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HomeMy WebLinkAbout10-5119•• . w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PlaintitY(s) & Address(es) HERRE BROS., INC. 4417 Enola Road Enola, Pennsylvania 17025 Case No. b' ((Q Civil Term VS. Civil Action Defendant(s) & Address(es) WILLIAM H. EUKER AND ELITE PLUMBING, HEATING & AC, LLC '- 42 Royal Palm Drive Mechanicsburg, Pennsylvania 17050 " " - `- PRAECIPE FOR WRIT OF SUMMONS = TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case Writ of Summons shall be issued and forwarded t r Circle cLoicel Date : Signature of Attorney INt e: Jonathan Landesman, Esquire Cohen, Seglias, Pallas Greenhall lc uman P.C. Address: United Plaza -19th Floor 30 5.17th street Philadelphia. P n yannia 19103 Telephone #: 215-564-1700 Supreme Court ID Number: 83454 • • • 0 0 WRIT OF SUMMONS TO: WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLA FF(S) HAS/HAVE COMMENCED AN ACTION. AGAINST YOU. othonotaryClerk, Civil Division Date:- by Deputy :. o 44&.00 PA Am a?? ~' Y Rob Bleecher, Esquire T, F't '.: ~_ , , PA 32594 '~ ' Pecht & Associates, PC 2G i ~ ~ ~ ~~ ~, ' ~ 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 ~, ; . ,.+~-,, (717) 691-9809 ~ ~ ~ ~~ - ~~ .; Attorney for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 10-5119 WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC, :CIVIL ACTION -LAW Defendants TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA Please issue a Rule on Herre Bros., Inc. ("Plaintiff') to file a Complaint in the above- captioned case against William H. Euker and Elite Plumbing, Heating & AC LLC (collectively "Defendants") within twenty (20) days after service of the Rule or suffer a Judgment of Non Pros. DATED: August 16, 2010 Attorney for Defendants PA 32594 y Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 RULE TO FILE COMPLAINT AND NOW, this ~`µday of ~.S'~" , 2010, a Rule is hereby entered upon Herre Bros., Inc. (Plaintiff) to file a Complaint against William H. Euker and Elite Plumbing, Heating & AC LLC (Defendants) within twenty (20) days after service hereof or suffer a Judgment of Non Pros. Prothonotary By: ' Deputy CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Praecipe and Rule to File a Complaint was sent via email and mailed, First-Class postage prepaid, this 16~' day of August, 2010, addressed as follows: j landesman(a~cohenseglias.com Jonathan Landesman, Esquire Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19th Floor 30 South 17th Street Philadelphia, PA 19103 mleavy_(a),cohenseglias.com Mark J. Leavy, Esquire Cohen Seglias Pallas Crreenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~' Street Philadelphia, PA 19103 PEC By: 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 r-x_~~ Rob Bleecher, Esquire ~= ~t PA 32594 Pecht & Associates, PC [~} l ~ ~~ ~ 6 ~M ~~ ~ ~ 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 G~,~' ~.. ' ~ ~' (717) 691-9809 i- ~' , : , , Attornev for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. WILLIAM H. EUKER and ELITE NO. 10-5119 PLUMBING, HEATING & AC LLC, :CIVIL ACTION -LAW Defendants OBJECTIONS TO SUBPOENA PURSUANT TO RULE 4009.21 William H. Euker and Elite Plumbing, Heating & AC LLC object to the proposed subpoenas that are attached to these Objections for the following reasons: 1. Plaintiff has failed to comply with Pa.R.C.P. 4007.1(c); 4007.2(b); 4009.21(a); and 4009.22. As such, Defendants will be prejudice by Plaintiff's failure to comply with requirements of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, PEC Date: August 16, 2010 By: 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 291-9809 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Objections to Plaintiff s Written Interrogatories to Defendants Pursuant to Pa.R.C.P. 4003.8 and 4005 was sent via email and mailed, First-Class postage prepaid, this 16~` day of August, 2010, addressed as follows: Jonathan Landesman, Esquire j landesman(a,cohenseglias. com Mark J. Leavy, Esquire M1eavY(c~cohense~lias.com Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~' Street Philadelphia, PA 19103 PEC By: 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 COtYlt>RONWSALTH OF PBNNSYLVANU COZJNTY OF C[AI~ERLAND HERRE BROS. INC. : ~~~' File No. Civil Adios No. 10,5119 v. William H. Euker Elite Plumbing, Heating dk AC LLC Defendants. TO: You are ordered by the court to costa to Cohen. Seslias, Pallas Greenhall & Furman, P.C, United Plaza -19th Floor, 30 South 17th Stree#, (Specify Courtroom or ottlerr place) at Philadelyhia . _ PhiLdelphia County. Pennsylvania, on 'Piwrsdayi„Senbember 2, 2010 at iaoo o'clock, A. M,. to testify on behalf of R.S. Mawer9 tk Sonal Inc. in the above case, attd tD reRnain until eocca>sod. 2. A~ bring with you the following: SBE EXHIBIT "A" ATTACHED HERETO. If you fail to attend or to produce the documents or thi,ags required by this subpoena, you may be subject to the sanctions snthor~zed by Rule 234.5 of the Pennsylvania Roles of Civil Procedure, including but nof~limited to costs, attorney fees and i~mprisotmlent. REQUESTED BY APARTY/ATTORNEY IN COMPLIANCE WTTIi PaR.C.PNo.234.2(a): Mark j. Leavy, Esquire; Cohen, Seglias, Pallas, Greenhall & Furman, P.C. Address: United Plaza -19thFloor 30 South 17th ~+~, A Telephone: Supreme Court ID # 93128 BY THE URT: j k Civil Division Date: aunt.. l l _ a=al d /Seal of the Court Depny Official Nota: This farm of subpoena shall be used whenever a subpoena is issuable, inxluding hearings in conruetioa with depositions s»d before arbitrators, a~eaters, cornmissionera, etc. in c~nnpiiance with Pa. R.C.P.No.234.1. If a subpoena fpr a productiap of doournaats. records or things is desired, cornpiete paragraph 2. (Eft: 1/97} SUBPOENA TAO ATi'END AND TESTIFY R.S. MOWERY ac 80NS, INC. 1000 Bert Credo Blvd. EXHIBIT "A" TO SUBPOENA TO RS. MOWERY & SONS, INC. 1000 Bent Creek Blvd. Mechanicsburg, PA 17050 The term You" means RS. Mowery & Sons, Inc. You must produce the following documents and/or things pursuant to paragraph 2 of the Subpoena to Attend and Testify: Copies of all documents relating to any bids, proposals, or pricing submitted by Herre Bros., Inc, to perform work for You in connection with your contract for perform work at the Land O Lakes Wastewater Equalization and DAF Upgrade project. 2. Copies of all documents relating to any bids, proposals, or pricing submitted by Elite Plumbing, Hearing & AC, Bill Euker, Sr., and/ or Michael Euker to perform work for You on the Land O Lakes Wastewater Equalization and DAF Upgrade project. 3. Copies of all documents relating to any contract or subcontract awarded to Elite Plumbing, Hearing & AC, Bill Euker, Sr., and/or Michael Euker to perform work for You on the Land O Lakes Wastewater Equalization and DAF Upgrade project. 4. Any and all correspondence, faxes, emails or other documents exchanged by or between You and Elite Plumbing, Hearing & AC, Bill Euker, Sr., and/ or Michael Euker between July 1, 2009 and the present. aios2~-~i o~3a-ooao coI-nKOxw$AZ,T$ of rl~xrrsYLVAxrA COUNTY OF CU1I~ERLAND HERRE BROS., INC. Plaintiff; v. WII,LIAM H EUICER, ELITE PLUMBING, HEATING 8c AC LLC Defendants. File No. Civil Action No 10-5119 SUBPOENA TO ATTEND AND TESTIFY TO: M.S. MOWERY & SONS INC. 1 0 Bent Croak Road ~n'& You are ordGrral ~by the court to dome to - _ ~-, , & Furman, P.C., United Plaza, 19 Floor, ~ Philadel hi p (~~~Courtrooan or other place) p a' p ~ County, Pennsylvania, oa Thursday, September 2, 2010 ~ 10: o'clock, t~1 M,: to testify on behalf of M.S. Mowery & Sons, Inc. in the above case, and to remain until excused, 2. And bring with you the following: 1f you fail to attend or to produce the documents or things required by dais subpoena; yoU may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.RC.P.No.234.2(a) Name: Mark J. Leavy, Esq., Cohen, Seglias, Pallas, Greenhill & Furman, P.C. su ~oum i ~ A 19103 Telephone: Supreme Court ID # BY TH8 URT: tary/ k, Civil Division Date: ~ .~10~ Q Seal of the Court Official Note: This form of ~~ subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, mashers, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. 1f a subpoena for a production of documents, recoils or things is desired, caaq~lete paragraph 2. (Bff. 7/9~ A~1057721 vl 06334-0040 Rob Bleecher, Esquire E'~ - - T' PA 32594 .__ - . Pecht & Associates, PC ~~, ~ ~ ~u~ ~ ~ ~,~ ~ ~ ~ ~ 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 ~ ~,~t, ~ , ~T,, ~; a (717) 691-9809 ~_- Attorney for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 10-5119 WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC, :CIVIL ACTION -LAW Defendants DEFENDANTS' OBJECTIONS TO PLAINTIFF'S WRITTEN INTERROGATORIES TO DEFENDANTS PURSUANT TO PA.R.C.P. 4003.8 AND 4005 William H. Euker and Elite Plumbing, Heating & AC LLC (collectively "Defendants") object to Plaintiff's Written Interrogatories to Defendants Pursuant to Pa. R.C.P 4003.8 and 4005 on the following grounds: 1. Defendants object to Plaintiff's pre-complaint interrogatories because they fail to comply with Rule 4005(a) of the Pennsylvania Rules of Civil Procedure in that they do not include a "brief statement of the nature of the cause of action," which is required of any "[i]nterrogatories which aze to be served prior to service of the complaint." 2. Defendants also object to Plaintiffs interrogatories on the basis that they aze not material and necessary to the filing of a complaint and on the basis that the discovery will "cause unreasonable annoyance, embarrassment, oppression, burden or expense" to Defendants. See Pa.R.C.P. 4003.8. See also, McNeil v. Jordan, 894 A.2d 1260, 1278 (Pa. 2006); McNeil v. Jordan, 2007 Pa.Super 305 (Pa.Super 2007). 3. Plaintiffs request for pre-complaint discovery falls faz short of the requirements of McNeil v. Jordan and Rule 4005(a) addressing the issuance ofpre-complaint discovery. Plaintiff fails to make any showing that the interrogatories aze both necessary and material to the filing of a complaint. In fact, Plaintiff fails to assert any basis for the Interrogatories. Plaintiff does not demonstrate probable cause that the information sought is necessary to formulate a legally sufficient complaint and that without the discovery, a complaint cannot be drafted. See McNeil, 894 A.2d at 1278; McNeal v. Jordan, 2007 Pa.Super 305 (Pa.Super 2007). Additionally, Plaintiff fails to demonstrate that the information sought by the interrogatories will materially advance the drafting of any future complaint. Because Plaintiff has failed to make any showing of need for the interrogatories prior to a complaint being filed, this is merely a fishing expedition, and the Pennsylvania courts have held such actions impermissible. Id. 4. Moreover, it is obvious from the substance of Plaintiffs interrogatories that the discovery sought is overbroad, unduly burdensome, and oppressive and is being used to determine whether or not a cause of action exists. In short, it is a fishing expedition. 5. Defendants object to Plaintiffs interrogatories, instructions, and definitions in so far as they are overly broad, unduly burdensome, unreasonably oppressive and annoying, and otherwise seek to impose obligations upon Defendants that aze broader than, or inconsistent with, the Pennsylvania Rules of Civil Procedure and controlling law. 6. Defendants object to Plaintiffs interrogatories, instructions, and definitions to the extent that they seek information that is irrelevant andlor unlikely to lead to the discovery of admissible evidence. 2 7. Defendants object to Plaintiff's interrogatories, instructions, and definitions to the extent they seek information protected by the attorney-client privilege and/or work-product privilege, or which is otherwise protected under the Pennsylvania Rules of Civil Procedure. 8. Defendants object to Plaintiff's interrogatories, instructions, and definitions to the extent they seek information that is not in Defendants' possession, custody, or control. Respectfully submitted, PECHT & ASS9~"I~TES, P.C. Date: August 16, 2010 By: Bleecher, Esquire A 594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Objections to Plaintiffls Written Interrogatories to Defendants Pursuant to Pa.R.C.P. 4003.8 and 4005 was sent via email and mailed, First-Class postage prepaid, this 16~' day of August, 2010, addressed as follows: i landesman(u,cohenseglias.com Jonathan Landesman, Esquire Cohen Seglias Pallas C~reenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~' Street Philadelphia, PA 19103 mleavy(a,cohense glias. com Mazk J. Leavy, Esquire Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~' Street Philadelphia, PA 19103 PEC By: 4 PA 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 ~~~ ~ , r ~~ ,y ~_ Rob Bleecher, Esquire ~ - PA 32594 Pecht & Associates, PC ~~ ~ ' ~~ ~ ~O ~M ~ ~ ' 1205 Manor Drive, Suite 200 ,., ,, , ~ ;-; Mechanicsburg, PA 17055 `~ ~ ' (717) 691-9809 ~ ` Attomev for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 10-5119 WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC, :CIVIL ACTION -LAW Defendants DEFENDANTS' OBJECTIONS TO PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS William H. Euker and Elite Plumbing, Heating & AC LLC (collectively "Defendants") object to Plaintiff's Requests for Production of Documents on the following grounds: 1. On August 10, 2010, Plaintiff commenced this action by filing a praecipe for a writ of summons with the Prothonotary for the Court of Common Pleas of Cumberland County. On the same day, Plaintiff served on Defendants their request for production of documents, as well as their written interrogatories. Document request number 5, requests all documents identified by Defendants in response to Plaintiff's interrogatories. 2. Defendants object to Plaintiffs document requests on the basis that they are not material and necessary. to the filing of a complaint and on the basis that the discovery will "cause unreasonable annoyance, embarrassment, oppression, burden or expense" to Defendants. See Pa.R.C.P. 4003.8; see also, McNeal v. Jordan, 894 A.2d 1260, 1278 (Pa. 2006); McNeal v. Jordan, 2007 Pa.Super 305 (Pa.Super 2007). Y. 3. Plaintiff's request for pre-complaint discovery falls far short of the requirements delineated in McNeil v. Jordan addressing the issuance of pre-complaint discovery. Plaintiff fails to make any showing that the document requests are both necessary and material to the filing of a complaint. In fact, Plaintiff fails to assert any basis for the document requests. Plaintiff does not demonstrate probable cause that the documents sought are necessary to formulate a legally sufficient complaint and that without the discovery, a complaint cannot be drafted. See McNeil, 894 A.2d at 1278; McNeal v. Jordan, 2007 Pa. Super 305 (Pa.Super 2007). Additionally, Plaintiff fails to demonstrate that the documents sought will materially advance the drafting of any future complaint. Because Plaintiff has failed to make any showing of need for the documents prior to a complaint being filed, this is merely a fishing expedition, and the Pennsylvania courts have held such actions impermissible. Id. 4. Moreover, it is obvious from the substance of Plaintiff's document requests that the discovery sought is overbroad, unduly burdensome, and oppressive and is being used to determine whether or not a cause of action exists. In short, it is a fishing expedition. 5. Defendants object to Plaintiffs document requests because they are not made in good faith and are unreasonable. The discovery requested is being used to determine whether or not a cause of action exists. 6. Defendants object to Plaintiff s document requests in so far as they are overly broad, unduly burdensome, unreasonably oppressive and annoying, and otherwise seek to impose obligations upon Defendants that are broader than, or inconsistent with, the Pennsylvania Rules of Civil Procedure and controlling law. 2 .. 7. Defendants object to Plaintiffls document requests to the extent that they seek information that is irrelevant and/or unlikely to lead to the discovery of admissible evidence. 8. Defendants object to Plaintiffls document requests to the extent they seek information protected by the attorney-client privilege and/or work-product privilege, or which is otherwise protected under the Pennsylvania Rules of Civil Procedure. 9. Defendants object to Plaintiff's document requests to the extent they seek information that is not in Defendants' possession, custody, or control. Respectfully submitted, PEC Date: August 16, 2010 By: Attorney for Defendants 3 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 .. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendants' Objections to Plaintiff s Requests for Production of Documents was sent via email and mailed, First-Class postage prepaid, this 16~' day of August, 2010, addressed as follows: j landesman(a~cohenseglias. com Jonathan Landesman, Esquire Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~' Street Philadelphia, PA 19103 mleav~(a~cohenseglias.com Mark J. Leavy, Esquire Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19~' Floor 30 South 17~` Street _ Philadelphia, PA 19103 PECHT &~SOC~S, PC By: R~ah,.B~e~, Esquire PA 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 4 r COHEN SEGLIAS PALLAS GREENHALL & FURMAN, P.C. By: Jonathan Landesman, Esquire Identification No: 83454 Marls J. Leavy, Esquire Identification No: 93128 United Plaza, 19`h Floor 3 0 South 17th Street Philadelphia, PA 19103 (21.5) 564-1700 (21.5) 564-3066 (fax) HERRE BROS., INC. Plaintiff, V. WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC Defendants. PILED-O' c `F TH" 0 SEEP 16 AE°`E 13: 3" ?Jlit1J; 1` l y €'ENNSYLW41A Attorneys for Plaintiff Herre Bros., Inc. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 10-5119 AGREEMENT PURSUANT TO RULE 237.2 TO EXTEND TIME TO PLEAD It is agreed that Plaintiff, Herre Bros., Inc., is granted an extension of time through September 24, 2010 in which to file a complaint. After the above date, a judgment of non pros or by default, as may be appropriate, may be entered upon praecipe without further notice. SEGLIAS PALLAS IALL & FUR", P.C. Dated: lf)NATHAN LANDESMAN, ESQUIRE NARK .1. LEA.VY, ESQUIRE ztited Plaza, 19th Floor 30 South 17'h Street Philadelphia, PA 19103 (215) 564-1700 Attorneys for Plaintiff, Herre ,bros., Inc. Y Dated; PEC)«T S TES, PC x 0 ROB BLE R ES RE 1205 M Onve, Suite 200 Mechanicsburg, PA 17055 (71.7) 691-9809 Attorney for Defendants, William I? Euker And Elite Plumbing, Heating & AC LLC #1076482•vt 06331-OQ40 CERTIFICATE OF SERVICE I, Jonathan Landesman, Esquire, hereby certify that on this 15th day of September, 2010, I served a true and correct copy of the foregoing Agreement Pursuant to Rule 237.2 to Extend Time to Plead via first class mail upon the following: Rob Bleecher, Esquire Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 THAN LANDESMAN, ESQUIRE #1076482-v1 06334-0040 Rob Bleecher, Esquire tic ~'NE~P ~.~~~ TAR'S PA 32594 Pecht & Associates, PC 20! Q Q~~ 2 7 pp~ ~~, ~ ~ 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 ~~1MBEK~.AIt~ C~U~~d'Y (717) 691-9809 ~~~~~~~-~A~~11 Attornev for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 10-5119 WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC, :CIVIL ACTION -LAW Defendants ACCEPTANCE OF SERVICE I accept service as of October 12, 2010, of the Verified Complaint time-stamped and dated September 24, 2010 in the above-captioned matter on behalf of William H. Euker and Elite Plumbing, Heating & AC LLC and certify that I am authorized to do so. PECHT &,QIA~'ES, P.C. Dated: ~ ~`l l~ By: Re~Bteecl"ier, Esquire PA 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorney for Defendants l r, r - Rob Bleecher, Esquire. PA ID No.: 32594 - Pecht & Associates, PC 1205 Manor Drive r ELL =t,': , ; Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorneys for Defendants HERRE BROS., INC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC., DefendantS : No. 10 - 5119 CIVIL ACTION -LAW NOTICE TO PLEAD To: Herre Bros., Inc. c/o Jonathan Landesman, Esquire Mark J. Leavy, Esquire You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or #,j`ument may be entered against you. Rob Bleec quire PA I' N ?.: 3 594 Pecht & sociates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Rob Bleecher, Esquire PA 32594 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorney for Defendants HERRE BROS., INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 10-5119 WILLIAM H. EUKER and ELITE PLUMBING, HEATING & AC LLC, CIVIL ACTION -LAW Defendants ANSWER AND NEW MATTER AND COUNTERCLAIM Defendants William H. Euker and Elite Plumbing, Heating & AC LLC, by their attorneys, Pecht & Associates, P.C., file this Answer and New Matter and Counterclaim to Plaintiff's Complaint and aver as follows: 1. Denied. The averments in this paragraph are conclusions of law, are impertinent, slanderous accusations, and include hyperbole and argument and misstatements. To the extent an answer is required, it is denied and strict proof thereof is demanded at trial. 2. Admitted in part; denied in part. It is admitted that after giving notice of his resignation to Herre Bros. Inc. CEO, Richard McBride, on March 15, 2010, and after being told by McBride that Euker was required to remain in the employ of Herre Bros. Inc. (hereinafter "HBI") for an additional thirty (30) days, William Euker did obtain a corporate kit from Legalzoom.com in order to begin the process of forming a business entity to be used by William Euker once his employment with HBI was terminated. It is denied that William Euker, by and/or through Elite Plumbing, M w Heating & AC LLC (hereinafter "Elite") did anything unlawful, nor did William Euker, by and through Elite, use any confidential or proprietary information of Plaintiff HBI. In fact, HBI had no confidential or proprietary information for anyone, including William Euker, to acquire. 3. The averments in this paragraph are conclusions of law to which no response is required. To the extent a response is required, they are denied. Defendant Euker has not committed any unlawful act, nor has Defendant Euker usurped any business opportunities of HBI, nor has Defendant Euker interfered with HBI's relations with its customers. By way of further response, Euker is permitted by law to compete in all respects against HBI. 4. The averments in this paragraph are conclusions of law to which no response is required. To the extent a response is required, they are denied. 5. The averment in this paragraph is a conclusion of law to which no response is required. 6. The averment in this paragraph is a conclusion of law to which no response is required. 7. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments and they are, therefore, denied. 8. Admitted. 9. Admitted. 10. Denied. By way of further response, Elite Plumbing, Heating & AC LLC has a business address of 42 Royal Palm Drive, Mechanicsburg, Pennsylvania. 2 r I I- 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted in part; denied in part. It is admitted that Defendant Euker was a managerial employee and a vice president at Plaintiff HBI. Whether Defendant Euker occupied a position of trust and confidence is a conclusion of law to which no response is required, and as such, it is denied. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted in part; denied in part. It is admitted that Defendant Euker was a vice president at HBI and it is admitted that he was paid at a rate of $80,000 per year. It is denied that he was paid annual bonuses on any regular basis. Rather, such bonuses were discretionary with the owner of Plaintiff. By way of further response, the comprehensive pension and benefit package and participation in stock option plan referred to in this averment overstates the situation in that Defendant Euker was only provided a 401(k) plan by Plaintiff. 19. Admitted. 20. It is denied that HBI had any information which was confidential or proprietary which was critical to HBI's success. It is further denied that any great time or expense was expended in obtaining any information confidential or otherwise. By way of further response, the factor that was critical to the success of HBI was the rapport and credibility that Defendant Euker developed with general contractors over the course of the fifteen (15) years that he worked for HBI. This 3 factor was neither confidential, nor proprietary to HBI. By way of further response, HBI dismissed numerous people over the course of the fifteen (15) years that Defendant Euker worked at HBI and those persons left with the same knowledge and information that Defendant Euker left with, none of which was confidential or proprietary. 21. Admitted in part; denied in part. It is admitted that Defendant Euker was a managerial employee and vice president at HBI. It is denied that there was any confidential or proprietary information to be exposed to. 22. Admitted. By way of further response, Defendant Euker did deal with key individuals and contacts for HBI's most significant customers with various projects HBI worked on for these customers. In fact, for the most part, Defendant Euker brought those customers to HBI and but for the efforts of Defendant Euker, those customers would not have come to HBI. By way of further response, Plaintiff has inadvertently identified the reason for the value of Defendant Euker to HBI and the reason for Plaintiff's frivolous and vindictive legal action against Defendant Euker. By way of further response, the most valuable factor in the success of a company such as HBI is the relationships developed between employees such as Defendant Euker and the various customers that are solicited and serviced by the employee. 23. Admitted in part; denied in part. It is admitted that Defendant Euker was a vice president of the mechanical department and was familiar with the factors used in estimating bid projects. It is denied that the information which Defendant Euker was aware of, exposed to, or in possession of, was any information that 4 was not known to each and every estimator for Plaintiff HBI, and such information was also available to many non-employees of Plaintiff HBI. 24. Denied. The time and money invested by HBI in developing relationships with its customers in their specific projects involves the paying of salaries to talented and valuable employees such as Defendant Euker. However, case law addressing the ability of employees to leave their employment and compete against their prior employer has well established that HBI had no legal right to prevent Defendant Euker from utilizing his relationships with general contractors once he had left the employment of HBI. By way of further response, the way in which employers are able to restrict former employees from competing against the employer is by entering into non-compete agreements. HBI never offered Defendant Euker a non-compete agreement. By way of further response, the particulars regarding HBI's customer relationships and customer projects are neither trade secrets, nor proprietary. By way of further response, Plaintiff's failure to enumerate any specific item which it claims was either proprietary, confidential, or a trade secret is evidence that none existed. All competitors of HBI knew who HBI worked with, and all competitors of HBI knew what HBI's projects were. In fact, HBI's most valued corporate assets were its employees like Defendant Euker; such valued corporate assets are neither proprietary, confidential, trade secrets, nor capable of restriction without a non- compete agreement. 25. Admitted. By way of further response, numerous, if not all, employees of HBI had the same access as Defendant Euker. 5 26. It is denied that HBI had any such confidential information or such proprietary information. By way of further response, all information available to Defendant Euker was also available to numerous, if not all, other employees of HBI. 27. Denied. All information available to Defendant Euker was available to numerous, if not all, other employees of Plaintiff HBI. 28. Denied. It is believed and, therefore, averred that any and all information available to Defendant Euker was also available to numerous, if not all, other employees of HBI. 29. Denied. By way of further response, this averment is inaccurate, an exaggeration, and a misrepresentation. By way of further response, Plaintiff HBI has failed in this paragraph, or anywhere else in this Complaint, to identify a single, specific item, or category of item which it claims is confidential or proprietary. The inability of Plaintiff to identify a specific item, or even a class of items that are confidential, proprietary or a trade secret, undercuts Plaintiffs claims. 30. Admitted. 31. Admitted in part; denied in part. It is admitted that R.S. Mowery, Inc. was one of two general contractor bidders for the Land O'Lakes Project. R.S. Mowery, Inc. subsequently obtained the contract, but it did not have the contract at the time that HBI submitted a bid on the job. 32. Admitted in part; denied in part. It is admitted that if HBI was able to convince the general contractor ("GC") of the benefit to the GC of using HBI, once the general contractor was awarded the bid and once the permits were put in place, then HBI would have had a business opportunity. It is denied that any business opportunity existed prior to the permit being issued for the project. 6 33. Admitted in part; denied in part. It is admitted that if Defendant Euker had not left the employment of Plaintiff HBI, it is likely that Defendant Euker would have supervised the bid process. However, once Defendant Euker was no longer employed by Plaintiff HBI, he was no longer available to HBI to provide his efforts, his relationship building, and his communication skills. 34. Admitted in part, denied in part. It is admitted that HBI, along with others who bid on the Land O'Lakes Project, expended significant financial resources, time, and effort. By way of further response, that is the nature of the bidding process. Every subcontractor and general contractor does the same thing. It is part of the nature of the business. It is denied that HBI invested more financial resources, time, and/or effort into procuring the contracting work on the Land O'Lakes Project than it does on any other projects it bids for in any given year. 35. Admitted in part; denied in part. It is admitted that Defendant Euker tendered his resignation on or about March 15, 2010. Further, it is admitted that he indicated that he was going to move-on due to personal and health reasons. By way of further response, after Richard McBride demanded that Defendant Euker remain on the job for an additional thirty (30) days, Defendant Euker continued to work for HBI and continued to perform the same work for HBI that he had done for HBI over the previous fifteen (15) years. 36. Admitted. 37. Admitted in part; denied in part. It is admitted that Defendant Euker resigned from HBI and started his own business. However, it is denied that Defendant Euker was disingenuous in his assertion that he was moving on for health and personal reasons. 7 By way of further response, Defendant Euker had stress tests performed by medical personnel and the likely cause of the high stress indicated was likely work related. In fact, Richard McBride had threatened to fire Defendant Euker on more than one occasion which created an unhealthy and stressful work environment for Defendant Euker. By way of further response, Defendant Euker did not purloin or otherwise cabbage any business opportunity of HBI. 38. Admitted in part; denied in part. It is admitted that Defendant Euker requested documents from Legalzoom.com to establish a business entity on or about March 25, 2010. It is denied that Defendant Euker did anything in the furtherance of the business of Elite other than to obtain, complete, and submit documents to establish a business entity. By way of further response, the aforementioned application for a business entity occurred on March 25, 2010, which was after Defendant Euker had resigned from Plaintiff HBI and after he had been told by Richard McBride that Defendant Euker could not resign effective March 15, 2010, but rather he had to give thirty (30) days notice to Plaintiff HBI. 39. Admitted in part; denied in part. It is admitted that Defendant Euker and Defendant Elite Plumbing were awarded work by R.S. Mowery, Inc. for certain work on the Land O'Lakes Project. It is denied that the award was "almost immediately" after leaving the employment of Plaintiff HBI and it is further denied that the work was "the identical work" that Plaintiff HBI had bid for in February, 2010. 40. Denied. Plaintiff's assertion is speculation, without basis and strict proof thereof is demanded at trial. 8 41. Denied. R.S. Mowery is a general contractor and the Land O'Lakes Project was a private contract. The low bidder on a private contract is not necessarily the successful bidder. Moreover, subsequent to initial bids being submitted to a general contractor, it is more likely than not the general contractor will request modifications to a bid proposal and will request additional bids from those who initially submitted bids. It is simply not accurate to state that because a bidder is the low bidder initially, or at any other point in time, that the initial low bidder will be the ultimate successful bidder. 42. Denied. Plaintiff's assertion is inaccurate, untrue, a fabrication, and a defamatory statement. Strict proof, in the event Plaintiff has such proof, is demanded at trial. 43. Denied. Defendant Euker was able to submit a bid which was lower in dollar amount than the bid of HBI because Elite is a start-up company with little, if any, overhead compared to the overhead of HBI; Defendant Euker and his brother, Michael Euker, performed all of the work themselves, and consequently, did not need to add in the costs of a supervisor for those workmen performing the actual work as HBI was required to; and, because Elite was a start-up company, they were able to submit a bid lower than any other bidder on the project. By way of further response, Plaintiff's assertions reveal a basic lack of understanding of the pricing power of a start-up company that operates without union labor. HBI is restricted by the fact that it has significant overhead costs, its employees are unionized, and it simply cannot compete on price with a start-up company such as Elite. 44. Admitted. 9 45. Admitted in part; denied in part. It is admitted that some other contractors/subcontractors do not disclose the dollar amount of a bid to a competitor. It is denied that Defendant Euker utilized such information in obtaining the Land O'Lakes Project for himself and for Elite. In fact, the Land O'Lakes Project that Defendants obtained was a different project, with different specifications, and the bid that was submitted by HBI in February, 2010 would not have been the successful bid on what the project ultimately included. 46. Denied. Defendant Euker did not take, and, therefore does not have in his possession any confidential information, or any confidential documentation of HBI. 47. Denied. Defendant Euker did not obtain and did not utilize any confidential information or any confidential documentation of HBI and did not use any information that he obtained while an employee of HBI, other than his general and expert knowledge as a professional in the industry, to prepare the subsequent project description for the Land O'Lakes Project. By way of further response, Defendant Euker did keep a generic spread-sheet like bid form at home which he used on occasion, which could not possibly be considered proprietary or confidential or a trade secret. 48. Denied. Defendant Euker did not copy or otherwise take information or documentation from HBI or the HBI computer system with the exception of a generic, non-confidential, unimportant form referred to as bid form, a copy of which is attached as Defendants Exhibit 1. 49. Denied. It is denied that Defendant Euker took any confidential information from HBI; it is denied that Defendant Euker resigning his employment and starting a new 10 start-up company can be characterized as a "scheme" as this simple action takes place on a daily basis throughout this country. Moreover, it is admitted that Defendant Euker is competing with HBI and it is admitted that Defendant Euker will compete for the same customers and the same business opportunities as Plaintiff HBI does both now and in the future. However, it is denied that such competition is unfair and it is denied that Defendant Euker and Defendant Elite have acted unfairly in doing so, nor have they utilized any confidential or proprietary information of HBI to do so. 50. Denied. Defendants have not acted without legal authority in any respect with regard to Plaintiff HBI. 51. Admitted in part; denied in part. It is admitted that after submitting his resignation on or about March 15, 2010, and after working hours, Defendant Euker told some of his friends and business associates that he would be leaving HBI and would be able to do business with them through his own company. By way of further response, it is denied that the entities that have done, are doing, or will do business with HBI, are in any way owned by or in any way the exclusive "customers" of HBI. HBI does not have any possessory interest in those entities or persons who do business from time- to-time with HBI. Moreover, Defendants have not utilized any confidential information or documentation that belong to HBI in competing with HBI on any projects. 52. The averments in this paragraph are conclusions of law to which no response is required. By way of further response, in the event a response is required, Defendant Euker acted in the best interest of HBI for fifteen (15) years and during that fifteen (15) year period, acted to bring about financial success to Plaintiff HBI. Subsequent 11 to resigning and leaving the employment of HBI, Defendant Euker and Defendant Elite have acted with legal authority and with good faith and within those principles permitted by law of an employee who ceases to be employed by a former employer. Defendant Euker is well within his legal rights to compete against HBI and if the added competition harms HBI financially, that is simply the free enterprise system at work. Plaintiff's Complaint is a frivolous, unfair and anticompetitive effort to stifle competition. 53. Denied. The averments in this paragraph are legal conclusions to which no response is required. By way of further response, Defendant Euker has acted within legal authority in all respects. By way of further response, the CEO of HBI, Richard McBride, threatened to fire Defendant Euker on several occasions and in large measure caused the departure of Defendant Euker. By way of further response, Richard McBride, CEO of HBI, has a track record of terminating employees and of treating employees without respect, and without basic professional courtesy. By way of further response, the boundless vindictiveness of Richard McBride is demonstrated by the fact that McBride fired Ryan Euker, son of Defendant Euker, within about a month of April 15, 2010. The grounds for termination were explained by McBride's agent as "moonlighting" in spite of the fact Ryan Euker was not working with Defendant Euker. 54. Denied. After reasonable investigation, Defendants are without sufficient basis upon which to conclude that the averments of Plaintiff are accurate. Strict proof thereof is demanded at trial. 55. No response is required. 12 1 56. Denied as a conclusion of law to which no response is required. By way of further response, while employed by Plaintiff HBI, Defendant Euker acted in the best interest of HBI's business in all regards. 57. Denied. While employed by HBI, Defendant Euker acted in the best interest of HBI. After leaving the employment of HBI, Defendant Euker became a competitor of HBI as is permitted under the law of this Commonwealth. 58. Denied. While employed by HBI, Defendant Euker acted in the best interest of HBI. After leaving the employment of HBI, Defendant Euker became a competitor of HBI as is permitted under the law of this Commonwealth. 59. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of this averment and as such, it is denied. 60. Denied as a conclusion of law to which no response is required. 61. No response is required. 62. Denied as a conclusion of law to which no response is required. 63. Denied as a conclusion of law to which no response is required. 64. Denied as a conclusion of law to which no response is required. 65. After reasonable investigation, Defendants are without sufficient knowledge or information to form a belief as to the truth or falsity of this averment and as such, it is denied. 66. Denied as a conclusion of law to which no response is required. 67. Denied as a conclusion of law to which no response is required. 13 68. Denied as a conclusion of law to which no response is required. By way of further response, Plaintiff HBI had no confidential information to have misappropriated. By way of further response, Defendant Euker has not misappropriated any confidential or proprietary information. 69. Denied. The information and documentation that Plaintiff HBI claims is confidential and proprietary, is information that was available to all estimators who worked at HBI. By way of further response, many of those estimators have been fired and/or left the employment of Plaintiff HBI and any information they took with them is in the public domain. 70. After reasonable investigation, Defendants are without sufficient knowledge or information to form a belief as to the truth or falsity of this averment and as such, it is denied. 71. Denied. All the information referred to by Plaintiff HBI and which HBI has referred to as proprietary, confidential, or a trade secret, is information which all of the estimators for HBI were privy to and all such information was taken by those estimators when they left Plaintiff HBI's employment because such information is neither secret, proprietary, confidential, nor valuable. 72. Denied. All such information referred to by Plaintiff HBI was information that was available to estimators and to secretaries and, as such, Plaintiff representing this information as being proprietary, or confidential, or a trade secret is simply inaccurate. 73. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of this averment and as such it is denied. 14 74. No response is required. 75. This averment is a conclusion of law to which no response is required. 76. This averment is a conclusion of law to which no response is required. 77. Denied. By way of further response, if HBI has lost an indeterminate amount of sales revenue, loss of good will, and loss of business opportunities, it is as a result of Defendant Euker leaving the employment of Plaintiff HBI, which he had the right to do. Defendant Euker left the employment of Plaintiff HBI without a non-compete agreement and without any legal restrictions on his ability to compete against Plaintiff HBI in the industry. 78. No response is required. 79. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of this averment and as such it is denied. 80. Denied. Plaintiff HBI was not invited to re-bid the project and, therefore, Plaintiff HBI was not going to be awarded the project irrespective of its bid in February 2010. 81. Denied as a conclusion of law to which no response is required. By way of further response, Defendants have not obtained, nor utilized any confidential or proprietary information. 82. The averments of this paragraph are conclusions of law to which no response is required. By way of further response, Plaintiff HBI has no proprietary right to any general contractor or subcontractor or business in the industry and Plaintiff HBI's efforts to restrict Defendants' ability to earn a living are in violation of law. 83. The averments of this paragraph are conclusions of law to which no response is required. 15 84. The averments of this paragraph are conclusions of law to which no response is required. 85. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of this averment and as such it is denied. Strict proof of Plaintiff's assertions are demanded at trial. 86. No response is required. 87. These averments are conclusions of law to which no response is required. 88. Denied. Defendants have not engaged in any "scheme" as asserted by Plaintiff and Defendants have not received any unlawful enrichment. 89. Denied. Defendants have not engaged in any "scheme" as defined by Plaintiff. Strict proof of same is demanded at trial. 90. These averments are conclusions of law to which no response is required. 91. These averments are conclusions of law to which no response is required. 92. These averments are conclusions of law to which no response is required. 93. These averments are conclusions of law to which no response is required. 94. These averments are conclusions of law to which no response is required. 95. Denied. Any and all salary, benefits, fees and expenses received by Defendant Euker were appropriately and legally received by Euker. WHEREFORE, Defendants respectfully request this Court enter judgment in their favor and against Plaintiff and enter an Order dismissing all of Plaintiff's claims. 96. No response is required. 16 NEW MATTER 97. All prior paragraphs are incorporated by reference as though fully set forth herein. 98. Defendants are protected by the privilege of fair competition. 99. Defendant William Euker was employed by Plaintiff HBI for approximately fifteen (15) years and at the time of his departure in April 2010, Defendant Euker was the Vice President of the operation. 100. Defendant Euker was the supervisor of those persons who did the estimating for submitting bids on projects for Plaintiff HBI. 101. The President of the company, Richard McBride, had threatened to fire William Euker on more than one occasion which created an atmosphere of job insecurity and stress for Defendant Euker. 102. During the period of years that Defendant Euker had been employed by HBI, he had seen numerous employees terminated by Richard McBride including the former president of the company. 103. The fact that Richard McBride was known to terminate employees for little or no reason and had threatened to terminate Defendant Euker, made clear to Defendant Euker that he served at the whim and caprice of Richard McBride. 104. Defendant Euker sought medical advice due to stress related physical conditions. 105. Defendant Euker tendered his resignation on March 15, 2010 to Richard McBride. 106. Richard McBride refused to accept the resignation and demanded that Defendant Euker remain in the employ of HBI for an additional thirty (30) days. 107. Defendant Euker agreed to do so. 17 •.- 108. During the period of time from March through April, Defendant Euker began the process of forming a company so that when the thirty (30) days was up, he could begin operating immediately. 109. Defendant Euker obtained legal forms from Legalzoom.com to form an entity. A copy of his application receipt is attached as Defendants Exhibit 2, incorporated herein by reference and made a part hereof. 110. On or about March 27, 2010, Defendant Euker submitted the paperwork to obtain approval for his new company to be called Elite Plumbing, Heating & AC LLC. 111. Upon leaving Plaintiff HBI's employment on April 15, 2010, Defendant Euker began to contact those persons and those entities in the business that he knew in order to let them know that he was now operating a business and was able to submit bids for work. 112. It should be noted that Defendant Euker was never offered a non-compete agreement from Plaintiff HBI, nor was he paid a severance by Plaintiff HBI, nor was he paid for outstanding vacation time that he had earned. 113. Mr. Rosendale of R.S. Mowery was contacted by Defendant Euker and Mr. Rosendale indicated that the original bid project for Land O'Lakes that Defendant Euker had overseen in February, 2010 was going to be re-bid and that Defendant Euker was invited to submit a bid. 114. The request for bids for the Land O'Lakes Project had changed dramatically and the specifications had changed dramatically from those in February, 2010 and the amount to be paid by R.S. Mowery to the successful bidder had changed dramatically, and was for all intents and purposes a new bid. 18 115. Defendant Euker prepared his bid proposal using no software program, but rather he used a pencil and a calculator and created his bid proposal for submission to R.S. Mowery, Inc. A copy of that bid proposal is attached as Defendants' Exhibit 3, incorporated herein, and made a part hereof. 116. Defendant Euker's bid was significantly lower than the bid initially submitted by HBI in February 2010, but it also included pricing on additional work that the February bid did not include. 117. The fact that the specifications were different is not a distinction without a difference; the difference is substantial. 118. However, the primary reason that Defendant Euker was able to submit a bid considerably lower than HBI, as well as being considerably lower than the other bidder on the job, was not because Defendant Euker knew of the number of component parts that HBI offered to use in February 2010, nor because Euker knew of the dollar cost of each of the components that HBI intended to use in February 2010, nor was it because Euker knew of the overhead costs that HBI was required to build into each and every one of its bids in February 2010. Rather, the primary reason was that Defendant Euker and his brother, Michael, performed all of the work on the project themselves without needing to hire any employees, and because Elite is a non-union shop and did not need to pay union wages to any employees. Moreover, Elite does not have the overhead HBI does, including the expensive offices and warehouse facility that HBI has. 19 119. Sometimes being a startup company with little overhead and few employees can be a disadvantage where competing with a large company like HBI and sometimes it can be an advantage; in the instant case it was an advantage. 120. The profit margin for the bid proposal submitted by HBI in February 2010 was approximately $13,000. WHEREFORE, Defendants request judgment in their favor and against Plaintiff and that all claims be dismissed with all costs to be charged against Plaintiff. COUNTERCLAIM INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 121. All prior paragraphs are incorporated by reference as though fully set forth herein. 122. Richard McBride demanded that William Euker continue working at HBI for one month and Defendant Euker complied with that demand. 123. It is believed and therefore averred that Richard McBride, through the corporate entity HBI, filed the instant legal action without adequate cause or adequate basis in an effort to restrain Defendants Euker and Elite from competing against HBI. 124. It is believed and therefore averred that Richard McBride, through the corporate entity HBI, has filed the instant legal action without adequate cause or adequate basis in an effort to induce general contractors and other businesses not to do business with Defendants Euker and Elite. 125. It is believed and therefore averred that Richard McBride, through the corporate entity HBI, has made false statements in the instant legal action in an effort to harm 20 the reputation of Defendant Euker and thereby induce general contractors and other businesses not to do business with Defendants Euker and Elite. 126. It is believed and therefore averred that Richard McBride, through the corporate entity HBI, has acted in an unlawful and predatory manner by bringing a frivolous lawsuit against Defendants Euker and Elite in an effort to prevent Defendants Euker and Elite from competing with HBI and is, therefore, an unlawful restraint of trade. 127. Defendants Euker and Elite have been financially harmed by the intentional conduct of HBI by being required to expend sums of money for legal fees to defend the instant frivolous lawsuit thereby causing the performance of the contract with R.S. Mowery to be more expensive than it would have been without the interference by HBI. 128. One who intentionally makes the performance of a contract more expensive than it would have been without the interference is responsible for the loss suffered. 129. HBI's intentional conduct is the direct and proximate cause of the harm to Defendants Euker and Elite. WHEREFORE, Defendants Euker and Elite request damages in an amount in excess of Fifty Thousand Dollars ($50,000), plus costs and such other remedy as this Honorable Court deems fair and equitable. Respectfully By: &"OCIATES, P.C. b`91=Mr, Esquire 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 Attorney for Defendants 21 VERMCATION I, WILLIAM H. EUKER, state that the averments contained in the foregoing pleading are true to the best of my knowledge, information and belief. Further, I am aware that any false statements made herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Bate: d I l2 ! (i' William H. Euker VERIFICA'T'ION I, WCHAEL A. FLTIM, hereby swear and affirm that I am the Vice President of Elite Plumbing, Heating & AC LLC., and that I am authorized on behalf of the company to execute this Verification. I hereby verify that all the information set forth within the preceding document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ELITE PLUMBING, HEATING & AC LLC Dated: _ 11 6.2 ao u By: Mica ael A. Euker, Vice President ELITE Plumbing, Heating AC LLC. Final Estimate Summary Job Name : score : HVAC Owner : BID DATE: Location : BID TIME: Estimator Start Date: Com tetiotr Dane: Trade HVAC Duration in; Calendar Days: 0 Work Days: 0 [H.I.P] I Material Amount Tax 1N Disc. % Value 1. 2. 3. 4. 5. 6. 7. E 5 1( 11 1i 14 1; it 1i if 1£ 2( Labor & Material Sheet: 0.00 Y 0.0% owner 0.00 N 0.0% 0.00 Y 0.0% HVAC EQUIPMENT SHEET 0.00 N 0.0% HVAC PUMPS AND SPECIUTIES 0.00 N 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0.0% 0.00 Y 0:0% MISC.: 0.00 Y 0.0% Subtotal Material : State Sales Tax : Subtotal Material with Tax. Overhead ftgqM Rate Total Material $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 0 0 0 0 0 0 0 Subtotal SubContractors Overhead Recovery Rate Total SubContractors Direct Job Expense RATE 1. 2. 3. 4. 5. Phone $0 Travel Expense $0 Equipment Rental $0-' Trailers $0 Foreman's Truck $0 M 0.00% $0.00 0.00% $0.00 0,00% $0.00 0.00% $0.00 0.00% $0.00 0.00% $0.00 00 $0.00 0.00% $0.00 $0.00 i? $0.00 50.00 MONTH $0.00 MEEK $0.00 MONTH $0.00 MONTH $0.00 VYEEK $0.00 $0.00 ? $0.00 *A f Subtotal Direct Job Expense : Overhead Recovery Rate : EXHIBIT Percent 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0:00% 0.00% 0.00% 0.00% ELITE Plumbing, Heating AC LLC. Productive Labor U- 1 E 11 1E 21 24 t ( 2'. 2( ( Final Estimate Summary Total Rate Level 5 rw 0.00 $0.00 Rate Level 4 0.00 $0.00 Rate Level 3 0.00 $0.00 Rate Level 2 0.00 $0.00 Rate Level 1 0.00 $0.00 Rate Level 1 - Time & Half 0.00 $0.00 Rate Level 2 - Time & Had 0.00 $0.00 0.00 $0.00 0.00% $0.00 0.00 $0.00 0.00% $0.00 RATE INCREASE FOR 2011 0.00 $0.00 0.00% $0.00 ADJUSTMENT AVG RATE 0.00 $0.00 0.00% $0.00 0.00 $0.00 0.00% $0.00 Rate Level 1 - Double Time 0.00 $40.00 49.49% $0.00 Rate Level 2 - Double Time 0.00 $46.00 49.47% $0.00 0.00 $0.00 0.00% $0.00 Avers Labor Rate: 0.00 $0.00 0.00% $0.00 Total Estimated Manhours : 0:00 Total A Located Manhours : 0;00 Remaining Manhours : 0.00 Subtotal Labor Dollars I&T Burden Dollars: Benifits Burden Dollars Hour Entered Subtotal Labor with Burden rncorrecry Overhead Recovery Rabe : Total Productive Labor : Summary of Totals Total Sq. Ft.: 0 Cost per Sq. Ft.: $0.00 Average Hourly Rate $0.00 Material with Tax % : 0.006% SubContractors % : 0.000 Labor with Burden % : 0.000/0 Dead Cost : $0.00 Breakeven Cost : $0.00 Overhead Recovered : $0.00 Profit : $0.00 Total Overhead / Profit : $0.00 Gross Profit Percentage : 0.000/9 Apply Bond YIN ? : Y Job No.: Copied: Scope : HVAC Duration: 0.00 Months Duration: 0 weeks Duration: 0.000 Years Subtotal Bid : Profit : Subtotal With Profit : Commission: Total + Commission: Quote from Dept. 10 : Quote from Dept. 50: Temp Heat Engineering Fee Subcontract (No OH) Subtotal Company Bid : $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 am $0.00 $0.00 0.00% $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% $0.00 City/County Permits : 0.00% $0.00 Special Insurance : 0.000/0 $0.00 Bond Costs : 0.000/0 $0.00 TOTAL : $0.00 QUOTED : $ Page 2 of 2 w Welcome Stephanie Euker Loaout Gontact Details Corporate Genter ' Registered Agent Renewal Your Account Profile Edit Contact Name: Stephanie Euker Phone: 717-766-1098 Ernell: beuker@comeast.net Address!: 42 Royal Palm or City: Mechanicsburg State: PA Zip: 17050 Unfinished Orders No orders found. Order Summary - Check Status Order # 26173684 Ordered on 312612010 3:48:06 PM Express Gold LLC for Elite Plumbing, Heating & AC LLC on 3125/2010 3:48:06 PM Two-Day Shipping (Two Business Days) State Filing Fee - PA EIN Obtainment Business Reg-istrattkm an 3125!2010 148:06 PM Registered Agent Services on 3125=10 3:48,06 PM Page /- or J CORPORATE The Corporate' Center is your business resource to: Downiow important documents and forms - Access your Corporate Minutes - View upcoming dates and events And more... Get recommended partners to help your business grmw f.•om Legalzoom's Business Resource Network Print Invoice Check Status Check Status Start a New Order Choose a document below: Incorporations LLCs DBAsIFBNa Umited Partrrerships Questions? 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(. f y i EXHIBIT 1.. . 00 1' ! 10 • 1 0 V n t? ,r • ' ? ?u . ? ?G ` 3 qO J-0 . I /C 161/0 l n 1? CO/ J j `'f 00 w IGj.ro i K 1 r ?, i f? r? - zA , µ { 'f .r Go 6r ?. 00 •°.o r ? 1 'fi 7C•/,W LC)L r s j ? C?"r ?? ? •'?? S.7r JXx r?? j,f :? Op all •? 1 ? `o 3 v ;_ -,fit r. 1 I? R cti ?r isV ('• f l 1 ?~ j4. r tt r? J 7. 00 kr cp t 1 , ? ?1 ?. ?_ ..? C, Y it ' 1 i ?? d ? .. 7 ? v ? ?r V `? .. . , r? ?_ ?' { . ? ,, '7 / ? .i . ors Suf. 'J ? 'L? 1 .. ?f? - y7 ?S" .{ ? trt.io ?"? r•r ??' ?? r j c It t i . May 17, 2010 Bruce .Rosendale Mowery Construction 1000 Bent Creek Blvd Mechanicsburg, PA 17050 RE: Land-0-Lakes Dear Bruce, We are pleased to submit the following proposal for the process piping at Land-0-Lakes. Following is a detailed breakdown of our scope of work: Included: • 8" schedule 10 304 stainless steel piping from equalization tanks #1 an #2 to manhole (by other) and to tie in point at existing piping • 8" schedule 80 PVC piping from equalization tanks #1 and #2, into DAF building and connect to feed pumps 1, 2, and 3 (provided by others) • 1" x 3" CPVC containment piping from acid pumps (by other) to equalization tanks • 3" CPVC piping from acid tanks 1 and 2, to acid pumps (by other) • 3" CPVC piping for chem-fill at acid tanks 1 and 2 • 6" PVC schedule 80 piping from DAF feed pumps to EDAF 1 and 2 • 12" drain schedule 40 PVC from ID.A.F pumps out of building to manhole (by other) • 3" schedule 80 PVC float piping from DAF tanks 1 and 2 • 8" schedule 80 PVC from 14" DAF EFF to anoxic tank (by others) to EDAF 1 and 2 • 8" PVC schedule 40 recycle line from T-7 building to manhole (by others) • PVC gas piping from meter (existing) to DAF building and to sludge cake storage building • 8" schedule 80 PVC piping from post equalization tank to T-7 building (pumps by others) • 1" stainless steel piping from blower (by others) to bubble diffusers (by others) • Sleeves and link seals are included Exception: • Bonds and permits • Engineering of any kind • All excavation and backfill • Setting of equipment • Painting • Manholes • Instrumentation • Pumps • In-Line mixers • Acid pump system and instrumentation • insulation • Anv taxes on material 42 Royal Palm Drive ° Mechanicsburg, PA 17050 OFFICE: 717-458-5420. FAX: 717-458-5470,, E-MAIL: beuker@,eliteplumbingheatingac.com ?,wrw.eliteplumbingheat ngac.com r Y May 1.7, 2010 RE: Land-O-Lakes Page 2 Sub-Total Price: $305,000.00 Deduct for 14" EFF DA:F piping (-25,1.22.00) Deduct for taxes (-5,700.00) Add for modification to the acid fill station dated 4110110 5,215.00 Total Price: $279.393.00 We hope this meets with your approval and look forward to working with you on this project. Any questions please call at you convenience. Sincerely. J'"Z-_4 William H. Euker 42 Royal Palm Drive, Mechanicsburg. PA 17050 OFFICE: 717-458-5420, FAX: 717-458-5470. E-MAtL: beuker@elitepiumbingheatingac.com = www.eliteplumbingheatingao.com 1 , CERTIFICATE OF SERVICE I, Rob Bleecher, Esquire, attorney for Defendants, hereby certify that I have served a true and correct copy of Answer and New Matter and Counterclaim upon Plaintiff this date by United States First-Class mail, postage prepaid, addressed as follows: Jonathan Landesman, Esquire Mark J. Leavy, Esquire Cohen Seglias Pallas Greenhall & Furman, PC United Plaza, 19th Floor 30 South 17th Street Philadelphia, PA 19103 PECHT & ASj4$0GgXrES, PC Date: X1/0 ?e., ie,- / 26 / & By: RR655-Bleedlef, Esquire PA 32594 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 22 r FILED-OFFICE TA ?? Y Cohen, Seglias, Pallas, Greenhall & Furman, P.C. BY: Jonathan Landesman, Esquire, Id. No. 83454 Mark J. Leavy, Esquire, Id. No. 93128 United Plaza, 19`h Floor 30 South 17' Street Philadelphia, PA 19103 (215) 564-1700 (215) 564-3066 (fax) 2010 DEC -6 ph 3: 22 CUMBERLAND COUNTY PE1*?S Y! VA ±jpA Attorneys for Plaintiff Herre Bros., Inc. Herre Bros., Inc. . 4417 Valley Road . Enola, Pennsylvania 18025-1477 Plaintiff, V. William H. Euker . 42 Royal Palm Drive . Mechanicsburg, Pennsylvania 17050 and Elite Plumbing, Heating & AC LLC 42 Royal Palm Drive . Mechanicsburg, Pennsylvania 17050 Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION NO: 10-5119 ANSWER TO DEFENDANTS' NEW MATTER AND COUNTERCLAIM Plaintiff, Herre Bros., Inc. ("Plaintiff' or "HBI"), by its attorneys, Cohen, Seglias, Pallas, Greenhall, & Furman, P.C., submits the following Answer to the New Matter and Counterclaim filed on behalf of Defendants William H. Euker ("Euker") and Elite Plumbing, Heating & AC, LLC ("Elite Plumbing") (collectively "Defendants"), the allegations of which are set forth as paragraphs 97 through 129 in Defendants' Answer, New Matter and Counterclaim dated November 16, 2010. By way of Answer to Defendants' New Matter and Counterclaim, HBI states as follows: 97. The statements in paragraph 97 of the New Matter do not constitute discrete allegations directed at HBI and do not require a response. 98. The allegations. in paragraph 98 constitute an unsupported conclusion of law to which no response is required. 99. Admitted. 100. Admitted in part, denied in part. It is admitted that Euker supervised individuals who performed estimating work and prepared bids. Euker also prepared bids independently. 101. Denied.. It is denied that Euker's work environment was one with "an atmosphere of job insecurity and stress." 102. Denied as stated. It is admitted only that during the time Euker was employed by HBI, certain employees of HBI were terminated by the company's President and CEO, Mr. McBride, just like any other company. 103. Denied. It is denied that Euker "served at the whim and caprice" of Mr. McBride. It is further denied that Euker's employment was any different that employment by any other company as an "at-will" employee that could be lawfully terminated for any reason, no reason, a good reason or a bad reason, but not an unlawful or prohibited reason. 104. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 104 of the New Matter. 105. Admitted. 106. Admitted in part, denied in part. It is denied that Mr. McBride refused to accept the resignation of Euker. It is admitted that Mr. McBride requested that Euker honor the custom of providing a period of advanced notice before a termination, in this case 30 days, and not quit "on the spot" and without providing any notice. 2 107. It is admitted that Euker agreed to honor the aforementioned 30 day notice period. 108. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 108 of the New Matter. 109. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 109 of the New Matter. 110. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 110 of the New Matter. 111. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 111 of the New Matter. 112. Admitted in part, denied in part. It is admitted that Euker did not sign a non- competition agreement with HBI and was not paid "severance" by HBI. It is denied that Euker "earned" any vacation time that was payable to him upon his termination of employment. 113. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 113 of the New Matter. 114. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 114 of the New Matter. 115. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 115 of the New Matter 116. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 116 of the New Matter. 117. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 117 of the New Matter. 3 118. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 118 of the New Matter. 119. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 119 of the New Matter. 120. After reasonable investigation, HBI is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 120 of the New Matter. WHEREFORE, Plaintiff HBI respectfully requests that this Court enter judgment in its favor and against Defendants and enter an Order: (a) compelling Defendants to render to HBI an accounting for all monies received by them from current and/or former customers of HBI; (b) awarding monetary compensation for HBI's lost profits resulting from Euker's unlawful scheme and usurpation of HBI's confidential information and business opportunities; (c) disgorging, or alternatively imposing a constructive trust over, all profits derived by Defendants from HBI's customers and projects which were wrongfully diverted from HBI, (d) awarding monetary compensation so that HBI may recoup salary, benefits, and other expenses paid to Euker to which he was not entitled; (e) awarding punitive damages to punish Defendants; (f) awarding pre- and post judgment interest to HBI; (g) reimbursing HBI's attorneys' fees and costs; and (h) for such other and further relief as the Court deems appropriate. 121. HBI incorporates herein by reference the allegations of the proceeding paragraphs. 122. Admitted in part, denied in part. It is denied that Mr. McBride refused to accept the resignation of Euker. It is admitted that Mr. McBride requested that Euker honor the custom of providing a period of advanced notice before a termination, in this case 30 days, and not quit "on the spot" and without providing any notice. 4 123. Denied. It is specifically denied that HBI or Mr. McBride filed this lawsuit "without adequate cause of basis in an effort to restrain" Euker and Elite Plumbing from competing with HBI. 124. Denied. It is specifically denied that HBI or Mr. McBride filed this lawsuit "without adequate cause of basis in an effort to restrain to induce general contractors and other businesses not to do business with" Euker and Elite Plumbing. 125. Denied. It is specifically denied that HBI or Mr. McBride has made "false statements in the instant legal action in an effort to harm the reputation of Euker or to "induce general contractors and other businesses not to do business with" Euker and Elite Plumbing. 126. Denied. It is specifically denied that HBI or Mr. McBride have "acted in an unlawful and predatory manner by bringing a frivolous lawsuit against" Euker and Elite Plumbing to prevent them from competing with HBI. It is further denied as an unsupported conclusion of law that any such activity, as alleged by Euker and Elite Plumbing, "is an unlawful restraint of trade." 127. Denied. It is denied that Euker and Elite Plumbing have been financially harmed by any alleged intentional conduct of HBI. It is further denied that HBI has made the performance of any contract between Euker and/or Elite Plumbing and any party, including but not limited to any contract with R.S. Mowery & Sons, Inc. "more expensive." 128. Denied. It is denied as an unsupported conclusion of law that "one who intentionally makes the performance of a contract more expensive than it would have been without the interference is responsible for the loss suffered." It is further denied that HBI has made the performance of any contract between Euker and/or Elite Plumbing and any party, including but not limited to R.S. Mowery & Sons, Inc. "more expensive." 5 129. Denied. It is denied that any conduct of HBI, intentional or otherwise, was the proximate cause of any harm to Euker and Elite Plumbing. It is further denied, as an unsupported conclusion of law, the HBI proximately caused any harm to Euker and Elite Plumbing. WHEREFORE, Plaintiff HBI respectfully requests that this Court enter judgment in its favor and against Defendants and enter an Order dismissing the Counterclaim with prejudice. Respectfully submitted, Dated: December 6, 2010 COHEN, SEGLIAS, PALLAS, GEMENHALL & FURMAN. P.C. J O ATHAN LANDESMAN, ARK J. LEAVY, ESQUIRE Vnited Plaza, 19" Floor 30 South 17th Street Philadelphia, PA 19103 (215) 564-1700 (Phone) (215) 564-3066 (Fax) Attorneys for Plaintiff, Herre Bros., Inc. 6 VERIFICATION I hereby verify that 1 have reviewed the foregoing Answer to the New Matter and Counterclaim and state that the foregoing statements therein are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 relating to sworn falsification to authorities. Dated: (L G I , .....: RICHARD A. McBRI -'= - ---- President and CEO Herre Bros., Inc. 7 CERTIFICATE OF SERVICE I, Jonathan Landesman, Esquire, hereby certify that on this 6th day of December, 2010, a true and correct copy of the foregoing Answer to Defendants' New Matter and Counterclaim was served via first class mail upon the following: Rob Bleecher, Esquire Pecht & Associates, PC 1205 Manor Road, Suit 2 Mechanicsburg, PA 70 .THAN LANDESMAN, ESQUIRE #1149753-0 06334-0040 David Buelr prothonotary Office of the Prothonotary Cum6errand County, Tennsyfvania rkS. Solionage, TS'Q Solicitor /L- " Sf ! Q CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 0 CarCisCe, TA 0 (Phone 717 240-6195 0 Fax 71 7 240-6573