objections. 4 BY MR. SUMMERS: 5 Q Was Mr. Wevodau a witness in the action that 6 you were a party to in Maryland? 7 A I am not familiar if he was called a witness 8 or not. I know he did not testify at the trial, so he may 9 have been on the witness list. 10 Q There were depositions in the Maryland 11 action, correct? 12 A Correct. 13 Q And if I recall from your deposition 14 testimony, you have been deposed several times throughout 15 your lifetime, correct? 16 A Correct. 17 Q So you know what a deposition is, right? 18 A Right. 19 Q Was Mr. Wevodau deposed for the Maryland 20 action? 21 A Okay. That's a different question, but the 22 answer is yes. I think you asked if he was a witness. And 23 I am not sure of the difference between being a witness and 24 doing a deposition. 25 Q Okay. Fair enough. So we will agree that he 82 • 1 was deposed, right? 2 A Yes. 3 Q Were you present for Mr. Wevodau's deposition 4 in the Maryland action? 5 A Yes. 6 Q Did Potomac Group West pay Mr. Wevodau for 7 any legal fees associated with his participation in the 8 Maryland action? 9 MR. WEBER: I am going to-place an objection. 10 It goes beyond the scope of what we are here for today. 11 THE COURT: I will permit it in light of all 12 of the other questions that have been asked in that 13 connection. Go ahead. 14 THE WITNESS: Not that I am aware of. 15 BY MR. SUMMERS: 16 Q Well just generally, has Potomac Group West 17 paid any of Mr. Wevodau's legal fees? 18 A I know of consulting fees. I am not sure of 19 any legal fees. 20 Q Could you hear Mr. Wevodau when he was 21 testifying? 22 A Yes. 23 Q Did you hear him discuss, just generally, 24 that he had conversations with you and Mr. Abbott concerning 25 some information that he knew? 83 1 A Yes. I heard that. 2 Q You would agree that those conversations took 3 place, right? 4 A In the summer of 102, yes. 5 Q And Mr. Wevodau provided you information that 6 you thought was relevant to your Maryland action, correct? 7 MR. WEBER: Objection. Can we have a time 8 frame? 9 THE COURT: I think he said 102. 10 MR. WEBER: Okay. I am sorry. You are 11 limiting it to his discussions with him. Okay. 12 THE WITNESS: Mr. Wevodau was very clear that 13 the information that he was providing was directly related 14 to the actions that -- a suit wasn't filed at that -- during 15 the course of those conversations with BISYS, but his 16 comments to us he was pretty emphatic that that information 17 was very relevant. 18 BY MR. SUMMERS: 19 Q And either you or your counsel drafted 20 several versions of the affidavit -- do you have a copy of 21 that there, Mr. Blumberg, that you can show him? 22 A I did not draft an affidavit. 23 Q Have you seen the affidavit before? 24 A I would have to review it. I suspect I did, 25 but I don't recall exactly. 84 • 9 1 Q Did you hear Mr. Wevodau testify that there 2 were several versions presented to him from either you or 3 your counsel? 4 A Well, I could tell you he has never received 5 any versions from me personally. But, yes, I did hear that 6 he made that statement. 7 Q Were you aware that he received several 8 versions of the affidavit? 9 A I am not aware that he received several, no. 10 Q Are you aware that he received more than one? 11 A I can't say that I am, no. 12 MR. SUMMERS: I have no further questions, 13 Your Honor. 14 THE COURT: Mr. Weber, any questions? 15 MR. WEBER: Just very briefly. 16 CROSS-EXAMINATION 17 BY MR. WEBER: 18 Q Mr. Leisher, I have the unusual privilege of 19 saying we did not meet before. So I have the chance to meet 20 my client for the first time while questioning him over the 21 T.V. Just a couple of questions, Mr. Leisher. Mr. Summers 22 had you acknowledge that you signed the indemnification 23 agreement that bears a date of September 22, 2003. Did you 24 receive any information, either directly or indirectly, from 25 Mr. Wevodau after that day? 85 • • 1 A No. 2 Q How many approximately witnesses were deposed 3 in the Maryland action? 4 A Not to be too flip, but way too many. 5 Probably I would have to say twenty -- close to twenty. I 6 believe we were capped at eighteen. 7 Q Did you execute any indemnification 8 agreements in relation to any of those other fact witnesses? 9 A No. 10 Q You had indicated that Mr. Wevodau was very, 11 I believe you used the word adamant, in his discussions with 12 you in the summer of 2002 that he had pertinent information 13 regarding your potential claim against BISYS, is that 14 correct? 15 A Yes. 16 Q Did his testimony at his depositions match 17 the information he had given you in the summer of 2002? 18 MR. SUMMERS: Objection, Your Honor. He is 19 calling him to match up two different dates and determine 20 just in a broad stroke whether it was identical. 21 MR. WEBER: I didn't say identical. I said 22 match up. I mean, your definition of information is rather 23 broad. 24 THE COURT: Well, my question is what is the 25 definition of match up. You are going to have to rephrase. 86 0 0 1 BY MR. WEBER: 2 Q You were present during Mr. Wevodau's 3 deposition taken in May of 2004, correct? 4 A Yes, I was. 5 Q And you had been party to conversations with 6 Mr. Wevodau in 2000, where he was adamant that he had 7 pertinent information regarding your interaction with BISYS, 8 is that correct? 9 A That's correct. 10 Q Was the testimony in your recollection and in 11 your opinion in the depositions of May of 2004 consistent 12 with the information that he had given you in the summer of 13 2002? 14 MR. SUMMERS: Objection, Your Honor. 15 Basically he is being a human lie detector here saying was 16 he telling the truth -- 17 THE COURT: No, no. Overruled. Whether it 18 is relevant to this matter is another question, but I will 19 let him go ahead. 20 MR. SUMMERS: I am going to have to go into 21 detail and ask what wasn't exact. 22 THE COURT: Well, I don't want a trial within 23 a trial. 24 MR. SUMMERS: That's what I am trying to 25 prevent. 87 0 0 1 THE COURT: I mean, was it inconsistent in a 2 little way, was it inconsistent in a big way. It opens up 3 all of those questions. 4 MR. WEBER: We will move on. We can go down 5 that path at the next stage if we have to. 6 THE COURT: All right. 7 BY MR. WEBER: 8 Q You already testified that you could hear Mr. 9 Wevodau's testimony here today. And he had testified that 10 the affidavit produced in September of 2003 was a summary of 11 the information he had previously provided to you. Do you 12 recall his testimony in that regard? 13 A Yes, I do. 14 Q Did Mr. Wevodau at any point prior to 15 September of 2003 ask you to provide him with 16 indemnification for that information that he had voluntarily 17 given to you prior? 18 A No. He did not. 19 Q Was it your understanding that you were 20 providing him with retroactive indemnification for the 21 information he had already previously provided to you in his 22 capacity as a consultant? 23 MR. SUMMERS: Objection, Your Honor. Now he 24 is calling for him to interpret the indemnification 25 agreement. 88 0 1 THE COURT: Well, if that's his 2 understanding, that's fine. His understanding may be wrong, 3 but I will permit the question. 4 THE WITNESS: No. I mean, it was very clear 5 that the information provided was provided, and that the 6 indemnification was his concerns about moving forward. So 7 there was a clear, in my mind, delineation between what was 8 given and what he was promising to give. 9 BY MR. WEBER: 10 Q And in terms of what he was promising to give 11 as things played out, he never gave you any additional 12 information, is that correct? 13 A That's correct. 14 MR. WEBER: I have nothing further. 15 THE COURT: Anything else? 16 REDIRECT EXAMINATION 17 BY MR. SUMMERS: 18 Q Mr. Leisher, you heard the name Mr. Abbott 19 thrown around by some of the other witnesses, correct? 20 A Sure. 21 Q He was PGW's in-house counsel in 2003, 22 correct? 23 A It is hard for me to recall. I know Mr. 24 Abbott left sometime in 2003 or 4, so I can't answer that 25 emphatically. Probably, but I am not exactly sure when he 89 1 left. 2 Q When Mr. Abbott was employed at PGW, he was 3 an attorney, correct? 4 A Correct. 5 Q Mr. Weber asked you a few questions about the 6 information Mr. Wevodau provided. And Mr. Wevodau was in 7 fact concerned about getting sued by BISYS, right, that's 8 why he asked for the indemnification agreement? 9 A I suppose so, yes. 10 MR. SUMMERS: No further questions. 11 THE COURT: Anything else? 12 MR. WEBER: No. 13 THE COURT: Thank you very much, Mr. Leisher. 14 THE WITNESS: Thank you. 15 THE COURT: Anything else? 16 MR. SUMMERS: No, Your Honor. 17 MR. WEBER: I will not be calling Mr. 18 Leisher. 19 THE COURT: Okay. You are moving for your 20 exhibits I assume? 21 MR. SUMMERS: Yes, Your Honor. 22 THE COURT: Just to recap what are they, just 23 briefly again, so the stenographer knows what we have. 24 MR. SUMMERS: Plaintiff's 1 is the 25 indemnification agreement. 90 0 0 1 THE COURT: 2 is the lawsuit. 2 MR. SUMMERS: 2 is the complaint. 3 MR. WEBER: I have no objection to 4 Plaintiff's exhibits. And Defendant's 1 is the plaintiff's 5 responses to defendant's requests for admissions. And 2 is 6 the affidavit of Steven Wevodau. D-3 was the Stay and 7 Tolling agreement. 8 MR. SUMMERS: No objection. 9 THE COURT: Care to make any argument? 10 (Whereupon, Mr. Weber closed on 11 behalf of the Defendant.) 12 (Whereupon, Mr. Summers closed on 13 behalf of the Plaintiff.) 14 (End of proceedings) 15 16 17 18 19 20 21 22 23 24 25 91 0 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. 'D4?pw Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Da e Kevi A. Hess, J. Nin Judicial District 92 FILE ;E :t STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: CIVIL NONJURY TRIAL ORDER AND NOW, this !I- day of September, 2009, continued trial in the above matter is set for Tuesday, November 17, 2009, at 1:00 p.m., in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ? Sean E. Summers, Esquire For the Plaintiff -,- Thomas Weber, Esquire /Donald H. Blumberg, Esquire For the Defendant rlm 1411( OF THE PF ?D r r ?n rgRy 2009 SEP 14 PH 12: 4 J" PIENNSY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No.08-3925 Civil Term V. LEISHER INSURANCE SOLUTIONS GROUP, INC. Defendant PLAINTIFF'S MOTION FOR SANCTIONS PURSUANT TO Pa.R.C.P. 4019 FOR FAILURE TO PRODUCE DOCUMENTS Plaintiff, Steven S. Wevodau, by his undersigned counsel, files the following Motion for Sanctions Pursuant to Pa.R.C.P. 4019, and C.C.R.P. 208.3(a): 1. The moving party is the within Plaintiff, Steven S. Wevodau (Wevodau). 2. The respondent is the within Defendant, Leisher Insurance Solutions Group, Inc. (LISG). 3. Trial in this matter on the issue of successor liability began on August 27, 2009, before the Honorable Kevin A. Hess. 4. At trial, Karen Davis, a witness called by Plaintiff as on cross-examination testified that she is the current office manager of LISG, having formerly been employed as the office manager for Potomac Group West (PGW). 1 5. Ms. Davis testified that at the time the changeover occurred from PGW to LISG, the payroll checks were prepared by an outside vendor, and as the changeover took place the payroll checks continued to be prepared by the same outside vendor. 6. Wevodau requested that LISG produce the payroll and Paychex documents which relate to the changeover in payroll from PGW to LISG. In fact, the Court indicated the payroll information is relevant and most likely obtainable prior to the next trial date. 7. Following the August trial date, Wevodau reiterated its request for the payroll records, and LISG responded that the records would be provided, as evidenced by the e-mail exchange between counsel, attached as Exhibit A. 8. Approximately six weeks have elapsed since the payroll records were requested. They have not yet been produced and LISG has failed to provide a date by which they will be produced. 9. On October 2, 2009, Defendant indicated that it cannot commit to producing the relevant documents by a date certain. See attached Exhibit B. 10. Wevodau believes and therefore avers that he is prejudiced by LISG's failure to provide the payroll documents requested and its failure to disclose matters which are relevant to its claims as well as Defendant's defenses. 11. Pennsylvania Rule of Civil Procedure 4019(a)(1)(i) provides that on motion the court may make an appropriate order if a party fails to serve answers, sufficient answers, or objections to written interrogatories. 2 12. Pennsylvania Rule of Civil Procedure 4019(a)(1)(vii) provides that on motion the court may make an appropriate order if a party fails to permit inspection of documents. 13. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(4), the court may enter an order imposing punishment for contempt. 14. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(5), the court may enter an order with regard to the failure to make discovery as is just. 15. This case is being heard by the Hon. Kevin A. Hess. 16. LISG has been given notice of this motion, and it does not concur in Wevodau's request for relief. WHEREFORE, Plaintiff, Steven S. Wevodau, respectfully requests your Honorable Court enter an order directing Defendant, Leisher Insurance Solutions Group, Inc., produce payroll records relative to the change in payroll from Potomac Group West, Inc., and Leisher Insurance Solutions Group, Inc., on or before October 30, 2009, or suffer sanctions for contempt. 2720415 BARLEY SNYDER LL By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 3 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing Motion is being served on counsel of record by first class mail, postage prepaid, addressed as follows: Ronald H. Blumberg, Esq. Blumberg law Group, LLP 437 S. Highway 101, Suite 217 Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 market Street PO Box 1268 Harrisburg, PA 17108-1268 October , 2009 BARLEY SNYDER LL By: Sean E. EXHIBIT A From: Weber, Thomas J. [tjw@goldbergkatzman.com] Sent: Sunday, September 20, 2009 2:27 PM To: Summers, Sean E. Subject: RE: Wevodau v. Leisher I will check on timing tomorrow and let you know. I assume as long as we do not have to go to Paychex we should ave the info by end of this week. If we do have to go to Paychex, by the end of next week. Sent from my Windows Mobile phone From: Summers, Sean E. <ssummers@badey.com> Sent: Sunday, September 20, 2009 12:38 PM To: Weber, Thomas J. <tjw@goldbergkatzman.com> Subject: RE: Wevodau v. Leisher Thanks. Can you tell me when you'll produce them? My concern is your client and not you. I don't need an answer today but I'd like a commitment early this week. If I was working with your co-counsel, I would provide response deadlines. However, I trust you to respond with a date without making specific demands. Sean E. Summers (ssummers@barley.com) Esquire Barley Snyder LLC 100 East Market Street York, PA 17401 717.852.4997 - Direct Dial 717.843.8492 - Fax Barley Snyder LLC ATTORNEYS AT LAW Website: www.barley.com To ensure compliance with requirements imposed by the U. S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U. S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication. THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this message or by sending an e-mail to barley@barley. com and destroy all copies of this message and any attachments. Thank you. -----Original Message----- From: Weber, Thomas 3. [mailto:tjw@goldbergkatzman.com] Sent: Sunday, September 20, 2009 12:35 PM To: Summers, Sean E. Subject: RE: Wevodau v. Leisher File whatever Motion you like. I will respond that I do agree to produce the records assuming they exist (which I assume they do), and that when I read your email last Sunday night it neither imposed a deadline or called for a response. They will be produced in plenty of time for a trial resuming on 11/17. Sent from my Windows Mobile phone From: Summers, Sean E. <ssummers@barley.com> Sent: Sunday, September 20, 2009 12:30 PM To: Weber, Thomas J. <tjw@goldbergkatzman.com> Subject: RE: Wevodau v. Leisher Tom, Having received no response and no documents, I will file a motion to compel ASAP. I will indicate that (1) you do not concur, (2) 1 attempted to work out production without the necessity of court intervention, and (3) we previously agreed that the documents are relevant -- not too mention that the Court practically asked for them. I plan on filing the motion tomorrow and asking for expedited consideration. Obviously, if you agree to produce the documents by a date certain, I will not file the motion. Thanks. Sean Sean E. Summers (ssummers@barley.com) Esquire Barley Snyder LLC 100 East Market Street York, PA 17401 717.852.4997 - Direct Dial 717.843.8492 - Fax Barley Snyder LLC ATTORNEYS AT LAW Website: www.barley.com To ensure compliance with requirements imposed by the U. S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U. S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication. THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this message or by sending an e-mail to barley@barley.com and destroy all copies of this message and any attachments. Thank you. -----Original Message----- From: Summers, Sean E. Sent: Sunday, September 13, 2009 8:46 PM To: Weber, Thomas J.' Subject: Wevodau v. Leisher Tom, As we discussed at the conclusion of our last trial date, the Judge wants to see what employees were on the payroll on the final PGW and the subsequent LISG date. There must be a date when payroll was transferred from PGW to LISG. Please provide the list of employees that were employed on the last day of PGW and the first day of LISG. You agreed to provide these documents following our last trial date but if there has been a change of plans, please let me know so that I can request that the Court order production. Thank you. Sean Sean E. Summers (ssummers@barley.com) Esquire Barley Snyder LLC 100 East Market Street York, PA 17401 717.852.4997 - Direct Dial 717.843.8492 - Fax Barley Snyder LLC ATTORNEYS AT LAW Website: www.barley.com To ensure compliance with requirements imposed by the U. S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U. S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication. THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this message or by sending an e-mail to barley@barley. com and destroy all copies of this message and any attachments. Thank you. EXHIBIT B . Page. 1 of 1 Summers, Sean E. From: Weber, Thomas J. [tjw@goldbergkatzman.comj Sent: Friday, October 02, 2009 3:40 PM To: Summers, Sean E. Subject: Paychex Sean, I was supposed to have the documents in my hands this afternoon and a conference call to go over them. Due to Mr. Leisher's unavailability the conference call had to be continued. I will be out of the office Monday but will follow up when I return Tuesday. I know this does not provide you with a lot to get comfortable about so I can understand you taking whatever steps you deem necessary. I do believe I will be able to get the info to you by next Friday but am not in a position to commit for my client. 10/7/2009 OF THE .0TJRY 2C 9 0C I -9 Pa9 IOJ: 13 STEVEN S. WEVODAU, Plaintiff VS. LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-3925 CIVIL IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY ORDER AND NOW,?this day of October, 2009, a rule is issued on the defendant to show cause why the relief requested in the within motion to compel discovery ought not to be granted. This rule returnable ten (10) days after service. BY THE COURT, Sean E. Summers, Esquire For the Plaintiff mas Weber, Esquire Ronald H. Blumberg, Esquire For the Defendant rlm Copies , t 1 o?r s?o?' Kevin A. Hess, J. HLEa-0 OF THc PPO' ? "DI O FARY 2009 OCT 15 Ail 11: O2 F Ronald H. Blumberg Tracie L. Spies Blumberg Law Group, LLP 437 S. Highway 101, Suite 217 Solana Beach, CA 92075 Telephone: (858) 509-0600 Facsimile: (858) 509-0699 STEVEN S. WEVODAU, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LEISHER INSURANCE SOLUTIONS GROUP, INC., NO. 08-3925 Defendant DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SANCTIONS Defendant Leisher Insurance Solutions Group, Inc., by and through its attorney of record, RONALD H. BLUMBERG, of the law firm Blumberg Law Group, LLP, hereby files Defendant's Opposition to Plaintiff's Motion for Sanctions Pursuant to Pa.R.C.P. 4019 for Failure to Produce Documents. 1. The Responding Party is Defendant Leisher Insurance Solutions Group, Inc. (LISG). 2. The Motion for Sanctions for Failure to Produce Documents (Motion for Sanctions) filed by Plaintiff Steven S. Wevodau (Wevodau) should be denied. Sanctions are not appropriate here because LISG has not engaged in discovery abuse. LISG remains on schedule to produce, in timely fashion, the documents that Wevodau has requested. 3. Phase One of Trial in this matter on the issue of successor liability began August 27, 2009. Phase Two of Trial is scheduled to move forward on November 17, 1 2009. At the conclusion of Phase One, Wevodau, with the Court's concurrence, requested production of documents regarding the changeover in payroll from Potomac Group West, Inc. (PGW) to LISG. LISG agreed to produce those documents. No date certain has ever been set for production. 4. At no time has LISG objected to Wevodau's request for production or sought a protective order with respect to any of the documents requested by Wevodau. 5. LISG is presently assembling the documents for production. 6. LISG's search for the documents requested by Wevodau has involved much more effort than simply running reports from consecutive pay periods. As LISG has explained to the Court, the business activities of PGW were significantly different from those of LISG. LISG has therefore undergone a substantial change in personnel, and many current employees' job duties and/or affiliations have changed. 7. Despite these difficulties, LISG has assembled at least a preliminary response. This larger group of documents will be reviewed early next week by auditors employed with a certified public accountancy firm. 8. As the Court can appreciate, LISG will take every precaution that its production does not disclose to Wevodau or to any other third party sensitive personal information of PGW's and LISG's employees. LISG therefore will appropriately redact such personal/proprietary/privileged information from the payroll information sought by Wevodau. 9. In his Motion for Sanctions Wevodau contends that LISG's failure to produce documents regarding the changeover in payroll from PGW to LISG, or to 2 V commit to a date certain for the production of this information, prejudices Wevodau's case, and that unless LISG produces the information by October 30, 2009, the Court is justified in imposing contempt sanctions upon LISG. 10. Although Wevodau has averred prejudice, the relatively small volume of documents being produced by LISG defeats his claim. Wevodau's trial-preparation efforts will not be prejudiced by LISG's production of responsive documents. 11. LISG will produce all documents responsive to Wevodau's request on or before the October 30, 2009 date requested by Wevodau in his Motion for Sanctions, subject to the review and redaction process described above. WHEREFORE, Defendant Leisher Insurance Solutions Group, Inc. respectfully requests your Honorable Court deny Plaintiff Steven S. Wevodau's Motion for Sanctions Pursuant to Pa.R.C.P. 4019 for Failure to Produce Documents, BLUMBERG LAW GRO?V,,ZLP Dated: October 23, 2009 Ronald H. Blu erg, sq. (Admitted Pro ac ice) Attorney for Defe ant Leisher Insuranc Solutions Group, Inc. BLUMBERG GROUP, LLP 437 S. Highwa 101, Suite 217 Solana Beac , CA 92075 Telephone: 88.509.0600 Facsimile: 858.509.0699 3 CERTIFICATE OF SERVICE I hereby certify that on October 23, 2009,1 served a copy of DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SANCTIONS upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy via overnight mail, next morning delivery, in Solana Beach, California, as follows: Sean E. Summers, Esq. Barley Snyder LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Dated: October 23, 2009 anielle Sutton 1 ? QCl 21 Ah 9? 42 ;,to coutm CWJB?-F,,' PEA'' .4 CERTIFICATE OF SERVICE Steven S Wevodau v Leisher Insurance Solutions Group. Inc. Cumberland County Case No. 08-3925 I hereby certify that true and correct copies of the foregoing DECLARATION OF BADRIAH NORDSTROM, DECLARATION OF JEFF PATTERSON, and DECLARATION OF JOE SCHLESSER RE: PRODUCTION OF DOCUMENTS PERTAINING TO PAYROLL INFORMATION are on this day being served on counsel of record by e-mail and first-class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 BLUMBERG LAW GROUP, LLP Dated: November 6, 2009 anielle Sutton W CERTIFICATE OF SERVICE I hereby certify that true and correct copies of the foregoing DECLARATION OF BADRIAH NORDSTROM, DECLARATION OF JEFF PATTERSON, and DECLARATION OF JOE SCHLESSER are on this day being served on counsel of record by e-mail and first-class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 BLUMBERG LAW GROUP, LLP Dated: October 30, 2009 anielle Sutton F LEU r3 r TARY 2009 NOV 0 Plsl 12: 10 r ? i Gr5 CERTIFICATE OF SERVICE Steven S Wevodau v Leisher Insurance Solutions Group. Inc. Cumberland County Case No. 08-3925 I hereby certify that a true and correct copy of the foregoing PRODUCTION OF DOCUMENTS PERTAINING TO PAYROLL INFORMATION is on this day being served on counsel of record by e-mail and first-class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 BLUMBERG LAW GROUP, LLP Dated: November 6, 2009 Wanielle Sutton CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRODUCTION OF DOCUMENTS PERTAINING TO PAYROLL INFORMATION is on this day being served on counsel of record by e-mail and first-class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 BLUMBERG LAW GROUP, LLP r Dated: October 30, 2009 Danielle Sutton FILED ',;r OF THE PPS - NOTARY 2009 NOY 10 Pli 12: I 0 STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-3925 CIVIL ,y LEISHER INSURANC E' SOLUTIONS GROUP, INC., ?- Defendant IN RE: CIVIL NONJURY TRIAL BEFORE HESS, P.J. d FINDINGS AND VERDICT Following trial without a jury, we make the following general findings. Although the plaintiff's claim was originally against a company known as Potomac Group West (PGW), it has filed the same claim against Leisher Insurance Solutions Group, Inc. (LISG), alleging that LISG is the successor in interest to PGW. The first phase of the trial involved the issue of whether or not certain conditions precedent had been established which would entitle the plaintiff to relief. We have found that they were. In a second phase of this trial, which involves the matter now pending before the court, we address the issue of whether or not LISG is liable to the plaintiff on the theory of successor liability. At the end of our recent hearing, we made various tentative factual findings which we now confirm and formally adopt. It is true that LISG purchased the office equipment of PGW. It is also true that most of the employees of PGW went to work for LISG. Neither of these factors, in and of themselves, however, establish successor liability. In fact, we agree with the defendant that the criteria for successor liability have not been established in this case. We do not belief that LISG was formed so as to defraud creditors. We observe that its insurance business is different from that engaged in by PGW. We do not believe that the transactions occurring between PGW and LISG constituted a consolidation or merger and are unable to conclude that LISG expressly or implicitly agreed to assume the obligations of PGW. VERDICT AND NOW, this 11. day of January, 2010, following trial without a jury, on the question of whether or not LISG is a successor-in-interest to PGW and is subject to successor liability, we find in favor of the defendant. BY THE COURT, ? Sean E. Summers, Esquire For the Plaintiff ./Thomas Weber, Esquire .,--Itonald H. Blumberg, Esquire For the Defendant rlm (2.aPt es VI 4/!Ib "-=ry? rn.C*3 t \ A 2010 JMN.4 O A N 10: G Ronald H. Blumberg, Esq. CA State Bar No. 130557 BLUMBERG LAW GROUP, LLP 243 N. Highway 101, Ste. 18 Solana Beach, CA 92075 Telephone: 858.509.0600 Facsimile: 858.509.0699 C1IVY STEVEN S. WEVODAU, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LEISHER INSURANCE SOLUTIONS GROUP, INC. NO. 08-3925 Defendant NOTICE OF CHANGE OF FIRM ADDRESS TO THE COURT, EACH PARTY, AND ALL COUNSEL OF RECORD: PLEASE TAKE NOTICE that Blumberg Law Group, LLP, attorneys of record in this action and admitted Pro Hac Vice, have changed its firm location. The new firm location and contact information are as follows: 243 N. Highway 101, Ste. 18, Solana Beach, CA 92075; Telephone: (858) 509-0600; Facsimile: (858) 509-0699; E-mail: rhb(d)-blumberglawgroup.com. Respectfully submitted, Dated: January 15, 2010 BLUMBERG LAW GROUP, LLP Ronald H. BI/aberg, Esq. (Admitted o Hac Vice) California State Bar No. 130557 243 N. Highway 101, Ste. 18 Solana Beach, Ca 92075 Telephone: 85 8.509.0600 Facsimile: 85 8.509.0699 1 CERTIFICATE OF SERVICE I hereby certify that I am this date serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Sean E. Summers, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Dated: January 15, 201C Attorney for Defendant, Steven Wevodau j ilk, Danielle Sutton Q FILEC-Ol'iCE -TAIRY 2019FEB 16 FM 2: B9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No.08-3925 Civil "berm v. LEISHF_.R INSURANCE SOLUTIONS GROUP, INC. Defendant NOTICE OF APPEAL NOTICE is hereby given that pursuant to Pa.R.A.P. 341(a), Plaintiff, Steven S. Wevodau, appeals to the Superior Court of Pennsylvania the Findings and Verdict dated January 19, 2010, and filed on January 19, 2010, a copy of which is attached. This Verdict has been entered in the docket as evidenced by the attached certified copy of the docket entries. BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 g'its ,W?d- Attorneys for Plaintiff ?? ss'sa8 REQUEST FOR TRANSCRIPT The complete transcripts of the proceedings in this matter have been lodged of record. February I v 2010 BARLEY SNYDER LLC By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Notice of Appeal upon the persons and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: Service by first class mail, addressed as follows: The Hon. Kevin A. Hess, Judge - 717-240-6296 President Judge Court of Common Pleas of Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Ronald H. Blumberg, Esq. - Pro Hac Vice - 858-509-0600 Blumberg law Group, LLP 243 N. Highway 101, Ste. 18 Solana Beach, CA 92075 Attorney for Defendant Thomas J. Weber, Esq. - 717-234-4161 Goldberg Katzman, P.C. 320 market Street PO Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant Melissa H. Calvanelli - 717-240-6200 District Court Administrator Courthouse One Courthouse Square Carlisle, PA 17013-3387 February 6 I,-, 2010 BARLEY SNYDER By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: CIVIL NONJURY TRIAL BEFORE HESS, P.J. FINDINGS AND VERDICT Following trial without a jury, we make the following general findings. Although the plaintiff's claim was originally against a company known as Potomac Group West (PGW), it has filed the same claim against Leisher Insurance Solutions Group, Inc. (LISG), alleging that LISG is the successor in interest to PGW. The first phase of the trial involved the issue of whether or not certain conditions precedent had been established which would entitle the plaintiff to relief. We have found that they were. In a second phase of this trial, which involves the matter now pending before the court, we address the issue of whether or not LISG is liable to the plaintiff on the theory of successor liability. At the end of our recent hearing, we made various tentative factual findings which we now confirm and formally adopt. It is true that LISG purchased the office equipment of PGW. It is also true that most of the employees of PGW went to work for LISG. Neither of these factors, in and of themselves, however, establish successor liability. In fact, we agree with the defendant that the criteria for successor liability have not been established in this case. We do not belief that LISG was formed so as to defraud creditors. We observe that its insurance business is different from that engaged in by PGW. We do not believe that the transactions occurring between PGW and LISG constituted a consolidation or merger and are unable to conclude that LISG expressly or implicitly agreed to assume the obligations of PGW. VERDICT AND NOW, this J'7^ day of January, 2010, following trial without a jury, on the question of whether or not LISG is a successor-in-interest to PGW and is subject to successor liability, we find in favor of the defendant. BY THE COURT, Sean E. Summers, Esquire For the Plaintiff Thomas Weber, Esquire Ronald H. Blumberg, Esquire For the Defendant rlm .?,.5"?j ?• 4 / Y7GfY fYil f?4,n??k??i•? 01t`) Set may Iwo. I?YS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-05925 WEVODAU STEVEN S (vs) LEISHER INSURANCE SOLUTIONS G Reference No... Filed......... 7/02/2008 Case Type...... COMPLAINT Time. ... 3.03 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info WEVODAU STEVEN S PLAINTIFF SUMMERS SEAN E 21 BRIDGEPORT DRIVE MECHANICSBURG PA 17050 TRUE COPY FROM RECORD LEISHER SOLUTIONS DEFENDANT ?7?tmonyWhereof, t here unto ' 4 3 7 S HIGHWAY 101 SUITE 212 OW 8" cfsald Court at Cerpdi0 pr, SOLANA BEACH CA 9 2 0 7 5 T f? at-, p _ Judgment Index Amount Date Desc LEISHER INSURANCE SOLUTIONS 9/10/2008 FAILURE TO ANSWER GROUP INC ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - - - - - - - - - 7/02/2008 COMPLAINT FILED BY SEAN E SUMMERS ESQ FOR PLFF ------------------------------------------------------------------- 8/06/2008 DEFENDANT'S PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - BY J RONALDO LEGASPI ATTY FOR DEFT ------------------------------------------------------------------- 8/19/2008 MOTION TO ADMIT RONALD H BLUMBERG TO PRACTICE PRO HAC VICE - BY J RONALDO LEGASAPI ATTY FOR DEFT ------------------------------------------------------------------- 8/19/2008 AFFIDAVIT OF SERVICE - COMPLAINT - BY SEAN E SUMMERS ATTY FOR PLFF -----------------------------------------7------------------------- 9/08/2008 MOTION TO ADMIT RONALD H BLUMBERG TO PRACTICE PRO HAC VICE - BY J RONALDO LEGASPI ATTY FOR DEFT ------------------------------------------------------------------- 9/11/2008 ORDER - DATED SEPTEMBER 11, 2008 - UPON CONSIDERATION OF THE MOTION TO ADMIT RONALD H BLUMBERG TO PRACTICE PRO HAC VICE SAID MOTION IS GRANTED EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- 9/10/2008 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED BY SEAN E SUMMERS ESQ ------------------------------------------------------------------- 9/10/2008 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 9/10/2008 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) BY SEAN E SUMMERS ESQ ------------------------------------------------------------------- 11/26/2008 PRAECIPE FOR LISTING CASE FOR TRIAL - BY SEAN E SUMMERS ATTY FOR PLFF ------------------------------------------------------------------- 12/03/2008 ORDER - 12/2/08 IN RE: NON JURY TRIAL - A PRETRIAL CONFERENCE IN THE ABOVE CAPTIONED MATTER IS SET FOR 1 23/09 AT 9:30 AM IN CHAMBERS OF THE UNDERSIGNED - BY KEVIN HESS J - COPIES MAILED 12/3/08 ------------------------------------------------------------------- 12/17/2008 ORDER - 12/17/08 IN RE: NONJURY TRIAL - THE PRETRIAL CONFERENCE IN THE ABOVE CAPTIONED MATTER SET FOR 1 23 09 IS CONTINUED TO 2/6/09 AT 9:30 AM IN CHAMBERS OF THE UNDERSIGNED - BY KEVIN A HESS J - COPIES MAILED 12/17/08 ------------------------------------------------------------------- 12/31/2008 PETITION TO OPEN DEFAULT JUDGMENT - BY RONALD H BLUMBERG ATTY FOR DEFT LEISHER INSURANCE SOLUTIONS GROUP INC ------------------------------------------------------------------- 1/12/2009 ORDER - 1/12/09 IN RE: PETITION TO OPEN DEFAULT JUDGMENT - THE buo tam i +? ns;:n 4T lM RYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2008-03925 WEVODAU STEVEN S (vs) LEISHER INSURANCE SOLUTIONS G Reference No... Filed......... 7/02/2008 Case Tyyppe..... . COMPLAINT Time. ... 3.03 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: SAID ORDER IS GRANTED - BY KEVIN A HESS J - COPIES MAILED 1/12/09 ------------------------------------------------------------------- 2/09/2009 ORDER - 2/9/09 IN RE: PRETRIAL CONFERENCE - A NONJURY TRIAL IN THIS COPIESASE IS SET FOR 5/14/09 AT 9:30 AM - BY KEVIN A HESS J - MAILED 2/9/09 ------------------------------------------------------------------- 4/09/2009 PRAECIPE TO LIST FOR ORAL ARGUMENT PURSUANT TO LOCAL RULE 1028C - MOTION FOR SUMMARY JUDGMENT - BY THOMAS J WEBER ATTY FOR DEFT ------------------------------------------------------------------- 4/09/2009 MOTION FOR SUMMARY JUDGMENT OF LEISHER INSURANCE SOLUTIONS GROUP INC - BY ROAND H BLUMBERG ATTY FOR DEFT ------------------------------------------------------------------- 4/09/2009 PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS - BY J RONALDO LEGASPI ATTY FOR DEFT ------------------------------------------------------------------- 4/20/2009 ANSWER OF DEFT LEISHER INSURANCE SOLUTIONS GROUP INC TO PLFFS COMPLAINT - BY RONALD H BLUMBERG ESQ AND THOMAS J WEBER ESQ ATTYS FOR DEFT ------------------------------------------------------------------- 4/29/2009 ORDER - 4/2909 IN RE: MOTION OF DEFT LEISHER INSURANCE SOLUTIONS GROUP INC FO SUMMARY JUDGMENT - MOTION IS DENIED - BY KEVIN A HESS J - COPIES MAILED 4/29/09 ------------------------------------------------------------------- 6/01/2009 ORDER - 5/29/09 IN RE: INTERIM ORDER ON ISSUE OF WHETHER CONDITIONS PRECEDENT WERE SATISFIED - BY KEVIN A HESS J - COPIES MAILED 6/1/09 ------------------------------------------------------------------- 6/24/2009 ORDER - 6/24/09 IN RE: CIVIL NONJURY TRIAL - THE TRIAL IS CONTINUED TO 8127109 AT 1:30 PM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 6/24/09 ------------------------------------------------------------------- 7/14/2009 TRANSCRIPT OF PROCEEDINGS - BY KEVIN A HESS J ------------------------------------------------------------------- 9/11/2009 TRANSCRIPT OF PROCEEDINGS - BY KEVIN A HESS J ------------------------------------------------------------------- 9/14/2009 ORDER - 9/109 IN RE: CIVIL NON JURY TRIAL - CONTINUED TRIAL IS SCHEDULED FOR 11 17 09 AT 1:00 PM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY EV N A HESS J - COPIES MAILED 9/14/09 ------------------------------------------------------------------- 10/09/2009 PLAINTIFF'S MOTION FOR SANCTIONS PURSUANT TO PA RCP 4019 FOR FAILURE TO PRODUCE DOCUMENTS - BY SEAN E SUMMERS ATTY FOR PLFF 2 ------------------------------------------------------------------- 10/15/2009 ORDER - 10/15/09 IN RE: PLFFS MOTION TO COMPEL DISCOVERY - A RULE IS ISSUED ON THE DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE WITHIN MOTION TO COMPEL OUGHT NOT TO BE GRANTED - THIS RULE RETURNABLE 10 DAYS AFTER SERVICE - BY KEVIN A HESS J - COPIES MAILED 10/15/09 ------------------------------------------------------------------- 10/26/2009 DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SANCTIONS - BY RONALD H BLUMBERG ATTY ------------------------------------------------------------------- 11/10/2009 CERTIFICATE OF SERVICE - DECLARATION OF BADRIAH NORDSTROM DECLARATION OF JEFF PATTERSON ADN DECLARATION OF JOE SCHLESSER RE: PRODUCTION OF DOCUMENTS PERTAINING TO PAYROLL INFORMATION - UPON SEAN E SUMMERS ESQ - BY DANIELLE SUTTON ------------------------------------------------------------------- 11/10/2009 CERTIFICATE OF SERVICE - PRODUCTION OF DOCUMENTS PERTAINING TO PAYROLL INFORMATION UPON SEAN E SUMMERS ESQ - BY DANIELLE SUTTON ------------------------------------------------------------------- 11/30/2009 TRANSCRIPT FILED - BY KEVIN A HESS J ------------------------------------------------------------------- 1/19/2010 FINDINGS AND VERDICT - 1/19/10 IN RE: CIVIL NONJURY TRIAL - FOLLOWING A TRIAL WITHOUT A JURY ON THE QUESTION OF WHETHER OR NOT LISG IS A SUCCESSOR IN INTEREST TO PGW AND IS SUBJECT TO SUCCESSOR LIABILITY WE FIND IN FAVOR OF THE DEFT - BY KEVIN A HESS PJ - COPIES MAILED 1116110 ------------------------------------------------------------------- 1/20/2010 NOTICE OF CHANGE OF FIRM ADDRESS - BY RONALD H BLUMBERG ATTY FOR RYS511 Cumberland County Prothonotary's Office Civil Case Print 2008-03925 WEVODAU STEVEN S (vs) LEISHER INSURANCE SOLUTIONS G Reference No... Filed........: Case Tyyppe..... . COMPLAINT Time. .... . Judgment......: .00 Execution Date Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: Page 7/02/2008 3:03 0/00/0000 0/00/0000 3 DEFT - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be Bal Pmts/Ad End Bal COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 JDMT/DEFAULT 14.00 14.00 .00 PRAECIPE TRIAL 25.00 25.00 .00 VIDEO FEE 450.00 450.00 .00 VIDEO FEE 600.00 600.00 .00 VIDEO FEE 300.00 -- 300.00 ---------- --- .00 --------- ------------ 1467.50 1467.50 .00 ***************************************************** *************************** * End of Case Information ***************************************************** *************************** STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-3925 CIVIL LEISHER INSURANCE SOLUTIONS GROUP, INC., Defendant IN RE: APPEAL OF PLAINTIFF ORDER AND NOW, February 18, 2010, in accordance with Rule 1925 of the Rules of Appellate Procedure, the Plaintiff having filed a notice of appeal, the appellant is directed to file of record, within twenty-one (21) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925(b) shall be deemed waived. BY THE COURT, ?Sean E. Summers, Esquire For the Plaintiff mas J. Weber, Esquire o ald H. Blumberg, squire For the Defendant :rlm Kevin. Hess, P. J. l C) r*13 two W 46uperior Court of VeunspCbauia Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary February 23, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Steven S. Wevodau Appellant V. Leisher Insurance Solutions Group, Inc. 292 MDA 2010 Trial Court Docket No: 08-3925 Dear : Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court, state. pa. us t» 7,Y -Ti M Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /aas Enclosure 9:53 A.M. Appeal Docket Sheet Docket Number: 292 MDA 2010 Page 1 of 2 February 23, 2010 Steven S. Wevodau Appellant V. Leisher Insurance Solutions Group, Inc. CAPTION Superior Court of Pennsylvania Secure CASE INFORMATION Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: February 19, 2010 Journal Number: Case Category: Civil CONSOLIDATED CASES Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received COUNSEL INFORMATION Appellant We Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: vodau, Steven S. Appoint Counsel Status: Represented Summers, Sean Eric 092141 Barley Snyder, L.L.C. 100 E Market St PO Box 15012 Civil Action Law RELATED CASES Next Event Due Date: March 9, 2010 Next Event Due Date: April 19, 2010 York, PA 17405-7012 Phone No: (717) 846-8888 Fax No: (717) 843-8492 Receive Mail: Yes Receive EMail: No Appellee Leisher Insurance Solutions Group, Inc. Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Weber, Thomas J. Bar No: 058853 Law Firm: Goldberg Katzman, P.C. Address: 320 Market St PO Box 1268 Harrisburg, PA 17108-1268 Phone No: (717) 2344161 Fax No: (717) 234-6808 Receive Mail: Yes Receive EMail: No Awaiting Original Record Case Type(s) SCHEDULED EVENT 9:53 A.M. Appeal Docket Sheet Docket Number: 292 MDA 2010 Page 2 of 2 February 23, 2010 Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 02/19/2010 Notice of Appeal 73.50 02/22/2010 2010-SPR-M-000145 73.50 AGENCYITRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: January 19, 2010 Judicial District: Documents Received: February 19, 2010 Notice of Appeal Filed Order Type: Order Entered OTN(s): Lower Ct Docket No(s):08-3925 Lower Ct Judge(s): Hess, Kevin A. President Judge Superior Court of Pennsylvania Secure FEE INFORMATION Cumberland County Civil Division 09 February 16, 2010 ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: None BRIEFING SCHEDULE DOCKET ENTRY None Filed Date Docket Entry / Representing Participant Type Filed By February 19, 2010 Notice of Appeal Docketed Appellant Wevodau, Steven S. February 23, 2010 Docketing Statement Exited (Civil) Middle District Filing Office 6uperior (Court of fleuus;p1bania Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary March 3, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Wevodau, S. v. Leisher Ins. Sol. 292 M DA 2010 Trial Court Docket No: 08-3925 Dear : C'? ev a rr7r;': A A_ 'v w w , received from the Superior Court of Pennsylvania, Middle District Office, the certificate of discontinuance of the court, in the above entitled case. NO RECORD HAS BEEN RECEIVED IN SUPERIOR COURT AT THIS TIME. Return to: Superior Court of Pennsylvania Office of the Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 717-772-1294 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us /aas Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ------ ------ -------------------------- ------ -- --------- - AOPC 1014 Rev.03/03/2010 6upprtor (Court of fieuuop1bania Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary March 3, 2010 NOTICE OF DISCONTINUANCE OF ACTION RE: Wevodau, S. v. Leisher Ins. Sol. 292 MDA 2010 Appeal of: Steven S. Wevodau Initiating Document: Notice of Appeal Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 08-3925 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior,court.state.pa.us The above-captioned matter has been marked "Discontinued" with this court. Certification is being sent to the lower court. Attorney Name Participant Name Participant Type Sean Eric Summers, Esq. Steven S. Wevodau Appellant Thomas J. Weber, Esq. Leisher Insurance Solutions Group, Inc. Appellee J • IN THE SUPERIOR COURT OF PENNSYLVANIA SITTING IN HARRISBURG V. No. 292 MDA 2010 Steven S. Wevodau Leisher Insurance Solutions Appeal from the OE 1/19/10 :Court of Common Pleas :for the county of Cumberland :No. 08-3925 March 3, 2010 - The above appeal is hereby withdrawn and discontinued by order of: March 3, 2010 - DISCONTINUED Sean E. Summers Esa Attorney for Appellant TRUE COPY FROM RECORD IN TESTIMONY WHEREOF, I have hereunto set my hand and the seal of said Court, at Harrisburg, thls 3rd day of March, 2010. Deputy Prothonotary