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HomeMy WebLinkAbout09-2035HARVEY PENNINGTON, LTD. By: Linell M. Lukesh, Esquire/John P. Hartley, Esquire Identification No.: 75412/47106 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Attorneys for Plaintiff Verizon Pennsylvania, Inc. VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION - LAW VS. NESBIT DEVELOPMENT, LLC, NO. 04- aGS5 Defendant. ARBITRATION CASE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 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 Toll Free 1-800-990-9108 Tel. 717-249-3166 820892_1 HARVEY ? PENNINGTON, LTD. / By: Linell M. Lukesh, Esquire/John P. Hartley, Esquire Identification No.: 75412/47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-1044 Attorneys for Plaintiff Verizon Pennsylvania, Inc. VERIZON PENNSYLVANIA, INC., 401 South High Street, 2°a fl. West Chester, Pennsylvania 19382, Plaintiff, V. NESBIT DEVELOPMENT, LLC 555 Gettysburg Pike, Suite C-400 Mechanicsburg, PA 17055 Defendant. COMPLAINT COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 0 4- 2 0 3 3 & ? 7--4A,,- ARBITRATION CASE Plaintiff, Verizon Pennsylvania, Inc. (hereafter "Verizon"), by and through its attorneys, Harvey Pennington, Ltd., files this Complaint, and in support thereof respectfully avers as follows: Verizon is a corporation organized under the laws of the Commonwealth of Pennsylvania and is a public utility as defined by the Act of July 1, 1978, P.L. 598, No. 116 ("Public Utility Code") and engaged in the business of furnishing telecommunication services. 2. Defendant, Nesbit Developments, LLC (hereafter "Nesbit") is a Pennsylvania limited liability corporation with its principle place of business at 555 Gettysburg Pike, Suite C- 400, Mechanicsburg, Cumberland County, PA 17055. 820892_( 3. At all times applicable hereto Nesbit was engaged in the development of a piece of property at 555 Gettysburg Pike known as the Mountain View Office Park. 4. As part of the work for this development Nesbit either hired out or performed itself certain grading and/or landscaping at the entrance to Mountain View Office Park along Gettysburg Pike. 5. While performing the grading and/or landscaping at the entrance to Mountain View Office Park along Gettysburg Pike Nesbit, or its contractor, removed several feet of soil from around Verizon's utility pole number 103, undermining that utility pole, causing the utility pole to lean. 6. Because several feet of soil had been removed, which undermined Verizon's utility pole and caused it to lean, Verizon had to replace the utility pole with a longer utility pole. 7. As part of the work included in replacing the undermined utility pole, Verizon had to remove and reattach the utilities and other facilities attached to that utility pole. 8. As a result of this incident Verizon has been required to expend not less than $6,891.22 to replace the utility pole and remove and reattach the utilities and other facilities on that utility pole. Despite demand thereof, Nesbit has not compensated Verizon for the costs incurred by Verizon. A copy of Verizon's billing for this work is attached hereto as Exhibit "A." COUNT I -NEGLIGENCE (NESBIT) 9. Verizon incorporates by reference paragraphs 1 through 8 as though fully set forth herein at length. 10. At all times pertinent hereto Nesbit had the duty to perform its grading and/or landscaping operation and other work is such a manner so as to provide support for the pre- existing Verizon utility pole. 8208921 11. Nesbit breached this duty by failing to perform its grading and/or landscaping work in a competent and reasonable manner so as to maintain support for Verizon's utility pole. 12. Nesbit's failure to perform its grading and/or landscaping work in a competent and reasonable manner so as to maintain support for Verizon's utility pole was a proximate or contributing cause of the damage to Verizon's utility pole, utilities and other facilities. 13. The undermining of the utility pole and the damage to Verizon's utilities and other facilities was caused solely as a result of the negligence of Nesbit and Verizon has been injured because of this negligence. 14. The damage to Verizon's utility pole, utilities and other facilities is not in any way due to the action or inaction of Verizon. WHEREFORE, Verizon Pennsylvania, Inc. demands judgment against Nesbit Development, LLC in an amount not less than $6,891.22, together with interest and costs of this action, including attorney fees, and for such other and further relief as is just and proper. COUNT II -STRICT LIABILITY (NESBIT) 15. Verizon incorporates by reference paragraphs 1 through 14 as though fully set forth herein at length. 16. At all time pertinent hereto Nesbit had a duty to provide lateral support for Verizon's utility pole. 17. By its grading and/or landscaping operations and other work it performed Nesbit undermined the support for Verizon's utility pole. 18. The undermining by Nesbit of the support for Verizon's utility pole necessitated the replacement of that utility pole and the removal and reattachment of the utilities and other facilities attached to that pole. 8208921 19. Nesbit is strictly liable to Verizon because Nesbit undermined the support of Verizon's utility pole, causing the damages complained of herein. WHEREFORE, Verizon Pennsylvania, Inc. demands judgment against Anrich, Inc. in an amount not less than $6,891.22, together with interest and costs of this action, including attorney fees, and for such other and further relief as is just and proper. COUNT III -NEGLIGENCE (RESPONDEAT SUPERIOR- NESBIT) 20. Verizon incorporates by reference paragraphs 1 through 19 as though fully set forth herein at length. 21. Alternatively, Nesbit hired a contractor to perform the grading and/or landscaping which undermined Verizon's utility pole. 22. At all times pertinent hereto Nesbit's contractor had the duty to perform its grading and/or landscaping operation and other work is such a manner so as to provide support for the pre-existing Verizon utility pole. 23. Nesbit's contractor breached this duty by failing to perform its grading and/or landscaping work in a competent and reasonable manner so as to maintain support for Verizon's utility pole. 24. Nesbit's contactor's failure to perform its grading and/or landscaping work in a competent and reasonable manner so as to maintain support for Verizon's utility pole was a proximate or contributing cause of the damage to Verizon's utility pole, utilities and other facilities. 25. The undermining of the utility pole and the damage to Verizon's utilities and other facilities was caused solely as a result of the negligence of Nesbit's contractor and Verizon has been injured because of this negligence. 8208921 26. The damage to Verizon's utility pole, utilities and other facilities is not in any way due to the action or inaction of Verizon. 27. Nesbit is liable to Verizon for the actions and failures to act of its contractor in the performance of the grading and/or landscaping work. 28. Accordingly, Nesbit is liable to Verizon for damages caused to Verizon arising from the negligence of Nesbit's contractor in the grading and/or landscaping work which undermined Verizon's utility pole. WHEREFORE, Verizon Pennsylvania, Inc. demands judgment against Nesbit Development, LLC in an amount not less than $6,891.22, together with interest and costs of this action, including attorney fees, and for such other and further relief as is just and proper. COUNT IV -STRICT LIABILITY (RESPONDEAT SUPERIOR- NESBIT) 29. Verizon incorporates by reference paragraphs 1 through 28 as though fully set forth herein at length. 30. Alternatively, Nesbit hired a contractor to perform the grading and/or landscaping work which undermined Verizon's utility pole. 31. At all time pertinent hereto Nesbit's contractor had a duty to provide lateral support for Verizon's utility pole. 32. By its grading and/or landscaping operations and other work it performed Nesbit's contractor undermined the support for Verizon's utility pole. 33. The undermining by Nesbit's contractor of the support for Verizon's utility pole necessitated the replacement of that utility pole and the removal and reattachment of the utilities and other facilities attached to that pole. 34. Nesbit is liable to Verizon for the actions and failures to act of its contractor in the performance of the grading and/or landscaping work which undermined Verizon's utility pole. 8208921 35. Accordingly, Nesbit is strictly liable to Verizon for damages caused to Verizon arising from Nesbit's contractor's undermining of Verizon's utility pole and the failure to provide support for Verizon's utility pole. WHEREFORE, Verizon Pennsylvania, Inc. demands judgment against Nesbit Development, LLC in an amount not less than $6,891.22, together with interest and costs of this action, including attorney fees, and for such other and further relief as is just and proper. Respectfully submitted, HARVEY ? PENNINGTON Ltd. By: z Lv ?". k 0l M. Lukesh, Esquire Id. No.: 75412 John P. Hartley, Esquire Pa. Id. No.: 47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-1044 Attorneys for Plaintiff, Verizon Pennsylvania, Inc. 8208921 VERIFICATION I, John P. Hartley, Esquire, counsel for Plaintiff, Verizon Pennsylvania, Inc. hereby state that the authorized representative of Plaintiff, Verizon Pennsylvania, Inc. who would sign this Verification is outside the jurisdiction of this court and that such verification cannot be acquired before the filing of this Complaint. I make this verification based upon my review of the files of Plaintiff, Verizon Pennsylvania, Inc. relating to this matter and state that the statements of fact contained in the foregoing Complaint are true and correct to the best of my information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. Section 4904 relating to unsworn falsification of authorities. Date: 3 / GS ed 8208921 EXHIBIT "A" 8208921 BILLING STATEMENT Billing Date: 08/30/2007 Bill Number: 215UP217AO807 Mail Correspondence to: Bill Type: DCO CMR Claims Department Work Order: 004P217A PO Box 60770 Oklahoma City, OK' 73146. Questions? Call:(800)321-4158 DESCRIPTION OF DAMAGE TYPE OF FACILITY: VZ-Owned Pole/3 LOCATION: 555 GETYSBURG ROAD,BOWMANSDALE Damage Claim Number. PAPR071321 Date of Damage/Discovery: 04/20/2007 Charge Description Hours Amount LABOR 56.50 $ 5,298.05 ADMINISTRATIVE COST $ 585.95 ENGINEERING 1.75 $ 277.89 MATERIAL 544.36 MOTOR VEHICLE COSTS $ 184.97 Total Amount Due Upon Receipt $ 6,891.22 Please write the bill 'number on your check. Mail bottom stub with your payment to address below. In the event your check for payment of your Verizon Communications bill is returned by your bank for insufficient or uncollected funds, Verizon may resubmit your check electronically to your bank for payment from your checking account. L Claim Number PAPR071321 Bill Number 215UP217AO807 Total Amount Due $ 6,891.22 S Please Pay Upon Receipt DAVE NESBIT 555 GETYSBURG RD STE C-40 Verizon MECHANICSBURG, PA 17055 P. O. Box 4864 Trenton, NJ 08650-4864 513215UP217A0807DC01083020073000000000068912202 VERIZON COMMUNICATIONS VSP BILLING EXPLANATION OF CHARGES BILLED TO: DAVE NESBIT BILL NUMBER: 215UP217AO807 COPY TO: DATE OF DAMAGE/DISCOVERY: 04/20/2007 BILL DATE: 08/30/2007 WORK ORDER NUMBER: 004P217A DAMAGE CLAIM NUMBER: PARR071321 INSURANCE CLAIM NUMBER: LABOR & ENGINEERING COSTS: HOURS EXPENDED BY TECHNICIANS AND/OR ENGINEERS DIRECTLY INVOLVED IN THIS WORK EFFORT AND COSTS FOR MANAGERIAL, TECHNICAL, AND CLERICAL PERSONNEL WHO PROVIDE ADMINISTRATIVE SUPPORT TO THE LABOR AND ENGINEERING STAFFS. ALSO INCLUDES COSTS FOR EQUIPMENT, COMPUTERS AND OFFICE SITES USED BY VERIZON PERSONNEL. LISTED BELOW ARE THE AVERAGE HOURLY RATES FOR PERSONNEL INVOLVED IN THIS NOR LABOR COSTS: ENGINEERING COSTS: 15.50 HOUR(S) @ $94.8567 PER HOUR TO REPAIR/REARRANGE $1,470.28 33.00 HOUR(S) @ $93.3584 PER HOUR TO REMOVE $3,080.83 8.00 HOUR(S) @ $93.3675 PER HOUR TO PLACE $746.94 TOTAL LABOR COSTS: $5,298.05 TOTAL LABOR HOUR(S): 56.50 1.75 HOUR(S) @ $158.7942 PER HOUR TO PLACE $277.89 TOTAL ENGINEERING COSTS: $277.89 TOTAL ENGINEERING HOUR(S): 1.75 MOTOR VEHICLE COSTS: COST OF TRANSPORTING EMPLOYEES, SUPPLIES, TOOLS AND OTHER WORK EQUIPMENT TO AND FROM WORK SITE. ALSO INCLUDES RUNNING EXPENSES (FUEL, OIL, TIRES) AND IS BASED UPON REPORTED LABOR HOURS. 56.50 HOUR(S) @ $3.2738 PER HOUR OF VEHICLE USAGE $184.97 MATERIAL COSTS: MATERIAL (MAJOR ITEMS) COSTS QUANTITY ITEM CODE DESCRIPTION 1 110045 POLE 45 FT AND OVER $351.25 MINOR MATERIAL COSTS MATERIALS USED DURING THE COURSE OF REPAIR. SUCH ITEMS WOULD INCLUDE CLAMPS, COMPOUND, CLOSURES, PEDESTALS, TERMINALS, NUTS, BOLTS AND SCREWS $76.42 PROVISIONING COSTS THIS INCLUDES THE COSTS ASSOCIATED WITH ORDERING, RECEIVING, STOCKING AND DELIVERY OF ITEMS TO THE JOB SITE $116.69 TOTAL MATERIAL COSTS: $544.36 ADMINISTRATIVE COST $ 585.95 TOTAL BILL $ 6,891.22 Page 1 of 1 Verizoe South Daily Labor Time Report crLn-ioi HRS/S FRC/FC 'KW 1 CO/AREA RUTH TAG/MACEM STUDY CODE MV/CRAS 0.5 1 C 32111 4P2112 0.5 1 C 32111 02114 0.5 1 C 32111 4P217A 2 M 32019 2 1.5 2 M 32111 6AOAD7S 1 1 C 32027 9A80543 1.5 82 C 32111 6AOADMK 8 Total Labor Hours Electronicall A ved B : Steven S tak Manager Driver On-Du Report or Hrs. Time Start Time Stop Total hours e ular Remarks: T otalOn-Time http:/riw081348.verizon.com/OSPWeb/training/timesheets/PrintTimeSheetsPagel .asp 7/25/2007 Page I of I Verizon South Daily Labor Time Report CMR-tai a/" 0.5 NPW FIRM FRC/FC K CO/AREA AUTH TAG/MACEM STUDY CODE MV/CRAS 2 45 R 31000 2 45 R 32000 0.25 1 C 32244 158 0.25 1 C 32111 17 1 C 32245 0.5 1 C 32019 456 t 0.5 2 C 32176 AGLH 0.25 2 C 32111 AGLH 0.5 2 C 32027 6AOAGLH 0.5 2 C 32119 6AOAGLH 7.5 Total Labor Hours Approved B : Driver On- Report or Hrs. Time Start Time Stop Total hours ar Remarks: T otalon-DuTime http:/rw081348.verizon.com/OSP Web/trainingltimesheets/PrintTimeSheetspage ].asp 7/25/2007 HRS/S SYM RCC Sc HRS. SYM RCC SC HRS/S SYM 1 Page 1 of 1 Verizon South Daily Labor Time Report CTLR-1a1 Sheet 1 of I 0.5 1 NPW HRS/$ FROM K CO/AREA AUTH TAG/MACEM STUDY CODE MV/CRAS 2 45 R 31000 2 45 R 32000 0.25 2 M 32238 4P2045 0.5 2 C 32245 4A23292 0.25 2 C 32027 6AOAD76 1 1 C 32111 4P217A I 2 C 32027 76 7.5 Total Labor Hours Electronically Approved B : Florence Abdullah Su r Driver On-Du Re rt or Hrs. Time Start re Stop Total hours e ular Remarks: T otalOn-Duty Time http://iw08l 348,verizon.comlOSPWebltrainingttimesheet&TrintTimeSheetsPage l .asp 5/9/2007 HRS/$ SYM RCC Sc HRS/$ SYM RCC SC HRS/$ SYM I a V a oC Z. V C 0 a c V W A p O C a? ?Q o000 ?' .•mmmmm.oo.maa i I .3333333333?i333333333 .333<?33?i333333<33?3?3 ??3?33333ci3331?3?333 88 8<$8 88$8<88<88 r; (4 W ed w w w w w w w w ngg w w 3<3 383 ii i !!IIi I fi<t`<< ?GivtSU?? U?????UUU R M111%CI?CO:111X X j I t s s s?a?sa? <3 3? 3 3 3 ? 13 3 ? ? 3 3 I? 3 3 3 3 $ 1 3 3 i 3 ,3 ? 8 $ f ? N ? N 3 8 8 3 8 8 3 '? v n w w$ w w w U UU U UU U U i f X X 'I U U ? U X X X a ?l a a -I a - N . N N ? A w ? A I- s s 3?? 3 m r 0 C 0 I cc I I V ? I i 1-40 C* r 11 a ?? E 9 of -) O (A W W } ?W 82 mNW ?? ?m W OW a Loa 0 ? D a r WHIM' ul WO & Z? 1?..r t3o o? z $$3a i Y a O ?g g r? Q O O a 8 i i I i i I I 1 1 1 E le C °z g 8? . a ? g 0 0 I? I ,8 (i I? I i I? f b' W S i I g Ig o r? 0 0 8 ? N g 8 8 0 8 m 8 I 3 I? Wm I? 1¢LL? K? F a' W I a O g S i s e i 8 C s F- N tU Q a E t 8 c4 8x s• g? N A 8 o Ut xC, y < W? Z i U 8 -1 43 ?c n .- e? ? to I? r w 8 J C 0 a? i gu !? u N i X C i ?c w e 2 g w a z IL I En w r f i C e 0 c v c 4 ? C O A v 42 c a c M •p 4 w a 7 H $ $ 8 8 O 8 17 O O ?Y 8888 X888 r- f aO, I S O v ??$$ 8°080° aC IA l7 N 02atx 9 Z C ? d? _M .?i yi • e s e 0 a 4 G • C • a r O C C w w a a? IL ? w 3 a c c c 0 w c e t F z 0 'c u 0 i re a FRSD-()? iCp TE Apo; OF k. ' ?T 2889APR-1 AH1J: p5 Pa $ ??? ??3asa VERIZON PENNSYLVANIA, INC., Plaintiff, VS. NESBIT DEVELOPMENT, LLC, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. X X--35' PRAECIPE FOR ENTRY OF APPEARANCE ON BEHALF OF PLAINTIFF To the Prothonotary: Kindly enter the appearance of Linell M. Lukesh, Esquire, and John P. Hartley, Esquire, of the law firm Harvey Pennington, Ltd., as counsel for Plaintiff, Verizon Pennsylvania, Inc. Documents may be delivered to the below address. Respectfully submitted, HARVEY ? PENNINGTON Ltd. By: Je1l M. Lukesh, Esquire Pa. Id. No.: 75412 John P. Hartley, Esquire Pa. Id. No.: 47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-1044 Attorneys for Plaintiff, Verizon Pennsylvania, Inc. 8209581 OF 7 `APR -? 04 4 Sheriffs Office of Cumberland County R Thomas Kline ou tv of culnb" Edward L Schorpp Sheri d. r. Solicitor Ronny R Anderson Jody S Smith Chief Deputy OPME of "= "ERIFF Civil Process Sergeant i SHERIFF'S RETURN OF SERVICE 04/14/2009 12:05 AM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on April 14, 2009 at 1325 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Nesbit Development, LLC by making known unto David Nesbitt, Owner at 555 17055 its contents and Gettysburg Pike, Suite c-100, Mechanicsburg, Cumberland County, Pennsylvani;me. at the same time handing to him personally the said true and correct copy of the SHERIFF COST: $41.02 April 15, 2009 Docket NO. 2009-2035 Verizon Pennsylvania v Nesbit Develognent, LLC SO - ? AAA R THOMAS K LINE, SHERIFF Deputy C N_ C= -n Cam.: 1 -y ' C M J : --- HARVEY PENNINGTON, LTD. By: Linell M. Lukesh, Esquire/John P. Hartley, Esquire Identification No.: 75412/47106 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Attorneys for Plaintiff Verizon Pennsylvania, Inc. IN THE COURT OF COMMON PLEAS OF VERIZON PENNSYLVANIA, INC., CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION - LAW VS. NESBIT DEVELOPMENT, LLC, NO. 09-2035 Defendant. ARBITRATION CASE PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned matter. Respectfully submitted, HARVEY ? PENNINGTON Ltd. Date: April 30, 2009 By: e M. Lukesh, Esquire P . Id. No.: 75412 John P. Hartley, Esquire Pa. Id. No.: 47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-1044 Attorneys for Plaintiff, Verizon Pennsylvania, Inc. 8227551 FILED- OF t` uL THE PR01, H'?NOTARY 200' MAY -1 AM IQ: 4 4 FEN? V/0-06 ?C? pg? 7 *;IL q4o? v Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants NOTICE TO PLEAD TO: Verizon Pennsylvania, Inc., Plaintiff You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a default judgment may be entered against you. 117 Respectfully Attorney for Defendants DATED: June 3, 2009 Atty. I.D. 43571 ANDREW W. Bmwm, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 717-506-4670 4. Denied as stated. Professional Office Developers LLC employed Hampton Construction, Ltd. to complete the grading related to the site work for the Condominium. Lawns Unlimited planted the grass and landscaping. 5. Denied. The grading was completed per a land development plan recorded on October 25, 2005 in Cumberland County Plan Book 91, Page 71 (the "Grading Plan"), which Grading Plan (Sheet 4 of 11 thereof) did not change the pre- and post-construction elevation of the grades immediately proximate to the pole location as claimed by Plaintiff. Pole #3 did not lean at the conclusion of the site work of Professional Office Developers LLC and its contractor Hampton Construction Ltd. any more than it did at the onset of the work. 6. Denied as to legal conclusion and fact. See Paragraph 5 above. The comparative length of the replacement pole is not known and is not material to the claim. 7. Denied as stated. The pole was not undermined. 8. Denied as stated. No evidence has been offered that less costly options were considered by Verizon. COUNT I - NEGLIGENCE 9. Responses to Paragraphs 1 through 8 are likewise incorporated herein by reference as if restated verbatim. 10. Denied as stated. Professional Office Developers LLC and its contractor Hampton Construction Ltd. fulfilled their duty of giving Verizon notice of the proposed site construction, arranging to meet in advance of construction to discuss details, and performing the site work without substantially disturbing the grading of the soil immediately proximate to the location of Pole #3. 11. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 12. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 2 13. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. Additionally, in an email dated October 22, 2007, to Jami R. Hutchins (a claims adjuster), Stephen McGarvey of Verizon Engineering said in part that "... it was the windstorm in early spring which caused the pole to lean." 14. Denied as to legal conclusion and fact. Verizon did not act in response to the Grading Plan at the February 27, 2006 pre-construction meeting which was attended by Joe Kirchner and Steve McGarvey of Verizon; Verizon did not respond to the Minutes sent on March 8, 2006 to Joe Kirchner and Steve McGarvey of the February 27, 2006 pre-construction meeting they attended; Verizon did not act as they frequently observed the site construction in process in relation to their engineering employees being on site to plan the installation on Pole #3 of the new FiOS facility in September 2006; and, Verizon did not object immediately after the site grading construction had been completed. Thereafter, Verizon did install a substantial amount of new FiOS cabling on to Pole #3 without first considering the adequacy of the Pole #3, for which the pole's inadequacy should have been obvious at that time if three feet of soil had been removed previously from its base as falsely contended by Verizon. WHEREFORE, Nesbit prays that Count I be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deem just. COUNT II - STRICT LIABILITY 15. Responses to Paragraphs 1 through 14 are likewise incorporated herein by reference as if restated verbatim. 16. Denied as stated. See Paragraph 10. Further, to the extent that "lateral support" raised by Plaintiff in Paragraph 16 may differ from "support" of Plaintiff's Paragraph 10 to imply 3 the provision of supportive structures or cabling, Professional Office Developers LLC and Hampton Construction Ltd. admit that they were prohibited from substantial contact or alteration of Pole #3 or any similar pole without express direction from Verizon, which did not occur. 17. Denied. 18. Denied. 19. Denied. WHEREFORE, Nesbit prays that Count II be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. COUNT III - NEGLIGENCE RESPONDENT SUPERIOR 20. Responses to Paragraphs 1 through 19 are likewise incorporated herein by reference as if restated verbatim. 21. Denied as stated. See Paragraphs 3 and 4. 22. Denied as stated. See Paragraph 10. 23. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 24. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 25. Denied as to legal conclusion and fact. See Paragraphs 5, 10 and 13. 26. Denied as to legal conclusion and fact. See Paragraph 14. 27. Denied. 28. Denied. WHEREFORE, Nesbit prays that Count III be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. 4 in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deem just. COUNT IV - STRICT LIABILITY RESPONDENT SUPERIOR 29. Responses to Paragraphs 1 through 28 are likewise incorporated herein by reference as if restated verbatim. 30. Denied. See Paragraph 21. 31. Denied. See Paragraph 16. 32. Denied. 33. Denied. 34. Denied. 35. Denied. WHEREFORE, Nesbit prays that Count IV be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. NEw MATTER AFFIRMATIVE DEFENSES TO COUNT I 36. Responses to Paragraphs 1 through 35 are likewise incorporated herein by reference as if restated verbatim. 37. The fact that Pole #3 leaned slightly prior to the start of any construction by Professional Office Developers LLC and its contractor Hampton Construction Ltd. is a proximate cause of the fact Pole #3 ultimately leaned so far that Verizon determined that it had to be replaced. 5 38. Nesbit, Professional Office Developers LLC and its contractor Hampton Construction Ltd. provided Verizon notice of the intended construction proximate to Pole #3 by providing a copy of the Grading Plan and an invitation to a pre-construction meeting held on February 27, 2006 at the offices of PPL. 39. Joe Kirchner and Steve McGarvey of Verizon attended the pre-construction meeting, and did not raise any objection or concern to the Grading Plan at the pre-construction meeting held on February 27, 2006 at the offices of PPL, or in response to Minutes of that February 27, 2006 pre-construction conference which were faxed to Joe Kirchner and Steve McGarvey of Verizon on March 8, 2006, despite the fact that said Minutes did not reference any concern of Verizon with regard to the planned construction proximate to the Verizon poles. 40. Verizon failed to raise any objection to the Grading Plan or actual construction activity at any time after said pre-construction meeting or during the course of construction. 41. Verizon has never provided a field survey to disprove the claim of Nesbit, Professional Office Developers LLC and its contractor Hampton Construction Ltd. that the post- construction and pre-construction grades proximate to Pole #3 are in fact any different than as pre- existed construction. 42. After completion of the work by Professional Office Developers LLC and its contractor Hampton Construction Ltd., Verizon effectively accepted the quality of the site work proximate to Pole #3 by failing to object to the conditions, which should have been plainly noticeable if there had been a three foot grade differential as claimed by Verizon. 43. After completion of the work by Professional Office Developers LLC and its contractor Hampton Construction Ltd., Verizon materially changed the conditions of Pole #3 by adding a substantial volume of FiOS cabling to the Pole #3, during which time Verizon had ample opportunity to inspect and object to the condition of Pole #3 and the adjacent grades but did not. 6 44. The addition of new FiOS to Pole #3 is relevant as a proximate cause since the FiOS was an addition of an increased amount of weight to Pole #3, which had a leaning condition which pre-existed the construction of Professional Office Developers LLC and its contractor Hampton Construction Ltd. 45. Verizon admits wind to be a proximate cause of Pole #3 ultimately leaning to failure, as reflected in the email referenced in Paragraph 13 hereof. 46. Count I fails to state a claim 47. Count II fails to state a claim 48. Count III fails to state a claim. 49. Count IV fails to state a claim. WHEREFORE, Nesbit prays that Plaintiffs Complaint dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. NEW MATTER AFFHtMATIVE DEFENSES TO COUNTS II, III AND IV 50. With regard to Count II, see Paragraphs 37, 41, 43, 44 and 45. 51. With regard to Count III, see Paragraphs 37 through 45. 52. With regard to Count IV, see Paragraph 46. WHEREFORE, Nesbit prays that Plaintiff's Complaint be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. 7 NEW MATTER - COUNTERCLAIMS FACTS COMMON TO ALL COUNTERCLAIMS 53. Paragraphs 1 through 52 are incorporated herein by reference as if restated verbatim and are supplemented by the following additional facts. 54. On or before October 7, 2005, Professional Office Developers LLC acquired the equitable interest of Nesbit Development, LLC in a piece of vacant land located at 555 Gettysburg Pike, which land on October 23, 2006, became known as the Mountain View Office Park, when Professional Office Developers LLC recorded a Declaration of Condominium in Book 73, Page 2398. David D. Nesbit is the sole and managing member of both of the limited liability companies referenced in this paragraph, which are located at the same mailing address. 55. Nesbit is a Verizon customer at 555 Gettysburg Pike, Suite C-100, Mechanicsburg, PA 17055, of which a portion is leased to a tenant. 56. Professional Office Developers LLC remains the owner of the development. 57. On or about April 20, 2008, Nesbit placed an order on behalf of himself and his tenant to relocate Verizon service from its former location of Suite C-400 to Suite C-100, to be effective May 19, 2008 with specific changes and additions to service. 58. Multiple communications were made to ensure a smooth transition. 59. On May 5, 2008 and May 13, 2008, Verizon confirmed that the installation would be completed successfully by May 19, 2009 and moving arrangements were made accordingly. 60. Due to internal problems of Verizon related to the ineffective engineering of the delivery of FiOS to 555 Gettysburg Pike, Mechanicsburg, Pennsylvania, Nesbit and his professional office tenant were without telephone and/or internet service between May 19, and June 17, 2008, when Verizon finally successfully completed the installation. 8 61. Verizon also disconnected the HOS service of another tenant, China Outreach Ministries, without warning for a period of approximately seven (7) days in relation to the Nesbit installation at Suite C-100. 62. Repeated telephone conversations with numerous Verizon personnel resulted in only studied indifference and inaction. 63. While particular individuals expressed empathy and intention to remedy the problem, each eventually claimed a lack of authority to take action required to remedy what was technically a simple, straightforward problem. 64. The actual ultimate correction involved minimal labor and effort. 65. It is believed and averred that Verizon's acts and omissions arose from intentional, retaliatory animus related to the dispute which is set forth in Plaintiff's Complaint and Defendant's response above. 66. The willful refusal to process the work order and provide corrective service was a breach of contract. 67. The willful refusal to process the work order and provide corrective service was an intentional, wrongful interference with contractual relations of Defendant and his tenants. 68. The breach of contract and intentional interference with contractual relations directly and proximately caused lost business opportunities and consumed valuable work hours. 69. Disruption to tenants required Defendant to take considerable time away from paid consulting activities and the marketing of his property, in order to meet concerns of tenants caused by the breach and intentional wrongful conduct. 70. The deliberate inaction was retaliatory and unconscionable in violation of public policy. 9 71. Nesbit and his tenants suffered business interruption including inability of tenants to make telephone or email contacts, and an waste of over one hundred (100) hours of Nesbit and Nesbit staff time on Verizon "help" lines in futile attempts to get service restored. 72. The value of the time of Defendant and staff exceeded $10,000. NEW MATTER COUNTERCLAIM - BREACH OF CONTRACT NESBIT V. Verizon 73. Paragraphs 1 through 72 are incorporated herein by reference as if restated verbatim. 74. Verizon breached its contract with Nesbit to install and provide services by intentionally delaying service installation and correction of service disruption. 75. The breach proximately caused economic damages in an unliquidated amount not in excess of the local arbitration limit, by disrupting business and consuming Nesbit and staff time in the effort to secure provision of services. WHEREFORE, Nesbit prays that that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. on Count I of the Counterclaim in an unliquidated amount not in excess of the local arbitration limit together with all such other relief as the Court may deemed just. NEW MATTER COUNTERCLAIM - INTENTIONAL INTERFERENCE NESBIT & Professional Office Developers, LLC v. Verizon 76. Paragraphs 1 through 72 are incorporated herein by reference as if restated verbatim. 77. Verizon wrongfully, maliciously, intentionally and without privilege, interfered with contractual relations of Nesbit and Professional Office Developers LLC by refusing to process the work order and by intentionally and unreasonably delaying corrective actions so that tenants were without critical communications services and Nesbit was required to waste more than 10 100 hours of personal and staff time in a futile effort to secure performance by Verizon, despite the fact that the technical issues were simple and easily corrected. 78. Verizon's acts and omissions arose from intentional, retaliatory animus related to the leaning pole dispute which is set forth in Plaintiffs Complaint and Defendant's response above. 79. The interference proximately caused economic damages in an unliquidated amount not in excess of the local arbitration limit, by disrupting business and consuming Nesbit and staff time in the effort to secure provision of services. 80. Verizon's use of its power to punish Nesbit, and Nesbit's tenant and clients, for Nesbit resisting Verizon's improper demands with regard to leaning pole was outrageous and unconscionable, and warrants punitive and exemplary damages. 81. Verizon's intentional abuse of its public trust related to its licensed carrier status was outrageous and unconscionable, and warrants punitive and exemplary damages. WHEREFORE, Nesbit prays that that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. on Count II of the Counterclaim in an unliquidated amount not in excess of the local arbitration limit, together with punitive and exemplary damages and such other relief as the Court may deemed just. Atty. I.D. 43571 ANDREw W. Bmnw, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 717-506-4670 Attorney for Defendants DATED: June 3, 2009 11 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants VERIFICATION I, David D. Nesbit of Nesbit Development, LLC, do hereby state that the statements made in the foregoing DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFFS COMPLAINT are true and correct based upon my knowledge information and belief. I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Nesbit Development, LLC David D. Nesbit Dated: 6131091 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBiN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants VERIFICATION I, David D. Nesbit of Professional Office Developers LLC, do hereby state that the statements made in the foregoing DEFENDANTS' ANSWER AND NEW MATTER To PLAINTIFF'S COMPLAINT are true and correct based upon my knowledge information and belief. I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Professional Office Developers LLC avid D. Nesbit Dated: G13l 9 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 5064670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants CERTIFICATE OF SERVICE I, Andrew W. Barbin, do hereby certify that on the date indicated below, I served a true and correct copy of the foregoing DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT by having the foregoing document served by United States, first class mail, postage prepaid addressed to the following: Linell M. Lukesh, Esquire John P. Hartley, Esquire Harvey Pennington, Ltd. 1800 JFK Boulevard, Suite 13 Philadelphia, PA 19103 DATED: June 3, 2009 FILED-," ?e {', OF '!'N_ PI „!"',TARY 2G, 09Jail -3 F 2: ?j :.' t 0Uiv'.t" ._ s FL >''?" HARVEY PENNINGTON, LTD. By: Linell M. Lukesh, Esquire/John P. Hartley, Esquire Identification No.: 75412/47106 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Attorneys for Plaintiff Verizon Pennsylvania, Inc. VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiff, CIVIL ACTION -LAW VS. NESBIT DEVELOPMENT, LLC, Defendant. NO. 09-2035 ARBITRATION CASE PLAINTIFF, VERIZON PENNSYLVANIA, INC.'S PRELIMINARY OBJECTIONS RAISING A QUESTION OF SUBJECT MATTER JURISDICTION,' AND IN Comes now Plaintiff, Verizon Pennsylvania Inc. (hereafter "Verizon"), through its counsel, Harvey Pennington, Ltd., for its Preliminary Objections to Plaintiff's Complaint, avers as follows: I. PRELIMINARY STATEMENT 1. Defendant has filed two Counterclaims in this matter. A copy of (Defendant's June 3, 2009 Answer, New Matter and New Matter Counterclaim is attached hereto as Exhibit "A." 2. Defendant's Counterclaims are pleaded in two counts; one for breach of contract and the second for intentional interference with the contractual relationship between Defendant and Professional Office Developers, LLC. 8257271 3. In its Counterclaim, Defendant alleges that it placed an order to move its service from Suite C-400 to Suite C-100 of 555 Gettysburg Pike, Mechanicville, PA. Counterclaim at ¶ 57. 4. Defendant alleges that it, and its tenant, were without telephone and/or internet service for a period of time because Verizon failed to install service at the new office location in a timely manner.1 Counterclaim 157. 5. The alleged failure of Verizon to provide telephone service to Defendant and its tenant is the basis for Defendant's breach of contract claim against Verizon. 6. The alleged failure of Verizon to provide telephone service to Defendant and its tenant is the bases to Defendant's claim that Verizon intentionally interfered wjith Defendant's contractual relationship with Professional Office Developers, LLC. 7. Verizon objects as these claim are strictly within the original, exclusive jurisdiction of the Pennsylvania Public Utility Commission, and thus outside the subject matter jurisdiction of this Honorable Court. 8. For the reasons set forth with particularity in the supporting Memorandum of Law Verizon's Preliminary Objections should be sustained, and the following reliefs granted: i. dismissal of Defendant's claims without prejudice to plaintiff bring these claims before the adjudicative body with exclusive jurisdiction, the Pennsylvania Public Utility Commission. ' Verizon Pennsylvania, Inc. does not itself provide internet service. Such service is provided by Verizon On-Line Pennsylvania Partnership. The contract between Defendant and Verizon On-Line Pennsylvania Partnership requires all disputes between the parties to be adjudicated in Fairfax County, Virginia. Verizon's present Preliminary Objections do not raise this issue, because this issue is a defense rather than an objection. Hoveever, Verizon does reserve the right to defend for failure to join a correct party and choice of venue at an appropriate time. 8257271 2 WHEREFORE, Plaintiff, Verizon Pennsylvania, Inc.'s Preliminary Objections to Defendant's New Matter Counterclaim should be sustained. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO 01W71 i*"T TAT TiiT ? •%CV"1LV.&N11 AT c V---- -- :...w??....9. Verizon reincorporates by reference its pleading set forth herein above as though the same were set forth at length. 10. Verizon is a regulated public utility, subject to the Pennsylvania Public Utility Code, 66 Pa. C. S. A. § 101, et seq. 11. Verizon is regulated by the Pennsylvania Public Utility Commission, under formal regulatory procedures which allow the adjudication of disputes over whether a regulated public utility has violated its tariffs. 52 Pa. Code § 5.21 "Formal Complaints," et seq. 12. The Pennsylvania Public Utility Commission ("PUC") is vested by the legislature with exclusive original jurisdiction of all claims concerning the reasonableness, adequacy and sufficiency of public utility service, including telephone service. Behrend v. Bell Telephone, 431 Pa. 63, 243 A.2d 346, 347 (1968), relying on 66 P.S. §§1102(20), 1171, 1183 (repealed and replaced by 66 Pa.C.S. §§ 1504, 1505 (1978); see also, MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1103 (3d Cir. 1995); Elkin v. Bell Telephone, 491 Pa. 123, 420 A.2d 371, 374 (1980), aff'd, 420 A.2d 371 (citing, Behrend, supra); Bell Telephone Co. of Pennsylvania v. Uni-Lite, 439 A.2d 763, 765 (Pa. Super. 1982); Bell Telephone Co. of Pennsylvania v. Sanner, 375 A.2d 93, 95 (Pa. Super. 1977). 13. "Service" as contemplated by the Public Utility Law, is of the broadest sense, and includes any and all acts done, rendered or performed by the Utility, including but not limited to, interruptions in service, which is the subject of Defendant's Counterclaim. Behrend, supra, at 243 A.2d 347. (" `Service' is used in this act in its broadest and most inclusive sense, and 8257271 3 includes any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities * * * in the performance of their duties under this act to their patrons, employees, other public utilities, and the public, * *") 14. Where the legislature has vested an administrative agency with exclusive primary jurisdiction, such agency is the only forum in which complaints within that jurisdiction may be brought. MCI, supra, citing Great Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1230, at n.5 (3d Cir. 1994). 15. The PUC thus has exclusive original jurisdiction over the controversy between the parties to this action as related to the alleged failure to provide telephone service to Defendant and its tenants and the alleged interference with the contractual relationship between Defendant and Professional Office Developers, LLC. Elkin, supra. 16. Accordingly, Defendant's claims concerning the alleged failure to provide telephone service to must be dismissed without prejudice to plaintiff's right to (bring such claims before the forum which in fact has original jurisdiction, the PUC. Behrend, suipra, at 243 A.2d 348. 17. No principle is more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Id. 18. The test of whether a court has jurisdiction over a particular controversy depends upon the competency of the court to determine controversies of the general class to which the case is presented for its consideration belongs. 1 Standard Pa. Practice 2nd § 2:55, relying on Commonwealth, Dept. of Public Welfare v. Court of Common Pleas, 506 Pa. 410,485 A.2d 755 (1984); Sperry & Hutchinson Co. v. O'Connor, 488 Pa. 340, 412 A.2d 539 (1980); Delaware 8257271 4 River Port Authority v. Pennsylvania Public Utility Com., 408 Pa. 169, 182 A.2d 682 (1962); Colvin v. Somat Corp., 230 Pa. Super. 118, 326 A.2d 590 (1974). 19. The test of jurisdiction is whether the court has power to enter upon an inquiry, not whether it may ultimately grant the particular relief sought. Id., see also, Get Set Organization v. Philadelphia Federation of Teachers, 446 Pa. 174,286 A.2d 633, 79 BNA LOM 2251 (1971); Jones Memorial Baptist Church v. Brackeen, 416 Pa. 499, 207 A.2d 861 (1960; Sherman v. Haddington Leadership Organization, Inc., 8 Cmwlth. 309, 302 A.2d 919 (1913). 20. In determining whether jurisdiction properly lies in the Cumberland County Court of Common Pleas, the Court must look beyond the form of the action and the manner in which it is titled, to the essence of the underlying claims. Id., relying on T. W. Phillips Gas & Oil Co. v. Peoples Natural Gas Co., 89 Cmwlth. 377, 492 A.2d 776 (1985). 21. The mere existence of a dispute does not, in and of itself, provide authority for judicial intervention, as there must be jurisdiction in a court over the subject matter before it can proceed to hear and determine the matter in controversy. 1 Standard Pa. Practice 2nd § 2:58. 22. When a court is without jurisdiction, its proceedings are a nullity, and its judgment is without effect on either the person or property. Id., relying on In re McGuigan 's Estate, 349 Pa. 581, 37 A.2d 717 (1944); Commonwealth v. Germsback, 167 Pa. Super. 106, 74 A.2d 489; Vichosky v. Boucher, 162 Pa. Super. 598, 60 A.2d 381 (1948); Manlin v. Tener, 146 Pa. Super. 593, 23 A.2d 90 (1941). 23. Therefore, in the event that this Honorable Court failed to recognize the absence of subject matter jurisdiction over the claims arising from the alleged failure to provide telephone service, as is required by the Public Utility Act, it is well settled that any judgment or decree 8257271 5 would be rendered null and void, and subject to attack in this Court, or collaterally. Lachappelle v. Interocean Management, 731 A.2d 163 (Pa.Super. 1999). 24. Lack of jurisdiction of the subject matter is fatal at any stage of the proceedings. Id., relying on In re Patterson's Estate, 341 Pa. 177, 19 A.2d 165 (1941); Commonwealth Ex Rel Posnansky v. Posnansky, 210 Pa. Super. 280,232 A.2d 73 (1967). 25. Here, as Section 1312 of the Public Utility Act imbues jurisdiction of Defendant's claims for alleged failure to provide telephone service in the PUC, this Honorable Court must dismiss these claims, which dismissal would be without prejudice to the Defendant's right to seek relief from the Commission. WHEREFORE, Plaintiff, Verizon Pennsylvania, Inc.'s Preliminary Objection to Defendant's Counterclaim for the absence of subject matter jurisdiction should) be sustained, and said Counterclaim dismissed, without prejudice to Defendant's right to bring it's claims before the Pennsylvania Public Utility Commission. Respectfully submitted, HARVEY ? PENNINGTON Ltd. By: Line 1 . Lukesh, Esquire', Pa. Id. No.: 75412 John P. Hartley, Esquire Pa. Id. No.: 47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-11044 Attorneys for Plaintiff, Verizon Pennsylvania, Inc.' 8257271 6 CERFICIATE OF SERVICE I, John P. Hartley, Esquire, hereby certify that a true copy of the foregoing PLAINTIFF, VERIZON PENNSYL VANIA, INC. 'S PRELIMINARY OBJECTIONS TO DEFENDANT'S NEW MATTER COUNTERCLAIM, the proposed ORDER, and the PRAECIPE FORILISTING CASE FOR ARGUMENT was served on the below stated date by U.S. Mail, First Class Postage Prepaid and addressed as follows: Andrew W. Barbin, Esquire 555 Gettysburg Pike Suite C-100 Mechanicsville, PA 17055 June 22, 2009 Au. - John artley, Esquire 8257271 7 EXHIBIT "A" ti Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREv W. BARsTN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 VERIZON PENNSYLVANIA, INC., Plaintiff V. NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, ? ENNSYLVANIA NO. 09-20315 DEFENDANTS' ANSWER AND NEW MATTER TO PLAINTIFF'S CONQ'LAINT Defendant, Nesbit Developments, LLC (Nesbit) by and through counsel, Andrew W. Barbin, P.C., responds to Plaintiff, Verizon Pennsylvania, Inc.'s (Verizon) Complaint and avers as follows: 1. Admitted. 2. Admitted in part. Nesbit Development (not Developments), :LLC is a limited liability company, but in May 2008 relocated from Suite C-400 to Suite C-100 of 555 Gettysburg Pike, Mechanicsburg, PA 17055. 3. Denied as stated. On or before October 7, 2005, Professional Office Developers LLC acquired the equitable interest of Nesbit Development, LLC in a piece of vacant land located at 555 Gettysburg Pike, which land on October 23, 2006, became known as the Mountain View Office Park, when Professional Office Developers LLC recorded a Declarationl, of Condominium in Book 73, Page 2398. David D. Nesbit is the sole and managing member of both of the limited liability companies referenced in this paragraph, which are located at the same mailing address. 4. Denied as stated. Professional Office Developers LLC employed Hampton Construction, Ltd. to complete the grading related to the site work for the Condominium. Lawns Unlimited planted the grass and landscaping. 5. Denied. The grading was completed per a land development plan recorded on October 25, 2005 in Cumberland County Plan Book 91, Page 71 (the "Grading Plan"), which Grading Plan (Sheet 4 of 11 thereof) did not change the pre- and post-construction elevation of the grades immediately proximate to the pole location as claimed by Plaintiff. Pole #3 did not lean at the conclusion of the site work of Professional Office Developers LLC and its contractor Hampton Construction Ltd. any more than it did at the onset of the work. 6. Denied as to legal conclusion and fact. See Paragraph 5 above The comparative length of the replacement pole is not known and is not material to the claim. 7. Denied as stated. The pole was not undermined. 8. Denied as stated. No evidence has been offered that less costly options were considered by Verizon. CovNT I - NEGLIGENCE 9. Responses to Paragraphs 1 through 8 are likewise incorporated herein by reference as if restated verbatim. 10. Denied as stated. Professional Office Developers LLC and its contractor Hampton Construction Ltd. fulfilled their duty of giving Verizon notice of the proposed site construction, arranging to meet in advance of construction to discuss details, and performing the site work without substantially disturbing the grading of the soil immediately proximate' to the location of Pole #3. 11. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 12. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. 2 13. Denied as to legal conclusion and fact. See Paragraphs 5 and 110. Additionally, in an email dated October 22, 2007, to Jami R. Hutchins (a claims adjuster), Stephen McGarvey of Verizon Engineering said in part that "... it was the windstorm in early spring which caused the pole to lean." 14. Denied as to legal conclusion and fact. Verizon did not act', in response to the Grading Plan at the February 27, 2006 pre-construction meeting which was attended by Joe Kirchner and Steve McGarvey of Verizon; Verizon did not respond to the Minutes sent on March 8, 2006 to Joe Kirchner and Steve McGarvey of the February 27, 2006 pre-construction meeting they attended; Verizon did not act as they frequently observed the site construction in process in relation to their engineering employees being on site to plan the installation on Pole #3 of the new FiOS facility in September 2006; and, Verizon did not object immediately after the site grading construction had been completed. Thereafter, Verizon did install a substantial amount of new FiOS cabling on to Pole #3 without first considering the adequacy' of the Polk #3, for which the pole's inadequacy should have been obvious at that time if three feet of soil had been removed previously from its base as falsely contended by Verizon. WHEREFORE, Nesbit prays that Count I be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deem just. CouNT II - STRICT LIABILITY 15. Responses to Paragraphs 1 through 14 are likewise incorporated herein by reference as if restated verbatim. 16. Denied as stated. See Paragraph 10. Further, to the extent thalt "lateral support" raised by Plaintiff in Paragraph 16 may differ from "support" of Plaintiff's Paragraph 10 to imply 3 the provision of supportive structures or cabling, Professional Office Developers LLC and Hampton Construction Ltd. admit that they were prohibited from substantial contact or alteration of Pole #3 or any similar pole without express direction from Verizon, which did not occur. 17. Denied. 18. Denied. 19. Denied. WHEREFORE, Nesbit prays that Count E be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon'Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. COUNT III - NEGLIGENCE RESPONDENT SUPERIOR 20. Responses to Paragraphs 1 through 19 are likewise incorporated herein by reference as if restated verbatim. 21. Denied as stated. See Paragraphs 3 and 4. 22. Denied as stated. See Paragraph 10. 23. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. ' 24. Denied as to legal conclusion and fact. See Paragraphs 5 and 10. '. 25. Denied as to legal conclusion and fact. See Paragraphs 5, 10 and 13. 26. Denied as to legal conclusion and fact. See Paragraph 14. 27. Denied. 28. Denied. WHEREFORE, Nesbit prays that Count III be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. 4 in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deem just. COUNT IV - STRICT LIABn w RESPONDENT SUPERIOR 29. Responses to Paragraphs 1 through 28 are likewise incorporated herein by reference as if restated verbatim. 30. Denied. See Paragraph 21. 31. Denied. See Paragraph 16. 32. Denied. 33. Denied. 34. Denied. 35. Denied. WHEREFORE, Nesbit prays that Count IV be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. NEW MATTER AFFIRMATIVE DEFENSEs TO COUNT I 36. Responses to Paragraphs 1 through 35 are likewise incorporated herein by reference as if restated verbatim. 37. The fact that Pole #3 leaned slightly prior to the start of any construction by Professional Office Developers LLC and its contractor Hampton Construction Ltd. is a proximate cause of the fact Pole #3 ultimately leaned so far that Verizon determined that it had to be replaced. 5 38. Nesbit, Professional Office Developers LLC and its contractor Hampton Construction Ltd provided Verizon notice of the intended construction proximate to Pole #3 by providing a copy of the Grading Plan and an invitation to a pre-construction meeting held on February 27, 2006 at the offices of PPL. 39. Joe Kirchner and Steve McGarvey of Verizon attended the pre-construction meeting, and did not raise any objection or concern to the Grading Plan at the pre-construction meeting held on February 27, 2006 at the offices of PPL, or in response to Minutes of that February 27, 2006 pre-construction conference which were faxed to Joe Kirchner and Steve McGarvey of Verizon on March 8, 2006, despite the fact that said Minutes did not reference any concern of Verizon with regard to the planned construction proximate to the Vetiizon poles. 40. Verizon failed to raise any objection to the Grading Plan or actual construction activity at any time after said pre-construction meeting or during the course of construction. 41. Verizon has never provided a field survey to disprove the claim of Nesbit, Professional Office Developers LLC and its contractor Hampton Construction 'Ltd. that the post- construction and pre-construction grades proximate to Pole #3 are in fact any different than as pre- existed construction. 42. After completion of the work by Professional Office Developers LLC and its contractor Hampton Construction Ltd., Verizon effectively accepted the quality of the site work proximate to Pole #3 by failing to object to the conditions, which should have been plainly noticeable if there had been a three foot grade differential as claimed by Verizon. 43. After completion of the work by Professional Office Developers LLC and its contractor Hampton Construction Ltd., Verizon materially changed the conditions of Pole #3 by adding a substantial volume of ROS cabling to the Pole #3, during which time Verizon had ample opportunity to inspect and object to the condition of Pole #3 and the adjacent grades but did not. 6 44. The addition of new FiOS to Pole #3 is relevant as a proximate cause since the FiOS was an addition of an increased amount of weight to Pole #3, which had a leaning condition which pre-existed the construction of Professional Office Developers LLC and its contractor Hampton Construction Ltd. 45. Verizon admits wind to be a proximate cause of Pole #3 ultimately leaning to failure, as reflected in the email referenced in Paragraph 13 hereof. 46. Count I fails to state a claim 47. Count II fails to state a claim 48. Count III fails to state a claim. 49. Count IV fails to state a claim. WHEREFORE, Nesbit prays that Plaintiffs Complaint dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. NEW MATTER AFFIRMATIVE DEFENSES To COUNTS U. III AND IV 50. With regard to Count II, see Paragraphs 37, 41, 43, 44 and 45. 51. With regard to Count III, see Paragraphs 37 through 45. 52. With regard to Count IV, see Paragraph 46. WHEREFORE, Nesbit prays that Plaintiffs Complaint be dismissed with prejudice and costs assessed against Plaintiff, and that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. in an unliquidated amount in excess of the jurisdictional limit on its Counterclaim, together with all such relief as the Court may deemed just. 7 NEw MATTER - CouNTERCLAEw FACTS COMMON TO ALL COUNTERCLAIMS 53. Paragraphs 1 through 52 are incorporated herein by reference as if restated verbatim and are supplemented by the following additional facts. 54. On or before October 7, 2005, Professional Office Developers', LLC acquired the equitable interest of Nesbit Development, LLC in a piece of vacant land located at 555 Gettysburg Pike, which land on October 23, 2006, became known as the Mountain View (Office Park, when Professional Office Developers LLC recorded a Declaration of Condominium'', in Book 73, Page 2398. David D. Nesbit is the sole and managing member of both of the limited liability companies referenced in this paragraph, which are located at the same mailing address. 55. Nesbit is a Verizon customer at 555 Gettysburg Pike, Suite C-1010, Mechanicsburg, PA 17055, of which a portion is leased to a tenant. 56. Professional Office Developers LLC remains the owner of the development. 57. On or about April 20, 2008, Nesbit placed an order on behalf of himself and his tenant to relocate Verizon service from its former location of Suite C-400 to Suite C-100, to be effective May 19, 2008 with specific changes and additions to service. 58. Multiple communications were made to ensure a smooth transition. 59. On May 5, 2008 and May 13, 2008, Verizon confirmed that the installation would be completed successfully by May 19, 2009 and moving arrangements were madle accordingly. 60. Due to internal problems of Verizon related to the ineffective eFngineermg of the delivery of ROS to 555 Gettysburg Pike, Mechanicsburg, Pennsylvania,' Nesbit and his professional office tenant were without telephone and/or internet service between May 19, and June 17, 2008, when Verizon finally successfully completed the installation. 8 61. Verizon also disconnected the FiOS service of another tenant, China Outreach Ministries, without warning for a period of approximately seven (7) days in relation to the Nesbit installation at Suite C-100. 62. Repeated telephone conversations with numerous Verizon personnel resulted in only studied indifference and inaction. 63. While particular individuals expressed empathy and intention to remedy the problem, each eventually claimed a lack of authority to take action required to remedy what was technically a simple, straightforward problem. 64. The actual ultimate correction involved minimal labor and effort. 65. It is believed and averred that Verizon's acts and omissions arose from intentional, retaliatory animus related to the dispute which is set forth in Plaintiffs Complaint and Defendant's response above. 66. The willful refusal to process the work order and provide corrective service was a breach of contract. 67. The willful refusal to process the work order and provide corrective service was an intentional, wrongful interference with contractual relations of Defendant and his tenants. 68. The breach of contract and intentional interference with contractual relations directly and proximately caused lost business opportunities and consumed valuable work hours. 69. Disruption to tenants required Defendant to take considerable time away from paid consulting activities and the marketing of his property, in order to meet concerns of tenants caused by the breach and intentional wrongful conduct. 70. The deliberate inaction was retaliatory and unconscionable in violation of public policy. 9 71. Nesbit and his tenants suffered business interruption including inability of tenants to make telephone or email contacts, and an waste of over one hundred (100) hours of Nesbit and Nesbit staff time on Verizon "help" lines in futile attempts to get service restored. 72. The value of the time of Defendant and staff exceeded $10,000. NEW MATTER COUNTERCLAIM - BREACH OF CONTRACT NESBIT v. Verizon 73. Paragraphs 1 through 72 are incorporated herein by reference as if restated verbatim. 74. Verizon breached its contract with Nesbit to install and provide services by intentionally delaying service installation and correction of service disruption. 75. The breach proximately caused economic damages in an unliquidated amount not in excess of the local arbitration limit, by disrupting business and consuming Nesbit and staff time in the effort to secure provision of services. WHEREFORE, Nesbit prays that that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. on Count I of the Counterclaim in an unliquidated amount not in excess of the local arbitration limit together with all such other relief as the Court may deemed just. NEw MATTER COUNTERCLAIM-INTENTIONAL INTERFERENCE NESBIT & Professional Office Developers, LLC v. Verizon 76. Paragraphs 1 through 72 are incorporated herein by reference as if restated verbatim. 77. Verizon wrongfully, maliciously, intentionally and without privilege, interfered with contractual relations of Nesbit and Professional Office Developers LLC by refusing to process the work order and by intentionally and unreasonably delaying corrective actions so that tenants were without critical communications services and Nesbit was required to waste more than 10 100 hours of personal and staff time in a futile effort to secure performance by Verizon, despite the fact that the technical issues were simple and easily corrected. 78. Verizon's acts and omissions arose from intentional, retaliatory animus related to the leaning pole dispute which is set forth in Plaintiffs Complaint and Defendant's response above. 79. The interference proximately caused economic damages in an uhliquidated amount not in excess of the local arbitration limit, by disrupting business and consuming Nesbit and staff time in the effort to secure provision of services. 80. Verizon's use of its power to punish Nesbit, and Nesbit's tenant and clients, for Nesbit resisting Verizon's improper demands with regard to leaning pole was outrageous and unconscionable, and warrants punitive and exemplary damages. 81. Verizon's intentional abuse of its public trust related to its licensed carrier status was outrageous and unconscionable, and warrants punitive and exemplary damages. WHEREFORE, Nesbit prays that that judgment be entered for Nesbit and against Verizon Pennsylvania, Inc. on Count H of the Counterclaim in an unliquidated amount not in excess of the local arbitration limit, together with punitive and exemplary damages and such', other relief as the Court may deemed just. DATED: June 3, 2009 Atty. I.D. 43571 ANDREW W. Bmmw, P.C. 555 Gettysburg Pdce, Suite C-100 Mechanicsburg, PA 17055 717-5064670 Attorney for Defendants 11 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BAitstN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants VERIFICATION I, David D. Nesbit of Nesbit Development, LLC, do hereby state that the statements made in the foregoing DEFENDANTS' ANSWER AND NEW MATTER To PLALNTMF s COMPLAINT are true and correct based upon my knowledge information and belief I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Nesbit Development, LLC - 5;;;) David D. Nesbit Dated: Andrew W. Barbin, Esquire Attorney I.D. #43571 ANntEw W. BAxatx, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants VERIZON PENNSYLVANIA, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants VERIFICATION I, David D. Nesbit of Professional Office Developers LLC, do hereby state that the statements made in the foregoing DEFENDANTS' ANSWER AND NEW MATTED To PLMNTMIS ComPLAiNT are true and correct based upon my knowledge information and belief. I understand that false statements are made subject to penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. Professional Office Developers LLC avid D. Nesbit Dated: ?/? 9 Andrew W. Berbin, Esquire Attomey I.D. 043571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pilce, Suite C-100 Mechanicsburg, PA 17055 (717)506-4670 VERIZON PENNSYLVANIA, INC., Plaintiff V. NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants Alttomey for Defendants IN THE COURT OF COON PLEAS CUM 3ERi..AND COUNTY, PENNSYLVANIA NO. 09-2035 CERTIFICATE OF SERVICE I, Andrew W. Barbin, do hereby certify that on the date indicated below, I served a true and correct copy of the foregoing DEFENDANTS' ANSWER AND NEW MATTER1 To PLAINTIFF'S COMPLAINT by having the foregoing document served by United States, first class mail, postage prepaid addressed to the following: Linell M. Lukesh, Esquire John P. Hartley, Esquire Harvey Pennington, Ltd. 1800 JFK Boulevard, Suite 1300 Philadelphia, PA 19103 , j DATED: June 3, 2009 Andrew W. Barbin, Esquire Attorney I.D. #43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 (717) 506-0670 VERIZON PENNSYLVANIA, INC., Plaintiff PENNSYLVANIA Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, V. N0.09-2035 NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants NOTICE TO PLEAD TO: Verizon Pennsylvania, Inc., Plaintiff You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a default judgment may be entered against you. Respectfully su?n?tte ?? Atty. I.D. 43571 ANDREW W. BARBIN, P.C. 555 Gettysburg Pike, Suite C-100 Mechanicsburg, PA 17055 717-506-4670 Attorney for Defendants DATED: June 3, 2009 FILED--Ol'i-ICE OF THE PRCI'c=n ir , ' 2009 JU 23 PM !2 5 4 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 September 9, 2009 Argument Count) --- - --------- - - - ------ - - - -- - ------ - -- - ---------------------------------- - ------------------ - -------------- CAPTION OF CASE (entire caption must be stated in full) VERISON PENNSYLVANIA, INC. VS. NESBIT DEVELOPMENT, LLC 09-2035 Civil No. Term 1. State matter to bq, rqued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): ) iiintiff's Preliminary Object idns in the forms of a demurrer t., Defen ant's= New Matter Counterclaim. 2. Identify all counsel who will argue cases: (a) for plaintiffs: John P. Hartlii:y Esquire, Harvey Penninton, Ltd. 1800 John F. Kennedy Blvd., Suite 1300, Philadelphia, PA 19103 (Name and Address) (b) for defendants: drew W. Barbin, Esquire, 555 Gettysburg Pike, Suite C-100, Mechanicsville, PA 17055 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 9, 2009 Print your name Plaintiff, Verizon',Pennsylvainia, Inc. Attorney for Date: June 22, 2009 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 argume 't. 4. H argument is continued new briefs must be filed with the CURT ADMINISTRATOR (not the Prothonotary) after the case is listed. ? / Z- OF THE F p, 1 } ,s1O' '. 2009 JUN 23 PM 12: 5 k, CUI:l.'L ,_, ;.,??1Y 11 4'i Y ?r1i+AUtA HARVEY PENNINGTON, LTD. By: Linell M. Lukesh, Esquire/John P. Hartley, Esquire Identification No.: 75412/47106 1800 John F. Kennedy Boulevard, Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Attorneys for Plaintiff Verizon Pennsylvania, Inc. VERIZON PENNSYLVANIA, INC., VS. NESBIT DEVELOPMENT, LLC, Plaintiff, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 09-2035 ARBITRATION CASE PLAINTIFF, VERIZON PENNSYLVANIA, INC.'S REPLY TO DEFENDANT'S NEW MATTER Comes now, Plaintiff, Verizon Pennsylvania, Inc. (hereafter "Verizon"), though its attorneys, Harvey Pennington, Ltd., and, in answer to each of the paragraphs of Defendant, Nesbit Development, LLC's New Matter, states as follows: 36. No response is required to the averments contained in this paragraph. To the extent that a response is required, the averments contained in this paragraph are denied. 37. Denied. 38. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 39. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 8257331 40. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 41. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 42. Denied. 43. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 44. Denied. 45. After reasonable investigation, Verizon is without knowledge or information sufficient to form a belief as tot the truth of the averments contained in this paragraph, and, accordingly, such averments are deemed denied. 46. The averments contained in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments contained in this paragraph are denied. 47. The averments contained in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments contained in this paragraph are denied. 48. The averments contained in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments contained in this paragraph are denied. 8257331 49. The averments contained in this paragraph are legal conclusions to which no response is required. To the extent that a response is required, the averments contained in this paragraph are denied. WEREFORE, Plaintiff, Verizon Pennsylvania, Inc. respectfully requests that the New Matter filed by Defendant be dismissed with prejudice. Plaintiff, Verizon Pennsylvania, Inc. further requests such additional relief as the Court deems appropriate. 50. Verizon incorporates by reference its replies to paragraphs 37, 41, 43, 44 and 45 to Defendant's New Matter. 51. Verizon incorporates by reference its replies to paragraphs 37 through 45 to Defendant's New Matter. 52. Verizon incorporates by reference its reply to paragraph 46 to Defendant's New Matter. WEREFORE, Plaintiff, Verizon Pennsylvania, Inc. respectfully requests that the New Matter filed by Defendant be dismissed with prejudice. Plaintiff, Verizon Pennsylvania, Inc. further requests such additional relief as the Court deems appropriate. 8257331 Respectfully submitted, HARVEY ? PENNINGTON Ltd. .% r I') A I By: Li ll . Lukesh, Esquire Pa. M. No.: 75412 John P. Hartley, Esquire Pa. Id. No.: 47106 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103 Telephone: (215) 563-4470 Facsimile: (215) 568-1044 Attorneys for Plaintiff, Verizon Pennsylvania, Inc. 8257331 CERFICIATE OF SERVICE I, John P. Hartley, Esquire, hereby certify that a true copy of the foregoing PLAINTIFF, VERIZON PENNSYL VANIA, INC. 'S REPLY TO DEFENDANT'S NEW MATTER was served on the below stated date by U.S. Mail, First Class Postage Prepaid and addressed as follows: Andrew W. Barbin, Esquire 555 Gettysburg Pike Suite C-100 Mechanicsville, PA June 22, 2009 17055 John . artley, Esquire 8257331 :? i? O (?}?`A Ot ZGG9 JUH 23 P? {2. 3 CUML PEN, NS'?,VA VERIZON PENNSYLVANIA, INC., Plaintiff PENNSYLVANIA v. NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 09-2035 DEVELOPERS LLC, Defendants PRAECIPE TO UPDATE ENTRY OF APPEARANCE TO: ,Prothonotary n N c ,~: ' ~. ~ ~, r, r :.~ rr i~ l~ ~•"' '° ~ fix. ~ - / + csz ~' a, ~c Please update the street address of Andrew W. Barbin as follows, all other information remains the same: Andrew W. Barbin, Esquire Andrew W. Barbin, P.C. Atty. LD. #43571 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 Telephone: (717) 506-4670 Facsimile: (717) 506-4672 /; Andrew W. Barbin Andrew W. Barbin, P.C. Atty. I.D. #43571 5 Kacey Court, Suite 102 Mechanicsburg, PA 17055 (717) 506-4670 Attorney for Defendants DATED: February 5, 2010 VERIZON PENNSYLVANIA, INC., Plaintiff PENNSYLVANIA v. NESBIT DEVELOPMENTS, LLC and PROFESSIONAL OFFICE DEVELOPERS LLC, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 09-2035 CERTIFICATE OF SERVICE I, Andrew W. Barbin, do hereby certify that on the date indicated below, I served a true and correct copy of the foregoing PRAECIPE TO UPDATE ENTRY OF APPEARANCE by having the foregoing document served by United States, first class mail, postage prepaid addressed to the following: Linell M. Lukesh, Esquire John P. Hartley, Esquire Harvey Pennington, Ltd. 1800 JFK Boulevard, Suite 1300 Philadelphia, PA 19103 / / ~:~~,~ Andrew W. Barbin DATED: February 5, 2010 OF CU4f David D. Buell- '9 p Renee X Simpson Prothonotary ' *O :'/ ';; 15` Deputy Prothonotary o v rkS. Sohonage, FSQ :_4,,&4 Irene E. Morrow Solicitor 1750 2'td Deputy Prothonotary Office of the Prothonotary Cumberland County, (Pennsylvania ©7 ,v2,63� CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER, 2013,AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, 'PA 17013 • (717)240-6195 • rFak(717)240-6573