HomeMy WebLinkAbout10-17-14 (2) ESTATE OF GEORGE W. HOWARD : IN THE COURT OF COMMON PLEAS
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MOTION OF PETITIONERS ROBERT HOWARD _� ��' n�
AND DENNIS HOWARD TO COMPEL RESPONSE . �_, � �
FROM RESPONDENT ROBERT SURFIELD - �
TO DISCOVERY REQUESTS
Pursuant to PA. R.C.P. 4006 and 4019, Petitioners Robert Howard and Dennis Howard,
by and through their undersigned attorney, moves this Court to enter an Order compelling
Respondent Robert Surfield to fully and completely respond to Petitioners' Interrogatories and
Request for Production of Documents (First Set). In support of their motion, Petitioners state:
Factual Summary
1. George Howard, died testate on or about October 15, 2013.
2. The Last Will and Testament of George Howard was presented for probate on or
about December 2, 2013, by the Executor, John C. Oszustowicz.
3. A Caveat was filed on behalf of Petitioners on or about December 12, 2013.
4. The proceedings before the Register of Wills has consisted of the admission to probate
of the writing dated Apri124, 2012, after a conference with the Register of Wills on February 18,
2014, and the grant of letters testamentary on March 26, 2014, subject to the Stipulation of
Counsel, dated March 6, 2014.
5. On April 8, 2014, Petitioners filed an appeal from the Register's Order admitting the
Will to probate.
6. On August 13, 2014, a status conference was held before the Honorable Judge Ebert,
whereby an Order of Court was issued establishing certain deadlines for discovery which is to be
completed on or before October 31, 2014.
7. This matter is presently scheduled for a one day non jury trial for Wednesday,
February 4, 2015.
8. On August 29, 2014, in preparation for the one day non-jury trial, Petitioners by and
through their counsel served their first set of discovery requests on Respondent Robert Surfield.
A true and correct copy of the requests is attached to this motion as Exhibit"A".
9. There have been no objections filed to the discovery requests from Respondent as of
the date of this writing and more than thirty (30) days have elapsed since the date of the
discovery requests.
10. Respondent has not filed for a Protective Order pursuant to Pa. R.C.P. 4012.
The Discovery Request and Response
1 l. Pa. R.C.P. 4006(a)(2)provides: "Each interrogatory shall be answered fully and
completely unless objected to, in which event the reasons for the objection shall be stated
in lieu of an answer."
12. Pa. R.C.P. 4011 limits the scope of discovery and does not permit discovery that:
a. Is sought in bad faith;
b. would cause unreasonable annoyance, embarrassment, oppression, burden or
expense to the party;
c. Is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6;
d. Is prohibited by any law barring disclosure of inediation communications and
mediation documents; and
e. Would require the making of an unreasonable investigation by the party.
13. Subject to the state limitations, Pa. R.C.P. 4003.1 permits a party to obtain discovery
"regarding any matter, not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence, description, nature, content, custody,
condition and location of any books, documents or other tangible things_and the identity and
location of persons having knowledge of any discovery matter." ' �.;,
14. The information sought in these requests is necessary to properly prepare for the
hearing in this matter.
15. Repeated requests for response to the outstanding discovery responses from
Respondent have gone unanswered.
16. Concurrently herewith, Petitioners are filing a Motion for an Extension of the
Discovery Deadline for a period of ninety (90) additional days from the present deadline of
October 31, 2014.
WHEREFORE, Petitioners Robert Howard and Dennis Howard request this Honorable
Court to order:
(1) Respondent Robert Surfield to serve a full and complete responses to Petitioners'
discovery requests within five calendar days of this Order and award reasonable expenses,
including attorney fees, which Robert Howard and Dennis Howard incurred as a result of making
this motion; and
(2) Direct any other action with regard to the failure to make discovery as is just,
pursuant to Pa. R.C.P. 4019( c)(5).
Respectfully submitted,
� J �
Mark A. Mateya, Esq
Attorney ID No. 78931
55 W. Church Avenue
Carlisle, PA 17013
(717) 241-6500
(717) 241-3099 Fax
Date: �� �1 (�
ESTATE OF GEORGE W. HOWARD : CU�B�AND COUNOY ENN YLVANIA
Deceased
: N0. 21-13-1143
: ORPHANS' COURT DIVISION
INTERROGATORIES
DIRECTED TO ROBERT SURFIELD
(FIRST SET)
Pursuant to Pa. R.C.P. 4005, Robbie Howard and Dennis Howard, petitioners herein, by
and through their counsel, Mateya Law Firm, P.C., requests that Robert Surfield respond to these
written interrogatories within thirty days after service of this request.
DEFINITIONS
The following terms used in these Interrogatories have the following meanings:
1. "Document" and"writing" are used interchangeably, and shall be given its broadest
meaning under the Pennsylvania Rules of Civil Procedure, and shall mean, among other
things,the original and all copies of any written,printed,typed, electronically stored or
other graphic matter or data compilation of any kind or nature and any other tangible thing
in the custody, control of the estate of George W. Howard or the executor John C.
Oszustowicz or known by Robert Surfield to exist, or accessible by the Executor by virtue
of his position as Executor of the estate of George W. Howard,including by not limited to:
a. All contracts, agreements, letter agreements,representations,warranties,
certificates and opinions;
b. All letters or other forms of correspondence or communication, including
envelopes and notes, faxes, electronic mail,telegrams, cables, telex messages and
messages including reports,notes, notations, and memoranda of or relating to
telephone conversations or conferences;
EXHIBIT
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c. All memoranda,reports, test results, financial statements or reports,notes, scripts,
transcripts, tabulations, studies, analyses, evaluations, projections,work papers,
corporate records or copies thereof, expressions or statements of policy, lists,
comparisons, questionnaires, surveys, charts, graphs, summaries, extracts,
statistical statements or records, compilations and opinions or reports of
consultants;
d. All desk calendars, appointment books and diaries,whether tangible or in
electronic form;
e. All minutes, records, or transcripts of ineetings and conferences, and lists of
persons attending meetings or conferences;
f. All reports and summaxies of interviews and negotiations;
g. All books, articles, press releases,magazines,newspapers,booklets,brochures,
pamphlets, circulars, bulletins, notices, instructions, and manuals;
h. �11 motion pictures and photographs (whether developed or undeveloped), video
and audio recordings,microfilms,phonographs,tapes, compact discs, other
records, punch cards, magnetic tapes, discs, data cells, drums,print-outs,materials
on or in computer tapes, disks, compact discs, and memory, including backup
copies and deleted files on a computer storage device or media, whether located
on-site or off-site, and other data compilations from which information can be
obtained; and
i. Drafts of any document, revisions of drafts of any document and original or
preliminary notes.
Any document herein requested which has been in any way altered from its original form
by the addition of hand, typewritten, or electronic messages, notations, comments,
sketches or deletions shall be considered a separate document to be produced pursuant to
any applicable request.
2. "Communications" shall be used in its broadest sense and means all statements,
admissions, denials, inquiries, discussions, conversations,negotiations, agreements,
contracts, understandings,meetings,telephone conversations, letters, correspondence,
notes, faxes, electronic mail, voicemail messages,telegraphs,telexes, advertisements, or
any other form of written, electronic or verbal transmittal of information in the form of
facts, opinions, ideas, inquiries or otherwise.
3. "Identify," when used with respect to a document, means to state:
a. Type of document;
b. General subject matter;
c. The date of the document;
d. Author(s), addressee(s), and designated and actual recipient(s);
e. The identification of its last known custodian and location;
£ The exhibit number of the document, if it has been marked during the course of a
court proceeding.
4. "Identify," when used with respect to an individual,means to state:
a. The person's full name;
b. All known aliases;
c. Present or the last known business or home address; and
d. Present position or business affiliation.
5. "Identify,"when used with respect to any other person,means to give the person's official,
legal and formal name, and/or the name under which the person acts or conducts business;
the address of the person's place of business,profession, commerce or home, and the
identity of the person's principal or chief executive officer or person who occupies the
position most closely analogous to a chief executive.
6. "Relate(s)to"means constitute(s),refer(s)to,reflect(s),concern(s),pertain(s)to, or in any
way logically or factually connect(s) with the matter described in the Request.
7. "Estate"means the estate of George W. Howaxd.
8. "You," and "your"means Robert Surfield.
RULES OF CONSTRUCTION
In construing these Requests:
1. The singular shall include the plural and the plural shall include the singular.
2. A masculine, feminine, or neuter pronoun shall include each of the other genders.
3. The present tense includes the past and future tenses. "All"means"any and all;"
"any" means"any and all." "Including"means"including,but not limited to." "And"and"or"
encompass both"and" and"or."
4. Unless otherwise specified in the Request, each Request shall extend to all
information and documents which have been available to, in the possession of or subject to your
control during the period from George W. Howard's granting of the medical power of attorney to
you to the last date of compliance with the Request.
INSTRUCTIONS FOR INTERROGATORIES
1. Each Interrogatory is to be answered in writing and under oath,by Robert Surfield
within thirty days after service of the Requests.
2. In answering these Interrogatories,Robert Surfield shall furnish all information
available to him at the time of answering, including information in the possession, custody or
control of himself, his representatives, agents, or attorneys. These Interrogatories are continuing
in character. Therefore,you are required to supplement your answers in accordance with Rule
4007.4 of the Pennsylvania Rules of Civil Procedure if further or different information which is
obtained with respect to any Interrogatory.
3. You shall provide a complete answer to each interrogatory.
4. Each Interrogatory shall be answered separately and as completely as possible.
The fact that investigation is continuing or that discovery is not complete is not an excuse for
failure to answer each Request as fully as possible. If you are unable to answer an Interrogatory
after he has attempted to obtain the information,he is to answer to the extent possible and to make
known the reason for the production of incomplete information. You are to state what information
he has concerning the unanswered portion, specify why it is he is unable to answer the remainder,
and specify how he attempted to obtain the unknown information.
7. If any form of privilege or other protection from disclosure is asserted in objecting
to any Interrogatory or part of an Interrogatory and information is not provided on the basis of such
assertion:
a. In asserting the privilege, the responding party shall, in the objection to the
Request, identify with specificity the nature of the privilege (including work
product)that is being claimed;
b. The following information should be provided in the objection,if known or
reasonably available,unless divulging such information would cause disclosure of
the allegedly privileged information,
i. For oral communications:
1. the name of the person making the communication and the
names of all persons present while the communication was
made, and where not apparent,the relationships of persons
present to the person making the communication;
2. the date and place of the communication; and
3. the general subject matter of the communication.
ii. For documents:
1. the type of document;
2. the general subject matter of the document;
3. the date of the document; and
4. such other information as is sufficient to identify the
docuxnent, including where appropriate,the author,
addressee, custodian, and any other recipient of the
document, and where not apparent,the relationship of the
author, addressee, custodian, and others to each other.
g. If, in answering these Interrogatories,the responding party encounters any
ambiguities when construing a question, instruction,or definition,the responding party's answer
shall set forth the matter deemed ambiguous and the construction used in answering.
9. If the responding party objects, in paxt>to responding to any request,please set
forth,in detail,the basis of the objection. Objecting to a portion of a request does not relieve you
of the duty to respond to those parts of the request which are not objectionable.
10. If any information is unavailable, or has been destroyed, or has been discarded,
identify the information or account or thing that has so been treated(by physical description,date,
type, author, addressee, signatory, subject and length), state when the account information was
made unavailable,destroyed,or discarded to the best of your knowledge,and why,and identify the
person who ordered the document or thing to be made unavailable, destroyed, or discarded.
11. For each Interrogatory:
a. Identify the person who has answered the Request.
b. Identify each document relied on,or which forms a basis for the answer,or
which corroborates the answer given. Cite the specific pages of each
document on which you rely.
Identify each person who assisted or participated in preparing andJor supplying any of the
information given in answer to, or relied upon in preparing the answer to the Request.
INTERROGATORIES
1. Please identify any and all medical facilities you are aware of where the decedent George
W.Howard was treated or otherwise furnished with medical or ongoing health and nursing
care from November 2011 thorugh April of 2012.
2. Please identify any and all physicians,therapist, and any other medical professionals you
are aware that treated the decedent George W.Howard from November 2011 thorugh April
of 2012.
3. Please identify any and all medical facilities you are aware of where the decedent George
W.Howard was treated or otherwise furnished with medical or ongoing health and nursing
care from November 2011 thorugh April of 2012.
4. Please identify any and all medical facilities you are aware of where the decedent George
W. Howard was treated or otherwise furnished with medical or ongoing health and nursing
caxe from November 2012 thorugh April of 2013.
5. Please identify any and all physicians,therapist, and any other medical professionals you
are aware that treated the decedent George W.Howard from November 2012 thorugh April
of 2013.
6. Please identify any and all medical facilities you are aware of where the decedent George
W. Howard was treated or otherwise furnished with medical or ongoing health and nursing
care from November 2012 thorugh April of 2013.
7. Please identify the date on which you were appointed the Medical Attorney in Fact for
George W. Howard. Please include a copy of the Medical Power of Attorney Document.
Dated: August , 2014
Mark Mateya, Esq.
Attorney ID#78931
Mateya Law Firm,P.C.
55 West Church Ave.
Carlisle, PA 17013
(717) 241-6500
(717) 241-3099 (Fax)
Attorney for
Robbie Howard and Dennis Howard
CERTIFICATE OF SERVICE
I, Mark A. Mateya, Esquire, hereby certify that I have served a copy of the foregoing
document on the following person(s)by depositing a true and correct copy of the same in the
United States Mail, by way of United States Mail, first class,postage prepaid, at Carlisle,
Cumberland County, Pennsylvania addressed to:
Ivo V Otto III Esq
Martson Law Offices
10 East High Street
Carlisle PA 17013
Marcus A McKnight, III Esq
Irwin& McKnight Law Offices
60 West Pomfret Street
Carlisle PA 17013
�� �
V
Maxk A. Mateya, Esquire
55 W. Church Avenue
Carlisle, PA 17013
(717) 241-6500
(717) 241-3099 Fax
Dated: r� �� � �