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HomeMy WebLinkAbout04-1387 DONALD PFALZGRAF, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : NO. 01./ - I Y'7 Cl'w~l'-r~ RDB SERVICES, INC., CIVIL ACTION - LAW Defendant. 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 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 OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, P A 17013 (717) 249-3166 (800) 990-9108 DONALD PFALZGRAF, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. NO. 04 - 13<61 (}iuLL~~ RDB SERVICES, INC., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED COMPLAINT NOW COMES Plaintiff, Donald Pfalzgraf, by and through his attorneys, Tomasko & Koranda, P.C., and files the following Complaint against Defendant, RDB Services, Inc., averring: I. Plaintiff, Donald Pfalzgraf, is an adult individual residing at 9827 Rand Drive, Burke, Virginia 22015 2. Defendant, RDB Services, Inc., is a corporation authorized and existing under the laws ofthe Commonwealth of Pennsylvania, with its principal place of business at 1111 Tiverton Road, Suite 20 I, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The amount in claimed in the instant action does not exceed the jurisdictional amount requiring arbitration referral by Local Rule of Court. 4. Plaintiff performed consulting services for Defendant beginning on or about January 31, 2003, pursuant to a written Consulting Agreement, a true and correct copy of which is attached hereto as Exhibit "A" and is incorporated here. 5. Under the express terms ofthe Consulting Agreement, Defendant agreed to pay Plaintiff $75.00 per hour for his services. 6. On or about January 30, 2004, Plaintiff submitted an invoice and monthly status report to Defendant stating that he was owed $11,775.00 for 157.00 hours worked for the Defendant between January 1, 2004 and January 31, 2004. A true and correct copy of the invoice and monthly status report is attached hereto as Exhibit "B" and incorporated herein. 7. Pursuant to the Consulting Agreement, Defendant was obligated to pay Plaintiff the $11,775.00 within ten (10) days after payment was received by Defendant from the prime contractor or the government. 8. Plaintiff believes, and therefore avers, that the prime contractor or the government paid Defendant for Plaintiffs services as reflected in the aforementioned invoice and monthly status report on or about February 18, 2004. COUNT I BREACH OF CONTRACT 9. Each and every preceding paragraph is incorporated herein by reference as though fully set forth at length below. 10. Despite repeated demands, Defendant has refused to pay the $11,775.00 which Plaintiff is owed on the aforesaid invoice. II. All conditions precedent necessary to Defendant's duty to pay Plaintiff the sum of $11,775.00 for services performed by Plaintiff pursuant to the Consulting Agreement from January I, 2004 to January 31,2004 have been performed or have occurred. 12. Defendant has breached the Consulting Agreement by failing and/or refusing to pay Plaintiff $1 1,775.00 owed to him for work performed from January I, 2004 to January 31, 2004. -2- 13. As a direct and proximate result of Defendant's breach of the Consulting Agreement, Plaintiff has suffered damages in the amount of$11,775.00. WHEREFORE, Plaintiff, Donald Pfalzgraf, respectfully requests that this Honorable Court enter judgement in his favor and against Defendant, RDB Services, Inc., in the amount of $11,775.00, plus statutory interest, costs of suit, and such other relief as may be reasonable and just. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg,PA 17101 Telephone: (717) 238-1100 By: MICHAEL A. KORANDA P A IV #58808 -3- CONSULTING AGREEMENT Date: 1/31/2003 Name of Consultant: SSN: 226-52-9019 Don Pfalzgraf Address: 9827 Rand Drive. Burke. VA 22015 Term of Agreement: 2 Januarv 2003 - 30 September 2003 Agreement: RDB Services, Inc. ("RDBSI") and Don Pfalzgraf the date above, as follows: ("Consultant") agree, as of 1. Scope of Work: Consultant will perform services for RDBSI as described herein. RDBSI hereby retains Consultant to perform onsite MVS LoB Technical Support Services as required by RDBSI's client. Consultant agrees to act as an independent consultant to RDBSI with respect to such services. 2. Compensation: RDBSI will pay Consultant a consuiting fee in the amount of $75.00 per hour in payment for the services described herein. No overtime will be authorized. All time billed will be at the agreed rate. Consultant must provide a proper invoice and monthly status report within five (5) business days after month end. Invoices will be paid within ten (10) days after payment is received by RDBSI from either the Prime Contractor or the Government. No other compensation shall be paid during the Term of Agreement. Consultant expressly and irrevocably waives on behalf of RDBSI and any employee or agent of Consultant any right to participate in any pension, retirement, medical, life insurance or other employee benefit plan maintained by RDBSI or any of its affiliates for the benefit of its employees. 3. Manner of Performance: Consultant represents that Consultant has the requisite expertise, ability and legal right to render the services and will perform the services in an efficient manner. Consultant represents that the Consultant has sufficient training, skill and experience to perform the services to the satisfaction of RDBSI. RDBSI and Consultant agree that (i) Consultant wilI perform services pursuant to this Agreement as an independent contractor and not as an employee, agent, partuer, or joint venture of RDBSI and (ii) neither Consultant nor any employees or subcontractors of Consultant will be treated as an employee of RDBSI or any of its affiliates with respect to the contracted services for federal or state tax or any other pUlposes. Consultant wilI not represent to third persons, including the Internal Revenue Service or other governmental taxing authority, to be other than an independent contractor to RDBSI and will not offer or agree to incur or assume any obligations or commitments in the name of or on behalf of RDBSI. Consultant will furnish to RDBSI any information reasonably requested by RDBSI in order to confirm that Consultant is acting in a manner consistent with its status as an independent contractor. 4. Confidentiality: In the course of executing this Agreement, it is anticipated that Consultant will learn confidential and/or proprietary information belonging to RDBSI and the company's Government customers. (i) Consultant will maintain the confidentiality of this information and any other information that the Consultant may acquire that involves the business matters, products, policies and marketplaces of RDBSI. The requirement to maintain the confidentiality of this type of information shall survive the termination of this agreement for a period of three years after such termination. It is agreed and understood that in the event of any breach of Confidentiality, RDBSI shall be entitled to such actual damages as have Page I of3 EXHIBIT A been suffered as a result of the disclosure of confidential information and, as a matter of right, shall further be entitled to apply to a court of competent jurisdiction for such relief by way of restraining order, injunction or otherwise as may be appropriate to ensure compliance with what is stated in said subparagraphs of this Agreement. (ii) Consultant agrees that all records, papers, reports, computer programs, descriptive materials, printed, written, or stored computer information, and any other materials produced by Consultant and nay of its employees during and as a result of the performance of the work under this Agreement, shall be RDBSI's property, the nature and contents of which shall not be disclosed to others without prior written consent of RDBSI. All such property shall be delivered to RDBSI upon termination of this Agreement or at any time upon RDBSI's request. Neither reports nor other printed matter will be provided by Consultant to RDBSI, other than the required Monthly Status report, invoice and approved timesheet for client. 5. Relationship with Others: During the term of this Agreement, Consultant will not perform consulting services that are competitive in nature with those provided to RDBSI under this Agreement. Such prohibited services are defined as those consulting services in the specific areas in which the Consultant has provided consulting services under this Agreement for any other entity engaged in the development, manufacture, distribution, sale or marketing of products or services similar to the products and services of RDBSI. Consultant agrees that during the term of this Agreement and for a period of twelve (12) months thereafter, the 6. Liability: RDBSI assumes no liability for the activities of the Consultant except for those activities specifically directed by RDBSI, within the parameters established by RDBSI and sound, reasonable practices associated with the activities of the Consultant as directed by RDBSI. Consultant shall not be held liable for any failure to perform on the part of a client, when directed to develop relationships and pursue sales with, or offer assistance to, such clients by RDBSI. Consultant shall not be held liable for any failure in products or services Consultant sells, renders or facilitates for clients on behalf of RDBSI and shall be protected from such risks by RDBSI in the course of activities Consultant is directed to perform by RDBSI. The Consultant agrees to indemnify and hold harmless RDBSI, its affiliates, successors, divisions and subsidiaries, and the officers, directors and employees of each of the foregoing, from and against any and all claims, loss or liability (including attorneys' fees) arising out of or in any way related to the services, labor and/or performance by Consultant of services hereunder, including without limitation any such loss or liability for personal injury or death or property damage or destruction, whether arising out of claims by employees of RDBSI, employees of Consultant, or any other third party. This indemnity obligation of Consultant shall further extend to and include any and all claims made against RDBSI, its affiliates and successors, and the officers, directors, and employees of each of the foregoing, by any employee of Consultant, arising from any source while any such party is on or in the vicinity of premises owned, operated, leased or controlled by RDBSI, whether caused by RDBSI negligence or otherwise. 7. Term of the Agreement: The term of this Agreement is specified on Page One of the Agreement; however, either Consultant or RDBSI may terminate this Agreement at any time upon thirty (30 days notice to the other party. This Agreement will be considered immediately terminated in the event that the client refuses to accept further services from the Consultant. 8. Severability. If any provision of this agreement is held to be invalid, illegal, or unenforceable, in whole or part, such invalidity will not affect any otherwise valid provision, and all other valid provisions will remain in full force and effect. 9. Entire Agreement; Modification. This Agreement supersedes all previous agreements, negotiations, or communications between Consultant and RDBSI and contains the complete and exclusive expression of the understanding between the parties. This Agreement cannot be amended, modified, or supplemented in any respect except by a subsequent written agreement entered into by both parties. 10. Legal Authority: This Agreement shall be construed according to the laws of the State of Pennsylvania. Page 2 00 11. Description of Services: To perform services on-site at DISAlDECC facilities as described in DISAlDECC Task Order (Copy to be provided). RDB Services, Inc. Consultant By: By: (Signature & Date) (Signature & Date) Consultant's name, address, telephone & e-mail: Don Pfalzgraf 9827 Rand Drive Burke, VA 22015 (703) 425-2150 DonPfalzgraf@hotmail.com Robert D. Berry President/Owner RDB Services, Inc. 1111 Tiverton Road, Suite 201 Mechanicsburg, P A 17050 Voice: (717) 728-9890 Fax: (717) 728-0899 E-mail: rherry(a)gte.net Page 3 00 INVOICE TO: RDB Services, 1nc 1111 Tiverton Road Mechanicsburg, PA 17050-7655 FROM: Don Pfalzgraf 9827 Rand Drive Burke, VA 22015 Date Submitted: January 30, 2003 For Services on Contract DYN-DIG-03 001, MVS LOB Technical Support as assigned by purchase order RDB S1 03-03201. This invoice is for the work performed by Don Pfalzgraf as presented in the Monthly Status Report. Period ofPerfonnance I Number of Hours Worked I Rate 1/1/2004 - 1/31/2004 157.00 $75 Amount Due $11,775.00 EXHIBIT B January - Running Total Difference - Actual Actual Weekly Projected Actual minus Projected Totals 1/1/04 Thursday Holiday 1/2/04 Friday Vacation 1/3/04 Saturday 1/4/04 Sunday 1/5/04 Monday 8.00 10.00 -2.00 1/6/04 Tuesday 8.00 9.00 -1.00 1/7/04 Wednesday 8.00 9.00 -1.00 1/8/04 Thursday 8.00 10.50 -2.50 1/9/04 Friday 5.00 3.00 2.00 41.50 1/10/04 Saturday 1/11/04 Sunday 1/12/04 Monday 8.00 4.50 3.50 1/13/04 Tuesday 8.00 8.00 0.00 1/14/04 Wednesday 8.00 4.50 3.50 1/15/04 Thursday 9.00 0.00 9.00 1/16/04 Friday 5.00 0.00 5.00 17.00 1/17/04 Saturday 1/18/04 Sunday 1/19/04 Monday 9.00 5.00 4.00 1/20/04 Tuesday 9.00 11.00 -2.00 1/21/04 Wednesday 9.00 11.00 -2.00 1/22/04 Thursday 9.00 11.00 -2.00 1/23/04 Friday 5.00 11.00 -6.00 1/24/04 Saturday 5.50 -5.50 1/25/04 Sunday 5.50 -5.50 60.00 1/26/04 Monday 9.00 4.00 5.00 1/27/04 Tuesday 9.00 0.00 9.00 1/28/04 Wednesday 9.00 10.00 -1.00 1/29/04 Thursday 9.00 10.00 -1.00 1/30/04 Friday 5.00 9.50 -4.50 33.50 1/31/04 Saturday 5.00 Totals 157.00 157.00 5.00 152.00 VERIFICATION I verify that the statements made in the attached COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to penalties ofl8 Pa. C.S. g4904 relating to unsworn falsification to authorities. DATED: ,0 c/o V .::, CJ ~t ~ ~ ..0 ~ ~U? ~ ~ ~ ~ -1- ~~~:8 ,..._~ -'-. - -.. - ."-., - C',._, , , :1' , \: V) - :.1< .. ;-'.J " "1-, L'-:- SHERI~~'~ RETURN - NOT FOUND CASE NO: 2004-01387 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PFALZGRAF DONALD VS RDB SERVICES INC 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 RDB SERVICES INC but was unable to locate Them in his bailiwick. He therefore returns the COMPLAINT & NOTICE , NOT FOUND , as to the within named DEFENDANT , RDB SERVICES INC 1111 TIVERTON ROAD SUITE 201 MECHANICSBURG, PA 17050 ROBERT D BERRY MOVED AND THERE IS NO FORWARDING ADDRESS ON FILE AT POST OFFICE. Sheriff's Costs: Docketing Service Not Found Surcharge 18.00 6.90 5.00 10.00 .00 39.90 So answers: ~ .-=--=----- R. Thomas Kline Sheriff of Cumberland County TOMASKO & KORANDA 04/13/2004 Sworn and subscribed to before me this /t{"'::. day of ~) JtJO'{ A.D. (1~. (), lvv~ dd: Prptlhonotary I~ DONALD PFALZGRAF, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : NO. 04-1387 RDB SERVICES, INC., : CIVIL ACTION .. LAW Defendant. : JURY TRIAL DEMANDED ACCEPTANCE OF SERVIC]~ I accept service of the Complaint on behalf of Defendant, RDB Services, Inc., and certify that I am authorized to do so. Dated: C{ (r~/ of{ By: CERTIFICATE OF SERVICE, AND NOW, this~day of Ak>IL ,2004, I, Michael A. Koranda, Esquire, attorney for the Plaintiff, hereby certify that I served the within ACCEPTANCE OF SERVICE this day by: U.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, PA 17101 By/A~ MICHAEL A. KORANDA (") c .~~ n~~~2 ~U,i en ..1.." -<::::" !'< c} .':P~ ,--. 7~' <20 -""c ~ ,.., = ~ :> -0 ::0 N -' ~ ~:Il ~0 ~@ i5~ ~ -0 :Jl: N " ~ (Jl IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONALD PFALZGRAF, Plaintiffs No. 04-1387 vs. RDB SERVICES INC, Defendant CIVIL TERM NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defendant 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 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 th~: 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 OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, P A 17013 (717) 249-3166 (800) 990-9108 2201U IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DONALD PFALZGRAF, Plaintiffs No. 04-1387 vs. RDB SERVICES INC, Defendant CIVIL TERM ANSWER. NEW MATTER AND COUNTER CLAIM Comes Defendant RDB Services Inc. (RDB) and sets forth the following in response to the Complaint in this case. I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted and Denied as follows. Admitted that among the terms of the Consulting Agreement is an agreement that Plaintiffbe paid. Denied that Plaintiff is deserving of any further payment because of his violation of said agreement. 6. Admitted that Plaintiff submitted such an invoice. 7. Admitted and Denied as follows. Admitted that the Consulting Agreement does provide for prompt payment. Denied Plaintiff was entitled to such payment as he had violated the Consulting Agreement at issue. 2201U 2 8. Admitted and Denied as follows. Admitted that somt: payments have been received from the prime contractor but denied that prime contractor has fully paid for the services rendered. 9. RDB incorporates its responses as though fully set forth at length to the proceeding eight (8) paragraphs. 10. Admitted. 11. Denied. The condition precedents have not been ml:t as to warrant payment. In particular Plaintiff has violated the Consulting Agreement as issued here by betraying RDB by attempting to under cut it, obtain other employment, take work from RDB services and generally cut RDB out of governmental contracting. During the contract period, Plaintiffwas going to other companies and attempting to obtain work from them in an attempt to cut RDB out of the business they have previously been engaged in under the Consulting Agreement at issue here. 12. Denied as a conclusion oflaw and further Denied as set forth herein and herein after. WHEREFORE, Defendant RDB respectfully requests judgement in its favor and against Plaintiff. NEW MATTER 13. Plaintiff has waived and forfeited his rights under the Consulting Agreement by violating it in several respects including attempting to usurp business opportunities that under the Consulting Agreement should have gone to RDB. Said actions were taken while the Consulting Agreement was still in effect. In doing so Plaintiff violated Paragraph 4 concerning confidentiality (providing such information to RDB's competitors), and Paragraph 5 (regarding relationship with others), and other portions of the Consulting Agreement at issue. Plaintiff also 22011_1 3 committed a general violation of quasi-contractual and Common Law requirements requiring one to deal in good faith with ones principal or contractor. 14. Plaintifffails to state a claim on which relief may be granted. 15. Plaintiff fails to attach a signed Consulting Agreement between the parties to his Complaint indicating such an agreement was made. COUNTERCLAIM 16. On or about November of 2003 Pfalzgraf engaged in discussions with competitors of RDB with a view towards cutting RDB out of payment for any future work. 17. In the course of the conversations described in the proceeding paragraph Pfalzgraf revealed proprietary data ofRDB as well as engaged in servic(:s that were competitive in nature with those provided to RDB under the Consulting Agreement. 18. Pfalzgraf is also believed to have revealed information and papers belonging to RDB to its competitors while still under the Consulting Agreement at issue here. 19. Pfalzgrafs actions violated both the Consulting Agreement and the law of Pennsylvania concerning the duties of a subcontractor or agent such as himself to provide true servICe. 20. Pfalzgraf has caused damage to RDB by causing it to miss out on subsequent contracts with the federal government through his actions as described above. Said contracts exceed several hundred thousand dollars in value. WHEREFORE, RDB Services, Inc. request judgment be granted in its favor and against Phalzgraf in an amount in excess of $30,000.00. 22011_1 4 .' 22011_1 Respectfully submitted, J ~ etz,Esq. ~2958 Dilworth Paxson LLP 112 Market Street, 8th Floor Harrisburg, P A 17101 Phone: (7 Jl7) 236-4812 Fax: (717) 236- 7811 jmetz(al,dilworthlaw.com 5 CERTIFICATE OF SERVICE I hereby certify that I have this 10th day of June 2004, caused a true and correct copy of the foregoing to be served upon the following by first-class mail, postage prepaid: Michael A. Koranda, Esq. 219 State Street Harrisburg, P A 17101 / / C-;:CZt]/f) ~G ~Uj~ ~ ,Esq. Dated: June 10,2004 22011_1 6 "" = ~ c:> -- 6'" <- :r!:n -'';~ c: :;c: n1r- (j~: "Urn , ..... e5~ ,._..I( ) ~'.- v :r:+; -;;J'c. :.;: ('):J'J j;... (:~!. ;,,'".;.C) .,;:; (-.--? C5in ':'.':i :r::! -< N ~ ..... DONALD PFALZGRAF, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : NO. 04-1387 RDB SERVICES, INC., : CIVIL ACTION - LAW Defendant. : JURY TRIAL DEMANDED NOTICE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, PA 17101 Telephone: (717) 238-1I00 BY~~~ MICHAEL A. KORANDA PAID #58808 DONALD PFALZGRAF, : IN THE COURT OF COMMON PLEAS C~BERLANa)COUNTY,PENNSYLVANlA Plaintiff, vs. NO. 04-1387 RDB SERVICES, INC., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER NOW COMES Plaintiff, Donald Pfalzgraf, by and through his attorneys, Tomasko & Koranda, P .c., and files the following Reply to New Matter and Answer to Counterclaim with New Matter, averring: 1-13. Paragraph Nos. 1 through 13 ofthe Complaint are hereby incorporated by reference as if fully set forth at length. Relllv to New Matter 13 (sic). Denied. The allegations ofthis paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that Plaintiff waived and forfeited his rights under the Consulting Agreement, or violated the Consulting Agreement (including Paragraphs 4 and 5) and quasi-contractual and Common Law requirements in any way. By way of further response, see Paragraph 11 of the Complaint. 14 (sic). Denied. The allegations of this paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that the Complaint fails to state a claim upon which relief can be granted. By way of further response, see Paragraphs 4-13 of the Complaint. 15 (sic). Admitted. By way offurther response, a true and correct copy of the Consulting Agreement is attached hereto as Exhibit A and incorporated herein. WHEREFORE, Plaintiff, Donald Pfalzgraf, respectfully requests that this Honorable Court enter judgement in his favor and against Defendant, RDB Services, Inc., in the amount of $11,775.00, plus statutory interest, costs of suit, and such other relief as may be reasonable and just. Answer to Counterclaim 16 (sic). Denied. The allegations of this paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that Plaintiff engaged in any discussions with competitors of Defendant which were intended or had the effect of cutting Defendant out of payment for any future work. 17 (sic). Denied. The allegations of this paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that Plaintiff revealed Defendant's proprietary data or, during the applicable period, engaged in services that were competitive in nature to Defendant's business. 18 (sic). Denied. The allegations ofthis paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied -2- that Plaintiffrevealed information and papers belonging to Defendant to Defendant's competitors while under the Consulting Agreement. 19 (sic). Denied. The allegations of this paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that Plaintiff revealed information and papers belonging to Defendant to Defendant's competitors while under the Consulting Agreement. 20 (sic). Denied. The allegations of this paragraph constitute conclusions oflaw to which no responsive pleading is required and accordingly, the same are denied and strict proof thereof is demanded. To the extent that a responsive pleading is required, it is specifically denied that Plaintiff caused any damages to Defendant. By way of further response, Plaintiff believes, and therefore avers, that any damages which Defendant may have suffered were due to factors completely unrelated to Plaintiff. By way of additional response, Plaintiff believes, and therefore avers, that Defendant's customer elected to transfer the work ~ormerly performed by Defendant to a different location and/or vendor. WHEREFORE, Plaintiff, Donald Pfalzgraf, respectfully requests that this Honorable Court enter judgement on the Counter Claim in his favor and against Defendant, RDB Services, Inc. New Matter 22. Paragraphs 1-20 (sic) above are hereby incorporated by reference as if fully set forth at length. 23. Defendant's pleading should be stricken for non-compliance with Pa. R.C.P. -3- 1024(a). 23. The Counterclaim fails to state a cause of action upon which relief may be granted. 24. Defendant's damages, if any, were caused by factors completely unrelated to Plaintiff and Plaintiffs alleged misconduct. Specifically, any damages which Defendant may have suffered were caused by its customer's decision to transfer work which was being performed by Defendant and/or rebid that work to other vendors. 25. Defendant's damages, if any, are speculative, remote and hypothetical. 26. The provisions of the Consulting Agreement addressing "Confidentiality" and "Relationship with Others" are unenforceable as ambiguous, vague, and unreasonable in time, scope and geography. WHEREFORE, Plaintiff, Donald Pfalzgraf, respectfully requests that this Honorable Court enter judgement on the Counter Claim in his favor and against Defendant, RDB Services, Inc. -4- Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, PAl'll 0 1 Telephone: (717) 238-1100 By:.~/~~J/~ MIC:HAEL A. KORANDA PA ID #58808 -5- 21/06 2004 07:48 FAX 7036074866 CDTE HQ3330 I4J 002/005 CONSULTING AGJni'.IlM~ Date: 1/3112003 Name ofCon8ultant: SSN: 226-52-9019 Don Pfalzl!!raf Address: 9827 Rand Drive. Burke. VA 22015 Term of Agreement: 1 Febl1l8rv 2003 - 31 Juuarv 208011 Agreement: RDB Services, Inc. ("RDBSI") and Don Pfi"'7......f (''Consultant'') agree, as of the date above, as follows: 1. Scope of Work: Consultant will perform service:s for RDBSI as described herein. RDBSI hereby retains Consultant to perform onsite MVS LoB Teelmieal S.pport Servic:es as required by RDBSI's client. CoDSUltzIDt agrees to act as an independent consultant to RDBSI with respect to such services. 2. Compe_tiea: ROBSI will p.y COIlsull8Dt a conSlllmg me iIll the lIDount ofS~ per _ in pa~eat for the services described herein. No overtime will be authori"'lll. All time billed will be at the agreed rate. Consull8Dt mutt provide a proper invoice and monthly alatw, report within five (5) bUliness daJl after month end. Invoices will be paid within !aI (10) days after plIJlIDent is received by ROBSlfiom ei1h... tho Prime COIItnIclor or the Governmfllt. No other compenllatioa sball be paid during the Term of Asnemeat. Consull8Dt expressly and imMx:abJy waives 011 behalf of ROB:~I and any employee or ageat of COIlsnltant any ript to participate in any pension, retirement, medical, li1e insunnce or other employee benefit pllll mllintained by ROBSI or any ofits aftili8les for the benefit ofitl employees.. 3. Mauer of Performance: Consull8Dt represents that ConsultlJlt has the requisite expertise, aIlility and legal ript to render the services and will perlOrm the services ill an efficient mlllD.... COIlsullant.",.--ts that lbe Consullant has sufficient training. skill and experience to perfurm the services to the salimctioa of ROBSI. RDBSl and Consullant agree that (i) Consullant will perfurm services pursuant to Ibis A.-eat as an independent contractcr and not as an employee, asent, I-cr, or joint venture of ROBSI and (ii) neither Consultant nor any eIIIJIIoJees or subcoalnlcklr1 of CODsullant will be treated as an cmplo,eo of ROBSI or any of ita aftili8les with respeet to the cootncted scmces ilr federal or _e tax or any other purposes. Consultant will Dot IlIJlI~t to third penons, incI..fioS the IntemaI Rewnue Service or oth... governmental taxing IIIlbority, to be other than aD independent cootractor to ROBSI and will not oft'er or agree to incur or lIlIIUDIe any obllptions or commitments in the name of or on behaJf of ROBSI. COIlSUllant will furnish to ROBSI any infOrmation reasonably requested by ROBSI in order to confirm thllt Consultant is actinS in a manner coaaistent with ita _ as aD DlClepeadent con1ractor. 4. Coalldea1l.llty: In the course of executinS this Agreemfllt, it i. anticipllted dUJt Consultant will IeIm confidential and/or propriclary inbmation beJOIIsins III RDBSI 8lId the COIDplllY's Govemn1l8lt customers. (i) Consultant will maintain the confidentiality on~is inbmation lIDd any other infOrmatiOll lbat dte COIlsultant may acquire tIutt involves the business m~..... products, policies and marketplaces of RDBSI. The requirenllllt III mait\Iain dte coofidentiality of tbi. type of infurmation sbaJJ survive the termination of this agreemeat for. Period ofthrce years after sUl:h _mon. It i. asreed IIId understood that in lb. event of any breach of Confidentiality, RDBSI sbaD lbe entitled to such actua1 damages as haw Pose I of3 EXHIBIT A 21/06 2004 07: 49 FAX 7036074866 CDTE HQ3330 Ii!J 003/005 been suffered as a result of the disclosure of confidential infunnmon and, as a malter of right, shall fiardter be entitled to apply to a court of competellt jurisdiction CoI: such relief by way of restraining order, injunction or oIherwise as may be appropriate to 8lIJW'e compliance with wbaI is staled in said subJllll'88l'llPh. of this Agreement. (ii) Consultant agrees 1ha1 all records, papers, reporlI, computer program.. descriptive materials, printed, written, or stored COIIlputer intbrmation, and 8I\Y oIher maUrials produced by Consultant aud nay of its employees during IIId as a reauIt of the perilrmlllce of the work uoder this Agreement, shan be ROBsr. property, the nature aud COIItc:Dts of which shall not be disclosed to oIhers without prior written COIIsent of ROBS!. All such property shall be delivered to ROBSI upon tennina1ion of this Agreem8llt or at any time upon ROBSrs request. Neither reports nor other printed matter will be provided by Consultlmt to ROBSI, oIher thm the required Monthly Slaw report, invoice and approved timesheet fur client. 5. RelatiODsJrip with Olllen: DuriDg the tenn of this Asreem'lIIt, Consultant will nol perform COllJnllin& services that are competitive in nature with those provided to ROBS! under this Agreement. Such prohibited services are defiDed as those consulting services in dIe specific areas in which the CoaIDItant hu provided consulting services nnder this Asrccment titr any other attity enPlled in the development, manufilclure, distributico, sale or marketing of products or services similar to the products and services of ROBS!. Consultant agrees that during the tenn of this Agr=iment md fur a period of twelw (12) months thereafter, the 6. Liability: ROBSI assumes DO liability for the aetivitiea of the CoasullaDt except for those activities specifically cIireeted by ROBSJ, within the parametera _blished by ROBS! and sound, reuonable practices associated with the aetivitiee of the Coasultant as directed by ROBS!. CODauItant shall nol be held liable for any failure to pertilrm on the pari of a client, when cIireeted to develop reIationshiplaDd pursue salee with, or offer asm-ce to, such clients by ROBSil. CODsultmt shall not be held liable for auy failure in products or services Consultant sells, fllltIers or fiu~liWea for clienll on bebalf of ROBS! aDd shall be protected from such risb by ROBSI in the coune of lIctivltiee Coasultant Is directed to perilrm by ROBSI. The Consultant agrees to lademaify and hold banalall ROBS!, its a16llatea, successors, divisions md subsidiaries, md the oftictn, directors IIId empJoywa of e&di of the fore&oing, ftom and aplnst my and all claims. loss or liability (iacluding atklmC)'l' re.) srising out of or in any way related to the services, labor and/or perfurmauce by Coaaultant of services bereuadcr, Includia& without limilation auy such loss or liability titr penooW injury or death or 1''''1'''1)' damsge 01 ~cticn, whether arising out of claims by employees of RDBSJ, employees of COlIsultanl, or my other third JIIfly. This lndomaity obligatiOll of Consultant sball1lntller extend to and iadude IIIIY and all claim. made aplnst RDBSJ, its aftili8tea aDd succesaors, and the ofticers, directon, aad llIIlployHa of each of the fitre&oina. by any employee of COD'Ultant, arisinJ from auy source while any IIlCh party is on or in lbe vicinity of premises owned, operated, leased or cootroIled by ROBSI, whether _ed by RDBSI aegligeace or otherwise. 7. Tel'lB of tile Acree...t The term of this AgreemllDl is specified on Page One of the AgreemCllt; however, either Coasultant or RDBS! may tmminate this AplDleat at auy time upon thirty (30 days notice to the oIher party. This AgreemllDl will be COII.idered immediately tmmiaated In the eveDtthat the c1i1nt refuses to accept titrther services from the Consultant. 8. SeverabiBty. If any provisiOll of this agreemllDl is held to be invalid, illegal, or wlllllforceable, in whole or part, such invalidity will nol affect auy oIherwise valid provi.i'llD. aud all other valid provlsioas will J'1I1Im In full force aad effect. 9. Entire AI........t; Modllleau.. This Agreement supenedes all pnvions agreemCllts, aegotiations, or commuaications between Consultmt aDd RDBSI aad contains the complete and exclusiw expression of lite uaderstandiag between the parties. This Agreement C8IIIIOl be amended, modified, or supplemented in any respect except by a subsequent written agreement enteted into I~ bolb parties. 18. Lapl Authority: This Agreement shall be coa.tnJed accordinll to the laws of the State ofPennsylvaala. Page 2 of3 21/06 2004 07:50 FAX 7036074866 CDTE HQ3330 raJ 004/005 11. Description of Serviees: To perform services o:ll-site at DlSAlDECC facilities as described in DlSAlDECC Task Order (Copy to be provided). RDB Services, IDe. CODsultant By.~ (SIgna r,e Jl :!de) .J;6:>. ~~..5 Robert D. Berry President/Owner ROB Services, Inc. 1111 Tiverton Road, Suite 201 Mechanicsburg. P A 17050 Voice: (717) 728-9890 Fax: (717) 7211-0899 E-mail:rberrv@gte.net '~~L (S' Date)", ,/rJ >- Consultant's 1IQ1tU!, . telephone &; e-mail: Don PfBIzgraf 9827 Rand Drive Burke. VA 22015 (703) 425-2150 DonP1illzgraf@hotmail.com Page 3 00 21/06 2004 09:32 FAX 7036074866 06/21/2004 09:14 7172386190 CDTE HQ3330 TOMASKO&KCH~ I4J 007/007 PAGE 07 VERIFICATION I verify that the statements made in the attached :REPLY TO NEW MAnER, AN- SWER TO COUNTERCLAIM WITH NEW MATTER an' txue and oo=t to the best of my knowledge, infonnation and belief. I understand that false statements herein arc made subject to penalties oil8 Pa. C.S. ~4904 relating to unsworn falsification to authorities. DATED: CERTIFICATE OF SERVICE AND NOW, thi~ay of ~ ,2004, I, Michael A. Koranda, Esquire, attorney for the Plaintiff, hereby certify that I served the within REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM WITH NEW MATTER this day by: u.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTHPAXSONLLP 112 Market Street, 8th Floor Harrisburg,PA 17101 By:.//~~L MICHAEL A. KORANDA (J c-- ~l ....., <= C'.:) -'>- , ~t~~ N N o .. :r IT)::rJ ,- -om :l"J9 ~l(~-) ;r:r; ~2?~ ()fori :;! :u -< F>:' U1 W DONALD PFALZGRAF, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLA}U) COUNTY, PENNSYLVANIA vs. NO. 04-1387 RDB SERVICES, INC., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL DISCOVERY AGAINST DEFENI>ANT NOW COMES the Plaintiff, Donald Pfalzgraf, by and through his attorneys, TOMASKO & KORANDA, p.C., and hereby moves this Court to enter an order pursuant to Pa. R.C.P. No. 4019 directing Defendant, RDB Services, Inc., to respond to Plaintiffs interrogatories and request for production of documents. In support for the allowance of this motion, Plaintiff respectfully represents: 1. The instant action in assumpsit was commenced by means of a Complaint served on the above-named Defendant, RDB Services, Inc., on April 24, 2004. 2. On July 14, 2004, Plaintiff served Defendant with Plaintiffs First Set of Interrogatories and Plaintiffs First Request for Production of Documents and Things. A true and correct copy of the aforesaid discovery is attached hereto as Exhibit "A" and incorporated herein. 3. Pursuant to Pa. R.C.P. 4006(a)(2) and 4009.12(a), Defendant's response to the discovery was due on or before August 16, 2004. 4. By letter dated August 17, 2004, counsel for Plaintiff advised counsel for Defendant that the discovery was overdue and warned of Plaintiff s intention to request sanctions ifthe discovery was not produced by August 27,2004. A true and correct copy of counsel's letter dated August 17,2004, is attached hereto as Exhibit "B" and incorporated herein. 5. Defendant has, to date, failed and/or refused to respond to Plaintiffs discovery. 6. Plaintiffs believe, and therefore aver, that Defendant will not respond to the discovery absent a Court order pursuant to Pa. R.C.P. 4019(a)(l )(i). WHEREFORE, Plaintiffs respectfully request that this Court enter an Order, in the form annexed hereto, directing Defendant to serve verified answers to Plaintiffs' First Set of Interrogatories, and full and complete responses to Plaintiffs First Request for Production of Documents and Things within fifteen (15) days or suffer appropriate sanctions to be imposed pursuant to Pa. R.C.P. 4019 upon further application to the Comt. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, P A 1710 1 Telephone: (717) 238-1100 By .///~~ ~ELA. KORANDA PA ill #58808 Attomey for Plaintiff -2- TOMASKO & KORANDA, P.C. Attorneys at Law 219 Slale Street Harrisburg, Pennsylvania 17101 RONALD T. TOMASKO MICHAEL A. KORANDA ..e-. Telephone (717) 238-1100 Fax (717) 238-6190 Email: contact@t-klaw.com July 14, 2004 Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, PA 17101 Re: Donald Pfalzgrafv. RDB Services, Inc. Cumberland Co. C.C.P. No. 04-1387 Dear Mr. Metz: Enclosed you will find Plaintiffs First Set of Interrogatories and Plaintiffs First Request for Production of Documents and Things in the above-captioned matter. Please instruct your client to respond to this discovery withing 30 days after service thereof. Thank you for your cooperation in this matter. Very truly yours, MAK: Enclosures cc: Mr. Donald Pfalzgraf (with enclosures) EXHIBIT A DONALD PFALZGRAF, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 04-1387 RDB SERVICES, INC., CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT: To: Defendant, RDB Services, Inc. c/o Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, PA 17101 NOW COMES the Plaintiff, Donald Pfalzgraf, by and through his attorneys, TOMASKO & KORANDA, P.C., and directs the following first set of interrogatories to the Defendant, RDB Services, Inc., pursuant to Pennsylvania Rule of Civil Procedure No. 4005. You are requested to provide verified answers to the following interrogatories in writing within thirty (30) days after service hereof. I. INSTRUCTIONS: A. In response to these interrogatories, furnish not only such information as is available to the particular individuals answering and responding to these interrogatories, but also such information which is known to any officer, trustee, director, employee, representative, agent or affiliate of the Defendant, including the Defendant's attorneys, investigators, consultants, engineers, contractors and subcontractors, and experts unless such information is privileged from discovery. B. With respect to any document for which you claim a privilege, state the privilege involved, state the factual and legal basis ofthe privilege, and identify the document, including the general subject matter, but not the substance, by stating (a) the date, (b) author or addressor, ( c) addressee and recipients of all copies, (d) type of documents (e.g., letter, memorandum, telegram, chart, photograph, brochure) or some other means of identifying it, and ( e) its present location or custodian. C. Ifthe person or persons answering these interrogatories are unable to answer or respond to any Interrogatory requests fully and completely, after exercising due diligence to secure the information necessary to make such full and complete answers and responses, such person or persons should answer each Interrogatory to the fullest extent possible. In addition, it should be stated that the remainder of the Interrogatory cannot be answered, and whatever information or knowledge such person or persons may have conc<eming the unanswered portions should be disclosed in full. D. Pursuant to Rule 4007.4'ofthe Pennsylvania Rules of Civil Procedure, each of the following interrogatories shall be deemed to be continuing so as to require the Defendant to file supplementary answers or response if the Defendant knows that a response or answer was incorrect when made or is no longer correct in the light of intervening events of which the Defendant has knowledge. II. DEFINITIONS: A. "Plaintiff' shall mean Donald Pfalzgraf. B.. "Defendant" shall mean RDB Services, Inc., and any officer, trustee, director, employee, representative, agent or affiliate ofRDB Services, Inc. C. "And" shall also mean "or" and vice versa. D. "Any" shall also mean "all" and vice versa. E. "Communication" means not only oral communications but also any "docwnents," whether or not such docwnent or the information contained therein was transmitted by its author to any other person. F. "Describe" or "Description," when used with respect to any act, action, accounting, activity, audit, practice, process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme, communication, conference, discussion, development, service, transaction, instance, incidence or event, mean to provide the following information: (1) its general nature; (2) the time and place thereof; (3) a chronological account setting forth each element thereof, what such element consisted of and what transpired as part thereof; (4) the identity of each person who performed any function or had any role in connection therewith (i.e., speaker, participant, contributor or information, -2- witness, etc.) or who has any knowledge Ithereof; (5) the identity of each document which refers thereto or which was used, referred to or prepared in the course of as a result thereof; and (6) the identity of each oral communication which was a part thereof or referred thereto. When used in connection with any calculation or computation, the terms "describe" or description" mean to provide the fOllowing information: (7) an explanation of its meaning (including dl1e nature, source and meaning of each component part thereof); (8) an explanation of the manner in which it was derived; (9) the identity of each person who performed any function with respect thereto; (10) the identity of each document which refers thereto or which was used, referred to or prepared in the course of as a result thereof; and (11) the identity of each oral communication which occurred in the course of the preparation thereof or which referred thereto. G. "Documents" means any written, recorded, printed typed or other graphic matter of any kind or nature, however, produced or reproduced, whether sent or received or neither, including drafts or copies bearing meaning, notations or marks not found on or in the original, and includes but is not limited to: (1) all letters or other forms of correspondence or communication, including envelopes, notes, emails, electronic messag1es, telegrams, cables, telex messages, and other messages (including reports, notes, notations and memoranda of or relating to telephone conversations or conferences); (2) all memoranda, reports, test results, financial statements or reports, account ledgers, notes, transcripts, tabulations, studies, analyses, evaluations, projections, work papers, corporate records or copies thereof, lists, comparisons, questionnaires, surveys, charts, graphs, summaries, extracts, statistical records, compilations; (3) all desk calendars, appointment books, diaries; (4) all books, articles, press releases, magazines" newspapers, booklets, circulars, bulletins, notices, instructions, manuals; (5) all minutes or transcripts of all meetings; and (6) all photographs, microfilms, phonographs, tapes or other records, punch cards, magnetic tapes, discs, data cells, drums, print-outs, and other data compilations form which information can be obtained. H. "Factual basis" means (a) set forth each item of information upon which the allegation, contention, claim or demand to which it pertains is based', and (b) with respect to each such item of information, identify each person having knowledge thereof and identify and describe each source thereof, including but not limited to each document, oral communication, -3- act, action, activity, accounting, negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship, scheme, conference, discussion, development, service, instance, incident, event, calculation and computation upon whi,~h you rely with respect thereto. 1. "Identify" or "Identification" means, when used in reference to: (1) an act (including an alleged omission), communication, meeting, conversation, occurrence, statement or conduct (herein collectively called "ace'), means to: (a) describe the substance of the event or events constituting such act and state the date when such act O(:curred; (b) identify each and every person participating in such act; (c) identify all other persons (if any) present when such act occurred; (d) state whether any minutes, notes, memoranda, or other record of such act was made; (e) state whether such record now exists; and (f) identify the person or persons presently having possession, custody, or control of each such re(:ord. (2) a natural person, his or her: (a) full name; (b) present or last known residence and business address (including street name and number, city or town, and state or county); (c) present position, business affiliation, and job description (if the present business or residence addresses or present position, business affiliation, or job description are unknown, so state and provide the corresponding last known information); (d) position, business affiliation, and job description at the time in question. (3) a Document: (a) its description (e.g., letter, memorandum, report, etc.); (b) its title, date, and the number of pages thereof; (c) its subject matter; (d) its author's identity; (e) its addressee's identity; (f) the identity of each person by whom copies were received; (g) its present location and its custodian"s identity (if such document was, but is no longer, in the possession of or subject to control of the Defendant, such a statement and the manner and date ofthe disposition made thereOf). (4) an oral communication: (a) its date and the place where it occum~d; (b) its substance; (c) the identity ofthe person who made the communication; (d) the identity of each person to whom such communication was -4- made, and each person who was present when such communication was made. (5) a corporate entity: (a) its full corporate name; (b) its date and place of incorporation, if known; (c) its present address and telephone number. (6) any other context: (a) a description with sufficient particularity that the thing may thereafter be specified and recogniized, including relevant dates and places, and the identification of relevant people, entities and documents; (b) when used as part of a request for evidence supporting a particular allegation or contention, it includes identification of documentary evidence, including documents produced by others as part of the discovery process, experts' reports" and applicable portions of deposition transcripts, identification of oral communications, any and all other forms of evidence, whether or not the Defendant has finally decided on its use in this action. J. "Relate to" (or a form thereof) shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recordiing, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating, or relevant to. As indicated, the term necessarily includes information which is in opposition to as well as in support of the position(s) and claim(s) of Defendant in this action. -5-. III. INTERROGATORIES: 1. Company Infonnation. __ State: a. The date, place and year of incorporation ofRDB Services, Inc.; b. Each other name, if any, which you have used or by which you have been known; c. The address of your primary place of business; d. The identity of all officers, directors and ,employees ofRDB Services, Inc., from January 2, 2003 to the present; e. The physical loc.ation and custodian of all corporate books, minutes, resolutions, and other documents reflated to actions or activities undertaken or contemplated by the directors. 2. Insurance. -- If you are covered by any type of insurance, including any excess or umbrella insurance, that might be applicable to the claims asserted in this matter, state the following with respect to each such policy; a. The name of the insurance carrier which issued the policy; b. The named insured under each policy and the policy number of each policy; c. The type(s) and effective date(s) of each policy; d. The amount of coverage provided for injury to each person, for each occurrence, and in the aggregate for each policy; and e. Each exclusion, if any, in the policy which is applicable to any claim thereunder and any reasons, if any, why YOUI or the carrier claim the exclusion is applicable. -6- 3. Factual basis for claims and defenses. -- State with particularity the factual basis for each claim and defense you are asserting in this case. -7c 4. Witnesses. __ a. Identify each person who: (1 ) Was a witness to the facts alleged in the pleadings through sight or hearing and/or (2) Has knowledge offacts alleged in the pl~adings. b. With respect to each person so identified, state what that person saw or heard, and/or the nature of his /her knowledge. 5. Statements. -- If you know of anyone that has given any statement (as defined by the Rules.ofCivil Procedure) concerning this action or its subject matter, state: a. The identity of such person; b. When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and c. The identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. -8- 6. Reports of incident. -- Identify all documents (except reports of experts subject to Pa. R.C.P. 4003.5) which describe the incident or the cause then~of. 7. Demonstrative evidence. -- If you know of the existence of any photographs, motion pictures, video recordings, maps, diagrams, or models relevant to the claims and defenses asserted in the pleadings, state: a. The nature or type of such item; b. The date when such item was made; c. The identity of the person that prepared or made each item; and d. The subject that each item represents or portrays. -9- 8. Trial preparation material. -- If you, or someone not an expert subject to Pa. R.e.p. 4003.5, conducted any investigations of the incident, identify: a. Each person, and the employer of each person, who conducted any investigation(s); and b. All notes, reports or other documents prepared during or as a result of the investigation(s) and the persons who have custody thereof. 9. Trial witnesses. -- Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified state your rdationship with the witness and the substance of the facts to which the witness is expected to testifY. -10- 10. Expert witnesses. -- IdentifY each expert you intend to call as a witness at the trial of this matter, and for each expert state: a. The subject matter about which the expert is expected to testify; b. The substance of the facts and opinions to which the expert is expected to testifY and a summary of the grounds for each opinion. (You may submit as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert); lmd c. The professional qualifications of the expert. 11. Trial Exhibits. -- IdentifY all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. -11- 12. With respect to Paragraph Nos. 5, 7, 11 and 13 of your Answer, state with specificity the factual basis for your claim that Plaintiff "violated" the Consulting Agreement, including, but not limited to: a. The specific act or acts which Plaintiff committed in violation of the Consulting Agreement; b. The date(s) which Plaintiff allegedly committed the act or acts; c. The date(s) on which Defendant learned filat Plaintiff had committed the act or acts; d. The manner in which Defendant learned that Plaintiff had committed the act or acts; and e. The identity of all individuals who have knowledge of the act or acts. 13. With respect to Paragraph No. 16 of your Counterclaim, state with specificity the factual basis for your claim that Plaintiff "engaged in discussions with competitors ofRDB with a view towards cutting RDB out of payment for any future work," including, but not limited to: a. The sum and substance of the alleged discussions; b. The identity of the competitors; c. The date(s) of the alleged discussions; d. The date(s) on which Defendant learned about the alleged discussions; e. The manner in which Defendant learned about the alleged discussions; and f. The identity of all individuals who have knowledge of the alleged discussions. -12- 14. With respect to Paragraph No. 17 of your Counterclaim, state with specificity the factual basis for your claim that Plaintiff "revealed proprietary data ofRDB," including, but not limited to: a. A description of the proprietary data which Plaintiff allegedly revealed; b. The identity of the individuals or entities whom Plaintiff allegedly revealed the proprietary data to; c. The date(s) on which Plaintiff allegedly r1evealed the proprietary data; d. The date(s) on which Defendant learned that Plaintiff had allegedly revealed the proprietary data; e. The manner in which Defendant learned that Plaintiff had allegedly revealed the proprietary data; and f. The identity of all individuals who have knowledge of that the Plaintiff had revealed proprietary data. -13- 15. With respect to Paragraph No. 18 of your Counte:rclaim, state with specificity the factual basis for your claim that Plaintiff "revealed information and papers belonging to RDB to its competitors," including, but not limited to: a. A description of the information and pape:rs which Plaintiff allegedly revealed; b. The identity of the individuals or entities whom Plaintiff allegedly revealed the information and papers to; c. The date(s) on which Plaintiff allegedly revealed the information and papers; d. The date(s) on which Defendant learned that Plaintiff had allegedly revealed the infoimation and papers; e. The manner in which Defendant learned that Plaintiff had allegedly revealed the information and papers; and f. The identity of all individuals who have knowledge of that the Plaintiff had revealed the information and papers. -14- 16. With respect to Paragraph No. 20 of your Counterclaim, state with specificity the factual basis for your claim that Plaintiff "caused damage to RDB by causing it to miss out on subsequent contracts with the federal government," including, but not limited to: a. A description of the contract(s) which Defendant allegedly missed out on because of Plaintiff; b. The date(s) on which Defendant applied or bid on the contract(s); c. The date(s) on which the contract(s) was/were awarded; d. The identity of the governmental official who decided to award the contract to someone other than Defendant; f. The identity of all individuals who have knowledge of this allegation. 17. With respect to Paragraph No. 20 of your Counterclaim, state with specificity the factual ba.sis for your claim that "[ s laid contracts exceed several hundred thousand dollars in value." -15- 18. With respect to Paragraph No. 20 of your Counterclaim, state with specificity any and all attempts you made to mitigate the alleged damages. 19. Answers to interrogatories. -- IdentifY all persons that have provided any informa- tion in answering these interrogatories, or portion thereof, and identifY the answers to which that person contributed. Respectfully submitted, TOMASKO & KOJRANDA, P.C. 2 I 9 State Street Harrisburg, PAl 7 IO I Telephone: (717)238-1100 By~~4 PA ID #58808 -16- CERTIFICATE OF SERVICI~ AND NOW, this /!I!l day of lJA' Y . 2004, I, Michael A. Koranda, Esquire, attorney for the Plaintiff, hereby certifY that I served the within PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT this day by: U.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, PA 17101 By~%eP( MICHAEL A. KORANDA DONALD PFALZGRAF, Plaintiff, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 04-1387 RDB SERVICES, INC., CIVIL ACTION .. LAW Defendant. JURY TRIAL DEMANDED To: Defendant, RDB Services, Inc. c/o Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg,PA 17101 PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS DIRECTED TO DEFENDANT NOW COMES the Plaintiff, Donald Pfalzgraf, by and through his attorneys, TOMASKO & KORANDA, P.C., and directs the following first request for production of documents and things to the Defendant, RDB Services, Inc., pursuant to Pennsylvania Rule of Civil Procedure No. 4009. Defendant is requested to produce and/or make available the requested documents within thirty (30) days after service hereof. I. INSTRUCTIONS: A. In response to this request for production of documents, furnish not only those documents that are available to the particular individuals answering and responding to these re- quests, but also such documents which are known to any officer, tmstee, director, employee, representative, agent or affiliate of the Defendant, including the Defendants' attorneys, investiga- tors, consultants, engineers, contractors and subcontractors, employees, agents and experts unless such information is privileged from discovery. B. With respect to any document for which you claim a. privilege, state the privilege involved, state the factual and legal basis of the privilege, and identify the document, including the general subject matter, but not the substance, by stating (a) the date, (b) author or addressor, (c) addressee and recipients of all copies, (d) type of documents (e.g., letter, memorandum, telegram, chart, photograph, brochure) or some other means of identifying it, and (e) its present location or custodian. C. If the person or persons responding to this request for production of documents are unable to answer or respond fully and completely to any requests, after exercising due diligence to secure the documents necessary to make such full and complete responses, such person or persons should respond to each request to the fullest extent possible. D. Each of the following requests for production of documents shall be deemed to be continuing so as to require the Defendant to file supplementary response if the Defendant knows that a response was incorrect when made or is no longer correct in the light of intervening events of which the Defendant has knowledge. II. DEFINITIONS: Plaintiff incorporates by reference the definitions contained in Plaintiff's First Set of Interrogatories Directed to Defendant. III. DOCUMENTS TO BE PRODUCED: I. Any and all documents identified in response to your answers to interrogatories. 2. Any and all statements made by any party or any witness concerning this lawsuit or its subject matter pursuant to Pa. R.C.P. No. 4003.4. 3. Any and all documents related to any claims or defenses asserted by the parties, including, but not limited to, any documents which relate to the allegations contained in Paragraph Nos. 5, 7, 8, II and 13 - 20 of your Answer, New Matte'r and Counterclaim. 4. Any and all documents related to the damages which you allegedly suffered. 5. damages. Any and all documents related to your attempt(s) to mitigate your alleged 6. Any and all documents, reports, notes, memoranda, summaries and/or records of any kind relating to any and all interviews of any and all parties and witnesses or individuals made by an investigator, adjuster, insurer or any other agent or representative of the parties to whom this request is directed, other than his or its attorneys. 7. Any and all expert reports prepared by any expert engaged by the party to whom this request is directed, who will be called to testify at the trial of this case. This request is inclusive of any and all reports prepared by said experts during the I~ourse of the engagement by Defendant dealing with any factual issue involving the case and any and all facts and data which -2- have been reviewed by said expert and any and all opinions which he or she has rendered. 8. Any and all documents or exhibits which you intend to rely upon or introduce at trial of this litigation. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, PA 17101 Telephone: (717) 238-1100 BY~~P/ / MICHAEL A. KORANDA PA ID #58808 -3- CERTIFICATE OF SERVICE AND NOW, this.H1ay of 0t.A::. Y .2004, I, Michael A. Koranda, Esquire, attorney for the Plaintiff, hereby certify that I served the within PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND THINGS DIRECTED TO DEFENDANT this day by: U.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTHPAXSONLLP 112 Market Street, 8'h Floor Harrisburg, PA 17101 .4'~ MICHAEL A. KORANDA TOMASKO & KORANDA, I).C. Attorneys at Law 219 State Street Harrisburg, Pennsylvania 17101 RONALD T. TOMASKO MICHAEL A. KORANDA ~.., Telephone (717) 238-1100 Fax (717) 238-6190 Email: contact@t-klaw.com August 17,2004 Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, PA 17101 Re: Donald Pfalzgrafv. RDB Services, Inc. Cumberland Co. C.C.P. No. 04-1387 Dear Mr. Metz: On July 14, 2004, I served you with Plaintiffs First Set of Interrogatories and Plaintiff's First Request for Production of Documents and Things in the above-captioned matter. Your response to the discovery is overdue. Unless I receive full and complete responses by August 27, 2004, I will be forced to file a motion to compel and request for sanctions. Thank you for your cooperation in this matter. Very truly yours, TO~ASK~ KC~~, ~/ ~...4~ MICHAEL A. KORANDA MAK: cc: Mr. Donald Pfalzgraf EXHIBIT B CERTIFICATE OF SERVICE AND NOW, this ttty of . ~.#7~ , 2004, I, Michael A Koranda, Esquire, attorney for the Plaintiff, hereby certify that I served the within PLAINTIFF'S MOTION TO COMPEL DISCOVERY AGAINST DEFENDANT this day by: U.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg,PA 17101 BY:~~ MICHAEL A KORANDA -~ C-.-' '"-';: o " .-4 T-n n;p i-:-1 o C~) ";-1 , ) -fOil ) "' ;E'-, ~'.< "",) ", (.) , \.~) , DONALD PFALZGRAF, Plaintiff v. RDB SERVICES, INC., Defendant . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-1387 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of September, 2004, upon consideration of Plaintiffs Motion To Compel Discovery against Defendant, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. ~chael A. Koranda, Esq. 219 State Street Harrisburg, PA 17101 Attorney for Plaintiff ) ~oseph U. Metz, Esq. 112 Market Street 8th Floor Harrisburg, PA 17101 Attorney for Defendant :rc BY THE COURT, ! {tie-.. J.}Wesley 01 V . \JIN\] r:-V.S\.H'\:id 1"Nn~r' ,-" "~~" ,-.-.,,,,,", ru...1 ,\'~: -' '. __' "J~', :_.':,:,\' -it tv L \ :2\ Hd O~ d3S ~UOZ kiVlO,jCH10dd 3\-\l :l0 3:J\:J:\crG3l\:1 , ," " DONALD PFALZGRAF, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 04-1387 RDB SERVICES, INC., Defendant. CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Michael A. Koranda, Esquire, counsel for the plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $11,775.00, plus statutory interest and costs of suit. The counterclaim of the defendant in the action is unliquidated. 3. The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators: Michael A. Koranda, Esquire Tomasko & Koranda, P.c. 219 State Street Harrisburg, PAl 71 0 1 Joseph U. Metz, Esquire Dilworth Paxson LLP 112 Market Street, 8th Floor Harrisburg, PAl 71 01 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, TOMASKO & KORANDA, P.C. 219 State Street Harrisburg, PA 17101 Telephone: (717) 238-1100 BY:~~ MICHAEL A. KORANDA PAID #58808 CERTIFICATE OF SERVICE AND NOW, this ~ day of AIoLFfJ&;e , 2004, I, Michael A. Koranda, Esquire, attorney for the Plaintiff, hereby certify that I served the within PETITION FOR APPOINTMENT OF ARBITRATORS this day by: U.S. Mail, first class, postage prepaid, addressed to: Joseph U. Metz, Esquire DILWORTH PAXSON LLP 112 Market Street, 8th Floor Harrisburg, P A 17101 By:~wd MICHAEL . KORANDA (J 1'i t;- ~ ~ '3 .-..o,-!:: ~ {q. ""'" n o C> p! !f ""':'1 !~.; 1 ~}) II I - _. . l o ~,: '. (.:/ ~;. /~ =~~ '.- .- f'--:) t"..::;.:> ~::":',> ..c;- O r'l'1 ...-) [) -1'1 ~~?: r' f' e:::J I () :.,~,; ('5 If) I W -1:) _;1;..., ':::) c.n DONALD PFALZGRAF, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 04-1387 RDB SERVICES, INC., Defendant. : CIVIL ACTION - LAW ORDER OF COURT AND NOW, /f!t~~/l/ ~ ~~fl-d~ ,Esquireand I-/~~"'./ ~ 2004, in consideration of the foregoing petition, , Esquire, /jt17UU/A'~ , Esquire, are appointed arbitrators in the above-captioned action as prayed for. By the Court, I( Illr , PI \/;~\r-~//'lA> :;\;r~J .3d J J1'-\.....,~.-...,.~\ ~..,..l '-'.,t;','!.ll'{r'\ I\..U...:~ ~:. '. i - . 1 'i: lV 82 : II ~~lt 9- :)30 ~DUZ !~jdvl()>-;C;'ilJ~'(3d 3:11 ~O 3;)1:L-!()~'Q::r1;j ~foI ~ r/tmtiff RbR ~J(;4 {KC-. , Defendant Oath We do solemnly swear (or affirm) that we wj]] support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. ~~~L~ Slgnature tJ~~/!. /!/~#{S Name (Chairman) H~Clln/v}cd.,(& PI! !/{)5 D City, Zip it IS.:l.~o Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Not~: If damages for delay are aW5\1'ded, they shall be separately stated.) ~!a:;~~?~1/ ~ ~ ,4W<CA~.. ~~,1}' /1. 770~~ Law Firm ,<///1 ;27 0. Mjt .s(_. A nnros, &.A.-t.;t; A 17013 City, Zip i'- /&/71 In The Court of Common Pleas of Cumberland County, Pennsylvania No. 0 'I- /3 g 7 Civil Action - Law. c.-- s111/ --- ~ LAwtM.f:/i ~ 7JlO>>1Af J 1l!l~4, J Name Name A;yRf:/vJ Lnw hl!."'-.. Fe. Law Firm 5521 fJ'1K.L,J0 f1,i~ ~s fAfs7tt'n Law _, "j5/). 0.~ la, A.odre,' .ArirJrF:8t:: c4:t tfrtJ. f1. 171D1 Zip " Jon,;' Date of Hearing: ~ -.;2 0'0 j'- Date of Award: (;-;zo 00- . Arbitrator, dissents. (Insert name if applicable.) ~~4~L- --r ~ 1-'~ r::. (Chainnan)ii'!ll~i;j[!i~lii / _ ffi'iJ;~'1>"""~">"~;:'''-~;';~, ,~, .-,..!,"""...,\""\.':'<....1..-";j.:~'\~ e...&2 CJ Notice of Entry of Award 'l~r~lr. Now,the ,1/4 dayof (1.. ,20 off' ,at 02.'3) , c?M.,theaboveawardwas entered upon the docket and notice tJi'ereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ ~ 90. UV Pr thonotary By: Deputy ~~~ ~u.~.~. '..,21-01' ~' (1~, f1. L}--. , .. , (") C ;:> ''"'' = = c.n o .." ...... :J:"'Tl J<lp:= --::Ji"Ti -.J r-J o~ J: ~-~ ~~) ~~~~ ,~5rTi .-, c,. ~.o -< '-- C: 1'0 ,1 ::::; N G0 ,'.' . .,'