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Home My WebLink About11-7673IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW REPUBLIC BANK OF CHICAGO : CASE NO. / 3 Plaintiff, : CIVIL TERM V. VON LEHMAN & COMPANY, INC., et al. Defendants. f= _ D -C TICE T¢tu- PnrfratiTr:.. 71511 (ACT -7 AM 110: 12 7UMBERLAW) COUCIT T FE,kaN 5YL'W'ANIA MOTION OF VON LEHMAN & COMPANY, INC. FOR ISSUANCE OF A SUBPOENA IN AID OF AN OHIO PROCEEDING PURSUANT TO 42 PA. C.S.A. &5324 Von Lehman & Company, Inc. ("VLC") respectfully moves, pursuant to 42 Pa. C.S.A. §5324, that the Court authorize the issuance of a Subpoena to Attend and Testify for the deposition of George Ferguson, a resident of the Commonwealth of Pennsylvania with a civil action pending in the State of Ohio. In support of that request, VLC states the following: 1. VLC is the Defendant in an action captioned Republic Bank of Chicago v. Von Lehman & Company, Inc. et al, Case No. Al 005504 (Case No. Al 104739), pending in the Court of Common Pleas, Hamilton County ("the Ohio Proceeding"). 2. In connection with the Ohio Proceeding, VLC wishes to take the deposition of George Ferguson whose testimony is material and necessary. 3. To take the deposition of Mr. Ferguson, VLC filed a Motion in the Ohio Proceeding and obtained an Order, issued September 27, 2011, which states as follows in pertinent part: {L0458734.1} (3) That any notary public or justice of the peace of the Commonwealth of Pennsylvania is hereby authorized to issue a subpoena in accordance with the Pennsylvania Rules of Civil Procedure to require that George Ferguson appear for the deposition. YOU ARE HEREBY REQUESTED AND COMMISSIONED to issue to the foregoing counsel for the movant such a subpoena from your Court as may be available and necessary for service upon the above witness, to assure the attendance of said witness as a deponent in a deposition to be convened by counsel for the movant within your judicial district. 4. A copy of the Order is attached hereto as Exhibit A. 5. VLC respectfully requests that this Court, pursuant to its authority under 42 Pa. C.S.A. §5324(a), authorize the issuance and service of a Subpoena to Attend and Testify upon George Ferguson. That provision states as follows in pertinent part: §5324. Assistance to tribunals and litigants outside this Commonwealth with respect to service. (a) General rule.-A court of record of this Commonwealth may order service upon any person who is domiciled or can be found within this Commonwealth of any document issued in connection with a matter in a tribunal outside this Commonwealth. The order may be made upon application of any interested person or in response to a letter rogatory issued by a tribunal outside this Commonwealth and shall direct the manner of service. 6. VFC wishes to serve on Mr. Ferguson the subpoena attached hereto as Exhibits B, and respectfully requests that the Court authorize its issuance and service, with the applicable Pennsylvania Rules of Procedure governing service. 7. VCF does not request oral argument or a hearing for its request and avers that discovery is not necessary for this Court to grant its request. 8. VCF has provided the full text of this Application by electronic communication to counsel for Plaintiffs in the Ohio Proceeding. 9. This Motion does not seek to modify an Order previously issued by the Court. (L0458734.1 ) u -2- WHEREFORE, Von Lehman & Company, Inc. respectfully requests that this Court enter an Order directing the Prothonotary to execute and issue the subpoena attached hereto as Exhibit B. Dated: October 7, 2011 Michael McAuliffe Miller, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 (717) 237-7174 Attorneys for Von Lehman & Company, Inc. {1,0458734.1 } -3- COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO REPUBLIC BANK OF CHICAGO PLAINTIFF V. VON LEHMAN & COMPANY, INC., et al. DEFENDANTS Case No. Al 005504 (Case No. A1104739) Judge Steven E. Martin ?STEtY FILEi7 COI"` OF I sEP 2.12011 COMMISSION AUTHORIZING DEPOSITION OF OUT-OF-STATE, WITNESS AND REQUESTING ISSUANCE OF SUBPOENA TO THE HONORABLE PRESIDING JUDGE OF THE CUMBERLAND COUNTY COURT, COMMONWEALTH OF PENNSYLVANIA, AND TO THE CLERK OF SAID COURT, GREETINGS: Upon Motion by VonLehman & Company, Inc. ("VonLehman"), by counsel, pursuant to Ohio Rules of Civil Procedure 28(B) and 45, for the entry of this Commission, said party having informed this Court that GEORGE FERGUSON resides in or otherwise regularly transacts its business within the jurisdiction of your Court, does or may have knowledge and documents relevant to the adjudication of the above civil action now pending before this Court, and VonLehman wishing for the issuance of a subpoena from your honorable Court for service upon said individual, IT IS HEREBY ORDERED that: 1. Counsel for the movant in the above action, are hereby expressly commissioned by this Court to depose the foregoing individual pursuant to Ohio Rules of Civil Procedure 28 and 45 at such date, time and place as shall be designated upon an appropriate Notice of Deposition; 2. That Esquire Reporting Service or its designated agent is appointed as Commissioner in this cause for the taking of the deposition of George Ferguson in the Commonwealth of Pennsylvania; and 3. That any notary public or justice of the peace of the Commonwealth of Pennsylvania is hereby authorized to issue a subpoena in accordance with the Pennsylvania Rules of Civil Procedure to require that George Ferguson appear for the deposition. YOU ARE HEREBY REQUESTED AND COMMISSIONED to issue to the foregoing counsel for the movant such subpoena from your Court as may be available and necessary for service upon the above witness, to assure the attendance of said witnesses as a deponent in a deposition to be convened by counsel for the movant withiny?uT,4Vdicial district. JUDGE SAVE E. MARTIN DATE: 2 rIX?> b; f B COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND REPUBLIC BANK OF CHICAGO Plaintiff File No. VS. VON LEHMAN & COMPANY, INC. et al Defendant SUBPOENA TO ATTEND AND TESTIFY TO: George Ferguson 20 Wedgewood Drive Carlisle, PA 17013 1. You are ordered by the court to come to Eckert, Seamans, Cherin & Mellott, LLC, 213 Market Street, 8th Floor, Harrisburg, PA at , Dauphin County, Pennsylvania, on November 1, 2011 at 9:00 o'clock, A. M,. to testify on behalf of Defendant, Von Lehman & Company, Inc. in the above case, and to remain until excused. 2. And bring with you the following: N/A If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Michael McAuliffe Miller Address: Eckert, Seamans, Cherin & Mellot, LLC 213 Market St., 8th Fir., Harrisburg, PA 17101 Telephone: (717) 237-6000 Supreme Court ID # 78507 BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW REPUBLIC BANK OF CHICAGO CASE NO. Plaintiff, : CIVIL TERM V. VON LEHMAN & COMPANY, INC., et al. Defendants. CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing was served upon the following, by electronic mail and U.S. mail, postage prepaid, this 7th day of October, 2011. Steven D. Hengehold Rendigs, Fry, Kiely & Dennis, LLP One West Fourth Street, Ste. 900 Cincinnati, OH 45202-3688 Em: sdh@rendigs.com Henry E. Kinser Ben T. Keller Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507 Em: hkinser@wyattfirm.com bkeller@wyattfirm.com Counsel for VonLehman & Company, Inc. Joseph Shea Shea & Associates 2350 Chiquita Center 250 E. Fifth Street Cincinnati, OH 54202 Em: jshea@shea-associates.com Counsel for Plaintiff, Republic Bank of Chicago Jack F. Fuchs Bryce A. Lenox Thompson Hine, LLP 312 Walnut Street, Suite 1400 Cincinnati, OH 45202 Em: Jack.Fuchs@ThomsonHine.com Bryce.Lenox@ThomsonHine.com James A. Folfes Stephen T. Bobo Reed Smith LLP 20 South Wacker Drive, 40th Floor Chicago, IL 60606-7507 Em: jrolfes@reedsmith.com sbobo@reedsmith.com Counsel for Plaintiffs, ICON EAR, LLC and ICON EAR II, LLC Michael McAuliffe Miller, Esq. {L0458734A)