Loading...
HomeMy WebLinkAbout14-6697 Supreme Co 3 =aif� ennsylvania COM' Of�COtllill0)il): leaS For Prothonotary Use Only: Docket No: t County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required bylaw or rules of court. I Commencement of Action: I SComplaint Writ of Summons Petition E 0 Transfer from Another Jurisdiction [3 Declaration of Taking I C Lead Plaintiffs Name: Lead Defendant's Name: T h t1�, 1 X50 Dollar Amount Requested: rAwithin arbitration limits � I Are money damages requested? Yes [� No }} (check one) %outside arbitration limits I � j N Is this a Class Action Suit? 13 Yes [kNo Is this an MDJAppeal? 0 Yes No II . A Name of Plaintiff/Appellant's Attorney: l.L�� 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. jTORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS j [3 Intentional 0 Buyer Plaintiff Administrative Agencies Malicious Prosecution ® Debt Collection:Credit Card El Board of Assessment jL, Motor Vehicle Q Debt Collection:Other Q Board of Elections 7 Nuisance Q Dept.of Transportation 0 Premises Liability Statutory Appeal:Other 0 Product Liability(does not include mass tort) 0 Employment Dispute: E C3 Slander/Libel/Defamation Discrimination C M Other: Q Employment Dispute:Other Q Zoning Board Z' Other: I O her a. fi o , MASS TORT 1$ 0 Asbestos N 0 Tobacco 0 Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS i [3 Toxic Waste Q Ejectment [3 Common Law/Statutory Arbitration B Other' ❑ Eminent Domain/Condemnation Q Declaratory Judgment -I Ground Rent 0 Mandamus Landlord/Tenant Dispute Q Non-Domestic Relations EJ Mortgage Foreclosure:Residential Restraining Order f PROFESSIONAL LIABLITY 1 Mortgage Foreclosure:Commercial Quo Warranto Dental [i Partition El Replevin E3 Legal E° Quiet Title Other: C] Medical 0 Other: ,q Other Professional: E t Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK, Plaintiff, NO. ` L4 - Uo6 � DENNIS BOYLE, AND BOYLE `� LITIGATION f' Defendants NOTICE TO DEFEND 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 an 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 SHOULD 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 South Bedford Street Carlisle, PA 17013 1-800-990-9108 717-249-3166 1IS :�S J 0A, 4851-0710-8382.1 1 3i3s�� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK, Plaintiff, vs. NICHOLAS NO. DENNIS BOYLE, AND BOYLE LITIGATION Defendants COMPLAINT AND NOW, comes Plaintiff, NICHOLAS KNOPICK, by and through his attorneys, Kutak Rock LLP, and files the following COMPLAINT against Defendant, Dennis E. Boyle and Boyle Litigation: 1. Plaintiff Nicholas Knopick has a residence at 151 Idle Road, Marysville, PA 17053. 2. Defendant, Dennis E. Boyle has his principal place of business at 4660 Trindle Road, Suite 200, Camp Hill, PA 17011. 3. Defendant Boyle Litigation has its principal place of business at 4660 Trindle Road, Suite 200, Camp Hill, PA 17011. Boyle Litigation is a successor in interest to Boyle Autry & Murphy and Boyle Neblett & Wegner and assumed all the liabilities of Boyle Autry & Murphy and Boyle Neblett & Wegner. 4. Defendants were hired by Plaintiff as his lawyers to investigate and pursue an action against UBS Swiss Financial Services AG, and/or other UBS affiliated entities and individuals (hereinafter "dispute with UBS"), a legal malpractice suit against Connelly and Downey ("Downey matter"), a claim against H&R Block/Ameriprise ("HR Block/Ameriprise 4851-0710-8382.1 2 matter"), and a claim relating to certain civil rights violations in Bull Shoals, Arkansas, among other activities. 5. Plaintiff's contracts with Defendants required him to make timely "retainer" payments, which according to the express terms of the contracts, would be paid to the attorney trust IOLTA account and held in trust for Plaintiff's benefit until such time as Defendants earned the fees or reimbursement of expenses and costs, as set forth in accurate monthly invoices and approved by Plaintiff for payment. 6. Plaintiff deposited over $100,000 to Defendants' attorney trust IOLTA account for retainer payments as required by the contracts. 7. Upon information and belief, Defendants did not hold Plaintiff's retainer payments in trust for his benefit as required by the terms of the contracts and the ethical rules of the Supreme Court of Pennsylvania. 8. Rather, upon information and belief, Defendants comingled trust account funds with operating funds, used trust account funds to pay firm operating expenses, including payments to lawyers and others, used trust account funds to pay for Mr. Boyle's credit card expenses, used trust account funds to pay Mr. Boyle's country club membership and country club charges, used trust account funds to purchase assets for the firm and Mr. Boyle personally and otherwise improperly used Plaintiff's trust funds against his interest and in the interest of Defendants. Engagement Letters/Contracts Between Plaintiff and Defendants A. THE UBS MATTER ENGAGEMENT 9• On or about October 1, 2008, Plaintiff entered into a contract with Defendants relating to the UBS Matter. Exhibit A, hereto. 4851-0710-8382.1 3 10. As an express inducement to enter into the contract, Dennis E. Boyle specifically represented to Plaintiff that he was an expert in securities matters and securities litigation, as well as international law, and had successfully handled cases against UBS. 11. Plaintiff paid a retainer of $25,000 to Defendants pursuant to the contract's express and implied terms requiring Defendants to first undertake actual work on Plaintiff's UBS Matter, then bill him for the work done, and then deduct the amount of the bill from the retainer. 12. In accordance with the express and/or implied terms of the contract, Defendants were to deposit the retainer into the attorney trust account, i.e. the "IOLTA account." 13. In accordance with the express and implied provisions of the contract, during the course of Defendants' representation of Plaintiff in connection with his dispute with UBS, Defendants provided monthly billing statements describing their work on the matter with the amount of fees and expenses incurred. 14. In accordance with the express and/or implied provisions of the contract, Defendants' invoice statements prior to August 10, 2010, would indicate the amounts deducted from "escrow"to satisfy the invoice, along with the remaining balance available to satisfy future invoices. 15. After August 10, 2010, through approximately 2012, Defendant's invoices did not indicate the amounts deducted from "escrow" or the remaining balance of Plaintiff's retainer available to satisfy future invoices. Rather, all invoices after August 20, 2010, merely indicated invoices satisfied by application of"Client Funds." 16. Prior to August 2010, continuing through termination of the relationship, the express and implied provisions of the contract required Defendants to hold Plaintiffs retainer 4851-0710-8382.1 4 Payments in the trust account and not apply any amounts to Defendants' operatingexpenses p ens es until such amounts were earned, invoiced and noticed to Plaintiff. IT According to the express and/or implied provisions of the contract, Defendants were required to obtain information from UBS to identify the transactions that resulted in Plaintiff's losses. 18. According to the express and/or implied provisions of the contract, Defendants were required to obtain a forensic accountant to evaluate the transactions that resulted in Plaintiff's losses. 19: According to the express and/or implied provisions of the contract, Defendants were required to provide information to Patrizia Holenstein ("Dr. Holenstein'), a Swiss lawyer to whom Plaintiff paid a $10,000 retainer, in order to obtain Dr. Holenstein's opinion on the Swiss law implications concerning the transactions that resulted in Plaintiff's losses. 20: According to the express and/or implied provisions of the contract, Defendants were required to either institute suit against UBS or provide Plaintiff with an explanation of the issues preventing such suit. 21. In or about December 2012, Plaintiff terminated Defendants' representation. 22. Defendants did not obtain information from UBS identifying the transactions that resulted in Plaintiff's losses. 23. Defendants never obtained a forensic accountant to evaluate any of his UBS transactions. 24. Defendants failed to communicate with Dr. Holenstein, provided misleading information to Dr. Holenstein, and did not provide sufficient truthful information in order for h her to evaluate the Swiss law implications concerning the transactions that resulted in Plaintiff's 4851-0710-8382.1 5 losses. Defendants did, however, spend thousands of dollars of Plaintiff's money to research suitable hotels and to travel to Zurich (with Mr. Boyle's daughter)to visit Dr. Holenstein, ski the Alps, and return to the U.S. via Germany. 25. Defendants never instituted suit against any UBS entity and never provided Plaintiff with any explanation as to the issues preventing such suit. 26. Plaintiff paid Defendants over $100,000 for their representation of him in this matter (some of which payments included work on the Downey matter) in accordance with the contract and Defendants' continual demands for replenishment of the retainer amount to be deposited to the IOLTA account. B. THE DOWNEY MATTER ENGAGEMENT 27. Pursuant to an oral agreement, Defendants undertook representation of Plaintiff in connection with the legal malpractice suit against Connelly and Downey in the Middle District of Pennsylvania. 28. According to the express and/or implied terms of the contract, Defendants were required to locate, interview and preserve the testimony of certain witnesses integral to the claims as identified by Plaintiff. 29. According to the express and/or implied terms of the contract, Defendants were required to retain, inform and preparet.for presentation at trial, an expert witness to support Plaintiff s claims. 30. According to the express and/or implied terms of the contract, Defendants were required to file a complaint against Connelly and Downey, which properly set forth Plaintiffs causes action. 6 4851-0710-8382.1 31. Plaintiff received invoices from Defendants for work appearing to relate to the Downey matter, which invoices also purported to describe work done in connection with the UBS matter. 32. In accordance with the express and/or implied terms of the contract relating to the Downey matter, Plaintiff paid Defendants retainer amounts to be deposited in Defendants' IOLTA trust account, not to be used for any other purpose other than satisfying Plaintiff's invoices, and only after Defendants had done work on the Downey matter,provided a description of such work on an invoice, and provided notice to Plaintiff that amounts from his retainer payments to the IOLTA account would be used to satisfy the invoices. 33. Plaintiff paid Defendants over $50,000 in accordance with the terms of the contract and Defendants' continual demands for replenishment of the retainer amount to be deposited to the IOLTA account. 34. Defendants never located, interviewed or preserved the testimony of the witnesses identified by Plaintiff. 35. Defendants did not retain, inform or prepare for presentation at trial an expert witness to support Plaintiff's claims. 36. Defendants did not prepare and file a complaint against Connelly and Downey, which properly set forth Plaintiff s causes of action. 37. In January, 2013, the Downey matter was transferred to Josh Autry to handle when he left Defendants' firm. 38. At the time the Downey matter was transferred to Josh Autry to handle, Plaintiff had made all payments pursuant to the contract with Defendants. 7 4851-0710-8382.1 C. THE HR BLOCK/AMERIPRISE CONTRACT 39. Pursuant to an oral agreement, Defendants undertook representation of Plaintiff in connection with his claims against HR Block/Ameriprise. 40. As specific inducement for Plaintiff to enter into to the contract for representation relating to the HR Block/Ameriprise matter, Defendants specifically represented that Dennis E. Boyle was an expert in securities law and securities litigation. 41. According to the express and/or implied terms of the contract, Defendants were required to obtain information from HR Block/Ameriprise in connection with certain unauthorized transactions on Plaintiff's account. 42. According to the express and/or implied terms of the contract, Defendants were required to locate, interview and preserve the testimony of certain witnesses integral to the claims as identified by Plaintiff. 43. According to the express and/or implied terms of the contract, Defendants were required to retain, inform and prepare for presentation at trial, an expert witness or witnesses to support Plaintiff's claims. 44. According to the express and/or implied terms of the contract, Defendants were required to file a complaint against HR Block/Ameriprise, which properly set forth Plaintiff's causes action. 45. Plaintiff received invoices from Defendants for work appearing to relate to the Ameriprise matter. 46. In accordance with the express and/or implied terms of the contract relating to the HR Block/Ameriprise matter, Plaintiff paid Defendants retainer amounts to be deposited in Defendants' IOLTA trust account, not to be used for any other purpose other than satisfying 8 4851-0710-8382.1 Plaintiff's invoices, and only after Defendants had done work on the Ameriprise matter, provided a description of such work on an invoice, and provided notice to Plaintiff that amounts from his retainer payments to the IOLTA accounts would be used to satisfy the invoices. 47. Plaintiff paid Defendants over $10,000 in accordance with the terms of the contract and Defendants' continual demands for replenishment of the retainer amount to be deposited to the IOLTA account. 48. Defendants never obtained information from HR Block/Ameriprise relating to the unauthorized transactions in Plaintiff's account. 49. Defendants never located, interviewed or preserved the testimony of the witnesses identified by Plaintiff. 50. Defendants did not retain, inform or prepare for presentation at trial an expert witness to support Plaintiff's claims. 51. Defendants did not prepare and file a complaint against HR Block/Ameriprise, which properly set forth Plaintiffs causes of action and never explained to Plaintiff any issues preventing such action. D. THE BULL SHOALS ENGAGEMENT 52. Pursuant to an oral agreement, Defendants undertook representation of Plaintiff in connection with his claims in the Bull Shoals matter. 53. According to the express and/or implied terms of the contract, Defendants were required to locate, interview and preserve the testimony of certain witnesses integral to the claims as identified by Plaintiff. 9 4851-0710-8382.1 54. According to the express and/or implied terms of the contract, Defendants were required to retain, inform and prepare for presentation at trial, an expert witness to support Plaintiff s claims. 55. According to the express and/or implied terms of the contract, Defendants were required to file a complaint in Arkansas federal court, which properly set forth Plaintiff's causes action. 56. According to the express and/or implied terms of the contract, Defendants were required to answer interrogatories. 57. Plaintiff received invoices from Defendants for work appearing to relate to the Bull Shoals matter. 58. In accordance with the express and/or implied terms of the contract relating to the Bull Shoals matter, Plaintiff paid Defendants retainer amounts to be deposited in Defendants' IOLTA trust account, not to be used for any other purpose other than satisfying Plaintiff's invoices, and only after Defendants had done work on the Bull Shoals matter, provided a description of such work on an invoice, and provided notice to Plaintiff that amounts from his retainer payments to the IOLTA accounts would be used to satisfy the invoices. 59. Plaintiff paid Defendants in accordance with the terms of the contract and Defendants' continual demands for replenishment of the retainer amount to be deposited to the IOLTA account. 60. Defendants never located, interviewed or preserved the testimony of the witnesses identified by Plaintiff. 61. Defendants did not retain, inform or prepare for presentation at trial an expert witness to support Plaintiff's claims. 4851-0710-8382.1 10 62. Defendants did not prepare and file a complaint in the Bull Shoals matter, which properly set forth Plaintiff s causes of action. 63. Defendants did not answer interrogatories. 64. In January, 2013, the Bull Shoals matter was transferred to Josh Autry to handle when he left Defendants' firm. 65. At the time the Bull Shoals matter was transferred to Josh Autry to handle, Plaintiff had made all payments pursuant to the contract with Defendants. FIRST COUNT BREACH OF CONTRACT 66. Plaintiff incorporates by reference each and every allegations set forth in the preceding paragraphs as if set forth herein at length. 67. Plaintiff paid Defendants over $150,000 in accordance with the terms of the contracts as set forth above. 68. Each and every precondition for performance was met. 69. Plaintiff met every term of the contracts. 70. Defendants breached the express terms of the contracts, by, among other things, using Plaintiff's retainer payments to the attorney trust IOLTA account before they were earned, invoiced and approved by Plaintiff. 71. Defendants breached the express terms of the contracts, by, among other things, failing to appropriately account for the uses and applications of Plaintiff's retainer payments to the attorney trust IOLTA account on any invoice or report to Plaintiff. 72. Defendants breached the express and/or implied terms of the contracts by: a. Failing to obtain information from UBS relating to the transactions that caused Plaintiff's losses; 11 4851-0710-8382.1 b. Failing to obtain information from UBS to identify the transactions that resulted in Plaintiff's losses. C. Failing to obtain a forensic accountant to evaluate the transactions that resulted in Plaintiff's losses. d. Failing to provide information to Dr. Holenstein in order to obtain her opinion on the Swiss law implications concerning the transactions that resulted in Plaintiff's losses. e. Failing to institute suit against UBS or provide Plaintiff with an explanation of the issues preventing such suit. f. Failing to locate, interview and preserve the testimony of certain witnesses integral to the claims in the Downey matter. g. Failing to retain, inform and prepare for presentation at trial an expert witness to support Plaintiff's claims in the Downey matter. h. Failing to file a complaint against Connelly and Downey, which properly set forth Plaintiffs causes of action and/or failing to properly amend such complaints pursuant to Court opinions and rules. i. Failing to obtain information from HR Block/Ameriprise in connection with certain unauthorized transactions on Plaintiff s account. j. Failing to locate, interview and preserve the testimony of certain witnesses integral to the claims against HR Block/Ameriprise as identified by Plaintiff. k. Failing to retain, inform and prepare for presentation at trial an expert witness or witnesses to support Plaintiffs claims against HR Block/Ameriprise. 1. Failing to file a complaint against HR Block/Ameriprise, which properly set forth Plaintiff s causes of action. M. Failing to locate, interview and preserve the testimony of certain witnesses integral to the claims in the Bull Shoals matter. n. Failing to retain, inform and prepare for presentation at trial an expert witness to support Plaintiff s claims in the Bull Shoals matter. o. Failing to file a complaint in the Bulls Shoals matter, which properly set. forth Plaintiffs causes of action and/or failing to properly amend such complaints pursuant to Court opinions and rules. P. Failing to answer interrogatories in the Bull Shoals matter. 12 4851-0710-8382.1 73. Plaintiff has been damaged by each of the breaches of the contracts by Defendants in the amount of the fees paid to Defendants for work that was never done and or work that was not done according to the terms of the contract and expectations of Plaintiff. WHEREFORE, Plaintiff demands judgment in his favor and against Defendants, jointly and severely for compensatory damages and consequential damages in amounts representing at least return of the fees paid, plus interest and costs, attorneys fees and such other and further relief as this Court deems just and proper. SECOND COUNT VIOLATION OF PENNSYLVANIA'S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT 74. Plaintiff incorporates by reference each and every allegation in the preceding paragraphs as if set forth herein at length. 75. Plaintiff is a consumer who has suffered ascertainable loss as a result of Defendants' unfair trade practices pursuant to 73 P.S. §§ 201-1 to 201-9.2. 76. Plaintiff's interactions with Defendants were for his personal benefit as a consumer. Defendants engage in trade and commerce in Pennsylvania. 77. Defendants induced Plaintiff to enter into the contracts by fraudulent means, causing a likelihood of confusion and/or misunderstanding as to the source, sponsorship, approval or certification of their services or that they are of a particular standard, quality or grade, including but not limited to, making false representations that Dennis E. Boyle and/or Josh Autry were experts in securities law, securities litigation or international law, and/or making false representations that Plaintiff's retainer payments would be placed in the attorney trust IOLTA account and not used to pay firm expenses or for any other purpose until the fees had 13 4851-0710-8382.1 been earned, accounted to Plaintiff on an invoice and approved for payment by Plaintiff, when Defendants had no such intent, creating a likelihood of confusion or misunderstanding. 78. Defendants' misrepresentations were made willfully and knowingly with an intent to deceive Plaintiff and obtain payments from Plaintiff to which Defendants were not entitled. 79. Defendants' pattern and practice of holding themselves out as experts in securities law, securities litigation and international law and misrepresenting their use of trust funds is an unfair practice because consumers, including Plaintiff, should not be mislead and defrauded against the public interest or otherwise result in harm to the public interest. 80. Defendants have violated the unfairness predicate of the Act by engaging in unscrupulous business practices and by violating Pennsylvania statutory public policy, which public policy violations in the aggregate caused substantial injury to Plaintiff. 81. Defendants' misconduct caused economic damage to Plaintiff, including the inducement to enter into the contracts and to pay Defendants' substantial retainer amounts, which in fact, were not treated by Defendants as retainers, but as advance payments. 82. Had Plaintiff not been so misled, he would not have entered into the contracts and would not have paid Defendants substantial "retainer" amounts. With knowledge of truth, Plaintiff would not have been induced to enter into the contracts or pay retainer amounts. 83. Through their repeated misconduct, Defendants caused substantial injury to Plaintiff, caused him economic damage, including inducing him to enter into the contracts and pay the retainer amounts, which he otherwise would not have done. 84. Plaintiff should be awarded damages to deter and punish Defendants from continuing to engage in their unlawful, unethical, misleading and fraudulent conduct described herein. 14 4851-0710-8382.1 85. Absent a practical mechanism for consumers to recover the damages Defendants' unfair practices have caused, there is substantial damage that these wrongful practices will continue. WHEREFORE, Plaintiff damages judgment against Defendants,jointly and severally, as follows: A. That this Court award damages to Plaintiff; B. That this Court award attorney's fees and costs; C. That this Court enter an injunction rescinding the contracts and requiring Defendants to repay Plaintiff all amounts tendered thereunder; D. That this Court award treble damages for Defendants' knowing and willful misconduct; E. That this Court award such further relief as may be deemed just and proper. DATED this November 18, 2014 ()7� lie B. N ovan Pa. ttorne I.D.No. 81231 uta Roc LLP ibert Place 50S. 16th Street, Suite 28B Philadelphia, PA 19102-2519 (215) 299-4384 Attorneys for Nicholas Knopick 15 4851-0710-8382.1 NOV 15 2014 11:57am P001/001 fi S F Z,'l iclzcl tS,Kstopick., N eii that the StatcmclAS Made in.#hia Cnt,7.Iylahtt are true and =10cuzate to the best Of MY kllclwledge, it>farnlaticn. and belief I understand that false. tate�entS nxade herein,are SLIl feet to the Penalties of I$pa C.S. Sub-Section 1904,relating to tnjsvozn fal5i:f.C•atiOn to authorities- t Date: //- I-) Nicholas ic.k i i F 3 3 3 € i } t # pk } Z iiH � KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY I.D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK v. DENNIS BOYLE and BOYLE LITIGATION COURT OF COMMON PLEAS CUMBERLAND COUNTY, P z NO,: 2014-06697 r ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendants, Dennis Boyle and Boyle Litigation in the above -captioned matter. Date: It a5-11 i aul C. Troy, Esqu I.D. No. 60875 KANE, PUGH, I NOELL, TROY & KRAMER LLP 510 Swede Street Norristown, PA 19401-4886 (610) 275-2000 ptroy@kanepugh.com KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY LD. D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK V. COURT OF COMMON AS: ,:: CUMBERLAND COU%1 N) DENNIS BOYLE and BOYLE LITIGATION NO.: 2014-06697 r MOTION TO QUASH SUBPOENA, OR, IN THE ALTERNATIVE, FORA PROTECTIVE ORDER c AND NOW comes the Defendants, Dennis E. Boyle, Esquire and Boyle Litigation ("Defendants"), by and through their attorneys Kane Pugh Knoell Troy & Kramer, and files the within Motion to Quash a Subpoena issued to. Joshua M. Autry, Esquire, or in an alternative, for a Protective Order to prevent the Deposition of Joshua M. Autry, Esquire currently scheduled for December 3, 2014 and in support thereof avers as follows: 1. On or about November 19, 2014, the Plaintiff Nicolas Knopick instituted an action by Complaint. 2. However, to date Defendants have not been served with the Complaint and in fact there appears to have been no effort to serve Defendants. 3. Despite the fact that the Complaint filed has not been served, Plaintiff obtained a Subpoena from the Prothonotary of the Court of Common Pleas of Cumberland County which purports to have Joshua M. Autry, Esquire, a former employee of Boyle Litigation, appear for a TJ. lam.! 7t ) deposition and produce certain records of Boyle Litigation in Philadelphia County on December 3, 2014. A copy of said Subpoena and Notice is attached hereto as Exhibit "A". 4. The Subpoena directs Mr. Autry to produce "all documents relating to your representation of Nicholas Knopick and all documents relating to the Boyle litigation trust fund ZOLTA account." Id. 5. Despite knowing that Defendants are represented by counsel, Plaintiff sent a copy of the subpoena and notice directly to Defendants. 6. Further, the subpoena and notice dated November 24, 2014 were purportedly served via U.S. Mail on November 24, 2014 and has therefore have not been received by Defendants to date. 7. Defendants only became aware of the deposition through Mr. Autry. 8. Since original service has not been effectuated, this discovery deposition is entirely improper under the Rules of Civil Procedure. 9. Further, even if service had been effectuated, Plaintiff's conduct runs afoul of the requirement under the Pennsylvania Rules of Civil Procedure regarding timing of depositions. 10. Plaintiff did not seek of leave of court prior to serving the subpoena on Mr. Autry and scheduling the deposition for a mere eight days after the notice and just thirteen days after the Complaint was filed. 11. Pennsylvania Rule of Civil Procedure 4007.2(b) provides as follows: (b) Leave of court must be obtained if a plaintiff's notice schedules the taking of a deposition prior to the expiration of thirty days after service of the original process and the defendant has not served a notice of taking a deposition or otherwise sought discovery, unless the party or person to be examined is (1) aged or infirm, or (2) about to leave the county in which the action is pending for a place outside the Commonwealth or a place more than one hundred miles from the courthouse in which the action is pending. Pa.R.Civ.P. 4007.2(b). 12. if service had been effectuated, Plaintiff would have needed leave of court to proceed with Mr. Autry's deposition as there is no suggestion that he is aged, infirmed, or about to leave the county. 13. Further, Defendants have not served a notice of taking a deposition or otherwise sought discovery. 14. Additionally, Pennsylvania Rule of Civil Procedure 4007.1 requires that all parties be given "reasonable notice" before the scheduling of any deposition. 15. Despite the notice requirements set forth in the Rules of Civil Procedure, Plaintiff's subpoena was served on November 24, 2014 for a December 3rd deposition, providing only eight days of notice. 16. The actions of Plaintiff and his counsel clearly violate Pennsylvania Rules of Civil Procedure 4007.1 and 4007.2(b). 17. Even if the Rules of Civil Procedure had been followed, which they were not, the deposition would nevertheless be impermissible. 18. Not only is the subpoena improper since leave of court was not sought, the subpoena directs Mr. Autry to appear for a deposition in Philadelphia County, despite this action be initiated in Cumberland County. 19. Mr. Autry's place of business is in Harrisburg and the subpoena directs him to appear for deposition at 50 South 16th Street in Philadelphia, which will require travel in excess of one hundred mile. 20. Pursuant to Rule 4012, a protective order is proper to protect Mr. Autry from the burden and expense associated with traveling in excess of one hundred miles to Philadelphia for a deposition related to a Cumberland County case. 21. Further, the overly broad request for documents seeks privileged, confidential, and otherwise sensitive business and personal documentation to which Plaintiff may not be entitled. 22. Finally, pursuant to Pennsylvania Rule of Civil Procedure 4009.21, all parties are to be given twenty days of notice and an opportunity to object whenever documents or things are to be produced. 23. For the reasons set forth above, justice requires the entry of a Protective Order quashing the subpoena and preventing the December 3, 2014 deposition of Mr. Autry until further Order of Court or by agreement of the parties. 24. Defendant has requested that Plaintiff's counsel agree to not proceed with the deposition however, a response to this request has not been received; given the emergent nature of this motion, Defendant is compelled to seek relief from the Court. A copy of the Correspondence is attached as Exhibit B. WHEREFORE, the Defendants, Dennis Boyle and Boyle Litigation, respectfully request that the Subpoena issued improperly at the request of Plaintiff be quashed and that a protective order be entered preventing the December 3, 2014 deposition of Joshua M. Autry. Respectfully submitted, KANE, PUGH, KNOELL, TROY & KRAMER, P.C. BY: Dated: November 25, 2014 UL C. TROY, ES IRE Attorney for Defend. is Dennis Boyle and Boyle Litigation VERIFICATION I, Paul C. Troy, Esquire state under the penalties of 18 Pa. C.S. Section 4904 (relating to unsworn falsification to authorities) that I am the attorney for Defendants, Dennis Boyle and Boyle Litigation, in the within action; that as such, I am authorized to take this Verification; and that the facts set forth in the foregoing Motion are true and correct to the best of my knowledge, information and belief. PAUL C. TROY, ES MIRE EXHIBIT "A" COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Nicholas Knopick Plaintiff : File No.14-6697 VS, Dennis Boyle and Boyle Litigation Defendant TO: Joshua M. Autry, Esq. Lavery Felony 225 Merto1 SL, Ste. 304 P.O. Boz 1245 Harrisburg, PA 17108 SUBPOENA TO ATTEND AND TESTIFY 1. You are ordered by the court to come to Kutak Rock LLP, 50 South 16th Street, Two Liberty Place - 28B, Philadelphia, PA 19102 (Specify Courtroom or other place) at , County, Pennsylvania, on December 3, 2014 at 10:00 o'clock, A K. to testify on behalf of Nicholas Knopick in the above case, and to remain until excused. 2. And bring with you the following: All documents relating to your representation of Nicholas Knopick and all documents relating to the Boyle Litigation trust fund IOLTA account. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Julie B. Negovan, Esq. Address: Kutak Rock LLP - Two Liberty Place - 28B 50 S. 16th St., Philadelphia, PA 19102 Telephone: 215-299-4384 Supreme Court ID # 81231 Date: // e2V/PW/y eal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) BY THE P otary/Clerk, Civil Division IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK, Plaintiff, vs. DENNIS BOYLE, AND BOYLE LITIGATION Defendants NO. 14-6697 NOTICE OF VIDEO TAPED DEPOSITION TO: Joshua M. Autry, Esq. Lavery Faherty 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 PLEASE TAKE NOTICE THAT, pursuant to Pennsylvania Rule of Civil Procedure 4007.1, Plaintiff Nicholas Knopick, by and through his counsel, will take the deposition of Joshua M. Autry for the purpose of discovery and/or use at trial by videotape. Said deposition will take place before a Notary Public or other person qualified to administer oaths at 10:00 a.m. on December 3, 2014 at Kutak Rock LLP, 50 South 16th Street, Suite 28B, Two Liberty Place, Philadelphia, Pa 19102 and will continue from day to day until completed. DATED this November 24, 2014 . Negovan Attorney I.D. No. 81231 Kutak Rock LLP Two Liberty Place 50 S. 16th Street, Suite 28B Philadelphia, PA 19102-2519 (215) 299-4384 Attorneys for Nicholas Knopick CERTIFICATE OF SERVICE I hereby certify that on this 24th day of November 2014, I served a true and correct copy of the foregoing Notice of Deposition upon the following via regular mail: Dennis Boyle 4660 Trindle Road, #200 Camp Hill, PA 171011 Boyle Litigation 4660 Trindle Road, #200 Camp Hill, PA 171011 I EXHIBIT "B" ( Ma Beth Hughes From: Sent: To: Cc: Subject: Julie, Mary Beth Hughes Tuesday, November 25, 2014 2:35 PM 'Negoven'Julie B.' Paul C. Troy; ]Autry@|ovenJevvcom Knopick matter We have learned that you have filed a complaint in Cumberland County and served a subpoena for the deposition of Josh Autry. Again, as was the case in the Lancaster County action, this is entirely improper under the rules since you have not effectuated service on our client. We have prepared a Motion to Quash / for Protective Order that we intend to file today. Please let me know before the end of day if you agree to not move forward with the deposition without the need for court involvement. In any event, Mr. Autry has advised us that he is not available on the 3Id• Mary Beth 1 KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY I.D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. DENNIS BOYLE and BOYLE LITIGATION NO.: 2014-06697 PROOF OF SERVICE I hereby certify that on the date written below, a true and correct copy of Defendants' Motion to Quash Subpoena/ Motion for Protective Order was served this date, November 25, 2014 by United States First Class Mail, postage pre -paid upon those person(s) listed below: Julie B. Negovan, Esquire Kutak Rock LLP 50 S. 16'" Street, Suite 28B Philadelphia, PA 19102 Josh Autry, Esquire Lavery Faherty Patterson 225 Market Street P. 0. Box 1245 Harrisburg, PA 17108 KANE, PUGH, KNOELL, TROY & KRAMER, LLP BY: CA L C. TROY, ESQ Attorney for Defendants Dennis Boyle and Boyl IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA Nicholas Knopick, Civil Action - Law Plaintiff v. Uting No. 14-4.6-0 Civil Dennis Boyle and Boyle Litigation, Jury Trial Demanded Defendants COUN- !_VA N A Emergency Motion to Quash Subpoena Wherefore, I, Josh Autry, move this Court to quash the subpoena for my deposition and for documents: 1) I am a former employee of Defendants, Dennis Boyle and Boyle Litigation. 2) At approximately 3:05 p.m. on Monday afternoon, Knopick served the attached subpoena (Ex. 1) on my paralegal, Amyra Wagner, commanding me to appear in Philadelphia for a deposition 9 days later (December 3) and to produce documents. The deposition in Philadelphia on a day I have pre -scheduled depositions in Carlisle is an unreasonable burden. 3) I ask this Court under Rule of Civil Procedure 234.4(b) to protect me "from unreasonable annoyance, embarrassment, oppression, burden or expense." 4) Holding the deposition in Philadelphia is burdensome in violation of Rule 4011(b) as I work in Harrisburg. 5) The deposition is also burdensome because I have a conflict that day (depositions in Cumberland County). See attached subpoenas for depositions (Ex. 2). 6) In addition, I had very little notice of the deposition, which is next Wednesday, December 3rd 1 7) At the time the subpoena came in to my office on Monday, I was preparing a client meeting for upcoming depositions and did not learn of the subpoena until approximately 4:30 p.m. 8) I had Court in Philadelphia yesterday, and I had to work on the instant motion to quash last night while also preparing a federal habeas corpus motion and supporting brief for one client, a motion to dismiss in federal court for another client, and a reply brief for a third client—all due today. 9) Nevertheless, the instant motion could not wait as Knopick scheduled the deposition with only 9 days notice and I received the motion near close of business on the first day, 2 of the remaining days were holidays, and 2 were on the weekend. The subpoena was not properly served. 10) Specifically, the subpoena was improperly served on my paralegal yesterday. Service is not valid as I have never authorized my paralegal as an agent to accept service, nor is she a manager of my law firm, Lavery Faherty. See Rules 234.2(b)(1) and 402(a)(2)(iii). The subpoena violates several Rules of Civil Procedure. 11) The video deposition notice violates Rule 4017.1(b)(3, 4, & 5), which requires Knopick to state "the name and address of the officer before whom it is to be taken, whether the deposition is to be simultaneously recorded by stenographic means, and the name and address of the video operator and of his or her employer." The notice does not include any of these. See Ex. 1. 12) I notified Mary Beth Hughes and Paul Troy, attorneys for Dennis Boyle and Boyle Litigation, of the subpoena. The subpoena was mailed to Dennis Boyle's former office but 2 not to his current attorney or current business address. But due to prior litigation, Knopick clearly knew that Dennis Boyle and Boyle Litigation are represented and by whom. 13) As will be explained below, this appears to be a second attempt by Knopick to hold an ex parte deposition in violation of Rule 234.1(c), without reasonable notice as required by Rule 4007.1(a), and without 20 days notice before service in violation of Rules 4009.21(a) and 4009.22(a). 14) The subpoena to me violates Rule 4007.2(b) as well because Knopick has not obtained leave of court to take the deposition this early in the litigation (before serving Defendants plus an additional 30 day waiting period). Knopick and his current counsel have a history of discovery abuses. 15) Knopick recently filed an action in Lancaster County against Dennis Boyle, Boyle Litigation, Clymer, Musser, & Conrad, P.C., and myself. 16) In that case, before serving any Defendant or filing a Complaint, Knopick served a subpoena on Don Sherman ("Sherman subpoena"), a former employee of Boyle Litigation, with a subpoena in Virginia to appear for a deposition and to provide documents in Maryland without notifying any Defendant. See Motion to Quash (Ex. 3). The Virginia subpoena is attached to the Motion as Exhibit A. 17) Like the subpoena for my deposition, the Sherman subpoena was an attempt to hold an ex parte deposition in violation of Rule 234.1(c), without reasonable notice as required by Rule 4007.1(a), and without 20 days notice before service in violation of Rules 4009.21(a) and 4009.22(a). 18) The Virginia subpoena also violated Rule 4003.8, which prohibits pre-complaint discovery unless material and necessary to the filing of the complaint. 3 19) Nevertheless, Knopick would not withdraw the clearly invalid subpoena, requiring a hearing and a waste of the Court's time. See Opposition to Motion to Quash (Ex. 4). 20) After a hearing, Judge James P. Cullen quashed the subpoena. Order Quashing Subpoena (Ex. 5). 21) Shortly thereafter, Knopick withdrew his Lancaster County case. See Praecipe to Discontinue (Ex. 6). 22) Given the fact that this is the second attempt by Knopick to violate Rules 234.1(c), 4007.1(a), 4009.21(a), and 4009.22(a), it appears that Knopick's current counsel is acting in bad faith in violation of 4011(a). 23) For all of these reasons, this Court should quash the subpoena. In the alternative, this Court can make Knopick pay for the cost of an attorney and full travel expenses. 24) In the alternative, this Court can order Knopick to pay for the cost of an attorney to represent me at the Philadelphia deposition as well as full travel expenses under Rule 4008 because the deposition is more than 100 miles from the Court. 25) The expense check with the subpoena was for less than $13. Suffice it to say that it is difficult to get to and from Philadelphia for only $13. I have sought concurrence of counsel. 26) Counsel for Dennis Boyle and Boyle Litigation concur in this motion. 27) Counsel for Knopick have been contacted and have asked for more time to get back to me. 28) However, given that time is of the essence (there are only 3 business days before the deposition, today included), I informed Knopick's counsel that I would have to file this 4 motion first thing this morning unless Knopick withdrew the subpoena by then. As of this moment, I have not received a further response. Wherefore, this Court should quash the subpoena for me to testify and to produce documents. Date: November 26, 2014 5 Josh Pr Laver y 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Pennsylvania Bar No. 208459 lautry@laverylaw.com EXHIBIT 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Nicholas Knopick Plaintiff : File No.14-6697 vs. Dennis Boyle and Boyle Litigation Defendant TO: Joshua M. Autry, Esq. Lavery Faherty 225 Merkel SI, Ste. 304 P,O. Box 1245 Harrisburg, PA 17108 SUBPOENA TO ATTEND AND TESTIFY 1. You are ordered by the court to come to Kutak Rock LLP, 50 South 16th Street, Two Liberty Place - 28B, Philadelphia, PA 19102 (Specify Courtroom or other place) at County, Pennsylvania, on December 3, 2014 at 10:00 o'clock, A M,. to testify on behalf of Nicholas Knopick in the above case, and to remain until excused. 2. And bring with you the following: All documents relating to your representation of Nicholas Knopick and all documents relating to the Boyle Litigation trust fund IOLTA account. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limitedto costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Julie B. Negovan, Esq. Address: Kutak Rock LLP - Two Liberty Place - 28B 50 S. 16th St., Philadelphia, PA 19102 Telephone: 215-299-4384 Supreme Court ID # 81231 BY THE I otary/Clerk, Civil Division Date: //(o2 5� /.20/y 'ea of the Court / Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK, Plaintiff, vs. DENNIS BOYLE, AND BOYLE LITIGATION Defendants NO. 14-6697 NOTICE OF VIDEO TAPED DEPOSITION TO: Joshua M. Autry, Esq. Lavery Faherty 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 PLEASE TAKE NOTICE THAT, pursuant to Pennsylvania Rule of Civil Procedure 4007.1, Plaintiff Nicholas Knopick, by and through his counsel, will take the deposition of Joshua M. Autry for the purpose of discovery and/or use at trial by videotape. Said deposition will take place before a Notary Public or other person qualified to administer oaths at 10:00 a.m. on December 3, 2014 at Kutak Rock LLP, 50 South 16th Street, Suite 28B, Two Liberty Place, Philadelphia, Pa 19102 and will continue from day to day until completed. DATED this November 24, 2014 . Negovan . Attorney I.D. No. 81231 Kutak Rock LLP Two Liberty Place 50 S. 16th Street, Suite 28B Philadelphia, PA 19102-2519 (215) 299-4384 Attorneys for Nicholas Knopick CERTIFICATE OF SERVICE I hereby certify that on this 24th day of November 2014, I served a true and correct copy of the foregoing Notice of Deposition upon the following via regular mail: Dennis Boyle 4660 Trindle Road, #200 Camp Hill, PA 171011 Boyle Litigation 4660 Trindle Road, #200 Camp Hill, PA 171011 EXHIBIT 2 SHOLLENB ERGER ANUZZI, LLP Attorneys At Law. TIMOTHY A. SHOLLENBERGER, ESQ. KARL. J. JAMJZZI, ESQ. ADAM T. WOLFE, ESQ. ����ilY;!�kuFr"e:� I:N,*r.:s>r;:-ta ..Ft ; �:;:rosyz,ys::'ra!iFtF.•'r�rn�incr,;C�'.-?Nfa}i-u'wYKdBni;; ��f��ASns:s��Y�;:sari^'iK?r�'�i�r;n.rt;MYi�c�tiF:dir �.Ms�:m>j:n.�f� e:T�!f:�:�r.[��a:A.+fsr�u : Y. +ya+�:�ur�..;. ,teaR1�°nmi.wuv?sri�?:��+9FET Writer=s Direct E-mail - skellevesholljanlaw.com November 7, 2014 Via Certified and Regular Mail Mr. Michael Fulmer 312 Cedar Manor Elizabethtown, PA 17022 Re: Estate of David Van Every v. KLM et al. Dear Mr. Fulmer: Our office represents the Estate of David Van Every relative to the motor vehicle crash that occurred on February 4, 2014. Enclosed please find a Subpoena to Attend and Testify at a deposition on December 3, 2014, at 8:30 am at the Holiday Inn Express and Suites, 2055 Technology Parkway, Mechanicsburg, PA 17050. In accordance with 42 Pa. C.S.A. 5903(b)(c), enclosed is a check* for $8.70 which represents the standard witness fee of $5.00 plus round trip mileage. I have also enclosed roundtrip directions from your home to the deposition location. Pursuant to Pa. R.C.P. 234.2(b)(3), I am enclosing an original and one copy of an Acknowledgment of Receipt of Subpoena, as well as a self-addressed, stamped envelope. Please execute the Acknowledgment where indicated and return a copy of same to this office. Thank you for your cooperation. V uly-yours, c- A. Kelley, Legal Assistant to A•ar4-1,- 10 fe, Esquire Enclosures Certified Mail #: 7414 7266 9904 9895 43; Return Receipt Requested cc: Barry Kronthal, Esquire; Thomas B. Sponaugle, Esquire; Robert A. Lerman, Esquire; Gary Stewart, Esquire; Timothy McMahon, Esquire; Joshua Autry, Esquire `The witness fee and self addressed, stamped envelope are contained only in the certified mail envelope. MAIN OPPICE: 2225 Millennium Way 1 Enola, PA 17025 1 Phone 717-728-3200 1 Fax 717-728-3400 1 Toll Free 800-813-1368 F'IAurrsaunc OFFICE: 4811 Jonestown Road, Suite 221 1 Harrisburg, PA 17109 1 Phone 717-671-6400 (Please do not send mail to the Harrisburg address) Please visit www.sholijanlaw.com • COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Leslie L. Van Every, Individually and as the Personal Representative of the Estate of favid E. Van Every Plaintiff . File No. 14-1630 CIVIL VS. • Stephan Ambrozyak, KLM Express,. Inc. et a l . Defendant TO: SUBPOENA TO ATTEND AND TESTIFY Michael Fulmer 312 Cedar Manor Elizabethtown,PA 17022 1. You are ordered by te court to come to Holiday Inn Express and Suites, 2055 Technology Parkway, Mechanicsburg, PA 17050 (Specify Courtroom or other place) at , Cumberland County, Pennsylvania, on December 3, 2014 at . 8:30 o'clock, A M,. to testify on behalf of Plaintiffs. in the above case, and to remain until excused. 2. And bring with you the following: If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Nannie: Adam T. Wolfe, Fsquire Address: 2225 Millennium Way Enola, PA 17025 Telephone: ( 71 7) 728--3700 Supreme Court ID # 901 0 5 7 Date: 74 VA Seal of the Court Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (EB', 7/97) BY THE COURT: Prothonotary/Clerk, Civil 'vision y SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff LESLIE L. VAN EVERY, INDIVIDUALLY, and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID E. VAN EVERY Plaintiff v. STEPAN AMBROZYAK, KLM EXPRESS, INC., and STEPHANIE J. KAUFFMAN Defendants v. CARGO TRANSPORTERS, INC., ABF FREIGHT SYSTEMS, INC., DAVID L. PERRY and PATRICK J. ANDERSON, Additional Defendants IU„ I'Id�,h;�I',!III..I�,�I:rFII itM5lrl'c .NOWLEDGME_. ::ill .. "i ...%•i I'.l y. To: Mr. Michael Fulmer 312 Cedar Manor Elizabethtown, PA 17022 IN THE COURT OF COMMON PLEAS CUMBLERLAND COUNTY, PENNSYLVANIA NO. 14-1630 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED OE � ' The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the Acknowledgment part of this form and return the copy of the completed form to the sender in the self-addressed, stamped envelope. Sign and date the Acknowledgment. If you are served on behalf of a partnership, unincorporated association corporation or s'', ilar entity, indicate under your signature your relationship to that entity. If you are se :d on behalf of another person and you are authorized to receive the subpoena, indi :%'- ,under your signature of your authority. Date of Notice: November 7, 2014 % r Party serving subpoena or Attorney for Party SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff LESLIE L. VAN EVERY, INDIVIDUALLY, and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID E. VAN EVERY Plaintiff v. STEPAN AMBROZYAK, KLM EXPRESS, INC., and STEPHANIE J. KAUFFMAN Defendants v. CARGO TRANSPORTERS, INC., ABF FREIGHT SYSTEMS, INC., DAVID L. PERRY and PATRICK J. ANDERSON, Additional Defendants KNOWLEDGNME IN THE COURT OF COMMON PLEAS CUMBLERLAND COUNTY, PENNSYLVANIA NO. 14-1630 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED ECEIPT OF SUBP`OI I acknowledge receipt of a copy of the Subpoena in the above -captioned matter. Date: Michael Fulmer G:ITIM PORTAL\TIM CASE FILES- OPE AVAN EVERY, ESTATE OF DAVID EIDEPOSITIONSIMIKE FULMER\110714 ACKNOWLEDGEMENT OF SUBPOENA.DOC Driving Directions from 312 Cedar Mnr, Elizabethtown, Pennsylvania 17022 to 312 Ceda... Page 1 of 3 mapquesti Tripto 312 Cedar Mnr Elizabethtown, PA 17022-8990 52.80 miles / 1 hour Estimated Fuel Cost: $6.48 9 Notes Directions to deposition on December 3, 2014 312 Cedar Mnr, Elizabethtown, PA 17022-8990 Download Free App et 1. Start out going south on Rim Rd toward Michael St. Map 0.3 Mi 2. Turn left onto Joan St. Mao 0.04 MI 3. Turn slight left onto Loth Dr. Map 0.2 Mi 4. Turn right onto N Hertzler Rd. Man 0.3 Mi 5. Turn right onto E Harrisburg Pike / PA -230. Map 2.3 Mi 6. Tum right onto Toll House Rd. Map 0.4 MI 7. Merge onto PA -283 W toward Harrisburg Mao 6.8 Mi tit ate 8. Merge onto 1-283 N toward 1-81 /1-83 / Harrisburg. Mao 2.6 Mi Xft IA EXIT Ara IwJ 9. Merge onto 1-83 N via EXIT 3B toward US -322 W /1-81 / Hazleton / Lewiston / 4.1 Mi Lewistown. Map 10. Merge onto US -322 W via EXIT 51A on the left toward Carlisle / Lewistown. Map 2.5 MI atal 11. Take 1-81 S toward Carlisle. Map 6.4 Mi 12. Take the exit. Map 0.4 Mi 13. Turn left onto PA -944 / Wertzville Rd.neg 0.3 Mi 14. Turn right onto Technology Pkwy. Map 0.2 Mi httn://www.mannuest.com/nrint?a=ann.core.d0k9ah5Rbaff4c7e5200dbc 11/7/2014. Driving Directions from 312 Cedar Mar, Elizabethtown, Pennsylvania 17022 to 312 Ceda... Page 2 of 3 15. 2055 TECHNOLOGY PKWY is on the left.Mqp A to B Travel Estimate: 26.65 mi - about 30 minutes 2055 Technology Pkwy, Mechanicsburg, PA 17050-9497 1. Start out going north on Technology Pkwy toward Mount Zion Dr.M 0.2 Mi 2. Turn left onto PA -944 / Wertzville Rd. Map 0.2 MI ft. gam 3. Merge onto 1-81 N toward Harrisburg. Man 8.5 Mi ell m- -0 4. Keep right to take US -322 E via EXIT 70 toward Pennsylvania Tpke / Hershey / 3.6 Mi York. is 411k. *re 5. Take 1-83 S toward Harrisburg / York /1-283 S / 1-76 / Pennsylvania Tpke / 0.8 Mi III Airport/ Lancaster.M29 NIre • Er trim 6. Merge onto 1-283 S via EXIT 46A on the left toward 1-761 Pennsylvania Tpke / 2.9 MI h. -1-w- Airport. Mao 7. Merge onto PA -283 E via EXIT 1A toward Airport / Lancaster. Map 6.4 MI EXIT 8. Take the ToII House Road exit toward PA -230 / PA-341.Mps 0.5 MI :RAMP 'At 9. Keep right to take the ramp toward Middletown. Mao 0.05 Mi 10. Merge onto Toll House Rd. 7v7 i -z 11. Turn left onto E Harrisburg Pike / PA -230. Map 2.3 Mi 411 12. Turn left onto N Hertzler Rci.Man 13. Turn left onto Lettl Dr. Map 14. Turn slight right onto Joan St.aps tr#0 15. Take the 1st right onto Rim Rd. Mao 16. 312 CEDAR 1VINR. Map B to C Travel Estimate: 26.14 nil - about 30 minutes 312 Cedar Mnr, Elizabethtown, PA 17022-8990 0.09 Mi http://wvvw.manauest .entli ri rit90=0 AA 0 - . 0.3 MI 0.2 Mi 0.04 MI 0.3 Mi Driving Directions from 312 Cedar Mnr, Elizabethtown, Pennsylvania 17022 to 312 Ceda... Page 3 of 3 Total Travel Estimate: 52.80 miles - about 1 hour Estimated Fuel Cost: $6.48 ©2014 MapQuest, Inc. Use of directions and maps Is subject to the MapQuest Terms of Use. We make no guarantee of the accuracy of their content, road conditions or route usability. You assume all risk of use.View Terms of Use http://www.mapquest,corn/print?a=app.core.d08c9ab58baff4c7e5200dbc 11/7/2014 SHOLLENBERGER &IANUZZI, LLP TIMOT1i.Y A. SHOLLENBERGER, ESQ. KARL J. JANvzZI, ESQ. ADAM T. WOLFE, ESQ. 2F595Fntj4't5'RAISetiivni�?�`}7.,i. _int riN:��',,.�li�v.�, 1, ill il_�n:r.��y., a.i •�;s„i, i.�' ifi,};,P. iii,'�li @.}r.�-j�rv,>:I _f f�ir7illyn, ,�r; i1G'Jf._. hg Tt1�\>nCi .ry ltY lk� xf:t.f:�LtiKt'+7.,;1(f ,.,.:{SSI: 1.h.� E-,ii?4;;uili:if�s:}i:' i�.: n.S,Jrkrfrem��Ut,Srl3i.ir'.,:xi�4c B�aarf:J' Writer=s Direct E-mail - skelleyOa sholljanlaw.com November 7, 2014 Gerald Swartz c/o Doreen A. McCall, Chief Counsel Legal Department Pennsylvania Turnpike Commission PO Box 67676 Harrisburg, PA 17106 Re: Estate of David Van Every v. KLM et al. Dear Ms. McCoy: Our office represents the Estate of David Van Every relative to the motor vehicle crash that occurred on February 4, 2014. Enclosed please find a Subpoena to Attend and Testify at a deposition on December 3, 2014, at 8:30 am at the Holiday Inn Express and Suites, 2055 Technology Parkway, Mechanicsburg, PA 17050, for Gerald Swartz. In accordance with 42 Pa. C.S.A. 5903(b)(c), I have enclosed is a check* for $6.58 which represents the standard witness fee of $5.00 plus round trip mileage. I have also enclosed roundtrip directions from the home of Mr. Swartz to the deposition location. Pursuant to Pa. R.C.P. 234.2(b)(3), l am enclosing an original and one copy of an Acknowledgment of Receipt of Subpoena, as well as a self-addressed, stamped envelope. Please execute the Acknowledgment where indicated and return a copy of same to this office. Thank you for your cooperation. Vruly"yours, Lacey A. Kelley, Legal Assistant to A arrn-.T-Wolfe, Esquire Enclosures cc: Barry Kronthal, Esquire; Thomas B. Sponaugle, Esquire; Robert A. Lerman, Esquire; Gary Stewart, Esquire; Timothy McMahon, Esquire; Joshua Autry, Esquire; Anthony Lacroce MAIN Orrrcr: 2225 Millennium Way ( Enola, PA 17025 1 Phone 717-728-3200 1 Fax 717-728-3400 1 Toll Free 800-813-1368 .H.ARR!S131,1 rc; OFFrcr:: 4811 Jonestown Road, Suite 221 1 Harrisburg, PA 17109 1 Phone 717-671-6400 (Please do not send mail to the Harrisburg address) Please visit www.shoiljanalaw.cam COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Leslie L. Van Every, Individually and as the.Personal Representative of the Estate of David E. Van Every Plaintiff : File No. 14--1630 CIVIL VS. Stephan Ambrozyak, KLM Express,: Inc. et a l . Defendant SUBPOENA TO ATTEND AND TESTIFY TO: Gerald Swartz c/o Doreen A. McCall, Chief Counsel Legal Department, Pennsylvania Turnpike Commission, PO Box 67676 1. You are ordered by the court to come to Harrisburg, PA 17106 Holiday Inn Express and Suites, 2055 Technology Parkway Mechanicsburg, (§Nci aurtroom or other place) at , Cumberland County, Pennsylvania, on December 3, 2014 at . 1:00 o'clock, P M,. to testify on behalf of Plaintiffs . ill the above case, and to remain until excused. 2. And bring with you the following: If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Adam T. Wolfe, Fsquire Address: 2225 Millennium Way En�I i, PA 17025 Telephone: (717) 72R-3200 Supreme Court ID # 201057 Date: BY THE COURT: Prothonotary/Clerk, Civil Division . Seal .f the o Deputy Official Note: This form of subpoena shall be used whenever a subpoena is issuable, including hearings in connection with depositions and before arbitrators, masters, commissioners, etc. in compliance with Pa. R.C.P.No.234.1. If a subpoena for a production of documents, records or things is desired, complete paragraph 2. (Eff. 7/97) SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 1.7025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff LESLIE L. VAN EVERY, INDIVIDUALLY, and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID E. VAN EVERY Plaintiff v. STEPAN AMBROZYAK, KLM EXPRESS, INC., and STEPHANIE J. KAUFFMAN Defendants v. CARGO TRANSPORTERS, INC., ABF FREIGHT SYSTEMS, INC., DAVID L. PERRY and PATRICK J. ANDERSON, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBLERLAND COUNTY, PENNSYLVANIA NO. 14-1630 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED OTICE AND ACKNOWLEDGMEI T OF RECEIPT OF SUBPOEN To: Gerald Swartz c/o Doreen A. McCall, Chief Counsel Legal Department Pennsylvania Turnpike Commission PO Box 67676 Harrisburg, PA 17106 The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure 234.2(b)(3). Complete the Acknowledgment part of this form and return the copy of the completed form to the sender in the self-addressed, stamped envelope. Sign and date the Acknowledgment. If you are served on behalf of a partnership, unincorporated association corporation or si liar entity, indicate under your signature your relationship to that entity. If you are se 4d on behalf of another person and you are authorized to receive the subpoena, indic . - under your signature of your authority. Date of Notice: November 7, 2014 Partrserving subpoena or Attorney for Party SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff LESLIE L. VAN EVERY, INDIVIDUALLY, and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID E. VAN EVERY Plaintiff v. STEPAN AMBROZYAK, KLM EXPRESS, • INC., and STEPHANIE J. KAUFFMAN Defendants v. CARGO TRANSPORTERS, INC., ABF FREIGHT SYSTEMS, INC., DAVID L. PERRY and PATRICK J. ANDERSON, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBLERLAND COUNTY, PENNSYLVANIA NO. 14-1630 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED 1 acknowledge receipt of a copy of the Subpoena for Gerald Swartz in the above - captioned matter. Date: Doreen A. McCall, Chief Counsel G:\TIM PORTAL\TIM CASE FILES- OPEN\VAN EVERY, ESTATE OF DAVID E\DEPOSITIONS\GERALD SWARTZ1110714 ACKNOWLEDGEMENT OF SUBPOENA.DOC SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff LESLIE L. VAN EVERY, INDIVIDUALLY, and as the PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID E. VAN EVERY Plaintiff v. STEPAN AMBROZYAK, KLM EXPRESS, INC., and STEPHANIE J. KAUFFMAN Defendants v. CARGO TRANSPORTERS, INC., ABF FREIGHT SYSTEMS, INC., DAVID L. PERRY and PATRICK J. ANDERSON, Additional Defendants IN THE COURT OF COMMON PLEAS CUMBLERLAND COUNTY, PENNSYLVANIA NO. 14-1630 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED CKNGWLEDGMENT,OF 'RECEIPT:0 SUBPOE I acknowledge receipt of a copy of the Subpoena in the above -captioned matter. Date: Gerald Swartz G:1TIM PORTALITIM CASE FILES- OPEN\VAN EVERY, ESTATE OF DAVID EIDEPOSITIONSIGERALD SWARTZ1110714 ACKNOWLEDGEMENT OF SUBPOENA. DOC *---EDriving Directions from 198 Care St, Harrisburg, Pennsylvania 17109 to 198 Care St, Har... Page 1 of 2 mapquest Trip to: 98 Care St Harrisburg, PA 17109-6203 22.54 miles / 27 minutes Estimated Fuel Cost: $2.84 9 Notes Directions to Deposition on December 3, 2014 198 Care St, Harrisburg, PA 17109-6203 Download Free App 1. Start out going south on Care St toward Ethel St.Map 0.2 Mi 140: jsr 2. Tum right onto Jonestown Rd / US -22 W. Map rip tt EXIT 3. Tum right onto Hollywood Rd. Map 0.6 Mi 0.01 MI 4. Merge onto US -322 W via the ramp on the left toward 1-81 / Carlisle / 3.2 Mi j22 Hazleton.Map mu) 5. Take 1-81 S toward Carlisle. Map 6. Take the exit. Map 6.4 Mi 0.4 Mi 7. Turn left onto PA -944 / Wertzville Rd. Map 0.3 Mi It4 8. Turn right onto Technology Pkwy.JVIao 0 9. 2055 TECHNOLOGY PKWY is on the left. Map A to B Travel Estimate: 11.21 mi - about 13 minutes 2055 Technology Pkwy, Mechanicsburg, PA 17050-9497 1. Start out going north on Technology Pkwy toward Mount Zion Dr. Map 41 7 2. Turn left onto PA -944 / Wertzville Rd. Map • tit•Mt 3. Merge onto 1-81 N toward Harrisburg. Map 0.2 Mi 0.2 Mi 0.2 MI 8.5 MI 4. Keep right to take US -322 E via EXIT 70 toward Pennsylvania Tpke / Hershey / 1.0 MI York. Map httn •//u.rwur arv-m4=kof rwrt n n EXHIBIT 3 KANE, PUGH, KNOELL, TROY & KRAMER LLP William H. Pugh, V + George H. Knoell, IH Paul C. Troy Andrew J. Kramer Robert Connell Pugh Justin A. Bayer* Cynthia L. Brennan° Evelyn Rodriguez Devine* Melissa K. Nagata* Donald J. Be'fie, Jr. Christina A. Schadier Christopher M. Horn Kara H. Dougherty Kristy M. Castagna* Rebecca M. Cantor* Elizabeth A. Williams* Sean R. Morrow* Elaine M. Moyer Amy M. Kirkpatrick* Ryan R. Kennedy° Michael J. Lyon* Mary Beth Hughes Kathryn M. Brady* Andrew M. Lamberton* Kim L. Michaels* Peter B. Rogers* Kathleen M. Klemm* Joshua D. Macel Ashley V. Trotter* Tomas M. Arechabale* Julie B. Negovan, Esquire Kutak Rock, LLP Two Liberty Place, Site 28B 50 South 26th Street Philadelphia, PA 19102 ATTORNEYS AT LAW 510 Swede Street 1500 JFK Blvd., Suite 1020 Norristown, PA 19401 • Philadelphia, PA 19102 610,275,2000 215.496.0221 Fax: 610.275.2018 www.kanepugh.com Please Reply to Norristown August 15, 2014 Re: Knopick v. Boyle, et al Lancaster County CCP No. CI -14-05849 Dear Ms. Negovan: William H. Pugh, IV Senior Counsel Edward F. Kane M. Cathlene Driscoll Counsel to the Firm ' Member New York Bar also * Member New Jersey Bar also o Member New Jersey Bar also 0 Member MassachUSetts Bar also ptroy@kanepugh.com mhughes@kanepugh.com 1 enclose herewith and serve upon you a true and correct copy of a Motion to In The Alternative For A Protective Order in the above captioned matter. Please note the presentation for the Motion has been scheduled Friday, August in Courtroom 12, Lancaster County Courthouse, Lancaster, Pennsylvania. Very truly yours, PAUL C. T MARY BET' - HES Quash Subpoena, Or, 22, 2014 at 1:30 p.m. MBH/Iap Enclosure cc: Josh Autry, Esquire Clymer Musser & Conrad, P.C. NICHOLAS KNOPICK COURT OF COMMON PLEAS v. DENNIS BOYLE; BOYLE LITIGATION; JOSH AUTRY; and CLYMER, MUSSER and CONRAD, P.C. LANCASTER COUNTY, PA NO.: CI -14-05849 NOTICE OF PRESENTATION TO: Julie B. Negovan, Esquire Kutak Rock, LLP Two Liberty Place, Site 28B 50 South 26th Street Philadelphia, PA 19102 215.299.4384 — phone 215.981.0719 - fax Email: Julie.negovan(cr�kutakrock.com Please take note that Defendants Dennis Boyle and Boyle Litigation's Motion to Quash Subpoena or in the Alternative, For A Protective Order will be presented to the Court on Friday, August 22, 2014, 1:30 p.m., in Courtroom 12, Lancaster County Court Houses Lancaster, PA. Respectfully fitted, KANE, P GH, OELL-TROY & KRAMER, LLP BY: Date: August 15, 2014 PAUL\C. TROY, ESQUIRE Attorney for Defendants Dennis Boyle and Boyle Litigation 1 NO. C1-14-05849 NICHOLAS KNOPICK COURT OF COMMON PLEAS v. DENNIS BOYLE; BOYLE LITIGATION; JOSH AUIRY; and CLYMER, MUSSER and CONRAD, P.C. LANCASTER COUNTY, PA NO.: CI -14-05849 ORDER AND NOW this day of , 2014, upon consideration of the Defendants Motion to Quash Subpoena or, in the Alternative, for a Protective Order, said Motion is hereby GRANTED. BY THE COURT: J. cc: Dennis E. Boyle, Esquire Julie B. Negovan, Esquire Josh Autry, Esquire Clymer Musser & Conrad, P.C. KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY LD. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK COURT OF COMMON PLEAS v. DENNIS BOYLE; BOYLE LITIGATION; JOSH AUTRY; and CLYMER, MUSSER and CONRAD, P.C. LANCASTER COUNTY, PA NO.: CI -14-05849 MOTION TO QUASH SUBPOENA, OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER AND NOW comes the Defendants, Dennis E. Boyle and Boyle Litigation ("Moving Defendants"), by and through their attorneys Kane Pugh Knoell Troy & Kramer, and files the within Motion to Quash a Subpoena issued to Donald Sherman, or in an alternative, for a Protective Order to prevent the Deposition of Donald Sherman currently scheduled for August 26, 2014, and in support thereof avers as follows: 1. On June 24, 2014, the Plaintiff Nicolas Knopick (a former client of Dennis Boyle and Boyle Litigation) instituted an action by Writ of Summons. 2. However, Moving Defendants have not been served with the Summons and in fact there appears to have been no effort to serve Moving Defendants. 3. Despite the fact that no Complaint has been filed and the Summons that has been filed has not been served, it appears that the Plaintiff obtained a Subpoena from the Prothonotary 2 of the Court of Common Pleas of Lancaster County as well as the Commonwealth of Virginia Loudoun Circuit Court which purports to have Donald Shemian, a former employee of Boyle Litigation, appear for a deposition and produce certain records of Boyle Litigation in Baltimore on August 26, 2014. A copy of said Subpoena is attached hereto as Exhibit "A". 4. The Subpoena directs Mr. Sherman to produce "emails to your personal account reflecting, referencing or memorializing any bookkeeping activities for the Boyle Law Firm; Personal notes and recommendations created while working for the Boyle Law Firm relating to management and /or reconciliation of the attorney trust account; and All documents showing or tending to show that any payments made by Mr. Knopick to Boyle Litigation form 9/2008 to 1/2013 were misapplied or misused," Id. 5. This overly broad request seeks privileged, confidential, and otherwise sensitive business and personal documentation to which Plaintiffs may not be entitled. 6. Pennsylvania Rule of Civil Procedure 4003.8 governs Pre -Complaint Discovery and provides as follows: (a) A plaintiff may obtain pre -complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party. (b) Upon a motion for protective order or other objection to a plaintiffs pre -complaint discovery, the court may require the plaintiff to state with particularity how the: discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought. Pa.R.Civ.P. 4003.8. 3 7. To obtain pre -complaint discovery, a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending. McNeil v. Jordan, 586 Pa, 413, 894 A.2d 1260 (2006). 8. Furthermore, Plaintiff has not identified the subject matter or basis for any of the claims they intends to assert in this action, nor have they stated with particularity how the discovery requests will materially advance the preparation of the complaint. 9. Given the complete absence of any stated claims and the extremely broad and over -reaching nature of Plaintiff document requests, which essentially seek any and all documents, including not discoverable documents, that would potentially be produced during the full scope of discovery the discovery requests epitomize a classic "fishing expedition" by Plaintiff. 10. Further, Moving Defendants have not been served with the Subpoena and only learned of the Subpoena by My. Sherman. 11. Pursuant to Pennsylvania Rule of Civil Procedure 4009.21, all parties are to be given 20 days notice and an opportunity to object whenever documents or things are to be produced. 12. Additionally, Pennsylvania Rule of Civil Procedure 4007,1 requires that all parties be given "reasonable notice" before the scheduling of any deposition. 4 13. Finally, Pennsylvania Rule of Civil Procedure 234.1(c) provides that "a party cannot use a subpoena to compel a person to appear or to produce documents or things ex parte before an attorney, a party or the representative of a party". 14. Plaintiff has not served Moving Defendants with process nor provided Notice of any deposition or request for documents. Rather, it appears as though Plaintiff intended to conduct an ex parte deposition of Mr. Sherman and surreptitiously attempt to obtain records of Boyle Litigation. 15. The actions of Plaintiff and his counsel violate Pennsylvania Rules of Civil Procedure 234.1, 4007.1 and 4009.21. 16. Even if the Rules of Civil Procedure had been followed, which they were not, the deposition would nevertheless be impermissible because pre -complaint discovery is limited in nature: . . . [T]o obtain pre -complaint discovery a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action. A plaintiff should describe with reasonable detail the materials sought, and state with particularity probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery request, he will be unable to formulate a legally sufficient pleading. Under no circumstance should a plaintiff be allowed to embark upon a "fishing expedition," or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to the pre -complaint discovery process under this standard. 5 Cooper v, Frankford Health Care Sys., Inc., 2008 PA Super 248, 960 A.2d 134, 140 (Pa. Super. 2008); quoting McNeil v. Jordan, 586 Pa. 413, 894 A.2d 1260 (2006). 17. Plaintiff has not made, and cannot make, any showing required to obtain pre - complaint discovery. The Subpoena seems to suggest some sort of "misappropriation of funds"; however, the Plaintiff has received multiple copies of all billing records over the years which detail all payments received from the client and how those payments were applied to attorneys fees and costs. It is particularly ironic that the Plaintiff suggests a misappropriation when he currently owes the firm of Boyle Litigation over $27,000. 18. Although Moving Defendants are not aware of what specific allegations Plaintiff intends to make, it is believed he will attempt to bring a legal malpractice claim. 19. It is the understanding of Moving Defendants that any alleged malpractice would relate to a decision made in December of 2009 not to appeal the U.S. District Court's dismissal of a party from an action. Since the District Court's dismissal of the party was the correct decision, the claim would lack merit. There are a plethora of other reasons why the claim would lack merit as well. In any event, the current Summons was issued well after the expiration of the Statute of Limitations. Further, firm financial records would not have anything to do with this cause of action. 20. Justice requires the entry of a Protective Order quashing the subpoena and preventing the August 26, 2014 deposition of Mr. Sherman until further Order of Court or by agreement of the parties. WHEREFORE, the Defendants, Dennis Boyle and Boyle Litigation, respectfully request that the Subpoena issued improperly at the request of Plaintiff be quashed and that a protective order be entered preventing the August 26, 2014 deposition of Donald Sherman. Respectfully submitted, KANE, PUGH, KNOELL, TROY & KRAMER, P.C. BY: Dated: August 15, 2014 PAUL C. TROY, ESQUIRE Attorney for Defendants Dennis Boyle and Boyle Litigation 7 EXHIBIT "A" COMMONWEALTH OF VIRG.I.NIA. LOUDOUN CIRCUIT COURT Civil Division 18 E MARKET ST/PO BOX 550 LEESBURG VA 20178-0550 (703) 777-0270 Subpoena Duces Tccuzn To the sheriff of: LOUDOUN COUNTY or any authorized officer You are commanded to summon: DONALD SHERMAN 41918 GALLBERRY TERRACE ALDIE VA 20105 To appear in the office of: REGUS CONT CTR 400 E PRATT ST 8TH FLOOR BALTIMORE MD 21202 Case number: 107CL00089214-00 On Tuesday, August 26, 2014 at 10:00AM and to bring those records as set forth in the attached request and to appear to testify. This Subpoena is issued on application of the plaintiff in the case of NICHOLAS KNOPICK vs DENNIS BOYLE . Service issued: Friday, August 01, 2014 Clerk of Court: GARY M CLEMENS By: Instructions: Attorney's name: NEGOVAN, JULIE 13 • 50 S 16TH ST STE 28B 215-586-4586 PI-IILADELPHIA PA 19102 (Clerk/Deputy Clerk) • SUBPOENA/SUBPOENA DUCES TECUM TO PERSON UNDER FOREIGN SUBPOENA Commonwealth of Virginia VA CODE H8.111.412.13—$.01-412.15; Rule 4.9 Loudoun County File No Clerk of Circuit Court, P.O. Box 550, Leesburg: VA 20175 Ninr,es Denn;s Bo-yle, et ai, v.,117. re: TO THE PERSON AUTHORIZED BY LAW TO SERVE THIS PROCESS! YOU are commanded to summon Donald Sherman 41918 Gallberry Terrace s1tricrAnnR7.ss Adie, VA 20105 ern, •• ................ ....... • •1., .•,, •. STATE ZfY TO THE PERSON SUMMONED: You are commanded to FS— attend and give testimony at a deposition produce the books, documents, records, electronically stored information, and tangible things designated and described below Emails to your personal email account reflecting. referencing. or memorializing any bookkeeping activities for the Boyle Law Firm; Personal notes and recommendations created while working for the Boyle Law Firm relating to management andror . , reconciliation of the attorney trust account; and All documents showing or tending to show that any payments made by Mr. ...Knopla.to.Boyletitigatioafrom..091200.8.1o.01/20.13..were.rnis.applied or misused, Regus Conf. Ctr., 400 E. Pratt St., 8th FI., Baltimore, MD 21202 .August 26, 2014 at 10..00 a.m. at at IC CATION DATE AND T LNir and to permit inspection and copying by the requesting party or someone acting in his Or her behalf of the designated items in your possession, custody or control permit inspection of the premises at the following location on DATE AND 111,1E This subpoena is issued upon the request of the party named below Nicholas Knopick NAME OF REQ1,F,SING PARTY 151 Idle Road STR-F,FT DDRESL, Marysville, PA 17053-9503 CITY TATE i.e TELEPHONE NIJM11:17. FORM CC 1•430 il-1.STER, PAGE Ot.,..E.OE Trutrr.i.t),,C9 „. The requesting party has submitted to this Clerk's Office the foreign subpoena, copy attached, the terms of which circ incorporated herein, and the written statement required by Virginia Code § 8.01-412.10. The names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of parties not represented by counsel arc provided.: below' on attached list, wit DA TF 551.1ED by Julio B. Negovan 81231 PA NA2.1E OF ATTORNEY FOR REOLIESRNG PARTY NAR NUMBER LICENSING STATE. 50 S. 16th Street, Suite 28B (215) 586-4585 OFFICE ADDRESS IELENYUNE MASER iJF'.ATI(1kNC\' Philadelphia, PA 19 102 (215) 981-9719 OFT E ADDRESS FACSIMILE NUMBER OF ATTORNEY NAME STREET ADDRESS OAR NOM])ER LICENSING STATE TELE MIO tNI:MDER STREET ADDRESS FACSIMILE NUMDB NAME STREET ADDRESS BAR NU.SIDCR LICENSING STATE ....- FF.LEPIIONE NUM DER STREET ADDRESS FACSIMILE NUMBER. ..................... _ .....-. S............... NAME BAR N V R!DCR L1C?'+ISINO STATE • ......-..•.•.. •...... . STREET ADDRESS ...... it?i F;PHONF. IJP T7HCR STREET ADDRESS FACSIMILE NUAfRt;d, RETURN OF SERVICE. (see page three of this form) FORM CC-IJ)v (MASTER, PAGE TWO OF lT1REM ?7104 [ This SUBPOENA/SU13130ENA DUCES TECUM TO PERSON UNDER FOREIGN SUBPOENA is being served by a private process server who must provide proof of service in accordance with Va. Code § 8.01-325. TO the person authorized to serve this process: Upon execution, the return of this process shall be made to the Clerk of Court, \.t,%fE: ' A.DDKESS; . •• • ... .•..• ••• ...... Tel. PERSONAL SERVICE I No. Being unable to make personal service, a copy was delivered in the following manner: 3 Delivered to family member (not temporal), sojourner or guest) age 16 or older at usual place of abode of parry named above after giving information of its purport. List name:, age of recipient, and relation of recipient to party named above: [ ] Posted on front door or such other door as appears to be the main entrance of usua] place of abode, address listed above. (Other authorized recipient not found.) [ not fOund .... ................. , Sheriff ....... ....... ....... by ........ ............... .... ......._. ..... ................ ,........, .... , Deputy Sheriff DATE i0P./1.7 CC.; 439 (MASTER, pix:Fniau O'i) nng vs Dennis Boyle, et al. Commonwealth of Pennsylvania County of Lancaster Plaintiff's Docket No. Defendant -is SUBPOENA TO ATTENJ. AND TESTIFY Io: Donald Sherman I. You are ordered by the Coun to come to Regus Lc'n erence Center 400 E. Pratt: St. , 8th Fa., Baltimore, MD ,-,!Crust 26,.70'rvo'nnrtsherP;aceJ on�t 1 U o'c{ock behalf of in the above case, and to remain until excused. CI -14-05849 A .4t. to testify on 2. And bring with you the following: Emails to your personal email account reflecting, referencing, or memorializing any bookkeeping activities for the Boyle Law Firm; Personal, notes rd recommendations created while working for the Boyle Law Firm relating to management and/or reconciliation of the attorney trust account; and All documents shdwing or tending to show that any payments made by Mr. Knopick to Boyle Litigation from 09/2008 to 01/2013 were misapplied or nisused . if you fail to attend or toPr oduce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including- but not limited to costs, attorney fees and itnprisonrnent. Requested by: Attorney: Julie B. Negovan, Esq. Address: 50 S. 16th St, Ste. 28B, Philadelphia, PA 19102 Tele hone: 215-299-4384 Identification #: 81231 Date: Seat of the Court BY THE COURT: By: Official Note: This torn) of subpoena shall be used whenever a subpoena is issuable under Rule 234.1, including hearings in connection with depositions and before arbitrators, roasters, Commissioners, etc. To require the production ofdocumerrts, or things in addition to testimony, complete paragraph 2, SUBPOENA/SUBPOENA DUCES TECUM TO PERSON UNDER FOREIGN SUBPOENA Commonwealth of Virginia VA CODE H8.01-412 8-8.01-412.15; Rule 4:9 Loudoun County Clerk of Circuit Court, P.O. Box 550, Leesburg, VA 20176 ADDRESS GF COURT File No, (Li ... .............. ,I•. 1., •• Nicholas Knopick Dennis Boyle, et al. TO THE PERSON AUTHORIZED BY LAW TO SERVE THIS PROCESS: You are commanded to summon Donald Sherman N.04F 419'18 Gallberry Terrace Ald)e, VA 20105 szkeurAnimulss Circuit Court CITY STATE ZIP . TO THE PERSON SUMMONED: You are commanded to IN attend and give testimony at a deposition produce the books, documents, records, electronically stored inforinarion, and tangible things designated and I' described below Emalls to your personal email account reflecting, referencing, or memorializing any bookkeeping activities for the Boyle Law Firm: Personal notes and recommendations created while working for the Boyle Law Firm relating to management and/or reconciliation of Me attorney trust account* and All documents showing or tending to show that any payments made by Mr. ..Knopick.to.Boylo.titigation from 09/2008 to 01/2D13 were misapplied or misused., at Regus Conf, Cir., 400 E. Pratt St., 8th FL, Baltimore, MD 2'1202at. August 28, 2014 at 10:00 a.m. LOCATION DATE. A3D and to permit inspection and copying by the requesting party or someone acting in his or her behalfof the designated items in your possession, custody or control IFT permit inspection of the premises at the following location LOCATION on DATE AND TINiE This subpoena is issued upon the request of the party named below Nicholas Knopick • NAME OF REOCESTINO kr,' 151 Idle Road Marysville, PA 17053-9503 CITY FORM 439 0.1.53TIER PAGE ONE OF THREE/ 07/00 STR.ECT ADDRESS ... . .. . ........ ........ STATE TELEPHONE NUMBER The requesting party has submitted to this Clerk's Office the foreign subpoena, copy attached, the terms of which are incorporated herein, and the written statement required by Virginia Code § 8.01-412.10. The names, addresses and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of parties not represented by counsel arero�,ided,• below P on attached fist. /AVG 12O18 by Julie 8. Negovan 81231 NAN1E OF ATTORNEY FOR REQUESTING PARTY 50 S. 16th Street, Suite 28B OFFICE ADDRESS P:^lladelphia, PA 1.9102 NAME STREET .ADDRESS • STREET ADDRESS PA BAR NUMBER (215) 586-4586 DC:ENSING STATE TELEPHONE NUMBER Or,p-r'I'CR\Ltir (215) 981-9719 FACS WiLENtiNiGT.7.i or xrrc`RN'EV ...•......... ...... SIR .';;!1fBER LIC Et. -57\(i ti7ATE FACSIMILE NUMBS NAME STRRLT ADDRESS STREET ADDR ESS BAR NUMBER LICENSNC STATE TELEPHONE NUMBER i'ACSIMILE NUN: BER NAME STREET ADDRESS STR SET ADDRESS BAR FUMDER TELEPHONE NL MNES FAGS IMR.P. NUMBER. L(CENSINC STATE RETURN OF SERVICE (see page three of this form) ',ORM CC -1.09 I,N ASTER PAGE *TWO OF THREE) O7:Jo [ 3 This SUBPOENA/SUBPOENA DUCES TEcum TO PERSON UNDER FOREIGN SUBPOENA is being served by a private process server who must provide proof of service in accordance with Va. Code § 8.01-325. TO the person authorized to serve this process: Upon execution, the return of this process shall be made to the Clerk of Court, NAME: ADDRESS: [ I PERSONAL SERVICE TL No. ... .... ...• . • Being unable to make personal service, a copy was delivered in the following manner: Delivered to family member (not temporary sojourner or guest) age 16 or older at usual place of abode of party named above after giving information of its purport. Listname. age of recipient, and relation of recipient. co parr>; named above: Posted on front door or such other door as appears to be the main entrance of usual place of abode, address listed above. (Other authorized recipient not found.) not found by kr.€ Sheriff , Deputy Sheriff FORM CC -1439 (MASTER, PACE VIEZIEF. 0E71(AF:6)07419 Nichcies1Knopici,„ Commonwealth of Pennsylvanin County of Lancaster Plaintiff's Docket No. Dennis Soyie.01 L Defendant/5 Stil3POENA TO ATTEND AND TESTT:GY To: Donald Sherman Sherman of Witrmsqcs.) 1. You are ordered by the Court to come to Regus Conference Center '400 E. Prat St., 8th Fl„ Baltimore, on August 26, c'c:24614°Qrr; Obcor-rcil2occel. A m t,tify on behatfof in Lhe above case, and to remain until excused. CI -14-05849 2. And bring with you the followins: Emails to your personal email account reflecting, r ef ctr-ancf..ne , or memorializ ing any biokkeeping activities for the Boyle Law Firm; Personal notes recommehda-tions created while working for the Boyle Law Firm relating to management and/or reconciliation of the attorney trust account; and All documents showing or tending to show that any payments made by Mr. Knopick to Boyle Litigation from 09/2008 to 01/2013 were misapplied or misused. If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not I imitcd to Costs, attorney fees and imprisonment. Requested bY: el.c.t.222e: Julie B. Negoyan, Esq. Ac: 50 S. 15th St., Ste. 28B, Philadelphia, PA 19102 1Telephone: 215-299-4384 (identification ff.: 81231 Date: BY THE. COURT: By: Scat of the Coun Official Note: This Carni of subpoena stall be id v.nenever a subpoena is is bis under Rule 234.1, iinduding nvsrings in connmOnn sth depositions aid befoce arbitfators, masters, commissioners, etc To require hc production of documents, or things in addition to 'testimony, complete. pa ritgrnph 2. VERIFICATION I, Paul C. Troy, Esquire state under the penalties of 18 Pa. C.S. Section 4904 (relating to unsworn falsification to authorities) that 1 am the attorney for Defendants, Dennis Boyle and Boyle Litigation, in the within action; that as such, I am authorized to take this Verification; and that the facts set forth in the foregoing Motion are true and correct to the best of my knowledge, information and belief. PAUL C. TROY, ESQUIRE KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY I.D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 NO. CI -14-05849 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK v. DENNIS BOYLE; BOYLE LITIGATION; JOSH AUTRY; and CLYMER, MUSSER and CONRAD, P.C. COURT OF COMMON PLEAS LANCASTER COUNTY, PA NO.: CI -14-05849 PROOF OF SERVICE I hereby certify that on the date written below, a true and correct copy of the foregoing Motion for Protective Order / Motion to Quash was served this date, August 15, 2014 by United States First Class Mail, postage pre -paid, upon those person(s) listed below: Julie B. Negovan, Esquire Kutak Rock LLP 50 S. 16' Street, Suite 2813 Philadelphia, PA 19102 Josh Autry, Esquire Lavery Faherty Patterson 225 Market Street P. 0. Box 1245 Harrisburg, PA 17108 KANE, PU �, OEL BY: Clymer Musser & Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 OY & KRAMER, LLP PA C. TROY, ESQUIRE Attorney for Defendants Dennis Boyle and Boyle Litigation EXHIBIT 4 KUTAK ROCK LLP JULIE NEGOVAN, ESQ. (ID No. 81231) Two Liberty Place 50 S. Sixteenth Street, Suite 28B Philadelphia, PA 19102 215-586-4586 Attorneys for Plaintiff, Nicholas W. Knopick NICHOLAS KNOPICK, Plaintiff v. : COURT OF COMMON PLEAS : LANCASTER COUNTY, PA : NO. CL -14-05849 DENNIS BOYLE, BOYLE : LITIGATION, JOSH AUTRY, and : CLYMER, MUSSER and CONRAD, P.C. : PLAINTIFF'S OPPOSITION TO MOTION TO QUASH SUBPOENA OR IN THE ALTERNATIVE FOR PROTECTIVE ORDER AND NOW, comes the Plaintiff, Nicholas Knopick, by and through his counsel, Kutak Rock LLP, Julie Negovan, Esq., appearing, and submits this Opposition to Motion to Quash Subpoena or in the alternative for Protective Order to in connection with the validly noticed deposition of Donald Sherman currently scheduled for August 26, 2014 and in support thereof responds to Defendants' motion and avers as follows: 1. Admitted. 2. Admitted in part, denied in part. It is admitted Plaintiff has not served Defendants with writ and would need to obtain a deputization of the Sheriff in Cumberland County for the service. 3. Admitted. Plaintiff seeks pre -complaint discovery from Mr. Sherman relating to the trust account bookkeeping of Boyle Litigation as it relates to Mr. Knopick's payment of retainer funds from 2008 to 2013. 4. Admitted. 1 5. Denied. To the extent Mr. Sherman forwarded information concerning Boyle Litigation's trust account booking to his personal email or took his notes or other information with him after leaving his employment, any privilege has been waived and the information no longer can be said to be "confidential." 6. The allegations of this paragraph are conclusions °flaw to which no response is required. 7. The allegations of this paragraph are conclusions law to which no response is required. By way of further response, Plaintiff seeks the information from Mr. Sherman in good faith. It pertains directly to his contemplated cause of action against Boyle and Boyle Litigation for breach of contract and breach of fiduciary duty. Plaintiff does not possess the information and cannot obtain it from any other source, other than Boyle and Boyle Litigation. Mr. Knopick had to institute a Replevin Action in Cumberland County, Knopick v. Boyle and Boyle Litigation, No 14-210 CIVIL, in order to even obtain his own file materials. 8. Denied. In the deposition notice served upon all parties, August 19, 2014, Plaintiff stated specifically that the purpose the pre -complaint discovery was "to ascertain additional factual predicate for Plaintiff's breach of contract claims against Boyle and Boyle Litigation for converting Plaintiff s retainer payments to firm operating funds from the firm's IOLTA trust account." 9. Denied. Plaintiff's subpoena to Mr. Sherman is narrowly tailored to obtain the information required for Plaintiff to state with specificity the facts underlying his legal claim that Boyle and Boyle Litigation breached their contract and fiduciary duties by depositing Mr. Knopick's retainer payments in fitni's IOLTA trust account, but then using the funds from the trust account to finance firm operations, including payroll and expenses, without having first 2 earned the fees. When contacted by Defendants' counsel for the "good faith" conference, Plaintiff s counsel offered to -discuss further narrowing of the scope of the subpoena to attempt to address Defendants' concerns, but counsel flatly refused to negotiate any different scope. 10. Denied. Plaintiff intended to serve Defendants with the deposition notice upon learning of service of the subpoena upon Mr. Sherman. Despite diligent follow up the Virginia clerks, it was not until counsel for Mr. Boyle notified Plaintiff's Counsel of their objections that it was determined Mr. Sherman had been served. To date, Plaintiff has not received confirmation of service from Virginia. Regardless, on August 19, 2014, Plaintiff served a deposition notice, which stated with specificity the information sought and its necessity for stating facts specific to Plaintiff's claims in the complaint. 11. Denied. Pennsylvania Rule of Civil Procedure 4007.1(d)(2) specifically provides that, if a deposition is to be taken of a non-party, the notice of deposition (which shall give reasonable notice of the deposition pursuant to Rule 4007.1(a)) shall specify the materials to be produced and that the materials shall be produced at the deposition and not earlier, except upon the consent of all parties to the action. There is no requirement for 20 -days notice. In fact, the Note to Rule 4009.21 specifically provides, "These rules do not preclude (1) the issuance under Rule 234.1 et seq. of a subpoena or request for the production or things at a deposition pursuant to Rule 4007.1(d)." Defendant's allegation to the contrary is baseless and frivolous. 12. The allegations of this paragraph are conclusions of law to which no response is required. By way of further response, Plaintiff provided notice of the deposition on August , 2014, which is reasonable. When contacted by Defendant's counsel in the "good faith" conference, Plaintiff's counsel offered to adjourn the deposition to a more convenient date, Defendant's counsel refused any attempt to adjourn the deposition to avoid this motion. 13. The allegations of this paragraph are conclusions of law to which no response is required. See response to paragraph 12 above. 14. Denied. See response to paragraph 12 above. 15. Denied. See responses to paragraphs 2-12 above. 16. Denied. See responses to paragraphs 2-12 above. 17. Denied. See responses to paragraphs 2-12 above. 18. Admitted in part, denied in part. See responses to paragraphs 2-12 above. 19. Denied. The allegations of this paragraph are conclusions of law to which no response is required. Regardless, it is Plaintiff's contention that any statute of limitations would be tolled by the fact that Defendants concealed and fraudulently induced Plaintiff into believing the claims against the Connelly Defendants could be revived at any time because, among other things, there was a phantom Third Circuit appeal pending that would inform Judge Rambo's decision and allow the claims to proceed. 20. Denied. Justice requires this Court allow the deposition of Mr. Sherman to proceed in order to provide Plaintiff with the factual detailed necessary for him to allege breach of contract and breach of fiduciary duty as it relates to Defendant's handling of his retainer payments from 2007 to 2012. WHEREFORE, Plaintiff, Nicholas Knopick, respectfully requests this Court enter an order denying Defendants' motion for a protective order and allow the August 26, 2014 4 deposition of Mr. Sherman to proceed. Dated: August 22, 2014 Respectfully submitted, KUTAK ROCK LLP Julie Negovan, Esq. (ID No. 81231) Two Liberty Place, Suite 28B 50 S. Sixteenth Street Philadelphia, PA 19102 215-586-4586 Attorneys for Plaintiff Nicholas Knopick 5 CERTIFICATE OF SERVICE I, Julie Negovan, do hereby certify, that I served the forgoing Opposition to Motion for Protective Order on opposing counsel by hand -delivering at the motion court hearing on August 22, 2014 at 3:00 at the Courtroom of Judge Cullen and by email as follows: Via Email and first class mail: Paul C. Troy, Esq. Kane, Pugh, Knoell, Troy & Kramer LLP 510 Swede Street Norristown, PA 19401 Counsel for Defendants Dennis Boyle and Boyle Litigation Via fax 717-299-5115 and first class mail: Clymer, Musser & Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Via fax 717-233-8003 and email iautrv(&lavervlaw.com and first class mail: Josh Autry Lavery Faherty Patterson 225 Market Street, #304 Harrisburg, PA 19108 6 Julie Negovan, Esq. EXHIBIT 5 NO. C1-14-05849 NICHOLAS KNOPICK COURT OF COMMON PLEAS LANCASTER COUNTY, PA v. DENNIS BOYLE; BOYLE LITIGATION; JOSH AUTRY; and CLYMER, MUSSER and CONRAD, P.C. ORDER AND NOW this X.Z day of NO.: CI -14-05849 consideration of the Defendants Motion to Quash Subpoena or, in the Protective Order, said Motion is hereby GRANTED. cc: Dennis E. Boyle, Esquire — Julie B. Negovan, Esquire —t, 1416.11. Autry, Esquire— Clymer Musser & Conrad, P.C. -4 BY THE COURT: , Alternative, for for a EXHIBIT 6 SEP -02-2014 1S:22 From:1111 JULIE B. NEGOVAN itifirmegovan@kutakrock.com (215)25R -43B4 ! ! ' KUTAK ROCK LLP SUITE 202 TWO LIBERTY PLACE 50 SOUTH 12Thi STREET PHILADELPHIA, PMVNSYLVANIA 19102-2512 215-299-4354 FACSIMILE 2I5-961-0719 www,Ku1Akrock.Com September 2, 2014 Via Email and U.S, mail: Paul C. Troy, Esq. Kane, Pugh, Knoell, Troy & Kramer LLP 510 Swede Street Norristown, PA 19401 Via fax117-299-5115 and U.S. mail: Clymer, Musser Sc Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 ,,, '11.• Page:2/4 Via fax 717-233-8003 email 'autti:yid U.S. 'nail: Josh Autry Lavery Faherty Patterson 225 Market Street, #304 Harrisburg, PA 19108 A TL ANTA oNoCAO0 DENVER FAYETTEVILLE IRVINE KANSAS Girl* LITTLE ROCK LO8 ANGELES MINNEAPOLIS OKLAHOMA OITY OMAHA RICHMOND SCoTTSDALE WASMINGToN WWNITA Re: Nicholas Knopick vs. Boyle, et al. Lancaster County No, CI -14-05849 Dear Madam/Sir: Enclosed please find a copy of Plaintiff's Praecipe of Discontinuance along with the Certificate of Service for same. If you have any questions or wish to discuss this matter further, please do not hesitate to contact me. Respectfully, /s/ Julie B. Negovan Julie B. Negovan, Esq. JBN/cs Enclosures SEP -02-2014 16:22 From:1111 KUTAK ROCK LLP JULIE NEGOVAN, ESQ. (ID No. 81231) Two Liberty Place 50 S. Sixteenth Street, Suite 2813 Philadelphia, PA 19102 215-586-4586 Page:3/4 Attorneys for Plaintiff ]Nicholas W. Knopick NICHOLAS KNOPICK, : COURT OF COMMON PLEAS LANCASTER COUNTY, PA Plaintiff, v. : NO. CL -14-05849 DENNIS BOYLE, BOYLE : LITIGATION, JOSH AUTRY, and : CLYMER, MUSSER and CONRAD, P.C. : PRAECIPE OF DISCONTINUANCE TO THE PROTHONOTARY: Please enter this Praecipe of Discontinuance pursuant to Rule 229(a) without prejudice as to the captioned matter. Dated: September 2, 2014 1 Respectfully submitted, KUTAK ROCK LLP Julie Negovan, Esq. (ID No. 81231) Two Liberty Place, Suite 28B 50 S. Sixteenth Street Philadelphia, PA 19102 215-586-4586 Attorneys for Plaintiff, Nicholas Knopick SEP -02-2014 16:22 From:1111 Paoe:4/4 CERTIFICATE OF SERVICE I, Julie Negovan, do hereby certify that I served the forgoing Praecipe of Discontinuance on opposing counsel by electronic filing and as follows: Via Entail and U.S. Mail: Paul C. Troy, Esq. Kane, Pugh, Knoell, Troy & Kramer LLP 510 Swede Street Norristown, PA 19401 Counsel for Defendants Dennis ,Boyle and Boyle Litigation Via Fax 717-299-5115 and U.S. Mail: Clymer, Musser & Conrad, P.C. 408 W. Chestnut Street Lancaster, PA 17603 Via Fax 717-233-8003, Email 'autr ,lavervlaw.com and U.S. Mail: Josh Autry Lavery Faherty Patterson 225 Market Street, #304 Harrisburg, PA 17108 2 Julie Negovan, Esq. Verification The averments and denials herein are true to the best of my knowledge and information and belief. These statements are made subject to 18 Pa.C.S. 4904, relating to unsworn falsification to authorities. November 26, 2014 6 CERTIFICATE OF SERVICE I, Amyra W. Wagner, an employee of Lavery Faherty hereby certify that on November 26, 2014, the foregoing was served upon the following parties via U.S. First Class mail, facsimile, and e-mail: Julie Negovan, Esq. Kutak Rock LLP 2 Liberty Place, Suite 28B 50 S. Sixteenth Street Philadelphia, PA 19102 Fax 215-981-0719 Julie.negovan@kutakrock.com Paul C. Troy, Esq. Mary Beth Hughes, Esq. Kane, Pugh, Knoell, Troy & Kramer LLP 510 Swede Street Norristown, PA 19401 Fax 610-275-2000 ptrov@,kanepugh.com mhughes@kanepugh.com wAigrAIK' Amyra W: • - Joshua►A 7 legal assistant to 3 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA Nicholas Knopick, Civil Action - Law Plaintiff v. ..ts(Qr No. 14-1 -Civil Dennis Boyle and Boyle Litigation, Jury Trial Demanded Defendants ORDER Onthisc tm1 �- A) O day of , 2014, this Court quashes the subpoena for Josh Autry to testify in a deposition and to produce documents. P.T124ty 13441 S. Ai676 )4.L) 12,12/ FILED -OFFICE OF THE PRO HONO TAR Mil DEC -2 PM 3:29 CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. DENNIS BOYLE and BOYLE LITIGATION NO.: 2014-06697 AND NOW this ORDER day of , 2014, upon consideration of the Defendants Motion to Quash Subpoena or, in the Alternative, for a Protective Order, said Motion is hereby GRANTED. lit ()44A0bof444^4. A•44., M 4•••• Ole eder 3 j° • 1k) 44•10-rs..1* cc: lie B. Negovan, Esquire ul C. Troy, Esquire Josh Autry, Esquire 0....e) s P2 )a. KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY I.D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK COURT OF COMMON PLEASE CUMBERLAND COUNTY, Pk. - v. DENNIS BOYLE and BOYLE LITIGATION NO.: 2014-06697 NOTICE OF INTENTION TO ENTER JUDGMENT OF NON PROS ON PROFESSIONAL LIABILTY CLAIM To: Plaintiff Nicholas Knopick Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a certificate of merit is not filed as required by Rule 1042.3. I am serving this notice on behalf of Defendants Dennis Boyle and Boyle Litigation. The judgment of non pros will be entered as to the following claims: All claims (State if a judgment is to be entered as to all claims. Otherwise, identify claims set forth in the complaint as to which a judg s. nt of non pros will be entered). UL . TROY, E IRE 510 Swede Street, Norristown, PA 19401 (610) 275-2000 KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: PAUL C. TROY, ESQUIRE ATTORNEY I.D. NO. 60875 510 SWEDE STREET NORRISTOWN, PA 19401 (610) 275-2000 ATTORNEY FOR DEFENDANTS Dennis Boyle and Boyle Litigation NICHOLAS KNOPICK COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. DENNIS BOYLE and BOYLE LITIGATION NO.: 2014-06697 CERTIFICATE OF SERVICE I, Paul C. Troy, Esquire, certify that on this date a true and correct copy of Defendants' Notice of Intention to Enter Judgment of Non Pros on Professional Liability Claim was served to all counsel via facsimile and U.S. First Class Mail, postage prepaid as follows: Date: i / /` 4( Julie B. Negovan, Esquire Kutak Rock, LLP Two Liberty Place, Site 28B 50 South 26th Street Philadelphia, PA 19102 Facsimile 215.981.0719 1 C. Troy, Esquire I.D. No. 60875 (/ KANE, PUGH, KNOELL, TROY & KRAMER LLP 510 Swede Street Norristown, PA 19401-4886 (610) 275-2000 ptroy@kanepugh.com Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY OFF ICE OF ThE . SERIFF yr 21i DEC 30 Ail 10L 2 LUIiDLf1L1-\ t.,CUN I PENNSYLVANIA Nicholas Knopick vs. Dennis E. Boyle (et al.) Case Number 2014-6697 SHERIFF'S RETURN OF SERVICE 11/21/2014 10:23 AM - Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Dennis E. Boyle, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at Boyle Autry & Murphy, 4660 E. Trindle Road, Suite 200, Hampden Township, Camp Hill, PA 17011. Deputies were advised by other tenants that the defenants moved out. As of this date December 29, 2014 the Camp Hill Postmaster has not been able to provide a good forwarding address. 11/21/2014 10:23 AM - Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Boyle Litigation, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 4660 E. Trindle Road, Suite 200, Hampden Township, Camp Hill, PA 17011. Deputies were advised by other tenants that the defenants moved out. As of this date December 29, 2014 the Camp Hill Postmaster has not been able to provide a good forwarding address. SHERIFF COST: $70.95 SO ANSWERS, December 29, 2014 (c) UountySuito Sheriff, Teleosoft. Inc. 07.-4, 7C' RONNY R ANDERSON, SHERIFF KUTAK ROCK LLP Julie Negovan, Esq. (No. 81231) Two Liberty Place, Suite 28B 50 S. Sixteenth Street Philadelphia, PA 19102 215-586-4586 Julie.Negovan@kutakrock.com 22315 -9 L i 1 : 11+ CCWATY Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA • NICHOLAS KNOPICK, Plaintiff, vs. DENNIS ' BOYLE, AND BOYLE LI-TIGATION Defendants Civil Action — Law NO. 14-6697 CIVIL Jury Trial Demanded PLAINTIFF KNOPICK'S MOTION TO STRIKE DEFENDANTS REQUEST FOR ENTRY OF A JUDGMENT OF NON PROS Plaintiff Nicholas Knopick by and through his undersigned counsel, hereby moves this Honorable Court to Strike the Defendant's Request for an entry of a Non Pros Judgment filed on December 22, 2014 and alleges in support hereof as follows: 1. Plaintiff Nicholas Knopick has a residence at 151 Idle Road, Marysville, PA 17053. 2. Defendant, Dennis E. Boyle has his principal place of business at 4660 Trindle Road, Suite 200, Camp Hill, PA 17011. 3. Defendant Boyle Litigation has its principal place of business at 4660 Trindle Road, Suite 200, Camp Hill, PA 17011. Boyle Litigation is a successor in interest to Boyle Autry & Murphy and Boyle Neblett & Wegner and assumed all the liabilities of Boyle Autry & Murphy and Boyle Neblett & Wegner. 4. On or about October 1, 2008, Plaintiff entered into a contract with Defendants. 5. Defendants were hired by Plaintiff as his lawyers to investigate and pursue an action against UBS Swiss Financial Services AG, and/or other UBS affiliated entities and individuals (hereinafter "dispute with UBS"), a legal malpractice suit against Connelly and Downey ("Downey matter"), a claim against H&R Block/Ameriprise ("HR Block/Ameriprise matter"), and a claim relating to certain civil rights violations in Bull Shoals, Arkansas, among other activities. 6. In his complaint, Plaintiff alleged that Defendant's breached the express and implied terms of the contract between the parties. (Compl. Paras 70-72). 7. Pennsylvania Rule of Civil Procedure 1042 requires that, in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the Plaintiff must file a Certificate of Merit alleging, inter alia, either that the Defendant deviated from a standard of medical care or that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. 8. Since the Plaintiffs Complaint does not sound in legal malpractice, but sounds breach of contract, the filing of a Certificate of Merit was not required where no expert testimony would be needed at trial. 9. Thus, the Plaintiff did not file a Certificate of Merit within sixty (60) days of November 18, 2014. 10. On December 22, 2014, the Defendant filed a Praecipe to Enter Judgment of Non Pros, and Notice thereof, Pursuant to Civil Procedure Rule 1042.6, and sent copies of the same to the Plaintiff. 11. In that Praecipe, the Defendant incorrectly informed the Prothonotary that the Plaintiff had alleged a professional liability claim, but had not filed a Certificate of Merit as required within the time required by Civil Procedure Rule 1042.3. 12. However, since the Plaintiff had not alleged a professional liability claim, no Certificate of Merit had been required, and the Prothonotary was misinformed. 13. Upon receipt of Defendant's Non Pros, Plaintiff filed this Motion and accompanying memorandum to Strike the Judgment Non Pros. 14. Said Request for Judgment of Non-Pros should be stricken, as no claim of professional liability had been alleged, no Certificate of Merit was required, and the Plaintiffs claim alleged breach of contract. 15. Furthermore, the instant to strike motion is timely filed where the request for entry of a judgment of non-pros was filed on December 22, 2014. 16. The Plaintiffs reason for not filing a Certificate of Merit where said filing did not appear warranted is entirely reasonable. 17. The Plaintiff's complaint presents a meritorious claim. 18. For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court Strike the Defendants' Request for an entry of a Non Pros Judgment filed on December 22, 2014. Dated: January 9, 2015 Respectfully submitted, Julie :. Neg%van KUT K ' 1 CK LLP Two b: y Place, Suite 28B 50 South 16th Street Philadelphia, PA 19102 (215) 299-4384 Counsel for Plaintiff CERTIFICATE OF SERVICE I, Julie B. Negovan, do hereby certify that on this 9th day of January 2015, I served a true and correct copy of the Memorandum of Law in Support of Plaintiff Nicholas Knopick's Motion to Strike the Defendant's Request for an entry of a Non Pros Judgment filed on December 22, 2014 on all counsel of record via the First Class Mail on the following counsel of record: Dennis Boyle, Esq. Paul C. Troy, Esq. Fox Rothchild LLP Kane, Pugh, Knoell, Troy & Kramer LLP 1030 15th St., NW 510 Swede Street Suite 380 Norristown, PA 19401 Washington, D.C. 20005 Boyle Litigation c/o Dennis Boyle, Esq. Fox Rothchild LLP 1030 15th St., NW Suite 380 Washington, D.C. 20005 IN THE COUNT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NICHOLAS KNOPICK, Plaintiff, vs. DENNIS BOYLE, AND BOYLE LITIGATION Defendants Civil Action — Law NO. 14-6697 CIVIL Jury Trial Demanded PLAINTIFF'S MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE DEFENDANTS REQUEST FOR ENTRY OF A JUDGMENT OF NON PROS I. MATTER BEFORE THE COURT Nicholas Knopick ("Knopick"), by and through his counsel, Kutak Rock LLP, hereby submits this memorandum in support of his Motion to Strike the Defendant's Request for an entry of a Non Pros Judgment filed on December 22, 2014. The instant case involves a matter of breach of contract and a violation of the uniform trade act and not professional liability. Thus Plaintiff was not required to file a Certificate of Merit. Any request for entry of a Judgment of Non Pros against the Plaintiff based on failing to file a Certificate of Merit is, therefore, improper and should be stricken. II. STATEMENT OF QUESTION INVOLVED Should the Court grant Knopick's Motion to Strike the Defendants Request for an entry of a Non Pros Judgment filed on .December 22, 2014? Suggested Answer: Yes III. PROCEDURAL BACKGROUND Plaintiff hired Defendants to be his lawyers to investigate and pursue an action against UBS Swiss Financial Services, UBS AG and/or other UBS affiliated individuals (hereinafter "UBS dispute") in October 2008. After terminating his contract with Dennis Boyle and Boyle Litigation in 2012, Plaintiff requested, on various occasions, the return of all personal property intended for Plaintiff's personal use, acquired or created for his personal use and was otherwise subject to Plaintiffs possession and subject to his direction and control. Defendants either refused or failed to produce all such documents to Plaintiff. On January 3, 2014 Plaintiff filed a complaint for Replevin in Cumberland County against Defendants Dennis Boyle and Boyle Litigation (Case No. 14-210 Civil). Defendants filed preliminary objections to the Complaint for Replevin on February 6, 2014. Plaintiff filed a writ of seizure on February 7, 2014. On or about February 18, 2014 Defendants filed a motion to strike the writ of seizure and accompanying documents. The Court denied Defendant's motion, and ordered Defendants to answer Plaintiff's Writ of Seizure on February 20, 2014. Plaintiff additionally filed its own preliminary objections to Defendants preliminary objections on February 26, 2014. On or about March 12, 2014 Defendants answered Plaintiff's Motion for Writ of Seizure. Plaintiff responded by filing an answer to Defendants Preliminary Objections on April 7, 2014. After arguments, on April 17, 2014, the Court Ordered the Defendants to provide to the Court the entire file that was held or created by or for the Plaintiff, and said file was then provided to the Plaintiff. Further, on June 26, 2014, Plaintiff filed a Praecipe in Lancaster County (Case No.CI-14- 05849), against Defendants, Joshua Autry, and Clymer, Musser and Conrad P.C. A subpoena was issued for the deposition of Mr. Donald Sherman, originally scheduled for August 26, 2014 in an effort to obtain pre -complaint discovery. Defendants Dennis Boyle, and Boyle Litigation promptly filed a Motion to Quash the subpoena or in the alternative a motion for a protective order to prevent the deposition occurring, on August 15, 2014. Plaintiff requested oral argument regarding Defendants motion on August 19, 2014, and then filed an opposition to Defendants Boyle and Boyle Litigation's Motion to Quash on August 22, 2014. The Court granted Defendants Boyle and Boyle Litigation's Motion to Quash Subpoena or in the Alternative Protective Oder on August 26, 2014. Based on the Court's decision, quashing the subpoena, and Defendant Boyle and Boyle Litigation's Demand that Plaintiff file a complaint within 20 days filed on August 14, 2014, Plaintiff filed a Praecipe of discontinuance on September 2, 2014. Plaintiff Knopick filed a complaint in Cumberland County against Dennis Boyle and Boyle Litigation alleging Defendants breached their contract with Knopick and violated Pennsylvania's Unfair Trade Practices and Consumer Protection Act on November 18, 2014 (the instant case). A subpoena was issued on November 24, 2014, for the deposition of Joshua Autry and requesting the production of certain documents. Mr. Autry was served with the subpoena on November 24, 2014. The deposition was scheduled for December 3, 2014. On November 25, 2014 Defendant Dennis Boyle and Boyle Litigation filed a Motion to Quash the subpoena and requested a protective order be entered to prevent the deposition of Joshua Autry. Mr. Autry filed an emergency motion to quash the subpoena on November 26, 2014. Before Plaintiff had the opportunity to oppose or otherwise respond to Mr. Autry's Motion to Quash, Mr. Autry's motion was granted, quashing the subpoena on December 2, 2014. Defendants then filed a Notice of Intent to Enter Judgment of Non Pros on December 22, 2014. Plaintiff now moves for this Court to Strike the Judgment of Non Pros as it is inapplicable and in appropriate in the present matter. IV. FACTUAL BACKGROUND Plaintiff hired Defendants as his lawyers to investigate and pursue: an action regarding the UBS dispute, a legal malpractice suit against Connelly and Downey ("Downey matter"), a claim against H&R Block/Ameriprise ("HR Block/Ameriprise matter"), and a claim relating to certain civil rights violations in Bull Shoals, Arkansas, among other activities. On or about October 1, 2008, Plaintiff entered into a contract with Defendants relating to the UBS Dispute. Plaintiff was required to make "retainer" payments to Defendants per the terms of the contract. According to the express terms of the contracts, these payments would be paid to the attorney trust IOLTA account and held in trust for Plaintiff's benefit until such time as Defendants earned the fees or reimbursement of expenses and costs, as set forth in accurate monthly invoices and approved by Plaintiff for payment. Plaintiff deposited over $100,000 to Defendants' attorney trust IOLTA account. Based upon information and belief, Plaintiff alleges that Defendants did not hold Plaintiff's retainer payments in trust for his benefit as required by the terms of the contracts and the ethical rules of the Supreme Court of Pennsylvania. Rather, upon information and belief, Defendants comingled trust account funds with operating funds, used trust account funds to pay firm operating expenses, including payments to lawyers and others, used trust account funds to pay for Mr. Boyle's credit card expenses, used trust account funds to pay Mr. Boyle's country club membership and country club charges, used trust account funds to purchase assets for the firm and Mr. Boyle personally and otherwise improperly used Plaintiff's trust funds against his interest and in the interest of Defendants. After learning Defendants had failed to adhere to the express terms of the contracts, Plaintiff terminated Defendants representation in or about December 2012. Plaintiff then brought the above detailed actions to recover personal property and the money misappropriated by Defendants, and instituting the instant action alleging breach of contract and violation of the Pennsylvania's Unfair Trade Practices and Consumer Protection Act. Additionally, in an effort to move forward with the instant case, Plaintiff subpoenaed Joshua Autry and requested the production of certain documents. Both Defendants' and Mr. Autry filed separate Motion's to Quash. Mr. Autry's motion was granted on December 2, 2014 before and Plaintiff had to opportunity to oppose such motion the motion was granted. Defendants filed a Notice of Intent to Enter Judgment of Non Pros on December 22, 2014. Plaintiff now seeks for this Court to Strike the Judgment of Non Pros as it is inapplicable and in appropriate in the present matter. Specifically, Pa.R.C.P. 1042.3 does not apply to this case as the substance of the cause of action is not one of professional liability, but one of breach of contract. Defendants request for Judgment non pros is based on its belief that Plaintiff failed to file a certificate of merit with its complaint; however, a certificate of merit is not required as Plaintiff has alleged breach of contract and violation of Pennsylvania's unfair trade practices and consumer protection act, neither of which require a certificate of merit. Therefore, Defendants request for judgment of non pros should be stricken from the record. V. RELEVANT LAW A. Statutory Law 1. Rule 3051. Relief from Judgment of Non Pros. (a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. 3051. 2. Rule 1042.3 Certificate of Merit (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa.R.C.P .1042.3(a). VI. ARGUMENT A. A Certificate Of Merit Is Not Required Because This Is A Breach Of Contract Claim Not A Professional Liability Claim Rule 1042.3 of Pennsylvania civil procedure rules governing professional liability claims provide that a certificate of merit must be filed with, or within 60 days after, the filing of a complaint in any action asserting a professional liability claim "based upon an allegation that a licensed professional deviated from an acceptable professional standard." Pa.R.C.P. 1042.3(a); Womer v. Hilliker, 589 Pa. 256, 266-67, 908 A.2d 269, 275-76 (2006) (discussing the policies behind rules of civil procedure governing professional liability claims). The Complaint here however, clearly sets forth a cause of action for breach of contract, which does not require the filing of a certificate of merit. In assessing this position, the Court must examine the averments made in the complaint. Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa.Super.2007), appeal granted in part, 594 Pa. 36, 934 A.2d 1150 (2007). The substance of the complaint rather than its form is the controlling factor to determine whether the claim against a defendant sounds in professional negligence or contract. See Merlini v. Gallitzin Water Auth., 934 A.2d 100, 106 (P a.Super.2007). Under settled Pennsylvania case law, a client may bring both a contract action and a tort action against a professional based on allegations that he or she failed to provide the client with professional services consistent with those expected by the profession. See Gorski v. Smith, 812 A.2d 683, 693-94 (Pa. Super. 2002) (both breach of contract and professional negligence actions may be raised against an attorney who failed to provide professional services consistent with those expected of the profession). See also Fiorentino v. Rapoport, 693 A.2d 208, 213 (Pa.Super.1997). In this case, Plaintiff has not brought a tort action, but a breach of contract claim. In order to establish a professional liability claim against an attorney (a legal malpractice claim), [a] plaintiff must demonstrate three basic elements: (1) employment of the attorney or another basis for a duty, (2) failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. Wilson v. Kittredge, 2003 WL 26079221 (citing Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027 (1998)); see also Kirschner v. K & L Gates LLP, 2012 PA Super 102, 46 A.3d 737, 748 (Pa. Super. Ct. 2012). Merlini, 934 A.2d at 105. In most cases, the determination of professional liability requires expert testimony because the negligence of a professional encompasses matters not within the ordinary knowledge and experience of laypersons. Id. In contrast, a typical breach of contract action involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages. J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269 (Pa.Super.2002). In a breach of contract action against a professional, the professional's liability must be based upon the terms of the contract. Fiorentinov. Rapoport, 693 A.2d 208, 213(Pa.Super.1997). While Defendants contend Plaintiff's complaint is a claim based on an allegation that a licensed professional (Defendant) deviated from an acceptable professional standard, which Defendant may have done, that is not the claim which Plaintiff seeks to pursue. Rather Plaintiff asserts a breach of contract claim against Defendants, which requires: (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages. Plaintiff and Defendants clearly had a contract for services, for which Plaintiff performed all preconditions, specifically, paying the retainer and all associated fees and expenses as necessitated by Defendants. Defendants however failed to perform their duties as expressed in the contract. First, Defendants breached their duty by failing to perform the express and implied provisions of the contract the Parties entered into, specifically in regards to researching, initiating a lawsuit against UBS or providing Plaintiff with an explanation of the issues preventing such suit, retaining an expert to support claims in the Downey matter or provide an explanation as to why one could not be located or used and so forth. See Compl. Paras. 70-73. Additionally, Defendants failed to adhere to the express terms of the contract by misappropriating and commingling Plaintiffs funds with the Defendants personal and other business accounts. See Compl. Paras. 5-16, 26, 32-33, 46-47, 58-59, 71. Such an act, or acts, is not only improper, but is clearly a breach of the contract Defendants had with Plaintiff. Further, Defendants failed to provide Plaintiff with the specific breakdown regarding the costs, fees and expenses as required under the contract, providing Plaintiff with absolutely no cogent information regarding the purported work Defendants had done on Plaintiffs on-going matters. As a result of Defendant's breach of contract, Plaintiff was damaged by the loss of thousands of dollars paid to Defendants to pursue his claims which Defendants failed to do. Further, since Defendants breached the contract by failing to provide an accurate breakdown of their expenses and fees, Plaintiff had no way of knowing what work was done on which case and whether it was work he requested. Compl. Paras. 14-16, 67, 70-71 In this case, Plaintiff is not seeking recompense based upon what he would have recovered if Defendants had met their professional responsibilities; rather, he seeks return of the payments made to Defendants for their failure to comply with the express and implied terms of their contracts. Thus, a Certificate of Merit was not required in the instant case, and the Request for Judgment Non Pros should be stricken. B. The Judgment of Non Pros Should Be Stricken Where The Plaintiff's Motion Is Timely Filed, Presents a Reasonable Explanation or Excuse For the Default or Delay That Precipitated the Non Pros, and There Are Sufficient Facts to Support a Cause of Action. Before a petition to open a judgment of non pros may be granted, the moving party must allege (1) the petition is timely filed;. (2) there is a reasonable explanation orlegitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. 3051(b). Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282 (2009). The Plaintiff's Motion to strike Defendants request for entry of non pros is timely filed before the expiration of the 30 -day notice. The Judgment of Non -Pros was requested against the Plaintiff on December 22, 2014. The instant Motion is being filed within three weeks thereof. Therefore, the petition to strike and open is timely filed. MacKintosh - Hemphill Intern., Inc. v. Gulf & Western, Inc., 679 A.2d 1275, 1278-79 (Pa. Super. 1996), appeal denied, 548 Pa. 637, 694 A.2d 622 (1997); Cirio v. Hopewell Township, 715 A.2d 1242 (Pa. Cmwith. 1998); Stephens v. Messick, 2002 Pa.Super. 117, 799 A.2d 793 (2002); Ditch v. Waynesboro Hospital, 917 A.2d 317, 2007 PA Super 5 (2007); Merlini v. Gallitzin Water Authority, 2007 Pa.Super. 274 (2007). Pennsylvania Rules of Civil Procedure require only that the failure to file a Certificate of Merit be accompanied by a reasonable explanation or a legitimate excuse. Almes v. Burket, supra. Whether or not a Certificate of Merit was actually required is not at issue. At issue is whether or not it was reasonable for the Plaintiff to conclude that none was required. Pa. R. Civ. Proc. 3051. Almes v. Burket, 881 A.2d 861 (Pa. Super. 2005).; MacKintosh - Hemphill Intern., Inc. v. Gulf& Western, Inc., supra; Cino v. Hopewell Township, supra; Stephens v. Messick, supra; Ditch v. Waynesboro Hospital, supra; Merlini v. Gallitzin Water Authority, supra. Here, the Plaintiff presents a reasonable explanation for the act that precipitated the request for entry of the non pros. Plaintiffs complaint does not claim that Defendants deviated from any standard of professional care. Rather, Plaintiff alleges that Defendants failed to fulfill their contractual obligations as set forth expressly in the parties' contractual agreements. (Compl., Paras. 70-72). Rule 1043.3 calls for the filing of a Certificate of Merit in actions based upon an allegation that a licensed professional deviated from an acceptable professional standard; but Plaintiff has made no such allegations. Thus, it is entirely reasonable for the Plaintiff to conclude that no Certificate of Merit is required. There was nothing unreasonable about such a conclusion. While the Court may disagree and conclude that a Certificate of Merit should have been submitted, the Plaintiffs conclusion that none was required was entirely reasonable. Almes v. Burket, supra; MacKintosh - Hemphill Intern., Inc. v. Gulf & Western, Inc., supra; Cino v. Hopewell Township, supra; Stephens v. Messick, supra; Ditch v. Waynesboro Hospital, supra; Merlini v. Gallitzin Water Authority, supra. Finally, there are sufficient facts to support Plaintiffs claims, and to conclude that the underlying action is meritorious. Plaintiff contracted with .the Defendants, a law firm, for legal services in return for payment. As discussed above, Defendants had a duty to fulfill and complete the contracted services or otherwise provide an explanation as to such inability, which they failed to do, thereby breaching the contract with Plaintiff, resulting in ensuring damages. (Compl., Paras 70-73). Thus, Request for Judgment of Non Pros should be stricken. VII. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court Strike the Defendant's request for Judgment Non Pros filed on December 22, 2014. Dated: January 9, 2015 Respectfully submitted, Julie B. KUT K LLP Two Liberty Place, Suite 28B 50 South 16th Street Philadelphia, PA 19102 (215) 299-4384 Counsel for Plaintiff CERTIFICATE OF SERVICE I, Julie B. Negovan, do hereby certify that on this 9th day of January 2015, I served a true and correct copy of the Memorandum of Law in Support of Plaintiff Nicholas Knopick's Motion to Strike the Defendant's Request for an entry of a Non Pros Judgment filed on December 22, 2014 on all counsel of record via the First Class Mail on the following counsel of record: Dennis Boyle, Esq. Paul C. Troy, Esq. Fox Rothchild LLP Kane, Pugh, Knoell, Troy & Kramer LLP 1030 15th St., NW 510 Swede Street Suite 380 Norristown, PA 19401 Washington, D.C. 20005 Boyle Litigation c/o Dennis Boyle, Esq. Fox Rothchild LLP 1030 15th St., NW Suite 380 Washington, D.C. 20005 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA 101 d NICHOLAS KNOPICK, Plaintiff, vs. DENNIS BOYLE, AND BOYLE LITIGATION Defendants aol LI-Otolo g q N0 -2013C ^r - AFFIDAVIT OF SERVICE AS TO DEFENDANTS DENNIS BOYLE AND BOYLE LITIGATION COMES NOW Plaintiff Nicholas Knopick, by and through his attorneys, hereby gives notice that it served the Complaint on Defendants Dennis Boyle, and Boyle Litigation by signature of Dennis E. Boyle, Esq., Fox Rothschild LLP, 1030 15th St., NW, Suite 380 East, Washington, D.C. 20005, and Boyle Litigation c/o Dermis Boyle, Esq., Fox Rothschild LLP, 1030 15th St., NW, Suite 380 East, Washington, D.C. 20005, via certified mail, return receipt requested, on the 1st day of December, 2014. The return receipt for such certified mail service, inclusive of the confirmation of delivery from the United States Postal Service, is attached hereto as Exhibit A. The Sheriff's Return of Service from Cumberland County stating the Sheriff was unable to locate Defendants in Cumberland County, which was received on January 5, 2015 is attached hereto as Exhibit B and by this reference incorporated herein. DATED this January 7, 2015 1 Ju e B. egovan P. Attorn y I.D. No. 81231 K tak Rock LLP T . Libe ►.y Place 50 S. . ' Street, Suite 28B Philadelphia, PA 19102-2519 (215) 299-4384 Attorneys for Nicholas Knopick , ,r ;; 2.8 CERTICATE OF SERVICE I, Julie B. Negovan, Esq., hereby certify that on January 7, 2015, I caused to be served a true and correct copy of the foregoing Affidavit of Service as to Defendants Dennis Boyle, and Boyle Litigation, via U.S. Mail, and upon all counsel of record as follow: Dennis Boyle, Esq. Fox Rothchild LLP 1030 15th St., NW Suite 380 Washington, D.C. 20005 Boyle Litigation c/o Dennis Boyle, Esq. Fox Rothchild LLP 1030 15th St., NW Suite 380 Washington, D.C. 20005 2 Paul C. Troy, Esq. Kane, Pugh, Knoell, Troy & Kramer LLP 510 Swede Street Norristown, PA 19401 EXHIBIT A SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 If Restricted Delivery is desired. is Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front If space permits, 1. Article Addressed to: tlr;ts C .16:)1 Le E Fox Oc hschild LLP tom t-th St I Nu) 5ca.c � 3 � I l�C 0-0005St (ivaSh I n9 COMPLETE THIS SECTION ON DELIVERY )f it ) z B. R by (Prf e) 0 Agent 0 Addressee C.Date of0e'very D. Is delivery address different from item 1? If YES, enter delivery address below: Q No . krvIce Type Certified Mali® 0 Priority Mall Express' 0 Registered Return Receipt for Merchandise 0 Insured Mall 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service label) 70 1090 0002 2966 2464 PS Form 3811, July 2013 Domestic Return Receipt SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3, Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you, si Attach this card to the back of the maiipiece, or on the front if space permits. 1 Article Addressed to: eLi4i3Cthol "Do\-ite T)04-hschttd 0-9 LOO t54,4-1 1•ItA) 5LLO-e 3S0 Eras+ &also n9T)r SX 90005 COMPLETE THIS SECTION ON DELIVERY . ' nature B. 1eOved by (PrintedNam 0 Agent „.../ 0 Addressee C. Date o Dftliy9ry /C21— . Is delivery address different from item 1? LY Y s If YES, enter delivery address below: PcNo Service Type Certified Mail 0 Express Mail 0 Registered )3Return Receipt for Merchandise O Insured Mali 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service (abet) ?013 1090 0002 2966 2440 PS Form 3811. February 2004 Domestic Return Receipt 102S95 -02 -M -1S4 EXHIBIT B Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY tate DI Cala(+tr(rlrb. Nicholas Knopick vs. Dennis E. Boyle (et al.) Case Number 2014-6697 SHERIFF'S RETURN OF SERVICE 11/21/2014 10:23 AM - Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Dennis E. Boyle, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at Boyle Autry & Murphy, 4660 E. Trindle Road, Suite 200, Hampden Township, Camp Hill, PA 17011. Deputies were advised by other tenants that the defenants moved out. As of this date December 29, 2014 the Camp Hill Postmaster has not been able to provide a good forwarding address. 11/21/2014 10:23 AM - Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Boyle Litigation, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint & Notice as "Not Found" at 4660 E. Trindle Road, Suite 200, Hampden Township, Camp Hill, PA 17011. Deputies were advised by other tenants that the defenants moved out. As of this date December 29, 2014 the Camp Hill Postmaster has not been able to provide a good forwarding address. SHERIFF COST: $70.95 SO ANSWERS, December 29, 2014 RONNY R ANDERSON, SHERIFF ,30 (c1 CountySuito Shor,It Tclacsoft Inc.