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HomeMy WebLinkAbout13-4820 Supreme Court Pennsylvania Court of Common_ Pleas For Prothonotary Use Only: Civil Cover Sheet Docket No: Cumberland County The information collected on this form is used solely for court administration purposes. This fibrin does not supplement or replace 1he filing and service gfpleadings or other papers as required by lcm or rules of court. Commencement of Action: S ❑✓ Complaint ❑ Writ of Summons ❑ Petition E ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking C Lead Plaintiffs Name: Lead Defendant's Name: T PPL Electric Utilities Corporation Precision Underground Construction Services Corp. Dollar Amount Requested: ❑✓ within arbitration limits I Are money damages requested? ❑✓ Yes El No O 1 (check one) ❑outside arbitration limits N Is this a Class Action Suit? ❑ Yes ❑✓ No Is this an MDJAppeal? ❑ Yes ❑✓ No A Name of Plaintiff /Appellant's Attorney: Anthony P. Krzywicki, Esquire ❑ Check here if you have no attorney (are a Self - Represented [Pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that You consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections Nuisance Dept. of Transportation Premises Liability 8 Statutory Appeal: Other S Product Liability (does not include E mass tort) [] Employment Dispute: C B Slander /Libel/ Defamation Discrimination ✓ Other: ❑ Employment Dispute: Other ❑ Zoning Board T Un utili d ❑ Other: I ❑ Other: O MASS TORT ❑ Asbestos N Tobacco Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑Toxic Waste ❑ Other: ❑ Ejectment E] Common Law /Statutory Arbitration B Eminent Domain /Condemnation ❑ Declaratory Judgment B Ground Rent Mandamus ❑ Landlord /Tenant Dispute ❑ Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title El Other: ❑ Medical Other: ❑ Other Professional: Updated 11112011 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 3 -ypo? Ci V�f VS. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants.' COMPLAINT `:; NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 -3387 (717) 249 -3166 (800) 990 -9108 0 75 p� 4 ,,?qUu1y IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES,CORP. and "JOHN DOE ", Defendants. COMPLAINT 1. This is an action by Plaintiff, PPL ELECTRIC UTILITIES CORPORATION to recover damages from Defendants arising out of damage to property owned by PPL ELECTRIC UTILITIES CORPORATION 2. PPL ELECTRIC UTILITIES CORPORATION is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at Two North Ninth Street, Allentown, Pennsylvania, 18101. 3. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., is a Pennsylvania corporation with a principal place of business at 230 S. Potomac Street, Suite D, Waynesboro, Pennsylvania, 17268. 4. Defendant, "JOHN DOE ", is an adult individual whose current whereabouts are unknown but is an agent or employee of Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. 5. At all times relevant hereto, Plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested utility service in accordance with the Rate Schedules and General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUNT PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" NEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth. 7. Upon information and belief, Defendant, "JOHN DOE ", while excavating for Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., violated the Underground Utility Line Protection Law, Act 187 of 1996 in that he /she: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiff s underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, "JOHN DOE ", determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. 8. Defendant, "JOHN DOE ", on or about April 4, 2012, while digging struck and damage an underground cable owned and operated by PPL ELECTRIC UTILITIES CORPORATION at the vicinity 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania. 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff has been damaged in the amount of $5,718.09, including costs and attorneys fees. WHEREFORE, Plaintiff, PPL ELECTRIC UTILITIES CORPORATION, demands judgment against the Defendants, in an amount in excess of $5,718.09, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT II PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" COMMON LAW TORT 11. The allegations contained in Paragraphs 1 through 10 above are incorporated by reference as if fully set forth. 12. Plaintiff used standard industry markings to identify the location of its electric line prior to April 4, 2012. 13. Defendant, "JOHN DOE ", did not exercise due care and did not take all reasonable steps to avoid damage to the underground electric line owned by PPL ELECTRIC UTILITIES CORPORATION, in that he /she; a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; C) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, "JOHN DOE ", determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. WHEREFORE, Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendants, in an amount in excess of $5,718.09, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. COUNT III PPL ELECTRIC UTILITIES CORPORATION VS. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 14. Paragraphs I through 13 are incorporated by reference as if fully set forth herein. 15. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those which occurred on the date of the accident. 16. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., was the owner of the mechanical boring machine that struck and damaged underground primary cable. 17. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., is vicariously responsible for the actions of its agents and employees. 18. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 19. The aforementioned damages were the direct and proximate result of the negligence of Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., including negligent acts and /or omissions of defendant as performed individually and /or by and through others permitted to use a mechanical boring machine more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and /or train Defendant, "JOHN DOE ", in the operation of his /her mechanical boring machine; b) negligently and carelessly failing to properly supervise the operation and control of said mechanical boring machine; and C) otherwise failing to exercise reasonable care under the circumstances. 20. Plaintiff has been damaged in the amount of $5,718.09, including costs and attorneys fees. WHEREFORE, Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendant, in an amount in excess of $5,718.09, together with costs, prejudgment and post judgment interest, punitive damages and delay damages as the law may allow. Respectfully submitted, DATED: August 9, 2013 KRZYWICKI & ASSOCIATES, P.C. Antho rz i quire Ne ope, PA 18 (215) 862 -4390 Attorney for Plaintiff Attorney I.D. 23754 VERIFICATION Pursuant to Rule 1024 (c), I, ANTHONY P. KRZYWICKI, ESQUIRE, verify that I am the attorney for Plaintiff, in the within case; that the appropriate officers of the plaintiff are not available within the time for serving the foregoing to provide their verification; that I am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge, information and belief, based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unsworn falsification to authorities. KRZYWICKI & ASSOCIATES, P.C. DATED: August 9, 2013 THONY YWICKL ESQUIRE SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Ottr at 4:mim Jody S Smith Chief Deputy t 1 SP ? Richard W Stewart (�( � � C8( ' Solicitor PENNSYLVANIA PPL Electric Utilities Corporation vs. Case Number Precision Underground Construction Services Corp (et al.) 2013-4820 SHERIFF'S RETURN OF SERVICE 08/14/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Precision Undergroung Construction Services Corp, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Franklin, Pennsylvania to serve the within Complaint&Notice according to law. 08/22/2013 03:33 PM-The requested Complaint&Notice served by the Sheriff of Franklin County upon Christina Curry, Bookkeeper,who accepted for Precision Underground Construction Services Corp, at 230 S. Potomac Street, Suite D, Waynesboro, PA 17268. Dane Anthony, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, September 20, 2013 RONIsK ANDERSON, SHERIFF (c)CountySuite Shenff.Teleosoft,Inc. SHERIFF' S RETURN - REGULAR CASE NO: 2013-00261 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN PPL ELECTRIC UTITLITIES CORP VS PRECISION UNDERGROUND CONSTRUC MICHAEL COX , Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within COMP CIVIL ACTION was served upon PRECISION UNDERGROUND CONSTRUC TION SERVICES CORPORATION the DEFENDANT , at 1533 : 00 Hour, on the 22nd day of August , 2013 at 230 SOUTH POTOMAC STREET SUITE D WAYNESBORO, PA 17268 by handing to CHRISTINA CURRY BOOKKEEPER a true and attested copy of COMP CIVIL ACTION together with and at the same time directing Her attention to the contents thereof . Sheriff ' s Costs : So Answers : Docketing . 00 Service . 00 MICHAEL COX Affidavit . 00 Surcharge . 00 By . 00 Deputy Sheriff . 00 08/26/2013 KRZYWICKI AND ASSOCIATES Sworn and Subscribed to before me this "Z 4- - day of COMMONWEEALTHOFPENNSYLVANIA NOTARIAL SEAL —•y. (3 A.D. RICHARD O. McCAR1Y, Notary Public Cnambersburg Boro., Franklin County f , cL Z=e, C/ ,t My Commission Expires Jan. 29, 2015 Notary MARGOLIS EDELSTEIN Stephen L. Banko,Jr., Esquire PA Attorney ID#41727 3510 Trindle Road Camp Hill, PA 17011 Direct Dial: 717-760-7501 Attorney for Defendants, Fax: 717-975-8124 Precision Underground Construction Services Corp. Email: sbanko@margolisedelstein.com and John Doe IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, CIVIL ACTION - LAW H Plaintiff '"� � - v. DOCKET NO 13-4820 CIVIL ' PRECISION UNDERGROUND JURY TRIAL DEMANDED CONSTRUCTION SERVICES CORP. and 4 � "JOHN DOE," Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. AND JOHN DOE, TO PLAINTIFF'S COMPLAINT 1. Plaintiff filed its Complaint on or about August 14, 2013. A copy of said Complaint is attached hereto, incorporated herein by reference, and marked as Exhibit A. 2. On or about October 1, 2013, Plaintiff served a Notice of Intention to Enter Default Judgment. A copy of said Notice is attached hereto, incorporated herein by reference, and marked as Exhibit B. 3. The undersigned was retained to represent Defendants on October 14, 2013. 4. The Notice attached as Exhibit B required Defendants to "act" within ten (10) days. 5. Although more than ten (10) days after the Notice, Defendants are acting by filing the instant Preliminary Objections to Plaintiff's Complaint 6. It is believed and therefore averred that Plaintiff's counsel was in communication with the principal of Defendant, Precision Underground Construction Services ("Precision"), and was aware of an issue regarding a conflict involving Precision's regularly retained counsel. 7. Rather than accommodate Precision, Plaintiff instead served the above- referenced Notice, despite numerous objectionable allegations and claims contained in the Complaint. 8. The Noticed attached to Plaintiff's Complaint fails to meet the Requirements of Pa. R.C.P. No. 1018.1. 9. That is, the Notice attached to Plaintiff's Complaint does not recite the language set forth in the aforesaid Rule. 10. Moreover, the address for the Cumberland County Bar Association noted in the Notice attached to Plaintiff's Complaint is erroneous. 11. Plaintiff's Complaint contains three (3) counts. Count I alleges negligence per se against Defendant "John Doe" ("Doe"); Count II alleges common law tort against Doe; and Count Ill alleges vicarious liability of Precision for Doe's allegedly negligent conduct. 12. In the prayers for relief in each of these Counts of the Complaint, Plaintiff seeks punitive damages. 13. In paragraphs 10 and 20 of its Complaint, Plaintiff seeks attorney's fees. 2 14. In paragraph 19(c), Plaintiff alleges that Precision was negligent by: "otherwise failing to exercise reasonable care under the circumstances." 15. It is believed and therefore averred that punitive damages are not recoverable in the context of this action or under the allegations made in this Complaint. 16. Furthermore, it is believed and therefore averred that there is no basis under Pennsylvania law for Plaintiff to recover attorney's fees in the context of this claim which alleges tortious conduct. 17. Finally, it is believed and therefore averred that the boilerplate allegation of negligence contained in paragraph 19(c) is properly stricken from the Complaint in accordance with the Pennsylvania Supreme Court decision in Conner v. Allegheny General Hospital and its progeny. 18. It is submitted that such allegation is nothing more than a boilerplate allegation of negligence which, if permitted to remain in Plaintiffs' Complaint, would permit Plaintiffs to amend their Complaint to include causes of action not now contained in the Complaint and after the expiration of the statute of limitations. 19. Pa. R.C.P. No. 1019(a) provides that: The material facts upon which a cause of action or defense is based shall be stated in a concise and summary form. 20. Therefore, the boilerplate allegation of negligence contained in paragraph 19 c) fails to comply with the requirements of Pa. R.C.P. No. 1019 and therefore, such allegation is properly stricken pursuant to Pa. R.C.P. No. 1028(a)(2). 21. Pa. R.C.P. No. 1028(a) provides in pertinent part as follows: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: 3 (2) failure of a pleading to confirm to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity of the pleading; (4) legal insufficiency of a pleading (demurrer)... 22. Under Pennsylvania law, punitive damages are recoverable only if the defendant's conduct is outrageous. Feld v. Merriam, 485 A.2d 742, 747-748 (Pa. 1984). 23. "Where there exists no indication of evil motive, then a plaintiff must establish that a defendant acted with reckless indifference to the rights of others." Burke v. Maasen, 904 F.2d 178, 181 (3rd Cir. 1990). 24. "A claim for punitive damages must plead facts sufficient to summarize and support the claim, including facts tending to cast the alleged actions in a light justifying the label of outrageous conduct." Smith v. Brown, 423 A.2d 743 (Pa. Super. 1980). 25. To the extent either Defendant was negligent, which is specifically denied, such conduct was no more than mere negligence or inadvertence. 26. Under Pennsylvania law, therefore, Plaintiffs are not entitled to punitive damages on a claim involving mere negligence or even gross negligence. 27. Nowhere in Plaintiffs' Complaint is there any fact which suggests outrageous conduct perpetrated with an evil motive or reckless indifference to the rights of others which, would be a requisite showing for the imposition of punitive damages, in the first instance. 28. Plaintiffs allegations do not satisfy the minimal pleading requirement for establishing a prima facie case to recover punitive damages against Defendants. 4 Accordingly, such claims are properly dismissed pursuant to Pa. R.C. P. No. 1028 (a)(4), or in the alternative, stricken pursuant to Pa. R.C. P. No. 1028 (a)(2). 29. With respect to Plaintiff's claims for attorney's fees, it is believed and therefore averred that Pennsylvania law does not permit the recovery of counsel fees from the adverse party in the absence of an express statutory provision or an agreement between the parties. See Corace v. Balint, 418 Pa. 262 210A.2d 882 (1965). 30. Nowhere in its Complaint does Plaintiff set forth the contractual or statutory provision under which it seeks counsel fees. 31. Accordingly, such claims for attorneys' fees fail to conform to rule of law and, accordingly, are properly stricken pursuant to Pa.R.C.P. No. 1028(a)(2). 32. Plaintiffs Complaint is endorsed with a Verification signed by counsel. 33. Pa. R.C.P. No. 1024 provides in pertinent part as follows: (a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified. .... (c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by the party. 5 34. While the verification signed by counsel states that the verification of the Plaintiff could not be obtained within the time allowed for filing of the Complaint, such is obviously not the case. 35. Plaintiff commenced the action by Complaint and was never ruled to file a Complaint by Defendants. 36. According to Plaintiff's Complaint, its cause of action arose as a result of alleged negligent conduct which occurred on April 4, 2012. 37. Accordingly, Plaintiff had until April 4, 2014 to commence the instant action. 38. It is submitted that a verification could be obtained within the period for bringing the instant action, and therefore, the statement by counsel in the verification is not in keeping with the requirements of Pa. R.C.P. No. 1024. 39. An attorney's verification deprives Defendant of the right to test the credibility of Plaintiff with regard to the averments of fact contained in the Complaint. 40. The verification by counsel specifically violates the spirit of Pa. R.C.P. No. 1024(c), and therefore, the Complaint is properly stricken in accordance with Pa. R.C.P. No. 1028(a)(2). WHEREFORE, Defendants, Precision Underground Construction Services Corp. and John Doe, pray this Honorable Court enter an Order striking Plaintiffs Complaint pursuant to Pa. R.C.P. No. 1028(a)(2) for failing to comply with Pa. R.C.P. Nos. 1018.1 and 1024; striking paragraph 19(c) of Plaintiff's Complaint pursuant to Pa. R.C.P. No. 1028(a)(2) for failure to comply with the requirements of Pa. R.C.P. No. 1019; dismissing Plaintiff's claims for punitive damages contained in the prayers for relief of 6 Plaintiff's Complaint pursuant to Pa. R.C.P. No. 1028(a)(4); and striking Plaintiff's claims for attorney's fees as contained in paragraphs 10 and 20 of its Complaint pursuant to Pa. R.C.P. 1028(a)(2). M ` COLI . DELSTEIN { f { 1 By: Date ' e,h r Banko, Jr. (Attorney for Defendants, Precision Underground Construction Services Corp. and John Doe) I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by facsimile transmission, and by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the /' 'day of , 2013, and addressed as follows: Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 (via facsimile: 215-862-4393 and U.S. Mail) MARGOLIS EDELSTEIN By: LC�(�' ,1q/�'l, Angel. Gayman, Legal Assistant Oct. 11. 2013 9: 36AM cfp&m No. 9502 P. 3 If IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY,PENNSYLVANIA. PPL ELECTRIC UTILITIES CORPORATION, • Civil Action In LEM J - Plaintiff, : No. «_LIFO cot/ •u , vs, ARBITRATION • PRECISION UNDERGROUND cn L�' CONSTRUCTION SERVICES CORP. and • ",IOI.IN DOE", c Defendants. COMPLAINT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO -VINO OUT WHERE YOU CAN GRT LEGAL HELP. • CUl1MI3ERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle,PA 17013-3337 (717)249-3166 (800) 990-9108 I CERTIFY THE WITHIN IS TRUE copy r-Rona R cor�p A TR tLND:CO OPY. 1n 7asUmony whereof, and the 5,e Of 5ai here uitio set nW hand 7hrs d Court at C.4rtlste ,pa, day of 20 Attortie s P' y F' •• prothonotar Oct. 11. 2013 9:36AM c f p&n No, 9502 P. 4 IN THE COURT OF COMMON PLEAS,CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action-In Law Plaintiff, No. vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and . "JOI--IN DOE", Defendants. . COMPLAINT 1. This is an action by Plaintiff,PPL ELECTRIC UTILITIES CORPORATION to recover damages from Defendants arising out of damage to property owned by PPL ELECTRIC UTILITIES CORPORATION 2. PPL ELECTRIC UTILITIES CORPORATION is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility tinder the laws of the Commonwealth of Pennsylvania with a principal place of business at Two North Ninth Street, Allentown,Pennsylvania., 18101. 3. Defendant,PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,is a Pennsylvania corporation with a principal place of business at 230,S. Potomac Street, Suite D,Waynesboro,Pennsylvania, 17268. 4. Defendant,"JOHN DOE",is an adult individual whose current whereabouts are unknown but is an agent or employee of Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. 5. At all times relevant hereto,Plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested Oct. 11. 2013 9:37AM c f p&m No. 9542 P. 5 utility service in accordance with the Rate Schedules and General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUNT I PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" NIEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth, 7. Upon information and belief,Defendant,"JOHN DOE",while excavating for Defendant,PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,violated the Underground Utility Line Protection Law,Act 187 of 1996 in that he/she: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; c) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant,"JOHN DOE", determined that the markings were not clear;and e) did not hand dig a test hole to identify location of the gas line, 8. Defendant,"JOT-IN DOE",on or about April 4,2012, while digging struck and damage an underground cable owned and operated by PPL ELECTRIC UTILITIES CORPORATION at the vicinity 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania. Oct. 11. 2013 9.37AM cfp&m No. 9502 P. 6 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff has been damaged in the amount of$5,718.09,including costs and attorneys fees. WHEREFORE,Plaintiff,PP', ELECTRIC UTILITIES CORPORATION,demands judgment against the Defendants,in an amount in excess of$5,718.09,together with costs, prejudgment and post judgment interest,punitive damages and delay damages as the law may allow. COUNT II PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" COMMON LAW TORT 1 I. The allegations contained in Paragraphs 1 through 10 above are incoiporated by reference as if frilly set forth. 12. Plaintiff used standard industry markings to identify the location of its electric line prior to April 4,2012. • 13. Defendant, "JOHN DOE",did not exercise due care and did not take all reasonable steps to avoid damage to the underground electric line owned by PPL ELECTRIC UTILITIES CORPORATION, in that he/she; -- .,_.__.......: a).::...:.:...:.did.:ii eriii 7ltiy 1siud'e-nt'excaryatii.trte.dhi. position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility Iines; c) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the • Oct. 11. 2013 9:37AM c f p&m No. 9502 P. 7 area eventually severing an active gas line risking a catastrophe; ci) did not hand dig to locate the utility line when Defendant,"JOHN DOE", determined that the markings were not clear;and e) did not hand dig a test hale to identify location of the gas line. WIIEREFORE,Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendants,in an amount in excess of$5,118.09,together with costs, prejudgment and post judgment interest,punitive damages and delay damages as the law may f allow. COUNT III PPL ELECTRIC UTILITIES CORPORATION VS. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 14. Paragraphs 1 through 13 are incorporated by reference as if fully set forth herein. 15. Defendant,PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those Which occurred on the date of the accident. 16. Defendant,PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,was the owner of the mechanical boring machine that struck and damaged underground primary cable. 17. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,is vicariously responsible for the actions of its agents and employees. 18. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 19. The aforementioned damages were the direct and proximate result of the Oct. 11. 2013 9:37AM c f p&m No, 9502 P. 8 negligence of Defendant,PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP.,including negligent acts and/or omissions of defendant as performed individually and/or by and through others permitted to use a mechanical boring machine more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and/or train Defendant,"JOHN DOE",in the operation of his/her mechanical boring machine; b) negligently and carelessly failing to properly supervise the operation and control of said mechanical boring machine; and c) otherwise failing to exercise reasonable care under the circumstances. 20. Plaintiff has been damaged in the amount of$5,718.09,including costs.and attorneys fees. WHEREFORE, Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendant,in an amount in excess of$5,718.09,together with costs, prejudgment and post judgment interest,punitive damages and delay damages as the law may allow. Respectfully submitted, KRZYWICK.I&ASSOCIA.TI:S,P.C. DATED: August 9,2013 13y: Anthony P. Krzywicki,Esquire. P.O.Box 505 New Hope,PA 18938 (215) 862-4390 Attorney for Plaintiff • Attorney I.D. 23754 • Oct. 11. 2013 9:38Av1 cfp&m No. 9502 P. 9 VERIFICATION Pursuant to Rule 1024(c),1,ANTHONY P.1(RZYWICIU,ESQUIRE, verify that I am the attorney for Plaintiff,in the within case;that the appropriate officers of the plaintiff are not available within the time for serving the foregoing to provide their verification; that I am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge,information and belief; based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unsworn falsification to authorities. KRZYWICKI&ASSOCIATES,P.C. DATED: August 9,2013 ANTHONY P. KRZYWICKI,ESQUIRE Oct, 11. 2013 9:36AM cfp&m No. 9502 P. 2 IN T.HE COURT OF COMMON PLEAS,CUIVIBERLAND COUNTY,PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action-In Law Plaintiff, No. I3-4820 Civil • vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. . • NOTICE TO: Precision Underground Construction Services Corp. 230 S. Potomac Street, Suite D Waynesboro,PA 17268 You are in default because you have failed to enter a written appearance personally or by an attorney and file in.writing with the court your defenses or objections to the claims set forth against you. Unless you act within tan(10)days from tile date of this notice, a judgment may be entered against you without a hearing and you may lose your property or other important-rights. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE, If you do not have a lawyer or cannot afford one,go to or telephone the following office to find out where you can get legal help: CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle,PA 17013 (717)249-31.66 (800) 990-91.08 KRZYWIC I &i 'SOCIAT ` .P-C- DATE: October 1,2013 A.nthon - I� wicrl�i',Esqu ,6" Pr9iox p5 " New 1lo�!e P 18938 (215) 86390 Attorney I.D. 23754 Attorney for Plaintiff STEPHEN L.BANKO,JR., ESQUIRE I . Pa.Supreme Court I. D. No.41727 MARGOLIS EDELSTEIN ;'I 13 orT i 5 II: 2' 3510 Trindle Road Camp Hill, PA 17011 _UMBEaLAND C ,U Telephone: (717)760-7501 PENNSYLVANIA FAX: (717)975-8124 Attorney for Defendants E-mail: sbanko(aamargolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, CIVIL ACTION - LAW Plaintiff v. DOCKET NO. 13-4820 CIVIL PRECISION UNDERGROUND JURY TRIAL DEMANDED CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA: Kindly enter my appearance on behalf of Defendants, Precision Underground Construction Services Corp. and John Doe, in the above-captioned matter. EDELSTEIN F J Date: /(7-- I ' -- 1.3 By: SrtkE" EN . BANKO, JR. Attorney for Defendants, Precision Underground Construction Services Corp. and John Doe I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by facsimile transmission, and by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the I day of a-6bl , 2013, and addressed as follows: Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 (via facsimile: 215-862-4393 and U.S. Mail) MARGOLIS EDELSTEIN By: /11' JJo bt gel M. Gayman,Vega' Assistant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, • • Civil Action - In Law Plaintiff, • No. 13-4820 Civil • vs. • ARBITRATION • PRECISION UNDERGROUND • CONSTRUCTION SERVICES CORP. and "JOHN DOE", • V" rn C • Defendants. : w +�M ZO .• PRAECIPE TO AMEND COMPLAINT = � TO THE PROTHONOTARY: Kindly amend the Complaint in the above-captioned Civil Action. KRZYWIC &ASS 1 CIATES, P.C. DATED: October 21, 2013 BY: Ant any P. Krzy "c ki, Esqu' Att'rney for P tiff P.O. Box 5 N:wH•.e 'A :938 (21 862-. '0 Attorney I.D. 23754 a IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA • PPL ELECTRIC UTILITIES CORPORATION, • Civil Action - In Law Plaintiff, • No. 13-4820 Civil vs. • ARBITRATION • • PRECISION UNDERGROUND • CONSTRUCTION SERVICES CORP. and cl "JOHN DOE" • : Defendants. : ,ter r,., `-' r-c„0 770 • FIRST AMENDED COMPLAINT _#;• T NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally, or by attorney, and filing, in writing with the Court, your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 y • IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, : Civil Action - In Law Plaintiff, No. 13-4820 Civil vs. ARBITRATION • PRECISION UNDERGROUND • CONSTRUCTION SERVICES CORP. and • "JOHN DOE", Defendants. : FIRST AMENDED COMPLAINT 1. This is an action by Plaintiff, PPL ELECTRIC UTILITIES CORPORATION to recover damages from Defendants arising out of damage to property owned by PPL ELECTRIC UTILITIES CORPORATION 2. PPL ELECTRIC UTILITIES CORPORATION is a Pennsylvania corporation duly organized and existing and licensed to do business as a public utility under the laws of the Commonwealth of Pennsylvania with a principal place of business at Two North Ninth Street, Allentown, Pennsylvania, 18101. 3. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., is a Pennsylvania corporation with a principal place of business at 230 S. Potomac Street, Suite D, Waynesboro, Pennsylvania, 17268. 4. Defendant, "JOHN DOE", is an adult individual whose current whereabouts are unknown but is an agent or employee of Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. 5. At all times relevant hereto, Plaintiff was engaged in the business of producing, furnishing, supplying and distributing utility service to persons and businesses who requested utility service in accordance with the Rate Schedules and General Rules and Regulations of Plaintiffs Tariff presently on file with the Public Utility Commission. COUNT I PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" NEGLIGENCE PER SE 6. The allegations contained in Paragraphs 1 through 5 above are incorporated by referenced as if fully set forth. 7. Upon information and belief, Defendant, "JOHN DOE", while excavating for Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., violated the Underground Utility Line Protection Law, Act 187 of 1996 in that he/she: a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; c) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the area eventually severing an active gas line risking a catastrophe; d) did not hand dig to locate the utility line when Defendant, "JOHN DOE", determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. 8. Defendant, "JOHN DOE", on or about April 4, 2012, while digging struck and damage an underground cable owned and operated by PPL ELECTRIC UTILITIES CORPORATION at the vicinity 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania. r. 9. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set for above and herein. 10. Plaintiff has been damaged in the amount of$4,312.09, including costs. WHEREFORE, Plaintiff, PPL ELECTRIC UTILITIES CORPORATION, demands judgment against the Defendants, in an amount in excess of$4,312.09, together with costs, prejudgment and post judgment interest, and delay damages as the law may allow. COUNT II PPL ELECTRIC UTILITIES CORPORATION VS. "JOHN DOE" COMMON LAW TORT 11. The allegations contained in Paragraphs 1 through 10 above are incorporated by reference as if fully set forth. 12. Plaintiff used standard industry markings to identify the location of its electric line prior to April 4, 2012. 13. Defendant, "JOHN DOE", did not exercise due care and did not take all reasonable steps to avoid damage to the underground electric line owned by PPL ELECTRIC UTILITIES CORPORATION, in that he/she; a) did not employ prudent excavation techniques to ascertain the precise position of underground utilities; b) did not exercise due care and take all reasonable steps necessary to avoid damage to Plaintiffs underground utility lines; c) determined that markings identifying the location of the utility line were not clear but continued to dig with a mechanical boring machine in the area eventually severing an active gas line risking a catastrophe; A � d) did not hand dig to locate the utility line when Defendant, "JOHN DOE", determined that the markings were not clear; and e) did not hand dig a test hole to identify location of the gas line. WHEREFORE, Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendants, in an amount in excess of$4,312.09, together with costs, prejudgment and post judgment interest, and delay damages as the law may allow. COUNT III PPL ELECTRIC UTILITIES CORPORATION VS. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 14. Paragraphs 1 through 13 are incorporated by reference as if fully set forth herein. 15. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., permitted and encouraged the actions of its agents and employees by not implementing a training program which addressed circumstances such as those which occurred on the date of the accident. 16. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., was the owner of the mechanical boring machine that struck and damaged underground primary cable. 17. Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., is vicariously responsible for the actions of its agents and employees. 18. Defendant's actions or inaction as set forth above are the proximate cause of the damages as set forth above and herein. 19. The aforementioned damages were the direct and proximate result of the negligence of Defendant, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP., including negligent acts and/or omissions of defendant as performed individually and/or by and through others permitted to use a mechanical boring machine more specifically described as follows: a) negligently and carelessly failing to properly and adequately supervise and/or train Defendant, "JOHN DOE", in the operation of his/her mechanical boring machine; and b) negligently and carelessly failing to properly supervise the operation and control of said mechanical boring machine. 20. Plaintiff has been damaged in the amount of$4,312.09, including costs. WHEREFORE, Plaintiff PPL ELECTRIC UTILITIES CORPORATION demands judgment against the Defendant, in an amount in excess of$4,312.09, together with costs, prejudgment and post judgment interest, and delay damages as the law may allow. Respectfully submitted, KRZYWICKI '_ ASSOCIATES, P.C. DATED: October 21, 2013 By: • nthony P. 'wicki, - q e '.O. Box i , New H► .-, PA :•38 (21 8. -43•i • torn'y :r Plainti Attorney I.D. 23754 VERIFICATION I, Thomas R. Halma, hereby state that I am a Senior Claims Coordinator for PPL Services Corporation and authorized to execute this Verification of the First Amended Complaint on behalf of PPL Electric Utilities Corporation. The averments are based upon the company's business records and matters of public record which PPL has furnished to its counsel. The forgoing First Amended Complaint is a true and correct copy to the best of my knowledge, information and belief. It is further understood that all statements herein are made subject to penalties of 18 Pa. C. S. Section 4904,relating to unsworn falsification to authorities. Thomas R. Halma Date: (6-LC-13 CERTIFICATE OF SERVICE I hereby certify that on October 21, 2013, a copy of the forgoing First Amended Complaint was mailed via First Class Mail to the following by placing same in a depository under the exclusive care and custody of the United States Postal Service addressed to the last- known address for Defendants' counsel or Defendant: Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill,PA 17011 Attorney far Defendants, Precision Underground Construction Service Corp. and "John Doe" KRZYWICKI & . ' CIATES,P.C. DATED: October 21,2013 By • thony P. 4t wi 'squire '.O. Bo Ne •o.e, ' • 1 :"38 15) :l. -4390 Attorney for Plai • Attorney I.D. 23754 't L i �4 f I iii 1_ STEPHEN L. BANKO,JR., ESQUIRE l PR ci a MHO,, )i t-t R`I Pa.Supreme Court I. D. No.41727 MARGOLIS EDELSTEIN �i ?1 27 P� 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717)760-7501 CUMBERLAND COUNTY FAX: (717)975-8124 PENNSYLVANIA Attorney for Defendants E-mail: sbanko a( maraolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, CIVIL ACTION - LAW Plaintiff v. DOCKET NO. 13-4820 CIVIL PRECISION UNDERGROUND JURY TRIAL DEMANDED CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants NOTICE TO PLEAD TO: PPL Electric Utilities Corporation, Plaintiff do Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 (Counsel for Plaintiff) You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. MARGOL S EDELSTEIN Date: / � _. � ate: � t By: STE` ' . B A KO, JR. Attorney fer Defendants, Precision Underground Construction Services Corp. and John Doe STEPHEN L. BANKO,JR., ESQUIRE Pa.Supreme Court I. D. No.41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717)760-7501 FAX: (717)975-8124 Attorney for Defendants E-mail: sbanko @margolisedelstein.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CIVIL ACTION - LAW CORPORATION, Plaintiff DOCKET NO. 13-4820 CIVIL v. PRECISION UNDERGROUND JURY OF TWELVE DEMANDED CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants ANSWER AND NEW MATTER OF DEFENDANTS, PRECISION UNDERGROUND CONSTRUCTION SERVICES, CORP. AND JOHN DOE, TO PLAINTIFF'S AMENDED COMPLAINT 1. Admitted in part and denied in part. While it is admitted that Plaintiff makes a claim alleging property damage occasion as a result of the conduct of Defendants, Defendants deny that any conduct on their part, caused, contributed to or increased a likelihood of any harm to Plaintiff. 2. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth from the averments contained in this paragraph and, therefore, they are denied. 3. Admitted. 4. Denied. After reasonable investigation Defendant, Precision Underground Construction Services, Corp. ("Precision"), is without knowledge or information sufficient to form a belief as to who Plaintiff is referring to in this paragraph of its Amended Complaint. However, the machine operator employed by Precision on April 4, 2012 was Scott Brown. 5. Denied. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. COUNT I -- PLAINTIFF V. JOHN DOE NEGLIGENCE PER SE 6. The answers contained in paragraphs 1 through 5 hereof are incorporated herein by reference as if set forth in their entirety. 7. Denied. The answer contained in paragraph 4 hereof is incorporated herein by reference as if set forth in its entirety. By way of further answer, the allegations contained in this paragraph state a legal conclusion to which no response is necessary. 8. Denied as stated. The answer contained in paragraph 7 hereof is incorporated herein by reference as if set forth in its entirety. 9. Denied. The answers contained in paragraphs 1 and 7 hereof are incorporated herein by reference as if set forth in their entirety. 10. Denied. The answer contained in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. 2 COUNT II — PLAINTIFF V. JOHN DOE COMMON LAW TORT 11. The answers contained in paragraphs 1 through 10 hereof are incorporated herein by reference as if set forth in their entirety. 12. Denied. After reasonable investigation Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. 13. Denied. The answer contained in paragraph 7 hereof is incorporated herein by reference as if set forth in its entirety. WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. COUNT III — PLAINTIFF V. PRECISION VICARIOUS LIABILITY FOR ACTION OF EMPLOYEE 14. The answers contained in paragraphs 1 through 13 hereof are incorporated herein by reference as if set forth in their entirety. 15. Denied. The answers contained in paragraphs 1 and 7 hereof are incorporated herein by reference as if set forth in their entirety. 16. Admitted. 17. Denied. The allegation contained in this paragraph state a legal conclusion to which no response is necessary. 18. Denied. The answer contained in paragraphs 1 and 17 hereof are incorporated herein by reference as if set in their entirety. 3 19. Denied. The answer contained in paragraph 18 hereof is incorporated herein by reference as if set forth in its entirety. 20. Denied. The answer contained in paragraph 18 hereof is incorporated herein by reference as if set forth in its entirety. WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. NEW MATTER 21. The answers contained in paragraphs 1 through 20 hereof are incorporated herein by reference as if set forth in their entirety. 22. Plaintiffs claim, if any, is or may be barred by the applicable statute of limitations. 23. Plaintiffs claim, if any, is or may be barred by the doctrine of collateral estoppel and/or res judicata. 24. Plaintiffs claim, if any, is or may be barred by Pennsylvania Statutory or Regulatory Law regarding excavation utilities. 25. Plaintiffs claim is barred and/or reduced by the Pennsylvania Comparative Negligence Act. 26. Plaintiffs claim, if any, may have been caused by conduct of parties or individuals or entities not a party to this action and over whom Defendants had no control. 4 WHEREFORE, Defendants demand judgment in their favor and against the Plaintiff. Respectfully submitted, M A �.OLIS EDELSTEIN 1 f i' E Date: )-4.0 �� B Y:— STEPHE L. BANKO, JR. Counsel Def ndants, Precision nderground Construction Services Corp. and John Doe 5 VERIFICATION I, Scott Brown, have read the foregoing Answer and New Matter to Plaintiffs Amended Complaint. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: %112.1.011 �l • BRO President of Precision Underground Construction Services CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by facsimile transmission, and by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the1,Q day of /(\bahti/1 , 2013, and addressed as follows: Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 MARGOLIS EDELSTEIN By: Aky (k�� n �A1/ACUA. Angela M. Gayman,Ltegal Assistant E J KRZYWICKI &ASSOCIATES, P.C. By: Anthony P. Krzywicki,Esquire ' ' '`"U Attorney for Plaintiff Qp _ 9 Phi I P.O. Box 505 New Hope, PA 18938 1 �s�; � r: r (215) 862-4390 r 'h1S YLVA?. IA PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, • • Civil Action- In Law Plaintiff, • No. 13-4820 Civil vs. • • ARBITRATION PRECISION UNDERGROUND • CONSTRUCTION SERVICES CORP. and • "JOHN DOE", • Defendants. : PLAINTIFF,PPL ELECTRIC UTILITIES CORPORATION,ANSWER TO DEFENDANT, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. AND"JOHN DOE",NEW MATTER 21. The answers contained in paragraphs 1 through 20 hereof are incorporated herein by reference as if set forth in their entirety. 22. Denied as a conclusion of law to which no answer is deemed required. 23. Denied as a conclusion of law to which no answer is deemed required. 24. Denied as a conclusion of law to which no answer is deemed required. 25. Denied as a conclusion of law to which no answer is deemed required: 26. Denied as a conclusion of law to which no answer is deemed required WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants. KRZYWICKI ASS CI A S,P.0 Dated: December 4,2013 BY: ZA, Ant oily P. . is s• A •rney •r P ai. f r VERIFICATION Pursuant to Rule 1024 (c), I, Anthony P. Krzywicki, Esquire verify that I am the attorney for Plaintiff in the within case; that the appropriate officers of the Plaintiff are not available within the time for serving the foregoing to provide their verification; that I am sufficiently familiar with the facts set forth in the foregoing Pleading to take this verification; and that such facts are true and correct to the best of my knowledge, information and belief, based upon the company's business records and matters of public record. I understand that the statements herein are made subject to the penalties of 18 Pa. Consol. Stat. Ann. § 4904 relating to unsworn falsification to authorities. KRZYWIC • SSO■ IATES, P.0 Dated: December 4, 2013 BY: Ant ony P. Kr A • squi Atorneyfo '1.' CERTIFICATE OF SERVICE I,Anthony P. Krzywicki, Attorney for Plaintiff,hereby certifies that a true and correct copy of the foregoing document was placed in a depository under the exclusive care and custody of the United States Postal Service to delivery, via first class mail,to the following: Stephen L. Banko Jr.,Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants KRZYWICKI&ASSOCIATES, P.0 Dated: December 4, 2013 BY: Anthon '. Krzywicki 'sq • Atto -y for Plai • f 4 KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 J1 �� Hil r1ti II: U} t,WI(3FRL AND COUNTY PE HS i LVANIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Plaintiff, vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. Civil Action - In Law No. 13 -4820 Civil ARBITRATION MOTION TO COMPEL DISCOVERY Pursuant to Pa.R.C.P. 4019, Plaintiff, PPL Electric Utilities Corporation, moves the Court to enter an order in the form attached, directing Defendant, Precision Underground Construction Services Corp., to comply with Plaintiff's discovery requests within thirty (30) days of the entry of the Order, and to pay to Plaintiff costs incurred in preparing this motion and supporting memoranda. In support of this motion Plaintiff alleges as follows: 1. Plaintiff served Interrogatories directed to Defendant, Precision Underground Construction Services Corp., on December 4, 2013 and January 29, 2014. See Exhibit A. 2. No answers or objections to Plaintiff s Interrogatories directed to Defendant, Precision Underground Construction Services Corp., have been received by Plaintiff as of the date of this motion. 3. Plaintiff served Request for Production of Documents directed to Defendant, Precision Underground Construction Services Corp., on October 15, 2013 and November 25, 2013. See Exhibit B. 4. No answers or objections to Plaintiff's Request for Production of Documents directed to Defendant, Precision Underground Construction Services Corp., have been received by Plaintiff as of the date of this motion. 5. A Judge has not ruled upon any other issues in this matter. 6. Defendant's counsel is Stephen L. Banko Jr., Esquire. WHEREFORE, Plaintiff, PPL Electric Utilities Corporation, respectfully requests the Court to enter an order directing Defendant, Precision Underground Construction Services Corp., to comply with Plaintiff's discovery requests within thirty (30) days of the date of order, and to pay Plaintiff costs incurred in preparing this motion and supporting memoranda. DATED: February 28, 2014 Respectfully submitted, KRZYWICKI & ASSOCIATES, P.C. KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13 -4820 Civil vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DISCOVERY I. STATEMENT OF FACTS This case arose from an action brought by Plaintiff, PPL Electric Utilities Corporation, to recover sums due from damages to their property. Plaintiffs Interrogatories directed to Defendant, Precision Underground Construction Services Corp., were served on Defendant on December 4, 2013 and January 29, 2014. No answers or objections to Plaintiff's Interrogatories directed to Defendant, Precision Underground Construction Services Corp., have been received or produced and no extension of time to answer have been requested by the Defendant. Plaintiffs Request for Production of Documents directed to Defendant, Precision Underground Construction Services Corp., were served on Defendant on October 15, 2013 and November 25, 2013. No answers or objections to Plaintiff's Request for Production of Documents directed to Defendant, Precision Underground Construction Services Corp., have been received or produced and no extension of time to answer have been requested by the Defendant. II. DISCUSSION Defendant's failure to answer Plaintiffs Interrogatories directed to Defendant, Precision Underground Construction Services Corp., and Plaintiff's Request for Production of Documents directed to Defendant, Precision Underground Construction Services Corp., is in violation of Pa.R.C.P. 3117, 4006 (a)(2) and 4009. Rule 4019(a) (1) (I) and 4019 (a) (1) (vii) permit the court, upon motion, to impose sanctions against a party who fails to respond to discovery requests. Additionally, Rule 4019 (c) (5) states that "[t]he Court, when acting under subdivision (a) of this rule, may make...such order with regard to the failure to make discovery as is just." In Gonzalez v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1972), the Court Stated: Pa.R.C.P. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where [a party fails to comply with a discovery request] a motion must be presented to the court to determine the default. [Citation omitted.] Upon finding that a default has occurred, "the court may...make an appropriate order." The imposition of specific sanctions, however, is largely within the discretion of the court. [Citations omitted]. 407 A.2d at 1341. III. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court enter an order, in the form attached, directing Defendant to comply with Plaintiff's discovery requests. Respectfully submitted, KRZYWICKI & ASSOCIATES, P.C. DATED: February 28, 2014 L AW OFFICES KRZYWICKI & ASSOCIATES, P.C. P. O. BOX 505 NEW HOPE, PA 18938 (215) 862-4390 FAX: (215) 862 -4393 January 29, 2014 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 RE: PPL Electric Utilities Corporation vs. Precision Underground Construction Services Corp. and "John Doe" Civil Action No.: 13 -4820 Civil Our File No.: 3426 PD Dear Mr. Banko: On December 4, 2013, the attached Plaintiff's Interrogatories of Addressed to Defendant, Precision Underground Construction Services Corp., was forwarded to your attention. Time for answering has expired. When can we expect answers? Thank you for your attention to this matter. Very truly yours, KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff APK/amg Enclosure KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13 -4820 Civil vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. PLAINTIFF'S INTERROGATORIES DIRECTED TO DEFENDANT, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves on Defendant the following set of interrogatories and first request for documents to be answered separately by each Defendant: Definitions 1. The term "incident/accident" as used hereinafter refers to the subject of this litigation, the events or occurrences of which are set forth in the complaint filed in this matter. 2. The term "identify" means the party served with these Interrogatories must identify all documents, things and persons known to that party or to that party's attorney, and the addresses of all persons identified must be set forth. 3. The term "address or location" as hereinafter used shall mean the last known address or location, giving the street number, name of street, city and state. 4. The term "defendant" as used hereinafter shall mean the defendant, its officers, directors, agents, servants, employees, attorneys, representatives, or anyone acting on its behalf. Instructions 1. All information is to be divulged which is in the possession of the Defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the Defendant or his/her attorneys. 2. These interrogatories are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. INTERROGATORIES 1. Identify all persons having knowledge of any facts alleged in your Answer and New Matter concerning the subject matter of this litigation. 2. With respect to each person identified in your answer to the immediately preceding interrogatory, set forth the factual knowledge of said person and the basis or circumstances upon which they obtained their factual knowledge or matters relevant to the subject matter of this litigation. 3. Identify each person whom you expect to call or may potentially call as a witness at the arbitration or trial of this case. 4. With respect to each person identified in your answer to the immediately preceding interrogatory, set forth below a summary of the facts to which each witness or potential witness is expected to testify. 5. Identify all persons who have been retained or specifically employed or consulted in anticipation of this litigation or in preparation for arbitration or trial and who are NOT expected to be called as a witness at trial. 6. As to each person identified in the immediately preceding interrogatory please set forth the subject matter on which s/he was retained, employed or consulted and attached to these answers any written reports, preliminary reports, conclusions, or comments ever prepared by that person with respect to the subject of this litigation. 7. State whether Defendant or any of his/her representatives at any time communicated with the Plaintiff or any of Plaintiffs representatives concerning the subject matter of this litigation, regardless of whether the communication was initiated by you, or Plaintiff or your representatives. 8. As to each communication identified in the immediately preceding interrogatory please set forth the following additional information: a. Date, time and location of each oral communication. b. The substance and full content of each oral communication. c. Identify the person representing you who participated in each oral communication and the person representing the Defendant or you who participated in each oral communication. 9. With respect to your answer to the preceding interrogatory, identify all documents referring or relating in any manner to each oral communication. In lieu of an answer to this interrogatory, you may attach hereto to your answers true and correct copies of all such documents. 10. With respect to each denial set forth in your Answers and New Matter to the Complaint, please set forth each and every fact upon which you base each respective denial. 11. With respect to each denial set forth in your Answers and New Matter to the Complaint, please identify each and every person who has knowledge related to any facts supporting each specific denial. 12. With respect to each denial set forth in your Answers and New Matter to the Complaint, please identify each document related in any manner to each respective denial. 13. With respect to each affirmative defense you allege in your New Matter to the Complaint please set forth each and every fact, which supports each respective affirmative defense. 14. With respect to each affirmative defense you allege in your New Matter to the Complaint please identify each and every person who has knowledge related to any facts supporting each specific affirmative defense. 15. With respect to each affirmative defense you allege in your New Matter to the Complaint please identify each document related in any manner to each specific affirmative defense. 16. Please state whether each answer to each interrogatory set forth herein accurately sets forth the total sum of all facts known to you relating to the subject matter of each interrogatory. 17. Please state whether, in compiling your answers to these interrogatories, you have made a reasonable and diligent effort to identify and provide not only those facts as are within your personal knowledge, but also those facts that are reasonably available to you. 18. Please identify each person who provided any information of whatever nature or description related to any of your answers to these interrogatories. Dated: December 4, 2013 KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Interrogatories by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid, first class mail, and addressed as follows: Dated: December 4, 2013 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants BY: KRZYWICKI & ASSOCIATES, P.C. 151 Anthony P. Krzywicki, Esquire Attorney for Plaintiff L AW OFFICES KRZYWICKI & ASSOCIATES, P.C. P. O. BOX 505 NEW HOPE, PA 18938 (215) 862-4390 FAX: (215) 862 -4393 November 25, 2013 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 RE: PPL Electric Utilities Corporation vs. Precision Underground Construction Services Corp. and "John Doe" Civil Action No.: 13 -4820 Civil Our File No.: 3426 PD Dear Mr. Banko: On October 15, 2013, the attached Plaintiffs Request for Production of Addressed to Defendant, Precision Underground Construction Services Corp., was forwarded to your attention. Time for answering has expired. When can we expect answers? Thank you for your attention to this matter. Very truly yours, KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff APK/amg Enclosure KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13 -4820 Civil vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. ARBITRATION PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS ADDRESSED TO DEFENDANT, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. Pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, Plaintiff request the defendant(s) produce the documents and things hereinafter described and permit Plaintiff, through its attorney, to inspect them and copy such of them as they may desire. Plaintiff requests that the documents be made available for this inspection at the offices of Plaintiffs attorney located at 49 N. Sugan Road, New Hope, Pennsylvania, and that any physical things be made available at their current location, within thirty (30) days of the date of service hereof In lieu of appearing in the office of Plaintiffs attorney, you may submit true, correct and legible copies of the requested items. Defendant's responses to the request should be modified or supplemented as defendant(s), and/or their attorneys, obtain further or additional documents up to the time of trial. Each document produced is to be identified by the paragraph number pursuant to which it is being produced. Identification is to be made by writing the requested paragraph number in the lower right hand corner of the first page of the document. DEFINITIONS AND INSTRUCTIONS A. "Plaintiff' shall mean PPL ELECTRIC UTILITIES CORPORATION and other persons acting, having acted, or purporting to act on behalf of PPL ELECTRIC UTILITIES CORPORATION. B. "You" and "Your" shall mean persons acting, having acted, or purporting to act on behalf of defendant. C. "Defendants" shall mean all persons acting, having acted, or purporting to act on behalf of the entities being litigated against by PPL ELECTRIC UTILITIES CORPORATION. D. "Document" or "documents" shall mean any and all written, graphic material (however produced or reproduced), tapes or other voice recordings, and all other tangible objects including, but not limited to, booklets, brochures, pamphlets, circular notices, periodicals, papers, contracts, agreements, photographs, agendas, receipts, minutes, memoranda, written instructions, messages, appraisals, analysis, reports, plans, evaluations, financial calculations and representations, diary entries, time sheets, calendars, telephone logs, visitors logs, telephone message slips, correspondence, telegrams, press releases, advertisements, notes, handwritten notes, transcripts, working papers, drawings, schedules, tabulations and projections, surveys, studies, graphs, charts, films, videotapes, microfiche, printouts, all other data whether recorded by electronic or any other means, and including drafts of any of the foregoing and any other data in your possession, custody or control, and including all items that are in storage anywhere. If a document was prepared in several copies were not identical or are no longer identical by reason of subsequent notation or modification of any kind whatsoever, including, without limitation, notations on the front or back of any of the pages thereof, then each such non - identical copy is a separate document and must be provided. E. The term "concerning" shall mean referring to, pertaining to, describing, evidencing or constituting. F. The term "person" shall mean the plural as well as singular and is defined as any individual, corporation, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission or other entity. G. The word "meeting" shall mean any assembly, convocation or contemporaneous presence of two or more persons for any purposes, whether or not planned, arranged, or scheduled in advance. H. The terms "evidencing," "recording," "referring," "relating to," or "relates" as used herein shall mean, without limitation, embodying, showing, mentioning, disclosing, referring to, adverting to, alluding to, constituting, concerning, revealing, directly or indirectly, the subject matter identified in a specific interrogatory or document request. I. The following rules of construction apply to all discovery request: 1. The terms "all" and "each" shall be construed as necessary to make the document request more inclusive. 2. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. J. Where a claim of privilege is asserted in objecting to any document request or subpart thereof, and a document is not provided on the basis of such objection, the following information shall be provided in the objection: 1. the date of the document; 2. the author(s) of the document; 3. the identity of the attorney and client involved; 4. the type of document involved (i.e. memorandum, letter, contract etc.); 5. the identity of those receiving copies of the document; 6. the general content of the document; 7. the ground upon which such document is considered to be privileged; and 8. such other information as is necessary to identify the document for a subpoena duces tecum. K. If you maintain that any document or record requested herein has been lost, misplaced, destroyed, or is otherwise no longer in your possession or control, set forth with respect to each such document: 1. the contents of the document; 2. a description of the document; 3. the present location of the original or any copies of the document; 4. the date of such loss or destruction; 5. a description of how and why the document was lost or destroyed; 6. the name of the person who ordered or authorized the destruction, or is most knowledgeable of the manner in which it was lost; 7. the author of the document and his /her address; and 8. the sender and recipient of the document, if applicable. L. Where anything has been deleted from a document produced in response to a document request: 1. specify the nature of the material deleted; 2. specify the reason for the deletion; and 3. identify the person responsible for the deletion. M. If objection is made to producing any document, or any portion thereof, or to disclosing any information contained therein in response to any interrogatory or document request on the basis of any claim of privilege, defendant is requested to specify in writing the nature of such information and documents, and the nature of the privilege claimed so that the Court may rule on the propriety of the objection. In the case of documents, defendant shall state: 1. the title of the document; 2. the nature of the document (e.g. interoffice memorandum, correspondence, report); 3. the author or sender; 4. the addresses; 5. the date of the initial preparation of the document; 6. the name of each person to whom the original or a copy was shown or circulated (other than secretarial staff); 7. the names appearing on any circulation list relating to the document; 8. the basis on which privilege is claimed; and 9. a summary statement of the subject matter of the document in summary detail to permit the Court to rule on the propriety of the objection. N. These requests for production of documents include any and all relevant information and/or documents in the personal files of your present and former officers, employees, agents, representatives, attorneys and accountants. DOCUMENTS TO BE PRODUCED 1. All notes of conversations between Defendants, its agents or employees and Plaintiff. 2. All documents referring, mentioning, or pertaining to correspondence between the Plaintiff and the Defendants concerning the incident. 3. All documents (including telephone and fax logs) referring, mentioning, or pertaining to any communication between the Plaintiff and the Defendants. 4. All documents, records, evidence and anything whatsoever which will be introduced at trial for any purpose. 5. The entire investigative file or files including documents and drawings of Defendants, its counsel, and insurance carriers. 6. All statements obtained from any witnesses relating to Defendant's answers to the complaint. 7. All reports, statements, preliminary reports or summary reports of any expert whether you intend to call such witness at the arbitration hearing or not. 8. All documents sent to any expert regarding the matter which is the subject of this litigation. 9. The curriculum vitae of all experts whom you intend to call as witnesses at the trial of this action. 10. All documents, drawing, plans, photos, reports, or notes prepared by Defendants' employees or agents regarding the incident. 11. The entire personnel file excluding confidential medical and financial information of the operator who struck the underground primary service line. 12. Please provide a copy of the documents or material used to train the employees as to underground digging techniques in the area of buried utility lines. 13. Please provide the names and titles of all Defendant's employees or agents who conducted any investigation of the incident. 14. Please provide any and all documents, drawings, memoranda, reports, letters, notes or email created as a result of any such investigation. 15. Please provide the names and titles of the employees who performed work in the location where the underground primary service line was struck and damaged. 16. All transcripts and documents of all interviews conducted by any one acting on behalf of Plaintiffs or any potential witness and /or person who has knowledge of the incident or its surrounding circumstances. 17. Produce any and all records and documents in your possession or the possession of your attorney or other representative including insurance carriers which were obtained from or prepared by the Defendant. 18. Any and all statements, recordings or notes concerning facts directly or indirectly related to this action as defined by Rule 4003.4 from all witnesses, including any statements from the parties herein or their respective agents, servants or employees. 19. All documents containing the names and or addresses of all individuals contacted as potential witnesses. 20. To the extent not produced in the response to the previous request, any and all documents containing the names and home and business addresses of all individuals contacted as potential or prospective witnesses. 21. All photographs taken or diagrams prepared of the Defendant, the scene of the incident, product or equipment. 22. Copy of all minutes for all Contractor Coordination Meetings and Owner Meetings held during the construction project which is the subject of this litigation. 23. Copy of all personal notes taken by representatives, employees or agents of the Defendants during all Contractor Coordination Meetings and Owner Meetings held during in reference to the construction project which is the subject of this litigation. Dated: October 15, 2013 KRZYWICKI & ASSOCIATES, P.C. CS By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Request for Production of Documents by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, in a prepaid envelope, addressed as follows: Dated: October 15, 2013 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants, Precision Underground Construction Service Corp. and "John Doe" KRZYWICKI & ASSOCIATES, P.C. By: Anthony P. Krzywicki, Esquire Attorney for Plaintiff ( Sl CERTIFICATE OF SERVICE I, Anthony P. Krzywicki, Attorney for Plaintiff, hereby certifies that a true and correct copy of the foregoing Motion to Compel, Memorandum in Support thereof and a form of Order were placed in a depository under the exclusive care and custody of the United States Postal Service to deliver via First Class Mail to the following: Stephen L. Banko, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant, Precision Underground Construction Services Corp. DATED: February 28, 2014 KRZYWIC •CIATES,,P.C. . Krzywicki, Esquire icki & Associates P Box 505 New Hope, PA 18938 (215) 862-4390 Attorney for Plaintiff Attorney ID 23754 PPL ELECTRIC UTILITIES : IN THE COURT OF COMMON PLEAS OF CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : CIVIL ACTION — LAW : NO. 13 -4820 CIVIL PRECISION UNDERGROUND . CONSTRUCTION SERVICES and : "JOHN DOE," Defendants IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY ORDER AND NOW, this ' 0 day of March, 2014, a rule is issued on the defendants to show cause why the relief requested in the within Motion to Compel Discovery ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, c F cal r— rrf r\:1 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760 -7501 FAX: (717) 975 -8124 E -mail: sbankoc margolisedelstein.com H-13 fi t-', ti •1 2 1'4PEAR 26 1H 10: 47 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, Plaintiff v. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants CIVIL ACTION - LAW DOCKET NO. 13 -4820 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: PPL Electric Utilities Corporation, Plaintiff c/o Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 (Counsel for Plaintiff) You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Date: Bv: EDELSTEIN L. B)N KO, JR. Attorney for Defendants, Precision Underground Construction Services Corp. and John Doe STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760 -7501 FAX: (717) 975 -8124 E -mail: sbanko @margolisedelstein.com Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, Plaintiff v. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants CIVIL ACTION - LAW DOCKET NO. 13 -4820 CIVIL JURY OF TWELVE DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY 1. Admitted. 2. Admitted. By way of further answer, however, under cover dated March 25, 2014, counsel for Defendants served upon Plaintiffs counsel Defendants' verified Answers to Interrogatories and verified Response to Request for Production of Documents. A copy of the letter serving such discovery answers is attached hereto, incorporated herein by reference and marked as Exhibit A. 3. Admitted. By way of further answer, the answer contained in paragraph 2 hereof is incorporated herein by reference as if set forth in its entirety. 4. Admitted. By way of further answer, the answer contained in paragraph 2 hereof is incorporated herein by reference as if set forth in its entirety. 5. Admitted. 6. Admitted. WHEREFORE, Defendants pray this Honorable Court enter an order denying Plaintiffs Motion to Compel Discovery as moot. NEW MATTER 7. The Answers contained in paragraphs 1 through 6 hereof are incorporated herein by reference as if set forth in their entirety. 8. In its prayer for relief, Plaintiff requests that this Honorable Court enter an Order directing Defendant, Precision Underground Construction Services, to comply with Plaintiff's discovery requests within thirty (30) days of the date of the Order and to pay Plaintiff costs incurred in compiling its motion and supporting Memoranda (sic). 9. Plaintiff seeks no other relief in its Motion. In its Memorandum in Support of its Motion to Compel Discovery, Plaintiff represents to this Honorable Court that monetary sanctions are authorized by Pa. R.C.P. No. 4019(a)(i) and (vii). In further support of its proposition, Plaintiff cites Gonzalez v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1972). 10. That case recognizes that the general rules of monetary and other sanctions are not imposed absent a wilful disobedience of an Order of the court. 2 11. This "general rule" is supported by Pa. R.C.P. No. 4019(g)(1) which provides: Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party ... to pay to the moving party the reasonable expenses, including attorney's fees incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. 12. As Defendants have now answered discovery and have not disobeyed any Order of this Honorable Court, it is submitted that imposition of sanctions, monetary or otherwise, would be inappropriate under the circumstances. 13. Although not specifically requested in Plaintiff's Motion to Compel Discovery or its supporting Memorandum, in the proposed Order attached to its Motion, Plaintiff requests this Honorable Court to preclude Defendants from submitting any evidence at the arbitration or trial of this matter. 14. Under the circumstances, this request is not reasonably appropriate. 15. Furthermore, Plaintiff requests monetary sanctions in the amount of $1,000 which, under any circumstance, would not be appropriate given the fact that Cumberland County Local Rules of Court do not require the filing of a Brief or Memorandum at the time a Motion to Compel Discovery is filed and the Motion itself is comprised of six paragraphs. 3 WHEREFORE, Defendants pray this Honorable Court enter an order denying Plaintiff's Motion to Compel Discovery as moot. .)‘1\ Date: 1 1 > By: 4 Respectfully submitted, M Gb S EDELSTEIN T N L.)BANKO, JR. Counsel for Defendants, Precision Underground Construction Services Corp. and John Doe MMIA RG O LI S EDELS 1 EIN ATTORNEYS AT LAW www.margollsedelsteln.com HARRISBURG OFFICE:• 3510 TRINDLE ROAD CAMP HILL, PA 17011 717.975.8114 FAx 717 - 975.8124 PHILADELPHIA OFFICE:* THE CURTIS CENTER 170 S. INDEPENDENCE MALL W. SUITE 400E PHILADELPHIA, PA 19106-3337 215- 922 -1100 PITTSBURGH OFFICE: 525 WILLIAM PENN PLACE SUITE 3300 PITTSBURGH, PA 15219 412 - 281 -4256 WESTERN PENNSYLVANIA OFFICE: 983 THIRD STREET BEAVER, PA 15009 724 - 774-6000 SCRANTON OFFICE: 220 PENN AVENUE SUITE 305 SCRANTON, PA 18503 570 - 342 -4231 CENTRAL PENNSYLVANIA OFFICE: P.O. Box 628 HOLLIDAYSBURG, PA 16648 814 -695 -5064 SOUTH NEW JERSEY OFFICE: - 100 CENTURY PARKWAY SUITE 200 PO Box ?JEW, MOUNT LAUREL, NJ 08054 856 -727 -6000 NORTH NEW JERSEY OFFICE: CONNELL CORPORATE CENTER 400 CONNELL DRIVE SUITE 5400 BERKELEY HEIGHTS, NJ 07922 908 - 790 -1401 DELAWARE OFFICE: 300 DELAWARE AVE. SUITE 800 WILMINGTON, DE 19801 302- 888.1112 • MEMBER OF THE HARMONIE GROUP Writer. Stephen L. Banko, Jr., Esquire** Direct Dial: (717)760.7501 E -Mall: shanko& maroollsedelstein.com March 25, 2014 Anthony P. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 Re: PPL v. Precision Underground Construction, et al. Cumberland CCP: 13 -4820 Our File No. 21500.4 -00049 Dear Mr. Krzywicki: 1 enclosed my clients' verified Answers to Interrogatories and Response to Request for Production of Documents. I trust this now renders your client's Motion to Compel Discovery moot. As a Rule to Show Cause has been issued, however, I will file an Answer to the extent your client will not withdraw the Motion as moot. Should you wish to discuss this matter, please feel free to contact me. /amg Enclosures "Certified as a Civil Trial Advocate by the National Board or Trial Advocacy A Pennsylvania Supreme Court Accredited Agency (-:R, DEFENDANT'S EXHIBIT EL, 1- Q I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by facsimile transmission, and by placing the same in the United States mail at Camp Hill, Pennsylvania, first -class postage prepaid, on the day of rnoc , 2014, and addressed as follows: Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.O. Box 505 New Hope, PA 18938 MARGOLIS EDELSTEIN By: a, Angela n. U y) . Gayman, e I Assistant KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 2214 APR -9 fal I1: 4 i:171PEN 4S LY VAN P i Y IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13 -4820 Civil vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. ARBITRATION PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, "JOHN DOE" NOW KNOWN AS SCOTT BROWN Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Definitions 1. The words "you" and "your" mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean all entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" means to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you deny any of the matters set forth below, you shall set forth in detail the reasons why you cannot fully admit the matter. If, in good faith, you qualify any answer or deny any part of a matter of which an admission is requested, you shall specify so much of it as is true and qualify or deny the remainder. Pursuant to Pa. R.C.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 2. On or about April 4, 2012, Defendant, "John Doe" now known as Scott Brown, while in the course of his employment with Defendant, Precision Underground Construction Services Corp., performed excavation in the vicinity of the 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania. 6. On or about April 4, 2012, Defendant, "John Doe" now known as Scott Brown, while operating Defendant, Precision Underground Construction Services Corp.'s equipment, struck and damaged an underground primary cable. 7. Defendant, Precision Underground Construction Services Corp. did not provide Defendant, "John Doe" now known as Scott Brown, with a training manual nor provide the defendant with training in precautions or procedures to employ when digging near underground service lines. 8. Neither Defendant has any photographs of the site taken either before or after the service line was damaged. 9. Neither Defendant wrote any notes, memoranda or letters concerning the incident occurring on or about April 4, 2012. 6. On or about April 4, 2012, the Defendants had knowledge that utility lines were at the location where the underground cable was damaged. 7. Neither before nor after April 4, 2012, did either Defendant use hand-digging techniques to identify the location of the underground cable that was damaged. 8. Defendants admitted damaging the service line on April 4, 2012. 9. You began excavation at the site after the Lawful Start Dates provided by the Pennsylvania One Call System. 10. Defendant will not present at the arbitration hearing, testimony from an expert witness. 11. Defendant will not present at arbitration or trial photographs of the site. 12. Defendant hit the underground primary cable while using trenchless excavation methods as defined in the construction industry. Dated: April 7, 2014 BY: KRZYWICKI & AS : MATES, P. wicki laintif CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions directed to Defendant, "John Doe" now known as Scott Brown, by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid, first class mail, and addressed as follows: Dated: April 7, 2014 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants, Precision Underground Construction Service Corp. and "John Doe" BY: KRZYWICKI dSSOCIATES, P.C. KRZYWICKI & ASSOCIATES, P.C. Anthony P. Krzywicki, Esquire Attorney for Plaintiff P.O. Box 505 New Hope, PA 18938 (215) 862 -4390 PA Attorney ID 23754 `- 1F 20i i f' {F'R -9 . fti i 11; 118 `;;.E, IilERLAND COUNTY FEHNSYLVAHIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13 -4820 Civil VS. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE ", Defendants. ARBITRATION PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Definitions 1. The words "you" and "your" mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean all entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual, mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you deny any of the matters set forth below, you shall set forth in detail the reasons why you cannot fully admit the matter. If, in good faith, you qualify any answer or deny any part of a matter of which an admission is requested, you shall specify so much of it as is true and qualify or deny the remainder. Pursuant to Pa. R.C.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 1. Defendant, Precision Underground Construction Services Corp.'s employees, agents, contractors or representatives performed excavation in the vicinity of 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania on or about April 4, 2012. 2. Defendant, Precision Underground Construction Services Corp.'s employee, agent, contractor, or representative while digging struck and damaged an underground primary cable on or about April 4, 2012. 3. The employee, agent, contractor, or representative who struck the service line on or about April 4, 2012 was not trained in digging procedures near buried primary cables. 4. Defendant, Precision Underground Construction Services Corp., does not have a training manual nor does Defendant provide training of its employees, agents, contractors, or representatives in precautions or procedures to employ when digging near underground primary cable. 5. Neither Defendant, Precision Underground Construction Services Corp.'s nor any of its employees, agents, contractors or representatives wrote any notes, memoranda or letters concerning the incident occurring on or about April 4, 2012 6. Defendant through its employees, agents, contractors or representatives called the Pennsylvania One Call System on or about March 28, 2012, ticket number 20120880021. 7. Defendant's Pennsylvania One Call ticket number 20120880021 had Lawful Start Dates of April 2, 2012 through April 11, 2012. 8. Defendant's Pennsylvania One Call ticket number 20120880021 proposed dig date was April 2, 2012. 9. You began excavation at the site after the Lawful Start Dates provided by the Pennsylvania One Call System. 10. Defendants did not dig within the lawfully specified time frame allotted by the Pennsylvania One Call System, Inc. 11. Neither Defendant, Precision Underground Construction Services Corp., nor its employees, agents, contractors or representatives maintained the integrity of PPL's site markings. 12. Neither Defendant, Precision Underground Construction Services Corp., nor its employees, agents, contractors or representatives met at the site of the excavation before the underground primary cable was damaged. 13. Neither Defendant nor anyone acting on Defendant's behalf know of a surveyor's report or plot plan or report from any engineer concerning the condition of the area near or around the underground primary cable.. 14. Defendant's employee admitted damaging the underground primary cable on April 4, 2012. 15. Defendant will not present at the arbitration hearing testimony from an expert witness. 16. Defendant will not present at arbitration or trial photographs of the site. 17. Defendant hit the underground primary cable while using trenchless excavation methods as defined in the construction industry. Dated: April 7, 2014 BY: CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions directed to Defendant, Precision Underground Construction Services Corp., by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid, first class mail, and addressed as follows: Dated: April 7, 2014 Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants, Precision Underground Construction Service Corp. and "John Doe" BY: KRZYWICKI & ASSOCIATES, P.C. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13-4820 Civil VS. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. ARBITRATION PRAECIPE TO WITHDRAW MOTION TO COMPEL TO THE PROTHONOTARY: Kindly mark the Motion to Compel of Defendant, Precision Underground Construction Services Corp., filed on or about March 5, 2014 WITHDRAWN in the above-captioned Civil Action. DATED: April 9, 2014 BY: KRZYWICKI C ATES, P.C. thony P. Attorney P.O. e 18938 (215) 862-4390 Attorney I.D. 23754 PPL Electric Utilities Corporation vs. Precision Underground Construction : : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Services Corp. and NO. 4820 Civi1 20 1 3 "John Doe" RULE 1312-1 C) m Fri .7.r 70 cri The Petition for Appointment of Arbitrators shall be substantially in the- Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Anthony P. Krzywicki , counsel for the plaintiff/4 eftly* in the above action (or actions), respectfully represents that: 1. The above -captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 5, 71 2.09 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Stephen L. Banko, Jr., Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ' AND NOW, , 200 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action actions) as prayed for. By the Court, EDGAR B. BAYLEY -4 CD -71 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13-4820 Civil vs. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. CERTIFICATE OF SERVICE I hereby certify that on August 8, 2014, a copy of the forgoing Petition for Appointment of Arbitrators was mailed via First Class Mail to the following by placing same in a depository under the exclusive care and custody of the United States Postal Service addressed to the last - known address for Defendants' counsel or Defendant: Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendants, Precision Underground Construction Service Corp. and "John Doe" DATED: August 8, 2014 KRZYWICKI : ' . 1 CIATES, P.C. ope, (215) 862 - Attorney for Plaintiff Attorney I.D. 23754 PPL Electric Utilities Corporation vs. Precision Underground Construction Services Corp. and "John Doe" RULE 1312-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 4820 r:Ivi 1 20 11 > The Petition for Appointment of Arbitrators shall be substantially in the' 6 Following form: --<• PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Anthony P. Krzywicki , counsel for the plaintiff/4 kulgok in the above action (or actions), respectfully represents that: 1. The above -captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 5 , 71 2 . 0 9 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Stephen L. Banko, Jr., Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. y submitte Antho ER OF NOW, petition, Esq., and captioned action actions) as yed for. Esq. 20114/ipconsideration of the foregoing Esq., and Esq., are appointed arbitrators in the above 4, 1264-4.4th 4 —C1 Mt L. rri C.: CII f ,r t,; .: KRZYWICKI &ASSOCIATES, P.C. �' + ` , IT Anthony P. Krzywicki,Esquire 1,T Attorney for Plaintiff �" f + :I I : v J P.O. Box 505 C,t,�s r r New Hope, PA 18938 �1-N i5{� UOrU'�j Y (215) 862-4390 ,=°N/A PA Attorney ID 23754 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13-4820 Civil VS. ARBITRATION PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. PLAINTIFF'S SECOND REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT, PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Definitions 1. The words "you" and "your" mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean all entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships,joint ventures, corporations, trusts,estates,public agencies,departments,bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual, mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you,your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you deny any of the matters set forth below, you shall set forth in detail the reasons why you cannot fully admit the matter. If, in good faith, you qualify any answer or deny. any part of a matter of which an admission is requested, you shall specify so much of it as is true and qualify or deny the remainder. Pursuant to Pa. R.C.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 1. All pictures in Exhibit "A", "B", and "C" are of the site where Defendant excavated on or about April 4, 2012 in the vicinity of 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania. 2. All pictures in Exhibit "A", `B", and "C" are a true and correct representation of the vicinity of 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania where Defendant excavated on or about April 4, 2012. 3. All pictures in Exhibit "D" and "E" are a true and correct representation of the vicinity of 7115 Salem Park Circle, Hampden, Cumberland County, Pennsylvania where Defendant excavated on or about April 4, 2012. KRZYWICKI&ASSOCIATES,P.C. Dated: October 14, 2014 BY: tomey P. Krzyquir for P EXHIBIT A <�<« - . \� Nk.�� EXHIBIT B 7' o v b k 1. f �f EXHIBIT C ,; .: 'r9 fi {�5 ,�'. ` � i y, t� Y �N.. _ 4. lA ✓5 ' :"�� ��F w _ f t �Di; � r, � � .. ���. .._ e �,�. .�". � � ,N` �„ ®�� :a r fi — "�S ��. � .. � �> w ? `� �. 'h �-t.. rKY �..... **' aP °,�, �� w�- � �+� r ?a v4 - tit �� _. .c �n � -,. EXHIBIT D \ i « � . . y . > .V" .ay. . . \ � \ + ° < o4 EXHIBIT E Fd; , LL 4 Jt t� o #� s �R Ly' CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions directed to Defendant, Precision Underground Construction Services Corp., by depositing a true copy of same in a depository under the exclusive care and custody of the United States Postal Service, via prepaid,first class mail, and addressed as follows: Stephen L. Banko Jr.,Esquire Margolis Edelstein 3510 Trindle Road Camp Hill,PA 17011 Attorney for Defendants, Precision Underground Construction Service Corp. and "John Doe" KRZYWICKI SOCI TES,P.C. Dated: October 14,2014 BY: Anthon zy uire Att y for mtiff STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 760-7501 FAX: (717) 975-8124 E-mail: sbanko( margolisedels IC OF TFl HE f p �j IOTA RY zettfmv.17 iM!I:L8 -CUt•;i3ER AND COUNTY PENNS YLVA! IA ein.com Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PPL ELECTRIC UTILITIES CORPORATION, Plaintiff v. PRECISION UNDERGROUND ' CONSTRUCTION SERVICES CORP. and "JOHN DOE," Defendants CIVIL ACTION - LAW DOCKET NO. 13-4820 CIVIL JURY TRIAL DEMANDED MOTION OF DEFENDANT, PRECISION UNDERGROUND., CONSTRUCTION SERVICES CORP, TO QUASH NOTICE TO ATTEND :z, DIRECTED TO STEPHANIE STINE 1. The above -referenced action is scheduled for an arbitration hearing pursuant to the Pennsylvania Rules of Civil Procedure on December 11, 2014. 2. On or about November 3, 2014, Plaintiff served upon counsel for Defendants a Notice to Attend addressed to"Stephanie Stine, an employee of Precision Underground Construction Services Corp., who made a call to the Pennsylvania One Call System on March 28, 2012 c/o Stephen L. Banko Jr., Esquire". A copy of said Notice to Attend is attached hereto, incorporated by reference and marked as Exhibit A. 3. At all times relevant hereto, Stephanie Stine ("Stine") was a secretary/receptionist for Defendant, Precision Underground Construction Services Corp. ("Precision"), including the date that Stine made.a Pennsylvania One Call, March 28, 2012. 4. At no time relevant hereto, including but not limited to March 28, 2012, was Stine a party to this action, or an officer or managing agent thereof. 5. Pa. R.C.P. No. 234.3 provides in pertinent part as follows: (a) A party may compel the attendance of another party or an officer or managing agent thereof for trial or hearing by serving upon that party a notice to attend substantially in the form prescribed by Rule 234.7. The notice shall be served reasonably in advance of the date upon which attendance is required. The notice may also require the party to produce documents or things. 6. As Stine was, at no time relevant hereto, a party to this action or an officer or managing agent of any party, a Notice to Attend is an inappropriate mechanism by which to secure the attendance of a non-party to attend a hearing or trial. 7. Accordingly, Precision moves this Honorable Court to quash the Notice to Attend served upon Precision's counsel in an attempt to compel the attendance of Stine at the time of the arbitration on December 11, 2014. 8. Plaintiff is represented by Anthony P. Krzywicki, Esquire, Krzywicki & Associates, P.C., P.O. Box 505, New Hope, PA 18938, PHONE: 215-862-4390, FAX: 215- 862-4393, EMAIL: akrzywickinmac.com. 9. Defendant is represented by Stephen L. Banko, Jr., Margolis Edelstein, 3510 Trindle Road, Camp Hill, PA 17011, PHONE: 717-760-7501, FAX: 717-975-8124, E- MAIL: sbanko@margolisedelstein.com. 10. A copy of this Motion for to Quash was served upon counsel for Plaintiff by electronic mail message on November 13, 2014, at which time counsel for Defendant sought Plaintiff's concurrence in the instant motion. A copy of the aforesaid electronic mail 2 messages are attached hereto, incorporated herein by reference and marked collectively as Exhibit B. 11. Plaintiff's counsel has not responded to the electronic mail message of November 13, 2014, and, therefore, it is assumed he does not concur. WHEREFORE, Defendant, Precision Underground Construction Services Corp., prays this Honorable Court enter an Order quashing the Notice to Attend directed to Stephanie Stine. Date: By: 3 MARGOLIS EDELSTEIN ST H N L. BANKO, JR. Counsel for Defendants VERIFICATION. I, Scott Brown, President of Precision Underground Construction Services Corp., have read the foregoing Motion to Quash Notice to Attend. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: \ \' \\-\\\'-\ =-. OTT B OWNT' President of Precision Underground Construction Services Corp. ICATE•.10'r SERVI I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by facsimile transmission, and by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the 17 11day of , 2014, and addressed as follows: Anthony R. Krzywicki, Esquire Krzywicki & Associates, P.C. P.Q. Box 505• New Hope, PA 18938 By: MARGOLIS EDELSTEIN Anger M. Gayman, L. al Assistant IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13-4820 Civil vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. ARBITRATION NOTICE TO ATTEND TO: Stephani Stine, employee of Precision Underground Construction Services Corp. who made a call to the Pennsylvania One Call System on March 28, 2012 c/o Stephen L. Banko Jr., Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 (1) You are directed to come to the Cumberland County Courthouse, One Courthouse Square, Zed Floor Hearing Room of the Old Courthouse, Carlisle, Pennsylvania, on December 11, 2014 at 1:00 PM, to testify on behalf of the Plaintiff in the above case, and to remain until excused. (2) If you fail to attend, telephone or to produce the documents or things required by this notice to attend, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. DATED: November 3, 2014 KRZYWI 1 SOCIATES, P.C. New ope, 215-862-4 Attorney ID No. 23754 DEFENDANT'S EXHIBIT 11/14/2014 Margolis Edelstein Mail - PPL v. Precision Underground Claim No. 02923717 ME File No. 21500.4-00049 MARGOLIS EDELSTEIN Stephen Banko <sbanko@margolisedelstein.com> PPL v. Precision Underground Claim No. 02923717 ME File No. 21500.4-00049 1 message Stephen Banko <sbanko@margolisedelstein.com> Thu, Nov 13, 2014 at 9:08 AM To: "akrzywicki@mac.com" <akrzywicki@mac.com> Bcc: "Banko, Steve" <sbanko@margolisedelstein.com>, "Artman, Christopher" <cartman@pnat.com> Anthony: Attached is a Motion to Quash the Notice to Attend to Stephani Stine. Please let me know whether you are willing to withdraw the Notice. If not, I intend to file the Motion today noting that you do not concur. Should you have any questions, please call. MARGOLIS EDELSTEIN Stephen L. Banko, Jr., Esq. office: 717-760-7501 fax: 717-975-8124 mobile: 717-554-1408 email: sbanko@margolisedelstein.com Certified As A Civil Trial Advocate By The National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency Visit us at www.margolisedelstein.com Attomey Profile: www.margolisedelstein.com/attorneys.php?action=view&id=113 Margolis Edelstein 3510 Trindle Rd. Camp Hill, PA 17011 Serving all of DE, NJ, PA and WV CONFIDENTIALITY NOTICE: This e-mail message is intended only for the personal and confidential use of the intended recipients. This message may contain privileged attomey-client communication. If you have received this message in error, any review or dissemination is strictly prohibited. Please notify us immediately by e-mail and delete the original message. 2 attachments •m Order Mot to Quash.pdf 34K 1-921 Motion to Quash.pdf 43K DEFENDANT'S EXHIBIT https://mai I.google.com/mail/u/0/?ui=2&i k=516b611801&view=pt&q=akrzywicki%40mac.com&psize=20&pm r=100&pdr=50&search=apps&th=149a97c007786... 1/1 PPL ELECTRIC UTILITIES : IN THE COURT OF COMMON PLEAS OF CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : CIVIL ACTION — LAW : NO. 13-4820 CIVIL PRECISION UNDERGROUND : CONSTRUCTION SERVICES and : "JOHN DOE," Defendants IN RE: DEFENDANT'S MOTION TO QUASH THE NOTICE TO ATTEND ORDER AND NOW, this Z 4' day of November, 2014, a hearing on the Defendant's Motion to Quash the Notice to Attend is set for Friday, December 5, 2014, at 3:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, / Anthony P. Krzywicki, Esquire For the Plaintiff �- Stephen L. Banko, Jr., Esquire For the Defendants :rim (p yes Ma ; ied it A,j IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA PPL ELECTRIC UTILITIES CORPORATION, Civil Action - In Law Plaintiff, No. 13-4820 Civil vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES CORP. and "JOHN DOE", Defendants. ARBITRATION PRAECIPE TO SETTLE, DISCONTINUE, AND END TO THE PROTHONOTARY: Kindly mark this matter Settle, Discontinue, and End against the Defendants, without prejudice upon payment of your costs only. DATED: December 3, 2014 KRZYWICKI & ASSOCIATES, P.C. P N- • - .pe, PA 18938 (215) 862-4390 Attorney I.D. 23754 PPL ELECTRIC UTILITIES CORPORATION, Plaintiff vs. PRECISION UNDERGROUND CONSTRUCTION SERVICES and "JOHN DOE," Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW : NO. 13-4820 CIVIL ORDER AND NOW, this ' day of January, 2015, the appointment of a Board of Arbitrators in the above -captioned case is VACATED. Kathleen Shaulis, Esquire, Chairman, shall be paid the sum of $50.00. Kathleen Shaulis, Esquire Chairman :rim Cory rAc,4ed 116, fps BY THE COURT, r 1