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HomeMy WebLinkAbout10-7012IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law vs. No. /a' -M-a - Z4l 'rl ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. COMPLAINT NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166 (800) 990-9108 C-) C'` rv Q Q t=-- - < > CD 7Z > tv ? cra ? fd . 'V? .0 -g P4-ff lale 3 ?50 70/ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law VS. No. -7 6 1 ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. COMPLAINT 1. This is an action by plaintiff, UGI UTILITIES INC. to recover damages from defendant arising out of a debt the defendants owes to plaintiff by virtue of a utility service. 2. UGI UTILITIES INC. is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at P.O. Box 12677, Reading, Pennsylvania, 19612-2677. 3. Defendant, ROGELE, INC., is a Pennsylvania Corporation with a principal place of business at 1025 South 21" Street, Harrisburg, Pennsylvania, 17104. 4. Defendant, GARY HOULL, is an adult individual whose residence is unknown, but who is employed by Defendant, ROGELE, INC. 5. At all times relevant hereto, plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested utility service in accordance with the Rate Schedules and General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUNTI UGI UTILITIES INC. VS. GARY HOULL NEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth. 7. Defendant, GARY HOULL, while employed by Defendant, ROGELE, INC., violated the Underground Utility Line Protection Law, Act 187 of 1996 in that he: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with an backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOULL, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. 8. Defendant, GARY HOULL, while operating a backhoe, on or about July 13, 2009 struck and damaged an underground active gas utility line owned and operated by UGI UTILITIES INC. at the vicinity of 300 block 9u' Street, New Cumberland, Cumberland County, Pennsylvania. 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff made demand on Defendant, GARY HOULL, to repay the sums then due and owing to Plaintiff, but Defendant, GARY HOULL, has refused to pay Plaintiff. 11. Plaintiff has been damaged in the amount of $2,839.56, including costs and attorneys fees. WHEREFORE, Plaintiff UGI UTILITIES, INC. demands judgment against the Defendants, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT II UGI UTILITIES INC. VS. GARY HOULL COMMON LAW TORT 12. The allegations contained in Paragraphs 1 through 11 above are incorporated by reference as if fully set forth. 13. Plaintiff used standard industry markings to identify the location of its active- underground gas utility line prior to July 13, 2009. 14. Defendant, GARY HOULL, did not exercise due care and did not take all reasonable steps to avoid damage to the active gas utility line owned by UGI UTILITIES INC., in that he/she; a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with an backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOULL, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. WHEREFORE, Plaintiff UGI UTILITIES INC. demands judgment against the Defendants, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT III UGI UTILITIES INC. VS. ROGELE, INC. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 15. Paragraphs 1 through 14 are incorporated by reference as if fully set forth herein. 16. Defendant, ROGELE, INC., was the owner of the backhoe that struck and damaged an underground active gas utility line. 17. Defendant, ROGELE, INC., permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those which occurred on the date of the accident. 18. Defendant, ROGELE, INC., is vicariously responsible for the actions of its agents and employees. 19. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 20. The aforementioned damages were the direct and proximate result of the negligence of Defendant, ROGELE, INC., including negligent acts and/or omissions of defendant as performed individually and/or by and through others permitted to use a backhoe more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and/or train Defendant, GARY HOULL, in the operation of his/her backhoe; b) negligently and carelessly failing to properly supervise the operation and control of said backhoe; and c) otherwise failing to exercise reasonable care under the circumstances. 21. Plaintiff has been damaged in the amount of $2,839.56, including costs and attorneys fees. WHEREFORE, Plaintiff UGI UTILITIES INC. demands judgment against the Defendant, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. Respectfully submitted, KRZYWICKI & A*<6`C ES, P.C. DATED: October 29, 2010 By: qew Hox SQL ew Ho , PA 189 ? 215-862-4390 Attorney for Plaintiff Attorney I.D. 23754 VERIFICATION Pursuant to Rule 1024 (c), I, ANTHONY P. KRZYWICKI, ESQUIRE, verify that I am the attorney for Plaintiff in the within case; that the appropriate officers of the Plaintiff are not available within the time for serving the foregoing to provide their verification; that I am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge, information and belief, based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unsworn falsification to authorities. Dated: October 29, 2010October 29, 2010 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ? o Sheriff C=' -V :t o Jody S Smith M CD ? = Chief Deputy 4 r . i 't'F X 70 -C cn ? v -V ? Richard W Stewart r rv CD Solicitor ^FFI?. FTt-,E .-ERIF€ r --ice c-J C> C) -q _ N) C) UGI Utilities Inc. Case Numbed` vs. 2010-7012 Gary Houll (et al.) SHERIFF'S RETURN OF SERVICE 11/05/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Gary Houll c/o Rogele, Inc., but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 11/05/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Rogele, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 11112/2010 02:20 PM - Dauphin County Return: And now November 12, 2010 at 1420 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Rogele, Inc. by making known unto Candy Newcomer, Bookkeeper for Rogele, Inc. at 1021 S. 21 st Street, Harrisburg, PA 17104 its contents and at the same time handing to her personally the said true and correct copy of the same. 11/12/2010 02:20 PM - Dauphin County Return: And now November 12, 2010 at 1420 hours 1, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Gary Houll by making known unto Candy Newcomer, Bookkeeper for Gary Houll at 1021 S. 21 st Street, Harrisburg, PA 17104 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.00 November 18, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF ,Ci CouniySuite Shenff. Teleosoft. Inc, (Ailit.t of t he's 4 1 e William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin UGI UTILITIES INC. ROGELE INC. Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy VS Sheriff s Return No. 2010-T-3457 OTHER COUNTY NO. 20107012 And now: NOVEMBER 12, 2010 at 2:20:00 PM served the within COMPLAINT upon GARY HOULL by personally handing to CANDY NEWCOMER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 1021 S 21 ST STREET HARRISBURG PA 17104 BOOKKEEPER Sworn and subscribed to before me this 15TH day of November, 2010 -)PAF COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County M Commission Expires August 17, 2014 So Answers, Sheriff of Dauphin County, Pa. By Deputy Sheriff Deputy: DARIN S SHERFEY Sheriffs Costs: $60.5 11/10/2010 m l it:>- of the "*v r'f aka William T. Tully Solicitor f Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin UGI UTILITIES INC. ROGELE INC. Sheriff s Return No. 2010-T-3457 OTHER COUNTY NO. 20107012 Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy VS And now: NOVEMBER 12, 2010 at 2:20:00 PM served the within COMPLAINT upon ROGELE INC. by personally handing to CANDY NEWCOMER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 1021 S. 21 ST STREET HARRISBURG PA 17104 BOOKKEEPER Sworn and subscribed to before me this 15TH day of November, 2010 -XPAF COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County M Commission Expires August 17 2014 So Answers, ? e'?' Sheriff of Dauphin County, Pa. By Deputy She Deputy: DARIN S ERFEY Sheriffs Costs: $60.5 11/10/2010 MARGOLIS EDELSTEIN Stephen L. Banko, Jr., Esquire PA Attorney ID #41727 3510 Trindle Road Camp Hill, PA 17011 Direct Dial: 717-760-7501 Fax: 717-975-8124 Email: sbanko0margolise -OFFICE Or THELPOTHONOTARY 2019 DEC -2 PM 3: 59 OUMBERLAHD COUNT' PENNSYLVANIA delstein.com Attorney for Defendants UGI UTILITIES, INC., V. Plaintiff ROGELE, INC., and GARY HOULL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA DOCKET NO. 10-7012 CIVIL ARBITRATION ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Stephen L. Banko, Jr. of Margolis Edelstein on behalf of the Defendants in the above-captioned action. EDELSTEIN n L Banko, Jr. v f r Defendants Date: December 1, 2010 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates, PC PO Box 505 New Hope, PA 18938 Angela A. Kblly, Secretary Date: December 1, 2010 MARGOLIS EDELSTEIN MARGOLIS EDELSTEIN Stephen L. Banko, Jr., Esquire PA Attorney ID #41727 3510 Trindle Road Camp Hill, PA 17011 OF THE FILED-OFFICE Y 2010 DEC -2 PH 3: 59 CUMBERLAND CCJNTY Direct Dial: 717-760-7501 PA'S YLVFax: 717-975-8124 Email: sbankoiMmar isedelstein com Attorney for Defendants UGI UTILITIES, INC., V. Plaintiff ROGELE, INC., and GARY HOULL, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA DOCKET NO. 10-7012 CIVIL JURY TRIAL DEMANDED ? t JFECTMB 4F 09FENDANTS, R069LE, WC. A QARY HOULL, TO PLAINTIFF'S GO LAINT 1. Plaintiff filed its Complaint on or about November 4, 2010. A copy of said Complaint is attached hereto, incorporated herein by reference, and marked as Exhibit A. 2. Plaintiffs Complaint contains three (3) counts. Count I alleges negligence per se against Defendant Gary Houll ("Houll"); Count II alleges common law tort against Houll; and Count III alleges vicarious liability of Defendant Rogele, Inc. for Houll's allegedly negligent conduct. 3. In the prayers for relief in each of these Counts of the Complaint, Plaintiff seeks punitive damages. 4. In paragraphs 11 and 21 of its Complaint, Plaintiff seeks attorney's fees. 5. In paragraph 20(c), Plaintiff alleges that Rogele was negligent by: "otherwise failing to exercise reasonable care under the circumstances." (3) insufficient specificity of the pleading; (4) legal insufficiency of a pleading (demurrer)... 13. Under Pennsylvania law, punitive damages are recoverable only if the defendant's conduct is outrageous. Feld v. Merriam, 485 A.2d 742, 747-748 (Pa. 1984). 14. 'Where there exists no indication of evil motive, then a plaintiff must establish that a defendant acted with reckless indifference to the rights of others." Burke v. Maasen, 904 F.2d 178, 181 (3`d Cir. 1990). 15. "A claim for punitive damages must plead facts sufficient to summarize and support the claim, including facts tending to cast the alleged actions in a light justifying the label of outrageous conduct." Smith v. Brown, 423 A.2d 743 (Pa. Super. 1980). 16. To the extent either Defendant was negligent, which is specifically denied, such conduct was no more than mere negligence or inadvertence. 17. Under Pennsylvania law, therefore, Plaintiffs are not entitled to punitive damages on a claim involving mere negligence or even gross negligence 18. Nowhere in Plaintiffs' Complaint is there any fact which suggests outrageous conduct perpetrated with an evil motive or reckless indifference to the rights of others which, would be a requisite showing for the imposition of punitive damages, in the first instance. 19. Plaintiffs' allegations do not satisfy the minimal pleading requirement for establishing a prima facie case to recover punitive damages against Defendants. Accordingly, such claims are properly dismissed pursuant to Pa. R.C. P. No. 1028 (a)(4), or in the alternative, stricken pursuant to Pa. R.C. P. No. 1028 (a)(2). 3 20. With respect to Plaintiffs claims for attorney's fees, it is believed and therefore averred that Pennsylvania law does not permit the recovery of counsel fees from the adverse party in the absence of an express statutory provision or an agreement between the parties. See Corace v. Balint, 418 Pa. 262 210A.2d 882 (1965). 21. Nowhere in its Complaint does Plaintiff set forth the contractual or statutory provision under which it seeks counsel fees. 22. Accordingly, such claims for attorneys' fees fail to conform to rule of law and, accordingly, are properly stricken pursuant to Pa.R.C.P. No. 1028(a)(2). WHEREFORE, Defendants, Rogele, Inc. and Gary Houll prays this Honorable Court enter an Order striking paragraph 20(c) of Plaintiff's Complaint pursuant to Pa.R.C.P. No. 1028(a)(2) for failure to comply with the requirements of Pa.R.C.P. No. 1019; dismissing Plaintiffs claims for punitive damages contained in the prayers for relief of Plaintiffs Complaint pursuant to Pa.R.C.P. No. 1024(a)(4); and striking Plaintiffs claims for attorney's fees as contained in paragraphs 11 and 21 of its Complaint pursuant to Pa.R.C.P. 1028(a)(2). MARGOLIS EDELSTEIN By: Date: December 1, 2010 Std#hpn L. anko, Jr. Attorney fo Defendants 4 t/VIr IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI U T IL,iTIES INC., Plaintiff, Civil Action - In Law vs. No. 70 (2- ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. COMPLAINT NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action w_thin twenty (20) days after this Complair_t and Not_ce are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Compla_nt or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166 (800) 9911-9108 TRUE COPY FROM RECORD in TestimanY. wherabt'" '.ftf• Unto Set my hand and the of Sant ?i# doftle; Pa..? Thls day a0 :„" 20 ie -._ Pl? IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGT UTILITIES INC., Plaintiff, Civil Action - In Law VS. No. ROGELE, INC. and : GARY HOULL, ARBITRATION Defendants. COMPLAINT 1. This is an action by plaintiff, UGl UTILITIES WC. to recover damages from defendant arising out of a debt the defendants owes to plaintiff by virtue of a utility service. 2. UGI UTILITIES INC. is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at P.O. Box 12677, Reading, Pennsylvania, 19612-2677. 3. Defendant, R.OCT.F,J.,E, INC., is a Pennsylvania Corporation with a principal place of business at 1025 South 21st Strcct, Harrisburg, Pennsylvania, 1.71.04. 4. Defendant, GARY HOULL, is an adult individual whose residence is unknown, but who is employed by Defendant, ROCTELE, INC. 5. At all times relevant hereto, plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested utility service in accordance with the Rate Schedules and. General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUN 7F I UGI UTILITIES INC. VS. GARY HOULL NEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth. 7. Defendant, GARY HOULL, while employed by Defendant, ROGELE, INC., violated the Underground Utility Line Protection Law, Act 187 of 1996 in that he: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with an backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOULL, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. 8. Defendant, GARY HOULL, while operating a backhoe, on or about July 13, 2009 struck and damaged an underground active gas utility line owned and operated by UG1 ITTII.ITIES INC. at the vicinity of 300 block 9`h Street, New Cumberland, Cumberland County, Pennsylvania. 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff made demand on Defendant, GARY HOULL, to repay the sums then due and owing to Plaintiff, but Defendant, GARY HOULL, has refused to pay Plaintiff. 11. Plaintiff has been. damaged in the amoLmt of $2,839.56, including costs and attorneys fees. WHEREFORE, Plaintiff UGI UTILITIES, INC. demands judgment against the Defendants, in an amount in excess of 52,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT II UGI UTILITIES INC. VS. GARY HOULL COMMON LAW TORT 12. The allegations contained in Paragraphs 1 through 11 above are incorporated by reference as if fully set forth. 13. Plaintiff used standard industry markings to identify the location of its active- underground gas utility line prior to July 13, 2009. 14. Defendant, GARY HOULL, did not exercise due care and did not take all reasonable steps to avoid damage to the active gas utility line owned by UGI UTILITIES INC., in that he/she; a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with an backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOUT1, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. WHEREFORE, Plaintiff UGI UTILI TIES INC. demands judgment against the Defendants, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT III UGI UTILITIES INC. VS. ROGELE, INC. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 15. Paragraphs 1 through 14 are incorporated by reference as if fully set forth herein. 16. Defendant, ROGELE, INC., was the owner of the backhoe that struck and damaged an underground active gas utility line. 17. Defendant, ROGF.,LE, TNIC., permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those which occurred. on the date of the accident. 18. Defendant, ROGELE, INC., is vicariously responsible for the actions of its agents and employees. 19. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 20. The aforementioned damages were the direct and proximate result of the negligence of Defendant, ROGELE, INC., including negligent acts and/or omissions of defendant as performed individually and/or by and through others permitted to use a backhoe more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and/or train Defendant, GARY HOULL, in the operation of his/her bacldnoe; b) negligently and carelessly failing to properly supervise the operation and control of said backhoe; and c) otherwise failing to exercise reasonable care under the circumstances. 21. Plaintiff has been damaged in the amount of $2,839.56, including costs and attorneys fees. WHEREFORE, Plaintiff UGl UTILITIES INC. demands judgment against the Defendant, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. Respectfully submitted, K12ZYWICK[ &.A9SOCMeTES. P.C. DATED: October 29, 2010 By: A ny Ia)< Esquire .0c New Hope, PA 18938 215-862-4390 Attorney for Plaintiff Attorney I.D. 23754 VERIFICATION Pursuant to Rule 1024 (c), I; ANTHONY P. KRZYWICKI, ESQUIRE, verify that I am the attorney for Plaintiff in the within case; that the appropriate officers of the Plaintiff are not available within the time for serving the foregoing to provide their veri-fication.; that T am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge, information and belief, based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unworn falsification to authorities. Dated: October 29, 2010October 29, 2010 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates, PC PO Box 505 New Hope, PA 18938 MARGOLIS EDELSTEIN r Angela A. ,Ke , Secretary Date: December 1, 2010 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., vs. ROGELE, INC. and GARY HOULL, Plaintiff, Defendants. Civil Action - In Law No. 10-7012 Civil ARBITRATION TO THE PROTHONOTARY: PRAECIPE TO AMEND COMPLAINT Kindly amend the Complaint in the above-captioned Civil Action. C_-7 ZC - - z cnf-- r '7 r I C'7 -,,r- -.K3> "" ? rrr Z ? ? - C- t ' O - w.,y KRZYWI &. A I ES, P.C. DATED: December 8, 2010 BY: ony P. icki, Esquire ttorney f la.intiff P.O. Box 505 New Hope, PA 18938 (215) 862-4390 Attorney I.D. 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., vs. ROGELE, INC. and GARY HOULL, Plaintiff, Civil Action. - In Law No. 10-7012 Civil ARBITRATION Defendants. C-.' C-- r,, C-5 CID -Q3 Z?; --I C- 1t FIRST AMENDED COMPLAINT NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., vs. ROGELE, INC. and GARY HOULL, Plaintiff, Civil Action - In Law No. 10-7012 Civil ARBITRATION Defendants. FIRST AMENDED COMPLAINT 1. This is an action by plaintiff, UGI UTILITIES INC. to recover damages from defendant arising out of a debt the defendants owes to plaintiff by virtue of a utility service. 2. UGI UTILITIES INC. is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at P.O. Box 12677, Reading, Pennsylvania, 19612-2677. 3. Defendant, ROGELE, INC., is a Pennsylvania Corporation with a principal place of business at 1025 South 21St Street, Harrisburg, Pennsylvania, 17104. 4. Defendant, GARY HOULL, is an adult individual whose residence is unknown, but who is employed by Defendant, ROGELE, INC. 5. At all times relevant hereto, plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested utility service in accordance with the Rate Schedules and General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUNTI UGI UTILITIES INC. VS. GARY HOULL NEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth. 7. Defendant, GARY HOULL, while employed by Defendant, ROGELE, INC., violated the Underground Utility Line Protection Law, Act 187 of 1996 in that he: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with a backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOULL, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. 8. Defendant, GARY HOULL, while operating a backhoe, on or about July 13, 2009 struck and damaged an underground active gas utility line owned and operated by UGI UTILITIES INC. at the vicinity of 300 block 9"' Street, New Cumberland, Cumberland County, Pennsylvania. 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff made demand on Defendant, GARY HOULL, to repay the sums then due and owing to Plaintiff, but Defendant, GARY HOULL, has refused to pay Plaintiff. 11. Plaintiff has been damaged in the amount of $2,839.56, including costs. WHEREFORE, Plaintiff, UGI UTILITIES, INC., demands judgment against the Defendant, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest and delay damages as the law may allow. COUNT II UGI UTILITIES INC. VS. GARY HOULL COMMON LAW TORT 12. The allegations contained in Paragraphs 1 through 11 above are incorporated by reference as if fully set forth. 13. Plaintiff used standard industry markings to identify the location of its active- underground gas utility line prior to July 13, 2009. 14. Defendant, GARY HOULL, did not exercise due care and did not take all reasonable steps to avoid damage to the active gas utility line owned by UGI UTILITIES INC., in that he/she; a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with an backhoe in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, GARY HOULL, determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. WHEREFORE, Plaintiff, UGI UTILITIES INC., demands judgment against the Defendant, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest and delay damages as the law may allow. COUNT III UGI UTILITIES INC. VS. ROGELE, INC. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 15. Paragraphs 1 through 14 are incorporated by reference as if fully set forth herein. 16. Defendant, ROGELE, INC., was the owner of the backhoe that struck and damaged an underground active gas utility line. 17. Defendant, ROGELE, INC., permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those which occurred on the date of the accident. 18. Defendant, ROGELE, INC., is vicariously responsible for the actions of its agents and employees. 19. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 20. The aforementioned damages were the direct and proximate result of the negligence of Defendant, ROGELE, INC., including negligent acts and/or omissions of defendant as performed individually and/or by and through others permitted to use a backhoe more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and/or train Defendant, GARY HOULL, in the operation of his/her backhoe; and b) negligently and carelessly failing to properly supervise the operation and control of said backhoe. 21. Plaintiff has been damaged in the amount of $2,839.56, including costs. WHEREFORE, Plaintiff, UGI UTILITIES INC., demands judgment against the Defendant, in an amount in excess of $2,839.56, together with costs, prejudgment and post judgment interest and delay damages as the law may allow. DATED: December 8, 2010 Respectfully submitted, KRZYWIC.KI & ASSO TES, P.C. By: Ant ony P. zyw' Es re P . Bo 05 ew ape, P 18938 -862- 0 Attorney for Plaintiff Attorney I.D. 23754 VERIFICATION Pursuant to Rule 1024 (c), I, ANTHONY P. KRZYWICKI, ESQUIRE, verify that I am the attorney for Plaintiff in the within case; that the appropriate! officers of the Plaintiff are not available within the time for serving the foregoing to provide their verification; that I am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge, information and belief, based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unsworn falsification to authorities. Dated: December 8, 2010 CERTIFICATE OF SERVICE I hereby certify that on December 8, 2010, a copy of the forgoing First Amended Complaint was mailed via First Class Mail to the following by placing same in a depository under the exclusive care and custody of the United States Postal Service addressed to the last- known address for Defendants' counsel or Defendant: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants DATED: December 8, 2010 By: KRZYWICKI & A?SKIATES, P.C. AnIhKny P. 5WIrwicki sqi P.O. Box 50 New Hope, PA 18938 (215) 862-4390 Attorney for Plaintiff Attorney I.D. 23754 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbankodmargolisedelstein.com FILE0-CHICE OF THE PROTHONOTARY r n t _ 1 I lJ ! :J ? Y T PEidN` Y Lv`t, , A Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, INC., Plaintiff DOCKET NO. 2010-7012 CIVIL CIVIL ACTION - LAW V. ROGELE, INC., and GARY HOULL, JURY TRIAL DEMANDED Defendants NOTICE' TO PLEAD TO: UGI Utilities, Inc. c/o Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. MA LIS EDELSTEIN By: S E E L. BANKO, JR. Attorney for Defendants Date: January 5, 2011 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 Attorney for Defendants E-mail: sbankoglmaosmolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, INC., DOCKET NO. 2010-7012 CIVIL Plaintiff CIVIL ACTION - LAW V. ROGELE, INC. and GARY HOULL JURY TRIAL DEMANDED Defendants ANMER AND NEW MATTER OF DEFENDANTS, GM H0ftL . AND ROGELE, INC., TO PLAINTIFF'S FAST AAW ED -- COMPLAINT 1. Denied. It is specifically denied that any conduct on the part of Defendants caused, contributed to or increased the likelihood of any harm to Plaintiff. By way of further answer, it is specifically denied that, to the extent Defendants owed any duty to Plaintiff, Defendants breached any such duty or that Plaintiff is entitled to recover damages from Defendants. 2. Admitted in part and denied in part. As to Plaintiff's corporate structure and operating authority, after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of said averments and, therefore, they are denied. 3. Admitted in part and denied in part. Defendant, Gary Howell ("Mr. Howell"), misidentified as Gary Houll, is an employee of Defendant Rogele, Inc. ("Rogele"). Mr. Howell is not aware of being served with Plaintiffs Complaint or any other form of process. 4. Admitted. 5. Upon information and belief, the allegations contained in this paragraph appear to be true. COUNTI UGI Utilities, Inc. v. Gary Houll Negligence per se 6. The Answers contained in paragraphs 1 through 5 hereof are incorporated herein by reference as if set forth in their entirety. 7a)-d) Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, the Answers contained in paragraphs 1 and 3 hereof are incorporated herein by reference as if set forth in their entirety. 8. Admitted. By way of further answer, however, the Answers contained in paragraph 7 hereof is incorporated herein by reference as if set forth in its entirety. Prior to July 13, 2009, Rogele made the required One Call Notification requesting that all utilities, including Plaintiff herein, mark their respective utility lines. Plaintiff failed to comply with the requirements of the Underground Utility Line Protection Law by failing to mark its line properly. 9. Denied. The Answers contained in paragraph 1, 7 and 8 hereof are incorporated herein by reference as if set forth in their entirety. 10. Denied as stated. For the reasons set forth in paragraphs 1, 7 and 8 hereof, Defendants are under no obligation to make any payment to Plaintiff by reason of Plaintiff's failure to comply with the requirements of Pennsylvania law. t 11. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied WHEREFORE, Defendants, Gary Howell, misidentified as Gary Houll and Rogele, Inc., demand judgment in their favor and against Plaintiff. COUNT II UGI Utilities, Inc. v. Gary Houll Commonlaw Tort 12. The Answers contained in paragraphs 1 through 11 hereof are incorporated herein by reference as if set forth in their entirety. 13. Denied. The Answers contained in paragraphs 1, 7 and 8 hereof are incorporated herein by reference as if set forth in their entirety. 14.a)-c) Denied. The Answers contained in paragraphs 1, 7 and 8 hereof are incorporated herein by reference as if set forth in their entirety. WHEREFORE, Defendants, Gary Howell, misidentified as Gary Houll and Rogele, Inc., demand judgment in their favor and against Plaintiff. COUNT III UGI Utilities, Inc. v. Rogele, Inc. Vicarious Liability For Action of Employee 15. The Answers contained in paragraphs 1 through 14 hereof are incorporated herein by reference as if set forth in their entirety. 16. Admitted. By way of further answer, the Answers contained in paragraphs 1, 7 and 8 hereof are incorporated herein by reference as if set forth in their entirety. 17. Denied. The Answer contained in paragraph 16 hereof is incorporated herein by reference as if set forth in its entirety. 18. Denied. The Answer contained in paragraph 16 hereof is incorporated herein by reference as if set forth in its entirety. 19. Denied. The Answer contained in paragraph 16 hereof is incorporated herein by reference as if set forth in its entirety. 20.a)-b) Denied. The Answer contained in paragraph 16 hereof is incorporated herein by reference as if set forth in its entirety. c) Pursuant to a stipulation entered into by counsel for the parties, this allegation has been withdrawn from Plaintiff's Complaint and, accordingly, and upon advice of counsel, no answer on the part of Rogele is required. 21. Denied. The Answer contained in paragraph 11 hereof is incorporated herein by reference as if set forth in its entirety. WHEREFORE, Defendants, Gary Howell, misidentified as Gary Houll and Rogele, Inc., demand judgment in their favor and against Plaintiff. NEW MATTER 22. The Answers contained in paragraphs 1 through 21 hereof are incorporated herein by reference as if set forth in their entirety. 23. Plaintiffs claim, if any, is or may be barred by the applicable statute of limitations. 24. Plaintiffs claim, if any, is or may be barred by the doctrine of collateral estoppel and/or res judicata. 25. Plaintiff's claim, if any, is or may be barred by Pennsylvania statutory or regulatory law regarding excavation of utilities. 26. Plaintiffs claim is barred and/or reduced by the Pennsylvania Comparative Negligence Act. 27. Plaintiffs claim, if any, may have been caused by conduct of parties or individuals or entities not a party to this action. WHEREFORE, Defendants, Gary Howell, misidentified as Gary Houll and Rogele, Inc., demand judgment in their favor and against Plaintiff. LIS EDELSTEIN By: STEPsHEH L. PANKO, JR. Attorney ID Nb. 41727 Attorney for Defendants Date: January 5, 2011 r VERIFICATION I, Gary Howell, have read the foregoing Answer and New Matter to Plaintiffs First Amended Complaint. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: 3 I co 2?' (()J=?J -? Ga owell T VERIFICATION I, Chris McClure, have read the foregoing Answer and New Matter to Plaintiffs First Amended Complaint. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: 1?? ?Za Chris McClure, Vice President Rogele, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 MARGOLIS EDELST IN ?_jr_ Angel A. elly, Secretary Date: January 5, 2011 KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215)862-4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA I°Il. B-O F ICE " I -- PROTHChGTAR f1JIF 2011 r n- 4 N '2: 4 4 CUMBERLAND COUNTY PE'N'NSYLVA>rIA UGI UTILITIES INC., vs. Plaintiff, Civil Action - In Law No. 10-7012 Civil ROGELE, INC. and GARY HOULL, Defendants ARBITRATION MOTION TO COMPEL DISCOVERY Pursuant to Pa.R.C.P. 4019, Plaintiff, UGI Utilities Inc., moves the Court to enter an order in the form attached, directing Defendants, Rogele, Inc. and Gary Houll, to comply with Plaintiff's discovery requests within thirty (30) days of the entry of the Order, and to pay to Plaintiff costs incurred in preparing this motion and supporting memoranda. In support of this motion Plaintiff alleges as follows: 1. Plaintiff served Interrogatories directed to Defendants, Rogele, Inc. and Gary Houll, on January 10, 2011 and February 16. 2011. See Exhibit A. 2. No answers or objections to Plaintiff's Interrogatories directed to Defendants, Rogele, Inc. and Gary Houll, have been received by Plaintiff as of the date of this motion. 3. A Judge has not ruled upon any other issues in this matter. 4. A courtesy letter was sent to opposing counsel of record, Stephen L. Banko, Jr., Esquire with no response. See Exhibit A. WHEREFORE, Plaintiff, UGI Utilities Inc. respectfully requests the Court to enter an order-directing Defendants, Rogele, Inc. and Gary Houll, to comply with Plaintiff's discovery requests within thirty (30) days of the date of order, and to pay Plaintiff costs incurred in preparing this motion and supporting memoranda. Respectfully submitted, ?, P.C. DATED: March 30, 2011 KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862-4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law vs. No. 10-7012 Civil ROGELE. INC. and GARY HOULL, ARBITRATION Defendants. MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DISCOVERY 1. STATEMENT OF FACTS This case arose from an action brought by Plaintiff: UGI Utilities Inc., to recover sums due from damages to their property. Plaintiff's Interrogatories directed to Defendants. Rogele, hoc. and Gary Houll, were served on Defendants on January 10, 2011 and February 16, 2011. Plaintiff has received no answers or objection to Plaintiff's Interrogatories directed to Defendants, Rogele, Inc. and Gary Houll, no answers have been produced and no extension of time to answer has been requested by the Defendants. II. DISCUSSION Defendants' failure to answer Plaintiff's Interrogatories directed to Defendants, Rogele, Inc. and Gary Houll, is in violation of Pa.R.C.P. 3117, 4006 (a)(2) and 4009. Rule 4019(a) (1) (I) and 4019 (a) (1) (vii) permit the court, upon motion, to impose sanctions against a party who fails to respond to discovery requests. Additionally. Rule 4019 (c) (5) states that "[t]he Court, when acting under subdivision (a) of this rule, may make ...such order with regard to the failure to make discovery as is just." In Gonzalez v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1972), the Court Stated: Pa.R.C.P. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where [a party fails to comply with a discovery request] a motion must be presented to the court to determine the default. [Citation omitted.] Upon finding that a default has occurred, "the court may...make an appropriate order." The imposition of specific sanctions, however, is largely within the discretion of the court. [Citations omitted]. 407 A.2d at 1341. III. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court enter an order, in the form attached, directing Defendant to comply with Plaintiffs discovery requests. Respectfully submitted, KRZYWI(;K & AS OCIATES, P.C. DATED: March 30, 2011 BY: y P. vicki, 1/ ,-quire ney f laintiff EXHIBIT A KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862-4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law vs. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, Defendants. ARBITRATION PLAINTIFF'S INTERROGATORIES DIRECTED TO DEFENDANTS, ROGELE, INC. AND GARY HOULL (GARY HOWELL) Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves on Defendant the following set of interrogatories and first request for documents to be answered separately by each Defendant: Definitions 1. The terin "incident/accident" as used hereinafter refers to the subject of this litigation, the events or occurrences of which are set forth in the complaint filed in this matter. 2. The term "identify" means the party served with these Interrogatories must identify all documents, things and persons known to that party or to that party's attorney, and the addresses of all persons identified must be set forth. 3. The term "address or location" as hereinafter used shall mean the last known address or location, giving the street number, name of street, city and state. 4. The tern "defendant" as used hereinafter shall mean the defendant, its officers, directors, agents. servants, employees, attorneys, representatives, or anyone acting on its behalf. Instructions 1. All information is to be divulged which is in the possession of the Defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the Defendant or his/her attorneys. 2. These interrogatories are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. [NTERROGATORIES 1. Identify all persons having knowledge of any facts alleged in your Answer concerning the subject matter of this litigation. 2. With respect to each person identified in your answer to the immediately preceding interrogatory, set forth the factual knowledge of said person and the basis or circumstances upon which they obtained their factual knowledge or matters relevant to the subject matter of this litigation. 3. Identify each person whom you expect to call or may potentially call as a witness at the arbitration or trial of this case. 4. With respect to each person identified in your answer to the immediately preceding interrogatory, set forth below a summary of the facts to which each witness or potential witness is expected to testify. 5. Identify all persons who have been retained or specifically employed or consulted in anticipation of this litigation or in preparation for arbitration or trial and who are NOT expected to be called as a witness at trial. 6. As to each person identified in the immediately preceding interrogatory please set forth the subject matter on which s/he was retained, employed or consulted and attached to these answers any written reports, preliminary reports, conclusions, or comments ever prepared by that person with respect to the subject of this litigation. 7. State whether Defendant or any of his/her representatives at any time communicated with the Plaintiff or any of Plaintiff's representatives concerning the subject matter of this litigation, regardless of whether the communication was initiated by you, or Plaintiff or your representatives. 8. As to each communication identified in the immediately preceding interrogatory please set forth the following additional information: a_ Date, time and location of each oral communication. b. The substance and full content of each oral communication. Identify the person representing you who participated in each oral communication and the person representing the Defendant or you who participated in each oral communication. 9. With respect to your answer to the preceding interrogatory, identify all documents referring or relating in any manner to each oral communication. In lieu of an answer to this interrogatory, you may attach hereto to your answers true and correct copies of all such documents. 10. With respect to each denial set forth in your Answers to the Complaint, please set forth each and every fact upon which you base each respective denial. 11. With respect to each denial set forth in your Answers to the Complaint, please identify each and every person who has knowledge related to any facts supporting each specific denial. 12. With respect to each denial set forth in your Answers to the Complaint, please identify each document related in any manner to each respective denial. 13. With respect to each affirmative defense you allege in your Answers to the Complaint please set forth each and every fact, which supports each respective affirmative defense. 14. With respect to each affirmative defense you allege in your Answers to the Complaint please identify each and every person who has knowledge related to any facts supporting each specific affirmative defense. 15. With respect to each affirmative defense you allege in your Answers to the Complaint please identify each document related in any manner to each specific affirmative defense. 16. Please state whether each answer to each interrogatory set forth herein accurately sets forth the total sum of all facts known to you relating to the subject matter of each interrogatory. IT Please state whether, in compiling your answers to these interrogatories, you have made a reasonable and diligent effort to identify and provide not only those facts as are within your personal knowledge, but also those facts that are reasonably available to you. 18. Please identify each person who provided any information of whatever nature or description related to any of your answers to these interrogatories. Dated: January 10, 2011 By: CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Interrogatories by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid, first class mail, and addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 170] 1 Attorney for Defendants KRZYWICKI & ASSOCIATES, P.C. Dated: January 10, 2011 BY: Anthony P. Krzywicki, Esquire Attorney for Plaintiff LAW OFFICES KRZYWICKI & ASSOCIATES, P.C. P. O. BOX -505 NFW HOPE, PA 18938 (210 862-4390 FAX: (215) 862-4393 February 16, 2011 Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 RE: UGI Utilities Inc. vs. Rogele, Inc. and Gary Houll Civil Action No.: 10-7012 Civil Our File No.: 3775 S2 Dear Mr. Banko: On January 10, 2011, the attached Interrogatories Directed to Defendants, Rogele, Inc. and Gary Howell (Gary Houll), from Plaintiff were forwarded to your office. Time for answering has expired. When can we expect answers? Thank you for your cooperation. Very truly yours, KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff APK/amg Enclosure CERTIFICATE OF SERVICE I, Anthony P. Krzywicki, Attorney for Plaintiff, hereby certifies that a true and correct copy of the foregoing Motion to Compel, Memorandum in Support thereof and a form of Order were placed in a depository under the exclusive care and custody of the United States Postal Service to deliver via First Class Mail to the following: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney, for Defendants KRZYWICKI &>35MATES, P.C. DATED: March 30, 2011 By: PO $erx 505 , Eu(tiire ,AKw HoA 189' (215) 861-4390 Attorney for Plaintiff Attorney ID 23754 UGI UTILITIES, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF PENNSYLVAI CUMBERLAND COUNTY , -vim rn = --i V. x : xM r rn -<> S IF ROGELE, INC. AND <c, C3 GARY HOULL, c' o? DEFENDANTS NO. 10-7012 CIVIL 3c r-') ?, ) ORDER OF COURT AND NOW, this 6th day of April, 2011, upon consideration of Plaintiff's Motion to Compel Discovery; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer to this petition on or before April 21, 2011; 3. The Prothonotary is directed to forward said Answer to this Court. 4. Argument on the matter, if needed, will be held on Friday, May 13, 2011, at 8:30 a. m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, N\-? ? - M. L. Ebert, Jr., J. "/Anthony P. Krzywicki, Esquire Attorney for Plaintiff 00pie-s Stephen L. Banko, Jr., Esquire lq/(,/t/ Attorney for Defendants bas Dd F." STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGO IS EDELSTEIN 3510 Trin le Road Camp Hill, PA 17011 Telephon : (717) 760-7501 FAX: (717) 975-8124 E-mail: I sbankoamarQolise turf E lot PRI 25 AN 10: u3 L"'UMRERLAND COUNTY PENNSYLVANIA Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, INC., Plaintiff V. LE, INC. and GARY HOULL Defendants DOCKET NO. 2010-7012 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: GI Utilities, Inc. /o Anthony P. Krzywicki, Esquire rzywicki & Associates P.O. Box 505 New Hope, PA 18938 twe You are hereby notified to file a written response to the enclosed New Matter within (20) days from service hereof or a default judgment may be entered against you. By: Attorney for Defendants MA LI EDELSTEIN r ST PH N L. BANKO JR. Date: q,1'2 I I I STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGO IS EDELSTEIN 3510 Trin le Road Camp Hill, PA 17011 Telephon : (717) 760-7501 FAX: (717) 975-8124 Attorney for Defendants E-mail: sbankoe.margolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, INC., DOCKET NO. 2010-7012 CIVIL Plaintiff v. CIVIL ACTION - LAW ROG?LE, INC. and GARY HOULL I JURY TRIAL DEMANDED Defendants ANSWER OF DEFENDANTS, GARY HOWELL AND ROGELE, INC., TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY Admitted. Admitted. By way of further answer, verified Answers to the Interrogatories with documents relied upon in providing the Answers were served upon counsel for Plaintiff by facsimile transmission and regular mail on April 21, 2011. Denied as stated. In response to Plaintiff's Motion to Compel Discovery, the Honorable M. L. Ebert, Jr. issued a Rule to Show Cause Upon Defendant on or about April 6,1 2011. Admitted. the EREFORE, Defendants pray This Honorable Court enter an Order discharging to Show Cause issued on or about April 6, 2011, by reason of Defendants' providing verified Answers to Plaintiff's Interrogatories. NEW MATTER The Answers contained in paragraphs 1 through 4 hereof are incorporated herein by reference as if set forth in their entirety. 13. In Plaintiff's prayer for relief to the Motion to Compel Discovery, Plaintiff seeks osts in preparing the Motion and supporting Memorandum. First, it is believed and therefore averred that no Memorandum was required to be filed under the Cumberland County Local Rules of Court. Second, Plaintiff sites no authority for its entitlement to costs, including attorne s' fees, for the preparation and filing of a Motion to Compel Discovery where there had been no prior court order respecting same. WHEREFORE, Defendants pray This Honorable Court enter an Order discharging the Rue to Show Cause issued on or about April 6, 2011, by reason of Defendants' providing verified Answers to Plaintiffs Interrogatories. LIS EDELSTEIN By: ST ?M U BANKO, JR. Att me ID No. 41727 Attorney for Defendants Date: q Z-I i CERTIFICATE OF SERVICE HEREBY CERTIFY that I served a true and correct copy of the foregoing on all of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 MARRGOLIS EDELSTEIN 4W aA2 Angel M. Gayman, cretary Date: ( d/ X r IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law vs. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, ARBITRATION C_ ? rnW :L- MF-: -a Defendants. Cn =r m CD -?` -, -M° PRAECIPE TO WITHDRAW MOTION TO COMPEL '' TO THE PROTHONOTARY: Kindly marls the Motion to Compel of Defendants, Rogele, Inc. and Gary Houll, filed on April 4, 2011, WITHDRAWN in the above-captioned Civil Action. KRZYWICKI SOCIAT S, P.C. DATED: April 22,2011 BY: Ant?P. Krzywicki, Esquire Attorney for Plaintiff 13.0. Box 505 New Hope, PA 18938 (215)862-4390 Attorney I.D. 23754 KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire P.O. Box 505 New Hope, PA 18938 (215) 862-4390 Attorney for Plaintiff Attorney I.D. 23754 F P-JO-O FiCF ,A R 4 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law vs. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. PLAINTIFF'S MOTION TO COMPEL DEFENDANT, ROGELE, INC. TO PROVIDE MORE SPECIFIC ANSWERS TO INTERROGATORY AND REQUEST FOR DOCUMENTS PARAGRAPH 4 Plaintiff, UGI Utilities Inc., by and through its attorney, Krzywicki & Associates, P.C., hereby moves this Honorable Court to enter an Order directing Defendants to provide more specific responses to Interrogatory and Request for Documents Paragraph 4 and in support thereof, avers as follows: 1. On November 2, 2011, Plaintiff, UGI Utilities Inc., served the attached Interrogatories and Request for Documents on Defendant, Rogele, Inc.. (Exhibit A) 2. On or about November 16, 2011, Defendant provided answer to Plaintiff's Interrogatories and Request for Documents. In answer to Interrogatory 4, Defendant did not provide a full and complete answer. (Exhibit B) 3. Interrogatory and Request for Documents Paragraph 4 requests "Please provide your employee, Don O'Neal's personnel file." (See attached Exhibit A) 4. Defendant responded "Objection. This request for production of documents seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. By way of further objection, Defendant, Rogele, Inc., objects to this request for production of documents on the basis that it would cause the Defendant unreasonably annoyance, oppression, burden and expense." (See attached Exhibit B) 5. Information being requested about Don O'Neal is relevant because he was the foreman at the time of the incident. His personnel history such as training, compliance with safety and construction procedures established by the Defendant, Rogele, Inc., are relevant to the issue of excavation procedures. Plus his current whereabouts is vital to further discovery. WHEREFORE, Plaintiff, UGI Utilities Inc. respectfully requests this that the Defendant, Rogele, Inc., be provide a full and complete answer to Interrogatory and Request for Documents Paragraph 4. Respectfully submitted, KRZYWICK+"SOCIATES, P.C. DATED: December 13, 2011 BY: AttorniK for Plaints KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862-4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law VS. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO PROVIDE MORE SPECIFIC ANSWER TO INTERROGATORY PARAGRAPH 4 Plaintiff, UGI Utilities Inc. by and through its attorney, Anthony P. Krzywicki, Esquire, submits this Memorandum of Law in Support of its Motion. 1. STATEMENTS OF FACTS Plaintiff served Interrogatories and Request for Documents upon the Defendant, Rogele, Inc. on November 2, 2011 Defendant, Rogele, Inc., on or about November 16, 2011 provided an incomplete answer to Paragraph 4. 11. DISCUSSION Defendant's failure to answer Plaintiff's Interrogatories and Request for Documents Directed to Defendant, Rogele, Inc., is in violation of Pa.R.C.P. 3117, 4006 (a)(2) and 4009. Rule 4019(a) (1) (I) and 4019 (a) (1) (vii) permit the court, upon motion, to impose sanctions against a party who fails to respond to discovery requests. Additionally, Rule 4019 (c) (5) states that "[t]he Court, when acting under subdivision (a) of this rule, may make ...such order with regard to the failure to make discovery as is just." In Gonzalez v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1972), the Court Stated: Pa.R.C.P. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where [a party fails to comply with a discovery request] a motion must be presented to the court to determine the default. [Citation omitted.] Upon finding that a default has occurred, "the court may...make an appropriate order. " The imposition of specific sanctions, however, is largely within the discretion of the court. [Citations omitted]. 407 A.2d at 1341. III. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court enter an order, in the form attached, directing Defendant to comply with Plaintiff's discovery requests. Respectfully submitted, KRZYWICKI & ASSOCIATES, P.C. DATED: December 13, 2011 BY: A KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862-4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law VS. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, Defendants ARBITRATION PLAINTIFF'S INTERROGATORIES AND REQUEST FOR DOCUMENTS DIRECTED TO DEFENDANT, ROGELE, INC. Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves on Defendant the following set of interrogatories and request for documents to be answered separately by each Defendant: Definitions 1. The term "incident/accident" as used hereinafter refers to the subject of this litigation, the events or occurrences of which are set forth in the complaint filed in this matter. 2. The term "identify" means the party served with these Interrogatories must identify all documents, things and persons known to that party or to that party's attorney, and the addresses of all persons identified must be set forth. 3. The term "address or location" as hereinafter used shall mean the last known address or location, giving the street number, name of street, city and state. 4. The term "defendant" as used hereinafter shall mean the defendant, its officers, directors, agents, servants, employees, attorneys, representatives, or anyone acting on its behalf. Instructions 1. All information is to be divulged which is in the possession of the Defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the Defendant or his/her attorneys. 2. These interrogatories and request for documents are intended as continuing requiring that they be supplemented within thirty (30) days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. INTERROGATORIES AND REOUEST FOR DOCUMENTS I . Did your employee, Don O'Neal speak to an individual who identified himself as a UGI locator who told him that a gas service lateral was not marked by UGI because there were cars in the way? 2. If your answer to Interrogatory Paragraph Number 1 is "yes" please answer the following: a. Date the conversation occurred; b. Month the conversation occurred; C. Location where the conversation occurred; d. Did your employee, Don O'Neal take pictures of the area where the conversation occurred? If yes, please provide a copy with your Answers; e. Did your employee, Don O'Neal write a memo or prepare any reports referencing the conversation? If yes, please provide a copy with your Answers; £ Did your employee, Don O'Neal tell anyone of the substance of the conversation?; (1) To whom? (2) When? (;) Where? g. Did your employee, Don O'Neal ever see the UGI employee previously or since?; and h. Was Don O'Neal your employee at the time of his conversation with the UGI employee referenced in Answer to Interrogatory Number I? Please provide your employee, Don O'Neal's job title. 4. Please provide your employee, Don O'Neal's personnel file. Dated: November 2, 2011 By: CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Interrogatories and Request for Documents by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid, first class mail, and addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney. for Defendants KRZYWICKI & Ac2?OCIATES, P.C. Dated: November 2, 2011 BY: STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: abank2@margolisedelatein.com Attorney for Defendants, Rogele, Inc. and Gary Howell IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, V. Plaintiff ROGELE, INC, and GARY HOULL, Defendants DOCKET NO. 10-7012 CIVIL ACTION - LAW JURY TRIAL DEMANDED ;A S TO tNTERi2QCAT0 M"' TO,, OF ? FLT IIAW, ROGELE, N G, 1. Yes. See Defendants' Answers to Plaintiff's Second Set of Interrogatories. 2a. As set forth in Defendants' Answers to Plaintiff's Second Set of Interrogatories, the conversation occurred on July 13, 2009 after the gas service line was struck by Rogele's employee. 2b. See answer to Interrogatory 2a above. 2c. At the job site. 2d. No. 2e. See documents attached to Defendants' Answers to Plaintiff's Interrogatories and documents attached thereto dated April 21, 2011. 2f. Yes. See Answers of Defendants to Plaintiffs prior Interrogatories and the documents produced in response thereto. 2g. No. 2h. Yes. 3. Foreman. 4. Objection. This request for production of documents seeks information which is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. By way of further objection, Defendant, Rogele, Inc., objects to this request for production of documents on the basis that it would cause the Defendant unreasonable annoyance, oppression, burden and expense. OLIS EDELSTEIN l? l? t Date STEPHEN L. BANKO, JR. Atto ey for Defendants, Rogele Inc. and Gary Howell VERIFICATION I, Chris McClure, have read the foregoing Answers to Plaintiff's Interrogatories and Request for Production of Documents of November 2, 2011. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: Chris McClure, Vice President Rogele, Inc. CERTW1CATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 9 I Date MARGOLIS EDELSTEIN l A gel M. Gayma Secretary CERTIFICATE OF SERVICE I, Anthony P. Krzywicki, Esquire hereby certify that on this date I served a true and correct copy of the foregoing Plaintiffs Motion to Compel Defendants to Provide More Specific Answers to Interrogatory Paragraph 4 by depositing copies thereof in a depository under the exclusive care and custody of the United States Postal Service, via first class mail, in a prepaid envelope and addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney.for Defendants KRZYWICKI & A,,SSQCIATES, P.C. Dated: December 13, 2011 BY: P UGI UTILITIES, INC., PLAINTIFF V. ROGELE, INC. AND GARY HOULL, DEFEN TS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7012 CIVIL ORDER OF COURT AND NOW, this 2' "d day of December, 2011, upon consideration of Plaintiff's Motion to Compel; IT IS HEREBY ORDERED AND DIRECTED that: 1. Plaintiff shall provide the Court with a written offer of proof as to how the personnel file of Defenda ts' employee Don O'Neal is relevant to Plaintiff's claims or how a review of the file w II reasonably lead to discovery of admissible evidence. This offer of proof shall be filed on or before January 13, 2012. 2. A hearing on the Motion to Compel will be held on Monday, February 27, 2012, at 9:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, I M. L. Ebert, Jr., J.; r.: U` Anthony Krzywicki, Esqui e r, R X;v C-7) Attorney for Plaintiff ???, -t" fas Ca + ?Stephen Banko, Jr., Esquire rcv a?• Attorney for Defendants =a b'4= t to C bas 20p e6 Ma : I-eol a f as/1 - I= iLr O-?;? ? iC?L STEPHEN L. BANKO, JR., ESQUIRE OF THE PROTHONO AE;` Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 2011 DEC 29 AM 11: 33 3510 Trindle Road Camp Hill, PA 17011 CUMBERLAND COUNTY Telephone: (717) 760-7501 PENNSYLVANIA FAX: (717) 975-8124 Attorney for Defendants E-mail: sbankoO-marQolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY UGI UTILITIES, INC., Plaintiff DOCKET NO. 2010-7012 CIVIL CIVIL ACTION - LAW V. ROGELE, INC. and GARY HOULL, JURY TRIAL DEMANDED Defendants A14WER OF DEFENDANT, ROGELE, INC., TO PLAINTIFF'S MOTION TO ' C* PEL MORE SPECIFIC ANSWERS TO INTERROGATORY AND REQUEST FOR DOCUMENTS 1. Admitted. By way of further answer, prior to service of the aforesaid document, Plaintiff attempted to serve Interrogatories and Request for Production of Documents directly upon Don O'Neal ("Mr. O'Neal"), an employee of Defendant, Rogele, Inc. ("Rogele"). Rogele objected to these discovery requests on the basis that Mr. O'Neal is not a party to this action. By way of further answer, Mr. O'Neal, while a foreman for Rogele, is not a corporate officer and, therefore, it would be inappropriate if not otherwise wrongful and illegal for Rogele to produce documents which would include the Social Security numbers of Mr. O'Neal and his family members, medical information and documents containing other personal information not related to this or any other action. Such disclosure could potentially subject Rogele to sanctions or other actions brought by Mr. O'Neal, himself. It is believed and therefore averred that the appropriate manner in which to obtain such documents would be through a subpoena with a Notice of Intent to Serve Subpoena, served upon Mr. O'Neal. This would afford Mr. O'Neal the opportunity to object to the release of such documents or information. Furthermore, Rogele would be protected from any inadvertent disclosure of privileged, confidential and non-disclosable information. 2. Admitted in part and denied in part. It is admitted that on about November 16, 2011, Rogele provided a response to Plaintiff's Interrogatories and Request for Production of Documents. It is specifically denied that it did not provide a "full and complete answer" to Interrogatory No. 4. To the contrary, Rogele set forth an objection to that Interrogatory setting forth the grounds for subjection. Pa. R.C.P. No. 4006(a)(2) provides in part: Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer. As Rogele served an objection which was in lieu of an answer, its answer was, therefore, complete. 3. Admitted. By way of further answer, the answers contained in paragraphs 1 and 2 hereof are incorporated herein by reference as if set forth in their entirety. 4. Admitted. The answers contained in paragraphs 1 through 3 hereof are incorporated herein by reference as if set forth in its entirety. 5. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, Rogele has answered various discovery requests propounded by and on behalf of Plaintiff. Rogele's discovery disclosures have included Mr. O'Neal's handwritten notes related to this project. Plaintiff is aware that Mr. O'Neal was not the person who did the excavation. Rather, the 2 excavation was actually done by co-defendant, Gary Howell, misidentified by Plaintiff in the caption of this case as Gary Houll. Furthermore, as has been stated in this document and in answers to prior discovery requests, Mr. O'Neal is currently employed by Rogele and will be made available to Plaintiff for deposition and/or testimony at an arbitration hearing in this matter. WHEREFORE, Defendant Rogele, Inc., prays this Honorable Court enter an Order overruling Plaintiff's Motion to Compel Discovery. EDELSTEIN lq-?Ao Date By: S-VEPFWN L. BANKO, JR. Counsel for Defendants 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, and addressed as follows: Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 kiyAbm o' Date MARGOLIS EDELSTEIN Qr&? a Angela M. Gayman, ecretary IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA 11GI UTILITIES INC.. vs. ROGELE. INC. and GARY HOULL, Plaintiff. Defendants Civil Action - In Law No. 10-7012 Civil ARBITRATION PRAECIPE TO WITHDRAW MOTION TO COMPEL TO TIIE PROTHONOTARY: C-) rn - ' ° um ? cnr -- Q rn -n - :z -- R (41 it _7 Kindly mark the Motion to Compel of Defendant. Rogele, Inc., filed on or about December 19,20 11. WITHDRAWN in the above-captioned Civil .Action. KRZYWICKI &-?CSS0V1A1kS, P.C. DA'l ED: February 14, 2012 13Y: Ai honv_ P. i- Zvi E ' ui rc A for , for 1 iff P.O. 13ox 5(_ New l lope, PA 18938 (215)862-4390 Attorney I.D. 23754 U UGI Utilities Inc. VS. Rogele, Inc. and Gary Houll IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7012 Civil. 20 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substa ti ll i n a Following form: y n `V PETITION FOR APPOINTMENT OF ARBITRATOR Cn S ` TO THE HONORABLE THE JUDGES OF SAID - , COURT: : A nthony P. Krzywicki. counsel for the plaintiff/& in the above action (or actions), respectfully represents that: I . The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 2 , 8 3 9.5 6 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respec sub ' ed 4 .28. /5D// Qd 4/ 1 ORDER UR 12 0-4- ?2 7 39 r7;F AND NOW, 20fA , in consideration of the foregoing petition, Esq., and `i%GLO ®- ?/` I Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. 6 N ? Q By the Court , ??A"``,?? C)j- =_j AR B. BAYLEY Lo1CL- J CC - -x N d*Uj es iuc..ltd illa3/i ?. `S C%Q A, KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire P.O. Box 505 New Hope, PA 18938 (215) 862-4390 Attorney for Plaintiff Attorney I.D. 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA a ? r 4t t i.t 1` ?, , C 5Y ?1CJ,°?f t UGI UTILITIES INC., vs. Plaintiff, Civil Action - In Law No. 10-7012 Civil ROGELE, INC. and GARY HOULL, Defendants ARBITRATION PRAECIPE TO ATTACH VERIFICATION TO THE PROTHONOTARY: Kindly attach the attached Verification to Plaintiffs First Amended Complaint filed on December 13, 2010. Dated: June 8, 2012 BY: KRZYWICKI & ASSOCIATES, P.C. 14 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA UGI UTILITIES INC., Plaintiff, Civil Action - In Law VS. No. 10-7012 Civil ROGELE, INC. and GARY HOULL, ARBITRATION Defendants. VERIFICATION I, Allen Fowler, being duly sworn according to law, depose and say that I am a Damage Prevention Coordinator for UGI Utilities Inc., Plaintiff in the foregoing action, that I am authorized to execute this Verification on behalf of UGI Utilities Inc., and that the First Amended Complaint is based upon information that has been provided to our outside counsel or information that has been obtained by our outside counsel in the preparation of the initiation of this lawsuit. The language of the First Amended Complaint is that of counsel and not of the undersigned. I have read the First Amended Complaint and, to the extent that the information contained therein is based upon information given to our outside counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the First Amended Complaint is that of outside counsel, I have relied upon outside counsel in executing this Verification. It is further understood that all statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: (? ?? I L Allen owler Damage Prevention Coordinator UGI Utilities Inc. CERTIFICATE OF SERVICE I, Anthony P. Krzywicki, Esquire, certify that on this date I served a copy of the foregoing Praecipe to Add Verification by depositing copies thereof in a depository under the exclusive care and custody of the United States Postal Service via First Class mail, in a prepaid envelope and addressed as follows: Stephen L. Banko, Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney, for Defendants Dated: June 8, 2012 BY: Attorney for Plaintiff KRZYWICKI & ASSOCIATES, P.C. UGI UTILITIES, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 10-7012 CIVIL ROGELE INC. and GARY HOULL, ; Defendants ORDER AND NOW, this 30v day of July, 2012, the appointment of a Board of Arbitrators in the above-captioned case is VACATED. Michael Bangs, Esquire, Chairman, shall be paid the sum of $50.00. BY THE COURT, Kevin Hess, P. J. Michael Bangs, Esquire Court Administrator c w,;> rnw :rlm - C?J IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANI UGI UTILITIES INC., C Plaintiff, Civil Action - In Law vs. No. 10-7012 Civil c' y ra ROGELE, INC. and ,cp -o GARY HOULL, ARBITRATION Defendants. PRAECIPE TO SETTLE, DISCONTINUE, AND END TO THE PROTHONOTARY: Kindly mark this matter Settle, Discontinue, and End against the Defendants, prejudice upon payment of your costs only. TES, P.C. DATED: July 21, 2012 BY: P.O ox 5 ew H e 18 8 (215)8 -4390 Attorney for Plai tiff Attorney I.D. 237 -i ? yv 4 Q C C1?,,