Loading...
HomeMy WebLinkAbout11-9332SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor V4titV?`lr ?4 ?'tiiribrr/?,rb ,CK C' -C?t?w T Ij" P.YOTHGNO JA, R, 2012 JAN 2a AM 8: 23 CUMBERLAND COUN f -Y PENNSYLVANIA Advantage Loss Services vs. Kevin Lenzo Case Number 2011-9332 SHERIFF'S RETURN OF SERVICE 12/20/2011 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: Kevin Lenzo, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Allegheny County, Pennsylvania to serve the within Complaint and Notice according to law. 01/05/2012 10:00 AM -Allegheny County Return: And now January 5, 2012 at 1000 hours I, William Mullen, Sheriff of Allegheny County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Kevin Lenzo by making known unto himself personally, at 2332 Sarah Street, Pittsburgh, Pennsylvania 15203 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 January 17, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson 00r of Sheriff Jody S Smith Chief Deputy oFG«;F < <..?, <r5e?w? Richard W Stewart Solicitor Advantage Loss Services I Case Number vs. 2011-9332 Kevin Lenzo SERVICE COVER SHEET 0 o Category: Civil Action - Complaint & Notice Zone: X Manner: Deputize Expires: 01/19/2012 Warrant: W Notes: o iz• zss>> N L r a Serve To: Name: Kevin Lenzo Served: ersonally •Adult In Charge Posted Other m Primary :2332 Sarah Street Adult In Pvl 'to Address: Pittsburgh, PA 15203 Charge: ,.. _?.. _ ... M .v; EL Phone: DOB Relation: w Iternate Date: S 1 L Time: to 00 CO) ddress: m?.?....... ?. o? one: Deputy: CA E Mileage: v? M A mey / Originator N Name: Brian A McCall Phone: 717-234-7700 Service Attempts., Date: Time:M .m...Pe?I °' Mileage: N Deputy: Notes / Speddst In rt Z Now, December 20, 2011 I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Allegheny County w to execute service of the documents herewith and make return thereof according to law. Y O Return To: z Cumberland County Sheriffs Office W 4Z One Courthouse Square Carlisle, PA 17013 onny R Anderson, Sheriff f' '11- LU-OFF ICE ZU1? ,SAS 25 PM ADVANTAGE LOSS SERVICib4$ERLANQ C111t4COURT OF COMMON PLEAS OF as subrogee for DART TRANSIT P E??1,YLVAN?A CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION - LAW Plaintiffs V. KEVIN LEN ZO, Defendant DOCKET #: 2011-9332 Civil PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance for Defendant KEVIN LENZO in the above-captioned matter and designate One Bethlehem Plaza, Suite 400, Broad & New Streets, Bethlehem, PA 18018 as the place where notices and papers, other than original process, may be served. Respectfully bmitted, FORRYJU .MAN By: R9BIERT L. GOODMAN, ESQUIRE. D.#39795 One Bethlehem Plaza, Suite 400 Broad & New Streets Bethlehem, PA 18018 (610) 332-3400 Attorneys for Defendant KEVIN LENZO Date: January 24, 2012 ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ENTERPRISES, Plaintiffs V. KEVIN LENZO, Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET #: 2011-9332 Civil PROOF OF SERVICE I, ROBERT L. GOODMAN, ESQUIRE, being duly sworn according to law, depose and say that I served a true and correct copy of the Entry of Appearance for Defendant KEVIN LENZO, by first-class mail, addressed as follows on the date written below: Brian A. McCall, Esquire RAWLE & HENDERSON, LLP Payne Shoemaker Building 240 N. Third Street, 9t" Floor Harrisburg, PA 1 7-110? By: ROBERT L. GOODMAN, ESQ. Date: January 24, 2012 ADVANTAGE LOSS SERVICES, COURT OF COMMON PLEAS OF as subrogee for DART TRANSIT CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION - LAW Plaintiffs -?3 N : Zfn 3XI r" r- - v. DOCKET #: 2011-9332 CW ^` 0 M ?. o KEVIN LENZO, Defendant - a iz C --t cm - < N.) PRELIMINARY OBJECTIONS OF DEFENDANT KEVIN LENZO TO THE COMPLAINT OF PLAINTIFF ADVANTAGE LOSS SERVICES A/S/O DART TRANSIT COMPANY AND R CH ENTERPRISES Defendant KEVIN LENZO by and through his attorneys, ForrylUllman, hereby preliminarily objects to the Complaint of the Plaintiff pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2), 1028(a)(3) and 1028(a)(4) and moves to strike the word "recklessness" from Paragraphs 6 and 7 of Plaintiff's Complaint and strike Paragraph 70) in its entirety and states the following in support thereof: On or about December 23, 2011, Plaintiff filed its Complaint, a copy of which is attached hereto as Exhibit "A." 2. By the language in the Complaint, Plaintiff seeks damages from Defendant arising out of a motor vehicle accident that allegedly occurred on December 20, 2010 at or near the intersection of Route 11 (Harrisburg Pike) and Route T585 (Country Club Road) in Middlesex Township, Cumberland County, Pennsylvania. See generally, Exhibit "A." Paragraphs 19 and 30 of Plaintiffs Complaint each allege that the Defendant was careless and negligent in his various actions and/or omissions in a variety of "particular manners" which are enumerated and include: Page 1 of 5 a. allegations in Paragraphs 19(0) and 30(0) that the Defendant's negligence and carelessness consisted of operating his vehicle in a "reckless and/or inattentive manner"; b. allegations in Paragraphs 19(v) and 30(v) that the Defendant's negligence and carelessness consisted of violating "the act of the Legislature of Pennsylvania concerning the operation and control of a motor vehicle"; and c. allegations in Paragraphs 19(w) and 30(w) that the Defendant's negligence and carelessness consisted of "driving his vehicle in a negligent manner." 4. The caption of Plaintiff's Complaint states "JURY TRIAL DEMANDED" while both Counts of the Complaint indicates that the amounts in controversy "is less than Fifty Thousand ($50,000.00) and 00/100 Dollars so compulsory arbitration is required." See Exhibit "A," Paragraphs 27 and 34. 5. The prayers for relief of Counts I and Il in the Plaintiff's Complaint request judgment in the amounts of $15,466.13 and $21,752.80 respectively for a total of claimed damages of $37,218.93. See Exhibit "A." 6. Vague and ambiguous allegations in a complaint are a violation of Rule of Civil Procedure 1019(a) and Connor v. Allegheny General Hospital, 461 A.2d 600 (PA., 1982) at Fn 3, p. 603. 7. Under Rule 1028(a)(2), Preliminary Objections may be granted for "failure of a pleading to conform to law or rule of court." 8. Rule of Civil Procedure 1019(a) requires a party to formulate the issues by summarizing the facts essential to support the claim in a concise and summary manner. 9. General conclusions of law violate the requirement of Rule 1019(a) mandating the pleading of material facts. Pennsylvania Public Utility Com. v. Zanella Transit, Inc., 417 A.2d 860 (Pa.Cmwlth., 1980). Page 2 of 5 10. As pled, Plaintiff s Complaint, with reference to "driving in a reckless and/or inattentive manner" in Paragraphs 19(0) and 30(0), fails to conform to law and rules of court in that such references are merely general conclusions of law and fail to make out a punitive damage claim with the requisite high degree of precision and specificity. 11. Further, Plaintiff s Complaint, with reference to "the act of the Legislature of Pennsylvania concerning the operation and control of a motor vehicle" in Paragraphs 19(v) and 30(v), fails to conform to law and rules of court in that such references are merely general conclusions of law and fail to make out a valid claim with the requisite high degree of precision and specificity. 12. Further still, Plaintiffs Complaint, with reference to the Defendant's negligence and carelessness consisting of "driving his vehicle in a negligent manner" in Paragraphs 19(w) and 30(w) also fails to conform to law and rules of court in that saying that "negligence is negligence" is circular logic which fails to make out a valid claim with the requisite high degree of precision and specificity. 13. Under Rule 1028(a)(3), Preliminary Objections may be granted for "insufficient specificity in a pleading." 14. Under Pennsylvania Law, punitive damages may be awarded only if a defendant's conduct is outrageous because of the defendant's evil motive or his reckless indifference to the rights of others. Feld v. Merriam, 475 A.2d 742 (PA., 1984). Reckless conduct is considered outrageous conduct which can give rise to punitive damages. Id at 748. Page 3 of 5 15. It has been held that allegations to support a claim for punitive damages must be pled with a high degree of precision and specificity. See Smith v. Brown, 423 A.2d 743 (Pa.Super., 1980) 16. Pennsylvania does not allow award of punitive damages for mere inadvertence, mistakes, errors of judgment, and the like, which constitute ordinary negligence. 17. As pled, Plaintiff's Complaint fails to allege with sufficient specificity in Paragraphs 19 and 30 any factual averments containing specific acts or alleged omissions on the part of the Defendant which rise to the level of conduct sufficient to sustain a cause of action for punitive damages. 18. Under Rule 1028(a)(4), Preliminary Objections may be granted for "legal insufficiency of a pleading (demurrer)." 19. As pled, Plaintiff's Complaint, with its accusation that Defendant's negligence and carelessness consisted of "driving in a reckless and/or inattentive manner" Paragraphs 19(0) and 30(0), fails to make out a legally sufficient claim for punitive damages in that there are no facts alleged that would constitute outrageous conduct, an evil motive or a reckless indifference to the rights of others. 20. Consistent with 42 Pa.C.S. § 7361(b)(2), Cumberland County Rule of Civil Procedure 1301-1 mandates that all civil cases in which the total amount in controversy is Fifty Thousand Dollars ($50,000) or less be submitted to three members of the Bar to be designated as a Board of Arbitrators for hearing and award. Page 4 of 5 21. With the total claimed damages of $37,218.93 in the Plaintiff's Complaint, the case is properly an arbitration matter and the jury trial demand in the Caption is either improper or in error. WHEREFORE, Defendant KEVIN LENZO respectfully requests this Honorable Court strike Paragraphs 19(v), 19(w), 30(v), and 30(w) in their entirety, without substitution; substitute the word "an" for the words "a reckless and/or" in Paragraphs 19(o) and 30(o); and strike the words "JURY TRIAL DEMANDED" from the Caption. Respectfully submitted, FO LMAN By: AAAo., OBERT L. GO DMAN, ESQUIRE I.D. #39795 One Bethlehem Plaza, Suite 400 Broad & New Streets Bethlehem, PA 18018 610-332-3400 Attorneys for Defendant KEVIN LENZO Date: May 4, 2012 Page 5 of 5 «A» Exhibit #-101 LOQ ?_- 1 e ` .;T' ?I o. A Supreme COUx'f'b"'f kP.ennsylvania Cou> t Of..Ca nrli©n Z'Ieas C}VII CO, :S?kn t CUM$1:ERLANQ County Tt _ Tor Prntllo rota ' Usr 0111J Docket No:. The inJbmcNion collected trip Mis form is used solely.iim court udinintsircuion put poses. 777is fiffM dotrs not suv 1c.111rerr! or r•enlrrca dam rM1711 an'Is/arxirr, of do,rdilloc /ll' 1111'ilJJ „, .,, ,•R,n„f,•o,i h., 1„ „ .•.J- „f'..,,. Connnencement of Action: - Complaint ? Writ of Summons ? Petition ? Transfer from Another Jurisdiction ? Declaration of Taking Lead Plaintiff's Nantc; Advantage Loss Services als/o Dart Transit Company Lead Defendant's Name: Kevin Lenzo Are money damages requested. ? Yes ? No Dollar Amount Requested: (check one) awithin arbitration limits ?oulside arbitration limits Is this a Class Action Suit? 0 Yes i] No Is this an 111.1JAppeal? ?j Y es ? No Name of Plaintiff/Appcllant's Attorney: Brian A. McCall, Esquire ? (`heeli hel'e ifyou have na attorney (.ire a self-lZeprescrrtetl [Pro Se ( Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMAR)'CASE. Jfyou are snaking snore than one type of claim, check the one that you consider most important. TORT (do not include Uass "fort) Q Intentional Malicious Prosecution Motor Vehicle ? Nuisance ? Premises liability ? Product Liability (does not include ,('j Inass tot r) t? ? Slander/Libel/ Defamation C ? Other: 61 MASS TORT - [] Asbestos Tobacco ? Toxic Tort, DES Toxic Tort - Implant ? 'toxic Waste ? Other: 13 _j PROFESSIONAL LIABLITY ? Dental Legal ? Medical i ? Other Professional: CONTRACT (do not hTclude dudgments) ? Buyer Plaintiff ? Debt Collection: Credit Card ? Deht Collection: Other ? Linploynient Dispute: Discrimination © F.inploynient Dispute: Other [] Other: REAL PROPERTY ? Fjectntent Erninent Dornain/Cotidenuiation ? Ground Rent LandlordCl'enant Dispute ? Mortgage Foreclosure: Residential ? Mortgage Foreclosure: Commercial ? Partition ? Qttiet "title ? Otfzer: . CIVIL APPEALS Administrative Agencies ? Board of Assessment ? Board of Elections ? Dept, of Transportation ? Statutory Appeal: Other Coning Board ? Other: MISCELLANt02"S ? Coritrnon LawiStatutory Arbitration Declaratory Judgment ? Mandamus © Non-Domestic Relations ? Restraining Order Quo Warranto Replevin 0 Other; Updated 1/1121711 RAWLE & HE, NDERSON LLP By. Crary N. Stewart Identification No.: 67353 By: Brian A. McCall Identification No.: 83030 Payne Shoemaker Building 240 N. Third Street, 91h Floor I-larrisburg, PA 17101 (717) 234-7700 ADVANTAGE LOSS SERVICES, as subrogree for DART TRANSIT COMPANY AND RCH ENTERPRISES, Plaintiffs, vs. KEVIN LENZO, Defendant. Attorneys.for Plaintiffs, Advantage Loss Services, as subrogee for Dart Transit Company and RCH Enterprises, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 1- q S3 D-- CIVIL AC'T'ION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Kevin Lenzo 2332 Sarah Street Pittsburgh, PA 15203 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 and a judgment inay 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 LAWYI=R OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT ]-TIRING A LAWYER. IF YOU CANNOT AFFORD TO ]-TIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION A130UT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR. NO FEE. 4'72909-I f RUE COPY FROM RECORD 1n -Fostimooy whereof, t here unto set my tand and the sea; of said Court at CarAste, Pa. This 00 day of-19 .._,,,. 20(,1~,,,.,.,, Cumberland County Bar Association 32 South' Bedford Street Carlisle, Pennsylvania Telephone Number: (717) 249-3166 RAWI,L: BT ERSON, T.,1uT' BY. ,.-- tan A. Mc , Esquire 0.83030 Payne Shoemaker building 240 N. Third Street, 91h floor Harrisburg, Pennsylvania 17101 (717) 234-7700 / (717) 234-7710 - Fax Our File No.: 250695 Date: s - l9 Et 4572909-1 RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Brian A. McCall Identification No.: 83030 Payne Shoemaker Building 240 N. Third Street, 9t" floor Attorneys for Plaintiffs, Harrisburg, PA 17101 Advantage Loss Services, as subrogee for (717) 2347700 Dart Transit Company and RCM Enterprises ADVANTAGE LOSS SERVICES, COURT OF COMMON PI,rAS OF as subrogree for DART TRANSIT CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, Plaintiffs, VS. NO. KEVIN LENTO, CIVIL ACTION - LAW Defendant. JURY TRIAL DEMANDED COMPLAINT The Plaintiffs, Advantage Loss Services as subrogee of Dart Transit Company and RCH Enterprises, by and through their counsel of record, Rawle & Henderson, LLP, hereby bring this Complaint against Kevin Lenzo, and in support thereof hereby avers as follows: I . Plaintif{, Advantage Loss Services is an insurance company properly registered with the State of Minnesota and doing business at 800 Lone Oak Road, Eagen, Minnesota, 55121. 2. Plaintiff, Dart Transit Company, is a corporation organized and existing in the State of Minnesota with a principal place of business located at 800 Lone Oak Road, Eagan, Minnesota, 55121. 1 Plaintiff, RCM Enterprises, is a business with a principal place of business in Wever, Iowa. 4572909-1 4. Defendant, Kevin Lenzo, is an adult individual and citizen of the Commonwealth of Pennsylvania who resides at 2332 Sarah Street, Pittsburgh, Pennsylvania. 5. At all tinges relevant hereto, Plaintiff, Advantage Loss Services issued a policy of insurance to Dart. 'Fransit Company, who is self4nsured, to insure a 2001 Kenworth tractor and trailer. 6. RCH Enterprises was the owner of aforesaid 2001 Kenworth tractor. 7. At all times relevant hereto and especially on December 20, 2010, Plaintiff, Advantage Loss Services, insured a 2001 Kenworth tractor and trailer, which was owned by RCIT Enterprises, and said tractor and trailer was being operated by James Black. 8. At all times relevant hereto and especially on December 20, 2010, RCH Enterprises was an owner/operator working with Dart Transit Company as a contractor of its services. 9. At all times relevant hereto and especially on December 20, 2010, Jarnes Black was employed by RCII Enterprises. 10. The facts and occurrences hereinafter related took place on or about December 20, 2010 at approximately 7:30 p,rn., at or near the intersection of Route 1 I (Harrisburg Pike} and Route T585 (Country Club Road), Middlesex Township, Cumberland County, Pennsylvania. 11. At that time and place, Plaintiffs insured, a tractor trailer operated by James Black, was in the far- right lane of I-larrisburg Pike and was proceeding approximately 15 mph with a green light and through the intersection. 12. At that time and place, Defendant, Kevin Lenzo, was operating; a 2002 Subaru f=orester, that was stopped in the left turn lane with a red traffic signal controlling his lane of travel. 4572909-1 13. At that time and place, Defendant, Kevin Lenzo decided to make a right turn and leave his lane of travel and cross over into the lane of the vehicle being operated by James Black and tan directly into the side of the vehicle operated by James Black. 14. Kevin Lenzo made the turn into the right hand lane before checking to see if any traffic was already in the right lane. 15. The actions of Kevin Lenzo caused a collision with the vehicle operated by lames Black. 16. The accident of December 20; 2010 was duc entirely to the carelessness and negligence of Defendant, Kevin Lenzo and was in no way the fault of James Black. COUNT I - NEGLIGENCE ADVANTAGE LOSS SERVICES a/s/o DART TRANSIT COMPANY v, KEVIN L1EaNZO 17. Plaintiffs incorporate by reference the allegations set forth in the preceding paragraphs of the Complaint as if fully set forth here. 18. The ibregoing accident and all of the subsequent damages set forth herein and sustained by Advantage Loss Services a/s/o Dart'Fransit Company are the direct and proximate result of the negligence and/or carelessness of Defendant, Kevin. Lenzo. 19. Defendant, Kevin Lenzo, was careless and negligent in his various actions and/or omissions in the following particular manners: a) Failing to keep alert and maintain a proper and careful watch and/or lookout for the presence of other motor vehicles on the highway, including the vehicle operated by James Black; b) Operating his vehicle so as to create a dangerous situation for other vehicles on the roadway; C) bailing to keep his vehicle in a single lane of travel as required by Pennsylvania law; d) Wrongly and_unlawfully pulling directly into the right-of-way of lames Black; 1572909-t e) Wrongly and unlawfully moving his vehicle into the lane of travel already occupied by another vehicle without ensuring that such movement could be made safely; f) Wrongly and unlawfully moving his vehicle into a lane and area already legally occupied by James Black such that a collision could not be avoided; g) Wrongly and unlawfully turning his vehicle directly into the path of the vehicle operated by James Black; h) railing to drive his vehicle with due regard for the highway and traffic conditions which were existing and of which lie should have been aware. i) railing to operate his vehicle in a proper, lawful and safe manner, with due care and regard for the safety of others; j) Failing to keep proper and adequate control over his vehicle; k) railing to ensure that he had enough time and space to enter another lane of travel without creating a dangerous situation for other vehicles on the roadway; I) Failing to take due care with regard to the operation of his vehicle, including changing lanes and controlling the speed of his vehicle; nn) Failing to operate his vehicle in a manner that would avoid causing the collision with Plaintiffs' vehicle and the resulting damage; n) Failing to maintain a safe traveling distance between his vehicle and Plaintiffs' vehicle; o) Operating his vehicle in a reckless and/or inattentive manner; p) Failing to permit other vehicles traveling on the roadway to pass before crossing or entering the roadway; and q) Failing to yield the ri(,ht-of--way to traffic and in particular the vehicle operated by James Flack; r) railing to use due care when approaching an intersection with traffic signals; s) hailing to adhere to the laws of Pennsylvania regarding the operation of a motor vehicle, and more specifically as to traffic control signals and/or devices; t) Failing to properly maintain his vehicle under adequate control prior to impacting the vehicle that Jamcs Flack was operating; 4572909-1 U) Failing to use due care under the circumstances of the roadway and the traffic in the area prior to the incident; v) Violating the act of the Legislature of Pennsylvania concerning the operation and control of a motor vehicle; w) Driving his vehicle in a negligent manner; 20. The Defendant's careless and negligent conduct, acts and/or omissions, as averred above, were a substantial factor, factual cause, and/or direct and proximate cause of the damage sustained by the Plaintiff on December 20, 2010. 21. As a result of the aforesaid breaches of duty, carelessness, and negligence of the Defendant, the Plaintiff, Dart Transit Company's insured vehicle sustained property damage losses to its vehicle in the amount of $1.5,466.13. 21 Pursuant to the terms and conditions of the insurance policy, Advantage Loss Services, paid the sum of $15,466,13, 23. Pursuant to the insurance policy issued by Advantage Loss Services and as a result of said aforesaid payment, Advantage Loss Services became subrogated to the claim of its insured, Dail Transit Company, against Defendant. 24. Plaintiff, Advantage Loss Services is bringing this action as the subrogee of Dart Transit Company as allowed by the terms and conditions of the policy of insurance and is the real party in interest in this matter. 25. As a result of the aforesaid payments and the terms and conditions of its insurance policy with its insured, Advantage Loss Services has been subrogated to the rights of its insured with respect to the damages conipensable under this policy. 26. Pursuant to Advantage Loss Services' right of subrogation, Advantage Loss Services is presently due and owed frorn Defendant the sum of $15,466.13. 4572909-1 2T The amount in controversy is less than Fifty 'Thousand ($50,000.00) and 00/100 Dollars so compulsory arbitration is required. WHEREFORE, Plaintiff Advantage Loss Services a/s/o Dart Transit Company, demands judgment be entered in its favor and as against befendant, Kevin Lenzo, in the amount of $15,466.13 plus interest and any additional costs of suit as well as such other and further relief as this Honorable Court deems just and appropriate-under the circumstances. COUNT It - NEGLIGENCE RCII ENTERPRISES v. KEVIN LENZO 29. Plaintiffs incorporate by reference the allegations set forth in the preceding paragraphs of the Complaint as if fully set forth here. 29. The foregoing accident and all of the subsequent damages set forth herein and sustained by Advantage Loss Services a/s/o Dart Transit Company are the direct and proximate result of the negligence and/or carelessness of Defendant, Kevin Lenzo. 30. Defendant, Kevin Lenzo, was careless and negligent in his various actions and/or omissions in the follo Mng particular manners: a) Failing to keep alert and maintain a proper and careful watch and/or lookout for the presence of other motor vehicles on the highway, including the vehicle operated by James Black; b) Operating his vehicle so as to create a dangerous situation for other vehicles on the roadway C) Bailing to keep his vehicle ina single lane of travel as required by Pennsylvania law; d) Wrongly and unlawfully pulling directly into the right-of-way of James Black; e) Wrongly and unlawfully moving his vehicle into the lane of travel already occupied by another vehicle without ensuring that such movement could be made safely; Wrongly and unlawfully moving his vehicle into a lane and area already legally occupied by James Black such that a collision could not he avoided; 4572909.1 g) )ATrongly and unlawfully turning his vehicle directly into the path of the vehicle operated by James Black; h) bailing to drive his vehicle with due regard for the highway and traffic conditions which were existing and of which he should have been aware; i) Failing to operate his vehicle in a proper, lawful and safe manner, with due care and regard for the safety of others j) Failing to keep proper and adequate control over his vehicle; k) railing to ensure that lie had enough time and space to enter another lane of travel without creating a dangerous situation for other vehicles on the roadway; 1) Tailing to take due care with regard to the operation of his vehicle, including changing lanes and controlling the speed of his vehicle; 1W) Failing to operate his vehicle in a manner that would avoid causing the collision with Plaintiffs' vehicle and the resulting damage; 11) Failing to maintain a safe traveling distance between his vehicle and Plaintiffs' vehicle; o) Operating his vehicle in a reckless and/or inattentive !Wanner; P) Tailing to permit other vehicles traveling on the roadway to pass before crossing or entering the roadway; and q) railing to yield the right-of-way to traffic and in particular the vehicle operated by James Black; r) Failing to use due care when approaching an intersection with traffic signals; s) Tailing to adhere to the laws of Pennsylvania regarding the operation of a motor vehicle, and more specifically as to traffic control signals and/or devices; t) railing to properly maintain his vehicle under adequate control prior to impacting the vehicle that James Black was operating; u) Tailing to use due care under the circumstances of the roadway and the traffic in the area prior to the incident; V) Violating the act of the Legislature of Pennsylvania concerning the operation and con''toI of a motor vehicle; 4572909-1 w) Driving his vehicle in a negligent manner; 31. The Defendant's careless and negligent conduct, acts and/or omissions, as averred above, were a substantial factor, factual cause, and/or direct and proximate cause of the damage sustained by the Plaintiff on December 20, 2010, 32. As a result of the aforesaid breaches of duty, carelessness, and negligence of the Defendant, the Plaintiff; RCH Enterprises, was forced into a period of down-time and sustained a loss of revenue in the amount of $17,907.54. 33. As a result of the aforesaid breaches of duty and negligence of the Defendant, the Plaintiff, RCH Enterprises, also sustained additional losses, expenses, property damage losses and incurred further repair costs to its vehicle in the amount of $3,$45.26. 34. The amount in controversy is less than Fifty Thousand ($50,000.00) and 00/100 Dollars so compulsory arbitration is required, WHEREFORE, Plaintiff, RCH Enterprises demands judgment be entered in its favor and as against Defendant, Kevin Lenzo, in the amount of $21,752.80 plus interest and any additional costs of suit as well as such other and further relief as this Honorable Court deems just and appropriate under the circumstances. BY: Date: 17 , tg • tl RAWLE & HENDERSON, LLP Bri ) A. cCall, L?cl lire I.D. o3030 Payne Shoemaker Building 240 N. Third Street, 91" Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 / (717) 234-7710 - Fax Our File No.: 250695 4572909-1 VERIFICATION i, R°(r•5slvy \?llller, he eby verity thLa I in a Claims Repres native for the Plaintiff, ? dvrtrtrtgr. Los Serv;ces in The t'orcgoirig Action attd that the attaUlt<.d doctmont is based upon d.e information which has bccn gatbemd by tne, my comscl amlinr others can my behalf in preparation. of the defettse of this hovsuk Tile late;; xge of the d eutrwrtt is that of comiscl wtd is not thine.. I have read the downiont wtd, to the crtml that it is based upon informant}n which. 1 have given tt) my aoutisul, it is true a1id ccureaet to the nest of' my km•vledge, infonTmdoa. and belief. To tier. extent that the ccintents of docrtmcm arc ttutt of counsel utdlor all, on tity behalf, l liave relied upon them to nicking this Verification. I furcher state that I mi signink thi.s verification on the recCimowidntion ofzny attorney who hus advised that tJ.tc tangttagc in the foregoing dmitntcnt is rNuited legally to raise issues for resolution by the Court at triol. Further, l undslstand Thu some of these alleig;aiions may prove inappropriate after investigation and that preparation arc complete and l lea-ve dctcrnirttctien; oftitese matts:rs to iny attorney on her advice-, I ctndmiand that iniclttional false staltmtenis herein = mode :.mbject to N, pertalties of 18 N.C.S. Section 4904, relating, to 'unswom falsification it. mithoritics for tiny fi4se Starcmcnts made hem-R, %Vml?yy Miller Claims Representative A,dvwitaQe Loss Services f ?' I VERIFICA` f( N 1, Richard ffornC, lleroby verify thal I am 1110 owncr of RCI-1 enterprises In the foregoing action and tflat the attached documcnt is based upon t{1L infonnntion which bas been gathered by me, my counsel anti/or othors.on my behalf in preparation or the (fetense of this lawsuit. T11c Intlguage of the document Is that orcounsel and is not mine. T have rend the document and, to the extent ilia" it is based upon inforinntion which I have givers to my counsel, it is ime and comxt to the bcst of my kncwlcdge, information, and belief. To tho extent litat the contents ni`docurncnt arc that of'counseJ and/r3r ojhcrs on my behalf, T have relied upon (hcm in making this Verification, I furthcr state that i am signing this verification on the recommcndation of my attorney who huts advixd aunt the Innguage in t1m, fotcgoing doetunent is rquireti Icy*nIfy to raise issues t-or resolution by the Caur1 at trial. Fur1110r, I undcrstltnd (hat some of these allegations tnay prove inapproptiate tltlor investignlion find trial preparntion are co!nplow and 1 leavc dcicnilinmion oftllese matters to my attorney on his ndvicc. 1 understand that intontionai rilse statements herein are: ntadc subject co the pennltirs of i8 Pa.C.S, Section 4904, r01t1ting to unswonn faisitlCiitloll 10 authoritics for any false Statelnonts wade herein. " btl?? ltichttrd fdotnc RCi•T Entellwiscs 5M101-r CERTIFICATE OF SI RVICr On this 0" 'day of 2011, 1 served a true and correct copy of the foregoing document, upon the following and in the manner indicated below. Service wasNmade by SherifP s Personal Service, addressed as follows: Kevin Lenzo 2332 Sarah Street .Pittsburgh, PA 15203 RAWI i & HCNDF,460N, LLP BY F3r'arf. . McCalluire I- . o. 83030 Payne Shoemaker Building 240 N. Third Street, 9"' Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 / (717) 234-7710 _ lax Our File No.: 250695 Date: L-- • 19 " 4572909-1 ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ENTERPRISES, Plaintiffs V. KEVIN LENZO, Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET #: 2011-9332 Civil CERTIFICATE OF SERVICE I, Robert L. Goodman, Esquire, hereby certify that a copy of Defendants KEVIN LENZO's Preliminary Objections to Plaintiff's Complaint, Brief in support thereof and a Praecipe for Argument on the Preliminary Objections were forwarded, this date, by first-class snail, postage prepaid, addressed as follows: Brian A. McCall, Esquire RAWLE & HENDERSON, LLP Payne Shoemaker Building 240 N. Third Street, 9'h Floor Harrisburg, PA 17101 FORR LMAN By: OBERT L. GOODMAN, ESQ. Date: Mav ?? .2012 Cp/AI, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE ,- 41 (entire caption must be stated in full) $ -rz ADVANTAGE LOSS SERVICES, as subrogee for DART -< `0M TRANSIT COMPANY & RCH ENTERPRISES mac:: CD I vs. - KEVIN LENZO 0 Z: ? c= Y Z: No. 201 1 -9332 Civil Tema - 0 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DP_fPnr1anf' c Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Brian A. McCall-240 N. Third St., 9th Floor, Harrisburg, PA 17101 (Name and Address) Robert L. Goodman-One Bethlehem PLaza,Broad & New Sts. Suite 400 (b) for defendants: Bethlehem, PA 1 801 S (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Sianature Robert L. Goodman Print your name Kevin Lenzo Attorney for Date: May 14, 2012 INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. - 1q. 15 Po AT71 C* No '79 ea-7$01D9 t:j D G3i3r " COURT OF COMMON ADVANTAGE LOSSCUMBERLAND COUN y AS OF as subrogee for DART TRANSIT CIVIL ACTION -LAW COMPANY and RCH ENTERPRISES, Plaintiffs v : DOCKET #: 2011-9332 Civil KEVIN LENZO, Defendant PRAECIPE TO WITHDRAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO THE PROTHONOTARY: Kindly withdraw Defendant KEVIN LENZO's Preliminary Objections to Plaintiff's Complaint filed in the above-captioned action on or about 5/12/2012 without prejudice. FORRYIULLMAN BY: OBERT L. GOOD AN, ESQ. I.D. # 39795 540 Court Street, P.O. Box 542 Reading, PA 19603 (610) 777-5700 Attorneys for Defendant KEVIN LENZO Date: June 1.,_2012 ADVANTAGE LOSS SERVICES, COURT OF COMMON PLEAS OF as subrogee for DART TRANSIT CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION - LAW Plaintiffs V. DOCKET #: 2011-9332 Civil KEVIN LENZO, Defendant CERTIFICATE OF SERVICE I, ROBERT L. GOODMAN, EsQ., certify that on the date indicated below, I served a true and correct copy of a Praecipe To Withdraw Defendant's KEVIN LENZO Preliminary Objections to Plaintiff s Complaint upon the following counsel of record, by depositing same in the United States mail, first-class, postage prepaid, addressed as follows: Brian A. McCall, Esquire RAWLE & HENDERSON, LLP Payne Shoemaker Building 240 N. Third Street, 9t' Floor Harrisburg, PA 17101 I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. OBERT L. GOODMAN, ESQ. Date: June 1, 2012 ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ENTERPRISES, Plaintiffs V. KEVIN LENZO, Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET #: 2011-9332 Civil v ORDER AND NOW, this A/ day of Vm /t/z. , 2012, IT IS HEREBY ORDERED that the attached Stipulation of Counsel is approved. BY THE COjIR . J. arJ? ?' _ :ZD -- C?J'l gip;e., -ire le/?/1 , PRQTt?OtdOTA 21Z JUL 16 P?1 3? 10 ADVANTAGE LOSS SEIt LANG COUN?? 1SYLyNiNj ` COURT OF COMMON PLEAS OF as subrogee for DART TRANr CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION - LAW Plaintiffs V. KEVIN LENZO, Defendant DOCKET #: 2011-9332 Civil PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification of Defendant KEVIN LENZO for the attorney's Verification to the Answer with New Matter which was filed on or about June 30, 2012 in the above-captioned action. Respectfully s itted, FORRYI LL By: ROBERT L. GOODMAN, ESQUIRE. I.D. #39795 425 Spruce Street, Suite 300 Scranton, PA 18503 (570) 687-9500 Attorneys for Defendant KEVIN LENZO Date: July 13, 2012 ? r L ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMI"ANY and R01 HN"I'FIRPIUSf;S. AainGll'S V. KEVIN f ,FN70, De Pendant COURTOF COMMON PLEAS Or CUMBERLAND COUNTY CIVfI, ACTION - LAW DUCKET 4: :2011-933? Civil WitmCATJON T. KFVTN T.FN10. do hereby vcriiy that the foregoing Answcr with New Matter was prepared with the assisLuice ,u d advice ol'courlwl, upon whose advice I have relied; lh-it the Alyswer with New Flatter, suhiecl to inadveriew or undiscovorod orrors, is hosed ilron and thercfore limited by the rccord, and informatimi still in existeiu:e, presently recullcu(ccl grid lhyVti far dWxvered in the preparation ol'this Antiwer with New Matter and the dcfensc of this case; that the language of the An wcr with Nc-w Matter is that of counsel: that subject k> the liuiitaliorls sut iurth llerein, the averments ol'the Answer with New Matter are true and correct to llie bell ul'rny knuwlcdge, informarion rmd belief. T undcmand that false statements made in 1c lbrcgoing documcnr arc subject to the penaltizs of Tittc 18 Pa. C:.S.A. Sccllun 49()4 relatlllg to UJl,w01'u falsif lcatiuti ((j UUUJL)rities. T)aTC: 2 EViN LL?1VLU ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ENTERPRISES, Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW V. DOCKET #: 2011-9332 Civil KEVIN LENZO, Defendant CERTIFICATE OF SERVICE I, Robert L. Goodman, ESQUIRE, certify that on this date, I served a true and correct copy of the foregoing Praecipe to Substitute Verification upon the following counsel of record, by depositing same in the United States mail, first-class, postage prepaid, addressed as follows: Brian A. McCall, Esquire RAWLE & HENDERSON, LLP Payne Shoemaker Building 240 N. Third Street, 9th Floor Harrisburg, PA 17101 I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. 4 By: ROBERT L. GOODMAN, ESQUIRE Date: July 13, 2012 ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ENTERPRISES, Plaintiffs V. KEVIN LENZO, Defendant COURT OF COMMON PLEAS 4F CUMBERLAND COUNTY CIVIL ACTION -LAW - ~~ ~? f°'--_. DOCKET #: 2011-9332 Civic-' C'7 .»~ #y C:,. -< MOTION TO COMPEL PLAINTIFFS TO RESPOND TO DISCOVERY REQUESTS OF DEFENDANTS 0 r~ W ~°t; cn .c- Pursuant to Pennsylvania Rule of Civil Procedure 4019, Defendant KEVIN LENZO (hereinafter "Defendant") respectfully move this Court for an Order compelling Plaintiffs ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY and RCH ~~ ;~ '~"~, ~'" ~~ R;'-; ~ ---~" r ., ;~-~ e~';~ -r ; ::' -.... --~5~'i ~~ ENTERPRISES (hereinafter "Plaintiffs") to provide full and complete responses to Defendant's Interrogatories and Request for Production of Documents and, as grounds therefore, state as follows: 1. On or about October 3, 2012, Defendant served Plaintiffs through regular mail upon their counsel a set of Interrogatories and Request for Production of Documents directed to Plaintiffs, a true and correct copy of the cover letter conveying the same is attached hereto as Exhibit ` :A.". 2. When Plaintiffs did not respond within the time set by the Civil Rules, Plaintiffs' counsel was reminded by letter of November 6, 2012 that Plaintiffs' discovery responses were still outstanding. 3. Upon a request, counsel for the Defendant granted the Plaintiffs a two week extension of time to respond to the discovery requests. Page 1 4. Despite the granting of a two week extension, as of the date of this Motion, Plaintiffs have failed to serve full and complete answers to the Defendant's Interrogatories or respond to the Defendant's Requests for Production, nor have they sought a protective order. 5. Pa.R.C.P. 4006 provides that answers and objections, if any, to written interrogatories shall be served within thirty (30) days after service. 6. Pa.R.C.P. 4009.12(a) provides that a response and objections, if any, to requests on a party shall be served within thirty (30) days after service. More than thirty (30) days have passed since Plaintiffs were served with Defendant's Interrogatories and Requests for Production. Plaintiff's responses are overdue. The information sought through Defendant's Interrogatories and Requests for Production of Documents is relevant and material to Defendant's preparation of a full and proper defense of this matter, and the Plaintiffs' delay in responding to the same will prejudice Defendant by delaying the conclusion of discovery and by the delay potentially resulting in the larger assessment of delay damages against the Defendants. 9. As of this date, no judge has ruled upon any other issue in this or any related matter, other than Judge Guido approving a Stipulation of Counsel regarding the wording of the Complaint on June 6, 2012. 10. Anticipating that counsel for the Plaintiffs would not concur with the within Motion to Compel against his clients and that efforts to obtain concurrence after having already granted an extension would be unproductive, none was sought. WHEREFORE, Defendant KEVIN LENZO prays that this Honorable Court, pursuant to Pennsylvania Rule of Civil Procedure 4019, enter an Order requiring Plaintiffs to provide full Page 2 and complete answers to Defendant's Interrogatories and Request for Production of Documents within twenty (20) days of the date of the Order. By: Date: November 28, 2012 Respect ubmitted, FO IU MAN ~CSBERT L. GOODMAN, ESQUIRE I.D. #39795 One Bethlehem Plaza, Suite 400 Broad & New Streets Bethlehem, PA 18018 610-332-3400 Attorneys for Defendant KEVIN LENZO Page 3 One Bethlehem Plaza j Broad S New Sts. j Suite 400 j Bethlehem PA 18018 nH 610.332.3400 i rx 610.332.3401 F'~:rr~w~ i ~(.Jllman r "=ticrr?ys ci Lavr October 3, 2012 Brian A. McCall, Esquire RAWLE & HENDERSON, LLP Payne Shoemaker Building 240 N. "Chird Street, 9~' Floor Harrisburg, PA 17101 RE: Advantal~e Loss Services, et al. v. Kevin Lenzo Docket #: 2011-9332 (Cumberland) Our File #: 601972 Dear Mr. McCall: Enclosed please find a copy of the following: ROBERT L. GOODMAN DIRECT DIAL: 610-954-6864 E-MAIL: rgoodman~forryullman.com 1. Defendant KEVIN LENZO's Interrogatories to Plaintiff ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY; 2. Defendant KEVIN LENZO's Request for Production of Documents addressed to Plaintiff ADVANTAGE LOSS SERVICES, as subrogee for DART TRANSIT COMPANY; 3. Defendant KEVIN LENZO's Interrogatories to Plaintiff RCH ENTERPRISES; and 4. Defendant KEVIN LENZO's Request for Production of Documents addressed to Plaintiff RCH ENTERPRISES. in the above-referenced matter. Please provide Plaintiffls responses to the enclosed discovery within the time allotted under the Civil Rules. B3 RLG:rg Enclosures King of Prussia ,Reading ,Bethlehem Scranton ~,v~ativ.forryulflrran.com RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Brian A. McCall Identification No.: 83030 Payne Shoemaker Building 240 N. Third Street, 9"Floor Attorneys for Plaintiffs, Harrisburg, PA 17101 Advantage Loss Services, as subrogee for (717)234-7700 Dart Transit Company and RCH Enterprises ADVANTAGE LOSS SERVICES, COURT OF COMMON PLEAS OF N as subrogree for DART TRANSIT CUMBERLAND COUNTY Q ' COMPANY and RCH ENTERPRISES, Plaintiffs, CA o° 4 vs. NO. 2011-9332 Civil ac:) C3 c rrl KEVIN LENZO, CIVIL ACTION - LAW rw Defendant. JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S REPRESENTATIVE FOR IN PERSON ATTENDANCE AT A DEPQ=ON AND CROSS MOTION FOR A PROTECTIVE ORRER AS WELL AS COSTS,ATTORNEY'S FEES AND SANCTIONS AND NOW COMES, Plaintiffs, Advantage Loss Services, as subrogree for Dart Transit Company and RCH Enterprises, by and through their counsel of record, and files their Answer to Defendant's Motion to Compel Plaintiff's Representative for In Person Attendance at a Deposition along with their Cross Motion for a Protective Order as well as Costs, Attorney's Fees and Sanctions, and answers and avers as follows: 1. Admitted. 2. Denied as stated. To the contrary, as a result of the accident, Plaintiffs, Advantage Loss Services, as subrogee for Dart Transit Company and RCH Enterprises, sustained property damage, down-time, business losses, and loss of use as a result of the negligence of the 6328884-1 t r Defendant, Kevin Lenzo. It is admitted the motor vehicle collision due to Defendant's negligence did occur in Cumberland County. 3. Admitted. 4. Denied as stated. The forum of Cumberland County was chosen since the accident occurred in Cumberland County and any other jurisdiction would have only had minimal contacts and likely caused Defense counsel to object to venue and petition this Honorable Court for a transfer. 5. Denied as stated. Defendant's counsel has requested the deposition of Plaintiff RCH Enterprises' corporate representative, Richard Horne. On December 4, 2012, Defendant's counsel proposed dates for the deposition of Richard Home and told Plaintiffs' counsel that he would be holding the deposition in Defendant's office in Bethlehem. [A true and correct copy of the December 4, 2012 correspondence is attached hereto as Exhibit A]. In response, on December 14, 2012, counsel for the Plaintiffs reminded Defendant's counsel that his clients were from out-of-state and objected to a deposition in Defendant's office in Bethlehem. Plaintiffs' counsel advised Defense counsel that Plaintiffs' representative would not appear for a deposition in defense counsel's office for a deposition absent court order, provided however, that Plaintiffs' representative would appear if Defendant would pay for all travel costs and related expenses. [A true and correct copy of the December 14, 2012 correspondence is attached hereto as Exhibit B]. In that correspondence, Plaintiff's counsel also offered his client's deposition by telephone or videoconference. Further, Plaintiffs' counsel offered to provide Pennsylvania case law in support of his position. Last, Plaintiffs' counsel advised defense counsel that if he 6328884-1 proceeded with a Motion to Compel but lacked any authority for his position, Plaintiffs would proceed with a Motion for Sanctions. By way of further answer, on January 2, 2013, Defendant's counsel suggested additional dates for a deposition of Plaintiffs representative. However, Defendant's counsel ignored Plaintiffs' request for authority that Plaintiff must attend a deposition in-state but over 100 miles away from the forum courthouse. [A true and correct copy of the January 2, 2013 correspondence is attached hereto as Exhibit C]. In response, Plaintiffs' counsel informed Defendant's counsel that he would check with his client's availability. On January 7, 2013 - only five (5)days later- and knowing that Plaintiff's counsel was attempting to confirm his client's availability for a deposition, Defendant's counsel unilaterally scheduled and noticed the in-person deposition of Plaintiffs' corporate representative, Richard Horne. [A true and correct copy of the January 7, 2013 correspondence is attached hereto as Exhibit D]. Notably, Defendant's counsel,without authority,purposely scheduled the deposition for his own convenience in Bethlehem. It is Plaintiffs' position that this Notice of Deposition with full knowledge that all aspects of it was objectionable, was sent in bad faith solely to harass the Plaintiffs and needlessly increase the costs of litigation. 6. Denied as stated. In response to Defendant's unilateral scheduling,on January 10, 2013, Plaintiffs' counsel outlined in great detail the many salient reasons as to why the Notice of Deposition was improper. [A true and correct copy of the January 10, 2013 correspondence is attached hereto as Exhibit E]. In that letter, Plaintiffs' counsel also provided Defense counsel with case law and authority in support of his position that an out of state party need not attend an in-state deposition. 6328884-1 Unlike Defendant's contention as expressed in its Motion. Plaintiffs' counsel does not contend that his out-of-state clients are not required to [appear in-person] absent payment of their travel and all related expenses. Rather, Plaintiffs' counsel further proposed various alternatives to an in-person deposition including that(1) Defendant pay for Plaintiffs' travel and related expenses or(2) Defendant amicably agree to a telephonic or video deposition of the Plaintiff as has been accepted practice and consistent with Pennsylvania case law. Defense counsel has inexplicably and unreasonably declined. Last, Plaintiffs' counsel again requested authority to support Defendant's contention that an in-person deposition of an out-of-state corporate representative was required under Pennsylvania law. None was provided. Rather, Defendant's counsel again ignored Plaintiffs' demand. Plaintiffs' counsel again warned Defense counsel of sanctions if a Motion was filed absent any authority. By way of further answer, on January 23, 2013, counsel for Plaintiffs offered Richard Horne for a telephone deposition on February 18, 2013, one of the dates suggested by the Defendant's counsel in his January 2, 2013 letter. [A true and correct copy of the January 23, 2013 correspondence is attached hereto as Exhibit F]. Weeks later, and without any response from counsel for the Defendant, Plaintiffs' counsel contacted Defendant's counsel on February 11, 2013 and advised that the reserved date chosen by Defendant's counsel was being removed to accommodate other matters. [A true and correct copy of the February 11, 2013 correspondence is attached hereto as Exhibit G]. By way of correspondence, dated February 14, 2013, counsel for Defendant expressed his unfounded position that defendants are entitled to an in person deposition. While counsel for Defendant advised Plaintiffs' counsel that he disagreed with the case law that Plaintiffs provided, he yet again failed to provide any authority in support of his own Position. Defense 6328884-1 1 a \ counsel's only claim was that Plaintiff chose the forum and then apparently must return for a deposition. [A true and correct copy of the February 14, 2013 correspondence is attached hereto as Exhibit H]. On February 28, 2013, Plaintiffs' counsel again advised Defendant's counsel that he failed to provide even one case that support his proposition that Plaintiffs' representative must incur needless litigation expenses in traveling to in an in-person deposition where technologically accepted and feasible alternatives were available. Planitiff s counsel again advised of his intent to proceed with a Motion for Sanctions [A true and correct copy of the February 28, 2013 correspondence is attached hereto as Exhibit I]. 7. Admitted in part, denied in part. While it is admitted that Defendant's counsel cites to 4007.1(a) and that rule provides as such, the citation to this rule by Defendant's counsel is for some inexplicable reason. While Defendant did notice a deposition of Plaintiffs' representative this was done unilaterally and was further objected to. It is denied that this Rule has any applicability or legal support to the contentions raised or the position asserted in Defendant's Motion that Plaintiffs' representative must appear in Pennsylvania for a deposition. 8. Admitted that Defendant's office is located more than 100 miles from the courthouse. 9. Denied. While Defendant then cites to Rule 4008, the record must be made clear. Despite Defendant's representation, at no time did Defendant's counsel ever offer to take the deposition of Plaintiffs' Representative in Cumberland County or at Plaintiffs' counsel's office(Harrisburg, Pennsylvania), or at any location within 100 miles of the courthouse. Rather, Defendant unilaterally scheduled Plaintiffs' representative's deposition to occur in his office in Bethlehem Pennsylvania 107 miles from the courthouse steps. Regardless, Defendant's assertion is entirely irrelevant, since legally accepted alternatives and equal y 6328884-1 effective alternatives to an in-person deposition were offered to Defense counsel and refused without legitimate justification. 10. Denied. Defendant's Notice of Deposition is for his office in Bethlehem, Pennsylvania, more than 100 miles from the courthouse. Certainly, under Rule 4008, if the deposition is more than one hundred miles from the Courthouse,the Court upon Motion may make an Order requiring the payment of reasonable expenses, including attorney's fees, as the court shall deem proper. However, for purposes of the instant Motion, Plaintiffs' representative, Richard Horne, is located in Wever, Iowa, approximately 961 miles away from Defendant's law office and approximately 845 miles away from the Cumberland County Courthouse. In light of that distance, and due to Defendant's inexplicable refusal to either pay for Plaintiffs' expenses or utilize technologically feasible alternatives to an in-person deposition. Plaintiffs' counsel has taken the position that Plaintiffs' representative, Richard Horne, will not appear for an in-person deposition in Pennsylvania absent court order since case law allows for electronic alternatives or the payment of all costs from the demanding party. 11. Denied. While a deposition may be relevant and material, Plaintiffs have never refused to submit to one. Moreover, it is denied that an in person deposition is required for a "full and proper defense." In fact, Defendant's counsel offers not one reason why an in-person deposition is necessary. 12. Denied. There is absolutely no need for an in-person deposition of Plaintiffs' representative simply to assess his credibility. As videoconferencing has already been offered to Defendant's counsel. This assertion is a hollow and baseless averment where the only apparent intention of the instant motion is to inconvenience and burden the Plaintiffs with increased litigation cost and expenses. By way of further answer, the claim of a need for an in person 6328884-1 deposition of the Plaintiffs' representative to determine credibility is disingenuous and otherwise nonsensical as Plaintiff already offered a video-deposition where Defendant can observe the Plaintiff as if her were sitting in front of him in person. [See Exs. B and I]. Seeing as there is absolutely no basis, legal or otherwise, for the in-person deposition of the Plaintiff, it is clearly the instant Motion is in bad faith, frivolous and in all respects sanctionable. 13. Denied. The assertion forwarded by Defendant's counsel is nonsensical. Plaintiffs' representative will be forced to travel and incur expenses in coming nearly 1000 miles across the United States for a deposition that can be completed by video and for a fraction of the cost. It is indisputable that the in-person deposition of Plaintiffs' Representative violates the procedural rules regarding discovery including Rule 4011 (a) and(b) as it is sought in bad faith, and would cause unreasonable annoyance, oppression, burden and expense to the deponent party, and as such, Plaintiff seeks a Protective Order under Rule 4012. By way of further answer, again it is denied that Plaintiffs chose Cumberland county for any convenience or advantage, as Defense counsel knows too well. The venue of Cumberland County was chosen by Plaintiffs' counsel because the accident occurred in Cumberland County and not for any procedural advantage. Cumberland county is the appropriate venue and the out of state Plaintiffs have no perceived clout or tactical advantage in any county in Pennsylvania, Rather, Cumberland county is the only legitimate venue since the accident which is the subject of Plaintiffs' Complaint occurred here. Simply put, this is a nonsensical and factually unsupported argument offered by Defense counsel to divert this Honorable Court from the fact that he has no actual authority or legal basis for the relief as requested in his frivolous motion. Again, Defendant's counsel merely regurgitates irrelevant case law with no applicability to the instant 6328884-1 Motion in order to create the guise of legitimacy to his legally hollow and procedurally inappropriate motion. 14. Admitted that Plaintiffs' counsel did not concur since the instant Motion is frivolous, legally and procedurally baseless, and otherwise filed in bad faith. WHEREFORE, Plaintiffs respectfully request that Defendant's Motion compelling the in-person deposition of Plaintiffs' representative be denied and that this Honorable Court issue a Protective Order prohibiting Plaintiffs' attendance at a deposition in this Commonwealth. Plaintiffs further request costs and sanctions be awarded for Plaintiffs' defense of this frivolous and legally vacuous Motion. In the alternative, should this Honorable Court find any merit to the instant Motion, Plaintiffs respectfully request that this Honorable Court Order Defendant to pay all costs, travel expenses, attorneys fees, and related travel expenses and fees, including meals and lodging to Plaintiffs' representative(s) associated with Defendant's demand for an in person deposition. PLAINTIFFS' CROSS MOTION FOR A PROTECTIVE ORDER 15. Plaintiffs incorporate by reference their Answer from paragraphs 1 through 14 as if set forth at length herein. 16. By various letters, Plaintiffs' counsel repeatedly requested that Defendant's counsel provide any authority for the assertion that Plaintiffs' corporate representative must travel from Iowa, over 900 miles to Bethlehem Pennsylvania to attend an in-person deposition. 17. There is no Rule in the Pennsylvania Rules of Civil Procedure that requires in- person attendance at a deposition. 18. In fact, Pa.R.C.P. 4017.1 allows for the video depositions of any party that may be used in court. 6328884-1 19. Further, the Pennsylvania Rules of Civil Procedure further allow that the deposition of any party may be used by any party for any purpose, including the time of trial, including a witness at a greater distance than one hundred miles. See Rule 4020(a)(3). 20. There is absolutely no portion of Plaintiffs' representative's deposition that requires personal attendance since Plaintiffs' representative's deposition can be completed by either telephone or video conferencing in accordance with the Rules of Civil Procedure. 21. Defendants counsel has offered no reason for his rejection of the offer of videoconferencing 22. Such a deposition by telephone or videoconferencing of out of state parties is a widely accepted practice in both our state and federal Pennsylvania courts. 23. In support of Plaintiffs' position, Plaintiffs provided Pennsylvania precedent that holds an out-of-state corporate representative was not required to attend an in person deposition. 24. Specifically, Plaintiffs' counsel cites to—and provided to Defendant's counsel— J.A. Reinhardt& Co. Inc. v. Stettz, 35 Pa. D.&C. 4`' 558, 1996 WL 1044984 (Monroe, 1996) and Pennington v. Caprum, 32 Pa. D.&.C. 4' 75, 1996 WL 932082 (Northhampton, 1996). 25. In response, Defendant's counsel has zero authority for the proposition that an in- person deposition is either required, warranted, or mandated by existing case law. 26. In fact, the authority cited by Defendant's counsel actually sumorts the proposition by the Plaintiffs and the case law that a party who demands an in person deposition of party must pay the costs. See Davis v. Pennzoil Co., 1965 Pa. Dist. & Cnty. Dec. Lexis 96; 38 Pa. D& C.2d 289 (Allegheny 1965). 27. Accordingly, in the alternative, should this Honorable Court require in-person attendance of Plaintiffs' representative, Plaintiffs respectfully that Defendant be responsible for 6328884-1 all associated travel costs, including air-fare or mileage at the federally accepted reimbursement rate, meals, tolls, and lodging. 28. Rule 4012 of the Pennsylvania Rules of Civil Procedure provides: (a) Upon Motion by a party from who discovery or deposition is sought, and for good cause shown,the court may make an Order which justice requires to protect a part or person from unreasonable annoyance, embarrassment, oppression,burden or expense, including one or more of the following: (1) That the discovery or deposition shall be prohibited (2) That the discovery or deposition shall be only on specified terms and conditions, including a designation of time and place; (3) That the discovery or deposition shall be only by a method of discovery or deposition other than that selected by the party seeking discovery or deposition; 29. The demand for an in person deposition of Plaintiffs' Representative, Richard Horne, would subject the Plaintiff to unreasonable annoyance, embarrassment, oppression, burden and expense. 30. Specifically, the trip from Iowa to Pennsylvania would be burdensome and needlessly expensive. 31. Alternatively, a video deposition where Mr. Horne remains in Iowa at his principal place of business would allow Mr. Horne to attend to the obligations of his company while also providing the Defendant with his requested deposition. 32. In light of the foregoing, a protective order is warranted to protect the Plaintiffs' representative(s) from being forced to incur needless expenses in attending an in-person, in-state deposition. 33. Plaintiffs respectfully request that this Honorable Court issue protective order(1) prohibiting an in-person deposition of Plaintiffs' driver or Plaintiffs' corporate representative(s); and (2)that any deposition of the Plaintiffs—either driver or corporate representative shall occur 6328884-1 at or near their respective principal places of business in Minnesota or Iowa; and (3)that any such deposition shall occur by telephone conference or videoconference and not in person in the Commonwealth of Pennsylvania as demanded by the Defendant. WHEREFORE, Plaintiffs respectfully request that Defendant's Motion compelling the in-person deposition of Plaintiffs' representative be denied and that this Honorable Court issue a Protective Order prohibiting Plaintiffs' attendance at a deposition in this Commonwealth. Plaintiffs further request costs and sanctions be awarded for Plaintiffs' defense of this frivolous and legally vacuous Motion. In the alternative, should this Honorable Court find any merit to the instant Motion, Plaintiffs respectfully request that this Honorable Court Order Defendant to pay all costs, travel expenses, attorneys fees, and related travel expenses and fees, including meals and lodging to Plaintiffs' representative associated with Defendant's demand for an in person deposition. PLAINTIFFS' CROSS MOTION FOR SANCTIONS 34. Plaintiffs incorporate by reference their Answer from paragraphs 1 through 33 as if set forth at length herein. 35. Defendant's Motion to Compel in person attendance not only violates Pennsylvania precedent but also the Pennsylvania Rules of Civil Procedure. 36. Rule 4011 of the Pennsylvania Rules of Civil Procedure provides that no discovery or deposition shall be permitted which(a) is sought in bad faith; (b)would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party. See Pa.R.C.P. 4011 (a)(b). 37. Pursuant to Rule 4019(c)(5), Defendant has failed to make discovery as is just for which this Honorable Court may, on motion, order sanctions. 6328884-1 38. Defendant's Motion is also frivolous and filed for improper purpose or otherwise in bad faith. 39. Rule 1023.1 of the Pennsylvania Rules of Civil Procedure provides as follows: Rule 1023.1. Scope. Signing of Documents. Representations to the Court. Violation. (b) Every pleading,written motion, and other paper directed to the court shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. This rule shall not be construed to suspend or modify the provisions of Rule 1024 or Rule 1029(e). (c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that,to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (d) If, after notice and a reasonable opportunity to respond, the court determines that subdivision(c)has been violated, the court may, subject to the conditions stated in Rules 1023.2 through 1023.4, impose an appropriate sanction upon any attorneys, law firms and parties that have violated subdivision(c)or are responsible for the violation. Pa.R.C.P. 1023.1 40. 42 Pa.C.S. 2503,provides for the entitlement of counsel fees for conduct of a party that is dilatory, obdurate, vexatious, or in bad faith as follows: § 2503. Right of participants to receive counsel fees. 6328884-1 The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: (6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter. ( ) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. 42 Pa.C.S. § 2503 41. It is Plaintiffs' counsel's position that the conduct of the Defendant, in filing the instant Motion to Compel an in-person deposition of Plaintiffs' representative violates Pa.R.C.P. 4011 (a) and (b). 42. Defense counsel's outright refusal to accommodate an out of state party with a deposition by telephone or videoconference violates the Pennsylvania Rules of Civil Procedure as well as precedent set by Pennsylvania Commonwealth Courts and is unjust under 4019(c)(5). 43. Defendant's Motion and refusal to agree to have Plaintiff's representative submit to a videodeposition and demand that Plaintiffs' representative travel almost 1000 miles and incur needless litigation expenses is inexcusable and violates 1023.1(c)(1). 44. As Defendant's Motion lacks any authority whatsoever and is devoid of legal or procedural support to maintain counsel's demand that Plaintiff's representative must attend an in-person deposition, Defendant's Motion also violated 1023.1(c)(2). 45. Defense counsel's factual assertions of the need for an in-person deposition of the Plaintiffs' representative to assess credibility is disingenuous and lack any evidentiary support 6328884-1 and are in violation of 1023.1(c)(3)and(4) since a videoconference deposition would equally suffice to serve Defendant's "need." 46. Even more disturbing and clearly frivolous and sanctionable, Defendant's counsel only raised the identical same arguments in cases provided by Plainitff's counsel before the filing of Defendant's motion that the trial courts had already outright rejected or held to be without merit. 47. In sum, Defendant's Motion is patently frivolous and filed in bad faith for the both the foregoing and following conclusive reasons: 1) Defendant has offered no case law that requires an out of state party to attend in person deposition; 2) The case law offered by the Defendant actually supports Plaintiffs' position; 3) The entirety of arguments raised by Defendant's counsel were identical arguments already rejected by our Pennsylvania Courts. 4) Equally effective and technologically feasible alternatives to an in-person deposition have been offered and rejected without justifiable excuse or explanation, even though these means have been recognized by our Pennsylvania Courts. 5) Defendant's insurer has already accepted 100%liability for this motor vehicle accident and offered its policy limits. 48. The instant motion has been clearly filed to unnecessarily harass the Plaintiffs and for the improper purpose of forcing the Plaintiffs to incur unnecessary and burdensome costs and expenses which violate the Pennsylvania Rules of Civil Procedure and for which punishment and 6328884-1 sanctions, including cost, fines, attorney's fees, and other relief as this Court may deem reasonable are warranted under 1023.1(d). 49. Further, the vexatious and dilatory conduct of Defendant who filed the instant Motion in bad faith in violation of 4011(a)and 42 Pa.C.S. §2503(9)warrants counsel fees. WHEREFORE, Plaintiffs respectfully request that Defendant's Motion compelling the in-person deposition of Plaintiffs' representative be denied and that this Honorable Court issue a Protective Order prohibiting Plaintiffs' attendance at a deposition in this Commonwealth. Plaintiffs further request costs and sanctions be awarded for Plaintiffs' defense of this frivolous and legally vacuous Motion. In the alternative, should this Honorable Court find any merit to the instant Motion, Plaintiffs respectfully request that this Honorable Court Order Defendant to pay all costs, travel expenses, attorneys fees, and related travel expenses and fees, including meals and lodging to Plaintiffs' representative associated with Defendant's demand for an in person deposition. PLAINTIFFS' REQUEST FOR RELIEF 50. Accordingly, Plaintiffs requests the following specific relief: (1) That this Honorable Court issue a Protective Order (a) prohibiting an in-person deposition of Plaintiffs' driver or Plaintiffs corporate representative(s); and (b) that any deposition of the Plaintiffs—either driver or corporate representative shall occur at or near their respective principal places of business in Minnesota or Iowa; and (c) that any such deposition shall occur by telephone conference or videoconference and not in person in the Commonwealth of Pennsylvania as demanded by the Defendant. (2) That in the alternative, should this Honorable Court require in-person 6328884-1 attendance of Plaintiffs' representative, Plaintiffs respectfully that Defendant be responsible for and pay all associated travel costs, including air-fare or mileage at the federally accepted reimbursement rate, meals,tolls, and lodging. (3) That Defendant and its counsel be sanctioned, including fines, costs, and attorney's fees for the instant frivolous motion practice in an amount deemed just and reasonable by this Honorable Court. WRAWV�LE DERS ,LLP BY: q Payne Shoemaker Building 240 N. Third Street, 0 Floor Harrisburg, Pennsylvania 17101 3 , zz 13 (717)234-7700/(717) 234-7710—Fax Date: Our File No.: 250695 6328884-1 EXHIBIT l l 1088010-1 f c- One Bethlehem Plaza i Broad&New Sts. Suite 400 j Bethlehem PA 18018 F a 610.332.3400 1 rx 610.332.3401 Forry! "UHman ROBERT L.GOODMAN Attorneys at Law DIRECT DIAL•610-954-6864 E-MAIL:rgoodman @forryuUnian.com December 12, 2012 SENT VIA FAX: (717) 234-7710 AND FIRST CLASS MAIL Brian A. McCall, Esquire R AWLS &HENi:)ERSON, LLP Payne Shoemaker Building 240 N. Third Street, 9t'Floor Harrisburg, PA 17101 RE: Advantaize Loss Services, et al. v. Kevin Lenzo Docket#: 2011-9332(Cumberland) Our File#: 601972 Dear Attorney McCall: For ease of reference, I have enclosed a copy of my letter to you dated December 4, 2012. Kindly advise if any of the dates referred to therein work for both you and your client. Thank you for your attention to this matter. Very truly yours, , o 13- Bonnie B. Dilliard, Paralegal to ROBERT L. GOODMAN, ESQUIRE /bbd Enclosure King of Prussia • Reading Bethlehem Scranton www.forryuliman.com December 4,2012 SENT VIA FAX: (717)234-7710 AND FIRST CLASS MAIL Brian A. McCall, Esquire RAWLE&HE'NDERSOINT, LLP Payne Shoemaker Building 240 N. Third Street, 9t'Floor Harrisburg,PA 17101 RE: Advantage Loss Services, et al. v. Kevin Lenzo Docket#: 2011-9332 (Cumberland) Our File#: 601972 Dear Attorney McCall: Per our telephone conversation on November 30, 2012, I submit the following proposed dates for the deposition of Mr. Richard Horne, owner of RCH Enterprises: Tuesday, January 8,2013; Thursday,January 10, 2013; Monday,January 14,2013; Wednesday, January 16, 2013; Monday,February 4, 2013; and Tuesday, February 5,2013. Kindly advise if any of the above-mentioned dates work for your schedule, as well as your client's schedule. Please note that Attorney Goodman would like to hold the deposition in our Bethlehem office. Thank you. Very tmiw uop'y Bonnie B. Dilhard,Paralegal to ROBERT L. GOODMAN, ESQUIRE /bbd a EXHIBIT GG louolV'I RAW LE HENDERSQN LLP x fi�fi �•o. 7„.r t1ARY H.STVWART PAYNE SHOSIMUR WHOM 717-234-7730 The Nation's Oldest law Office-EstabbW in 1M 240 N.TH=STREET,97H FLOOR gatewartrawk.aom rvwvvrawie.com HARRtssuRO,PA 17101 BRm A.MCCALL T=AwHoNS:(717)2347700 717-234-7700 FAc9tamz:(717)234-7710 bmcc&U@mwie.com December 14, 2012 Robert L. Goodman,Esquire Forry Ullman One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem,PA 19018 Re: Advantage Loss Services v.Kevin Lenzo Docket No.: 2011-9332 (Cumberland Co.C.C.P) 01ar No: 250695 Dear Mr. Goodman: In response to your letter of December 12, 2012 and potential dates for my client's deposition, we are checking on potential dates for their availability. I do know that the dates in January will not work with my schedule, as I have pre planned vacation through the rest of the year and my first three weeks of January thereafter are already full. As such, I will check on the two suggested dates in February. As to your personal desire to hold the depositions in your Bethlehem office, we do not agree. As you know, my clients are both from out-of-state and will not appear for a live in-person deposition absent court order. Under controlling Pennsylvania case law, they are not required to do so, unless you intend to bear the cost for their travel and all related expenses. However, we will certainly produce both Plaintiffs for a telephonic deposition or videoconference deposition on a mutually convenient date,at your expense, in Cumberland County, or at our office. Let us know if you would like copies of the case law in support of our position. Be advised that should you proceed with a Motion to Compel without any authority in support of your position, we will seek costs and sanctions against you for frivolous motion practice. 5068817-1 PHILADELPHIA,PA PITTSBURGH,PA HARRISBURG,PA MARLTON,NJ NEW YORK NY WILMINGTON.OF +�'cc”"^""" EXHIBIT " C " One Bethlehem Plaza Broad&New Sts. Suite 400;Bethlehem PA 18018 PH 610.332.3400 1 Fx 610.332.3401 laman ROBERT L.GOODMAN ttorneys at Law DIRECT DIAL:610-954-6864 E-MAIL:rgoodman@forryullman.com 2, 2013 IA FAX: (717) 234-7710 IST CLASS MAIL McCall, Esquire &HENDERSON, LLP Ioemaker Building hird Street, 9th Floor rg, PA 17101 E: Advantage Loss Services, et al. v. Kevin Lenzo Docket#: 2011-9332 (Cumberland) Our File#: 601972 :)rney McCall: is my understanding that January is not good for you regarding the scheduling of ns in this case. I would like to suggest Monday, February 4, 2013 and Tuesday, 5, 2013 (contained in my letter to you dated December 4, 2012). In addition, I would opose the following dates: [onday, February 11, 2013; uesday, February 12, 2013; [onday, February 18, 2013; uesday, February 19, 2013; and [onday, February 25, 2013. indly advise if any of the above proposed dates work for your schedule as well as your -hedule. Thank you. Very truly yours, /1 Bonnie B. Dilhard, Paralegal to ROBERT L. GOODMAN, ESQUIRE King of Prussia • Reading • Bethlehem • Scranton www.forryuliman.com EXHIBIT D tomio-i y sn�a"nnm�we�;�eenirem�e�e. -_-- One Bethlehem Plaza Broad&New Sts. Suite 400 Bethlehem PA 18018 P- 610.332.3400 1 Fx 610.332.3401 U11man R(:)BF.RT L.GOODMAN t t o r n e y s at Law January 7, 2013 A RECr DIAL:610-954-6864 E-MAIL:i!,,00dman@forryuflmm.com Via f1m: (717) 234-7710 and First Class Mail Bri,xi A. McCall, Esquire RA VLE& HENDERSON, LLP Pay le Shoemaker Building 2,101'4. Third Street, 9a'Floor Har isburg, PA 17101 Re: Advantage Loss Services,et al. v. Kevin Lenzo Docket Number: 2011-9332 (Cumberland) Our File No.: 601972 Dea r Attorney McCall: This letter follows your promise to provide us with feedback on dates in February and my Legal Assistant's efforts to confirm a mutually convenient date. Sadly, without rece iving a response from you, we have unilaterally selected a date. Enclosed herewith plea ie find a Notice of Oral Deposition directed to Richard Horne, owner of RCH Ent(rprises, in regard to the above-referenced matter. The deposition of Mr. Horne is scheduled for Monday, February 25, 201.3 begi nning at 10:00 AM. The deposition will be held at our law office located air: One Bett lehem Plaza, Suite 400, Broad &New Streets, Bethlehem, PA 18018. If you have persuasive case law for your contention that Mr. Home does,not need to tr;ivel to Pennsylvania to attend a deposition within the Commonwealth involving a laws uit he,as the owner of a business, filed, I am willing to review the same and discuss alter hg how we will proceed if your position is substantiated and persuasive. Please note that we will obtain the court reporter in this matter. Should you have any questions or concerns,please feel free to contact OIJT office. V y ur ROBERT L. GOODMAN, ESQUI1tE /bbd Encl,)sure King of Prussia - Reading - Bethlehem - Scranton www.forryullman.com ADVANTAGE LOSS SERVICES, COURT OF COMMON PLEAS OF as subrogee for DART TRANSIT CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION - LAW Plaintiffs V. DOCKET#: 2011-9332 Civil KEVIN LENZO, Defendant NOTICE OF DEPOSITION TO: Mr. Richard Horne,owner of RCH Enterprises Uo,-Brian A. McCall,-Esquire RAWLE&HENDERSON, LLF Payne Shoemaker Building 240 N. Third Street, 9t'Floor Harrisburg, PA 17101 PLEASE TAKE NOTICE that,pursuant to the Pennsylvania Rules of Civil Procedure, counsel for the Defendant, Kevin Lenzo, will take the deposition of Mr. Richard Horne,before a person duly authorized to administer oaths, beginning at the following time and place: DATE AND TIME Monday,February 25,2013 at 10:00 a.m. PLACE OF DEPOSITION Forry Ullman One Bethlehem Plaza,Suite 400 Broad & New Streets Bethlehem,PA 18018 �Z!4 RRY ULLMAN By: OBERT L. GOODMAN, ESQUIRE Attorney I.D.No. 39795 Attorney for Defendant Kevin Lenzo One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem, PA 18018 Date: (610) 332-3400 E EXHIBIT E lomiai RAWLEHENDERSQN LLB I TO A. !' GARY N.STmART The Nation's Okim law Oft*•Eaf Ushed in 1783 PAYM SHOWMAKER BUDAMO 717-234-7730 240 N.THutD STRzw,9TH FWOR gstewart@mwie.com www.rawle.com HARRrjew O,PA 17101 Bmm A.McCALL TMM410NE:(717)234-7700 717-234-7700 FACMM":(717)234-7710 bmccall@rawle.com January 10,2013 Robert L. Goodman,Esquire Foray Ullman One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem,PA 19018 Re: Advantage Loss Services v. Kevin Lenzo Docket No.: 2011-9332 (Cumberland Co. C.C.P) Our Ek No. 2ak95 Dear Mr. Goodman: In response to your missive of January 7, 2013,the deposition of Mr. Horne will not go forward on February 26,2013 in your office despite your unilateral suggestion that it will. First, I do not honor unilateral scheduling of depositions. Second, the reason you have not heard back from me is because I am waiting for a response from my client. I informed your secretary of this fact only days ago. Considering she knew I was waiting for my client, it goes without saying that your letter is not only premature but apparently sent for an improper purpose to either bill your file or harass myself and my client. Either is unacceptable and lack the candor expected between veteran counsel as ourselves as well as under our rules of ethics. Third, please refer to my December 14, 2012 letter. I enclose another copy of it for your convenience. Since you did not have the decency nor the professional courtesy to address the points in that letter, perhaps we should attempt to work out the logistics and disagreement on my client's deposition before you take it upon yourself to attempt to continue to dictate this case to your whim. Despite your behavior, in the spirit of compromise and pursuant to your request, I have enclosed case law regarding out-of-state depositions of corporate parties. If you disagree with our position, then I suggest you file a Motion to Compel Mr. Home's deposition. However, he will not being coming to your office in Bethlehem without a Court Order. If Mr. Horne does come to 6114095.1 PHRADETPHIO' PA PITTSBURGH,PA HARRISBURG,PA MEDIA,PA MARLTON,NJ NEW YORK,NY WILMINGTON,DE WHEELING,WV RAWLE &.HEN DER SQN LLP January 10, 2013 Page 2 Pennsylvania pursuant to Court Order, he will either be produced in our office, or he will be made available in the forum county of Cumberland. Of course, my other previously suggested alternative remains that you pay for the entirety of my client's travel, lodging, and meal expenses for your demanded personal appearance. Sadly, you also ignored that suggested compromise. Conversely, with respect to your position, if you have anv authority whatsoever that an out-of- state corporate party must attend a deposition in a party's law office which is more than 100 miles from the venue courthouse, please provide it immediately. Also, be aware that if you proceed with a Motion without any actual authority, we will seek costs and sanctions against you for frivolous motion practice. Please be guided accordingly. Sincerely yours, RAWLE& HENDERSON LLP By: Gary N. Stewart Brian A. McCall GNSBAM Enclosures 6174095-1 EXHIBIT "F " lomlo-1 RAWLE &,HEN DER SQNLLP R GARY N.STEWART 717-234-7730 The Nation's Oldest Lew Office•Established in 1783 PAYNE SHOEMAUR Bummo gumarl@rawle.com 240 N.1 H=ft=T,9TH FLOOR www.nwlsi.com HARRSBURO,PA 17101 BRIAN A.MCCAU. 7'PAAPHOHE:(717)234-7700 717-234-7700 FAcsnwnE:(717)234-7710 bmccaH@mwk.com January 23, 2013 Robert L. Goodman, Esquire Forry Ullman One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem, PA 19018 Re: Advantage Less Services v. Kevin Lenzo Docket No.: 2011-9332 (Cumberland Co.C.C.P) Our Me No: 250695 Dear Mr. Goodman: In response to your January 2, 2013 letter, be advised that Richard Horne will be produced and available for a telephone deposition on February 18, 2013. We presume that you will be making arrangements for the court reporter and telephone conference. We will provide respective contact numbers for the telephone conference before the deposition. Sincerely yours, RAWLE& HENDERSON LLP By: Gary N. Stewart Brian A. McCall GNSBAM 6166964-1 PIRLADELPHIA,PA PITTSBURGH,PA HARRISBURG,PA MEDI&PA MARLTON,NJ NEW YORK,NY WILAWTON,OE WHEELING,WV EXHIBIT " G" lomio-I RAIN LE &HEN DER SQN LLP k L•w e'er o 9 GARY N.SmwAn PAYNE SHOEMAKER BUILDING 717-234-7730 The Nation's Oldest Law Office•Established in 1783 240 N.THIRD 9rREer,9TH FLOOR getewart@rawle.com www.rawl*.tom HARRI88URO,PA 17101 BRIAN A.MCCALL TELmom(717)234-7700 717-234-7700 FAcstmim(717)234-7710 bmccaH@rawle.com February 11, 2013 VIA FACSIMILE Robert L. Goodman, Esquire Forry Ullman One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem, PA 19018 Re: Advantage Loss Services v. Kevin Lenzo Docket No.: 2011-9332 (Cumberland Co. C.C.P) Our Fib No: 250695 Dear Mr. Goodman: On January 23, 2013, we advised that Richard Horne was available for a telephone deposition on February 18, 2013 in accordance with a date you selected. It is now a week before that date and we still have not heard from you nor have we received any notice of deposition. Please be advised that since we did not hear from you, we will be removing this reserved date from our calendar in order to accommodate other matters. Of course, we welcome any additional dates you may propose for Mr. Home's deposition and will attempt to coordinate his availability with your own. We look forward to hearing from you. Sincerely yours, RAWLE & HENDERSON LLP By: Gary N. Stewart Brian A. McCall GNSBAM 6221588-I PHILADELPHIA,PA PITTSBURGH,PA HARRISBURG,PA MEDIA,PA MARLTON,NJ NEW YORK,NY WILMINGTON,DE WHEELING,WV E. XHIBIT H 1088010-1 7 95 One Bethlehem Plaza i Broad&New Sts.:suite 400 1 Bethlehem PA 18018 ?H 610.332.3400 G rx 610.332.3401 ForrylUllm.an ROBERT L.GOODMAN Attorneys at Law DTREC'I'DIAL:610-954-6864 E-MAIL:rgoodman@farryuUman.com February 14,2013 BY FAX AND MAIL 717-234-7710 Brian A. McCall, Esquire RAWLE&HENDERSON, LLP Payne Shoemaker Building 240 N.Third Street, 9a'Floor Harrisburg, PA 17101 RE: Advantage Loss Services,et al. v. Kevin Lenzo Docket#: 2011-9332(Cumberland) Our File#: 601972 Dear Mr. McCall: Thank you for your fax about a telephone deposition of Mr. Horne on February 18,2013. Sadly,having not heard from you regarding the February 18,2013 date,the alternate date of February 25,2013 was selected. I refer you to my letter of January 7,2013. I understood from your,email of January 7,2013 and letter of January 10,2013 that you were objecting to our unilateral scheduling Mr. Home's deposition and rejecting the date of February 26 [sic] for Mr. Home's deposition. Following that, it appears that you indicated that you would make Mr. Home available for a telephone deposition on February 18,2013. As February 18th was not available on my calendar,no formal notice for Mr. Home's deposition was issued. Further,a telephone deposition of Mr. Horne is not acceptable. Having reviewed the caselaw provided with your letter of January 100, I am not persuaded that,as a Plaintiff in this case and the one who has chosen the forum,Mr. Horne can now claim that it is unreasonably burdensome for him to appear in that forum for a deposition in support of his claims. In the two cases you provided,the objecting parties were both out of state/country Defendants,not plaintiffs. I have been authorized to proceed with a formal Motion to Compel Mr. Home's in person deposition and will seek his deposition in Cumberland County, your office in Harrisburg or our office in Reading. Please consider my January 7,2013 Notice of Deposition as withdrawn. As it happens,I am presently attached for trial in Bucks County and am no longer available for a deposition on February 25,2013. King of Prussia - Reading - Bethlehem - Scranton www.forryullman.com :r _ r T In an effort to move this matter forward, we understand that Mr. Lenzo is available for depositions on Tuesday, March 19, 2013, Wednesday, March 20,2013, Wednesday,March 27, 2013,and Thursday,March 28, 2013. We would be agreeable to scheduling his deposition in either in Cumberland County or in your office. Please coordinate his deposition with my Legal Assistant, Bonnie. With regard to the Plaintiffs' interest in a potential resolution of the lawsuit, I believe that my client would be willing to offer several thousand dollars in addition to the$10,000.00 available under his Progressive auto policy to settle the case. If a settlement can be arranged in that neighborhood,please advise me so that I can firm up a number and make a formal proposal. I look forward to your reply. I ly your ROBERT L. GOODMAN, ESQUIRE. RLG:rg EXHIBIT I 1088010-1 RAv; LE & HEN DER SQIvLLP %" v (LARY N.ST WART PAYm sHOmAm B=Dmo 717-234-7730 The Natioda Oldest Law Office-EsWsW in 1783 240 N.THtxD s7'RBET,9TH FLOOR gatewaro@imwte.com www.rawb.com HARR18BURO,PA 17101 Bmm A.McCat.4 Trtuwwm6:(717)2347700 717-234-7700 FACNMX:(717)234-7710 bmccaU@rawle.com February 28,2013 Robert L. Goodman,Esquire Forry Ullman One Bethlehem Plaza, Suite 400 Broad do New Streets Bethlehem,PA 19018 Re: Advantage Loss Services v.Kevin Lenzo Docket No.: 2011-9332 (Cumberland Co. C.C.P) Our F*No: 2595 Dear Mr. Goodman: We offer the following in response to your letter of February 14,2013. First, it was your office in a letter that proposed February 18, 2013 for Mr. Horne's deposition, not mine. Please refer to your January 2, 2013 letter to my office. You then unilaterally scheduled Mr. Home's deposition five(5)days later on January 7, 2013 when I already informed your office that I was checking on Mr. Home's availability. As a courtesy, we held the February 18th date open for you for weeks without response. We never received any notification that you were no longer available on that date nor a proposal of alternative dates. As for Mr. Lento's deposition, I am not available on the four (4) dates you have suggested as I will be in North Carolina for a mediation on March 19th and 2& and have depositions already scheduled for March 27th and 28th. Please provide me with some additional dates and we can coordinate a mutually convenient time and place. Next, I have received your Motion to Compel Mr. Home's deposition in person. As we previously advised, we do not concur. So there is no misunderstanding, I refer you to my January 10, 2013 letter where I provided you case law in support of our position. We also offered Mr. Horne for a telephone deposition as well as a video deposition through either videoconferencing services or Skype. In that letter, I also requested you provide me with any authority whatsoever for your position that an out-of-state corporate party must attend a an in- person deposition in a party's law office which is more than 100 miles from the venue courthouse. From our review of your motion, you failed to provide even one case that supports 6277754-1 PHILADELPHIA,PA PITTSBURGH,PA HARRISBURG,PA MEDIA,PA MARLTON,NJ NEW YORK,NY WILMINGTON,DE WHEELING,WV a r° RAWLE & HENDERSQIN; L L P February 28, 2013 Page 2 any proposition that Mr. Home must incur needless litigation expenses in traveling to an in- person deposition where technologically accepted and feasible alternatives are readily available and widely accepted in our Pennsylvania state and federal courts. It is clear that your Motion is being filed in bad faith, is frivolous, without legal authority or support, and its sole purpose is to harass my client and needlessly increase litigation expenses. You were put on notice that I would be seeking sanctions against you if you proceeded with frivolous motion practice. I will be seeking all costs associated with our response and appearance as well as requesting sanctions against you and your client to whatever extent the Court deems appropriate. Last, I note your client's willingness to make a settlement offer for"several thousand dollars in addition"to the policy limits. If that is the case, have them make an actual, formal offer which is something I have been requesting since this lawsuits inception. Sincerely yours, RAWLE& HENDERSON LLP By: Crary N. Stewart Brian A. McCall GNSIBAM 6x77754-1 CERTIFICATE OF SERVICE On this day, a true and correct copy of the foregoing document was served upon the following and in the manner indicated below. Service by United States, First-Class Mail,postage prepaid, addressed as follows: Robert L. Goodman, Esquire Forry Ullman One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem, PA 19018 *RAWLE -NDE ON,LLP BY: al re 0 bmccallarawle.com Payne Shoemaker Building 240 N. Third Street, 9" Floor Harrisburg, Pennsylvania 17101 (717)234-7700/(717) 234-7710—Fax Our File No.: 250695 Date: 3.ZZ•13 6328884-1 IH 70113 APR - I AM 9. 1 ADVANTAGE LOSS SER R A N 0 CC u,�d COURT OF COMMON PLEAS OF as subrogee for DART TRANS I�dN SYLVAN(A CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION-LAW Plaintiffs V. DOCKET#: 2011-9332 Civil KEVIN LENZO, Defendant DEFENDANT'S RESPONSE TO PLAINTIFF'S CRt? 5r-MC3'LZON FM PROTWTIYE ORDER Arm MOTION FOR SANNMONS AND NOW COMES,Defendant KEVIN LENZO,by and through his counsel of record, and files the Defendant's Answer to the correspondingly numbered Paragraphs of Plaintiffs ADVANTAGE LOSS SERVICES,AS SUBROGREE FOR DART TRANSIT COMPANY AND RCB ENTERPRISES' Cross Motion for a Protective Order as well as Costs,Attorney's Fees and Sanctions,and avers as follows: PLAINTIl+W CROSS MOTION FOR A PROTEMWE QRDER 15. Defendant incorporates by reference the Paragraphs of his Motion to Compel Plaintiff's Representative's In Person Attendance at a Deposition as if the same were set forth herein at length. 16. Admitted. 17. Admitted. 18. Pa.R.C.P.4017.1 speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. Defendant notes,however that,while Rule 4017.1 permits the taking of video deposition upon oral examination as a matter of course,it does not mandate such a procedure either for in state or out of state parties. Page 1 of 10 19. Pa.R.C.P.4020 and subparts(ax3)speak for themselves and no response is required to this assertion under the Rule of Civil Procedure. Defendant notes that while this Rule permits the use of a deposition at trial,including the deposition of a party and witnesses who may be located at a distance greater than 100 miles from the place of trial,it may only be done upon court approval and is to be used against any party who was present or represented at the taking of the deposition. 20. Denied. Defendant cannot say that there would be absolutely no portion of Plaintiffs'representative's deposition that would require their personal attendance or that Plaintiffs'representative's deposition could be completed by either telephone or video confeerencing. On the contrary,as most of Plaintiffs written discovery responses,including Responses to Request for Production of Documents,contained General Objections and specific objections to 64 of 69 Interrogatories and General Objections and specific objections to 33 of 34 Requests for Production of Documents,Defendant is uncertain whether a sharing or close examination of documents will be possible with a telephone or video conference deposition. 21. Denied On the contrary,Defendant's counsel has stated a preference for the in person deposition of the Plaintiff` representative so as to be able to best judge and to determine the ultimate credibility of the party and that a deposition conducted by telephone will prejudice the Defendant in making a credibility determination of the Plaintiffs representative. 22. Denied After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of the averments or assertions of 22 and the same are therefore denied with proof thereof requested. Page 2 of 10 23. Denied On the contrary,the cases identified by Plaintiffs were not on point and did not illustrate an established precedent involving an out-of-state corporate representative who was the Plaintiff choosing the forum for its lawsuit. 24. Admitted. 25. Denied On the contrary,Defendant has referenced the language contained in Pa.R.C.P.4407.1 which,by implication references an in-person deposition with inclusion of the language"A party to be deposed shall be required to appear without subpoena" 26. Denied. The Court's decision and reasoning contained in Davis v.Pennzoil Co. 1965 Pa.Dist.&Cnty.Dec.LEX1S 96;38 Pa.D.&C.2d 289(Allegheny, 1965)speaks for itself and no response is required under the Civil Rules. Defendant notes,however,that in arriving at its decision that circumstances in that case required reimbursement of Plaintiffs expenses,the Court placed great significance on the fact that Plaintiff was being asked to travel not only a distance in excess of 100 miles but was asked to travel from one country to another to appear for a deposition. 27. Denied. The averments contained in Paragraph 27 of Plaintiffs'Motion constitute conclusions of law to which no responsive pleading is required. 28. Pa.R.C.P.4012 speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. 29. Denied. On the contrary,in the past the Plaintiff chose the Court of Common Pleas of Cumberland County as the forum for its claims against the Defendant and presumably does business within Cumberland County. Defendant presumes that those occasions did not Page 3 of 10 cause the Plaintiff to be unreasonably annoyed,embarrassed,oppressed,burdened or suffer expense. 30. Denied. On the contrary,in the past the Plaintiff chose the Court of Common Pleas of Cumberland County as the forum for its claims against the Defendant and presumably does business within Cumberland County. Defendant presumes that those occasions did not cause the Plaintiff to be unreasonably annoyed,embarrassed,oppressed,burdened or suffer expense. 31. Denied. On the contrary,a video deposition would not provide the Defendant with the best opportunity judge and to determine the ultimate credibility of the party and could prejudice the Defendant in making a credibility determination of the Plaintiff's representative. 32. Denied. The averments contained in Paragraph 32 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,it is specifically denied that a protective order is warranted or that Plaintiffs'representative would incur needless expenses. 33. Denied. The averments contained in Paragraph 33 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,it is specifically denied that a protective order is warranted under the circumstances cited by the Plaintiff. By way of further response,if required,it would not be reasonable to impose upon the Defendant the burden and expense of the Plaintiffs owner's appearance for a deposition in the forum which Plaintiff has chosen and in which the Plaintiff doers business. Defendant further suggests that it is also unfair and unreasonable to prejudice the Defendant by denying him an in- Page 4 of 10 person deposition of the Plaintiff's owner and driver to obtain information and personally observe and assess the Plaintiffs representatives' demeanor,veracity and huddalness. WHEREFORE,Defendant KEVIN LENZO respectfully requests that Defendant's Motion compelling the in-person deposition of Plaintiffs"representatives be granted and that this Honorable Court decline to issue a Protective Order prohibiting Plaintiffs'attendance at a deposition in this Commonwealth,deny Plaintiffs' request for costs and sanctions as Defendant's Motion is neither frivolous or legally vacuous,and decline to require Defendant to pay all costs, travel expenses,attorneys fees,and related travel expenses and fees,including meals and lodging to Plaintiffs'representative associated with Defendant's demand for an in person deposition. PI.Anvc 'CROSS MOMN FOR SANMOxs 34. Defendant incorporates by reference the Paragraphs of his Motion to Compel Plaintiff s Representative's In Person Attendance at a Deposition along with the Responses contained in Paragraphs 15 through 33 above,as if the same were set forth herein at length. 35. Denied The averments contained in Paragraph 35 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required.,it is specifically denied that Defendant's Motion to Compel violates either Pennsylvania precedent or the Pennsylvania Rules of Civil Procedure. On the contrary,Defendant's Motion to Compel does not violate either Pennsylvania precedent or the Pennsylvania Rules of Civil Procedure, 36. Pa.R.C.P.4011 speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. 37. Pa.R.C.P.4019(cx5)speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. In the event that an answer is deemed required,Defendant Page 5 of 10 specifically denies that Defendant has failed to make discovery as is just under the Civil Rules simply because Plaintiffs do not agree with it. 38. Denied The averments contained in Paragraph 38 constitute conclusions of law to which no responsive pleading is required In the event that an answer is deemed required,it is specifically denied that Defendant`s Motion is also frivolous and flied for improper purpose or "otherwise"in bad faith. On the contrary,Defendant's Motion has merit,was filed for a legitimate legal purpose and in good faith. 39. Pa.R.C.P. 1023.1 speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. 40. 42 Pa.C.S.2503 speaks for itself and no response is required to this assertion under the Rule of Civil Procedure. In the event that an answer is deemed required,42 Pa.C.S. 2503 is not applicable to the instant matter and issue before the Court as the Defendant's conduct has not been either dilatory,obdurate,vexatious,or in bad faith. 41. Denied The averments contained in Paragraph 41 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required, Defendant disagrees with Plaintiffs'counsel's position that Defendant's Motion violates Pa.R.C.P.4011(a)or(b),as,for the reasons contained in the Defendant's Motion and Brief,it was neither sought in bad faith or would cause the Plaintiffs'representative an unreasonable annoyance,embarrassment,oppression,burden or expense. 42. Denied. The averments contained in Paragraph 42 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required, Defendant's desire and request for an in person deposition of the Plaintiffs'representative and Page 6 of 10 failure to accommodate the Plaintiff who does business in the Commonwealth and who has elected to file suit in Cumberland County with a deposition by telephone or videoconference does not violate the Pennsylvania Rules of Civil Procedure or precedent set by Pennsylvania Commonwealth Courts and is in no way unjust under 4019(cx5). 43. Denied The averments contained in Paragraph 43 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required, Defendant's desire and request by Motion for an in person deposition of the Plaintiffs' representative who does business in the Commonwealth and who has elected to file suit in Cumberland County is not a needless litigation expense,is not inexcusable or a violation of Rule 1023.1(c)(2). 44. Denied. The averments contained in Paragraph 44 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required, Defendant's Motion does not lacks any authority whatsoever,is not devoid of legal or procedural support to maintain Defendant's demand that Plaintiffs representative attend an in-person deposition,and is not a violation of Rule 1023.1{c)(2). On the contrary,Defendant's Motion contains ample authority along with legal and procedural support to maintain Defendant's demand that Plaintiffs representative attend an in-person deposition and Defendant incorporates by reference his Brief in support of his Motion by reference. 45. Denied. The averments contained in Paragraph 45 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required, Defense counsel's assertions regarding the need for an in-person deposition of the Plaintiffs' representative to assess credibility are neither disingenuous nor lacking in evidentiary support Page 7 of 10 nor are such assertions a violation of Rule 1023.1(c)(3)and(4). Defendant also denies that a videoconference deposition would equally suffice as a substitute for an in-person deposition of the Plaintiffs'representative. 46. Denied The averments contained in Paragraph 46 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,it is denied that the cases cited by Plaintiffs counsel before the filing of Defendant's Motion are adequately on point with the case at bar for the reasons stated in the Defendant's Brief in support of his Motion. It is finther denied that Defendant's disagreement with Plaintiffs regarding interpretation of either the Rules or Pennsylvania caselaw is,by its very nature,either disturbing, clearly frivolous or sanctionable. 47. Denied. The averments contained in Paragraph 47 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,it is expressly denied that Defendant's Motion is either patently frivolous and/or filed in bad faith. Defendant incorporates by reference the reasons contained in his Motion to Compel and Brief in Support thereof by reference and states fiirther: 1) Defendant has offered reference to the Pa.R.C.P.that requires an out of state party to attend in person deposition; 2) The case law offered by the Defendant does not actually supports Plaintiffs'position,it supports Defendant's position; 3) The entirety of arguments raised by Defendant's counsel were not identical arguments already rejected by our Pennsylvania Courts in cases involving an out of state Plaintiff bringing suit within the Commonwealth; 4) It is denied that equally effective and technologically feasible alternatives to an in-person deposition have been offered or rejected without justifiable excuse or explanation;and 5) The position of Defendant's insurer regarding any settlement is irrelevant to the matter at hand. Page 8 of 10 48. Denied The averments contained in Paragraph 48 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,the Defendant's Motion was not filed to harass the Plaintiffs or for the purpose of forcing the Plaintiffs to incur unnecessary and burdensome costs and expenses. It is further denied that Defendant's request for the Court to compel an in-person deposition of the Plaintiffs' representative either violates the Pennsylvania Rules of Civil Procedure or would justify eiteer punishment or sanctions. 49. Denied. The averments contained in Paragraph 49 constitute conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,it is specifically denied that Defendant's filing a motion requesting the Court to compel an in-person deposition of the Plaintiffs'representative was done in bad faith or constitutes either vexatious and/or dilatory conduct or warrants the imposition of counsel fees. WHEREFORE,Defendant KEVIN LENZO respectfully requests that Defendant's Motion compelling the in-person deposition of Plaintiffs'representatives be granted and that this Honorable Court decline to issue a Protective Order prohibiting Plaintiffs'attendance at a deposition in this Commonwealth;deny Plaintiffs'request for costs and sanctions as Defendant's Motion is neither frivolous or legally vacuous;and decline to require Defendant to pay all costs, travel expenses,attorneys fees,and related travel expenses and fees,including meals and lodging to Plaintiffs'representative associated with Defendant's demand for an in person deposition. Page 9 of 10 PLAM FF'S REOUEST FOR RELEF 50. Denied The averments contained in Paragraph 50 constitute a Prayer for Relief and conclusions of law to which no responsive pleading is required. In the event that an answer is deemed required,Defendant requests that: I. This Honorable Court dismiss Plaintiffs' request for a Protective Order. 2. This Honorable Court require the in-person attendance of Plaintiffs' representative at Plaintiffs' own expense. 3. This Honorable Court reject Plaintiffs'request for sanctions as the Defendant's Motion to Compel an in-person deposition of a Party Plaintiff is not a frivolous motion practice. Respectfully submitted, :FOR;RYl MAN By: ROBERT L. GOODMAN,ESQUIRE I.D.#39795 One Bethlehem Plaza, Suite 400 Broad&New Streets Bethlehem,PA 18018 610-332-3400 Attorneys for Defendant KEVIN LENZO Date: March 31,2013 Page 10 of 10 ADVANTAGE LOSS SERVICES, COURT OF COMMON PLEAS OF as subrogee for DART TRANSIT CUMBERLAND COUNTY COMPANY and RCH ENTERPRISES, CIVIL ACTION- LAW Plaintiffs V. DOCKET#: 2011-9332 Civil KEVIN LENZO, Defendant CERTIFICATE OF SERVICE I,Robert L.Goodman,Esquire,hereby certify that a copy of the Defendant's Response to Plaintiffs Cross-Motion for Protective Order and Motion for Sanctions was served upon counsel of record on the date below by hand delivery to the following counsel of record: Brian A.McCall,Esquire RAWLE&HENDERSON,LLP Payne Shoemaker Building 240 N. Third Street, 9h Floor Harrisburg,PA 17101 FORK LMAN By: ROBERT L. GOODMAN,ESQUIRE I.D. #39795 One Bethlehem Plaza, Suite 400 Broad dt New Streets Bethlehem,PA 18018 610-332-3400 Attorneys for Defendant KEVIN LENZO Date: Apri11.2013 ADVANTAGE LOSS SERVICES, : IN THE COURT OF COMMON PLEAS OF As subrogee for DART TRANSIT : CUMBERLAND COUNTY, PENNSYLVANIA COMPANY& RCH ENTERPRISES, Plaintiff V. KEVIN LENZO, NO. 2011 —9332 CIVIL TERM Defendant ORDER OF COURT AND NOW,this 3RD day of APRIL, 2013, after hearing argument by Defendant's counsel we are satisfied that there are compelling reasons to allow Defendant to take the in person deposition of Plaintiff RCH ENTERPRISES' representative. It is hereby ordered and directed as follows: 1.) Plaintiff RCH ENTERPRISES' Representative Richard Home shall appear for a deposition in Cumberland County Pennsylvania at a location to be chosen by Defendant's counsel and at a time to be mutually agreed upon not to exceed 90 days from the date of this order. 2.) Plaintiff RCH ENTERPRISES' Motion for a Protective Order and for Sanctions is DENIED. By the Cn Z�; :Z! -3- —1 1 Edward E. Guido W Ti Robert L. Goodman,Esquire One Bethlehem Plaza, Suite 400 .C� Broad&New Streets ' Z CD Bethlehem,Pa. 18018 Brian A. McCall, Esquire 240 North Third Street,9TH Floor Harrisburg, Pa. 17101 :sld M ADVANTAGE,LOSS SERVICES„ COURT OF COM1V1(ON PLEAS OF ,as,,subrogee for DART TRANS°IT CUMBERLAND.COUNTY COMPANYand.RCH ENTERPRISES, CIVIL ACTION LAW Plaintiffs V. DOCKET:#: 2011=9332 Civilro „t . c::) �,� I . KEVIN LENZO; ,:r- Defendant C JAW i l�c'i • l° `: _ORDER T..O`SETTLE DISCOIYTIN:UE n&.END ....: � CD,,' TO THE PROTHONOTARY: - Kindlymark the;above.captioned.matter.settled, discontinued and ended,with prejudice: :J3,;*A A. ` Cal1.,Es. ire &HENDERS'ON LLP Payne Shoemaker:Build iig: 24Q N. Third Street,9 ',Floor Harrisburg;PA 171-o1