HomeMy WebLinkAbout05-3789
David Newmann (Bar No. 82401)
HOGAN & HARTSON L.L.P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Fax: (267) 675-4601
Email: dnewmann@hhlaw.com
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Plaintiffs/Respondents, )
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GREER INDUSTRIES, INC, and
DECKER'S CREEK LIMESTONE CO.,
CHUBB CORPORATION and GREAT
NORTHERN INS. CO.,
Defendants/Petitioner.
l>
Attorney for DefendantlPetitioner
Great Northern Insurance
Company
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
JULY TERM, 2005
No. ,Q/)~ ~/6'Cl ~ ~
UNCONTESTED PETITION FOR ISSUANCE OF SUBPOENA DUCES
TECUM TO L.B. SMITH, INC.
Pursuant to 42 Pa. C.S.A ~ 5326 and Pennsylvania Rules of Civil
Procedure 234.1 et sea., Petitioner Great Northern Insurance Company
("Petitioner"), through undersigned counsel, requests that the Court issue a
subpoena duces tecum to the Custodian of Records or other appropriate designee of
L.R Smith, Inc, ("L.B. Smith"), and in support thereof states as follows:
1. Petitioner is a defendant in a lawsuit styled Greer Indus.. Inc. et
aI. v, Chubb Coro, et aI., Civil Action No. 02-C-118 (the "West Virginia Action"),
pending in the Circuit Court of Monongalia County, West Virginia (the "West
Virginia Court"), filed by Plaintiffs/Respondents Greer Industries, Inc. and Decker's
Creek Limestone Co. ("Respondents"),
2. In the West Virginia Action, Petitioner, with the consent of
Respondents, sought a Commission and Order of Appointment to seek issuance of a
subpoena duces tecum by this Court directed to the Custodian of Records or other
appropriate designee of L.B. Smith, for production of the documents identified in
the schedule attached hereto as Exhibit A. The West Virginia Court issued the
Commission and Order of Appointment on June 21, 2005. True and correct copies of
the Commission and Order of Appointment are attached hereto as Exhibit B.
3. L.B. Smith has its principal place of business at 2051 State
Road, Camp Hill, Pennsylvania 17011, located within Cumberland County.
4. The documents identified in Exhibit A hereto are relevant to the
West Virginia Action and needed for a full and fair adjudication of the claims and
defenses asserted therein.
5. Under 42 Pa. C,S.A. 9 5326, upon the application of any
interested person or in response to a letter rogatory, a "court of record of this
Commonwealth may order a person who is domiciled or is found within this
Commonwealth to give his testimony or statement or to produce documents or other
things for use in a matter pending in a tribunal outside this Commonwealth."
Issuance of the requested subpoena is proper under 42 Pa, C.S.A. 9 5326 and
Pennsylvania Rule of Civil Procedure 234.1.
6. Counsel for Petitioner has conferred with counsel for
Respondents, who have informed Petitioner that they have no objection to the relief
requested herein, but Respondents do not adopt or affirm any of the averments or
legal conclusions set forth herein.
WHEREFORE, Petitioner requests that the Court issue a subpoena
duces tecum directing the Custodian of Records or other appropriate designee of
L,B. Smith to produce the documents described in Exhibit A.
- 3 -
Dated: July 25, 2005
- 4 .
Respectfully submitted,
David Newmann (Bar No. 82401)
HOGAN & HARTSON L.L.P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Attorney for DefendantlPetitioner
Great Northern Insurance Company
VERIFICATION
The undersigned, being local counsel for DefendantlPetitioner Great
Northern Insurance Company, hereby states he is authorized to make this
verification on its behalf and that the factual averments set forth in the above
Petition are true and correct to the best of the undersigned's knowledge,
information and belief and are made subject to the penalties of 18 Pa. C.S.A !l 4904
relating to unsworn falsifications to authorities.
David Newmann
Dated: July 25, 2005
."
EXHIBIT A
DEFINITIONS
1. The tenn "Communications," as used herein, includes, without limitation, any
written, oral, electronic, telephonic or other inquiry, examination, notice, representation,
discussion, conversation, correspondence, e-mail, negotiation, review, claim, agreement,
understanding, meeting or interview, as well as any note, memorandum or other record
thereof. "Communications between" any individual or entity and any other individual or
entity includes communications going in either direction between such individuals or
entities.
2. The tenn "Concerning," as used herein, means citing, quoting, regarding,
relating to, involving, representing, evidencing, constituting, discussing, mentioning,
containing, analyzing, supporting, embodying, reflecting, identifying, incorporating,
describing, commenting on, referring to, considering, recommending, dealing with or
pertaining to in whole or in part.
3. The term "Documents," as used herein, shall mean the original and any and
all nonidentical copies of any written, typed, printed, photocopied, photographic, machine-
readable, or magnetically or optically recorded matter of any kind, and shall include
without limitation: agreements and contracts; applications; assignments; licenses;
correspondence; drafts; reports, notes and memoranda; summaries, minutes, notes and
records of telephone conversations, meetings and conferences; reports and/or summaries of
investigations or audits; opinions and reports cjf experts and consultants; statements of
persons having knowledge of relevant facts; cablegrams and telex messages; financial
statements; books of account; statements, bills, checks and vouchers; records of wire
transfers; receipts; brochures, pamphlets, sales literature and sales promotion material;
advertisements; trade letters, notices and announcements, articles and press releases; all
data or information stored on computer-readable media, such as electro-magnetic or other
disks, diskettes, hard disk drives, tapes, cartridges, and CD-ROM, including, but not
limited to, software, firmware, source code, and electronic mail; and all things in the
broadest sense pursuant to West Virginia Rule of Civil Procedure 34.
4. The term "Greer,' as used herein, means Greer Industries, Inc., any and all of
its present or former parents, subsidiaries (including without limitation Decker's Creek
Limestone Company), affiliates, predecessors, successors, agents, employees, officers,
members, attorneys, consultants, contractors, subcontractors and representatives, and any
other entity or person acting or purporting to act on behalf of or subject to the direction or
control of any of the foregoing.
5. The term "LB Smith,' as used herein, means L.B. Smith, Inc., any and all of
its present or former parents, subsidiaries, affiliates, predecessors, successors, agents,
employees, officers, members, attorneys, consultants, contractors, subcontractors and
representatives, and any other entity or person acting or purporting to act on behalf of or
subject to the direction or control of any of the foregoing.
6. The term "Limestone Processing Equipment,' as used herein, means any
equipment, whether stationary, portable or on skids, that can be used to create Limestone
Products in any shape, size or form, including without limitation any equipment that
could be used as part of a primary, secondary or tertiary line.
7. The term MLimestone Products," as used herein, means any types, categories,
sizes, classifications, and/or grades of any products, outputs, mixes, stone and/or sand
resulting from the mining, crushing, screening, and/or processing of Iimestone.
B. The terms "any" and "all," as used herein, mean both any and all.
9. The terms "and" and "or," as used herein, shall be construed as both
conjunctive and disjunctive as necessary to make the request inclusive rather than
exclusive.
DOCUMENT REQUESTS
Reauest No.1:
All Documents Concerning Communications between L.B. Smith and Greer
Concerning the installation or use of Limestone Processing Equipment inside or
outside an underground mine, including without limitation inside or outside the mines
operated at Decker's Creek Limestone Company, Greer Limestone Company, and
Buckeye Stone Company.
Reauest No.2:
All Documents Concerning Communications between L.B. Smith and Greer
Concerning vibrations in or vibrations caused by the operation of Limestone Processing
Equipment used or considered for use at any time at the mines operated at Decker's
Creek Limestone Company, Greer Limestone Company, or Buckeye Stone Company.
Reauest No.3:
All Documents Concerning Communications between L.B. Smith and Greer
Concerning any plans, proposals, or actions taken by Greer between 2000 and the
present to relocate any Limestone Processing Equipment at the Decker's Creek
Limestone Company, including without limitation to relocate any Limestone
Processing Equipment from one location at Decker's Creek Limestone Company to
another location at Decker's Creek Limestone Company, a location at Buckeye Stone
Company, or a location at Greer Limestone Company.
Reauest No.4:
All Documents Concerning Communications between L.B. Smith and Greer
Concerning any plans, proposals, or actions taken by Greer between 2000 and the
present to purchase, lease, repair, replace, modify or improve any Limestone
Processing Equipment.
#'.
"I
IN THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA
GREER INDUSTRIES, INC. and
DECKER'S CREEK LIMESTONE
COMPANY,
Plaintiffs,
v.
CIVIL ACTION NO.: 02-C-118
CHUBB CORPORATION, and
GREAT NORTHERN INSURANCE
COMPANY,
Defendants.
COMMISSION
TO: Hogan & Hartson UP
1835 marltet Street, 28'" Floor
Philadelphia, PAl 9103
YOU ARE HEREBY AUTHORIZED AND REQUESTED, in accordance with the
tenns of the attached Order dated ~"'^'- 1.' ,2005, signed by the ChiefJudge of the
Circuit Court of Monongalia County, West Virginia, to do all things necessary and required to be
done by the same attached Order, including applying to the appropriate judicial authority in the
Commonwealth of Pennsylvania, to summon before you forthwith the Custodians ofRccords or
other appropriate designees for L.B. Smith, me., Sub-Technical, me., and Kemper Equipment, me.
by subpoenas duces tecum, on July 8, 2005, at 9:30 a,m., or at a date and time mutually agreed upon
by counsel for the parties and the witness.
The documents and communications produced pursuant to the subpoenas duces tecum
shall be subject to the confidentiality agreement negotiated between the parties, and shall be used
in the above-captioned action now pending in the Circuit Court of Monongalia County, West
Virginia.
~ .
.,
The Circuit Clerk is Ordered to forward copies of this Order to the respective counsel
listed below.
IN TESTIM:ONY WHEREOF the seal of this Court is affixed hereto.
WITNESS, The Honorab]e Russell M. C]awges, Jr., this '2.1tl-tlay of June, 2005.
Q~v-~'S~
The Honorab]e Russell M. C]awges, Jr., Judge
AndreW M. Roman, Esquire
Mark A. May, Esquire
Cohen & Grigsby, P.C.
1 ] Stanwix Street
151h F]oor
Pittsburgh, PA ]5222
Counsel for Plaintiffs
Jeffery L. Robinette, Esquire
W.Va, State Bar 1.D. #5786
The Robinette Legal Group, PLLC
475 Fairchance Road
P. O. Box 18100
MorgantoWD, WV 26507-8]00
(304) 594-1800
William D. Nussbaum, Esquire
Jonathan T. Rees, Esquire
Hogan & Hartson, L.L.P.
555 ]31h Street, N.W.
Washington, D.C. 20004-] 109
202-637-5600
Counsel for Defendant,
Great Northern Insurance Company
/ .,
IN THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA
GREER INDUSTRIES, INC. and
DECKER'S CREEK LIMESTONE
COMPANY,
Plaintiffs,
v.
CML ACTION NO.: 02-C-118
CHUBB CORPORATION, md
GREAT NORTHERN INSURANCE
COMPANY,
Defendmts.
. ORDER OF APPOINTMENT
Upon consideration of the consent motion for m order of appointment
to take depositions duces tecnm outside West Virginia, the Court hereby orders:
.1. A commission shall be issued to the law firm ofHogm &
Hartson LLP, 1835 Market Street, 28th Floor, Philadelphia, PA 19103, authorizing
it to do all that is necessary and required before the proper Pennsylvania judicial
authorities to obtain the issuance of subpoenas duces tecum requiring the
Custodims of Records or other appropriate designees for L.B. Smith, Inc., Sub-
Technical, Inc., md Kemper Equipment, Inc. to appear for deposition on July 11,
2005, at 9:30 a.m., or at a. date md time mutually agreed upon by counsel for the
parties md the witness, along with my md all documents and communications
identified in the exhibits to the subpoenas.
'OC"'~I:<01'7:.21295CDv:
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2) All such documents and communications produced by L.B.
Smith, Inc., Sub-Technical, Inc., and Kemper Equipment, Inc. shall be covered
under the scope of the confidentiality agreement previously negotiated by the
parties and controlling in this action.
The Clerk is directed to forward a copy of this Order to all counsel of
record.
ENTER<~""'" 1->."...<
Gl~,,~.
S1A1E OF WES1 VIRGINIA SS:
I. Jean Friend. Clerk oflhe Circuit Court and
F amity Cc,art of Monongalia County State
alDresaid do ~','eby certify lhallhe attached
deralS a . copy gf the original Order
ade and a.ed by said rt.
Circuit Clerk
.DC'.~7:!I:'Om-2129"Jv2
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Uncontested Petition of
Defendant/Petitioner Great Northern Insurance Company for Issuance of Subpoena
Duces Tecum to L,B. Smith, Inc., were served by first.class mail, postage prepaid,
on July 25, 2005, to:
Andrew M. Roman, Esq.
Mark A. May, Esq,
Cohen & Grigsby, P.C.
11 Stanwix Street
15th Floor
Pittsburgh, PA 15222
tJ-;.P#.
David Newmann
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David Newmann (Bar No. 82401)
HOGAN & HARTSON L.L.P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Fax: (267) 675-4601
Email: dnewmann@hhlaw.com
v.
)
)
)
)
Plaintiffs/Respondents, )
)
)
)
)
)
)
)
)
GREER INDUSTRIES, INC. and
DECKER'S CREEK LIMESTONE CO.,
CHUBB CORPORATION and GREAT
NORTHERN INS. CO.,
Defendants/Petitioner.
~11''lt:1 ^y
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Attorney for DefendantJPetitioner
Great Northern Insurance
Company
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
JULY TERM, 2005
No. P.:>-. ~7~q r-.:;.Jj J~
it. ORDER
AND NOW, this ~ day Of~, 2005, upon consideration
of the Uncontested Petition of Defendant/Petitioner Great Northern Insurance
Company for Issuance of Subpoena Duces Tecum to L.B. Smith, Inc.; it is hereby
ORDERED that the Prothonotary shall issue a Subpoena Duces Tecum to L.B.
Smith, Inc., directing production of the documents identified in Exhibit A to the
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Petition on or before Augus:,), 2005, at 2051 State Road, Camp Hill, Pennsylvania
17011, or at such other date, time or location mutually agreed upon by counsel for
the parties and the witness.
BY THE COURT:
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David Newmann (Bar No. 82401)
HOGAN & HARTSON L.L,P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Fax: (267) 675-4601
Email: dnewmann@hhlaw.com
v.
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)
)
)
Plaintiffs/Respondents, )
)
)
)
)
)
)
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)
GREER INDUSTRIES, INC. and
DECKER'S CREEK LIMESTONE CO.,
CHUBB CORPORATION and GREAT
NORTHERN INS. CO.,
Defendants/Petitioner.
Attorney for DefendantlPetitioner
Great Northern Insurance
Company
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
JULY TERM, 2005
No. 05-3789
UNOPPOSED PETITION
FOR ISSUANCE OF SUBPOENA TO GEORGE MURIN
With Plaintiffs' consent, 11 pursuant to 42 Pa. C.S,A. ~ 5326 and
Pennsylvania Rules of Civil Procedure 234.1 et sea., Petitioner Great Northern
Insurance Company ("Petitioner"), through undersigned counsel, requests that the
Court issue a subpoena to George Murin, Echo Industrial, Inc., 1610 Industrial
Drive, Carlisle, P A 17013.9614, and in support thereof states as follows:
1. Petitioner is a defendant in a lawsuit styled Greer Indus.. Inc. et
a!. v. Chubb Corn. et a!., Civil Action No. 02-C-118 (the "West Virginia Action"),
pending in the Circuit Court of Monongalia County, West Virginia (the "West
11 Plaintiffs do not oppose this petition, however, Plaintiffs do not adopt or
verify any of the facts or legal statements made herein by Great Northern.
Virginia Court"), filed by Plaintiffs/Respondents Greer Industries, Inc. and Decker's
Creek Limestone Co. ("Respondents'}
2. In the West Virginia Action, Respondents seek recovery under a
policy issued by Petitioner for certain damages allegedly resulting from a rock fall
that occurred in the mine at Decker's Creek Limestone Company on September 13,
2001.
3, Great Northern has learned that Mr. Murin likely possesses
knowledge and information that it is relevant to the West Virginia Action and
needed for a full and fair adjudication of the claims and defenses asserted therein.
Mr. Murin, in connection with his prior employment at L.B. Smith, Inc., assisted
Respondent Decker's Creek Limestone Company with various equipment issues at
the Decker's Creek Limestone Mine between at least 1999 and 2002, including but
not limited to the design, placement and/or use of certain mining equipment at
Decker's Creek. Mr, Murin's testimony is potentially relevant to issues including
whether certain exclusions in the policy, including an exclusion for Planning,
Design, Materials or Maintenance, preclude coverage for all or some of any damage
resulting from the rock fall.
4. Under 42 Pa,C.S.A ~ 5326, this Court "may order a person who
1S domiciled or is found within this Commonwealth to give his testimony or
statement or to produce documents or other things for use in a matter pending in a
tribunal outside this Commonwealth," Such an "order may be made upon the
application of any interested person or in response to a letter rogatory." 42
Pa.C.SA ~ 5326.
5. Great Northern is an interested person within the meaning of
the statute. Great Northern is seeking issuance of the subpoena as an interested
party rather than pursuant to a letter rogatory commission because, under the
deadlines set forth in the West Virginia Action, the deposition needs to be conducted
- 3 -
by September 5, 2005. The time required to obtain a letter rogatory would likely
make it difficult to obtain a subpoena from this Court and conduct the deposition
before that date,
6. Great Northern will use the requested testimony solely for
purposes of this litigation, and will accord it all protections contained in the
confidentiality agreement previously negotiated between the parties in this case.
WHEREFORE, Petitioner requests that the Court issue a subpoena
directing George Murin to appear at Hotel Carlisle, 1700 Harrisburg Pike, Carlisle,
P A 17013 on Thursday, August 25, 2005, beginning at 11:00 AM, or at such date,
time or location mutually agreed upon by counsel for the parties and the witness, to
be deposed in connection with the above-referenced matter,
Respectfully submitted,
David Newmann (Bar No. 82401)
HOGAN & HARTSON L.L.P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Attorney for Defendant/Petitioner
Great Northern Insurance Company
Dated: August 10, 2005
- 4-
VERIFICATION
The undersigned, being local counsel for Defendant/Petitioner Great
Northern Insurance Company, hereby states he is authorized to make this
verification on its behalf and that the factual averments set forth in the above
Petition are true and correct to the best of the undersigned's knowledge,
information and belief and are made subject to the penalties of 18 Pa. C.SA !l 4904
relating to unsworn falsifications to authorities.
~#-
David Newmann
Dated: August 10, 2005
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Unopposed Petition of
Defendant/Petitioner Great Northern Insurance Company for Issuance of Subpoena
to George Murin, were served by first-class mail, postage prepaid, on August 10,
2005, to:
Andrew M. Roman, Esq.
Mark A. May, Esq.
Cohen & Grigsby, P.C.
11 Stanwix Street
15th Floor
Pittsburgh, P A 15222
~~
David Newmann
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David Newmann (Bar No, 82401)
HOGAN & HARTSON L.L.P.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
(267) 675-4610
Fax: (267) 675.4601
Emai1: dnewmann@hhlaw.com
v.
)
)
)
)
Plaintiffs/Respondents, )
)
)
)
)
)
)
)
)
GREER INDUSTRIES, INC. and
DECKER'S CREEK LIMESTONE CO.,
CHUBB CORPORATION and GREAT
NORTHERN INS. CO.,
Defendants/Petitioner.
jRECEIVED AUG 1220$ Y
Attorney for Defendant/Petitioner
Great Northern Insurance
Company
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
JULY TERM, 2005
No. 05-3789
ORDER
AND NOW, this ~ t)>ay of A " c)
, 2005, upon consideration
of the Unopposed Petition of Defendant/Petitioner Great Northern Insurance
Company for Issuance of Subpoena to George Murin, it is hereby ORDERED that
the Prothonotary shall issue a Subpoena to George Murin, Echo Industrial, Inc.,
1610 Industrial Drive, Carlisle, Pennsylvania 17013-9614, directing that he come to
Hotel Carlisle, 1700 Harrisburg Pike, Carlisle, PA 17013 on Thursday, August 25,
2005, beginning at 11:00 AM, or at such date, time or location mutually agreed upon
by counsel for the parties and the witness, to be deposed in connection with the
above-referenced matter.
BY THE COURT:
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