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HomeMy WebLinkAbout09-4183 MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, NO.09- ?ft83 Civi! .rw V. CIVIL ACTION-EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 F' MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09- y> P3 L'cu. 1 Z4- -- CIVIL ACTION-EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. ACTION FOR DECLARATORY RELIEF NOW, come Plaintiffs, Michael J. Ducharme and Nicholas J. Shears, by and through their attorneys, O'BRIEN, BARIC & SCHERER and MARTSON, DEARDORFF, WILLIAMS, OTTO, GILROY and FALLER and file this Action for Declaratory Relief and, in support thereof set forth the following: 1. Plaintiff, Michael J. Ducharme, is an adult individual who resides at 6185 Run Cross Lane, Enola, Cumberland County, Pennsylvania. 2. Michael J. Ducharme is an owner of the real property known as 6185 Run Cross Lane, Enola, Cumberland County, Pennsylvania and has and continues to pay school real property taxes to the Cumberland Valley School District. 3. Michael J. Ducharme is an employee of Carlisle SynTec Incorporated. 4. Plaintiff, Nicholas J. Shears, is an adult individual who resides at 6135 Run Cross Lane, Enola, Cumberland County, Pennsylvania. 5. Nicholas J. Shears is an owner of real property known as 6135 Run Cross Lane, Enola, Cumberland County, Pennsylvania and has and continues to pay school real property taxes to the Cumberland Valley School District. 6. Nicholas J. Shears is an employee of Carlisle SynTec Incorporated. 7. The jurisdiction of this Court is invoked pursuant to Pa.R.C.P. 1601, et seq. and 42 Pa.C.S.A.. §7532, et seq. 8. Defendant, the Cumberland Valley School District ("CV School District"), is a political subdivision of the Commonwealth of Pennsylvania with a principal address of 6746 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 9. The CV School District owns numerous buildings which include various school buildings including, but not limited to, the Monroe Elementary School, the Silver Spring Elementary School and the Eagle View Middle School, all located within Cumberland County. 10. Upon information and belief, on or about February 17, 2009, the CV School District awarded certain public contracts for roof restoration work at the Monroe Elementary School, the Silver Spring Elementary School and the Eagle View Middle School to entities known as Tremco Incorporated and a subsidiary of Tremco Incorporated ("Tremco") known as Weatherproofing Technologies, Inc. ("WTI"). 11. Upon information and belief, the aforementioned contract award was made by the CV School District without the required public advertisement and without meeting other statutory requirements for bids as required by the School Code of 1949 at 24 P.S. §7-751 to include, but not be limited to, the following: (a) failing to enter into separate contracts for each project; (b) failing to enter into contracts with the "lowest responsible bidder" because no bidding actually took place; (c) failing to enter into contracts upon "proper terms", including, but not limited to, making an award for a non-competitive price; and (d) failing to obtain competitive bids for the projects. 12. Upon information and belief, the CV School District awarded the roof restoration contract to Tremco and WTI based upon a proposal made by WTI dated October 16, 2008. A true and correct copy of the proposal so submitted is attached hereto as Exhibit "A" and is incorporated by reference (the "Proposal"). 13. The Proposal submitted by WTI sets forth a budget of $1,385,000.00 for the roof restoration work on the Monroe Elementary School, the Silver Spring Elementary School and the Eagle View Middle School. 14. Upon information and belief, the CV School District rescinded the award for the Eagle View Middle School project after representatives of Carlisle SynTec informed the District that the Carlisle membrane roofing system was still under the express written warranty issued by Carlisle SynTec for the roof and that Carlisle SynTec would perform repairs to the roofing system on the Eagle View Middle School at no cost to the CV School District, as compared to the WTI bid proposal of $632,440.72. 15. Plaintiffs contend the failure of the CV School District to comply with public bidding requirements has resulted in the awarding of roof restoration work at costs substantially above those which could have been incurred had the CV School District complied with the provisions of 24 P. S. §7-751, et seq. 16. The CV School District has alleged that it has complied with the School Code of 1949 through a "bidding " process conducted by an organization known as the Association of Educational Purchasing Agencies ("AEPA") for the roofing work at issue. 17. Plaintiffs contend the AEPA "bidding" process does not meet the requirements of the School Code of 1949, has resulted in higher costs to the CV School District and does not comply with other applicable laws and statutes. 18. The CV School District owns many more buildings than the three(3) identified hereinabove and all of these other properties will require roof restoration and/or replacement in the future. 19. By continuing to award roofing restoration and replacement contracts without meeting the requirements of the School Code of 1949, Plaintiffs anticipate the CV School District will continue to violate the applicable laws of the Commonwealth and will incur costs for roof restoration/replacement substantially in excess of those costs which could be incurred through proper public bidding. WHEREFORE, Plaintiffs request this Honorable Court; a) Issue a judgment declaring the bidding process as conducted by the CV School District for the Monroe Elementary School, Silver Spring Elementary School and Eagle View Middle School roofing projects failed to comply with applicable law and b) award costs of this action to Plaintiffs and such further relief and declaration of rights and legal determinations as to the Court may seem just and proper. Respectfully submitted, ' EN, BARIC & SCHE David A. Baric, Esquire ID#44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 MARTSON, DEARDORFF, WILLIAMS, OTTO, GILROY & FALLER, Hubert X. Gilroy, Esquire ID#29943 10 East High Street Carlisle, Pennsylvania 17 13 (717) 243-3341 VERIFICATION The statements in the foregoing Action For Declaratory Relief are based upon information which has been assembled by our attorneys in this litigation. The language of the statements is not our own. We have read the statements; and to the extent that they are based upon information which we have given to our counsel, they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. DATE: 6 ?°I a A-Vd' ? r/ Michael . DuCharme Nicholas J. Shears + 8-.. WEATHERPROOFING TECHNOLOGIES, INCORPORATED October 16, 2008 Mr. James Koontz Cumberland Valley School District 6746 Carlisle Pike Mechanicsburg, PA 17050 RE: Roof Work at Monroe Elementary, Silver Spring Elementary, Good Hope Middle School, and Eagle View Middle School Dear Jim: I am providing you with the budget numbers you requested for the roof areas indicated in the scope provided. The budget is for a turn key operation as specified and bid by the AEPA. Any questions regarding the bidding of the AEPA contract or our performance should be directed to Jeffrey Kimball at the Central Susquehanna Intermediate Unit. These budget estimates have been developed with input from Houck Services. The process includes all specifications and drawings, on-site management, preconstruction and progress meetings, final inspection, project closeout book and post project follow up. Monroe Elementary Project Description: Scooe of Work for Monroe Elementary School: 1. Tear-out all wet insulation areas. Install new isocyanurate insulation to match existing thickness and new fully adhered .060" EPDM in these locations. 2. Flash any units where flashing does not extend to top of curb with .060" EPDM. 3, Lower 15 roof drains to reduce/eliminate ponding water. Install tapered insulation sump around new drains to provide smooth transition to new drain elevation. 4. Pressure wash entire roof surface on all restoration areas. 5. Embed polyester reinforcement into SRC base coat over all EPDM field, flashing, and patch seams on all areas. 6. Apply SRC base coat over all EPDM roof and flashing surfaces. 7. Apply SRC finish coat over all areas covered with SRC base coat. 8. Install copper storm collars over all existing pipe boots and field wraps. Install copper hoods over all existing pitch pockets. Install new reglet mounted, copper counterflashing over existing wall flashings with exposed termination bar. 9. Touch-up caulk joints as needed on existing counterflashings, drawbands, etc. 10. Provide a ten year restoration warranty with maintenance at years 2 and 5. Monroe Elementary Project Investment: Budget Estimate for Monroe Elementary School: $ 610,000 Exhibit "A" 1 Good Hope Middle School Project Description: Good Hope Middle School- Gypsum Deck Areas: 1. Tear-out all wet insulation areas. Install new isocyanurate insulation to match existing thickness and new fully adhered .060" EPDM in these locations. 2. Flash any units where flashing does not extend to top of curb with .060" EPDM. 3. Clean all seam areas. 4. Overlay all field and flashing seams with EPDM compatible repair materials. 5. Touch-up caulk joints as needed on existing counterflashings, drawbands, etc. 6. Provide 5 years of maintenance visits and a five year leak warranty. Good Hope Middle School- Metal Deck Areas: 1. Flash any units where flashing does not extend to top of curb with .060" EPDM. 2. Install isocyanurate crickets and new fully adhered EPDM in drain valleys to reduce/eliminate ponded water. 3. Pressure wash entire roof surface on all restoration areas. 4. Embed polyester reinforcement into SRC base coat over all EPDM field, flashing, and patch seams on all areas. 5. Apply SRC base coat over all EPDM roof and flashing surfaces. 6. Apply SRC finish coat over all areas covered with SRC base coat. 7. Install copper storm collars over all existing pipe boots and field wraps. Install copper hoods over all existing pitch pockets. 8. 'Touch-up caulk joints as needed on existing counterflashings, drawbands, etc. 9. Provide a ten year restoration warranty with maintenance at years 2 and 5. Good Hope Middle School Project Investment: Budget Estimate for Good Hope Middle School: $ 455,000 All of the above estimates are budget amounts with contingencies built in for a limited amount of bad decking, additional wet insulation removal, additional equipment removal, etc. If you find the above to be acceptable and are ready to move forward, we will begin the specification process and proposal development. Once we are given a timeline to proceed, we should be able to have a completed proposal with full specifications within a few weeks. Please feel free to contact me if you have any questions. Respectfully, [an Taliani, CDT 5 w aG b W aTi A L E U } a O U O } I 8 N d n IL IL c u° 0 m U iF LL O e E 0 v a a a R to W c e 8 m :c =:b_ c a m m V m c s 9 ca to m x°a° :$ a E E E p .s ` c LL. LL LL IL E d a m c c .a 3 ?s v ? m E LDW '! ass € F e sass o` `o ei a ?gCL CL CL c9 laaa 3 c m gwW c?''gc w 9 c`° E $a8$ m E E e E CL I CL c - i 0 w a O w O w v 5 H O Q w v O 0 a 1. ? a N co 0 E Ad D ow O c ym ? a E °w U ^ A E m T O g??2 ???? ggi?GO???????g? N a ? ? ? ? ? ? p ? ? ? ? a a ? ? ? ? ? ? ? ? ? ? ? ? a 00 ? 22222 w IL CL CL IL aaaa asawwaILIL a a a n. U) a n. IL IL IL CL m W W W W W W W W W W W__ W W W W W w W W W a Wa w W W_ w w u< LL aLL LLaaLL aLL ¢LL LL¢ LL¢LL LL LL m m LL LL m ¢¢¢LL ¢LL ¢ u< <- LL¢ u< LL ¢LL LLLL a¢?a LL¢ LL¢ N O O O? O O S S O S O' O mv Ch to cm m (D 0 } C ' m? N° N N N N 0) W 0 S coo 0 W O N N N N N S 10 0000 C)C0 LL OONVO 0 1 0 ONOOOO m.. C co ^ m ? r- '47 ^ N O O N OIL I 't O Y7 v 1f/ O N m to 0 to O O w ¢ e M E p O ? O X p E V 8? ?? c $ a 8 A me E .-Lb8-p 0 m m o0 E ca m 8 °Ecai' a p w?cttn a zs ?? ?r8?r 8P-- 90 d 8?y c u cmi EmA ??y°m ?tTitTddZ? g°i? o?=Z m 8?m?D ? vEd I •E ??v Em .mE 9 c wLL d 8?- 4 m m Q o C cg' C E ca m m? mw y w00 8_ WtTi $ e mr E e a' ° •-? er ?w L c. 8 xx fr 8???? ?a as cu- c9?0¢m a-°?' yg :2 y 8 W x d Y? c m O 2 t E mwx `?4 = a v+?a= E?Om o 0 E? Z'c ?• ??C 0c"2f5xxca? me LL ¢cpEc m ° o w Im oi co g°lE 0 E? C ?i E op?7?t?i m m o p U ?co LT CDC. 2w ?xxxx?0 Wa0 DS?(n fu xS22?2 Z ?a G U m u u u u u u L o u ? E e ?m ?a a a goo 0 ? vn? nD ?n C C CD O ? fD n O O r« C) 0- m m O 2 x- r c z O v cn v rD' m m? 3 •• N ? O N 01 7 -i Ca 03 d• I 7 cn i J • GJ N Ca co v o) v, 4 w N ? fATWEIRWO Rnafing CUMBERLAND VALLEY SCHOOL DISTRICT DISTRICT OFFICE GENERAL INFORMATION: ROOF AREA: SQUARE FOOTAGE: YEAR OF INSTALL: PREVIOUS WORK: ROOF COMPOSITION: District Office Roof 8,808 unknown Extensive repairs MEMBRANE: Ballasted EPDM membrane INSULATION: ORIG. MEMBRANE: ORIGINAL INSUL: BASE SHEET: DECK: ASBESTOS PRESEN' DEFICIENCIES NOTED: INSPECTOR COMMENTS: RECOMMENDATIONS: ROOF CATEGORY: I" Isocyanurate Gravel surfaced asphalt built-up roof 2" Perl ite Felt Gypsum C: unknown Flashings are dry-rotted Edge flashings are tearing and pulling loose Membrane has shrunk Ponding water in several areas Numerous old repairs This roof is in poor condition. Numerous past leaks and repairs are reported.. This roof is in need of replacement. At the time of replacement, drainage needs to be re-worked. Complete tapered insulation is likely needed. Asbestos containing wall panels are being held in place by fasteners through roof edge, so these panels must be addressed as part of a roof project. All of these items, along with the double tear-off will make this an expensive roof project. Test original roof for asbestos. Determine new tapered insulation/drainage layout. Determine a solution for wall panel remediation or replacement. Tear-off and replace roof. Replace Immediately Repairs Required (if replacement is not completed) Overview of District Office Roof Flashirgs are dry-rotting Very r'eeti area of ponded water by hatch (possible deck Overview of District Office Roof Broken plastic drain strainer :-'rain valleys are sumped with no crickets, hold water between drains. Overview cf District Office Roof ^ ?:;mercus re-airs to perimeter edges Ove-Jew of core cut Overview of District Office Roof showing sumped terimeter and wall panels Corner has been repaired and is opening again, Core cu' revealed -1" Iso, 3 ply ??UR with gravel, 2c Derlite base sheet, gypsum deck. 0,e-view of D-*rict Support Facility Roof 0?rview of D,strict Support Facility Roof Overview of District Support Facility Roof Overview of District Support Facility Roof D --view of D <trict Supgort Facility Roof 0,4 erview of District Support Facility Roof contested area E cl, c o c °o c 73 w `LJ ?Q 2v c y R a a ; T Overview of High School- Unit A Roofs Overview of I~ ah School- Unit A Roofs O ,/erview of H oh School- Unit A Roofs Overview of Hiah School- Urit A Roofs Overview of 'High School- Unit A Roofs Overview of Hiah School- Jnit A Roofs Cverv ew cf Units B, C; E, and F Roofs Ovenview of Units B. C E, and F Roofs C,.-er,v,iew of L,'nits B, C. E and F Roofs Spilled Contarninart on ro:;f membrane Overv, ew of Units B, E.. and F Roofs near drain lire Ponded water in sumped drain fine - no crickets Overview of Unit D Roofs Cverv,,f?.Af " Unit D Rob-'s. minor ponding along dram Cverveew of Unit D Roofs De`eriorated area o¢ membrane at apparent fluid spill cut of unit. Patches 'n HVAC unit area Cnaoing HVAC maintenance on roofs Overview of iv'nits H and J Roof Areas S?:r p ci dram valley detail on Units H and !Area Overview of Units H and ,J Roof Areas Overv ew of Units H and J Roof Areas Over,, ev. of Units H =nd J Roof Areas, ponding alone exp. ;t logged drain basket ,--verview of Lnits H and J Roof Areas Pondina along drain line on Unit H and J Roof Overview of Unit G Roof Area Open pitch ooc:ket on !_ nit C.) Roof Ladder Overview of Unit G Roof Area Overview of Unit G Roof Area Overview -)f Unit L Upper Roof Overview ,If Unit L Lower Roof . -r, ew of Unit I Lower Roof, Area by Chillers Overview of Unit L Upper Roof showing ponded area overview cf Unit L Lower Roof, dirty area with detriorating striri;:)ing verview of Unit L Lower Roof; Area by Chillers with oondino along drai'? I::ne Overview c` Unit M Addition Areas Overview of Unit M Addition Areas Patc!- ce: teginrir`c 'c Goer, cr` Unlit M Addition A,-,-- ?verv'ew ('f ?!?!± AdC:''!t.Gn Areas Overview cf Unit K Ballasted Area Overview c' Unit K Ballasted Area Overview cf Unit K Ballasted Area A/ nd Scour on Un?t K Ballasted Area Overv,ew cl Unit K Ballasted Area Overview of Unit K Adhered and Ballasted Area Excess ve ponded water on Unit M Original Area Ex.ess ve ponded vater on Unit M Original Area Ove-v,e v of wall ar,,? underside of dome roof deck Pcnded water on Unit M Original Area Cut Icuver, potential leak source a Overview Of Unit M Original Area ?`REt7tC? CUMBERLAND VALLEY SCHOOL D!'STRICT CUMBERLAND VALLEY HIGH SCHOOL (J EN ERAL INFOR 4ATION : RO(_,F ARF_A: Dome R,: SQ!_. ARE FOOTAGE: 22.20(1 YE. R OF I''STALI2000 PR.1-VIOL'S WORK: vIInor re:,irc, ROOF COMPOSITION: %1E\1BRANE: Carlisle-`, :rI,ieo .01??} ?. EPD'*1 « em1 rare \? th c: atina I'\', SI"L.A'TION: apparen,' oc:Nanur.t DEC K: \Vood. w-,-, Trent from , :1ve \SF"F7ST0S PRESET: N/A C one ,Iruct ,,n infornnation taken from ar_' tectural 1-o?,`lan DEFICIENCIES NOTED: I \'SPEC'TOR CONTAIENTS: RECONIM E-NDATIONS: ROOF CATEGORY: Deteriorr d ,\ood fascia On ;upper he\a2on area Coating ears v?orn end v,eat!-iered Overal' 11? -_ roof is in 4airly good condition at this tirrre, The good fasc I hoards on she upper roof should he rep!,. lvhere thev are 1'c-er1orated bc\ond holding fasteners, then fascia should be :.overed vv,it!- metal. Coating is \,orn and v,eathered. Repair vv ocd fascia, pc >s<NNcover v? ith metal. Continr,e to monitor maintain ,)of. Re--coat as needed to ma?ntain appearanc,_- and condit Good Cc "--ition Repairs _-,riired Lf" OL'CN -5 ew of Eaq e View Middle School Roofs, match =amS are openirnq Overv ew of Eagle View Middle School Roofs. OcF'n'r'a ca±ch Seam Orae-,na patch seam Overview ?f Eagle View Middle School Roofs, C~,-e-, ew of Eagle View Middle School Roofs. ew of Eagle View Middle School Rods. Overv"ew of Eagle View Middle School Roofs. Overvew of Eagle View Middle School Roofs. C.;c--,. ew of Eac'= View Middle School Roofs. Overview f Eagle View Middle School Roofs. r? . cr.:ew of Eac'- View Middle School Roofs C. ,F . ew f sac'- View M'ddle School Roofs Overv ew of Eagle View Middle School Roofs Cverv,ew rf Eac!e V'ew Mic?_ile School Roofs eld see ~' beainning `o coen end seam tea nninc, to open ° Tholes it membrane in one area -7:rhClec r '`'iprntrare it Ore area p rho.les in membrane r, one area Overv ew rls Eacle Vew Iv!iddle School Roofs + ve.. ew e` Eac e View Viddle School Roofs Overview of eagle View Viddle Schoo' Roofs X ri 4 c m - w c c ..^J C C v cl, CB C C 3 3 p m i? Oyer,, a f Good Hone Middle School- Gypsum Deco Areas Ov r, , ,f rood Hcr:e Middle School- Gypsum De- y :-'-c chQ'?v nu ?Cnd'na at cer!rneter edge C: verview of Good Hope Middle School- Gypsum Deck Areas ain ring `,as rusual c!amp?ng no. Does not appear ,c ?,cv':de good ccmcrF:?ssrcr sea!. Coe- `lashing seam Open `lashing se_,am Over. e4°: ?f Good Hcre Middle School- Gycsum De,: Areas I-Iv&r, ?Goo,' Hc-e Middle School- Gvmsum Deg Areas F-ndina wafer Overview of Good Hope Middle School- Gypsum Deck. Areas C /er4"ew cf Gcod Hoye Middle Scol- Gyp sum Deck Areas Overview of Good Hope Middle S:;hool- Gypsum Deck Areas r L ? „Y R., Z7 4 ?ax??F T-g.,a llli"?? } J ? C our ?`! h rp has f2'er out Cr receiver o}, upper a-, Overt -J Good Hc.-,e Mldd!e School- Gypsum De, Areas Over,, e?,, of Good HcE,e Middle School- Gypsum De--'e, Areas C rerview of Good Hope Middle School- Gypsum Deck Areas (`verv'ew !o' Gcod ?-oLDe M'C7d!e School- Gypsum Deck Areas C /er•,/iew cf Good Hope Middle °:chool- Gypsum Deck !areas Ove of Good hope Middle School- Metal Dec,, Areas 1 ve.e ,,. of Goo! _De Middle School- Metal Dec,, Areas Ove-,,"e:, of Gooc f- -De Middle School- Metal Dec'" Areas Dverview of Good Hope Middle School- Metal Deck Areas C"rer Catch seer-, Overview of Good Hope Middle Scroo!- Metal Deck Areas u Q U r W W f' ? V e 0 0 c _ c_: e e 4? v c ?' 2 v s c ;r C E (0 - L) v Ci e Lr) 12 Sl) .. CJ7 CT: t7; ? > 7 u C_L r^} T rz ^?, T rte,,. O/ve-view of Gr-en Ridge Elementary Roof View cf 'ow EIFS wail detail Dv;:=,view of Green Ridge Elementary Roof overview of Green Ridge Elementary Roof Gvervew of Green Ridge Elementary Roof ?'DM used as through wall is not a durable long term ^e*ail. v -A -view of Green Ridge Elementary Roof v = view cf Gr -en Ridge Elementary Roof Overv?e\N of Green Ridge Elementary Roof small opening n edoe stripping of green Ridge Dementarv Roof Overview of Green Ridge Elementary Roof Pion doct open+ng yield seam opening =!v? -view of Gr= en Ridge Elementary Roof Overview of Green Ridge Elementary Roof v -view of rr=en Ridge Elementary Roof Very sma'1 opening at edge :?` Sty peing ply rr _ L G - Y n: O v m c a? ?^ c SL m e C Y Q; C O - 5 v, LO QJ Q) ci io ? u a: rc cc c- r.. 0, ,view of H_?mpden Elementary Roofs ,`,._ -v ev,1 of H:-mpden Elementary Roofs Overvew cf Hampden Elementary Roofs Overv',ew of Hampden E =_.-mentary Roofs -moden Eie e+ f r) e r N an d E'E,rr nt r fc view of H? m nary Rocs ??r`??ew o a Gen e a.? ao =, view of N-mpden Elementary Roofs '.?. =rv+ew of Hcmpden Elementary Roofs Overvievv cf Hampden Elen-entary Roofs Overview cf Hampden Elementary Roofs ` `. -",view o` ?2 -rpden Elementary Roofs Overv ew cf Harrpden Elementary Roofs J,.-,v ew of H-mpden Elementary Rods overview of Hampden Elementary Roofs :rview o?'-4;-7mcDden Elementary Roofs -mail hcle n -emrtrare - ^ - -- c^ .? Lr r C? n r-?.. _. j r_ C C O CII M N C R Z7 N ? Q Rf L J. U, tL C,) x R' -C - Y C ? U O C r a c3:c=- a- CW v? of Middlesex Elementary Schocl Roofs Overview of Middlesex Elementary School Roofs Over, v of Middlesex Elementary Schocl Roofs Overview of M'ddlesex Elementary School Roofs O` _=~? v o` Middlesex Elementary Schoc! Roofs Srna!l ,perings n some f' ash nc laps ^v% =,v of M.dd'e-ex E"emen'ary School Roofs Ov=-,v of Middlesex Elementary School Roofs Over,r'ew of'V'dd!esex Elementary School Roofs Overvew of Middlesex Elementary School Roofs Ou==r? -.v of Middlesex Elementary School Roofs Overviaw cf Middlesex Elemertary School Roos O`-r-, -,v o; Micd!e_?ex Elementary Scho-l Roofs A;- -k;er rash ra and ! ahtrlna rrotect or 0,,?r,, of Middlesex Elementary Schoo! Roofs wracks:ascnry ?h r,^ey cap Overv ew ol. % dd!esex E!emer±ary School Roofs Overview cf r4^?ddlesex E?emer±?ary Scl)ooi Roofs ..... " 1 a. 3 a I It' - - - - - - - - - - - - - - - ?Q-j I "J OIe 'ew of Monroe Elementary Schoo' Roofs (D , e-?iiew cf Mor,op Elementary School Roofs l~ ielr_ seams oreninc Overview cl Monroe Elemeriarv School Roofs "I1pe boots oper no Overview of Monroe Elementary School Roofs ew cf Men-7,e Elementary School Roofs ;elc: seams ocenina Flashing terminated with caulk to welded curb Overview cf Monroe Elementary School Roofs Pat,_- seams ooenina Overview of Monroe Elementary School Roofs 1.-, evv of Monroe Elementary School Roofs O.env -?_. f Mcnroe E ementary Schoo! Roc's show ?n nor conc!na Overview of Monroe Element2ry School Roofs ?. k L a [ ? a Overview , f Monroe Elerrent-!r-v School Roots C A. ew of Mon-oe Elemen±ary School Roofs overv?ew of Monroe Elementary School Roofs u ? mar, (U C ? X03 7_ ca _ _ U C 3 d t0 U -- n t?verer? of Silver S?,ings Elementary Roof (gypsum Jeck area) batch - =ams are opening Labe' on membrane Patch seams are cinenina F!as ng caulked off to welded curb >verview of Silver Springs Elementary Roof (gypsum deck area) ;= ended Ovate, on Gypsum Deck Area -ve,e ncnc- a water on the canory Cve-, e. of S.lver Srings Elementary Roc-' (gypsu-, peck area` Field seams opening Overview cf Si'ver S^rings Elementary Roof (aycsum deck area) Watches opening Over- --v, --" Sewer S--~ nas Elementary MP Room Rcc` ??t?... Ceam:S Open?nu P eid sears beg nnina '.o open C verv ew c S Over Springs Elementary MP Room Roof Pa!ch seams open,na ? T'° ? C : C of Spcr±+,r- Hill Elementary School Roofs cf S-crti,r Hi!I Ele rertary School Roofs Some pipe boots beginning to open -,verview -.;f Soortina Hill Elementary Sciocl Roofs ,1? -,cf Snoriir- Hi!I Elementary School Roofs '-vervievv of Sporting Hill Elementary School Roofs Cve-r??o?of Soort ir:-, Hill Elemertary School Roofs r'st beak are . leak has been stopped OvF?? e:r. of Soort!r-'2 Hi!I Elemertary School Roofs Overview c" Socrt ng Hill Elementary School Roofs Cher corner on flaehirq C)verv'ew of Sport ing Hill Elementary School Roofs cve-vii.,,, of SpOrir-, Hill Elementary School Roof Patc" seam open ra ;)ver,j?ew cf Sporting H I! Elemertars School Roofs Patch seam opening ::xpansic- 0111! caulking over E=xpansion oInt caufkinq open Sheriffs Office of Cumberland County R Thomas Kline 1 "'o ati IL IN1)e, umvvalu i, 0%,11UIFF Sheriff Solicitor Ronny R Anderson Jody S Smith Chief Deputy Civil Process Sergeant Michael J. Ducharme Case Number vs. 2009-4183 The Cumberland Valley School District SHERIFF'S RETURN OF SERVICE 06/25/2009 10:39 AM - Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on June 25, 2009 at 1039 hours, she served a true copy of the within Complaint and Notice, upon the within namec defendant, to wit: The Cumberland Valley School District, by making known unto Jennifer Jones-Jobes, Accounting Clerk at 6746 Carlisle Pike Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 June 26, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF 'C6 n d wn' ? 0, e uty e i f f - - 0 n N o F.. M1t ' Q l r._ Y' ^' M 7 P Co MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter the appearance of the undersigned counsel on behalf of Defendant Cumberland County School District, with regarding to the above-referenced matter. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: C-??- Anthony F. Andrisano, J ., quire Atty. I.D. 201231 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3517 Attorney for Defendant 05/509435.v1 MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 9Wh day of July, 2009, I served a copy of the foregoing ENTRY OF APPEARANCE, via First Class United States mail, postage prepaid as follows: David A. Baric, Esquire O'Brien, Baric & Sherer 19 W. South Street Carlisle, PA 17013 By: A . Andrisano, Jr., Atty. I.D. 201231 4200 Crums Mill d Harrisburg, PA 17112 (717) 651-3517 Attorney for Defendant Hubert X. Gilroy Martson, Deardorff, Williams, Otto, Gilroy and Fallen 10 E. High Street Carlisle, PA 17243-3341 MARSHALL, DEr COLEMAN & GO 05/509435.v 1 WARNER Suite B F -,)- '? - JY TIE c F-? f 1Y 2009 ? Jj 10 F i 3: 5 2 I. MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION -EQUITY PRAECIPE FOR ISSUANCE OF WRIT OF SUMMONS ~$ TO THE PROTHONOTARY: Kindly issue a Writ of Summons to join the following as an Additional Defendant in the above captioned case: Pennsylvania Education Joint Purchasing Council ("PEJPC") 90 Lawton Lane, Milton, PA 17837. DATE August 13, 2009 BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ANTHONY F. AND A ,ESQUIRE I.D. No. 201231 4200 Crums Mill a utte B Harrisburg, PA 17 12 (717) 651-3517 afandri sano @mdwcg. com Attorney for Defendant, Cumberland Valley School District MICHAEL J. DUCHARME AND IN THE COURT OF COMMON PLEAS NICHOLAS J. SHEARS, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 09-4183 v. CIVIL ACTION -EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on August 13, 2009, I served a copy of the Praecipe for Issuance of Wirt of Summons to Join Additional Defendant via First Class United States mail, postage prepaid as follows: David A. Baric, Esquire Hubert X. Gilroy O'Brien, Baric & Scherer Martson, Deardorff, Williams, Otto, 19 W. South Street Gilroy and Fallen Carlisle, PA 17013 10 E. High Street Carlisle, PA 17243-3341 MARSHALL, DENNEHEY, WARNER COLEIlIAN & ~9G"~Il~ By: ANTHONY F. ANDR O~SQUIRE LD. No. 201231 4200 Crums Mill oad, Suite B Harrisburg, PA 17112 (717) 651-3517 afandrisano@mdwcg.com Attorney for Defendant, Cumberland Valley School District ~1~~~= ~ 7HE PRQ1~~~0?ARY ~4Q9 aUG t 4 PM 3~ b 9 r'~~tiNSYLVAC~iIA MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION -EQUITY WRIT OF SUMMONS TO: Pennsylvania Education Joint Purchasing Council ("PEJPC") 90 Lawton Lane, Milton, PA 17837 You are notified that Defendant Cumberland Valley School District has joined you as an Additional Defendant in this action, which you are required to defend. DATE: ~~/O9 By: S ~ Ic . bKe othonotary ~.~ MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION -EQUITY PRAECIPE ' TO JOIN ADDITIONAL DEFENDANT TO THE PROTHONOTARY: Kindly issue a Writ of Summons to join the following as an Additional Defendant in the above captioned case: Pennsylvania Education Joint Purchasing Council ("PEJPC") 90 Lawton Lane, Milton, PA 17837. DATE August 13, 2009 BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ANTHONY F. AND A ,ESQUIRE I.D. No. 201231 4200 Crums Mill a utte B Harrisburg, PA 17 12 (717) 651-3517 afandrisano@mdwcg. com Attorney for Defendant, Cumberland Valley School District r .. . r MICHAEL J. DUCHARME AND IN THE COURT OF COMMON PLEAS NICHOLAS J. SHEARS, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 09-4183 v. CIVIL ACTION -EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on August 13, 2009, I served a copy of the Praecipe for Issuance of Wirt of Summons to Join Additional Defendant via First Class United States mail, postage prepaid as follows: David A. Baric, Esquire Hubert X. Gilroy O'Brien, Baric & Scherer Martson, Deardorff, Williams, Otto, 19 W. South Street Gilroy and Fallen Carlisle, PA 17013 10 E. High Street Carlisle, PA 17243-3341 MARSHALL, DENNEHEY, WARNER COLE]YIAN & ~A~~ By: ANTHONY F. ANDR O~ESQUIRE LD. No. 201231 4200 Crums Mill oad, Suite B Harrisburg, PA 17112 (717) 651-3517 afandri sano @mdwcg. com Attorney for Defendant, Cumberland Valley School District 4F TF~ ~ ~':}~'~~'°Nt1T~RY Z~~ AUK 14 PM 3~ 5 p ~t~~`.'.~~~+1~~~. MICHAEL J. DUCHARME AND IN THE COURT OF COMMON PLEAS NICHOLAS J. SHEARS, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 09-4183 v. : CIVIL ACTION -EQUITY THE CUMBERLAND VALLEY : SCHOOL DISTRICT, Defendant ~ c, --n PENNSYLVANIA EDUCATION JOINT = ~ ' "' r~~ PURCHASING COUNSEL ("PEJPC") -~ `~ ' -~ ~ ~~ . JURY TRIAL DEMANDED ~~ ` -~ ~~ ~ Additional Defendant ..:.K~! c.,, '' ~ ca - ~ REPLY TO NEW MATTER AND NOW, comes Defendant Cumberland Valley School District, by and through their attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, and file the within Reply to Additional Defendant's New Matter and, in support thereof, set forth the following: 21. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is denied. 22. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is denied. 23. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is denied. 24. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is denied. 25. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is denied. OS/569465.v1 26. This averment is directed to a party other than the answering Defendant and, as such, no response is required from the answering Defendant. 27. Admitted in part; denied in part. It is admitted upon information and belief that the bidding procedure utilized by the PEJPC is in compliance with all applicable law, including, 24 P.S. 7-7 51, requiring the bidding of any school district construction project costing more than $10,000.00. The remaining allegations are denied. 28. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 29. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 30. This averment refers to a written document which speaks for itself and, as such, no response is required. 31. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 32. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 33. This averment refers to a written document which speaks for itself and, as such, no response is required. 34. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 35. This averment is a conclusion of law to which no response is necessary. To the extent a response is required, the averment is admitted. 36. This averment is a conclusion of law to~ which no response is necessary. To the extent a response is required, the averment is admitted. OS/569465.v1 37. This averment refers to a written document which speaks for itself and, as such, no response is required. 38. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 39. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 40. Admitted. 41. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 42. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 43. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 44. Denied. After reasonable investigation, the answering Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, as such, these averments are denied. 45. Admitted upon information and belief. 46. Admitted upon information and belief. 47. Admitted upon information and belief. OS/569465.v1 48. This averment refers to a written document which speaks for itself and, as such, no response is required. 49. Admitted upon information and belief. 50. Admitted upon information and belief. 51. Admitted upon information and belief. 52. This averment refers to a written document which speaks for itself and, as such, no response is required. 53. This averment refers to a written document which speaks for itself and, as such, no response is required. 54. This averment refers to a written document which speaks for itself and, as such, no response is required. Respectfully submitted: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: March 4, 2010 BY: .~,~IONY F. ANDRIS ,ESQUIRE I.D. No. 201231 4200 Crums Mill ,Suite B Harrisburg, PA 112 (717) 651-3 517 Attorney for Defendant Cumberland Valley School OS/569465.v1 VERIFICATION I, Michael Willis, hereby verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my information, knowledge and belief. I also verify that in my capacity as the Director of Business and Support Services for Defendant Cumberland Valley School District, I am duly authorized to make this Verification on behalf of Defendant Cumberland Valley School District. I also understand that the statements herein are 'made subject to the penalties of 18 Pa. C.S. §4904, relating to the unsworn falsification to authorities. Date: _ 3 - ~ • 2oia of Business and Support Services, and Valley School District 05/569465,v1 MICHAEL J. DUCHARME AND IN THE COURT OF COMMON PLEAS NICHOLAS J. SHEARS, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 09-4183 v. CIVIL ACTION -EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & By: Goggin, do hereby certify that on this 41h day of March, 2010, I served a copy Defendant's Reply to New Matter via Regular Mail, postage prepaid as follows: Michael Levin, Esquire Levin Legal Group, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Co-Defendant Hubert X. Gilroy, Esquire Martson, Deardorff, Williams et al 10 E. High Street Carlisle, PA 17013 Of Attorneys for Plaintiff David Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 Of Attorneys for Plaintiff CO -~IQTHONY F. ANDRI I.D. No. 201231 4200 Crums Mill R a ,Suite Harrisburg, PA 1 2 (717) 651-3517 afandrisano(a~mdwc com OS/569465.v1 ~. LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Phone: (215) 938-6378 Counsel for Defendant ~ 'jt-rEE~, , ~~C~t~'0't`~Y 2010 t~~R 19 °~`~ i ~ ~ 1 .. ~ J ,~. ~tT/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiff No. CV-09-4183 v. THE CUMBERLAND VALLEY : SCHOOL DISTRICT , et al. Defendant : ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Allison S. Petersen, Esq., on behalf of the Defendant, Central Susquehanna Intermediate Unit with regard to the above-captioned matter. Date: March ~ 1 , 2010 Respectfully submitted, Allison S. Peters ,Esq. (ID# 86335) 1301 Masons 11 Business Park 1800 Byberry oad Huntingdon Valley, PA 19006 Phone: (215) 938-6378 Counsel for Defendant, Central Susquehanna Intermediate Unit CERTIFICATE OF SERVICE I, the undersigned, do certify on this ~ 7 day of March, 2010, I served a copy of the foregoing Entry of Appearance on the following via first-class U.S. mail, postage prepaid: David A. Baric, Esquire O'Brien, Baric & Sherer 19 W. South Street Carlisle, PA 17013 Hubert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy and Fallen 10 E. High Street Carlisle, PA 17243-3341 Anthony F. Andrisano, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Date: March 2010 "~ ~, Allison S. Petersen, E quire LEVIN LEGAL GR UP, P.C. 1301 Masons Mill usiness Park 1800 Byberry Road Huntingdon Valley, PA 19006 Counsel for Defendant, Central Susquehanna Intermediate Unit i MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4183 CIVIL ACTION-EQUITY V. n rv ['1 ~ ~ PENNSYLVANIA EDUCATION cr_- `~ ~:~;_ c_ JOINT PURCHASING COUNCIL ' ~ " c.:. .~ Defendant ~`~ -~;,'; c~~ .., - :~ ._ . C_;~ CERTIFICATE PREREQUISITE TO SERVICE .~~ ~,,; a` OF A SUBPOENA PURSUANT TO RULE 4009.22 `~ `K As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. ,, r David A. Baric, Esquire Date: ~ ! D ~ v MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4183 CIVIL ACTION-EQUITY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Plaintiff certifies that: (1) A notice of intent to serve the subpoena with a copy of the attached subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve. r David A. Baric, Esquire Date: ~ 10 1 ~ ,~ MICHAEL DUCHARME and NICHOLAS SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. . PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant JUN ~ 6 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.09-4183 CIVIL ACTION-EQUITY l~ r ~ <~:: _ ; ~ -:-, ~~-, _ , , =~ . r~..: _. ..., ,- _ ~ ,? ~< : ~~~: ~ ;~ ~~ :~ cc; -< J ORDER OF COURT AND NOW, this ~ ~ day of ~' ~ ~ , 2010, upon consideration of Plaintiffs Motion For Entry Of Commission To Depose Out Of State Witness Upon Subpoena it is hereby ordered that Plaintiff is permitted to: 1. Commission the undersigned, through counsel retained of record in the State of Ohio to depose the named custodians and commissioning; and, 2. Request the issuance of a deposition subpoena by the clerk and judge of an appropriate court of the State of Ohio having general in personam jurisdiction over the above- named record custodians. BY THE COURT, p_ r~~.~~. ~~~2 j ~v ~~ 4 ~ MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant IN THE COURT OF COMMON CUMBERLAND COUNTY, PEI NO. 09-4183 CIVIL ACTION-EQUITY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things 4009.22, Plaintiff certifies that: ;AS OF YLVANIA c? , ~ ~ -~ ` .:~ -,., i- ~ ~... _ ,.~, C` -T, ; ~'t ~ " 1 ~ C.:i z~ : ~ . :: ~-: _ r to Rule (1) A notice of intent to serve the subpoena with a copy of the attache subpoena attached thereto was mailed or delivered to each party at least twe ty days prior to the date on which the subpoena is sought to be served; (2) A copy of the notice of intent, including the proposed subpoena, i attached to this certificate; (3) No objection to the subpoena has been received; and, (4) The subpoena which will be served is identical to the subpoena to the notice of intent to serve. ~~ David A. Baric, is attached Date: ~~ ~ g ~~ MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant IN THE COURT OF COMMON CUMBERLAND COUNTY, PEI NO. 09-4183 CIVIL ACTION-EQUITY NOTICE OF INTENT TO SERVE A SUBPOENA TO ?AS OF ~YLVANIA Plaintiffs, Michael J. DuCharme and Nicholas J. Shears, intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days frog below in which to file of record and serve upon the undersigned an objection to tl no objection is made the subpoena may be served. 2~ ~ Date: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 (717) 249-6873 the date listed e subpoena. If ,. r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHA E and NICHOLAS J. SHEARS v. THE CUMBERLAND V~AI SCHOOL DISTRICT, et al. and PENNSYLVANIA EDUCATION JOINT PURCHASING COUN IL No. CV-09-4183 ~ ~ ~ :-~ ~- ~- ~_ ~f , n' .. C~ i _ ' '"C~ ..~ s . - _. . ~. ' C Cn. .. - _~ ~: -~: itional Defendant ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the Susquehanna Intermedia above-captioned matter. Date: July ! 3 , 2010 appearance of Paul J. Cianci, on behalf of the Defendants, Central Unit and Pennsylvania Joint Purchasing Council with regard to the LEVIN LEGAL GROUP, P.C. Paul J. Cianci ( # 82717) 1301 Masons Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Phone: (215) 938-6378 Counsel for Central Susquehanna Intermediate Unit and Pennsylvania Education Joint Purchasing Council CERTIFICATE OF SERVICE I certify that on Appearance on the David A. Baric, Esquire O'Brien, Baric & Sherer 19 W. South Street Carlisle, PA 17013 Anthony F. Andrisano, Marshall, Dennehey, W 4200 Crums Mill Road, Harrisburg, PA 17112 Date: July 13, 2010 13~day of July, 2010, I served a copy of the foregoing Entry of via first-class U.S. mail, postage prepaid: Hubert X. Gilroy, Esquire Martson, Deardorff, Williams, Otto, Gilroy and Fallen 10 E. High Street Carlisle, PA 17243-3341 Coleman & Goggin ;B ~~ , Paul J. Cianci LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Counsel for Central Susquehanna Intermediate Unit and Pennsylvania Education Joint Purchasing Council MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant and CIVIL ACTION - LAW PENNSYLVANIA EDUCATION: JOINT PURCHASING COUNCIL, Additional Defendant NO. 09-4183 CIVIL TERM IN RE: DEFENDANTS' JOINT MOTION FOR PAYMENT OF REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEES TO ATTEND DEPOSITIONS OF NON-PARTIES MORE, THAN 100 MILES FROM THE COURTHOUSE ORDER OF COURT AND NOW, this 3?d day of September, 2010, upon consideration of Defendants' Joint Motion for Payment of Reasonable Expenses, Including Attorney's Fees To Attend Depositions of Non-Parties more than 100 Miles from the Courthouse, a Rule is hereby issued upon all non-moving parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 10 days of service. .. n n 7t l o N -? BY THE COURT, avid A. Baric, Esq. 19 West South Street Carlisle, PA 17013 and bert X. Gilroy, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiff nthony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District ichael I. Levin, Esq. Paul J. Cianci, Esq. LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant rc 0o P I E-g ,r,?? LPL g?3/1? REVISED reply to rule to show cause to grant expenses fees for deposit (DOC) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, CIVIL ACTION NO. 09-4183 CIVIL TERM V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. (7) r11 3 C-1 - CC- - r; -77 C=) ---I CD -n .c> ? cx7 REPLY TO RULE TO SHOW CAUSE WHY PLAINTIFFS SHOULD NOT INCUR EXPENSES OR ATTORNEY'S FEES FOR DEFENSE COUNSEL'S ATTENDANCE AT DEPOSITIONS OF MAX LUFT AND LLEW PERRY AND NOW, comes Plaintiffs, Michael J. Ducharme and Nicholas .1. Shears, by and through their attorneys, Dickie, McCamey & Chilcote, P.C. and O'Brien, Baric & Scherer and file this Reply to the Rule to Show Cause Why Plaintiffs' Should Not Incur the Expenses or Attorney's Fees Arising from Defense Counsel's Attendance at the Depositions of Max Luft and Llew Perry. Despite Defendants' best efforts to summarily apply Pa.R.C.P. 4008 to collect expenses and attorney's fees associated with the depositions of Messrs. Max Luft and Llew Perry, Defendants ignore the merits of and necessity for these depositions, as well as the good faith efforts (attendance via video conference) made by Plaintiffs' counsel to mitigate Defendants' costs associated with said depositions. Accordingly, this Court should not award Defendants any expenses or attorney's fees associated with the depositions of Messrs. Luft and Perry. As alleged by Plaintiffs in their Complaint for Declaratory Relief, this case concerns Defendant Cumberland Valley School District's ("CV School District") improper award of contracts to roofing contractors Tremco Incorporated ("Tremco") and Weatherproofing Technologies, Inc. ("WTI") based on a failure to comply (in various manners) with certain bidding requirements that are statutorily imposed by the School Code of 1949 at 24 P.S. §7-751, et sey (the "School Code"). (See Action for Declaratory Relief, T¶ 10-12). Defendant CV School District maintains that it complied with the School Code via a "bidding" process conducted on it's behalf through an organization known as the Association of Educational Purchasing Agencies ("AEPA"). (See Action for Declaratory Relief, ¶16). CV School District is directly linked and associated to AEPA via CV School District's membership with Additional Defendant Pennsylvania Education Joint Purchasing Council ("PEJPC"), who in turn is a member of the AEPA. (See, New Matter of PEJPC, ? 38-41). Thus, the AEPA (and its former executive director Max Luft and current executive director Llew Perry) are neither strangers to Defendants in this matter nor mere random third parties; to the contrary. the AEPA (and therefore Messrs. Luft and Perry) is the organization upon whom Defendants' rely for their alleged compliance with the School Code. The depositions of Messrs. Luft and Perry are merely being conducted in accordance with the Defendants' purported defenses and justification resulting from their relationship with the A EPA. Plaintiffs have offered to provide video conference or telephone deposition for Messrs. Luft and Perry. Pennsylvania case law indicates that these are reasonable and reliable means to conduct depositions and to analyze the veracity of the deponents' responses. Plaintiffs respond to each individual paragraph of Defendants' Joint Motion, etc. as follows: 2 I . Denied as stated. Messrs. Luft and Perry are more than mere "non-party witnesses", they are executives of the organization (AEPA) upon which Defendants base their defenses., i.e., that the AEPA provided a legitimate bidding process which resulted in Defendants' compliance with the School Code. 2. Admitted. 3. Denied as stated. Plaintiffs did not instigate the depositions of Messrs. Luft and Perry; the depositions of Messrs. Luft and Perry and merely being conducted in accordance with the defenses raised by Defendants concerning Defendants' alleged compliance with the School Code. 4. Pa.R.C.P. 4001(c) speaks for itself. 5. Pa.R.C.P. 4011 speaks for itself. 6. Pa.R.C.P. 4008 speaks for itself. 7. Denied as stated. Defendants are correct that this Court has wide discretion in deciding whether to impose expenses and fees pursuant to Pa.R.C.P. 4008. Davis v. Pennzoil Co., 38 D. & C.2d 289 (Pa. Com. Pl. 1965). The analysis, however. continues: "[i]n reaching an equitable result, the nature of the case, the importance of the deposition, the financial status of the parties, the importance of cross-examination by trial counsel and the difficulty of briefing correspondent must all be considered." Davis, 38 D. & C.2d at 291-92. The most important consideration in this regard is the nature of Messrs. Luft and Perry`s connection to this lawsuit, as set forth supra. Plaintiffs, both individuals, should not have to foot the bill for their reasonable investigation of Defendant CV School District's improprieties. Indeed, Plaintiffs have already provided to each Defendant, free of charge, copies of over 3,000 documents that Plaintiffs received from AEPA. As referenced above, and consistent with their continued efforts 3 of good faith and reasonableness, Plaintiffs have offered to set up video conferences of Messrs. Luft and Perry's depositions or, in the alternative, enable Defendants to participate in said depositions via conference call. 8. Denied. Defendants' contentions to the video conference and telephone deposition solutions proffered by Plaintiffs are specious at best and in any event contrary to Pennsylvania case law that has addressed this issue. First and foremost, Messrs. Luft and Perry are not parties to this lawsuit and will not be defended or represented by Defendants' counsel. More importantly, though, Pennsylvania courts have held that telephone conferences (and thus by implication based on inherently superior technology, video conferences) are sound and reliable methods for conducting depositions of witnesses. (See, JA Reinhardt 8, Co. v. Stettz, 35 Pa. D. & C. 4" 558, 566 (Pa. Com. Pl. 1996) (Plaintiffs will in no way be prejudiced by taking an oral telephonic deposition. Although plaintiffs will not be able to visually observe defendant's demeanor during a telephonic interview, they will be able to determine his veracity through the forthcomingness of his answers and the steadiness of his voice.) (emphasis added) (.See also, Pennington v. Cuprum, 32 Pa. D. & CA"' 75, 81 (Pa. Com. Pl. 1996) (Telephone depositions are neither expressly authorized nor enjoined by the Pennsylvania Rules of Civil Procedure. Pursuant to Pa. R.C.P. 126 and the inherent power of the court to control the progress of litigation, courts may authorize telephone depositions for good cause. The ready availability of telephone conference calling and fax machines make telephone depositions a feasible option.) Thus, not only are Defendants' reasons for opposing the depositions by video conference or telephone conclusory and absurd, they are also contrary to applicable case law regarding the issue. 9. Admitted. 4 WHEREFORE, Plaintiffs request this Honorable Court: a I issue an order DENYING Defendants' Joint Motion for Payment of Reasonable Expenses, Including Attorney's Fees, to Attend Depositions of Non-Parties More than 100 Miles from the Courthouse, and b) require Defendants to pay their own expenses and attorney's fees associated with the depositions of Max Luft and Llew Perry, or, in the alternative, c) require Defendants to attend the depositions of Messrs. Luft and Perry via video- conference or by telephone. Respectfully submitted, DICKT, McCA-MLY & By: Vderick W. Bode, III, Esquire a. I.D. # 33391 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 O'BRIE , ARIC & H E By: David A. Baric, Esquire Pa. I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Counsel for Plaintiffs, Michael J. Ducharme and Nicholas J. Shears 5 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2010, I, David A. Baric, Esquire of Baric Scherer, did serve a copy of Plaintiffs' Reply To Rule To Show Cause, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Anthony F. Andrisano, Jr., Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, Pennsylvania 17112 Paul Cianci, Esquire Levin Legal Group 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, Pennsylv is 19006 David A. Baric, Esquire No- 09-118',('1V IL f'EK,VI tirn ?? i? [Y L?ivr '„? n! U E f v? (i.?lrA *il IN THE COURT OF COMMON PLEAS OF CUMBER LAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs. CIVIL ACTION NO. 09-4183 CIVIL. TERM v. THE CUMBERLAND VALLEY SCHOOL DISTRICT. Defendant. v. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. Issue No. PRAECIPE TO ENTER APPEARANCE Code: Filed on behalf of Plaintiffs, MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS Counsel of record for this party: Frederick W. Bode, III, Esquire PA LD.# 33391 Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA t.D T 206150 DICKIE, McCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place. Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and CIVIL ACTION NICHOLAS J. SHEARS, NO. 09-4183 CIVIL TERM Plaintiffs. V. THE CUMBERLAND VALLEY SCHOOL DISTRICT. Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. PRAECIPE TO ENTER APPEARANCE TO: CUMBERLAND COUNTY PROTHONOTARY: Kindly enter the appearance of Frederick W. Bode, III, Douglas M. Grimsley, and Michael P. Flynn, of Dickie, McCamey & Chilcote, P.C., as counsel for Michael J. Ducharme and Nicholas J. Shears, Plaintiffs in the above-captioned matter. Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C. By: Frederick W. ode, III, squire Douglas M. Grimsley, Esquire Michael P. Flynn, Esquire Two PPG Place Pittsburgh, PA 15222-5402 (412) 281-7272 Counsel for Plaintiffs, Michael J. Ducharme and Nicholas J. Shears CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing to PRAECIPE TO ENTER APPEARANCE has been served on this _ i3 day of September, 2010, by U. S. first-class mail. postage prepaid, to following counsel of record: David A. Baric, Esquire Baric & Scherer 19 West South Street Carlisle, PA 17013 (Counsel fo* Plaintiffs) Anthony F. Andrisano, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road. Suite B Harrisburg, PA 17112 (Counsel for Defendant) Michael I. Levin, Esquire Paul J. Cianci, Esquire 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 (Counsel for Additional Defendant) DICKIE, MCCAMEY & CHILCOTE, P.C. By: 5P- Frederick W. Bode, III, Esquire Douglas M. Grimsley, Esquire Michael P. Flynn, Esquire Counsel for Plaintiffs, Michael J. Ducharme and Nicholas J. Shears F \FILES\Clients\13439 Carlisle Syntec\13439.I.pra Revised: 9128/10 238PM Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant v. THE LL E -0 FICrE 2010SPP 29 P11 3: L,2 CUMBERLAND C 0 U T ,' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009-4183 CIVIL ACTION - EQUITY PENNSYLVANIA EDUCATION JOINT PURCHASING COUNSEL ("PEJPC"), Additional Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please withdraw my appearance on behalf of the Plaintiffs in this matter. MARTSON LAW OFFICES By ?/? ?A Hubert X. Gilroy squire 10 East High Str et Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Praecipe were served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Frederick Bode, Esquire Dickie McCamey & Chilcote Two PPG Place, Suite 400 Pittsburgh, PA 15222 US Anthony F. Andrisano, Esquire MARSHALL DENNEHY WARNER COLEMAN & GOGGIN 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael Levin, Esquire David W. Brown, Esquire LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 David A. Baric, Esquire O'BRIEN, BARIC & SCHERER 19 West South Street Carlisle, PA 17013 MARTSON LAW OFFICES T i nroad ARTS NN AW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September ?, 2010 MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW PENNSYLVANIA EDUCATION: JOINT PURCHASING COUNCIL, Additional Defendant N0.09-4183 CIVIL TERM IN RE: DEFENDANTS' JOINT MOTION FOR PAYMENT OF REASONABLE EXPENSES INCLUDING ATTORNEY'S FEES TO ATTEND DEPOSITIONS OF NON-PARTIES MORE THAN 100 MILES FROM THE COURTHOUSE ORDER OF COURT AND NOW, this 4~' day of October, 2010, upon consideration of Defendants' Joint Motion for Payment of Reasonable Expenses Including Attorney's Fees To Attend Depositions ofNon-Parties More Than 100 Miles from the Courthouse, and of Plaintiffs' Reply To Rule To Show Cause Why Plaintiffs Should Not Incur Expenses or Attorney's Fees for Defense Counsel's Attendance at Depositions of Max Luft and Llew Perry, the motion is denied. BY THE COURT, ~4. r.- r-'' ~~ ~_.: ;-- ;~~. E~..._,~ " C~7 .~ ~- .~. --~ -., ~., ~_; --~ ~ :r ~' ~. , _~ _. .' ` ~ ~. _. '""'~ 'f ~'"y ~~~ [il J rederick W. Bode, III, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222 avid A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff ~nthony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District ~'aul J. Cianci, Esq. LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant :rc MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW PENNSYLVANIA EDUCATION: JOINT PURCHASING COUNCIL, Additional Defendant N0.09-4183 CIVIL TERM _ .-~; - ~~.~ q --~ .~ ~~ ~~,~ d ~~ ~~ ~" ~sa r:~1 , ` ~, -~° °~, ~ -ra ~~ ra _~: >~ •• ~ -.~ IN RE: PLAINTIFFS' MOTION TO COMPEL PRODUCTION ORDER OF COURT AND NOW, this 4~' day of October, 2010, upon consideration of Plaintiffs' Motion To Compel Production, a Rule is hereby issued upon all non-moving parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days from the date of this order. BY THE COURT, Frederick W. Bode, III, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222 ~vid A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff nthony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District M'chael I. Levin, Esq. ~ul J. Cianci, Esq. LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant :rc MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant and PENNSYLVANIA EDUCATION : JOINT PURCHASING COUNCIL, Additional Defendant CIVIL ACTION - LAW c-) c 4 -° rn Co ? c -or-- M. r _ rn Cy -r -n ) . n ?. rv .C- ).?r ?, o NO. 09-4183 CIVIL TERM IN RE: DEFENDANTS' JOINT MOTION FOR PAYMENT OF REASONABLE EXPENSES INCLUDING ATTORNEY'S FEES TO ATTEND DEPOSITIONS OF NON-PARTIES MORE THAN 100 MILES FROM THE COURTHOUSE ORDER OF COURT AND NOW, this 120' day of November, 2010, upon consideration of the attached letter from Michael P. Flynn, Esq., attorney for Plaintiffs, the request of Houck Services to extend it's time to respond to the Order of Court dated October 4, 2010, regarding Plaintiffs' Motion To Compel Production, to November 24, 2010, is granted. BY THE COURT, ichael P. Flynn, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222 Xaid A. Baric, Esq. West South Street Carlisle, PA 17013 Attorneys for Plaintiff ?thony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District /Paul J. Cianci, Esq. / LEVIN LEGAL GROUP, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant ara C.Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Houck Services, Inc. :rc IZT Es rn.t.t 101.1?v 788314.doc Dickie. Michael P. Flynn Direct, Dial:412-392-5492 Attorney-at-Law Direct Fax: 412-392-5367 Admitted in PA mflynnOdmclaw.com November 8, 2010 The Honorable J. Wesley Oler, Jr. 1 Courthouse Square Carlisle, PA 17013 RE: Ducharme v. Cumberland Valley School District Cumberland County Court of Common Pleas - No. 09-4183 Our File No.: 0003939.0322793 Dear Judge Oler: Please allow this correspondence to provide an update on the recent activity in the above- captioned matter, specifically with regard to the subpoena served by Plaintiffs upon third-party, Houck Services, on or about August 3, 2010 (the "Subpoena"). Houck Services provided responses and objections to the Subpoena on or about September 8, 2010. After attempts by Plaintiffs and Houck Services to resolve the Subpoena- related disputes fell short, Plaintiffs filed a Motion to Compel Production of documents and full and complete responses to the Subpoena on or about September 29, 2010. Unfortunately, when preparing and filing its Motion to Compel Production, Plaintiffs inadvertently omitted Houck Services (and its counsel) from the Certificate of Service and thereby inadvertently did not serve Houck Services with a copy of the Motion to Compel Production. Thereafter, on October 4, 2010, this Court issued a Rule to Show Cause why the Motion to Compel should not be granted. However, as Houck Services had been inadvertently omitted from the Certificate of Service attached to the Motion to Compel, Houck Services did not receive a copy of this Court's Order to Show Cause, either. Upon discovering the fact that third-party Houck Services had not been served with a copy of Plaintiffs' Motion to Compel and this Court's Order to Show Cause, Plaintiffs notified counsel for Houck Services and provided copies of the same on November 1, 2010. On November 4, 2010, counsel for Houck Services acknowledged receipt of the Motion to Compel and the Rule to Show Cause. (A copy of the November 4, 2010 letter is attached for your review). Houck Services requested twenty (20) days from service of the Motion to Compel and Order to Show Cause (until November 24, 2010), to respond to the Order to Show Cause. DICKIE, McC11MEY & CHItCOTE, P.C I ATTORNEYS AT LAW MAIN: 412-291-7272 EAX 412-342-5367 Pinsburgh ? Hewsh vj i Phiiad4hie I Washington, U.C. I Delowore TWO PPG PUCE, SUITE 400 1 PITTSBURGH. PA 15222-5402 1 WWW.DMCtAW.COM N ,W Jersey i North (orohno I Ohio I West Wrginia November 8, 20 10 Page 2 Plaintiffs have no objection to this request and believe it is only fair in light of the circumstances set forth herein. Therefore, Plaintiffs respectfully request this Honorable Court permit Houck Services until November 24, 2010, to provide its response to the Order to Show Cause. If you have any questions or concerns in this regard, please do not hesitate to contact me. Very truly yours, 4 P, F/? . ga"?' Michael P. Flynn MPF/cl Enclosures cc: Ciara C. Young, Esquire (w/ encl.) Anthony F. Andrisano, Esquire (w/encl.) Paul J. Cianci, Esquire (w/encl.) David A. Baric, Esquire (w/encl.) NOV-10-2010 10:42 From: To:17172406462 P.2/3 WOOLF0RD ILAW PCI November 10, 2010 VU FACSTM LE (717) 240-6462 The Honorable J. Wesley Ol.er, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Michael J. Ducharme. and Nicholas J. Shears v. Cumberland Valley School District v. Pennsylvanla .F,ducation Joint Purchasing Council Cumberland County Civil Action No. 09-4183 Dear Judge Oler: On or about September 29, 2010, Plaintiffs filed a Motion to Compel seeking an order fT()Tn the Court compelliDg'ilouck Services, Inc. to provide full and complete resPo+isea to Plaintiffs' Subpoena. At the time of filing the Motion, Plaintiffs failed to serve a copy of the Motion upon Houck. On Octobcr 4, 2010, Your Honor issued a Rule upon all non-moving parties to show cause why the relief requested should not be granted. The Rule was returnable within 20 days from the date of the Order, on or about October 24, 2010. Hauck did not receive a copy of this Order, and therefore did not respond by the October 24, 2010 dcad.1ine_ On November 3, 2010, the undersigned received a letter from Plaintiffs' counsel enclosing the Motion to Compel and October. 4, 2010 Rule, a copy of which is attached. Houck is working on its response and will be tiling a Cross-motion for Protective Order as soon as possible. Houck respectrully requests until November 23, 2010, 20 days from service, to file and serve the saine_ Thad. you (Or your consideration of this request:. Sincerely yours, CCY/njp Enclosures cc: David A. Bane, Esquire Frederick W. Bode, III, Esquire Anthony F. Adrisano, Esquire Michael 1. Levin., Esquire Houck Services, Inc. WOOLFORD LAW, P.C: 4-1AT Ciam C. Young Wheatlaod Place • 941 Wheatluad Avenue 1 Suite 402 r Ww"tcr, PA 17604 P.1 717.290.1190 ¦ ? 1717,290-1196 ¦ www.woolf-Ilaw.aam WOOLFORD LAW, P.C. By: Timothy I Woolford, Esquire Attorney LD. 78941 Ciara C. Young, Esquire Attorney I.D. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. v. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant. FILED-OFFICE OF THE PROTHONOTARY 2010 NOV 24 AM 10: 34 CUMBERLAND COUNTY : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA No. 09-4183 : CIVIL ACTION - EQUITY HOUCK SERVICES, INC.'S CROSS-MOTION FOR PROTECTIVE ORDER AND NOW, comes Houck Services, Inc. ("Houck"), by and through its undersigned counsel, Woolford Law, P.C., who hereby submits this Cross-Motion for Protective Order in response to Plaintiffs' Motion to Compel Production. In summary, the documents requested in the Subpoena are simply not necessary for Plaintiffs to establish their claims against the Cumberland Valley School District. Plaintiffs can prove their claims without having to burden third parties such as Houck. Second, the documents requested contain highly sensitive proprietary information - all the more reason that this Court should not require their production. FACTUAL BACKGROUND I . In this case, Michael J. Ducharme and Nicholas J. Shears ("Plaintiffs") contend that, by entering into a bidding process through the Association of Educational Purchasing Agencies ("AEPA") for roof restoration work on three schools, the Cumberland Valley School District (the "CV School District") violated statutory requirements set forth under the School Code of 1949, 24 P.S. § 7-751 (the "School Code") pertaining to competitive bidding of construction-related work. (See Plaintiffs' Action for Declaratory Relief, at 1111, 16-17.) 2. The School Code requires that construction, reconstruction, repair or maintenance work upon schools exceeding $10,000 must be competitively bid and the contract awarded to the lowest responsible bidder. 24 P.S. § 7-751. 3. Through the AEPA bidding process', the CV School District awarded the roof- restoration contracts to a company called Weatherproofing Technologies, Inc. ("WTI"), which is not a party to this action. 4. WTI entered into a subcontract with a specialty contractor, non-party Houck Services, Inc. ("Houck"). 5. Plaintiffs are employees of Carlisle SynTec Incorporated ("Carlisle"), which manufactures, supplies and installs roofing material. (See id at ¶¶ 3, 6). 6. Carlisle is a direct competitor of WTI and Tremco Incorporated ("Tremco"), an affiliate of WTI that manufactures and supplies roofing materials. ' The AEPA bidding process is described as follows: The Board meets each spring for the purpose of, among others, selecting product categories to seek bid responses from national vendors. Tasks groups, or sub- committees, are assigned to develop product specifications, market and educate potential vendors, and refine terms and conditions specific to product categories. In the fall, each member posts the bid announcement in their state. The sub- committee reviews the submissions and makes a recommendation to the Board for approval at the winter meeting. It is then up to each member state to enter into a contractual agreement with each recommended vendor. http://aepacooa.orQ/. The AEPA website states "AEPA is unique in that each purchasing contract is awarded separately in each member state, in accordance with local bidding laws. The benefit is state-specific bid protection and lower cost of ownership for school districts." 2 7. Plaintiffs allege that CV School District violated the competitive bidding requirements of the School Code by, inter alia, failing to publicly advertise a series of roofing projects at the School District and failing to enter into contracts with the lowest responsible bidders. 8. On all construction or renovation projects in which the value of the work is $10,000 or more, a school district is required to give notice to the public of its intent to award a contract, the purpose of which is to give all prospective bidders a chance to submit a bid. 24 P.S. §7-751. 9. The contract must then be awarded to the bidder whose bid is "responsive" (complies with the requirements) and is the lowest price. 10. In determining whether the School District violated the School Code, the only relevant inquiries are: 1) whether the work constitutes "construction, reconstruction, repair or maintenance;" and (2) whether the value of the work is $10,000 or more. 11. On August 3, 2010, Plaintiffs served a subpoena upon Houck, which merely served as a subcontractor to WTI. At no time did Houck (or Tremco) contract with the CV School District. 12. In their Subpoena, Plaintiffs sought to discover documents by or between Houck and WTI and/or Tremco. 13. The Subpoena demanded production of the following categories of documents: a) contracts between WTI and Houck; b) correspondence between Houck and WTI and/or Tremco; c) documents regarding the bidding process; d) Houck's bids or proposals to WTI and/or Tremco; 3 e) documents relating to the work performed by Houck at the schools; f) documents reflecting payment received by Houck from WTI/Tremco for work at the schools; g) Houck's invoices to WTI/Tremco; documents reflecting information Houck provided to WTI for any of the projects listed in the Subpoena; h) all agreements Houck has with Tremco; and i) roof management plans, specifications, details or similar documents. See Exhibit "A." 14. On September 7, 2010, Houck served its response to the Subpoena, objecting to production of the requested documents as irrelevant to the issue of whether the School District complied with the requirements of competitive bidding. See Exhibit "B." 15. On September 29, 2010, Plaintiffs filed a Motion to Compel Production. 16. On November 24, 2010, Houck filed an answer to the Motion to Compel. 17. The Motion to Compel should be denied and a protective order entered because the documents requested are irrelevant to whether the School District was required to, or did in fact, comply with the School Code and the full panoply of competitive bidding requirements. 18. Houck was simply a subcontractor to WTI. 19. The contracts or agreements between WTI and Houck are irrelevant - only the School District's contracts with WTI and/or Tremco have any bearing on whether the School District violated the School Code. 20. The nature and cost of the work can be determined by examining the School District's contracts with WTI and/or Tremco. 4 21. In other words, the contracts between WTI and the School District indicate whether the work constituted "construction, reconstruction, repair or maintenance" and whether the value of the work is $10,000 or more. 22. There is simply no need to examine subcontracts between WTI and Houck. 23. The request for all written correspondence between Houck and WTI and/or Tremco is overly broad and seeks irrelevant documents because project correspondence between a prime contractor and a subcontractor is completely irrelevant to whether the School District complied with the School Code and competitive bidding laws. 24. At issue in the Complaint is the bidding procedures the School District employed in securing its contract with WTUTremco, and these documents would be in the possession of the School District. 25. The request for Houck's documents relating to the bidding process is irrelevant because Houck did not submit a bid to the School District for the projects referenced in the Subpoena; rather, Houck was simply a subcontractor to WTI. 26. Houck's bids or proposals to WTUTremco are irrelevant to whether the School District violated the School Code. 27. The only bids that are relevant to the nature of the work, the cost of the work and the bidding procedures employed are the bids that were submitted directly to the School District. 28. Documents relating to the work Houck performed on the projects identified in the Subpoena are also irrelevant because the nature of the work can be determined by examining the contracts between WTI/Tremco and the School District. 29. Houck's invoices to WTI/Tremco and its records of payment from WTUTremco are also irrelevant. 5 30. The value of the work can be be determined by looking solely to WTI/Tremco's invoices to the School District and/or the School District's payment of those invoices. 31. The Subpoena requested all contracts between Houck and Tremco, even projects unrelated to the CV School District. 32. Houck has no agreements with Tremco relating to the projects identified in the Subpoena. 33. The contracts or agreements between Tremco and Houck relating to other projects are totally irrelevant - only the School District's contracts for the projects identified in the Complaint have any bearing on whether the School District violated the School Code on these projects. 34. Even if the documents are somewhat relevant, which is denied, the information can be obtained from the School District's documents without the need to burden a non-part such as Houck. 35. The requested documents are not only irrelevant to the stated basis for this action, they contain highly sensitive, proprietary commercial information. 36. The disclosure of this confidential, proprietary information would have no bearing on this litigation and would leave Houck (as well as Tremco and WTI) vulnerable to a substantial competitive disadvantage. 37. The request for documents between Houck and WTI/Tremco is simply a ruse. The documents are not necessary for Plaintiffs to establish their claim; Plaintiffs are simply attempting to obtain confidential and highly sensitive business information about a competitor of their employer, Carlisle SynTec. 6 38. As a result, the Court should deny the Plaintiffs' Motion to Compel and enter a protective order preventing the disclosure of these immaterial and highly sensitive documents. LAW AND ARGUMENT 1. The Requested Documents are Not Relevant to this Litigation, Nor Reasonably Calculated to Lead to the Discovery of Admissible Evidence. 39. Houck incorporates the preceding paragraphs as if set forth fully herein. 40. Pennsylvania Rule of Civil Procedure 4003.1 limits discovery to requests that are "relevant to the subject matter involved in the pending action," Pa.R.C.P. 4003.1(a), and "reasonably calculated to lead to the discovery of admissible evidence," Pa.R.C.P. 4003.1(b); see Pa.R.C.P. 4011(c)(precluding any discovery beyond the scope of Rule 4003.1). 41. As set forth above, at issue in this litigation is whether the CV School District violated the School Code by relying on the AEPA bidding process to complete its roof- restoration projects rather than by publicly advertising the projects and then awarding contracts to the lowest responsible bidder, as required by Section 7-751 of the School Code. 42. Relevant inquiries for discovery, therefore, would include: (1) the nature of the contracts entered into by the CV School District; (2) the ultimate cost of the work pursuant to those contracts; and (3) the actual bidding procedures employed by the CV School District. 43. The only documents relevant to this litigation are the documents by or between the contractor, WTI and/or Tremco, and the School District. 44. The contracts and correspondence between Houck and WTI and/or Tremco - which concern subcontractor pricing and costs - are irrelevant to the subject matter of this action, and requests for such documents are thus not reasonably calculated to lead to the discovery of admissible evidence. 7 45. In other words, the Plaintiffs do not need subcontracts, invoices and correspondence between Houck and WTI/Tremco to prove that the CV School District violated the School Code's competitive bidding requirements. 46. On that basis alone, the Court should preclude Plaintiffs from pursuing their requested discovery. See Pa.R.C.P. 4003.1(a), (b); Pa.R.C.P. 4011(c). II. Good Cause Exists to Preclude the Disclosure of Houck's Highly Sensitive, Confidential Documents. 47. Houck incorporates the preceding paragraphs as if set forth fully herein. 48. Furthermore, Pennsylvania Rule of Civil Procedure 4012 provides that, upon motion by an entity from whom discovery is sought, and for "good cause" shown, the Court may enter an order protecting that entity "from unreasonable annoyance, embarrassment, oppression, burden or expense," including, in relevant part: (1) that the discovery shall be prohibited; (2) that the scope of discovery shall be limited; and (3) that a trade secret or other confidential commercial information shall not be disclosed or be disclosed only in a designated way. See Pa.R.C.P. 4012(a)(1), (5), & (9). 49. For purposes of Rule 4012(a), good cause will exist where evidence demonstrates "that harm will result from disclosure." E.g., Ornsteen v. Bass, 18 Phila. 328, 331 (1988). 50. Under Pennsylvania law, a "trade secret" may include "any formula, pattern, device or compilation of information which is used in one's business, and which gives [the entity] an opportunity to obtain an advantage over competitors who do not know or use it." Crum v. Bridgestone/Firestone N.A. Tire, LLC, 907 A.2d. 578, 585 (Pa. Super. 2006) (adopting the language contained in Section 757 of the Restatement (2d) of Torts). 51. Consonant with the "good cause" showing required under Rule 4012(a), once a party resisting discovery demonstrates that the item sought is a protected trade secret, in order to 8 compel the discovery, the party seeking to compel discovery must demonstrate: (1) that the production of the trade secret is relevant and necessary; and (2) that the necessity outweighs the harm of disclosure. Crum, 907 A.2d at 587. 52. Here, Houck seeks protection for specific types of confidential information contained in the requested discovery: (1) labor, equipment, material and other pricing between Houck, Tremco, and WTI; (2) internal cost estimates, take-offs, budgets, profit margins, and overhead projections; and (3) project or construction cost information. 53. This proprietary information merits trade-secret protection under Rule 4012(a)(9), or, due to its sensitive nature, warrants non-disclosure under Rule 4012(a)(1). 54. Federal courts regularly afford similarly sensitive pricing structures trade-secret protection. See Hi-Tech Rockfall Construction, Inc. v. County of Maui, 2009 U.S. Dist. LEXIS 75632, at *6 (D. Haw. 2009) (observing that "bidding information, such as pricing, budgets, costs, equipment and the like are trade secrets or other confidential commercial information" under the analogous Federal Rule of Civil Procedure 26(c)); Accurate Controls, Inc. v. Cerro Gordo County Bd. of Supervisors, 2009 U.S. Dist. LEXIS 14132, at * 11-12 (N.D. Iowa 2009) (finding that a party did not need to produce an "estimating form" to approximate construction costs and an "internal bid worksheet" because such documents constituted "proprietary, confidential commercial documents" for purposes of Rule 26(c), the disclosure of which would not lead to the discovery of admissible evidence and would cause the disclosing party unnecessary harm); Zyprexa Litig., 474 F. Supp. 2d 385, 415-16 (E.D.N.Y. 2007) (observing that where Federal Rule of Civil Procedure 26(c) protects a "trade secret" or confidential "commercial information," the documents falling within Rule 26(c) protection often contain pricing information, profits, costs, overhead, manufacturing specifications, customers lists, and 9 price structure) (citing Vesta Corset Co. v. Carmen Founds., 1999 U.S. Dist. LEXIS 124, at *5 (S.D.N.Y. 1999)). 55. In light of this case law, Houck's pricing and cost estimates likewise constitute confidential, proprietary information that warrant protection, whether as trade secrets or otherwise. See Pa.R.C.P. 4012(a)(1), (a)(9); see also Crum, 907 A.2d at 586 (exercising "the discretion to use the analysis of our sister federal courts to resolve our state issues" in relying on federal case law interpreting analogous Federal Rule 26(c)). 56. Moreover, although the documents they seek contain trade secrets and/or highly sensitive, proprietary information, Plaintiffs cannot demonstrate that: (1) the production of these confidential documents is relevant and necessary; or (2) any alleged need for such documents outweighs the harm of disclosure to Houck. See Crum, 907 A.2d at 587. 57. First, as set forth above, the requested documents are irrelevant to the key issues in this litigation - namely, whether the CV School District violated the School Code. 58. Second, Houck would suffer significant competitive harm from the disclosure of its trade secrets and/or proprietary pricing structures. 59. Plaintiffs are employed by Carlisle, a roofing company that through its contractor network competes with Houck (as well as Tremco and WTI). 60. Disclosing these proprietary pricing structures would undermine Houck's competitive position in its niche market, particularly as against competing contractors that bid exclusively or primarily Carlisle Roofing Systems. 61. On these grounds, good cause exists to prohibit the discovery of the requested information. See Pa.R.C.P. 4012(a)(1), (a)(9). 10 III. Good Cause Exists to Limit the Disclosure of Houck's Confidential Documents 62. Houck incorporates the preceding paragraphs as if set forth fully herein. 63. Even if this Court declines to prohibit the disclosure of Houck's proprietary documents, at very least, good cause exists to limit the disclosure of this information. See Pa.R.C.P. 4012(a)(5). 64. In compliance with Cumberland County Local Rule 208.2(d), Houck attempted to resolve the instant discovery dispute by way telephone call on November 5, 2010, wherein Houck offered to produce a reduced scope of documents. 65. Plaintiffs' counsel made clear that it required all correspondence, for example, which Houck was not willing to provide. 66. Should the Court decline to prohibit the discovery of these documents, Houck respectfully requests that, for the reasons stated above, the Court either issue an order allowing Houck to redact confidential information from disclosed documents, or issue an order requiring that the documents be produced subject to an "Attorneys' Eyes Only" provision. 67. Prior matters before the Court in this case have been decided by Judge Edgar B. Bayley (preliminary objections) and Judge Wesley Oler, Jr. (motion for commission to depose and out-of-state witness on subpoena). 11 WHEREFORE, Houck Services, Inc. respectfully requests that this Honorable Court enter an order in the form attached granting its Cross-Motion for Protective Order and such other relief as the Court deems just, proper and equitable. Respectfully submitted, WOOLF RD LAW, P.C. By: 00),9 C_ uv_lr? Timothy J. Woolford (? a Attorney I.D. No. 789 Ciara C. Young Attorney I.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 12 y $ " /11"' l? MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, N0.09-4183 V. : CIVIL ACTION-EQUITY CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVEM PURSUANT TO RULE 4009.22 TO: Houck Services, Inc. 7464 Linglestown Road Harrisburg, Pennsylvania 17112 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: 1. Any and all contracts between WTI and Houck Services, Inc. r 2. Any and all written correspondence between Houck Services, Inc. and (a) WTI and (b) Tremco and (c) Cumberland Valley School District and (d) CSIU and (e) PEJPC including, but not limited to, letters and ernails. 3. All documents with respect to the bidding process for the roof restoration project(s) at: (A) Monroe Elementary School (B) Silver Spring Elementary School (C) Eagle View Elementary School 4. Copies of all bids or proposals for the projects listed in Question 3 (a)-(c). 5. All documents relating, directly or indirectly, to the work performed by Houck Services, Inc. on the projects listed in Question 3 (a)-(c). 6. Any and all documents which reflect, refer or relate to payments you received for the projects listed in Question 3 (a)-(c). 7. Any and all documents which reflect, refer or relate to invoices you issued for any work performed on the projects listed in Question 3 (a)-(c). 8. Any and all documents which reflect, refer or relate to any information you provided to WTI for any of the projects listed in Question 3 (a)-(c). 9. Any and all agreements you have with Tremco. 10. Any and all roof management plans, specifications, details or similar documents relating to any of the projects listed in Question 3 (a)-(c). You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 BY THE COURT, DAT : 3 !O BY: Prothonotary SEAL OF T14E COURT I 71 ?t MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY HOUCK SERVICES, INC.'S RESPONSE TO SUBPOENA TO PRODUCE DOCUMENTS OR THINGS Houck Services, Inc., by and through its undersigned counsel, Woolford Law, P.C., hereby submits this response to the Subpoena served upon it by Plaintiffs in the above-captioned matter. Any and all contracts between WTI and Houck Services, Inc. RESPONSE: Objection. This request is overly broad, unduly burdensome and seeks irrelevant documents. The Complaint alleges that the School District violated the School Code of 1949, 24 P.S. §7-751. The documents requested are irrelevant to whether the School was required to, or did in fact, comply with the School Code and the full panoply of competitive bidding requirements. In determining whether the School District violated the School Code, the only relevant inquiries are: the nature of the work; the cost or value of the work; and the competitive bidding procedures employed by the School. Houck Services was simply a subcontractor to WTI. The contracts or agreements between WTI and Houck Services are irrelevant - only the School's contract with TWI and/or Tremco has any bearing on whether the School District violated the School Code. The nature and cost of the work can be determined by looking at the School's contract with WTI and/or Tremco. Contracts between WTI and Houck Services have no bearing on the bidding procedures employed by the School District. 2. Any and all written correspondence between Houck Services, Inc. and (a) WTI and (b) Tremco and (c) Cumberland Valley School District and (d) CSIU and (e) PEJPC including, but not limited to, letters and entails. RESPONSE: There is no written correspondence between Houck Services and Cumberland Valley School District, CSIU and/or PEJPC. The request for all written correspondence between Houck Services and WTI and/or Tremco is overly broad and seeks irrelevant documents. Houck Services was simply a subcontractor to WTI. Project correspondence between a prime contractor and a subcontractor is irrelevant to whether the School District was required to, and did in fact, comply with the School Code and the full panoply of competitive bidding laws. See also response to no. 1. 3. All documents with respect to the bidding process for the roof restoration project(s) at: (A) Monroe Elementary School (B) Silver Spring Elementary School (C) Eagle View Elementary School RESPONSE: Houck Services did not submit a bid to the School District for the above- referenced Projects. Houck Services was simply a subcontractor to WTI. At issue in the Complaint is the bidding procedures the School District employed in securing its contract with WTI/Tremco. These documents would be in the possession of the School District. 4. Copies of all bids or proposals for the projects listed in Question 3(a)-(c). RESPONSE: See response to nos. 1 and 3. Additionally, Houck's bids to WTI are irrelevant to whether the School District violated the School Code. The only bids that are relevant to the nature of the work, the cost of the work and the bidding procedures employed are the bids that were submitted directly to the School District. 5. All documents relating, directly or indirectly, to the work performed by Houck Services, Inc. on the projects listed in Question 3(a)-(c). RESPONSE: See response to nos. 1 and 3. 6. Any and all documents which reflect, refer or relate to payments you received for the projects listed in Question 3 (a)-(c). RESPONSE: See response to no. 1. 7. Any and all documents which reflect, refer or relate to invoices you issued for any work performed on the projects listed in Question 3 (a)-(c). RESPONSE: See response to no. 1. 8. Any and all documents which reflect, refer or relate to any information you provided to WTI for any of the projects listed in Question 3 (a)-(c). RESPONSE: See response to nos. 1 and 3. 9. Any and all agreements you have with Tremco. .RESPONSE: Objection. This request is overly broad, unduly burdensome and seeks irrelevant documents. Houck has no agreements with Tremco relating to the projects identified in paragraph 3 of the Subpoena. Furthermore, any and all contracts between Tremco and Houck Services are irrelevant to the Complaint at issue. The sole issue is whether the School District complied with the School Code. The contracts or agreements between Tremco and Houck Services relating to other projects are irrelevant - only the School District's contracts for the projects identified in the Subpoena have any bearing on whether the School District violated the School Code. 10. Any and all roof management plans, specifications, details or similar documents relating to any of the projects listed in Question 3(a)-(c). RESPONSE: Objection. The documents requested in paragraph no. 10 are irrelevant to the issues set forth in the Complaint and whether the School District violated the School Code. See response to nos. 1 and 3. RespecMly submitted, WOOLFORD LAW, P.C. By: Timothy J. Woolf4r4 J Attorney I.D. No. 79941 Ciara C. Young Attorney I.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Response to Subpoena to Produce Documents or Things upon the following counsel of record, by facsimile and depositing the same in the United States mail, postage prepaid, addressed as follows: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 Ciara C. Young Dated: September 7, 2010 ? o CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Cross-Motion for Protective Order, by facsimile and depositing the same in the United States mail, postage prepaid, addressed as follows: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 Frederick W. Bode, III, Esquire Dickie McCamey Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Anthony F. Adrisano, Esquire Marshall, Dennehy, Warner, Coleman & Goggins 42 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael I. Levin, Esquire Gillman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntington Valley, PA 19006 r??j a 0-, Ciara C. Young Dated: November 23, 2010 13 WOOLFORD LAW, P.C. By: Timothy J. Woolford, Esquire Attorney I.D. 78941 Ciara C. Young, Esquire Attorney I.D. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant FILE01-OFFICE OF THE PROTHONOTARY 2010 HOV 24 AM 10:35 CU PEENNSYLVAN A TY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY HOUCK SERVICES, INC.'S ANSWER TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION AND NOW, comes Houck Services, Inc. ("Houck"), by and through its undersigned counsel, Woolford Law, PC., and hereby submits this response to Plaintiffs' Motion to Compel Production. Houck has also contemporaneously herewith filed a Cross-Motion for Protective Order which is incorporated herein and attached hereto as Exhibit "A." 1. Denied. The allegations contained in paragraph no. 1 refer to a writing which speaks for itself and is therefore deemed denied. 2. Admitted in part, denied in part. It is admitted that Houck was a subcontractor to Weatherproofing Technologies, Inc. ("WTI"), improperly identified as Waterproofing 1 Technologies, Inc. Houck is without sufficient information to form a belief as to whether any of its bids for subcontracting services affected WTI's proposal. 3. Denied. The allegations contained in paragraph no. 3 refer to a writing which speaks for itself and are therefore deemed denied. By way of further answer, it is specifically denied that the documents requested in the subpoena "materially and directly" relate to the allegations in the Complaint. Houck incorporates the arguments set forth in its attached Cross- Motion for Protective Order. 4. Admitted in part, denied in part. The allegations contained in paragraph no. 4 refer to a writing which speaks for itself and are therefore deemed denied. It is admitted that Houck provided a response to Plaintiffs' Subpoena on or about September 8, 2010. 5. Denied. The allegations contained in paragraph no. 5 refer to a writing which speaks for itself and are therefore deemed denied. By way of further answer, Houck did not state that the nature of Houck's work, or the cost or value of the work Houck provided were relevant. In fact, Houck made the opposite point in its response: that only the contractual terms between the School District and the contractor, WTI, are relevant. Houck's contracts and correspondence with WTI have no bearing on whether the School District complied with the competitive bidding laws. Therefore, this information is not discoverable. By way of further answer, the cost and nature of the work can be obtained from WTI or the School District. Houck incorporates the arguments set forth in its attached Cross-Motion for Protective Order. 6. Denied. The allegations contained in paragraph no. 6 constitute conclusions of law to which no responses are necessary and are therefore deemed denied. By way of further answer, the allegations contained in paragraph no. 6 refer to writings which speak for themselves and are therefore deemed denied. 2 7. Denied. The allegations contained in paragraph no. 7 constitute conclusions of law to which no responses are necessary and are therefore deemed denied. By way of further answer, it is specifically denied that all of the documents requested in Plaintiffs' Subpoena are directly related to the allegations in the Complaint. The Complaint alleges that the School District violated the School Code of 1949, 24 P.S. §7-751. The sole issue is whether the School District complied with the School Code. The documents requested are irrelevant to whether the School was required to, or did in fact, comply with the School Code and competitive bidding requirements. In determining whether the School District violated the School Code, the only bids that are relevant to the nature of the work, the cost of the work and the bidding procedures employed are the bids that were submitted directly to the School District. Houck was simply a subcontractor to WTI. The contracts or agreements between WTI and Houck Services are irrelevant - only the School's contracts with WTI and/or Tremco have any bearing on whether the School District violated the School Code. The nature and cost of the work can be determined by looking at the School's contract with WTI and/or Tremco. Contracts between WTI and Houck are only important to competitors of Houck, WTI and Tremco, such as the Plaintiffs' employer and the contractors that install their roofing systems, who seek insight into pricing and cost structures to gain an unfair competitive advantage in the marketplace. By way of further answer, Houck incorporates the arguments set forth in its attached Cross-Motion for Protective Order. 8. Denied. The allegations contained in paragraph no. 8 refer to a writing which speaks for itself and are therefore deemed denied. 9. Admitted in part, denied in part. It is denied that Houck "refused to comply" with Plaintiffs' Subpoena. Houck complied with its obligations under the Subpoena by providing its 3 response. The response set forth, in detail, appropriate objections to the categories of documents requested therein. It is admitted that Houck did not make any documents available for inspection. 10. Denied. As a non-party, Houck is without sufficient information to form a belief as to the truth or falsity of the allegations contained in paragraph no. 10. WHEREFORE, Houck Services, Inc. respectfully requests this Honorable Court enter an order in the form attached denying Plaintiffs' Motion to Compel and granting such other relief as the Court deems just, proper and equitable. Respectfully submitted, WOOLFORD LAW, P.C. By: - Timothy J. Woolford Attorney I.D. No. 78941 Ciara C. Young Attorney I.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 4 ????;? ?? MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY AND NOW, this day of ORDER 2010, upon consideration of Houck Services, Inc.'s Cross-Motion for Protective Order, it is hereby ORDERED that Plaintiffs Michael J. Ducharme and Nicholas J. Shears' Motion to Compel Production is DENIED and Houck's Motion for Protective Order is GRANTED, and Houck is protected from disclosure of the documents requested in Plaintiffs' Subpoena dated August 3, 2010. BY THE COURT: J. Wesley Oler, Jr. WOOLFORD LAW, P.C. By: Timothy J. Woolford, Esquire Attorney LD. 78941 Ciara C. Young, Esquire Attorney LD. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant. HOUCK SERVICES, INC.'S CROSS-MOTION FOR PROTECTIVE ORDER AND NOW, comes Houck Services, Inc. ("Houck"), by and through its undersigned counsel, Woolford Law, P.C., who hereby submits this Cross-Motion for Protective Order in response to Plaintiffs' Motion to Compel Production. In summary, the documents requested in the Subpoena are simply not necessary for Plaintiffs to establish their claims against the Cumberland Valley School District. Plaintiffs can prove their claims without having to burden third parties such as Houck. Second, the documents requested contain highly sensitive proprietary information - all the more reason that this Court should not require their production. FACTUAL BACKGROUND In this case, Michael J. Ducharme and Nicholas J. Shears ("Plaintiffs") contend that, by entering into a bidding process through the Association of Educational Purchasing Agencies ("AEPA") for roof restoration work on three schools, the Cumberland Valley School District (the "CV School District") violated statutory requirements set forth under the School Code of 1949, 24 P.S. § 7-751 (the "School Code") pertaining to competitive bidding of construction-related work. (See Plaintiffs' Action for Declaratory Relief, at ¶¶ 11, 16-17.) 2. The School Code requires that construction, reconstruction, repair or maintenance work upon schools exceeding $10,000 must be competitively bid and the contract awarded to the lowest responsible bidder. 24 P. S. § 7-751. 3. Through the AEPA bidding process', the CV School District awarded the roof- restoration contracts to a company called Weatherproofing Technologies, Inc. ("WTI"), which is not a party to this action. 4. WTI entered into a subcontract with a specialty contractor, non-party Houck Services, Inc. ("Houck"). 5. Plaintiffs are employees of Carlisle SynTec Incorporated ("Carlisle"), which manufactures, supplies and installs roofing material. (See id. at IT 3, 6). 6. Carlisle is a direct competitor of WTI and Tremco Incorporated ("Tremco"), an affiliate of WTI that manufactures and supplies roofing materials. 1 The AEPA bidding process is described as follows: The Board meets each spring for the purpose of, among others, selecting product categories to seek bid responses from national vendors. Tasks groups, or sub- committees, are assigned to develop product specifications, market and educate potential vendors, and refine terms and conditions specific to product categories. In the fall, each member posts the bid announcement in their state. The sub- committee reviews the submissions and makes a recommendation to the Board for approval at the winter meeting. It is then up to each member state to enter into a contractual agreement with each recommended vendor. http://aepacoop.orsJ. The AEPA website states "AEPA is unique in that each purchasing contract is awarded separately in each member state, in accordance with local bidding laws. The benefit is state-specific bid protection and lower cost of ownership for school districts." 2 7. Plaintiffs allege that CV School District violated the competitive bidding requirements of the School Code by, inter alia, failing to publicly advertise a series of roofing projects at the School District and failing to enter into contracts with the lowest responsible bidders. 8. On all construction or renovation projects in which the value of the work is $10,000 or more, a school district is required to give notice to the public of its intent to award a contract, the purpose of which is to give all prospective bidders a chance to submit a bid. 24 P.S. §7-751. 9. The contract must then be awarded to the bidder whose bid is "responsive" (complies with the requirements) and is the lowest price. 10. In determining whether the School District violated the School Code, the only relevant inquiries are: 1) whether the work constitutes "construction, reconstruction, repair or maintenance;" and (2) whether the value of the work is $10,000 or more. 11. On August 3, 2010, Plaintiffs served a subpoena upon Houck, which merely served as a subcontractor to WTI. At no time did Houck (or Tremco) contract with the CV School District. 12. In their Subpoena, Plaintiffs sought to discover documents by or between Houck and WTI and/or Tremco. 13. The Subpoena demanded production of the following categories of documents: a) contracts between WTI and Houck; b) correspondence between Houck and WTI and/or Tremco; c) documents regarding the bidding process; d) Houck's bids or proposals to WTI and/or Tremco; 3 e) documents relating to the work performed by Houck at the schools; f) documents reflecting payment received by Houck from WTI/Tremco for work at the schools; g) Houck's invoices to WTI/Tremco; documents reflecting information Houck provided to WTI for any of the projects listed in the Subpoena; h) all agreements Houck has with Tremco; and i) roof management plans, specifications, details or similar documents. See Exhibit "A." 14. On September 7, 2010, Houck served its response to the Subpoena, objecting to production of the requested documents as irrelevant to the issue of whether the School District complied with the requirements of competitive bidding. See Exhibit "B." 15. On September 29, 2010, Plaintiffs filed a Motion to Compel Production. 16. On November 24, 2010, Houck filed an answer to the Motion to Compel. 17. The Motion to Compel should be denied and a protective order entered because the documents requested are irrelevant to whether the School District was required to, or did in fact, comply with the School Code and the full panoply of competitive bidding requirements. 18. Houck was simply a subcontractor to WTI. 19. The contracts or agreements between WTI and Houck are irrelevant - only the School District's contracts with WTI and/or Tremco have any bearing on whether the School District violated the School Code. 20. The nature and cost of the work can be determined by examining the School District's contracts with WTI and/or Tremco. 4 21. In other words, the contracts between WTI and the School District indicate whether the work constituted "construction, reconstruction, repair or maintenance" and whether the value of the work is $10,000 or more. 22. There is simply no need to examine subcontracts between WTI and Houck. 23. The request for all written correspondence between Houck and WTI and/or Tremco is overly broad and seeks irrelevant documents because project correspondence between a prime contractor and a subcontractor is completely irrelevant to whether the School District complied with the School Code and competitive bidding laws. 24. At issue in the Complaint is the bidding procedures the School District employed in securing its contract with WTI/Tremco, and these documents would be in the possession of the School District. 25. The request for Houck's documents relating to the bidding process is irrelevant because Houck did not submit a bid to the School District for the projects referenced in the Subpoena; rather, Houck was simply a subcontractor to WTI. 26. Houck's bids or proposals to WTI/Tremco are irrelevant to whether the School District violated the School Code. 27. The only bids that are relevant to the nature of the work, the cost of the work and the bidding procedures employed are the bids that were submitted directly to the School District. 28. Documents relating to the work Houck performed on the projects identified in the Subpoena are also irrelevant because the nature of the work can be determined by examining the contracts between WTI/Tremco and the School District. 29. Houck's invoices to WTI/Tremco and its records of payment from WTUTremco are also irrelevant. 5 30. The value of the work can be be determined by looking solely to WTUTremco's invoices to the School District and/or the School District's payment of those invoices. 31. The Subpoena requested all contracts between Houck and Tremco, even projects unrelated to the CV School District. 32. Houck has no agreements with Tremco relating to the projects identified in the Subpoena. 33. The contracts or agreements between Tremco and Houck relating to other projects are totally irrelevant - only the School District's contracts for the projects identified in the Complaint have any bearing on whether the School District violated the School Code on these projects. 34. Even if the documents are somewhat relevant, which is denied, the information can be obtained from the School District's documents without the need to burden a non-part such as Houck. 35. The requested documents are not only irrelevant to the stated basis for this action, they contain highly sensitive, proprietary commercial information. 36. The disclosure of this confidential, proprietary information would have no bearing on this litigation and would leave Houck (as well as Tremco and WTI) vulnerable to a substantial competitive disadvantage. 37. The request for documents between Houck and WTI/Tremco is simply a ruse. The documents are not necessary for Plaintiffs to establish their claim; Plaintiffs are simply attempting to obtain confidential and highly sensitive business information about a competitor of their employer, Carlisle SynTec. 6 38. As a result, the Court should deny the Plaintiffs' Motion to Compel and enter a protective order preventing the disclosure of these immaterial and highly sensitive documents. LAW AND ARGUMENT 1. The Requested Documents are Not Relevant to this Litigation, Nor Reasonably Calculated to Lead to the Discovery of Admissible Evidence. 39. Houck incorporates the preceding paragraphs as if set forth fully herein. 40. Pennsylvania Rule of Civil Procedure 4003.1 limits discovery to requests that are "relevant to the subject matter involved in the pending action," Pa.R.C.P. 4003.1(a), and "reasonably calculated to lead to the discovery of admissible evidence," Pa.R.C.P. 4003.1(b); see Pa.R.C.P. 4011(c)(precluding any discovery beyond the scope of Rule 4003.1). 41. As set forth above, at issue in this litigation is whether the CV School District violated the School Code by relying on the AEPA bidding process to complete its roof- restoration projects rather than by publicly advertising the projects and then awarding contracts to the lowest responsible bidder, as required by Section 7-751 of the School Code. 42. Relevant inquiries for discovery, therefore, would include: (1) the nature of the contracts entered into by the CV School District; (2) the ultimate cost of the work pursuant to those contracts; and (3) the actual bidding procedures employed by the CV School District. 43. The only documents relevant to this litigation are the documents by or between the contractor, WTI and/or Tremco, and the School District. 44. The contracts and correspondence between Houck and WTI and/or Tremco - which concern subcontractor pricing and costs - are irrelevant to the subject matter of this action, and requests for such documents are thus not reasonably calculated to lead to the discovery of admissible evidence. 7 45. In other words, the Plaintiffs do not need subcontracts, invoices and correspondence between Houck and WTI/Tremco to prove that the CV School District violated the School Code's competitive bidding requirements. 46. On that basis alone, the Court should preclude Plaintiffs from pursuing their requested discovery. See Pa.R.C.P. 4003.1(a), (b); Pa.R.C.P. 4011(c). II. Good Cause Exists to Preclude the Disclosure of Houck's Highly Sensitive, Confidential Documents. 47. Houck incorporates the preceding paragraphs as if set forth fully herein. 48. Furthermore, Pennsylvania Rule of Civil Procedure 4012 provides that, upon motion by an entity from whom discovery is sought, and for "good cause" shown, the Court may enter an order protecting that entity "from unreasonable annoyance, embarrassment, oppression, burden or expense," including, in relevant part: (1) that the discovery shall be prohibited; (2) that the scope of discovery shall be limited; and (3) that a trade secret or other confidential commercial information shall not be disclosed or be disclosed only in a designated way. See Pa.R.C.P. 4012(a)(1), (5), & (9). 49. For purposes of Rule 4012(a), good cause will exist where evidence demonstrates "that harm will result from disclosure." E.g., Ornsteen v. Bass, 18 Phila. 328, 331 (1988). 50. Under Pennsylvania law, a "trade secret" may include "any formula, pattern, device or compilation of information which is used in one's business, and which gives [the entity] an opportunity to obtain an advantage over competitors who do not know or use it." Crum v. Bridgestone/Firestone N.A. Tire, LLC, 907 A.2d. 578, 585 (Pa. Super. 2006) (adopting the language contained in Section 757 of the Restatement (2d) of Torts). 51. Consonant with the "good cause" showing required under Rule 4012(a), once a party resisting discovery demonstrates that the item sought is a protected trade secret, in order to 8 compel the discovery, the parry seeking to compel discovery must demonstrate: (1) that the production of the trade secret is relevant and necessary; and (2) that the necessity outweighs the harm of disclosure. Crum, 907 A.2d at 587. 52. Here, Houck seeks protection for specific types of confidential information contained in the requested discovery: (1) labor, equipment, material and other pricing between Houck, Tremco, and WTI; (2) internal cost estimates, take-offs, budgets, profit margins, and overhead projections; and (3) project or construction cost information. 53. This proprietary information merits trade-secret protection under Rule 4012(a)(9), or, due to its sensitive nature, warrants non-disclosure under Rule 4012(a)(1). 54. Federal courts regularly afford similarly sensitive pricing structures trade-secret protection. See Hi-Tech Rockfall Construction, Inc. v. County of Maui, 2009 U.S. Dist. LEXIS 75632, at *6 (D. Haw. 2009) (observing that "bidding information, such as pricing, budgets, costs, equipment and the like are trade secrets or other confidential commercial information" under the analogous Federal Rule of Civil Procedure 26(c)); Accurate Controls, Inc. v. Cerro Gordo CountyBd. of Supervisors, 2009 U.S. Dist. LEXIS 14132, at * 11-12 (N.D. Iowa 2009) (finding that a party did not need to produce an "estimating form" to approximate construction costs and an "internal bid worksheet" because such documents constituted "proprietary, confidential commercial documents" for purposes of Rule 26(c), the disclosure of which would not lead to the discovery of admissible evidence and would cause the disclosing parry unnecessary harm); Zyprexa Litig., 474 F. Supp. 2d 385, 415-16 (E.D.N.Y. 2007) (observing that where Federal Rule of Civil Procedure 26(c) protects a "trade secret" or confidential "commercial information," the documents falling within Rule 26(c) protection often contain pricing information, profits, costs, overhead, manufacturing specifications, customers lists, and 9 price structure) (citing Vesta Corset Co. v. Carmen Founds., 1999 U.S. Dist. LEXIS 124, at *5 (S.D.N.Y. 1999)). 55. In light of this case law, Houck's pricing and cost estimates likewise constitute confidential, proprietary information that warrant protection, whether as trade secrets or otherwise. See Pa.R.C.P. 4012(a)(1), (a)(9); see also Crum, 907 A.2d at 586 (exercising "the discretion to use the analysis of our sister federal courts to resolve our state issues" in relying on federal case law interpreting analogous Federal Rule 26(c)). 56. Moreover, although the documents they seek contain trade secrets and/or highly sensitive, proprietary information, Plaintiffs cannot demonstrate that: (1) the production of these confidential documents is relevant and necessary; or (2) any alleged need for such documents outweighs the harm of disclosure to Houck. See Crum, 907 A.2d at 587. 57. First, as set forth above, the requested documents are irrelevant to the key issues in this litigation - namely, whether the CV School District violated the School Code. 58. Second, Houck would suffer significant competitive harm from the disclosure of its trade secrets and/or proprietary pricing structures. 59. Plaintiffs are employed by Carlisle, a roofing company that through its contractor network competes with Houck (as well as Tremco and WTI). 60. Disclosing these proprietary pricing structures would undermine Houck's competitive position in its niche market, particularly as against competing contractors that bid exclusively or primarily Carlisle Roofing Systems. 61. On these grounds, good cause exists to prohibit the discovery of the requested information. See Pa.R.C.P. 4012(a)(1), (a)(9). 10 III. Good Cause Exists to Limit the Disclosure of Houck's Confidential Documents 62. Houck incorporates the preceding paragraphs as if set forth fully herein. 63. Even if this Court declines to prohibit the disclosure of Houck's proprietary documents, at very least, good cause exists to limit the disclosure of this information. See Pa.R.C.P. 4012(a)(5). 64. In compliance with Cumberland County Local Rule 208.2(d), Houck attempted to resolve the instant discovery dispute by way telephone call on November 5, 2010, wherein Houck offered to produce a reduced scope of documents. 65. Plaintiffs' counsel made clear that it required all correspondence, for example, which Houck was not willing to provide. 66. Should the Court decline to prohibit the discovery of these documents, Houck respectfully requests that, for the reasons stated above, the Court either issue an order allowing Houck to redact confidential information from disclosed documents, or issue an order requiring that the documents be produced subject to an "Attorneys' Eyes Only" provision. 67. Prior matters before the Court in this case have been decided by Judge Edgar B. Bayley (preliminary objections) and Judge Wesley Oler, Jr. (motion for commission to depose and out-of-state witness on subpoena). 11 WHEREFORE, Houck Services, Inc. respectfully requests that this Honorable Court enter an order in the form attached granting its Cross-Motion for Protective Order and such other relief as the Court deems just, proper and equitable. Respectfully submitted, WOOLF RD LAW, P.C. By: Timothy J. Woolford Attorney I.D. No. 789 Ciara C. Young Attorney I.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 12 E?IBIT A MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-4183 CIVIL ACTION-EQUITY SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 440912 TO: Houck Services, Inc. 7464 Linglestown Road Harrisburg, Pennsylvania 17112 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: I . Any and all contracts between WTI and Houck Services, Inc. .11 2. Any and all written correspondence between Houck Services, Inc. and (a) WTI and (b) Tremco and (c) Cumberland Valley School District and (d) CSIIJ and (e) PEJPC including, but not limited to, fetters and emails. 3. All documents with respect to the bidding process for the roof restoration project(s) at: (A) Monroe Elementary School (B) Silver Spring Elementary School (C) Eagle View Elementary School 4. Copies of all bids or proposals for the projects listed in Question 3 (a)-(c). 5. All documents relating, directly or indirectly, to the work performed by Houck Services, Inc. on the projects listed in Question 3 (a)-(c). 6. Any and all documents which reflect, refer or relate to payments you received for the projects listed in Question 3 (a)-(c). 7. Any and all documents which reflect, refer or relate to invoices you issued for any work performed on the projects listed in Question 3 (a)-(e). 8. Any and all documents which reflect, refer or relate to any information you provided to WTI for any of the projects listed in Question 3 (a)-(c). 9. Any and all agreements you have with Tremco. 10. Any and all roof management plans, specifications, details or similar documents relating to any of the projects listed in Question 3 (a) -(c). You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the following address: Baric Scherer 19 West South Street Carlisle, PA 17013 c/o David A. Baric, Esquire You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 BY THE COURT, DATE: B 3 /o I3Y: ))-, Prothonotary SEAL OFTHE COURT E?IBIT B MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant. V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY HOUCK SERVICES, INC.'S RESPONSE TO SUBPOENA TO PRODUCE DOCUMENTS OR THINGS Houck Services, Inc., by and through its undersigned counsel, Woolford Law, P.C., hereby submits this response to the Subpoena served upon it by Plaintiffs in the above-captioned matter. 1. Any and all contracts between WTI and Houck Services, Inc. RESPONSE: Objection. This request is overly broad, unduly burdensome and seeks irrelevant documents. The Complaint alleges that the School District violated the School Code of 1949, 24 P.S. §7-751. The documents requested are irrelevant to whether the School was required to, or did in fact, comply with the School Code and the full panoply of competitive bidding requirements. In determining whether the School District violated the School Code, the only relevant inquiries are: the nature of the work; the cost or value of the work; and the competitive bidding procedures employed by the School. Houck Services was simply a subcontractor to WTI. The contracts or agreements between WTI and Houck Services are irrelevant - only the School's contract with TWI and/or Tremco has any bearing on whether the School District violated the School Code. The nature and cost of the work can be determined by looking at the School's contract with WTI and/or Tremco. Contracts between WTI and Houck Services have no bearing on the bidding procedures employed by the School District. 2. Any and all written correspondence between Houck Services, Inc. and (a) WTI and (b) Tremco and (c) Cumberland Valley School District and (d) CSIU and (e) PEJPC including, but not limited to, letters and emails. RESPONSE: There is no written correspondence between Houck Services and Cumberland Valley School District, CSIU and/or PEJPC. The request for all written correspondence between Houck Services and WTI and/or Tremeo is overly broad and seeks irrelevant documents. Houck Services was simply a subcontractor to WTI. Project correspondence between a prime contractor and a subcontractor is irrelevant to whether the School District was required to, and did in fact, comply with the School Code and the full panoply of competitive bidding laws. See also response to no. 1. 3. All documents with respect to the bidding process for the roof restoration project(s) at: (A) Monroe Elementary School (B) Silver Spring Elementary School (C) Eagle View Elementary School RESPONSE: Houck Services did not submit a bid to the School District for the above- referenced Projects. Houck Services was simply a subcontractor to WTI. At issue in the Complaint is the bidding procedures the School District employed in securing its contract with WTIITremco. These documents would be in the possession of the School District. 4. Copies of all bids or proposals for the projects listed in Question 3(a)-(c). RESPONSE: See response to nos. 1 and 3. Additionally, Houck's bids to WTI are irrelevant to whether the School District violated the School Code. The only bids that are relevant to the nature of the work, the cost of the work and the bidding procedures employed are the bids that were submitted directly to the School District. 5. All documents relating, directly or indirectly, to the work performed by Houck Services, Inc. on the projects listed in Question 3(a)-(c). RESPONSE: See response to nos. I and 3. 6. Any and all documents which reflect, refer or relate to payments you received for the projects listed in Question 3 (a)-(c). RESPONSE: See response to no. 1. 7. Any and all documents which reflect, refer or relate to invoices you issued for any work performed on the projects listed in Question 3 (a)-(c). RESPONSE: See response to no. 1. 8. Any and all documents which reflect, refer or relate to any information you provided to WTI for any of the projects listed in Question 3 (a)-(c). RESPONSE: See response to nos. 1 and 3. 2 9. Any and all agreements you have with Tremco. RESPONSE: Objection. This request is overly broad, unduly burdensome and seeks irrelevant documents. Houck has no agreements with Tremco relating to the projects identified in paragraph 3 of the Subpoena. Furthermore, any and all contracts between Tremco and Houck Services are irrelevant to the Complaint at issue. The sole issue is whether the School District complied with the School Code. The contracts or agreements between Tremco and Houck Services relating to other projects are irrelevant - only the School District's contracts for the projects identified in the Subpoena have any bearing on whether the School District violated the School Code. 10. Any and all roof management plans, specifications, details or similar documents relating to any of the projects listed in Question 3(a)-(c). RESPONSE: Objection. The documents requested in paragraph no. 10 are irrelevant to the issues set forth in the Complaint and whether the School District violated the School Code. See response to nos. 1 and 3. Respectfully submitted, WOOLFORD LAW, P.C. By: Timothy J. Woolf f r4 J Attorney I.D. No. 11941 Ciara C. Young Attorney T.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Response to Subpoena to Produce Documents or Things upon the following counsel of record, by facsimile and depositing the same in the United States mail, postage prepaid, addressed as follows: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 Ciara C. Young Dated: September 7, 2010 CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Cross-Motion for Protective Order, by facsimile and depositing the same in the United States mail, postage prepaid, addressed as follows: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 Frederick W. Bode, III, Esquire Dickie McCamey Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Anthony F. Adrisano, Esquire Marshall, Dennehy, Warner, Coleman & Goggins 42 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael I. Levin, Esquire Gillman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntington Valley, PA 19006 0-- _r?iha Ciaza C. Young Dated: November 23, 2010 13 CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Answer to Plaintiffs' Motion to Compel Production, by depositing the same in the United States mail, postage prepaid, addressed as follows: David A. Baric, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 C, Ciara C. Young Dated: November 2010 5 ..1. _. MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant : C- 4_5 ' .. ? --s Crj r r ,, - ; r n and - o o PENNSYLVANIA EDUCATION : - JOINT PURCHASING COUNCIL, : ' ' "•' ` Additional Defendant NO. 09-4183 CIVIL TERM ~ IN RE: PLAINTIFFS' MOTION TO COMPEL PRODUCTION and HOUCK SERVICES, INC.'S CROSS-MOTION FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 29`h day of December, 2010, upon consideration of Plaintiffs' Motion To Compel Production and Houck Services Inc.'s Answer to Plaintiffs' Motion To Compel Production, and the Cross-Motion for Protective Order filed by Houck Services, Inc., a hearing is scheduled for Friday, February 11, 2011, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Frederick W. Bode, III, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222-5402 and David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff 'Anthony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District Michael I. Levin, Esq. Gilman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant Timothy J. Woolford, Esq. Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Houck Services, Inc. ?te? ?a 0P i [?pljo C II Do :rc MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs v THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . NO. 09-4183 CIVIL TERM IN RE: MOTION TO COMPEL/CROSS MOTION FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 11th day of February, 2011, upon consideration of Plaintiff's Motion To Compel Production and of Houck Service, Inc., Cross Motion for Protective Order, and following a hearing, the record is declared closed, and the matter is taken under advisement. Christopher J. Haselhoff, Esqui Douglas M. Grimsley, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 For Plaintiffs / -iara C. Young, Esquire Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 For Defendant mae 0-o?"E s mc"Lt L4 ?vr1 l .,,Y MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant CIVIL ACTION and PENNSYLVANIA EDUCATION: JOINT PURCHASING COUNCIL, Additional Defendant NO. 09-4183 CIVIL TERM IN RE: PLAINTIFFS' MOTION TO COMPEL PRODUCTION and HOUCK SERVICES, INC.' S CROSS-MOTION FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 280' day of February, 2011, upon consideration of Plaintiffs' Motion To Compel Production and the Cross-Motion for Protective Order filed by Houck Services, Inc., and following a hearing held on February 11, 2011, the Motion to Compel is denied and the Cross-Motion for Protective Order is deemed moot. Frederick W. Bode, III, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222-5402 and David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff BY THE COURT, ?C, J. esley Ole , Jr., J. v' Anthony F. Andrisano, Jr., Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District ? Michael I. Levin, Esq. Gilman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant Timothy J. Woolford, Esq. Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Houck Services, Inc. rc 00p, e,5 lmo. - ala??, MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNSEL ("PEJPC"). Additional Defendant No. 09-4183 CIVIL ACTION - EQUITY c rnrn ` N r ..<> ra r..w * cl x n r_ n T? .7 C_ cD, --? tv 51 JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of the undersigned as counsel for Defendant, Capitol Commercial Corp. (erroneously pled as Capital Commercial Corp.) in the above-captioned case. MARSHALL DENNEHEY WA COLEMAN & GO IN By: n ony F. Andrisa r., Esquire Attorney for Defe t I.D. 201231 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 ..............................................................................I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for Defendant, Capitol Commercial Corp. (erroneously pled as Capital Commercial Corp.), in the above-captioned case. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Sharon P. O'Donnell, Esquire Att ey for Defendant I.D. 79457 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3503 MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 2"d day of March, 2011, I served a copy of the foregoing document via First Class Mail, postage prepaid as follows: Paul J. Cianci, Esquire Levin Legal Group, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Co-Defendant David Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff Frederick W. Bode, III, Esquire Dickie, McCamey & Chilcote Two PPG Place - Suite 400 Pittsburgh, Pennsylvania 15222-5402 Attorney for Plaintiffs 05/688953.v l 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3503 smodonnell a,mdwcg.com 1 t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs No. CV-09-4183 V. t C= :v THE CUMBERLAND VALLEY MW r SCHOOL DISTRICT, et al. Defendants -- r ? and ry :z =r. ?-- F3 3,- rv C) PENNSYLVANIA EDUCATION JOINT w PURCHASING COUNCIL Additional Defendant PRAECIPE TO CHANGE ADDRESS To the Prothonotary: It has come to our attention that the Prothonotary has an incorrect firm name and address for the undersigned counsel for the Defendants, Central Susquehanna Intermediate Unit and Pennsylvania Joint Purchasing Council. Accordingly, kindly change the firm name and address of the undersigned counsel as provided below. LEVIN LEGAL GROUP, P.C. f2Aj Paul J. Cianci (ID# 82717) Allison S. Petersen (ID# 86335) 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Phone: (215) 938-6378 Fax: (215) 938-6375 Counsel for Central Susquehanna Intermediate Unit and Pennsylvania Education Joint Purchasing Council Date: March 8, 2011 I CERTIFICATE OF SERVICE I certify that on the below date, I served a copy of the foregoing Praecipe to Change Address on the following counsel via first-class U.S. mail, postage prepaid: Frederick W. Bode, III, Esquire David A. Baric, Esquire Two PPG Place 19 West South Street Suite 400 Carlisle, PA 17013 Pittsburgh, PA 15222-5402 Anthony F. Andrisano, Esquire Timothy J. Woolford, Esquire Marshall, Dennehey, Warner, Coleman & Wheatland Place Goggin 941 Wheatland Avenue, Suite 402 4200 Crums Mill Road, Suite B Lancaster, PA 17603 Harrisburg, PA 17112 LEVIN LEGAL GROUP, P.C. Pi ?o Paul J. Cianci Counsel for Central Susquehanna Intermediate Unit and Pennsylvania Education Joint Purchasing Council Date: March 8, 2011 Z:] MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS, Plaintiffs V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNSEL ("PEJPC"). Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 09-4183 CIVIL ACTION -EQUITY C a zm zM C r rnr=- -o ?r -?D N rn Mo o , o.,t JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of the undersigned as counsel for Defendant, The Cumberland Valley School District, in the above-captioned case. MARSHALL DENNEHEY WARNE OLEMAN & GO GIN By: n Anthony F. An 'sano Jr., ire Attorney for De t I.D. 201231 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for Defendant, The Cumberland Valley School District, in the above-captioned case. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Sharon "'Donnell, Esquire rney for Defendant I.D. 79457 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3503 1 05/742192N I MICHAEL J. DUCHARME AND IN THE COURT OF COMMON PLEAS NICHOLAS J. SHEARS, OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 09-4183 V. CIVIL ACTION - EQUITY THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant CERTIFICATE OF SERVICE I, Anthony F. Andrisano, Jr., Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this 8`h day of July, 2011, I served a copy of the foregoing document via First Class Mail, postage prepaid as follows: Paul J. Cianci, Esquire Levin Legal Group, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Co-Defendant David Baric, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 Attorneys for Plaintiff Frederick W. Bode, III, Esquire Dickie, McCamey & Chilcote Two PPG Place - Suite 400 Pittsburgh, Pennsylvania 15222-5402 Attorney for Plaintiffs DENNEHEY, WARNER & GOGGIN By: 3 q-- SHARON O'DONNELL, ESQUIRE I.D 9457 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3503 smodonnellgmdwcg. com MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant and PENNSYLVANIA EDUCATION: JOINT PURCHASING COUNCIL, Additional Defendant NO. 09-4183 CIVIL TERM IN RE: HOUCK SERVICES, INC.' S MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER ORDER OF COURT f, r n c- c ¢ ('+3 AND NOW, this 10th day of August, 2011, upon consideration of Houck Services, Inc.'s Motion To Quash and/or for Protective Order, the deposition of a corporate representative of Houck Services, Inc., in the above-captioned matter is stayed and a discovery conference is scheduled in chambers of the undersigned judge for Tuesday, September 27, 2011, at 3:00 p.m. Frederick W. Bode, III, Esq. Two PPG Place Suite 400 Pittsburgh, PA 15222-5402 Attorney for Plaintiff BY THE COURT, i V J. esley Oler, Jr, J. Sharon M. O'Donnell, Esq. 4200 Crums Mill Road Suite B Harrisburg, PA 17112 Attorney for Defendant Cumberland Valley School District ? Michael I. Levin, Esq. Paul J. Cianci, Esq. Allison S. Petersen 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Additional Defendant Timothy J. Woolford, Esq. ? Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Houck Services, Inc. Dl 9 :rc L NO. 09-4183 CIVIL TERM rn ? rn a• ?.. = WJ 1 6 _. -ia > CD ? E._ •v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, CIVIL ACTION NO. 09-4183 CIVIL TERM Plaintiffs, ANSWER TO HOUCK SERVICES, INC.'S V. MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER AND RESPONSE THE CUMBERLAND VALLEY CVSD, Defendant, ORAL ARGUMENT REQUESTED Code: V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant Filed on behalf of Plaintiffs, MICHAEL I DUCHARME AND NICHOLAS J. SHEARS Counsel of record for this party: Frederick W. Bode, III, Esquire PA I.D.# 33391 Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA I.D. # 206150 DICKIE, McCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED t NO. 09-4183 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, CIVIL ACTION NO. 09-4183 CIVIL TERM V. THE CUMBERLAND VALLEY CVSD, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. ANSWER TO HOUCK SERVICES, INC.'S MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER AND NOW, come Plaintiffs, Michael J. Ducharme and Nicholas J. Shears, by and through their attorneys, Dickie, McCamey & Chilcote, P.C. and O'Brien, Baric & Scherer, and file the following Answer to Houck Services, Inc.'s Motion to Quash and/or for Protective Order and request oral argument before this Honorable Court pertaining to the same: Pursuant to Pa.R.C.P. 4007, Plaintiffs served a Subpoena to Attend and Testify upon the Corporate Representative of Houck Services, Inc. on June 24, 2011, seeking to obtain testimony from Houck's Corporate Representative, as well as documents related to, information set forth in Exhibit B to the Subpoena. (See, June 24, 2011 Notice of Deposition and Subpoena to Attend and Testify, a true and correct copy of which is attached hereto as Exhibit A (the "Subpoena")). In reply, Houck filed a Motion to Quash and/or for Protective Order on July 27, 2011. In its i ' NO. 09-4183 CIVIL TERM Motion to Quash, Houck relies heavily on this Court's prior February 28, 2011 Order of Court which denied Plaintiffs' Motion to Compel the production of documents directed to Houck, without prejudice. However, since February 28, 2011 new information has come to light through the depositions of a former board member of the Central Susquehanna Intermediate Unit ("CSIU"), Charles Porter, and the Current Director of Cooperative Purchasing Services at CSIU, Jeff Kimball. The new information obtained through these depositions, as well as a review of Houck's Motion to Quash, warrant the denial of Houck's Motion to Quash and/or Protective Order. The testimony and information sought by Plaintiffs is relevant and material to the instant matter, and cannot be considered confidential or a trade secret of Houck. 1. Paragraph 1 of Houck Services, Inc.'s ("Houck") Motion to Quash and/or for Protective Order is admitted in part and denied in part. It is admitted that Plaintiffs commenced the instant lawsuit against the Cumberland Valley School District ("CVSD") to determine whether the CVSD violated the School Code of 1949, 24 P.S. § 7-7519 (the "School Code") by purchasing roofing products and services from Tremco Incorporated and its subsidiary Weatherproofing Technologies, Inc. (collectively "Tremco") through a contract provided by the Association of Educational Purchasing Agencies (the "AEPA"). It is denied that Tremco became the AEPA's vendor for supplying roofing products and services to Pennsylvania school districts, including the CVSD, after "successfully responding to a nationally advertised Request for Proposal." To the contrary, Tremco became the AEPA's vendor for supplying roofing products and services after coordinating with the AEPA and its member agencies to devise an improper scheme that ensured Tremco would be the only successful respondent to the Request for Proposal. Thus in effect, Tremco and its approved applicators/subcontractors would be the only 2 NO. 09-4183 CIVIL TERM companies to be vetted with over $30 million per year of roofing work on schools in Pennsylvania. The propriety of the CVSD's reliance upon and use of this AEPA/Tremco process is the very essence of the instant lawsuit and precisely the type of information that Plaintiffs are attempting to properly obtain through discovery. Moreover, it is denied that Tremco's prices with the CVSD are fixed unit prices listed in a schedule under the AEPA contract. To the contrary, recent evidence obtained through discovery indicates the "fixed" prices set forth in the AEPA contract are not fixed at all but are subject to change upon the whim of Tremco, the contractor, and perhaps Tremco's sub- contractors such as Houck Services. Mr. Charles Porter, former Board Member of the AEPA's Pennsylvania member, Central Susquehanna Intermediate Unit ("CSIU"), was deposed in this case on July 15, 2011. Mr. Porter was also on the Board of the Southern Columbia Area School District ("SCASD"). During his deposition, Mr. Porter testified that the pricing that was initially submitted by WTI and its subcontractor for roofing work on SCASD's buildings changed after SCASD complained to WTI about its multiplier fees for roofs under a certain square footage. Mr. Porter testified concerning other discrepancies related to maintenance provisions and warranty charges in the WTI bill submitted to SCASD. (See, excerpts from deposition testimony of Charles Porter, pp. 94-98, a true and correct copy of which is attached hereto as Exhibit "B"). Further, Mr. Porter testified that an initial presentation by WTI/Tremco to SCASD, "proposals" from three separate roofing subcontractors were presented. (See, Exhibit B, pp. 32-33). He testified that members of the school board of SCASD were led to believe that Tremco/WTI had obtained three bids for the roofing work to be performed. Id. Mr. Porter testified that he independently contacted one of the named subcontractors whose "proposal" was presented by WTUTremco and learned that the 3 NO. 09-4183 CIVIL TERM subcontractor could have performed the roofing work for SCASD for less than the "proposal" presented by Tremco/WTI to SCASD or that which was contracted for. (See, Exhibit B, pp. 65- 67). Mr. Jeff Kimball, the Current Director of Cooperative Purchasing Services at CSIU, testified during his deposition on July 27, 2011, regarding variations in Tremco/WTI's pricing from the fixed price pursuant to the AEPA schedule that Houck relies upon in its Motion to Quash/Protective Order - for example the $47, 430 discount below the "fixed" price under the AEPA contract that WTI offered to SCASD if they allowed Tremco/WTI and its subcontractor to perform the work right away and did all of the work that was recommended. Mr. Kimball testified that it is up to the school district to look into the pricing differential in the reports received from Tremco. (See, excerpts from deposition testimony of Jeff Kimball, pp. 188-91, a true and correct copy of which is attached hereto as Exhibit "C"). Mr. Kimball also testified that no one at PAEJPC/CSIU ever analyzed Houck Services' pricing or charges to see if they are higher or lower than that charged by others in the industry and have no idea what their charges are for any project including the CVSD projects (See, Exhibit C, pp. 82-83). Mr. Kimball also testified that Houck Services is no mere stranger to the PEJPC or that Houck merely serves as a subcontractor as Houck's pleading would suggest. Rather, Houck Services, along with Tremco/WTI and other approved applicators of WTI/Tremco, has been a "Grand Master Sponsor" ($2.000 sponsorship) of the CSIU/PAEJPC's annual golf tournament whereby vendors meet with school district members. (See, Exhibit C, pp. 112-113). This evidence of past reductions in Tremco pricing for roofing products and services indicates that Tremco, and its subcontractors, may be in the practice of changing prices following the submission of supposedly "fixed" prices to school districts. Plaintiffs are entitled to discover 4 NO. 09-4183 CIVIL TERM through the deposition of a representative of Houck, the facts, figures and details that went into the contract submitted to CVSD and whether Houck, as the alleged subcontractor associated with the CVSD roofing projects, engaged in similar practices or was aware of similar practices that are potentially in violation of the School Code. Further, communications between Houck and Tremco, Houck and the PAEJPC, or Houck and the CSIU may indicate a disregard for the School Code and/or a scheme to be employed by that would trickle down to and benefit Houck as a preferred subcontractor of the only awarded vendor. 2. It is admitted that WTI served as a subcontractor to WTI on the CVSD project. As to Houck's extra-contractual relationships with WTI and the PAEJPC, see Paragraph 1. By way of further response, the information sought and the deposition testimony of Houck's corporate representative is discoverable as it is reasonably calculated to lead to the discovery of admissible evidence. Pa.R.C.P.4003.1. 3. It is denied that the only documents relevant to this action are contracts between Tremco and CVSD. As set forth above, Plaintiffs have information regarding prior Tremco practices of changing the AEPA "fixed" prices after a school district enters into a contract with Tremco. This evidence of past reductions in Tremco pricing for roofing products and services indicates that Tremco, and its subcontractors, may be in the practice of changing prices following the submission of supposedly "fixed" prices to school districts. Plaintiffs are entitled to discover whether Tremco/WTI and Houck, as the alleged subcontractor associated with the CVSD roofing projects, engaged in similar practices. It is further denied that any said information constitutes confidential and/or competitively sensitive business information. To the extent this Court deems 5 NO. 09-4183 CIVIL TERM the information sought as confidential, which Plaintiffs aver it is not, Plaintiffs are willing to enter an agreement for the reasonable protection of said information. 4. Denied. The Court did not issue a memorandum and opinion as to the basis of its denial of Plaintiffs' Motion to Compel. 5. The averments contained in paragraph 5 reference a writing which speaks for itself. By way of further response, new information warrants the discovery of information possessed by Houck and its representatives related to its relationship with Tremco and involvement with the roofing projects provided by Tremco for the CVSD. 6. Denied. Plaintiffs' Subpoena to Attend and Testify are relevant and material to the instant matter. Houck, as a subcontractor to Tremco, may possess evidence that indicates Tremco and the AEPA or its members created a scheme, in violation of the School Code, to award all roofing contracts to Tremco. To the extent this Court deems the information sought as confidential, which Plaintiffs aver it is not, Plaintiffs are willing to enter an agreement for the reasonable protection of said information. 7. Denied. The testimony and documents sought through the Subpoena are proper and reasonably calculated to lead to the discovery of admissible evidence, and Houck's Motion to Quash and/or for Protective Order should be denied. 8. Plaintiffs incorporate paragraphs 1 through 7 as if set forth fully herein. 9. Pa.R.C.P. 4003.1 and 4011 speak for themselves and Plaintiffs' request fall squarely within the requirements of these, and all other Rules of Civil Procedure. 10. It is admitted that this litigation involves whether CVSD violated the School Code by relying on the bid scheme created by the PAEJPC/CSIU, the AEPA under which Houck Services was awarded, as a subcontractor, the roofing work at CVSD. 6 NO. 09-4183 CIVIL TERM 11. Denied. Notwithstanding the February 28, 2011 Order of Court, new information has appeared which indicates that Tremco (and others) may be in the practice of changing its "fixed" prices under the AEPA contracts after the contract with a school district is entered into. Plaintiffs are entitled to discover whether Houck is aware of or responsible for any changing in prices following school district contract awards and whether such conduct was contemplated during or occurred with regard to the CVSD roofing projects. 12. Denied. The material sought to be discovered through Topic 8 and 11 are directly relevant to the instant matter. First and foremost, Plaintiffs are not seeking pricing information related to Houck's roofing work on commercial buildings. Rather, Plaintiffs are merely seeking to obtain general information regarding Houck's general practices of submitting bids for projects other than those associated with Tremco so that Plaintiffs can determine, by comparison, whether any collusive or anti-competitive bidding procedures occur in Houck's dealing with Tremco. Further, information sought in Topic I1 relates only to Houck's work on Pennsylvania schools that was performed through Tremco or the PEJPC/CSIU, which is directly relevant to determine prior practices and conduct between Houck and Tremco on school projects such as the CVSD projects at issue in the instant matter. 13. Denied. The information sought by Plaintiffs' subpoena would not provide Plaintiffs' employer with any competitive insights. Plaintiffs' employer, Carlisle, is a manufacturer of roofing materials that does not construct roofing systems, install them or apply them. To the extent this Court determines that Houck possesses confidential, proprietary information pertaining to roofing, Plaintiffs are willing to enter into a reasonable confidentiality agreement. Moreover, as explained above, Tremco may be in the practice of changing its "fixed" prices under the AEPA contracts after the contract with a school district is entered into. 7 NO. 09-4183 CIVIL TERM Plaintiffs are entitled to discover whether Houck service is aware of or responsible for any changing in prices following school district contract awards 14. Denied. In light of information obtained from a former board member of AEPA's Pennsylvania member, it appears that Tremco's prices for roofing services and projects are not necessarily "fixed," as averred by Houck. Plaintiffs have a right to determine whether Tremco's primary subcontractor, Houck, was aware of or participated in these types of post-bid price variances and at a minimum should be entitled to determine what went into the contract submitted to CVSD by Tremco/WTI.. 15. Denied. 16. Plaintiffs incorporate paragraphs 1 through 15 as if set forth fully herein. 17. Pa.R.C.P. 4012 speaks for itself. By way of further response, Houck has not and cannot show "good cause" for entering a protective order. 18. Denied. Houck has not and cannot show that any harm will result from disclosure of the information sought by Plaintiffs. 19. Denied. Houck has not and cannot show that Houck's disclosure of the information sought by Plaintiffs will result in an advantage obtained by Plaintiffs over competitors. Plaintiffs are individuals who have standing in this action by way of their tax payer status. The notion that these individual Plaintiffs would obtain an advantage over Houck's competitors is absurd. Even if this Court considers that Plaintiffs' employer happens to be a manufacturer of roofing systems, the disclosure of the information sought by Houck does not give Carlisle any advantage over competitors because Carlisle is not a competitor of Houck. 20. Denied. This Court need not consider the averments made in paragraph 20 of Houck's motion as "good cause" is not and cannot be shown by Houck because they will suffer 8 NO. 09-4183 CIVIL TERM no harm by providing the requested testimony and information to Plaintiffs. Further, the information sought is not and cannot be considered a trade secret. 21. The averments contained in paragraph 21 reference a writing which speaks for itself. By way of further response, Houck has not and cannot prove that the disclosure of the information sought would result in any measurable harm to Houck. Moreover, Plaintiffs cannot be considered competitors of Houck nor can Plaintiffs' employer, Carlisle, who manufactures roofing systems. 22. Denied. The Court did not issue a memorandum and opinion as to the basis of its denial of Plaintiffs' Motion to Compel. Moreover, new information has come to light since the February 28, 2011 Order which further amplify the relevancy and need for disclosure of testimony and information sought by Plaintiffs. 23. It is denied that February 28, 2011 Order of Court prohibits the testimony and information sought in the Subpoena. As set forth above, Plaintiffs are entitled to seek testimony from Houck's corporate representative and request information concerning Houck's involvement with and knowledge of the roofing projects for the CVSD. 24. Denied. The testimony and documents sought through the Subpoena are proper and reasonably calculated to lead to the discovery of admissible evidence. This information is not proprietary and Plaintiffs, as well as their employer, stand to gain nothing more from its disclosure than a full and open discovery process relevant to the CVSD roofing projects' compliance with the School Code. 25. Denied. The information sought is neither a trade secret nor would Houck be damaged by being required to produce it to Plaintiffs. 9 } NO. 09-4183 CIVIL TERM 26. Denied. As set forth above, new information gleaned from recent deposition testimony shows that Tremco, and thus by necessity its subcontractors, are prone to change the "fixed-line item pricing under the AEPA purchasing vehicle." Plaintiffs are entitled to explore this area of inquiry further and determine if Tremco and its related subcontractors were engaged in similar behavior regarding the CVSD roofing projects. 27. Denied. Plaintiffs, nor their employer, are competitors of Houck and stand to gain nothing through production of the information sought besides a fair and proper discovery of relevant, or potentially relevant, information. 28. Denied. Plaintiffs' employer manufactures roofing systems and does not compete with Houck. Plaintiffs' employer does not hire companies or subcontractors, like Houck, to install its roofs. Rather, Carlisle's roofs are installed by companies who are hired by separate general contractors. Whether or not those companies that install Carlisle's roofing systems are competitors with Houck is irrelevant. 29. Denied. Plaintiffs' are not seeking the requested testimony and information for the purpose of providing them to other companies who install Carlisle's products. Rather, Plaintiffs' are seeking the requested testimony and information solely for the purpose of evaluating the propriety of the CVSD roofing projects and their compliance with the School Code. 30. Denied. As set forth above, good cause is not and cannot be shown to prohibit the discovery of the information requested in Plaintiffs' recent Subpoena to Attend and Testify. 31. Plaintiffs incorporate paragraphs 1 through 30 as if set forth fully herein. 32. Denied. Good cause does not exist to limit the production of witnesses or documents related to Plaintiffs' subpoena. 10 I NO. 09-4183 CIVIL TERM 33. Pursuant to Cumberland County Local Rule 208.3(x)(2), Plaintiffs state that prior matters before the Court in this matter have been decided by Judge Wesley Oler, Jr. (Plaintiffs' motion for commission to depose out-of-state witnesses on subpoena, rule to show cause why Plaintiffs should not incur expenses or attorney's fees, Plaintiffs' motion to compel). WHEREFORE, Plaintiffs, Michael J. Ducharme and Nicholas J. Shears, respectfully request that this Honorable Court enter an order in the form attached denying Houck Services, Inc.'s Motion to Quash and/or for Protective Order and order Houck to comply in full with Plaintiffs' June 24, 2011 Subpoena to Attend and Testify Respectfully submitted, DICKIE, Mc & ILCOTE, P.C. B y: - F derick W. Bode, III, Esquire Pa. I.D. # 33391 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 11 EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBER LAND COUNTY, PENNSYLVANIA MICHAEL J. DLJCHARME and NICHOLAS J. SHEARS, CIVIL ACTION Plaintiffs, v. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant, PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. NO. 09-4183 CIVIL TERM Issue No. NOTICE OF DEPOSITION OF CHARLES PORTER Code: Filed on behalf of Plaintiffs, MICHAEL J. DUCHARME AND NICHOLAS I SHEARS Counsel of record for this party: Frederick W. Bode, III, Esquire PA I.D.# 33391 Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA 1.131 206150 DICKIE, McCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DtICHARME and CIVIL ACTION NICHOLAS J. SHEARS, Plaintiffs, NO. 09-4183 CIVIL TERM V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. NOTICE OF DEPOSITION OF CHARLES PORTER TO: Charles Porter 436 Bear Gap Road Elysburg, PA 17824 TAKE NOTICE that the deposition of Charles Porter will be taken for the purposes of discovery and for use at trial pursuant to Rules 4007, et seq., of the Pennsylvania Rules of Civil Procedure, as amended, before a Notary Public authorized by law to administer oaths, on Friday, July 15, 2011, beginning at 9:00 AM, at the Hampton Inn, 3 Stettler Avenue, Shamokin Dam, PA 17876 , at which time you are invited to appear and take such part as shall be fitting and proper. The deponent is directed to bring with him to the deposition any and all documents in his custody or control, including emails and correspondence, related to the Cumberland Valley School District and its relationship with the Pennsylvania Education Joint Purchasing Council f and/or the Central Susquehanna Intermediate Unit for the provision of roofing services or projects. The scope and purpose of the deposition is to inquire into facts, causes and results of the incident in suit, including the identity and whereabouts of witnesses. Respectfully submitted, DICKIE, Mc MEY & CHILCOTE, P.C. By: PIII, Esquire Pa. I.D. # 33391 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 Counsel for Plaintiffs, Michael J. Ducharme and Nicholas J. Shears 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice Of Deposition of Charles Porter has been served on this 24`h day of June, 2011, by U. S. first-class mail, postage prepaid, to following counsel of record: Sharon M. O'Donnell, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Counsel for Defendant Michael I. Levin, Esquire Paul J. Cianci, Esquire 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Counsel for Additional Defendant DICKIE, McCA Y & CHIL,COTE, P.C. By: rederick W. Bode, II , Esquire Counsel for Plaintiffs, Michael J. Ducharme and Nicholas J. Shears 3 CONINIONWEALTII OF PENNSYLVANIA COUNTY OF CLINIBERLAND Michael J. Ducharme and Nicholas J. Shears vs. NI." n"ff File No. 09-4183 Civil Term . Cumerland Valley School District llefendam Pennsylvania Education Joint Purchasing Council Additional Defendant SUBPOENA TO ATTEND AND TESTIFY TO: Charles Porter 436 Bear Gap Road Elysburg, PA 17824 l . You are ordered by the court to come to Hampton Inn, 3 Stettler Avenue, Shamokin Dam, PA 17876 (Specify Courtroom or other place) at___, S yder County, Pennsylvania, on _Friday, 9:00 o'clock, A M,. to testify on behalf of Michael Ducharmel& Nicholas Shears in the above case, and to remain until excused. 2. And bring with you the following: See Exhibit A If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Frederick W. Bode III Esquire Address: Dickie, McCamey & Chilcote P.C. Two PPG Place Suite 400, P h PA 15222 Telephone.-.. 412-281-7272 Supreme Court ID # 33391 BY THE QQURT: ?E2Wnotary/Cler, Civil Divisio Date: -MQ? oZ a©? ? SeaagVof the Court uty Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) EXHIBIT A The deponent is directed to bring with him to the deposition any and all documents in his custody or control, including emails and correspondence, related to the Cumberland Valley School District and its relationship with the Pennsylvania Education Joint Purchasing Council and/or the Central Susquehanna Intermediate Unit for the provision of roofing services or projects. 4 EX111BIT B Charles Porter u u.1_y 17, GU11 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Michael J. Ducharme and Nicholas J. Shears, Plaintiffs vs. Civil Action The Cumberland Valley School District, Defendant No. 09-4183 Civil term vs. Pennsylvania Education Joint Purchasing Council, Defendants WITNESS: Charles Porter LOCATION: Hampton Inn 3 Stettler Avenue Shamokin Dam, Pa 17876 REPORTER: Jill M. Fry DATE: July 15, 2011, 11:06 a.m. ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles PnrtPr uuiy 1.D, GU11 2 COUNSEL: Frederick Bode, Esquire Doug Grimsley, Esquire DICKIE McCAMEY 2 PPG Place, ## 400 Pittsburgh, PA 15222 For: Plaintiffs 1 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Christopher Conrad, Esquire Arron Haynes, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 4200 Crummill Road Harrisburg, PA 17112 For: Defendant - Cumberland Valley School District Paul Cianci, Esquire LEVIN LEGAL GROUP 1301 Masons Mill Park 1800 Byberry Road Huntingdon Valley, PA 19006 For: Defendant - CSIU and PA Joint Education Purchasing Council ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles PnrtPr see that specific. Q. I was really not, I wasn't asking you about the $10,000 limit as much as I was asking you about your familiarity with the bidding process in Pennsylvania. You do have some familiarity with it? A. Yes. Q. And, in fact, as I said, the second to last paragraph you talk a little bit about what that bidding process is supposed to be, correct? A. Yes. Q. Now, when Mr. Behnke made his presentation to you, did he tell you that for eight years the only approved bidder for roof business in 21 states was Tremco? A. No. Q. Did he tell you that, in fact, every school district that was using Tremco, including Cumberland Valley and your school district wasn't getting bids from three roofing contractors? A. That is -- that's an interesting point, because there was-- some information brought out that confused the point. During Mr. Behnke's presentation, the Power Point presentation, at one point he put up a slide or a image of three contractors who had, and figures from each of the three contractors, and it wasn't as in one uuly 15, LU11 32 4 C E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions. corn Charles Porter waterproofing, I remembered that. So that led to some confusion, I know on our Board's part, and I'm not sure on our Business Manager's part, that they had satisfied the bidding requirement by getting three bids. And as I looked at that, and thought about it, I became very uncomfortable because as I learned that the contractor uuly 1D, GUll 33 l document here where contractor A, B, or C, those contractors were named. One of them was C and D bidding is specified on a per unit basis, and it's, those are finite figures. I thought how can this be determined then by three bids, and it couldn't. And so I went to our Business Manager and I said, Dan, this f c lc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 isn't, this is a false presentation, or false image here. If our Directors are thinking that the bidding standards, you know, Pennsylvania standards are being met by Behnke showing us that they had gone out and got three proposals, you know, that's not true. The only thing that Tremco getting three proposals would do, would be to save them money, not us. Because the figures are set, you know, by the JPC standards. So if they save money, they are only saving themselves, the savings do not occur to Southern Columbia. Q. What did Dan Rogers say to you? A. I think maybe after the second conversation further on he finally admitted that, you know, he UP ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter in our IU meetings, you know, here is what we do. The districts don't have to do this, they are not obligated to take the services. So, yes, that has been repeated many times. Q. Did you ever have any discussions with anybody where they told you that certain work that was bid by Tremco at your school district could have been done for less money'? A. Yes. Q. Tell me about that. A. When I, again, in the Power Point presentation Mr. Behnke had three contractors listed. I went back to our Business Manager and I asked, I couldn't remember, I guess, you know, I take notes, and in my notes I couldn't find who those three contractors were. He had three contractors and three different amounts listed, one for each contractor. I can remember C&D Waterproofing, I couldn't remember who else. So I went back to Mr. Rogers, since he is our Business Manager, I direct my questions through him. I said, I would like to know who the other contractors were that Mr. Behnke referenced in his Power Point presentation. Mr. Rogers got back to me and said that they would not release that, that that was proprietary information and that I couldn't have that. ULA l.y 17, GU 11 65 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2.3 24 25 0 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter uuly in, 6U11 66 L E E S lc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. "They" being who? '• A. That whoever -- I assume it was -- I don't know, you know. Q. WTI or Tremco? A. No. I think he got back to Allen Behnke, that they would not release that slide, or whoever, you know, the information that was on that Power Point presentation as to the individual contractors. So I did remember seeing C&D Waterproofing, so I called them. And I, again, trying to know what is going on here, just doesn't smell right, you know. Again, I don't want my own ignorance to guide my, you know, actions in a wrong way, so I want to keep trying to find out where is this taking me. And I talked to a gentleman, why I can remember, but Mike, I believe it was Mike Bass, and he just told me, he said, we could have done that job cheaper, you know, than what you're getting it for. Q. And Bass you believe is Mike B-A-S-S? A. Yes. Q. Okay. A. And I really -- we didn't have an extensive conversation, so I guess, you know, to learn more about it would probably be better to go to him than have me put his words through my mouth and get it wrong. Allllll? ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter Q. Did Mr. Bass tell you that he had been advised by anybody as to the parameters of where his bid should come in? uuiy _LD, GV11 67 A. No. Q. Why is it -- if you know, why is it that he provided that information to you, that we could have done it less expensive or cheaper? A. Probably asked him. You know, I'm sure he didn't just come out and volunteer because you made the contact, not him. Q. If you go to Porter 5, this is the second and third page are a letter from Robert G. Witten, PhD. Do you know what his Doctorate is in? A. No. Q. Executive Director of the CSIU, to Carle A. Dixon, Chief Division School Facilities, dated June 24, 104. Have you ever seen this letter before? It is Page 2 of that document, of Porter 5. A. Okay. No. Q. The first paragraph of Mr. Witten's letter says, second sentence, third sentence: "Its impetus came from the desire of several cooperative purchasing managers from across the country to provide effective large-scales programs, which would drive significant savings for local schools". L E i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter uuly 1J, GU11 94 (Discussion held off the record.) L E i 0 c 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Porter Deposition Exhibit Number 8 was marked for identification.) (Porter Deposition Exhibit Number 9 marked for identification.) MR. BODE: 8 is the AIA Contract, 9 is the Weatherproofing Technologies, Incorporated document. Okay. So, first of all, let's go to 8, and I am not going to ask you to read the entire contract, especially since you voted against 8, but this is the contract that was entered into between the Southern Columbia Area School District and Weatherproofing Technologies, correct? THE WITNESS: Yes. MR. BODE: And it was for the high school and the middle school and their cafeteria and libraries, right? THE WITNESS: Yes. Q. And the owner is listed as Southern Columbia Area School District, it is signed on behalf of Charles Reh, the superintendent signed on behalf of the school district, and the contractor is listed as Weatherproofing Technologies, Steven H. Nicholson, Central Division Manager. Is that how you remember it? A. That's how I remember it. Q. If you look at page, I think if you look at Page 13, that's who signed the contract. 0 ESQUIRE .. Alexander Gail. Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter A. Okay. Q. Now, if you take Exhibit 9 and compare that with Exhibit 6, it looks like there are differences in the amount that was charged and ultimately paid, and it looks like the bid amount changed from 20 percent to 15 percent. Are you following me? So look at Exhibit 9. A. I have 8 there, 9 there. Compare 9 and 6? Q. Yes. A. Okay. Q. All right. Now, you see where the bid amount is on the first, Porter 6 has 20 percent for Roof "A" 20 percent for Roof "B", 20 percent for Roof "C". A. Yes, I do. Q. Why did that change to 15 percent? A. I don't know. Total amounts must have changed in order to drop those percentages. Obviously the total amount is different. Let me go on this. I'm struggling with this. The reason I put a date on this when I got this, this is Exhibit 6. I had been asking for this. Once I realized there were specifications out there, as you notice, we don't have specifications on the per square foot, or whatever units in this contract. Our presentation from Mr. Behnke in April didn't have, you know, square foot prices delineated. Once I realized that we were talking about, in fact, Uu1y -L GU 11 95 7 L 4 E 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1W ESQUIRE n Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter when I went to the IU in July I realized that each, every item of work has a code, and that code delineates, you know, is a description of what charges are to happen on a square foot basis, or whatever, for whatever happens. Per day of inspection, whatever. It's all delineated. We were never given that. We were given, as you see in this document Number 8, broad proposal ranges as if this has been bid. So I went to my Business Manager, I said, Dan, this thing hasn't been presented to us correctly, you know, where are the specifications and the charges as to the square foot, and I kept asking for them. Finally on July 31st I finally got that. That's the first I ever saw square foot delineations. Also, while I am on it, we were never told that a maintenance contract was separate, it was all presented as one. So there's, I think thirty some thousand dollars in here for maintenance contract that it was represented to us as part of the job. we never even knew, you know, that it should have been delineated out and the Board given a choice. So that might explain some of the discrepancies between 8 and 9. ,July 1J, LV11 96 Q. Well, but the bid amount percentage changed? A. Yes. 7 L 4 G 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 ESQUIRE n .Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Charles Porter UU-LY 1D, GU11 97 E c 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Changed from -- why is it changing from a ' square foot multiplier of 20 percent to 15 percent? A. Oh. Okay. Okay. I tried calling our Business Manager this morning. This is, when I looked through my documents this bothered me, the discrepancies between these two. I was trying to remember when did I get what you are calling Number 9. I think it was given to us after the job as, kind of as a placate, look how much better we did for you. This is what the job really should have cost, instead of what you paid. We did you a favor. That is, I am surmising, that is just a -- because we didn't have this to start with. Q. Wait. I thought this was a national contact that was saving you money, and yet they are taking 5 percent more off it when you start complaining or looking for things? A. I did complain because there is different charges if your roof is less than 10,000 square feet versus if it is more than 10,000 square feet. And I started, I complained and said wait a minute here, you add up our whole job and we are over 10,000 square feet, and these roofs are pretty much contiguous. I don't know if they are totally contiguous, but once the equipment is up there, you are there. We were told, no, you can't do that. Then -- but I said on the it'OAY ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Char-Les Porter Uuty 1J, /-U1.1 98 L 4 C E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 warranty though, you're charging us as if it is over 10,000 square feet. So there's a discrepancy there. Those were some of the back and forth that we had. Q. Did you do all of the roofs, or were all of the roofs coated, every single roof on all the buildings? A. No. Q. Why not? A. Because we didn't have the money, or we choose not to spend that amount of money. Q. I thought you wanted to -- I know you didn't vote for this, but I thought you wanted to, you know, make the schools cooler and that sort of thing? A. That was, that is like you said, a mitigating factor. That is like, okay, we are doing, it's a help. Is that a reason to do this whole job for the amount of money? No. It isn't. I agree with you. Okay. MR. BODE: I think that's all the questions I have for you. I really appreciate your time. MR. CIANCI: I would like to reserve my right to question you, sir, if that is okay with you. If we decide to take your deposition at a future date, I will simply contact you and see if we can make arrangements for a proper date and time. MR. BODE: What? We're here. I noticed this. You have plenty of time. What are you doing, you don't get to ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com EXHIBIT C Jeff Kimhall UU.Ly GGUll 11 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and CIVIL ACTION NICHOLAS J. SHEARS, NO. 09-4183 Plaintiffs vs THE CUMBERLAND VALLEY SCHOOL : DISTRICT, Defendant vs PENNSYLVANIA EDUCATION JOINT : PURCHASING COUNCIL, Additional Defendant Deposition of: Taken by Date Place Before :JURY TRIAL DEMANDED JEFF KIMBALL Plaintiffs July 27, 2011, 9:00 a.m. Baric Scherer Law Offices 19 West South Street Carlisle, Pennsylvania Lucinda K. Love Reporter, Notary Public ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball APPEARANCES: DICKIE, MCCAMEY & CHILCOTE, P.C. By: FREDERICK W. BODE, III, ESQUIRE Two PPG Place Suite 400 Pittsburgh, Pennsylvania 15222 412.281.7272 rbode@dmclaw.com For Plaintiffs MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: SHARON M. O'DONNELL, ESQUIRE 4200 Crums Mill Road Suite B Harrisburg, Pennsylvania 17112 717.651.3503 smodonnell@mdwcg.com For Defendant The Cumberland Valley School District U Uly G/, GU 11 2 LEVIN LEGAL GROUP By: PAUL J. CIANCI, ESQUIRE 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, Pennsylvania 19006 215.938.6378 pcianci@levinlegalgroup.com 9 E 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 For Additional Defendant Pennsylvania Education Joint Purchasing Council ALSO PRESENT: MICHAEL J. DUCHARME 0 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball July 27, 2011 82 1 THE DEPONENT: Mr. Peterson. 2 BY MR. BODE: 3 Q. Do you know anything about Number 8 on 4 this? 5 A. All I know is that they do roofing 6 repair work under the contract. 7 Q. Anything else? 8 A. That's basically it. 9 Q. Do you know what they charge you? 10 A. No. 11 Q. Does Mr. Peterson? 12 A. No. 13 Q. Does anybody at the PEJPC know what 14 Houck S ervices' charge is? 15 A. No. 16 Q. Does anybody competitively analyze 17 whether or not what Houck Services charge for 18 services is higher or lower than what others in 19 the industry might charge? 20 A. No. 21 Q. Why not? 22 A. I never analyzed their services. 23 Q. What about other people in your entity, 241 CSIU or PEJPC, have they analyzed it? ESQUIRE n Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball uuly GV11 83 L C E i 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Not to my knowledge. Q. Who is going to testify about Number 7? A. Chuck Peterson. Q. What does he know about that? MR. CIANCI: As far as you know. BY MR. BODE: Q. Well, what was discussed yesterday about what he knows? A. He knows that -- MR. CIANCI: Which obviously doesn't establish his knowledge, but what was discussed yesterday. THE DEPONENT: He knows that -- (Whereupon the reporter requested assistance.) MR. BODE: You can make an objection to form. If you want to start testifying, I'll put you under oath and we'll find out everything you know. But that's not fair. MR. CIANCI: Okay. I withdraw the comment. BY MR. BODE: 0 ESQUIRE n Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball uuiy Z/, Gull 1121 E c is 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Where is the fall meeting? A. The fall meeting will be in Colorado Springs. Q. At the Broadmoor? A. I think that's the name of the hotel. Q. It's the only resort in Colorado Springs. A. I didn't know. I think it's the Broadmoor. That's where AESA is having their meeting. Q. Houck Services is one of the companies who was a 2010 grand master sponsor. Correct? A. Yes. Q. And they are a roofing company. Correct? A. Yes. Q. And are they a subcontractor? They don't submit a bid. Right? A. No. Q. So they're a subcontractor? A. Yes. Q. And they're hired by Tremco? A. They work under WTI. Q. And are they a certified applicant for NZF ESQUIRE n Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball UU1Y GV11 113 L c E i 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Tremco? ' A. As far as I know, they are. Q. Now, U.S. Roofing, are they also a certified applicator -- A. Yes. Q. -- for Tremco? A. Yes. Q. How about David Maines? A. Yes. Q. Is he a certified applicant? A. Yes. Q. And Scotsman, is that a -- A. That's the modular and portable classroo m vendor. Q. So in 2010 the roofing sponsors are Weatherp roofing Technologies. Correct? A. Yes. Q. U.S. Roofing. Right? A. Yes. Q. David Maines? A. Yes. Q. And Houck Services? A. Yes. Q. What efforts have you made to ascertain lwr? E.01 7M ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimball work. Doesn't that trouble you? A. No. Q. That's because you get paid for that, don't you? A. Yes. Q. That money comes directly to you in the form of 1.5 percent, whether it needs to be done or not. Correct? A. Yes. Q. Now, the last sentence in Paragraph 5, he strongly recommended that we do the roofing project this year to prolong the lives of our roofs and that there was a savings of $47,430 if we did all of his recommendations versus doing portions. How did he get that savings number? A. I do not know. Q. I thought that the bid that you guys got from Tremco was specific and that there was only one cost. How can he be giving a cost for more or less work? A. I am not sure how he came up with those U U-L G ? , G V 11 188 figures. Q. Did you look into it? A. No. L E 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I?V ESQUIRE n Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com Jeff Kimhall Q. Why not? A. That is up to the school district, in the reports that they receive from Tremco. Q. No. You are on the board of the company that gets this company to be the only bidder. And you don't see this as a red flag that perhaps the company that is supposed to be giving their best possible price is now giving a volume discount beyond their best possible price. You don't see that as a problem, sir? MR. CIANCI: It's argumentative. MR. BODE: I don't care whether it's argumentative or not. MR. CIANCI: I do. MR. BODE: Fine. BY MR. BODE: Q. Go ahead and answer the question. A. I do not see it as a problem. Q. Why not? A. Because I don't. Q. I understand that you don't, but I want to know why not. I thought Tremco was giving you, AEPA, their best price? A. They are. Uu1.y G!, 6U11 189 L C E 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ID ESQUIRE n .Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com f 1 Jeff Kimhall UUly G GU11 190 4 E i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. But now they're giving their best price with a volume discount? A. It's based upon square footage and it was based upon mobilization of crews to do that work. So if they were doing everything at one time, naturally, they're going to save on mobilization of crews and can do a better pricing. Q. So it's not based upon their best price. Their best price, to you, is only their going-in best price and that number can change, according to you? A. Various contracts allow for -- there's opportunities for them to, based upon volume, in order to reduce the pricing. Q. Does the roofing contract permit that? A. I'm not sure without looking at it, but most contracts do. There is a volume price. The vendor can offer a discounted price based upon volume. Q. So as you sit here, you can't tell me whether the roofing -- A. I cannot tell you 100 percent if it does. 01 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com 4 M, Jeff Kimball Uu-L1' GUII 191 4 c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Do you know whether your marketing materials suggest that you're going to give a volume deal if they do more work as opposed to less? A. No. Q. Page 2, the third paragraph, the second sentence, the whole paragraph, I would suggest that the parameters of the specifications need to be examined. Did you discuss this with your fellow AEPA members? A. No. Q. This is a CSIU board member, a businessman and a school director who is questioning your bid specifications, not some roofing company; some businessman who out of the blue, who happens to be one of your bosses, is questioning your bid specifications. Did you send this to the roofing committee? A. No. Q. Why not? A. I chose not to. Q. I know you chose not to. Did you think about sending it to them? A. No. 0 ESQUIRE an Alexander Gallo Company Toll Free: 800.345.4940 Facsimile: 215.988.1843 Suite 1210 1600 John F. Kennedy Blvd Philadelphia, PA 19103 www.esquiresolutions.com r NO. 09-4183 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, CIVIL ACTION Plaintiffs, V. THE CUMBERLAND VALLEY CVSD, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, NO. 09-4183 CIVIL TERM Additional Defendant PROPOSED ORDER OF COURT AND NOW, to-wit, this day of , 2011 after consideration of the Plaintiffs' Answer to Houck Services, Inc.'s Motion to Quash and/or for Protective Order, it is hereby ORDERED, ADJUDGED AND DECREED that: a) Houck Services, Inc's Motion to Quash and/or for Protective Order, is DENIED, and b) Houck Services shall comply in full with Plaintiffs' June 24, 2011 Subpoena to Attend and Testify. BY THE COURT, NO. 09-4183 CIVIL TERM CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to Houck Services, Inc.'s Motion to Quash and/or for Protective Order has been served on this day of August, 2011, by U. S. first-class mail, postage prep -? ? - aid, to following counsel of record: Timothy J. Wolford, Esquire Ciara C. Young, Esquire Wolford Law, P.C. Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (Counsel for Houck Services) Anthony F. Adrisano, Esquire Marshall, Dennehy, Warner, Coleman, & Goggins 42 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael I. Levin, Esquire Gillman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntington Valley, PA 19006 DICKIE, McCAMEY & CHILCOTE, P.C. By: Do as M. Grimsle , Esquire Counsel for Plaintiffs, Michael J. DuCharme and Nicholas J. Shears /- MICHAEL J. DUCHARME and CUIN THE MBERLAND COUNTY, NICHOLAS J. SHEARS, Plaintiffs v CIVIL ACTION - EQUITY CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant ?., f Fri 0 _ p-1 PENNSYLVANIA EDUCATION NO. 09-4183 CIVIL TERM PURCHASING COUNCIL , JOINT Defendant IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 27th day of September, 2011, upon consideration of Houck Services, Inc.'s, Motion To Quash and/or for Protective Order, and the Answer To Houck Service, Inc.'s, Motion To Quash and/or for Protective Order filed on behalf of Plaintiffs, and following a conference in chambers in which Plaintiffs were represented by Fredrick W. Bode, III, Esquire, and Douglas M. Grimsley, Esquire, the Cumberland Valley School District was represented by Aaron S. Haynes, Esquire, Defendant Pennsylvania Education Joint Purchasing Council was represented by Paul J Cianci, Esquire, and Houck Services, Inc., was represented by Ciara C. Young, Esquire, and at which counsel for Defendant Cumberland Valley School District and Additional Defendant Pennsylvania Education Joint Purchasing Counsel expressed no position as to the motion, the motion is taken under advisement. Counsel for Plaintiffs and counsel for Houck Services, Inc., having requested an opportunity to submit memoranda of law in support of their respective positions on the motion, such memoranda as any counsel wishes to file shall be filed within 7 days of today's date. By the Court, J. esley O1` , Jr., J. ? Frederick W. Bode, III, Esquire Douglas M. Grimsley, Esquire Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 For Plaintiffs t1t Aaron S. Haynes, Esquire r q (?`? I?p ? 4200 Crums Mill Road Harrisburg, PA 17112 For Defendant Cumberland Valley School District ? Paul J. Cianci, Esquire 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 For Pennsylvania Education Joint Purchasing Council Ciara C. Young, Esquire Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 For Houck Services, Inc. :mae MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-4183 CIVIL TERM IN RE: HOUCK SERVICES, INC.'S MOTION TO QUASH AND/OR FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 110' day of October, 2011, upon consideration of third party Houck Services, Inc.'s Motion To Quash and/or for Protective Order, and the Answer to Houck Service, Inc.'s Motion To Quash and or for Protective Order filed on behalf of Plaintiffs, and following a conference in chambers in which Plaintiffs were represented by Fredrick W. Bode, III, Esquire, and Douglas M. Grimsley, Esquire, the Cumberland Valley School District was represented by Aaron S. Haynes, Esquire, Defendant Pennsylvania Joint Purchasing Council was represented by Paul J. Cianci, Esquire, and Houck Services, Inc., was represented by Ciara C. Young, Esquire, and at which counsel for Defendant Cumberland Valley School District and Additional Defendant Pennsylvania Education Joint Purchasing Counsel expressed no position as to the motion, the motion for protective order is granted, to the extent as follows: (a) Plaintiffs shall be permitted to depose a corporate representative of Houck Services, Inc., the scope of which shall be strictly limited to communications between Houck Services, Inc. and Cumberland Valley School District, and between Houck Services, Inc. and Weatherproofing Technologies, Inc./Tremco Incorporated, concerning the subcontract between Houck Services, Inc. and WTI/Tremco for the February 2009 roof restoration project with Cumberland Valley School District. (b) Houck Services, Inc. shall produce any relevant document requested by Plaintiffs within the scope as set forth in subsection (a) of this order that is not otherwise protected by law. (c) Houck Services, Inc.'s Motion for Protective Order is further granted to the extent that any and all information that could be considered a trade secret or other confidential research, development or commercial information, that is gained during Plaintiffs' deposition of Houck Services, Inc., may not be used by Plaintiffs for any purpose other than this case nor disclosed pursuant to Pennsylvania Rule of Civil Procedure 4012(a)(9). BY THE COURT- JWesley O ei., Jr., (-A. t, / Frederick W. Bode, III, Esq. ?Douglas M. Grimsley, Esq. Two PPG Place, Suite 400 Pittsburgh, PA 15222 Attorneys for Plaintiffs , VAaron S. Haynes, Esq. 4200 Crums Mill Road Harrisburg, PA 17112 Attorney Defendant Cumberland Valley School District w Paul J. Cianci, Esq. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Pennsylvania Education Joint Purchasing Council Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Hauck Services, Inc. CIopies iKu:led 10/11 /1( A?Kt WOOLFORD LAW, P.C. By: Timothy J. Woolford, Esquire Attorney I.D. 78941 ~ ~ ' ~ Ciara C. Young, Esquire <<<. ` i Attorney I.D. 202994 i J' 1 ~1 { O Wheatland Place j YL VA tq 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 MICHAEL J. DUCHARME and ; IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, ; CUMgERi,AND COUNTY, Plaintiffs, : pENNSYLVANIA ' No. 09-4183 v. CIVIL ACTION - EQUITY CUMBERLAND VALLEY SCHOOL : DISTRICT, ~ Defendant. . v. = PENNSYLVANIA EDUCATION JOINT . PURCHASING COUNCIL = Defendant. . HOUCK SERVICES, INC.'S MOTION FOR CLARIFICATION OF THE COURT'S OCTOBER 11, 2011 ORDER Pursuant to 42 Pa. C.S. § 5505, Houck Services, Inc. ("Houck"), by and through its undersigned counsel, Woolford Law, P.C., hereby submits this Motion for Clarification of the Court's October 11, 2011 Order (the "Order," attached as Ex. A). 42 Pa. C.S. § 5505; see Haines v. Jones, 2003 Pa. Super. 283, 830 A.2d 579, 584 (Pa. Super. Ct. 2003) ("Under section 5505, the trial court has broad discretion to modify or rescind an order, and this power may be exercised sua sponte or invoked pursuant to a party's motion for reconsideration."). The Order constitutes the Court's ruling on Houck's Motion to Quash and/or for Protective Order (the "Motion to Quash") regarding the Notice of Deposition and Subpoena to Attend and Testify (the "2011 Subpoena," attached as Ex. B) served by Plaintiffs Michael J. Ducharme and Nicholas J. 2 Shears ("Plaintiffs") on June 24, 2011, Plaintiffs' Answer, Plaintiffs' Memorandum of Points and Authorities in Opposition to the Motion to Quash, and Houck's Reply Brief in Support of its Motion to Quash. As discussed during the September 27, 2011 discovery conference before the Court, in their respective briefmg, non-party Houck requested protection from overly burdensome and irrelevant discovery, while Plaintiffs asserted a need for discovery regazding what they alleged as a"scheme" between Tremco/WTI, the Association of Educational Purchasing Agencies (the , "AEPA"), and Defendant Cumberland Valley School District (the "School District"). After the discovery conference and the close of briefing, the Court ruled that: (a) Plaintiffs could depose a corporate representative of Houck, but limited the scope of deposition to "communications between Houck and the School District, and between Houck and Weatherproofing Technologies, Inc./Tremco Incorporated ("WTUTremco"), concerning the subcontract between Houck and WTUTremco for the February 2009 roof restoration project with the School District (the "February 2009 Roof Project" or the "Project"). (b) Houck must produce any relevant document requested by Plaintiffs within the scope set forth in subsection (a) that is not otherwise protected by law. (c) Any trade secret or other confidential research, development or commercial information gained during Plaintiffs' deposition of Houck's corporate representative may not be used by Plaintiffs for any purpose other than this case or disclosed pursuant to Pennsylvania Rule of Civil Procedure 4012(a)(9). (Ex. A.) In an effort to comply with both this Court's Order as well as Pennsylvania Rule of Civil Procedure 4012(a)(9), Houck intends to produce a corporate representative to testify as to communications between Houck and the School District or WTUTremco regazding the February 2009 Roof Project. Likewise, Houck will produce documents requested by Plaintiffs relevant to that deposition topic. 3 However, because the requested document production, which includes correspondence and subcontracts, will contain confidential and proprietary pricing information, Houck intends to redact the pricing information consistent with Pennsylvania Rule of Civil Procedure 4012(a)(9). See Pa. R. Civ. P. 4012(a)(9) (protecting parties from the disclosure of "a trade secret or other confidential reseazch, development or commercial information"). Houck requests that the Court clarify its Order to provide that Houck may comply with the Order by producing its corporate representative and documents as set forth above, with prices redacted from any produced documents. See 42 Pa. C.S. § 5505; Haines, 830 A.2d at 584. FACTUAL AND PROCEDURAL BACKGROUND 1. The briefmg that resulted in the Order sets forth the salient facts concerning the dispute over the 2011 Subpoena. 2. On September 27, 2011, the Court conducted a discovery conference with counsel. During that conference, the Court described its primary concern as Houck's involvement in the determination of the scope of the February 2009 Roof Project, including when Houck became involved in the Project. However, more than once, the Court questioned the relevancy of Houck's pricing to the allegations in the underlying suit. Houck's subcontract prices remain irrelevant to this action, and are confidential proprietary information. 3. The Order permits Plaintiffs to depose a Houck representative "strictly limited to communications between Houck" and the School District or WTUTremco. Based on discussions during the September 27, 2011 conference, Houck understands the Order to reflect the Court's intent to allow limited discovery of inform.ation related to Houck's involvement in the development of the scope of work on the Project and any decision to proceed with the work, rather than the prices ultimately chazged by Houck to WTUTremco. Pricing information has no 4 impact on the timing, extent and nature of Houck's involvement, if any, in the determination of what work needed to be performed. As a result, Houck should be permitted to redact the pricing information. 4. As set forth below, because pricing and cost information merits trade-secret protection under Rule 4012(a)(9), and because that information has no bearing on either the timing and extent of Houck's involvement in the February 2009 Roof Project or the underlying litigation, Houck respectfully requests clarification from this Court that Houck can comply with the Order by producing documents in response to Plaintiffs' requests with pricing and cost figures redacted. LAW AND ARGUMENT 5. Houck incorporates the preceding paragraphs as if set forth fully herein. 6. Pennsylvania Rule of Civil Procedure 4012(a)(9) provides that this Court may enter an order protecting that entity "from unreasonable annoyance, embarrassment, oppression, burden or expense, including that a trade secret or other confidential commercial information shall not be disclosed or be disclosed only in a designated way." See Pa. R. Civ. P. 4012(a)(9). 7. Under Pennsylvania law, a"trade secret" may include "any formula, pattern, device or compilation of information which is used in one's business, and which gives [the entity] an opportunity to obtain an advantage over competitors who do not know or use it." Crum v. Bridgestone/Firestone N.A. Tire, LLC, 907 A.2d. 578, 585 (Pa. Super. 2006) (adopting the language contained in Section 757 of the Restatement (2d) of Torts). 8. Here, the documents requested by Plaintiffs that are within the scope of the Court's Order will or may contain highly confidential information, namely: (1) labor, equipment, material and other pricing between Houck and Tremco/WTI; (2) cost estimates or budgets; and 5 (3) project or construction cost information. This proprietary information merits protection under Rule 4012(a)(9). 9. Federal courts regularly afford similarly sensitive pricing structures trade-secret protection. See Hi-Tech Rockfall Construction, Inc. v. County of Maui, 2009 U.S. Dist. LEXIS 75632, at *6 (D. Haw. 2009) (observing that "bidding information, such as pricing, budgets, costs, equipment and the like are trade secrets or other confidential commercial information" under the analogous Federal Rule of Civil Procedure 26(c)); Accurate Controls, Inc. v. Cerro Gordo County Bd of Supervisors, 2009 U.S. Dist. LEXIS 14132, at *11-12 (N.D. Iowa 2009) (finding that a party did not need to produce an "estimating form" to approximate construction costs and an "internal bid worksheet" because such documents constituted "proprietary, confidential commercial documents" for purposes of Rule 26(c), the disclosure of which would not lead to the discovery of admissible evidence and would cause the disclosing party unnecessary hann); Zypreza Litig., 474 F. Supp. 2d 385, 415-16 (E.D.N.Y. 2007) (observing that where Federal Rule of Civil Procedure 26(c) protects a"trade secret" or confidential "commercial information," the documents falling within Rule 26(c) protection often contain pricing information, profits, costs, overhead, manufacturing specifications, customers lists, and price structure) (citing Vesta Corset Co. v. Carmen Founds., 1999 U.S. Dist. LEXIS 124, at *5 (S.DN.Y. 1999)). 10. In light of this case law, Houck's pricing and cost estimates constitute confidential, proprietary information that warrant protection. See Pa. R. Civ. P. 4012(a)(1), (a)(9); see also Crum, 907 A.2d at 586 (exercising "the discretion to use the analysis of our sister federal courts to resolve our state issues" in relying on federal case law interpreting analogous Federal Rule 26(c)). 6 11. Significantly, by way of an Order dated February 28, 2011, this Court rejected an earlier attempt by Plaintiffs to obtain discovery that would require Houck to produce highly proprietary information subject to Rule 4012(a)(9). 12. Moreover, Plaintiffs cannot demonstrate that the production of confidential pricing information is relevant or reasonably calculated to lead to the discovery of admissible evidence. See Pa. R. Civ. P. 4003.1(a), (b). 13. As set forth above, the cost and pricing information in the requested documents is irrelevant to Plaintiffs' articulated basis for the 2011 Subpoena - namely, Plaintiffs' desire to deternune Houck's level of involvement in the February 2009 Roof Project. Labor and equipment pricing, cost estimates, and project cost information will not aid Plaintiffs in determining whether Houck affected or participated in any alleged "scheme" between Tremco/WTI, the AEPA, and the School District. 14. Moreover, the Complaint alleges that the 5chool District violated the School Code of 1949, 24 P.S. § 7-751 (the "School Code"), and subcontract prices are irrelevant to whether the School District complied with the School Code and the full panoply of competitive bidding requirements in the AEPA process. 15. In determining whether the School District violated the School Code, the only relevant inquiries are: the nature of the work; the cost of the work paid by the School; and the competitive bidding procedures employed by the School. 16. Houck acted simply as a subcontractor for WTI. The prices as contracted between WTI and Houck are irrelevant - only the price of the School District's contract with WTI has any bearing on whether the School District violated the School Code. 7 17. In sum, even if communications between Houck and the School District or Tremco/WTI are relevant to the underlying suit, PlaintifFs have not demonstrated that the pricing information is relevant or reasonably calculated to lead to admissible evidence. 18. Moreover, Houck would suffer significant competitive harm from the disclosure of its proprietary pricing structures. As discussed in prior briefmg before this Court, Plaintiffs are employed by Cazlisle Roofmg Systems ("Carlisle"), a roofing company that competes with Houck (as well as Tremco/WTn through its contractor network. Relying on the subcontract prices, Carlisle would be able to calculate Houck's rates for materials, labor, and other components, thus placing Houck at a serious competitive disadvantage for future projects. Put simply, disclosing these proprietary pricing structures would undermine Houck's competitive position in its niche market. 19. As a result, Houck respectfully requests that the Court clarify its Order to allow Houck to redact its proprietary cost and subcontract pricing information in the document production. See Pa. R. Civ. P. 4003.1(a), (b), 4012(a)(9). 8 WHEREFORE, Houck Services, Inc. respectfully requests that this Honorable Court clarify its Order to allow Houck to redact confidential and proprietary pricing information from the documents it plans to produce. Respectfully submitted: WOOLFORD LAW, P.C. By: b,&a c , une~~ Timothy J. Woolfor Attorney I.D. No. 78 41 Ciara C. Young Attorney I.D. No. 202994 Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (717) 290-1190 (717) 290-1196 9 f EX IBIT A I i . NIICHAEL J. DUCHARME and : IN THE COURT OF COMMON PLEAS OF • NICHOLAS J. SHEARS, . CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. : CNIL ACTION - LAW i CUNIBERLAND VALLEY . ~ SCH04L DISTRICT, Defendant . ~ v. ~ PENNSYLVANIA EDUCATION J4INT PURCHASING COUNCIL, : Defendant : NO. 094183 CIVIL TERM IN RE: HOUCK SERVTCES, INC.'S MOTIUN TO QUASH AND/OR FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this 11l day of October, 2011, upon consideration of third party Houck Servzces, Inc.'s Motion To Quash and/or for Protective Order, and the Answer to Houck Service, Inc.'s Motion To Quash and or for Protective Order filed on behalf of Plaintiffs, and following a conference in chambers in which Plaintaffs were represented by Fredrick W. Bode, TII, Esquire, and Douglas M. Grimsley, Esquixe, the Cumberiand Valley School District was represented by Aaron S. Haynes, Esquire, Defendant Pennsylvania Joint Purchasing Council was represented by Paul J. Cianci, Esquire, and Houck Services, Inc., was represented by Ciaxa C. Young, Esquire, and at which counsel for Defendant Cumberland Valley School District and Additional Defendant Pennsylvania Education Joint Purchasing Counsel expressed no position as to the motion, the motion for protective order is granted, to the extent as follows: ~ I (a) Plaintiffs shall be permitted to depose a corporate representative of Houck ~ Services, Inc., the scope of which shall be strictly limited to communications ~ between Houck Services, Inc. and Cumberland Valley School District, and ~ between Houck Services, Inc. and Weatherproofing Technologies, Inc./'Tremco ~ I I i I j Incorporated, concerning the subcontract between Houck Services, Inc. and WTI/Tremco for the FebruarY 2009 roof restoration ProJ'ect with Cumberland Valley School District. (b) Houck Services, Inc. shall produce any relevant document requested by Plaintiffs within the scope as set forth in subsection (a) of this order that is not otherwise protected by law. (c) Houck Services, Inc.'s Motion for Pmtective Order is further granted to the extent that any and all information that could be considered a trade secret ar other confidential research, development or commerEial information; that is gained. , . during Ptaintiffs' deposition of Houck Services, Inc., may not be used by Plaintiffs for any purpose other than this case nor disclosed pursuant to Pennsylvania Rule of Civil Procedure 4012(a}(9). BY T'HE COURT, ~ j t/ ~ j . Wesley O Jr., . Frederick W. Bode, III, Esq. Douglas M. Grimsley, Esq. Two PPG Place, Suite 400 Pittsburgh, PA 15222 Attorneys for Plaintiffs Aaron S. Haynes, Esq. 4200 Crums Mill Road Hazrisburg, PA 17112 Attorney Defendant Cumberland Valley School District I Paul J. Cianci, Esq. 1301 Masons Mill Business Park 1800 Byberry Road . Huntingdon Valley, PA 19006 Attorney for Pennsylvania Education Joint Purchasing Council Ciar . Young, Esq. eatland Place 94I Wheatland Avenue Suite 402 Lancaster, PA 17603 Attomey for Hauck Services, Inc. EX IBIT B I !N THE COURT OF COMMON PLEAS OF CUMBER LAND COUNTY, PENiVSYLVANIA M[CHAEL J. DUCHARME and CIVIL ACTION NICHOLAS J. SHEARS. NO. 09-4183 CtVIL TERM Plaintiffs, Issue N'o. v. THE CUMBERLAND VALLEY SCHOOL NOTICE OF DEPOSITION UF THE DISTRICT. CORPORATE REPRESENTATIVE(S) OF HOUCK SERVICES PURSUANT TO Defendant, Pa.RCiv.P. 4007.1(e) v. Code: PENNSYLVANIA EDUCATION 30INT PURCHASING COUNCII., Filed on behaif of Plaintiffs, Additionai Defendant. MICHAEL J. DUCHARME AND 1VICHOLAS J. SHEARS Counsel of record for this party: Frederick W. Bode, III, Esquire PA I.D.# 33391 . Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA I.D.# 206150 DICKIE, McCAMEY & CHIL.COTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED • 970103.dox: EN THE COURT OF COMMON PLEAS OF CUMBERLAND C4UNTY. PENNSYLVANIA MICHAEL J. DUCHARME anc! CIVCL ACTION NICHOLAS J. SEEARS, N0. 09-4 t 83 CIV IL TERM Plaintiffs, v. THE CUMBERLAND VALLEY SCHOOL DISTRTCT, Defendant, v. PENNSYLVANTA EDUCATION JOINT PURCHASING COUNCIL, Additiona! Defendant. YOTICE OF DEPOSITION OF THE CORPORATE REPRESENTATIVE(S} VF HOUCK SERVICES PURSUANT TO PaR.Civ.P. 4007.1(e) TO: Corporate Representative(s) of Houck Services, Inc. Houck Services 7464 Linglestown Road Harrisburg, PA 17112 TAKE NOTICE that the deposition of a Corporate Representative(s) of Houck Services, Tnc. ("Houck".) will be taken for the purposes of discovery and for use at trial pursuant to Rules 40(}7, et seq., of the Pennsylvania Rules of Civi1 Procedure, as amended, before a Notary Public authorized by law to administer oaths, on Friday, Juiy 8, 2011, begincting at 9:00 AM, at the law offices of Baric Scherer, 19 West South Street, Carlisie, PA 17013, at which time you are invited to appear and take such part as shall be fitting and proper. Pursuant to Rule 4007.1(e) of the Pennsylvania Rules of Civil Procedure, Houck Services, Inc. ("Houck") shall designate one or more officers, directors, or managing agents (or ' 11101 Q3.dtx; other persons who consent to testify on Eiouck's behalf) to trive testimony concerning the following areas of inyuiry: See Exhibit A. . Respectfully submitted, DICKIE, M AMEY & CHII,COTE, P.C. ~ By: rede 'ck W. ode, III, Esquire Pa. I.D. # 33391 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 Counsel for Plaintif~j"s, Michael J. Ducharme and Nicholas J. Shears ' 910103.dcx: EXHIBIT A l. Cammunications from 2408 through the present between Houck and Tremco regarding roof services to be pertormed on Cumberiand Vafley Schooi District roofs. 2. Communications frortt 2008 through the present between Houck and WTI regarding roof services to be performed on Cumberland Valley School District ("CVSD") roofs. 3. Communications from 2008 through the present between Houck and CVSD regarding roof services to be performed on CVSD roofs. 4. Communications from 2008 through the present between Houck and PEJPC and/or CSN regarding roof services to be performed on CVSD roofs. 4. Houck's parficipation in inspections andlor estimations of CVSD's roofs in the summer of 2008. 5. Any recommendations rnade by Houck to Tremco/WTI regarding the roofing work performed in 2009 on CVSD's roofs. 6. Any recommendations made by Houck to CVSD regarcfing the roofing work performed in 2009 on CVSD's roofs. 7. The infornation contained within and the processes of creadng the bid or proposal that was submitted by Houck to WTUTremco for the roofing work performed on CVSD's roafs in 2009. 8. Houck services processes for creating and submitting bids to perform roofing work on commerciai buildings in general. 9. Any contracts between Houck and WTU'Tremco for roofing work to be performed an CVSD's roofs in 2009. ~ 001(I3,dc)c 10. Monies invoiced by Houck to WTUTremc:o tor work performed on CVSD's roofs in 2009_ L l. Any ather roofing work perfprmed by Houck services on Pennsylvania public schools through contracts with WTUTremco and/or the PE1PC/CSN. ' ')7Ufll3.dcx: CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Notice Of Deposition the Corporate Representative(s) of Houck Services, fnc_ Pursuant to Pa. R. Civ. P. . 4007.1(e) has been served on this 24`h day of June, 220 11, by U. S. first-class mail, postage prepaid, to following counsei of record: Sharon M. O'Donnell, Esquire Marshatl, Dennehey, Warner, Coleman & Goggin 420(} Crums Mil! Road, Suite B Hairisburg, PA 17112 Counsel for Defenclant Michael I. Levin, Esquire Paul J. Cianci, Esquire 1301 Masans Mill Business Park 1$00 Byberry Road Kuntingdon Valiey, PA 19006 Counsel for Additional Defendant DICKIE, McCAMEY & CHII,COTE, P.C. ~ By: I~eder;d W. Bode, III, Esquire Counsel for Plaintiffs, Michael J. Ducharme ancl Nicholas J. Shears . CONiN[UNWFAL'CI[ UF I'FNYSYLV,IVlA CUl1N'fY t)h CUmBFRLA,VD Michael J. Ducharme and ' Nicholas J. Shears, ~'~.unu?1' . File No. 09-4183 Civil Term V$. . Cumberlaad ValleY School Aistrict th:rendaat Pennsylvania Education Joint Purchasing Council Additional Defendant SUBPOENA "PO ATTEND AND TESTIFY Tp: Corporate Representative(s) of Houck Services, Inc. Houck Services, Inc. 7464 Linglestown Road I. You a~e ose'by the colurt to comc to • Baric Scherer, 19 West South Street, Carlisle, PA 17013 (Specify Courtroom or other ptace) at , Dauphin Caunty, Pennsylvania, on Friday, July S, 2011 at 9s00 o'clock, A M.. to testifyon behalfof Michael J. Ducharme & Nicholas J. Shears, regarding the areas of inquiry detailed in Exhibit A. in the above case, and to remain until excused. 2. And bring with you the following: See Exhibit B [f yau fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, inciuding but noi limited to costs, atEorney fees and imgrisonment. REQUESTED BY A PARTY/ATTORNEY 1N COMPLIANCE WITH Pa.R.C.PNo.234.2(a): Name: Frederick W. Bode, IZI, Esquire Address: Dickie, Mc amey. cote, P.c. 'two PPG Place, Suite 400, Pgh, PA 15222 Telephone: 12-281-7 27 2 Supreme Court ID # 33391 BY THfi.COURT: , t .....P thonotaryJCierk, Civil Division Date: /1tu a D / / Sea f the Court Deputy Of~icia[ Note: T'his form of subpoena shail be used whenever a subpcena is issuable, including hearings in connxrion with deposirions and txfore arbitrators, masters, commissioners, etc_ in compliance with Pa. R.C.P.No.234. i. If a subpoena for a production of documents, records or things is desirecf, comptete paragraph 2. (Eff. 7197) - ,)70103.J(x: EXHIBIT A l. Communications from 2008 through the present between Houck and Tremco regarding roof services to be performeci on Cumberland Valley School District roofs. 2. Communications from 2008 through the present between Houck and WTI regarding roof services to be performed on Cumberland Valley School District ("CVSD") roofs. 3. Communications From 2008 through the present between Houck and CVSD regarding roof services to be performed on CVSD roofs. 4. Communications from 2008 through the present between Houck and PEJPC and/or CSIU regarding roof services to be performed on CVSD roafs. 4. Houck's participation in inspections and/or estimations of CVSD's roofs in the summer of 2008. 5. Any recommendations made by Houck ta Trerrico/WTI regarding the roofing work performed in 2009 on CVSD's ropfs. 6. Any recommendations znade by Houck to CVSD regarding the raofing work performed in 2009 on CVSD's roofs. 7. The information contained within and the processes of creating the bid or proposal that was submitted by Hauck to WTUTremco for the roofing work per.formed on CVSD's roofs in 2009. 8. Houck services, processes for creating and submitting bids to perform roofing work on commercial buildings in general. 9. Any contracts between Houck and WTUTremco for roofing work to be performed on CVSD's roofs in 2009. 974103.dcx: I0. Monies invoiced by Houck to WTi/Tremcc> For work performed on CVSD's roofs i n 2009. l l. Any other roofing work performed by Hauck services on Pennsylvania public schools through cornracts with WTUTremco ancUor the PEJPGCSIU. - 97c?103.duc EXHIBIT B Pursuant to Rule 4007.1(e) of the Pennsylvania Rules of Civil Procecture, Houck Services, Inc. ("Houck") designees shall bring with them to the deposition any reports, correspondence, memorandums, notes, photographs, electronic correspondence, and any other clocuments or materials that were reviewed in preparation for the depositions. CERTIFICATE OF SERVICE I, Ciara C. Young, Esquire, an attorney with Woolford Law, P.C., certify that on this date I served a true and correct copy of Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011 Order by depositing the same in the United States mail, postage prepaid, addressed as follows: Frederick W. Bode, III Douglas M. Grimsley Michael P. Flynn Dickie, McCamey & Chilcote, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Counsel for Plaintiffs Sharon M. O'Donnell Mazshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Counsel for Defendant Michael I. Levin Paul J. Cianci Allison S. Petersen 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Counsel for Additional Defendant . Ciara C. Young Dated: November 2, 2011 10 NO. 09-4163 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, v. THE CUMBERLAND VALLEY CVSD, CIVIL ACTION NO. 09-4183 CIVIL TERM RESPONSE TO HOUCK SERVICES, INC.'S MOTION FOR CLARIFICATION OF THE COURT'S OCTOBER 11, 2011 ORDER Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Code: Filed on behalf of Plaintiffs, MICHAEL J. DUCHARME AND NICHOLAS J. SHEARS Additional Defendant. Counsel of record for this party: Frederick W. Bode, III, Esquire PA I.D.# 33391 Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA I.D. # 206150 DICKIE, McCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED NO. 09-4183 CIVIL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, CIVIL ACTION NO. 09-4183 CIVIL TERM V. THE CUMBERLAND VALLEY CVSD, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant RESPONSE TO HOUCK SERVICES, INC.'S MOTION FOR CLARIFICATION OF THE COURT'S OCTOBER 11, 2011 ORDER AND NOW, come Plaintiffs, Michael J. Ducharme and Nicholas J. Shears, by and through their attorneys, Dickie, McCamey & Chilcote, P.C. and O'Brien, Baric & Scherer, and files the following Response to Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011 Order. ARGUMENT Houck's "motion for clarification" is a thinly veiled attempt to reargue the discovery issues previously presented and ruled upon by this Court. Houck simply does not want to produce relevant and discoverable pricing information because it is detrimental to Houck and Tremco/WTI and benefits Plaintiffs' position in this case. All of the issues addressed in Houck's latest motion were presented in initial pleadings on these issues, at oral argument to the Court, NO. 09-4181 UIVIL PERM and, at the request of Houck's counsel, in subsequent briefing. This Court's ruling memorialized in the October 11, 2011 Order is clear and does not require any clarification. Rather than comply with this Court's ruling, Houck attempts another "bite at the apple" on the discovery issues previously ruled upon by this Court. Houck seeks to circumvent the discovery that was ordered by redacting the very relevant and discoverable information that Plaintiffs maintain is necessary to determine Houck's involvement in the AEPA/PAEJPC roofing bid system which Plaintiffs allege is in violation of the School Code. Houck's latest effort is nothing more than a desperate attempt, in violation of the Pennsylvania Rules of Civil Procedure, to avoid relevant, discoverable information. In support of its position that it should be permitted to redact critical, discoverable information, Houck mischaracterizes Plaintiffs' position as to the discovery sought as well as this Court's most recent Order. Houck incorrectly maintains that the October 11, 2011 Order reflects "the Court's intent to allow limited discovery of information related to Houck's involvement in the development of the scope of work on the project and any decision to proceed with the work, rather than the prices ultimately charged by Houck to WTUTremco." See Houck's Motion for Clarification, Paragraph 3. Houck goes on to reargue their unfounded position that pricing has nothing to do with the issues in this case: "Plaintiffs cannot demonstrate that the production of confidential pricing information is relevant or reasonably calculated to lead to the discovery of admissible evidence." Id. at Paragraph 12. Plaintiffs direct the Court to Plaintiffs' previously filed Memorandum of Points and Authorities, Paragraph C, as well as oral argument before this Court, wherein Plaintiffs set forth the information obtained through discovery to date that dispels Houck's argument (both in prior briefs and again here on re-argument) with regard to pricing. The information garnered by NO. 09-4183 CIVIL TFRM Plaintiffs through other discovery clearly reveals that school districts are not charged a "fixed price" for roofing work through the AEPA/PAEJPC bidding system and that the prices are subject to change at the whim of Tremco/WTI and its subcontractors if a school district (or its board) complains about the pricing. Consequently, Plaintiffs are entitled to discover the facts, figures and details that went into the contract submitted to CVSD, including Houck's bid calculations to Tremco/WTI. Plaintiffs have consistently set forth this position and this Court has ruled it discoverable in its October 11, 2011 Order. Houck's attempts to redact pricing information is contrary to this Court's Order and would negate Plaintiffs' ability to obtain this relevant information and severely prejudice Plaintiffs' ability to pursue their claims. Not only is the information sought to be discovered by Plaintiffs extremely relevant to the issues presented in this lawsuit, redaction of this information is not a reasonable solution to Houck's claims that the pricing information constitutes trade secrets. The prejudice of allowing Houck to redact pricing information significantly outweighs any protections afforded to Houck. It should be noted that Plaintiffs' employer, Carlisle Construction Materials, Inc., is a manufacturer of roofing component materials, not a roofer like Houck. As such, it is questionable whether Plaintiffs or Carlisle could benefit from the production of this "secret" information beyond this case. Nevertheless, Plaintiffs have consistently maintained throughout argument on this issue that they are more than willing to enter into any confidentiality order required to protect Houck's alleged trade secret information. The fact that Houck seeks absolute preclusion rather than a confidentiality agreement or protective order demonstrates Houck's lack of genuineness in claiming to protect trade secrets. As set forth above, Houck simply does not want to produce relevant and discoverable pricing information because it is detrimental to Houck and Tremco/WTI and benefits Plaintiffs' position in this case. 3 NO. 09-4183 CIVIL TERM WHEREFORE, Plaintiffs respectfully request Houck Services Inc.'s Motion for Reconsideration be denied and that Houck be required to fully comply with this Court's October 11, 2011 Order without redacting pricing information. Respectfully submitted, DICKIE, Mc AMEY & ILCOTE, P.C. '2A By: red ick W. Bode, III, Esquire Pa. I.D. # 33391 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 4 NO. 09-4183 CIVIL TERM CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Response to Houck Services, Inc.'s Motion to Clarification has been served on this 1 9 4- day of November, 2011, by U. S. first-class mail, postage prepaid, to following counsel of record: Timothy J. Wolford, Esquire Ciara C. Young, Esquire Wolford Law, P.C. Wheatland Place 941 Wheatland Avenue, Suite 402 Lancaster, PA 17603 (Counsel for Houck Services) Anthony F. Adrisano, Esquire Marshall, Dennehy, Warner, Coleman, & Goggins 42 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael I. Levin, Esquire Gillman & Levin, P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntington Valley, PA 19006 DICKIE, McCAMEY & CHILCOTE, P.C. B y: Dougl M. Grimsley, E quire Counsel for Plaintiffs, Michael J. DuCharme and Nicholas J. Shears MICHAEL J. DUCHARME and IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW CUMBERLAND VALLEY : SCHOOL DISTRICT, Defendant V. : PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Defendant NO. 09-4183 CIVIL TERM IN RE: HOUCK SERVICES, INC.'S MOTION FOR CLARIFICATION OF THE COURT'S OCTOBER 11, 2011 ORDER ORDER OF COURT AND NOW, this 21St day of November, 2011, upon consideration of Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011, Order, a Rule is hereby issued upon all interested parties to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. J rnw -C 5;c= © c BY THE COURT, Frederick W. Bode, III, Esq. Douglas M. Grimsley, Esq. Michael P. Flynn, Esq. Dickie, McCamey & Chilcote, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Attorneys for Plaintiffs Sharon M. O'Donnell, Esq. 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney Defendant Cumberland Valley School District p/ Michael I. Levin, Esq. :Paul J. Cianci, Esq. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Pennsylvania :Education Joint Purchasing Council ,l Timothy J. Woolford, Esq. Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 ?Opie-s; µa'jcj 11101 ff OKA Lancaster, PA 17603 Attorney for Houck Services, Inc. MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs V. CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 09-4183 CIVIL TERM IN RE: HOUCK SERVICES, INC.'S MOTION FOR CLARIFICATION OF THE COURT'S OCTOBER 11, 2011 ORDER ORDER OF COURT AND NOW, this 27`x' day of December, 2011, upon consideration of Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011 Order, and of Plaintiff's Response to Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011 Order, the motion is denied. J. Frederick W. Bode, III, Esq. Douglas M. Grimsley, Esq. ?Michael P. Flynn, Esq. Dickie, McCamey & Chilcote, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Attorneys for Plaintiffs BY THE COURT, P1 Cc M cn ? A rJ 03 ? ? -% ,a - > r? N Cat Z v? ?Sharon M. O'Donnell, Esq. 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney Defendant Cumberland Valley School District ,/Michael I. Levin, Esq. ?Paul J. Cianci, Esq. 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 Attorney for Pennsylvania Education Joint Purchasing Council ? Timothy J. Woolford, Esq. Ciara C. Young, Esq. Wheatland Place 941 Wheatland Avenue Suite 402 Lancaster, PA 17603 Attorney for Houck Services, Inc. ?ppe, Madea' I?la?%i ply 1109335.doc 1(` . "arnev Michael P. Flynn Direct Dial: 412-392-5492 Attorney-at-Law Direct Fax: 412-392-5367 Admitted in PA mflynn@dmclaw.com December 1, 2011 VIA FACSIMILE - 717-240-6462 and FIRST CLASS MAIL The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle PA 17013 RE: Michael J. Ducharme and Nicholas J. Shears v. Cumberland Valley School District v. Pennsylvania Education Joint Purchasing Council Our File No.: 0003939.0322793 Dear Judge Oler: Please allow this correspondence to follow up my conversation yesterday with your clerk, Ruth, in which she confirmed that Plaintiffs' Response to Houck Services, Inc.'s Motion for Clarification of the Court's October 11, 2011 Order, which was filed with the Cumberland County Prothonotary on or about November 21, 2011, will serve as Plaintiffs' Response to your November 21, 2011 Rule to Show Cause Why Relief Should not be Granted. Accordingly, and unless the Court directs otherwise, Plaintiffs are not required to file an additional response to the November 21, 2011 Order of Court. Thank you for your kind consideration in this regard. I am available to discuss any further concerns or questions at your convenience. Very truly yours, Michael P. Flynn MPF/cel cc: Timothy J. Woolford, Esquire Anthony F. Adrisano, Jr. Esquire Michael I. Levine, Esquire `10'x'\ ©`j DICKIE, MdAMEY & CHILCOTE, P.C. I ATTORNEYS AT LAW Charlotte, NC Columbus, OH I Haddonfield, N) Harrisburg, PA MAIN: 412-281-1212 FAX: 412-392 ;361 Philadelphia, PA Pittsburgh, PA Raleigh, NC Steubenville, OH TWO PPG PLACE, SUITE 400 1 PITTSBAGH, PA 15222-5402 1 WWW.DMCIAW.COM Washington, D.C. Wheeling, WV Wilmington, DF NO. 09-4183 CIVIL TERM 'EIiSYL?'?11A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, Plaintiffs, V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, CIVIL ACTION NO. 09-4183 CIVIL TERM PRAECIPE TO SETTLE, DISCONTINUE AND END Code: Defendant, Filed on behalf of Plaintiffs, MICHAEL J. DUCHARME AND V. NICHOLAS J. SHEARS PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. Counsel of record for this party: Frederick W. Bode, III, Esquire PA I.D.# 33391 Douglas M. Grimsley, Esquire PA I.D.# 92948 Michael P. Flynn, Esquire PA I.D. # 206150 DICKIE, McCAMEY & CHILCOTE, P.C. Firm #067 Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL J. DUCHARME and NICHOLAS J. SHEARS, CIVIL ACTION NO. 09-4183 CIVIL TERM Plaintiffs, V. THE CUMBERLAND VALLEY SCHOOL DISTRICT, Defendant, V. PENNSYLVANIA EDUCATION JOINT PURCHASING COUNCIL, Additional Defendant. PRAECIPE TO SETTLE. DISCONTINUE AND END TO: Prothonotary, Court of Common Pleas of Cumberland County, Pennsylvania Kindly mark the docket in the above-captioned matter settled, discontinued and ended as to all Defendants and Additional Defendants. We hereby certify that we have the consent of all parties. [SIGNATURES ON FOLLOWING PAGE] NO. 09-4183 CIVIL TERM Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C. By: Fre rick W. Bo al, III, Esq ire Pa. I.D. # 33391 Douglas M. Grimsley, Esquire Pa. I.D. # 92948 Two PPG Place, Suite 400 Pittsburgh, PA 15222 (412) 281-7272 MARSHALL, DENNEHEY, WARNER, COLEMAN AND GOGGIN By:'?? J aoz? I W Sharon M. O'Donnell, Esq. Pa. I.D. #79457 4200 Crums Mill Road, Harrisburg, PA 17112 (717) 651-3503 2 NO. 09-4183 CIVIL TERM CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to Settle, Discontinue and End has been served on this :L41 day of June, 2012, by U. S. first-class mail, postage prepaid, to following counsel of record: Sharon M. O'Donnell, Esquire Marshall, Dennehy, Warner, Coleman, & Goggin 42 Crums Mill Road, Suite B Harrisburg, PA 17112 Michael I. Levin, Esquire Paul J. Cianci, Esquire Levin Legal Group P.C. 1301 Masons Mill Business Park 1800 Byberry Road Huntington Valley, PA 19006 DICKIE, MCCAMEY & CEE LCOTE, P.C. By: Otja6n;? - D las M. Gri sley, E uire Counsel for Plaintiffs, Michael J. DuChanne and Nicholas J. Shears