HomeMy WebLinkAbout04-4806IN RE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
EDWARD L. FOX, EFFOX, INC., an Ohio )
Corporation, and ROYAL & SUNALLIANCE )
INSURANCE COMPANY, as subrogee of )
EFFOX, INC., )
: Plaintiffs, )
)
v. )
HINSON ROOFING AND SHEET METAL, INC., )
an Ohio Corporation, )
)
Defendant. )
MISC. No. 0 '/- '/f'O 6,
PETITION TO ISSUE SUBPOENAS
NOW COMES Plaintiffs Edward L. Fox, Effox, Inc., and Sunalliance Insurance
Company ("Petitioners,") by counsel, and request this Court to issue subpoenas and
subpoenas duces tecum to Carlisle SynTec, Incorporated. In support of its Petition and
pursuant to 42 PA C.S.A. §5326, Petitioners state as follows:
1. Petitioners in the above-referenced action are Plaintiffs in a similarly
captioned matter in the Court of Common Pleas of Butler County, Ohio.
2. Respondent Hinson Roofing and Sheet Metal, Inc. is Defendant in a
similarly captioned matter in the Court of Common Pleas of Butler County, Ohio.
3. Petitioners have initiated a civil action against Respondent in the Court of
Common Pleas of Butler County, Ohio.
4. Carlisle SynTec Incorporated, a resident of Cumberland County,
Pennsylvania has been found to have information and possession of documents which are
crucial in ascertaining the underlying facts and liability of the Butler County, Ohio
matter.
Attached as Exhibit A is an Order Granting Issuance of a Commission
from the Butler County, Ohio Court of Common Pleas authorizing the issuance of
subpoenas to non-resident, non-party witnesses.
For the aforementioned reasons, and pursuant to 42 PA C.S.A. {}5326, Petitioners
pray this Honorable Court to issue an Order, approving the commission issued by the
Court of Common Pleas of Butler County, Ohio and the deposition and deposition duces
tecum be taken of Carlisle SynTec Incorporated.
Date:
D~M, ORE. & SHOHL,
Scott ~n
PA. I.D. No.: 88916
330 Grant Street
Suite 2415
Pittsburgh, PA 15219
(412) 281-5000 (telephone)
LLP,
Counsel for Petitioners
OF COUNSEL:
Gary E. Becker, not admitted in PA (OH#: 0012716)
Jessica S. Hylander, not admitted in PA (OH# 0077030)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
EDWARD L. FOX, et al.,
Plaintiffs,
IN THE COURT OF COMMON PLEAS
BULTER COUNTY, OHIO
Case No.: CV-200304134
Judge Patricia Oney
H1NSON ROOFING AND SHEET : ORDER GRANTING ISSUANCE OF A
METAL, 1NC., : COMMISSION
:
Defendant. :
Plaintiffs Edward L. Fox, EFFOX Inc. and ROYAL & SUNALLIANCE Insurance
Company having moved this Court for an Order directing the Clerk to issue a commission to take
the depositions upon oral examination of material and necessary non-party witnesses residing
outside of the State of Ohio,
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Clerk of this
Court shall issue the necessary commissions, directed to court reporters authorized to administer
oaths, to take the deposition upon oral examination of the Carlisle SynTech Inc. designees
outside the State of Ohio. The depositions shall take place at the places, dates, and times set
forth on the attachment unless othorwise agreed, and shall continue day to day thereafter until
completed.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the issuance of said
commissions shall authorize and empower the Plaintiffs to secure from the appropriate judicial
authority of the jurisdictions in which the depositions are to be taken the issuance of subpoenas
to compel the attendance of the deponents at the examinations and to compel the production of
documents listed on the subpoena rider attached thereto.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
SEP 4 z O4
IN RE:
EDWARD L. FOX, EFFOX, INC., an Ohio
Corporation, and ROYAL & SUNALLIANCE
INSURANCE COMPANY, as subrogee of
EFFOX, 1NC., Plaintiffs,
HINSON ROOFING AND SHEET METAL, INC.,
an Ohio Corporation,
Defendant.
MISC. No. ~
ORDER OF COURT
C.S.A. §5326, it is
Pursuant to Plaintiff,' Petition to Issue Subpoenas and 42 PA
hereby ordered that the Order Granting Issuance of a Commission by the Court of
Common Pleas, Butler County, Ohio is approved. Additionally, it is further ordered that
subpoenas and subpoenas duces tecum be issued to Carlisle SynTec Incorporated.
DATE:
EDWARD L. FOX, EFFOX, INC., :
an Ohio Corporation, and ROYAL :
& SUNALLIANCE INSURANCE :
COMPANY, as subrogee of :
EFFOX, INC., :
Plaintiffs
HINSON ROOFING AND SHEET
METAL, INC., an Ohio
Corporation,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-4806 CIVIL TERM
MOTION OF CARLISLE SYNTEC INCORPORATED
TO OUASH SUBPOENA PURSUANT TO Pa R.C.P. 234.4 (b)
NOW, comes Carlisle SynTec Incorporated ("Carlisle"), by and through its attorneys and
files the within Motion to Quash Subpoena and, in support thereof, sets forth the following:
1. Carlisle SynTec Incorporated is a Delaware corporation with its principal place of
business located at 1285 Rimer Highway, Carlisle, Cumberland County, Pennsylvania.
2. On Friday, October 29, 2004 in the afternoon, the documents attached hereto as
Exhibit "A", all of which are incorporated by reference, were served upon Carlisle at its offices
in Carlisle, Pennsylvania.
3. This Court, by Order dated September 29, 2004, ordered that subpoenas and
subpoenas duces tecum be issued to Carlisle SynTec Incorporated.
4. The Subpoena to Produce Documents or Things for Discovery Pursuant to Rule
4009.22 as attached hereto was not signed by the Prothonotary of Cumberland County.
5. The Subpoena to Produce Document or Things for Discovery Pursuant to Rule
4009.22 ("Subpoena to Produce") as attached hereto includes a handwritten date for production
of November 3, 2004 over an interlineated date of October 13, 2004.
The handwritten date provides Carlisle with three (3) days to comply with the
o
subpoena.
7.
Pa R.C.P. 4009.23 provides for a period of twenty (20) days to comply with a
subpoena duces tecum.
8. Pa R.C.P. 4009.23 requires the party serving a subpoena duces tecum to provide a
Certificate of Compliance with the subpoena in the form set forth at Pa R.C.P. 4009.27.
No certificate of Compliance was provided with the subpoena duces tecum
o
served.
10. Pursuant to Pa R.C.P. 234.4 (b), a person served a subpoena may, on motion, seek
to quash the subpoena.
11. Pursuant to Pa R.C.P. 234.4 (b), the Court may make an order to protect party,
witness or other person from unreasonable annoyance, embarrassment, oppression, burden or
expense.
12. The Deposition Subpoena attached requests Carlisle to produce for deposition
individuals who may respond to twelve (12) separate categories of inquiry. All of said
individuals are directed to appear in Pittsburgh, Pennsylvania on November 9, 2004.
13. It is an unreasonable burden and expense to require Carlisle to produce
individuals for deposition in Pittsburgh, Pennsylvania.
14. The Deposition Subpoena attached has a typewritten date of October 14, 2004.
This date has been interlineated and a handwritten date of November 9, 2004 is written above.
15. The Subpoena to Produce includes at paragraph 6, a request to produce any and all
communications between Carlisle and Hinson Roofing and Sheet Metal, Inc. Hinson Roofing
and Sheet Metal, Inc. has been a purchaser of Carlisle roofing products since December 28, 1995.
It would be an extraordinary expense and burden upon Carlisle to attempt to determine any and
all communications Carlisle employees may have had with Hinson Roofing and Sheet Metal, Inc.
since Hinson Roofing became a purchaser of Carlisle roofing products.
16. The Subpoena to Produce includes at paragraph 3 a request to produce any and all
"training materials" for the application of membrane roofs. Carlisle has been in the business of
manufacturing and selling membrane roofing for over forty (40) years and has conducted training
for roofing applicators for at least the last twenty-four (24) years. It would be an extraordinary
expense and burden upon Carlisle to attempt to comply with this request.
17. The Subpoena to Produce, taken in totality, would place an extraordinary expense
and burden upon Carlisle to comply as it is presently drafted.
18. The Deposition Subpoena, taken in totality, would place an extraordinary expense
and burden upon Carlisle to comply as it is presently drafted.
WHEREFORE, Carlisle SynTec Incorporated respectfully requests this Court to quash
the Subpoena to Produce and Deposition Subpoena, alternatively, Carlisle SynTec Incorporated
requests the Subpoena to Produce and Deposition Subpoena be modified so as to avoid
unreasonable annoyance, embarrassment, oppression, burden or expense.
Respectfully submitted, ~
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for
Carlisle SynTec Incorporated
dab.dir/litigation/carl.syn/fox/quash, mot
VERIFICATION
The statements in the foregoing Motion Of Carlisle SynTec Incorporated To Quash
Subpoena Pursuant To Pa.R.C.P. 234.4 (b) are based upon information which has been assembled
by my attorney in this litigation. The language of the statements is not my own. I have read the
statements; and to the extent that they are based upon information which I have given to my counsel,
they are true and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom
falsifications to authorities.
Carlisle SynTec Incorporated
11/01/200'4 11:§2
FAX 717 245 7133
SYNTEC LEGAL
~ BARIC,Dave
THE COURT OF COMMON PLEAS OF
CLr!VlBE~ COUNTY, PENNSYLVANIA
~]002
.EDWARD L. Fox, EFFOX, INC., an Ohio )
CorpOration, and ROYAL & SUNALLIANCE )
INSUP,.ANCE COMPANY, as subrogee of )
EFFOX, INC.,
Plaintiffs,
HiNSON ROOFING AND SHEET METAL, INC.,
an Ohio Corporation,
Defendant.
)
)
)
)
)
)
.)
)
MISC. No.
ORDER OF COURT
Pursuant to Plaintiffs' Petition to Issue Subpoena and 42 PA C.S.A. §5326, it is
her, eby ordered that the Order Grauting Issuance of a ComroAssion by the Court of
Common Pleas, Butler County, Ohio is approved. Additionally, it ia further ordered that
subpoenas and subpoenas duces tecwm be issued to Carlisl~ 9ynTcc Incorporated.
EXHIBIT "A"
FAX 717 245 7133 SYNTEC LEGAL
~ BARIC,Dave
~003
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
~DWARD L FOX, EFFOX, INC., an Ohio )
2orporation, and ROYAL & SUNALLIANCE )
NSURANCE COMPANY, as subrogee of )
{FFOX, INC.,
Plaintiffs,
Vo
-n'NSON ROOFING AND SHEET METAL, INC.,
m Ohio Corporation,
Defendant.
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY
PURSUANT TO RULE 4009.22
TO: Statutory Agent of Carlisle SynTeC, Incorporated
P.O. Box 7000
Carlisle, PA 17013
On Oetob¢~ 13, 2004, you are ordered by the court to produce the Documents
tescribed on Exhibit A, which is attached hereto, at the following location:
Dinsmore & Shohl
The Grant Building
330 Grant Street
Suite 2415
Pittsburgh, PA 15219
You may deliver or mail legible copies of thc documents or produce things
· equested by this subpoena, together wifl~ thc certificate of compliance, 'to the party
naking this request at the address listed above. You have the right to seek in advance the
'easonable cost of preparing the copies or producing the things sought.
11/01/200~ 11:$2 FAX 71T 24~ 7133
$Y.YTEC LEGAL
~ BARIC, Dave
[~004
If you fail to produce the documents or thing~ required by this subpoena on
October 13, 2004, the party serving this subpoena may seek a court order compelling you
to comply with
This subpoena was issued m the request of the following person:
Scott D. Goldman
PA I.D. No. 88916
330 Grant Street
Suite 2415
Pittsburgh, Pennsylvania 15219
(412)
Attorney for Plaintiffs
DATE:
BY THE COURT:
By ....
11/01/2004
11:$2 FAX 717 245 7153 S~TE¢ LEGAL ~ BARIC,Dave
OO5
.EXHIBIT A TO THE SUBPOEN_A ISSUE. I) TO CARLISLE SYNTEC,
INCOPORATED
For purposes of these requests, the following ten'ns, when used herein, shall have
the following meanings:
Documents. This term refers to all writings and record of every type in your possession,
control, or custody, including but not limited to: testimony and exhibits, memoranda,
papers, correspondence, letters, repons (including dr~fts, preliminary, intermediate, and
final reports), surveys, analyses, studies (inclu~ing economic and market studies),
summaries, comparisons, tabulations, books, pamphlets, photographs, maps, bulletins,
minutes, notes, diaries, log sheets, ledgers, transcripts, microfilm, microfiche, computer
data, computer files, "e-mail," computer tapes, computer inputs, computer outputs, and
printouts, vouchers, accounting statements, budgets, workpapers, engineering diagrams
(including "one line" diagrams), mechanical and electrical recordings, telephone and
telegraphic communications, speeches, and all other records, written, electrical,
mechanical, or otherwise, and ckaf~s of any of the above.
l~s term also includes copies of documents when the originals are not in your
possession, custody, or control, and every copy of a document that contains handwritten
or other notations (or does not otherwise duplicate the original), and any other copy, and
any attachments and/or appendices to any document.
You and/or Yours. This term refers to Carlisle sYnTec, Incorporated, thc addressee of
this subpoena.
Requests For Production Of Documents
Please.provide for inspection and copying all of the following Documents in Your
possession, custody, or control:
· 1. any version of the Carlisle SynTech SpecifiCation and Details Manual from
January 1, 1998 to December 31, 2001;
any training records for any current or former employee of Hinson Roofing &
Sheet Metal, Inc., including, without limitation, Son I-Iine~, Keith Wilson, Ed
Hutchinson, LeifEid¢, Vernon Cope, Scott Munninghoff, Pat Richard, Chuck '
Rudicil, Steve Settle, Roger McIntyre, Thomas Morrison, Dustin "Shane" Lane,
Terry Settle, William Sheppard, Jr., William Sheppard, Sr., Tom Smith, and
Dewayne Whitehead.
any syllabus or training materials for any training provided by You, for the use or
application of EPDM membrane on roofs, including any documents, videotapes,
slides and other training media;
11/01/2004
11:52 FAX
717 245 7133
S~TEC LEGAL
~ BARIC,Dave
006
any Documents or other materials pertaining the recommended or proper drain
strainer or drain filt~r to bc used on a Carlisle SynT~c EPDM moil
any contract or other Documents reflecting any agreement between You and
Hinson Roofing ~d Sheet Metal, Inc.;
any c-mail, correspondence, telephone notes, recorded voice messages or other
Documents reflecting any communications between You and Hinson Roofing and
Sheet Metal, Inc.;
any rul~, guidelines, or protocols to bc followed by entities or persons certified
by You to apply Your roofing products, including, without limitation, EPDM
roofing materials;
any manuals or checklists to be followed by inspcc, tors or representatives retained
by You to inspect or certify Carlisle SynTec roofs or to ensure compliance with
Your guidelines or protocols;
any Documents reflecting Your recommendations or requirements relating to roof
drainage, including, without limitation, secondary roof drainage; and
10. any Documents relating or pertaining to thc roof on the building located at 9759
~ Inter Ocean Drive, Cincinnati, Ohio, 45246, and any work performed on that roof.
11/01/2004
11:53 FAX 717 245 7133 SYNTEC LEGAL ~ BARIC,Dave
~ 007
THE COURT OF COMMON PLEAS OF
CUMBEI~AND COUNTY, PENNSYLVANIA
EDWAKD L. FOX, BFFOX, INC., an Ohio )
Corporation, and ROYAL & SUNALLIANCE )
INSURANCE COMPANY, a~ subrogee of )
EFFOX, INC.,
Plaintiffs,
HINSON ROOFING AND SHEET METAL, INC.,
au Ohio Corporation,
Defendant.
MI$C;-No:
DEPOSITION SUBPOENA
TO; Statutory Agent of Carlisle SynTec, Incorporated
P.O. Box 7000
Carlisle, PA 17013
You are ordered by the court to designate a witness to testify on the subjects set
forth on Exhibit A, which is attached hereto, and to have that witness appear for
testimony at 9:30 a.m., on Oetol~r 1~1, 2004, at the following location:
Dinsmore & Shohl
The Grant Building
330 Grant Street
Suite 2415
Pittsburgh, PA 15219
if you fail to appear as required by this subpoena on October 13, 2004, the party
serving this subpoena may seek a court order compelling you to c~mply with it.
This subpoena was issued at the request of the following person:
Scott D. Goldman
PA I.D. No. 88916
330 Grant Street
Suite 2415
1~/01/2004 11:$3 FAX 717 245 7133 S~TEC LEGAL ~ BARIC,Dave ~008
Pittsburgh, Pennsylvania 152
(4~2) 288-58~8
Attorney for Plaintiffs
11/01/2004 11;53 FAS 717 245 7133
S¥.~TEC LEGAL
~ BARIC,Dave
[~009
EXHIBIT A TO THE DEPOSITION SUBPOENA ISSUED
TO. CARLISLE SYNTEC. INCOPORATED
]For purposes of this exhibit, the term You and/or Yours refers to Carlisle SynT¢c,
Incorporated, the addressee ofth/s subpoena.
Subjects of Testimony
The individual or individuals designated by You to testify must be able to testify as to
matters known or available to You on the following subjects:
1. the Carlisle SynTech Specification and Details Manual in effect in April and May,
1998;
2. the training provided by You to any current or former employee of Hinson
Roofing & Sheet Metal, Inc., including, without limitation, ion Hines, Kei~
. Wilson, Ed Hutchinson, Leif Eide, Vernon Cope, Scott Murminghoff, Pat
Richard, Chuck Rndieil, Steve Settle, Roger M¢Intyre, Thomas Morrison,' Dustin
"Shane" Lane, Terry Settle, William Shepparch Jr., William Sheppard, Sr., Tom
Sm/th, and Dewayne Whitehead.
3. the training You prov/de on the use or application of EPDM membrane on roofs;
;4. the recommended or proper drain strainer or drain filter to be used on a Carl_isle
SynTec EPDM roof;
5. any contract or agreement between You and Hinson Roofing and Sheet Metal,
.Inc.;
6. any eortmaunications between You and Hinson Roofing and Sheet Metal, Inc.;
7. any rules, gtlidelines, or protocols to be followed by entities or persons certified
by You to apply Your roofing products, including, without limitation, EPDM
roofing material~;
8. any procedures to be followed by inspectors or representatives retained by You to
inspect or certify Carlisle SynTec roofs or to ensure compliance with Your
guidelines or protocols;
· 9. Your recommendations or requirements relating to roof drainage, including,
without limitation, secondary roof drainage;
10. the building located at 9759 Inter Ocean Drive, Cincinnati, Ohio, 45246,-and any
work performed on that building, including, without limitation, the roof on that
building; and
11/01/2004 11:~3 FA~ 717 245 7133 SY~NTE¢ LEGAL
~ B.~RIC, Dave
~010
11. Your efforts to locate docttmcnts that are respons, ive to the. Document Subpoena
issued to Carlisle Syntec, Inc., in the above-refet,e~efl,.mat~er or that relate to the
subjects listed above. "~; -" · . ·"
~'. .
12. Your knowledge of how the accompanying Subp6e~,a,t..o ,P/'i~d,u.c.o' Documents or
Things for Discovery Pursuant To Rule 4009.22 was ~h~le~'~fl:complied.
CERTIFICATE OF SERVICE
I hereby certify that on November ,~, 2004, I, David A. Baric, Esquire ofO'Brien, Baric
& Scherer, did serve a copy of the Motion Of Carlisle SynTec Incorporated To Quash Subpoena
Pursuant To Pa.R.C.P. 234.4 (b), via facsimile and first class U.S. mail, postage prepaid, to the party
listed below, as follows:
Scott D. Goldman, Esquire
Dinsmore & Shohl
330 Grant Street
Suite 2415
Pittsburgh, Pennsylvania 15219
VIA FACSIMILE: (412) 281-5055
David A. Baric, Esquire
EDWARD L. FOX, EFFOX, INC.,
an Ohio Corporation, and ROYAL
& SUNALLIANCE INSURANCE
COMPANY, as subrogee of
EFFOX, INC.,
Plaintiffs
HINSON ROOFING AND SHEET
METAL, INC., an Ohio
Corporation,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 04-4806 CIVIL TERM
RULE TO SHOW CAUSE
AND NOW, this ~t~x day of ~0 ~ ,2004, upon consideration of
the Motion Of Carlisle SynTec Incorporated To Quash Subpoena Pursuant To Pa.R.C.P. 234.4
(b), a role is issued upon Plaintiffs to show cause, if any there be, why the relief requested in the
Motion should not be granted.
Rule returnable / ~
days from service.
Jo