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HomeMy WebLinkAbout05-5393IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 0-9 - S'293 ?Il o I t-7akn CIVIL ACTION - LAW AND EQUITY 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 ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. O S- S'343 el. . t v 1 t v' CIVIL ACTION - LAW AND EQUITY COMPLAINT Plaintiff, by and through his undersigned counsel, Barley Snyder LLC, files the following Complaint in this action against Defendant, Potomac Group West, Inc., of which the following is a statement: Plaintiff, Steven S. Wevodau (hereinafter "Mr. Wevodau") is an adult individual who maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Potomac Group West, Inc. (hereinafter "PGW") is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California. 3. Mr. Wevodau is a former employee of an entity known as The BISYS Group, Inc., which is a Delaware corporation with its headquarters located in New York City, New York. 4. Mr. Wevodau is also a former independent contractor of The BISYS Group, Inc. Mr. Wevodau is a former independent contractor for PGW. 6. On September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement, which document specifically sets forth respective obligations of the parties to one another, as specified therein. A true and correct copy of the Indemnification Agreement is attached hereto as Exhibit "A" and the entirety of the document is incorporated herein by reference as if fully set forth at length. The Indemnification Agreement memorializes the agreement of the parties and their obligations to one another, and valid consideration was received by both parties, thereby making the Indemnification Agreement a binding contract upon both parties. Since approximately September 13, 2002 to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V, which legal action also involves The BISYS Group, Inc. as a Defendant. 9. The Maryland Action has multiple Plaintiffs and multiple Defendants; Mr. Wevodau is not a named party in the Maryland Action. 10. Mr. Wevodau has been involved in the Maryland Action as a third-party witness and has and continues to incur Expenses (as that term is defined in the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees, for legal representation provided to him in connection with his involvement in the Maryland Action as a third-party witness. 11. In connection with the Maryland Action, Mr. Wevodau has incurred and continues to incur attorney's fees and expenses, for which PGW is obligated to pay on behalf of Mr. Wevodau pursuant to the Indemnification Agreement. 12, Concerning the Maryland Action, Mr. Wevodau was initially represented by the law firm of McNees, Wallace & Nurick, LLC, of Harrisburg, Pennsylvania, but Mr. Wevodau has since transferred as of mid-2005 his legal representation regarding the Maryland Action to the law firm of Barley Snyder LLC, which firm is also Mr. Wevodau's counsel in the matter now being presented through the within Complaint. 13. On or about October 15, 2003, Mr. Wevodau was named as a defendant in a legal action brought by The BISYS Group, Inc. against him before the United States District Court for the Southern District of New York at Docket No. 03-8846, which action was subsequently transferred to and currently remains pending before the United States District Court for the Middle District of Pennsylvania (Harrisburg) at Docket No. 1:CV-04-0964 (hereinafter the "Pennsylvania BISYS Action"). 14. In the Pennsylvania BISYS Action, Mr. Wevodau was initially represented by Martin I. Kaminsky, Esquire of the law firm of Pollack & Kaminsky of New York (while that case was pending in New York) and Mr. Wevodau was subsequently represented by the law firm of McNees, Wallace & Nurick, LLC once the Pennsylvania BISYS Action was transferred to the Middle District of Pennsylvania. 15. Presently, as of mid-2005, the legal representation of Mr. Wevodau in the Pennsylvania BISYS Action has been transferred from McNees, Wallace & Nurick, LLC to Barley Snyder LLC and undersigned counsel to this Complaint. 16. In connection with the Pennsylvania BISYS Action, Mr. Wevodau has and continues to incur Expenses (as that term is defined the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees. 17. Mr. Wevodau has incurred and continues to incur attorney's fees and expenses in connection with bringing the claims stated in this Complaint, which fees and expenses Mr. Wevodau is entitled to recover pursuant to the indemnification Agreement upon prevailing in this matter. 18. At all times, Mr. Wevodau has fully complied with his obligations under the Indemnification Agreement and Mr. Wevodau is entitled to receive full performance by PGW of its obligations under the Indemnification Agreement. 19. Exclusive jurisdiction is conveyed upon this Honorable Court pursuant to Section Nine of the Indemnification Agreement, wherein it is stated that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." COUNT I - BREACH OF CONTRACT 20. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 21. Pursuant to the Indemnification Agreement, PGW is responsible for payment of all attorney's fees and expenses incurred by Mr. Wevodau in connection with the Maryland Action. 22. Despite demand made by and/or on behalf of Mr. W evodau upon PGW for payment of such attorney's fees and expenses in connection with the Maryland Action, PGW has and continues to refuse to make payment and therefore PGW has breached its obligations under the Indemnification Agreement and continues to breach its obligations on an ongoing basis by also failing to make payment as these attorney's fees and expenses continue to accrue in connection with Mr. Wevodau's ongoing involvement in the Maryland Action. 23. Pursuant to the Indemnification Agreement, PGW is responsible to pay for all Expenses (as that term is defined in the Indemnification Agreement) incurred by Mr. Wevodau in connection with the Pennsylvania BISYS Action, which is an "Action" as defined by the Indemnification Agreement. 24. Despite demand made by and/or on behalf of Mr. Wevodau upon PGW for payment for the Expenses incurred by Mr. Wevodau in connection with the Pennsylvania BISYS Action, PGW has refused and continues to refuse to pay, and PGW is therefore in breach of its obligations under the Indemnification Agreement and continues to breach its contractual obligations by failing to make payment on an ongoing basis as Mr. Wevodau continues to incur Expenses in the Pennsylvania BISYS Action. 25. PGW has been duly advised of the transfer of legal representation from McNees, Wallace & Nurick, LLC to the law offices of Barley Snyder LLC with respect to both the Maryland Action and the Pennsylvania BISYS Action, however, PGW nevertheless has refused and continues to refuse to pay for any of the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have and continue to be incurred by Mr. Wevodau through the legal representation being provided by Barley Snyder LLC to Mr. Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action. 26. Demands have been made upon PGW for payments due under the Indemnification Agreement, which demands have had no effect and it is evident that PGW has no intention of making payment for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have already been incurred and that will continue to be incurred by Mr. Wevodau in connection with the ongoing matters of the Maryland Action and the Pennsylvania BISYS Action. 27. By not fulfilling its obligations under the Indemnification Agreement and paying for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) to or on behalf of Mr. Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action, PGW is in breach of the Indemnification Agreement and continues to breach its obligations on an ongoing basis as these amounts continue to be incurred and PGW continues its refusal to pay. 28. In connection with the legal representation provided by McNees, Wallace & Nurick, LLC to Mr. Wevodau regarding the Maryland Action and the Pennsylvania BISYS Action, payment from PGW is still due in the principal amount of $44,509.54. A breakdown of fees and expenses paid by Mr. Wevodau that have wrongfully been withheld by PGW is attached hereto, marked as Exhibit "B", and incorporated herein. 29. In connection with legal representation provided to Mr. Wevodau by Martin Kaminsky, Esquire of New York, during such time as the Pennsylvania BISYS Action was pending in New York, PGW is obligated under the Indemnification Agreement to pay any fees and expenses that may remain due and owing to Mr. Kaminsky, which amount is unknown at the time this Complaint is filed. 30. In connection with legal representation provided thus far to Mr. Wevodau by Barley Snyder LLC with respect to the Maryland Action and the Pennsylvania BISYS Action, payment is due from PGW as of September 30, 2005 in the amount of $3,982.50, which amount continues to accrue as legal representation continues to be provided to Mr. Wevodau in both the ongoing Maryland Action and Pennsylvania BISYS Action. 31. Because PGW has failed to perform its obligations under the Indemnification Agreement, Mr. Wevodau has been compelled to bring the within legal action against PGW to obtain full and complete performance by PGW and, upon prevailing in the within action, Mr. Wevodau is entitled to recover all fees, including but not limited to attorney's fees, costs, expenses, and any other relief reasonably incurred in bringing and prosecuting the within action. See, Section Three of Exhibit A hereto. 32. The amounts in controversy in the within matter exceed the compulsory arbitration threshold in Cumberland County, Pennsylvania of $25,000. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Potomac Group West, Inc. for: (a) The amount of $48,492.04 for attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) through September 30, 2005; (b) All amounts due to Martin Kaminsky, Esquire for legal services and fees incurred regarding legal representative of Mr. Wevodau in the Pennsylvania BISYS Action; (c) The presently unliquidated amount of attorney's fees, expenses, and Expenses that will be incurred by Plaintiff from September 30, 2005 forward through the time of judgment as the Maryland Action and Pennsylvania BISYS Action continue to remain active; (d) Attorney's fees, costs, and expenses, and such other relief that may be deemed appropriate by this Honorable Court incurred by Plaintiff in pursuing the within action stated in this Complaint; and (e) Interest on all of the foregoing at the applicable Pennsylvania statutory rate. 7 COUNT II - FOR DECLARATORY JUDGMENT PURSUANT TO 42 PA. C.S.A. § 7531, ET SEQ. 33. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 34. Mr. Wevodau is harmed by PGW's continuing failure to fulfill its obligations under the Indemnification Agreement and evident wrongful assertion by PGW, through its inaction and refusal to indemnify or otherwise pay pursuant to the Indemnification Agreement, that it is not obligated to indemnify or otherwise pay Mr. Wevodau for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur relative to the Maryland Action, Pennsylvania BISYS Action, or any other events and circumstances that fall within the scope of the Indemnification Agreement. 35. The Declaratory Judgment Act (42 Pa. C.S.A. § 7531, et seq.) provides that where an actual or justifiable controversy exists or is imminent between the parties, the court possesses the power to declare the rights, status, and legal relations of the parties involved if so doing will terminate the controversy or remove an uncertainty. 36. This case presents an actual and justifiable controversy between Mr. Wevodau and PGW concerning the obligations of PGW under the Indemnification Agreement, Mr. Wevodau's entitlement to receive the benefits thereof, PGW's obligation to indemnify or otherwise reimburse Mr. Wevodau for the amounts set forth under Count I of this Complaint, and the obligation of PGW to continue to indemnify or otherwise reimburse Mr. Wevodau for any and all attorney's fees, expenses and Expenses (as defined in the Indemnification Agreement) in connection with the Maryland Action and Pennsylvania BISYS Action until those matters are fully and finally concluded through their respective courts and any appellate practice. WHEREFORE, Plaintiff demands this Honorable Court enter declaratory judgment as follows: (a) That the Indemnification Agreement attached as Exhibit A to this Complaint is a valid and binding contract between Mr. Wevodau and PGW; (b) That PGW is obligated to and must pay to Mr. Wevodau all amounts claimed by Plaintiff under Count I of this Complaint; (c) That, pursuant to the Indemnification Agreement, PGW must now act and continue to act to indemnify or otherwise fully and timely reimburse Mr. Wevodau for all attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur in connection with the Maryland Action and Pennsylvania BISYS Action until both of those matters are fully and finally concluded before their respective courts and through any appellate practice; and (d) That PGW must abide by all other obligations as set forth in the Indemnification Agreement and that the failure to do so could result in the imposition of sanctions, civil fines, and/or punitive damages at the discretiorD4this Honorable Court. BARLEY James Z Chiaruttini Court I.D. 82060 Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1491529.1 I, Steven S. Wevodau, the within Plaintiff, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Dated: /P - ? - OS Steven S. Wevodau INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September Z Z, 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS A. The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. B. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS A. "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf of Wevodau in connection with any Action. B. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in whole or in part by reason of the production or disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (1) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation -2- shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attorneys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shall be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of (1) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately be determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in auy event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the - 3 - Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AND JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. 4- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEISHER PRESIDENT STEVEN S. WEVODAU STEVEN S. DAU Dated: Dated: q- I q- 0 3 - 5 - SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original, Each parry to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LE HER PRESIDENT STEVEN S. WEVODAU STEVEN S. WEVODAU Dated: g 4 a3 Dated: - 5 - FEES DUE TO AND PAID TO McNEES, WALLACE & NURICI{, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5/05 $8,047.91 Expense Payment to Filius & McLucas (Stenographic Reporting Services) $961.63 Payments made to McNees, Wallace & Nurick, LLC June 2003 $3,000.00 August 2003 $1,500.00 October 2003 $5,000.00 September 2004 $10,000.00 May 2005 $16,000.00 Total Amounts Owed to Wevodau for payments made to $44,509.54 McNees, Wallace & Nurick, LLC 1491392.1 \ (3 (pt rte. 'S '?` .,1 1 C /. ?_ C J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 CIVIL ACTION - LAW AND EQUITY AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of York I, James E. Chiaruttini, counsel for Steven S. Wevodau, being duly sworn according to law, depose and state that the Complaint in the above matter was served upon Defendant, Potomac Group West, Inc., on October 24, 2005, by mailing a true and correct copy of said Complaint by certified mail, return receipt requested, addressed to Defendant, Potomac Group West, Inc., as follows: Potomac Group West, Inc. Attn: Corporate Secretary 437 South Highway 101 Suite 403 Solana Beach, CA 92075 The return receipt card evidencing receipt Group West, Inc., is attached and made a part Sworn and subscribed to before me this day of2005 James E. Notary Public 1504776.1 Notanal Seal Gen Lynn Benzel, Notary Public City Of York, York County My Commission Expves Jury 28, 2009__ Member, Pennsylvania Association of Notaries by Defendant, Potomac 2. Artlde Number i 1D:Signe6 7160 3901 9649 1346 9521 X 0. Is deliv If YES, 3. Service Type CENTIFIED MAIL 4. Restricted Delivery? (Extra Fee) Dyes Potomac Group West, Inc. Attn: Corporate Secretary 437 South Highway 101 Suite 403 Solana Beach, CA 92075 ferent from Hem address below: Deliwry av?1a? Nam Addressee Yes No v;c.aiac - ?o'xnac : EC Form 3811, January 2005 Domestic Retum Receipt CERTIFICATE OF SERVICE I hereby certify that on this date I served a true and correct copy of the foregoing Affidavit of Service by depositing a copy of same in the United States Mail, first class, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esquire Blumberg, Lorber & Nelson, LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Attorney for Defendant BARLEY SNYDFA LLC By Jame h82 ni, Esquire Pa. I. No. 82060 100 ]Vast Market Street P.O. Box 15012 York, PA 17405-7012 (717) 846-8888 Attorneys for Plaintiff Dated: l l Z '2005 `- -71 ?' _ r7 Thomas 1. Weber, Esquire ID 458853 Goldberg Katzman , P-C 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. POTOMAC GROUP WEST, INC. NO. 05-5393 Defendant MOTION TO ADMIT RONALD H. BLUMBERG TO PRACTICE PRO HAC VICE AND NOW COMES the Defendant, Potomac Group West, Inc., by and through its counsel, Goldberg Katzman P.C., and moves that Attorney Ronald H. Blumberg be admitted Pro Hac Vice and in support thereof asserts the following: Ronald H. Blumberg ("Petitioner") is an adult individual who resides at 202 N. Sierra Avenue, Solana Beach, California 92075 and has an office at 137 N. Acacia Avenue, Solana Beach, California 92075. 2. That Petitioner attended the following educational institutions and received the following degrees: B.A. - University of California, Berkeley; J.D. - Loyola Law School (Los Angeles, California). 3. That Petitioner was admitted to practice in the State of California in 1987, and is a member of the bar of the state in which the Defendant does business. Petitioner is Managing Partner of Blumberg Lorber Nelson LLP, California counsel for Defendant in this action. 4. Petitioner is admitted to the following courts: California, all superior courts, U.S. District Court for the Central District of California, U.S. District Court for the Southern District of California, U.S. District Court for the Northern District of California, and the United States Tax Court. See Certificate of Good Standing attached hereto as Exhibit A. That Petitioner has never been held in contempt of court or censured in a disciplinary proceeding, suspended or disbarred by any court or admonished by any disciplinary committee of the organized bar, nor is the subject of any pending complaint before any court. WHEREFORE, the Petitioner respectfully requests to be admitted Pro Hac Vice in the Cumberland County Court of Common Pleas. Respectfully submitted, GOL KAT Thomas J. Weber, Esquire "1 v *J?j?( I.D. #58853 } ?2 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: November 21, 2005 C: Documents and Settings\tjw\Local Settings\Temporary Internet FilesNotion Pro Hac Vice,doc m 3 6 \, X / ? ?4 V\ _• BAR ?A 4 ? ? M a ?Y sr • ?U(Y39. 1911 ,? THE STATE m OF CALIFORNHA 180 HOWARD STREET SAN FRANCISCO, CALIFORNIA 94 105-1 639 TELEPHONE (415) 538-2000 TO WHOM IT MAY CONCERN: July 19, 2005 This is to certify that according to the records of the State Bar, RONALD HOWARD BLUMBERG was admitted to the practice of law in this state by the Supreme Court of California on December 14, 1987; and has been since that date, and is at date hereof, an ACTIVE member of the State Bar of California; and that no recommendation for discipline for professional or other misconduct has ever been made by the Board of Governors or a Disciplinary Board to the Supreme Court of the State of California. Phyllis J. Culp Director, Office of Certification THE STATE BAR OF CALIFORNIA CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. BY: Thomas J. Weber, Esq. Attorney I.D. No. 58853 Dated: November 21, 2005 ( n.? __.? .1 ? ?' t r ;. 4... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE TO PLEAD TO: Plaintiff and his counsel, Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 E. Market Street P.O. Box 15012 York, PA 17401 You are hereby notified to plead to the within Counterclaim within twenty (20) days from service hereof. GOLDBERG KArrTZMAN, P.C. By: 4 ~ Thomas J. Weber, Esqul 1?1 ?l ?2D Supr. I.D. #58853 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant Date: November 21, 2005 Thomas J- Weber, Esquire I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION-LAW AND EQUITY ANSWER And COUNTER-COMPLAINT Counter-Plaintiff Potomac Group West., Inc. ("PGW") hereby files the following Answer and Counter-Claims against Counter-Defendant Steven C. Wevodau ("Wevodau"). ANSWER Counter-Plaintiff, Potomac Group West., Inc. ("PGW") hereby files this Answer against Plaintiff Steven C. Wevodau ("Wevodau") 1. Admitted in part. Denied in part. Counter-Plaintiff admits that Steven Wevodau is an adult individual. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Admitted. Counter-Plaintiff admits that Potomac Group West, Inc. is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South highway 101, Suite 403, Solana Beach, California. 3. Denied. Counter-Plaintiff denies the allegations set forth in Paragraph 3 of the Complaint. Upon suspicion and belief, Wevodau is a former employee of BISYS Insurance Services, Inc., a wholly owned subsidiary BISYS Group, Inc. 4. Denied. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau is a former independent contractor of BISYS Group, Inc. 5. Admitted. Counter-Plaintiff admits that Mr. Wevodau is a former independent contractor for Potomac Group West, Inc. 6. Admitted in part. Denied in part. Counter-Plaintiff admits that on September 22, 2003, Wevodau and Potomac Group West entered into an Indemnification Agreement. Counter-Plaintiff denies the remaining allegations set forth in Paragraph 6, as the Indemnification Agreement speaks for itself. 7. Denied. Counter-Plaintiff denies that valid consideration was received by Potomac Group West, Inc., therefore, the indemnification agreement does not constitute a binding agreement upon Potomac Group West, Inc. 8. Admitted. Counter-Plaintiff admits that since approximately September 13, 2002, to the present, Potomac Group West has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. 9. Admitted. Counter-Plaintiff admits that Wevodau is not named as a party in the Maryland Action. 10. Admitted in part. Denied in part. Counter-Plaintiff admits that Wevodau has acted as a third party witness in the Maryland action. Counter-Plaintiff has insufficient evidence with which to admit or deny the remaining allegations set forth in Paragraph 10. 11. Denied. It is denied that Counter-Plaintiff is obligated under the Indemnification Agreement to pay such fees and attorney's fees as set forth by Plaintiff. 12.. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 13. Admitted. 14. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 15. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 16. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 17. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for actions arising out of Wevodau's conduct which occurred prior to the execution of the Indemnification Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 18. Denied. The averments are denied in that Wevodau did not perform under the Indemnification Agreement. 19. Counter-Plaintiff admits that Section Nine of the Indemnification Agreement provides that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." COUNT I - BREACH OF CONTRACT 20. Admitted. 21. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 22. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 23. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. 24. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. The averments are also denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 25. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 26. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 27. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 28. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 29. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 30. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 31. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 32. Admitted COUNT II - FOR DECLARATORY JUDGMENT PURSUANT TO 42 PA. C.S.A. §7531, ET SEQ. 33. Admitted 34. Denied. The averments are denied in that, after reasonable investigation, Potomac Group West is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 35. Admitted. 36. Denied. The controversy at issue is governed by a written contract, the validity of which is in dispute. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant. AFFIRMATIVE DEFENSES 1. The counts fail to state a claim against Counter-Plaintiff upon which relief may be granted. 2. Plaintiffs' claims are barred by the applicable statute of limitations. 3. Plaintiffs' claims are barred by the doctrine of unclean hands. 4. Plaintiffs' claims are barred by the doctrine of laches. 5. Plaintiffs' claims are barred by the doctrine of accord and satisfaction. 6. Plaintiff's claims are barred by fraud. 7. The contract in question was executed as a result of fraud in the inducement, therefore, the contract is null and void and/or voidable. 8. Plaintiff s claims are barred by the doctrine of waiver. 9. Plaintiff's claims are barred by his own breach. 10. Plaintiff's claims are barred by lack of consideration. 11. Plaintiff's claims are barred because the damages sought relate to events or disclosures outside the scope of the contract, and is thus, overreaching. 12. Plaintiff's claims are barred by non-performance of conditions precedent. 13. Plaintiff's claims are barred by the doctrine of frustration. 14. Plaintiff's claims are barred as a matter of public policy. 15. Plaintiff's claims are barred by the doctrine of impossibility. 16. Plaintiff's claims are barred because the are vague, uncertain, and lack for a specific time within which to perform. 17. Counter-Plaintiffs have insufficient knowledge or information upon which to form a belief as to whether it may have additional affirmative defenses. Counter-Plaintiffs hereby reserve the right to assert additional affirmative defenses should additional facts be discovered which would lead to additional appropriate affirmative defenses. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant. COUNTER-CLAIM FOR FRAUD Parties 1. Counter-Plaintiffs, Potomac Group West, Inc. is a corporation organized and existing under the laws of California. With a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California. 2. Counter-Defendant, Steven C. Wevodau is an adult individual whose principal place of residence is 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. From 1996 through March 13, 2002, Wevodau was employed by BISYS Insurance, Inc. 4. Mr. Wevodau is also a former independent contractor of BISYS Insurance, Inc. 5. Mr. Wevodau is a former independent contractor of PGW. Jurisdiction and Venue 6. Jurisdiction in this Court is proper pursuant to Section Nine of the Indemnification Agreement, which states that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." Factual Allegations 7. On September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement, which document sets forth respective obligations of the parties to one another, as specified therein. A True and correct copy of the Indemnification Agreement is attached hereto as Exhibit A, and the entirety of the document is incorporated herein by reference as if fully set forth at length. 8. No oral or written indemnification Agreement existed between the parties prior to September 22, 2003. 9. The Indemnification Agreement, by its terms, provides indemnification to Wevodau against any Action and against all expenses related to such Action arising from conduct by Wevodau after September 22, 2003. 10. The term "action" as referenced in the indemnification agreement refers to any future "claim, action, or suit, whether brought by BISYS or anyone else ...by reason of the production or disclosure by Wevodau of information, including, but not limited to information regarding the accounting procedures utilized by BISYS." 11. Prior to the execution of the Indemnification Agreement, Steve Wevodau voluntarily disclosed certain information related to BISYS accounting practices. Wevodau represented, among other things, that BISYS engaged in a systematic practice of "skimming" or withholding commissions owed to PGW and Steven C. Leisher, President of PGW. 12. Wevodau provided PGW a spreadsheet containing calculations of money owed to PGW, and represented that those calculations were based on his personal experience and knowledge of the accounting of Steve Leisher's commissions throughout the time period relevant to the law suit. 13. Wevodau also made representations regarding amounts allegedly withheld by BISYS. 14. Each of the above referenced representations were made voluntarily, prior to the time of the execution of the indemnification agreement. 15. The above referenced disclosures were made as early as September, 2002, and continued up to September 21, 2003, the date on which Wevodau memorialized such representations in an affidavit to be filed with the Court. 16. In conjunction with the above referenced representations, Wevodau represented to Plaintiffs that he had the ability to, and was willing to provide a more detailed analysis of the commissions owed to PGW and Steve Leisher. 17. Plaintiffs relied on such representations, and in an effort to encourage Wevodau to continue to work as an independent consultant with respect to providing information related to resolving accounting issues, entered into said indemnification agreement with Wevodau. 18. The purpose of the Indemnification Agreement was to secure Wevodau's "expertise" to assist PGW in resolving "certain accounting issues involving compensation due and owing" PGW. 19. Specifically, at the time the indemnification agreement was entered into, PGW was in the process of seeking a court ordered accounting of commissions owed. 20. Because of the complexity of the accounting issues with respect to the commissions, and due to Wevodau's specialized knowledge of such, PGW hoped to use Wevodau's expertise to resolve the accounting issues underlying the litigation, and thus, move towards a speedy and efficient resolution of the case. 21. Plaintiffs' belief that Wevodau would, in fact, be able to assist with the resolution of the accounting issues was based on Wevodau's representations about his knowledge of amounts owed to Plaintiffs. 22. Wevodau was subsequently sued by BISYS in the State of New York for violating his Restrictive Covenant Agreement and Independent Contractor Agreements with BISYS. 23. According to the Complaint filed in the New York Action, "[f]ollowing Wevodau's employment with employment with BISYS Insurance, he directly and/or indirectly discussed and disclosed his privileged communication... [I]n doing so, Wevodau disclosed confidential information in violation of the Contractor Agreement and the 1998 Agreement." 24. The New York Complaint also alleges that "[o]n or about September 8, 2003, Wevodau again violated the terms of the nondisclosure provisions of the Contractor Agreement and 1998 Agreement by providing Mr. Kelsall and/or Potomac West with an affidavit, describing a confidential communication between Wevodau and BISYS's in- house counsel. First Cause of Action Fraud 25. Plaintiff incorporates the allegations set forth in paragraph 1 through 25 as though fully set forth herein. 26. Wevodau made representations to Plaintiffs regarding his ability and willingness to provide Plaintiffs with certain information regarding amounts owed to Plaintiff by BISYS. 27. Specifically, Wevodau made representations that calculations made by him related to commissions, including bonuses, owed to Plaintiffs for the years 1997 through 2002 were based on his personal knowledge of commissions owed and that such calculations were accurate. 28. The representations were made by Wevodau to Steve Leisher, Bruce Abbott, and other individuals associated with Potomac Group West during December, 2002, on or before September 21, 2003, and at various other times throughout the relevant time period. 29. Wevodau also made representations that he was willing, if asked, to testify regarding his calculations and the accuracy of such calculations. 30. Wevodau also represented to Plaintiffs that he was willing, and able, to provide additional, detailed analysis of commissions owed, and that he would, if asked, provide additional analysis of the accounting of commissions between BISYS Insurance and PGW. 31. Wevodau knew, at the time, he made such representations, that such representations were false. 32. Subsequent to making the aforesaid representations, Wevodau testified during his deposition that he did not have personal knowledge of the accounting analysis performed, and that such numbers were mere estimates. 33. Wevodau also testified, during his deposition, that he did not have the ability to provide a full analysis of the amounts of commissions owed, or to perform an accounting of commissions. 34. Wevodau's representations to PGW were materially false when made, and were calculated to induce Plaintiffs to enter into the indemnification agreement with Wevodau. 35. Plaintiff reasonably relied on Wevodau's representations. 36. In reliance upon Wevodau's representations, Plaintiffs entered into the indemnification agreement, and took other strategic action with respect to their accounting which they would not have done were it not for the misrepresentations by Wevodau. 37. As a result of said misrepresentations, Plaintiffs suffered damages, and will continue to suffer damages in an amount to be proven at trial. WHEREFORE Defendant/Counter Plaintiff respectfully request that judgment be entered in its favor and against the Plaintiff/Counter Defendant in an amount that exceeds $35,000.00 along with interest and costs and all other relief the Court deems just. Respectfully submitted, A " ? (i Thoina J. Weber, I.D. #59853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: November 21. 2005 A INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September 22 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain infotwation that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf or Wevodau in connection with any Action. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceedins, administrative or investigative, with respect to which Wevodau is named that arises in who'' or in part by reason of the production or disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (I) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. Ifa conflictof interest ofthe type described in paragraph A ofthis section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attorneys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shall be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of: ( I) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately he determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the -3- Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AN JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEISHER PRESIDENT STEVEN S. WEVODAU STEVEN S. DAU Dated: Dated: 0 5 SECTION TEN, ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: HER STEVEN S. WEVODAU STEVEN S. WEVODAU STEVEN C. LE PRESIDENT Dated: `/ 4 a 7 Dated: FEES DUE TO AND PAID TO McNEES, WALLACE & NURICK, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5/05 $8,047.91 Expense Payment to Filius & McLucas (Stenographic Reporting Services) $961.63 Payments made to McNees, Wallace & Nurick, LLC June 2003 $3,000.00 August 2003 $1,500.00 October 2003 $5,000.00 September 2004 $10,000.00 May 2005 $16,000.00 Total Amounts Owed to Wevodau for payments made to $44,509.54 McNees, Wallace cat, Nurick, LLC 1491392.1 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. BY: Thomas J. Weber, Esq. Attorney I.D. No. 58853 Dated: November 21, 2005 ., .? ?. ?? t,,> ..?:, STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST, INC. Defendant NOV 2 11 /21005 -_.k# 1o- IN N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5393 r ORDER rpee? j of the Motion AND NOW this )? day of t Vice, said Motiopfs granted. to Admit Ronald H. Blumberg to Practice Prq,kK J c 4? Tj ?- ? y f'N L. .YJ ?4? vP ? l! 1'' BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com Thomas J. Weber, Esquire I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY AMENDED ANSWER And AMENDED COUNTER-COMPLAINT Counter-Plaintiff Potomac Group West., Inc. ("PGW") hereby files the following Amended Answer and Amended Counter-Claims against Counter-Defendant Steven C. Wevodau ("Wevodau"). AMENDED ANSWER Counter-Plaintiff, Potomac Group West., Inc. ("PGW") hereby files this Amended Answer against Plaintiff Steven C. Wevodau ("Wevodau" ). 1. Admitted in part. Denied in part. Counter-Plaintiff admits that Wevodau is an adult individual. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau maintains a residence at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Admitted. Counter-Plaintiff admits that PGW is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South highway 101, Suite 403, Solana Beach, California. 3. Denied. Counter-Plaintiff denies the allegations set forth in Paragraph 3 of the Complaint. Upon suspicion and belief, Wevodau is a former employee of BISYS Insurance Services, Inc., a wholly owned subsidiary BISYS Group, Inc. 4. Denied. Counter-Plaintiff has insufficient evidence on which to admit or deny the veracity of the statements made in the Complaint that Wevodau is a former independent contractor of BISYS Group, Inc. 5. Admitted. Counter-Plaintiff admits that Wevodau is a former independent contractor for Potomac Group West, hie. 6. Admitted in part. Denied in part. Counter-Plaintiff admits that on September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement. Counter- Plaintiff denies the remaining allegations set forth in Paragraph 6, as the Indemnification Agreement speaks for itself. 7. Denied. Counter-Plaintiff denies that valid consideration was received by PGW, Inc., therefore, the indemnification agreement does not constitute a binding agreement upon PGW, Inc. 8. Admitted. Counter-Plaintiff admits that since approximately September 13, 2002, to the present, PGW has been involved as a Plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V. 9. Admitted. Counter-Plaintiff admits that Wevodau is not named as a party in the Maryland Action. 10. Admitted in part. Denied in part. Counter-Plaintiff admits that Wevodau has acted as a third party witness in the Maryland action. Counter-Plaintiff has insufficient evidence with which to admit or deny the remaining allegations set forth in Paragraph 10. 11. Denied. It is denied that Counter-Plaintiff is obligated under the Indemnification Agreement to pay such fees and attorney's fees as set forth by Plaintiff. 12. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 13. Admitted. 14. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 15. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Wevodau's legal representation. 16. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 17. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for actions arising out of Wevodau's conduct which occurred prior to the execution of the Indemnification Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 18. Denied. The averments are denied in that Wevodau did not perform under the Indemnification Agreement. 19. Counter-Plaintiff admits that Section Nine of the Indemnification Agreement provides that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." COUNT I - BREACH OF CONTRACT 20. Admitted. 21. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 22. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 23. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. 24. Denied. The averments are denied in that Counter-Plaintiff is not liable for any Expenses incurred by Wevodau as a result of his conduct prior to the execution of the Indemnification Agreement. The averments are also denied in that the Pennsylvania Action is not an "Action" as that term is defined in the Indemnification Agreement. The averments are also denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 25. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau, or the status of Wevodau's legal representation. 26. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 27. Denied. The averments are denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 28. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 29. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 30. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. 31. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 32. Admitted COUNT 11- FOR DECLARATORY JUDGMENT PURSUANT TO 42 PA. C.S.A. 7531, ET SEQ. 33. Admitted 34. Denied. The averments are denied in that, after reasonable investigation, PGW is without knowledge or information sufficient to determine the veracity of the averments regarding Expenses which may or may not have been incurred by Wevodau. The averments are also denied in that Wevodau is not entitled to compensation under the Indemnification Agreement for conduct which is outside the scope of the Agreement. The averments are also denied in that the Indemnification Agreement does not constitute a valid, enforceable agreement, was procured through fraud, and the purpose of which was frustrated. 35. Admitted. 36. Denied. The controversy at issue is governed by a written contract, the validity of which is in dispute. AFFIRMATIVE DEFENSES 1. The counts fail to state a claim against Counter-Plaintiff upon which relief may be granted in that, in part, the agreement (hereafter "the Agreement") that is at the heart of Plaintiff's claims cannot be authenticated and is not enforceable against Counter-Plaintiff. 2. Plaintiffs' claims are barred by the applicable statute of limitations in that the alleged breach occurred more than two years prior to the filing of this action. 3. Plaintiffs' claims are barred by the doctrine of unclean hands in that Plaintiff fraudulently induced Counter-Plaintiff to enter into the Agreement under false pretenses and without intention to perform, 4. Plaintiffs' claims are barred by the doctrine of laches in that too much time has lapsed between the alleged breach and the filing of this action so as to cause Couner-Plaintiff prejudice. 5. Plaintiffs' claims are barred by the doctrine of accord and satisfaction in that the parties have previously reached agreement that reimbursement of fees and expenses was only from those directly relating to his defense of the action involving Counter-Plaintiff and the BISYS Group, Inc. in the Circuit Court for Montgomery County, Maryland ("the Maryland Action"), should he be named as a cross-defendant, and also contingent on testimony consistent with his prior statements. 6. Plaintiff s claims are barred by fraud in that Plaintiff fraudulently induced Counter-Plaintiff to enter into the Agreement under false pretenses and without intention to perform. Specifically, Plaintiff misrepresented his expertise in accounting matters pertinent to the Maryland Action, and his relationship with the defendant in the Maryland Action. 7. The contract in question was executed as a result of fraud in the inducement, therefore, the contract is null and void and/or voidable. 8. Counter-Plaintiff withdraws this Affirmative Defense that Plaintiffs claims are barred by the doctrine of waiver. 9. Plaintiff s claims are barred by his own breach in that he breached his agreement with Counter-Plaintiff to assist it in with prosecution of the Maryland Action and related matters. 10. Plaintiff s claims are barred by lack of consideration in that Plaintiff gave nothing of value to Counter-Plaintiff in exchange for the Agreement, or, at least, that the value Counter-Plaintiff received was far outweighed by that which Plaintiff received in exchange. 11. Plaintiffs claims are barred because the damages sought relate to events or disclosures outside the scope of the contract, and are thus, overreaching. 12. Plaintiffs claims are barred by non-performance of conditions precedent in that Plaintiff failed to provide the expertise and information as originally promised. 13. Counter-Plaintiff withdraws this Affirmative Defense that Plaintiffs claims are barred by the doctrine of frustration. 14. Counter-Plaintiff withdraws this Affirmative Defense that Plaintiff's claims are barred as a matter of public policy. 15. Counter-Plaintiff withdraws this Affirmative Defense that Plaintiff's claims are barred by the doctrine of impossibility. 16. Plaintiff s claims are barred because the are vague, uncertain, and lack for a specific time within which to perform. 17. Counter-Plaintiff has insufficient knowledge or information upon which to form a belief as to whether it may have additional affirmative defenses. Counter-Plaintiff hereby reserves the right to assert additional affirmative defenses should additional facts be discovered which would lead to additional appropriate affirmative defenses. COUNTER-CLAIM FOR FRAUD Parties 1. Counter-Plaintiff, PGW, Inc. is a corporation organized and existing under the laws of California. With a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California. 2. Counter-Defendant, Steven C. Wevodau is an adult individual whose principal place of residence is 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. From 1996 through March 13, 2002, Wevodau was employed by BISYS Insurance, Inc. 4. Mr. Wevodau is also a former independent contractor of BISYS Insurance, Inc. 5. Mr. Wevodau is a former independent contractor of PGW. Jurisdiction and Venue 6. Jurisdiction in this Court is proper pursuant to Section Nine of the Indemnification Agreement, which states that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." Factual Allegations 7. On September 22, 2003, Wevodau and PGW entered into an Indemnification Agreement, which document sets forth respective obligations of the parties to one another, as specified therein. A True and correct copy of the Indemnification Agreement is attached hereto as Exhibit A, and the entirety of the document is incorporated herein by reference as if fully set forth at length. 8. No oral or written indemnification Agreement existed between the parties prior to September 22, 2003. 9. The Indemnification Agreement, by its terms, provides indemnification to Wevodau against any Action and against all expenses related to such Action arising from conduct by Wevodau after September 22, 2003. 10. The term "action" as referenced in the indemnification agreement refers to any future "claim, action, or suit, whether brought by BISYS or anyone else ...by reason of the production or disclosure by Wevodau of information, including, but not limited to information regarding the accounting procedures utilized by BISYS." I I. Prior to the execution of the Indemnification Agreement, Steve Wevodau voluntarily disclosed certain information related to BISYS accounting practices. Wevodau represented, among other things, that BISYS engaged in a systematic practice of "skimming" or withholding commissions owed to PGW and Steven C. Leisher, President ofPGW. 12. Wevodau provided PGW a spreadsheet containing calculations of money owed to PGW, and represented that those calculations were based on his personal experience and knowledge of the accounting of Steve Leisher's commissions throughout the time period relevant to the law suit. 13. Wevodau also made representations regarding amounts allegedly withheld by BISYS. 14. Each of the above referenced representations were made voluntarily, prior to the time of the execution of the indemnification agreement. 15. The above referenced disclosures were made as early as September, 2002, and continued up to September 21, 2003, the date on which Wevodau memorialized such representations in an affidavit to be filed with the Court. 16. In conjunction with the above referenced representations, Wevodau represented to Plaintiffs that he had the ability to, and was willing to provide a more detailed analysis of the commissions owed to PGW and Steve Leisher. 17. Plaintiffs relied on such representations, and in an effort to encourage Wevodau to continue to work as an independent consultant with respect to providing information related to resolving accounting issues, entered into said indemnification agreement with Wevodau. I 8. The purpose of the Indemnification Agreement was to secure Wevodau's "expertise" to assist PGW in resolving "certain accounting issues involving compensation due and owing" PGW. 19. Specifically, at the time the indemnification agreement was entered into, PGW was in the process of seeking a court ordered accounting of commissions owed. 20. Because of the complexity of the accounting issues with respect to the commissions, and due to Wevodau's specialized knowledge of such, PGW hoped to use Wevodau's expertise to resolve the accounting issues underlying the litigation, and thus, move towards a speedy and efficient resolution of the case. 21. Plaintiffs' belief that Wevodau would, in fact, be able to assist with the resolution of the accounting issues was based on Wevodau's representations about his knowledge of amounts owed to Plaintiffs. 22. Wevodau was subsequently sued by BISYS in the State of New York for violating his Restrictive Covenant Agreement and Independent Contractor Agreements with BISYS. 23. According to the Complaint filed in the New York Action, "[f]ollowing Wevodau's employment with employment with BISYS Insurance, he directly and/or indirectly discussed and disclosed his privileged communication ... [I]n doing so, Wevodau disclosed confidential information in violation of the Contractor Agreement and the 1998 Agreement." 24. The New York Complaint also alleges that "[o]n or about September 8, 2003, Wevodau again violated the terms of the nondisclosure provisions of the Contractor Agreement and 1998 Agreement by providing Mr. Kelsall and/or Potomac West with an affidavit, describing a confidential communication between Wevodau and BISYS's in-house counsel. First Cause of Action Fraud 25. Plaintiff incorporates the allegations set forth in paragraph 1 through 25 as though fully set forth herein. 26. Wevodau made representations to Plaintiffs regarding his ability and willingness to provide Plaintiffs with certain information regarding amounts owed to Plaintiff by BISYS. 27. Specifically, Wevodau made representations that calculations made by him related to commissions, including bonuses, owed to Plaintiffs for the years 1997 through 2002 were based on his personal knowledge of commissions owed and that such calculations were accurate. 28. The representations were made by W evodau to Steve Leisher, Bruce Abbott, and other individuals associated with PGW during December, 2002, on or before September 21, 2003, and at various other times throughout the relevant time period. 29. Wevodau also made representations that he was willing, if asked, to testify regarding his calculations and the accuracy of such calculations. 30. Wevodau also represented to Plaintiffs that he was willing, and able, to provide additional, detailed analysis of commissions owed, and that he would, if asked, provide additional analysis of the accounting of commissions between BISYS Insurance and PGW. 3 1 . Wevodau knew, at the time, he made such representations, that such representations were false. 32. Subsequent to making the aforesaid representations, Wevodau testified during his deposition that he did not have personal knowledge of the accounting analysis performed, and that such numbers were mere estimates. 33. Wevodau also testified, during his deposition, that he did not have the ability to provide a full analysis of the amounts of commissions owed, or to perform an accounting of commissions. 34. Wevodau's representations to PGW were materially false when made, and were calculated to induce Plaintiffs to enter into the indemnification agreement with Wevodau. 35. Plaintiff reasonably relied on Wevodau's representations. 36. In reliance upon Wevodau's representations, Plaintiffs entered into the indemnification agreement, and took other strategic action with respect to their accounting which they would not have done were it not for the misrepresentations by Wevodau. 37. As a result of said misrepresentations, Plaintiffs suffered damages, and will continue to suffer damages in an amount to be proven at trial. Respectfully BLUMBERG DACAN LLP By: RoniBlumberg Atto ey or Defendant, Poto ac romp West GOLDB GnnttffKA - C,11tAA By I Thomas J. Weber, Esquire I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: January 27, 2006 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. BY: o nife L. Boltz, Legal Seer tary to 9oh m as JW eber, Esq. . Attorney I.D. No. 58853 Dated: February 2, 2006 c7 <) i' -:4 _ { T t1 ?.l ? f .J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant NOTICE You are hereby notified to file a written response to the enclosed New Matter to Defendant's Counter-Claim within twenty (20) days from service hereof or a judgment may be entered against you. No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY BARLEY By: Sean E. miners Court I. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: April Z' , 2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY REPLY TO DEFENDANT'S NEW MATTER AND ANSWER WITH NEW MATTER TO DEFENDANT'S COUNTER CLAIM Plaintiff, Steven S. Wevodau, (hereinafter Wevodau), by and through his undersigned counsel, Barley Snyder LLC, files the following Reply to Defendant's New Matter and Answer With New Matter to Defendant's Counter-Claim, of which the following is a statement: ANSWER TO NEW MATTER (STYLED BY DEFENDANT AS "AFFIRMATIVE DEFENSES") Denied. The averments constitute conclusions of law to which no response is required. To the extent a response may be required, it is denied that the Agreement cannot be authenticated or that is not enforceable against Potomac Group West, Inc. (hereinafter "Defendant") 2. Denied. The averments constitute conclusions of law to which no response is required. To the extent a response may be required, Plaintiff's claims are timely and not barred by any statute of limitations. Denied. The averments constitute conclusions of law to which no response is required. To the extent a response may be required, it is denied that Wevodau committed any 1566514.1 fraud; further, the Agreement is a binding document and Defendant must perform its obligations thereunder. 4. Denied. The averments constitute conclusions of law to which no response is required. 5. Denied. To the extent the averments constitute conclusions of law, no response is required. The "previously reached agreement" asserted by Defendant does not exist; at all times, the obligations of Defendant have been and continue to be governed by the Indemnification Agreement. 6. Denied. To the extent the averments constitute conclusions of law, no response is required. The response set forth in paragraph three (3) hereof is incorporated by reference. By way of further answer, Wevodau has made no misrepresentations to Defendant. 7. Denied. The averments constitute conclusions of law to which no response is required. By way of further answer, the responses set forth in Paragraphs 3 and 6 hereof are incorporated; the Agreement is enforceable by Wevodau and Defendant must fulfill all of its obligations thereunder. 8. Defendant has withdrawn, and therefore waived, the defense of waiver in its amended pleading, and therefore no answer is required. 9. Denied. To the extent the averments constitute conclusions of law, no response is required. Wevodau has at no time engaged in any improper action, the Agreement is enforceable against Defendant, and Defendant must fulfill all of its obligations thereunder. 10. Denied. To the extent the averments constitute conclusions of law, no response is required. The Agreement is fully enforceable and Defendant must fulfill all of its obligations 2 1566514.1 thereunder. By way of further answer, the Agreement is fully enforceable and valid with or without consideration pursuant to 33 P. S. §6, entitled "When written instruments without consideration valid." 11. Denied. The averments constitute conclusions of law to which no response is required. Wevodau's claims are proper under the Agreement and he is entitled to the relief he seeks; Defendant must perform all of its obligations under the Agreement. 12. Denied. The averments constitute conclusions of law and therefore no responsive pleading is required and the averments are denied. To the extent an answer is required, the Agreement is valid and fully enforceable against Defendant. 13. Defendant has specifically withdrawn, and therefore waived, the defense of frustration, and therefore no answer is required. 14. Defendant has withdrawn, and therefore waived, the defense that Plaintiff s claims are barred as being against public policy, and therefore no answer is required. 15. Defendant has withdrawn, and therefore waived, the defense of impossibility of performance, and therefore no answer is required. 16. Denied. The averments constitute conclusions of law to which no response is required. Further, the averments do not set forth a cognizable defense under Pennsylvania law; Defendant's averments that Plaintiff s claims are "vague", "uncertain", and not specific enough as to time are not properly pled as defenses, as all such arguments are required to have been set forth as preliminary objections, which Defendant has failed to do and therefore all such arguments have been waived. 1566514.1 17. Denied. Paragraph 17 of Defendant's Affirmative Defenses is improper and is barred by statute and case law; any defenses not asserted are waived, and any amendments to the pleadings, as may be desired by Defendant, can only be filed with appropriate leave of court. ANSWER TO COUNTER CLAIM FOR FRAUD 1. Admitted upon information and belief. 2. Admitted. 3. Denied. Wevodau was employed by The BISYS Group, Inc. 4. Denied. Wevodau was an independent contractor for The BISYS Group, Inc. 5. Admitted. 6. Admitted. Further, the Agreement states what it states. 7. Admitted in part; denied in part. It is admitted that Defendant and Wevodau are parties to the Indemnification Agreement, the language and signature dates of which state what they state, and any mischaracterizations of the document by Defendant are denied. Further, it is denied that a copy of the Indemnification Agreement was attached to Defendant's pleading. 8. Denied as stated. The parties agreed upon the terms and language of the Agreement prior to September 22, 2003, and Defendant executed the Agreement as of September 9, 2003, and Wevodau as of September 19, 2003. 9. The averments state legal conclusions to which no reply is required. To the extent an answer is required, the Agreement is a document that states what it states, and any inaccurate recitations, summaries, or characterizations of it by Defendant are denied; further, the Agreement must be read as a whole. 4 1566514.1 10. The averments state legal conclusions to which no responsive pleading is required. To the extent an answer is required, the Agreement is a document that states what it states, and any inaccurate recitations, summaries, or characterizations of it by Defendant are denied; further, the Agreement must be read as a whole. 11. Denied. Defendant does not specify the "certain information" averred to have been voluntarily disclosed by Wevodau prior to execution of the Agreement, and therefore Wevodau is without sufficient information to form a belief as to the truth of the averments and same are all therefore denied. Further, the averment and characterization by Defendant that Wevodau "represented, among other things, that BISYS engaged in a systematic practice of `skimming' or withholding commissions owed" are denied. It is acknowledged that Wevodau was deposed in the Maryland lawsuit in which Defendant and BISYS are parties, and that testimony was given as to skimming or "haircutting", and the deposition transcript states what it states. 12. Denied as stated. Defendant does not specify or provide a copy of the spreadsheet it refers to, and therefore the averments cannot be properly responded to and are therefore denied. To the extent Defendant's averments relate to the one-page spreadsheet attached to an Affidavit by Wevodau of September 8, 2003, then such spreadsheet is a document that states what it states, and the Affidavit of Wevodau sets forth the facts relied upon by Wevodau in preparation of the spreadsheet. Any mischaracterizations and inaccurate summaries of the spreadsheet and/or Affidavit of Wevodau by Defendant are specifically denied. 13. Denied as stated. Defendant does not provide a timeframe with respect to its averments; nonetheless, any information provided by Wevodau regarding BISYS was of a 1566514.1 general nature only prior to the Identification Agreement and the Affidavit of Wevodau dated September 8, 2003. 14. Denied. The responses set forth at Paragraphs 7 - 9, and 11 - 13 are incorporated by reference. 15. Denied. Wevodau and Defendant were parties to a Consulting Agreement, but the information disclosed by Wevodau was not as characterized by Defendant in its pleading, and Defendant's averments are therefore denied; further, the responses set forth in Paragraphs 7 - 9, and 11 - 14 are incorporated herein. By way of further answer, the Affidavit of Wevodau is dated September 8, 2003, and not September 21, 2003, as averred by Defendant. 16. Denied as stated. The responses set forth in Paragraphs 7 - 15 hereof are incorporated by reference. Wevodau never made any representations or disclosures beyond his own personal knowledge and recollection. Defendant at all times knew that Wevodau had no records or definitive data from which to prepare any specific assessment or accounting. To the extent that Wevodau had been provided with commission accounting records of BISYS, which Defendant knew he did not have access to, then Wevodau could have provided additional analysis. 17. Denied. After reasonable investigation, Wevodau is without knowledge or information sufficient to form a belief as to the purported motivation of Defendant in entering into the Indemnification Agreement, and therefore Defendant's averments are all denied. By way of further answer, the denials set forth in Paragraphs 1 - 16 hereof as to Defendant's mischaracterization of purported representations made by Wevodau are incorporated herein. 6 1566514.1 18. Denied as stated. The Indemnification Agreement is a document that states what it states; any averment by Defendant that mischaracterizes, inaccurately recites, or takes language of the Agreement out of context is denied. 19. Denied. After reasonable investigation, Wevodau is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 19; the same are therefore denied and proof is hereby demanded. 20. Denied. After reasonable investigation, Wevodau is without knowledge or information sufficient to form a belief as to the truth of the averments regarding what Defendant "hoped" for or why, and all averments are therefore denied. 21. Denied. After reasonable investigation, Wevodau is without knowledge or information sufficient to form a belief as to why or how Defendant formed any of its beliefs, and Defendant's averments are therefore denied. By way of further answer, the responses set forth in Paragraphs 1 - 17 regarding Defendant's mischaracterizations as to purported representations made by Wevodau are incorporated herein. 22. Admitted in part, and denied as stated in part. It is admitted that The BISYS Group, Inc. filed suit against Wevodau in New York. The allegations set forth within that suit, which has since been removed and remains pending before the Middle District of Pennsylvania, are a matter of record and state what they state, and any inaccurate recitation or mischaracterization thereof by Defendant is denied. 23. Denied as stated. The quoted language is an excerpt taken from the Complaint filed in the New York action, which matter has since been removed and is now pending before 7 1566514.1 the Middle District of Pennsylvania. The Complaint is a writing that states what it states, and in order to be fairly interpreted must be read in its entirety. 24. Denied as stated. The quoted language is an excerpt taken from the Complaint filed in the New York action, which matter has since been removed and is now pending before the Middle District of Pennsylvania. The Complaint is a writing that states what it states, and in order to be fairly interpreted must be read in its entirety. Answer to First Cause of Action 25. All preceding paragraphs of this pleading are incorporated by reference as if fully set forth at length. 26. Denied as stated. Wevodau and Defendant had entered into a consulting agreement, wherein Wevodau would assist in assessing a business valuation that was the subject of certain litigation in which Defendant was involved. In connection with the consulting agreement, Wevodau did provide certain information, but the information and purported "representations" were not as characterized by Defendant in its pleading; by way of further answer and in this regard, the responses set forth at Paragraphs 7 - 17 hereof are incorporated by reference. 27. Denied as stated. The response set forth in the immediately preceding paragraph hereof (¶ 26) is incorporated by reference. Wevodau executed an Affidavit dated September 8, 2003, which sets forth information known by Wevodau and relied upon in the preparation of the spreadsheet attached thereto. Defendant was aware at all times that this information provided by Wevodau was a recollection based on estimates only, and Defendant knew at all times that Wevodau had no records from which to prepare a definitive assessment. 8 1566514.1 28. Denied as stated. Again, Defendant's mischaracterizations as to "representations" made by Wevodau are denied and the preceding answers set forth in this pleading are incorporated by reference. By way of further answer, Wevodau has had conversations with Steve Leisher and Bruce Abbott, but such conversations did not involve the "representations" as averred and characterized by Defendant. 29. Denied as stated. Wevodau did represent that he would testify, but such testimony would not and could not involve the "representations" as have been averred by Defendant in its pleadings, which "representations" were not made by Wevodau to the degree and in the detail averred by Defendant. By way of further answer, Wevodau did testify in connection with the Maryland litigation between Defendant and The BISYS Group, Inc. over several days of depositions, and the Indemnification Agreement provides that Wevodau will cooperate as a witness in the Maryland litigation. By way of further answer, the response set forth at Paragraph 16 hereof is incorporated by reference. 30. Denied as stated. The responses set forth in Paragraphs 7 - 16 hereof are incorporated by reference as if fully set forth at length. By way of further answer, the court in the Maryland action issued an order which prohibited Wevodau from having any further communication with either Defendant or The BISYS Group, Inc. without counsel for both of those parties being present. 31. Denied. It is specifically denied that Wevodau at any time made false representations to Defendant. 32. Denied as stated. Wevodau did provide testimony as a deponent in the Maryland litigation between Defendant and The BISYS Group, Inc., which testimony is a matter of record 9 1566514.1 in that case and states what it states. By way of further answer, Defendant was aware at all times that any information prepared by and provided by Wevodau could only be a recollection based upon estimates, and that Wevodau had no records from which to prepare a definitive assessment. 33. Denied as stated. The response set forth in the immediately preceding paragraph hereof (132) is incorporated by reference. 34. Denied. Defendant's averments constitute legal conclusions to which no responsive pleading is required. To the extent a response is required, at no time was any information misrepresented by Wevodau to Defendant; the Indemnification Agreement is valid, fully enforceable, and Defendant must fulfill its obligations thereunder. 35. Denied. The averments of Paragraph 35 constitute conclusions of law to which no response is required. 36. Denied. At no time has Wevodau misrepresented any information to Defendant. By way of further answer, Wevodau is without sufficient information to form a belief as to any "strategic action" taken by Defendant in any matter and all averments by Defendant relating thereto are denied. 37. Denied. At no time has Wevodau misrepresented anything to Defendant. Further, Defendant has not suffered any damages as a result of any action or inaction by Wevodau, and any assertion to the contrary by Defendant is entirely without merit. WHEREFORE, Plaintiff, Steven Wevodau demands judgment in his favor as to all counts set forth in his Complaint; and further demands that judgment be entered in his favor as to Defendant's Counter-claim or that such Counter-claim be dismissed in its entirety. 10 1566514.1 NEW MATTER TO COUNTER-CLAIM 38. All preceding paragraphs of this pleading are incorporated by reference as if fully set forth at length. 39. The Affidavit provided by Wevodau in connection with the Maryland litigation involving Defendant and The BISYS Group, Inc. was approved by and accepted by Defendant. 40. At the time the Affidavit, and the spreadsheet attached thereto, was provided by Wevodau, Defendant knew that the information contained therein was based upon Wevodau's recollection and estimates only. 41. At the time the Indemnification Agreement was entered into, Defendant was aware that Wevodau had not been employed by BISYS for some time and no longer had access to any BISYS records. 42. Wevodau provided deposition testimony in connection with the Maryland action, which deposition testimony required three days' time, in addition to travel, preparation time, and other expenses associated with the deposition. 43. Wevodau has not been reimbursed for the time or expenses he incurred relating to his deposition in the Maryland litigation, which reimbursement, among other things, Defendant is obligated to provide under the Indemnification Agreement. 44. Wevodau was not in a position to control any questions posed to him during the deposition. 45. Wevodau was under oath while he provided his deposition testimony and was sworn to tell the truth. 11 1566514.1 46. Neither Wevodau nor Defendant have had or currently have any control over any actions, decisions, or orders of the Court in Maryland before which the dispute between Defendant and The BISYS Group, Inc. is currently being litigated. 47. Defendant has failed to state a cause of action upon which relief can be granted, in that Wevodau has not engaged in any fraudulent conduct and at no time has misrepresented any information to Defendant. 48. The claims of Defendant are barred by its own unclean hands, in that Defendant has failed to fulfill all of its obligation under the Indemnification Agreement and such refusal has been purposeful and in bad faith. 49. Under the language of the Indemnification Agreement, the Agreement and all obligations of the parties thereunder are valid and enforceable even in the absence of consideration. WHEREFORE, Plaintiff, Steven Wevodau demands judgment in his favor as to all counts set forth in his Complaint, and further demands that judgment be entered in his favor as to Defendant's Counter-claim or that such Counter-claim be dismissed in its entirety. BARLEY 1566514 By: Court James ni Sean EI.D982060 Court 100 East Market Stree t P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 12 1566514.1 VERIFICATION I, Steven S. Wevodau, the within Plaintiff, hereby verify that the facts set forth in the foregoing Reply to Defendant's New Matter and Answer with New Matter to Defendant's Counter-Claim are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of i 8 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: 4-13-0c, Steven . W&AxQu CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Reply to Defendant's New Matter and Answer with New Matter to Defendant's Counter-Claim is this day being served on counsel of record by e-mail and first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 E-mail: rhb@blumbergdagan.com Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 E-mail: tjw@goldbergkatzman.com BARLEY By: Sean E. Su ers Court I.D. 141 James E. iaruttini Court 11182060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: April L F , 2006 BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com Thomas J. Weber, Esquire I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. GROUP WEST. INC., Defendant No. 05-5393 Civil Term IVIL ACTION - LAW AND EQUITY ANSWER TO PLAINTIFF'S NEW MATTER TO COUNTER-CLAIM Counter-Plaintiff Potomac Group West., Inc. ("PGW") hereby files the following Answer to Plaintiff's ("Wevodau'? New Matter to Counter-Claim: 39. Denied. PGW denies the allegations set forth in Paragraph 39 of the New Matter to Counter-Claim. The averments constitute vague and ambiguous definitions, and lack sufficient specificity on which to base any other form of response. 40. Denied. PGW denies the allegations set forth in Paragraph 40 of the New Matter to Counter-Claim. PGW believed that Wevodau possessed unique, special knowledge, and was certain about those matters to which he committed. 41. Denied, in part. PGW denies the allegations set forth in Paragraph 41 of the New Matter to Counter-Claim. PGW knew that Wevodau was not employed by BISYS on the date the Affidavit was signed, but was unaware of how much time had passed from his late date of employment. 42. Admitted, in part. Denied, in part. PGW denies the allegations set forth in Paragraph 42 of the New Matter to Counter-Claim. The facts of the matters to which Wevodau avers speak for themselves, and no admission or denial will change that. 43. Denied. PGW denies the allegations set forth in Paragraph 43 of the New Matter to Counter-Claim. PGW does not have sufficient information on which to admit or deny whether Wevodau has been paid. In as much as the remainder of this averment calls for legal conclusions and interpretations, PGW need not admit nor deny. 44. Denied. PGW denies the allegations set forth in Paragraph 44 of the New Matter to Counter-Claim. Wevodau was represented by counsel during his deposition, and could therefore have directed the course of his testimony. 45. Admitted. PGW admits the allegations set forth in Paragraph 45 of the New Matter to Counter-Claim. Nevertheless, and by way of further answer, whether Wevodau was under oath would not necessarily ensure that his testimony was truthful. 46. Denied. PGW denies the allegations set forth in Paragraph 46 of the New Matter to Counter-Claim. Parties to litigation, especially those represented by counsel, have immense power to influence decisions of the court. 47. Denied. PGW denies the allegations set forth in Paragraph 47 of the New Matter to Counter-Claim. PGW has alleged facts sufficient to constitute and support causes of action based on fraud and misrepresentation. 48. Denied. PGW denies the allegations set forth in Paragraph 48 of the New Matter to Counter-Claim. PGW has acted in accordance with its obligations under the law. PGW has acted in good faith. 49. Denied. PGW denies the allegations set forth in Paragraph 49 of the New Matter to Counter-Claim. in that the averments contained in this paragraph call for legal conclusions, PGW is not obligated to respond. Nevertheless, PGW denies that the Agreement is enforceable if induced by fraud and misrepresentations of Wevodau, and that consideration is a necessary condition precedent to enforceability. Wherefore, PGW demands judgment in its favor as to all counts set forth in its counter-claim and as to Wevodau's New Matter to Counter-Claim to Counter- Claire. Respectfully BLUMBERQWAGAN LLP By: Potomac Gkup West GERG KATZMAN P.C. 1160-4 By: Thomas J. Weber, Esquire I.D. #58853 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: May 16, 2006 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. BY: fifer . Boltz, Legal Secre to homas . Weber, Esq. Attorney I.D. No. 58853 Dated: May 23, 2006 CZ {; r -?J K IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V, POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY PLAINTIFF'S MOTION FOR SANCTIONS PURSUANT TO Pa.R.C.P. 4019 FOR FAILURE TO ANSWER INTERROGATORIES AND PRODUCE DOCUMENTS Plaintiff, by his undersigned counsel, files the following Motion for Sanctions Pursuant to Pa.R.C.P. 4019, and C.C.R.P. 208.3(a): 1. The moving party is the within Plaintiff, Steven S. Wevodau. 2. The respondent is the within Defendant, Potomac Group West, Inc. 3. Plaintiff instituted this action by Complaint filed on October 17, 2005, for breach of contract and for declaratory judgment. 4. Defendant filed an Answer with Affirmative Defenses and a Counter-Claim for fraud on February 2, 2006, to which Plaintiff filed a reply on May 1, 2006. 5. On January 9, 2007, Plaintiff served written discovery in the form of Interrogatories and a Request for Production of Documents, true and correct copies of which are attached and made a part hereof as Exhibits A and B respectively. 6. Defendant served unverified responses to the discovery on February 7, 2007, true and correct copies of which are attached and made a part hereof as Exhibits C and D respectively. s 7. Upon receipt of the discovery responses, Plaintiff notified Defendant by letter of February 12, 2007, that they were non-responsive and contained objections not supported by the law. (See letter attached as Exhibit E) 8. Defendant thereafter served unsigned, unverified "supplemental" responses in the form of objections, true and correct copies of which are attached as Exhibit F. 9. As an additional effort to resolve the matter without the necessity of Court intervention, local counsel was contacted to facilitate acceptable responses. (See email attached as Exhibit G) Other than the attached response in Exhibit G, no further responses or communications have been received. 10. Plaintiff believes and therefore avers that it is prejudiced by Defendant's failure to provide discovery permitted under Pa. R.C.P. 4003.1 and its failure to disclose matters which are relevant to its claims as well as Defendant's defenses and counter-claim, by its failure to produce documents, and by its failure to identify persons having knowledge of the subject matter of the within action. 11. Pennsylvania Rule of Civil Procedure 4019(a)(1)(i) provides that on motion the court may make an appropriate order if a party fails to serve answers, sufficient answers, or objections to written interrogatories. 12. Pennsylvania Rule of Civil Procedure 4019(a)(1)(vii) provides that on motion the court may make an appropriate order if a party fails to permit inspection of documents. 13. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(4), the court may enter an order imposing punishment for contempt. 2 14. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(5), the court may enter an order with regard to the failure to make discovery as is just. WHEREFORE, Defendants respectfully request that your Honorable Court enter an order compelling Defendant to respond to the outstanding discovery within 30 days or suffer punishment for contempt. BA; By: Jean h. Jummers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1846513 3 Elhibif A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY PLAINTIFF'S INTERROGATORIES TO DEFENDANT TO: Potomac Group West, Inc. c/o Ronald H. Blumberg, Esq. Thomas J. Weber, Esq. PLAINTIFF, STEVEN S. WEVODAU' S, INTERROGATORIES DIRECTED TO DEFENDANT POTOMAC GROUP WEST, INC., PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedures, to serve upon the undersigned within thirty (30) days from service hereof, your answers in writing under oath to the following interrogatories. The answer shall be inserted in the space provided. If there is insufficient space to answer an interrogatory, the remainder of the answer shall follow on a supplemental sheet. A. DEFINITIONS AND INSTRUCTIONS 1. These interrogatories are considered to be continuing and, therefore, should be modified or supplemented as you obtain further or additional information up to the time of trial of this case. 2. Where exact information cannot be furnished, estimated information is to be supplied. Where an estimate is to be used, it should be identified as such and accompanied by an explanation as to the basis on which the estimate is made and the reason the exact information cannot be f furnished 3. As used herein, "documents" include any written, recorded or graphic matter, however produced or reproduced, including, but not limited to, correspondence, telegrams, other written communications, contracts, agreements, notes, statements, memoranda, photographs, tape recordings, or any other writings, including copies of the foregoing, now in the possession, custody or control of the Defendant, Potomac Group West, Inc., it's counsel, and all persons acting on behalf of Defendant. 4. Where knowledge, information, or documents in the possession of a party is requested, such request includes knowledge, information or documents in the possession of the party's agents, representatives or attorneys. 5. As used herein, "identify" or "identity" used in reference to any individual person means to state his full name and present address, his present employment position or business affiliation, and his telephone number. "Identify" or "identity" when used in reference to a document means to state the date and the author, type of document (e.g., letter, memorandum, telegram, chart, etc.) or some other means of identifying the document, and its present location and custodian. The identification should be with "reasonable particularity" so as to enable Plaintiff to request production of documents under Rule 4009 of the Pennsylvania Rules of Civil Procedure. It is sufficient to attach a copy of the document for the purpose of answering these interrogatories. 6. If any document was but no longer is in your possession or subject to your control, state what disposition has been made of it. B. INTERROGATORIES 1. Please identify who assisted with the preparation of the within responses. Answer: 2. Please identify any and all money paid on behalf of the Plaintiff pursuant to the indemnification agreement, which is attached to the Complaint as Exhibit A. Answer: 3. Please identify any and all facts which support your defense that "Plaintiff's claims cannot be authenticated," as stated in Affirmative Defense #1. Answer: 4. Please identify any and all facts which support your defense that "the alleged breach occurred more than two years prior to the filing of this action," as stated in Affirmative Defense #2. Answer: Please identify any and all facts that support your Affirmative Defense #3. Answer: 6. Please identify any and all terms of the alleged accord and satisfaction defense that you claim in Affirmative Defense #5. Answer: 7. Please identify any and all facts which support your contention that "Steve Wevodau voluntarily disclosed certain information related to BISYS accounting practices" as stated in paragraph 1 l of your Counter-Claim. Answer: 8. Please identify any and all representations made by Steve Wevodau as claimed in paragraph 11 and 13 of your Counter-Claim, and for each representation, identify any and all individuals that were present. Answer: 9. Please identify any and'all representations made by the Plaintiff which support your fraud claim. Answer: 10. For each representation allegedly made by the Plaintiff that you believe is false, please identify the alleged false representation and any and all facts to support your contention that any particular representation is false. Answer: 11. Identify each person whom you have retained as an expert witness in connection with this case, and whether you intend to call each expert witness so identified to testify at (1) any hearing seeking preliminary relief in this matter, and (2) trial. As to each such witness, state: (a) The subject matter on which he has been retained as an expert witness. (b) The substance of the facts and opinions to which the expert is expected to testify. (c) A summary of the grounds for each opinion. (d) Whether the facts and opinions listed in (b) above are contained in a written report, memorandum, or other transcript. If they are, give the name and address of the present custodian of same, and state whether you will produce the same without the necessity of a motion. (e) If the opinion of any expert listed above is based in whole or in part on any accounting, scientific or engineering rule or principle, set forth the said rule or principle. (f) If the opinion of any expert listed above is based in whole or in part on any code, regulation or standard, governmental or otherwise, identify the same code, regulation, or standard and specifically set forth the section relied upon. (g) If the opinion of any expert listed above is based in whole or in part upon any accounting, scientific or engineering textbook, or other publication, identify said textbook or publication. Answer: 12. With respect to each person whom you have retained as an expert witness in connection with this case, state: (a) His age, residence and business address. (b) The name and address of his present employer, or if self employed, the name of the business and his occupation. (c) His educational background, specifying colleges attended, dates of attendance, degrees attained and an detailed list of all writings prepared by the expert, or in which the expert participated in any way whatsoever. (d) Specific identification of all courses attended, seminars attended, and other activities on the part of the expert within the past ten years which were concerned with the subject for which the expert was retained in this case. (e) The name and address of the persons or firms for whom the individuals worked for the last ten years, and a detailed description of all duties at each place of employment. If the expert was. self-employed, state specifically and in detail the description of his duties and responsibilities. Answer: 13. Identify all exhibits you intend to introduce at trial. Answer: BARLEY SNYD C By: Sean E. Summers 1784327 Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Interrogatories to Defendant is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BA By: Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: January ?_, 2007 EXhibit IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT TO: Potomac Group West, Inc. c/o Ronald H. Blumberg, Esq. Thomas J. Weber, Esq. PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff, Steven S. Wevodau, requests that Defendant, Potomac Group West, Inc., produce the documents hereinafter described and permit Plaintiff, through his attorneys, to inspect them and copy such of them as they may desire. Plaintiff requests that the documents be made available for his inspection at the offices of his attorneys, Barley Snyder, LLC, 100 East Market Street, York, Pennsylvania, within thirty (30) days of the date of service hereof. Copying will be done at his expense, and the documents will be promptly returned after copying has been completed. This request is intended to cover all documents in the possession, custody and control of Defendant, Potomac Group West, Inc., it's agents, employees, insurance carriers, and attorneys and is considered to be continuing. Defendant's response to this request should be modified or supplemented as it and/or it's attorneys obtain further or additional documents up to the time of trial. 1. Any and all documents concerning or related to the Indemnification Agreement (attached as Exhibit A to the Plaintiff s Complaint). 2. Any and all correspondence concerning or related to the Plaintiff. 3. Any and all Affidavits, `or versions thereof, concerning or related to the Plaintiff. 4. Any and all documents relied upon to respond to Plaintiff s Interrogatories. 5. Any and all exhibits you intend to introduce at trial. BARLEY SNYD C By: Se E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1784289 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiffs Request for Production of Documents to Defendant is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BA By: Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: January 2007 EX?,?b,+ BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com THOMAS J. WEBER, ESQUIRE I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST. INC., Defendant CIVIL ACTION - LAW AND EQUITY DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIES TO: Steven S. Wevodau c/o Sean E. Summers, Esq. James E. Chiaruttini, Esq. Counter-Plaintiff Potomac Group West., Inc. ("PGW") hereby answers PLAINTIFF, STEVEN S. WEVODAU'S, INTERROGATORIES DIRECTED TO DEFENDANT POTOMAC GROUP WEST, INC., as follows: I A. DEFINITIONS AND INSTRUCTIONS 1. These interrogatories are considered to be continuing and, therefore, should be modified or supplemented as you obtain further or additional information up to the time of trial of this case. 2. Where exact information cannot be furnished, estimated information is to be supplied. Where an estimate is to be used, it should be identified as such and accompanied by an explanation as to the basis on which the estimate is made and the reason the exact information cannot be furnished. 3. As used herein, "documents" include any written, recorded or graphic matter, however produced or reproduced, including, but not limited to, correspondence, telegrams, other written communications, contracts, agreements, notes, statements, memoranda, photographs, tape recordings, or any other writings, including copies of the foregoing, now in the possession, custody or control of the Defendant, Potomac Group West, Inc., it's counsel, and all persons acting on behalf of Defendant. 4. Where knowledge, information, or documents in the possession of a party is requested, such request includes knowledge, information or documents in the possession of the party's agents, representatives or attorneys. 5. As used herein, "identify" or "identity" used in reference to any individual person means to state his full name and present address, his present employment position or business affiliation, and his telephone number. "Identify" or "identity" when used in reference to a document means to state the date and the author, type of document (e.g., letter, memorandum, telegram, chart, etc) or some other means of identifying the document, and its present location and custodian. The identification should be with 2 "reasonable particularity so as to enable Plaintiff to request production of documents under Rule 4009 of the Pennsylvania Rules of Civil Procedure. It is sufficient to attach a copy of the document for the purpose of answering these interrogatories. 6. If any document was but no longer is in your possession or subject to your control, state what disposition has been made of it. B. INTERROGATORIES 1. Please identify who assisted with the preparation of the within responses. Answer: Jason K. Dugas 3. Please identify any and all facts which support your defense that "Plaintiff s claims cannot -be authenticated," as stated in Affirmative Defense # 1. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Defendant has raised the defense that "Plaintiff s claims cannot be authenticated" in order to preserve its rights. Discovery is ongoing in this matter. The information requested in this interrogatory is unavailable at this time. 6 6. Please identify any and all terms of the alleged accord and satisfaction defense that you claim in Affirmative Defense #5. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Defendant has raised its accord and satisfaction defense in order to preserve its rights. Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 9 4. Please identify any and all facts which support your defense that "the alleged breach occurred more than two years prior to the filing of this action," as stated in Affirmative Defense 42. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Defendant has raised the defense that "the alleged breach occurred more than two years prior to the filing of this action" in order to preserve its rights. Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 7 5. Please identify any and all facts that support your Affirmative Defense #3. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Defendant has raised its Affirmative Defense #3 in order to preserve its rights. Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 8 2. Please identify any and all money paid on behalf of the Plaintiff pursuant to the indemnification agreement, which is attached to the Complaint as Exhibit A. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Defendant further objects to this interrogatory on the grounds that the language, "paid on behalf of and "pursuant to the indemnification agreement," are capable of multiple, contradictory interpretations, and Defendant is unable to respond without speculating as to the meaning of such language in this interrogatory. Additionally, Defendant objects to this interrogatory, in that the interrogatory assumes facts not established such that it is without foundation. 5 7. Please identify any and all facts which support your contention that "Steve Wevodau voluntarily disclosed certain information related to BISYS accounting practices" as stated in paragraph 11 of your Counter-Claim. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the- interrogatory. Defendant further objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Between September 2002 and September 21, 2003 Steven Wevodau engaged in a series of communications with certain employees of Potomac Group West, Inc ("PGW"). Wevodau voluntarily disclosed that he had personal knowledge of the accounting practices utilized by BYSIS in the accounting of Steven Leisher's commissions and bonuses. Wevodau disclosed to PGW, prior to September 22, 2003, that BYSIS had engaged in a systematic process of withholding commissions and bonuses from. PGW and Steven Leisher during a period of time from 1997 through 2002. As part of these communications, Wevodau provided PGW with a spreadsheet containing calculations that represented monies owed to PGW by BYSIS, in part a result of BYSIS's systematic process of withholding commissions, or "skimming." Wevodau further represented that this spreadsheet reflected Wevodau's personal knowledge and experience of BYSIS' accounting practices for the calculation of commissions owed to Steven Leisher and 10 PGW. Discovery is ongoing into this matter. Further information requested in this interrogatory is unavailable at this time. 11 8. Please identify any and all representations made by Steve Wevodau as claimed in paragraph 11 and 13 of your Counter-Claim, and for each representation, identify any and all individuals that were present. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Defendant further objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Not waiving said objections, responding party responds as follows: Prior to December 21, 2003, Wevodau represented, in general, and in part that BYSIS systematically withheld portions of commissions due and owing to Steven Leisher and PGW. In support of such allegations, Wevodau provided PGW with spreadsheet detailing amounts of commissions wrongfully withheld by BYSIS. These representations were made to certain employees of PGW, including Steven Leisher and Bruce Abbott. Discovery is still ongoing into this matter. Further information requested in this interrogatory is unavailable at this time. 12 9. Please identify any and all representations made by the Plaintiff which support your fraud claim. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Defendant further objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. This interrogatory seeks counsel's legal reasoning, theory, or statutory basis supporting a factual contention and therefore invades the attorney work product privilege. Lastly, this interrogatory calls for the professional opinion of a lay witness; consequently the question is oppressive, harassing, and without a foundational showing of competence. Not waiving said objections, responding party responds as follows: Prior to December 21, 2003, Wevodau represented to PGW that he had personal knowledge of the accounting practices utilized by BYSIS in the accounting of Steven Leisher's commissions and bonuses. Wevodau represented that he formed calculations of commissions and bonuses owed to PGW and Steven Leisher, and that these calculations were based on his personal knowledge and that such calculations were accurate. Wevodau further represented that he was willing and able to provide additional, detailed analysis of commissions that BYSIS owed to PGW. Wevodau represented that he had the ability and was willing to testify to these matters. These representations were made to Steven Leisher, Bruce Abbott, and or other employees of PGW. After making the above representations, Wevodau testified at his deposition that 13 he did not have personal knowledge of the accounting practices he analyzed (the accounting practices utilized by BYSIS in the accounting of Steven Leisher's commissions and bonuses) and that such numbers where only estimates. Wevodau also testified during his deposition that he did not have the ability provide a full analysis of the amounts of commissions owed or to perform an accounting of commissions. Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 14 10. For each representation allegedly made by the Plaintiff that you believe is false, please identify the alleged false representation and any and all facts to support your contention that any particular representation is false. Answer: Objection: Defendant objects to this interrogatory on the grounds that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Defendant further objects to this interrogatory on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. This interrogatory seeks counsel's legal reasoning, theory, or statutory basis supporting a factual contention and therefore invades the attorney work product privilege. Lastly, this interrogatory calls for the professional opinion of a lay witness; consequently the question is oppressive, harassing, and without a foundational showing of competence. Not waiving said objections, responding party responds as follows: Prior to December 21, 2003, Wevodau represented to PGW that he had personal knowledge of the accounting practices utilized by BYSIS in the accounting of Steven Leisher's commissions and bonuses. Wevodau represented that he formed calculations of commissions and bonuses owed to PGW and Steven Leisher, and that these calculations were based on his personal knowledge and that such calculations were accurate. Wevodau further represented that he was willing and able to provide additional, detailed analysis of commissions that BYSIS owed to PGW. Wevodau represented that he had the ability and was willing to testify to these matters. These representations were made to Steven Leisher, Bruce Abbott, and or other employees of 15 PGW. After making the above representations, Wevodau testified at his deposition that he did not have personal knowledge of the accounting practices he analyzed ( the accounting practices utilized by BYSIS in the accounting of Steven Leisher's commissions and bonuses) and that such numbers where only estimates. Wevodau also testified during his deposition that he did not have the ability provide a full analysis of the amounts of commissions owed or to perform an accounting of commissions. Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 16 11. Identify each person whom you have retained as an expert witness in connection with this case, and whether you intend to call each expert witness so identified to testify at (1) any hearing seeking preliminary relief in this matter, and (2) trial. As to each such witness, state: (a) The subject matter on which he has been retained as an expert witness. (b) The substance of the facts and opinions to which the expert is expected to testify. (c) A summary of the grounds for each opinion. (d) Whether the facts and opinions listed in (b) above are contained in a written report, memorandum, or other transcript. If they are, give the name and address of the present custodian of same, and state whether you will produce the same without the necessity of a motion. (e) If the opinion of any expert listed above is based in whole or in part on any accounting, scientific or engineering rule or principle, set forth the said rule or principle. (f) If the opinion of any expert listed above is based in whole or in part on any code, regulation or standard, governmental or otherwise, identify the same code, regulation, or standard and specifically set forth the section relied upon. (g) If the opinion of any expert listed above is based in whole or in part upon any accounting, scientific or engineering textbook, or other publication, identify said text book or publication. 17 Answer: Objection: Defendant objects to this interrogatory on the grounds that it seeks information which is protected from disclosure by the attorney work product privilege. The interrogatory also seeks identification of expert witnesses which the responding party will call at trial and invades the attorney work product privilege because any experts utilized by the responding party to date are solely for purposes of consultation and case preparation. In addition, this interrogatory seeks information concerning an expert witness beyond his identity, address, date of first contact and simple statistical data, and therefore invades the attorney work product privilege. 18 12. With respect to each person whom you have retained as an expert witness in connection with this case, state: (a) His age, residence and business address. (b) The name and address of his present employer, or if self employed, the name of the business and his occupation. (c) His educational background, specifying colleges attended, dates of attendance, degrees attained and an detailed list of all writings prepared by the expert, or in which the expert participated in any way whatsoever. (d) Specific identification of all courses attended, seminars attended, and other activities on the part of the expert within the past ten years which were concerned with the subject for which the expert was retained in this case. (e) The name and address of the persons or firms for whom the individuals worked for the last ten years, and a detailed description of all duties at, each place of employment. If the expert was, self-employed, state specifically and in detail the description of his duties and responsibilities. Answer: Objection: Defendant objects to this interrogatory on the grounds that it seeks information which is protected from disclosure by the attorney work product privilege. The interrogatory also seeks identification of expert witnesses which the responding party will call at trial and invades the attorney work product privilege because any experts utilized by the responding party to date are solely for purposes of consultation and case preparation. In addition, this interrogatory seeks information concerning an 19 expert witness beyond his identity, address, date of first contact and simple statistical data, and therefore invades the attorney work product privilege. 20 13. Identify all exhibits you intend to introduce at trial. Answer: Objection: Defendant objects to this interrogatory on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege. The interrogatory also seeks to ascertain facts or other data which the responding parry intends to offer at trial and therefore violates the attorney work product privilege Not waiving said objections, responding party responds as follows: Discovery is ongoing into this matter. The information requested in this interrogatory is unavailable at this time. 21 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S ANSWERS TO PLAINTIFF'S INTERROGATORIES is on this day being served on counsel of record by first class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. James E. Chiaruttini, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405=7012 Blumberg Dagan, LLP By: A'A.^,w- y V ShannGoing 137 N. Acacia Ave. Solana Beach, CA 92075 (858) 509-0600 Dated February 7, 2007 22 C.xhilb;-- b BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com THOMAS J. WEBER, ESQUIRE I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC. Defendant CIVIL ACTION - LAW AND EQUITY DEFENDANT'S RESPONSE TO PLAINTIFF'S REQUEST FOR PRODUCTION TO: Steven S. Wevodau c/o Sean E. Summers, Esq. James E. Chiaruttini, Esq. Counter-Plaintiff Potomac Group West, Inc. ("PGW") hereby responds to PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT, as follows: 1 Plaintiff s Request No. 1: Any and all documents concerning or related to the Indemnification Agreement (Attached as Exhibit A to the Plaintiff's Complaint) Objection: Defendant objects to Plaintiffs Request No. 1 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request in that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Specifically, Defendant objects to this request's language asking for documents "concerning or related to," as such language is capable of multiple, contradictory interpretations, and Defendant is unable to respond without speculating as to the meaning of such language in this requests. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding party responds as follows: See Indemnification Agreement, attached hereto as Exhibit "A". Further discovery is ongoing into this matter. Further documents requested are unavailable at this time. 2 k Plaintiff's Request No. 2: Any and all correspondence concerning or related to the Plaintiff. Objection: Defendant objects to Plaintiff's Request No. 2 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request in that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Specifically, Defendant objects to this request's language asking for documents "concerning or related to," as such language is capable of multiple, contradictory interpretations, and Defendant is unable to respond without speculating as to the meaning of such language.in this requests. Defendant further objects to this request on the grounds that' it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding parry responds as follows: Discovery is ongoing into this matter. The documents requested are unavailable at this time. 3 e ' Plaintiff's Request No. 3: Any and all Affidavits, or versions thereof, concerning or related to the Plaintiff. Objection: Defendant objects to Plaintiff's Request No. 3 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request in that it is so vague, ambiguous and unintelligible as to make a response impossible without speculation as to the meaning of the interrogatory. Specifically, Defendant objects to this request's language asking for documents "concerning or,related to," as such language is capable of multiple, contradictory interpretations, and Defendant is unable to respond without speculating as to the meaning of such language in this requests. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding party responds as follows: Discovery is ongoing into this matter. The documents requested are unavailable at this time. 4 Plaintiff's Request No. 4: Any and all documents relied upon to respond to Plaintiff's Interrogatories. Objection: Defendant objects to Plaintiff's Request No. 4 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Defendant also objects to this request on the grounds that it is argumentative in form and assumes facts not established such that it is without foundation. Not waiving said objections, responding party responds as follows: See Indemnification Agreement, attached hereto as Exhibit "A". Further discovery is ongoing into this matter. Further documents requested are unavailable at this time. 5 Plaintiff s Request No. 5: Any. and all exhibits you intend to introduce at trial. Objection: Defendant objects to Plaintiff s Request No. 4 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding party responds as follows: Discovery is ongoing into this matter. The documents requested are unavailable at this time. 6 0 1 , CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S REQUEST FOR PRODUCTION is on this day being served on counsel of record by first class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. James E. Chiaruttini, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Blumberg Dagan, LLP By: Shannon Going 13 7 N. Acacia Ave. Solana Beach, CA 92075 (858) 509-0600 Dated February 7, 2007 7 EXHIBIT "A„ 1-0 I • ?. I I 1 INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made SeptemberZ2-, 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite. 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS A. The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. B. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS") as its financial officer. C. Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising'from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by. Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS A. "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts` fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf oi'Wevodau in connection with any Action. B. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau. is named that arises in whole or in part by reason of the production or r? disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand; Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement;; if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bringing and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an.Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened. in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (1) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation -2- shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect. to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; -(2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends. the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attorneys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs., expenses and lodging shalt be reimbursed by the Corporation. within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation., SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of (l) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately be determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the - 3 - t ? 4 ? i Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVER.ABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited, by or invalid under applicable law, such provision shall. be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AND JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The Jaws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland' County; Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. -4- f • ? SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana. Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at.105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LUSHER PRESIDENT STEVEN S. WEVODAU STEVEN S. WQ?ODAU Dated: Dated: q` Iq?o3 -5- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to - Wevodau under this Agreement- may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEl HER PRESIDENT STEVEN S. WEVODAU STEVEN S. WEVODAU Dated: Y o-? Dated: -5- E*ibi+ E . t , Sean E. Summers, Esquire Direct Dial Number. 717.852.4997 E-mail: ssummers@barley.com February 12, 2007 Ronald H. Blumberg, Esquire Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Re: Steven S. Wevodau Y. Potomac Group West, Inc. No. 05-5393 Dear Mr. Blumberg: I am in receipt of your discovery responses dated February 7, 2007. The responses are completely unacceptable and your objections are not supported by the law. Even if there was any basis to object to a portion of our discovery requests, you are still required to respond to any and all portions which you do not have a good faith basis to object to. I will mark my calendar for 10 days from this date. If I do not receive adequate responses prior to that date, I will file a Motion to Compel and seek counsel fees. In the event that you would like to discuss this matter, do not hesitate to contact me. I do not like to waste either party's time and money litigating discovery disputes, but your discovery responses are tantamount to no response whatsoever. Sincerely, Sean E. Summers SES/eab: is27963 1 cc: Thomas J. Weber, Esquire Steven Wevodau E)(hibi- - E BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com THOMAS J. WEBER, ESQUIRE I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY DEFENDANT'S SUPPLEMENTAL ANSWERS TO PLAINTIFF'S INTERROGATORIES TO: Steven S. Wevodau c/o Sean E. Summers, Esq. James E. Chiaruttini, Esq. P i l Counter-Plaintiff Potomac Group West., Inc. ("PGW ') hereby supplements its answer to PLAINTIFF, STEVEN S. WEVODAU'S, INTERROGATORIES DIRECTED TO DEFENDANT POTOMAC GROUP WEST, INC., as follows: 11. Identify each person whom you have retained as an expert witness in connection with this case, and whether you intend to call each expert witness so identified to testify at (1) any hearing seeking preliminary relief in this matter, and (2) trial. As to each such witness, state: (a) The subject matter on which he has been retained as an expert witness. (b) The substance of the facts and opinions to which the expert is expected to testify. (c) A summary of the grounds for each opinion. (d) Whether the facts and opinions listed in (b) above are contained in a written report, memorandum, or other transcript. If they are, give the name and address of the present custodian of same, and state whether you will produce the same without the necessity of a motion. (e) If the opinion of any expert listed above is based in whole or in part on any accounting, scientific or engineering rule or principle, set forth the said rule or principle. (f) If the opinion of any expert listed above is based in whole or in part on any code, regulation or standard, governmental or otherwise, identify the same code, regulation, or standard and specifically set forth the section relied upon. 2 (g) If the opinion of any expert listed above is based in whole or in part upon any accounting, scientific or engineering textbook, or other publication, identify said text book or publication. Answer: Objection: Defendant objects to this interrogatory on the grounds that it seeks information which is protected from disclosure by the attorney work product privilege. The interrogatory also seeks identification of expert witnesses which the responding party will call at trial and invades the attorney work product privilege because any experts utilized by the responding party to date are solely for purposes of consultation and case preparation. In addition, this interrogatory seeks information concerning an expert witness beyond his identity, address, date of first contact and simple statistical data, and therefore invades the attorney work product privilege. Supplemental Answer: Objection: Defendant further objects to this interrogatory on the grounds that it seeks information which exceeds the scope of permissible discovery as allowed by the Pennsylvania Rules of Civil Procedure in that the determination of such experts, if any, has not yet been made. When such a determination is made, all information properly discoverable pursuant to PA. R. C. P. No. 4003.5 will be produced in a seasonable manner. t l a s 12. With respect to each person whom you have retained as an expert witness in connection with this case, state: (a) His age, residence and business address. (b) The name and address of his present employer, or if self employed, the name of the business and his occupation. (c) His educational background, specifying colleges attended, dates of attendance, degrees attained and an detailed list of all writings prepared by the expert, or in which the expert participated in any way whatsoever. (d) Specific identification of all courses attended, seminars attended, and other activities on the part of the expert within the past ten years which were concerned with the subject for which the expert was retained in this case. (e) The name and address of the persons or firms for whom the individuals worked for the last ten years, and a detailed description of all duties at each place of employment. If the expert was, self-employed, state specifically and in detail the description of his duties and responsibilities. . Answer: Objection: Defendant objects to this interrogatory on the grounds that it seeks information which is protected from disclosure by the attorney work product privilege. The interrogatory also seeks identification of expert witnesses which the responding party will call at trial and invades the attorney work product privilege because any experts utilized by the responding party to date are solely for purposes of consultation and case preparation. In addition, this interrogatory seeks information concerning an 4 It a 91 expert witness beyond his identity, address, date of first contact and simple statistical data, and therefore invades the attorney work product privilege. Supplemental Answer: Objection: Defendant further objects to this interrogatory on the grounds that it seeks information which exceeds the scope of permissible discovery as allowed by the Pennsylvania Rules of Civil Procedure in that the determination of such experts, if any, has not yet been made. When such a determination is made, all information properly discoverable pursuant to PA. R. C. P. No. 4003.5 will be produced in a seasonable manner. 5 I 1. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S SUPPLEMENTAL ANSWERS TO PLAINTIFF'S INTERROGATORIES is on this day being served on counsel of record by first class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. James E. Chiaruttini, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Blumberg Dagan, LLP By: Shannon Going 137 N. Acacia Ave. Solana Beach, CA 92075 (858) 509-0600 Dated February 20, 2007 6 BLUMBERG DAGAN LLP Ronald H. Blumberg (CSB No. 130557) Samuel Dagan (CSB No. 196300) 137 N. Acacia Avenue Solana Beach, California 92075 Phone 858.509.0600 Fax 858.509.0699 Web www.blumbergdagan.com THOMAS J. WEBER, ESQUIRE I.D. #58853 Goldberg Katzman, P.C. 320 Market Street R. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff v. POTOMAC GROUP WEST, INC. Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY DEFENDANT'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S REQUEST FOR PRODUCTION TO: Steven S. Wevodau c/o Sean E. Summers, Esq. James E. Chiaruttini, Esq. Y 0 4 9 Counter-Plaintiff Potomac Group West, Inc. ("PGW") hereby supplements its response to PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT, as follows: Plaintiff s Request No. 5: Any and all exhibits you intend to introduce at trial. Objection: Defendant objects to Plaintiff's Request No. 4 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding party responds as follows: Discovery is ongoing into this matter. The documents requested are unavailable at this time. Supplemental Response: Objection: Defendant objects to Plaintiff's Request No. 5 on the grounds that it is overly broad, burdensome and oppressive in that it is not reasonably limited in time and scope. Defendant further objects to this request on the grounds that it attempts to elicit information protected from disclosure by the attorney-client privilege, and that it seeks information which is protected from disclosure by the attorney work product privilege. Not waiving said objections, responding party responds as follows: 2 0,4( ! Discovery is ongoing into this matter. The documents requested are unavailable at this time. A determination of what exhibits will be used at trial has not been made yet. Upon determination, a list and copy of exhibits intended for introduction at trial will be produced and seasonably updated. 3 L- 'f CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S SUPPLEMENTAL RESPONSE TO PLAINTIFF'S REQUEST FOR PRODUCTION is on this day being served on counsel of record by first class mail, postage prepaid, at Solana Beach, California, addressed as follows: Sean E. Summers, Esq. James E. Chiaruttini, Esq. Barley Snyder, LLC 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Blumberg Dagan, LLP By: Shannon Going 137 N. Acacia Ave. Solana Beach, CA 92075 (858) 509-0600 Dated February 20, 2007 4 t ` w Exh?bi+ G Wevodau v PGW 4, Page 1 of 2 Summers, Sean E. From: Weber, Thomas J. [tjw@goldbergkatzman.com] Sent: Wednesday, February 21, 2007 4:06 PM To: Summers, Sean E. Subject: RE: Wevodau v PGW I will look into it. I do have to leave tomorrow for Indiana for work. Could I ask you to hold off until Tuesday? Thank you From: Summers, Sean E. [mailto:ssummers@barley.com] Sent: Wednesday, February 21, 2007 3:14 PM To: Weber, Thomas 1. Subject: Wevodau v PGW Tom, I'm in receipt of PGW's discovery responses and they are entirely unacceptable. The interrogatories were directed towards their responses in the pleadings which were made subject to perjury. I'm in receipt of the attached response which is equally unacceptable and from a law clerk. If they have no evidence to support their allegations, they need to say so. This email is only extended as a courtesy to you because our limited previous involvement in unrelated matters has been professional. In addition, you have a good reputation from my firm's perspective and are not the type to play discovery games. If I don't get a response from you (or an acceptable one from your co-counsel) by Monday, I'll file a motion to compel. I will not respond further to the CA attorneys. The only thing that bought them a few extra days is your good reputation. Sean <<Wevodau v. Potomac - Itf Jason Dugas re responses inadequate.PDF>> Sean E. Summers (ssummers@barley.com) Esquire Barley Snyder LLC 100 East Market Street York, PA 17401 717.852.4997 - Direct Dial 717.843.8492 - Fax Barley Snyder LLC ATTORNEYS AT LAW Website: www._barley.com To ensure compliance with requirements imposed by the U.S. Internal Revenue Service in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication. 3/19/2007 Wevodau v PGW Page 2 of 2 THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to this message or by sending an e-mail to barley@barley.com and destroy all copies of this message and any attachments. Thank you. 3/19/2007 1 R" 1? CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: March ?? 2007 C c._ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY AMENDMENT TO PLAINTIFF'S MOTION FOR SANCTIONS PURSUANT TO Pa.R.C.P. 4019 FOR FAILURE TO ANSWER INTERROGATORIES AND PRODUCE DOCUMENTS Plaintiff, by his undersigned counsel, files the following Amendment to his Motion for Sanctions filed on March 23, 2007: 1. Plaintiff hereby states that no judge has previously been assigned to any other issue in this matter. 2. Plaintiff hereby states that notice of the filing of this Motion was given to counsel for Defendant, and Defendant does not concur in Plaintiff's request for relief. BARLEY SNYDER LI C' By: Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1868525 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Amendment to Motion is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY 7SNYDER By: Sean . S mers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: March Z ` , 2007 i-=- f ; wl V _y - _, WJa20d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY RULE TO SHOW CAUSE AND NOW, this I day of 2007, in consideration of Plaintiff's Motion for Sanctions, a Rule is hereby entered against Defendant to show cause why it should not be ordered to provide full and complete verified answers to interrogatories and produce the documents requested by Plaintiff. Rule returnable twenty (20) days from service of this Rule. BY THE COURT, cam, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY CERTIFICATE OF SERVICE I hereby certify that on April 12, 2007. a true and correct copy of the Rule to Show Cause issued by the Court on April 9, 2007, was served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E.- Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1883752 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Certificate of Service is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Sdmmers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: April 12, 2007 ' 1= -r M 1 r 1 L.- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY Hon. M. L. Ebert, Jr. POTOMAC GROUP WEST, INC., Defendant PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE Plaintiff, by his undersigned counsel, files the following Motion for Sanctions Pursuant to Pa.R.C.P. 4019, and C.C.R.P. 208.3(a): 1. The moving party is the within Plaintiff, Steven S. Wevodau. 2. The respondent is the within Defendant, Potomac Group West, Inc. 3. On March 23, 2007, Plaintiff filed a motion pursuant to Pa.R.C.P. 4019 to compel Defendant to fully respond to interrogatories and a request for production of documents. 4. In consideration of Plaintiff's motion, on April 9, 2007, your Honorable Court issued a Rule to Show Cause directed to Defendant, which was served on April 12, 2007, directing Defendant to show cause why it should not be ordered to provide full and complete answers to interrogatories and produce the documents requested. (See Exhibits A and B respectively). 5. More than 20 days have elapsed since service, and Defendant has failed to respond to the Rule or provide more complete answers to the Interrogatories or to produce any documents. 6. Further, counsel for Defendant has not contacted Plaintiff in any manner. 7. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(3), the court may enter an order striking out pleadings or part thereof. 8. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(4), the court may enter an order imposing punishment for contempt. 9. Pursuant to Pennsylvania Rule of Civil Procedure 4019(c)(5), the court may enter an order with regard to the failure to make discovery as is just. 10. Plaintiff requests that your Honorable Court enter an Order directing Defendant to fully respond to Plaintiff's outstanding discovery within 20 days or suffer punishment for contempt in the nature of an award of sanctions by striking Defendant's Counterclaim and further directing Defendant to pay the reasonable expenses, including attorney's fees, incurred in obtaining the order for compliance and the order for sanctions. WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter an order directing Defendant to provide full and complete verified answers to interrogatories and produce the documents requested by Plaintiff within twenty (20) days or suffer punishment for contempt. BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1916967 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: May (`?' , 2007 Exhlblts A .04 20?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY RULE TO SHO CAUSE AND NOW, this day of , 2007, in consideration of Plaintiff's Motion for Sanctions, a Rule is hereby entered against Defendant to show cause why it should not be ordered to provide full and complete verified answers to interrogatories and produce the documents requested by Plaintiff. Rule returnable twenty (20) days from service of this Rule. BY THE COURT, TRH; .', ; In Test rn,: hand an he sc a i s 4, ?4?.. -, T ..... P thonotary ?hlbit+ S LI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL. ACTION - LAW AND EQUITY CERTIFICATE OF SERVICE I hereby certify that on April 12, 2007. a true and correct copy of the Rule to Show Cause issued by the Court on April 9, 2007, was served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER By: / ?( V Sean E Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1883752 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Certificate of Service is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: April 12, 2007 r? L? r- _a .. ? ` r -mac ul MAY 1$ 200]0°}' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant AND NOW, this 2 1` d No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY ORDER day of M 0,1 , 2007, in consideration of Plaintiff's Motion for Sanctions, it is hereby ordered that Defendant shall provide full and complete verified answers to interrogatories and produce the documents requested by Plaintiff, within twenty (20) days of the date of this Order or suffer punishment for contempt. BY THE COURT, ?N -? ?a_ _...; f ? ., ? ?,? '" ? ,, t+u rj?.`,. ,.s t , ?. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY CERTIFICATE OF SERVICE I hereby certify that on May 25, 2007 a true and correct copy of the Order issued by the Court on May 23, 2007, was served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Surfimers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1932519 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Certificate of Service is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYD Sean E. Summers Court I.D. 92141 James E. Chiaruttini Court I.D. 82060 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: May 25, 2007 96 0 I- Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY Hon. M. L. Ebert, Jr. PLAINTIFF'S MOTION FOR SCHEDULING CONFERENCE Plaintiff, by his undersigned counsel, files the following Motion Pursuant to C.C.R.P. 208.3(a): 1. The moving party is the within Plaintiff, Steven S. Wevodau. 2. The respondent is the within Defendant, Potomac Group West, Inc. 3. Plaintiff instituted this action by Complaint filed on October 17, 2005, for breach of contract and for declaratory judgment. 4. Defendant filed an Answer with Affirmative Defenses and a Counter-Claim for fraud on February 2, 2006, to which Plaintiff filed a reply on May 1, 2006. 5. On January 9, 2007, Plaintiff served written discovery in the form of Interrogatories and a Request for Production of Documents 6. Defendant served unverified responses on February 7, 2007, upon receipt of which Plaintiff notified Defendant by letter of February 12, 2007, that they were non-responsive and contained objections not supported by the law. s ? .0 A 7. After Defendant served unsigned, unverified "supplemental" responses in the form of objections, Plaintiff filed a Motion for Sanctions on March 23, 2007, to which a Rule to show Cause was issued on April 9, 2007. 8. The Rule was made absolute by Order dated May 23, 2007. 9. In response to the Court's Order of May 23, 2007, Defendant served amended discovery responses on June 12, 2007. Again, the amended responses contained boilerplate objections and no substantive responses. 10. When Plaintiff on June 20, 2007, notified Defendant it would seek a scheduling conference with the Court, Defendant agreed to enter into a joint case management plan to establish discovery and other deadlines, which Plaintiff promptly prepared and submitted. 11. Despite Defendant's promises to enter in a joint case management plan, it has refused to do so. 12. In the meantime, Defendant has conducted no discovery whatsoever. 13. Plaintiff therefore requests that the Court enter an Order scheduling a case management conference to establish discovery deadlines and a trial date. 14. The motions previously filed in this matter and referred to above were ruled upon by the Hon. M. L. Ebert, Jr. 15. Plaintiff states that notice of the filing of this Motion was given to counsel for Defendant, and Defendant does not concur in Plaintiff's request for relief. 2 WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter an Order scheduling a case management conference to establish discovery deadlines and a trial date. BARLEY SNYDER L By: Sean E. S ers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2013113 3 # 4 0 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Janine Menhennet, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER By: Seafi E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: August 13, 2007 sr ? t? 4 ? 4 (? 1 ??, / X t. ? ? 1?. 1, r .- . l ? ? ' ? l { . W ' _% IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW STEVE S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 LAW AND EQUITY Hon. M. L. Ebert, Jr. PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw my appearance on behalf of Plaintiff, Steve S. Wevodau. Sean E. Summers, Esquire has previously entered his appearance for Plaintiff and will continue as counsel of record. STOCK Date: f- -14 - U? U I ? M r-v James E. 'aruthn Esquire Court I 82060 Susquehanna Commerce Center East 221 West Philadelphia Street, Suite 600 York, PA 17401-2994 Telephone: (717) 846-9800 Fax: (717) 843-6134 !r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW STEVE S. WEVODAU, Plaintiff V. No. 05-5393 POTOMAC GROUP WEST, INC., Defendant LAW AND EQUITY Hon. M. L. Ebert, Jr. CERTIFICATE OF SERVICE I hereby certify that I have, this date, served by First Class, United States Mail, a copy of the foregoing Praecipe for Withdrawal of Appearance on the persons indicated below: Ronald H. Blumberg, Esquire Janine Menhennet, Esquire Blumberg Dagan, LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Date: 6q 6-7 Thomas J. Weber, Esquire Goldberg Katzman, P.C. 320 Market Street PO Box 1268 Harrisburg, PA 17018-1268 BARLEY SNY C Sean E. Summers, Esquire Court I.D. 92141 100 East Market Street PO Box 15012 York, PA 17405-7012 Telephone: (717) 846-8888 Fax: (717) 843-8492 ?t T it - c? 5 ACT 0 12007,,i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY ORDER AND NOW, this _ day of 06wxv-, 2007, in consideration of Plaintiff s Motion for a Scheduling Conference, said Motion is hereby granted, and a Scheduling (? a-t 3: 0 0 1 "% - nn,, Pik- 5 Conference is hereby set for "Xuav_ ,3,1 dD'r , in elAftX ? 0j. D V 'MU I`!lT TD T j ? 1 q, n I STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. POTOMAC GROUP WEST, INC. : DEFENDANT : NO. 05-5393 CIVIL IN RE: MOTION FOR SCHEDULING CONFERENCE ORDER OF COURT AND NOW, this 3rd day of December, 2007, after status conference with counsel this date, the following schedule is hereby set for completion of discovery and trial of this matter: 1. December 31, 2007 - The parties shall complete all written discovery on or before this date. 2. February 28, 2008 - The parties shall complete all depositions of parties or witnesses on or before this date. Plaintiff's counsel has requested that all depositions be taken in Cumberland County. Defendant has not agreed to that location at this time. If the parties are unable to reach agreement as to the location of the taking of depositions, the Court will be immediately notified in order to schedule a brief argument on the issue. 3. May 8, 2008 - Any and all dispositive motions shall be filed and the matter shall be set down for Argument Court on or before this date. 4. July 9, 2008 - All motions will be argued during the Argument Court set for this date. All parties shall file briefs in accordance with the Cumberland County Local Rules of Court. aJ_?a ? i I LgI 5. September 15, 2008 - This case shall be set down for trial on or before this date. 6. November 17, 2008 - Jury trial of this case. By the Court, M. L. Ebert, Jr., J. Sean E. Summers, Esquire Attorney for Plaintiff Thomas J. Weber, Esquire Attorney for Defendant Ronald H. Blumberg, Esquire Janine Menhennet, Esquire Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 0'0 Oex mat 6L bas C p u,r't i h? i rN ?A S. 14l ? °-? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., Defendant CIVIL ACTION - LAW AND EQUITY Hon. M. L. Ebert, Jr. PLAINTIFF'S MOTION FOR STATUS CONFERENCE Plaintiff, by his undersigned counsel, files the following Motion Pursuant to C.C.R.P. 208.3(a): 1. The moving party is the within Plaintiff, Steven S. Wevodau. 2. The respondent is the within Defendant, Potomac Group West, Inc. 3. A status conference was held in this matter on December 3, 2007, at which time your Honorable Court issued an Order establishing certain deadlines. (See Order attached as Exhibit A) 4. The Order provides that the parties shall complete all depositions of parties and witnesses on or before February 28, 2008. 5. Plaintiff scheduled the deposition of three fact witnesses, employees of Defendant, for January 8 and 9, 2008, and sent appropriate notices to Defendants. See Notices attached as Exhibit B). 6. As indicated by the Notices, both local counsel and corporate counsel were served by first class mail on December 13, 2007. 7. By letter dated January 4, 2008, Defendant cancelled the depositions. 8. Plaintiff again noticed the deposition of the three fact witnesses and a corporate designee and served appropriate notices on January 10, 2008. See Notices attached as Exhibit C) 9. Despite Plaintiffs willingness to accommodate Defendant's schedules, Defendant has notified Plaintiff that witnesses will be unavailable on February 6 and 7, 2008. Defendant has informed Plaintiff that one witness will be available in March. (See letter from Mr. Blumberg attached as Exhibit D; letter from Mr. Weber attached as Exhibit E; and letter from the undersigned as Exhibit F) 10. Plaintiff therefore requests that the Court schedule a status conference. 11. Plaintiff has been advised that the Hon. M. L. Ebert, Jr., is available on Friday, February 1, 2008, at 8:30 a.m., and respectfully requests that a status conference be held on that date and time. 12. The motions previously filed in this matter and referred to above were ruled upon Judge Ebert. 13. Plaintiff states that notice of the filing of this Motion was given to counsel for Defendant. WHEREFORE, Plaintiff respectfully requests that your Honorable Court enter an Order scheduling a status conference for February 1, 2008, at 8:30 a.m. BARLEY By: Sean E. %hrurters Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Janine Menhennet, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: Date: January 17, 2008 2159016 BARLEY SNYDER Seari E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 3 `•, ? STEVEN S. WEVODAU, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : POTOMAC GROUP WEST, INC. : DEFENDANT NO. 05-5393 CIVIL IN RE: MOTION FOR SCHEDULING CONFERENCE AND NOW, this 3`d day of , 2007, after status conference with counsel this date, the following is hereby set for completion of discovery and trial of this matter: 1. December 31, 2007 - The shall complete all written discovery on or before this date. 2. February 28, 2008 - The shall complete all depositions of parties or witnesses on or before thii date. Plaintiffs counsel has requested that all depositions be taken in Cumbeda County. Defendant has not agreed to that location at this time. If the location of the taking of depositions, order to schedule a brief argument are unable to reach agreement as to the Court will be immediately noted in the issue. 3. May 8, 2008 - Any and all dispositive motions shall be filed and the matter shall be set down for 4. July 9, 2008 - All motions Court on or before this date. be argued during the Argument Court set for this date. All parties shall file in accordance with the Cumberland County Local Rules of Court. 5. September 15, 2008 - This case shall be set down for trial on or before this date. 6. November 17, 2008 - Jury trial of this case. By the Court, ?AA M. L. Ebert, Jr., J. Sean E. Summers, Esquire Attorney for Plaintiff Thomas J. Weber, Esquire Attorney for Defendant Ronald H. Blumberg, Esquire Janine Menhennet, Esquire Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 bas TRUE CUPID FROM Ij:G0RU is Te timony wherMf, I here unto set my hand Ord the seal ref said at CaMSM. Pa a t da ot IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 Notice is given herewith that, pursuant to Pa. R.C.P. 4007.1, the deposition of Steven Leisher will be taken on oral examination at the offices of Barley Snyder, LLC, 100 East Market Street, York, Pennsylvania, at 9:00 a.m. on Tuesday, January 8, 2008, and at any and all adjournments thereof. BARLEYSNYDER By: Sean . S mers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this (3 day of December, 2007, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean L. Sun#fers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2128919 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 Notice is given herewith that, pursuant to Pa. R.C.P. 4007. 1, the deposition of Bruce Abbot will be taken on oral examination at the offices of Barley Snyder, LLC, 100 East Market Street, York, Pennsylvania, at 9:00 a.m. on Wednesday, January 9, 2008, and at any and all adjournments thereof. BARLEY SNYDER LL By: Sean . S ers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this l3day of December, 2007, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYZL By: Se E. S ers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2128925 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff v. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 Notice is given herewith that, pursuant to Pa. R.C.P. 4007. 1, the deposition of Karen Davis will be taken on oral examination at the offices of Barley Snyder, LLC, 100 East Market Street, York, Pennsylvania, at 1:00 p.m. on Wednesday, January 9, 2008, and at any and all adjournments thereof. BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 13 day of December, 2007, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas I Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER L By: Sean t Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2128926 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant To: Potomac Group West, Inc. No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 PLEASE TAKE NOTICE that pursuant to Pa.R.C.P. 4007.1(e), Plaintiff will take the deposition of the designated representative or representatives of Potomac Group West, Inc., upon oral examination, for the purposes of. discovery and/or use at trial. The deposition shall be held at the offices of Barley Snyder L LC, 100 East Market Street, York, Pennsylvania 17401, before a notary public or other person authorized to administer oaths on Wednesday, February 6, 2008, beginning at 9:00 a.m., and continuing through any adjournments until concluded. The matters to be inquired into are (1) all matters set forth in the pleadings filed in this action, (2) Defendant's responses to discovery served in this action, and (3) the Indemnification Agreement dated September 22, 2003. Potomac Group, West, Inc., is requested to designate one or more officers, directors, or managing agents or other persons who consent to testify on its behalf and to designate the matters on which each such person will testify. BARLEY SNYDER By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 10th day of January, 2008, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2152335.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. 4007. 1, Plaintiff will take the deposition of Steven Leisher upon oral examination for the purposes of discovery and/or use at trial. The deposition shall be held at the offices of Barley Snyder LLC, 100 East Market Street, York, Pennsylvania 17401, before a notary public or other person authorized to administer oaths on Wednesday, February 6, 2008, beginning at 1:00 p.m., and continuing through any and all adjournments until concluded. BARLEY SNYDER By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 10th day of January, 2008, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2]52328.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4047.1 PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. 4007. 1, Plaintiff will take the deposition of Bruce Abbott upon oral examination for the purposes of discovery and/or use at trial. The deposition shall be held at the offices of Barley Snyder LLC, 100 East Market Street, York, Pennsylvania 17401, before a notary public or other person authorized to administer oaths on Thursday, February 7, 2008, beginning at 9:00 a.m., and continuing through any and all adjournments until concluded. BARLEY SNYDER LLC By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 10th day of January, 2008, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER LL / By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2152339.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION PURSUANT TO Pa. R.C.P. 4007.1 PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. 4007.1, Plaintiff will take the deposition of Karen Davis upon oral examination for the purposes of discovery and/or use at trial. The deposition shall be held at the offices of Barley Snyder LLC, 100 East Market Street, York, Pennsylvania 17401, before a notary public or other person authorized to administer oaths on Thursday, February 7, 2008, beginning at 1:00 p.m., and continuing through any and all adjournments until concluded. BARLEY SNYDER By: Seafi E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 10th day of January, 2008, I, Sean E. Summers, Esquire, hereby certify that I have served the within Notice of Deposition by depositing the same in the United States mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E: Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2152364.1 01/15/2008 17:10 8585090699 BLUMBERG DAGAN LLP PACE 02/02 BlvxAerg SOX... BEACH: 137 N. Acacia Ave. • Solana Beaeb, CA 512075 • Phone: 858.509.0600 - Fax: 858.509.0699 Ragan LAS VEGAS: LLP 1137 South Rancho Dr., Ste. B - Las Vegas, NV 89102 - Phone: 702.384.5563 - Fax: 702384,2790 Ronald H. Blumberg, Esq. www.blumbergdagan.com email: rhb@blmnbergdagan.com January 15, 2008 Via Facsimille 717,843.8492 and Fiat-Class Mail Scan E. Summers, Fsq. Barley Snyder, LLC P_O. Box 15012 York, PA 17405-7012 Reference: Potomac ano n West. Inc_ adv. &ye-n s: Wevodau Cumberland Cou= Case No. 05-5393 Subject: Depositions Dear Sean: I was disappointed that you did not call Tom Weber last week as had been scheduled. I was in my San Diego office and waited to be patched into the conference call. Mr. Weber later toad we that you never called, and have not rescheduled. I called you this afternoon and left a weessage on your voice mail. 1 would like to discuss this case with you, and see what we can do about scheduling needs. As you likely by now know, Potomac Group West, Inc. ("PGW") does not exist any longer. As such, your notices of depositions to 1) the designated representative of PGW; 2) Steven Leisher; and 3) Karen Davis carry no weight to compel attendance. In addition, Bruce Abbott has not worked for PGW for a few years, and the Notice of his deposition is ineffective for this reason, as well. You are on NOTICE that without valid subpoenas, no witness will appear. This being said, Mr. Leisher will be in Philadelphia, PA March. 13, 2008 and sit for a deposition. Please call me at your first opportunity to discuss this and other case-related matters. Very truly yours, For the Firm, dictated but not read Ronald H. Blumberg RHB:dd CC' Thomas J. Weber, Esq. Steven Leisher 520014Zummers-(.115-08 js,a r/7 '§ A full-service law firm. January 16, 2008 VIA E-MAIL ?I«I ?uanl Ronald H. Blumberg, Esq. Iarr} 1> c;c,ldbcrv11 Blumberg, Lorber, Nelson, LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Ronald \7. Katzman Pull I Esposito Re: Steven S. Wevodau v. Potomac Group West, Inc ;veil F Hendershot No. 05-5393 I lay Cooper I homas f Brenner Dear Ron: April I.. Sean,;-I"tnav Icrry 1. RUSSO I am in receipt of your correspondence dated January 15, 2008 directed to XIirhad I. (.r,)cenzi Sean Summers. Obviously, I am in agreement that it would be wise that the two Ihomas I Weber of you speak directly for purposes of scheduling any continuing discovery and to Steven 1:. Grubb address the status of this litigation. So as to make those discussions as Royce I_ \aorri worthwhile as possible, I want to clarify something contained in your letter David \I Steckel regarding Sean and my efforts to discuss the possible scheduling. losrph M Sembrot (::,t•)y 1 Wismer Sean was unaware that you planned on participating in the conference call Nlidmel I-- Socha scheduled for Tuesday, January 8, at 3:30 p.m., eastern standard time. You are accurate that by the time you called in to see the status of the call at approximately 3:55 p.m., Sean had not yet called. I believe this is the last time 10SIU ,1, 1 oek you and 1 spoke on the matter. I had a shareholders meeting scheduled for 4:00 Arnold I), K011an p.m. on the 8u'. When I exited that meeting at about 7:00 p.m., there was a - 11c;uhcr 1 I>atcrlt , voicemail from Sean indicating that he had been tied up with the "emergency of the day" and had not been able to call at our prescheduled time for 3:30 p.m. I recall that he stated the time to be around 4:10 p.m. I returned Sean's telephone call that evening, but not surprisingly, he was not in the office at that hour of the day. Both of us exchanged telephone calls the following day. Therefore, it is true that we did not have a conversation as scheduled to discuss the rescheduling of the depositions. Nor did we have any conversation afterwards. However, it would be unfair to characterize it that Sean did not make an effort to contact me prior to unilaterally picking the dates of February 6. As a result of our inability to speak, I did not express to Sean Mr. Lesher's travel plans or his availability for a deposition in Pennsylvania in March. ::ODiMA\PCDOCS\DOCS\ 128927\6 1`1:\I, I, IsRt;1,1; 1 1 \?i(:a51 Im1c I (_ \1tI Isi I. 0 MarLet Street, StrawhenvSquarel I'O Bo\ 1268' I-larrisbm;:;,11;\ 1-1028-126X) ;I7-23!-•1I611 7117-331-680,1M,0%)) z,uii,IohtlJrr4kot.manton Ronald H. Blumberg, Esq. January 16, 2008 Page 2 By copy of this letter, I am informing Sean of my understanding of the communications (or lack thereof) that occurred last week. Should there be a desire for me to participate in any telephone calls at this time, please let me know, and I will make every effort to be available. Ve truly yours, 'e--O M homas IJeber TJW/jlb CC. Sean E. Summers, Esq.. ::ODMA\PCDOCS\DOCS\12B927\6 100 East Market Street P.O. Box 15012 York, PA 17405-7012 Tel 717.846.8888 Fax 717.843.8492 www.barley.com January 16, 2008 Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Re: Steven S. Wevodau v. Potomac Group West, Inc. No. 05-5393 Dear Ron: Sean E. Summers, Esquire Direct Dial Number: 717.852.4997 E-mail: ssummers@barley.com I received your voicemail from Tuesday evening, January 15, 2008. You indicated that your client might be available for a deposition on March 13 or March 14. As you must know, depositions must be completed by February 28, 2008. By and through counsel, your client agreed to these dates and the Court reduced the same to an Order. Put differently, your proposal would violate your agreement and a Court Order. As discussed at the scheduling conference, I will file a Motion for Summary Judgment for our claims and against your counter-claims. In this regard, deposition transcripts are necessary and necessary on a timely basis. Based upon the schedule that the Court ordered and you agreed to, March depositions are unacceptable. To further complicate matters, depositions were previously scheduled on January 8 and 9, 2008. Because of an apparent communication problem between you and your co-counsel, you cancelled these depositions. Thereafter, you left a voicemail for me and requested that I call you to discuss depositions and potential settlement. In this regard, I returned your telephone call and left a message. As of this date, you have not returned the call. Not having received a response, I sent you another set of Notices of Deposition on January 10, 2008. We initiated this action by filing a very straightforward claim based upon an Indemnification Agreement executed by your client. Unfortunately, your client thought it necessary to file frivolous counter-claims. To further complicate matters, you have frustrated the discovery process, which makes the depositions more necessary than they might have been under different circumstances. York • Lancaster - Harrisburg • Reading • Berwyn • Hanover r January 16, 2008 Page 2 During the scheduling conference, Attorney Weber and I discussed the realities of litigation and the potential for resolving this matter by settlement. Attorney Weber and I agreed that we would initiate a settlement dialogue by means of the plaintiff making a demand followed by the defendant accepting the offer, declining the offer, or, alternatively, making a counteroffer. As of this date, I have not received any response whatsoever concerning our settlement proposal. Further, plaintiff s damages (my attorney fees) continue to escalate. Absent a Court Order to the contrary, the scheduled depositions will take place at the scheduled time and location. If Court intervention is necessary, I look forward to having that conversation. In that regard, feel free to forward me a Motion for a Protective Order. Furthermore, I will seek sanctions if your clients do not appear at the scheduled depositions. Sincerely, Sean E. Summers SES/eab:2157774.1 cc: Thomas J. Weber, Esq. - via e-mail Steven Wevodau - via e-mail 5 WN I I lwj?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY ORDER AND NOW, this - day of January, 2008, in consideration of Plaintiff's Motion for a Scheduling Conference, said Motion is hereby granted, and a Status Conference is hereby set for Friday, February 1, 2008, at 8:30 a.m., in Chambers of Courtroom 5. BY THE COURT, N '-?' M. L. Ebert, Jr., Judge I : I-C, H d Ij Z N V P ulu" 0 Z Jd, W/ - -- STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : POTAMAC GROUP WEST, INC.,: DEFENDANT : NO. 05-5393 CIVIL ORDER OF COURT AND NOW, this 1St day of February, 2008, after status conference in the above- captioned case, IT IS HEREBY ORDEREED AND DIRECTED that: 1. Steven Leisher shall appear for deposition on March 12 or 13, 2008, in either Dauphin or York County as agreed to by counsel, Thomas Weber, Esquire, and Sean Summers, Esquire. 2. Karen Davis will submit to deposition by means of video or telephone on or before March 14, 2008. 3. Potomac Group West, Inc. will be prohibited from requesting or performing any further discovery after this Court's previous deadline of February 28, 2008. With regard to the Plaintiff, Steven S. Wevodau, given the Defendant's delay in this matter, the previous discovery deadline of February 28, 2008 will be extended until April 1, 2008. 4. Should Steven Leisher or Karen Davis fail to submit to deposition prior to March 14, 2008, or Potomac Group West, Inc., fail in any matter to comply with discovery, upon Motion of the Plaintiff for Sanctions, the Court will entertain a Motion for Judgment by Default pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure. M. L. Ebert, Jr., W43d v1?-1IS AIN, f ! WV 1- 833 OOOZ dt, s 1 ,ZZean E. Summers, Esquire Attorney for Plaintiff homas J. Weber, Esquire Attorney for Defendants bas IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff V. POTOMAC GROUP WEST, INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY MOTION FOR DETERMINATION OF SUCCESSOR LIABILITY AND FOR LEAVE OF COURT TO AMEND COMPLAINT Plaintiff, Steven S. Wevodau, (hereinafter Wevodau), by and through his undersigned counsel, Barley Snyder LLC, files the following Motion for Leave of Court to Amend Complaint, of which the following is a statement: 1. Plaintiff initiated this action by Complaint filed on October 17, 2005. 2. Defendants filed an Answer with Affirmative Defenses and a Counter-Complaint on or about November 21, 2005, and filed an Amended Answer with Affirmative Defenses and an Amended Counter-Complaint on or about February 2, 2006. 3. Plaintiff filed his Reply to Defendants' New Matter and an Answer to the Counter-Complaint with New Matter on May 1, 2006, to which Defendants filed a Reply on or about May 23, 2006. 4. Depositions of Defendants' representatives, Karen Davis and Steven C. Leisher, were taken on February 21, 2008 and March 10, 2008. 5. During the course of their depositions, Ms. Davis and Mr. Leisher testified that the above named Defendant, Potomac Group West, Inc. (PGW), is no longer in business, and that they are now employed by Leisher Insurance Solutions Group (LISG). 1 6. Defendants' representatives further testified that the location of LISG remained the same as PGW, that the employees of LISG remained the same as PGW, that the office manager of the two companies, Karen Davis, remained the same and that her duties remained the same. 7. Mr. Leisher, the president of PGW, testified that the business of PGW had been a life insurance brokerage business and although LISG shifted focus from selling of policies to the purchase of policies it still services brokers. 8. Mr. Leisher testified that he owned 90% of PGW with the remaining 10% owned by his children's trust, the Leisher Children's Family Trust. 9. Mr. Leisher testified that LISG is owned 80% by the Leisher Children's Family Trust, which is owned by Mr. Leisher's children. 10. Mr. Leisher, upon information and belief, controls the Leisher Children's Family Trust. 11. Mr. Leisher testified that he had check-signing authority for both PGW and LISG. 12. Mr. Leisher testified that he could terminate employees for both PGW and LISG. 13. Although he was a 90% owner of PGW, Mr. Leisher was unable to describe the mechanics of the actual change in ownership or to identify or describe the consideration paid by LISG for PGW or provisions made for creditors of PGW. 14. Based on the testimony of Ms. Davis and Mr. Leisher, Plaintiff believes and therefore avers that Defendant, although purportedly closing its doors in August 2007, merely changed its name and began operating as LISG in September of 2007. 2 15. In fact, the records of the California Secretary of State Business Portal website reveals that LISC was formed on May 23, 2007, and that both PGW and LISG are active corporations as of March 20, 2008. (See attached Exhibit A) 16. Further, the docket from the Maryland Action reveals that judgment was entered on April 12, 2007, "enjoining, restraining, and ordering Steven C. Leisher and PGW to cease and desist, immediately, the use of any business name using the word "Potomac" or any business name confusingly similar to "Potomac Group" and further that Steven C. Leisher and PGW are permanently enjoined, restrained, and ordered not to use any business name using the word "Potomac" or any business name confusingly similar to "Potomac Group," (See attached Exhibit B) 17. Plaintiff believes and therefore avers that the transaction from PGW to LISG was merely a continuation of the original corporation PGW in order to comply with the order of court, or, alternatively, amounted to a consolidation, or was fraudulently entered into to escape liability. 18. Plaintiff believes and therefore avers that based on the facts established at deposition, LISG is in fact PGW. 19. Pennsylvania Rule of Civil Procedure 1033 provides that by leave of court a party may at any time change the form of action, correct the name of a party or amend his pleading. 20. Pennsylvania Rule of Civil Procedure 1033 further provides that the amended pleading may aver transactions or occurrences which have happened after the filing of the original pleading even though they give rise to a new cause of action. 21. Pennsylvania Rule of Civil Procedure 1033 further provides that an amendment may be made to conform the pleading to the evidence offered. 22. Pursuant to Pa.R.C.P. 1033, Plaintiff requests leave of Court to amend his Complaint to add Leisher Insurance Solutions Group, Inc., as a party Defendant. A copy of Plaintiffs proposed Amended Complaint is attached and marked Exhibit C. 23. Plaintiff gave notice of its intention to file the within Motion, and Defendant has not consented to the request for relief. 24. The Hon. M. L. Ebert, Jr., was previously assigned to hear other issues in this matter. WHEREFORE, Plaintiff, Steven S. Wevodau, respectfully requests your Honorable Court issue a Rule to Show Cause upon Defendant, Potomac Group West, Inc., to show cause why Leisher Insurance Solutions Group, Inc., should not be determined to be its successor in interest and joined as a party Defendant in this action and Plaintiff granted leave to file an Amended Complaint in the form attached. BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2220621 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Leave to Amend Complaint is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER LLC - By: Sean . Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff Date: % -7, b? California Business Search 30&?=Rsew DISCLAIMER: The information displayed here is current as of MAR 14, 2008 and is updated weekly. It is not a complete or certified record of the Corporation. THE POTOMAC GROUP WEST, INC. I Number: C1909469 Date Filed: 7/29/1997 Status: active ?l IJurisdiction: California II Address 1437 S HWY 101 SOLANA BEACH, CA 92075 11 I Agent for Service of Process II I STEVEN C LEISHER I 37 S HWY 101 11 SOLANA BEACH, CA 92075 11 Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered. Page 1 of 1 http://kepler.ss.ca.gov/corpdata/ShowAIlList?QueryCorpNumber=C1909469&printer=yes 3/20/2008 California Business Search DISCLAIMER: The information displayed here is current as of MAR 14, 2008 and is updated weekly. It is not a complete or certified record of the Corporation. I Corporation LEISHER INSURANCE SOLUTIONS GROUP, INC. Number: C2990889 Date Filed: 5/23/2007 Status: active IIJurisdiction: California II Address 1437 S HIGHWAY 101 ST E 403 11SOLANA BEACH, CA 92075 11 for Service of Process IIMARTY BENOWITZ II 11905 DIAMOND STE B II [SAN MARCOS, CA 92069 11 Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered. Page 1 of 1 http://kepler.ss.ca.gov/corpdata/ShowAIlList?QueryCorpNumber=C2990889&printer=yes 3/20/2008 Docket Date: 05/07/2007 Docket Number: 1636 Docket JUDGMENT (PARTIAL - CASE NOT CLOSED) Description : Docket Type: Docket JUDGMENT ENTERED AND RECORDED IN THE JUDGMENT ON 04/12/2007 IS HEREBY AMENDED AS FOLLOWS: JUDGMENT SHALL BE, AND HEREBY IS, ENTERED ENJOINING, RESTRAINING, AND ORDERING STEVEN C. LEISHER, AND PGW TO CEASE AND DESIST, IMMEDIATELY, THE USE OF ANY BUSINESS NAME USING THE Docket Text: WORD "POTOMAC" OR ANY BUSINESS NAME CONFUSINGLY SIMILAR TO "POTOMAC" GROUP" AND FURTHER THAT STEVEN C. LEISHER AND PGW ARE PERMANENTLY ENJOINED, RESTRAINED, AND ORDERED NOT TO USE ANY BUSINESS NAME USING THE WORD "POTOMAC" OR ANY BUSINESS'NAME CONFUSINGLY SIMILAR TO "POTOMAC GROUP." Docket Date: 05/07/2007 Docket Number: 1637 Docket Description: NOTICE, ENTRY OF JUDGMENT MAILED Docket Type: Docket Docket Text: NOTICE OF ENTRY OF JUDGMENT MAILED. i ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 V. POTOMAC GROUP WEST, INC., and LEISHER INSURANCE SOLUTIONS GROUP, INC., Its Successor in Interest 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 ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service of The Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717 249-3166 or 1-800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term V. POTOMAC GROUP WEST, INC., and LEISHER INSURANCE SOLUTIONS GROUP, INC., Its Successor in Interest Defendants AMENDED COMPLAINT Plaintiff, by and through his undersigned counsel, Barley Snyder LLC, files the following Amended Complaint against Defendants Potomac Group West, Inc., and Leisher Insurance Solutions Group, Inc., of which the following is a statement: Plaintiff, Steven S. Wevodau (hereinafter "Wevodau") is an adult individual who resides at 21 Bridgeport Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant Potomac Group West, Inc., (hereinafter "PGW") is a corporation organized and existing under the laws of California, with a principal place of business located at 437 South Highway 101, Suite 403, Solana Beach, California 92075. PGW has a registered agent for service of process of Steven C. Leisher, 437 S highway 101, Solana Beach, CA 92705. 3. Defendant Leisher Insurance Solutions Group, Inc., (hereinafter LISG) is a California corporation which has a registered office of 437 S. highway 101, St E-403, Solana Beach, California 92075. LISG has an agent for service of process of Marty Benowitz, 1905 Diamond Ste B, San Marcos, CA 92069. 4. Defendant LISG is the successor in interest of PGW. 5. Wevodau is a former employee of an entity known as The BISYS Group, Inc., a Delaware corporation which has headquarters in New York City, New York. 6. Wevodau is also a former independent contractor of The BISYS Group, Inc. 7. Wevodau is a former independent contractor for PGW. 8. On September 22, 2003, Wevodau and PGW (now LISG) entered into an Indemnification Agreement, which document specifically sets forth respective obligations of the parties to one another. A true and correct copy of the Indemnification Agreement is attached and made a part hereof as Exhibit "A." 9. The Indemnification Agreement memorializes the agreement of the parties and their obligations to one another, and valid consideration was received by both parties, thereby making the Indemnification Agreement a binding contract upon both parties. 10. Since approximately September 13, 2002 to the present, PGW has been involved as a plaintiff in a legal action that currently remains pending before the Circuit Court for Montgomery County, Maryland (hereinafter the "Maryland Action") at Case Identification No. 236402V, which legal action also involves The BISYS Group, Inc. as a defendant. 11. The Maryland Action has multiple plaintiffs and multiple defendants; although Wevodau is not a named party. 12. Wevodau has been involved in the Maryland Action as a third-party witness and has incurred Expenses (as that term is defined in the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees, for legal representation provided to him in connection with his involvement in the Maryland Action as a third-party witness. 2 13. In connection with the Maryland Action, Wevodau has incurred and continues to incur attorney's fees and expenses, for which PGW (now LISG) is obligated to pay on his behalf pursuant to the Indemnification Agreement. 14. Concerning the Maryland Action, Wevodau was initially represented by the law firm of McNees, Wallace & Nurick, LLC, of Harrisburg, Pennsylvania, but he has since transferred as of mid-2005 his legal representation regarding the Maryland Action to the law firm of Barley Snyder LLC, which firm is also his counsel in the matter now being presented through the within Complaint. 15. On or about October 15, 2003, Wevodau was named as a defendant in a legal action brought by The BISYS Group, Inc. against him before the United States District Court for the Southern District of New York at Docket No. 03-8846, which action was subsequently transferred to the United States District Court for the Middle District of Pennsylvania (Harrisburg) at Docket No. 1:CV-04-0964 (hereinafter the "Pennsylvania BISYS Action"). 16. In the Pennsylvania BISYS Action,Wevodau was initially represented by Martin I. Kaminsky, Esquire of the law firm of Pollack & Kaminsky of New York (while that case was pending in New York) and was subsequently represented by the law firm of McNees, Wallace & Nurick, LLC once the Pennsylvania BISYS Action was transferred to the Middle District of Pennsylvania. 17. The legal representation of Wevodau in the Pennsylvania BISYS Action has been transferred from McNees, Wallace & Nurick, LLC to Barley Snyder LLC and undersigned counsel to this Complaint. 3 18. The Pennsylvania BISYS Action was voluntarily dismissed on November 14, 2006, pursuant to F.R.C.P. 41 and a stipulation of the parties, subject to terms and conditions of a Stay and Tolling Agreement. See Exhibit B. 19. In connection with the Pennsylvania BISYS Action, Wevodau has incurred Expenses (as that term is defined the Indemnification Agreement attached as Exhibit A hereto), including but not limited to attorney's fees, and may incur Expenses in the future. 20. Wevodau has incurred and continues to incur attorney's fees and expenses in connection with bringing the claims stated in this Amended Complaint, which fees and expenses Wevodau is entitled to recover pursuant to the Indemnification Agreement upon prevailing in this matter. 21. At all times, Wevodau has fully complied with his obligations under the Indemnification Agreement and therefore is entitled to receive full performance by PGW and LISG of their obligations under the Indemnification Agreement. 22. Exclusive jurisdiction is conveyed upon this Honorable Court pursuant to Section Nine of the Indemnification Agreement, wherein it is stated that the "exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania." Count I - Breach of Contract Steven S. Wevodau V. Potomac Group West, Inc., and Leisher Insurance Solutions Group, Inc. 23. All preceding paragraphs of this Amended Complaint are incorporated herein with the same force and effect as if fully set forth at length. 4 24. Pursuant to the Indemnification Agreement, PGW, and its successor in interest, LISG, is responsible for payment of all attorney's fees and expenses incurred by Wevodau in connection with the Maryland Action. 25. Despite demand made by and/or on behalf of Wevodau upon PGW and LISG for payment of such attorney's fees and expenses in connection with the Maryland Action, PGW and LISG have refused and continue to refuse to make payment, and therefore PGW and LISG have breached their obligations under the Indemnification Agreement and continue to breach their obligations on an ongoing basis by also failing to make payment as these attorney's fees and expenses continue to accrue in connection with Wevodau's ongoing involvement in the Maryland Action. 26. Pursuant to the Indemnification Agreement, PGW, and its successor in interest, LISG, are responsible to pay for all Expenses (as that term is defined in the Indemnification Agreement) incurred by Wevodau in connection with the Pennsylvania BISYS Action, which is an "Action" as defined by the Indemnification Agreement. 27. Despite demand made by and/or on behalf of Wevodau upon PGW and LISG for payment for the Expenses incurred by Wevodau in connection with the Pennsylvania BISYS Action, PGW and LISG have refused and continue to refuse to pay, and PGW and LISG are therefore in breach of their obligations under the Indemnification Agreement. Further, Wevodau may incur expenses in the future on account of the Pennsylvania BISYS Action. 28. PGW and LISG have been duly advised of the transfer of legal representation from McNees, Wallace & Nurick, LLC to the law offices of Barley Snyder LLC with respect to both the Maryland Action and the Pennsylvania BISYS Action, however, PGW and LISG nevertheless have refused and continue to refuse to pay for any of the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have and continue to be incurred by Wevodau through the legal representation being provided by Barley Snyder LLC to Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action. 29. Demands have been made upon PGW and LISG for payments due under the Indemnification Agreement, which demands have had no effect and it is evident that PGW and LISG have no intention of making payment for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) that have already been incurred and that will continue to be incurred by Wevodau in connection with the ongoing matters of the Maryland Action and the Pennsylvania BISYS Action. 30. By not fulfilling their obligations under the Indemnification Agreement and paying for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) to or on behalf of Wevodau in connection with the Maryland Action and the Pennsylvania BISYS Action, PGW and LISG are in breach of the Indemnification Agreement and continue to breach their obligations on an ongoing basis as these amounts continue to be incurred and PGW and LISG continue their refusal to pay. 31. In connection with the legal representation provided by McNees, Wallace & Nurick, LLC to Wevodau regarding the Maryland Action and the Pennsylvania BISYS Action, payment from PGW and LISG is still due in the principal amount of $44,509.54. A breakdown of fees and expenses paid by Wevodau that have wrongfully been withheld by PGW is attached hereto, marked as Exhibit "C", and incorporated herein. 6 32. In connection with legal representation provided to Wevodau by Martin Kaminsky, Esquire of New York, during such time as the Pennsylvania BISYS Action was pending in New York, PGW and LISG are obligated under the Indemnification Agreement to pay any fees and expenses that may remain due and owing to Mr. Kaminsky, which amount is unknown at the time this Amended Complaint is filed. 33. In connection with legal representation provided thus far to Wevodau by Barley Snyder LLC with respect to the Maryland Action and the Pennsylvania BISYS Action, payment is due from PGW and LISG as of March 24, 2008 in the amount of $9,087.75, which amount continues to accrue as legal representation continues to be provided to Wevodau. 34. Because PGW and LISG have failed to perform their obligations under the Indemnification Agreement, Wevodau has been compelled to bring the within legal action against PGW and LISG to obtain full and complete performance by them and, upon prevailing in the within action, Wevodau is entitled to recover all fees, including but not limited to attorney's fees, costs, expenses, and any other relief reasonably incurred in bringing and prosecuting the within action. See Section Three of Exhibit A hereto. 35. The amounts in controversy in the within matter exceed the compulsory arbitration threshold in Cumberland County, Pennsylvania of $25,000. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant Potomac Group West, Inc. for: (a) The amount of $48,492.04 for attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) through September 30, 2005; (b) All amounts due to Martin Kaminsky, Esquire for legal services and fees incurred regarding legal representative of Wevodau in the Pennsylvania BISYS Action; 7 (c) The presently unliquidated amount of attorney's fees, expenses, and Expenses that will be incurred by Plaintiff from September 30, 2005 forward through the time of judgment as the Maryland Action and Pennsylvania BISYS Action continue to remain active; (d) Attorney's fees, costs, and expenses, and such other relief that may be deemed appropriate by this Honorable Court incurred by Plaintiff in pursuing the within action stated in this Complaint; and (e) Interest on all of the foregoing at the applicable Pennsylvania statutory rate. Count II - For Declaratory Judgment Pursuant to 42 PA. C.S.A. § 7531, et seq. Steven S. Wevodau V. Potomac Group West, Inc., and Leisher Insurance Solutions Group, Inc. 36. All preceding paragraphs of this Complaint are incorporated herein with the same force and effect as if fully set forth at length. 37. Wevodau is harmed by the continuing failure of PGW and its successor in interest, LISG, to fulfill its obligations under the Indemnification Agreement and evident wrongful assertion by them, through their inaction and refusal to indemnify or otherwise pay pursuant to the Indemnification Agreement, that they are not obligated to indemnify or otherwise pay Wevodau for the attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur relative to the Maryland Action, Pennsylvania BISYS Action, or any other events and circumstances that fall within the scope of the Indemnification Agreement. 38. The Declaratory Judgment Act (42 Pa. C.S.A. § 7531, et seq.) provides that where an actual or justifiable controversy exists or is imminent between the parties, the court possesses 8 the power to declare the rights, status, and legal relations of the parties involved if so doing will terminate the controversy or remove an uncertainty. 39. This case presents an actual and justifiable controversy between Wevodau and PGW, and its successor in interest, LISG, concerning their obligations under the Indemnification Agreement, Wevodau's entitlement to receive the benefits thereof, the obligation of PGW, and its successor in interest, LISG, to indemnify or otherwise reimburse Wevodau for the amounts set forth under Count I of this Complaint, and the obligation of PGW and LISG to continue to indemnify or otherwise reimburse Wevodau for any and all attorney's fees, expenses and Expenses (as defined in the Indemnification Agreement) in connection with the Maryland Action and Pennsylvania BISYS Action until those matters are fully and finally concluded through their respective courts and any appellate practice. WHEREFORE, Plaintiff demands this Honorable Court enter declaratory judgment as follows: (a) That the Indemnification Agreement attached as Exhibit A to this Complaint is a valid and binding contract between Wevodau and PGW and LISG; (b) That PGW and LISG are obligated to and must pay to Wevodau all amounts claimed by Plaintiff under Count I of this Complaint; (c) That, pursuant to the Indemnification Agreement, PGW and LISG must now act and continue to act to indemnify or otherwise fully and timely reimburse Wevodau for all attorney's fees, expenses, and Expenses (as defined in the Indemnification Agreement) he has incurred and will continue to incur in connection with the Maryland Action and Pennsylvania BISYS Action until both of those matters are fully and finally concluded before their respective courts and through any appellate practice; and (d) That PGW and LISG must abide by all other obligations as set forth in the Indemnification Agreement and that the failure to do so could result in the imposition of sanctions, civil fines, and/or punitive damages at the discretion of this Honorable Court. 9 BARLEY SNYDER LLC i By. Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 2220830 10 VERIFICATION 1. Steven S. WevtvJau, the within Plaintiff, hereby Vcxlfv that the facts set forth in the foregoing Amended 4::at laint are true and correct to the best of my knowledge. information and ntt helwt: 1 understand that fal.°e iutements herein are made subject to the penalties of 18 11a.GS, A. §40(14 relating; to uns%kom f tisitic<ation to authorities. t Steven S. Wevod EXHIBIT A , J! . . .. t.l l INDEMNIFICATION AGREEMENT This indemnification agreement ("Agreement"), made September ZZ, 2003, is between Potomac Group West, Inc., a corporation organized and existing under the laws of California, with its principal office located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075 (the "Corporation"), and Steven S. Wevodau, of 105 Lavynndon Lane, Mechanicsburg, PA 17055 ("Wevodau"). RECITALS A. The Corporation requires the expertise of Steven S. Wevodau to assist them in resolving certain accounting issues involving compensation due and owing the Corporation as a result of a Sales Representative Agreement dated October 1, 1997. B. Wevodau formerly served BISYS Insurance Services, Inc. ("BISYS'") as its financial officer. C. Wevodau has certain information that may be relevant to issues involved and /or discoverable in the litigation; and/or, relates to BISYS (the "Information"). D. This agreement is intended to serve as protection for Wevodau from any claim against him by anyone, including but not limited to BISYS, arising from his providing or disclosing Information, including but not limited to a claim arising from his former employment by or employment agreement with BISYS, or otherwise. E. The Corporation has agreed to indemnify Wevodau against damages, fines, fees, expenses and costs incurred by Wevodau in connection with any claims, actions, suits or proceedings, arising from his providing or disclosing Information. Now, therefore, the Corporation and Wevodau, intending to be legally bound hereby, agree as follows: SECTION ONE. DEFINITIONS A. "Expenses" shall mean any and all expenses (including but not limited to attorneys' fees, experts' fees, travel and lodging expenses), costs, judgments, damages, exemplary damages, punitive damages, fines, or amounts paid in settlement, that are actually and reasonably incurred by or on behalf of Wevodau in connection with any Action. B. "Action" shall mean any claim, action or suit, whether brought by BISYS or anyone else, and whether sounding in contract, negligence, intentional tort, breach of fiduciary duty, or otherwise, and any proceeding, administrative or investigative, with respect to which Wevodau is named that arises in whole or in part by reason of the production or disclosure by Wevodau of Information, including but not limited to information regarding the accounting procedures utilized by BISYS. SECTION TWO. INDEMNITY A. The Corporation shall hold harmless, defend, and indemnify Wevodau in any Action and against any and all Expenses related to such Action. B. The Corporation shall pay on behalf of Wevodau the amount of attorney's fees and expenses he has incurred and will incur for his representation in connection with his deposition(s) and other involvement in the litigation; and, the negotiation, drafting, and execution of this Agreement. By undertaking this obligation, the Corporation will not thereby become a client of the attorneys providing such representation to Wevodau. SECTION THREE. NOTICE TO CORPORATION The Corporation shall perform its obligations under this Agreement on receipt of written demand for such performance from Wevodau, and, if the Corporation fails to perform its obligations under this Agreement on demand, Wevodau may then at any time bring legal action against the Corporation to obtain full and complete performance of its obligations under this Agreement. In any such action brought by Wevodau to enforce this Agreement, if he prevails in whole or in part he shall be entitled, in addition any other relief, also to recover the fees (including but not limited to attorneys' fees), costs and expenses he reasonably incurs in bridging and prosecuting such an action. In any action brought by Wevodau to enforce this Agreement, on a showing by Wevodau that he has been named in any Action, there shall be a presumption that Wevodau is entitled to defense and indemnification, and to the advancement of costs and expenses from the Corporation in respect to defense and indemnification. SECTION FOUR. CONTROL OF DEFENSE A. If Wevodau is named in an Action that has given rise to, or may give rise to, a right to defense and indemnification under Section Two of this agreement, or a right to advancement of costs and expenses under Section Six of this agreement, and provided that the Action is not made or threatened in the name or on behalf of the Corporation and there is no other conflict of interest between the Corporation and Wevodau with respect to the Action, then: (1) the Corporation shall have the right to participate, at its own cost and expense, in the investigation, defense or other contest of the Action; and (2) the Corporation -2- r shall have the right to elect to assume the defense of the Action on behalf of Wevodau (if applicable, jointly with any third party who may have an obligation to defend Wevodau with respect to the Action). B. If a conflict of interest of the type described in paragraph A of this section should develop, Wevodau shall control the defense of any Action against him that may give rise to a right of defense and indemnification under this Agreement, subject to the following: the defense shall be conducted by experienced and able counsel selected by Wevodau, which selection shall be subject to the approval of the Corporation, which approval shall not be unreasonably withheld and should Wevodau select McNees Wallace & Nurick LLC as such counsel, the Corporation hereby gives its approval; furthermore, in the event of an actual conflict of interest between Wevodau and the Corporation separate counsel will be used by Wevodau in the same Action only to the extent necessary, in the reasonable opinion of Wevodau after consulting with the Corporation regarding the selection of counsel and determination of reasonable attorney fees to be charged. C. If the Corporation should elect to assume the defense of an Action on behalf of Wevodau, as provided in paragraph A of this section, then: (1) the Corporation shall give Wevodau prompt written notice of the election; (2) the Corporation shall be obligated to defend the Action in good faith and in a manner consistent with the best interests of Wevodau; (3) provided that the Corporation defends the Action in good faith and in a manner consistent with the best interests of Wevodau and no conflict of interest develops between the Corporation and Wevodau with respect to the Action, the Corporation shall not be liable for any fees (including attorneys' fees),costs or expenses (except expenses for Wevodau's own travel and lodging due to such Action) incurred by Wevodau in connection with defending or otherwise contesting the Action after Wevodau has received written notice of the election; and (4) the Corporation shall not settle or compromise the Action on any basis or in any manner that would impose any liability, obligation, limitation, admission or restriction of any kind on Wevodau without his express written consent. D. If the Corporation should reasonably request attendance at trial in any Action or litigation, either under this Agreement, or otherwise, Wevodau hereby promises to appear at trial or at any hearing upon reasonable request by the Corporation. Wevodau's actual travel costs, expenses and lodging shall be reimbursed by the Corporation within 10 days of request in writing with supporting documentation for any out of state attendance at trial or otherwise. In the event that travel costs are expected to exceed $500, upon written request by Wevodau to Corporation reasonable expenses will be advanced and Wevodau will within 10 days of incurring the expense provide receipts for all travel cost expenditures to Corporation. SECTION FIVE. ADVANCEMENT OF EXPENSES On written request to the Corporation by Wevodau, the Corporation shall advance to Wevodau amounts of money sufficient to cover Expenses in advance of the final disbursement of them, on receipt of (1) an undertaking by or on behalf of Wevodau to repay such amount(s) if it shall ultimately be determined by final judgment of a court of competent jurisdiction that Wevodau is not entitled to have such Expenses paid by the Corporation under this Agreement (except that in any event Wevodau shall not be obliged to repay any amounts advanced for Expenses after the - 3 - Corporation has elected to assume the defense of an Action under Section Four, above); and (2) satisfactory evidence as to the amount of such Expenses. Wevodau's written certification, together with a copy of the statement paid or to be paid by Wevodau, shall constitute such satisfactory evidence, absent manifest error. SECTION SIX. NONEXCLUSIVITY The rights of Wevodau under this Agreement shall not be deemed exclusive of, or in limitation of, any rights to which Wevodau may be entitled under applicable law. SECTION SEVEN. SUCCESSORS AND ASSIGNS The rights of Wevodau under this Agreement shall inure to the benefit of Wevodau, his personal representatives, heirs, executors, administrators and beneficiaries, and this Agreement shall be binding on the Corporation, its successors and assigns. SECTION EIGHT. SEVERABILITY To the extent permitted by applicable law, the parties by this Agreement waive any provision of law that renders any provision in this Agreement unenforceable in any respect. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited by or invalid under applicable law, such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions shall remain in full force and effect. SECTION NINE. GOVERNING LAW, VENUE, AND JURISDICTION. Pennsylvania is the place of the making of this Agreement. Pennsylvania's conflict of law rules applies to this Agreement. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, excepting only the obligations of the Corporation to indemnify Wevodau for intentional torts, and exemplary or punitive damages, which obligations shall be governed by the laws of California. The exclusive venue for any action or dispute arising from this Agreement shall be the Court of Common Pleas of Cumberland County, Pennsylvania (the "Court"). Wevodau and the Corporation each hereby voluntarily submit and consent to the personal jurisdiction of this Court with respect to any action or dispute arising from this Agreement. -4- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LEISHER PRESIDENT STEVEN S. WEVODAU STEVEN S. DAU Dated: Dated: i q - o -5- SECTION TEN. ADDRESS Any notice, demand or other communication to the Corporation under this Agreement may be addressed to the Corporation at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, to the attention of its corporate secretary. Any notice, demand or other communication to Wevodau under this Agreement may be addressed to Steven S. Wevodau at 105 Lavynndon Lane, Mechanicsburg, PA 17055. SECTION ELEVEN. COUNTERPARTS This Agreement may be executed in counterparts each of which shall be part of one original. Each party to this Agreement, intending to be legally bound hereby, has caused it to be executed on the date indicated below. POTOMAC GROUP WEST, INC. By: STEVEN C. LE HER PRESIDENT Dated: V?ZC-.3 STEVEN S. WEVODAU STEVEN S. WEVODAU Dated: -5- EXHIBIT B IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA THE BISYS GROUP, INC., Plaintiff V. STEVEN WEVODAU, Defendant Case No. 1:04-CV-00964 Judge Caldwell Filed Electronically NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 41 Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, Plaintiff Bisys Group, Inc. and Defendant Steven Wevodau hereby stipulate to the dismissal of all claims in the above action, without prejudice, and subject to the terms and conditions of a Stay and Tolling Agreement, a copy of which is attached hereto as Exhibit "A." Respectfully submitted, BARLEY SNYDER, LLC Respectfully submitted, RHOADS & SINON LLP By: /s/ Sean Summers Sean Summers, Esquire 100 East Market Street P.O. Box 15012 York, PA 17405-7012 (717) 846-8888 ssummers@barley.com Attorneys for Defendant By: /s/ Robert J. Tribeck Robert J. Tribeck, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 rtribeck@rhoads-sinon.com Attorneys for Plaintiff 629644.1 STAY AND TOLLING AGREEMENT CONCERNING RIGHT OF STEVEN WEVODAU TO RAISE THE DEFENSES OF STATUTE OF LIMITATIONS, LACHES, OR OTHER SIMILAR DEFENSES This Agreement dated October 31, 2006 is by and between The Bisys Group, Inc. (`Bisys") and Steven Wevodau ("Wevodau").. Whereas, Bisys instituted an action against Wevodau in November 2003 in the Supreme Court of the State of New York, which was subsequently removed to the United States District Court for the Southern District of New York, and ultimately transferred to the United States District Court for the Middle District of Pennsylvania, known as The Bisys Group, Inc. v. Steven Wevodau, Case No.. 1:04-CV-00964 (the "Action"); Whereas, the Action has been stayed since August 25, 2004 by the Court as a result of an action pending in the State of Maryland, known as Steven Leisher et al. v. The BISYS Group, Inc. et al., Case No. 236402-V (Judge Durke Thompson), Circuit Court for Montgomery County, Maryland (the "Maryland Action'). Whereas, the Action was administratively stayed until such time as the Maryland Action was concluded; Whereas, trial in the Maryland Action has been continued on numerous occasions, and is currently scheduled for January 2007; Whereas, the Court in the Action is not agreeable to a further extension of a stay of the Action; Whereas, the parties have agreed that the Action would be voluntarily dismissed, without prejudice, and that they would enter this Stay and Tolling Agreement as set out herein below. Now, therefore, in consideration of the undertakings by the Parties hereto as set out herein below and for other good and valuable consideration, the receipt and sufficiency ofwhich is hereby 6032773 acknowledged, and intending to be legally bound, the Parties do hereby agree and contract as follows: The recitals listed above are incorporated herein by reference. Tolling Provisions. In the event that Bisys shall hereafter institute a new action against Wevodau, Wevodau promises and agrees that he will not and cannot raise or plead the statute of limitations, laches, status of repose, or some other similar defenses in defense to any claims advanced by Bisys which were previously raised in the Action, and that, for purposes of determining the date such new action was instituted, the parties understand and agree that November 7, 200.3, the date on which the Action was originally instituted, shall be treated as the applicable initiation date for such new action; provided, however, that Wevodau may interpose any such defense to the extent such defense existed on November 7, 2001 3.. Termination Date. This Agreement and all tolling pursuant to it shall end upon the earlier of the two following events: a.. Thirty (30) days after final resolution of the Maryland Action, including all appeals therefrom, it being the obligation of the terminating party to notify the remaining Party of the fact and date of termination, or b. (one-hundred and twenty (120) days after notice by either party, which notice shall not occur prior to conclusion of the trial in the Maryland Action. 4.. No Revival. Nothing in this Agreement shall be construed to revive any claim that was already barred prior to execution of this Agreement. No Admissions. Nothing in this Agreement shall be construed as an admission by any party that a claim does in fact or law exist in favor of any Party hereto against any other Party. 6. Intemmation Clause. No modification or amendment which affects any provision of this Agreement may be made except in a writing which is executed by all Parties_ 7_ Contact Information. The contact information for each Party is as follows and if used by fax or overnight delivery service is agreed to be effective notice: a.. For Bisys: Steven J. Kyono Executive Vice President, General Counsel & Secretary The BISYS Group, Inc. 105 Eisenhower Parkway Roseland, New Jersey 07068 b. For Wevodau Sean Summers, Esquire Barley Snyder 126 East King Street Lancaster, PA 17602 8.. Warranty of Authority. The signatories to this Agreement individually warrant that each of them has the necessary authority to bind their principals. 9. Counterparts. This Agreement may be executed in counterparts each of which will be considered an original and together shall constitute an Agreement.. I 0. Construction. This Agreement shall be construed in accordance with the law of the Commonwealth of Pennsylvania. THE BISYS 1GROUP, INC. STEVEN WEVODAU By: S V By: Date: 1 0 .61. I'D rA Date: EXHIBIT C FEES DUE TO AND PAID TO McNEES, WALLACE & NURICK, LLC Fees Due to McNees, Wallace & Nurick, LLC as of 5/05 $8,047.91 Expense Payment to Filius & McLucas (Stenographic Reporting Services) $961.63 Payments made to McNees, Wallace & Nurick, LLC: June 2003 $3,000.00 August 2003 $1,500.00 October 2003 $5,000.00 September 2004 $10,000.00 May 2005 16? ,000.00 Total Amounts Owed to Wevodau for payments made to $44,509.54 McNees, Wallace & Nurick, LLC 1491392.1 .? co STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. POTAMAC GROUP WEST, INC.,: DEFENDANT NO. 05-5393 CIVIL ORDER OF COURT AND NOW, this 11th day of April, 2008, upon consideration of the Plaintiff's Motion for Determination of Successor Liability and for Leave of Court to Amend Complaint, IT IS HEREBY ORDEREED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer on or before May 2, 2008; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing and/or argument will then be scheduled. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, ?Sean E. Summers, Esquire /Attorney for Plaintiff ? Thomas J. Weber, Esquire Donald H. Blumberg, Esquire Attorney for Defendants ?\t M. L. Ebert, Jr., J. V1+?4 V -M, 4i ?d Z 0 M Wd 118da ODOZ AbYlQNO )il d 3HI 10 3300-031H Thomas J. Weber, Esquire I.D. #58853 Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Ronald H. Blumberg, Esq. CA Bar No. 130557 Blumberg Dagan LLP 137 N. Acacia Ave. Solana Beach, CA 92075 (858) 509-0600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR DETERMINATION OF SUCCESSOR LIABILITY AND LEAVE OF COURT TO AMEND COMPLAINT Defendant, Potomac Group West, Inc., ("PGW") by and through its undersigned counsel, Blumberg Dagan LLP and Goldberg Katzman, P.C., files the following Response to Plaintiff s Motion styled "Motion for Determination of Successor Liability for Leave of Court to Amend Complaint," and in opposition thereto, asserts the following: 1. Plaintiff, Steven S. Wevodau ("Wevodau") initiated this action by Complaint filed on or about October 17, 2005. 2. Defendant PGW filed an Answer with Affirmative Defenses and a Cross- Complaint on or about November 21, 2005, and filed an Amended Answer with Affirmative Defenses and an Amended Cross-Complaint on or about February 2, 2006. 3. Plaintiff filed a Reply to Defendant's New Matter and an Answer to the Cross-Complaint with New Matter on or about May 1, 2006, to which Defendant filed a Reply on or about May 23, 2006. 4. Defendant PGW is a corporation organized and existing under the laws of the state of California, with a principle place of business located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075. PGW has a registered agent for service of process; Steven C. Leisher, 437 S Highway 101, Solana Beach, CA 92705. 5. As Plaintiff acknowledged in his Motion, PGW is an active corporation. Plaintiff's Motion, X15, Exhibit A. 6. Leisher Insurance Solutions Group, Inc. ("LISG"), is a corporation organized and existing under the laws of the state of California, with a principle place of business located at 437 South Highway 101, Suite 212, Solana Beach, CA 92075. LISG has a registered agent for service of process; Marty Benowitz, 1905 Diamond Ste B, San Marcos, CA 92069. 7. PGW and LISG are separate and distinct independent corporations. (See Exhibit 1, Declaration of Ronald H. Blumberg.) 8. Lights Out International LLC ("Lights Out"), is a limited liability company organized and existing under the laws of the Federation of Saint Kitts and Nevis, with a principal place of business located, on information and belief, in Nevis, British Virgin Islands. 9. By virtue of Plaintiff's Motion, styled "Motion for Determination of Successor Liability for Leave of Court to Amend Complaint" and his attached proposed "Amended Complaint," Plaintiff alleges that LISG is the successor in interest of PGW. 2 I. LISG Did Not Expressly or Impliedly Agree to Assume PGW's Liabilities 10. LISG and PGW are separate independent corporations. 11. LISG has not had any contractual dealings with Plaintiff and is not a party to the contract upon which. Plaintiff bases his cause of action. 12. On or about November 15, 2007, LISG purchased some hard assets of PGW ("the Asset Transfer") including the desks, computers, conference room furnishings and all other hard assets located on the premisses at PGW's place of business, to wit, 437 South Highway 101, Suite 403, Solana Beach, CA 92075. 13. The Asset Transfer was memorialized in a Purchase Agreement ("the Asset Purchase Agreement"). 14. The Asset Purchase Agreement held that LISG agreed to pay PGW a sum of Seventy-Five Thousand Dollars (US $75,000.00) for the hard assets described above, subject to the liabilities indicated in the Asset Purchase Agreement and assumed by LISG. 15. The Asset Purchase Agreement expressly articulated the liabilities assumed by LISG through the Asset Transfer, specifically; "Liabilities being Assumed by LISG. LISG shall assume responsibility for all leasehold responsibilities arising under that certain real estate lease covering of the premises located at 437 South Highway 101, Suite 403, Solana Beach, CA 92075, Potomac shall take all such actions necessary to assign the leasehold rights to LISG and obtain the Landlord's consent to such assignment and assumption." 3 16. The Asset Transfer represents the sole transfer of assets from PGW to LISG. (See Exhibit 1, Declaration of Ronald H. Blumberg, ¶6) 17. LISG provided sufficient consideration to PGW for the hard assets purchased through the Asset Transfer, to wit, Seventy-Five Thousand Dollars (US $75,000.00.) (See Exhibit 1, Declaration of Ronald H. Blumberg, ¶7) II. Lights Out Purchased all of PGW's Pending Insurance Policies and Income Streams 18. On or about July 10, 2007 PGW's Board of Directors expressly resolved that PGW was terminating its business, that it had current cash needs for its outstanding obligations, and that it had received an offer to purchase its future income from renewals of existing policies. The Board further resolved to also sell PGW's income renewal rights ("the Resolution.") 19. The Resolution was memorialized in a Special Meeting Minutes of the Board of Directors. 20 On or about July 16, 2007, Lights Out purchased all remaining commission assets of PGW ("the Commissions Transfer"). 21 The Commissions Transfer was memorialized in a Purchase Agreement ("the Commissions Purchase Agreement"). 22 The Commissions Transfer included that Lights Out would pay PGW a sum of Three Hundred Fifty Thousand Dollars (US $350,000.00) for the potential renewal income stream from the polices in which PGW had a recurring interest. 4 23 The Commissions Transfer was amended on or about November 14, 2007, when PGW agreed to sell additional, remaining assets to Lights Out, to wit, all modal premiums then under contract, but not payed for premiums owning to PGW. Lights Out agreed to pay an additional Ninety-Nine Thousand Three Hundred Thirty Eight Dollars (US $99,338.00) to PGW for such assets. 24. The amendment to the Commissions Transfer was memorialized in a First Amendment to Purchase Agreement of July 16, 2007. 25. Lights Out provided sufficient consideration to PGW for the commissions streams purchased through the Commissions Transfer, to wit, a combined total of One Hundred Thirty-Four Thousand Three Hundred Thirty Eight Dollars (US $134,338.00) (See Exhibit 1, Declaration of Ronald H. Blumberg, 115.) III. LISG is a Separate and Distinct Corporate and Business Entity from PGW 26. As of May, 1, 2008, both PGW and LISG are separate and distinct, active corporate entities, organized and existing under the laws of the state of California. (See Exhibit 1, Declaration of Ronald H. Blumberg, 116) 27. As of May 1, 2008 the leasehold interest purchased by LISG from PGW through the Asset Transfer has expired, and LISG no longer occupies the place of business formally occupied by PGW. (See Exhibit 1, Declaration of Ronald H. Blumberg, ¶17) 28. The deposition of Karen Davis, current employee of LISG and former employee of PGW, was taken on or about February 21, 2008. 5 29. Ms. Davis testified that, while both entities are in the insurance industry, PGW and LISG were entirely different businesses. Specifically, Ms. Davis testified that PGW was primarily in the business of "Insurance Marketing," whereas PGW marketed high end insurance policies to other agents. LISG, on the other hand, is primarily in the business of "Life Settlements," whereby LISG brokers life insurance policies that are already in effect. (See Exhibit 1, Declaration of Ronald H. Blumberg, ¶19) 30 As fully described above, LISG is an independent corporation, separate and distinct from PGW. LISG purchased several "hard" assets from PGW and payed for such assets with adequate consideration. These "hard" assets were but a portion of PGW's total assets, several others of which were sold to Lights Out. 31 1) LISG only purchased a portion of PGW's assets; 2) LISG did not explicitly or implicitly agree to assume all of PGW's liabilities, whether contractual or in tort, when it purchased the hard asset; 3) the Asset Transfer did not amount to a consolidation or merger of PGW and LISG; 4) LISG is not a mere continuation of PGW; and 5) the Asset Transfer was not fraudulently entered into by PGW to escape liability for debts. Accordingly, LISG can not be deemed the successor in liability for Wevodau's claims against PGW. 32. Plaintiff's claim stems directly from a contract entered into between him and Defendant PGW. 33. LISG was not in existence at the time of the contract formation. 34. Any commonality in ownership between the two distinct corporations, PGW and LISG, is insufficient to transfer PGW's potential liability to LISG. 35. PGW is still in existence, a fact Plaintiff acknowledges in his Motion. 6 36. Plaintiff's contract, and therefore his claimed breach of contract, is with PGW, not with any other separate company. 37. Plaintiff's Motion is not an attempt to correct the mere misidentification of a party, but, instead, is an attempt to add an entirely new corporation to this litigation; a corporation with which Plaintiff has not had any dealings. 38. Plaintiff's apparent concern over the collectability of any potential judgment is legally insufficient to add a separate corporation as a defendant. 7 WHEREFORE, Defendant Potomac Group West, Inc., respectfully requests this Court deny Plaintiff's Motion. In the alternative, Defendant requests the scheduling of a hearing to establish a sufficient record before a separate corporation is added to this litigation. Respectfully submitted, GO D KATZMAN P.C. Date: May 2, 2008 Tho s J. We er, Esquire (ID. #58853) 320 Market Street P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 BLUMBERG DAGAN LLP Date: May 2, 2008 R nald H. Blumberg, Esquire (C 0557) 137 N. Acacia Avenue Solana Beach, CA 92075 (858) 509-0600 8 RECYCLED /` 1 Thorns J. weber, Esquire 1.D. 1l58853 Goldberg Kabman _ P.C, 320 Market Street P. O. Box 1268 HarrLsbum PA 17108-1268 (717) 234-4161 Ronald H, Alurnber& Esq. CA Bar No. 130557 glumbarg Dugan LLP 137 N. Acacia Ave, Solana Beach, CA 92075 (x58)509-0600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEV(ODAU Plaintiff V. POTOMAC GROUP WEST. INC., Defendant No. 05-5393 Civil Term CIVIL ACTION - LAW AND EQUITY DECLARATION OF RONALD H. BLUM13ERG IN SUPPORT OF OPPOSITION TO MOTION FOR DETERMINATION OF SUCCESSOR LIABILITY I, Ronald H. Blmberg, if called upon to testify as a witness, would and could competently do so of my own personal knowledge and do now declare as follows: 1. I am an attorney duly licensed to practice law before all courts of the State orneys of record for of California and am a partner in the firm Blumberg Dag an LLP, att Defendant, Potomac Group West, Inc.("PGW '), in this action. In addition, I am currently the general counsel and the Chief Operating Officer of Leisher Insurance Solutions Group, Inc. (" LISG"). I make this declaration in support of the Opposition to Plaintiff, Steven S. Wevodau's ("Wevodau"), Motion for Determination of Successor Liability. 2. I ann, the general counsel and the Chief Operating Officer of Leisher Insurance Solutions Group, Inc. ("LISG" ). 3. I have been. involved in PGW's business dealings since 2004, as both litigation and general counsel. 4. On or about November 15, 2007, LISG purchased several hard assets of PGW ("the Asset Transfer") including the desks; compiitev;, conference room furnishings and all other hard assets located on the premisses at PGW's place of business, to wit, 437 South Highway 101, Suite 403, Solana Beach, CA 92075. 5. Tlie Asset Transfer was memorialized in a Purchase Agreement. 6. The Asset Transfer represents the sole transfer of assets from PGW to LISG. 7. LISG provided sufficient consideration to PGW for the hard assets purchased through the Asset Transfer, to wit, Seventy-Five Thousand Dollars (US $75,000.00.) $. On or about July 10, 2007 PGW's Board of Directors expressly resolved that PGW was terminating its business, that it had current cash needs for its outstanding obligations, and that it had received an offer to purchase its future income from renewals of existing policies. Tlie Board further resolved to also sell PGW's income renewal rights ("the Resolution.") 9. The Resolution was memorialized in a Special Meeting Minutes of the Board of Directors. 10. On or about July 16, 2007, Lights Out International LLC ("Lights Out") purchased remaining assets of PGW ("the Commissions Transfer") including the potential renewal income stream from the polices in which. FU W had a recurring interest. 11. The Commissions Transfer was mcinurialized in a Purchase Agreemcnt ("thc Commissions Purchase Agreement"). 12. The Commissions Transfer included held that Lights Out would pay PGW a sum of Three Hundred Fifty Thousand Dollars (US $350,000.00) for the potential renewal income stream firora the polices in which PGW had a recurring interest. 13. The Commissions Transfer was amended on or about November 14, 2007, when PGW agreed to sell additional, remaining assets to Lights Out, to wit, all modal premiums then under contract, but not payed for premiums owning to PGW. Lights Out agreed. to pay an additional Ninety-Nine Thousand Three Hundred Thirty Eight Dollars (US $99,338.00) to PGW for such assets- 14. The armendmenL to the Commissions TA'ansfes was me noriahzed in a First Amendment to Purchase Agreement of July 16, 2007. 15_ i was involved in these various transactions and am comfortable that Lights Out provided sufficient consideration to PGW for the commissions streams purchased through the Commissions Transfer, to wit, a combined total of One Hundred Thirty-Four Thousand Three Hundred Thirty Eight Dollars (US $134,338.00). 16. As of May 1,2008, both PGW and LISG are separate and distinct, active corporate entities, organized and existing under the laws of the state of California. 17. As of May 1, 2008 the leasehold interest purchased by LISG from PGW through the Asset Transfer has expired, and LISG no longer occupies the physical place of business formally occupied by PGW. LISG has moved its operations to a new location. 18. The deposition of Karen Davis was taken. on by Plaintiff's counsel on or about February 21, 2005. I ivas present at her deposition. During the coursc of hc-r deposition, Ms_ Davis testified that, while both entities are in the insurance industry, PGW and LISG where entirely different businesses. Specifically, Ms. Davis testified that PGW was primarily in the business of "Insurance Marketing," where by PGW marketed high end insurance policies to other agents. LISG, on the other hand, was in the business of "Life Settlements, " where by LISG primarily brokers life insurance policies that are already in effect 19. LISG is an independent corporation, separate and distinct .from PGW. LISG purchased several "hard" assets from PGW and payed for such assets with adequate consideration. Those "hard" assets were but a portion of PGW's total assets, several others of which were sold to Lights Out. Lastly, PGW was primarily in the business of "Insurance Marketing," while LISG is primarily in the business of "Life Settlements." I declare under penalty of perjury under the laws of the State of Pennsylvania that the foregoing is true and correct and that this declaration was executed at Solana Beach, California. Dated: May 1.2008 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Sean E. Summers, Esq. Barley, Snyder, Senft & Cohen, LLC 100 East Market Street P.O. Box 15012 York, PA 17401 GOLDBERG KATZMAN, P.C. BY: omas J. eber, Esq. Date: May 2, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil "Term Judge M. L. Ebert, Jr. V. POTOMAC GROUP WEST, INC. Defendant MOTION FOR SUMMARY JUDGMENT OF STEVEN S. WEVODAU Plaintiff, Steven S. Wevodau, by and through his undersigned counsel, Barley Snyder LLC, respectfully moves this Honorable court for summary judgment in his favor and against Defendant Potomac Group, West, Inc., and its successor in interest, Leisher Insurance Solutions, Inc., as to Count I of its Complaint and Amended Complaint, Breach of Contract, and as to Count II of its Complaint and Amended Complaint, for Declaratory Judgment. Further, Plaintiff moves for summary judgment in his favor and against Potomac Group West, Inc., and its successor in interest, Leisher Insurance Solutions, Inc., on the Counter-Claim for Fraud filed by Potomac Group West, Inc., and its First Cause of Action, for Fraud. Plaintiff makes this motion pursuant to Pa. R.C.P. 1035.1 and C.C.R.P. 1035.2(a). 1 By Order of Court dated December 3, 2007, dispositive motions are scheduled for argument in this matter on July 9, 2008, and Plaintiff will file a brief and appendix in support of the within Motion on before June 27, 2008. BARLEY SNYDER L By: Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff/ Counterclaim Defendant Steven S. Wevodau 2263388 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Summary Judgment is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 BARLEY SNYDER By: P.O. Box 15012 York, PA 17405-7012 717.846.8888 Date: May 6, 2008 Court I.D. 92141 100 East Market Street G q J W PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) STEVEN S. WEVODAU VS. P6TOMAC GROUP WEST, INC. No. 05-5393 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summary Judgment of Steven S. Wevodau 2. Identify all counsel who will argue cases: (a) for plaintiffs: Sean E. Summers, PO Box-`06_f t; York, PA 17405 (Name and Address) Thomas J. Weber, PO Box 1268, Harrisburg, PA 17108 (b) for defendants: Ronald H ?Amfae 137 N Acacia Ave., Solana Beach, CA 92075 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: S Sean E. Summers Print your name Steven S. Wevodau Attorney for Date: May 6, 2008 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted.. pn r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN S. WEVODAU, Plaintiff No. 05-5393 Civil Term Judge M. L. Ebert, Jr. V. POTOMAC GROUP WEST, INC. Defendant PRAECIPE TO REMOVE FROM ARGUMENT LIST To the Prothonotary: Please remove the above captioned case from the argument list for May 28, 2008. BARLEY SNYDER LLC 2270892 By: Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff/ Counterclaim Defendant Steven S. Wevodau I v CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Praecipe is this day being served on counsel of record by first class mail, postage prepaid, at York, Pennsylvania, addressed as follows: Ronald H. Blumberg, Esq. Blumberg Dagan LLP 137 N. Acacia Avenue Solana Beach, CA 92075 Thomas J. Weber, Esq. Goldberg Katzman, P.C. 320 Market Street P. O. Box 1268 Harrisburg, PA 17018-1268 By: BARLEY SNYDER Sean E. Summers Court I.D. 92141 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Date: May 12, 2008 IF) 4 i clr'5 -< PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ----------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) STEVEN S. WEVODAU vs. POTOMAC GROUP WEST, INC. No. 05-5393 C i v i, I Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Summar?• ludgmen+ of Steypn S Weyodau 2. Identify all counsel who will argue cases: (a) for plaintiffs: Sean E. Summers, P.O. Box 15012, York, PA 17405 (Name and Address) Thomas J Weber. P 0 Box 1268. Harrisburg PA 17108 (b) for defendants. Ronald H. Blumberg, 137 N Acacia Ave., Solana Beach, CA 92075 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Sig Sean E. Summers Print your name Steven S. Wevodau Date: May 20, 2008 Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. POTAMAC GROUP WEST, INC., : DEFENDANT : NO. 05-5393 CIVIL ORDER OF COURT AND NOW, this 21St day of May, 2008, upon consideration of Plaintiff's Motion for Determination of Successor Liability and for Leave of Court to Amend Complaint and the Defendant's Response thereto, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff's Motion is DENIED. Sean E. Summers, Esquire Attorney for Plaintiff Thomas J. Weber, Esquire Attorney for Defendants bas cop, i LeL spa ??o? By the Court, M. L. Ebert, Jr., STEVEN S. WEVODAU, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : POTAMAC GROUP WEST, INC., : DEFENDANT : NO. 05-5393 CIVIL IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT J. ORDER OF COURT AND NOW, this 10th day of July, 2008, upon consideration of Plaintiff's Motion for Summary Judgment, after review of the briefs filed and after argument, IT IS HEREBY ORDERED AND DIRECTED that the Plaintiff's Motion for Summary Judgment is DENIED. By the Court, r% -t ??? M. L. Ebert, Jr., J. Sean E. Summers, Esquire - Attorney for Plaintiff Thomas J. Weber, Esquire - 7-1D _ 0 Ronald H. Blumberg, Esquire- Attorneys for Defendant bas Z E :8 RV 01 IT BDOZ AbVjW,?:-i?udd 3U AO