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Home My WebLink About01-3692WALTER N. HEINE ASSOCIATES, INC., Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA MON VIEW MINING CORPORATION, Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 WALTER N. HEINE ASSOCIATES, INC., Plaintiff MON VIEW MINING CORPORATION, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : :NO. 01- ..~. ~,~ COMPLAINT 1. Plaintiff, Walter N. Heine Associates, Incorporated, is a Pennsylvania Corporation with a registered address of 144 South Hanover Street, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Defendant, Mon View Mining Corporation, is presumably a Pennsylvania Corporation with an address of 5311 Progress Boulevard, Bethel Park, Allegheny County, Pennsylvania, 15102. 3. At all times relevant hereto Plaintiff, Walter N. Heine Associates, Incorporated, was in the business of providing professional engineering services to the Defendant and other similarly situated businesses. 4. From 1999 to the present, the Defendant, Mon View Mining Corporation, did utilize the services of Walter N. Heine Associates, Incorporated for the purpose of obtaining a Silt Injection Permit for its coal processing plant from the Pennsylvania Department of Environmental Protection. 5. On or about December 20, 2000, Defendant paid Plaintiff's invoices for services provided through August 17, 2000. 6. Plaintiff continued to work on Defendant's project, obtaining a Silt Injection Permit dated Mamh 8, 2001. 7. Since August 18, 2000, Plaintiff did extend credit to the Defendant for the engineering services provided in the amount of $7,604.92, with interest accruing at the rate of 1.5% per month for all balances outstanding more than thirty (30) days, totaling $314.45, for a total balance due Plaintiff of $7,919.37. The invoices are attached and made a part hereof as Exhibit A. 8. Despite repeated demands, the above sum has remained unpaid as of the date of this Complaint. WHEREFORE, for all the above reasons, the Plaintiff, Walter N. Heine Associates, Incorporated, respectfully requests judgment in its favor in the amount of $7,919.37 plus interest through the date of trial and cost of suit. Respectfully Submitted TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff WMTEi N. HEINE i$$OCI, TE$ IN(:. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 March 16, 2001 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 #99.01.02 - Silt Injection Outstanding invoices as listed below: Statement of 9/22/00 Statement of 10/20/00 Statement of 11/22/00 Interest 1/11/01 Statement of 12/27/00 Statement of 1/11/01 Interest of 2/I 1/01 Interest of 3/11/01 TOTAL NOW DUE $ 2,289.57 2,067.31 1.116,08 1,688.47 ~443.4~ $ 5,472.96 $ 5,555.06 + 2.131,96 $ 7,687.02 +115.31 +117,04~ $ 7,919.37 NOTE: Al1 balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. TVIUEI N. IIEI E ,4550( 1 '1'E$ INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 January 11, 2001 John W. Hatch, President Mort View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 #99.01.02 - Silt Injection ~ . For professional engineering services for the month of December 2000, as set forth in the enclosed Employee Time Records, including submittal to DEP additions to permit application and proof of public notices. Senior Engineer Secretarial 4.8 hrs @ $85.00 1.2 hfs @ $21.00 Direct Costs, Travel & Related Expenses Current Total Due Outstanding Statements of 9/22/00, 10/20/00 and 11/22/00, with interest Statement of 12/27/00 5,472.96 TOTAL NOW DlJlg $' 408.00 $ 433.20 _ 1o.29 $ 443.49 5,555.06 1.68~,4~ $ 7,687.02 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. WILTEi N. IIEIJ E aSSOCIATES INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Cadisle, Pennsylvania 17013 717-258-5114 December 27, 2000 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 //99.01.02 - Silt Injection For professional engineering services for the month of November 2000, as set forth in the enclosed Employee Time Records, including preparation of revised modules, updating the Dye Tracer Study and preparation of a Public Notice, responding to DEP's November 6, 2000 comment letter. Senior Engineer Staff Engineer Secretarial 7.0 b. rs @ $85.00 $ 595.00 9.9 hfs @ $53.00 524.70 1.0 hrs @ $21.00 ~ Legal Advertising - Public Notice (4 weeks) Current Total Due $1,140.70 547,77 $ 1,688.47 Statement of 9/22/00 2,289.57 Statement of 10/20/00 2,067.31 Statement of 11/22/00 I. I 16.0~ TOTAL NOW DUE $ 7,161.43 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. · .4[TEI IIEI E ,4550C1,,1'1'E$ INC. ENGINEERS . CONSULTANTS 144 S. Hanover Slree! Carlisle, Pennsylvania 17013 717-258-5114 John W. Hatch, President Mort View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 November 22, 2000 For professional engineering services for the month of October 2000, as set forth in the enclosed Employee T/me Records, including preparation of revised mapping for application revisions and for collecting a round of water samples on October 2~ and cost of laboratory analysis. Senior Engineer Staff Engineer Technician 2.5 hrs @ $85.00 $ 212.50 2.4 hrs @ $53.00 127.20 7.0 hfs @ $33.00 ~ Direct Costs, Travel and Related Expenses Water Sample Analyses Current Total Due 570.70 53.68 $ 1,116.08 Statement of 8/10/00 1,845.80 Statement of 9121/00 744.70 Statement of 9/22/00 2,289.57 Statement of 10/20/00 .~ TOTAL NOW DUE $ 8,063.46 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. W,4LTEi / . IIEI E ,4550(:1,4'1'E$ INC. ENGINEERS . CONSULTANTs 144 S. Hanover Slree! Carlisle, Pennsylvania 17013 717-258.5114 October 20, 2000 John W. Hatch, President Mort View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 For professional engineering services for the month of September 2000, as set forth in the enclosed Employee Time Records, including continued preparation, finalizing and mailing to the DEP maps, plans and modules; preparation of transmittaI letters and public notification "packets" for distribution by the DEP; and for communications with the PA DEP, R. Geimer and W. Deane. Senior Engineer Staff Engineer Secretarial 8.8 hrs@ $85.00 $ 748.00 13.0 hrs @ $53.00 689.00 6.0 hrs @ $21.00 ~ Direct Costs, Travel and Related Expenses (includes $250.00 for Permit Application Fee) Current Total Due $ 1,563.00 $ 2,067.31 Statement of 8/10/00 1,845.80 Statement of 9/21/00 744.70 Statement of 9/22/00 ~ TOTAL NOW DUE $ 6,947.38 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. 1 ,4[TEi IIEI E a$$0C11]*[$ INC. ENGINEERS . CONSULT^NT$ 144 S. Hanover Slreel Carlisle, Pennsylvania 17013 717-258-5114 September 22, 2000 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 For professional engineering services for the period August 18 thru August 31, 2000,- as set forth in the enclosed Employee Time Records, including telephone conversations, file and plan research and attend a site meeting on August 23, 2000, with Rek Black staff and consultants to determine technical and administrative aspects of incorporating Rek Black's tailings into the permit application; for calculating loading figures and reviewing the application and plans for needed revisions for Rek Black; for communications with the PA DEP, R. Geimer and D. Dargie; and for continued map and module revision drafting. Senior Engineer Staff Engineer Secretarial 17.7 hrs @ $85.00 $ 1,504.50 10.9 hrs @ $53.00 577.70 0.7 hfs @ $21.00 _24.70 Direct Costs, Travel and Related Expenses TOTAL DUE $ 2,096.90 $ 2,289.57 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5% compounded monthly. VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities. Date Walter N. Heine, President Walter N. Heine Associates, Incorporated SHERIFF'S RETURN CASE NO: 2001-03692 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEINE WALTER N ASSOCIATES INC VS MON VIEW MINING CORPORATION - OUT OF COUNTY R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT MON VIEW MINING CORPOP~ATION but was unable to locate Them in his bailiwick. deputized the sheriff of ALLEGHENY County, serve the within COMPLAINT & NOTICE says, that he made a diligent to wit: Sheriff or Deputy Sheriff who being search and He therefore Pennsylvania, to On July 6th , 2001 , this office was in receipt of the attached return from ALLEGHENY Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Allegheny Co 32.25 Notary 3.00 72.25 07/06/2001 RON TURO R. 'Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this /~ day of~ ~/ A.D. ~/ t Prothonotar~' In The Court of Common Pleas of Cumberland County, Pennsyl~vania Walter N. Heinevs. Associates ~[~ Mort View Mining Corporation ~_ - : Mon View.~ining Corporation NO 01 3692 civil ]N-OW, June 15, 2001 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Allegheny County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service ow, :g'- at // o'olook, '. within M. served the upon by handing to a copy of the original and made known to the contents thereof. So answers, I Sheila R. 0 8r,en, Notary Public [ Pittsburgh, Allegi~any County ~ My Commission Expt-~ June 19, 2004 Member, Penrmylvanla Aa~oc~at~n ct Notaries Sworn and subscribed bcfor~ me this day ofJUN2 Sheriff of ////g~n County, PA COSTS SSRWCE Z~,,~.%" MILEAGE AFFIDAVIT WALTER N. HEINE ASSOCIATES, INC., Plaintiff MON VIEW MINING CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYVLANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMENT TO: Prothonotary Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 Please enter judgment in favor of Plaintiff, Walter N. Heine Associates, Inc. and against Defendants, Mort View Mining Corporation in the amount of $7,9t9.37. Defendants were served with a 10 Day Notice dated and served July 13, 2001, as evidenced by the attached copy of the Notice and Certificate of Service attached hereto and incorporated herein as Exhibit a. Principal $7,604.92 b. Interest $ 314.45 c. Late charges $ 00.00 Total Amount: $7,919.37 Plus additional interest at $3.91 for every day after March 11, 2001 plus cost and expense of suit and actual expenditures to preserve security until date of distribution. Respectfully Submitted TURO LAW OFFICES Date Carlisle, PA 1~ (717) 245-9688 Attorney for Plaintiff WALTER N. HEINE ASSOCIATES, INC., Plaintiff MeN VIEW MINING CORPORATION, Defendant :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : : : :NO. 01- 3692 CIVIL TERM : : TO: Men View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 DATE OF NOTICE: July 13, 2001 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date Respectfully Submitted TURO LAW OFFICES J~'n~es a. Rob'j~son, Esquire 28/South Pitt ~treet Carlisle, PA 1'7013 (717) 245-9688 Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Default Notice upon Mon View Mining Corporation, by depositing same in the United States Mail, first class, postage pre-paid on the 13th day of July, 2001, from Carlisle, Pennsylvania, addressed as follows: Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 TURO LAW OFFICES (717) 245-9688 Attorney for Plaintiff WALTER N. HEINE ASSOCIATES, INC., Plaintiff VS. MON VIEW MINING CORPORATION, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-3692 CIVIL CIVIL ACTION - LAW IN RE: PETITION FOR "RELIEF FROM DEFAULT JUDGMENT" ORDER AND NOW, this ~ ~' day of August, 2001, oral argument on the within motion in the nature of a petition to open judgmem is herewith set for Friday, August 31, 2001, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. Counsel, at their option, may file briefs prior to the time set for argument. BY THE COURT, . Hess, J. James M. Robinson, Esquire For the Plaintiff Peter N. Flocos, Esquire David R. Fine, Esquire For the Defendant :rlm WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW .... , L, gum, upon consideration of the Petition for Relief From Default Judgment (the "Petition") submitted by Defendant, Mort View Mining Company ("Mon View"), by and through its attorneys, Kirkpatnck & Lock, hart LLP, it is hereby ORDERED, ADJUDGED and DECREED that Mort View is relieved of the default judgment entered by the Court in this action on July 24, 2001, in connection with the Complaint of Plaintiff Walter N. Heine, Associates, Inc., and that such judgment shall be of no force or effect whatsoever. It is further ORDERED, ADJUDGED and DECREED that Mon View is hereby given leave to file the Preliminary Objections ~, ....-: .... ~ i ' · ~ - ~ '-"Lq] attached to the Petition, and that such Preliminary Objections ~, .....-'--~,,A ........ '¢',~d.~ '~*" ] shall be deemed to have been filed ~zl:~n tk.c ..... ,, · ~- x Gtltlon wa~ Illed on August 3, BY THECOURT: Attorneys for Defendant, Mon View Mining Company: Peter N. Flocos, Esquire Pa. I.D. No. 74746 KIRKPATRICK & LOCKHART LLP Firm No. 148 Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 David R. Fine, Esquire Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Firm No. 148 Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 q,O~ Attorneys for Plaintiff, Walter N. Heine, Associates, Inc.: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 WALTER lq. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) ) ) ) IN THE COURT OF COMMOlq PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ) ) ) ) ) NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW ~EF FROM DEFAULT JUDGMENT ,, -" "' b" and through its Defendant, Mon View Mining Company ( Mon ¥~ew ), y attorneys, Kirkpatrick & Lockhart LLP, files the following Petition for Relief From Default Judgment, pursuant to Pa. R.C.P. 237.3: 1. On or about June 15, 2001, Plaintiff, Waiter N. Heine Associates, Inc. ("Heine"), purported to initiate this action by filing a complaint with this Court against Mon View (the "Complaint"). 2. The Complaint alleges, in essence, that Mon View owes Heine $7,919.37 as a result of certain services performed by Heine in order to obtain for Mon View a Silt Injection Permit (the "Permit") from the Pennsylvania Department of Environmental Protection ("DEP"). 3. At all times relevant hereto, Mon View has been in the business of operating a coal mine in Washington County, Pennsylvania, known as the 'Mathxes Mine." 4. On or about June 22, 2001, Heine purported to serve Mon View with the Complaint by having the Sheriff of Allegheny County, Pennsylvania hand a copy of the complaint to Mr. Lawrence Gregg, at 5311 Progress Boulevard, Bethel Park, PA 15102 ("5311 Progress Boulevard"). 5. Mon View's principal place of business is located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania, although it does maintain an office at 5311 Progress Boulevard. 6. 5311 Progress Boulevard is also the address of two other corporations, Sanderling Incorporated ("Sandefling"), the shareholder of Mon View, and Mining and Tunneling Equipment & Services, Inc. ("MATES"). The majority shareholder of both Sanderling and MATES is Mr. John W. Hatch. 7. Mr. Gregg is not and never has been a director, officer or other employee of Mon View. Rather, Mr. Gregg is an employee of MATES and performs no services on behalf of Mon View. 8. On or about July 13, 2001, Heine purported to serve Mon View with a 10- day notice of default, allegedly by mailing a copy to 5311 Progress Boulevard. 9. According to this Court's docket entries, Heine filed with this Court a praecipe for entry of default judgment against Mon View on or about July 24, 2001, and this Court entered a default judgment against Mon View on that same date. 10. At no time has Mon View had an office, or conducted regular business, in Cumberland County, Pennsylvania. 11. By this petition, and pursuant to Pa. R.C.P. 237.3, Mon View seeks leave of this Court to file the proposed verified preliminary objections to the complaint attached hereto as Exhibit "A." 2 12. Under Pa. R.C.P. 237.3, this Court must open the default judgment because the proposed preliminary objections state meritorious defenses and because this petition has been filed within 10 days after entry of the default judgment on the docket. See Pa. R.C.P. 237.3(b); Peters Township Sanitary Authority v. American Home and Land Development Co., 696 A.2d 899 (Pa. Commw. Ct. 1997), appeal denied, 550 Pa. 712, 705 A.2d 1312 (Pa. 1997) (interpreting Pa. R.C.P. 237.3 to be satisfied by attaching preliminary objections stating a meritorious defense to a petition for relief from default judgment). 13. As set forth in more detail in Mon View's proposed preliminary objections, to which reference is made, these meritorious defenses include among other things the following: (i) arbitration of this dispute is required under the Cumberland County Rules of Procedure given the amount in controversy, and the complaint should be dismissed for failure to arbitrate as required by the roles of this Court or for this Court's lack of subject-matter jurisdiction; (ii) Cumberland County is not the proper venue for this action under Pa. R.C.P. 1006(b) and 2179; (iii) Mon View was not properly served with the complaint under Pa. R.C.P. 402; (iv) the complaint does not conform to law or rule of court, in that, among other things, the complaint does not state whether it is based on an agreement, does not state whether any such agreement is oral or written, does not attach a copy of any written agreement, and sets forth no other basis for recovery against Mon View, in violation of Pa. R.C.P. 1019(h) and 1028(a)(2); and (v) for similar reasons, the complaint is insnfficiently specific, and is legally insufficient and fails to state a claim upon which relief can be granted, in violation of Pa. R.C.P. 1028(a)(3) and (a)(4), respectively. 14. In the alternative, in the event this Court does not grant Mon View leave to file its proposed preliminary objections, Mon View by this petition, and pursuant to Pa. R.C.P. 237.3, seeks leave of this Court to file the proposed verified answer and new matter attached hereto as Exhibit "B." 15. Under Pa. R.C.P. 237.3, this Court must open the default judgment because the proposed answer and new matter states meritorious defenses and because this petition has been filed within 10 days after entry of the default judgment on the docket. See Pa. R.C.P. 237.3(b). 16. As set forth in more detail in Mon View's proposed answer and new matter, to which reference is made, these meritorious defenses include among other things the same defenses set forth previously as part of Mon View's proposed preliminary objections. 17. In addition, as also set forth in more detail in Mon View's proposed answer and new matter, to which reference is made, Heine has already been paid approximately $31,443 for the services it has performed (and possibly has been paid more), and is not owed anything further by Mon View. 18. The additional sum of $7,919.37 sought by Heine in the complaint represents nothing other than Heine's attempt to charge Mon View for the costs occasioned by Heine's own misrepresentations to Mon View, and Heine's own mistakes and professional negligence, in connection with the services it performed. Mon View is accordingly not obligated under any theory of law to pay that sum. 4 WHEREFORE, for the foregoing reasons, Mon View respectfully requests this Court enter an order relieving Mon View from the default judgment, and granting Mon View leave to file, as of this date, its proposed preliminary objections or, alternatively, its proposed answer and new matter. Dated: August 3, 2001 Respectfully submitted, KIRKPATRICK & LOCKHART LLP Peter N. Floc~ ~) Pa. I.D. No. 747'4b'- Dianna S. Karg Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 David R. Fine Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company Exhibit A WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION- LAW ORDER AND NOW, this day of August, 2001, upon consideration of the Preliminary Objections submitted by Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, it is hereby ORDERED, ADJUDGED and DECREED that the Complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine") is hereby DISMISSED WITH PREJUDICE, and that Heine shall be responsible to Mon View for all of the costs and attorneys fees incurred by Mon View in defending this action. BY THE COURT: Attorneys for Defendant, Mon View Mining Company: Peter N. Flocos, Esquire Pa. I.D. No. 74746 KIRKPATRICK & LOCKHART LLP Firm No. 148 Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 David R. Fine, Esquire Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Firm No. 148 Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 Attorneys for Plaintiff, Walter N. Heine, Associates, Inc.: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 WALTER N. HE1NE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW ORDER AND NOW, this day of August, 2001, upon consideration of the Preliminary Objections submitted by Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, it is hereby ORDERED, ADJUDGED and DECREED that the Complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine") is hereby DISMISSED WITH PREJUDICE, and that Heine shall be responsible to Mon View for all of the costs and attorneys fees incurred by Mon View in defending this action. BY THE COURT: Attorneys for Defendant, Mon View Mining Company: Peter N. Flocos, Esquire Pa. I.D. No. 74746 KIRKPATRICK & LOCKHART LLP Firm No. 148 Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 David R. Fine, Esquire Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Firm No. 148 Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 Attorneys for Plaintiff, Walter N. Heine, Associates, Inc.: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD To~ Walter N. Heine, Associates, Inc. c/o James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed preliminary objections within twenty (20) days from service hereof or a judgment may be entered against yOU. KIRKPATRICK & LOCKHART LLP Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company Dated: August 3, 2001 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW PRELIMINARY OBJECTIONS Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, respectfully submits the following preliminary objections to the complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine"):l Factual Background 1. On or about June 15, 2001, Heine purported to initiate this action by filing his complaint with this Court. 2. The complaint alleges, in essence, that Mon View owes Heine $7,919.37 as a result of certain services performed by Heine in order to obtain for Mon View a Silt Injection Permit from the Pennsylvania Department of Environmental Protection. 3. At all times relevant hereto, Mon View has been in the business of operating a coal mine in Washington County, Pennsylvania, known as the "Mathies Mine." Pursuant to Cumberland County Rules of Procedure 210-2 and 210-6, Mon View intends to request argument on these preliminary objections, and to file in a timely fashion the brief required in connection therewith. 4. On or about June 22, 2001, after filing the complaint, Heine purported to serve Mon View with the complaint by having the Sheriff of Allegheny County, Pennsylvania, hand a copy of the complaint to Mr. Lawrence Gregg, at 5311 Progress Boulevard, Bethel Park, PA 15102 ("5311 Progress Boulevard"). 5. Mon View's principal place of business is located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania, although it does maintain an office at 5311 Progress Boulevard. 6. 5311 Progress Boulevard is also the address of two other corporations, Sanderling Incorporated ("Sanderling"), the shareholder of Mon View, and Mining and Tunneling Equipment & Services, Inc. ("MATES"). The majority shareholder of both Sanderling and MATES is Mr. John W. Hatch. 7. Mr. CJregg is not and never has been a director, officer or other employee of Mon View. Rather, Mr. Gregg is an employee of MATES and performs no services on behalf of Mon View. 8. On or about July 13, 2001, Heine purported to serve Mon View with a 10- day notice of default, allegedly by mailing a copy thereof to 5311 Progress Boulevard. 9. At no time has Mon View had an office, or conducted regular business, in Cumberland County, Pennsylvania. 10. In or about January 1999, Heine undertook to obtain for Mort View a Silt Injection Permit (the "Permit") for Mon View's coal processing plant from the Pennsylvania Department of Environmental Protection ("DEP"). 2 11. At that time, Heine represented to Mon View in substance that Heine would be able to acquire the Permit easily and efficiently, on account of Heine's claimed connections with the DEP. 12. It was Mon View's further understanding from Heine that the cost of acquiring the Permit through Heine would be approximately $15,000. 13. As discussed below, however, Heine acquired the Permit only after making repeated errors in the DEP application process. These errors necessitated repeated correctional submissions to the DEP by Heine, which both excessively and unnecessarily delayed the obtaining of the Permit, and drove Heine's costs in acquiring the Permit to an excessive and unnecessary level. 14. On or about March 13, 2000, Heine submitted an application, on Mon View's behalf, for the Permit, to the DEP's District Office in McMurray, Washington County, Pennsylvania. 15. On or about March 21, 2000, the DEP rejected that application as "technically and/or administratively deficient" in several enumerated respects. 16. On information and belief, Heine took no material action towards acquiring the Permit during the March 21, 2000, to August 2000 time period, due to the Mathies Mine being temporarily idled during that time period pending the sale of Mon View by its then owner, Joseph A. Tassone. 17. On or about August 17, 2000, Mon View was sold by Tassone to Sanderling, in which Hatch owned and owns the majority interest. From August 17, 2000, through the present, Hatch, through Sanderling, held and holds the majority ownership interest in Mon View. 3 18. On or about September 18, 2000, Heine resubmitted a revised application to the DEP for the Permit, in an attempt to correct the deficiencies in the initial application and in connection with Hatch's intent to reopen the Mathies Mine. 19. On or about September 26, 2000, the DEP informed Heine that the application was still incomplete, and requested further information. 20. While the revised application was accepted for review by the DEP on October 13, 2000, the DEP subsequently advised Heine, through Mon View, on or about November 6, 2000, of several "additions or corrections" that still needed to be made to the application. 21. On December 5, 2000, the DEP notified Heine, through Mon View, that those additions and corrections had not been satisfactorily made, and indicated that an "informal pre-denial conference" would be held at the DEP's "McMurray District Office to discuss the deficiencies." 22. Finally, on or about March 8, 2001, after several submissions of additional or correctional information by Heine to the DEP, the DEP issued the Permit to Mon View. 23. Over the period from approximately April 9, 1999, through December 15, 2000, Mon View made a series of payments to Heine, in connection with Heine's efforts to obtain the Permit up to August 17, 2000. These payments total approximately $31,443. 24. In connection with the sale of Mon View by Tassone to Hatch, discussed previously, Heine may have received from Tassone or an affiliate of Tassone, after August 17, 2000, additional payments of as much as approximately $8,900. 25. Heine performed the services discussed herein in a manner contrary to its representations to and understanding with Mon View, and contrary to the professional duty of care owed to Mon View. 26. Under the circumstances presented here, Heine has already been paid what is owed to it. The additional sum sought by Heine in the Complaint, $7,919.37, represents nothing other than Heine's attempt to charge Mon View for the costs occasioned by Heine's own misrepresentations to Mon View, and Heine's own mistakes and negligence, in connection with the Permit application process. Mon View is accordingly not obligated under any theory of law to pay that sum. 27. On information and belief, the Heine employees principally performing the work in connection with obtaining the Permit were located and resided in or around Washington County, Pennsylvania; the DEP personnel with whom Heine worked were located at the DEP's District Office in McMurray, Washington County, Pennsylvania, or in Harrisburg, Dauphin County, Pennsylvania; Heine's DEP-related contacts were directed towards those locales; no meetings were held involving Mon View or DEP personnel in Cumberland County, Pennsylvania; and the only apparent connection between Cumberland County, Pennsylvania and this action is that Heine happens to have an office in Carlisle, Pennsylvania. Mort View's Preliminary Ob.[ections 28. Mon View hereby incorporates the preceding paragraphs as if set forth fully herein. 29. The Cumberland County Rules of Procedure mandate arbitration for cases involving less than $25,000. See Cumberland County Rules of Procedure 1301-1 through 1302- 5. 5 30. Insofar as the complaint seeks recovery of only $7,919.37, it should be dismissed for failure to arbitrate as required by the rules of this Court or for this Court's lack of subject-matter jurisdiction. 31. Pa. R.C.P. 1006(b) and 2179 require, as to a corporation such as Mon View, that venue is proper only in the county where the corporation's registered office or principal place of business is located, a county where it regularly conducts business, the county where the cause of action arose, or a county where a transaction or occurrence took place out of which the cause of action arose. See Pa. R.C.P. 1006(b) and 2179. 32. Cumberland County is an improper venue for this action, insofar as Mon View has no office in Cumberland County, does not regularly conduct business in Cumberland County, this cause of action did not arise in Cumberland County, and no transaction or occurrence took place in Cumberland County out of which this cause of action arose. 33. Pa. R.C.P. 402 requires, as to a corporation such as Mon View, that service be made by handing a copy of the original process at any office or usual place of business of the defendant to its "agent or to the person for the time being in charge thereof." See Pa. R.C.P. 402(a)(2)(iii). 34. Service on Mon View was improper because Mr. Gregg, the person on whom the complaint was served, is not an agent of Mon View, and therefore could not have been in charge of the office for Mon View for purposes of Rule 402(a)(2)(iii). 35. The complaint does not conform to law or rule of court, in that, among other things, the complaint does not state whether it is based on an agreement, does not state whether any such agreement is oral or written, does not attach a copy of any written agreement, and sets forth no other basis for recovery against Mon View. See, e.g., Pa. R.C.P. 1019(h). 6 36. For similar masons, the complaint is insufficiently specific, and is legally insufficient and fails to state a claim upon which relief can be granted. WHEREFORE, Mon View respectfully requests that this Court enter an order dismissing the complaint with prejudice, awarding Mon View costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. Dated: August 3, 2001 Respectfully submitted, KIRKPATRICK & LOCKHART LLP Peter N. Floco~ Pa. I.D. No. 74T46 Dianna S. Karg Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 David R. Fine Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company 7 Y~;I~FICA TION I, William N. Dean, General Superintendent of Mon View Mining Company, have read the foregoing Preliminary Obje~-'iions and verify that the statcm~'lts of fact contained therein are true to the best of my know[edge, information ~nd belie£ This stateRxont is made subject to the pen.lties of 15 Pa,C,S. § 4904, relating to unswotn falsifications to authorities. Witliam N. Dean Dated: August 3, 2001 Exhibit B WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION- LAW NOTICE TO PLEAD To~ Walter N. Heine, Associates, Inc. c/o James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. KIRKPATRICK & LOCKHART LLP KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company Dated: August 3, 2001 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW ANSWER AND NEW MATTER Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, respectfully submits its answer and new matter with respect to the complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine"), and in support thereof avers as follows: 1. On information and belief, it is admitted that Heine, at some point over the 1999-2000 time period, had an office in Carlisle, Pennsylvania. Mon View is without information sufficient to form a belief as to the troth of the remaining averments contained in Paragraph 1 of the complaint and, accordingly, the same are denied. 2. Admitted, except that the principal place of business of Mon View is located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania. 3. It is admitted that Heine, at some point over the 199%2000 time period, was in the business of performing certain engineering services for Mon View. Mon View is without information sufficient to form a belief as to the truth of the remaining averments contained in Paragraph 3 of the complaint and, accordingly, the same are denied. 4. It is admitted that Heine performed services for Mon View over the 1999- 2000 time period for the purpose of obtaining a Silt Injection Permit for Mon View's coal processing plant from the Pennsylvania Department of Environmental Protection. The remaining averments contained in Paragraph 4 of the complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any credit for which payment is owed, including interest or late charges, beyond what has already been paid to Heine, is specifically denied. 5. It is admitted that, on or about December 15, 2000, Mon View made a payment to Heine in the amount of $2,590.50, bringing the total amount paid by Mon View to Heine since early 1999 to approximately $31,443, for work performed by Heine up to August 17, 2000. The remaining averments contained in Paragraph 5 of the complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any credit for which payment is owed, including interest or late charges, beyond that what has already been paid to Heine, is specifically denied. 6. It is admitted that Heine continued to perform work after August 17, 2000 and obtained the Permit on or about March 8, 2001. The remaining averments contained in Paragraph 6 of the complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any credit for which payment is owed, including interest or late charges, beyond what has already been paid to Heine, is specifically denied. 7. The averments contained in Paragraph 7 of the complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, such averments are denied. It is specifically denied that Heine performed services for which 2 compensation is owed, or extended any credit for which payment is owed, including interest or late charges, beyond what has already been paid to Heine. 8. It is admitted that, subsequent to the December 15, 2000, payment referred to previously, Heine on at least one occasion requested payment of Mort View and Mon View made no payments to Heine. The remaining averments contained in Paragraph 8 of the complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any credit for which payment is owed, including interest or late charges, beyond what has already been paid to Heine, is specifically denied. WHEREFORE, Mon View respectfully requests that this Court enter an order dismissing the complaint with prejudice, awarding Mort View costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. NEW MATTER In further response to the Complaint, Mon View avers the following new matter: 9. Mort View hereby incorporates its foregoing answers to the preceding paragraphs as if set forth fully herein. 10. At all times relevant hereto, Mon View has been in the business of operating a coal mine in Washington County, Pennsylvania, known as the "Mathies Mine." 11. In or about January 1999, Heine undertook to obtain for Mon View a Silt Injection Permit (the "Permit") for Mon View's coal processing plant from the Pennsylvania Department of Environmental Protection ("DEP"). 3 12. At that time, Heine represented to Mon View in substance that Heine would be able to acquire the Permit easily and efficiently, on account of Heine's claimed connections with the DEP. 13. It was Mon View's further understanding from Heine that the cost of acquiring the Permit through Heine would be approximately $15,000. 14. As discussed below, however, Heine acquired the Permit only after making repeated errors in the DEP application process. These errors necessitated repeated correctional submissions to the DEP by Heine, which both excessively and unnecessarily delayed the obtaining of the Permit, and drove Heine's costs in acquiring the Permit to an excessive and unnecessary level. 15. On or about March 13, 2000, Heine submitted an application, on Mon View's behalf, for the Permit, to the DEP's District Office in McMurray, Washington County, Pennsylvania. 16. On or about March 21, 2000, the DEP rejected that application as "technically and/or administratively deficient" in several enumerated respects. 17. On information and belief, Heine took no material action towards acquiring the Permit during the March 21, 2000 to August 2000 time period, due to the Mathies Mine being temporarily idled during that time period pending the sale of Mon View by its then owner, Joseph A. Tassone ("Tassone"). 18. On or about August 17, 2000, Mon View was sold by Tassone to Sanderling Incorporated ("Sandefling"), in which John W. Hatch ("Hatch") owned and owns the majority interest. From August 17, 2000 through the present, Hatch, through Sanderling, held and holds the majority ownership interest in Mon View. 4 19. On or about September 18, 2000, Heine resubmitted a revised application to the DEP for the Permit, in an attempt to correct the deficiencies in the initial application and in connection with Hatch's intent to reopen the Mathies Mine. 20. On or about September 26, 2000, the DEP informed Heine that the application was still incomplete, and requested further information. 2 I. While the revised application was accepted for review by the DEP on October 13, 2000, the DEP subsequently advised Heine, through Mon View, on or about November 6, 2000, of several "additions or corrections" that still needed to be made to the application. 22. On December 5, 2000, the DEP notified Heine, through Mon View, that those additions and correction had not been satisfactorily made, and indicated that an "informal pre-denial conference" would be held at the DEP's "McMurray District Office to discuss the deficiencies." 23. Finally, on or about March 8, 2001, after several submissions of additional or correctional information by Heine to the DEP, the DEP issued the Permit to Mon View. 24. Over the period from approximately April 9, 1999 through December 15, 2000, Mon View made a series of payments to Heine, in connection with Heine's efforts to obtain the Permit up to August 17, 2000. These payments total approximately $31,443. 25. In connection with the sale of Mon View by Tassone to Hatch, discussed previously, Heine may have received from Tassone and/or an affiliate of Tassone, after August 17, 2000, additional payments of as much as approximately $8,900. 26. Heine performed the services discussed herein in a manner contrary to its representations to and understanding with Mon View, and contrary to the professional duty of care owed to Mort View. 27. Under the circumstances presented here, Heine has already been paid what is owed to it. The additional sum sought by Heine in the Complaint, $7,919.37, represents nothing other than Heine's attempt to charge Mon View for the costs occasioned by Heine's own misrepresentations to Mon View, and Heine's own mistakes and negligence, in connection with the Permit application process. Mon View is accordingly not obligated under any theory of law to pay that sum. 28. On information and belief, the Heine employees principally performing the work in connection with obtaining the Permit were located and resided in or around Washington County, Pennsylvania; the DEP personnel with whom Heine worked were located at the DEP's District Office in McMurray, Washington County, Pennsylvania, and/or in Harrisburg, Dauphin County, Pennsylvania; Heine's DEP-related contacts were directed towards those locales; no meetings were held involving Mon View or DEP personnel in Cumberland County, Pennsylvania; and the only apparent connection between Cumberland County, Pennsylvania and this action is that Heine happens to have an office in Carlisle, Pennsylvania. 29. On or about June 22, 2001, after filing the Complaint, Heine purported to serve Mon View with the Complaint by having the Sheriff of Allegheny County, Pennsylvania hand a copy of the complaint to Mr. Lawrence Gregg, at 5311 Progress Boulevard, Bethel Park, PA 15102 ("5311 Progress Boulevard"). 30. Mon View's principal place of business is located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania, although it does maintain an office at 5311 Progress Boulevard. 31. 5311 Progress Boulevard is also the address of two other corporations, Sanderling, the shareholder of Mon View, and Mining and Tunneling Equipment & Services, Inc. ("MATES"). In addition to owning the majority interest in Sanderling, Hatch also is the majority shareholder of MATES. 32. Mr. Gregg is not and never has been a director, officer or other employee of Mon View. Rather, Mr. Gregg is an employee of MATES and performs no services on behalf of Mon View. 33. At no time has Mon View had an office, or conducted regular business, in Cumberland County, Pennsylvania. 34. Cumberland County Rules of Procedure 1301-1 through 1302-5 mandate arbitration for cases involving less than $25,000. Insofar as the Complaint seeks recovery of only $7,919.37, it should be dismissed for failure to arbitrate as required by the rules of this Court and/or for this Court's lack of subject matter jurisdiction. 35. Cumberland County is an improper venue for this action, insofar as Mon View has no office in Cumberland County, does not regularly conduct business in Cumberland County, this cause of action did not arise in Cumberland County, and no transaction or occurrence took place in Cumberland County out of which this cause of action arose. 36. The complaint was not properly served upon Mon View, because Mr. Gregg, the person on whom the Complaint was served, is not an agent of Mon View, and 7 therefore could not have been in charge of the office for Mon View for purposes of the service rules. 37. The complaint does not conform to law or rule of court, in that, among other things, the complaint does not state whether it is based on an agreement, does not state whether any such agreement is oral or written, does not attach a copy of any written agreement, and sets forth no other basis for recovery against Mon View. 38. For similar reasons, the complaint is insufficiently specific, and is legally insufficient and fails to state a claim upon which relief can be granted. 39. Heine's claims are barred because it performed the services discussed herein in a manner contrary to its representations to and understanding with Mon View, and to the professional duty of care owed to Mon View. 40. The Complaint should be dismissed because Heine failed to mitigate its damages. 41. The complaint should be dismissed because of Heine's failure to perform conditions precedent and/or conditions subsequent. 42. The complaint should be dismissed because of the doctrine of equitable estoppel. 43. The complaint should be dismissed because of the doctrines of waiver and estoppel. 44. The complaint should be dismissed because of the statute of limitations. 45. The complaint should be dismissed because of the doctrine of laches. WHEREFORE, Mon View respectfully requests that this Court enter an order dismissing the complaint with prejudice, awarding Mon View costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. Dated: August 3, 2001 Respectfully submitted, KIRKPATRICK & LOCKHART LLP Dianna S. Karg Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 David R. Fine Pa. I.D. No. 66742 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company 9 I, William Iq. D~n, G~neral Superintendent of Mon View lviining Company, have read the foregoing Answer and New Matter and verify that ~he statements or,act contained therein arc true to the bes~ of my knowledge, informatian and belief.. This statement is made subject to the pemflties of 18 Pa.C.S. § ,19o4, relating to unswom falsifications to*authorities. William N. Dean Dated: August 3, 2001 CERTIFICATE OF SERVICE The undersigned hereby certifies that a tree and correct copy of the foregoing Petition For Relief From Default Judgment, including the proposed Preliminary Objections and Answer and New Matter and Notices to Plead attached thereto, was served upon the following this 3ra day of August, 2001, via First Class Mail, postage prepaid: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 C~ WALTER N. HEINE, ASSOCIATES, INC., Plaimiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW ORDER AND NOW, this day of ,2001, upon consideration of the Preliminary Objections submitted by Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, it is hereby ORDERED, ADJUDGED and DECREED that the Complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine") is hereby DISMISSED WITH PREJUDICE, and that Heine shall be responsible to Mon View for all of the costs and attorneys fees incurred by Mon View in defending this action. BY THE COURT: Attorneys for Defendant, Mon View Mining Company: Peter N. Flocos Pa. I.D. No. 74746 KIRKPATRICK & LOCKHART LLP Firm No. 148 Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 David R. Fine Pa. I.D. No. 66742 Christopher R. Nestor Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Firm No. 148 Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 Attomeys for Plaintiff, Walter N. Heine, Associates, Inc.: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 2 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINiNG CORPORATION, Defendant. ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD ro~ Walter N. Heine, Associates, Inc. c/o James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against yOU. KIRKPATRICK & LOCKHART LLP Pa. I.D. No. 66742 Christopher R. Nestor Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company Dated: September 7, 2001 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW PRELIMINARY OBJECTIONS Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, respectfully submits the following preliminary objections to the complaint of Plaintiff Walter N. Heine, Associates, Inc. ("Heine"):~ Factual Background 1. On or about June 15, 2001, Heine purported to initiate this action by filing his complaint with this Court. 2. The complaint alleges, in essence, that Mon View owes Heine $7,919.37 as a result of certain services performed by Heine in order to obtain for Mon View a Silt Injection Permit from the Pennsylvania Department of Environmental Protection. 3. At all times relevant hereto, Mon View has been in the business of operating a coal mine in Washington County, Pennsylvania, known as the "Mathies Mine." Pursuant to Cumberland County Rules of Procedure 210-2 and 210-6, Mon View intends to request argument on these preliminary objections, and to file in a timely fashion the brief required in connection therewith. 4. On or about June 22, 2001, after filing the complaint, Heine purported to serve Mon View with the complaint by having the Sheriff of Allegheny County, Pennsylvania, hand a copy of the complaint to Mr. Lawrence Gregg, at 5311 Progress Boulevard, Bethel Park, PA 15102 ("5311 Progress Boulevard"). 5. Mon View's principal place of business is located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania, although it does maintain an office at 5311 Progress Boulevard. 6. 5311 Progress Boulevard is also the address of two other corporations, Sanderling Incorporated ("Sanderling"), the shareholder of Mon View, and Mining and Tunneling Equipment & Services, Inc. ("MATES"). The majority shareholder of both Sanderling and MATES is Mr. John W. Hatch. 7. Mr. Gregg is not and never has been a director, officer or other employee of Mon View. Rather, Mr. Gregg is an employee of MATES and performs no services on behalf of Mon View. 8. On or about July 13,2001, Heine purported to serve Mon View with a 10- day notice of default, allegedly by mailing a copy thereof to 5311 Progress Boulevard. 9. At no time has Mon View had an office, or conducted regular business, in Cumberland County, Pennsylvania. 10. In or about January 1999, Heine undertook to obtain for Mon View a Silt Injection Permit (the "Permit") for Mon View's coal processing plant from the Pennsylvania Department of Environmental Protection ("DEP"). 2 11. At that time, Heine represented to Mon View in substance that Heine would be able to acquire the Permit easily and efficiently, on account of Heine's claimed connections with the DEP. 12. It was Mon View's further understanding from Heine that the cost of acquiring the Permit through Heine would be approximately $15,000. 13. As discussed below, however, Heine acquired the Permit only after making repeated errors in the DEP application process. These errors necessitated repeated correctional submissions to the DEP by Heine, which both excessively and unnecessarily delayed the obtaining of the Permit, and drove Heine's costs in acquiring the Permit to an excessive and unnecessary level. 14. On or about March 13, 2000, Heine submitted an application, on Mon View's behalf, for the Permit, to the DEP's District Office in McMurray, Washington County, Pennsylvania. 15. On or about March 21, 2000, the DEP rejected that application as "technically and/or administratively deficient" in several enumerated respects. 16. On information and belief, Heine took no material action towards acquiring the Permit during the March 21, 2000, to August 2000 time period, due to the Mathies Mine being temporarily idled during that time period pending the sale of Mon View by its then owner, Joseph A. Tassone. 17. On or about August 17, 2000, Mon View was sold by Tassone to Sanderling, in which Hatch owned and owns the majority interest. From August 17, 2000, through the present, Hatch, through Sanderling, held and holds the majority ownership interest in Mon View. 25. Heine performed the services discussed herein in a manner contrary to its representations to and understanding with Mon View, and contrary to the professional duty of care owed to Mon View. 26. Under the circumstances presented here, Heine has already been paid what is owed to it. The additional sum sought by Heine in the Complaint, $7,919.37, represents nothing other than Heine's attempt to charge Mon View for the costs occasioned by Heine's own misrepresentations to Mon View, and Heine's own mistakes and negligence, in connection with the Permit application process. Mon View is accordingly not obligated under any theory of law to pay that sum. 27. On information and belief, the Heine employees principally performing the work in connection with obtaining the Permit were located and resided in or around Washington County, Pennsylvania; the DEP personnel with whom Heine worked were located at the DEP's District Office in McMurray, Washington County, Pennsylvania, or in Harrisburg, Dauphin County, Pennsylvania; Heine's DEP-related contacts were directed towards those locales; no meetings were held involving Mon View or DEP personnel in Cumberland County, Pennsylvania; and the only apparent connection between Cumberland County, Pennsylvania and this action is that Heine happens to have an office in Carlisle, Pennsylvania. Mort View's Preliminary Ob.iections 28. Mon View hereby incorporates the preceding paragraphs as if set forth fully herein. 29. The Cumberland County Rules of Procedure mandate arbitration for cases involving less than $25,000. See Cumberland County Rules of Procedure 1301-1 through 1302- 5. 5 30. Insofar as the complaint seeks recovery of only $7,919.37, it should be dismissed for failure to arbitrate as required by the rules of this Court or for this Court's lack of subj ect-matter jurisdiction. 31. Pa. R.C.P. 1006(b) and 2179 require, as to a corporation such as Mon View, that venue is proper only in the county where the corporation's registered office or principal place of business is located, a county where it regularly conducts business, the county where the cause of action arose, or a county where a transaction or occurrence took place out of which the cause of action arose. See Pa. R.C.P. 1006(b) and 2179. 32. Cumberland County is an improper venue for this action, insofar as Mon View has no office in Cumberland County, does not regularly conduct business in Cumberland County, this cause of action did not arise in Cumberland County, and no transaction or occurrence took place in Cumberland County out of which this cause of action arose. 33. Pa. R.C.P. 402 requires, as to a corporation such as Mon View, that service be made by handing a copy of the original process at any office or usual place of business of the defendant to its "agent or to the person for the time being in charge thereof." See Pa. R.C.P. 402(a)(2)(iii). 34. Service on Mon View was improper because Mr. Gregg, the person on whom the complaint was served, is not an agent of Mon View, and therefore could not have been in charge of the office for Mon View for purposes of Rule 402(a)(2)(iii). 35. The complaint does not conform to law or rule of court, in that, among other things, the complaint does not state whether it is based on an agreement, does not state whether any such agreement is oral or written, does not attach a copy of any written agreement, and sets forth no other basis for recovery against Mon View. See, e.g., Pa. R.C.P. 1019(h). 6 36. For similar reasons, the complaint is insufficiently specific, and is legally insufficient and fails to state a claim upon which relief can be granted. WHEREFORE, Mon View respectfully requests that this Court enter an order dismissing the complaint with prejudice, awarding Mon View costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. Dated: September 7, 2001 Respectfully submitted, KIRKPATRICK & LOCKHART LLP Dianna S. Karg Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 David R. Fine Pa. I.D. No. 66742 Christopher R. Nestor Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Attorneys for Defendant, Mon View Mining Company I, Will/am N. Dean, General Superi~tendant of Mon View Mining Company, have read the foregoing Preliminary Objections and verify that the statements of fact contained therein are true to the best of my knowledge, information and belief. Th~s statement is made subject to the penalties of 18 Pa.C.S. § 4904, relating to u~aswom falsifications to authorities. ~/illian.~ N. Dean Dated: Augus~ 3, 2001 CERTIFICATE OF SERVICE I hereby certified that, on September 7, 2001, I served a true and correct copy of the foregoing document on the following by first-class U.S. Mail, postage-prepaid: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 WALTER N. HEINE ASSOCIATES, INC., Plaintiff MON VIEW MINING CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2001-3692 CIVIL TERM : CIVIL ACTION - LAW ANSWER TO PRELIMINARY OBJECTIONS Plaintiff, Walter N. Heine Associates, Inc. ("Heine"), by and through its attorneys, Turo Law Offices, respectfully submits the following answer to the preliminary objections to its complaint filed by the Defendant, Mon View Mining Company ("Mon View"). 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that Heine provided a copy of the complaint to the Sheriff of Allegheny county for personal service upon Mort View, the remainder of the averment is denied. 5. After reasonable investigation, the Plaintiff is without knowledge or information to form a belief as to the truth of the averment and it is therefore denied. By way of further answer, all previous transmittals from the Defendant to the Plaintiff, including the Coal Refuse Disposal Application, Exhibit I attached hereto and made a part hereof, contained the address 5311 Progress Boulevard, Bethel Park, PA 15102. All previous correspondence and invoices sent by the Plaintiff to Defendant were mailed to 5311 Progress Boulevard, Bethel Park, PA 15102. 6. After reasonable investigation, the Plaintiff is without knowledge or information to form a belief as to the truth of the averment and it is therefore denied. 7. After reasonable investigation, the Plaintiff is without knowledge or information to form a belief as to the truth of the averment and it is therefore denied. 8. Admitted. 9. After reasonable investigation, the Plaintiff is without knowledge or information to form a belief as to the truth of the averment and it is therefore denied. 10. Admitted. 11. Denied. By way of further answer, the Letter Contract dated January 18, 1999 signed by Daniel Stefanov, President of Mon View Mining at the time (Exhibit 2), refers to this project as a ~challenge" due to "the unpredictable nature of the Endeavor." This letter in no way leaves the impression that Heine would be able to acquire the Permit easily and efficiently, nor did it credit acquisition of the Permit with Heine's "connections with the DEP." 12. Denied. By way of further answer, the Letter Contract dated January 18, 1999, Exhibit 2 attached hereto and mede a part hereof, states that Heine "cannot provide a cost estimate or lump sum proposal at this time." There was never an "understanding," expressed or implied, concerning the cost of acquiring the Permit. 13. Denied. By way of further answer, according to DEP's own information, over 99% of all initial submissions are deemed administratively or technically insufficient. The subject application involved a rare and technically complicated silt disposal system for which only one or two permit applications are reviewed each year. DEP admitted that it had furnished Heine with the incorrect application forms. 14. Admitted. 15. Admitted with further explanation. DEP admitted that it had inadvertently furnished Heine with application modules for a deep mine permit and not for a revision to a coal refuse disposal area. 16. Denied. By way of further answer, Heine actively worked on the silt injection permit dudng this period, incurring direct costs and labor totaling $8,903.53, which amount wes paid by Defendant on August 4, 2000. While the original application wes being reviewed by DEP in March 2000, Mon View requested that the tonnage on the permit be increased from 560 tons per day to 3,080 tons per day, which increase required significant revision to and resubmission of the permit application. 17. After reasonable investigation, the Plaintiff is without knowledge or information to form a belief as to the truth of the averment and it is therefore denied. 18. Admitted in part and denied in part. It is admitted that Heine resubmitted a revised application to DEP for the permit, the remeinder of the averment is denied. By way of further answer, the application required substantial revision because of the large increase in tonnage, from 560 tons per day to 3,080 tons per day, requested by Mon View. The main deficiency corrected with this revised application wes the utilization of the correct application modules supplied by DEP to correct its earlier mistake. 19. Admitted with further explanation. The matter identified by DEP wes a minor administrative matter regarding a legal notice to appear in the newspaper, which matter wes quickly remedied. 20. Admitted with further explanation. By wey of further answer, because of the substantial increase in tonnage requested by Mon View, DEP requested new technical information not previously deemed necessary. 21. Admitted with further explanation. The "additions or corrections" to which the DEP letter refers were routine proofs of publication from local newspapers concerning the application's legal notice. Reference to a "pre-denial conference" is in accordance with DEP's policy when DEP is aweiting further information to complete an application. The requested information wes provided to DEP on December 18, 2000 and no "pre-denial conference" wes ever held. 22. Admitted. 23. Admitted in part and denied in part. It is admitted that during the period from April 9, 1999 to December 15, 2000 Mon View made payments to Heine in connection with Heine's efforts to obtain the Permit. It is denied that the $31,443.00 stated in the averment was solely for these efforts. Heine provided additional engineering services to Mon View not related to the silt injection permit. Heine analyzed Mon View's mine drainage treatment plant that was malfunctioning at the time and made recommendations. Heine also participated in meetings about the possible construction of a power plant on site. 24. Admitted in part and denied in part. It is admitted that Heine received $8,903.53 from Mon View on August 7, 2000. It is denied that this payment had any connection with the sale of Mon view from Tassone to Hatch. This payment was for services provided during the period of February 2000 through June 2000. 25. Denied. 26. Denied. 27. Denied. By way of further answer, work at the Mon View site in Washington County was limited to field reconnaissance and water sample collection. Records were researched at Mon View and in Harrisburg. The vast majority of the work, including the compilation of information, analysis, production of maps, plans and documents, and finalization of the application and supporting documents was performed in Heine's office located in Carlisle, Cumberland County. 28. No answer required. 29. Admitted. 30. Denied. By way of further answer, Plaintiff fully intends to request that a panel of arbitrators be assigned to this matter upon completion of the pleading phase. 31. Admitted. 32. Denied. Cumberland County is the county in which the cause of action arose because all payments made by Mon View ware remitted to Heine's office in Carlisle, Cumberland County. The cause of action in this matter is non-payment of monies owed to Heine for services provided to Mon View, which monies were never paid to Heine in Carlisle, Cumberland County. Furthermore, as explained in Paragraph 27, the vast majority of the work performed by Heine for Mon View took place at Heine's office in Carlisle, Cumberland County. Cumberland County is the proper venue for this action. 33. 34. Admitted. Denied. A copy of the complaint was provided to the Shedff of Allegheny County to serve on the Defendant at 5311 Progress Boulevard, Bethel Park, Pennsylvania. As stated in Paragraph 5, all prior documents, correspondence and invoices listed that location as Mon View's address. Mr. Lawrence Gregg accepted service for Mon View, having exhibited apparent authority to do so. Service upon Mr. Gregg was effective, as Mon View was obviously put on notice that it was being sued. 35. Denied. 36. Denied. WHEREFORE, for all the reasons set forth above, the Plaintiff, Walter N. Heine Associates, Inc., requests judgment in its favor and respectfully requests this Honorable Court to deny the Defendant's Preliminary Objections. Respectfully Submitted TURO LAW OFFICES Date Jal~ M. Robin~n, Esquire 28 Sbuth Pitt E~reet Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff EXMIBIT 1 Revised p~L~SE I - CO~J~ ~FUSE DISPOSAL ~ November, 2000' ~ · APPLICATION I ' (For Official Use Only) ~PpLICATION FOR COAL RJDFUSE DISPOSAL PERMIT PURSUANT TO "THE CLF-%N STPd~AMS LAW", THE "SURA~ACE MINING CONSERVATION AND RDCLAMATION .ACT", and the "COAL RE~USE DISPOSAL CONTROL ACT".~ Applicant Mon View Mining Corp. Address b311 Progress Boulevard Bethel Park, PA 15102 Telephone No. (412) 854-7880 Application Date ~ep~ember' 2000 Operation Name Mathies Mine Coal Refuse MSHA No. 1211PA200059-02 Disposal Area Name and address of public office where a copy of this application is on file for ~ public inspection PA Dept. of Environmental Protection MdMurra¥ District Office 3913 Washington Road McMurra¥, PA 12317 Provide a brief description of the operation Name, address and telephone number of person who will accept service of process John W. Hatch 5311 Progress Boulevard Bethel Park, PA lblO2 (412) 854-7880 Proposed revision to Mathies Refuse Disposal Permit 63733708 to allow the disposal of preparation plant refuse slurry and the tailings of a coal waste reprocessing plant by injection via a borehole(s) into old abandoned underground mine workings. (See continuation of Project required ~y 30 CFR 837 been paid yes .~' no Location of Operation .. Municipality Union Township U.S.G.S. Map Monongahela Location from bottom Right Corner of Map 19.1 inches North 16 -inches West Receiving Streams.. Monon~ahel~ River County Washinqton .. Name of Applicant or Responsible Official 3ohn W.' Hatch Address Title 'and Seal President Mon View Mining Corporation, 531! Progress Affidavit Commonwealth of Pennsylvania, County of Washington Blvd., Bethel Park, PA 15102 I, John W. Hatch being duly sworn, according to law, depose and say that I (am the applicant) (am an officer or official of the applicant) (have the authority to make this applicati6n) and t~at the plans, reports and documents submitted as part of the application are true and correct to the best of my knowledge and belief. 'I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. Sworn and Subscribed to Before Me This 0ay of Notary, ~blft~ [ Notadal Seal I Deborah J. BabKo, Notary Public I Ganol!"[~., Washington Oounty | ~ My c. ommmslon Expires May 28, Signat/~, of'~ppli~an~ T~£-~espons£ble Official . WALT[:I N. HEINE ASSOCIATES INC. ENGINEERS CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 FAX 717-258-4167 EXHIBIT 2 January 18, 1999 Daniel Stefanov, President Monview Mining Co. P. O. Box 606 New Eagle, PA 15067 Reference: Coal Silt Disposal Dear Mr. Stefanov: This is a follow-up to our conference call discussion of January 12'" which included Mark Rodack, and my subsequent conversation with Rick Geimer, your company's engineer. It is our understanding that your surface coal silt disposal area (silt pond) has little capacity remaining. Although you are continuing in youi' efforts to fred a customer for the silt,'you desire'to explore an alternative wherein the silt produced daily by your C6fif processing plant can be 'injected into the old abandoned mine workings in'the vicinity of your facility. Rick Geimer has related to us how his inquiries to the PA Department of Protection (DEP) has resulted in the expected response, i.e., permission to inject silt into the abandoned mine workings would be predicated upon Monview accepting responsibility for the degradation of quality or increasing the volume of existing, non-regulated discharges from the affected mine workings. The challenge, therefore, is to technically and legally negotiate a DEP permit wherein the risk of negatively altering any existing discharges are practically non-existent. We have previously negotiated such permits, outstanding among which is a 1989 "experimental" permit we acquired for Eastern Associated Coal Corporation allowing the pumping of a mine drainage treatment plant sludge into an abandoned mine with an unregulated discharge. The permit requires water quality monitoring of the operation and quarterly submittal of a brief report which discusses the monitoring results. Through its ten (10) year life, no violations related to the sludge injection have occurred. This concentrated sludge undoubtedly contains metals in concentrations'far in excess to your silt. WALTEII N, Ili:l AflOCIAT($ Daniel Stefanov, President January 18, 1999 Page Two. We are optimistic that by carefully analyzing the hydrogeology of the abandoned mine complex and negotiating appropriate monitoring sites and procedures, we can acquire a DEP permit which is acceptable to you. In any event, we will clearly set forth to you the risks involved so you can make an informed decision on acceptance of the permit we negotiate. Due to the unpredictable nature of the endeavor, that is, how many meetings with DEP, how much field work, how many samples,, etc., 'we Cannot provide a-cost estimate or lump sum proposal to you at this time... Theref6rel we propose to undertake the work on a time and materials basis and have enclosed our fee schedule. Mark Rodack already advised you about our capabilities and successes with DEP- related activities. I have enclosed resumes of the principal persons who will be involved in the project. Also enclosed is a brochure. I will act as Project Director. Our clients have found my past and ongoing experience very helpful. · First Deputy for Mining in the former PA Department of Environmental Resources; · First Director of the Federal Office of Surface Mining (OSM); · Eighteen (18) years as consultant to the mining industry · Member of the legislatively mandated Citizens Advisory Council, the "watchdog" over DEP; · Member of the legislatively mandated Mining and Reclamation Board, mining advisory council to the DEP; and · Member or' the Environmental Quality Board, which promulgates all DEP regulations. After your authorization to proceed, we will embark on the following steps: Confer with you and your staff to discuss all the elements of the project, including anticipated schedules, obstacles, etc. Acquire from Rick Geimer, our own records and the DEP files, all surface and mine maps, existing waste and water analyses of discharge and streams, and mining/permit histories of the abandoned mines. 2. Analyze the above material and question all knowledgeable parties so a complete regulatory and technical picture of the pertinent area can be defined. WALT~ N. Ili:l~ ASSO~I.~TES IN(::. Daniel Stefanov, President Sanuary 18, 1999 Page Three. Initiate contacts and discussions with key DEP regUlators, both in the McMurray office and in Harrisburg, to establish the necessary water quality monitoring and field geologic analysis to support a permit application. Throughout the above steps, we will be regUlarly reporting on our progress to you and whomever you designate. This is particularly important since you must be advised early if the negotiations with DEP are not satisfactory so you will have the option to abort the project. If the project continues to look favorable, .and acceptable permit language can be negotiated, we will design the injection facilities in coordination with Rick Geimer, and prepare the technical requirements of the permit application. After issuance, we will. provide whatever assistance your staff needs in directing construction and setting up the monitoring and reporting programs. If you wish to initiate the project, please sign one of the copies of this letter and return it to me together with $500.00, which will become a credit to your account with us. If you have any questions concerning this proposal, do not hesitate to contact me. Sincerely, Walter N. Heine, P.E. President I hereby authorize Walter N. Heine Associates Inc. to proceed on the project set forth in this letter-contract and any additional duties subsequently assigned by me. Enclosed is a $500 ~"t0iner fee to be credited to Monview /~'~in~ng QiSmpa~:2s~ccount. P~[sident, Mo~view Mf~mpany CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiff's Answer to Objections upon Christopher R. Nestor, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the 26th day of September, 2001, from Carlisle, Pennsylvania, addressed as follows: Christopher R. Nestor, Esquire Kilpatrick & Lockhart, LLP 240 North Third Street Harrisburg, PA 17101-1507 TURO LAW OFFICES Ja~r~s M. Robinson, Esquire 28-South Pitt/Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff PRAECIPE FOR LISTING CASE FOR ARGUMENT (Blust be tlc~ewritten and submitted in duizl/oate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Plo~e ]i.~t the within matter for the next ~t Court. CAPTION OF CASE (entir~ c~?tion must be stated in D,11) Walter N. Heine Associates, Inc. ( p1 ~ ntiff) Mon View Mining Corporation (Defer~ant) No. 2001_~q2CivilT...er..m.~ xl~x 1. State matter to be argued (i.e., plnintiff's motic~ for new trial, defendant's demu~xer to c~%>]a(nt, etc. ): Defendant' s Preliminary Objections Identify counsel who w411 argue case: (a) for 91~(ntiff: ~ess: James M. Robinson, Esquire 28 South Pitt Street Carlisle, PA 17013 (b) for defex~L~nt: Kirkpatrick and Lockhart, LLP ~ss: 240 North Third Street Harrisburg, PA 17101-1507 I W 11 notif~ .ll ~r~rties in writing within t~o da~s that this case nas been l i.ted for arg~t. 4. Arg~nentCourtDate:october ~ted:september 27,2001 24,2001 A~ for ~aintiff WALTER N. HEINE ASSOCIATES, INC., Plaintiff VS. MON VIEW MINING CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 01-3692 CIVIL CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS AND OLER, J.J. ORDER AND NOW, this t 3~ ' day of January, 2002, following argument on the preliminary objections of the defendant, Mon View Mining Corporation, it is ordered and directed that: 1. It appearing that payments from the defendant to the plaintiff were due at the plaintiffs Cumberland County office, the preliminary objection of the defendant to venue is OVERRULED. See Lucas v. Harman, 273 Pa. Super. 422, 417 A.2d 720 (1980). 2. Inasmuch as service was not made in accordance with Pa.R.C.P. 424, service of the complaint is herewith STRICKEN but the matter is not dismissed. See Collins v. Park, 423 Pa. Super. 601,621 A.2d 996 (1993). 3. It appearing that the complaint does not state whether the agreement between the parties was oral or written and, if written, to have attached a copy of the agreement, the preliminary objection of the defendant on the ground of legal insufficiency is SUSTAINED and the plaintiff is granted leave to file an amended complaint within twenty (20) days. See Pa.R.C.P. 1019(h)(i). ~ B£RLf~'~D COUNI¥ CU MPEN~YLVAN~ James M. Robinson, Esquire For the Plaintiff Peter N. Flocos, Esquire Christopher R. Nestor, Esquire For the Defendant BY THE COURT, :rim WALTER N. HEINE ASSOCIATES, INC., Plaintiff MON VIEW MINING CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-3692 CIVIL TERM : CIVIL ACTION - LAW : NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without fou and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 WALTER N. HEINE ASSOCIATES, INC., Plaintiff MON VIEW MINING CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-3692 CIVIL TERM : CIVIL ACTION - LAW AMENDED COMPLAINT 1. Plaintiff, Walter N. Heine Associates, Incorporated, is a Pennsylvania Corporation with a registered address of 144 South Hanover Street, Carlisle, Cumberland County, Pennsylvania, 17013. 2. Defendant, Mort View Mining Corporation, is presumably a Pennsylvania Corporation with a principal place of business located at 1200 Mingo Road, Finleyville, Washington County, Pennsylvania, 15332 and an office located at 5311 Progress Boulevard, Bethel Park, Allegheny County, Pennsylvania, 15102. 3. At alt times relevant hereto Plaintiff, Walter N. Heine Associates, Incorporated, was in the business of providing professional engineering services to the Defendant and other similarly situated businesses. 4. In January, 1999, Plaintiff negotiated with Daniel Stefanov, then President of the Defendant, Mon View Mining Corporation, to obtain a Silt Injection Permit for its coal processing plant from the Pennsylvania Department of Environmental Protection. 5. The results of these negotiations were memorialized in a letter dated January 18, 1999 from Plaintiff to Defendant, attached hereto and made a part hereof as Exhibit A, which letter was acknowledged by Mr. Stefanov and retumed to Plaintiff with a $500.00 retainer fee on February 5, 1999. 6. No cost estimate was ever provided by Plaintiff to Defendant "due to the unpredictable nature of the endeavor." It was agrccd that Plaintiff would undertake the work on a time and materials basis. See Exhibit A, Page 2. 7. On March 13, 2000, Plaintiff submitted an application for the permit to DEP on forms that were provided by DEP, which forms were incorrect for the purpose. 8. On March 21, 2000, this submission was rejected by DEP because it was submitted on the incorrect application modules, and DEP admitted its error in its comment letter. 9. While DEP was in the process of reviewing this first submission, Defendant asked that the permit be increased from a silt volume of 560 tons per day to 3,080 tons per day, which greatly increased the complexity of the project and the detail required by DEP. 10. On September 18, 2000, Plaintiff submitted a substantially revised application, requesting a permit for a silt injection system more than five times larger than the original submission. 11. Over the next several months, Plaintiff remained in contact with DEP regarding the application and quickly resolved several smell administrative matters that arose. 12. On or about December 20, 2000, Defendant paid Plaintiff's invoices for services provided through August 17, 2000. 13. Plaintiff continued to work on Defendant's project, obtaining a Silt Injection Permit dated March 8, 2001. 14. Since August 18, 2000, Plaintiff did extend credit to the Defendant for the engineering services provided in the amount of $7,604.92, with interest accruing at the rate of 1.5% per month for all balances outstanding more than thirty (30) days, totaling $314.45, for a total balance due Plaintiff of $7,919.37. The invoices are attached and made a part hereof as Exhibit B. 15. Despite repeated demands, the above sum has remained unpaid as of the date of this Complaint. WHEREFORE, for all the above reasons, the Plaintiff, Walter N. Heine Associates, Incorporated, respectfully requests judgment in its favor in the amount of $7,919.37 plus interest through the date of trial and the costs of suit. Respectfully Submitted TURO LAW OFFICES J~rr~es M. R01~nson, Esquire 28~outh Pitt tBtreet Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff EXHIBIT A WAtTER N. urINE A$$OCIAT[$ INC. ENGINEERS CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 FAX 717-258-4167 January l8, 1999 Daniel Stefanov, President Monview Mining Co. P. O. Box 606 New Eagle, PA 15067 Reference: Coal Silt Disposal Dear Mr. Stefanov: This is a follow-up to our conference call discussion of January 12'h which included Mark Rodack, and my subsequent conversation with Rick Geimer, your company's engineer. It is our understanding that your surface coal silt disposal area (silt pond) has little capacity remaining. Although you are continuing in your efforts ~o find a customer for the silt,'you desire io explore an alternative wherein the silt produced daily by your coal' processing plant can be 'injected into the old abandoned mine workings in'the vicinity of your facility. Rick Geimer has related to us how his inquiries to the PA Department of Protection (DEP) has resulted in the expected response, i.e., permission to inject silt into the abandoned mine workings would be predicated upon Monview accepting responsibility for the degradation of quality or increasing the volume of existing, non-regulated discharges from the affected mine workings. The challenge, therefore, is to technically and legally negotiate a DEP permit wherein the risk of negatively altering any existing discharges are practically non-existent. We have previously negotiated such permits, outstanding among which is a 1989 "experimental" permit we acquired for Eastern Associated Coal Corporation allowing the pumping of a mine drainage treatment plant sludge into an abandoned mine with an unregulated discharge. The permit requires water quality monitoring of the operation and quarterly submittal of a brief report which discusses the monitoring results. Through its ten (10) year life, no violations related to the sludge injection have occurred. This concentrated sludge undoubtedly contains metals in concentrations'far in excess to your silt. Daniel Stefano¥, ~re$ident January 18, 1999 Page Two. We are optimistic that by carefully analyzing the hydrogeology of the abandoned mine complex and negotiating appropriate monitoring sites and procedures, we can acquire a DEP permit which is acceptable to you. In any event, we will clearly set forth to you the risks involved so you can make an informed decision on acceptance of the permit we negotiate. Due to the unpredictable nature of the endeavor, that is, how many meetings with DEP, how much field work, how many samples, etc., we cannot provide a .cost estimate or lump sum proposal to you at this time. Therefsre~ we propose to undertake the work on a time and materials basis and have enclosed our fee schedule. Mark Rodack already advised you about our capabilities and successes with DEP- related activities. I have enclosed resumes of the principal persons who will be involved in the project. Also enclosed is a brochure. I will act as Project Director. Our clients have found my past and ongoing experience very helpful. · First Deputy for Mining in the former PA Department of Environmental Resources; · First Director of the Federal Office of Surface Mining (OSM); · Eighteen (18) years as consultant to the mining industry · Member of the legislatively mandated Citizens Advisory Council, the "watchdog" over DEP; · Member of the legislatively mandated Mining and Reclamation Board, mining advisory council to the DEP; and · Member of the Environmental Quality Board, which promulgates all DEP regulations. After your authorization to proceed, we will embark on the following steps: Confer with you and your staff to discuss all the elements of the project, including anticipated schedules, obstacles, etc. Acquire from Rick Geimer, our own records and the DEP files, all surface and mine maps, existing waste and water analyses of discharge and streams, and mining/permit histories of the abandoned mines. 2. Analyze the above material and question all knowledgeable parties so a complete regulatory and technical picture of the pertinent area can be defined. WILTL N. flEINE ISSOCI,4TES Daniel Stefanov, President January 18, 1999 Page Three. Initiate contacts and discussions with key DEP regulators, both in the McMurray office and in Harrisburg, to establish the necessary water quality monitoring and field geologic analysis to support a permit application. Throughout the above steps, we will be regularly reporting on our progress to you and whomever you designate. This is particularly important since you must be advised early if the negotiations with DEP are not satisfactory so you will have the option to abort the project. If the project continues to look favorable, and acceptable permit language can be negotiated, we will design the injection facilities in coordination with Rick Geimer, and prepare the technical requirements of the permit application. After issuance, we will provide whatever assistance your staff needs in directing construction and setting up the monitoring and reporting programs. If you wish to initiate the project, please sign one of the copies of this letter and return it to me together with $500.00, which will become a credit to your account with us. If you have any questions concerning this proposal, do not hesitate to contact me. Sincerely, Walter N. Heine, P.E. President I hereby authorize Walter N. Heine Associates Inc. to proceed on the project set forth in this letter-contract and any additional duties subsequently assigned by me. Enclosed is a $500 /.~.x.~'~oiner fee to be ,credited to Monview ~i~ng C~Stnp,art~count. President, Mo/ffview Mi~.~mp~nn3-;- EXHIBIT B WMT[I N. Ill, IN[ $$0CIIT[$ INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 March 16, 2001 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 //99.01.02 - Silt Injection Outstanding invoices as listed below: Statement of 9/22/00 Statement of 10/20/00 Statement of 11/22/00 Interest 1/11/01 Statement of 12/27/00 Statement of 1/11/01 Interest of 2/11/01 Interest of 3/11/01 TOTAL NOW DUE $ 2,289.57 2,067.31 IAI&0S 1,688.47 443,49 $ 5,472.96 $ 5,555.06 + 2.131.96 $ 7,687.02 +115.31 +117,04 $ 7,919.37 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. WALTEi N. HEINE ASSOCIATES INC. ENGINEERS · CONSULTANTS 144 S. Hanover Stree! Carlisle, Pennsylvania 17013 717-258-5114 January 11, 2001 1ohn W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 //99.01.02 - Silt Injection For professional engineering services for the month of December 2000, as set forth in the enclosed Employee Time Records, including submittal to DEP additions to permit application and Proof of public notices. Senior Engineer Secretarial 4.8 hfs @ $85.00 1.2 hfs @ $21.00 Direct Costs, Travel & Related Expenses Current Total Due $' 408.00 $ 433.2O $ 443,49 Outstanding Statements of 9/22/00, I0/20/00 and 11/22/00, with interest Statement of 12/27/00 $ 5,472.96 TOTAL NOW DUE 5,555.06 $ 7,687.02 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. N. HEINE $$0CIAT[$ INC. ENGINEERS · CONSULTANTS 144 S, Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 December 27, 2000 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 #99.01.02 - Silt Injection For professional engineering services for the month of November 2000, as set forth in the enclosed Employee Time Records, including preparation of revised modules, updating the Dye Tracer Study and preparation of a' Public Notice, responding to DEP's November 6, 2000 comment letter. Senior Engineer Staff Engineer Secretarial 7.0 hrs @ $85.00 9.9 hfs @ $53.00 1;0 hfs @ $21.00 Legal Advertising - Public Notice (4 weeks) Current Total Due Statement of 9/22/00 Statement of 10/20/00 Statement of 11/22/00 TOTAL NOW DUE $ 595.00 524.70 $1,140.70 547.77 $ 1,688.47 2,289.57 2,067.31 I. 116.08 $ 7,161.43 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5% compounded monthly. WALTEI N. HEINE ASSOCIATES INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 November 22, 2000 John W. Hatch, President Mon View Mining Corporation · 5311 Progress Boulevard Bethel Park, PA 15102 #99.01.02 - Silt Injection For professional engineering services for the month of October 2000, as set forth in the enclosed Employee Time Records, including preparation of revised mapping for application revisions and for collecting a round of water samples on October 2~ and cost of laboratory analysis. Senior Engineer Staff Engineer Technician 2.5 hrs@ $85.00 $ 212.50 2.4 hrs @ $53.00 127.20 7.0 hrs @ $33.00 ~ Direct Costs, Travel and Related Expenses Water Sample Analyses Current Total Due $ 570.70 53.68 491,70 $ 1,116.08 Statement of 8/10/00 1,845.80 Statement of 9/21/00 744.70 Statement of 9/22/00 2,289.57 Statement of 10/20/00 2.067.31 TOTAL NOW DUE $ 8,063.46 NOTE: Ail balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. WALTEI N. HEINE ASSOCIATES INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-P58.S114 October 20, 2000 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 //99.01.02 - Silt Injection For professional engineering services for the month of September 2000, as set forth in the enclosed Employee Time Records, including continued preparation, finalizing and mailing to the DEP maps, plans and modules; preparation of transmittal letters and public notification "packets" for distribution by the DEP; and for communications with the PA DEP, R. Geimer and W. Dearie. Senior Engineer Staff Engineer Secretarial 8.8 hrs @ $85.00 $ 748.00 13.0 hfs @ $53.00 689.00 6.0 hrs @ $21.00 ~ Direct Costs, Travel and Related Expenses (includes $250.00 for Permit Application Fcc) Current Total Due $ 1,563.00 504.31 $ 2,067.31 Statement of 8/10/00 1,845.80 Statement of 9/21/00 744.70 Statement of 9/22/00 2.289.57 TOTAL NOW DUE $ 6,947.38 NOTE: Ail balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. W IT[I N. II[IN[ INC. ENGINEERS · CONSULTANTS 144 S. Hanover Street Carlisle, Pennsylvania 17013 717-258-5114 September 22, 2000 John W. Hatch, President Mon View Mining Corporation 5311 Progress Boulevard Bethel Park, PA 15102 //99.01.02 - Silt Injection For professional engineering services for the period August 18 thru August 31, 2000, as set forth in the enclosed Employee Time Records, including telephone conversations, file and plan research and attend a site'meeting on August 23, 2000, with Rek Black- staff and consultants to determine technical and administrative aspects of incorporating Rek Black's tailings into the permit application; for calculating loading figures and reviewing the application and plans for needed revisions for Rek Black; for communications with the PA DEP, R. Geimer and D. Dargie; and for continued map and module revision drafting. Senior Engineer Staff Engineer Secretarial 17.7 hfs @ $85.00 10.9 hrs @ $53.00 0.7 hrs ~ $21.00 Direct Costs, Travel and Related Expenses TOTAL DUE $ 1,504.50 577.70 14.70 $ 2,096.90 $ 2,289.57 NOTE: All balances outstanding after 30 days are subject to an interest charge of 1.5 % compounded monthly. VERIFICATION I verify that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. Date Walter N. Heine, President Walter N. Heine Associates, Incorporated WALTER N. HEINE, ASSOCIATES, INC., Plaimiff, V. MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW NOTICE TO PLEAD To: Walter N. Heine, Associates, Inc. c/o James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ~~~ulre C'hristopheq~R. Nestor, Esq ' Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Peter N. Flocos, Esquire Pa. I.D. No. 74746 Diarma S. Karg, Esquire Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 Attorneys for Defendant, Mon View Mining Company Dated: February 27, 2002 PI-813263 vl 0226750-0201 WALTER N. HEINE, ASSOCIATES, INC., Plaintiff, V. MON VIEW MINING CORPORATION, Defendant. ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW ANSWER AND NEW MATTER Defendant, Mon View Mining Company ("Mon View"), by and through its attorneys, Kirkpatrick & Lockhart LLP, respectfully submits its Answer and New Matter ("Answer") with respect to the Amended Complaint ("Complaint") of Plaintiff Walter N. Heine, Associates, Inc. ("Heine"), and in support thereof avers as follows: ANSWERl 1. On information and belief, it is admitted that Heine, at some point over the 1999--2000 time period, had an office in Carlisle, Pennsylvania at the address stated. Mon View is without information sufficient to form a belief as to the truth of the remaining averments contained in Paragraph 1 of the Complaint and, accordingly, the same are denied. 2. Admitted. 3. It is admitted that Heine, at some point over the 1999--2000 time period, was in the business of performing certain engineering services for Mon View. Mon View is without information sufficient to form a belief as to the troth of the remaining averments contained in Paragraph 3 of the Complaint and, accordingly, the same are denied. Mon View hereby incorporates the allegations in its subsequent New Matter as if set forth fully herein. PI-813263 vl 0226750-0201 4. It is admitted that in January of 1999, Daniel Stefanov ("Stefanov") was the President of Mon View (Stefanov is no longer employed by Mon View). In or about January of 1999, Stefanov and~or others at Mon View negotiated with Heine for purposes of obtaining a silt injection permit (the "Permit") from the Pennsylvania Department of Environmental Protection ("DEP"). Mon View is without information sufficient to form a belief as to the truth of the remaining averments in Paragraph 4 of the Complaint and, accordingly, the same averments are denied. 5. The averments contained in Paragraph 5 of the Complaint are admitted in part and denied in part. It is admitted that Heine sent Mon View a letter on or about January 18, 1999 and that a copy of this letter, excluding exhibits and enclosures, is attached to the Complaint as Exhibit A. The remaining averments contained in Paragraph 5 are specifically denied to the extent they characterize Exhibit A to the Complaint, and otherwise, Mon View is without information sufficient to form a belief as to the troth of the remaining averments contained in Paragraph 5 of the Complaint and, accordingly, the same are denied. 6. The averments contained in Paragraph 6 are denied. To the contrary, Heine represented to Mon View in substance that Heine would be able to acquire the Permit easily and efficiently on account of Heine's claimed connections with the DEP. It was Mon View's further understanding from Heine that the cost of acquiring the Permit through Heine would be approximately $15,000. Further, to the extent the averments in Paragraph 6 characterize Exhibit A to the Complaint, such averments are specifically denied. To the contrary, Exhibit A speaks for itself. 2 7. It is admitted, on information and belief, that on or about March 13, 2000, Heine submitted some form of an application for the Permit to the DEP. Mon View is without information sufficient to form a belief as to the truth of the remaining averments in Paragraph 7 of the Complaint and, accordingly, the same averments are denied. 8. It is admitted, on information and belief, that on March 21, 2000, Heine's March 13, 2000 submission was rejected by the DEP. It is specifically denied that the submission was rejected "because it was submitted on the incorrect application modules." To the contrary, this was only one of several areas upon which the application was deficient and was denied. Mon View is without information sufficient to form a belief as to the truth of the remaining averments in Paragraph 8 of the Complaint and, accordingly, the same are denied. 9. The averments in Paragraph 9 of the Complaint are denied. To the contrary, it was at Heine's recommendation to Mon View that the Permit be increased to reflect a larger silt volume. Along with this recommendation, Heine indicated that the Permit application would not be more difficult to obtain and that the only significant difference in the application process would be typing a higher number into the application documents. Further, Heine's suggestion to increase the tons per day came after the DEP denied the first submission and before a second submission was made, not while the first submission was pending with the DEP. 10. The averments in Paragraph 10 of the Complaint are admitted in part and denied in part. It is admitted that on or about September 18, 2000, Heine submitted a revised application for the Permit to the DEP and that the application requested an increased silt volume. However, the remaining averments of Paragraph 10 of the Complaint, including any suggestion that this increase made the application more complex, are specifically denied. 3 11. The averments in Paragraph 11 of the Complaint are admitted in part and denied in part. It is admitted that after September 18, 2000, Heine had communications with the DEP regarding the Permit. The remaining averments in Paragraph 11 of the Complaint are denied. It is specifically denied that the numerous deficiencies and errors in the application were "small administrative matters" that were "quickly resolved." To the contrary, the deficiencies and errors were numerous and significant such that the DEP sent multiple notices thereof and eventually the DEP was forced to scheduled a '~pre-denial conference.., to discuss the deficiencies." 12. It is admitted that, on or about December 15, 2000, Mon View made a payment to Heine. This payment was in the amount of $2,590.50, bringing the total amount paid by Mon View to Heine since early 1999 to approximately $31,443, for work performed by Heine up to August 17, 2000. In addition, Heine may have received from Joseph A. Tassone ("Tassone") and/or an affiliate of Tassone, after August 17, 2000, additional payments of as much as approximately $8,900. The remaining averments contained in Paragraph 12 of the Complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any legitimate credit for which payment is owed, including interest and/or late charges, beyond that which has already been paid to Heine, is specifically denied. 13. It is admitted that Heine continued to perform work after August 17, 2000 and obtained the Permit on or about March 8, 2001. This continued work was to fix the deficiencies and errors that had been made by Heine in the earlier application process. The remaining averments contained in Paragraph 13 of the Complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any legitimate credit for which 4 payment is owed, including interest and/or late charges, beyond what has already been paid to Heine, is specifically denied. 14. The averments contained in Paragraph 14 of the Complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, such averments are denied. It is specifically denied that Heine performed services for which compensation is owed, or extended any legitimate credit for which payment is owed, including interest and/or late charges, beyond what has already been paid to Heine. 15. It is admitted that, subsequent to the December 15, 2000 payment referred to previously, Heine on at least one occasion requested payment of Mon View and Mon View made no payments to Heine. The remaining averments contained in Paragraph 15 of the Complaint are denied. Any suggestion that Heine performed services for which compensation is owed, or extended any legitimate credit for which payment is owed, including interest and/or late charges, beyond what has already been paid to Heine, is specifically denied. WHEREFORE, Mon View demands judgment in its favor along with costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. NEW MATTER In further response to the Complaint, Mon View avers the following new matter: 16. Mon View hereby incorporates its foregoing answers to the preceding paragraphs as if set forth fully herein. 17. At all times relevant hereto, Mon View has been in the business of operating a coal mine in Washington County, Pennsylvania, known as the "Mathies Mine." .18. In or about January 1999, Heine undertook to obtain a Permit for Mon View's coal processing plant from the DEP. 19. At that time, Heine represented to Mort View in substance that Heine would be able to acquire the Permit easily and efficiently, on account of Heine's claimed connections with the DEP. 20. It was Mon View's further understanding from Heine that the cost of acquiring the Permit through Heine would be approximately $15,000. 21. As discussed below, however, Heine acquired the Permit only after making repeated errors in the DEP application process. 22. These errors necessitated repeated correctional submissions to the DEP by Heine, which both excessively and unnecessarily delayed the obtaining of the Permit, and drove Heine's costs in acquiring the Permit to an excessive and unnecessary level. 23. On or about March 13, 2000, Heine submitted an application, on Mon View's behalf, for the Permit, to the DEP's District Office in McMurray, Washington County, Pennsylvania. 24. On or about March 21, 2000, the DEP rejected that application as "technically and/or administratively deficient" in several enumerated respects. 25. On information and belief, Heine took no material action towards acquiring the Permit during the March 21, 2000 to August 2000 time period, due to the Mathies Mine being temporarily idled during that time period pending the sale of Mon View by its then owner, Tassone. 26. On or about August 17, 2000, Tassone sold Mon View to Sanderling Incorporated ("Sanderling"), in which John W. Hatch ("Hatch") owned and owns the majority interest. From August 17, 2000 through the present, Hatch, through Sandeding, held and holds the majority ownership interest in Mort View. 27. On or about September 18, 2000, Heine resubmitted a revised application to the DEP for the Permit, in an attempt to correct the deficiencies in the initial application and in connection with Hatch's intent to reopen the Mathies Mine. 28. On or about September 26, 2000, the DEP informed Heine that the application was still incomplete, and requested further information. 29. While the revised application was accepted for review by the DEP on October 13, 2000, the DEP subsequently advised Heine, through Mon View, on or about November 6, 2000, of several "additions or corrections" that still needed to be made to the application. 30. On December 5, 2000, the DEP again notified Heine, through Mon View, that those additions and corrections had not been satisfactorily made, and indicated that an "informal pre-denial conference" would be held at the DEP's "McMurray District Office to discuss the deficiencies." 31. Finally, on or about March 8, 2001, after several submissions of additional or correctional information by Heine to the DEP, the DEP issued the Permit to Mon View. 32. Over the period from approximately April 9, 1999 through December 15, 2000, Mon View made a series of payments to Heine, in connection with Heine's efforts to obtain the Permit up to August 17, 2000. These payments total approximately $31,443. 7 33. In connection with the sale of Mon View by Tassone to Hatch, discussed previously, Heine may have received from Tassone and/or an affiliate of Tassone, after August 17, 2000, additional payments of as much as approximately $8,900. 34. Heine performed the services discussed heroin in a manner contrary to its representations to and understanding with Mort View, and contrary to the professional duty of care owed to Mon View. 35. Under the circumstances presented here, Heine has already been paid what is owed to it. The additional sum sought by Heine in the Complaint, $7,919.37, represents nothing other than Heine's attempt to charge Mon View for the costs occasioned by Heine's own misrepresentations to Mon View, Heine's breach of its promises to Mon View, and Heine's own mistakes and negligence, in connection with the Permit application process. Mon View is accordingly not obligated under any theory of law to pay that sum. 36. Cumberland County Rules of Procedure 1301-1 through 1302-5 mandate arbitration for cases involving less than $25,000. Insofar as the Complaint seeks recovery of only $7,919.37, it should be dismissed for failure to arbitrate as required by the roles of this Court and/or for this Court's lack of subject matter jurisdiction. 37. The Complaint is insufficiently specific, is legally insufficient and fails to state a claim upon which relief can be granted. 38. Heine's claims are barred because it performed the services discussed herein in a manner contrary to its representations and promises to and understanding with Mon View, and to the professional duty of care owed to Mon View. 39. The Complaint should be dismissed because Heine failed to mitigate its damages. 8 40. The Complaint should be dismissed because of Heine's failure to perform conditions precedent and/or conditions subsequent. 41. The Complaint should be dismissed because of the doctrine of equitable estoppel. 42. The Complaint should be dismissed because of the doctrines of waiver and estoppel. 43. 44. The Complaint should be dismissed because of the statute of limitations. The Complaint should be dismissed because of the doctrine of laches. WHEREFORE, Mon View demands judgment in its favor along with costs and attorneys' fees incurred in defending this action, and granting Mon View such other and further relief as this Court deems just and proper. Respectfully Submitted, r R. Nestor, Esqui Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Peter N. Flocos, Esquire Pa. I.D. No. 74746 Dianna S. Karg, Esquire Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 Attorneys for Defendant, Mon View Mining Company Dated: February 27, 2002 02/26/2002 13:02 ?242§82890 PAGE 02 I, William N, Dean, Ocneral Superintendent of Mon View Mining Company, have read thc foregoi~ Answer and New Matter ~nd verify ',hat thc statemen~ of f~t conjoin therein a~ tree in the bell of my knowledge, information and I~licf, This statem~t is made subject to the penalties of lS Pa.C.$. ,~ 4904, relatin~ to urisw~m faisitications ~o suthorig~s Wlllim N. l~m Date~t: February '~ 2002 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing ANSWER AND NEW MATTER was served via U.S. Mail upon the following this 27 day of February, 2002: James M. Robinson, Esq. TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Christopher'. Nestor WALTER N. HEINE ASSOCIATES, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 2001-3692 CIVIL TERM MON VIEW MINING CORPORATION, Defendant : CIVIL ACTION - LAW ANSWER TO NEW MATTER Plaintiff, Walter N. Heine Associates, Inc. ("Heine"), by and through its attorneys, Turo Law Offices, respectfully submits the following ansWer to the new matter filed by the Defendant, Mon View Mining Corporation ("Mon View"). 16. No answer required. 17. Admitted. 18. Admitted. 19. Denied. By way of further answer, although Heine stated in the letter to Daniel Stefanov dated January 18, 1999 that it had secured similar permits for clients in the past, it clearly stated that it could not provide a cost estimate for this project because of "the unpredictable nature of the work." Exhibit A to Complaint, Page 2. 20. Denied. At no time did Heine provide a cost estimate to Mon View either verbally or in writing. 21. Denied. 22. Denied. 23. Admitted. 24. Admitted. By way of further ansWer, this application was rejected because it was submitted on application modules not intended for projects of this nature, which modules DEP provided to Heine in error. 25. Denied. Although progress was sloWed due to non-payment of previously invoiced charges and the mine being idled, Heine personnel continued to work on the project, collecting samples required for the application and making multiple contacts with DEP to acquire the correct modules on which to submit the application. 26. Admitted. By way of further answer, Heine was not informed of the sale until August 29, 2000, when Rick Geimer, a Mon View Mining engineer, told Walter Heine of the sale in a telephone conversation. At that time, Mr. Heine informed Rick Geimer that updated officer information would be required for the application. 27. Admitted in part and denied in part. It is admitted that Heine submitted a revised application for the permit to DEP on or about September 18, 2000. It is denied that the purpose of the submission was to correct prior deficiencies. The resubmission was necessitated by DEP's error in providing the wrong modules for the submission and by the large increase in waste tonnage requested by Mr. Stephanov on August 4, 2000. 28. Admitted with further explanation. DEP had concluded its administrative review of the application and addressed three (3) points to Heine. The first was a reminder that a map must be included in the public notice, which had been inadvertently omitted. The other two points were simply instructions about how many copies of various documents were required by DEP. 29. Admitted with further explanation. When DEP concluded its technical review of the application, which is always performed after and independent of the administrative review, it addressed six (6) minor items to Heine. One was an instruction to be completed after publication, one was a recommendation for a new sampling location, one concerned a slurry analysis that had been included in the wrong module, and the others were requests for additional technical data related to the significant ~ncrease in waste tonnage. 30. Admitted with further explanation. It is the policy of DEP to schedule a pre-denial meeting when two (2) letters are sent for the same corrections. Upon receipt of the December 5, 2000 letter, Heine immediately contacted DEP to find out why its response to the earlier letter had not been received. DEP responded to Heine by telephone on December 7, 2000, admitting that it had received Heine's earlier response and canceling the pre-denial meeting. 31. Admitted. 32. Admitted in part and denied in part. It is admitted that during the period from April 9, 1999 to December 15, 2000 Mon View made payments to Heine in connection with Heine's efforts to obtain the Permit. It is denied that the $31,443.00 stated in the averment was solely for these efforts. Heine provided additional engineering services to Mon View not related to the silt injection permit. Heine analyzed Mon View's mine drainage treatment plant that wes malfunctioning at the time and made recommendations. Heine also participated in meetings about the possible construction of a power plant on site. 33. Admitted in part. It is admitted that Heine received $8,903.53 from someone on August 7, 2000 for services provided to Mon View from February 2000 through June 2000. Heine has no knowledge that this payment, which was received before Heine was made aware of the sale, had any connection with the sale of Mort View from Tassone to Hatch. 34. Denied. 35. Denied. 36. Admitted in part and denied in part. It is admitted that the Cumberland County Rules of Procedure require arbitration in cases involving less than $25,000. It is denied that the case should be dismissed. The Plaintiff filed its complaint fully intending to petition the court for appointment of arbitrators after initial pleadings, and plans to file such a petition concurrent with the filing of this answer. 37. This averment is a legal conclusion to which no response is required. To the extent that a response is required, this averment is denied. 38. Denied. 39. Denied. 40. Denied. 41. This averment is a legal conclusion to which no response is required. To the extent that a response is required, this averment is denied. 42. This averment is a legal conclusion to which no response is required~ To the extent that a response is required, this averment is denied. 43. This averment is a legal conclusion to which no response is required. To the extent that a response is required, this averment is denied. 44. This averment is a legal conclusion to which no response is required. To the extent that a response is required, this averment is denied. WHEREFORE, for all the reasons set forth above, the Plaintiff, Walter N. Heine Associates, Inc., requests judgment in its favor and respectfully requests this Honorable Court to dismiss the Defendant's New Matter. Respectfully Submitted TURO LAW OFFICES Date - Jarr~ M. Robi~(son, Esquire 28 Sbuth Pitt ~reet Carlisle, PA 1t'013 (717) 245-9688 Attorney for Plaintiff VERIFICATION I verify that the statements made in the foregoing Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date Walter N. Heine, Pre~iden~ Walter N. Heine Associates, Incorporated CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Plaintiff's Answer to New Matter upon Christopher R. Nestor, Esquire, by depositing same in the United States Mail, first class, postage pre-paid on the 15th day of March, 2002, from Carlisle Pennsylvania, addressed as follows: Christopher R. Nestor, Esquire Kilpatrick & Lockhart, LLP 240 North Third Street Harrisburg, PA 17101-1507 TURO LAW OFFICES Jan~M. Robin.s/on, Esquire 28 ~uth Pitt S~eet Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff SHERIFF'S RETURN - CAGE NO: 2001-03692 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HEINE WALTER N ASSOCIATES INC VS MON VIEW MINING CORPOR3tTION OUT OF COUNTY R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: MON VIEW MINING CORPORATION but was unable to locate Them in his bailiwick. deputized the sheriff of WASHINGTON County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On March 19th , 2002 , this office was in receipt of the attached return from WASHINGTON Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Washington Co 36.50 .00 73.50 03/19/2002 JAMES R ROBINSON R./ Thomas Kli~ Sheriff of Cumberland County Sworn and subscribed to before me this ~,~' day of ~ - Prot horfot~ary SHERIFF'S DEPARTMENT WASHINGTON COUNTY, PENNSYLVANIA COURTHOUSE SQUARE, SUITE 101, WASHINGTON, PA 15301 724-228-6840 DATE 2-7-02 SHERIFF SERVICE INSTRUCTIONS: Please fill out a separate form for each defendant. Type or PROCESS RECEIPT, and AFFIDAVIT OF RETURN pdnt~eg*bly, insuring readabllityof ailcoples. Donor detach any copies, PLAINTIFF / S / ~AL'I~R ~. [-I'P..TN'~ ASS~)Co~. COURT NUMBER OF WRIT OR COMPLAINT DEFENDANT/S/ 01-3692 CIVIL LYe)Lq VTEW [VJ~T~Ts CD~O~.. TYPE OF WRIT OR COMPLAINT SERVE { NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OB DESCRIPTION OF PROPER'FY TO BE LEVIED, ATTACHED OR SOLD M2~ VIEW MINING C~RP. ADDRESS (Street or RFD, A~&i~i,..,,t No., City, Rotc, Twp., State and Zip.) AT 1200 MINGO RDAD FII'~LEYVILLE, PA 15332 INDICATE TYPE OF SERVICE: I"1 PERSONAL [] PERSON IN CHARGE [] DEPUTIZE E3 CERT. MAIL O REG, MAIL E] POSTED [] OTHER [~ LEVY ri SEIZED & STOIC,, SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST iN EXPEDITING SERVICE Expiration/Hearing Date 2-28-02 SIGNATURE of ATTORNEY or other ORIGINATOR requesting sera,ce on behalf of I ADDRESS I TELEPHONE NUMBER JAMES M. ROBINSON ~ PLAINTIFF I hereby CERTIFY and RETURN that on the day of / ~; ~ o'clock A.M. /~~Address Below, County of Washington, Pennsylvania I have served in the manner Described below: [] Defendant(s) personally served. [] Adult family member with whom said Defendant(s) reside(s), Relationship is ~ Adult in charge of Defendant's residence who refused to give name or relationship. ~] Manager / Clerk of place of lodging in which Defeodant(s) reside(s) ~Agent or person in charge Of Defendant(s)office or usual place of business, ~-~ ~ ~-ZJ - ~'~/· .,~.~, [] Other ,20 O ~.* , at [] Property Posted [] Deputize I~ Cert. Mail E] Levy Made I-] Reg. Mail Defendant not found because: [~ Moved E] Unknown [] No Answer [~ Vacant [~ Other Now, This deputation being made at the request and risk of the plaintiff. Nota~/ Public $ Check Number $ Check Number Advance Invoice J Docket $ 75.00 82765-02 County Costs $ I, SHERIFF OF WASHINGTON COUNTY. PA. do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law, SHERIFF OF WASHINGTON COUNTY Page To sts Costs Due REP PAID FOR PLFF AFFIRMED and subscdb~ t~before me this ~/J ~ By (S~ff / D~. Sheriff) (Plea~ Prat or T~ ...... ~ ~e ~ / ~ -- ' Prothonota.,/No~2. p .' PROTHONOTARY In The Court of Common Pleas of Cumberland County, Pennsylvania Walter N. Heine Associates, Inc. VS. Man View Mining Corporation SERVE: s~e No. 01 3692 civil NOW, February 1, 2002 , I, SHERIFF OF CUMBEKLAND COUNTY, PA, do hereby deputize the Sheriff of Washington County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, within Affidavit of Service ,20 ,at o'clock M. served the upon by handing to and made lmown to copy of the original So answer, the contents thereof. Sworn and subscribed before me this __ day of ,20__ Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT WALTER N. HEINE ASSOCIATES, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MON VIEW MINING CORPORATION Defendant : NO. 2001-3692 CIVIL TERM : CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATOR,e TO THE HONORABLE, THE JUDGES OF SAID COURT: represents that: 1. 2. James M. Robinson, Esquire, counsel for the Plaintiff in the above action, respectfully The above-captioned action is (or actions are) at issue. The claim of the Plaintiff in the action is $7,919.37. The counterclaim of the Defendant in the action is $ n/a. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Ron Turo, Esquire Robert J. Mulderig, Esquire Galen R. Waltz, Esquire James M. Robinson, Esquire Carol L. Cingranelli, Esquire All members of the firm of: Kirkpatdck & Lockhart, L.L.P. WHEREFORE, YOUR Petitioner prays this Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. WALTER N. HEINE ASSOCIATES, INC., Plaintiff · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MON VIEW MINING CORPORATION Defendant · NO. 2001-3692 CIVIL TERM : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this /~ ~day of ~ ~ , 2002, in consideration of the foregoin..g Peri!ion, ,, /~..~,...~ .) ~'7.4'.//~;~'..Esq., ~Z/./..xJ__/~ I:.n and ///Y~/~zx.,~~, ~q., am appo,nted arl~itrators in the above-cap;i~;; action as prayed for. BY THE COURT, WALTER N. HEINE ASSOCIATES, INC. IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 01-3692 CIVIL MON VIEW MINING CORPORATION IN RE: APPOINTMENT OF ARBITRATORS ORDER OF COURT AND NOW, March 28, 2002, the appointment of Roger Morgenthal, Esquire, as chairman of the arbitration panel in the above-captioned matter is vacated, and Mark Thomas, Esquire, shall be appointed in his stead. Wayne Pecht, Esquire, and Andrew Norfleet, Esquire, shall remain as arbitrators. George=CE. Hoffer, W P.J. Mark Thomas, Esquire Roger Morgenthal, Esquire Court Administrator SAI,ZMANN, DEPAULIS, FISHMAN & MORGENTHAL, P.C. STEVENJ. FISHMTuN, ESQ. ANN F. DEPAIrLIS, ROGER M. MORGENTHAL, ESQ. NORMAJ. BA~TKO, ESQ. ~VILLIAM MELISSA K. Dn~LY, ESQ. OF COUNSEL: ANTHONY J. NF~STI CO PAMELa. R. KOHLER BARRtd~J. MOSIOR LAtUlIE J. PORTER TRICIA L. BMLEY 95 ALEXAN'DER SPRING ROAD · SUITE 3 · CARLISLE, PA 17013 (717) 249-6333 FAX {717} 249-7334 455 PHOFA'IX DRB~ · SUITE A · CH&MBERSBURG, PA 17201 (717) 263-2121 F.,~X (717) 263-0663 I05 NORTH FRONTSTREET · SUITE 401 · HARRISBURG, PA 17101 (717) 232-9420 F&X (717) 232-1970 840 F~kST CHOCOLATE AVENUE ° HERSl-my, PA 17033 March 26, 2002 The Honorable George E. Hoffer, P.J. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Walter N. Heine Associates, Inc. v. Mon View Mining Corpoation Civil No. 2001-3692 Dear Judge Hoffer: Earlier this week we received an Order of Court in the above matter appointing Roger Morgenthal of our firm as an arbitrator. Unfortunately, we have a conflict due to previous representation of the Plaintiff. Therefore, we respectfully request that Mr. Morgenthal be replaced on the panel. Thank you for your consideration. Very truly yours, SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. SJF/tlb CONCENTRATING IN ENVIRONMENTAL, LAND USE, BUSINESS, REAL ESTATE, AND MUNICIPAL LAW WALTER N. HEINE, ASSOCIATES, INC. Plaintiff, Vo MON VIEW MINING CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE COURT OF CUMBERLg/ PENNSYLVANL No. 2001-3692 CIVIL ACTION - PETITION TO ~ APPEARANCE CONTINUANC] HEARING Filed on behalf ot Mon View Minin Counsel of Recor Christopher R. N, Pa. I.D. No. 8240 KIRKPATRICK Payne Shoemake~ 240 North Third Harrisburg, PA (717)231-4500 Peter N. Flocos Pa. I.D. No. 747 Dianna S. Karg Pa. I.D. No. 8647 KIRKPATRICK Henry W. Oliver 535 Smithfield S~ Pittsburgh, Penm Telephone: (4121 ~)F COMMON PLEAS qD COUNTY, CIVIL TERM LAW VITHDRAW ~,ND REQUEST FOR OF ARBITRATION D e fen&ant: ; Company for this Party: ~tor ~ LOCKHART LLP Building ;treet 7101-1507 LOCKHART LLP Building reet ylvania 15222-2312 1355-6500 WALTER N. HEINE, ASSOCIATES, INC. Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) IN THE COURT ) OF CUMBERLA ) PENNSYLVANt ) ) No. 2001-3692 ) ) CIVIL ACTION ) ) ) PETITION TO VgITHDRAW APPEARAN( AND REQUEST FOR CONTINUANCE OF ARBITRATI Kirkpatrick & Lockhart LLP ("K&L"), counsel for Defei Company ("Mon View"), hereby petitions the Court, pursuant to Rule 1 the Pennsylvania Rules of Civil Procedure, to permit K&L to withdraw in the above-captioned matter and for a continuance of the arbitration hi scheduled for June 27, 2002. In support of this request, K&L states as t 1. On August 3, 2001, K&L entered its appearance, by filing a Petition for Relief from Default Sudgment in response to the Mon View by Walter N. Heine, Associates, Inc. ("Heine") on June 15, 2. Mon View is alleging claims of breach of contra duty and breach of implied duty of good faith and fair dealing. 3. Mon View, which is a mining company located in financial distress and has been forced to idle its mining operations a due to lack of funds. DF COMMON PLEAS ~ID COUNTY, CIVIL TERM LAW DN HEARING Ldant, Mon View Mining 312(b) and 1303(b) of ~s counsel for Mon View ~aring currently filows: n behalf of Mon View :omplaint filed against )01. breach of fiduciary Washington County, is lay off its employees, 4. In its engagement letter dated November 3, 2000, to terminate its services upon non-payment of legal fees and expenses. abide by this practice. 5. Due to its financial distress, Mon View has failer and expenses due and owing to K&L and has incurred an outstanding bt fees and expenses. 6. After allowing significant time to pass in order to View's financial situation would improve, K&L informed Mon View th are not promptly paid, K&L will be forced to withdraw its representatio: 7. Despite several requests by K&L, Mon View has account, and there is no present prospect that Mon View will be able eit past due bills or future legal expenses that would be incurred. 8. Under the circumstances presented here, it is app: grant an attorney's application to withdraw as counsel. Lincoln Ave. In A.2d 1219, 1220 n. 1 (Pa. Super. 1996)(citing Pennsylvania Rule of Pre "an attorney may withdraw from representing a client if'the client fails obligation to the lawyer regarding the lawyer's services and has been gi that the lawyer will withdraw unless the obligation is fulfilled.'") 9. The question of whether an attorney should be pc or her representation is within the discretion of the trial court. Phoenix Radcliffe on Delaware, Inc., 266 A.2d 698, 700 (Pa. 1970). An attome,. will ordinarily be gran{ed where the client's interests will not be prejudJ 10. Moreover, attorneys have been granted leave to where the client was unable or refused to pay the attorney's fee. See £ 614 A.2d 1146 (Pa. Super. 1992); Commonwealth v. Sweene¥, 533 A.~ K&L reserved the right ~Ion View agreed to to pay its attorneys' fees lance of unpaid legal detemdne whether Mon at if its fees and expenses 1. failed to satisfy its aer to pay its existing · opriate for a court to . Park v. Norle¥, 677 fessional Conduct 1.16: ~ubstantially to fulfill an en reasonable warning rmitted to withdraw his Mut. Life. Ins. Co. v. r's request to withdraw ced. Id__~. 4thdraw in instances ,mmonwealth v. Little, d 473 (Pa. Super. 1987). See also Helms et al. v. Kuebler et al., 44 Pa. D. & C. 71 (1942) (includi fees after being requested to do as the type of conduct, on the part of the "sufficient cause to justify an attorney in abandoning a case"). 11. K&L has good and sufficient reason to terminate View - its account is past due and as noted previously, Mon View prese operations due to lack of funds. Moreover, K&L does not ordinarily tak basis. 12. Furthemlore, the granting of K&L's Petition will or cause undue delay to the processing of this case to final disposition. currently scheduled for arbitration on June 27, 2002, the formal dispute over a year and continuing the arbitration for a reasonable time to allow to find alternative counsel will not prejudice Mon View. 13. Additionally, given these same circumstances, th, Petition will not prejudice Heine or cause undue delay to the processin disposition. 14. Accordingly, this Court should exercise its disc~ withdraw as counsel for Mon View and continue the arbitration hearin June 27, 2002. 15. On June 19, 2002, pursuant to Local Rule 206-2 concurrence of counsel for Heine to the filing of this Petition. Counsel Heine was opposed to the Petition to the extent it requests a continuanc hearing. ng failure to pay one's client, that constitutes .ts relationship with Mon atly has idled its cases on a contingent .ot prejudice Mon View klthough the case is has been ongoing for Mon View opportunity granting ofK&L's of this case to final tion to allow K&L to currently scheduled for ), K&L sought the ,r Heine indicated that ~ of the arbitration WHEREFORE, K&L respectfully requests that this Cour substantially in the form attached hereto, granting K&L's petition to wit Mon View and continuing the arbitration hearing, along with such other just and appropriate. Dated: June 20, 2002 By: {~hristopher R. Nestor, Es( Pa. I.D. No. 82400 KIRKPATRICK & LOCK Pa)me Shoemaker Buildin 240 North Third Street Harrisburg, PA 17101-151 (717) 231-4500 Peter N. Flocos, Esq. Dianna S. Karg, Esq. KIRKPATRICK & LOCK Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 Counsel for: Mon View Mining Compa : enter an Order, ~draw as counsel for relief the Court deems IART LLP [ART LLP CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoi Withdraw Appearance And Request For Continuance Of Arbitrati~ served on the 20th day of June, 2002, upon the following: by first-class United States mail and facsimile: James M. Robinson, Esq. Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Telephone: 717.245.9688 Facsimile: 717.245.2165 Ron Turo, Esq. Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Telephone: 717.245.9688 Facsimile: 717.245.2165 R. Mark Thomas, Esq. Chairman, Board of Arbitrators 101 South Market Street Mechanicsburg, PA 17055 Telephone: 717.796.3600 Facsimile: 717.796.2100 by first-class United States mail and overnight delivery: Mr. John Hatch Mon View Mining Company 1200 Mingo Creek Road Finleyville, PA 15331 Telephone: 412.979.4297 ag Petition To ,n Hearing has been Christophel R. Nestor WALTER N. HEINE, ASSOCIATES, INC. Plaintiff, MON VIEW MINING CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2001-3692 CIVIL TERM CIVIL ACTION - LAW PETITION TO WITHDRAW APPEARANCE AND REQUEST FOR CONTINUANCE OF ARBITRATION HEARING Filed on behalf of Defendant: Mon View Mining Company Counsel of Record for this Party: Christopher R. Nestor Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717)231-4500 Peter N. Flocos Pa. I.D. No. 74746 Dianna S. Karg Pa. I.D. No. 86477 KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, Pennsylvania 15222-2312 Telephone: (412) 355-6500 WALTER N. HEINE, ASSOCIATES, INC. Vo Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2001-3692 CIVIL TERM CIVIL ACTION - LAW PETITION TO WITHDRAW APPEARANCE AND REQUEST FOR CONTINUANCE OF ARBITRATION HEARING Kirkpatrick & Lockhart LLP ("K&L"), counsel for Defendant, Mon View Mining Company ("Mon View"), hereby petitions the Court, pursuant to Rule 1012(b) and 1303(b) of the Pennsylvania Rules of Civil Procedure, to pemfit K&L to withdraw as counsel for Mon View in the above-captioned matter and for a continuance of the arbitration hearing currently scheduled for June 27, 2002. In support of this request, K&L states as follows: 1. On August 3, 2001, K&L entered its appearance on behalf of Mon View by filing a Petition for Relief from Default Judgment in response to the complaint filed against Mon View by Walter N. Heine, Associates, Inc. ("Heine") on June 15, 2001. 2. Mon View is alleging claims of breach of contract, breach of fiduciary duty and breach of implied duty of good faith and fair dealing. 3. Mon View, which is a mining company located in Washington County, is in financial distress and has been forced to idle its mining operations and lay off its employees, due to lack of funds. 4. In its engagement letter dated November 3, 2000, K&L reserved the fight to terminate its services upon non-payment of legal fees and expenses· Mon View agreed to abide by this practice· 5. Due to its financial distress, Mon View has failed to pay ~ts attorney fees and expenses due and owing to K&L and has incurred an outstanding balance of nnpaid legal fees and expenses. 6. After allowing significant time to pass in order to determine whether Mon View's financial situation would improve, K&L infomied Mon View that if its fees and expenses are not promptly paid, K&L will be forced to withdraw its representation. 7. Despite several requests by K&L, Mon View has failed to satisfy its account, and there is no present prospect that Mort View will be able either to pay its existing past due bills or future legal expenses that would be incurred. 8. Under the circumstances presented here, it is appropriate for a court to grant an attorney's application to withdraw as counsel. Lincoln Ave. Ind. Park v. Norle¥, 677 A.2d 1219, 1220 n.1 (Pa. Super. 1996) (citing Pennsylvania Rule of Professional Conduct 1.16: "an attorney may withdraw from representing a client if'the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.'") 9. The question of whether an attorney should be permitted to withdraw his or her representation is within the discretion of the trial court. Phoenix Mut. Life. Ins. Co. v. Radcliffe on Delaware, Inc., 266 A.2d 698, 700 (Pa. 1970). An attorney's request to withdraw will ordinarily be gran{ed where the client's interests will not be prejudiced· Id__~. 10. Moreover, attorneys have been granted leave to withdraw in instances where the client was unable or refused to pay the attorney's fee. See Commonwealth v. Little, 614 A.2d 1146 (Pa. Super· 1992); Commonwealth v. Sweene¥, 533 A.2d 473 (Pa. Super· 1987). See also Helms et al. v. Kuebler et al., 44 Pa. D. & C. 71 (1942) (including failure to pay one's fees after being requested to do as the type of conduct, on the part of the client, that constitutes "sufficient cause to justify an attorney in abandoning a case"). 11. K&L has good and sufficient reason to texminate its relationship with Mon View - its account is past due and as noted previously, Mon View presently has idled its operations due to lack of funds. Moreover, K&L does not ordinarily take cases on a contingent basis. 12. Furthem~ore, the granting of K&L's Petition will not prejudice Mon View or cause undue delay to the processing of this case to final disposition. Although the case is currently scheduled for arbitration on June 27, 2002, the formal dispute has been ongoing for over a year and continuing the arbitration for a reasonable time to allow Mon View opportunity to find alternative counsel will not prejudice Mon View. 13. Additionally, given these same circumstances, the granting of K&L's Petition will not prejudice Heine or cause undue delay to the processing of this case to final disposition. 14. Accordingly, this Court should exercise its discretion to allow K&L to withdraw as counsel for Mort View and continue the arbitration hearing currently scheduled for June 27, 2002. 15. On June 19, 2002, pursuant to Local Rule 206-2(c), K&L sought the concurrence of counsel for Heine to the filing of this Petition. Counsel for Heine indicated that Heine was opposed to the Petition to the extent it requests a continuance of the arbitration hearing. WHEREFORE, K&L respectfully requests that this Court enter an Order, substantially in the form attached hereto, granting K&L's petition to withdraw as counsel for Mon View and continuing the arbitration hearing, along with such other relief the Court deems just and appropriate. By: C/hristopher R. Nestor, Esq. Pa. I.D. No. 82400 KIRKPATRICK & LOCKHART LLP Payne Shoemaker Building 240 North Third Street Harrisburg, PA 17101-1507 (717) 231-4500 Peter N. Flocos, Esq. Dianna S. Karg, Esq. KIRKPATRICK & LOCKHART LLP Henry W. Oliver Building 535 Smithfield Street Pittsburgh, PA 15222 (412) 355-6500 Dated: June 20, 2002 Counsel for: Mon View Mining Company CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition To Withdraw Appearance And Request For Conthmance Of Arbitration Hearing has been served on the 20th day of June, 2002, upon the following: by first-class United States mail and facsimile: James M. Robinson, Esq. Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Telephone: 717.245.9688 Facsimile: 717.245.2165 Ron Turo, Esq. Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Telephone: 717.245.9688 Facsimile: 717.245.2165 R. Mark Thomas, Esq. Chaiiman, Board of Arbitrators 101 South Market Street Mechanicsburg, PA 17055 Telephone: 717.796.3600 Facsimile: 717.796.2100 by first-class United States mail and overnight delivery: Mr. John Hatch Mon View Mining Company 1200 Mingo Creek Road Finleyville, PA 15331 Telephone: 412.979.4297 Christopher R. Nestor JUN ~ ~ ZO0~ ~ WALTER N. HEINE, ASSOCIATES, INC. Plaintiff, MON VIEW MINING CORPORATION, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2001-3692 CIVIL TERM CIVIL ACTION - LAW _~d~ ORDER AND NOW, this ay o 002, upon consideration of the foregoing Petition to Withdraw Appearance, is hei~l~ ORDERED 'that: (1) the Petition is it GRANTED; (2) Kirkpatrick & Lockhart, LLP and its attorneys are hereby withdrawn as counsel for Defendant, Mon View Mining Company, in the above-captioned case; (3) the arbitration hearing currently scheduled for June 27, 2002 is continued generally, and may be rescheduled by Plaintiffby Petition for Appointment of Arbitrators. BY THE COURT: WALTER N. HEINE ASSOCIATES, INC.,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : MON VIEW MINING CORPORATION, Defendant NO. 2001-3692 CIVIL TERM CIVIL ACTION - LAW NOTICE OF ARBITRATION HEARING PLEASE TAKE NOTICE THAT a hearing before the arbitrators heretofore appointed will be conducted on .June 27, 2002, at 1:00 p.m. in the Second Floor Hearing Room, Old Cumberland County Courthouse, Carlisle, Pennsylvania. April 9, 2002 R. Mark Thomas, Chairman TO: Wayne Pecht, Esq., Arbitrator 415 FollowfieldRoad ~l~J Camp Hill, PA 17011 Andrew Norfleet, Esq., 3211 N. Front Street Harrisburg, PA 17101~,/~ James Robinson, Esq. Attorney for Plaintiff 28 S. Pitt Street Carlisle, PA 17013 Christopher Nestor, Esq. Attorney for Defendant (~.~ 240 N. Third Street .-- Harrisburg, PA 17101 The Bulletin Board, Prothonotary's Office Cumberland County Courthouse Carlisle, PA 17013 Court Administrator Cumberland County Courthouse Carlisle, PA 17013 WALTER N. HEINE ASSOCIATES, INC.,: IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLANDCOUNTY, PENNSYLVANIA Vo MON VIEW MINING CORPORATION, Defendant : NO. 2001-3692 CIVIL TERM : : CIVIL ACTION - LAW : NOTICE OF CONTINUANCE Please take notice that the arbitration hearing previously scheduled for June 27, 2002 at 1:00 p.m. in the above captioned matter has been continued generally. The arbitration will not be rescheduled until such time as the court has ruled upon the petition of counsel for the defendant to withdraw his appearance. June 24, 2002 By:.~ R. Mark Thomas, Chairman TO: Wayne Pecht, Esq., Arbitrator 415 Followfield Road Camp Hill, PA 17011 Andrew Norfleet, Esq., Arbitrator 3211 N. Front Street Harrisburg, PA 17101 James Robinson, Esq. Attorney for Plaintiff 28 S. Pitt Street Carlisle, PA 17013 Christopher Nestor, Esq. Attorney for Defendant 240 N. Third Street Harrisburg, PA 17101 The Bulletin Board, Prothonotary's Office Cumberland County Courthouse Carlisle, PA 17013 Court Administrator Cumberland County Courthouse Carlisle, PA 17013 WALTER N. HEINE ASSOCIATES, INC., Plaintiff · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MON VIEW MINING CORPORATION Defendant : NO. 2001-3692 CIVIL TERM : CIVIL ACTION - LAW ORDER OF COURT (~/~ ,,'/ ,2002, in consideration of the AND NOW, this O~ ~ day of foregoing Petition, ~ ~ ~ a~/m , B~i.' ~Z/.~, o ~' ./C)~, Esq., and ,..~./~. _~-/~?_,,_) .~?,3~.~_ _~, Esq., appointed arbitrators in the above-captioned action as prayed for. BY THE COURT, WALTER N. HEINE ASSOCIATES, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MON VIEW MINING CORPORATION Defendant : NO. 2001-3692 CIVIL TERM : CIVIL ACTION - LAW PETITION FOR APPOINTMENT OF ARBITRATOR TO THE HONORABLE, THE JUDGES OF SAID COURT: James M. Robinson, Esquire, counsel for the Plaintiff in the above action, respectfully represents that: 1. 2. The above-captioned action is (or actions are) at issue. The claim of the Plaintiff in the action is $7,919.37. The counterclaim of the Defendant in the action is $ n/a. The Defendant in this action has not retained counsel as of this date. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Ron Turo, Esquire All members of the firm of: Robert J. Muldedg, Esquire Kirkpatdck & Lockhart, L.L.P. Galen R. Waltz, Esquire James M. Robinson, Esquire Carol L. Cingranelli, Esquire WHEREFORE, YOUR Petitioner prays this Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, M. RoTon, Esquire