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Home My WebLink About09-4512Uj ROBIN MARZELLA PA ID NO. 66856 R. J. Marzella & Associates, P.C. Attorneys & Counselors At Law 3 513 North Front Street Harrisburg, PA 17110 (717) 234-7828 (717) 234-6883(fax) Email: rarzella@rimarzella.com REGINA D. POSERINA, ESQUIRE PA ID NO. 66486 7415 West Chester Pike Upper Darby, PA 19082 (610) 352-0760 (610) 352-5557 (fax) Email: rposerina04yerizon.net ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF CUMBERLAND GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON, MORRISON AND SONS TRANSPORTATION, INC. Plaintiffs; CAPITAL AREA INTERMEDIATE UNIT; GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.; SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND BRUBAKER; PHILLIP STEINHOUR; THE BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT: JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLE HAIRSTON-GREEN; ANNIE GUENIN; SUSAN KOMLENIC; MARK D. ROTHERMAL;' JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. CIVIL ACTION NO. P J- 46Q Z : JURY TRIAL :REQUESTED COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; HOWARD DOUGHERTY; JEAN RICE; RICHARD FRY; STEVEN DART; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen : Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster, representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic, representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative; NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative; SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative; SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; and UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative;: WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; and WEST PERRY SCHOOL : DISTRICT, Jean Rice, representative; Defendants 2 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue Writ of Summons in the above-captioned action. 2 Writ of Summons shall be issued and forwarded to ( x ) Attorney () Sheriff % Robin T Marzella, Esquire 3513 North Front Street Si at a of Attorney Harrisburg, PA 17110 (717) 234-7828 Supreme Court ID No. 66856 Regina D. Poserina, Esquire Date: I ?Q 7415 West Chester Pike Upper Darby, PA 19082 Supreme Court ID No. 66486 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothonotary Date: -7/1L4 by Deputy ( ) Check here if reverse is used for additional information. 3 Euu7 +t'? " t Alii I {? iy 7' t fy C# ?1 ??1? 73 ROBIN MARZELLA PAID NO. 66856 R. J. Marzella & Associates, P.C. Attorneys & Counselors At Law 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 (717) 234-6883(fax) Email: rmarzella(@dmarzella.com REGINA D. POSERINA, ESQUIRE PA ID NO. 66486 7415 West Chester Pike Upper Darby, PA 19082 (610) 352-0760 (610) 352-5557 (fax) Email: rposerina(a?verizon.net ATTORNEYS FOR PLAINTIFFS IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF CUMBERLAND GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON, MORRISON AND SONS TRANSPORTATION, INC. Plaintiffs; CAPITAL AREA INTERMEDIATE UNIT; GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.; SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND BRUBAKER; PHILLIP STEINHOUR; THE BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT: JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLE HAIRSTON-GREEN; ANNIE GUENIN; SUSAN KOMLENIC; MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. CIVIL ACTION NO._2009-4512_ JURY TRIAL REQUESTED COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; HOWARD DOUGHERTY; JEAN RICE; RICHARD FRY; STEVEN DART; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen : Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster, representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic, representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative; NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative; SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative; SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; and UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative;: WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; and WEST PERRY SCHOOL : DISTRICT, Jean Rice, representative; Defendants 2 PRAECIPE OF TRANSFER OF CASE PURSUANT TO 42 Pa.C.S. § 5103(b) TO: CURTIS R. LONG, PROTHONOTARY COURT OF COMMON PLEAS COUNTY OF CUMBERLAND 1 COURTHOUSE SQUARE, STE 100 CARLISLE, PA 17013 Pursuant to 42 Pa.C.S. § 5103(b), kindly transfer the above captioned matter from the United States District Court for the Middle District of Pennsylvania, to the Court of Common Pleas, Cumberland County. In support of this transfer, Plaintiffs attach as exhibits the following documents: Exhibit A: Certified Copy of the Order of the United States District Court, Middle District, dated June 11, 2009, dismissing the above captioned matter for want of jurisdiction. Exhibit B: Certified copy of the Complaint, Amended Complaint, and Docket in the United States District Court, Middle District of Pennsylvania, On July 7, 2009, Plaintiffs filed a Writ of Summons with this Court, and a docket was opened for this matter, at Civil Action No. 09-4512. Please file these documents in the same docket, in the Court of Common Pleas, Cumberland County. RESPECTFULLY SUBMITTED, REG?n D. POSERINA Attorney for Plaintiffs Gloria Lytle, Lytle Transportation, Roger Morrison, and July 17, 2009 Morrison and Sons Transportation 3 CERTIFICATE OF SERVICE I, Regina D. Poserina, attorney for the Plaintiffs, hereby certify that I caused to be served, via first class U.S. Mail, postage prepaid, the Notice of Transfer of Case, pursuant to 42 Pa.C.S. §5103, upon the following: Edwin A. Schwartz, Esquire Marshall, Dennehy 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 James E. Ellison, Esquire Stephanie DiVittore Dean Piermattei Rhoads & Sinon LLP P.O. Box 1146 Harrisburg, PA 17108-1146 Kenneth M. French, Esquire Hartman, Underhill, and Brubaker 221 East Chestnut Street Lancaster, PA 17602 RE A POSERINA Date: July 17, 2009 _?. 4 RLED-ORICE OF THE F ,,F ic`N'OT, Y 2009 jUL 23 PH 4, 15 AO 450 (Rev. 5/85) Judgment in a Civil Case United States District Court MIDDLE DISTRICT OF PENNSYLVANIA JUDGMENT IN A CIVIL CASE Gloria Lytle; Lytle Transportation; Roger Morrison; Morrison & Sons Transportation, Inc. Plaintiffs V. Capital Area Intermediate Unit; Glenn Zehner, Ph.D;. Mark Bauer, Ph.D.; Scott Downey; The Estate of George Brubaker; Hartman, Underhill & Brubaker; Phillip Steinhour; Board of Directors of the Capital Area Intermediate Unit; Jill Williamson; Arland Wagonhurst; Michael Mausner; Karen Christie; Bonnie Goble; Angela McMaster; Sheri T. Mater; Gary Shade; Danielle Hairston-Green; Annie Guenin; Susan Komlenic; Mark D. Rothermal; Joy McCreary; Dr. William Gould; Brian R. Cooper; Linda T. Butler; Dr. John Forney; Howard Dougherty; Jean Rice; Richard Fry; Steven Dart; Camp Hill School District; Carlisle School District; Central Dauphin School District; Cumberland Valley School District; Derry Township School District; East Pennsboro School District; Greenwood School District; Halifax Area School District; Harrisburg Area School District; Lower Dauphin School District; Mechanicsburg Area School District; Millersburg Area School District; Newport School District; Northern York School District; Shippensburg Area School District; Steelton-Highspire School District; Susquenita School District; Susquehanna Township School District; Upper Dauphin School District; West Shore School District; West Perry School District, Defendants Case No: :05-CV-01 33 Judge Sylvia H. Rambo Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. X Decision by Court. This action came to trial or hearing before the court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that summary judgment be and is hereby entered in favor of the, defendants, Capital Area Intermediate Unit; Glenn Zehner, Ph.D; Mark Bauer, Ph.D.; Scott Downey; The Estate of George Brubaker; Hartman, Underhill & Brubaker; Phillip Steinhour; Board of Directors of the Capital Area Intermediate Unit; Jill Williamson; Arland Wagonhurst; Michael Mausner; Karen Christie; Bonnie Goble; Angela McMaster; Sheri T. Mater; Gary Shade; Danielle Hairston-Green; Annie Guenin; Susan Komlenic; Mark D. Rothermal; Joy McCreary; Dr. William Gould; Brian R. Cooper; Linda T. Butler; Dr. John Forney; Howard Dougherty; Jean Rice; Richard Fry; Steven Dart; Camp Hill School District; Carlisle School District; Central Dauphin School District; Cumberland Valley School District; Derry Township School District; East Pennsboro School District; Greenwood School District; Halifax Area School District; Harrisburg Area School District; Lower Dauphin School District; Mechanicsburg Area School District; Millersburg Area School District; Newport School District; Northern York School District; Shippensburg Area School District; Steelton-Highspire School District; Susquenita School District; Susquehanna Township School District; Upper Dauphin School District; West Shore School District; West Perry School District and against the plaintiffs, Gloria Lytle and Roger Morrison solely on the issue of whether plaintiffs Lytle and Morrison were employees or independent contractors of defendant Capital Area Intermediate Unit. Date: June 11, 2009 Mary E. D'Andrea, Clerk of Court /s/ Mark J. Armbruster Deputy Clerk cerad FILED-Cl r~ICE OF THE FP, 1" s(` 9'-)TARY 2009 JUL 23 Ply ?-* 15 A's A V ATYADM, CLOSED, HBG United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:05-cv-00133-SHR Internal Use Only United States of America et al v. Capital Area Intermediate Unit Date Filed: 01/19/2005 et al Date Terminated: 06/11/2009 Assigned to: Honorable Sylvia H. Rambo Jury Demand: Both Cause: 31:3729 False Claims Act Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Plaintiff Plaintiff United States of America ex rel. Cpl #rwn Date po Plaintiff Gloria Lytle Plaintiff Roger Morrison Plaintiff Lytle Transportation Plaintiff Morrison and Sons Transportation, Inc. P_lainfiff Gloria Lytle represented by Stephen R. Cerutti , H United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717-221-4482 Fax:717-221-2246 Email: Stenhen.Ceruttin)usdoj,gov LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Regina D. Poserina Regina D. Poserina, Attorney at Law 7415 West Chester Pike Upper Darby, PA 19082 610-352-0760 Email: rposerina .verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED J Lytle Transportation represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff Roger Morrison represented by Regina D. Poserina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff Morrison and Sons Transportation, represented by Regina D. Poserina Inc. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Capital Area Intermediate Unit represented by Dean F. Piermattei Rhoads &Sinon P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Fax:17172316637 Email: dniermattei xhoads-sinon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison Rhoads &Sinon LLP One S. Market Square Harrisburg, PA 17101 717-237-6743 Fax:17172316637 Email: iellison cni.rhoads-sinon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore Rhoads &Sinon LLP One South Market Square 12th Floor Harrisburg, PA 17101 717-233-5731 Email: sdivittoreaa.rhoads-sinon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Glenn Zehner, Ph.D. represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore r' (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Mark Bauer, Ph.D. represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Scott Downey represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Deanna Rose represented by James Edward Ellison TERMINATED: 1210312007 (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Lorin Stough represented by James Edward Ellison TERMINATED: 1210312007 (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Stough Transportation represented by James Edward Ellison TERMINATED: 1210312007 (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant George Brubaker TERMINATED: 1210312007 represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edwin A.D. Schwartz Marshall Dennehey Warner Colman &Goggin 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3700 Fax: 717-651-9630 Email: easchwartzOmdwcg.com ATTORNEY TO BE NOTICED Defendant The Estate of George Brubaker represented by Edwin A.D. Schwartz (See above for address) ATTORNEY TO BE NOTICED Kevin M. French Hartman, Underhill &Brubaker LLP 221 East Chestnut St. Lancaster, PA 17602 717-299-7254 Email: kevinf .hublaw.com Defendant Hartman, Underhill and Brubaker represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Edwin A.D. Schwartz (See above for address) ATTORNEY TO BE NOTICED Kevin M. French (See above for address) ATTORNEY TO BE NOTICED Defendant Phillip Steinhour represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Board of Directors of the Capital Area represented by Dean F. Piermattei Intermediate Unit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Jill Williamson represented by Dean F. Piermattei In her individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Arland Wagonhurst represented by Dean F. Piermattei In his individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Michael Mausner represented by Dean F. Piermattei In his individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Karen Christie In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Bonnie Goble In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Angela McMaster In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Sheri T Mater In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Gary Shade In his individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Danielle Hairston-Green In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Annie Guenin In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Susan Komlenic In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Mark D Rothermal In his individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Joy McCreary In her individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Dr. William Gould In his individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Brian R Cooper In his individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Linda T Butler represented by Dean F. Piermattei In her individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Jr. John Forney represented by Dean F. Piermattei In his individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Howard Dougherty represented by Dean F. Piermattei In his individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Jean Rice represented by Dean F. Piermattei In her individual capacity (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Richard Fry In his individual capacity represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Steven Dart represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Camp Hill School District Jill Williamson, representative represented by Dean F. Piermattei (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Carlisle School District represented by Dean F. Piermattei Arland Wagonhurst, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Central Dauphin School District represented by Dean F. Piermattei Michael Mausner, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Cumberland Valley School District represented by Dean F. Piermattei Karen Christie, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Derry Township School District represented by Dean F. Piermattei Bonnie Goble, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant East Pennsboro School District represented by Dean F. Piermattei Angela McMaster, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Greenwood School District represented by Dean F. Piermattei Sheri T. Matter, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Halifax Area School District represented by Dean F. Piermattei Gary Shade, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Harrisburg Area School District represented by Dean F. Piermattei Danielle Hairston-Green, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Lower Dauphin School District represented by Dean F. Piermattei Ann Guenin, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Mechanicsburg Area School District represented by Dean F. Piermattei Susan Komlenic, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Millersburg Area School District represented by Dean F. Piermattei Mark D. Rothermal, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Newport School District represented by Dean F. Piermattei Kermit Harry, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Northern York School District represented by Dean F. Piermattei Joy McCreary, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Shippensburg Area School District represented by Dean F. Piermattei Dr. William Gould, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Steelton-Highspire School District represented by Dean F. Piermattei Brian R. Cooper, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Susquenita School District represented by Dean F. Piermattei Donna Lee Clendenin, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Susquehanna Township School District represented by Dean F. Piermattei Linda T. Butler, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant Upper Dauphin School District represented by Dean F. Piermattei John R. Forney, Jr., representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant West Shore School District represented by Dean F. Piermattei Howard Dougherty, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Defendant West Perry School District represented by Dean F. Piermattei Jean Rice, representative (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED James Edward Ellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Stephanie E. DiVittore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text 01/19/2005 1 COMPLAINT - N/C to cnsl.; jury trial demanded. (Filing fee $150, Receipt Number 333 100019) (Attachments: #1 Civil Cover Sheet)(jc) (Entered: 01/19/2005) 10/22/2007 2Q NOTICE OF ELECTION to decline intervention by plaintiff United States of America and c of s. (Attachments: #1 Proposed Order)(jc) (Entered: 10/23/2007) 10/23/2007 ORDER approving the NoticeZ filed by United States of America. 1. The complaint to be unsealed and served upon the dfts by the relator. 2. All other contents of the court's file in this action ramian under seal and not be made public or served upon the dft, except for this order and the gvt's notice of election to decline intervention, which the relator will serve upon the dfts only after service of the complaint; 3. The seal be lifted as to all other matters occurring in this action after the date of this order. 4. The parties shall serve all pleading and motions filed in this action, including supporting memoranda, upon the US, as provided for in 31 USC 3730(c)(3). 5. All orders of this court shall be sent to the US, and that 6. Should the relator or the dits propose that this action be dismissed, settled, or otherwise discontinued, the court will solicit the written consent of the US before ruling or grantin its approval.Signed by Judge Sylvia H. Rambo on 10/23/07. (ma, ) (Entered: 10/23/2007) 10/23/2007 (Court only) ***Documents Unsealed. Complaint-1, Notice2Q and Order21 unsealed. (ma, ) (Entered: 10/23/2007) 10/24/2007 (Court only) ***Case Unsealed 0c ) (Entered: 10/24/2007) 10/24/2007 Summons Issued as to all defendants and provided to Attorney with top page of complaint and service package for service on Defendant(s). (ma, ) (Entered: 10/24/2007) 11/30/2007 22 MOTION to Amend/Correct The Complaint by Gloria Lytle. (Attachments: #1 Exhibit(s) Redlined Original Complaint#2 Exhibit(s) Proposed First Amended Complaint#1 Proposed Order Proposed Order, Motion to Amend Complaint)(Poserina, Regina) (Entered: 11/30/2007) 12/03/2007 COUNSEL is advised that document 22 filed 11/30/07 is to be refiled. The proposed order is to be attached to the motion. The brief in support is to be docketed as a separate document using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES. (jc) (Entered: 12/03/2007) 12/03/2007 22 ORDER granting Motion to Amend complaintM. The amended complaitn attached to their motion is accepted for filing. Signed by Judge Sylvia H. Rambo on 12/03/07 (ma, ) (Entered: 12/03/2007) 12/03/2007 COUNSEL is advised to disregard the docket annotation informing them to refile their motion to amend/correct the complaint..22 (jc) (Entered: 12/03/2007) 12/03/2007 24 AMENDED COMPLAINT against The Estate of George Brubaker, Hartman, Underhill and Brubaker, Phillip Steinhour, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, MILLERSBURG AREA SCHOOL DISTRICT, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Scott Downey, Capital Area Intermediate Unit, Glenn Zehner, PhD, Mark Bauer, PhD, filed by Lytle Transportation, Morrison and Sons Transportation, Inc., Gloria Lytle, Roger Morrison. Jury Trial Demand(ma, ) (Entered: 12/03/2007) 12/03/2007 (Court only) *** Party Lorin Stough; Stough Transportation; George Brubaker and Deanna Rose terminated. (ma, ) (Entered: 12/03/2007) 12/03/2007 Summons Issued as to all defendants and provided to Attorney (via US Mail) with (1) copy of the amended complaint, (1) set of service documents and (50) copies of the summons for service on Defendant(s). (ma, ) (Entered: 12/03/2007) 01/28/2008 NOTICE of Appearance by James Edward Ellison on behalf of Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD (Ellison, James) (Entered: 01/28/2008) 01/28/2008 NOTICE of Appearance by Dean F. Pienmattei on behalf of Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Pent' School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD (Piermattei, Dean) (Entered: 01/28/2008) 01/28/2008 2Z NOTICE of Appearance by Stephanie E. DiVittore on behalf of Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD (DiVittore, Stephanie) (Entered: 01/28/2008) 01/28/2008 22 WAIVER OF SERVICE Returned by Gloria Lytle. Hartman, Underhill and Brubaker waiver sent on 12/7/2007, answer due 2/5/2008. (Attachments: #1 Exhibit(s) Attorney Signature)(Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 Document 28 (Entry of Appearance) deleted. Document was filed in the wrong case. Oc) (Entered: 01/28/2008) 01/28/2008 IQ NOTICE of Appearance by Edwin A.D. Schwartz on behalf of The Estate of George Brubaker, Hartman, Underhill and Brubaker (Schwartz, Edwin) (Entered: 01/28/2008) 01/28/2008 21 WAIVER OF SERVICE Returned by Gloria Lytle. The Estate of George Brubaker waiver sent on 1/2/2008, answer due 3/3/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 U WAIVER OF SERVICE Returned by Gloria Lytle. Upper Dauphin School District waiver sent on 12/7/2007, answer due 2/5/2008; West Shore School District waiver sent on 12/7/2007, answer due 2/5/2008; West Perry School District waiver sent on 12/7/2007, answer due 2/5/2008; Glenn Zehner, PhD waiver sent on 12/7/2007, answer due 2/5/2008; Jill Williamson waiver sent on 12/7/2007, answer due 2/5/2008; Arland Wagonhurst waiver sent on 12/7/2007, answer due 2/5/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 WAIVER OF SERVICE Returned by Gloria Lytle. Annie Guenin waiver sent on 12/712007, answer due 2/5/2008; William Gould waiver sent on 12/7/2007, answer due 2/5/2008; Brian R Cooper waiver sent on 12/7/2007, answer due 2/5/2008; Linda T Butler waiver sent on 12/7/2007, answer due 2/5/2008; John Forney waiver sent on 12/7/2007, answer due 2/5/2008; Howard Dougherty waiver sent on 12/7/2007, answer due 2/5/2008; Scott Downey waiver sent on 12/7/2007, answer due 2/5/2008; Richard Fry waiver sent on 12/7/2007, answer due 2/5/2008; Steven Dart waiver sent on 12/7/2007, answer due 2/5/2008; Camp Hill School District waiver sent on 12/7/2007, answer due 2/5/2008; Carlisle School District waiver sent on 12/7/2007, answer due 2/5/2008; Central Dauphin School District waiver sent on 12/7/2007, answer due 2/5/2008; Cumberland Valley School District waiver sent on 12/7/2007, answer due 2/5/2008; Derry Township School District waiver sent on 12/7/2007, answer due 2/5/2008; East Pennsboro School District waiver sent on 12/7/2007, answer due 2/5/2008; Greenwood School District waiver sent on 12/7/2007, answer due 2/5/2008; Halifax Area School District waiver sent on 12/7/2007, answer due 2/5/2008; Harrisburg Area School District waiver sent on 12/7/2007, answer due 2/5/2008; Capital Area Intermediate Unit waiver sent on 12/712007, answer due 2/5/2008; Board of Directors of the Capital Area Intermediate Unit waiver sent on 12/7/2007, answer due 2/5/2008; Karen Christie waiver sent on 12/7/2007, answer due 2/5/2008; Bonnie Goble waiver sent on 12/7/2007, answer due 2/5/2008; Danielle Hairston-Green waiver sent on 12/7/2007, answer due 2/5/2008; Mark Bauer, PhD waiver sent on 12/7/2007, answer due 2/5/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 WAIVER OF SERVICE Returned by Gloria Lytle. Susan Komlenic waiver sent on 12/7/2007, answer due 2/5/2008; Lower Dauphin School District waiver sent on 12/7/2007, answer due 2/5/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 WAIVER OF SERVICE Returned by Gloria Lytle. Joy McCreary waiver sent on 12/7/2007, answer due 2/5/2008; Mechanicsburg Area School District waiver sent on 12/7/2007, answer due 2/5/2008; Millersburg Area School District waiver sent on 12/7/2007, answer due 2/5/2008; Michael Mausner waiver sent on 12/7/2007, answer due 2/5/2008; Angela McMaster waiver sent on 12/7/2007, answer due 2/5/2008; Sheri T Mater waiver sent on 12/7/2007, answer due 2/5/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 ¢ WAIVER OF SERVICE Returned by Gloria Lytle. Mark D Rothermal waiver sent on 12/7/2007, answer due 2/5/2008; Jean Rice waiver sent on 12/7/2007, answer due 2/5/2008; Newport School District waiver sent on 12/712007, answer due 2/5/2008; Northern York School District waiver sent on 12/7/2007, answer due 2/5/2008; Shippensburg Area School District waiver sent on 12/7/2007, answer due 2/5/2008; Steelton-Highspire School District waiver sent on 12/7/2007, answer due 2/5/2008; Susquenita School District waiver sent on 12/7/2007, answer due 2/5/2008; Susquehanna Township School District waiver sent on 12/7/2007, answer due 2/5/2008; Phillip Steinhour waiver sent on 12/7/2007, answer due 2/5/2008; Gary Shade waiver sent on 12/7/2007, answer due 2/5/2008. (Poserina, Regina) (Entered: 01/28/2008) 01/28/2008 Consent MOTION for Extension of Time to File Answer rem Amended Complaint,,,,, by Gloria Lytle. (Attachments: #1 Proposed Order Proposed Order granting extension of time within which to reply to Amended Complaint)(Poserina, Regina) (Entered: 01/28/2008) 01/29/2008 U ORDER granting U Motion for Extension of Time to Answer. Dfts time within which to reply to the Pltfs Complaint is ext'd to 3/1/08.Signed by Honorable Sylvia H. Rambo on 1/29/08 (ma, ) (Entered: 01/29/2008) 02/14/2008 12 NOTICE of Hearing: A Case Management Conference has been set for 3/25/2008 @ 9:30 AM before Honorable Sylvia H. Rambo.This conference is by phone with the call to be initiated by the pltfs. A joint case mgmnt plan is to be file by 3/18/08. (ma, ) (Entered: 02/14/2008) 02/29/2008 4Q MOTION to Dismiss First Amended Complaint by George Brubaker, Hartman, Underhill and Brubaker. (Attachments: #1 Proposed Order)(Schwartz, Edwin) (Entered: 02/29/2008) 02/29/2008 41 BRIEF IN SUPPORT rea MOTION to Dismiss First Amended Complaint filed by George Brubaker, Hartman, Underhill and Brubaker. (Schwartz, Edwin) (Entered: 02/29/2008) 03/03/2008 42, MOTION to Dismiss Amended Complaint by Annie Gue Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Proposed Order, #2, Exhibit(s) Certificate of Non-Concurrence)(DiVittore, Stephanie) Modified on 3/20/2008 (am). (Entered: 03/03/2008) 03/19/2008 41 MOTION to Exceed Page Limitation by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Deny Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Proposed Order)(DiVittore, Stephanie) (Entered: 03/19/2008) 03/20/2008 44 CASE MANAGEMENT PLAN Joint by Gloria Lytle, Lytle Transportation. (Poserina, Regina) (Entered: 03/20/2008) 03/20/2008 45 ORDER - IT IS THEREFORE ORDERED THAT: 1. The mtn. to dismiss filed by the CAIU &School District defts. is deemed w/drawn pur. to MD LR 7.5. 2. Defts.' mtn. to exceed the pg. limitations is deemed as moot. 3. The CAIU &School District defts. shall file an answer to the complt. w/in 20 days of this order. Signed by Honorable Sylvia H. Rambo on 3/20/08.(am) (Entered: 03/20/2008) 03/20/2008 9f2 ORDER - IT IS HEREBY ORDERED THAT: 1. The order issued in this date in this cased deeming CAIU &School District defts.' mtn. to dismisses as w/drawn &dir. the filing of an answer w/in 20 days is STRICKEN &the mtn. to dismiss is reinstated. 2. The CAIU &School District defts.' mtn. to ext. the pg. lim. of their br. in sup. of their mtn. to dismiss is GRANTED._3 3. All counsel are adv. that the ddls. sug. by the MD of PA ECF system contains a disci. as to certain br(s) &counsel are adv. that the responsibility for determining the ddls. is placed on counsel. Signed by Honorable Sylvia H. Rambo on 3/20/08. (am) (Entered: 03/20/2008) 03/20/2008 (Court only) ***Motions terminated: MOTION to Exceed Page Limitation filed by Upper Dauphin School District, West Perry School District, Richard Fry, Derry Township School District, Lower Dauphin School District, Shippensburg Area School District, Steven Dart, William Gould, Sheri T Mater, Danielle Hairston-Green, Greenwood School District, Jill Williamson, Brian R Cooper, West Shore School District, Scott Downey, Carlisle School District, Northern York School District, Phillip Steinhour, Mark D Rothermal, Linda T Butler, Susan Komlenic, Joy McCreary, Board of Directors of the Capital Area Intermediate Unit, Halifax Area School District, East Pennsboro School District, Michael Mausner, Newport School District, Central Dauphin School District, Camp Hill School District, Harrisburg Area School District, Arland Wagonhurst, Jean Rice, Susquehanna Township School District, Capital Area Intermediate Unit, John Forney, Howard Dougherty, Angela McMaster, Mark Bauer, Ph.D., Cumberland Valley School District, Annie Guenin, Karen Christie, Glenn Zehner, Ph.D., Bonnie Goble, Millersburg Area School District, Mechanicsburg Area School District, Steelton-Highspire School District, Susquenita School District, Gary Shade. (am) (Entered: 03/20/2008) 03/20/2008 42 BRIEF IN SUPPORT rem MOTION to Dismiss Amended Complaint filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 03/20/2008) 03/20/2008 4$ BRIEF IN OPPOSITION re_4Q MOTION to Dismiss First Amended Complaint filed by Gloria Lytle, Lytle Transportation, Roger Morison, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order, #_Z Brief in Support Thereof)(Poserina, Regina) (Entered: 03/20/2008) 03/21/2008 42 REPLY BRIEF rea MOTION to Dismiss First Amended Complaint filed by The Estate of George Brubaker, Hartman, Underhill and Brubaker.(Schwartz, Edwin) (Entered: 03/21/2008) 03/25/2008 5Q (Court only) Minute Sheet from a Case Management Conference held on 3/25/2008. Attys Poserina, Piermattei, DiVittore and Schwartz participate. No cmo will issue. (ma, ) (Entered: 03/25/2008) 04/01/2008 51 BRIEF IN OPPOSITION rem MOTION to Dismiss Amended Complaint filed by Gloria Lytle, Lytle Transportation. (Attachments: #1 Proposed Order, #Z, Brief in Support of Response)(Poserina, Regina) (Entered: 04/01/2008) 04/15/2008 JZ REPLY BRIEF rem MOTION to Dismiss Amended Complaint filed by Annie Guenin, Susan Komlenic, Mark D Rothenmal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Upper Dauphin School District, West Shore School District, West Perry School District, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 04/15/2008) 07/14/2008 MEMORANDUM AND ORDER : 1) Disposition of the pending motions to dismiss are stayed.2) All case management deadlines are stayed.3) All Plaintiffs and the CAIU shall engage in discovery regarding thequestion of whether Gloria Lytle and Roger Morrison were employees of the CAIUor were independent contractors. Discovery on this issue shall conclude no laterthan August 25, 2008.4) Upon close of discovery, and no later than September 8, 2008,Plaintiffs Lytle and Morrison and the CAIU are permitted, if they choose, to filemotions for summary judgment and supporting briefs on the single question of theemployment status of Lytle and Morrison. They shall abide by all Federal Rules ofCivil Procedure and the Local Rules of the Middle District of Pennsylvania in sofiling. The briefing schedule after the initial motion shall follow the timeprescription set forth in the Local Rules.45) Should the parties elect not to file the dispositive motion set forthabove, or upon disposition of any motion filed, this court will evaluate the remainingclaims in the pending motions to dismiss and issue a new case management order.Signed by Honorable Sylvia H. Rambo on 7/14/08. (ma, ) (Entered: 07/14/2008) 07/15/2008 54 Joint MOTION for Extension of Time to Time For Discovery And Motion Filing Regarding Order Of July 14, 2008 by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 07/15/2008) 07/16/2008 51 ORDER granting Motion to Extend Timed : 1) Discovery regarding the question of whether Gloria Lytle and RogerMorrison were employees of the CAIU or were independent contractors shallconclude no later than September 2, 2008.2) Motions for summary judgment and supporting briefs on the singlequestion of the employment status of Lytle and Morrison shall be filed no later thanSeptember 22, 2008.3) All other provisions of the July 14, 2008 order remain in effect. Signed by Honorable Sylvia H. Rambo on 7/16/08 (ma, ) (Entered: 07/16/2008) 08/29/2008 Joint MOTION for Extension of Time to Complete Discovery by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 08/29/2008) 09/02/2008 ORDER: 1. This Courts Order of July 16, 2008,U , is amended as follows:A. The discovery deadline, contained at Page 3, paragraph 3, is amendedto reflect a discovery deadline of October 2, 2008.13. The Motion deadline, contained at Page 3, paragraph 4, is amended toreflect a deadline for the submission of Motions of October 22, 2008. Signed by Honorable Sylvia H. Rambo on 9/2/08. (ma, ) (Entered: 09/02/2008) 09/02/2008 COUNSEL IS ADVISED to file a Certificate of Service and a Certificate of Concurrence/Non-Concurrence to Doc. No. 56. (dc) (Entered: 09/02/2008) 09/02/2008 (Court only) ***Motions terminated: Joint MOTION for Extension of Time to Complete Discoveryj¢ per order of 9/2/08. (ma, ) (Entered: 03/26/2009) 09/11/2008 Docket Annotation - Pursuant to TC from Cnsl Documents # 58 and #59 - Withdraw of Atty Appearance and Notice of Appearance are deleted as unnecessary. (kjn ) (Entered: 09/11/2008) 09/12/2008 COUNSEL is advised that document 58 (Motion) filed 9/11/08 is to be refiled using the event CERTIFICATE located under OTHER DOCUMENTS. Oc) (Entered: 09/12/2008) 09/18/2008 CERTIFICATE of Certificate of Service, Notice of Consent by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc. rem, Joint MOTION for Extension of Time to Complete Discovery. (Poserina, Regina) (Entered: 09/18/2008) 09/26/2008 Document 58 filed 9/11/08 deleted and replaced by document 59 filed 9/18/08.Oc) (Entered: 09/26/2008) 10/20/2008 ¢Q Unopposed MOTION to Exceed Page Limitation by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Proposed Order)(DiVittore, Stephanie) (Entered: 10/20/2008) 10/20/2008 kj ORDER granting Capital Area Intermediate Unit and School District Defendants Motion for Leave to File Excess Pages&Q. Said Defendants may file a Brief in support of their Motion for Summary Judgment not to exceed forty (40) pages. Signed by Honorable Sylvia H. Rambo on 10/20/08 (ma, ) (Entered: 10/20/2008) 10/22/2008 MOTION to Dismiss (Renewed) by The Estate of George Brubaker and Hartman, Underhill and Brubaker. (Attachments: #1 Proposed Order)(Schwartz, Edwin) Modified on 11/13/2008 Oc). (Entered: 10/22/2008) 10/22/2008 BRIEF IN SUPPORT re-, MOTION to Dismiss (Renewed) filed by George Brubaker, The Estate of George Brubaker, Hartman, Underhill and Brubaker.(Schwartz, Edwin) (Entered: 10/22/2008) 10/22/2008 MOTION for Summary Judgment by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Proposed Order)(DiVittore, Stephanie) (Entered: 10/22/2008) 10/22/2008 b. STATEMENT OF FACTS rem MOTION for Summary Judgment filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Peary School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Exhibit(s), #,Z Exhibit(s), #1 Exhibit(s), #1 Exhibit(s), #-, Exhibit(s), #-fi Exhibit(s))(DiVittore, Stephanie) (Entered: 10/22/2008) 10/22/2008 BRIEF IN SUPPORT re,§4 MOTION for Summary Judgment filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 10/22/2008) 10/22/2008 2 MOTION for Summary Judgment by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 10/22/2008) 10/23/2008 COUNSEL is advised that Document 62 filed 10/22/08 does not contain a Certificate of Concurrence or Nonconcurrence. Please docket using the event CERTIFICATE located under OTHER DOCUMENTS. Oc) (Entered: 10/23/2008) 10/23/2008 ?$ CERTIFICATE of Concurrence/Non-Concurrence by The Estate of George Brubaker, Hartman, Underhill and Brubaker re a MOTION to Dismiss (Renewed). (Schwartz, Edwin) (Entered: 10/23/2008) 10/23/2008 !EQ ORDER: Pltfs supporting documentation in support of their motion for summary judgments shall be filed no later than October 31, 2008. Signed by Honorable Sylvia H. Rambo on 10/23/08. (ma, ) (Entered: 10/23/2008) 10/29/2008 ZQ, MOTION to Exceed Page Limitation by Gloria Lytle, Roger Morrison. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 10/29/2008) 10/29/2008 11 ORDER granting pltfs' mtn for Leave to File Excess Pages-M . Pltfs BrSup of their Mtn for Summary Judgment, may be no more than (40) pages.Signed by Honorable Sylvia H. Rambo on 10/29/08 (ma, ) (Additional attachment(s) added on 10/29/2008: #1 Main Document) (ma, ). (Entered: 10/29/2008) 10/31/2008 71 MOTION for Summary Judgment Errata Sheet by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc..(Poserina, Regina) (Entered: 10/31/2008) 11/03/2008 COUNSEL is advised that Documents 72 and 73 filed 10/31/08 are to be redocketed. Document 72 is to be redocketed using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES. The STATEMENT OF UNDISPUTED FACTS that WAS contained in the brief in support is to be docketed as a separate document using the event STATEMENT OF FACTS located under OTHER ANSWERS/RESPONSE TO HABEAS PETITION. Document 73 filed 10/31/08 is to be redocketed using the event DOCUMENT FILED located under OTHER DOCUMENTS. Oc) (Entered: 11/03/2008) 11/03/2008 BRIEF IN SUPPORT re-E MOTION for Summary Judgment, Errata Sheet filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Exhibit(s) Exhibit 2, #Z, Exhibit(s) A and B, #Z Exhibit(s) E, F and G, #-4 Exhibit(s) H and 1, #,1 Exhibit(s) J through P, #1 Exhibit(s) Q through W, #Z Exhibit(s) X through EE, #-a Exhibit(s) FF and GG, #S Errata regarding Exhibit 3)(Poserina, Regina) Modified on 11/4/2008 Oc, ). (Entered: 11/03/2008) 11/03/2008 21 STATEMENT OF FACTS re14 Brief in Support„ by Roger Morrison, Gloria Lytle, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Poserina, Regina) Modified on 11/4/2008 ac, ). (Entered: 11/03/2008) 11/04/2008 Document 72 filed 10/31/08 deleted and replaced by Documents 74 &75 filed 11/3/08.Oc) (Entered: 11/04/2008) 11/05/2008 7fi EXHIBIT 3 by plaintiffs to their-7A Brief in Support of their mtn for S/J. (Attachments: #1 Part 2, #,Z Part 3, #1 Part 4)6c) (Entered: 11/05/2008) 11/05/2008 77 BRIEF IN OPPOSITION rem MOTION for Summary Judgment filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc..(Poserina, Regina) (Entered: 11/05/2008) 11/05/2008 7$ RESPONSE by Gloria Lytle, Lytle Transportation, Roger Morrison, Morrison and Sons Transportation, Inc. to,H MOTION for Summary Judgment, 77 Brief in Opposition. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 11/05/2008) 11/05/2008 ZQ ANSWER TO STATEMENT OF FACTS re= Brief in Opposition, Statement of Facts,,,,, filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Exhibit(s) Lylte Response Exhibits A through D)(Poserina, Regina) (Entered: 11/05/2008) 11/05/2008 $Q RESPONSE by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc. tom MOTION to Dismiss (Renewed). (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 11/05/2008) 11/05/2008 $1 BRIEF IN OPPOSITION re_U MOTION to Dismiss (Renewed) filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc..(Poserina, Regina) (Entered: 11/05/2008) 11/12/2008 $? Praecipe to Withdraw Documents 62 and 63. (Schwartz, Edwin) (Entered: 11/12/2008) 11/12/2008 (Court only) ***Deadlines terminated. Oc) (Entered: 11/13/2008) 11/21/2008 MOTION to Strike the Affidavits of Gloria Lytle &Roger Morrison by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Exhibit(s), #2, Proposed Order)(DiVittore, Stephanie) (Entered: 11/21/2008) 11/21/2008 $?} BRIEF IN SUPPORT re_U MOTION to Strike the Affidavits of Gloria Lytle &Roger Morrison filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 11/21/2008) 11/21/2008 $? BRIEF IN OPPOSITION re_U MOTION for Summary Judgment of Plaintiffs' filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(Ellison, James) (Entered: 11/21/2008) 11/21/2008 $? CAIU &School District Defendants' Counter Statement of Facts. (Attachments: #1 Exhibit(s) Exhibit A, #.2 Exhibit(s) Exhibit B)(Ellison, James) (Entered: 11/21/2008) 11/23/2008 $Z REPLY BRIEF re&A MOTION for Summary Judgment filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 11/23/2008) 12/02/2008 $$ REPLY BRIEF rem MOTION for Summary Judgment filed by Lytle Transportation, Roger Morrison, Gloria Lytle, Morrison and Sons Transportation, Inc..(Poserina, Regina) (Entered: 12/02/2008) 12/06/2008 $Q BRIEF IN OPPOSITION re$U MOTION to Strike the Affidavits of Gloria Lytle &Roger Morrison filed by Roger Morrison, Gloria Lytle, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order, # 2 Exhibit(s))(Poserina, Regina) (Entered: 12/06/2008) 12/22/2008 22 REPLY BRIEF re$U MOTION to Strike the Affidavits of Gloria Lytle &Roger Morrison filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD.(DiVittore, Stephanie) (Entered: 12/22/2008) 12/22/2008 21 MOTION for Sanctions Under Rule 11(c) and Rule 37 (c) by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 12/22/2008) 12/22/2008 22 BRIEF IN SUPPORT re-U MOTION for Sanctions Under Rule 11(c) and Rule 37 (c) filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Exhibit(s), #2, Exhibit(s), #.I Exhibit(s), #_4 Exhibit(s), #-I Exhibit(s))(Poserina, Regina) (Entered: 12/22/2008) 12/23/2008 COUNSEL is advised to file a Certificate of Conconcurrence or Nonconcurrence to their Motion for Sanctions filed 12/22/081 using the event CERTIFICATE located under OTHER DOCUMENTS. Oc) (Entered: 12/23/2008) 12/29/2008 21 CERTIFICATE of Nonconcurrence by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc. re_, Brief in Supportjj MOTION for Sanctions Under Rule 11( c) and Rule 37 ( c). (Poserina, Regina) (Entered: 12/29/2008) 01/09/2009 94 MEMORANDUM AND ORDER denying Motion to Strike$U the affidavits of Goria Lytle and Roger Morrison. Signed by Honorable Sylvia H. Rambo on 1/9/09 (ma, ) (Entered: 01/09/2009) 01/09/2009 Q? BRIEF IN OPPOSITION re-1 MOTION for Sanctions Under Rule 11(c) and Rule 37 (c) filed by Annie Guenin, Susan Komlenic, Mark D Rothermal, Joy McCreary, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Jean Rice, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Deanna Rose, Harrisburg Area School District, Lower Dauphin School District, Mechanicsburg Area School District, Millersburg Area School District, Newport School District, Northern York School District, Shippensburg Area School District, Steelton-Highspire School District, Susquenita School District, Susquehanna Township School District, Lorin Stough, Upper Dauphin School District, West Shore School District, West Perry School District, Stough Transportation, Capital Area Intermediate Unit, Phillip Steinhour, Glenn Zehner, PhD, Board of Directors of the Capital Area Intermediate Unit, Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T Mater, Gary Shade, Danielle Hairston-Green, Mark Bauer, PhD. (Attachments: #1 Exhibit(s), #,2 Exhibit(s), #_I Exhibit(s), #_4 Exhibit(s), #1 Exhibit(s))(DiVittore, Stephanie) (Entered: 01/09/2009) 01/28/2009 2k REPLY BRIEF red j, MOTION for Sanctions Under Rule I I (c) and Rule 37 (c) filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Exhibit(s) Exhibit A)(Poserina, Regina) (Entered: 01/28/2009) 02/13/2009 22 MEMORANDUM AND ORDER denying pltfs Motion for Sanctions-U Signed by Honorable Sylvia H. Rambo on 2/13/09 (ma, ) (Entered: 02/13/2009) 03/17/2009 91 (Court only) MINUTE SHEET of discovery dispute held on 3/17/09 before Honorable Sylvia H. Rambo. Oc) (Entered: 03/18/2009) 03/19/2009 22 ORDER - As a result of a conference call held March 17, 2009, concerning a subpoena issued by Plaintiffs on Defendants in February 2009, IT IS HEREBY ORDERED THAT the subpoena is quashed except for the request for a copy of a letter and/or copy of a certificate of insurance (umbrella policy) allegedly issued by Enders Insurance Company, covering transportation contractors for Shippensburg School District.Signed by Honorable Sylvia H. Rambo on 3/18/09. (pw, ) (Entered: 03/19/2009) 03/25/2009 10 MOTION for Leave to File Supplemental Memorandum, and Document, by Roger Morrison, Gloria Lytle, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Supplement, #_Z Exhibit(s), #,a Proposed Order)(Poserina, Regina) (Entered: 03/25/2009) 03/27/2009 141 ORDER - Pltfs shall have until 4/8/09 to file a brsupp of their rant for leave to file after-discovered documentlQQ. Dfts shall respond in accordancewith the ddls set forth by the local rules.Signed by Honorable Sylvia H. Rambo on 3/27/09. (ma, ) (Entered: 03/27/2009) 04/08/2009 JU MEMORANDUM OF LAW by Roger Morrison, Gloria Lytle, Lytle Transportation, Morrison and Sons Transportation, Inc. re 10 MOTION for Leave to File Supplemental Memorandum, and Document, M Order, Set Motion and RRDealines/Hearings. (Attachments: #1 Exhibit(s))(Poserina, Regina) (Entered: 04/08/2009) 04/10/2009 Document 102 filed 4/6/09 deleted and replaced with Document 103 filed 4/8/09. Document 103 is to be REFILED using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES (BRIEFS). Oc) (Entered: 04/10/2009) 04/27/2009 144 BRIEF IN OPPOSITION rejM MOTION for Leave to File Supplemental Memorandum, and Document, filed by Annie Guenin, Susan Komlenic, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, George Brubaker, Capital Area Intermediate Unit, Hartman, Underhill and Brubaker, Board of Directors of the Capital Area Intermediate Unit, Karen Christie, Bonnie Goble, Danielle Hairston-Green, Mark Bauer, PhD.(Piermattei, Dean) (Entered: 04/27/2009) 04/28/2009 JU ORDER: 1) granting pltfs Motion for Leave to File later discovered document and supplemental memorandum of law LQQ . 2) No later than 5/13/09, Dft shall file an affidavit from Donald Enders to explain the coverage of this insurance certificate.3) The briefs and related documents filed in this after discovereddocument issue will be considered in addressing the pending motion for summaryjudgment.Signed by Honorable Sylvia H. Rambo on 4/28/09 (ma, ) (Entered: 04/28/2009) 05/13/2009 1Q¢ AFFIDAVIT re1QU Order on Motion for Leave to File, filed by Annie Guenin, Susan Komlenic, William Gould, Brian R Cooper, Linda T Butler, John Forney, Howard Dougherty, Scott Downey, Richard Fry, Steven Dart, Camp Hill School District, Carlisle School District, Central Dauphin School District, Cumberland Valley School District, Derry Township School District, East Pennsboro School District, Greenwood School District, Halifax Area School District, Harrisburg Area School District, Lower Dauphin School District, George Brubaker, Capital Area Intermediate Unit, Hartman, Underhill and Brubaker, Board of Directors of the Capital Area Intermediate Unit, Karen Christie, Bonnie Goble, Danielle Hairston-Green, Mark Bauer, PhD of Affiant Donald E. Enders, Jr.. (Piermattei, Dean) (Entered: 05/13/2009) 05/30/2009 JE MOTION to Strike14¢ Affidavit,,, of David Enders, by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Brief in support, #-Z Proposed Order, #1 Certificate of Service)(Poserina, Regina) (Entered: 05 /3 0/2009) 06/01/2009 COUNSEL is advised that the brief contained in Document 107 filed 5/30/09 is to be REDOCKETED as a separate document using the event BRIEF IN SUPPORT located under RESPONSES/REPLIES (BRIEFS). Oc) (Entered: 06/01/2009) 06/01/2009 JU BRIEF IN SUPPORT re142 MOTION to Strike_M Affidavit,,, of David Enders, MOTION to Strike14¢ Affidavit,,, of David Enders, filed by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc..(Poserina, Regina) (Entered: 06/01/2009) 06/11/2009 JQQ MEMORANDUM AND ORDER: (1) Dfts mtn for summary judgment (Doc.) isGRANTED;(2) Pltfs mtn for summary judgment (Doc.-U ) is DENIED;(3) The clerk of court is directed to grant judgment for Dfts andagainst Pltfs Gloria Lytle and Roger Morrison solely on the issue of whetherPltfs Lytle and Morrison were employees or independent contractors ofDft Capital Area Intermediate Unit. The court fmds that Pltfs G1oriaLytle and Roger Morrison were independent contractors of Dft Capital AreaIntermediate Unit and, therefore, do not have standing to pursue any claims under the False Claims Act, 31 U.S.C. §3730(h) against the Capital Area Intermediate Unit;(4) Since no federal subject matter jurisdiction is present, the court willdismiss Pltfs state law claimsCounts III through VIIIwithout prejudice toPltfs to renew those claims in an appropriate state court proceeding;(5) The mtns to dismiss Pltfs Amended Complaint (Docs.-4Q &42) are denied as MOOT;(6) Pltfs mtn to strike the affidavit of Donald Enders (Doc.14Z is DENIED, and:(7) The clerk of court is directed to close this case.Signed by Honorable Sylvia H. Rambo on 6/11/09 (ma, ) (Entered: 06/11/2009) 06/11/2009 ?Q JUDGMENT in favor of dfts against Gloria Lytle, Roger MorrisonSigned by Honorable Sylvia H. Rambo on 6/11/09. (ma, ) (Entered: 06/11/2009) 06/24/2009 J U MOTION for Reconsideration re_M Judgment, W Order on Motion to Dismiss„ Order on Motion for Summary Judgment„ Order on Motion to Strike,,,,,,,,,,,,,,,,,,,, by Gloria Lytle, Roger Morrison, Lytle Transportation, Morrison and Sons Transportation, Inc.. (Attachments: #1 Proposed Order)(Poserina, Regina) (Entered: 06/24/2009) 06/30/2009 11Z ORDER deeming pltfs' Motion for Reconsideration 111 withdrawn Signed by Honorable Sylvia H. Rambo on 6/30/09 (ma, ) (Entered: 06/30/2009) 07/13/2009 JU NOTICE of Appearance by Kevin M. French on behalf of The Estate of George Brubaker, Hartman, Underhill and Brubaker (French, Kevin) (Entered: 07/13/2009) 07/13/2009 MOTION for Sanctions Pursuant to 28 U.S.C. Section 1927 by The Estate of George Brubaker, Hartman, Underhill and Brubaker.(French, Kevin) (Entered: 07/13/2009) 07/14/2009 SPECIAL ADMISSION FORM SENT to Kevin M. French. Oc) (Entered: 07/14/2009) OF THE H-101'11"JCNOTARY 200091 i,,'- 2* 3 Pik 4, 15 ??,, ? ???• ??.,ry?-gyp' rC. • yon.` ??jjj:. F,,. ,, `.;, t ? ?j '? ?? b S '?.J• ES ?,, .'Y ??? 4th „g?? S,? ??? _ .,? L":M.?.: Ow Dab Per UEpUTYC`L _??. K JURY TRIAL REQUESTED REGINA D. POSERINA PA 66486 7415 West Chester Pike Upper Darby, PA 19082 (610) 352-0760 email: rposerina@snip.net ECF User Attorney for Plaintiffs .x rrl Gloria Lytle and Roger D. Morrison IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, ra L& GLORIA LYTLE AND ROGER MORRISON, Plaintiff's; Filed Under Seal and In Camera, Pursuant To the Versus False Claims Act, 31 U.S.C. §3729 et seq. CAPITAL AREA INTERMEDIATE UNIT; GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.; : C.A. No. SCOTT DOWNEY; DEANNA ROSE; LORIN : FILED SCRANTON! STOUGH; STOUGH TRANSPORTATION; GEORGE BRUBAKER; JAN 1 -0 oj,, Defendants FER CIVIL COMPLAINT UNDER THE Gloria Lytle and Roger Morrison, by and through their attorney, and as the gui tarn relators, on behalf of the United States of America, file this Complaint, under seal, and aver the following: INTRODUCTION 1. This is an action to recover damages and civil penalties on behalf of the United States of America, arising from false statements and records made or caused to be made by the defendants to the United States in violation of the False Claims Act, 31 U.S.C. §§ 3724 rA =., as amended (the FCA). The false claims and statements at issue involve requests for payment under Medicare, Medicaid, Federal Department of Education, and other programs funded by the United States and the Commonwealth of Pennsylvania for the transportation of handicapped, disabled, and otherwise identified and/or classified children to special education, Head Start, and other school or school-related programs. 2 2. The False Claims Act C WA') was originally enacted in 1863. Through the 1986 Amendments to the FCA ("The False Claims Amendments Act"), Congress enhanced the government's ability to recover losses sustained as a result of fraud against the United States. The 1986 Act provides that any person who knowingly submits or causes to be submitted to the Government, or recipients of federal funds, a false or fraudulent claim for payment or approval is liable under the FCA. Once liability is found, the Act provides for a civil penalty of up to $11,000 for each such claim, and three times the amount of the damages sustained by the Government. The Act relies upon persons having information regarding a false or fraudulent claim against the Government to bring an action on behalf of the Government. Persons who do bring a claim can share in any recovery. The complaint must be filed under seal, without service on the defendants. The complaint remains under seal while the Government conducts an investigation of the allegations in the complaint and determines whether to join, or intervene in, the action, 3. Pursuant to the Act, Plaintiffs seeks to recover damages and civil penalties arising from false and improper charges contained in claims for payment which the Defendants submitted, conspired to submit, or caused to be submitted to the Federal Government. 4. Defendants have submitted, conspired to submit, and/or caused to be submitted claims for payment for services never performed, services in excess of what was actually performed, and/or claims for payment that were not permitted for reimbursement by the Federal and State governments. Defendants have also submitted, to the Federal and State governments, false records in order to conceal the true value of costs and reimbursements, and therefore, justify Defendants' increased requests for payment under the related Federal and State programs. JURISDICTION AND VENUE 5. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1345; and 31 U.S.C. §3729 et seq. 6. Venue is proper in this District under 28 U.S.C. §§139i(b) and (c); and 31 U.S.C. §3729 et seq. 7. Relator Gloria Lytle is an adult individual. Since 1974, Ms. Lytle has worked as a transportation contractor, providing transportation services to children through the Capital Area Intermediate Unit. 8. At all times relevant hereto, Ms. Lytle provided these transportation 4 services through Lytle Transportation. 9. Relator Roger Morrison is an adult individual. Since 1985, Mr. Morrison has worked as a transportation contractor, providing transportation services to children through the Capital Area Intermediate Unit. 10. At all times relevant hereto, Mr. Morrison provided these transportation services through Morrison and Sons Transportation Services. 1.1. Defendant Capital Area Intermediate Unit (hereinafter, "CAN") is a non-profit organization created by Act of the Commonwealth of Pennsylvania in 1972. Its office for the service of process is located at 55 Miller Street, PO Box 489, Summerdale, PA 17093-0489. 12. The CAIU is neither a state agency, nor state entity, nor otherwise an arm of the state of Pennsylvania. 13. Therefore, the CAI J is subject to liability under the False Claims Act pursuant to Vermont Age. ncy of Natural Resources v. United States ex r el. Stevens, 529 U.S_ 765; 120 S. Ct. 1858; 146 L. Ed. 2d 836 (2000); and United States ex rel. Chandler v. Cook Co mty- Illinoie et at 538 U.S. 119; 123 S. Ct. 1239; 155 L. Ed. 2d 247 (2003). 14. The CAN provides, among other things, educational and transportation services to children who have been identified as requiring special 5 education, special services, or early intervention services (hereafter referred to as "identified children."). 15. The CAN coordinates, among the participating school districts, the provision of special education services in the greater Harrisburg, PA, area to all such identified children. 16. The CAIU provides the majority of the transportation services for the identified children in school districts which participate with the CAIU. The remainder of transportation services for identified children are provided by a few outside contractors who deal directly with individual school districts to transport their children. 17. Defendant Glenn Zehner, Ph.D., is the Executive Director of the CAITJ. Dr. Zehner has held this position since 1998. 18. At all times relevant to this Complaint, Defendant Zehner acted in his official capacity, as Executive Director of the CAN, and in his individual capacity. 19. Defendant Mark Bauer, Ph.D., is the Assistant Executive Director of the CAN, a position he has held since approximately 1993. In 1974, Defendant Bauer began his employment with the CAIU as a teacher. He then became the head of special education of the CAN, ultimately being appointed Assistant Executive Director. 6 20. At all times relevant to this Complaint, Defendant Bauer acted in his official capacity, as Assistant Executive Director of the CAlU, and in his individual capacity. 21. Defendant Scott Downey is the Transportation Coordinator for the CAN, a position he has held since 1999. 22. At all times relevant to this Complaint, Defendant Downey has acted in his official capacity, as the Transportation Coordinator, and in his individual capacity. 23. Defendant Deanna Rose is an adult individual and former employee of the CAIU. From approximately 1975 through 1999, Ms. Rose was an employee of the CAIU. From approximately 1993 until her retirement in 1999, Ms. Rose was the transportation director at the CAN. 24. At all times relevant herein, Defendant Rose acted in her official and individual capacity as the Transportation Director at the CAIU. 25. Defendant George Brubaker is an attorney with an office for service of process at Hartman, Underhill, and Brubaker, 221 East Chestnut Street, Lancaster, PA, 17602. 26. Defendant Brubaker is currently the solicitor of the CAN. 27. At all tunes relevant to this action, Defendant Brubaker acted in his 7 official capacity, as the solicitor of the CAIU, and in his personal capacity. 28. Defendant Lorin Stough is an adult individual who was formerly a transportation contractor with the CAI J. Defendant Stough provided services to the CAIU through the entity known as "Stough Transportation." 29. The CAN provides transportation services to identified children through two sources. 30. First, the CAIU itself provides transportation to identified children through its own modest fleet of small buses. This first transportation source (the CATU) accounts for approximately twenty five percent of all transportation provided to identified children in participating school districts served by the CA1U. 31. Transportation contractors (such as Lytle Transportation or Morrison and Sons Transportation) are the second source of transportation services; and provide the majority of the transportation services for identified children served by the CAIU. 32. From 1972 to 1989, approximately 24 transportation contractors provided transportation services to the CAIU. From 1989 to the present approximately 13 transportation contractors have been providing these services to tile CAIU. 33. From approximately 2001 to 2004, Morrison and Sons was the largest transportation provider in the CAIU , with annual gross revenues in 2003 of $1.6 million. 34. Due to an increase in the number of identified children, and a concomitant increase in the number of state and federal programs funding education for children with special needs, the demand for transportation of special needs children has grown considerably over the past ten years. However, the number of transportation contractors serving the CAI[J has not. increased. 35. The CAN receives funding for its services from a variety of sources, including from the federal government, both directly and through programs such as Medicare and Medicaid (which is partially funded by the federal government, and by the Commonwealth, respectively); from the Commonwealth of Pennsylvania, both directly (such as from the Pennsylvania Department of Education, or PDE), and through programs such as Medicaid (which is partially fiinded by the Commonwealth); from local school districts, and from private sources. 35a. Upon information and belief, local school district funding is actually held by the PDE, and provided directly to the CAN through the PDE. PDE pays the local school district's share of transportation costs directly to the CAN 9 from PDE funds. The PDE informs the local school districts of the amount paid on their behalf 36. Several programs, including Head Start, ESY (summer extended school year program), and Medicaid, directly fund the provision of transportation services for the CAIU. 37. All CAIU funding is based upon a set formula, which includes consideration of the number of children being transported. 38. Each year, the CAIU enters into contracts with the transportation contractors for the provision of transportation services. 39. The annual contracts set the rate of payment for the contractors, setting the dollar paid per mile driven, and other matters related to compensation. 40. At all times relevant to this Complaint, transportation contractors are required, in order to be compensated for their services, to report to the CAIU the number of children transported; the actual miles each vehicle is driven; the odometer readings of the vehicles; the loaded miles (miles driven with identified children on board); and the unloaded miles (miles driven without children present on the vehicles). 41. Transportation contractors serving the CAN are paid according to a formula mandated by the Pennsylvania Department of Education (PDE). Some of 10 the PDE funds used to pay for these services comes from the Federal government. 42. From 1974 to 2004, transportation contractors providing services for state-funded programs were paid according to a formula which paid them for all miles driven. The compensation rate per mile driven was set by a contract each year. This compensation rate takes into consideration the number of children being transported by the CATU. 43. Transportation was paid at a rate of twice the loaded miles driven (meaning miles with children in the vehicle). Local school districts were responsible for paying the CAIU for the unloaded miles (meaning miles with no children in the vehicle). The CAN paid the transportation contractors from these funds. 44. All of the monies for state-funded program transportation flowed through the CAN: the transportation contractors reported their mileage and number of children transported to the CAN; the CAIU submitted requests for payment to the state and to the participating local school districts. 45. This formula for state-funded program transportation allowed for a cost of living increase each year. 46. During this same time period, transportation contractors performing services related to federally funded programs, such as the summer extended school year program (ESY), were compensated according to a formula whereby they were 11 paid for all miles driven (loaded and unloaded), from funds directed to the CAIU by the Federal Government. This compensation took into consideration the number of children being transported by the CAIU. 47. The CAN required that transportation contractors and their drivers report number of children transported, and loaded and unloaded miles, for purposes of calculating the amount of compensation due to the transportation contractors from the CAN. 48. The CAN considered transportation contractors to be their "personnel" for purposes of employment, and treated them as employees of the CAN. 49. In July, 2004, the formula for paying transportation contractors for services provided to the CAN changed. 50. The new 2004 formula provided that all transportation contractors were to be paid based upon the loaded miles that they drove, comparing their loaded versus unloaded miles driven. 51. If a transportation contractor drove more loaded miles than unloaded miles, then he or she would be paid at a rate of $1.13 per mile for the entire mileage driven (both loaded and unloaded miles). 52. If a transportation contractor drove more unloaded miles than loaded 12 miles, then he or she would be paid at a rate of $1.13 per mile for double the loaded miles driven. 53. As a result of this new 2004 formula, transportation routes were only profitable if the number of loaded miles was greater than or equal to the number of unloaded miles. In these situations, a transportation contractor would be paid for all of the miles he or she had driven. 54. In the alternative, if a transportation route required that the contractor drive significantly more unloaded miles than loaded miles, the transportation contractors would not be paid for total miles driven, making the route unprofitable. 55. At all times relevant hereto, Defendant Downey was responsible for assigning transportation routes to the transportation contractors. 56. Although the transportation contractors are permitted to request changes in assignments, the CAM is not required to honor these requests. 57. In 2000, the CAN, after discussions with Mr. Morrison and others, agreed to increase the rate paid per mile driven for wheelchair accessible vans. This rate increase was intended to compensate contractors for the increased costs of purchasing and operating a wheelchair accessible van. Defendant Zehner approved this rate increase. 57a. This rate increase permitted transportation contractors with 13 wheelchair vans to receive an increased rate for all wheelchair vans and a percentage of their non-wheelchair vans as well. 58. Beginning in September, 2001, the CAIU required that all transportation contractors, before they could transport children, present their vehicles to the CAN for an odometer reading. Allegations As To Defendants Stough and Stough Transnortation 59. In approximately summer, 2001, Defendant Stough, and Defendant Stough Transportation, informed the other transportation contractors that they were ending their work as a transportation contractor. 60. Defendant Stough offered his vehicles for sale to the other transportation contractors. 61. Mr. Morrison investigated the possibility of purchasing these vehicles. 62. Mr. Morrison approached Defendants Downey and Bauer and requested information on the vehicles owned by Defendants Stough and Stough Transportation. 63. Defendant Downey provided Mr. Morrison with the mileage submitted by Defendants Stough and Stough Transportation, and compared this to the actual odometer readings for the vehicles owned by Defendants Stough and Stough 14 Transportation. Defendant Downey reported to Mr. Morrison that the contractors involved with these vehicles had reported falsified mileage. 64. Defendant Downey acknowledged to Mr. Morrison that the mileage was falsified, in that Defendants Stough and Stough Transportation had reported driving more miles than they had actually driven. 65. Defendant Downey acknowledged that Defendants Stough and Stough Transportation had been reimbursed for miles which had not been driven. 66. Defendant Downey later reported to Mr. Morrison that he had informed Defendant Bauer of the false mileage reports submitted by Defendants Stough and Stough Transportation. 67. Mr. Morrison met with the former drivers of Defendant Stough Transportation, and informed them of his intent to purchase the vehicles of Defendants Stough and Stough Transportation. 68. Shortly thereafter, Defendant Downey informed Mr. Morrison that Mr. Morrison would be forbidden from purchasing Stough Transportation as a going concern. 69. Mr. Morrison chose to purchase several vehicles from Defendants Stough and Stough Transportation. 70. Former drivers for Stough Transportation reported to Mr. Morrison that 15 they had never been required to file mileage sheets and/or to report odometer readings. 71. On subsequent occasions, Mr. Morrison asked Defendants Downey and Bauer as to the status of their investigation into the falsified miles on Defendant Stough's vehicles, Mr. Morrison never received a response to these questions from either Defendant Downey or Defendant Bauer, or from any other person. 72. On subsequent occasions, Defendants Downey and Bauer jokingly warned Mr. Morrison to be truthful on his mileage reports, and not "pull a Stough," or report falsified mileage. Allegations RegardinLy The Administrative Fee 73. In approximately 1993, a transportation provider, Rohrer Transportation, who was not a transportation contractor with defendant CAIU, came to a board meeting of Defendant CAN and proposed that it would provide all of the transportation services to the CAIU. 74. Upon information and belief, the CAIU Board of Directors presented the Rohrer Transportation proposal to the participating school districts as a potential costs savings in the transportation of school children, in that a global contract with Rohrer Transportation would result in a cost savings for the CAIU of three percent 16 (3%). 75. Defendants Bauer, Rose, and CAN told the transportation contractors, including but not limited to Ms. Lytle and Mr. Morrison, that the Rohrer Transportation offer to provide services would have cost the Defendant CAIU approximately three percent (3%) less than what Defendant CAIU was currently paying for transportation services using the transportation contractors. 76. Defendant CAN decided not to contract with Rohrer Transportation, but, instead, to continue employing the transportation contractors to provide transportation for identified children. 77. In order to reap the costs savings which would have resulted under the rejected Rohrer proposal, Defendants Bauer, Rose, and the CAIU informed all of the transportation contractors that, in order to continue providing transportation services for the CAN, each transportation contractor would be required to refund to Defendant CAIU an amount equivalent to three percent (3%) of their gross income, paid semi-annually. 78. Defendant CAN referred to these 3% refunds as an "administrative fee." 79. Defendants Bauer, Rose, and CAN told the contractors that these administrative fees, or refimded monies, would be used to support the costs of 17 transportation services for the entire CAN, would be deposited into the CAIU transportation accounts, and would be refunded to the participating school districts, thereby reducing the cost associated with transporting students identified for state and federal programs. 80. Defendant CAN has two separate bank accounts: one labeled the "General Fund;" the other labeled the "Special Fund." Transportation services accounts fall under the Special Fund. 81. Rather than deposit these 3% administrative fees/ refunds into the Special Fund, to fund transportation, Defendant CAN deposited these refunded monies into Defendant CAM's General Fund. Canceled checks for the administrative fees show that they were deposited into the General Fund. 82. Participating school districts did not benefit from Defendant CAM's assessment of an "administrative fee" against the transportation contractors. These school districts never received a reduction in their costs of transportation, or a refund, as a result of this "administrative fee." 83. While operating this program of "administrative fees," Defendant CAM failed to refund any funds, or lessen any costs, to the school districts, Commonwealth of Pennsylvania, or the Federal Government. 84. Instead, Defendant CAM reported to the Federal Government, State, 18 and local school districts, the full costs of the transportation without acknowledging the reduced costs of transportation to the CAIU due to its receipt of the 3% refund, or "administrative fees." 85. Defendant CAN operated this program of "administrative fees" from 1993 to 2000. 86. Even though this administrative fee was implemented more than six years before from the date of the filing of this Complaint, it was an "ongoing fraud" for purposes of the False Claims Act, and, therefore, the entire course of the program is within the statute of limitations. 87. Defendant CAIU, as a nonprofit organization, was, at all times relevant to this Complaint, and is exempt from paying some taxes, including tax on gasoline it purchases for its own fleet of vehicles. 88. Defendant CAN maintains a modest fleet of small buses for use in the transportation of children. This fleet amounts to approximately twenty five percent (25%) of all transportation provided by the CAN. 89. Costs associated with transportation provided directly by Defendant CAIU fleet is reported to the Federal, state, and local governments and Defendant 19 CAIU receives reimbursement directly from the Federal, state, and local governments. 90. Defendant. CAIU also receives direct reimbursement from the Federal, state, and local governments for its gasoline use. 91. In approximately 1996, Defendant CAIU, by and through Defendants Bauer and Rose, offered the transportation contractors the opportunity to purchase all of their gasoline through the Defendant CAIU. 92. Defendants Bauer and Rose told the transportation contractors that they could purchase gasoline for their vehicles using Defendant CAM's gas purchase cards. Transportation contractors who wished to participate in this program were given CAIU gas credit or purchase cards. 93. As a result of purchasing gasoline through Defendant CAIU, the transportation contractors would be permitted to purchase gasoline without paying the taxes on the gas. 94. Mr. Morrison purchased gasoline through the Defendant CAIU; Ms. Lytle did not. 95. Defendant CAIU required transportation contractors who purchased gasoline through the Defendant CAIU to pay to the Defendant CAIU, the costs of the gas without tax, and, in addition, pay to the CAIU a portion of the actual gas tax, 20 as payment of the "savings" the contractors had received. In essence, the contractors were required to share some of their costs savings with the Defendant CAN. 96. At first, Defendant CAIIJ required transportation contractors who were purchasing gas to pay Defendant CAN half of the tax that the contractor had "saved." 97. Within a short amount of time, Defendant CAIU required participating transportation contractors to pay Defendant CAN two thirds (2/3) of the tax amount, in addition to the actual, pre-tax cost of the gasoline. 98. Mr. Morrison participated in the program until February, 1999, but stopped participating due to irregularities in Defendant CAIU's tracking of gasoline purchases. 99. Defendants Bauer, Rose, and CAN told the transportation contractors that this savings and reimbursement program would be used to offset school district's indirect costs of transportation, thereby lessening the need for local, state and Federal reimbursement. 100. In reality, the monies that the transportation contractors paid to Defendant CAIU under this gas tax savings program were deposited into Defendant CAM's General Fund, not the Special Fund, which funds transportation. 21 10 1. Upon information and belief, this payment by the transportation contractors to Defendant CAR, of portions of the gasoline tax savings, was never reported to local, state, or federal funding sources. Instead, these gas purchase funds were used to fund budgetary shortfalls, or support investments, of the CAN. 102. Upon information and belief, Defendants Bauer, Rose, and the CAN were reporting these larger purchases of gasoline through the CAIU accounts as fuel for the CAIU vehicles. Use of CAIU vehicles, and the separate cost of purchasing fuel for the fleet, upon information and belief, was then directly reimbursed by local, state, and federal sources. 103. This gas purchasing program ended in approximately June, 1999. 104, Even though this gas purchasing program ended in June, 1999, it was an "ongoing fraud" for purposes of the False Claims Act, and therefore the entire program is within the statute of limitations. The purchase of gas through the CAN was an ongoing matter, from 1993 through 1999. 105. Transportation contractors were required to enter yearly contracts with Defendant CAM. 106. These annual transportation service contracts set the compensation rate 22 for the transportation contractors. 107. Approximately every nine (9) days, transportation contractors were required to report to Defendant CAIU their miles driven in order to be paid for their services. 108. These reports required the transportation contractors to report miles driven, routes driven, and odometer readings. 109. Before 2004, transportation contractors received compensation through Defendant CAIU for all of the miles that their vehicles were driven to transport identified children, for both loaded and unloaded. 110. Beginning July 1, 2004, Defendant CAN paid transportation contractors using a new formula. Where unloaded miles exceeded loaded miles, the contractor received payment based upon loaded miles alone, or loaded miles times two. 111. As a result of the implementation of the July 2004 formula , as described above, only routes in which loaded miles exceeded unloaded miles, were profitable. 112. Defendants Bauer, Zehner, and Downey was aware of this fact, as they were told of this fact repeatedly by Ms. Lytle and Mr. Morrison. 113. Although Defendants Bauer, Zehner, and Downey were aware of the 23 significant problems with driving routes where unloaded miles significantly exceeded loaded miles, Defendants Downey, Zehner, and Bauer continued to assign routes where the unloaded miles were significantly greater than the loaded miles. 114. Defendant CAIU paid Ms. Lytle and Mr. Morrison for transportation services according to the formula as described above (that is, in a manner favoring those with more loaded miles, and rendering unprofitable routes where unloaded miles exceeded loaded miles). 115. However, other transportation contractors, including but not limited to G & S Transportation, PJ Transportation, Miller Transportation, and Frye Transportation, were paid for their routes under the old formula, whereby Defendant CAIU compensated them for all miles driven. 116. Defendants Downey, Zehner, Bauer, and the CAIU permitted some transportation contractors, (including but not limited to G & S Transportation, PJ Transportation, Miller Transportation, and Frye Transportation) to submit inflated mileage reports, then paid these contractors pursuant to their inflated mileage reports. 117. Defendant Downey himself has inflated the mileage reports which Defendant CAM submitted to Federal and State governments for reimbursement. 24 Defendant Downey, and Defendant Rose before him, would embellish the number of routes driven, and the number of miles driven, in order to increase the amount of reimbursement fiords coming to Defendant CAIU from the Federal and State governments. 118. Defendants Rose, Downey, Bauer, and Zehner would also falsely report the number of identified children being transported by the CAN, in order to make it appear as though that more children were being transported than actually were. This inflation artificially increased the funding to the CAIU by the state and Federal governments. 119. Beginning in July 1, 2004, Defendant CAIU, by and through Defendants Downey, Zehner, and Bauer, reduced by approximately seventy four percent (74%) the reimbursement rate paid to transportation contractors who transported identified children in wheelchair accessible vans, even though Defendants were aware of the increased expenses associated with operating such vehicles. I 19a. Wheelchair vans cost are approximately double that of non- wheelchair vans, and require a driver with additional capabilities. 120. Mr. Morrison owned more wheelchair vehicle units (14) than all other transportation contractors serving Defendant CAIU combined (twelve other 25 contractors owned a combined twelve wheelchair vans). As a result of these changes in compensation rates for wheelchair-accessible vans, Mr. Morrison was forced to declare bankruptcy and close his business as of September 27, 2004. 121. From September 27, 2004, to present, Defendants Downey, Zehner, Bauer, and the CAIU have, upon information and belief, been providing additional compensation to other transportation contractors who transport wheelchair-bound identified children, without reporting such to the Federal, state and local governments. Instead, upon information and belief, the CAN inflates the mileage associated with these wheelchair vans in order to both cover the costs of this transportation, and to provide additional compensation to the transportation contractors providing these services. 122. The basis for the averment that mileage and/or payments associated with wheelchair transportation have been inflated is that payment inflation is the only means for enabling the remaining wheelchair van operators to profitably transport the wheel-chair bound identified children. 123. Other transportation contractors, including Mike Sweiger and Linda Frye, reported in August, 2004, that they were purchasing new vans, despite knowledge that the July 2004 compensation rate had significantly decreased. Ms. Frye justified her van purchase by remarking, "Life is a gamble." 26 124. Defendant CAN also utilizes transportation contractors to transport children on "trips (i. e., field trips, to and from work sites, to medical assistance programs, and other miscellaneous programs). 125. From approximately 1984 through June, 2004, Defendant CAI J compensated transportation contractors at a reduced rate to transport children on field trips and other trips, as opposed to the rate they were paid to perform regular transportation services. The compensation rate for trips was approximately seventy percent (70%) of the usual rate. In addition, the driver received a stipend in the form of an hourly wage for providing the service. 126. When providing transportation for trips, Defendant CAN required that transportation contractors report and record them as chargeable to other sources. From approximately 1999 through 2002, transportation contractors were directed by the CAN to report these trips as chargeable to "Fund 62." 127. The mileage driven in these trips, however, was recorded as a part of the transportation contractors' regular odometer readings. 128. From 1985 through June, 2004, the CAN, by Defendants Downey, Rose, Bauer, and Zehner, would bill and show the miles driven for trips as if these miles were driven for regular transportation of identified children, thereby seeking full reimbursement from federal, state and local governments for these non-program 27 miles. 129. These falsified mileage reports were then presented to the Federal, state and local governments for payment, and Defendant CAN sought reimbursement for these miles based on the higher rate warranted for regular transportation, even though Defendant CAN had only paid the transportation contractors at the reduced rate. 130. Defendant CAM then placed the extra reimbursement funds in its general fund, and did not use it to pay or reimburse transportation contractors, or to reduce billings to the Federal, state or local governments. 131. Review of the CAN monthly budget reports reveals substantial sums of CAIU funds being transferred into poorly described investment accounts, and "expense" payments to questionable sources. For instance, in some months, Defendant CAIU paid more than ten thousand dollars ($10,000) for purported catering services, including to entities like "Esther's Country Kitchens." 132. Upon information and belief, Defendant CAIU, by and through Defendants Zehner, Bauer, and Brubaker, re-directed and continue to redirect CAIU funds to investments that personally benefit the individual defendants. 133. Individual defendants Zehner, Bauer, and Brubaker, along with Defendant Stough, are members of an investment club. 28 134. Defendant Brubaker, as solicitor of the CAIU, is and has been aware of the gas purchasing program, the administrative program, the inflation of mileages and rates, and all of the actions described above, and has approved these actions. COUNTI PLAINTIFFS VERSUS DEFENDANT CAIU VIOLATION OF THE FALSE CLAIMS ACT 31 U_. C. §3729 (a)(1) 135. Plaintiffs incorporate paragraphs 1 through 134 as though set out at length herein. 136. Defendant CAIU knowingly submitted false claims to the federal and state government for payment or approval. 137. The claims were false. 138. The false claims were knowingly submitted to the federal and state government. 139. The claims submitted to the federal and state government were paid or approved. 140. The claims submitted to the federal and state governments by Defendant CAN were false, in that the claims contained false or reckless information upon which the billings were based. 29 14 1. Defendant CAIU showed a reckless disregard for its obligations to the federal and state government by knowingly submitting claims for payments to which they were not entitled, including but not limited to transportation costs, gasoline costs, and costs related to transportation for field trips. 142. The federal and state government relied upon these false statements to pay or approve Defendant CAIU's requests for payment. 143. The federal and state govenunents were damaged as a result of these false claims. COUNT II PLAINTIFFS VERSUS DEFENDANTS ZEHNER, BAUER, DOWNEY, ROSE, STOUGH, STOUGH TRANSPORTATION, AND BRUBAKER VIOLATION OF THE FALSE CLAIMS ACT 31 U.S.C. §3729 (a)(1) 144. Plaintiffs incorporate paragraphs 1 through 143 as though set out at length herein. 145. Defendants Zehner, Bauer, Downey, Rose, Stough, Stough Transportation, and Brubaker knowingly caused to be submitted a false claim to the federal and state governments for payment or approval. 146. Defendant Zehner knowingly caused a false claim to be submitted by 30 the CAN by approving the programs alleged above, and by permitting the CAIU to submit claims for billing when he knew of these false claims. 147. Defendant Bauer knowingly caused a false claim to be submitted by Defendant CAN by approving and operating the programs and/or schemes outlined and alleged above, and by permitting the CAN to submit false claims for billing despite personal knowledge of these falsities. 148. Defendant Rose knowingly caused a false claim to be submitted by Defendant CAM by approving and operating the programs and/or schemes outlined and alleged above, and by permitting the CAN to submit claims for billing despite personal knowledge of these falsities. 149. Defendants Stough and Stough Transportation knowingly caused a false claim to be submitted by Defendant CAIU by knowingly submitting to the CAN paperwork for payment, which would be funded by state and federal sources, with knowledge of its falsity. 150. Defendants Downey, Bauer, Zehner, and Brubaker, aware of the falsity of Defendant Stough and Stough Transportations' billing documents, knowingly caused those claims to be submitted for payment or approval by the state and federal governments. 151. Defendant Brubaker knowingly caused a false claim to be submitted by 31 Defendant CAIU, by approving and permitting these programs as alleged above, and by permitting the Defendant CAIU to submit claims for billing despite personal knowledge of these falsities. 152. Both the federal and state governments relied upon the Defendants' false statements to make payments to Defendant CAIU. 153. The federal and state governments were damaged as a result of these false statements. COUNT III PLAINTIFFS VERSUS ALL DEFENDANTS VIOLATION OF THE FALSE CLAIMS ACT 31 U.S.C. §3729 (a)(2j 154. Plaintiffs incorporate paragraphs 1 through 153 as though set out at length herein. 155. Defendants knowingly made, used, or caused to be made or used a false record or statement to get a false claim paid or approved by the federal and state governments. 156. The false records or statements consist of Use reports to the federal and state government for reimbursement; false records indicating the amounts of gasoline purchased for CAN vehicles; false mileage records; false odometer 32 readings; and other false records or statements. 157. The false records or statements were made knowingly. 158. These false records or statements were made with the sole purpose of obtaining reimbursement from the federal and state governments. 159. The federal and state governments relied upon these false statements. 160. The federal and state governments were damaged as a result of these false statements. COUNT IV PLAINTIFFS VERSUS ALL DEFENDANTS VIOLATION OF THE FALSE CLAIMS ACT 31 U.S.C. §3729 (a)(3) 161. Plaintiffs incorporate paragraphs l through 160 as though set out at length herein. 162. Defendants conspired to violate the False Claims Act by agreeing to submit false statements and claims to federal and state governments in order to get a false or fraudulent claim approved. 163. Defendants conspired by being fully aware of the illegalities of their actions, but agreeing to proceed nonetheless. 164. For example, all Defendants had knowledge of the falsities contained in 33 Defendants Stough and Stough Transportation's billings, but they knowingly submitted those claims to the government nonetheless, and/or neither rectified these falsities when the Defendants became aware of the falsities, nor reported them to the appropriate authorities. 165. For instance, all Defendants had knowledge of the falsities involved in receiving funds from the transportation contractors through the administrative program and the gas-purchase program, but they knowingly submitted claims to the government and sought funding without revealing this source of income. 166. Defendants Bauer, Zehner, Downey, and Brubaker were notified by Ms. Lytle and Mr. Morrison of the improprieties alleged above. In furtherance of their conspiracy, these Defendants, with knowledge of the false claims, failed to act upon this knowledge, and failed to rectify these false claims. 167. The federal and state governments paid or approved Defendants' requests for payments and approval. 168. The federal and state governments were damaged as a result of these conspiracies. 34 COUNT V PLAINTIFF GLORIA LYTLE VERSUS DEFENDANT CAIU VIOLATION OF THE FALSE CLAIMS ACT 31 U.S.C. §3730 (h) 169. Plaintiff Gloria Lytle incorporates paragraphs 1 through 168 as though set out at length herein. 170. Gloria Lytle has been a transportation contractor since 1974, 171. From 1974 to July, 2004, Ms. Lytle had received good reports and recommendations for the quality and service of her work. 172. Despite a history of good work performance, Ms. Lytle has frequently been the subject of harassment and intimation by CAIU employees, including but not limited to, Defendants Bauer, Rose, and Downey. 173. For instance, Defendant Rose bragged to other transportation contractors that she so disliked Ms. Lytle that she had contacted the IRS and made allegations against Ms. Lytle. 174. For instance, in the Fall of 2003, Defendant Bauer questioned by Mr. Morrison, admitted that he had targeted Ms. Lytle for poor treatment. 175. In November, 2003, Mr. Morrison met with defendant Zehner to discuss the poor treatment of Ms. Lytle. Defendant Zehner agreed to discuss this poor treatment with defendant Bauer, and others, yet defendants continued to treat 35 Ms. Lytle poorly. 176. Shortly thereafter, defendant Zehner refused to receive work related paperwork from Ms. Lytle. 177. On December 15, 2003, Ms. Lytle, along with Mr. Morrison, met with Defendants Zehner and Brubaker and reported harassment of Ms. Lytle, and improprieties in the manner in which business was conducted at the CAN, as alleged above. 178. Rather than deal with these reports of harassment and inappropriateness, Defendants dismissed Ms. Lytle's complaints, and have, ever since, continued their systematic harassment of Ms. Lytle. 179. Such harassment of Ms. Lytle includes, among other things: repeated requests for licensure and/or insurance information; repeated failure to fairly assign work to Ms. Lytle; exclusion of Ms. Lytle from opportunities given to other transportation contractors to obtain new work, both before and after Morrison and Sons declared bankruptcy; harassing phone calls from Defendant Downey; and other acts of harassment and intimidation. 180. The actions of Ms. Lytle, in reporting fraud to her employers, were taken in furtherance of an action under the False Claims Act. 181. Ms. Lytle notified Defendants Zehner and Brubaker, as individuals and 36 in their capacity to act on behalf of Defendant CAITJ, that the acts of the Defendants were illegal and fraudulent. 182. Ms. Lytle repeatedly requested to know what actions Defendants Zehner and Brubaker were taking to rectify the illegal and unethical practices at Defendant CAN. No Defendant responded. 183. Frustrated by the lack of response from Defendants, Ms. Lytle repeated her complaints about the illegal and unethical practices at Defendant CAIU to the FBI. 184. Solely as a result of notifying the Defendants, and the FBI, about the illegalities at the CAIU, Ms. Lytle has been threatened, harassed, and discriminated against with regard to the terms and conditions of her employment. 185. As a result of this employment retaliation, Ms. Lytle has been humiliated and demeaned. 186. As a result of this employment retaliation, Ms. Lytle has suffered damages, including but not limited to emotional pain and suffering, and physical worsening of her health. 37 COUNT VI PLAINTIFF ROGER MORRISON VERSUS DEFENDANT CAIU VIOLATION OF THE FALSE CLAIMS ACT 31 U.S.C. §3730 (h) 187. Plaintiff Roger Morrison incorporates paragraphs 1 through 186 as though set out at length herein. 188. Mr. Morrison began working as a transportation contractor in 1985. Before that time, Mr. Morrison had performed transportation services for his mother, June Morrison, who has been a transportation contractor since 1976. 189. Since becoming a transportation contractor, through Morrison and Sons, Mr. Morrison had built his business to become the largest transportation contractor serving the CAIU. Morrison and Sons' gross income for 2003 was $1.6 million. 190. After becoming aware of the illegalities in the practice of Defendants Stough and Stough Transportation, Mr. Morrison became concerned about the legality of many practices occurring at the CAN. 191. As a result of these concerns, Mr. Morrison met with Defendant Zehner in November, 2003. 192. After airing their concerns to Defendant Zehner, Mr. Morrison and Ms. Lytle agreed to meet with Defendants Zehner and Brubaker on December 15, 2003. Mr. Morrison and Ms. Lytle even suggested changing the meeting site to Mr. 38 Brubaker's office, to insure that the meeting would occur without interruption by other CAIU staff. 193. Shortly after the December 15, 2003 meeting began, Defendant Brubaker told Mr. Morrison and Ms. Lytle that he had "heard enough" and that he (Brubaker) knew what had to occur next. 194. In mid-January, 2004, Mr. Morrison received a phone call from an attorney at Defendant Brubaker's law firm, Hartmann, Underhill, and Brubaker. 195. This associate attorney, Mr. Lovett, demanded to know from Mr. Morrison the source of his information, and any other persons that may be providing Mr. Morrison with legal advice regarding Mr. Morrison's proposed investigation of CAN activities. When Mr. Morrison refused to answer, the associate took a nasty and accusatory tone, and hung up on Mr. Morrison. 196. After this phone call, Mr. Morrison asked Defendant Zehner what the status of the investigation was, but received no response. 197. Mr. Morrison's investigation, and meetings, were taken in furtherance of an action under the False Claims Act. 198. When, by late February, 2004 Mr. Morrison and Ms. Lytle had not received a response from Defendant Zehner, Mr. Morrison, and Ms, Lytle, reported their allegations of fraud to the FBI. 39 199. Shortly after this meeting, defendant Bauer called Mr. Morrison, mentioned that defendant Bauer had been called by the FBI, and threatened Mr. Morrison. 200. The FBI visited the CAW in April, 2004. 201. Shortly after this visit by the FBI, Defendant Bauer told an officer of Morrison and Sons that the CAIU was going to personally financially ruin Mr. Morrison for his reporting of the frauds occurring at the CAIU. 202. In May, 2004, the new contract for transportation contractors was issued by the CAIU. 203. As stated earlier, Morrison and Sons operated more wheelchair- accessible vans for Defendant CAN than the other 12 transportation contractors, combined. 204. This new contract reduced the regular overall rate of pay from $1.16 per mile to $1.13 per mile. 205. This new contract also reduced the rate of pay for wheelchair accessible vans from $1.20 per mile to $1.13 per mile. 206. For Mr. Morrison, who was receiving $1.20 for all of his wheelchair vans and for some of his non-wheelchair vans, this reduction in rates caused all of his routes to be reduced to $1.13 per mile. 40 207. This act of reducing the rate of pay for wheelchair accessible vans intentionally affected Mr. Morrison to the greatest degree because he was, by a very large margin, the largest provider of wheelchair vans. 208. As a result of this reduction in compensation, triggered by Mr. Morrison's complaints about illegal acts, Mr. Morrison was forced to use his personal savings to fund the shortfall in receipts by Morrison & Sons resulting from the reduction in compensation for wheelchair accessible, and all, vans. 209. As a result of his complaints, Mr. Morrison suffered from harassment, threats, and discrimination in the terms of his employment. 210. As a result of this discrimination in the terms of his employment, Mr. Morrison was forced to stop transporting school children, and was forced to stop working as a transportation contractor, on September 27, 2004. 211. As a result of this discrimination in the terms of his employment, Mr. Morrison was forced to lay off his employees, resulting in the failure to pay some of his employees. One employee suffered a heart attack and died as a result of the stress this caused. 212. Defendants have continued to discriminate and harass Mr. Morrison, including Defendants' continued refusal to pay Mr. Morrison for transportation services he had performed for the CAN. 41 213. As a result of the defendants' actions, Mr. Morrison has been damaged. COUNT VII PLAINTIFF ROGER MORRISON VERSUS DEFENDANT CAIU VIOLATION OF THE PENNSYLVANIA WHISTLEBLOWER LAW 43 P.S. Section 1423 214. Roger Morrison incorporates Paragraphs 1 through 213 as though set out at length herein. 215. Roger Morrison is an employee or contractor for hire, as that term is defined under the Pennsylvania Whistleblower's Law. 216. Roger Morrison made a good faith report to his employer and/or appropriate authorities of instances of wrongdoing and/or waste (i.e., gas purchase program, administrative program, false reporting of mileage by Defendants Stough and Stough Transportation), which were violations of Pennsylvania statutes, and which also constituted waste of public funds. 217. Defendant CAIU discriminated and/or retaliated against Roger Morrison, in violation of the Pennsylvania Whistleblower Law, by reducing Roger Morrison's compensation; thereby forcing Mr. Morrison out of business. 218. Defendants knew, or should have known, that their actions would result in a violation of Roger Morrison's rights under the Pennsylvania Whistleblower 42 Law, in that, among other things, the contracts entered into in June, 2004, discriminated solely against Mr. Morrison, the largest wheelchair van transportation contractor in the CAIU area. 219. Such retaliatory actions by Defendants created a hostile work environment for Roger Morrison, and resulted in his constructive and actual discharge, caused Roger Morrison to file for bankruptcy, and caused Roger Morrison to suffer from mental anguish, physical pain and suffering. COUNT VIII PLAINTIFF ROGER MORRISON VERSUS DEFENDANT CAIU BREACH OF CONTRACT 220. Plaintiff Roger Morrison incorporates paragraphs 1 through 219 as though set out at length herein. 221. Plaintiff Roger Morrison entered into a contract with Defendant CAIU for the provision of transportation services. 222. Roger Morrison notified Defendant CAIU on numerous occasions that the June, 2004, contract would not allow Morrison and Sons Transportation to operate, since it failed to compensate for the costs of transporting wheelchair bound children. 43 223. Despite repeated requests for assistance in the resolution of the contract issues, Defendant CAiU failed to resolve its contract disputes with Morrison and Sons, or to provide economic assistance to permit Roger Morrison to safely and adequately transport wheelchair bound children. 224. Mr. Morrison's contract with the CAIU required Morrison and Sons to safely and adequately transport wheelchair bound, and other, children. 225. As a result of the inability to safely and adequately transport children, and the repeated failure of defendant CAN to negotiate in good faith and in a non- discriminatory manner, Roger Morrison was forced to conclude that he could no longer afford to transport children for Defendant CAIU. 226. On the evening of September 26, 2004, Roger Morrison called two representatives of Defendant CAIU, to notify them of his impending bankruptcy, and his inability to maintain transportation services for Defendant CAIU children. 227. Despite this notification, Defendant CAIU failed to mitigate its damages, by failing to provide for the transportation of these children on the morning of September 27, 2004. 228. Defendant CAIU has failed to pay Morrison and Sons for work performed under contract on or before September 25, 2004. 229, Defendant CAN has held the payments owed to Roger Morrison for 44 services performed on or before September 25, 2004. 230. Defendant CAN has failed to provide proof of any expenses, real or imagined, related to their failure to mitigate damages on the morning of September 27, 2004. 231. Defendant CAIU has breached it obligations under the contract for employment between the parties by failing to pay Roger Morrison for work provided. 232. As a result of the CAIU breach of contract, Roger Morrison has been damaged. COUNT IX PLAINTIFFS GLORIA LYTLE AND ROGER MORRISON VERSUS DEFENDANTS CAIU, BAUER, ZEHNER, DOWNEY, ROSE, AND BRUBAKER INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 233. Plaintiffs Gloria Lytle and Roger Morrison incorporate paragraphs 1 through 232 as though set out at length herein. 234. Defendants CAIU, Bauer, Zehner, Downey, Rose, and Brubaker acted with the intention of causing Gloria Lytle and Roger Morrison to suffer extreme emotional distress. 235. As a result of the Defendants' conduct, Gloria Lytle and Roger 45 Morrison suffered mental anguish, physical pain and suffering, increased fatigue, sleeplessness, depression, embarrassment, shame and humiliation. 236. The Defendants are jointly and severally liable for their conduct. COUNT X PLAINTIFFS VERSUS DEFENDANTS CAIU, ZEHNER, BAUER, STOIJGH, AND BRUBAKER VIOLATION OF 18 U.S.C.A. §§1961-68 THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO) 237. Plaintiffs incorporate paragraphs 1 through 236 as though set out at length herein. 238. Defendants CAIU, Zehner, Bauer, and Brubaker directed the CAIU to obtain additional funds from its transportation contractors by way of the administrative fund, and the gas purchase program. 239. These excess firnds were obtained by means of extortion. Transportation contractors were told directly that if they did not participate in the administrative funds program, they would be forced out of business. 240. Defendants CAM, Zehner, Bauer, and Brubaker directed the method and means of the investment of the CAM funds. These excess funds of the CAN were invested as directed by Defendants CAM, Zehner, Bauer, Stough, and 46 Brubaker. 24 1. These excess funds of the CAIU were invested in the same programs as funds of the Investment Club, to which Defendants Stough, Zehner, Bauer and Brubaker are members. 242. Through the use of illegal means of obtaining funds for the CATU, through extortion and tax fraud, the defendants created a large investment pool for the CAIU. 243. Through the use of illegal means of obtaining funds for the CAN, the defendants caused Plaintiffs Lytle and Morrison to be injured in their businesses, by having to pay excessive fees and costs in order to continue doing business with the CAIU. Therefore, Plaintiffs Lytle and Morrison have standing to bring these claims. 244. These schemes of payment of illegal funds continued over at least a six year period of time, and were related and continuous. 245. Defendants Zehner, Bauer, and Brubaker, directed these illegal funds in a manner that personally benefitted these defendants. These defendants benefitted from increased revenue for the CAIU, which permitted increased salaries, investments, and pension payments. 246. The investments into which the CAI U funds were directed were the same investments held by the Defendants' Investment Club. 47 247. Defendants Zehner, Bauer, Brubaker, and Stough invested the CAN monies in funds that crossed state lines; and used United States mail services and/or wire transfers to accomplish their schemes. The predicate acts upon which this claim is based include mail fraud, wire fraud, extortion, and tax fraud. 248. As a result of their schemes, the Defendants violated 18 U.S.C. § 1962(a), by receiving income derived from a pattern of racketeering activity, and using such income to operate an entity that affects interstate commerce, said entities being the CAM and their personal Investment Club. 249. As a result of their schemes, the Defendants maintain an interest in and control the CAN through a pattern of racketeering activity, in violation of 18 U.S.C. §1962 (b). The Defendants maintain an interest in, and control, the CAN to insure that their own personal investments are profitable. 250. As a result of their schemes, the Defendants, who are employed by and associated with an enterprise affecting interstate commerce (the CAIU), are conducting and participating in the conduct of the CAM's investment affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962 (c). 251. Defendants CAN, Zehner, Bauer, Stough, and Brubaker acted together and in concert to violate the RICO laws. As such, the Defendants actions amount to a conspiracy in violation of 18 U.S.C. § 1962 (d). 48 252. The Plaintiffs and the United States have been damaged as a result of the Defendants' actions. 253. As a result of the actions alleged above, the United States has been damaged. 254. The United States damages are in excess of $100,000. 255. As a result of the actions alleged above, Gloria Lytle has been damaged. 256. Gloria Lytle"s damages are in excess of $100,000. 257. As a result of the actions alleged above, Roger Morrison has been damaged. 258_ Roger Morrison's damages are in excess of $100,000. WHEREFORE, Plaintiffs the United States, Gloria Lytle, and Roger Morrison seek damages as follows: As to the United States: three tunes the actual amount of damages, as permitted by the False Claims Act; civil monetary penalties in the amount of $11,000 per false claim filed; attorneys' fees and costs; prejudgement and postjudgement interest; and all other damages as allowed by law or Order of the Court. 49 As to Plaintiff Gloria Lytle: damages in the amount of two times back pay plus interest, forward pay, lost benefits, compensation for special damages, including for emotional pain and suffering; relief necessary to make her whole, including: the level of seniority status of other similarly situated transportation contractors; compensation for special damages sustained as a result of the discrimination; litigation costs and reasonable attorneys' fees; prejudgement and postjudgement interest; damages as permitted under 18 U.S.C. §§1961-68; and all other damages as allowed by law or Order of the Court. As to Plaintiff Roger Morrison: damages in the amount of two times back pay plus interest, forward pay, lost benefits, compensation for special damages, including for emotional pain and suffering; relief necessary to make him whole, including the level of seniority status of other similarly situated transportation contractors; compensation for special damages sustained as a result of the discrimination; litigation costs and reasonable attorneys' fees; prejudgement and postjudgement interest; damages as permitted under 18 U.S.C. §§196168; and all other damages as allowed by law or Order of the Court. 50 WHEREFORE, the Plaintiffs seek judgement in their favor and against the Defendants in this matter. JURY TRIAL DEMANDED. RESPECTFULLY SUBMITTED, . POSERINA Attorney Tor Plaintiffs mss, rL Gloria Lytle and Roger Morrison 51 w.Ar r ?r lied Ian 19 10:45:00 200 !N'T;0 4!0(.`= ! ` °R(Cf COURT 4ckpyl 9114 PA fit'. "(",L P..^. 1?•?' y^E Sub Acct ' liao?,nt 1:510000 r 90, ?x} 2:086900 W =.r n Total ANourtt RESIMA M[Rlp4 ES[?. Q. LIPPER DARRY PR MAP NEY CRSE FF, !}SA t Rr;_, ,1 R?4 THTERMEDIATE ET Al bn u ?h ova 07/89) CIVIL COVER SHEET The JS44 Civil cover shat and the information contained heroin neither replace nor supplement tM filing end tervisa Of pieekpr or other papers a roauifad by low, except a provided by local rules of court. This form, approved by the Judicial Conference of me United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket Treat. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) 1(e) PLAINTIFFS 'U d o I %coOF rlaZr Mini rr1s0() (RESIDENCE OF FIRST LISTED PLAINTIFF _ (EXCEPT IN U.S. PLAINTIFF CASES) DEFENDANTS r, "r Rr,G .p I - a ( k (4ea 1 r'r ca?'e l?? 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CAUSE OF ACTION (CfrITKUe..?Gly+e,r? wdt+t?e?te'`?_ta ? sxn+okNOwlOtEaeRles?? !h aruaBt. 00 NOT C" a P.VOCroN.l STATMS UNLESS DivEstll e, J,.?5c C4 (a I V. NATURE OF SUIT (PLACE AN x iN ONE i9ox ONw CONTF" 1DRf3 RIRIIELTtIRE/laWLTY O 110 kh.h.. PERIMM INJM PERSONAL MAW $ Aghicueuro 13 628 Oster Food a 0422 Areal C3 400 81M 0130 ? W - 1 s Ar P wds a ? 302 D 042111 D Pq Re4tad Si lzun d us, z ?t C3 427 wrrir.Ntar? m ? Ho Arpstri'd 0140 1 g So- tltertrrwr ? 0 L4*" Q 365 pais l "- ? 120 a lt ear a a 830 L,quor Pia 20 USC is? 13 430 w w and bewno 15 as eynw ss u d° ? MO BWt R.R a f11 i P 450 i? 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RELATED CASE(S) (See kaaatfctiona): IF ANY ti D 1 1 ?/ JUDGE DOCKET NUMBER OATE? / C)_5 SIONAT!JB flNEY OF REC0,RDr,-- , . I - __)7Z j UNITED STATES DISTRICT COURT CF T} I"z' 1 ,yk? =i codvwfan Data Fe' C IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON, MORRISON AND SONS TRANSPORTATION, INC. Plaintiffs; C" CIVIL ACTION CAPITAL AREA INTERMEDIATE UNIT; : NO. I :CV-05-0133 GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.; JUDGE RAMBO SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND JURY TRIAL BRUBAKER; PHILLIP STEINHOUR; THE BOARD :REQUESTED OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT: JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; 1 KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLE HAIRSTON-GREEN; ANNIE GUENIN; SUSAN KOMLENIC; MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; HOWARD DOUGHERTY; JEAN RICE; RICHARD FRY; STEVEN DART; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen : Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster, : representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic, representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D.: Rothermal, representative; NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative; SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative; SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; and UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative : WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; and WEST PERRY SCHOOL : 2 DISTRICT, Jean Rice, representative; Defendants FIRST AMENDED CIVIL COMPLAINT UNDER THE FEDERAL FALSE CLAIMS ACT, 31 U.S.C. §3730(h); PENNSYLVANIA WHISTLEBLOWER PROTECTION ACT; BREACH OF CONTRACT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, TORTIOUS INTERFERENCE WITH CONTRACT Gloria Lytle, Lytle Transportation, Roger Morrison, and Morrison and Sons Transportation, by and through their attorney, file this First Amended Complaint, and aver the following: INTRODUCTION I . This is an action to recover damages on behalf of Gloria Lytle, Lytle Transportation, Roger Morrison, and Morrison and Sons Transportation arising from their employment and position as transportation contractors. The actions arise from retaliation against plaintiffs for their efforts to blow the whistle against the defendants, in violation of the False Claims Act, 31 U.S.C. § 3730 (h) (the FCA); the contract between the parties; and other forms of retaliation, harassment, and intimidation. 2. Pursuant to the FCA, Plaintiffs seeks to recover damages for their loss of employment, and the resultant retaliation and harassment suffered as a result of 3 their whistleblower activities, pursuant to 31 U.S. C. §3730 (h). As a result of blowing the whistle on the actions of the defendants, Plaintiffs Gloria Lytle and Roger Morrison have suffered humiliation, embarrassment, loss of health, loss of income, and loss of employment. JURISDICTION AND VENUE 3. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1345; and 31 U.S.C. §3729 et seq. 4. Venue is proper in this District under 28 U.S.C. §§1391(b) and (c); and 31 U.S.C. §3729 et seq. PARTIES TO THE ACTION 5. Gloria Lytle is an adult individual. From 1974 to 2006, Ms. Lytle worked as a "transportation contractor," providing transportation services to children through the Capital Area Intermediate Unit. 6. At all times relevant hereto, Ms. Lytle provided these transportation services through Lytle Transportation, as an employee of or contractor to the Capital Area Intermediate Unit. 7. Roger Morrison is an adult individual. From 1985 to 2005, Mr. 4 Morrison has worked as a "transportation contractor," providing transportation services to children as an employee of or contractor to the Capital Area Intermediate Unit. 8. At all times relevant hereto, Mr. Morrison provided these transportation services through Morrison and Sons Transportation Services. 9. Defendant Capital Area Intermediate Unit (hereinafter, "CAIU") is a non-profit organization created by Act of the Commonwealth of Pennsylvania in 1972. Its office for the service of process is located at 55 Miller Street, PO Box 489, Summerdale, PA 17093-0489. 10. The CAN is neither a state agency, nor state entity, nor otherwise an arm of the state of Pennsylvania. 11. Therefore, the CAIU is subject to liability under the False Claims Act pursuant to Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765; 120 S. Ct. 1858; 146 L. Ed. 2d 836 (2000); and United States ex rel. Chandler v. Cook County, Illinois, et al, 538 U.S. 119; 123 S. Ct. 1239; 155 L. Ed. 2d 247 (2003). 12. The CAN provides, among other things, educational and transportation services to children who have been identified as requiring special education, special services, or early intervention services (hereafter referred to as 5 "identified children."). 13. The CAIU coordinates, among the participating school districts, the provision of special education services in the greater Harrisburg, PA, area to all such identified children. 14. The CAIU provides the majority of the transportation services for the identified children in school districts which participate with the CAN. The remainder of transportation services for identified children are provided by a few contractors who deal directly with individual school districts to transport their children. 15. Defendant Glenn Zehner, Ph.D., is the former Executive Director of the CAIU. Dr. Zehner has held this position from 1998 to 2006. 16. At all times relevant to this Complaint, Defendant Zehner acted in his official capacity, as Executive Director of the CAIU, and in his individual capacity. 17. Defendant Mark Bauer, Ph.D., is the former Assistant Executive Director of the CAN, a position he held from approximately 1993 through 2006. In 1974, Defendant Bauer began his employment with the CAN as a teacher. He then became the head of special education of the CAIU, ultimately being appointed Assistant Executive Director. 18. At all times relevant to this Complaint, Defendant Bauer acted in his 6 official capacity, as Assistant Executive Director of the CAIU, and in his individual capacity. 19. Defendant Scott Downey was the Transportation Coordinator for the CAN, a position he held from 1999 through 2007. 20. At all times relevant to this Complaint, Defendant Downey acted in his official capacity, as the Transportation Coordinator, and in his individual capacity. 21. Defendant Phillip Steinhour (hereinafter, "defendant Steinhour") was the former director of human resources for defendant CAIU. At all times relevant to this Complaint, defendant Steinhour acted in his official capacity, and in his individual capacity. 24. Defendant Hartman, Underhill and Brubaker (hereinafter, "defendant HUB") was the solicitor for the defendant CAN. At all times relevant to this complaint, defendant HUB acted by and through its partner, the late George Brubaker. 25. Defendant the Estate of George Brubaker (hereinafter, "defendant Brubaker") is sued in its representative capacity, as representative of the late George Brubaker. At all times relevant to this complaint, defendant Brubaker was the solicitor of defendant CAIU, and acted in both his official and personal 7 capacities. 26. Defendant Richard Fry (hereinafter, "defendant Fry") is the superintendant of defendant Big Spring School District. Defendant Fry is sued in his individual capacity, and as an agent of defendant Big Spring School District. 27. Defendant Steve Dart (hereinafter, "defendant Dart") is the business manager of defendant Big Spring School District. Defendant Dart is sued in his individual capacity, and as an agent of defendant Big Spring School District. 28. Defendants The Board of Directors of the defendant CAIU, and its members, including Jill Williamson, Arland Wagonhurst, Michael Mausner, Karen Christie, Bonnie Goble, Angela McMaster, Sheri T. Mater, Gary Shade, Danielle Hairston-Green, Annie Guenin, Susan Komlenic, Mark D. Rothermal, Joy McCreary, Dr. William Gould, Brian R. Cooper, Linda T. Butler, John Forney, Jr., Howard Dougherty, and Jean Rice (hereinafter, "defendant Board and its members") are named in their official and individual capacities. 29. Defendant Jill Williamson is named in her individual capacity, and as representative of defendant Camp Hill School District, 2627 Chestnut Street, Camp Hill, PA. At all times relevant to this complaint, Ms. Williamson acted as a representative and agent of defendant Camp Hill School District. 30. Defendant Arland Wagonhurst is named in his individual capacity, 8 and as the representative of defendant Carlisle School District, 623 W. Penn Street, Carlisle, PA. At all times relevant to this complaint, Mr. Wagonhurst acted as an agent of defendant Carlisle School District. 31. Defendant Michael Mausner is named in his individual capacity, and as the representative of defendant Central Dauphin School District, 600 Rutherford Road, Harrisburg, PA, 17109. At all times relevant to this complaint, defendant Mausner acted as an agent of the defendant Central Dauphin School District. 32. Defendant Karen Christie is named in her individual capacity, and as the representative of defendant Cumberland Valley School District, 67846 Carlisle Pike, Mechanicsburg, PA. At all times relevant to this complaint, defendant Chrisite acted as an agent of defendant Cumberland Valley School District. 33. Defendant Bonnie Goble is named in her individual capacity and as the representative of defendant Derry Township School District, P.O. Box 898, Hershey, PA. At all time relevant to this complaint, defendant Goble acted as an agent of defendant Derry Township School District. 34. Defendant Angela McMaster is named in her individual capacity and as the representative of defendant East Pennsboro Area School District, 26 Willow Way Drive, Enola, PA. At all times relevant to this complaint, defendant McMaster acted as an agent of the defendant East Pennsboro Area School District. 9 35. Defendant Sherri T. Matter is named in her individual capacity and as the representative of defendant Greenwood School District, 405 Sunberry Street, Millerstown, PA, 17062. At all times relevant to this complaint, defendant Matter acted as an agent of defendant Greenwood School District. 36. Defendant Gary Shade is named in his individual capacity and as the representative of defendant Halifax Area School District, 3940 Peters Mountain Road, Halifax, PA, 17032. At all times relevant to this complaint, defendant Shade acted as an agent of defendant Halifax Area School District. 37. Defendant Danielle Hairston-Green is named in her individual capacity and as the representative of defendant Harrisburg Area School District, 1201 N. 6`h Street, Harrisburg, PA, 17102. At all times relevant to this complaint, defendant Hairston-Green acted as an agent for defendant Harrisburg Area School District. 38. Defendant Annie Guenin is named in her individual capacity and as the representative of defendant Lower Dauphin School District, 291 East Main Street, Hummelstown, PA, 17036. At all times relevant to this complaint, defendant Guenin acted as an agent for defendant Lower Dauphin School District. 39. Defendant Susan Komlenic is named in her individual capacity and as the representative of defendant Mechanicsburg Area School District, 500 S. Broad 10 Street, Mechanicsburg, PA, 17055. At all times relevant to this complaint, defendant Komlenic acted as an agent for defendant Mechanicsburg Area School District. 40. Defendant Mark D. Rothermal is named in his individual capacity and as the representative of defendant Millersburg Area School District, 799 Center Street, Millersburg, PA, 17061. At all times relevant to this complaint, defendant Rothermal acted as an agent for defendant Millersburg Area School District. 41. Kermit Harry is named as the representative of defendant Newport Area School District, R.R. 3, Newport, PA, 17074. At all times relevant to this complaint, Mr. Harry acted as an agent for defendant Newport School District. 42. Defendant Joy McCreary is named in her individual capacity and as the representative of defendant Northern York County School District, 149 S. Baltimore Street, Dillsburg, PA, 17019. At all times relevant to this complaint, defendant McCreary acted as an agent of defendant Northern York County School District. 43. Defendant Dr. William Gould is named in his individual capacity and as the representative of defendant Shippensburg Area School District, 317 North Morris Street, Shippensburg, PA, 17257. At all times relevant to this complaint, defendant Gould acted as an agent of defendant Shippensburg Area School 11 District. 44. Defendant Brian R. Cooper is named in his individual capacity, and as the representative of defendant Steelton-Highspire School District, P.O. Box 7645, Steelton, PA, 17113. At all times relevant to this complaint, defendnat Cooper acted as an agent of defendant Steelton-Highspire School District. 45. Defendant Donna Lee Clendenin is named in her individual capacity and as the representative of defendant Susquentia School District, 1725 School House Road, Duncannon, PA, 17020. At all times relevant to this complaint, defendant Clendenin acted as an agent of defendant Susquenita School District. 46. Defendant Linda T. Butler is named in her individual capacity, and as the representative of defendant Susquehanna Township School District, 3550 Elmerton Avenue, Harrisburg, PA, 17109. At all times relevant to this complaint, defendant Butler acted as an agent of defendant Susquehanna Township School District. 47. Defendant John R. Forney, Jr., is named in his individual capacity and as the representative of defendant Upper Dauphin Area School District, 5668 State Route 209 , Lykens, PA, 17048. At all times relevant to this complaint, defendant Forney acted as an agent of defendant Upper Dauphin Area School District. 48. Defendant Howard Dougherty is named in his individual capacity and 12 as the representative of defendant West Shore School District, 507 Fishing Creek Road, P.O. Box 803, New Cumberland, PA, 17070. At all times relevant to this complaint, defendant Dougherty acted as an agent of defendant West Shore School District. 49. Defendant Jean Rice is named in her individual capacity and as a representative of defendant West Perry School District, 2606 Shermans Valley Road, Elliotsburg, PA, 17024. At all times relevant to this complaint, defendant Rice acted as an agent of defendant West Perry School District. 50. Hereinafter, the collective school districts and their representatives will be referred to as "defendant School Districts and their agents." 51. Defendants Board and its members, and defendant School Districts and their agents, are named for their repeated failure to act, to rectify the allegations described below, despite being notified of the violations alleged below, at numerous Board meetings. Defendant Board members, and Agents, are being named in their individual capacity for their actions taken outside the scope of their authority, by acting when they knew, should have known, or were negligent about the facts of the situation; and acted despite such knowledge or negligence. BACKGROUND TO THE CASE 13 52. The CAN provides transportation services to identified children through two sources. 53. First, the CAIU itself provides transportation to identified children through its own modest fleet of small buses. This first transportation source (the CAIU) accounts for approximately twenty five percent of all transportation provided to identified children in participating school districts served by the CAIU. 54. "Transportation contractors" (such as Lytle Transportation or Morrison and Sons Transportation) are the second source of transportation services; and provide the majority of the transportation services for identified children served by the CAN. 55. From 1972 to 1989, approximately 24 transportation contractors provided transportation services to the CAIU. From 1989 to the present approximately 13 transportation contractors have been providing these services to the CAN. 56. From approximately 2001 to 2004, Morrison and Sons was the largest transportation provider in the CAN , with annual gross revenues in 2003 of $1.8 million. 57. Due to an increase in the number of identified children, and a concomitant increase in the number of state and federal programs funding 14 education for children with special needs, the demand for transportation of special needs children has grown considerably over the past ten years. However, the number of transportation contractors serving the CAIU has not increased. 58. The CAIU receives funding for its services from a variety of sources, including from the federal government, both directly and through programs such as Medicare and Medicaid (which is partially funded by the federal government, and by the Commonwealth, respectively); from the Commonwealth of Pennsylvania, both directly (such as from the Pennsylvania Department of Education, or PDE), and through programs such as Medicaid (which is partially funded by the Commonwealth); from local school districts, and from private sources. 58a. Upon information and belief, local school district funding is actually held by the PDE, and provided directly to the CAIU through the PDE. PDE pays the local school district's share of transportation costs directly to the CAIU from PDE funds. The PDE informs the local school districts of the amount paid on their behalf. 59. Several programs, including Head Start, ESY (summer extended school year program), and Medicaid, directly fund the provision of transportation services for the CAIU. 60. All CAIU funding is based upon a set formula, which includes 15 consideration of the number of children being transported and miles driven. 61. Each year, the CAM enters into contracts with the transportation contractors for the provision of transportation services. 62. The annual contracts set the rate of payment for the contractors, setting the dollar paid per mile driven, and other matters related to compensation. 63. At all times relevant to this Complaint, transportation contractors are required, in order to be compensated for their services, to report to the CAN the number of children transported; the actual miles each vehicle is driven; the odometer readings of the vehicles; the loaded miles (miles driven with identified children on board); and the unloaded miles (miles driven without children present on the vehicles). 64. Transportation contractors serving the CAIU are paid according to a formula mandated by the Pennsylvania Department of Education (PDE). Some of the PDE funds used to pay for these services comes from the Federal government. 65. From 1974 to 2004, transportation contractors providing services for state-funded programs were paid according to a formula which paid them for all miles driven. The compensation rate per mile driven was set by a contract each year. This compensation rate takes into consideration the number of children being transported; the costs of transportation, and the costs of fuel. 16 66. Transportation was paid at a rate of all miles, loaded miles driven and unloaded miles driven. Defendant school districts were responsible for paying the CAIU for the unloaded miles. The CAIU paid the transportation contractors from these funds. 67. All of the monies for state-funded program transportation flowed through the CAN: the transportation contractors reported their mileage and number of children transported to the CAIU; the CAIU submitted requests for payment to the state and to the participating local school districts. 68. This formula for state-funded program transportation allowed for a cost of living increase each year. 69. During this same time period, transportation contractors performing services related to federally funded programs, such as the summer extended school year program (ESY), were compensated according to a formula whereby they were paid for all miles driven (loaded and unloaded), from funds directed to the CAN by the Federal Government. This compensation took into consideration the number of children being transported by the CAN. 70. The CAM required that transportation contractors and their drivers report number of children transported, and loaded and unloaded miles, for purposes of calculating the amount of compensation due to the transportation contractors 17 from the CAIU. 71. The CAIU considered transportation contractors to be their "personnel" for purposes of employment, and treated them as employees of the CAIU. 72. Evidence of this consideration of employment in the relationship included, but was not limited to, the following: requiring transportation contractors to only hire with the approval of the CAN; limiting the ability of contractors to take on any work outside of the work for the CAIU; representing to the Cumberland County Regional Special Education Consortium that the contractors were, in fact, employees of the CAN and therefore not permitted to bid for other work; setting the terms and conditions of employment; requiring drivers to follow CAM handbooks and wear CAM photographic identification; setting the rules for driver behavior; and maintaining control over how routes were assigned and driven. 73. In May, 2004, the CAIU changed its formula for paying transportation contractors for services provided. The state and federal government, and the PDE, did not change their method of compensating the CAM during this time period. 74. The new 2004 formula provided that all transportation contractors were to be paid based upon the loaded miles that they drove, comparing their 18 loaded versus unloaded miles driven. 75. If a transportation contractor drove more loaded miles than unloaded miles, then he or she would be paid at a rate of $1.13 per mile for the entire mileage driven (both loaded and unloaded miles). 76. If a transportation contractor drove more unloaded miles than loaded miles, then he or she would be paid at a rate of $1.13 per mile for double the loaded miles driven. 77. As a result of this new 2004 formula, transportation routes were only profitable if the number of loaded miles was greater than or equal to the number of unloaded miles. In these situations, a transportation contractor would be paid for all of the miles he or she had driven. 78. In the alternative, if a transportation route required that the contractor drive significantly more unloaded miles than loaded miles, the transportation contractors would not be paid for total miles driven, making the route unprofitable. 79. At all times relevant hereto, Defendant Downey was responsible for assigning transportation routes to the transportation contractors. 80. Although the transportation contractors are permitted to request changes in assignments, the CAIU is not required to honor these requests. 81. Therefore, whether a particular route had more loaded or unloaded 19 miles was under the sole discretion of defendant Downey and/or defendant CAN, as Ms. Lytle and Mr. Morrison had no control over the routes that were assigned to them, where particular children lived, and where particular children were picked up and dropped off. 82. Defendants the Board and its members, School Districts and their agents, were notified of this change, and its significant impact on Plaintiffs, at numerous Board meetings between May, 2004, and September, 2004, when Roger Morrison spoke at Board meetings; and presented written documents to these defendants. Despite this, Defendants Board and its members, and School Districts and their agents, refused to take any action to rectify the situation; and approved the contract as presented by defendants CAIU, Zehner, Bauer, Downey, Steinhour, Brubaker, and HUB. 83. In 2000, the CAN realized that the number of children it was responsible for transporting who were wheelchair bound necessitated the provision of wheelchair accessible transportation, and the use of wheelchair accessible vehicles. By contract, defendant CAN required transportation contractors to purchase wheelchair accessible vehicles. Most did not comply with this requirement, but Roger Morrison did. 84. After discussions with Mr. Morrison and others, defendant CAIU 20 agreed to increase the rate paid per mile driven for wheelchair accessible vans. This rate increase was intended to compensate contractors for the increased costs of purchasing and operating a wheelchair accessible van. Defendant Zehner approved this rate increase. 84a. This rate increase permitted transportation contractors with wheelchair vans to receive an increased rate for all wheelchair vans and a percentage of their non-wheelchair vans as well. For every two wheelchair vehicles on the road, transportation contractors were required to have another wheelchair vehicle sitting idle, in order to facilitate breakdowns and vehicle failures. 84b. As a result, contractors were paid an increased rate for both their wheelchair vehicles, and for another non-wheelchair vehicle, in order to offset the increased costs of purchasing, running and maintaining wheelchair accessible vehicles. 84c. The costs of running a wheelchair accessible vehicle were also significantly higher because the vehicles are more expensive to purchase, and the drivers of these vehicles were required to have additional skills and knowledge. Allegations Regarding False Odometer Reuortings 21 85. Beginning in September, 2001, the CAN required that all transportation contractors, before they could transport children, present their vehicles to the CAN for an odometer reading. 86. In approximately summer, 2001, transportation contractor Loren Stough, and his business, Stough Transportation, informed the other transportation contractors that they were ending their work as a transportation contractor. 87. Stough offered his vehicles for sale to the other transportation contractors. 88. Mr. Morrison investigated the possibility of purchasing these vehicles. 89. Mr. Morrison approached Defendants Downey and Bauer and requested information on the vehicles owned by Stough and Stough Transportation. 90. Defendant Downey provided Mr. Morrison with the mileage submitted by Stough and Stough Transportation. Mr. Morrison compared the submitted mileage to the actual odometer readings for the vehicles owned by Stough and Stough Transportation. 91. In reviewing the comparison of submitted mileage versus actual mileage driven, Defendant Downey reported to Mr. Morrison that the contractors involved with these vehicles had reported falsified mileage. Defendant Downey 22 acknowledged to Mr. Morrison that the mileage was falsified, in that Stough and Stough Transportation had reported driving more miles than they had actually driven. 92. This also meant that Stough Transportation had been paid for more miles than they had actually driven. 93. Defendant Downey acknowledged that Stough and Stough Transportation had been reimbursed for miles which had not been driven. 94. Defendant Downey later reported to Mr. Morrison that he had informed Defendant Bauer of the false mileage reports submitted by Stough and Stough Transportation. 95. Mr. Morrison met with the former drivers of Stough Transportation, and informed them of his intent to purchase the vehicles of Stough and Stough Transportation. 96. Shortly thereafter, Defendant Downey informed Mr. Morrison that Mr. Morrison would be forbidden from purchasing Stough Transportation as a going concern. 97. Mr. Morrison chose to purchase several vehicles from Stough and Stough Transportation. 98. Former drivers for Stough Transportation reported to Mr. Morrison 23 that they had never been required to file mileage sheets and/or to report odometer readings. 99. On subsequent occasions, Mr. Morrison asked Defendants Downey and Bauer as to the status of their investigation into the falsified miles on Stough's vehicles. Mr. Morrison never received a response to these questions from either Defendant Downey or Defendant Bauer, or from any other person. 100. On subsequent occasions, Defendants Downey and Bauer jokingly warned Mr. Morrison to be truthful on his mileage reports, and not "pull a Stough," or report falsified mileage. Allegations Regarding The Administrative Fee 101. In approximately 1993, a transportation provider, Rohrer Transportation, who was not a transportation contractor with defendant CAIU, came to a board meeting of Defendant CAIU and proposed that it would provide all of the transportation services to the CAIU. 102. Upon information and belief, the CAIU Board of Directors presented the Rohrer Transportation proposal to the participating school districts as a potential costs savings in the transportation of school children, in that a global contract with Rohrer Transportation would result in a cost savings for the CAIU of 24 three percent (3%). 103. Defendants Bauer and CAIU told the transportation contractors, including but not limited to Ms. Lytle and Mr. Morrison, that the Rohrer Transportation offer to provide services would have cost the Defendant CAIU approximately three percent (3%) less than what Defendant CAN was currently paying for transportation services using the transportation contractors. 104. Defendant CAN decided not to contract with Rohrer Transportation, but, instead, to continue employing the transportation contractors to provide transportation for identified children. 105. In order to reap the costs savings which would have resulted under the rejected Rohrer proposal, Defendants Bauer and the CAIU informed all of the transportation contractors that, in order to continue providing transportation services for the CAN, each transportation contractor would be required to refund to Defendant CAIU an amount equivalent to three percent (3%) of their gross income, paid semi-annually. 106. Defendant CAN referred to these 3% refunds as an "administrative fee." 107. Defendants Bauer and CAN told the contractors that these administrative fees, or refunded monies, would be used to support the costs of 25 transportation services for the entire CAN, would be deposited into the CAIU transportation accounts, and would be refunded to the participating school districts, thereby reducing the cost associated with transporting students identified for state and federal programs. 108. Defendant CAN has two separate bank accounts: one labeled the "General Fund;" the other labeled the "Special Fund." Transportation services accounts fall under the Special Fund. 109. Rather than deposit these 3% administrative fees/ refunds into the Special Fund, to fund transportation, Defendant CAN deposited these refunded monies into Defendant CAM's General Fund. Canceled checks for the administrative fees show that they were deposited into the General Fund. 110. Upon information and belief, Defendant CAN reported to the Federal Government, State, and local school districts, the full costs of the transportation without acknowledging the reduced costs of transportation to the CAM due to its receipt of the 3% refund, or "administrative fees." 111. Defendant CAM operated this program of "administrative fees" from 1993 to 2000. Allesations Regardine The Gasoline Purchase Prop-ram 26 112. Defendant CAIU, was, at all times relevant to this Complaint, and is exempt from paying some taxes, including tax on gasoline it purchases for its own fleet of vehicles. 113. Defendant CAN maintained a modest fleet of small buses for use in the transportation of children. From 1995 to 2006, this fleet amounted to approximately twenty five percent (25%) of all transportation provided by the CAIU. 114. Costs associated with transportation provided directly by Defendant CAM fleet is reported to the Federal, state, and local governments and Defendant CAIU receives reimbursement directly from the Federal, state, and local governments. 115. Defendant CAM also received direct reimbursement from the Federal, state, and local governments for its gasoline use. 116. In approximately 1996, Defendant CAN, by and through Defendants Bauer, offered the transportation contractors the opportunity to purchase all of their gasoline through the Defendant CAIU. 117. Defendants Bauer told the transportation contractors that they could purchase gasoline for their vehicles using Defendant CAM's gas purchase cards. Transportation contractors who wished to participate in this program were given 27 CAIU gas credit or purchase cards. 118. Asa result of purchasing gasoline through Defendant CAN, the transportation contractors would be permitted to purchase gasoline without paying the taxes on the gas. 119. Mr. Morrison purchased gasoline through the Defendant CAN; Ms. Lytle did not. 120. Defendant CAN required transportation contractors who purchased gasoline through the Defendant CAIU to pay to the Defendant CAN, the costs of the gas without tax, and, in addition, pay to the CAN a portion of the actual gas tax. 121. This payment of a portion of the tax was as payment of the "savings" the contractors had received. In essence, the contractors were required to share some of their costs savings with the Defendant CAIU. 122. At first, Defendant CAN required transportation contractors who were purchasing gas to pay Defendant CAN half of the tax that the contractor had "saved." 123. Defendant CAN later required participating transportation contractors to pay Defendant CAIU two thirds (2/3) of the tax amount, in addition to the actual, pre-tax cost of the gasoline. 28 124. Mr. Morrison participated in the program until February, 1999, but stopped participating due to irregularities in Defendant CAIU's tracking of gasoline purchases. 125. Defendants Bauer, and CAIU told the transportation contractors that this savings and reimbursement program would be used to offset school district's indirect costs of transportation, thereby lessening the need for local, state and Federal reimbursement. 126. In reality, the monies that the transportation contractors paid to Defendant CAIU under this gas tax savings program were deposited into Defendant CAIU's General Fund, not the Special Fund, which funds transportation. 127. Upon information and belief, this payment by the transportation contractors to Defendant CAN, of portions of the gasoline tax savings, was never reported to local, state, or federal funding sources. Instead, these gas purchase funds were used to fund budgetary shortfalls, or support investments, of the CAIU. 128. Upon information and belief, Defendants Bauer and the CAN were reporting these larger purchases of gasoline through the CAIU accounts as fuel for the CAIU vehicles. Use of CAIU vehicles, and the separate cost of purchasing fuel 29 for the fleet, upon information and belief, was then directly reimbursed by local, state, and federal sources. 129. This gas purchasing program ended in approximately June, 1999. Allegations Reaardina General Problems Related To Transuortation 130. Transportation contractors were required to enter contracts with Defendant CAN. Most contracts were for a two to three year period. 131. These transportation service contracts set the compensation rate for the transportation contractors. 132. Approximately every nine (9) days, transportation contractors were required to report to Defendant CAN their miles driven in order to be paid for their services. 133. These reports required the transportation contractors to report miles driven, routes driven, and odometer readings. 134. Before 2004, transportation contractors received compensation through Defendant CAIU for all of the miles that their vehicles were driven to transport identified children, for both loaded and unloaded. 135. Beginning July 1, 2004, Defendant CAIU paid transportation contractors using a new formula. Where unloaded miles exceeded loaded miles, the 30 contractor received payment based upon loaded miles alone, at a rate of loaded miles times two. Defendants Brubaker, HUB, the Board and its members, and School Districts and their agents, were aware of the effect this change would have, and nonetheless approved this contract. 136. As a result of the implementation of the July 2004 formula, as described above, only routes in which loaded miles exceeded unloaded miles, were profitable. 137. If unloaded miles exceeded loaded miles, all miles were not reimbursed, making the routes not profitable. 138. Defendants Bauer, Zehner, Downey, Steinhour, Brubaker, the Board and its members, the School Districts and their agents, and HUB were aware of this fact, as they were told of this fact repeatedly by Ms. Lytle and Mr. Morrison, both in person and at defendant CAM's board meetings. 139. Although Defendants were aware of the significant problems with driving routes where unloaded miles significantly exceeded loaded miles, Defendants Downey, Zehner, and Bauer continued to assign routes to Ms. Lytle and Mr. Morrison, on behalf of Morrison and Sons and Lytle Transportation, where the unloaded miles were significantly greater than the loaded miles. 140. Defendant CAIU paid Ms. Lytle and Mr. Morrison for transportation 31 services according to the formula as described above (that is, in a manner favoring those with more loaded miles, and rendering unprofitable routes where unloaded miles exceeded loaded miles). 141. However, other transportation contractors, including but not limited to G & S Transportation, PJ Transportation, Miller Transportation, and Frye Transportation, were paid for their routes under the old formula, whereby Defendant CAIU compensated them for all miles driven; and/or were given routes where loaded miles exceed unloaded miles, in order to make those routes profitable. 142. Defendants Downey, Zehner, Bauer, and the CAIU permitted some transportation contractors, (including but not limited to G & S Transportation, PJ Transportation, Miller Transportation, and Frye Transportation) to submit inflated mileage reports, then paid these contractors pursuant to their inflated mileage reports. 143. Defendant Downey himself has inflated the mileage reports which Defendant CAIU submitted to Federal and State governments for reimbursement. Defendant Downey, would embellish the number of routes driven, and the number of miles driven, and the number of children transported, in order to increase the amount of reimbursement funds coming to Defendant CAIU from the Federal and 32 State governments. 144. Defendants Downey, Bauer, and Zehner would also falsely report the number of identified children being transported by the CAN, in order to make it appear as though more children were being transported than actually were. This inflation artificially increased the funding to the CAN by the state and Federal governments. Reporting of the Alleged Frauds 145. In October, 2003, Ms. Lytle and Mr. Morrison became more concerned about all of the situations as alleged above. 146. In response to these concerns, Mr. Morrison met with Defendant Zehner to notify him of the improprieties, the ongoing poor treatment of Gloria Lytle by the defendant CAIU, and the potential or real fraud these situations were causing to the Federal and state governments. 147. Defendant Zehner acted concerned about these allegations, and suggested that they meet again, with the solicitor of the CAN, defendant George Brubaker, on behalf of defendant Hartman, Underhill, and Brubaker, present. Defendant Zehner also stated that he would discuss the poor treatment of Gloria Lytle with defendant Bauer. 33 148. Around this same time, in October, 2003, Mr. Morrison met with defendant Bauer to express Mr. Morrison's concerns about the poor treatment received by Gloria Lytle. 149. Questioned by Mr. Morrison, Defendant Bauer admitted that he had targeted Ms. Lytle for poor treatment. 150. Despite these efforts, defendants continued to treat Ms. Lytle poorly. Defendant Zehner refused to accept Ms. Lytle's paperwork for payment when she attempted to submit the papers. Defendant Steinhour refused to rectify the situation; and told Ms. Lytle to limit her interaction with the staff of defendant CAIU. Ms. Lytle discussed the fact that defendant CAN employees treated her poorly with defendant Steinhour, and he refused to take any actions to rectify the situation. 151. On December 15, 2003, Ms. Lytle and Mr. Morrison met at the offices of defendant HUB, with defendant Brubaker, a partner at defendant HUB, defendant Zehner, and another attorney who worked for defendant HUB, and laid out in detail the allegations regarding potential fraud at the defendant CAIU, and the poor treatment of Ms. Lytle, as discussed above. 152. Defendants Bauer, Zehner, Downey, Brubaker and HUB were notified by Ms. Lytle and Mr. Morrison of the improprieties alleged above. Shortly after 34 the December 15, 2003 meeting began, defendant Brubaker told Mr. Morrison and Ms. Lytle that he had "heard enough" and that he (Brubaker) knew what had to occur next. 153. In mid-January, 2004, Mr. Morrison received a phone call from an attorney at defendant Hartmann, Underhill, and Brubaker. 154. This associate attorney, Mr. Lovett, demanded to know from Mr. Morrison the source of his information, and any other persons that may be providing Mr. Morrison with legal advice regarding Mr. Morrison's proposed investigation of defendant CAIU activities. When Mr. Morrison refused to answer, the associate took a nasty and accusatory tone, and hung up on Mr. Morrison. 155. In late February, 2004, dissatisfied by the defendant CAM's failure to act upon their complaints, Ms. Lytle and Mr. Morrison took their complaints to the Federal Bureau of Investigation. 156. On or about April 1, 2004, an FBI agent visited the defendant CAN and met with defendant Zehner. 157. Shortly thereafter, defendant Bauer told an officer of Morrison and Sons that he was going to "ruin" Mr. Morrison for Morrison's actions of blowing the whistle. 35 Repercussions from the Actions of Ms. Lytle and Mr. Morrison 158. Beginning in July 1, 2004, Defendant CAN, by and through Defendants Downey, Zehner, Bauer, the Board and its member, the School Districts and their agents, Brubaker, and HUB, reduced by approximately seventy four percent (74%) the reimbursement rate paid to transportation contractors who transported identified children in wheelchair accessible vans. 158a. Defendant CAN was required to transport special needs children who were in wheelchairs to their educational programs. 159b. Defendants were aware of the increased expenses associated with operating such vehicles. 159c. Wheelchair vans cost are approximately double that of non- wheelchair vans, and require a driver with additional capabilities to manage the wheelchairs on vehicles, necessitating the payment of a greater wage for these drivers. As a result, wheelchair accessible vans are more expensive to operate than other vans. 159d. In recognition of these increased costs, and in order to permit wheelchair accessible vehicles to be purchased and used by transportation contractors, in 2000, defendant CAN agreed to pay an increased rate to the contractors who supplied wheelchair accessible vehicles. 36 160. Mr. Morrison owned more wheelchair vehicle units (14) than all other transportation contractors serving Defendant CAN combined (twelve other contractors owned a combined twelve wheelchair vans). 161. This July, 2004, reduction in payment for wheelchair accessible vans had a disproportionate effect on Mr. Morrison and Morrison and Sons Transportation. The reduced rate of compensation for those fourteen vehicles created a situation where Mr. Morrison's entire business was not profitable. 162. Defendants were repeatedly notified by Mr. Morrison, between May, 2004, and September, 2004, that the decreased rate of pay for wheelchair vehicles would make these routes unprofitable for any contractor, regardless of loaded versus unloaded miles; would force Morrison and Sons out of business; and was being done solely to punish Mr. Morrison. 163. As a result of these changes in compensation rates for wheelchair- accessible vans, Mr. Morrison was forced to declare bankruptcy and close his business as of September 27, 2004. 164. From September 27, 2004, to present, Defendants Downey, Zehner, Bauer, and the CAN have, upon information and belief, been providing additional compensation to other transportation contractors who transport wheelchair-bound identified children, without reporting such to the Federal, state and local 37 governments. Upon information and belief, the CAN inflates the mileage associated with these wheelchair vans in order to both cover the costs of this transportation, and to provide additional compensation to the transportation contractors providing these services. 165. The basis for the averment that mileage and/or payments associated with wheelchair transportation have been inflated is that payment inflation is the only means for enabling the remaining wheelchair van operators to profitably transport the wheel-chair bound identified children. 166. Other transportation contractors, including Mike Sweiger and Linda Frye, reported in August, 2004, that they were purchasing new vans, despite knowledge that the July 2004 compensation rate had significantly decreased. Ms. Frye justified her van purchase by remarking, "Life is a gamble." 167. From 1998 to June, 2006, Ms. Lytle and Lytle Transportation were frequently singled out and treated poorly by the defendants, including repeatedly harassed, assigned routes with significantly more unloaded miles versus loaded miles; and unfairly having routes removed from her work load. As a result of the harassment, intimidation, and unfair treatment, Ms. Lytle and Lytle Transportation were forced to stop performing work in June, 2006. 38 COUNTI PLAINTIFF GLORIA LYTLE VERSUS DEFENDANT CAIU VIOLATION OF THE FALSE CLAIMS ACT, 31 U.S.C. -43730 (h) 168. Plaintiff Gloria Lytle incorporates paragraphs 1 through 167 as though set out at length herein. 169. Gloria Lytle has been a transportation contractor since 1974. 170. From 1974 to July, 2004, Ms. Lytle had received good reports and recommendations for the quality and service of her work. 171. Despite a history of good work performance, Ms. Lytle has frequently been the subject of harassment and intimidation by defendant CAN employees, including but not limited to, Defendants Bauer, Zehner, and Downey. 172. For instance, former transportation coordinator Deanna Rose bragged to other transportation contractors in 1998 that she so disliked Ms. Lytle that she had contacted the IRS and made allegations against Ms. Lytle. 173. For instance, in the Fall of 2003, Defendant Bauer, questioned by Mr. Morrison, admitted that he had targeted Ms. Lytle for poor treatment. 174. In November, 2003, Mr. Morrison met with defendant Zehner to discuss the poor treatment of Ms. Lytle. Defendant Zehner agreed to discuss this poor treatment with defendant Bauer, and others, yet defendants continued to treat 39 Ms. Lytle poorly. 175. Shortly thereafter, defendant Zehner refused to receive work related paperwork from Ms. Lytle. 176. On December 15, 2003, Ms. Lytle, along with Mr. Morrison, met with Defendants Zehner and defendant HUB partner, defendant Brubaker, and reported harassment of Ms. Lytle, and improprieties in the manner in which business was conducted at the CAIU, as alleged above. 177. Rather than deal with these reports of harassment and inappropriateness, Defendants dismissed Ms. Lytle's complaints, and have, ever since, continued their systematic harassment of Ms. Lytle. 178. Such harassment of Ms. Lytle included, among other things: repeated requests for licensure and/or insurance information; repeated failure to fairly assign work to Ms. Lytle; exclusion of Ms. Lytle from opportunities given to other transportation contractors to obtain new work, both before and after Morrison and Sons declared bankruptcy; failure to use the agreed upon methods for assigning work, including the priority list, so as to exclude Gloria Lytle; harassing phone calls from Defendant Downey; and other acts of harassment and intimidation. 179. The actions of Ms. Lytle, in reporting fraud to her employers, were taken in furtherance of an action under the False Claims Act. 40 180. Ms. Lytle notified Defendant Zehner, as an individual and in his capacity to act on behalf of Defendant CAN, and informed the solicitor, defendant Brubaker and defendant HUB, that the acts of the Defendants were illegal and fraudulent. 181. Ms. Lytle repeatedly requested to know what actions Defendants Zehner and Brubaker were taking to rectify the illegal and unethical practices at Defendant CAN. No Defendant responded. 182. Frustrated by the lack of response from Defendants, Ms. Lytle repeated her complaints about the illegal and unethical practices at Defendant CAIU to the FBI. 183. As a result of notifying the Defendants, and the FBI, about the potential illegalities at the CAN, Ms. Lytle has been threatened, harassed, and discriminated against with regard to the terms and conditions of her employment. 184. As a result of this employment retaliation, Ms. Lytle has been humiliated and demeaned. 185. As a result of this employment retaliation, Ms. Lytle has suffered damages, including but not limited to emotional pain and suffering, and physical worsening of her health. 41 COUNT II PLAINTIFF ROGER MORRISON VERSUS DEFENDANT CAIU VIOLATION OF THE FALSE CLAIMS ACT, 31 U.S.C. 43730 (h) 186. Plaintiff Roger Morrison incorporates paragraphs 1 through 185 as though set out at length herein. 187. Mr. Morrison began working as a transportation contractor in 1985. Before that time, Mr. Morrison had performed transportation services for his mother, June Morrison, who has been a transportation contractor since 1976. 188. Since becoming a transportation contractor, through Morrison and Sons, Mr. Morrison had built his business to become the largest transportation contractor serving the defendant CAN. 189. Morrison and Sons' gross income for 2003 was $1.8 million. 190. After becoming aware of the illegalities in the practice of Stough and Stough Transportation, and the failure of defendants to address and rectify this situation, Mr. Morrison became concerned about the legality of many practices occurring at the CAN. 191. As a result of these concerns, as alleged above, Mr. Morrison met with Defendant Zehner in November, 2003. 192. After airing their concerns to Defendant Zehner, Mr. Morrison and 42 Ms. Lytle agreed to meet with Defendants Zehner and Brubaker on December 15, 2003. Mr. Morrison and Ms. Lytle even suggested changing the meeting site to defendant Brubaker's office, to insure that the meeting would occur without interruption by other CAN staff. 193. The defendants failed to act upon the information presented by Mr. Morrison at this meeting. 194. After the meeting, in early 2004, Mr. Morrison asked Defendant Zehner what the status of the investigation was, but received no response. 195. Mr. Morrison's actions were taken in furtherance of an action under the False Claims Act. 196. When, by late February, 2004 Mr. Morrison and Ms. Lytle had not received a response from Defendant Zehner, Mr. Morrison, and Ms. Lytle, reported their allegations of fraud to the FBI. 197. Shortly after this meeting, defendant Bauer called Mr. Morrison, mentioned that defendant Bauer had been called by the FBI, and threatened Mr. Morrison. 198. The FBI visited the CAIU in April, 2004. 199. Shortly after this visit by the FBI, Defendant Bauer told an officer of Morrison and Sons that the CAIU was going to personally financially ruin Mr. 43 Morrison for his reporting of the alleged frauds occurring at the CAN. 200. In May, 2004, the new contract for transportation contractors was issued by the CAIU. 201. As stated earlier, Morrison and Sons operated more wheelchair- accessible vans for Defendant CAN than the other 12 transportation contractors, combined. 202. This new contract reduced the regular overall rate of pay from $1.16 per mile to $1.13 per mile. 203. This new contract also reduced the rate of pay for wheelchair accessible vans from $1.20 per mile to $1.13 per mile. 204. For Mr. Morrison, who was receiving $1.20 for all of his wheelchair vans and for some of his non-wheelchair vans, this reduction in rates caused all of his routes to be reduced to $1.13 per mile. 205. This act of reducing the rate of pay for wheelchair accessible vans was directed at harming Mr. Morrison personally and solely, in that it intentionally affected Mr. Morrison to the greatest degree because he was, by a very large margin, the largest provider of wheelchair vans to the defendant CAN. 206. As a result of this reduction in compensation, triggered by Mr. Morrison's complaints about illegal acts, Mr. Morrison was forced to use his 44 personal savings to fund the shortfall in receipts by Morrison & Sons resulting from the reduction in compensation for wheelchair accessible, and all, vans. 207. As a result of his complaints, Mr. Morrison suffered from harassment, threats, and discrimination in the terms of his employment. 208. As a result of this discrimination in the terms of his employment, Mr. Morrison was forced to stop transporting school children, and was forced to stop working as a transportation contractor, on September 27, 2004. 209. As a result of this discrimination in the terms of his employment, Mr. Morrison was forced to lay off his employees, resulting in the failure to pay some of his employees. One employee suffered a heart attack and died as a result of the stress this caused. 210. Defendants have continued to discriminate and harass Mr. Morrison, including Defendants' continued refusal to pay Mr. Morrison for transportation services he had performed for the CAN; and harassment of Mr. Morrison during the time he worked assisting Ms. Lytle. 211. As a result of the defendants' actions, Mr. Morrison has been damaged. COUNT III PLAINTIFF ROGER MORRISON 45 VERSUS DEFENDANT CAIU VIOLATION OF THE PENNSYLVANIA WHISTLEBLOWER LAW 43 P.S. Section 1423 212. Roger Morrison incorporates Paragraphs 1 through 211 as though set out at length herein. 213. Roger Morrison is an employee or contractor for hire, as that term is defined under the Pennsylvania Whistleblower's Law. 214. Roger Morrison made a good faith report to his employer and/or appropriate authorities of instances of wrongdoing and/or waste (i.e., gas purchase program, administrative program, false reporting of mileage by Stough and Stough Transportation, improper and illegal payment of mileage to drivers), which were violations of Pennsylvania statutes, and which also constituted waste of public funds. 215. Defendant CAIU discriminated and/or retaliated against Roger Morrison, in violation of the Pennsylvania Whistleblower Law, by reducing Roger Morrison's compensation; thereby forcing Mr. Morrison out of business. 216. Defendants knew, or should have known, that their actions would result in a violation of Roger Morrison's rights under the Pennsylvania Whistleblower Law, in that, among other things, the contracts entered into in June, 2004, discriminated solely against Mr. Morrison and Morrison and Sons 46 Transportation, the largest wheelchair van transportation contractor in the CAN area. 217. Such retaliatory actions by Defendants created a hostile work environment for Roger Morrison, and resulted in his constructive and actual discharge, caused Roger Morrison to file for bankruptcy, and caused Roger Morrison to suffer from mental anguish, physical pain and suffering. COUNT IV PLAINTIFF ROGER MORRISON AND MORRISON AND SONS TRANSPORTATION VERSUS DEFENDANT CAIU BREACH OF CONTRACT 218. Plaintiffs incorporate paragraphs 1 through 217 as though set out at length herein. 219. Plaintiff Roger Morrison and Morrison and Sons Transportation, entered into a contract with Defendant CAN for the provision of transportation services. 220. Roger Morrison notified Defendant CAIU on numerous occasions that the June, 2004, contract would not allow Morrison and Sons Transportation to operate, since it failed to compensate for the costs of transporting wheelchair bound children. 47 221. Despite repeated requests for assistance in the resolution of the contract issues, Defendant CAIU failed to resolve its contract disputes with Morrison and Sons, or to provide economic assistance to permit Roger Morrison to safely and adequately transport wheelchair bound children. 222. Mr. Morrison's contract with the CAIU required Morrison and Sons to safely and adequately transport wheelchair bound, and other, children. 223. As a result of the inability to safely and adequately transport children, and the repeated failure of defendant CAIU to negotiate in good faith and in a non- discriminatory manner, Roger Morrison, and Morrison and Sons, was forced to cease transporting children for Defendant CAN. 224. On the evening of September 26, 2004, Roger Morrison called two representatives of Defendant CAN, to notify them of his impending bankruptcy, and his inability to maintain transportation services for Defendant CAIU children. 225. Despite this notification, Defendant CAN failed to mitigate its damages, by failing to negotiate in good faith with Roger Morrison; failing to rectify a situation created by the CAIU in violation of its contract; failing to contract in good faith; and failing to provide for the transportation of these children on the morning of September 27, 2004. 226. Defendant CAN has failed to pay Morrison and Sons for work 48 performed under contract on or before September 25, 2004. 227. Defendant CAIU has held the payments owed to Roger Morrison for services performed on or before September 25, 2004. 228. Defendant CAN has failed to provide proof of any expenses, real or imagined, related to their failure to mitigate damages on the morning of September 27, 2004. 229. Defendant CAN has breached it obligations under the contract for employment between the parties by failing to pay Roger Morrison for work provided; by failing to negotiate the contract in good faith; and by creating a situation that forced not only the breach of contract, but the collapse of the Morrison and Sons business. 230. As a result of the CAIU breach of contract, Roger Morrison and Morrison and Sons has been damaged. COUNT V PLAINTIFF ROGER MORRISON AND MORRISON AND SONS TRANSPORTATION VERSUS DEFENDANTS GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.;SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND BRUBAKER; PHILLIP STEINHOUR; THE BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT: JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLEHAIRSTON-GREEN; ANNIE 49 GUENIN; SUSAN KOMLENIC; MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; HOWARD DOUGHERTY; JEAN RICE; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster,representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic,representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative; NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative; SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative; SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; and UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative; WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; WEST PERRY SCHOOL DISTRICT, Jean Rice, representative. TORTIOUS INTERFERENCE WITH EXISTING CONTRACT 231. Plaintiff Roger Morrison incorporates paragraphs 1 through 230 as though set out at length herein. 232. The actions of the above named defendants to force Mr. Morrison, and Morrison and Sons Transportation, out of business, amount to tortious interference 50 with an existing contract. 233. A contract existed between defendant CAIU and Morrison and Sons Transportation. Plaintiff Roger Morrison was an officer and owner of Morrison and Sons Transportation. 234. The actions of the above named defendants, as alleged above, were taken specifically, and negligently, to harm plaintiffs Roger Morrison and Morrison Transportation. 235. Defendants had no privilege or justification in taking those actions, as they knew that the reduction in reimbursement for wheelchair accessible vehicles would force Mr. Morrison, and Morrison Transportation, to stop transporting wheelchair bound children. 236. The CAN was legally obligated to transport wheelchair bound children as part of its function as an intermediate unit. 237. The above named defendants knew that Morrison and Sons, and Roger Morrison, was the main or prime transporter of wheelchair bound children in the area served by defendant CAIU. 238. The above named defendant knew, because they were told repeatedly by Roger Morrison, that the reduction in rate of payment for wheelchair bound vehicle would prevent Morrison and Sons from transporting wheelchair bound 51 children. 239. The sole justification for the above named defendants' actions was retaliation against Roger Morrison. 240. Despite the knowledge that their actions would force Morrison and Sons out of business, the above named defendants acted negligently, and proceeded to reduce the rate of compensation for wheelchair accessible vehicles, thereby pushing Morrison and Sons, and Mr. Morrison, out of business, and leaving the wheelchair bound children without sufficient access to education. 241. Asa direct result of the above named defendants' actions, Morrison and Sons, and Roger Morrison, suffered actual damages, including loss of business, loss of income, and personal torment, physical and emotional damages, and humiliation. One of the drivers for Morrison and Sons suffered a heart attack and died immediately after this action as a result of the stress. COUNT VI PLAINTIFFS GLORIA LYTLE AND LYTLE TRANSPORTATION VERSUSDEFENDANTS GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D.;SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND BRUBAKER; PHILLIP STEINHOUR; THE BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT: JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLEHAIRSTON-GREEN; ANNIE GUENIN; SUSAN 52 KOMLENIC; MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster,representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic,representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative; NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative; SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative; SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative; WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; and WEST PERRY SCHOOL DISTRICT, Jean Rice , representative. TORTIOUS INTERFERENCE WITH CURRENT CONTRACT 242. Plaintiffs Gloria Lytle and Lytle Transportation incorporate paragraphs one through 241 as though set out at length herein. 243. Plaintiffs had an ongoing contract with defendant CARD, from 1974 through June, 2006. 244. The above named Defendants intentional and negligently created a 53 hostile work environment, with the intent, or negligent of their actions, of forcing Ms. Lytle and Lytle Transportation to go out of business. 245. Such actions on the part of defendants include, but are not limited to, constant phone calls, threats of non payment; constant checking on the location of Lytle Transportation vehicles; harassment by phone; negligent and/or intentional assignment of unprofitable routes; failure to take seniority into consideration with reassignment of routes; and other forms of harassment, intimidation, and threats. 246. Defendants actions were taken with the intent of harming Lytle Transportation, harming Ms. Lytle, stopping Ms. Lytle from complaining about improprieties, and forcing Ms. Lytle and Lytle Transportation out of business. 247. Defendants had no justification or privilege for their conduct. 248. As a result of the defendants' actions, Ms. Lytle and Lytle Transportation were forced to close a business that had operated successful since 1974. This closure occurred in June, 2006. 249. As a result of having to close her business, and liquidate Lytle Transportation, both Lytle Transportation and Gloria Lytle have suffered injuries, including economic, personal, and emotional injuries. COUNT VI PLAINTIFFS ROGER MORRISON, GLORIA LYTLE, AND LYTLE 54 TRANSPORTATION VERSUS ALL DEFENDANTS TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACT 250. Plaintiffs incorporate paragraphs one through 249 as though set out at length herein. 251. In June, 2005, several school districts, including, Big Spring School District, Mechanicsburg Area School District, South Middleton School District, Carlisle Area School District, and Northern York School District, broke away from defendant CAN for purposes of serving the special education needs of their students. The newly formed group is called the Cumberland County Regional Special Education Consortium (hereinafter, "the Cumberland Consortium"). 252. As a result of this split, the Cumberland Consortium sought bids or proposals for the performance of transportation services for their school children. 253. Plaintiff Lytle Transportation, by and through plaintiffs Roger Morrison and Gloria Lytle, were never told or made aware of the existence of this work, despite the fact that they were transporting students from the Cumberland Consortium at the time of the bid requests. 254. Plaintiffs were never allowed to submit bids for the performance of this work, as the Cumberland consortium would not accept the bids. 255. Defendant CAN submitted a bid for the performance of this work. 55 256. Defendant CAM's bid specifically stated that, upon information and belief, should defendant CAN be awarded the work, all employees and contractors of defendant CAN would perform the work, and therefore, that defendant CAM's bid required the work effort of all employees and transportation contractors, and that these contractors consented to be bound by defendant CAM's bid. 257. Plaintiffs never consented to be bound as such; or to perform work for defendant CAN under a potential Cumberland consortium contract. 258. Defendants Richard Fry and Steve Dart told plaintiffs that they had no need to submit a bid for this work, and that, because of their past performance of work transporting defendant Big Spring School District students, they would automatically be considered for this work. 259. Defendant Fry and Dart's representations were false, and were made to prevent Plaintiffs from submitting a bid for work. 260. As a result of defendant CAM's actions, and the lies and misrepresentations of defendants Fry and Dart, plaintiffs bid for work, and attempts to bid for work, were barred and/or rejected by the Cumberland Consortium. 261. Plaintiffs attempted to resolve this dispute by seeking injunctive relief, 56 but were denied. 262. As a result of the actions of defendants, plaintiffs were not considered for, and did not receive, the contract from the Cumberland Consortium. 263. A potential contractual relationship existed between plaintiffs and the Cumberland consortium. Lytle Transportation was previously transporting Big Springs School District students, and had a positive relationship with those students and their parents. 264. Defendants had no justification or privilege for preventing plaintiffs to enter this contractual relationship. 265. Despite the absence of privilege or justification, defendants prevented the plaintiffs' ability to enter the bidding process. 266. As a result of defendants' actions, plaintiffs were injured by their failure to obtain work. COUNT VII PLAINTIFFS GLORIA LYTLE AND ROGER MORRISON VERSUS ALL DEFENDANTS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 267. Plaintiffs Gloria Lytle and Roger Morrison incorporate paragraphs 1 through 266 as though set out at length herein. 57 268. Defendants acted with the intention of causing Gloria Lytle and Roger Morrison to suffer extreme emotional distress. 269. Defendants' conduct was so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. 270. Defendants' outrageous conduct occurred in retaliation against plaintiffs Gloria Lytle and Roger Morrison. Defendants continued this outrageous conduct despite knowledge that they had already forced Morrison and Sons out of business, showing their intent to continue until they forced Lytle Transportation out of business. 271. Asa result of the Defendants' conduct, Gloria Lytle and Roger Morrison suffered severe mental anguish, physical pain and suffering, increased fatigue, sleeplessness, depression, embarrassment, shame and humiliation. 272. As a result of the Defendants' conduct, Roger Morrison suffered a heart attack and is permanently disabled. As a direct result of the defendants' actions, Roger Morrison is permanently disabled due to psychological injuries. 273. The Defendants are jointly and severally liable for their conduct. 58 DAMAGES SOUGHT 274. As a result of the actions alleged above, Gloria Lytle has been damaged. 275. Gloria Lytle's damages are in excess of $100,000. 276. As a result of the actions alleged above, Roger Morrison has been damaged. 277. Roger Morrison's damages are in excess of $100,000. WHEREFORE, Plaintiffs, Gloria Lytle, and Roger Morrison seek damages as follows: As to Plaintiff Gloria Lytle and Lytle Transportation: damages in the amount of two times back pay plus interest, forward pay, lost benefits, compensation for special damages, including for emotional pain and suffering; relief necessary to make her whole, including: the level of seniority status of other similarly situated transportation contractors; compensation for special damages sustained as a result of the discrimination and retaliation; damages sustained as a result of the tortious conduct of the defendants; breach of contract damages; litigation costs and reasonable attorneys' fees; prejudgement and postjudgement interest; damages as 59 permitted under 18 U.S.C. §§1961-68; damages for lost business; damages for prospective business losses, and all other damages as allowed by law or Order of the Court. As to Plaintiff Roger Morrison and Morrison and Sons Transportation: damages in the amount of two times back pay plus interest, forward pay, lost benefits, compensation for special damages, including for emotional pain and suffering; relief necessary to make him whole, including the level of seniority status of other similarly situated transportation contractors; compensation for special damages sustained as a result of the discrimination; damages sustained as a result of the tortious conduct of the defendants; breach of contract damages, including the value of making his business whole; litigation costs and reasonable attorneys' fees; prejudgement and postjudgement interest; damages as permitted under 18 U.S.C. §§1961-68; and all other damages as allowed by law or Order of the Court. WHEREFORE, the Plaintiffs seek judgement in their favor and against the Defendants in this matter. JURY TRIAL DEMANDED. 60 RESPECTFULLY SUBMITTED, s/Regina D. Poserina REGINA D. POSERINA Attorney for Plaintiffs Gloria Lytle, Lytle Transportation, Roger Morrison, and Morrison and Sons Transportation 61 -Inv 1. ; t',` ___ -7 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GLORIA LYTLE LYTLE TRANSPORTATION; ROGER MORRISON- MORRISON & SONS TRANSPOR'T'ATION, INC. Plaintiffs, V. CAPITAL AREA INTERMEDIATE UNIT, et al., Defendants. No. 1:05-CV-0133 JUDGE SYLVIA H. RAMBO MEMORANDUM Before the court are cross motions for summary judgment (Docs. 64 and 67). By order dated July 14, 2008, the court directed the parties to engage in discovery on the issue of whether Plaintiffs Gloria Lytle and Roger Morrison were employees or independent contractors of Defendant Capital Area Intermediate Unit ("CAIU"). This distinction is essential to the outcome of the case because Plaintiffs' sole federal claim is under the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3130(h), which allows only employees to bring retaliation claims. If Lytle and Morrison were not employees of the CAIU, then they do not have standing to bring a False Claims Act case. Furthermore, since all of the other claims brought by Plaintiffs are for alleged violations of state law, this court would dismiss those claims for lack of supplemental jurisdiction. The court has reviewed the cross- motions for summary judgments, the response and replies thereto, and for the reasons that follow finds as a matter of law that neither Morrison nor Lytle were employees of the CAIU. I T I I. Background A. Facts The following facts are undisputed, except where noted. 1. Parties The CAIU is a non-profit organization providing, among other things, educational and transportation services to children who have been identified as requiring special education or early intervention services. (Pls.' Stat. Mat. Facts ¶¶ 7-8.) The CAIU provided this transportation either through employee drivers or through written contracts with transportation contractors such as Lytle and Morrison. (Defs.' Ex. C to Stat. of Mat. Facts, Glenn Zehner Dep. 18.) Plaintiff Roger Morrison provided transportation services to the CAIU from 1985 though 2000 as a sole proprietor, (Defs.' Ex. A to Stat. of Mat. Facts, Roger Morrison Dep. 25), and from 2000 through 2004 as the owner of Morrison and Sons Transportation Services. (Id. at 6-7.) In late 2004, Morrison and Morrison and Sons Transportation filed bankruptcy, went out of business, and ceased providing transportation services for the CAIU. (Id. at 27.) After going out of business, Morrison went to work for Gloria Lytle as the business manager for Lytle Transportation, Inc. (Defs.' Ex. B to Stat. of Mat. Facts, Gloria Lytle Dep. 30-31.) Plaintiff Gloria Lytle provided transportation services for the CAIU from 1974 through 1995 as a sole proprietor, (Id. 38), and from 1995 though 2006 as the owner of Lytle Transportation, Inc. (Id. at 9.) In 2006, Lytle Transportation went out of business. (Id. at 27.) 2. Contracts All transportation contractors were required to enter into contacts in order to receive work, perform, or be paid. (Id. at 46-47.) Lytle and Morrison were at all times transportation contractors with written contracts to provide 2 ? i transportation services to the CAIU. (Defs.' Ex. to Stat. Mat. Facts, Exhibits H through N, Contracts ¶ 20.) Each of the contracts that Morrison and Lytle executed with the CAIU from 1997 through 2005 were standard contracts for all transportation contractors, and each contained the following language: It is understood and agreed to by both parties hereto that the CONTRACTOR, while engaged in carrying out and complying with any of the terms and conditions of this contact is for all purposes an INDEPENDENT CONTRACTOR and is not and shall not be deemed to be an officer, agent or employe [sic] of the BOARD, and neither party shall contend that CONTRACTOR is an officer, agent or employe [sic] of the BOARD. (Id. at ¶ 20.) Each year before the contracts with transportation contractors were signed, the CAIU held meetings for the transportation contractors to ask questions about the contract. (Lytle Dep. 46-48.) Both Morrison and Lytle read each contract before they signed it, and knew that it contained the above quoted language. (Morrison Dep. 39; Lytle Dep. 46-47). Neither Lytle nor Morrison had an obligation to sign a particular contract from one year to the next, and they were not guaranteed that they would have a contract from one contract period to the next. (Defs.' Ex. D to Stat. of Mat. Facts, Scott Downey Dep. 94-95.) Lytle and Morrison were not prohibited from contracting with others for work in addition to the work that they performed for the CAIU, (Morrison Dep. 25-26; Lytle Dep. 11-12, 22-23), and both Morrison and Lytle worked as independent contractors for others during the time in question. (Morrison Dep. 25-26; Lytle Dep. 11-13.) 3. Vehicles/Transportation of Students Both Lytle and Morrison owned the vehicles that they used to perform the CAIU contracts. (Downey Dep. 113.) However, the CAIU exercised some r I 1 control over the type, size, and condition of the vehicles used by Lytle and Morrison. For instance, in the year 2000, in order to continue as a CAIU transportation contractor, all contractors were required to begin purchasing wheelchair accessible vehicles, as well as vehicles that could transport at least nine passengers. (Pls.' Ex. Q in Supp. of Mot. for Sum. J.) By 2004, the CAIU required that all transportation contractors, including Lytle and Morrison, not use vehicles with more than 300,000 miles or older than 10 years for transporting CAIU students, except that such vehicles could be used as a spare. (Defs.' Ex. M to Stat. of Mat. Facts, Contract for 2004-2006 at ¶ 5.) The CAIU required each vehicle owned by a transportation contractor to have a "vehicle number" that was provided by the CAIU. (Lytle Dep. 102.) This requirement was part of a state mandate. (Downey Dep. 63.) However, both Lytle's and Morrison's vehicles were visibly marked on the exterior with the names of their respective companies. (Lytle Dep. 34; Morrison Dep. 33.) All transportation contractors were required to provide for their own vehicle maintenance, as well as provide the CAIU with proof of liability insurance. (Morrison Dep. 32.) The CAIU carried insurance, including workers compensation, automobile, and excess liability/umbrella insurance to cover all CAIU employee transportation drivers. (Defs. Ex. F to Stat. of Mat. Facts, Shawn Farr Aff. ¶ 3.) The parties dispute whether the general liability, automobile, and workers' compensation insurances also covered Plaintiffs' (Id.; Doc. 100-2, Certificate of Insurance.) Each vehicle 'The parties' dispute centers on the interpretation of an insurance certificate from Enders Insurance, as well as the deposition testimony of George Zimmerman, the comptroller/business manager at the CAN from 1972 through 2003. This certificate is document 100-2 on the docket. Plaintiffs point to the following from Mr. Zimmerman's deposition where he was responding to questions from Plaintiffs' counsel: Q: Did the Intermediate Unit, during the time that you were there, carry any (continued...) 4 driven by transportation contractors was required by the CAIU and the state to have fire extinguishers, first aid kits, flares or reflectors, body fluid kits, and a seat belt cutter, and after 2000, a school student sign. (Downey Dep. 33-34.) These items were available for purchase through the CAIU, but Lytle and Morrison were not required to purchase them through the CAIU. (Id.) The CAIU required transportation contractors to use children's car seats and children's harnesses owned by the CAIU. (Id. at 35.) 1(...cont.inued) kind of umbrella insurance? A: As I recall, yes. Q: And did that umbrella insurance provide any insurance over the transportation contractors? A: To the best of my ability to recall, it did. Q: Do you recall what type of insurance it provided over the transportation contractors? A: It would have been liability insurance, as I recall. (Doc. 86-2, Zimmerman Dep. 42:21-43:7 (emphasis in original).) Later in the same deposition, in response to questions from Defendants' attorney, Mr. Zimmerman testified as follows: Q: And are you also certain that umbrella insurance was provided for all the transportation contractors? A: I'm not certain. I'd have to look at the insurance. Q: Okay. But you don't know, as we sit here today, you don't know whether the transportation - A: No, I don't recall that. That's a lot of years ago. Q: Well, let me finish. Let me finish, though, okay? As we sit here today, you don't know if the transportation contractors were included in the IU's umbrella insurance policy? A: If you ask me if I know, the answer is no, I don't know. Q: Okay. A: As I sit here today. (Id. at 76:8-25 (emphasis in original).) Mr. Zimmerman's testimony is ambiguous about the extent of coverage under the CAM's general liability insurance, but is silent as to the other two coverages. The court will discuss the parties' disagreement concerning the scope of coverage of these insurances in Part HI.C.3, below. I The CAIU, in the 1990s, provided two-way radios to the transportation contractors for use in their vehicles without cost. (Id. at 34.) In addition, the CAIU required bus drivers to wear name tags with the CAIU logo on them; some of the name tags also contained the names of the transportation contractor if the driver worked for a contractor. (Pls.' Ex. V to Stat. of Mat. Facts.) Beginning in 2005, the CAIU formalized a dress code for transportation contractors and their drivers. (Downey Dep. 76; Pls.' Ex. Y to Stat. of Mat. Facts.) 4. Scheduling and Servicing of Routes The parties dispute whether the CAIU scheduled the routes to be driven by the transportation contractors or whether the contractors themselves did so. However, it is undisputed that the CAIU received a list of students from each of the school districts that it contracted with, and that both the CAIU and the transportation contractors had some role in determining the timing and running of the routes. (Defs.' Ex. G to Stat. of Mat. Facts, Deanna Rose Dep. 62-63; Downey Dep. 40-41.) Transportation drivers always had the right to reject a route; of course, this also meant that they would not get paid for it. (Lytle Dep. 49; Farr Aff. T 6.) It is also undisputed that CAIU employee drivers were not given any say in which routes they drove. (Farr Aff. ¶ 6.) Lytle and Morrison had the right to choose which of their drivers would drive a particular route that was assigned to the transportation contractor, and they could substitute drivers at their discretion. (Morrison Dep. 22- 23; 28-29.) Once a route was established, Lytle and Morrison could not deviate from the route even if a child was absent. (Lytle Dep. 115; Downey Dep. 48.) If a route was serviced by a CAIU employee driver, and the vehicle servicing that route broke down, one of the transportation drivers would be asked to cover the route, but none of the transportation contractors was obligated to cover the route. (Downey Dep. 126, 133.) 6 i The CAIU distributed new work by use of a seniority list. (Downey Dep. 50-53.) This list was used in order to ensure that new work obtained by the CAIU was distributed fairly. (Id.) The seniority list was created, in part, based on the suggestion of Gloria Lytle. (Morrison Dep. 83.) Morrison objected to the use of the list because it did not take into consideration the size and scope of his business, and seemed to him that it was inconsistent with his being an independent contractor. (Id. at 83-85.) 5. Ability to control their own businesses Both Lytle and Morrison exercised substantial control over the way that their businesses-Lytle Transportation, Inc. and Morrison & Sons Transportation, Inc.-were run. Nothing in the contract with the CAIU prevented the transportation contractors from contracting with others or directly competing for work with the CAIU. (Downey Dep. 69.) In fact, both Morrison and Lytle provided transportation services to other entities, although their main revenue was from their work with the CAIU. (Lytle Dep. 11-12; Morrison Dep. 30.) The arrangements with these other entities were not as formal as with the CAIU. Neither Lytle nor Morrison served primarily as drivers for the CAIU. Instead, both had employees who drove for them under the CAIU contracts. At the time that Morrison went out of business, he had at least 42 employee drivers who worked for him. (Morrison Dep. 27.) During the height of her business, Lytle had 17 employees working for her. (Defs.' Ex. O to Stat. of Mat. Facts, Tr. of Proceedings, at 9 (Aug. 15, 2005).) Lytle and Morrison had the right to hire their own drivers, but those drivers had to be approved by the CAIU before they could begin work under the CAIU contracts. (Lytle Dep. 16; Morrison Dep. 44.) The CAIU did not participate in the search process for any of Lytle's or Morrison's employees, and played no role in setting the terms of employment for those drivers. 7 - i (Morrison Dep. 44; Lytle Dep. 62-63.) The CAIU had the right to refuse to permit a driver to be used on a CAIU run. (Rose Dep. 73-74; Downey Dep. 27-28.) The CAIU held mandatory meetings for transportation contractors, but they were limited to driver safety concerns or, in certain circumstances, to reviewing the proposed contracts between the CAIU and the transportation contractors. (Downey Dep. 22.) Lytle viewed these meetings as training, and did not conduct other training for her drivers; however, Morrison chose to train his own drivers on certain aspects of the job like wheelchair transportation. (Morrison Dep. 72-73.) In certain ways, the CAIU treated its employees drivers similar to the transportation contractors. For instance, the CAIU required both its employee drivers and the transportation contractors' drivers to follow manuals' that outlined the safe treatment of children; however, these manuals contained different job descriptions of CAIU employee drivers and contract drivers. (Defs.' Exs. Y & Z to Stat. of Mat. Facts.) Additionally, for a period of time, the CAIU offered transportation contractors an opportunity to purchase gasoline for their vehicles through the CAIU, an opportunity that had previously only been available to CAIU owned vehicles. (Morrison Dep. 87-89). The benefit of this was that transportation contractors were able to purchase gasoline without paying the taxes on the gas, since the CAIU, as a school program, was permitted to purchase gasoline tax free. (Pls.' Ex. CC to Stat. of Mat. Facts.) 6. Method of Payment and Tax Treatment Lytle and Morrison's companies were paid every two weeks based upon a formula developed by the Pennsylvania Department of Education. (Rose Dep. 56-58; Morrison Dep. 37.) Morrison and Lytle paid their drivers directly, and 'These manual are titled "Guidelines for Transporting Exceptional Children" (Defs.' Ex. Y) and "Handbook for Drivers Transporting Exceptional Children." (Defs. Ex. Z.) 8 1 none were paid by the CAIU. (Morrison Dep. 37.) Morrison and Lytle withheld taxes for each of their drivers. (Id.) Moreover, the CAIU did not pay payroll or Social Security taxes for the transportation contractors, including Lytle and Morrison. (Downey Dep. 87-89.) The CAIU did not issue W-2s to Lytle or Morrison, or any of their drivers; instead, transportation contractors received 1099s, unless they were incorporated, in which case they did not receive any tax statements from the CAIU. (Id.; Morrison Dep. 31.) Lytle, Morrison and their drivers did not receive health insurance, retirement benefits, unemployment insurance, workers compensation insurance, sick, or vacation time from the CAIU. (Morrison Dep. 37- 38.) By contrast, all of the employee drivers of the CAIU did receive these benefits, and all of these drivers had Social Security and payroll taxes withheld from their pay. (Downey Dep. 72, 87-89.) B. Procedural History On July 14, 2008, the court issued an order staying disposition of two motions to dismiss Plaintiffs' Amended Complaint, (Does. 40, 42), and ordered the parties to engage in discovery limited to whether Plaintiffs Lytle and Morrison were employees or independent contractors of the CAIU. On October 22, 2009, after conducting discovery, both parties filed motions for summary judgment. (Does. 64, 67.) Those motions were fully briefed, and are now ripe for disposition. II. Legal Standard Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" 9 if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non- moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1.986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "` Such affirmative evidence-regardless of whether it is direct or circumstantial-must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance."' Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). III. Discussion At issue between the parties is whether Plaintiffs Lytle and Morrison were employees for purposes of the False Claims Act, 31 U.S.C. § 3730(h), or independent contractors. The statute provides in relevant part: 10 [a]ny, employee who is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under [the FCA] ... shall be entitled to all relief necessary to make the employee whole. 31 U.S.C. § 3730(h) (emphasis added). While the plain language of the False Claims Act provides relief for employees only, not independent contractors, the statute does not define the term employee. Vessell v. DPS Assocs. of Charleston, Inc., 148 F.3d 407, 413 (4th Cir. 1998); see also Watson v. Conn. Gen. Life Ins. Co., 87 Fed. App'x 257, 261 (3d Cir. 2004). When Congress does not define the term employee, courts assume that "Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (decided under ERISA); Vessell, 148 F.3d at 411-412 (following Darden to apply common-law agency definition of "employee" to the FCA); see also Watson, 87 Fed. App'x at 262-263 (same); Shapiro v. Sutherland, 835 F. Supp. 836, 837 (E.D. Pa. 1993); Hardin v. DuPont Scandinavia, 731 F. Supp. 1202, 1205 (S.D.N.Y. 1990). A determination that a party is either an employee or an independent contractor is a judicial one. Sampson v. Harvey's Lake Borough, 881 F. Supp. 138, 143 (M.D. Pa 1995) (citing Donovan v. Dialamerica Marketing, Inc., 727 F.2d 1376 (3d. Cir.), cert. denied, 474 U.S. 919 (1985). In making this determination, the court is guided by the factors that the Supreme Court laid out in Darden: (1) the extent of the hiring party's right to control the manner and means by which the hired party performs the job; (2) the skills required for the job; (3) the source of the instrumentalities and tools needed to perform the job; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party 11 has the right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) whether the hiring party provides employee benefits; and (13) the tax treatment of the hired party. Darden, 503 U.S. at 323-24 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989); Restatement (Second) of Agency § 220(2) (1958)). None of these factors alone is dispositive, instead the court must carefully weigh "all the incidents of the relationship." Id. at 324. Furthermore since these factors often overlap, and facts that support one often support another, the court will not address them ad seriatim, but instead will address them collectively. Before the court engages this analysis, however, the court finds it necessary to look at the terms of the written agreement between the parties and the parties' admissions. A. The Contract and the Parties' Admissions Each year, Lytle and Morrison executed contracts to provide transportation services to the CAIU. In the early years, these contracts were between Lytle and Morrison as individuals/sole proprietors and the CAIU, whereas in the later years the contracts were between Lytle's and Morrison's corporate entities and the CAIU. Regardless of Plaintiffs' business status, each contract read similarly. Significantly, each contract signed by Lytle and Morrison contained the following clause or something substantially similar: It is understood and agreed to by both parties hereto that. [Plaintiffs], while engaged in carrying out and complyin with any o the terms and conditions oT this contract, [are for all purposes an INDEPENDENT CONTRACTOR an [are] not and shall not be deemed to be an officer, agent or employee of [Defendant CAIU], and neither party shall 12 contend that [Plaintiffs] [are] an officer, agent or employee of [Defendant CAIU]. (Defs.' Ex. H. to Stat. of Mat. Facts ¶ 20.) The CAIU provided Plaintiffs an opportunity to review the contract terms prior to signing and to inquire about the terms and provisions contained in the contracts. (Lytle Dep. 42-44; Morrison Dep. 39-40.) Lytle and Morrison also both admitted that they knew and understood that they were being classified as independent contractors. (Lytle Dep. 42-44; Morrison Dep. 39-40.) However, both Morrison and Lytle testified at their depositions that transportation contractors lacked negotiation rights, and had to sign contracts regardless of whether they agreed with the terms because if they did not sign them they would lose the contact. Plaintiffs correctly point out that the titles used by the parties are not dispositive; nonetheless, the court cannot simply ignore the labels that the parties have chosen. Thus, the plain language of the contract between the CAIU and Plaintiffs mitigates heavily in favor of finding that Morrison and Lytle were independent contractors not employees. Morrison's and Lytle's admissions also weigh heavily on the side of them being independent contractors. In this case, as well as in other sworn statements, Morrison has repeatedly aasserted that he was an independent contractor, not an employee. In his deposition, when questioned about the seniority list implemented by the CAIU, Morrison had this to say: Q: How did you feel about the seniority list when it came into existence? A: I didn't like it at all. Q: And why was that? A: Because we're not employees. At the time, I thought, we're not - at the time I had a discussion with Dr. Bauer. I said, a seniority list? We're not employees. This is no union. What are you talking about, a seniority list? I didn't like the idea at all. 13 Q: And why didn't you like the idea? I know you didn't like it, but why didn't you like the idea? A: Well, I was supposed to be an independent contractor. I thought I ran my own business, built my own little operation. By going on a seniority list, I had limitations. (Morrison Dep. 83:25-84:15 (emphasis in original).) In other litigation, Morrison testified that he and Lytle were an independent contractor not CAIU employees. In August 2005, Morrison gave testimony in the Cumberland County Court of Common Pleas in an action brought by him and Lytle Transportation against various school districts. At the time, he was working for Lytle Transportation, Inc. as the business manager, and was authorized to speak on behalf of Lytle Transportation, Inc. (Defs.' Ex. O, Tr. of Proceedings 6:10, 25.) In his testimony, Morrison stated that Lytle Transportation was "listed as a subcontractor" for the CAIU. (Id. 10.) He further testified that prior to being employed with Lytle Transportation that he too was a subcontractor with the CAIU. (Id. 23.) On at least three occasions, Morrison made this same representation in actions before this court where he was defendant in a suit brought by another contractor. In Beam v. Bauer, No:l:CV-02-1797, Plaintiff Beverly Beam filed an action alleging that Morrison and others violated her constitutional rights while conspiring with the CAIU. In that case, Morrison, through his attorneys, filed a motion to dismiss wherein he represented that he was an independent contractor. Morrison's brief stated at least three times that he was an independent contractor with the CAIU. (Beam v. Bauer, 1:CV-02-1797, Doc. 22, at 1, 7-8.) In that case, the court granted Defendant Morrison's motion to dismiss Beam's complaint on grounds of res judicata because the matters had previously been litigated before Judge McClure in another matter: Beam v. Downey, No. 1:CV-01-0083. In that case, Judge McClure granted Morrison's motion to dismiss Ms. Beam's complaint 14 ?r because, among other reasons, Morrison was not acting on behalf of the CAIU, and, therefore, was not a state official for purposes of § 1983, but rather that Morrison was an "independent transportation contractor[] for the CAIU." See Beam v. Downey, No. 1:CV-01-0083, slip op. at 9, (M.D. Pa. Apr. 10, 2002) (McClure, J.). Finally, in Boyanowski v. CAIU, No. 1:CV-94-1252, in support of a motion for summary judgment against a claim brought by Donald Boyanowski, Morrison stated that "Defendant Roger Morrison ... is an independent contractor who has been transporting special needs students for the CAIU...." (Id., Doc. 45 ¶ 5.) Each of Morrison's admissions comes in the context of litigation where his interests were aligned with the CAIU. In those cases, Morrison readily asserted that he was an independent contractor. Here, when his interests are not aligned with the CAIU, Morrison asserts that he was an employee of the CAIU, and not an independent contractor. The court finds Morrison's claims in this litigation to be motivated by his desired outcome of the case rather than rooted in fact; the court is unmoved by Morrison's apparent attempt at alchemy, and his suggestion that the facts are now somehow different. While Lytle's admissions are not quite as damning as Morrison's, she nonetheless testified on several occasions that she was an independent contractor rather than an employee. (Lytle Dep. 50-52.) The court finds that the clarity of the contracts between the parties, as well as Morrison's and Lytle's admissions before this court and others that they were independent contractors and not employees of the CAIU, to be highly persuasive. This is particularly true given that both Morrison and Lytle are sophisticated business persons who have a combined 50 plus years in the transportation business. Given the undisputed facts before the court, including the unambiguous contract provision referenced above and the parties' admissions, it would strain credulity for the court to find that Lytle and Morrison were employees 15 I V of the CAIU. This becomes abundantly clearer upon examination of the Darden factors to which the court will now turn. B. The Darden Factors In assessing the Darden factors, the court is to look at all aspects of the relationship between the parties, beginning with the actual job being performed. Here, it is undisputed that Plaintiffs' job was the transportation of special needs students to and from school. At its most basic, this involves driving a vehicle. However, the scheduling of routes, the timing of pickup and drop off, the type, age and condition of vehicle, the hiring and firing of drivers, the purchasing of equipment, the substitution of drivers, the training of drivers, and the assignment of additional routes all go to which party controlled how the transportation of students occurred. One would expect that if Morrison and Lytle were employees of the CAIU that the CAIU would direct each of these very specifically. In fact, Plaintiffs have argued as much in their briefs. The facts, however, do not support Plaintiffs' conclusion. The undisputed facts demonstrate that Morrison and Lytle controlled the scheduling and timing of their routes, and the contacts with parents (Morrison Dep. 22-24; Defs.' Ex. G, Rose Dep. 62-3.) Moreover, Morrison and Lytle could reject routes if they were unprofitable. Furthermore, both Lytle and Morrison admit that they owned their vehicles, provided spare vehicles if a vehicle broke down, paid the drivers, and maintained liability insurance as well as unemployment and worker's compensation insurance. (Downey Dep. 113.) This all weighs heavily towards a finding that Plaintiffs were independent contractors, not employees. Additionally, Lytle and Morrison exercised fundamental control over operating procedures such as the manner and means that they performed their work, the skills required, the location of work, the assignment of work, hiring, and 16 payment of salary and benefits. Morrison testified that he "worked independently from the administration at the CAIU" and selected drivers and assigned particular routes, substituted drivers, made decisions regarding routes to "maximize [his] profits and minimize his costs," and retained the power to decline particular routes. (Morrison Dep. 28-29.) When designing routes, Plaintiffs worked directly with the CAIU, school districts, and parents. (Morrison Dep. 62.) Morrison and Lytle had the sole authority to hire and fire their employees, determined their employees' wages or salaries, established their employees hours and schedules, and provided their employees training. (Morrison Dep. 65-66; Lytle Dep. 47-48.) This all weighs heavily towards a finding that Plaintiffs were independent contractors, not employees. In response, Plaintiffs contend that CAIU exerted control over their vehicles. For example, the CAIU required that transportation contractors use vehicles of a particular nature and notify the CAIU prior to purchasing vehicles. (Downey Dep. 113-14.) Plaintiffs also point to a CAIU policy implemented in 2004 that prohibited transportation contractors from transporting vehicles with more than 300,000 miles or with more than ten years of age, even though Pennsylvania Department of Education and other state laws were less stringent. (Id. at 125.) Similar policies dictated restrictions on car seat use, required use of CAIU issued radios, mandated display of a CAIU identification number and use of CAIU name badges by drivers, as well as completion of mandatory "performance" forms. (Id. at 18-20.) These facts suggest that the CAIU maintained an element of control over its transportation contractors. However, on the whole, this control was reasonably related to safety concerns, and was neither overly restrictive of Plaintiffs' running of their businesses nor overly prescriptive such that it would outweigh all of the other 17 indicia pointing toward Plaintiffs being independent contractors rather than employees. Lytle and Morrison also argue that the longstanding relationship between the parties mitigates in favor of a finding that Lytle and Morrison were employees. The court disagrees. It is undisputed the both Lytle and Morrison transported students for the CAIU over many years. However, every year that they transported students they signed a contract stating that they were independent contractors not employees. Moreover, the duration of the relationship alone is not dispositive, and the cumulative effect of years of being an independent contractor does not transform one into an employee. The court is also not persuaded that the CAIU's use of a "seniority list" compels the court to find that Plaintiffs were employees. While this fact certainly mitigates in favor of Plaintiffs, it insufficient evidence, even when measured with the other elements of the CAIU's control over Lytle and Morrison, to swing the balance in their favor. Lytle and Morrison point to other indicia of control to support their contention that they were employees rather than independent contractors; however, none of these is persuasive even considering them in their totality. For example, the court does not believe that CAIU's requirement that it approve drivers hired by Lytle and Morrison tips the scale all that much. The approval process largely involved assuring that drivers satisfied Pennsylvania Department of Education requirements and guaranteeing that drivers did not pose a threat to the safety of students. (Downey Dep. 47-48.) Nor does the use of a CAIU handbook, a very simple dress code for drivers, and CAIU name badges for driver "show total control exerted by" CAIU. (Doc. 74 at 28.) The court takes notice of the CAIU's responsibility of caring for young children, and finds that these requirements do not suggest "total control," but an attempt by the CAIU to embrace this responsibility. 18 Moreover, the fact that Lytle and Morrison had to attend some meetings sponsored by the CAIU, and that they could have been, but were not, disciplined had they failed to attend those meetings does not mean that they were employees nor does it outweigh all of the other evidence suggesting that Lytle and Morrison were independent contractors. Lytle's and Morrison's treatment of their own employees and Lytle's and Morrison's tax status further supports a finding in favor of the CAIU. First, the court notes that at the height of their operations Morrison employed at least 42 people and Lytle employed 17 people. (Morrison Dep. 27; Defs.' Ex. Q to Stat. of Mat. Facts, Tr. of Proceedings, at 9.) Lytle and Morrison paid their employees directly every two weeks, withheld taxes for each employee, and issued W-2s at the end of each year. Lytle and Morrison carried workers compensation and unemployment insurance for their employees. All of this is in contrast with how Lytle and Morrison were compensated by the CAIU. The CAIU did not withhold any taxes for income, payroll, or social security from the payments to Lytle and Morrison. Lytle and Morrison received payments by check from CAIU and 1099 tax forms. Neither Lytle, Morrison, or their employees received W-2 forms from the CAIU nor did Plaintiffs or their employees receive health insurance, sick time, personal days, or retirement benefits from CAIU. (Id. at 23.) All of this suggests that while Lytle and Morrison treated their drivers as employees, the CAIU treated Lytle and Morrison as independent contractors. Viewed as a whole, the Darden factors mitigate heavily in favor of a finding that Lytle and Morrison were independent contractors of the CAIU. There is no doubt that the CAIU exerted some control over the way that Morrison and Lytle provided transportation services to CAIU students. However, these few factors are insufficient to create a factual dispute when considered in light of the weight of the 19 other Darden factors, all of which support the conclusion that Morrison and Lytle were independent contractors. This is particularly true in light of Morrison's and Lytle's admissions and that plain language of the contract. All three lead to the inescapable conclusion that Plaintiffs were not employees of the CAIU. C. IRS Guidelines; Shippensburg School District Contract; ar Plaintiffs argue that the court should not look exclusively at the Darden factors, but also consider other evidence that they are employees rather than independent contractors. In fact, Plaintiffs spent the bulk of their briefs discussing three other areas that they believe demonstrate that they were employees rather than independent contractors: (1) IRS Guidelines; (2) a contract between the CAIU and the Shippensburg School District; and (3) the CAIU's insurance certificate from Enders Insurance. The court will discuss each of these in turn. 1. The IRS Guidelines Plaintiffs contend that the court should look not only to the Darden factors but also to the guidance set out in IRS Publication 15A. Those guidelines set out a framework for determining whether someone is or is not an independent contractor for tax purposes. The guidelines instruct that one should look at three areas: behavioral control, financial control, and the type of relationship between the parties. Under behavioral control, the IRS looks at the instructions an employer gives a worker such as whether the business has the "right to direct and control how the workers does the task for which the worker is hired" as well as other factors. (Pls.' Ex. 3 to Br. in Supp. of Pls.' Mot. Sum. J., IRS Publication 15A at 6.) As to financial control, the IRS looks to whether the worker has unreimbursed expenses; the extent of investment by the worker; the extent to which the worker makes his or her services available to the relevant market; the manner of payment; and the ability 20 Y of the worker to make a profit or loss. (Id.) Finally, the IRS also looks to the nature of the relationship between the parties such as whether there is a written contract, whether or not the business provides "employee-type benefits," the permanency of the relationship, and the extent to which services performed by the worker are a key aspect of the regular business of the company. (Id. at 7.) The IRS guidelines closely mirror the Darden factors and, not surprisingly, when they are applied to the undisputed facts in this case, the result is the same: Plaintiffs are not employees of the CAIU. While the CAIU certainly controlled some of the means by which Lytle's and Morrison's employees performed their jobs, the CAIU in no way controlled Lytle or Morrison's businesses. Lytle and Morrison owned their vans, and they were responsible for maintaining and insuring them. Lytle and Morrison were responsible for their own taxes, for hiring and firing their own drivers, and for paying their drivers. While the CAIU did direct some of Plaintiffs' activities while Plaintiffs were driving for the CAIU, this is to be expected given that the nature of the CAIU's business is transporting children with special needs. It would be incredible if the CAIU had no standards for their drivers to follow, and the fact that both Lytle and Morrison did not have complete freedom to arrange for the transportation of these students does not mean that they were employees of the CAIU. Given the thoroughness of the Darden factors, the court does not believe that the IRS guidelines shed any new light onto the relationship between the parties.' 3Plaintiffs spend considerable time in their briefs discussing the fact that a former comptroller of the CAN, George Zimmerman, attended a seminar in the early 1990s where these IRS guidelines were discussed, and that Mr. Zimmerman believed that the CAN might have a problem with classifying its transportation contractors as independent contractors rather than employees. The court is unpersuaded by this evidence. First, the determination of whether a party is either an employee or an independent contractor is a judicial one, and, thus, Mr. Zimmerman's opinion that the transportation contractors may be employees is not controlling. See Donovan v. Dialamercia Marketing, Inc. 757 F.2d (continued...) 21 Y 2. The Shippensburg School District Contract Plaintiffs also argue that the court should find that they are employees of the CAIU because of a contract the CAIU had with the Shippensburg School District. Specifically, Plaintiffs argue: The contract requires the CAIU to use "employees," and prevents the CAJU from subcontracting out the work. Yet, CAIU admits that they negotiated the contract; that it was reviewed by their solicitor; signed the contract; and performed by "subcontracting' out the work to transportation contractors. If the CAIU entered this contract, knowing they could not perform without using contractors, then the questions [sic] arises, why did the CAIU agree to this language? Because the CAIU already knew what this Court will decide: that it treated the transportation contractors as employees. (Pls.' Br. in Supp. of Mot. for Sum. J. 25.) Plaintiffs' argument is circular: the court should find that Lytle and Morrison were employees because the CAIU entered into the Shippensburg contract knowing that it contained a provision in it stating that it must use employees to perform the contract, and that the CAIU did so because it knew that the court would find that it treated Plaintiffs as employees. The court is unconvinced by this reasoning. First, the Plaintiffs misconstrue the contract. The contract states, in relevant parts: 10. CONTRACTOR shall employ bus drivers subject to BOARD approval who meet all standards and qualifications of Pennsylvania Bureau of Traffic Safety as well as the policies and procedures of the BOARD concerning application, age, fitness, competence, conduct, licensing and continuing eligibility. Each driver shall submit to and pass periodic physical examination as 3(...continued) 1376 (3d Cir.), cert. denied, 474 U.S. 919 (1985). Second, it is clear from the record that Mr. Zimmerman could not recall with any specificity what it was that he was concerned about except that the CAN might have been exercising too much control over the transportation contractors. The court has addressed the level of the CAM's control in Part IH.B, above, and will not rehash those issues in this context. 22 . s required by the Pennsylvania Department of Transportation and the Pennsylvania School Code. (Ex. M to Pls.' to Stat. of Mat. Facts, Shippensburg contract, ¶¶10, 26.) Nothing in the Shippensburg contract forbids the CAIU from using independent contractors to perform transportation services. Plaintiffs cite to the use of the word "employ" in paragraph 10 quoted above, and argue that this required the CAIU only to use its own employee drivers to fulfill the contract. The irony of Lytle and Morrison's argument is unmistakable. They argue that the court should be persuaded that they are employees because a third-party contract says that the CAIU must "employ" bus drivers to fulfill the contract, and that the CAIU contemplated using their services to fulfill the contract. At the same time, Lytle and Morrison argue that the court should ignore the fact that the contract between Plaintiffs and the CAIU expressly states that they are independent contractors. Plaintiffs' argument defies logic and lacks a foundation in evidence. Nothing in the record supports Plaintiff's reading of the Shippensburg contract, and in light of all of the other evidence suggesting that Lytle and Morrison are independent contractors the court will not grasp at this straw.' 'Lytle and Morrison also spent considerable time arguing that they are entitled to an adverse inference that the CAN entered into contracts with the Steelton-Highspire School District, the Big Springs School District, and that the CAIU submitted a bid to the Cumberland Consortium. Plaintiffs argue that since CAN employees stated that the CAN entered into these contracts, and since they were not produced in discovery despite Plaintiffs' requests for them, the court should infer that they would have, "like the Shippensburg contract of the same time frame, referred to the contractors as employees." (Pls.' Br. in Supp. of Mot. for Sum. J. 26.) Plaintiffs argument lacks support from the record. First, Defendants responded to Plaintiffs' discovery requests stating that as to the Big Springs contract and Cumberland Consortium bid, either no such documents existed or they were no longer a part of the CAIU's records. (See Pls.' Ex. N to Stat. of Mat. Facts, October 27, 2008 letter from Dean Piermattei, Esquire to Regina Poserina, Esquire.) Defendants turned over the Steelton-Highspire bid. (Id.) Plaintiffs argue that Defendants should have kept these documents. Plaintiffs have pointed to nothing in the record suggesting that Defendants acted in bad faith. More importantly, however, the court does not believe that an adverse inference would be probative of any material fact at issue in this case. The court is dubious that any third party contract would resolve the issue before the court-whether Plaintiffs were employees or independent contractors-and, therefore, the court will not draw any inference from the fact that Defendants did not produce the information requested by Plaintiffs. 23 'a 3. Insurance Certificate On April 28, 2009, the court granted Plaintiffs' motion for leave to file a supplemental memorandum of law and supplemental evidence in support of their motion for summary judgment. The evidence submitted was an insurance certificate from Enders Insurance Associates issued to the CAIU. (Doc. 100-2.) The court also granted Defendants leave to submit an affidavit from Donald Enders, President and CEO of Enders Insurance Agency, in rebuttal to Plaintiffs' interpretation of the insurance certificate. Donald Enders' affidavit was submitted on May 13, 2009. (Doc. 106.) On May 30, 2009, Plaintiffs filed a motion to strike Mr. Enders' affidavit (Doc. 107).5 Plaintiffs argue that this insurance certificate is proof that the CAIU carried worker's compensation, general auto, and umbrella liability insurance over the transportation contractors and their drivers, and that this evidence weighs towards a finding that Lytle and Morrison were employees of the CAIU. The court agrees that if the CAIU carried these insurances over Lytle, Morrison and their employees that this would weigh in favor of finding that Plaintiffs were employees, although, as discussed below, these facts are not dispositive. The court has read the insurance document, and it is clear from the face of that document that: (1) the CAIU has insurances from three different companies; (2) these companies' policies cover general liability, automobile liability, excess 50n May 30, 2009, Counsel for Plaintiffs filed a Motion to Strike Affidavit of Mr. Enders. (Doc. 107.) Plaintiffs argue that the Donald Enders' affidavit, (Doc. 106), contains misstatements of fact, conclusory allegations, and inadmissible facts in violation of Fed.R.Civ.P. 56(e), and, as such, the court should strike the affidavit. The court will deny Plaintiffs' motion. While it is true that Mr. Enders' affidavit contains conclusory statements and averments which are likely inadmissible under Rule 56(e), it also contains averments which are proper for the court's consideration. The court has not relied on Mr. Enders' affidavit to reach its ultimate conclusions, and, more importantly, as set forth in Part IH.C.3, the court finds that the insurance certificate is ambiguous and has resolved any ambiguity in favor of Plaintiffs. 24 liability, workers' compensation, and legal liability; and (3) the Shippensburg School District is named an additional insured as to the general liability insurance. As to workers compensation insurance, the court finds that the certificate is unambiguous. The only named insured is the CAIU. The endorsement attached to the policy adds only the Shippensburg School District as a named insured only as to the general liability insurance. Neither Plaintiffs specifically nor transportation contractors generally are listed on the insurance certificate or the endorsement. Plaintiff can point to no evidence in the record supporting the conclusion that they are covered under the CAIU's workers' compensation insurance, and no reasonable jury could conclude based solely on the insurance certificate that they were, in fact, covered. The other two insurance coverages at issue, however, are ambiguous.' Concerning automobile insurance, it is clear from the insurance certificate that no one but the CAIU is a named insured. However, under the section for automobile liability insurance there are 5 categories of autos that could be insured: (1) any auto; (2) all owned autos; (3) scheduled autos; (4) hired autos; and, (5) non-owned autos. (Doc. 100-2.) The one checked is "any auto." (Id.) Defendants, through Donald Enders' affidavit, argue that the certificate of insurance "makes clear that the automobile liability only applies to `any auto' of the CAIU, the named insured on the Certificate, and not to any other person." (Doc. 106, Donald Enders Aff. ¶ 18.) Plaintiffs argue that the term "any auto" is a catch-all which would encompass all of the other four categories, and that if the CAM meant only to 'The Plaintiffs' dispute concerns only workers compensation, automobile liability, and general liability insurance. They do not discuss excess liability or legal liability coverages, and so the court will not address them here. Even if they had, the court would resolve those issues similarly to the workers compensation insurance: it is limited to the CAN, and nothing in the document itself or the record suggests that Plaintiffs were covered under these policies. 25 5 insure its vehicles that it could have selected one of the more specific categories such as all "owned autos" or "scheduled autos." Both parties' reading of the certificate of insurance is plausible, and the court will resolve this ambiguity in favor of Plaintiffs, and analyze Plaintiffs' employment status as if Lytle and Morrison were covered by the automobile liability insurance. As to general liability insurance, Plaintiffs point to the testimony of George Zimmerman as evidence that they were covered under that policy. Mr. Zimmerman's deposition testimony on this issue was set out at length in footnote 1, above. The court notes that the certificate itself does not appear to suggest or imply coverage for Plaintiffs under the CAIU's general liability policy, and there is a tenuous connection, at best, between Mr. Zimmerman's ambiguous testimony and this policy. Nonetheless, Mr. Zimmerman's testimony creates at least the possibility that coverage exists, and the court will, out of an abundance of caution and solely for the purpose of deciding whether Plaintiffs were employees of the CAIU, analyze the facts as if Lytle and Morrison were covered by the CAIU's general liability insurance policy.' In Part III.A, above, the court found that the plain language of the contracts and Plaintiffs' admissions weighed heavily in favor of a finding that Plaintiffs were independent contractors rather than employees. Furthermore, in analyzing the Darden factors in Part III.B, above, the court found that those factors swung in favor of a finding that Plaintiffs were not employees. Even if Plaintiffs were covered under the CAIU's automobile and general liability insurance coverages, this is insufficient to create a factual dispute about Plaintiffs' 7The court's finding that Plaintiffs may be covered under the CARYs automobile and general liability insurance policies is limited only to the court's disposition of the parties' summary judgment motion, and is not a finding of coverage for purposes of liability on the part of any of the named insurance companies as a result of any action or inaction of Plaintiffs. 26 employment status in light of all of the other evidence compelling the conclusion that they were independent contractors not employees. The trifecta of the plain language of the contract between the parties, Plaintiffs' admissions, and the Darden factors all compel this conclusion, and the court is not convinced that coverage under these insurance contracts sufficiently outweighs the bulk of the other evidence. IV. Conclusion After a careful review of the record before it, the court finds as a matter of law that Plaintiffs Gloria Lytle and Roger Morrison were independent contractors of the CAIU. This finding is supported by a plain reading of the various contracts between the parties, Lytle's and Morrison's admissions that they were independent contractors, and the court's application of the Darden factors. In reaching this determination, the court resolved any ambiguity about Plaintiffs' status in Plaintiffs' favor. The record simply does not support a finding that Plaintiffs were employees of the CAIU. Since Lytle and Morrison were independent contractors of the CAIU they do not have standing to bring a claim under the False Claims Act, 31 U.S.C. § 3130(h). Accordingly, the court will grant Defendants' motion for summary judgment, (Doc. 64), and will deny Plaintiffs motion for summary judgment (Doc. 67). For the reasons noted in footnote 5, above, the court will also deny Plaintiffs' motion to strike the affidavit of Donald Enders (Doc. 107). The court's jurisdiction in this case is based solely on Plaintiffs' claims under the False Claims Act. Since the court has determined as a matter of law that Plaintiffs were independent contractors not employees of the CAIU, and that Plaintiffs do not have standing to maintain a claim under 31 U.S.C. § 3730(h), there is no federal subject matter jurisdiction in this case. Under these circumstances, the 27 court does not have the discretion to retain jurisdiction over Plaintiffs' remaining state law claims. See e.g., Rifkin v. Bear Stearns & Co., 248 F.3d 628, 633 (9th Cir. 2001) (stating that because the plaintiffs lacked standing to bring their federal statutory claim, the district could had no authority to exercise supplemental jurisdiction over the remaining state law claims). Therefore, the court will dismiss Plaintiffs' state claims without prejudice to Plaintiffs to bring these claims in an appropriate state forum. Also pending before the court are two motions to dismiss (Docs. 40 & 42) brought by various Defendants. Since the court has granted summary judgment to Defendants on Plaintiffs' federal claims and dismissed Plaintiffs' state law claims, the court will deny these motions as moot. The court will issue an order consistent with this memorandum. s/S lvia H. Rambo United :States District Judge Dated: June 11, 2009. 28 %_. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GLORIA LYTLE LYTLE TRANSPORTAVON• ROGER MORRISON• MORRiSON & SONS TRANSPORTATION, INC. Plaintiffs V. . CAPITAL AREA INTERMEDIATE UNIT, et al., . Defendants No. 1:05-CV-0133 JUDGE SYLVIA H. RAMBO [ORDER In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED THAT: (1) Defendants' motion for summary judgment (Doc. 64) is GRANTED; (2) Plaintiffs' motion for summary judgment (Doc. 67) is DENIED; (3) The clerk of court is directed to grant judgment for Defendants and against Plaintiffs Gloria Lytle and Roger Morrison solely on the issue of whether Plaintiffs Lytle and Morrison were employees or independent contractors of Defendant Capital Area Intermediate Unit. The court finds that Plaintiffs Gloria Lytle and Roger Morrison were independent contractors of Defendant Capital Area Intermediate Unit and, therefore, do not have standing to pursue any claims under the False Claims Act, 31 U.S.C. §3730(h) against the Capital Area Intermediate Unit; (4) Since no federal subject matter jurisdiction is present, the court will dismiss Plaintiffs' state law claims-Counts III through VIII-without prejudice to Plaintiffs to renew those claims in an e f1tcf, C01 rocee ing; Date rea, Clei Deputy Gterk ?y c I" (S) The motions to dismiss Plaintiffs' Amended Complaint (Does. 40 & 42) are denied as MOOT; (6) Plaintiffs' motion to strike the affidavit of Donald Enders (Doc. 107) is DENIED, and: (7) The clerk of court is directed to close this case. s/S lvia H. Rambo United States istnct Judge Dated: June 11, 2009. F'LEA` ` TARY OF THE It FIX 1• 13 C 'V y IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF CUMBERLAND GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON; MORRISON AND SONS TRANSPORTATION, Plaintiffs, NO.: 09-4512 V. CAPITAL AREA INTERMEDIATE UNIT, et al.; CIVIL ACTION - LAW Defendants UNCONTESTED MOTION TO APPROVE VOLUNTARY DISMISSAL OF HARTMAN UNDERHILL & BRUBAKER AND THE ESTATE OF GEORGE BRUBAKER ONLY AND NOW, comes Hartman Underhill & Brubaker and The Estate Of George Brubaker , by and through his attorneys, Marshall Dennehey Warner Coleman & Goggin, and respectfully files the foregoing Uncontested Motion for Approval of Voluntary Dismissal seeking this Court's approval for his dismissal from the above-captioned action and in support thereof, avers as follows: 1. Plaintiffs initiated this civil action with the filing of a Writ of Summons. 2. All parties, by and through their respective counsel, have executed a Stipulation to Dismiss Hartman Underhill & Brubaker and The Estate Of George Brubaker from this action. See Stipulation to Dismiss attached hereto as Exhibit "A". 5. Defendants, Hartman Underhill & Brubaker and The Estate Of George Brubaker, respectfully requests an Order of Court approving their dismissal from this action and further requests that such Order direct the Prothonotary to amend the caption to redact their names from the caption of this action. WHEREFORE, Hartman Underhill & Brubaker and The Estate Of George Brubaker, respectfully requests this Honorable Court enter an Order approving the Stipulation to Dismiss him from this action and further directing the Prothonotary to redact his name from the caption of this action. Respectfully submitted, 1c::e ?2-'-(-? Edwin A.D. Schwartz, uire 4200 Crums Mill Road; B Harrisburg, PA 17112 (717) 651-3700 Counsel for Defendants Hartman Underhill & Brubaker and The Estate Of George Brubaker Date: September 15, 2009 CERTIFICATION OF CONCURRENCE I hereby certify that the Stipulated Dismissal of Hartman Underhill & Brubaker and The Estate Of George Brubaker was discussed with all counsel of record in this action and that all counsel concurred with the stipulated dismissal of Hartman Underhill & Brubaker and The Estate Of George Brubaker from this action as evidenced by their respective signatures on Exhibit "A" as attached hereto. Edwin A.D. Schwartz, Es r 4200 Crums Mill Road; Suite Harrisburg, PA 17112 (717) 651-3700 Counsel for Defendants Hartman Underhill & Brubaker and The Estate Of George Brubaker Exhibit "A" IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF CUMBERLAND GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON; MORRISON AND SONS TRANSPORTATION, Plaintiffs, NO.: 09-4512 V. CAPITAL AREA INTERMEDIATE UNIT; GLENN CIVIL ACTION - LAW ZEHNER, Ph.D.; MARK BAUER, Ph.D.; SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER; HARTMAN, UNDERHILL, AND BRUBAKER; PHILLIP STEINHOUR; THE BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT; JILL WILLIAMSON; ARLAND WAGONHURST; MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE; ANGELA MCMASTER; SHERI T. MATER; GARY SHADE; DANIELLE HAIRSTON-GREEN; ANNIE GUENIN; SUSAN KOMLENIC; MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD; BRIAN R. COOPER; LINDA T. BUTLER; JOHN FORNEY, JR.; HOWARD DOUGHERTY; JEAN RICE; RICHARD FRY; STEVEN DART; CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative; CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative; CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative; CUMBERLAND VALLEY SCHOOL DISTRICT, Karen Christie, representative; DERRY TOWNSHIP SCHOOL DISTRICT, Bonnie Goble, representative; EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster, representative; GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative; HALIFAX AREA SCHOOL DISTRICT, Gary Shade, representative; HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative; LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative; MECHANICSBURG AREA SCHOOL DISTRICT, Susan Komlenic, representative; MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative, NEWPORT SCHOOL DISTRICT, Kermit Harry, representative; NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative, SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative; STEELTON- 100558598.1} HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative; SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative, SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative; and UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative, WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative; and WEST PERRY SCHOOL DISTRICT, Jean Rice, representative; Defendants STIPULATION TO DISMISS HARTMAN, UNDERHILL & BRUBAKER and THE ESTATE OF GEORGE BRUBAKER, ONLY It is hereby agreed by and between counsel for all parties of record that Hartman Underhill and Brubaker and The Estate Of George Brubaker shall be voluntarily dismissed with prejudice from the above-captioned matter pursuant to Pennsylvania Rule of Civil Procedure 229. Respectfully submitted, By: . Edwin A.D. Schwartz, E ' e 4200 Crums Mill Road; StA&B Harrisburg, PA 17112 Attorney ID: 75902 (Counsel for Hartman, Underhill & Brubaker and Estate of George Brubaker) es n, Esquire Dean Piermattei, Esquire Stephanie DiVittore, Esquire P.O. Box 1146 Harrisburg, PA 17108 (Counsel for all other Defendants) a, Esquire B174 Pn r Pike Upp er Darby, PA 19082 Attorney ID: 66486 (Counsel for Plaintiffs) {00558598.1} CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion to Approve Stipulated Dismissal upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Regina D. Poserina, Esquire 7415 West Chester Pike Upper Darby, PA 19082 (Counsel for Plaintiffs) James Ellison, Esquire Dean Piermattei, Esquire Stephanie DiVittore, Esquire P.O. Box 1146 Harrisburg, PA 17108 (Counsel for all other Defendants) Marshall, Dennehey, Warnel?,Coleman & Goggin By: _ "=? Edwin A.D. Schwartz, I.D. No.: 75902 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3700 Date: September 15, 2009 FILD r ?.', ;r c OF -M' ,"; ;(T!ApY Y 2009 SE P 15 P N 2: -19 CUM tjCln $r-'`I" SEP 116 2009 6) -3 IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF CUMBERLAND GLORIA LYTLE; LYTLE TRANSPORTATION; ROGER MORRISON; MORRISON AND SONS TRANSPORTATION, Plaintiffs, V. CAPITAL AREA INTERMEDIATE UNIT, et al.; Defendants : NO.: 09-4512 CIVIL ACTION - LAW ORDER AND NOW this 1 day of 2009?, upon consideration of the Motion to Approve the Stipulation to Dismiss Hartman Underhill & Brubaker and The Estate Of George Brubaker, it is hereby ORDERED and DECREED that said Motion is GRANTED. Hartman Underhill & Brubaker and The Estate Of George Brubaker are hereby dismissed with prejudice in accordance with the Stipulation of Counsel. The Prothonotary is hereby directed to redact Hartman Underhill & Brubaker and The Estate Of George Brubaker, from the caption of this action. J. Distribution List ?rothonotary ./Edwin A.D. Schwartz, Esquire, 4200 Crums Mill Road, Suite B, Harrisburg, PA 17112 ,--'Zegina D. Poserina, Esquire7415 West Chester Pike, Upper Darby, PA 19082 .,?ames Ellison, Esquire; Dean Piermattei, Esquire; Stephanie DiVittore, Esquire P.O. Box 1146, Harrisburg, PA 17108 ?'r'1 FILEU`-0':Tr??F OF THE PcTYoll! )TkqY 2009 SEP 17 AM = 19