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HomeMy WebLinkAbout08-5096 Eric J. Wiener, 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 ejw(ibejw-law.com LAW OFFICES OF IN THE CUMBERLAND COUNTY COURT OF ERIC J. WIENER, LLC : COMMON PLEAS Plaintiff No. 0 g . S? y(p ROBERT M. MUMMA II, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 V Eric J. Wiener, 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 ejwkejw-law.com LAW OFFICES OF ERIC J. WIENER, LLC V. ROBERT M. MUMMA II, IN THE CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff No. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Law Offices of Eric J. Wiener LLC and relates as follows: 1. The Law Offices of Eric J. Wiener LLC is a Limited Liability Corporation maintaining an office and place of business at 2515 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 2. Robert M. Mumma, II is an adult individual who maintains an office and place of business at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania. 1 3. Upon request of Defendant, Plaintiff performed work for Defendant individually and for Corporations either owned or solely controlled by Defendant. 4. There remains an outstanding balance due of $18,418.46 a statement of account with all attachments is marked Exhibit "A" and incorporated herein by reference thereto. 5. Plaintiff had several meetings and conversations with Defendant regarding the outstanding balance due and Defendant agreed to pay the balance, however, was to check his records to make sure there weren't any other payments made against the outstanding balance of $18,418.46. 6. Plaintiff had made numerous telephone calls to Defendant requesting payment which was promised and also sent a-mails and letters regarding the outstanding balance due. 7. Defendant has not objected to or raised any defenses to the amount due and owing of $18,418.46. 8. An account has been stated against Defendant for the sum of $18,418.46 based on Defendants failure to raise any objections as to outstanding balance due. WHEREFORE, Plaintiff respectfully request judgment be entered against Defendant and in favor of Plaintiff in the amount of $18,418.46. Respectfully submitted, LAW O S ERIC J. WIENER LLC eDate: D W By: Eric J. Wiener, Esquire ID #18046 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 (717) 909-9009 FAX ejwgejw-law.com 2 VERIFICATION I, Eric J. Wiener, hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa.C.S. § 4909 relating to unsworn falsification to authorities. Date: Z Z- /to Eric J. Wiener, Esquire Supreme Court I.D. # 18046 Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 (717) 909-9009 Fax Revised 8/1/2008 ROBERT BARTON'S WORK 7/27/07 Payment in the amount of $26,496.60 which was applied as follows: Invoice # Amount Amount applied to Bob Barton's work Invoice # 13 $16,834.47 $ 7,491.00 Invoice # 6 $10,524.17 $ 7,614.17 Invoice #17 $10,575.00 $ 8,010.00 Invoice #25 3,796.39 3,381.43 TOTAL $26,496.60 $26,496.60 11/5/07 Statement # 48 50 TOTAL Payment in the amount of $15,800.00 which was applied as follows: Amount $ 6,990.24 8,812.87 $15,803.11 WRITE-OFF $3.11 12/28/08 Payment in the amount of $15,909.43 which was applied as follows: Statement # Amount 90 $ 7,842.36 Mumma v. Dauphin Deposit 91 $ 900.00 Mumma v. Boswell 92 $ 315.00 High Spec Florida 107 $ 1,764.80 High Spec Florida 108 $ 2,882.27 Mumma v. Boswell 109 $ 2,205.00 Mumma v. Dauphin Deposit TOTAL $15,909.43 OUTSTANDING STATEMENTS FOR DECEMBER 2008 Statement #125 $ 3,792.02 High Spec Florida Statement 4126 $ 315.00 High Spec PA Statement #127 $ 1,260.00 Mumma v. Dauphin Deposit Statement #128 $ 315.00 Pennsy Supply Statement #129 1,350.00 Mumma v. Sonnenschein TOTAL $ 7,032.02 OUTSTANDING STATEMENTS FOR JANUARY 2008 Statement #142 $ 405.00 High Spec Florida Statement #143 $ 4,590.00 Mumma v. Dauphin Deposit Statement #163 $ 1,035.00 McDermitt Concrete v. Macri Concrete TOTAL $ 6,030.00 OUTSTANDING STATEMENTS FOR FEBRUARY 2008 Statement #223 $ 2,010.02 Statement #224 $ 2,025.00 Statement #225 $ 320.97 Mumma v. Boswell Mumma v. Dauphin Deposit High Spec Florida TOTAL $ 4,355.99 TOTAL DUE 2 $17,418.01 ADDITIONAL AMOUNT DUE FOR LEGAL SERVICES Statement #259 1,000.45 High Spec Florida TOTAL $ 1,000.45 $17,418.01 + 1,000.45 TOTAL AMOUNT PAST DUE $18,418.46 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 125 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees Hours Rate Amount 12/3/2007 rwb Research re Movants' right to hearing on Post 5.00 90.00 450.00 Trial Motion. Prepare Amended Motion for Relief. 12/4/2007 rwb Research re standing as jurisdictional 5.50 90.00 495.00 prerequisite in Pennsylvania and Florida. Prepare Amended Motion for Relief. 12/5/2007 rwb Research re in rem jurisdiction. Prepare 5.50 90.00 495.00 Amended Motion for Relief. 12/6/2007 rwb Research re Florida statute mandating 5.50 90.00 495.00 deference to Pennsylvania law. Prepare Amended Motion for Relief. 12/7/2007 rwb Prepare Memorandum re Amended Motion for 6.00 90.00 540.00 Relief. Complete and circulate Amended Motion for Relief. 12/10/2007 rwb Telephone conferences with Mr. Mumma. 4.50 90.00 405.00 Research re requirement of continuous ownership of stock. Revise Amended Motion for Relief. 12/14/2007 rwb Conference with Mr. Mumma. Telephone 4.50 90.00 405.00 conference with and Memorandum to Kevin Doty, Esquire. 12/28/2007 rwb Prepare for and conference with Mr. Mumma. 5.50 90.00 495.00 Correspondence with Mr. Doty. Research re discovery in motion practice. Sub-total Fees: 3,780.00 Rate Summary Robert W. Barton 42.00 hours at $ 90.00/hr 3,780.00 Total hours: 42.00 Expenses Postage 1.82 LAW OFFICE OF ERIC J. WIENER Page: 2 Matter ID 1001-005 Stmt No: 125 January 8, 2008 Photocopies 10.20 Subtotal Expenses: 12.02 Payments 12/20/2007 Payment Payment for Statement No. 92 and 107 2,079.80 Sub-total Payments: 2,079.80 Total Current Billing: 3,7 2.02 Previous Balance Due: 2,079.80 Total Payments: 2,079.80 Total Now Due: 3,792.02 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 126 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1033-001: High-Spec PA Professional Fees Hours Rate Amount 12/20/2007 rwb Review Briefs filed in Superior Court. 3.50 90.00 315.00 Sub-total Fees: 315.00 Rats Summary Robert W. Barton 3.50 hours at $ 90.00/hr 315.00 Total hours: 3.50 Payments 11/5/2007 Write-off 3.11 11/5/2007 Payment Payment for Statement 50 and 48 15,800.00 Sub-total Payments: 15,803.11 Total Current Billing: - 15.00 Previous Balance Due: 15,803.11 Total Payments: 15,803.11 Total Now Due: 315.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 127 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v. Dauphin Deposit Professional Fees Hours Rate Amount 12/11/2007 rwb Research re attorneys' fiduciary duties. 5.00 90.00 450.00 Research re attorney/client privilege and waiver. 12/12/2007 rwb Research re bailments. Research re contents 4.50 90.00 405.00 of briefs. 12/13/2007 rwb Research re amendment of pleadings. 4.50 90.00 405.00 Research re recusal. Sub-tota l Fees: 1,260.00 Rate Summary Robert W. Barton 14.00 hours at $ 90.00/hr 1,260.00 Total hours: 14.00 Payments 12/20/2007 Payment Payment for Statement No. 90 and 109 10,047.36 Sub-total Payments: 10,047.76- Total Current Billing: - 1,' Previous Balance Due: 10,047.36 Total Payments: 10,047.36 Total Now Due: 1,260.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 128 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-007: Pennsy Supply Professional Fees Hours Rate Amount 12/31/2007 rwb Research re compulsory counterclaims in 3.50 90.00 315.00 Federal Court. Sub-total Fees: 315.00 Rate Summary Robert W. Barton 3.50 hours at $ 90.00/hr 315.00 Total hours: 3.50 Total Current Billing: 315.00 Previous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 315.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 129 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-008: Mumma v. Sonnenschein Professional Fees 12/17/2007 rwb Research re diversity jurisdiction in Federal Courts. Research revenue. 12/18/2007 rwb Research re choice of laws and procedure in diversity cases. 12/19/2007 rwb Research re breach of fiduciary duty as cause of action. Hours Rate Amount 5.00 90.00 450.00 5.00 90.00 450.00 5.00 90.00 450.00 Sub-total Fees: 1,350.00 Rate Summary Robert W. Barton 15.00 hours at $ 90.00/hr 1,350.00 Total hours: 15.00 Total Current Billing: 1,350.00 Previous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 1,350.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of January 31, 2008 Statement No. 142 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees 1/2/2008 rwb Telephone and email conferences with Mr. Mumma and Mr. Doty. 1/16/2008 rwb Review correspondence with Mr. Doty and Mr Bowdish. Research re entry of appearance. Telephone conference with Mr. Doty. Hours Rate Amount 1.50 90.00 135.00 3.00 90.00 270.00 Sub-total Fees: 405.00 Rate Summary Robert W. Barton 4.50 hours at $ 90.00/hr 405.00 Total hours: 4.50 Total Current Billing: 405.00 Previous Balance Due: 3,792.02 Total Payments: 0.00 Total Now Due: 4,197.02 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of January 31, 2008 Statement No. 143 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v. Dauphin Deposit Professional Fees 1/2/2008 rwb Review Post Trial Motions. Research re bailment. Research re Philadelphia precedent. 1/3/2008 rwb Conference with Mr. Mumma and Mr. Gault. Review Court Order. Research re format of Brief. 1/4/2008 rwb Review memo from Mr. Gault. Research re law of the case. 1/7/2008 rwb Research re contract interpretation. 1/22/2008 rwb Review transcript of trial. Research re contracts. 1/23/2008 rwb Research re privileged communications between Attorney and client. Research re Code of Professional Conduct. Review transcript. 1/28/2008 rwb Research re bailments. Research re attomey/client privileges. 1/29/2008 rwb Prepare Brief re Post Trial Motions. 1/30/2008 rwb Research re recusal of trial judge. Prepare Brief. 1/31/2008 rwb Prepare Brief. Hours Rate Amount 5.50 90.00 495.00 5.00 90.00 450.00 4.50 90.00 405.00 5.50 90.00 495.00 5.00 90.00 450.00 5.00 90.00 450.00 5.00 90.00 450.00 5.00 90.00 450.00 5.50 90.00 495.00 5.00 90.00 450.00 Sub-total Fees: 4,590.00 Rate Summary Robert W. Barton 51.00hours at $ 90.00/hr 4,590.00 Total hours: 51.00 Total Current Billing: 4,590.5-0 Previous Balance Due: 1,260.00 Total Payments: 0.00 Total Now Due: 5,850.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of January 31, 2008 Statement No. 163 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-009: McDermitt Concrete v. Macri Concrete Professional Fees 1/3/2008 rwb Conference with Mr. Mumma. 1/8/2008 rwb Review pleadings in Adams County. Research re UCC and offer and acceptance per UCC. Communications with Mr. Mumma and Mr. Hewitt. 1/10/2008 rwb Prepare and conference with Bill Ladane and Mike Smith. Hours Rate Amount 1.00 90.00 90.00 5.50 90.00 495.00 5.00 90.00 450.00 Sub-total Fees: 1,035.00 Rate Summary Robert W. Barton 11.50 hours at $ 90.00/hr 1,035.00 Total hours: 11.50 Total Current Billing: 1,035.00 Previous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 1,035.00 Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of May 31, 2008 Statement No. 223 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-006: Mumma v. Boswell Professional Fees Hours Rate Amount 2/1/2008 rwb Research and prepare Petition for Allowance 4.00 90.00 360.00 of Appeal. 2/4/2008 rwb Research and prepare Petition for Allowance 5.00 90.00 450.00 of Appeal. 2/6/2008 rwb Research and prepare petition for allowance of 4.50 90.00 405.00 appeal. 2/8/2008 rwb Research and prepare Petition for Allowance 4.00 90.00 360.00 of Appeal. 2/11/2008 rwb Research and prepare petition for allowance of 4.00 90.00 360.00 appeal. Sub-total Fees: 1,935.00 Rate Summary Robert W. Barton 21.50 hours at $ 90.00/hr 1,935.00 Total hours: 21.50 Expenses 2/11/2008 Payments 12/20/2007 Postage Photocopies Filing fees. 10.42 4.60 60.00 Sub-total Expenses: 75.02 Payment Payment for Statement No. 91 and 108 3,782.27 Sub-total Payments: 3,782.27 Law Offices of Eric J. Wiener, LLC Page: 2 Matter ID 1001-006 Stmt No: 223 June 3, 2008 Total Current Billing: 2,010.02 Previous Balance Due: 3,782.27 Total Payments: 3,782.27 Total Now Due: 2,010.02 V Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of May 31, 2008 Statement No. 224 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v. Dauphin Deposit Professional Fees 2/5/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/7/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/12/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/14/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/15/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. Hours Rate Amount 6.00 90.00 540.00 4.50 90.00 405.00 4.00 90.00 360.00 4.00 90.00 360.00 4.00 90.00 360.00 Sub-total Fees: 2,025.00 Rate Summary Robert W. Barton 22.50hours at $ 90.00/hr 2,025.00 Total hours: 22.50 Total Current Billing: 2,025.00 Previous Balance Due: 5,850.00 Total Payments: 0.00 Total Now Due: 7,875.00 t Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of March 1, 2008 Statement No. 225 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees Hours Rate 2/19/2008 rwb Research re proper parties. 3.50 90.00 Sub-total Fees: Rate Summary Robert W. Barton 3.50 hours at $ 90.00/hr 315.00 Total hours: 3.50 Expenses Amount 315.00 315.00 Postage 1.57 Photocopies 4.40 Sub-total Expenses: 5.97 12/20/2007 Payment Payment for Statement No. 92 and 107 2,079.80 Sub-total Payments: 2,079.80 Total Current Billing: - 3207 Previous Balance Due: 6,276.82 Total Payments: 2,079.80 Total Now Due: 4,517.99 Payments Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of July 31, 2008 Statement No. 259 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees 3/21/2008 ASB Researched Florida Court records; Type email to EJW. 3/21/2008 EJW Calls to Florida check dockets, e-mails. 4/8/2008 EJW Discussioin with RMM and Doty re conf call. 4/9/2008 EJW Discussion with Jim on case history and e-mails on conference call. 4/10/2008 EJW Conference call with Jm, Kevin re charging lien. 5/29/2008 EJW Review Klett charging lien status of motion. 5/29/2008 EJW Met with rmm re case aver 2.5 hours, 1 hour re a/. r- nc. Expenses Payments 12/20/2007 Hours Rate Amount 0.60 60.00 36.00 0.40 200.00 80.00 0.60 200.00 120.00 0.50 200.00 100.00 1.00 200.00 200.00 0.50 200.00 100.00 1.50 200.00 300.00 Sub-total Fees: 936.00 Rate Summary Arnold S. Bituin 0.60 hours at $ 60.00/hr Eric J. Wiener 4.50 hours at $ 200.00/hr Total hours: 5.10 Photocopies Postage 36.00 900.00 52.40 12.05 Sub-total Expenses: 64.45 Payment Payment for Statement No. 92 and 107 2,079.80 Sub-total Payments: 2,079.80 Law Offices of Eric J. Wiener, LLC Matter ID 1001-005 Page: 2 Stmt No: 259 August 1, 2008 Total Current Billing: 1,000.45 Previous Balance Due: 6,597.79 Total Payments: 2,079.80 Total Now Due: 5,518.44 O A t0 1 O O O A co 1 O O O O 1 O 8 O O 1 O 8 O O 1 O O O O 1 O con O O 1 O 0 O O I O 0 O O 1 O 8 O Cl 1 O 8 O A ( T O O O A 10 O O O W T O O O W ? O O O W O O O W 7 O O O W O J - J J J N N O O ?_ N O O V N N O O A N O O V N O O A N O O V O\ N O O N O O V O2 N O O N O O V N O O N O O V Cn N O O V v+ N O O V Oo 13 O O V N N O O V OD N O O V O O 0 0 O J co CD co c0 co CT CA (n A A co C O 0 0 V N O O O O O w w 0 w 0 w 0 0 0 Cl) 0 cn 0 to 0 ? w n 0 d m m v ? a? n? S " M S N S CD S CD S m (D S N S (D N = S N 3 3 3 3 3 6 n CD n CD CD (D CD n =h (D n CD fD .3. 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CT O CV71 O O O O N C) O o ? CD 0 0 0 0 0 0 0 O O O CA -I O N 0 O O O N O o p O O O O O O O O O 0 0 0 0 o O o o O O o 0 O Co O O O O O O O O O O 3 Y1 N 0 v d A Z O v m 0 d d 11 d 3 CIO m A H 01 CL 0 0 0 sr N O M 0 0 7 m m H -I d x 3 VJ N m a) m n s vo II N 7. O O ? O O v O O O O O O 0 0 0 to O O 0 0 O 0 0 0 rn O W W 0 0 0 A 0 O O J Qr m ? 00 O+ K ? O <D h H E ca 0 cm 3 -n <D CD CK F- G : ? 0 N a `Tl N3 Cn rT i_ } c.rt SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-05096 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LAW OFFICES OF ERIC J WIENER VS MUMMA ROBERT M II R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT MUMMA ROBERT M II but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE the within named DEFENDANT 840 MARKET STREET NOT FOUND , as to , MUMMA ROBERT M II LEMOYNE, PA 17043 DEFENDANT WAS NOT FOUND AT GIVEN ADDRESS. THERE WERE NO BUSINESSES VISIBLE AT REAR OF BUILDING. Sheriff's Costs: Docketing 18.00 Service 42.00 Not Found 5.00 Surcharge 10.00 Postage 9-,/ .59 /n/U),IOF 75.59 So answerer =? R. omas Kline Sheriff of Cumberland County ERIC WIENER 09/24/2008 Sworn and Subscribed to before me this day of A. D. Eric J. Wiener, 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 ejwgejw-law.com LAW OFFICES OF ERIC J. WIENER, LLC V. ROBERT M. MUMMA II, IN THE CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff No. 08-5096 Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complaint in the above matter. 0// 0Q V Date: spectfully submitte , Eric J. Wiener, Esquire i4 W 0 ?J G r cxy }a SHERIFF'S RETURN - REGULAR CASE NO: 2008-05096 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LAW OFFICES OF ERIC J WIENER VS MUMMA ROBERT M II NOAH CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MUMMA ROBERT M II the DEFENDANT , at 0009:55 HOURS, on the 23rd day of October , 2008 at 840 MARKET STREET LEMOYNE, PA 17043 by handing to JAMES G GAULT ADULT IN CHARGE/ATTORNEY a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Postage 4.2 s /I7 8 Sworn and Subscibed to before me this of So Answers: 18.00 14.00 .00 10.00 R. Thomas Kline .42 42.42 10/24/2008 ERIC WIENER By: day Deputy Sheriff A.D. LAW OFFICES OF ERIC J. WIENER, LLC Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08 - 5096 CIVIL TERM ROBERT M. MUMMA, II ; Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO COMPLAINT TO: THE LAW OFFICES OF ERIC J. WIENER, LLC AND ERIC J. WIENER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, by and through his counsel, James G. Gault, Esquire, who files the following Preliminary Objections to the Plaintiffs Complaint pursuant to Pa.R.C.P. 1028(a)(1) through (4) stating as follows: 1. On or about August 25, 2008, Plaintiff filed a complaint against the Defendant seeking the total sum of $18,418.46 with respect to allegedly unpaid amounts due for legal services and/or attorney fees. 2. Attached to said complaint is Exhibit A which is comprised of the following: (i) a one (1) page summary of various invoices regarding "Robert Barton's Work"; (ii) a two (2) page summary of "Outstanding Statements" for December 2008 (sic), January 2008, February 2008, and "Additional Amount Due for Legal Services"; (iii) thirteen (13) pages of various statements for "Professional Fees" attributed to "Robert W. Barton", said statements bearing the letterhead of Plaintiff's business; (iv) two (2) pages of a statement for "Professional Fees" attributed to Eric J. Wiener and Arnold S. Bituin, said statement bearing the letterhead of Plaintiff's business; and, (v) a two (2) page document designated as Plaintiff's "Ledger Copy of Listing with Fee/Cost Breakdown." 3. The Plaintiff is identified in Paragraph 1 of the complaint as "The Law Offices of Eric J. Weiner LLC", a limited liability corporation with an office and place of business at 2515 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 4. The complaint was signed by Eric J. Weiner, Esquire, listed at the same mailing address as the Plaintiff. 5. Paragraph 3 of the complaint avers that the Plaintiff performed the legal services in question, did so at the Defendant's request, and did work for Defendant individually and for his corporations. 6. Although referenced in its Exhibit A, the complaint does not identify either Robert W. Barton or Arnold S. Bituin, nor does it indicate whether Robert W. Barton or Arnold S. Bituin are or were licensed Pennsylvania attorneys who were employed at the Plaintiff. 7. Paragraph 5 of the complaint references "several meetings and conversations with Defendant" without further identifying the times, dates, and locations thereof. 8. Paragraph 6 of the complaint avers that Plaintiff had made `numerous telephone calls to Defendant', and also sent emails and letters without further identify the times, dates, and locations thereof. 9. Although referenced in its Paragraph 6, the complaint does not have attached thereto nor incorporated therein any copies of any emails or letters sent by Plaintiff to Defendant. 10. Paragraph 7 of the complaint avers that Defendant has not objected to or raised any defenses to the amount; however, Defendant did object to the amount allegedly due and owing, and Defendant did raise objections, to wit, that Plaintiff s legal services performed by Eric J. Wiener in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendant economic harm and/or setbacks or losses in several matters of litigation. I 1. Paragraph 8 of the complaint avers that an account has been stated against the Defendant for the sum of $18,418.46 based upon an alleged failure to object; however, the complaint does not aver that Defendant ever acquiesced, assented, and/or agreed to the account rendered, and, accordingly, for this reason and others, the complaint fails to plead properly any action based upon the hoary theory of recovery upon an account stated. 12. Although seeking payment of attorneys fees for legal services performed by Plaintiff, the complaint does not plead nor aver the existence of any attorney-client relationship, whether same may involve those individuals at the Plaintiff identified as Eric J. Wiener, Robert W. Barton, or Arnold S. Bituin 13. Although seeking payment of attorneys fees for legal services performed by Plaintiff, the complaint does not plead nor aver the existence of any Fee Agreement entered into before or within a reasonable time after the commencement of any attorney-client relationship. 14. Although seeking payment of attorneys fees for legal services performed by Plaintiff, the complaint does not have attached thereto a copy of any Fee Agreement entered into before or within a reasonable time after the commencement of any attorney-client relationship. 15. Pennsylvania's Rules of Professional Conduct governing attorney-client relationships provide that the basis or rate of the fee shall be in writing. I. MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO Pa.R.C.P. 1028(x)(1). 16. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 17. Although it was filed in Cumberland County, Pennsylvania, the complaint contains no averments respecting any county in which any alleged cause of action arose and/or any county where any transaction or occurrence took place and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(1). H. MOTION TO DISMISS FOR LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT PURSUANT TO Pa.R.C.P.1028(a)(1). 18. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 19. The Defendant is a resident of the State of Florida such that the complaint fails to plead the requisite basis for jurisdiction in Cumberland County, Pennsylvania, therefore same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(1). III. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING AS TO AN ACCOUNT STATED THEORY OF RECOVERY PURSUANT TO Pa.R.C.P.1028(a)(3). 20. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 21. The complaint avers that the amounts are due under an account stated theory of recovery; however, the complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 22. The complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendant ever acquiesced, assented, or agreed to the account rendered; (ii) That there was ever a running account and/or a pre-existing account; (iii) That there was ever a promise to pay on the alleged account; (iv) That there was ever any acceptance of the account rendered or any account; (v) That the services performed relative to the alleged account were satisfactory to the Defendant; (vi) That the services performed relative to the alleged account were competent and adequate under the appropriate standards governing the nature of the work performed; and/or, (vii) That the account stated is not subject to impeachment for mistake or fraud. 23. To the extent the complaint purports to seek recovery of the alleged total amount due under an account stated theory of recovery, yet fails to aver with specificity the appropriate elements of such a theory or action, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). IV. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4). 24. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 25. The complaint seeks payment of a specified total amount under an account stated theory of recovery without asserting the necessary and requisite facts which would support the application of such a theory of recovery in this matter, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 26. The complaint fails to set forth an appropriate theory of law upon which its demand for payment must be granted, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 27. The complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the attorney-client relationship which is governed by the Rules of Professional Conduct, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). V. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW PURSUANT TO Pa.R.C.P.1028(a)(2). 28. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 29. To the extent the complaint is considered to be in the nature of a suit on a written contract, the complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing signed by the Defendant, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 30. The complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the attorney-client relationship which is governed by the Rules of Professional Conduct, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 31. To the extent the complaint is considered to be for the recovery of attorney fees allegedly due and payable for the performance of legal services, the complaint does not have attached thereto a copy of any Fee Agreement and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). WHEREFORE, the Defendant respectfully requests that this Honorable Court GRANT the instant Preliminary Objections and dismiss the instant complaint. I Z, 2wk DATE Respectfully submitted, e G. Gault, Esquire Pa preme Ct. ID #: 49687 84014arket Street Suite 153 Lemoyne, PA 17043 (717) 612-9720 jggault@comcast.net VERIFICATION I, Robert M. Mumma, II, the Defendant, do hereby verify that any statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. *obeztvumms I CERTIFICATE OF SERVICE 1Z I hereby certify that on November, 2008, I served a true and correct copy of the foregoing Preliminary Objections to Complaint by U.S. Mail, first class, postage prepaid, addressed to: Eric J. Wiener, Esquire Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 G. Gault, for Defendant ° C N ?: G1 4 may. .r,4 ck LAW OFFICES OF ERIC J. WIENER, LLC Plaintiff V. ROBERT M. MUMMA, II Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08 - 5096 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter my appearance on behalf of the Defendant in the above-captioned matter. DATE 4 Jam G. Gault, Esq ' Pa. reme Ct. ID #: 49687 840 Market Street Suite 153 Lemoyne, PA 17043 (717) 612-9720 jggault@comcast.net rn ? f ?? Eric J. Wiener, 2515 North Front Stfeet Harrisburg, PA 17110 (717) 909-9999 ejw@ejw-law.com LAW OFFICES OF IN THE COURT OF COMMON PLEAS OF ERIC J. WIENER, LLC CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5096 CIVIL TERM V. ROBERT M. MUMMA II, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Eric J. Wiener, 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 ejw@ejw-law.com LAW OFFICES OF ERIC J. WIENER, LLC V. ROBERT M. MUMMA II, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5096 CIVIL TERM Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW COMES Plaintiff, Law Offices of Eric J. Wiener LLC and relates as follows: 1. The Law Offices of Eric J. Wiener LLC is a Limited Liability Corporation maintaining an office and place of business at 2515 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 2. Robert M. Mumma, II is an adult individual who maintains an office and place of business at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania. 3. Upon request of Defendant, Plaintiff performed work for Defendant individually and for Corporations either owned or solely controlled by Defendant. Plaintiff entered into a Fee Agreement with Defendant. A copy of the Fee Agreement as well as supporting a-mails as to the charges for Robert W. Barton are marked Exhibit "A" attached hereto and incorporated herein. 4. There remains an outstanding balance due of $18,418.46 a statement of account with all attachments is marked Exhibit "B" and incorporated herein by reference thereto. 5. Robert W. Barton at the time was acting as a paralegal for Plaintiff and Arnold S. Bituin as a law clerk. 6. Plaintiff had several meetings and conversations with Defendant regarding the outstanding balance due and Defendant agreed to pay the balance, however, was to check his records to make sure there weren't any other payments made against the outstanding balance of $18,418.46. The last face to face meeting occurred at Defendant's office on 6/9/2008. 7. Defendant did resolve an outstanding bill in the amount of $15,364.50 (this was for the services of Eric J. Wiener ESQ. only) with the reduced payment of $10,000.00 on June 9, 2008 and resolved any questions of services by Eric J. Wiener, Esquire personally. 8. Plaintiff had made numerous telephone calls to Defendant requesting payment which was promised and also sent a-mails and letters regarding the outstanding balance due. See e-mails narked Exhibit "C" attached hereto and incorporated herein. 9. Defendant has not objected to or raised any defenses to the amount due and owing of $18,418.46. 10. An account has been stated based on Defendant's failure to raise any objections on the outstanding balance and which he repeatedly promised to pay never questioning the basis for the charges at any time. 11. Worked performed and the basis for the billing was performed at both Plaintiff's place of business in Dauphin County, as well as substantial work and meetings at Defendant's 2 place of business in Cumberland County and Defendant maintains an office and place of business located in Cumberland County. 12. In all conversations with Defendant he indicated no disagreement as to the amount owed, only as to whether or not another payment had been made on such account. He promised to provide copies of any additional checks and never did so. Therefore, an account has been stated against Defendant for the sum of $18,418.46 based on Defendant's failure to raise any objections as to outstanding balance due. WHEREFORE, Plaintiff respectfully requests judgment be entered against Defendant and in favor of Plaintiff in the amount of $18,418.46. Respectfully submitted, LAW OFFICES F ERIC J. WIENER LLC Date: By: Eric J. Wiener, E quire ID #18046 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 (717) 909-9009 FAX ejw@ejw-law.com 3 VERIFICATION I, Eric J. Wiener, hereby verify that the statements made in the foregoing Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa.C.S. § 4909 relating to unsworn falsification to authorities. Date: Eric J. Wiener, Esquire LAW OFFICES OF ERIC J. WIENER 2407 Park Drive Harrisburg, Ph 171 10 71..657.7701 n 6 5: 6 .5 Q ewiencriawq-tcomcast.net Mr. Robert M. Mumma II c/o Mann Realty 840 Market Street, Suite 164 Lemoyne, PA 17043 Re: Fee Arrangement Dear Bob: E October 16, 2006 We are pleased to have the opportunity to represent you in this matter and any other matters that you may refer to us in the future. Under the Rules of Professional Conduct in Pennsylvania, attorneys are required to confirm to their clients in writing the basis on which their fees are charged. Basis of Billing Our firm will bill you on a regular basis for legal services and for direct expenses paid by us on your behalf. Our fees for legal services are based on hourly rates and the amount of time spent by the attorneys and paralegals of our firm on your legal matters. The minimum time unit recorded is 1/10th of an hour, and minimum intervals of 2/10ths of an hour are charged for phone calls and 3/10ths of an hour for all correspondence. Voice mail messages will be treated as phone calls and a-mails will be treated as correspondence or phone calls, as the case may be, subject to the same minimum time charges. The rates for Eric J. Wiener currently are $200.00 per hour for out of court matters, and $250.00 per hour in court. For the remainder of this year and possibly going forward, I will maintain a rate for you for my services at the rate of $150.00 per hour. The hourly rates for a paralegal and/or assistant in my office is $50.00 per hour. There will not be a charge for stenographic services in the ordinary course of business. For research performed by Robert Barton, the hourly rate shall be $75.00 per hour, in or out of court. The direct expenses that may be paid by us on your behalf for which you will be billed include, but are not limited to, such items as filing fees, transcripts of court and other proceedings, subpoenas, toll phone calls, fax transmissions, computer-assisted legal research, photocopying, and other similar items. Only the direct expenses associated with your case will be billed. Payment of Bill It is very important to us that our bills be paid within thirty (30) days of their receipt. If you have any questions about the type of service rendered or the amount of the statement, please notify, us promptly in writing. Unless you do so within twenty-five (25) days of the date a bill is issued, we shall regard the bill as final and undisputed. In all cases, we reserve the right to stop performing services if our bills are not paid • within sixty (60) days of receipt. Interest at the rate of 1.5% per month will be added to unpaid balances after sixty (60) days following the date of the bill. Retainer Before we can begin work on your matter, we will require an advance retainer of Ten Thousand Dollars ($10,000.00), which we will place in our trust account. I will charge any bills to that account and when the amount in trust falls below Two Thousand Five Hundred Dollars ($2,500.00), 1 will bill you to replenish the advance retainer. As to the services of Robert Barton, he will be a full-time employee of the Law Firm of Eric J. Wiener after November 1, and bills will be rendered from this office. Any amounts billed or unbilled for services of Robert Barton prior to November I should be directly paid to him. Arbitration of Disputes Any attempt by the firm to collect fees and/or any and all disputes concerning fees shall be decided by common-law arbitration pursuant to 42 Pa.C.S. § 7341 et seq. Arbitration shall be conducted by way of an informal conference before a panel of three attorneys from the Fee Dispute Committee of the Dauphin County Bar Association as selected by the chair of that committee. The parties hereto agree that the decision of a majority of the members of the panel shall be final and binding and may not be appealed to any court. Acceptance We will make every effort to assure that your matter is completed expeditiously and to your satisfaction. We hope this letter adequately sets forth the basis of our charges for fees and costs. If you have any questions, please call. If there are no questions,.please sign the enclosed copy of this letter and return it to us, together with the fee and cost retainer of Ten Thousand Dollars ($10,000.00) signifying your receipt of, and concurrence with, the fee and costs agreement. We will then be able to proceed further with representation of your legal matters. Thank you for giving us the opportunity to represent you. Very truly yours, LAW OF ER J. WIENER AND/OR T 7 LAW FIRM O ERIC J. WIENER, LLC By: Eric 3 ener 1 hereby acknowledge receipt of a copy ofthis letter. Date! • January 30, 2007 Robert M. Mumma II c/o Mann Realty 840 Market Street, Suite 164 Lemoyne, PA 17043 Dear Bob, • I understand you will be retaining new counsel for most of your currently pending legal matters, and I am writing to propose the terms for continuing our attorney/client relationship with respect to two matters we are currently handling. Of course, I am referring to the High-Spec litigation and the appeal in Mumma v. Boswell, Tintner, et al. As you know, Judge Guido has scheduled oral argument on February 16, 2007, at 1:30 p.m. regarding the Motion for Reconsideration, and he has also scheduled a hearing at that time regarding the Stay Order he has entered. Of course, Bob Barton and I have already prepared several briefs with respect to the issues involved in the Motion for Reconsideration, and we would be very pleased to work with you in preparation for the oral argument. Furthermore, we prepared and filed the Motion for the Stay that was granted by Judge Guido, so we are quite familiar with the issues there as well. We have already billed you for our services with respect to those Motions and it would seem to make sense, from a financial and strategic standpoint, for us to continue our representation on those Motions. As to the litigation in Mumma v. Boswell, Tintner et al., we had prepared and filed the Petition to Strike and/or Open the Judgments of non pros that were entered against you when you were proceeding pro se, so we are familiar with those issues as well. Of course, those Petitions were denied and we have filed appeals from those denials, and we are of the opinion that an excellent argument can be presented in support of our appeals. We informed you last week that the Briefs and Reproduced Records in support of those appeals must be filed by February 27, 2007, and we are prepared to meet that deadline. Again, for financial and strategic reasons, it seems that our continued representation of you might be in your best interests. At the risk of sounding immodest, I submit that we have had some success in these cases, particularly High-Spec. Judge Guido did initially enter summary judgment against you for the reasons that had been briefed by Vincent Carissimi and Justin Weber when they represented you, and we were able to convince Judge Guido that he should reconsider the entry of that judgment. And the granting of that Motion for Reconsideration, while not unprecedented, is certainly unusual. Furthermore, I really believe that the Stay ordered by the Judge was astonishing, particularly since he did not require the posting of any security. I have some optimism about the appeal in the Mumma v. Boswell case as well. I would never guarantee a specific result in any appeal, especially an appeal from an adverse result in the lower court. But I think the Defendants committed fundamental procedural error in their entries of the judgments against you, so the Superior Court might reverse the lower court and strike those judgments. If so, you might be able to pursue those claims with a clean slate. If you agree to this proposal, we will bill you at the rate of $150 per hour for my time and $90 an hour for Bob Barton's time. Those billings will be sent to you bi-monthly and I will request payment in full within 15 days. Of course, I will also bill you for all expenses incurred, such as printing. You may accept this proposal by sending me an e-mail that specifically so states. Thank you for you consideration of this. Sincerely, /s/ Eric J. Wiener, Esquire . ? ? Page 1 of 1 Robert Barton From: "Robert Mumma" <rmmtwo@mac.com> To: "Robert Barton" <robertwbarton@msn.com> Sent: Wednesday, January 31, 2007 2:26 PM Subject: Re: Mumma v. Boswell; High-Spec Robert and Eric, I agree with your proposal e-mailed to me. 4/4/2007 Revised 8/1/2008 ROBERT BARTON'S WORK 7/27/07 Payment in the amount of $26,496.60 which was applied as follows: Invoice # Amount Invoice #13 $16,834.47 Invoice # 6 $10,524.17 Invoice #17 $10,575.00 Invoice #25 $ 3,796.39 Amount applied to Bob Barton's work $ 7,491.00 $ 7,614.17 $ 8,010.00 $ 3,381.43 TOTAL $26,496.60 $26,496.60 11/5/07 Payment in the amount of $15,800.00 which was applied as follows: Statement # 48 50 TOTAL 12/28/08 Statement # 90 91 92 107 108 109 Amount $ 6,990.24 $ 8,812.87 $15,803.11 WRITE-OFF $3.11 Payment in the amount of $15,909.43 which was applied as follows: Amount $ 7,842.36 Mumma v. Dauphin Deposit $ 900.00 Mumma v. Boswell $ 315.00 High Spec Florida $ 1,764.80 High Spec Florida $ 2,882.27 Mumma v. Boswell $ 2,205.00 Mumma v. Dauphin Deposit TOTAL $15,909.43 OUTSTANDING STATEMENTS FOR DECEMBER 2008 Statement #125 $ 3,792.02 High Spec Florida Statement # 126 $ 315.00 High Spec PA Statement #127 $ 1,260.00 Mumma v. Dauphin Deposit Statement #128 $ 315.00 Pennsy Supply Statement #129 $ 1,350.00 Mumma v. Sonnenschein TOTAL $ 7,032.02 OUTSTANDING STATEMENTS FOR JANUARY 2008 Statement #142 $ 405.00 High Spec Florida Statement #143 $ 4,590.00 Mumma v. Dauphin Deposit Statement #163 $ 1,035.00 McDermitt Concrete v. Macri Concrete TOTAL $ 6,030.00 OUTSTANDING STATEMENTS FOR FEBRUARY 2008 Statement #223 $ 2,010.02 Mumma v. Boswell Statement #224 $ 2,025.00 Mumma v. Dauphin Deposit Statement #225 $ 320.97 High Spec Florida TOTAL $ 4,355.99 TOTAL DUE $17,418.01 2 ADDITIONAL AMOUNT DUE FOR LEGAL SERVICES Statement #259 $ 1,000.45 High Spec Florida TOTAL $ 1,000.45 $17,418.01 + 1,000.45 TOTAL AMOUNT PAST DUE $18,418.46 LAW OFFICE OF ERIC J. WIENER " 2407 PARK DRNE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 125 Robert M. Mumma II Robert M. Mumma 11 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees Hours Rate Amount 12/3/2007 rwb Research re Movants' right to hearing on Post 5.00 90.00 450.00 Trial Motion. Prepare Amended Motion for Relief. 12/4/2007 rwb Research re standing as jurisdictional 5.50 90.00 495.00 prerequisite in Pennsylvania and Florida. Prepare Amended Motion for Relief. 1215/2007 rwb Research re in rem jurisdiction. Prepare 5.50 90.00 495.00 Amended Motion for Relief. 12/6/2007 rwb Research re Florida statute mandating 5.50 90.00 495.00 deference to Pennsylvania law. Prepare Amended Motion for Relief. 12/7/2007 rwb Prepare Memorandum re Amended Motion for 6.00 90.00 540.00 Relief. Complete and circulate Amended Motion for Relief. 12110/2007 rwb Telephone conferences with Mr. Mumma. 4.50 90.00 405.00 Research re requirement of continuous ownership of stock. Revise Amended Motion for Relief. 12/14/2007 rwb Conference with Mr. Mumma. Telephone 4.50 90.00 405.00 conference with and Memorandum to Kevin Doty, Esquire. 12/28/2007 rwb Prepare for and conference with Mr. Mumma. 5.50 90.00 495.00 Correspondence with Mr. Doty. Research re discovery in motion practice. Sub-total Fees: 3,780.00 Rate Summary Robert W. Barton 42.00hours at $ 90.001hr 3,780.00 Total hours: 42.00 Expenses Postage 1.82 LAW OFFICE OF ERIC J. WIENER Matter ID 1001-005 Page: 2 Stmt No: 125 Photocopies January 8, 2008 10.20 Sub-total Expenses: 12.02 Payments 12/20/2007 Payment Payment for Statement No. 92 and 107 2.079.80 Sub-total Payments: -2,079.80 Total Current Billing: -S,-792-02 Previous Balance Due: 2,079.80 Total Payments: 2,079.80 Total NOW Due: 3,792.02 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG; PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 126 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1033-001: High-Spec PA Professional Fees 12/20/2007 rwb Review Briefs filed in Superior Court. Hours Rate Amount 3.50 90.00 315.00 Sub-total Fees: 315.00 Rate Summary Robert W. Barton 3.50 hours at $ 90.00/hr 315.00 Total hours: 3.50 Payments 11/5/2007 Write-off 11/5/2007 Payment Payment for Statement 50 and 48 3.11 15, 800.00 Sub-total Payments: 15 803.11 Total Current Billing: 315.00 Previous Balance Due: 15,803.11 Total Payments: 15,803.11 Total Now Due: 315.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 127 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v Dauphin Deposit Professional Fees 12/11/2007 rwb Research re attomeys' fidu i Hours Rate Amount c ary duties. Research re attorney/client privilege and 5.00 90.00 450.00 waiver. 12/12/2007 rwb Research re bailments. Research re content s of briefs. 4.50 90.00 405.00 12/13/2007 rwb Research re amendment of pleadings . Research re recusai. 4.50 90.00 405.00 Sub-total Fees: 1,260.00 Rate Summary Robert W. Barton 14.00 hours at $ Total ho 90, 00/hr 1,260.00 urs: 14.00 Payments 12/20/2007 Payment Payment for Statement N o. 90 and 109 10,047.36 Sub-total Payments: 10,047.36 Total Current Billing: 1,260.00 PrevioUs Balance Due: 10, 047.36 Total Payments: 10,047.36 Total Now Due: 1,260.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 128 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-007: Pennsy Supply Professional Fees 12/31/2007 rwb Hours Rate Amount Research re compulsory counterclaims in Federal Court. 3.50 90.00 315.00 Sub-total Fees: 315.00 Rate Summary Robert W. Barton 3.50 hours at $ 90.00/hr 315.00 Total hours: 3.50 Total Current Billing: 315.00 Preyous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 315.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of December 31, 2007 Statement No. 129 Robert M. Mumma II Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-008: Mumma v Sonnenschein Professional Fees 12/17/2007 rwb Research re diversity jurisdicti Hours Rate Amount on in Federal Courts. Research re venue. 5.00 90.00 450.00 12/18/2007 rwb Research re choice of law s and procedure in diversity cases. 5.00 90.00 450.00 12/19/2007 rwb Research re breach of fidu i c ary duty as cause of action. 5.00 90.00 450.00 Sub-total Fees: 1, 350.00 Rate Summary Robert W. Barton 15.00hours at $ 90.00/hr 1,350.00 Total hours; 15.00 Total Current Billing: 1,350.00 Previous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 1,350.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of January 31, 2008 Statement No. 142 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees 1/2/2008 rwb Telephone and email conferences with Mr. Mumma and Mr. Doty. 1/16/2008 rwb Review correspondence with Mr. Doty and Mr Bowdish. Research re entry of appearance. Telephone conference with Mr. Doty. Hours Rate Amount 1.50 90.00 135.00 3.00 90.00 270.00 Sub-total Fees: 405.00 Rate Summary W. Barton 4.50 hours at $ 90.00/hr 405.00 Total hours: 4.50 Total Current Billing: 405.00 Previous Balance Due: 3,792.02 Total Payments: 0.00 Total Now Due: 4,197.02 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Statement as of January 31, 2008 Statement No. 143 Robert M. Mumma 11 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v Dauphin Deposit Professional Fees 1/2/2008 rwb Review Post Trial Motions. Research re bailment. Research re Philadelphia precedent. 1/3/2008 rwb Conference with Mr. Mumma and Mr. Gault. Review Court Order. Research re format of Brief. 1/4/2008 rwb Review memo from Mr. Gault. Research re law of the case. 1/7/2008 rwb Research re contract interpretation. 1/22/2008 rwb Review transcript of trial. Research re contracts. 1/23/2008 rwb Research re privileged communications between Attorney and client. Research re Code of Professional Conduct. Review transcript. 1128/2008 rwb Research re bailments. Research re attorney/client privileges. 1/29/2008 rwb Prepare Brief re Post Trial Motions. 1130/2008 rwb Research re recusal of trial judge. Prepare Brief. 1/31/2008 rwb Prepare Brief. Hours Rate Amount 5.50 90.00 495.00 5.00 90.00 450.00 4.50 90.00 405.00 5.50 90.00 495.00 5.00 90.00 450.00 5.00 90.00 450.00 5.00 90.00 450.00 5.00 90.00 450.00 5.50 90.00 495.00 5.00 90.00 450.00 Sub-total Fees: 4,590.00 Rate Summary Robert W. Barton 51.00hours at $ 90.001hr 4,590.00 Total hours: 51.00 Total Current Billing: 4,590.00 Previous Balance Due: 1,260.00 Total Payments: 0.00 Total Now Due: 5,850.00 LAW OFFICE OF ERIC J. WIENER 2407 PARK DRIVE HARRISBURG, PA. 17110 (717) 657-7701 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 Statement as of January 31, 2008 Statement No. 163 1001-009: McDermitt Concrete v. Macd Concrete Professional Fees 1/3/2008 rwb Conference with Mr. Mumma. Hours Rate Amount 1/8/2008 rwb Review Pleadings in Adams County. 1.00 90.00 90.00 re UCC and offer and acceptance Per CC, rch 5.50 90.00 495 Communications with Mr. Mumma and Mr. .00 Hewitt. 1/10/2008 rwb Prepare and conference with Bill Ladane and Mike Smith. 5.00 90.00 450.00 Sub-total Fees: 7035.00 Robert W. Barton Rate Summary 11.50 hours at $ 90.00/hr 1,035.00 Total hours: 11.50 Total Current Billing: 1,035.0o Previous Balance Due: 0.00 Total Payments: 0.00 Total Now Due: 1,035.0o : Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of May 31, 2008 Statement No. 223 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-006: Mumma v Boswell Professional Fees 2/1/2008 rwb 2/4/2008 rwb 2/6/2008 rwb 2/8/2008 rwb 2/11/2008 rwb Research and Prepare Petition for Allowance of Appeal. Research and prepare Petition for Allowance of Appeal. Research and prepare petition for allowance of appeal. Research and Prepare Petition for Allowance of Appeal. Research and prepare petition for allowance of appeal. Rate Summary Robert W. Barton 21.50 hours at $ 90.00/hr Total hours: 21.50 Hours Rate Amount 4.00 90.00 360.00 5.00 90.00 450.00 4.50 90.00 405.00 4.00 90.00 360.00 4.00 90.00 360.00 Sub-total Fees: 1,935.00 1,935.00 Expenses 2/11/2008 Postage Photocopies Filing fees. 10.42 4.60 60.00 Sub-total Expenses: 75.02 Payments 1 2/2 012 0 0 7 Payment Payment for Statement No. 91 and 108 3,782.27 Sub-total Payments: 3 782 27 Law Offices of Eric J. Wiener, LLC Matter ID 1001-006 Page: 2 Stmt No: 223 June 3, 2008 Total Current Billing: 2,010.02 Pre%iOus Balance Due: 3,782.27 Total Payments: 3,782.27 Total Now Due: 2,010.02 Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of May 31, 2008 Statement No. 224 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1049-001: Mumma v Dauphin Deposit Professional Fees 2/5/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/7/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/12/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/14/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. 2/15/2008 rwb Prepare Brief in support of Motions for Post Trial Relief. Hours Rate Amount 6.00 90.00 540.00 4.50 90.00 405.00 4.00 90.00 360.00 4.00 90.00 360.00 4.00 90.00 360.00 Sub-total Fees: 2,025.00 Rate Summary Robert W. Barton 22.50hours at $ 90.001hr 2,025.00 Total hours: 22.50 Total Current Billing: 2,025.00 Previous Balance Due: 5,850.00 Total Payments: 0.00 Total Now Due: 7,875.00 Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of March 1, 2008 Statement No. 225 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005. High Spec Florida Professional Fees 2/19/2008 rwb Expenses Payments 12/20/2007 Research re Proper parties Hours Rate Amount . 3.50 90.00 315.00 Sub-total Fees: 3"15 0-0 Rate Summary W. Barton 3.50 hours at $ 90.001hr 315.00 Total hours: 3.50 Postage Photocopies 1.57 4.40 Sub-total Expenses: 5.97 Payment Payment for Statement No. 92 and 107 2,079.8o Sub-total Payments: 2,079.80 Total Current Billing: 320.97 PrebiOus Balance Due: 6,276.82 Total Payments: 2,079.80 Total Now Due: 4,517.99 Law Offices of Eric J. Wiener, LLC 2515 Front Street Harrisburg, PA 17110 (717) 909-9999 Statement as of July 31, 2008 Statement No. 259 Robert M. Mumma II 840 Market Street Suite 164 Lemoyne, Pa. 17043 1001-005: High Spec Florida Professional Fees 3/2112008 ASB Researched Florida Court records; Type email to EJW. 3/21/2008 EJW Calls to Florida check dockets, e-mails. 4/8/2008 EJW Discussioin with RMM and Doty re conf call. 4/9/2008 EJW Discussion with Jim on case history and e-mails on conference call. 4/10/2008 EJW Conference call with Jm, Kevin re charging lien. 5/29/2008 EJW Review Klett charging lien status of motion. 5/29/2008 EJW Met with rmm re case aver 2.5 hours, 1 hour re a/. r- nc. Expenses Payments Hours Rate Amount 0.60 60.00 36.00 0.40 200.00 80.00 0.60 200.00 120.00 0.50 200.00 100.00 1.00 200.00 200.00 0.50 200.00 100.00 1.50 200.00 300.00 Sub-total Fees: 936.00 Rate Summary Arnold S. Bituin 0.60 hours at $ 60.00/hr Eric J. Wiener 4.50hours at $ 200.00/hr Total hours: 5.10 Photocopies Postage 36.00 900.00 52.40 12.05 Sub-total Expenses: 64.45 12/20/2007 Payment Payment for Statement No. 92 and 107 2,079.80 Sub-total Payments: 2,079.80 Law Offices of Eric J. Wiener, LLC Matter ID 1001-005 Page: 2 Stmt No: 259 August 1, 2008 Total Current Billing: 1,000.45 Previous Balance Due: 6,597.79 Total Payments: 2,079.80 Total Now Due: 51518.44 x ° O O O ° Q C) CD C) C) 0 0 CD i O O O O O O O O O O ° p O O O O ° O O C O N .-- 00 CD O co p O O O O co C) CD Go 00 C14 CN C\i O O ch ?- '. 0 0 ° O rn ^ o 0 U) O O O O O O ° O O O O 'p O O O ° O O O O O O O O O O CD O° W O O O O d O O O O C lL Qj p o ° O O O p O ° O O O co 00 C=; ci V co 0 00 co cc! r- m m M p O° U-) LO ° 0 O J (fl O C !` ^ D) M M r U') LO ^ ^ N N J N N N N L Ln Cl) _ U O ° O ° O O 0 O 0 0 C) _d C) o m o 0 0 c; o° CD o° o CD C m m ° > LL o s O W ° O N N co r ; te- (O O CO c CD ~ O M 0 v O N N C) CD G O Co O (fl O 00 O 0 m O l M co C-l Go O O 4- GD co C ) N -7 co co co O O N N O v >% O 1 N N N N CL 9 O O U o 0 3 -0) co J N o° J 9 L c y = _ .a a Q pC) N U 03 2 U m c a? .. ° a 5 N E t 2! (D E . ED F- Cn m U C m U is N CU ?" m V) ar m a? 00 N E O U 05 m U U) m U :a N fA O CD co ao v U') LO ' U U E U ) ° 0) rn rn 0 0 0^ 0 co o o rn ao N r- a 0 0 0 O C5 CD C) CD O co \NN N N N N N O N Co N O O Co O° ^ O Q o O `? r a N N N N N Q O Q O p `- r r• a a a N N a U N If v m` `m °0 0 c 0 0 0 0 o cg Lo L, L, CO 0 O O p V' p o O o O' 9 0 C C) C) O O r a- ?-- O 0 O O 0 O° O C? C) O° O O O 0 a X p p ° ° o 0 0 0 ° op' opp' p° o° o° po 0 O O d w C O C14 p p ° 00 ON Op 0) v ° p O C! o O O O p co ?O ° O f? 0 LID CO) to ° O 0 0 00 C O p p Co a ° ° O O O p p ° ° O O O N Z d ° p 0 ° ° p O C LL 0 L6 O 0 0 co 00 (D a) LO J M M .-CN U) - N M 0) M M p N J ? W O ? w >• L co CO) 4) 4) CN a - U O O O O 0 N O t` lq _4) O 0 L6 ? O O Q? q p O 0 t0. L6 0 m M M N N M M M OM U- p m oc W O p ° Q O 0 p N O 0 0 C) C) C; C'4 LO C5 C) LO C> C) C:l V? 0 N O M N ct O O N N O O R co G? M V7 N N M O M ccn Cl) It, 00 O CL O O 0 U o C, 3 (D -cm to c w c 65 - 05 cg U) ?5 CO `- O tp to O N N = N a?- N N N N O) M N N N CN C%4 co 00 O O O O O O O ° co co co co co 00 O r N N N N CD O 0 0 O Co co m Go O p' Q M M M N N N N Q O `-' N a I - 00 a0 C O (O (O co •-- .-- N U (A N II Q Q Q Lo e- U N d ° 9 9 O c) C, 0 O ° O p CD C', CD Cl U) C O O O 0 p It C O O •-- .-- O O O O O 0 0 0 A ERIC ICE: OF J WIENERLLC 2515 North Front Street Harrisburg, PA 17110 717.909.9999 717.909.9009 Fax ejw@ejw-law.com www ejw-law com VL4 E-MAIL AND U.S. MAIL Robert M. Mumma, II C/O Mann Realty 840 Market Street, Suite 164 Lemoyne, PA 17043 Dear Bob: July 8, 2008 It has now been over a month since you promised to make payment on the enclosed bill. During our last meeting you claimed you were going to check to make sure there were no furth payments and I do not believe there were any payments in 2008. er I would appreciate your honoring your word and paying this outstanding bill right now. I would appreciate your contacting me regarding this as my pho calls have done unreturned. VXry truly EJW/cb Enclosure(s) Eric J. Wiener, Esquire C ,?,,, LAW OFFICES OF IN THE COURT OF COMMON PLEAS OF ERIC J. WIENER, LLC CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5096 CIVIL TERM V. ROBERT M. MUMMA 11, Defendant : CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am an employee of the Law Offices of Eric J. Wiener LLC, and that I served the foregoing Amended Complaint by placing a true and correct copy thereof in the United States Mail, first class postage prepaid, addressed as follows: James G. Gault, Esquire 840 Market Street Lemoyne, PA 17043 Date: 1 a 3 a> ?_.., f_« i ?_ (... .} LAW OFFICES OF ERIC J. WIENER, LLC Plaintiff V. ROBERT M. MUMMA, II Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08 - 5096 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT TO: THE LAW OFFICES OF ERIC J. WIENER, LLC AND ERIC J. WIENER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, by and through his counsel, James G. Gault, Esquire, who files the following Preliminary Objections to the Plaintiffs Amended Complaint pursuant to Pa.R.C.P. 1028(a)(1) through (4) stating as follows: 1. On or about August 25, 2008, Plaintiff filed a complaint against the Defendant seeking the total sum of $18,418.46 with respect to allegedly unpaid amounts due for legal services and/or attorney fees. 2. On November 12, 2008, the Defendant filed a set of Preliminary Objections which were served on the same date via first class mail. Said Preliminary Objections included a 20 day Notice to Plead. 3. The 20 day period for filing a responsive pleading expired on December 2, 2008. 4. On December 3, 2008, Plaintiff filed an untimely Amended Complaint. 5. Attached to said Amended Complaint is Exhibit A which includes a two (2) page letter dated October 16, 2006 sent by Plaintiff to Defendant, same being captioned "Re: Fee Arrangement", which requests the latter to sign and return same "together with a fee and cost retainer of $10, 000.00 signifying your receipt of, and concurrence with, the fee and costs agreement." Said letter attached to Exhibit A is unsigned by the Defendant. 6. Also attached to said Amended Complaint is Exhibit B which consists of a three (3) page summary regarding "Robert Barton's Work", thirteen (13) pages of various statements for "Professional Fees" attributed to "Robert W. Barton"(said statements bearing the letterhead of Plaintiff's business), and a two (2) page document designated as Plaintiff's "Ledger Copy of Listing with Fee/Cost Breakdown." 7. The Plaintiff is identified in Paragraph 1 of the Amended Complaint as "The Law Offices of Eric J. Weiner LLC", a limited liability corporation with an office and place of business at 2515 North Front Street, Harrisburg, Dauphin County, Pennsylvania. 8. The Amended Complaint was signed by Eric J. Weiner, Esquire, listed at the same mailing address as the Plaintiff. 9. Paragraph 3 of the Amended Complaint avers that the Plaintiff performed the legal services in question, did so at the Defendant's request, and did work for Defendant individually and for his corporations; said paragraph further references "charges for Robert W. Barton" as contained in Exhibit A. 10. Paragraph 4 of the Amended Complaint references an outstanding balance due as contained in Exhibit B; said paragraph does not aver with specificity whether the balance due is for work actually performed by Attorney Weiner. 11. Paragraph 5 of the Amended Complaint indicates that Robert W. Barton was acting "as a paralegal" and that Arnold S. Bituin was "a law clerk". Hence, said averment indicates Robert W. Barton and Arnold S. Bituin were not licensed Pennsylvania attorneys who were employed at the Plaintiff. By way of further response, it is believed that Robert W. Barton is a disbarred attorney who is therefore incapacitated from performing any legal services for fees chargeable by Plaintiff. 12. Paragraph 6 of the Amended Complaint references "several meetings and conversations with Defendant" without further identifying the times, dates, and locations thereof (other than one meeting on June 9, 2008). 13. Paragraph 7 of the Amended Complaint references that an outstanding bill was resolved on June 9, 2008 for services performed by Attorney Weiner, without further averring the relevance of same to any sums being demanded for "charges for Robert W. Barton" as is averred in Paragraph 3. 14. Paragraph 8 of the Amended Complaint avers that Plaintiff had made "numerous telephone calls to Defendant", and also sent emails and letters without further identify the times, dates, and locations thereof (other than the one letter dated July 8, 2008 sent by Plaintiff to Defendant as set forth in Exhibit Q. 15. Paragraph 9 of the Amended Complaint avers that Defendant has not objected to or raised any defenses to the amount; however, Defendant did object to the amount allegedly due and owing, and Defendant did raise objections, to wit, that Plaintiff s legal services performed by Eric J. Wiener in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendant economic harm and/or setbacks or losses in several matters of litigation. 16. Paragraph 10 of the Amended Complaint avers that an account has been stated against the Defendant for the sum of $18,418.46 based upon an alleged failure to object; however, the complaint does not aver that Defendant ever acquiesced, assented, and/or agreed to the account rendered, and, accordingly, for this reason and others, the complaint fails to plead properly any action based upon the hoary theory of recovery upon an account stated. 17. Although seeking payment of attorneys fees for legal services performed by Plaintiff, the Amended Complaint itself pleads that payment was made to Attorney Weiner which resolved any questions of payment for services rendered by him. See Paragraph 7. 18. The Amended Complaint does not plead nor aver the existence of any attorney-client relationship involving those individuals at the Plaintiff identified as Robert W. Barton or Arnold S. Bituin. 19. Pennsylvania's Rules of Professional Conduct governing attorney-client relationships provide that the basis or rate of the fee shall be in writing. 20. The Amended Complaint does not aver the existence of a binding, executed Fee Agreement signed by the Defendant. 1. MOTION TO DISMISS FOR LACK OF JURISDICTION OVER THE PERSON OF THE DEFENDANT PURSUANT TO Pa.R.C.P. 1028(a)(1). 21. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 22. The Defendant is a resident of the State of Florida such that the Amended Complaint fails to plead the requisite basis for jurisdiction in Cumberland County, Pennsylvania, therefore same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(1). II. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING AS TO AN ACCOUNT STATED THEORY OF RECOVERY PURSUANT TO Pa.R.C.P.1028(a)(3). 23. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 24. The Amended Complaint avers that the amounts are due under an account stated theory of recovery; however, the Amended Complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 25. The Amended Complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendant ever acquiesced, assented, or agreed to the account rendered; (ii) That there was ever a running account and/or a pre-existing account; (iii) That there was ever a promise to pay on the alleged account; (iv) That there was ever any acceptance of the account rendered or any account; (v) That the services performed relative to the alleged account were satisfactory to the Defendant; (vi) That the services performed relative to the alleged account were competent and adequate under the appropriate standards governing the nature of the work performed; and/or, (vii) That the account stated is not subject to impeachment for mistake or fraud. 26. To the extent the Amended Complaint purports to seek recovery of the alleged total amount due under an account stated theory of recovery, yet fails to aver with specificity the appropriate elements of such a theory or action, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). III. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4). 27. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 28. The Amended Complaint seeks payment of a specified total amount under an account stated theory of recovery without asserting the necessary and requisite facts which would support the application of such a theory of recovery in this matter, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 29. The Amended Complaint fails to set forth an appropriate theory of law upon which its demand for payment must be granted, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 30. The Amended Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the attorney-client relationship which is governed by the Rules of Professional Conduct, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). IV. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW PURSUANT TO Pa.R.C.P.1028(a)(2). 31. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 32. To the extent the Amended Complaint is considered to be in the nature of a suit on a written contract, the complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing signed by the Defendant, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 33. The Amended Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the attorney-client relationship which is governed by the Rules of Professional Conduct, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 34. To the extent the Amended Complaint is considered to be for the recovery of attorney fees allegedly due and payable for the performance of legal services, the Amended Complaint does not have attached thereto a copy of a binding, executed Fee Agreement and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). V. MOTION TO DISMISS FOR UNTIMELY FILING OF AMENDED COMPLAINT 35. The Defendant hereby incorporates all preceding paragraphs of his Preliminary Objections as though fully set forth at length herein. 36. The Amended Complaint was filed untimely as same was filed beyond the 20 day Notice to Plead affixed to the original Preliminary Objections. WHEREFORE, the Defendant respectfully requests that this Honorable Court GRANT the instant Preliminary Objections and dismiss the Amended Complaint with prejudice. DATE Respectfully submitted, J s G. Gault, Esq ' e Pa. Supreme Ct. ID #: 49687 840 Market Street Suite 153 Lemoyne, PA 17043 (717) 612-9720 jggault@comcast.net VERIFICATION I, Robert M. Mumma, II, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S.§4904 relating to unsworn falsification to authorities. -L_ Date: U ?J Robert M. Mumma, 11 CERTIFICATE OF SERVICE I hereby certify that on December 23, 2008, I served a true and correct copy of the foregoing Preliminary Objections to Amended Complaint by U.S. Mail, first class, postage prepaid, addressed to: Eric J. Wiener, Esquire Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 G. Gault, Esquire for Defendant -TI ,ii Eric J. Wiener, 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 ejw@ejw-law.com LAW OFFICES OF IN THE COURT OF COMMON PLEAS OF ERIC J. WIENER, LLC CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5096 CIVIL TERM V. ROBERT M. MUMMA II, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT AND NOW COMES Plaintiff, the Law Offices of Eric J. Wiener LLC and replies as follows: 1. Admitted. 2. Denied. The Preliminary Objections were received in Plaintiff's Office on November 13, 2008. 3. Denied. To the contrary, the 20 day period for filing responsive pleading expired on December 3, 2008. 4. Admitted in part and denied in part. It is admitted that an Amended Complaint was filed on December 3, 2008. It is denied that the Amended Complaint was untimely. 5. Admitted. However, it is further admitted that the retainer was paid which by its own language signified receipt and concurrence. It is admitted that the letter attached as Exhibit A was unsigned as while Defendant acquiesced he failed to return a signed copy of the letter. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. It is admitted that paragraph 3 of the Amended Complaint avers that Plaintiff performed work at Defendant's request. 10. Admitted in part and denied in part. It is admitted that the Amended Complaint in paragraph 4 alleges an outstanding balance of $18,418.46. Exhibit B shows a balance due Plaintiff and is detailed as to who the work was performed by and most of it not by Attorney Wiener. 11. The averments of paragraph 11 are admitted in part and denied in part. While it is admitted that Robert W. Barton was acting "as a paralegal" and that Arnold S. Bituin as "a law clerk" the remaining averments are conclusions of law and said averments are denied. It is, however, further averred based on information and belief that Robert W. Barton who is a disbarred attorney has and still is performing services for Defendant either directly or through Defendant's attorney of record. 12. Admitted. 13. Admitted. 2 14. Admitted. 15. Denied. It is denied that Defendant ever objected to the amount due and owing and the claim of inadequate and incompetent services of Eric J. Wiener, Esquire was not raised relative to this balance and in fact any claim for services rendered by Eric J. Wiener, Esquire were resolved prior to and separate from the amount due of $18,418.46. 16. Denied. Exhibit C avers that Defendant did acquiesce and assent to the outstanding balance. 17. Denied. The subject complaint is seeking payment for legal services performed by Plaintiff, not necessarily attorney's fees. The payment made to Attorney Wiener resolved a different past due bill which was resolved by payment of $10,000.00 by Defendant. 18. Admitted as in fact Robert W. Barton and Arnold S. Bituin were employees of the Law Offices of Eric J. Wiener LLC and whom Defendant did have an attorney-client relationship. 19. Admitted. 20. Denied. While the letter of engagement was not returned signed Defendant acquiesced and in fact paid a retainer pursuant to said letter agreement. 21. Plaintiff's answers to all preceding paragraphs in Preliminary Objections are incorporated herein. 22. The Defendant while being a resident of the State of Florida maintains an office and place of business in Cumberland County, Pennsylvania. The Amended Complaint further alleges that work performed and the basis for billing was performed both at 3 Plaintiff's place of business in Dauphin County, Pennsylvania as well as substantial work and meetings at Defendant's place of business in Cumberland County, Pennsylvania. The remaining averments of paragraph 22 are legal conclusions and misstatement of the law as well and are, therefore, denied. 23. Plaintiff's answers to all preceding paragraphs in Preliminary Objections are incorporated herein. 24. Denied. The averments of paragraph 24 are conclusions of law, however, it is averred that the Amended Complaint does plead requisite facts necessary to support both on an account stated and as a debt due stated or otherwise. The remaining averments are conclusions of law and are, therefore, denied. 25. Denied. It is denied that the Amended Complaint fails to plead the nature and extent of items (i) through (vii). 26. Denied. To the contrary all of those requisites are pled and are true and Defendant had acquiesced that the funds were due and owing other than his claim that he may have given one check to the office which Defendant never produced. 27. Plaintiff's answers to all preceding paragraphs in Preliminary Objections are incorporated herein. 28. Denied. It is averred that the necessary facts to support the account stated and debt unpaid are sufficiently plead. 29. The averments of paragraph 29 are conclusions of law and said averments are denied. 30. The averments of paragraph 30 are conclusions of law and are, therefore, denied. 31. Plaintiff's answers to all preceding paragraphs in Preliminary Objections are incorporated herein. 4 32. Denied. To the contrary, the elements of a contract are attached and plead properly. 33. Denied. It is denied that there is any disability for Plaintiff to recover from Defendant for unpaid legal services. 34. Denied as the averments are conclusions of law and to the contrary, documentation including the Fee Agreement is attached to the complaint. 35. Plaintiff's answers to all preceding paragraphs in Preliminary Objections are incorporated herein. 36. Denied. It is denied that the Amended Complaint was untimely filed. To the contrary, it was filed within the 20 day period as above stated. WHEREFORE, Plaintiff requests the Preliminary Objections be dismissed and Defendant ordered to answer the Amended Complaint. //7 14?7 DAT Respect mitte , Eric J. Wiener, Esquire ID # 18046 Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 (717) 909-9999 (717) 909-9009 FAX ejw@ejw-law.com 5 VERIFICATION I, Eric J. Wiener, hereby verify that the statements made in the foregoing Reply to Defendant's Preliminary Objections to Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa.C.S. § 4909 relating to unsworn falsification to authorities. I /-;/?/ Date: / Eric J. Wiener, Esquire LAW OFFICES OF IN THE COURT OF COMMON PLEAS OF ERIC J. WIENER, LLC CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 08-5096 CIVIL TERM V. ROBERT M. MUMMA II, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am an employee of the Law Offices of Eric J. Wiener LLC, and that I served the foregoing Reply to Defendant's Preliminary Objections to Amended Complaint by placing a true and correct copy thereof in the United States Mail, first class postage prepaid, addressed as follows: James G. Gault, Esquire 840 Market Street, Suite 153 Lemoyne, PA 17043 Date: d J44 W ) 6 onnie Bright, Offi e anager ?? ri??- c_.. ? ?? -r .._ ?, , ?. ± .srv° "? ` ' ? cx? ? ;.? , ?: -? ;? c?? . w ?'? -? -< /' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Law Offices of Eric J. Wiener, LLC., Plaintiff, vs. Robert M. Mumma II, Defendant. No 08-5096 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's ddem rrer to complaint, etc.): Defendant's Preliminary Objections to Amended Complainu Plaintiff's Reply to Defendant's Preliminary Objections to Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Eric J. Wiener, Esquire (Name and Address) 2515 North Front Street, Harrisburg, PA 17110 (b) for defendants: James G. Gault, Esquire (Name and Address) 840 Market Street, Suite 153, Lemoyne, PA 17043 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 4, 2009. Du o rior commitments, co sel is requesting to be schedule n or after February 009 Signature Date: / - / 2 - &0)7 Eric J. Wiener, Esquire Print your name Plaintiff Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. N Defendant. No. 08-5096 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am an employee of the Law Offices of Eric J. Wiener LLC, LAW OFFICES OF ERIC J. WIENER LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ROBERT M. MUMMA II, v. and that I served the foregoing Praecipe for Listing Case for Argument by placing a true and correct copy thereof in the United States Mail, first class postage prepaid, addressed as follows: James G. Gault, Esquire 840 Market Street, Suite 153 Lemoyne, PA 17043 Date: ?? ?/ C-1 ev i t? <<._ to LAW OFFICE OF ERIC J. WIENER, LLC, Plaintiff V. ROBERT M. MUMMA II, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008 - 5096 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 10TH day of FEBRUARY, 2009, after a thorough review of the Amended Complaint as well as the briefs filed by the parties in support of their respective positions, Defendant's Preliminary Objections are DENIED. He is directed to file an answer within twenty (20) days. .Xnc J. Wiener, Esquire 2515 North Front Street Harrisburg, Pa. 17110 /ames G. Gault, Esquire y 840 Market Street, Suite 153 Lemoyne, Pa. 17043 Court Administrator : sld X??. 1 I S :3 Wd 11 23d 6001 kj?i LAW OFFICES OF ERIC J. WIENER, LLC Plaintiff v. ROBERT M. MUMMA, H IN THE-COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08 - 5096 CIVIL TERM Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER TO AMENDED COMPLAINT WITH NEW MATTER AND COUNTERCLAIM TO: THE LAW OFFICES OF ERIC J. WIENER, LLC AND ERIC J. WIENER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, by and through his counsel, James G. Gault, Esquire, who files the following Answer to the Plaintiff's Amended Complaint pursuant to Judge Guido's Order dated February 10, 2009 and answers as follows: 1. Admitted based upon information and belief 2. Admitted in part; denied in part. It is admitted that the Defendant is an adult individual with an office and place of business situate at said street address; it is denied that same necessarily confers appropriate jurisdiction over his person as the Defendant is a resident of Florida. 3. Admitted in part; denied in part. It is admitted that Plaintiff has performed work for the Defendant or said corporations in the past; by way of further answer, Defendant tendered payments for certain services and Plaintiff accepted said sums as payment in full. It is denied that Defendant requested those services for which payment has been demanded via the relief specified in the Amended Complaint. It is denied that Defendant entered into a Fee Agreement with Plaintiff; by way of further answer, no formal Fee Agreement has been produced by Plaintiff. By way of further answer, it is denied that Exhibit A attached to the Amended Complaint constitutes any formal Fee Agreement rendering the Defendant liable for the sums demanded via the relief specified in the Amended Complaint. 4. Denied; strict proof is demanded. By way of further answer, it is specifically denied that Defendant is liable for the sum(s) demanded via the relief specified in the Amended Complaint. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. This averment is further denied to the extent it constitutes a legal conclusion to which no response is required. 5. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of whether Robert W. Barton acted in the capacity of a paralegal for Plaintiff and whether Arnold S. Bituin acted in the capacity of a law clerk for Plaintiff. 6. Denied as stated. It is denied that there exists any outstanding balance due as averred. It is specifically denied that Defendant agreed to pay "the balance" as averred or any "balance". By way of further answer, meetings and conversations between the parties were resolved by Plaintiffs acceptance of payments to him for all past services. By way of further answer, after reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to whether a meeting occurred on June 9, 2008. 7. Admitted in part; denied in part. It is admitted that Defendant paid Plaintiff for Plaintiff s services; it is denied that Defendant remains liable to Plaintiff for any other sum(s) demanded via the relief specified in the Amended Complaint. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. All characterizations, inferences, and allegations related to this averment are denied. 8. Denied as stated. It is denied that Defendant remains liable to Plaintiff for "the outstanding balance" or for any other sum(s) demanded via the relief specified in the Amended Complaint, and it is further denied that Defendant promised payment as averred. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer arp incorporated herein. All characterizations, inferences, and allegations related to this averment are denied. 3 9. Denied. By way of further answer, Defendant did object to the amount allegedly due and owing, and Defendant did raise objections, to wit, that Plaintiff's legal services performed in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendant economic harm and/or setbacks or losses in several matters of litigation. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. 10. Denied. This averment is further denied to the extent it constitutes a legal conclusion to which no response is required. By way of further answer, the Defendant has never acquiesced, assented, and/or agreed to the alleged account stated. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. 11. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. 12. Denied. This averment is further denied to the extent it constitutes a legal conclusion to which no response is required. By way of further answer, the Defendant has never acquiesced, assented, and/or agreed to the alleged account stated. It is fiuther denied that Defendant made the promises as averred. By way of further answer, the answers set forth in the additional paragraphs of the instant Answer are incorporated herein. [continued] 4 NEW MATTER 13. The Defendant hereby incorporates by reference all preceding paragraphs of his Answer as though fiilly set forth at length herein. 14. Plaintiff's claims are barred by the affirmative defense of accord and satisfaction. 15. Plaintiff's claims are barred by the affirmative defense of payment. 16. The Defendant is a resident of the State of Florida such that Plaintiff has not established valid jurisdiction in Cumberland County, Pennsylvania. 17. The Amended Complaint avers that the amounts are due under an account stated theory of recovery; however, the Amended Complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 18. The Amended Complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendant ever acquiesced, assented, or agreed to the account rendered; (ii) That there was ever a running account and/or a pre-existing account; (iii) That there was ever a promise to pay on the alleged account; (iv) That there was ever any acceptance of the account rendered or any account; (v) That the services performed relative to the alleged account were satisfactory to the Defendant; 5 (vi) That the services performed relative to the alleged account were competent and adequate under the appropriate standards governing the nature of the work performed; and/or, (vii) That the account stated is not subject to impeachment for mistake or fraud. 19. The Amended Complaint fails to set forth an appropriate theory of law upon which its demand for payment must be granted. 20. To the extent the Amended Complaint is considered to be in the nature of a suit on a written contract, the complaint does not have attached thereto a copy of any contract, agreement, or similar formal document signed by the Defendant. 21. To the extent the Amended Complaint is considered to be for the recovery of attorney fees allegedly due and payable for the performance of legal services, the Amended Complaint does not have attached thereto a copy of a binding, executed Fee Agreement, nor does the Amended Complaint aver the existence of a binding, executed Fee Agreement signed by the Defendant. 22. The Amended Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the attorney-client relationship which is governed by the Rules of Professional Conduct. [continued] 6 COUNTERCLAIM 23. The Defendant hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 24. Counterclaim Plaintiff is the Defendant named hereinabove. 25. Counterclaim Defendant is the Plaintiff hereinabove, a licensed professional with offices in Dauphin County, Pennsylvania. 26. Counterclaim Plaintiff is asserting a professional liability claim against this Counterclaim Defendant. 27. Counterclaim Defendant previously represented the Counterclaim Plaintiff with respect to the "High Spec, Inc" litigation in Florida. 28. At a critical stage in the Florida proceedings in or about January 2007, Counterclaim Defendant failed to schedule properly an evidentiary hearing in Martin County, Florida. 29. As a result of the acts and omissions of Counterclaim Defendant, the Counterclaim Plaintiff was not able to testify at the critical hearing in Martin County, Florida. 30. The Counterclaim Defendant was not prepared to go forward with the appropriate presentation of evidence at said hearing in Martin County, Florida. 31. In addition to the foregoing, the Counterclaim Defendant was otherwise unprepared, unknowledgeable, unqualified, and/or ill-equipped to represent fully the interests and rights of the Counterclaim Plaintiff at said hearing in Martin County, Florida 32. The Counterclaim Defendant has authored correspondence acknowledging that "the matter blew up" in reference to said proceedings in Martin County, Florida. 7 33. Counterclaim Defendant previously represented the Counterclaim Plaintiff with respect to the "Dauphin Deposit Bank & Trust" litigation in Dauphin County, Pennsylvania. 34. Counterclaim Defendant had agreed to and was responsible for pursuing a motion to file an amended complaint on behalf of the Counterclaim Plaintiff. 35. The aforesaid motion to file an amended complaint was not pursued and/or otherwise finalized by Counterclaim Defendant. 36. Counterclaim Defendant had agreed to and was responsible for complying with and meeting certain discovery deadlines in late 2006 and early 2007. 37. As a result of the delays, malfeasance, and/or nonfeasance attributable to Counterclaim Defendant, no discovery was taken on behalf of the Counterclaim Plaintiff within the timetables and parameters established by the Dauphin County court. 38. The Counterclaim Defendant failed to procure the necessary contracts, documents, and rental lease agreements from opposing counsel in the "Dauphin Deposit Bank & Trust" matter. 39. The Counterclaim Defendant had not taken appropriate discovery and was otherwise inadequately preparing the "Dauphin Deposit Bank & Trust" matter for trial. 40. As a result of the failure of the Counterclaim Defendant to take the appropriate discovery and to pursue other pre-trial measures, the Counterclaim Plaintiff was required to search for and retain replacement counsel (to wit, Sonnenschein, Nath and Rosenthal) in order to move forward with the "Dauphin Deposit Bank & Trust" litigation. 8 41. Said replacement counsel eventually withdraw its representation of Counterclaim Plaintiff in the weeks immediately preceding trial in October 2007. 42. As a result of the withdrawal of counsel immediately before trial, the Counterclaim Plaintiff was required to go to trial in the "Dauphin Deposit Bank & Trust" matter as a pro se litigant. 43. The jury returned a defense verdict at the close of the "Dauphin Deposit Bank & Trust" trial. 44. The Counterclaim Defendant had engaged in unauthorized settlement discussions with opposing counsel in the "Dauphin Deposit Bank & Trust" litigation. 45. The Counterclaim Defendant was without any authority, whether implied, express, or otherwise, to engage in any settlement discussion(s) with the opposing counsel in the "Dauphin Deposit Bank & Trust" litigation. 46. Counterclaim Defendant failed to perform the competent and correct legal services which it promised, and for which it was paid. 47. The legal services rendered by Counterclaim Defendant fell outside of the realm of appropriate and competent legal services which a reasonable legal professional would have so provided under the circumstances. 48. As a direct and proximate result of Counterclaim Defendant's errors and omissions, Counterclaim Plaintiff suffered harm and damage in an amount in excess of $50,000.00. 9 COUNT I - BREACH OF FIDUCIARY DUTY 49. The Counterclaim Plaintiff hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 50. As the legal representative of the Counterclaim Plaintiff, Counterclaim Defendant owed a fiduciary duty to act in his best interests at all times. 51. By and through its acts and omissions, Counterclaim Defendant has unlawfully breached the fiduciary duty owed to Counterclaim Plaintiff by: (a) Failing to act in his best interests; (b) Misrepresenting the nature and scope of legal services to be performed and/or that were provided; (c) Failing to obtain properly important and necessary documentation; (d) Overcharging for legal services; (e) Engaging in unauthorized settlement discussions; and, (f) Failing to take discovery and other proper pre-trial measures. 52. Counterclaim Defendant directly benefited and was unjustly enriched by its breach of fiduciary duties to Counterclaim Plaintiff by charging and collecting excessive and unwarranted legal fees. 53. As a direct and proximate result of the acts and omissions of Counterclaim Defendant, Counterclaim Plaintiff has sustained direct and consequential damages. WHEREFORE, Counterclaim Plaintiff demands judgment against Counterclaim Defendant in an amount in excess of $50,000.00 together with interest and costs. 10 COUNT II - BREACH OF CONTRACT 54. The Counterclaim Plaintiff hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 55. The acts and omissions of Counterclaim Defendant constitutes a breach of contract with respect to Counterclaim Plaintiff by reason of such the latter has suffered damages in an amount in excess of $50,000.00. 56. As a direct and proximate result of the acts and omissions of Counterclaim Defendant, Counterclaim Plaintiff has sustained direct and consequential damages. WHEREFORE, Counterclaim Plaintiff demands judgment against Counterclaim Defendant in an amount in excess of $50,000.00 together with interest and costs. COUNT III - NEGLIGENCE / LEGAL MALPRACTICE 57. The Counterclaim Plaintiff hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 58. The acts and omissions of Counterclaim Defendant as set forth above constitutes negligence and legal malpractice, as the direct and proximate cause of which the Counterclaim Plaintiff suffered damages in an amount in excess of $50,000.00. 59. As a direct and proximate result of the acts and omissions of Counterclaim Defendant, Counterclaim Plaintiff has sustained direct and consequential damages. 11 WHEREFORE, Counterclaim Plaintiff demands judgment against Counterclaim Defendant in an amount in excess of $50,000.00 together with interest and costs. COUNT IV - NEGLIGENCE 60. The Counterclaim Plaintiff hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 61. The acts and omissions of Counterclaim Defendant as set forth above constitutes negligence, as the direct and proximate cause of which the Counterclaim Plaintiff suffered damages in an amount in excess of $50,000.00. 62. As a direct and proximate result of the acts and omissions of Counterclaim Defendant, Counterclaim Plaintiff has sustained direct and consequential damages. WHEREFORE, Counterclaim Plaintiff demands judgment against Counterclaim Defendant in an amount in excess of $50,000.00 together with interest and costs. COUNT V - LEGAL MALPRACTICE 63. The Counterclaim Plaintiff hereby incorporates by reference all preceding paragraphs of this pleading as though fully set forth at length herein. 64. Counterclaim Defendant failed to exercise the ordinary skill, care and knowledge in its representation of Counterclaim Plaintiff. 65. Counterclaim Defendant failed to exercise the ordinary skill, care and knowledge possessed by attorneys in the community. 12 66. As a direct result of Counterclaim Defendant's negligence, Counterclaim Plaintiff has suffered substantial damage, injury and loss. 67. Counterclaim Defendant's conduct was the proximate cause of Counterclaim Plaintiff's aforesaid damages, injuries, and losses. 68. Counterclaim Defendant's negligent conduct occurred while it rendered professional legal services in representing Counterclaim Plaintiff. 69. Under Pennsylvania law, Counterclaim Defendant is liable to Counterclaim Plaintiff up to the full value of its property to compensate for damages, injuries, and losses suffered as a result of its negligent conduct. WHEREFORE, the Defendant respectfully requests that this Honorable Court deny the relief sought by Plaintiff, dismiss the Amended Complaint with prejudice, and grant the relief sought in the Counter-Claim in an amount in excess of $50,000.00, together with interest, pre- judgment interest, reasonable attorneys fees, and costs, and other such relief as deemed appropriate by this Honorable Court. submitted, 0-3/0 DATE G. Gault, Pa.Supreme Ct. ID #: 49687 840 Market Street Suite 153 Lemoyne, PA 17043 (717) 612-9720 jggault@comcast.net 13 VERIFICATION I, Robert M. Mumma, II, hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S.§4904 relating to unworn falsification to authorities. i y Date: ??` ?G vt a , .2,0 0 Robert M. Mumma, II CERTIFICATE OF SERVICE I hereby certify that on March 2, 2009, I served a true and correct copy of the foregoing Preliminary Objections to Amended Complaint by U.S. Mail, first class, postage prepaid, addressed to: Eric J. Wiener, Esquire Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 J es G. Gault, Esquire A rney for Defendant / Counterclaim Plaintiff a. J7 I (7J Eric J. Wiener PA ID# 18046 2515 North Front Street Harrisburg, PA 17110 717-909-9999 717-909-9009 (fax) ejw@ejw-law.com LAW OFFICES OF ERIC J. WIENER, LLC, V. ROBERT M. MUMMA II, CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY OF SAID COURT: Kindly mark the docket in the above matter including counterclaim settled, discontinued and ended with prejudice. Date: -3 - J:3 - 0 7 Date: 0'50-10q IN THE CUMBERLAND COUNTY COURT OF COMMON PLEAS Plaintiff No. 08-5096 Defendant By: ctfully submitt , Eric J. Wiener, Esquire Attorney for Plaintiff c" ; Vy (71 t 4 A^" ell A3